In If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?, Techdirt writer Mike Masnick discusses various proposd replacements for the misleading term “intellectual property.” Contenders include “intellectual monopoly,” “intellectual privilege,” “imaginary property,” and “None of the Above.” There are problems with each of these. Masnick concludes: “In general, because of common usage, I don’t think it’s bad to use the phrase “intellectual property” just so that people know what you’re talking about — but we should be careful to not use it in a way that reinforces the concept that it’s property just like other kinds of property.”
I tend to agree. What IP law does it give legal (positive) rights to people to try to protect or stimulate innovation or creation. It gives them rights in innovations, creations, recipes, or patterns. If one keeps in mind the distinction between natural and positive rights, then it’s easy to see that laws do create legal rights, and of course all rights are, in the end, types of property rights. So IP laws do create (positive, or legal) (property) rights. And they do have to do with products of the mind, or intellect. So “intellectual property” rights seems fine to me, if one realizes that there is a difference between positive right (positive law) and natural rights (natural law).
Still, some ideas came to me (and I own them, heh heh!). It would be nice to take the word “property” out, and just refer to the rights conveyed. Copyright gives authors of original works certain (legal) rights to their “works” or creations. Books, songs, paintings are regarded as “original works of authorship”. There is an element of “creativity” to these things. Patents give certain (legal) rights to inventors of practical inventions–methods or processes for doing things (recipes) or arrangements of matter (designs). What do inventions and “works of authorship” have in common? One is practical, aimed at some gizmo or method that produces a practical result (a machine or process). Another is aimed at “creative” things–paintings, novels, songs. J. Neil Schulman, in his neo-Randian/Galambosian [I don't know if he would accept this label] IP theory groups them all under the term “logorights,” where the “logo” refers to a “pattern”. I think this is a pretty good description: a recipe is a type of pattern; as is the design for a practical machine or device. Likewise, original works like paintings, music, etc., are obviously representable digitally, as patterns. Copyright and patent law clearly grant rights … to whom? To creators–inventors and authors–of “logos”–patterns, such as machine designs, process steps, or the patterns that represent the song, painting, etc.
So as much as I disagree with Schulman’s justification for “logorights,” the term is a pretty good one–except that it is so arcane. A variation on it using more standard terms might be better: pattern rights, or perhaps innovation rights. Or, to make the label a bit less “neutral,” replace “rights” with “monopolies” or “privileges,” since that is what is being granted by the state. So we have “pattern monopolies” or “pattern privileges,” “innovation rights” or “innovation privileges.” I think I like “pattern monopolies” the best.
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Punishing criminals only requires the state if you’re a law enforcement socialist.
Jean Paul-
You say “can’t” – but being king of the kingdom, there is no such thing as “can’t”.
Copying and selling are two actions which are included under the umbrella of “in my kingdom I can do anything.”
You left out the “sell someone else’s intellectual property as your own”, which is the important part. That reaches into the creator’s “kingdom”.
When I am not party to the agreement that prohibits ‘exact copies of the original’, it is enslavement (or if you prefer, lets just call it aggression) for the government to compel me to adhere to the agreement.
You don’t have an agreement with each individual landowner in your town not to camp out in their yards, but it’s still trespassing when you do, isn’t it? The same principle applies to intellectual property. What you’re claiming is a right to sell someone else’s work as your own, which is an infringement of their rights. Which in light of the fact that you are free to create your own works provided they aren’t identical seems a little unfair, doesn’t it?
Inquisitor-
Punishing criminals only requires the state if you’re a law enforcement socialist.
Not at all, that’s the letter of the law. And one doesn’t have to be a socialist, collectivist, communist, etc. to feel that way. Otherwise you might have people punishing “criminals” who weren’t criminals just because they wanted to use false accusations as an excuse to steal from, abuse, and harass people.
That’s why the founding fathers set up a legal system which requires a rigorous fact-finding process: notice, counsel, speedy trial, public trial, confrontation of witnesses, etc. And also mechanisms which forces the government to prove its accusations, like habeas corpus. Without it you would have the abuses and atrocities that one sees in totalitarian dictatorships.
Kinsella: “Copyright is not a verb–u can’t “copyright” something. An authored work automatically receives copyright protection. It has nothing to do with putting a copyright notice on it or registering it with the Copyright Office. So this reply of mine is subject to copyright too.”
I apologize for any offense taken. Thanks for the free legal advice.
One more question: Is it legal for authors to annotate their work in such a way that their work would become part of the public domain? In other words, can an author legally disavow government copyright protection of his work?
Pro_IP_Libertarian, rationalize it however you please, I don’t care. Coercively taxing to provide law and order and outlawing competition IS socialism, by definition. If that makes you cringe (and it should), too bad. Now if you’re for some sort of Randian voluntarily-financed ‘state’ that’s another matter entirely, but I doubt it…
P.I.L. says: “You left out the “sell someone else’s intellectual property as your own”, which is the important part. That reaches into the creator’s “kingdom”.”
The action “sell someone else’s intellectual property as your own” does not reach into anyone else’s ‘kingdom’ as we are calling it, except mine and the purchaser’s.
I start with my body and acquire some medium. This is my kingdom – my body plus the medium. I perform the action of rearranging the medium into some altered form, and of course this is my right as king of the kingdom, because there is no action prohibited to me in my kingdom.
I then approach another person, and we exchange meaningful words – our ears and voices being strictly contained in our kingdoms, there can be no prohibition on the content or the act of conversation.
The meaningful words invite him to give me a piece of his kingdom, for which I will give him a piece of mine – an arrangement which we both find agreeable. As no other kingdoms are involved – only mine and his – this agreement is not subject to prohibition.
We perform the exchange. The piece of his kingdom that he gives me is a couple of dollars. The piece of my kingdom I give him is the rearranged medium. This exchange involves no third kingdom, so there can be no prohibition on this action.
What did I rearrange the medium into? It doesn’t matter. That’s the whole point – that`s the core debunking of IP. For IP to exist, it has to matter. But it doesn’t, because none of the steps along the way involved a third kingdom; thus there can be no prohibition on any of the steps; thus there can be no prohibition on the entire exercise as a whole.
Jean Paul states:
“Aha – we are getting somewhere. In my kingdom I am king, and In my neighbor’s kingdom he is king. What happens along our border is a matter for who to decide? Well, it’s between me and him and no one else.”
According to this theory if I happen to visit your kingdom and leave my jacket, you have the right to sell that jacket to your neighbor. Since you are king of your kingdom and the neighbor is king of his kingdom. You cannot deny that you have sold something that does not belong to you. The same premise applies to IP. Again I state you have the right to make it, but as soon as you distribute it; you have sold something that you do not own. Thus, you have just committed theft.
As for not being privy to the contract, again the sub-contractor is not privy to the contract between the original owner and the original leasee, but that sub-contractor must abide to any terms in the original contract. The only difference, with IP where you have millions of products, it is impossible to determine who breached the original contract. Even if you did find out who breached, what happens when that person has no money. Any laws trying to hold an indigent defendant liable for a million dollar contract breach is moot. Thus the need for IP law. This way you are able to hold the new producer of the product liable. This person is usually easily identifiable and is in the position to gain the most, thus in turn should be also in the position to lose.
“According to this theory if I happen to visit your kingdom and leave my jacket, you have the right to sell that jacket to your neighbor.”
I don’t think anything I said implies this. The jacket remains a bubble of your ‘kingdom’, just as you remain yours when you enter my home. I can justly evict it (toss it on the sidewalk, say)… but I can’t claim to own it, or act as owner (sell it, say). The jacket physically defines the boundary between you and me, and as a de-facto part of you, it enjoys the freedoms you were born with, but also the obligations – thus its influence ends where my inborn boundary begins.
My medium, which I wholly own, also defines a boundary between you and me – and that boundary is not voided by my manipulating the medium. As a de-facto part of me, it enjoys the same freedoms I was born with – it is justly subject to my will and no other, unless I consent.
If you want to say an idea sets up a boundary, then sure, I will allow this – but that boundary does not suddenly cross-cut and penetrate through mine. Mine remain intact, and my freedoms within those boundaries remain intact. That is, your idea holds no influence inside my boundaries.
The fact that your idea defines a boundary does not mean I cannot duplicate that idea inside my borders; my right to do so is protected by those borders, which are inviolable. Neither do the boundaries of your idea intervene or constrain my interactions with other people. The boundaries of your idea constrain my interactions with you and you alone.
The way to see this is that since all ideas are embodied in physical media, the boundaries of your idea are identical to the boundaries of your medium where it is embodied, nothing beyond that.
Umm, how does IP solve the problem of the indingent person? Suppose the person actually manages to copy the item in question – they STILL won’t be able (if I go by the hypothetical) to compensate the harmed individual. All it does is prohibit the activity; but that doesn’t mean it solves the problem of compensation…
I think the argument is, there is nothing to compensate if the copying is prevented, so society attempt to prevent it by putting strict penalties on it. It does not guarantee compensation for harm, it just attempts to eliminate the harm.
Typical punishment-oriented socialist attitude. To a socialist, everything is a firing range.
Why would opponents of IP ever want to change that word? It rather serves their purpose since original artwork or technical inventions protections are NOT based on their essence as “intellectual productionâ€. The words IP suggest arbitrary rule.
The fact that both privileges are always mentioned together under such title is very unfortunate for finding legitimacy anyways.
However, for the free-market apologist defending the natural law of copyright (not patent), another term would be better than logorights or pattern rights: identity rights.
For what philosophically links but also differs between patent and copyright, is the level of protection of an identity. Copyright assumes some property right derived from a unique human identity. Patent even extends them (to a mock identity).
Now, does an IP opponent like Dr. Kinsella acknowledge any link between the concept of free will and some “protection of individual identity†(well he already mentioned he condemns identity fraud … but why? It isn’t material really, is it? Is it intellectual perhaps?)
A law teacher suggested this simple example to me to make the identity issue clearer:
If an unknown uncle dies without having written his last will, and without even knowing his only distant relative in another country, how come the law says that guy should inherit his property?
How can such old law be justified in the mind of an IP-opponent, without coming closer with the “immaterial†idea of identity? I wonder.
Oh, I think I misunderstood.
What kingmidas is saying is that since the poor person who does the harm (breaches the contract) can’t pay for his crime, IP law lets you go after the richest beneficiary you can find, even if they didn’t breach anything or do anything strictly wrong.
And this is why IP is… a GOOD thing!
Identity fraud is a subset of fraud, which is a subset of breach of contract. You cannot establish fraud without establishing a implied contract to be truthful.
Fine Jean-Paul, contract law seems very important to you here… but if you apply the same contract law limits as in copyright,
wouldn’t that mean that someone selling without knowing he’s selling plagiarized works is not bound by any legal obligation to cease?
Never mind.
And what about the example below? Who should get that heritage and why, according to you?
JP, I understood the argument, I just find it illogical. A contractual scheme could also prohibit the copying of a good, making anyone who violates it liable for punishment of whatever sort the contract stipulates. My point is that if this person, in spite of IP laws, still copies, their economic situation again is a problem for the person harmed; there is absolutely no change from a contract-based scheme. So it’s a non-issue. But I agree with you that this is symptomatic of a socialist mindset.
The heritage thing: I am not certain I understand the question but here goes – apologies if this misses the point.
I don’t see really why inheritance should follow bloodlines. It’s up to the dead uncle to forge relationships over his lifetime that he values; it is arbitrary of society to elevate a particular relationship like ‘nephew’ to significance, and impose that valuation on the inheritance outcome. Perhaps the best friend of the dead uncle, or the loyal bed nurse, or some other person, would be a more suitable recipient.
Without the will, it is impossible to say who should get it, and maybe then it becomes a case of abandonment, in which anyone may stake a claim versus any other claimaints.
The heritage thing: I am not certain I understand the question but here goes – apologies if this misses the point.
I don’t see really why inheritance should follow bloodlines. It’s up to the dead uncle to forge relationships over his lifetime that he values; it is arbitrary of society to elevate a particular relationship like ‘nephew’ to significance, and impose that valuation on the inheritance outcome. Perhaps the best friend of the dead uncle, or the loyal bed nurse, or some other person, would be a more suitable recipient.
Without the will, it is impossible to say who should get it, and maybe then it becomes a case of abandonment, in which anyone may stake a claim versus any other claimaints.
JP: That makes little sense. Who’s to judge? The State monopoly??? On what grounds?
I believe the actual law is not as “arbitrary” as you imply by forcing yourself to find just another “arbitrary” solution.
What are the essential ways, according to the respect of human free will, to acquire property titles? What fits?
If the guy dies without a will, his remains (including his estate) become unowned, and subject to homesteading anew. Of course there may be stainding claims on that estate – creditors, for example, or a verbal promise made to a friend that “it’s all yours when I go”, or (although this was not the scenario you posed) clear dependents (who may not be blood kin). Although not formally a ‘will’, these arrangements voluntarily entered into by the uncle would constitute de-facto his will, and should be respected.
Who is to judge? Certainly not an authoritarian state. Perhaps an arbiter agreed to by the claimants? If two people alone in the universe have a dispute, who do they go to? Ultimately the judge and recourse in all cases is pure reason, and we can hope that civilized actors would not go to war over this, but talk it out and come to an agreement (in the context of a real society with multiple claimants, the professional assistance of an arbiter would be of great value in settling any dispute).
Beyond all that, if the uncle doesn’t know or care about his long lost nephew, I don’t see any legitimacy to giving the nephew any part of the estate.
Inquisitor-
Pro_IP_Libertarian, rationalize it however you please, I don’t care. Coercively taxing to provide law and order and outlawing competition IS socialism, by definition. If that makes you cringe (and it should), too bad. Now if you’re for some sort of Randian voluntarily-financed ‘state’ that’s another matter entirely, but I doubt it…
It’s not rationalizing and you should care, if you’re going to call someone a “criminal” and try to steal from them or punish them you had better have the guts to face them, present your evidence, and actually prove your accusations beyond a reasonable doubt. Otherwise I would call you a criminal yourself, and also a coward. (It’s interesting your handle references people that specialized in assuming guilt, torturing “confessions” and “conversions” out of people, etc.)
As far as alternate private justice schemes go, fine. But you had better make damn sure that they are just as rigorous as the current state-funded schemes, otherwise it will just degenerate into swindlers, thieves, and goons. And by the way that has been a problem with justice schemes throughout history – people profiteering by lying and making false claims.
Jean Paul-
The action “sell someone else’s intellectual property as your own” does not reach into anyone else’s ‘kingdom’ as we are calling it, except mine and the purchaser’s.
No, you’re taking someone else’s work and profiting from it. If you wanted to stay within the boundaries of your kingdom you would create or buy your own. What you’re arguing is like claiming that leading someone else’s cow off their land and into your barn, milking it, and selling the milk to a third party isn’t stealing milk when it clearly is theft.
I start with my body and acquire some medium. This is my kingdom – my body plus the medium. I perform the action of rearranging the medium into some altered form, and of course this is my right as king of the kingdom, because there is no action prohibited to me in my kingdom.
This is the equivalent of claiming that because you milked the neighbor’s cow in your barn that the milk is yours, which is incorrect.
We perform the exchange. The piece of his kingdom that he gives me is a couple of dollars. The piece of my kingdom I give him is the rearranged medium. This exchange involves no third kingdom, so there can be no prohibition on this action.
Sure it does, under the cow example you are selling the neighbor’s milk. Selling your own milk is fine, selling your neighbor’s milk is theft.
What did I rearrange the medium into? It doesn’t matter. That’s the whole point – that`s the core debunking of IP. For IP to exist, it has to matter. But it doesn’t, because none of the steps along the way involved a third kingdom; thus there can be no prohibition on any of the steps; thus there can be no prohibition on the entire exercise as a whole.
It certainly does matter. It involves a third kingdom because you are selling a third party’s property. You took the information from a third party, copied it, and sold it as your own. If you were selling intellectual property that you created it would not involve a third party, but that’s not the hypothetical.
Jean Paul-
If you want to say an idea sets up a boundary, then sure, I will allow this – but that boundary does not suddenly cross-cut and penetrate through mine. Mine remain intact, and my freedoms within those boundaries remain intact. That is, your idea holds no influence inside my boundaries.
You take the idea into your boundary when you obtain the idea and then copy and sell it. Otherwise you would simply create and sell your own ideas.
The fact that your idea defines a boundary does not mean I cannot duplicate that idea inside my borders; my right to do so is protected by those borders, which are inviolable. Neither do the boundaries of your idea intervene or constrain my interactions with other people. The boundaries of your idea constrain my interactions with you and you alone.
Again, you’re arguing that if you led your neighbor’s cow onto your land that the milk would suddenly be yours. The principle is the same, why do you think you should be able to sell other people’s property as yours? Why can’t you create your own?
The way to see this is that since all ideas are embodied in physical media, the boundaries of your idea are identical to the boundaries of your medium where it is embodied, nothing beyond that.
When you attach someone’s idea to your media to sell you are selling someone else’s property.
Jean Paul-
I don’t see really why inheritance should follow bloodlines. It’s up to the dead uncle to forge relationships over his lifetime that he values; it is arbitrary of society to elevate a particular relationship like ‘nephew’ to significance, and impose that valuation on the inheritance outcome. Perhaps the best friend of the dead uncle, or the loyal bed nurse, or some other person, would be a more suitable recipient.
The uncle could easily address these things by actually making a will.
Without the will, it is impossible to say who should get it, and maybe then it becomes a case of abandonment, in which anyone may stake a claim versus any other claimaints.
In most jurisdictions rules have it going to relatives or the state in various combinations. If you disagree with these rules lobby to change the law and make sure you have a will.
Jean Paul-
If the guy dies without a will, his remains (including his estate) become unowned, and subject to homesteading anew.
No it doesn’t. Each jurisdiction has different rules about what happens in these cases. If you disagree with them, make sure you have a will and lobby to change them.
Who is to judge? Certainly not an authoritarian state. Perhaps an arbiter agreed to by the claimants? If two people alone in the universe have a dispute, who do they go to? Ultimately the judge and recourse in all cases is pure reason, and we can hope that civilized actors would not go to war over this, but talk it out and come to an agreement (in the context of a real society with multiple claimants, the professional assistance of an arbiter would be of great value in settling any dispute).
Something tells me you wouldn’t have a problem going to the courts if a squatter was on your property. And there’s nothing wrong with that – libertarians don’t have a problem with laws per se, some would just prefer private arbitration schemes provided they were unbiased, competent, honest, objective, etc. But these arbitration schemes would have rules as well, and these would likely be very similar to what is on the books now.
PIPL, If you want to equate ideas to a cows, then to be fair you need to be talking about the kind of cow that can be replicated purely at my expense, with special machinery wholly owned by me, in such a way that you never lose posession of your fully functioning cow aganst your will – and then still call this theft.
In this case, is the theft measured by my gaining a cow – or by your losing a cow? It must be measured by my gain, because on your end there is no loss. This is the bizzare definition of theft you get with IP.
Strangely, you would never call it theft if my apple tree brings me a crop of apples identical to the apples you posess. And you would certainly call it theft if I took your cow and incinerated it, leaving us both with nothing. IP demands such inconsistency.
“But”, you protest, “I lose the *potential* profits that I *maybe* might have had, if idea gainers didn’t freely gain.”
Well, your apple profits would also be higher if I were prevented from freely gaining apples from my tree – perhaps both apples AND ideas should be made artificially scarce, by only letting the first posessor of a tree harvest the apples from it?
Lastly, it is unfortunate that you invoke the status of ideas as property in your defense of whether or not ideas can justly be considered property. Can you clarify: on what basis do you justify that ideas are property – other than simply stating it to be so?
“It’s not rationalizing and you should care, if you’re going to call someone a “criminal” and try to steal from them or punish them you had better have the guts to face them, present your evidence, and actually prove your accusations beyond a reasonable doubt. Otherwise I would call you a criminal yourself, and also a coward. (It’s interesting your handle references people that specialized in assuming guilt, torturing “confessions” and “conversions” out of people, etc.)
As far as alternate private justice schemes go, fine. But you had better make damn sure that they are just as rigorous as the current state-funded schemes, otherwise it will just degenerate into swindlers, thieves, and goons. And by the way that has been a problem with justice schemes throughout history – people profiteering by lying and making false claims.”
Oh spare me the melodrama. It is incumbent on you, and all minarchists, qua advocates of violent, aggressive seizure of property, to explain why your position does not lead to rights-violations, and why we should put up with it. In fact, you ought to explain why the calculation argument and typical problems with monopolies do not apply to socialized provision of law and order – and spare us the banal “but property can’t exist without government”, Marxist tripe which has been refuted to death.
BTW, you’re right on the last bit. Governments excel in that. It’s called propaganda.
BTW, there are works that offer convincing accounts of private law provision, from the Tannehill’s The Market for Liberty, Stringham’s Anarchy and the Law and Hoppe’s The Myth of National Defense to Rothbard’s For a New Liberty and Friedman’s The Machinery of Freedom, as well as Hoppe’s Democracy – the God that Failed. Not to mention Benson’s and Leoni’s works. So it’s not like there is no positive argument for it.
Kind of like pattern monopoly. It reminds us that monopoly is a feature of the state.
Pro_IP,
You can do whatever you want with the work [by someone else] – wallpaper your bathroom with it – you just can’t copy it and sell it as your own.
You misunderstand the implications of IP Law: You cannot sell the work you bought to someone else for a profit, EVEN if you did not copy it. You cannot even tell your spouse the content of the work, word by word, because that IS unauthorized reproduction. IP law gives undue possession of people’s property to the person that created the first work or prototype.
Plus you are free to create your own work as long as it is not exactly similar.
The “exactly” generates a problem, since it has been the historical fact that the “exactness” of a work measured against another is in the eye of the beholding judge in any IP case, whether the judge has merit for judging two works or not.
How is not being able to sell someone else’s work a violation of your rights?
That someone else already relinquished his or her rights on the property during the exchange of titles – money for the book or CD. This is how property is exchanged. It is illogical to assume that a person exchanges titles only not to possess what he or she just bought – that is the MAIN contradiction behind IP law.
Francisco, great point – and if we apply it to the cow example, we note that when we first purchase the cow / book, it cannot then possibly be ‘theft’ at that point to milk the cow / duplicate the book, nor to sell the milk / copies.
IP is anti-common-sense – it has just been so ingrained into people’s heads as a foundational component of their understanding of the world, that it’s hard to let go of.
State socialization has left us all brain damaged in ways we struggle to realize… it seems for a lot of libertarians, and even some supposed anarchists, it takes the form of supporting IP.
Think about your first run-in with IP… it’s probably much earlier than you might think… probably something like, children horsing around and one kid gets mad at the other, “hey, that’s my move, don’t steal my move!!!” or maybe even one kid destroying the other’s preschool fingerpainting because “they copied!”
Think about what these kids are saying. “Constrain your actions! I forbid you from doing that! I’ll use violence to get my way!”
This rude behavior, of menacing orders and outright terrorism – the expedient use of force to control the actions of others – this is the genesis of the IP mentality.
From vile origins are born unsurprising offspring.
Jean Paul-
In this case, is the theft measured by my gaining a cow – or by your losing a cow? It must be measured by my gain, because on your end there is no loss. This is the bizzare definition of theft you get with IP.
Strangely, you would never call it theft if my apple tree brings me a crop of apples identical to the apples you posess. And you would certainly call it theft if I took your cow and incinerated it, leaving us both with nothing. IP demands such inconsistency.
With IP there can certainly be losses. If you’re copying and selling books that someone else wrote you are robbing them of those potential book sales.
“But”, you protest, “I lose the *potential* profits that I *maybe* might have had, if idea gainers didn’t freely gain.”
No, the profits weren’t “potential”. If you made the sale clearly there was demand and market clearance at the price charged. It’s just that you sold the product, not the person who created the value, and who should be rewarded for creating that value.
Well, your apple profits would also be higher if I were prevented from freely gaining apples from my tree – perhaps both apples AND ideas should be made artificially scarce, by only letting the first posessor of a tree harvest the apples from it?
The creator of intellectual property didn’t just “possess” it, they created it. They created the value, so they should be rewarded. If you created the value then you should be rewarded. But if you didn’t create the value you shouldn’t be rewarded.
Lastly, it is unfortunate that you invoke the status of ideas as property in your defense of whether or not ideas can justly be considered property. Can you clarify: on what basis do you justify that ideas are property – other than simply stating it to be so?
Probably the most apparent one is rooted in labor. Note this isn’t labor for it’s own sake a la the Labor Theory of Value, but more like labor homesteading unowned land. Thus the creator of IP creates property by laboring and creating property which is subjectively valuable in the marketplace.
Inquisitor-
Oh spare me the melodrama. It is incumbent on you, and all minarchists, qua advocates of violent, aggressive seizure of property, to explain why your position does not lead to rights-violations, and why we should put up with it.
It certainly does lead to rights violations in some cases, I wasn’t arguing that it didn’t. But the founding fathers set up some pretty stringent fact-finding mechanisms to weed out the fraud, bullshit, and mistakes, any private justice system better have at least those kinds of controls.
In fact, you ought to explain why the calculation argument and typical problems with monopolies do not apply to socialized provision of law and order – and spare us the banal “but property can’t exist without government”, Marxist tripe which has been refuted to death.
Who said they didn’t? If you think the state does a horrible job with law and order why would you try to lower the fact-finding standards that would tend to make private providers even worse?
BTW, you’re right on the last bit. Governments excel in that. It’s called propaganda.
It wasn’t propaganda. Private justice systems, especially ones that incentivized the reward per criminal, often had to be discontinued due to fraud and abuse.
There is a recent modern example of this too. Look at what happened in Afghanistan when the military offered bounties to the warlords for bringing in Al Qaeda members, Taliban members, and other terrorists. They often brought in innocent people, brought in or made false claims about their enemies or competitors, falsely reported people to settle scores, etc. just so they could collect the reward money per person delivered. So not only were the “police” collecting money for work they didn’t actually do, they were also committing and causing the military to commit serious crimes, torts, and rights violations against innocent people, and also causing opportunity costs because resources and time were wasted imprisoning and interrogating innocent people. This is very similar to what happened throughout history to similar systems.
BTW, there are works that offer convincing accounts of private law provision,…
I’m aware of that and one day I might get around to reading those. But there are certainly problems with private justice systems that can be noted and discussed without having to perform a full review of the literature.
Francisco-
You misunderstand the implications of IP Law: You cannot sell the work you bought to someone else for a profit, EVEN if you did not copy it. You cannot even tell your spouse the content of the work, word by word, because that IS unauthorized reproduction. IP law gives undue possession of people’s property to the person that created the first work or prototype.
Perhaps theoretically, but generally IP holders can’t effectively sue and collect unless there are readily provable economic damages. And I freely acknowledge that IP laws may be too strict or downright crazy in some areas, but that doesn’t mean they should be done away with completely.
The “exactly” generates a problem, since it has been the historical fact that the “exactness” of a work measured against another is in the eye of the beholding judge in any IP case, whether the judge has merit for judging two works or not.
I also acknowledge that this is a problem as well, there are probably even corrupt judges as well. IP law certainly has its warts, and I’m not arguing against remedying them. But I do think that doing away with them and basically socializing intellectual property is not the answer.
That someone else already relinquished his or her rights on the property during the exchange of titles – money for the book or CD. This is how property is exchanged. It is illogical to assume that a person exchanges titles only not to possess what he or she just bought – that is the MAIN contradiction behind IP law.
I don’t agree with this characterization. The creator has only granted the rights for certain uses. When you buy a DVD player you are only purchasing the rights to use the technology on a small scale, you aren’t buying the rights to manufacture and sell the technology itself. This is clearly implied by the price and the documentation that comes with it. The DVD player costs $100 or whatever, while the technology behind it and the rights to manufacture and resell it would sell for orders of magnitude more.
Jean Paul-
…if we apply it to the cow example, we note that when we first purchase the cow / book, it cannot then possibly be ‘theft’ at that point to milk the cow / duplicate the book, nor to sell the milk / copies.
No, it is theft to copy and re-sell the book. When you purchase the book you are only buying the property for certain uses – reading, etc. You aren’t buying the rights to copy and sell it – this is expressed by the price and documentation. When you buy a cow it is understood that you are buying livestock and it’s understood that milking is one of the uses. (Of course there are limits to this as well – people can’t be bought because that is the crime and tort called slavery.)
State socialization has left us all brain damaged in ways we struggle to realize… it seems for a lot of libertarians, and even some supposed anarchists, it takes the form of supporting IP.
No, doing away with the IP laws would be socialization. You would be forcing creators to give away their property to the public for free, that is the epitome of socialization.
Jean Paul-
Think about your first run-in with IP… it’s probably much earlier than you might think… probably something like, children horsing around and one kid gets mad at the other, “hey, that’s my move, don’t steal my move!!!” or maybe even one kid destroying the other’s preschool fingerpainting because “they copied!”
Not very convincing, kids do a lot of goofy things. But taking other people’s property or demanding that they give away that property to the public for free is certainly serious business. (Which also happens to be childish as well.) Do you work for free? Should we be able to make you work for “the common good”? (Which is slavery.)
Think about what these kids are saying. “Constrain your actions! I forbid you from doing that! I’ll use violence to get my way!”
And listen to what you are saying:
“Give me your property. If you won’t give it to me I should be able to take it.”
“I bought your book for $5, now I should have the right to copy it and make millions while I take millions from your sales.”
“You shouldn’t profit from your work, no matter how valuable it is or how much value it creates. The public should be allowed to take it from you at will.”
From vile origins are born unsurprising offspring.
I don’t know about this, it sounds sort of racist or classist, which is distinctly unlibertarian.
“It certainly does lead to rights violations in some cases, I wasn’t arguing that it didn’t. But the founding fathers set up some pretty stringent fact-finding mechanisms to weed out the fraud, bullshit, and mistakes, any private justice system better have at least those kinds of controls.”
In paper, they did. Which of those mechanisms still operates as it is supposed to?
“Who said they didn’t? If you think the state does a horrible job with law and order why would you try to lower the fact-finding standards that would tend to make private providers even worse?”
How does that even follow?
“It wasn’t propaganda. Private justice systems, especially ones that incentivized the reward per criminal, often had to be discontinued due to fraud and abuse.
There is a recent modern example of this too. Look at what happened in Afghanistan when the military offered bounties to the warlords for bringing in Al Qaeda members, Taliban members, and other terrorists. They often brought in innocent people, brought in or made false claims about their enemies or competitors, falsely reported people to settle scores, etc. just so they could collect the reward money per person delivered. So not only were the “police” collecting money for work they didn’t actually do, they were also committing and causing the military to commit serious crimes, torts, and rights violations against innocent people, and also causing opportunity costs because resources and time were wasted imprisoning and interrogating innocent people. This is very similar to what happened throughout history to similar systems.”
And this is analogous to the systems proposed by market anarchists, how? BTW. you missed my point – I meant that governments lie, cheat and commit fraud at every possible turn. So I have no particular sympathy for a professional class of thieves, or the socialists who support it.
If IP laws are unjust, or IP doesnt exist, and people can copy whatever they want then I claim counterfeiting money is also ok.
Money is valued because of whatt it represents. If I a central bank counterfeits money and increases the supply of money according to whim, they are not aggressing against the physical property of every other money holder.
The counterfeiter just copies, the existing money and increases its total. Technology is wounderful. Just like people can copy songs, software and movies, they can also very easily copy money and increase its supply.
But the purchasing power of the previous money holders of money decreases you say?
Maybe, but affecting the value of something is not aggression against property. It is just an externality.
I may keep my house looking like a dump and it may lower my neighbours houses value, but I am not aggressing against the physical object so that negative externality is not a crime.
And if you try to stop the counterfeiter it is you who are aggressor since you try to control his kingdom, being his body.
If IP laws are unjust, or IP doesnt exist, and people can copy whatever they want then I claim counterfeiting money is also ok.
Also wrong.
Counterfeiting is unjust not because the bank that issues a note has IP rights in the language printed on the face, or in the complex security-diagram contained in its illustrations.
Counterfeiting is unjust because it is a fraud — it is a document that purports to be issued by a bank. The bank has given good value to issue that note, and in doing so obligates itself to honor it when presented with legitimate instances of those notes. People in the economy who accept these notes in payment do so with the belief and expectation that the bank will honor them when presented or deposited.
Therefore, counterfeiting is unjust for the same reason that trademark infringement is unjust — it perpetrates a fraud on the person who receives the object, regardless of whether that object is a claim check, currency note, or television marked as a Sony that was actually made in some guy’s basement.
Fraud is not a component of copyright infringement. To prove copyright infringement, the holder of a copyright does not have to prove anyone was or could be defrauded, only that the copying is unauthorized. Even if the copyist informs all of his buyers that the copy is 100% bootleg, and no party to that sale is remotely deceived as to the fact that the item is an unauthorized copy, copyright law still purports to make such a transaction illegal.
It is not fraud.
I just copy the existing money and increase the amount without damaging the integrity of the original.
Just like you do with songs, software and money.
I dont even have to use printing press in this new day and age. A couple of key strokes is enough.
You know, money (at least fiat money) is not naturally scarce at all, it is all digits.
If you are going to argue against artificially limiting the supply of IP and create artificial scarcity, then I suggest you do the same with money and hail the central banks.
Maybe we will have hyper inflation, maybe the economy will break down but we shouldn’t worry about utilitarian arguments should we?
It is not fraud.
Of course it is.
A bank note is a document evidencing a liability of the issuing bank, payable on demand to the bearer.
Therefore, even if the forgery is never discovered by the bank on which it is falsely drawn, by copying (and passing) these notes, you are defrauding the bank by falsely asserting that it has a liability that it didn’t actually assume.
Or, if the note is discovered to be a forgery, then you are defrauding the person who gave good value in exchange for the note by falsely asserting that it was issued by the bank and thus would be honored by the bank.
I don’t know how many times this has to be explained, but copyrights and trademarks are based on two entirely different sets of principles and justifications.
Since fiat money is not backed by anything, there is no liability on the issuing bank. Ehnce no fraud.
Actually there is a liability on the issuing bank so long as they continue exchanging the bills for other denominations, even if there is no other backing. If you print up a pair of $10 bills you increase the Fed’s liability in terms of $1, $5, and $20 bills.
There are other issues. For example, the design of the note is understood to identify its origin; in all likelihood the recipient doesn’t care where the note came from — so long as others will accept it — but paying someone in notes which only appear to be bank-issue could easily be considered fraud. If the notes are later determined to be counterfeit, and thus worthless in trade, the defrauded payee will suffer a real loss for which the counterfeiter would be liable.
‘Intellectual property’ is a legal fiction which violates the natural rights of man.
Property is a description of a state of nature; namely the state of having exclusive control over a physical object, or a ‘good’ to use the more precise economic term.
Libertarians (should) reject the concept of ‘intellectual property’ because the nature of an idea is completely different from the nature of a physical object or an economic good. To be an ‘economic good’, the object must be scarce in nature, it must serve some human end, and it must be controlled by one or more natural persons. This applies to all the common objects you consider to be your property; your house, your car, your food, your land et cetera.
Randians are pro-IP because they think that ideas have value due to being a product of human intellectual labor and by virtue of this, the author ‘deserves’ remuneration. In doing so, they essentially rely upon Adam Smith’s (and Ricardo’s and Marx’s) ‘labor theory of value’. Am I the first to point-out the irony of Ayn Rand incorporating communist theory?
The labor theory of value was shown to be false by Ludwig von Mises and other Austrian economists. Value is a property ascribed to an economic good by the consumer/purchaser; “I want that thing, and I’m willing to exchange these things for it.” For proof of this, imagine yourself starving of hunger and meeting someone trying to sell a diamond that he laboriously dug up, ground and polished. That diamond will be of little value to you at that moment because in your ordinal ranking of goals, fending off death by acquiring food is vastly more important than acquiring a pretty stone. By contrast, the diamond might be of great value to a plump duchess riding-by. Or imagine us standing in the garden of eden and you try to sell me an apple; it has no value to me because I can reach out and pick as many as I want. Thus the economic value of a good is always subjective, individual and situation-dependent. It is not defined by the effort expended to make the good, nor can it be measured by some abstract calculation of social utility.
The Randian position on ‘intellectual property’ claims that I have the right to go into a marketplace, perform an interprative dance involving jumping jacks and push-ups, then demand (using state force) money from passerby for having witnessed the spectacle. — simply because I broke a sweat. (Thanks to Walter Block for this reducto ad-absurdum).
So ideas are not property because by their nature they can be freely copied and spread without diminishment. An idea, once released into the modern world, exists in effective superabundance because the natural opportunity cost of obtaining it is as close to zero as picking an apple in Eden. We therefore must reject the term ‘intellectual property’ as incorrect and fundamentally misleading.
Now let us consider circumstances in which scarcity has been imposed upon ideas. We can distinguish between two forms: One is a consumption good; “I want many people to hear my song”. The other is a production good; “I want only select associates to be able to use my innovative process, so that we may gain a competitive advantage in producing some goods”. The former generally accords to copyright, the latter to patents or trade secrets which are the focus of our debate.
In a non-patent environment, the profit-seeking innovator keeps his cards close and only shares the innovation with associates who agree by contract to not divulge it. It should be emphasized that such an arrangement conforms to the right to contract which libertarians espouse. Libertarians also generally accept that the state has the duty to enforce such contracts.
The impetus behind the patent scheme was to encourage innovators to publish their work, so that after a period of time, the idea would be free and shareable and thus lead to greater technological advancement and overall wealth in society. Now this sounds fine from a social utilitarian point of view, but the downside is that it extends the power of coercion to non-contracting parties. Someone else might independently produce the same idea, publish or implement it, then find himself forced by the state to pay fines to a stranger half-way around the world. Thus, we must reject the utilitarian-driven argument for monopolistic patent privilege because it violates our fundamental rights to speech, property and contract.
The current copyright regime for ‘consumption media’ is also illegitimate and violates rights. Data once released to the public is not property because it is no-longer scarce or under the unique control of an individual. Any attempt to imbue it with the attributes of property in the modern age inevitably requires a control regime consisting of continual invasive spying into private communications and personal effects (storage media).
Thus we arrive at the final question; “In the absence of patent or copyright law, what form of restriction of ideas is compatible with liberty, justice and natural rights?”
The answer is simply enforcement of mutually consensual contract. An inventor has the right to make contracts with others which stipulate that they may not further sell or divulge the invention. If such a party breaks contract, the inventor has the right to seek redress according to the terms of the agreement.
Voluntary contractual restriction can also be a functional replacement for copyright (at least with music and film) since algorithmic means are available to individually mark or sign each copy of a work. The person who wishes to consume video or audio works simply enters into a contract with the producer/distributor to not redistribute the work, or pay an agreed-upon fine. If a particular watermarked copy is discovered ‘loose’ in the wild, the origin can be traced to the buyer suspected of violating the contract and legal redress can be obtained.
In such a world, no-one would have the right to claim an idea as “property” and then seek redress from any and all parties who acquire the idea either by invention or discovery. If I were to find a copy of an improved process for synthesizing aspirin lying on the street, no-one would have the right to punish me for using it. Likewise, if I were to find a copy of a book, song or movie on the Internet, no-one would have the right to appropriate my real property as punishment for viewing or sharing it.
Ideas are not property and to legally define them as such is an abomination of truth and nature. Any claim by you to my property begins and ends with the terms specified in a contract formed by mutual consent.
It looks like you got a lot of anti-IP people squirming ktibuk!
I can’t see what wrong with your counterfeiting argument – the main reason people complain about IP is because the owner isn’t deprived of the original product hence the money example makes sense. In fact the concept of ‘it devalues my money’ is the reason why people here complain about paper money. The obvious answer to that problem is to issue precious metal coins.
Pupnik wrote: “Randians are pro-IP because they think that ideas have value due to being a product of human intellectual labor and by virtue of this, the author ‘deserves’ remuneration. In doing so, they essentially rely upon Adam Smith’s (and Ricardo’s and Marx’s) ‘labor theory of value’. Am I the first to point-out the irony of Ayn Rand incorporating communist theory?”
I don’t think this is an accurate description. They believe that values are (or can be, rather) created by intellectual labor, an uncontroversial claim, but the value of the idea does not depend on or derive from the labor itself.
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