1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar
Source link: http://archive.mises.org/4992/objectivists-on-ip/

Objectivists on IP

May 3, 2006 by

As I noted in a recent post, Objectivist had written a critique of libertarian arguments against intellectual property. At the time the article was not available online, but it has since been posted: Don’t Steal This Article. I have not had time to reply in detail, but let’s just say, for now, I think the critique–while a decent attempt, about as good as you can do given some of Rand’s premises–is confused and utterly unpersuasive.

{ 95 comments }

Artisan May 8, 2006 at 5:34 am

Paul D


I don’t acknowledge any “rights of the discoverer”, … only the part I can homestead and protect is mine. … I might discover a medicinal plant enzyme, but only those I am able to harvest or produce myself are mine. … It is [fair] for people to benefit incidentally from my efforts, [since] I benefit from the efforts of all many others… an absurd situation where someone wastes heapfuls of money building overpowered transmitters …

With all respect, I think you are pushing it, Paul. I feel I’m irritating you, which certainly is not my intention, but now we are really just discussing over each other’s head, don’t you think? Who are you trying to convince besides me (Well maybe there’s no need anymore in this blog, sure…)? You are just assuming a lot of things that I, or in this case Rothbard, don’t say nor imply . What it implies though simply doesn’t seem to even interest you, probably because of the undifferentiated criminalization of all IP issue that you ‘ve described in the US, which steals all your attention, which is quite understandable. However, I’m talking about two precise examples given by Rothbard, regarding oil resources and air waves… and their direct logical consequences strictly on the justification for an artistic copyright DEPRIVED from the necessity of the State enforcement, while you talk about the use of patents, and simply the might (not just the right) to defend oneself alone…

So here again one short excerpt of Rothbard challenging some of your assumption, yet if you really don’t see how, there’s no use to go further I believe…

http://mises.org/rothbard/newliberty5.asp

Another common objection to private property in the broadcast media is that private stations would interfere with each other’s broadcasts, and that such widespread interference would virtually prevent any programs from being heard or seen. But this is as absurd an argument for nationalizing the airwaves as claiming that since people can drive their cars over other people’s land this means that all cars—or land— must be nationalized. The problem, in either case, is for the courts to demarcate property titles carefully enough so that any invasion of another s property will be clear-cut and subject to prosecution. In the case of land titles, this process is clear enough. But the point is that the courts can apply a similar process of staking out property rights in other areas—whether it be in airwaves, in water, or in oil pools. In the case of airwaves, the task is to find the technological unit—i.e., the place of transmission, the distance of the wave, and the technological width of a clear channel—and then to allocate property rights to this particular technological unit. If radio station WXYZ, for example, is assigned a property right in broadcasting on 1500 kilocycles, plus or minus a certain width of kilocycles, for 200 miles around Detroit, then any station which subsequently beams a program into the Detroit area on this wavelength would be subject to prosecution for interference with property rights. If the courts pursue their task of demarking and defending property rights, then there is no more reason to expect continual invasions of such rights in this area than anywhere else.

Paul D May 8, 2006 at 9:12 am

Artisan, maybe I’m making too many conclusions from your arguments, but I just don’t generally see that Rothbard’s borderline property cases have any useful analogy to “artistic copyright” (I’ll restrict myself to that since you mentioned it). Let me compare your situations once more and see if I make any sense to you.

Let’s base this on the homesteading principle, which means that by combining un-owned resources with one’s own labour, one produces goods that may be considered “owned”, in that other people may not deprive you of that good or your use of that good without your permission.

1. Oil Field

If there’s an argument to be made that extracting oil from an oil field confers ownership of the whole thing, it comes from an assumption that one’s labour has turned the whole field into a scarce physical good. I think this interpretation is incorrect; after all, one doesn’t claim to own a whole lake, river, or ocean after taking some water from it. My position is that only the extracted oil has been turned into a good. However…

Accepting for argument’s sake that a person owns an entire oil field, stealing oil produces an immediate physical loss of the owner’s good. Key characteristics of oil that make it property: physicality, exclusivity of use.

In either case, I see no reason to invoke a “right of the discoverer”. This merely confuses discovery with homesteading, two very different things.

Connection to artistic copyright: none apparent.

2. Radio Waves

Rothbard’s argument is really problematic here. You don’t produce any tangible good when you turn on a transmitter. Sure, you have the right to beam energy at other people’s houses; but do you have the right to ban other people from doing the same?

For argument’s sake, taking the tenuous position that mixing radio waves with empty space produces some sort of property-like thing, and given a primitive state of technology, one admits that such a “broadcast space” is physically diminished in size if jammed by another station. There is a quantifiable loss of the original radio station operator’s broadcast zone. This loss is physically measurable and independent of any “intellectual property” voodoo.

Since it’s mutually beneficial for all broadcasters in an area not to interfere with each other, I think the market would deal with it even more easily than Rothbard’s litigation model suggests.

Connection to artistic copyright: none apparent.

3. Artistic Creation

You haven’t outlined any specific copyright principles you’d like to defend, so I’ll assume the basics.

Let’s say you purchase paint, tools, and canvas, and use them to produce a painting. This painting is clearly your physical property. You may enjoy it for any of its properties, physical or aesthetic. You may hang it on your wall, use it as a dartboard, or burn it for kindling. You may even try selling it, though you can’t force anyone to buy it.

I see your painting, and like its aesthetic characteristics so much, I buy my own materials and make an exact copy. I then digitize the painting and distribute it to all my friends on the Internet. It would be honest of me to acknowledge you as the original painter, but that’s beside the point in this case.

You still have the property (a painting) you created. At no point have I deprived you of it or its use (however you choose to use it). Unlike the above two cases, there is *no quantifiable diminishment* of your property. The best you can claim is that you hoped to sell the painting for a pile of money, and now it’s probably worth less. It’s an unverifiable claim that might even be false, if my copies have made the original even more in demand. But whether the market for you to sell your item has changed is irrelevant; you never had the right to make people buy your painting, or to make them buy it at a certain price.

In conclusion, I have failed to find a useful connection between copyright and Rothbard’s borderline property situations. Unless you have an ace hidden up your sleeve, I’ll probably just let this thread rest.

David J. Heinrich May 8, 2006 at 9:41 am

Paul D,

Although I agree with the general thrust of your argument, I have several possible disagreements:

(1) Regading an oil-field, or continuous “oil pool”, I would argue that what matters is how it is considered by human actors, as a “technological unit”. Since I’d argue it’s considered as one resource, the first person to homestead “a part” of it — that is, to start pumping oil — is the owner.

(2) Regarding radio-waves, I’d argue that in-so-far as there is scarcity in them — regarding jamming, etc — people own them as they homestead them. There is no reason we have to constrict property rights to merely the purely tangible, physical, touchable things. Radio-waves are a scarce resource, and to the extent that someone mixes their labor with them by broadcasting radio-shows or some other labor-mixing, I argue one should own such.

(3) While I agree with your argument on IP and paintings in general, the original creator of a painting could, of course, make anyone who saw it sign a contract saying they wouldn’t reproduce it in any way, or make any copies of it. Of course, if they made copies anyway, and gave them to others, the original contract would only bind the parties who signed it.

However, it seems pretty clear that the value of an original painting is enhanced by having digital copies of it, in that such is how more people come to know of, and thus value it.

Paul D May 8, 2006 at 9:51 am

Thanks for the reply, David.

(1) While I obviously disagree, this is a defensible point of view. Maybe there’s some common-sense limit to the size of the well; does it make any sense to claim ownership of a country-sized reserve just because you managed to extract a gallon?

(2) Again, defensible because of the scarcity aspect, but still problematic. Maybe it should be up to the people who actually own the property being invaded with radio waves. :)

(3) Agreed, contracts are possible but likely ineffectual if applied on an individual basis. More likely, large producers of paintings (or whatever) would have mutual agreements not to reproduce each others’ works.

bourbon May 8, 2006 at 10:24 am

I hear two fundamental arguments here: 1) Intellectual (property) rights are difficult to enforce, therefore, they cannot exist. 2) Ideas, once published are no longer scarce, and therefore cannot be property. The first argument puts the cart before the horse. The question is whether there are philosophical grounds supporting the notion of intellectual property. This question is at the heart of the Perkins article. The question of how society chooses to enforce those rights is another question entirely, but the fact that they may be difficult to enforce does not invalidate the philosophical foundation that they exist – it is only an argument to ignore them. Society has had over 600 years of jurisprudence to develop acceptable laws governing the rights of real property. We are still in the dawn of the industrial revolution and in the mist of the greatest technological revolution human kind has ever experienced. The explosion of valuable innovation has now ripened the question of how to enforce intellectual property. It will take time for society to sort it out. Assuming that novel ideas are property, then IP laws arbitrarily strip away a fundemental property right after a certain period of time for the betterment of society (expiration of enforcment and forced publishing). This state sponsered theft is a working compromise in exchange for enforcing the right, and is paletable because it promotes the inovation necessary to solve the problem of scarcity.

The second argument is difficult for me. It suggests that property is not property if abundant. To me this suggests that if property is plentiful it loses its status as ownable. I understand that its value may be negligible (since price would be reduced because of oversupply), but it is property non-the-less. Is the argument really that if something is not derived from (limited) natural resources, then it is not property — a sort of tangible test? This also seems to be a weak distinction. I am not convinced that the scarcity argument undermines Perkins’ thesis that novel ideas are a fundemental property right.

quasibill May 8, 2006 at 12:19 pm

“It suggests that property is not property if abundant”

Once again, you are misinterpreting the use of the word “scarce” in this context. It has little to nothing to do with abundance. The point of “scarcity” in this context is that one person’s use of the resource deprives anyone else of the use (during a relevant time period).

So, once again, the question isn’t whether there is abundance of materials or whatever, it is whether my use of the resource deprives you of your use of it. And note, this doesn’t mean it decreases your price on the market – no defensible property right gives a right to any given price on the market. Since I can hum “My Sweet Lord” without depriving you from doing the same, it is not scarce.

“Intellectual (property) rights are difficult to enforce, therefore, they cannot exist”

Actually, that’s the exact opposite of the understanding I got from Perkins’ article – he and IP proponents claim that it is difficult to have IP rights that can be protected by contracting and self-defense, therefore we need a state and IP laws to do it. And as you note, that is putting the cart before the horse.

Paul Edwards May 8, 2006 at 12:53 pm

“…It suggests that property is not property if abundant. To me this suggests that if property is plentiful it loses its status as ownable. I understand that its value may be negligible (since price would be reduced because of oversupply), but it is property non-the-less. Is the argument really that if something is not derived from (limited) natural resources, then it is not property — a sort of tangible test? This also seems to be a weak distinction. I am not convinced that the scarcity argument undermines Perkins’ thesis that novel ideas are a fundemental property right.”

Bourbon,

Property is property for sure. There is no argument there. The question is what constitutes property, why it is property, and why does such a concept as property exist in the first place.

The institution of property arises from the need to make conflict avoidance possible. Conflict arises from two different people having conflicting desires to use the same scarce resource. With no scarcity, there can be no potential for conflict. With no potential for conflict, there can be no need to institute norms to make conflict avoidance possible, since lack of conflict would already be the natural state. With no need to institute norms to make conflict avoidance possible, there would be no need for the concept of property; the concept would simply have no meaning. Ergo, the concept of property is founded on the fact of scarcity of resources, the conflict this scarcity can create, and the desire of avoiding such conflict.

What this implies is that anything such as a common idea, a language, an alphabet, the air we breathe, or a song on everybody’s laptop or hard-drive, which are all not scarce, can all be used by different individuals, in a conflict free manner, cannot be property; the term property applied to such things is meaningless.

BillG (not Gates) May 8, 2006 at 1:31 pm

Paul Edwards wrote:

“What this implies is that anything such as a common idea, a language, an alphabet, the air we breathe, or a song on everybody’s laptop or hard-drive, which are all not scarce, can all be used by different individuals, in a conflict free manner, cannot be property; the term property applied to such things is meaningless.”

BillG responds:

the air we breath is used both as a source AND a sink for the byproducts of human’s attempting to sustain themselves.

in the case of the use of the sky as a sink we had better devise a better way to manage it then via tort law.

my preference is to declare that it is all owned in common as an individual right and that the negative externalities define the extent that individual rights to our wages are being violated.

bourbon May 8, 2006 at 3:42 pm

“The institution of property arises from the need to make conflict avoidance possible. Conflict arises from two different people having conflicting desires to use the same scarce resource. With no scarcity, there can be no potential for conflict. With no potential for conflict, there can be no need to institute norms to make conflict avoidance possible, since lack of conflict would already be the natural state. With no need to institute norms to make conflict avoidance possible, there would be no need for the concept of property; the concept would simply have no meaning. Ergo, the concept of property is founded on the fact of scarcity of resources, the conflict this scarcity can create, and the desire of avoiding such conflict.” (Paul Edwards)

Thank you. I now understand your use of “scarcity.” George Reisman (of whom I am a big fan) makes a distinction between “free goods” (benefits that do not need to be created – e.g. air), and “economic goods” (benefits that are created as beneficial and life-preserving). “Potential economic goods” are benefits that are proxies, means, or ideas. “Material Economic Goods” are existing benefits to men’s lives.
As Perkins points out, labor and ideas, as potential economic goods, are valued because they are indispensable means to wealth (the creating of economic goods). Doesn’t this suggest that “property” is born out of its utility, not its method of allocation? In other words, “property” must have utility before there is conflict over its use, and therefore, isn’t it its utility that defines the property, not its allocation?

Artisan May 8, 2006 at 4:06 pm

Paul Edwards rightly says (citing Rothbard and Hoppe I believe)


“The institution of property arises from the need to make conflict avoidance possible. Conflict arises from two different people having conflicting desires to use the same scarce resource. With no scarcity, there can be no potential for conflict.”

This sentence conceals a major definition problem.

Can property ONLY be defined through scarcity. If this were the case, I agree, there would be no such thing as a justification for copyright retribution. Yet Hoppe and Rothbard clearly make their definition dependent of the need to avoid conflict. Their premise is


“two people can’t have conflicting interests concerning something that they already fully own”.

If this premise was acceptable, copyright would be obsolete indeed. BUT the phrase above ISN’T always acceptable …

The ambiguity in this definition arises through the concept of identity. Two persons have identities. Identities are theoretically completely scarce since they are all unique (Hoppe speaks about the “body”, as the only property in Eden). No one is like someone else. And yet, as EVERYBODY possesses an identity, identity is also NOT scarce. People are playing on this syllogism when considering the justification for copyright abolition.

It is obvious though that “air” and “salted water” are “not scarce” in a different way: i.e. anonymously. (No need for the concept of “functionality”.)

An identity is a property. It is strictly speaking the first property for those who like philosophy. Don’t fool ourselves though, one can “steal” an identity. One can “loose” an identity.

For those who still think it’s bullshit, the last chance to grasp this (quite simple) concept comes with the new field of genetic cloning. Can a doctor make a clone (or ten?) of you, using secretions you produced while innocently sleeping in his hospital after a benign intervention. Well you can make him sign a contract not to reproduce you, but can you prevent the nurse next door to use those secretions, perhaps sell them millions because you’ve got such a swell IQ?

If you say “sure”, I think I don’t want to be libertarian. I actually like my individual identity.

lorenzo sleakes May 8, 2006 at 4:38 pm

Stephan Kinsella said:
if A sells one device embodying his invention to B, and makes B agree not to divulge the secret, is this agreement enforceable? Can it be used to construct a type of patent or copyright regime? I answer this in detail in my article Against Intellectual Property, pp. 35-41.

If an object is stolen from person A and then person B sells it to person C – who is the legal owner? Most people would say person A. It is the same thing with copyrights. If person A buys a books (contactually agreeing to protect the secrecy) and then uploads it the web where person C changes the author name and sells it has his own – it is the same thing. It doesnt matter that person C did not agree to the contract. Somebody else MUST have violated the contact in order for person C to have found the exact words to copy. The state can know the secrecy contact was violated without knowing how it was – therefore the need for copyrights as a special part of the law to make the contract realistially enforceable.

Stephan Kinsella May 8, 2006 at 5:00 pm

Sleakes:

If an object is stolen from person A and then person B sells it to person C – who is the legal owner? Most people would say person A. It is the same thing with copyrights.

Two problems with this. First, it is not at all obvious that person A is necessarily the owner–and it is certainly not the case that “most people” would say A–maybe most libertarians would, but most modern legal systems will sometimes award title to C, if it is “more” A’s “fault” than it is C’s. Suppose A leaves a million dollar diamond in plain view on his kitchen table on a day when he is having a block party with lots of strangers attending. Lo and behold it turns up missing. Later the thief sells it to some innocent third party. The thief is long gone: who should get the jewel? It is arguable the third party is more of a victim than the careless original owner.

But this is irrelevant. LEt us assume that you are right, that in all cases the original owner should get his property back. The real problem with your equation is your assumption that works of authorship are ownable things in the first place. They are not like the stolen object of your exmaple–objects are presumably tangible and thus ownable. So your example begs the question.

Suppose you have discovered the largest prime number known–larger than the previously largest one known. You “own” this information. No one else knows it. IF some thief breaks into your house and steals your PC, and soon the new prime number is all over the Internet–would you say that mathemeticians have to “return” the information about the prime number to you? Do they have to “pretend” they don’t konw it?? Does a software company hoping to use this number in an encryption program have to get your permission to use it?

If person A buys a books (contactually agreeing to protect the secrecy) and then uploads it the web where person C changes the author name and sells it has his own – it is the same thing. It doesnt matter that person C did not agree to the contract. Somebody else MUST have violated the contact in order for person C to have found the exact words to copy. The state can know the secrecy contact was violated without knowing how it was – therefore the need for copyrights as a special part of the law to make the contract realistially enforceable.

The question is: is an innocent person free to manipulate his own property according to information or ideas in his head, or not?

bourbon May 8, 2006 at 5:23 pm

Kinsella:
Is your argument that a good must be tangible?

Also, isn’t the discovery of a fact of the universe (the largest prime number) just a “free good,” to use Riesman’s term. There is no invention in it, is there? Mustn’t one first answer the question of whether an idea can be a good, and when an idea is an ecomonic good, before one can wrestle with restictions of use and allocation.

Paul Edwards May 8, 2006 at 6:42 pm

Artisan,

While I wasn’t citing anyone, I will very freely say that my thinking is strongly influenced by Hoppe’s discussions on ethics. I find his lingo precise and clear, so I think I’ve adopted it partially. While I think it is consistent with Rothbard’s references to what is and what is not a good, it is at odds with Rothbard’s conclusion that copyright is justified. Or in short, I think Rothbard was inconsistent in advocating copyright.

Anyways, in respect to this question: “Can property ONLY be defined through scarcity”, I think the answer is that the sole purpose of the institution of property is to allow us the chance at avoiding the conflict that arises from two people or more wishing to use the same scarce resource in a conflicting manner. From an ethical perspective, this is what property is designed to do and this is, in fact what property allows us to accomplish. Therefore it doesn’t make sense to extend the concept of property past this purpose. We can make up some other distinct, different, and contrasting term that is some kind of an extension of the term property that might apply to things that are not scarce and therefore do not give rise to conflict. But the term isn’t property.

Roy W. Wright May 8, 2006 at 6:44 pm

Also, isn’t the discovery of a fact of the universe… just a “free good,” to use Riesman’s term. There is no invention in it, is there?

Any invention is simply a discovery of a fact of the universe.

quasibill May 8, 2006 at 7:49 pm

“If you say “sure”, I think I don’t want to be libertarian. I actually like my individual identity.”

Um, you need to learn just a little bit about biology – a “clone” of me will not have my “identity” anymore than if I had an identical twin, and in fact, will have less of my identity than an identical twin.

Beyond that – it’s unlikely that cloning will ever get to be so cheap that that will be possible, let alone likely. One clone, maybe, but thousands or more would bankrupt Bill Gates.

And finally, if it did happen – okay. That’s a worst case scenario. Let’s compare it to the bad case scenarios that occur daily with IP law, and it’s a no-brainer that IP is worse on a continuous basis than the absence of IP.

bourbon May 8, 2006 at 7:49 pm

Roy W. Wright:
Is an invention simply a discovery of a fact of the universe? I argue that there is an important distinction. A fact of the universe already exists — it is simply recognized. Inventions would not exist without the creative efforts of the inventor. An inventor uses discovered facts to create process that transform “free goods” to “tangible economic goods” thereby creating wealth. Discovery and invention are not synonymous.

Peter May 8, 2006 at 9:47 pm

And yet, as EVERYBODY possesses an identity, identity is also NOT scarce.

You’re simply confused about the meaning of scarcity.

For those who still think it’s bullshit, the last chance to grasp this (quite simple) concept comes with the new field of genetic cloning. Can a doctor make a clone (or ten?) of you, using secretions you produced while innocently sleeping in his hospital after a benign intervention. Well you can make him sign a contract not to reproduce you, but can you prevent the nurse next door to use those secretions, perhaps sell them millions because you’ve got such a swell IQ?

Sure, why not?

If you say “sure”, I think I don’t want to be libertarian. I actually like my individual identity.

Is a libertarian something you “want to be” or “don’t want to be”, or just a description what you believe? What makes you think a clone of you would somehow “take” you identity? That’s as silly as believing that taking your photograph steals your identity!

Stephan Kinsella May 8, 2006 at 11:32 pm

bourbon:

Kinsella:
Is your argument that a good must be tangible?

No. In fact, I don’t care, for my purposes, what “goods” are. This is not an economics lesson. What is at issue is what property rights pertain to–what property is. I maintain that only scarce resources are the subject of property rights. Whether or to what extent “scarce resources” correlates with the economic principles of goods I express no opinion.

Moreoever, I never said a resource must be tangible to be owned. Only that it be scarce.

Also, isn’t the discovery of a fact of the universe (the largest prime number) just a “free good,” to use Riesman’s term. There is no invention in it, is there? Mustn’t one first answer the question of whether an idea can be a good, and when an idea is an ecomonic good, before one can wrestle with restictions of use and allocation.

Actually, one must answer the question: what types of things are ownable, and what types are not? Obviously you agree that some “things” are not ownable. What exaclty is your criterion? Mine is whether the thing is a scarce resource or not.

Roy W. Wright May 9, 2006 at 12:28 am

Bourbon, could you either

A) give me a definition of an invention that distinguishes it from the discovery of a fact of the universe, or

B) give me an example of an invention that wasn’t simply the discovery of a fact of the universe?

bourbon May 9, 2006 at 1:06 am

Roy W. Wright:
From another blog: “An algorithm, on the other hand, is a step-by-step instruction guide in how to take information and use it in some meaningful way. The ways in which to use information are not facts of reality, just as the ways in which to use matter are not. Therefore, someone must see a need to use information in some way, and create its means — an algorithm. This is no different than someone identifying a need to use matter, and creating its means — an invention. In both cases, the creator may be directly dealing with metaphysical fact, but they apply fact to solve a problem, not discover it.”
(Justin)

Artisan May 9, 2006 at 4:24 am

Peter

Is a libertarian something you “want to be” or “don’t want to be”, or just a description what you believe?

I am ready to call myself “libertarian” because that economical system seems to me, as Mises Rothbard and Hoppe describe, to very consistently defend in its core, my and other people’s individual identity in society. Now, just because another person reads those authors and interprets some of their definitions in a way that’s subjective and unfitting with that core, doesn’t make me of course reject libertarianism. But since you ask: if the logical price to be a libertarian was to renounce to the uniqueness of one’s own identity, I would definitely reject its set of rules.


What makes you think a clone of you would somehow “take” you identity?

Aldous Huxley wrote a book worth reading on the subject, it’s called “Brave New World”.
A clone would carry my genetic identity, just as my sperm does. You may yourself not care about it and distribute your own sperm to all the donor banks in the world, because you “believe” genes are just random molecules, or you may think a man should be proud to have his genetic material distributed around anyways. However, while the set of rules protecting an identity doesn’t prevent you to live as you think in this respect, its contrary system, which would deny the control over one’s own genetic identity, does interfere with my conception of individual freedom (and it produces a conflict of interest that the major libertarian thinkers precisely wanted to ethically avoid!)

Paul Edwards

We can make up some other distinct, different, and contrasting term that is some kind of an extension of the term property that might apply to things that are not scarce and therefore do not give rise to conflict. But the term isn’t property.

The term that best describes property is identity (not necessarily scarce thus, as in cloning). (think of the simplest sentences like … “What property does object A have?” and “How do you define the identity of object A?”). The definition of property you subjectively chose to favour is one with a footnote that takes out identity for some “ethical” reason thus. The question is only: what ethical reason? How can an original identity not belong to its subject, ethically speaking? Just because it “SHOULD” not generate a sense of property? In the name of what? It’s the same “ethical” logic as saying people SHOULD’NT have any property, so there wouldn’t be any conflict of interest. I certainly am curious to read Hoppe’s opinion on copyright, as you say they are explicitly advocating copyright abolition though. Please, send me a quote or a link.

averros May 9, 2006 at 7:10 am

The discussion of what exactly the property is is quite informative, but the REAL problem with copyrights is not in what is considered property but, rather, in the fact that copyright owners choosing to “enforce” their rights do in fact steal from everyone else — including those who have no interest in or benefit from the copyrighted works.

This is because they force all taxpayers to pay for the legal enforcement primarily for the copyright owner’s benefit. These costs are far from trivial.

Absent such enforced subsidy, the authors could’ve choosen other methods for restriction of distribution of their works, such as technological means locking the content within a physical object, or hiring private protection agencies to enforce contractual limitations on reproduction. They’d be forced to increase prices of their products, to offset these costs — which would make a lot of low-quality junk uneconomical to produce, thus allowing better quality content to get better exposure.

Alternatively, they’d switch to indirect ways of generating revenue from their works – i.e. from performances and such. Even now, sale of copyrighted works is not always the primary source of income for successful artists.

Because copyright owners demanding protection are in fact simply common thieves, I do not think we should care about their ability to make living. Being a supposed creative genius doesn’t give someone a right to steal, right?

Paul D May 9, 2006 at 7:57 am

Quite so, Averros.

Monitoring and enforcing copyright requires violating all the actual rights to life, liberty, and property that libertarians believe in. That’s not “putting the cart before the horse” like another poster suggested. That’s pointing out a contradictory set of assertions. Anyone who tells me I’m not allowed to use or share information in a free, non-violent manner is an enemy to me and to liberty. Anyone who tries to extort money from me for doing so is a thief.

Paul Edwards May 9, 2006 at 10:09 am

Artisan,

“…The definition of property you subjectively chose to favour is one with a footnote that takes out identity for some “ethical” reason thus. The question is only: what ethical reason? How can an original identity not belong to its subject, ethically speaking? Just because it “SHOULD” not generate a sense of property? In the name of what? It’s the same “ethical” logic as saying people SHOULD’NT have any property, so there wouldn’t be any conflict of interest.”

I’m not aware of any conscious effort on anybody’s part to expressly delete the concept of “identity” from the definition of property for subjective reasons. Ethics is the area of concern over allowing the possibility of conflict avoidance in a world of scarce and valuable resources. So from that angle, the question of “identity” would not necessarily arise, since it is not something that gives rise to conflict. The concept of property is most adequate in dealing with conflict over scarce and valuable resources when it is defined as scarce and valuable resources that can be owned.

“I certainly am curious to read Hoppe’s opinion on copyright, as you say they are explicitly advocating copyright abolition though. Please, send me a quote or a link.”

Now this brings an interesting fact to light in my mind. I actually do not recall having ever read a single line of text of Hoppe’s where he has expressed an opinion specifically on copyright. Maybe he has never said a thing about it. However, he has written reams on ethics and property, and of what I have read of it, it seems necessarily to point to the invalidity of copyright. HOWEVER, I would be very interested if you could cite me something of Hoppe’s where he sides with Rothbard on the question. It would be a real event, in my mind, to see how he could possibly do so.

Artisan May 9, 2006 at 11:59 am

Paul Edwards


the question of “identity” would not necessarily arise, since it is not something that gives rise to conflict

What about the distribution of a person’s genome, against his own will, for reproduction purposes, as in my example? No possible source of conflict in a sane mind? Is there a super-judge to decide what is a libertarian conflict of interest then?


HOWEVER, I would be very interested if you could cite me something of Hoppe’s where he sides with Rothbard on the question. It would be a real event, in my mind, to see how he could possibly do so.


My knowledge of von Mise, Rothbard or Hoppe is far too small, yet I see we’d both love to hear the opinion of this most prominent figure among all of von Mises’ followers. One of us should just send him this whole blog and ask him for a comment I guess…

Averros

The discussion of what exactly the property is, is quite informative, but the REAL problem with copyrights is not in what is considered property but, rather, in the fact that copyright owners choosing to “enforce” their rights do in fact steal from everyone else — including those who have no interest in or benefit from the copyrighted works. This is because they force all taxpayers to pay for the legal enforcement primarily for the copyright owner’s benefit. These costs are far from trivial.

I tend to agree on that one, but then let’s not mention “copyright justification”. Let’s just focus on mischievous State practices that are out of proportion with real economical situations…

bourbon May 9, 2006 at 3:23 pm

“copyright owners choosing to “enforce” their rights do in fact steal from everyone else”
Don’t you have to own something before it can be stolen from you?

Stephan Kinsella May 9, 2006 at 3:33 pm

Bourbon: “”copyright owners choosing to “enforce” their rights do in fact steal from everyone else”
Don’t you have to own something before it can be stolen from you?”

Sure. Say I own my paper and ink. I am generally aware of the famous plot of the movie Bonnie & Clyde. Or of the character Superman. I feel like writing a book on my take on B&C–teh further adventures of bonnie & Clyde. Or, I want to write a comic, “Superman & Kinsella”–about the adventures of Superman helping out libertarian adventurist Stephan Kinsella. The Bonnie & Clyde, and Superman, copyright holders and prevent me from using or selling my own property in this way.

Or, suppose I own a car, and a carburator. I am aware that it is a fact that if I adjust my carbeurator *just so*, that I will improve my gas mileage. Unfortunately, someone 15 years ago filed for a patent on this “method of improving gas mileage” and they can literally prevent me, by force of an injunction issued from a court, from twiddling the knobs on my own carbeurator of my own car in my own driveway using my own hands.

So yes, by asserting IP, the copyright and patent holders are seizing partial control of my own property–my paper and ink, my car, etc.–resources which, yes, I already own. Well, I should say, “owned,” since now I am only a co-owner–the IP owners have now become co-owners with me of my things, since they, and I, now have joint control of these things.

lorenzo sleakes May 9, 2006 at 4:16 pm

Stephen I totally agree as you show in all your examples that IP can be abused to restrict freedom …but what if I just make copies of the famous movie Bonnie and Clyde and start selling it without paying any royalties. Isnt that also theft? Do we have to eliminate the whole IP system because it has potential for abuse?

Stephan Kinsella May 9, 2006 at 4:49 pm

Lorenzo Sleakes:

Stephen I totally agree as you show in all your examples that IP can be abused to restrict freedom …but what if I just make copies of the famous movie Bonnie and Clyde and start selling it without paying any royalties. Isnt that also theft? Do we have to eliminate the whole IP system because it has potential for abuse?

It’s only theft if IP is property, which is what is under discussion. I fail to see how it is theft. In some cases the copier could be under a contractual obligation to pay monetary damages to the movie company if he breaks his contractual promise not to copy it. But not every copier would have privity of contract with the original maker.

bourbon May 9, 2006 at 4:51 pm

Wait. I’m confused. If “Superman” becomes your property, then wasn’t it property already? And if it was already property, aren’t you the one who sole it first? Or is the argument that once someone makes a competing claim on your use of “superman” it becomes property? Still fuzzy on how scarcity converts a thing into property. When did “Superman” become property?

Stephan Kinsella May 9, 2006 at 5:00 pm

bourbon:

Wait. I’m confused. If “Superman” becomes your property, then wasn’t it property already? And if it was already property, aren’t you the one who sole it first? Or is the argument that once someone makes a competing claim on your use of “superman” it becomes property? Still fuzzy on how scarcity converts a thing into property. When did “Superman” become property?

Yes, you are confused. I never said Superman becomes my property. I only said in the example that I wanted to use my paper and ink to write and sell a comic about the adventures of Superman and Kinsella. I never implied that I thereby “owned” Superman. If I prance naked in my back yard I don’t thereby own “prancing naked” either, do I?

Imagine a world where if you want to buy a Mickey Mouse doll, you can buy it from Disney, or you can buy a cheaper version from a Chinese company. No one “owns” the idea of Mickey Mouse. There might be a dozen independent companies out there publishing their own adventures of Superman. So what?

Yes, you are confused: no one said scarcity “converts” anything to property. Rather, what we said is that scarce resources–and only scarce resources–are such that they may be owned.

bourbon May 9, 2006 at 5:29 pm

Kinsella: Educate me further. You explained that scarcity is the competing claim on a thing. (As opposed to the abundance of a thing). Since ideas can not be restricted (without force), i.e. my simultaneous use of your idea does not restrict your use of the same idea, then they are not scarce and cannot be owned. Ownership of (a right to) a thing is governed by its scarcity, not its creation, utility or value. Therefore, only concrete things can be owned, and abstract things cannot be owned, and the issue of the value or utility of a thing is irrelevant to ownership (i.e. an abstraction that has value, such as an idea that improves resources, still cannot be owned because it is not concrete — the value can only be reaped in the concrete improved resources the idea creates). Additionally, one cannot sell an idea, because it is not owned. One can only require the voluntary restriction on use through contract in consideration for detrimental revelation of the idea. So trade secrets are a viable legal concept (arising out of contract), while copyright, trademark, and patent law artificially restrict free use of unowned ideas? And under such a system based on scarcity, producers would take great efforts (such as Coke) to keep their innovations secret so as to monopolize a process and reap the rewards of applying the process to the improvement of concrete goods. Am I getting this?

quincunx May 9, 2006 at 5:43 pm

“Additionally, one cannot sell an idea, because it is not owned.”

Well you can sell an idea. All you need is a buyer. Certainly you can’t just sell an idea – you need to express it one way or another, be it on paper, in a journal, book, or podcast.

” And under such a system based on scarcity, producers would take great efforts (such as Coke) to keep their innovations secret so as to monopolize a process and reap the rewards of applying the process to the improvement of concrete goods. Am I getting this?”

You are, but you are drawing the wrong conclusion. Anyone can still reverse engineer a given product. You also can’t stop those who already have the idea (there are other cola manufacturers). What good is telling everyone about something, and then using force to prevent them from implementing it?

bourbon May 9, 2006 at 5:49 pm

I’m confused again. How can I sell or steal something that can’t be owned?

quincunx May 9, 2006 at 6:20 pm

Well you certainly owned that statement before you told everyone.

Now people are free to argue it, quote it, make a derivative comment, and so on. What can you do about it? (yes I know it was just a simple statement)

bourbon May 9, 2006 at 6:33 pm

Okay, I am focusing on Kinsella’s argument that a thing is not ownable unless it is scarce. Since an idea can be used simultaneously, it is by definition not scarce, and therefore not ownable. Are you arguing that an idea is scarce until published, and the act of publishing it renders it not scarce? What if we have simultanious ideas that we do not publish? Do they remain scarce, and therefore ownable? To sell an idea I have to publish it, and by the very act of publishing it, it is no longer ownable. Again, how can I sell something that is not ownable? Very confusing.

bourbon May 9, 2006 at 6:34 pm

Okay, I am focusing on Kinsella’s argument that a thing is not ownable unless it is scarce. Since an idea can be used simultaneously, it is by definition not scarce, and therefore not ownable. Are you arguing that an idea is scarce until published, and the act of publishing it renders it not scarce? What if we have simultanious ideas that we do not publish? Do they remain scarce, and therefore ownable? To sell an idea I have to publish it, and by the very act of publishing it, it is no longer ownable. Again, how can I sell something that is not ownable? Very confusing.

Manuel Lora May 9, 2006 at 7:15 pm

Okay, I am focusing on Kinsella’s argument that a thing is not ownable unless it is scarce. Since an idea can be used simultaneously, it is by definition not scarce, and therefore not ownable. Are you arguing that an idea is scarce until published, and the act of publishing it renders it not scarce? What if we have simultanious ideas that we do not publish? Do they remain scarce, and therefore ownable? To sell an idea I have to publish it, and by the very act of publishing it, it is no longer ownable. Again, how can I sell something that is not ownable? Very confusing.

Let’s not forget that ideas are mental constructions. If two people listen to the same piece of music or watch a movie, different things are going on inside their heads. A “movie”, a “TV show”, a “performance” are, physically, just movements of particles.

This makes it even harder to even thinkg about having the “same” idea. How can one even compare if they are the same?

Kinsella makes the point that only things that are ownable, that is, things that can be exclusively (and this implies scarce, otherwise it would not be exclusive) owned by one and not the other, can be considered property. Otherwise, there would be no conflict at all.

Thus, if I make a copy of something, with my own property, the original has not been affected and nothing has been stolen. The “movie” is not the DVD, for example. Those are just bits of plastic, which CAN be owned by someone (I can own plastic; it is scarce). The “movie” is a bunch of mental processes going on inside one’s heads.

quincunx May 9, 2006 at 11:00 pm

“Okay, I am focusing on Kinsella’s argument that a thing is not ownable unless it is scarce.”

I think what he meant is that you can’t have exclusive ownership. You can have an idea, I can have an idea, Kinsella can have an idea – which each party owns – despite the fact that they may be the same idea.

“Since an idea can be used simultaneously, it is by definition not scarce, and therefore not ownable.”

An item does not need to be scarce to be ownable. I own my physical actions and my thinking. They are not scarce, but I certainly own them.

“Are you arguing that an idea is scarce until published, and the act of publishing it renders it not scarce?”

No. An idea is not scarce, but having to express it in a physical form or as an oratory service makes it a tradable good (scarce).

quincunx May 9, 2006 at 11:15 pm

To sum up my position:

Scarcity exists.
Scarcity is a subset reason for ownership, Scarce items can be exclusively owned.

Things that fall outside scarcity, but are ownable include ideas and discoveries.

EXPRESSIONS of ownable but non-scarce things become the realm of the scarce, but the ownable non-scarce thing itself can never be scarce (by definition).

quincunx May 9, 2006 at 11:17 pm

correction, the above should read:

EXPRESSIONS of ownable but non-scarce things CAN become the realm of the scarce, but the ownable non-scarce thing itself can never be scarce (by definition).

quasibill May 10, 2006 at 7:26 am

“I own my physical actions and my thinking. They are not scarce, but I certainly own them.”

Your body is certainly scarce – either you are in control of it, or you are not. You don’t share control with someone else. It can only be in one place at a given time (corporally). So your body is scarce, which makes your actions with it scarce.

Now, your thinking, well, that gets into all kinds of philosophical questions that I find akin to arguing the number of angels on the head of a pin. But I’m comfortable with saying that your brain is the source of your thoughts, so your thoughts are scarce in that manner. Which is why patent law, and to a certain (lesser) extent current copyright laws are among the most fundamental violations of your property rights (on a level with slavery!). Essentially, patent rights (and to a lesser extent current copyright) steal your right to the results of your labor when you think a new idea and set about implementing it with your own labor.

Stephan Kinsella May 10, 2006 at 10:02 am

In response to several comments here, let me emphasize something. In my view, it is misleading and incorrect to say that ideas can ever be “owned”. If you say that I own a private idea inside my head but that I lose ownership when I publicize it, I think this is incorrect. I think ideas are not ownable things at all, ever. Ideas are not scarce resources (I believe the economist lingo would be “rivalrous” goods).

If you maintain that I do own an idea so long as it is private to me, then you could also say that i “own” my memories, and even some bare facts that are known only to me. For example if I have discovered the largest prime number then I “own” it so long as I don’t tell others. This makes no sense.

Also, I think it is misleading to say that you “sell” ideas. What you in fact do is make an agreement with someone whereby they agree to transfer title to certain property (like money) to you, IF you do such-and-such (like convey information to them). It is simply a conditional transfer of title to property. Using conditional title transfers, you can in effect “sell” services or ideas, but this is just misleading metaphorical lingo. I discuss a lot of this in my articles on contract theory, all available here.

Likewise, I also think a problem arises with the notion that we own things that we create; and with the Lockean idea that we own things we “mix our labor with” because we own our labor and “therefore” we own things we mix our labor with. Again, confusion and misleading metaphors. Let me be clear. As I have pointed out in my “Against Intellectual Property” article, “creation” is neither necessary nor sufficient for ownership in a given scarce resource.

Finally, I think there is confusion caused by overuse of economists’ concepts in a legal/ethical discussion. An economist might regard services or labor or ideas as a “good” if they can be “sold”. I don’t know, and I don’t much care, in this context. In the current discussion, only scarce resources are property; only scarce (rivalrous) resources can be owned. Other things may be economic “goods” if money can be obtained for them or if they are valued, but that does not mean they are literally “sold” or that they can be owned. A pretty model might be able to “sell” her “looks” but does she really sell her looks? No. She obtains money by agreeing to perform certain actions. Does she “own” her looks? No. Her looks are not a scarce resource; they are an attribute of a scarce resource (her body). Likewise, one does not own one’s labor; labor is not a scarce resource; it is action performed by a human being; it is what one does. Action is not ownable.

***

So, now let me turn to some recent posts, in view of the comments above.

Bourbon:

I’m confused again. How can I sell or steal something that can’t be owned?

You can’t.

quincunx:

Well you certainly owned that statement before you told everyone.

I don’t agree. Ownership means right to control a scarce resource. Statements are not scarce resources.

bourbon:

Okay, I am focusing on Kinsella’s argument that a thing is not ownable unless it is scarce. Since an idea can be used simultaneously, it is by definition not scarce, and therefore not ownable. Are you arguing that an idea is scarce until published, and the act of publishing it renders it not scarce? What if we have simultanious ideas that we do not publish? Do they remain scarce, and therefore ownable?

I understand your confusion; it is caused by the notion that ideas are ownable when they are private but not ownable after publication. This notion is indeed confusing, and untrue. Ideas are never ownable. Only scarce resource are. Ideas are not scarce (rivalrous) when private and then non-scarce thereafter; they are never scarce.

To sell an idea I have to publish it, and by the very act of publishing it, it is no longer ownable. Again, how can I sell something that is not ownable? Very confusing.

Again, your confusion is caused by the sloppy use of misleading descriptions and metaphors by laymen and economists who conflate economic concepts with legal ones. Ideas are never sold, technically speaking. Where an idea is “sold,” what this means is that the “buyer” simply agrees to transfer to the idea-originator title to some money, IF the idea guy performs certain actions (like handing over a disk with certain information on it).

quincunx:

An item does not need to be scarce to be ownable. I own my physical actions and my thinking. They are not scarce, but I certainly own them.

Again, as noted above, I think this is an imprecise and confused way of looking at it. You do not own your actions and your thinking. It makes no sense to even say this. To own is to have the right to control a scarce resource. Now you certainly have the right to control your body–which is to say, your own yourself–and this implies, practically, the ability or power to manipulate it in certain ways and to profit from it, and to decide whether or not to speak about or reveal certain information or knowledge you have. It also gives you the power, say, to decide whether to drink tea or milk; or the power to (decide to) mow the lawn. But it would be nonsense to say that you therefore “own” mowing the lawn; that you “own” choosing-to-drink-tea-or-milk, that you “own” information you possess. You own your body. What you do with it is up to you.

To sum up my position:

Scarcity exists.
Scarcity is a subset reason for ownership, Scarce items can be exclusively owned.

Things that fall outside scarcity, but are ownable include ideas and discoveries.

EXPRESSIONS of ownable but non-scarce things CAN become the realm of the scarce, but the ownable non-scarce thing itself can never be scarce (by definition).

I think this is confused and flawed.

CHECKING ACCOUNT NUMBER November 10, 2011 at 12:36 am

I don’t disagree with this blog post.

Comments on this entry are closed.

Previous post:

Next post: