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Source link: http://archive.mises.org/10529/david-koepsell-another-austrian-influenced-ip-opponent/

David Koepsell: Another Austrian-Influenced IP Opponent

August 26, 2009 by

ontology-cyberspace-koepsell-2000An interesting (and amusing) post on Leiter Reports, How Not to Respond to a Bad Book Review, led me to the work of David Koepsell, author of The Ontology of Cyberspace: Philosophy, Law, and the Future of Intellectual Property (Open Court, 2000) and Who Owns You? The Corporate Gold Rush to Patent Your Genes. (UK: Wiley-Blackwell, 2009), and of the blog Who Owns You?, which discusses gene patents and IP law.

The Leiter Reports blog remarked on a debate between Randy Mayes and David Koepsell on human gene patents at the Institute for Ethics & Emerging Technologies site (Leiter Reports unfairly implied Koepsell had made matters worse by the way he replied to a very critical book review–I disagree with this assessment, as will be evident from my comments linked below). I ended up writing a few responses, including one posted in Are Libertarians For Intellectual Property?: Comment on David Koepsell’s “Why I Believe Gene Patenting is Wrong”; and see also Comment on Koepsell’s “A methodical response to Chris Holman’s ‘review’”.

In correspondence with him I learned Koeppsel says his theoretical background is informed by Austrians, and he has studied Menger, Mises, and Reinach and studied under Barry Smith. In his book The Ontology of Cyberspace he undermines the classifications between works of authorship and other machines, using Reinach. I’ve just ordered it.

{ 98 comments }

Silas Barta August 26, 2009 at 3:30 pm

Any of these folks attempted to resolve their opposition to IP with their support for EM spectrum rights?

Any of them even aware of the contradiction? “You can own the right to emit at 600 kHz (radio wave), but not the right to emit at 400 THz (the color red).”

Didn’t think so.

Caveman August 26, 2009 at 4:05 pm

Silas, if/when Kinsella drops his support for EM spectrum rights, what then?

Silas Barta August 26, 2009 at 4:54 pm

Caveman: Then he resigns himself to permanent crankdom. He’ll just be known as the guy who doesn’t believe in communication via radio waves. And he’ll take take whoever follows down with him.

Martin August 26, 2009 at 5:12 pm

Thanks for pointing this out, I’ll pick up a copy while in the states next month.

Toby August 26, 2009 at 5:42 pm

Could anyone of the IP-opponents please answer following question:
Assume that in order to discover medicament X you need to invest $100 million. The production of one unit costs $5, but to get the R&D costs back, one needs to charge at least $20 per unit.
Now, without any patent laws, the competition could just copy the product and offer it for a much lower price like $8 per unit. Why then should any company conduct cost-intensive R&D?
Thank you for every answer!

Caveman August 26, 2009 at 6:50 pm

Toby, click on the link to “Other posts by Stephan Kinsella” and you’ll find many responses to questions such as yours both in the posts themselves and in the comments to the posts. The IP debate is one of the more entertaining among libertarians. At least it is until it devolves into “You’re an IP socialist,” “No, you’re an IP fascist.” At that point, you can just stop reading. Have fun!

RWW August 26, 2009 at 7:55 pm

Silas: Stephan is wrong about the EM spectrum (and a lot of other things), but right about IP.

BioTube August 26, 2009 at 8:23 pm

Toby, the company would need to take more care to use technological protections of trade secrets and would need to do its best to establish itself before competition could arise.

Caveman August 26, 2009 at 8:39 pm

Stephan is wrong about the EM spectrum

RWW, I guess that makes you the “guy who doesn’t believe in communication via radio waves.” ;)

Russ August 26, 2009 at 8:47 pm

Silas Barta wrote:

“Any of them even aware of the contradiction? “You can own the right to emit at 600 kHz (radio wave), but not the right to emit at 400 THz (the color red).”"

If somebody broadcast at 400 THz, wouldn’t he blind people, or at least cause really annoying and possibly dangerous light pollution? Wouldn’t that make the case against broadcasting at 400 THz?

Russ August 26, 2009 at 8:54 pm

Toby wrote:

“Why then should any company conduct cost-intensive R&D?”

As you framed the question, obviously, they shouldn’t. However, the reason companies currently spend so much on researching synthetic drugs is because natural drugs cannot be patented. So in many cases, without IP, natural substances might be sold as functional replacements for synthetic ones. Also, it’s quite conceivable that companies could form consortiums to split the cost of research, and then try to make their profit by, oh, I dunno, making their manufacturing processes more efficient than the other companies?

Stephan Kinsella August 26, 2009 at 9:09 pm

RWW: “Silas: Stephan is wrong about the EM spectrum (and a lot of other things), but right about IP.”

RWW, if I’m wrong about the EM spectrum, what exaclty is my position on it that is wrong? If I recall, I’ve only sketched out a tentative position on this.

Nuke Gray August 26, 2009 at 9:51 pm

Toby- Your question is not hypothetical. Viagra is a product of our patent system. I asked Mr.Kinsella about this once, on a similar topic, and his answer then did not convert me to his case. Let’s see what he does here, if anything!

Silas Barta August 26, 2009 at 10:17 pm

@Stephan_Kinsella:

RWW, if I’m wrong about the EM spectrum, what exaclty is my position on it that is wrong? If I recall, I’ve only sketched out a tentative position on this.

Ding ding ding! Yes, Stephan_Kinsella, you haven’t sketched out a position on it, because you know pretty well that you’ve painted yourself into a corner, where you either have to endorse IP or reject EM spectrum rights. But hey, as long as you don’t have to actually spell out the implications of your beliefs, you can go on believing contradictory positions as long as you want! Cognitive dissonance rocks!

@Russ:

If somebody broadcast at 400 THz, wouldn’t he blind people, or at least cause really annoying and possibly dangerous light pollution? Wouldn’t that make the case against broadcasting at 400 THz?

Um, no, you’re “broadcasting at 400 THz” as soon as you wear something red.

David Koepsell August 27, 2009 at 12:04 am

I actually use EM spectra as an analogy to genes in Who Owns You?, arguing that both are unencloseable “commons by necessity.” This implies that monopolies over either are unethical, and ungrounded. One saving grace of EM spectra monopolies is that they are extremely local, in most cases. It’s an excellent point, though, and I think it’s important to be consistently opposed to governmentally supported monopolies as inefficient and unethical.

Peter August 27, 2009 at 12:42 am

OFFS; can’t Silas-the-IP-obsessed-troll be banned or something?

Um, no, you’re “broadcasting at 400 THz” as soon as you wear something red.

And nobody has a problem with someone “broadcasting” at any frequency they like, if that’s all you mean.

FTG August 27, 2009 at 12:54 am

Silas,

An EM frequency can be homesteaded by using a bigger transmitter than your rival. Your rival can then choose to use a different frequency. The EM Spectrum cannot be compared to IP because IP deals with ideas, which are non rivarlrous, non physical, unlimited elements (the EM Spectrum IS a physical phenomenon with a physical limit). I really do not see what purpose it serves to keep repeating the same argument over and over. The designation of EM rights by the government is just as arbitrary as assigning water rights, both coming from the same principle of resource allocation, yet you do not use water rights as an example to argue in favor of IP, regardless of the fact that IP is just as arbitrary as government-mandated water rights.

“Um, no, you’re “broadcasting at 400 THz” as soon as you wear something red.”

Thus the analogy falls apart as an argument in favor of IP. If I can transmit by wearing red and anybody else can wear red without rivalry, then I see no point in using EM as an example that helps justify IP.

FTG August 27, 2009 at 1:21 am

Assume that in order to discover medicament X you need to invest $100 million. The production of one unit costs $5, but to get the R&D costs back, one needs to charge at least $20 per unit.
Now, without any patent laws, the competition could just copy the product and offer it for a much lower price like $8 per unit. Why then should any company conduct cost-intensive R&D?

Why would R&D be cost intensive, in the first place? I do not see how you can justify IP by question-begging.

Even if the development of a new drug amounted to that much, the process itself is capital intensive – a competitor would have first to reverse engineer the drug, then would have to design the process, invest in the equipment and machinery for production and then offer the product in the market as an alternative. That is very costly – the original developer of the new drug has by itself several years of head start as it is, because along with the new drug it would have the design of the process already figured out, most likely already having the equipment to go into full production, with only few modifications, whereas a competitor would have to start from scratch. Then there is the problem of the public trusting the substitute. The original maker can always ramp up production and/or lower its costs to compete with the rival, again having a good head start in this as it has created already the raw material and supplier network. Really, the only reason to justify patents is to “protect” the developer of the new drug during the protracted period of testing as required by the FDA, but that would mean that, at least as drugs are concerned, the ONLY justification for the existence of patent laws is the existence of the FDA (a circular argument!)

Russ August 27, 2009 at 6:29 am

Silas Barta wrote:

“Um, no, you’re “broadcasting at 400 THz” as soon as you wear something red.”

Um, no. :-P

When you wear something red, you’re not broadcasting at all. You’re wearing a shirt that happens to *reflect* light of the color red, and absorb other colors. The “broadcasting” is done by a lightbulb, or by the Sun. Wearing a shirt that happens to reflect a given color does not give you property rights over the light frequency, any more than owning a metal barn that reflects radio waves gives you rights over the radio frequency.

BTW, I could be wrong, but right now I agree with Stephan on this one. I see no reason why ownership of radio spectrum implies IP. The two seem, on the face of it, completely unrelated. You’ll at the least have to do better that the “wearing red” argument. First, it’s easy to slap down, and second, I don’t see how it pertains to IP at all.

Russ August 27, 2009 at 6:45 am

FTG wrote:

“Even if the development of a new drug amounted to that much, the process itself is capital intensive – a competitor would have first to reverse engineer the drug, then would have to design the process…”

This is true. Even if a competitor were able to reverse engineer the drug (that is, discover exactly what molecule the drug is comprised of), he would also have to discover how to synthesize the moelecule. Knowledge of molecular make-up of a drug does not imply that one knows how to synthesize it. And even if one did know how to synthesize it, there is no guarantee that one would discover the most efficient way of doing so. And even if a competitor did discover the exact same way of synthesizing it, there is still no guarantee that he could compete, because the original manufacturer might have access to cheaper equipment, cheaper labor, cheaper chemical ingredients, etc.

Silas Barta August 27, 2009 at 7:16 am

@Russ:

When you wear something red, you’re not broadcasting at all. You’re wearing a shirt that happens to *reflect* light of the color red, and absorb other colors. The “broadcasting” is done by a lightbulb, or by the Sun.

O…kay, and when you have a radio transmitter, I guess you’re not broadcasting then either. You’re propping up a tower that *happens* to oscillate at the frequency 600 kHz. The “broadcasting” is done by its electricity source.

Distinction, yes, difference, no.

Matthew August 27, 2009 at 7:23 am

Silas,

You’re the one who can’t see the difference between IP and the EM spectrum. Why don’t you spend at least 5 minutes trying to understand the difference that other people can see there before going on and on and on?

(And on and on and on and on and on….)

Russ August 27, 2009 at 7:31 am

Come on, Silas. A radio tower generates radio waves. A red shirt does not generate light waves; it *reflects* them. This is a real difference. By your logic, doesn’t an owner of a metal barn thus have rights to the EM spectrum that his barn reflects? That seems non-sensical.

But even if I say that a red shirt does generate light waves, for the sake of argument, so what? I still don’t understand how this relates to IP. I am seriously curious; please explain.

Russ August 27, 2009 at 7:48 am

FTG wrote:

“An EM frequency can be homesteaded by using a bigger transmitter than your rival. Your rival can then choose to use a different frequency.”

I disagree. This is analogous to saying that I can homestead land, and then someone else could homestead it away from me by shoving me off of it. That’s not what “homesteading” means.

Silas Barta August 27, 2009 at 8:49 am

@Russ:

Come on, Silas. A radio tower generates radio waves. A red shirt does not generate light waves; it *reflects* them. This is a real difference. By your logic, doesn’t an owner of a metal barn thus have rights to the EM spectrum that his barn reflects? That seems non-sensical.

Yeah, it sure does seem non-sensical, that’s the point. Just as it’s non-sensical to claim the portion of the EM spectrum that your radio tower “reflects”. Just as a red shirt returns waves from a subset of those that hit it, a radio tower returns waves from a subset of those that hit it (with some amplification).

Indeed, how can you claim the exclusive right to emit 600 kiloHertz (a radio wave), but not 400 terraHertz (the color red)? You tell me.

But even if I say that a red shirt does generate light waves, for the sake of argument, so what? I still don’t understand how this relates to IP. I am seriously curious; please explain.

You mean, explain a third time on this thread? Sure thing!

When you claim ownership of IP, you’re claiming the exclusive right to instantiate a pattern. You’re doing the same thing when you claim ownership over a portion of the EM spectrum, such as the frequency 600 kHz, because you’re claiming the exclusive right to form EM waves around that frequency, another kind of pattern.

And before you’re the 6000th person to “innovatively” respond, “but EM waves *interfere* with other EM waves!”, just take a deep breath, and read this post.

Buzungulus Rising August 27, 2009 at 9:47 am

I continue to be amazed at what a thick-headed stooge Silas Barta is.

Peter Surda August 27, 2009 at 10:21 am

@Silas Barta:
> Just as a red shirt returns waves from a subset of
> those that hit it, a radio tower returns waves from a
> subset of those that hit it.
Uh, so the fact that a radio tower is connected to a transmitter has absolutely no effect on ownership, homesteading and exercising of rights? A very strange notion indeed.

> Indeed, how can you claim the exclusive right to
> emit 600 kiloHertz (a radio wave), but not 400
> terraHertz (the color red)? You tell me.
The problem isn’t that one cannot claim the right to 400 THz. If EM rights are recognised, then I see no theoretical problem with claiming 400 THz as well. The reasons why this doesn’t/wouldn’t happen are that
- the potential claimant would need to persuade others (s)he has homesteaded it. In other words, one would need to claim that (s)he is the first person to show a red object in that area. Quite difficult to achieve.
- visible light is stopped very easily, e.g. by walls. There is no pratical point in exercising your right to show red through walls or around corners.

To summarise, I see no theoretical hinderances, it merely appears useless to me to have such right beyond the area of the land or buildings you own. But I have no objections.

> When you claim ownership of IP, you’re claiming
> the exclusive right to instantiate a pattern.
Here we go again. The term “exclusive right” has at least two different meanings. Unless you clarify, your argument is only adding to confusion.

To clarify: IP laws do not give the owner the right to instantiate a pattern, they merely give him the right to sue others should they attempt to do so. The right to instantiate a pattern is given to the owner by (classical) proprety rights.

> You’re doing the same thing when you claim
> ownership over a portion of the EM spectrum,
> such as the frequency 600 kHz, because you’re
> claiming the exclusive right to form EM waves
> around that frequency, another kind of pattern.
I see at least two differences.

First of all, IP has unlimited scope (i.e. whole universe as was pointed in an article a while ago), EM rights are regionally limited (in different areas, EM spectra can have different owners).

Second of all, EM rights are based on the right to use and right to trade (other participants might interfere with your exercising of those rights). There is no equivalent interference in IP. They might “interfere” with your profits, but not with anything you own.

Stephan Kinsella August 27, 2009 at 10:27 am

Silas, there is a huge difference between IP and EM rights. In EM rights, if you recognize them, the idea is that when you transmit EM waves over a given physical volume of space, you are the first to use that particular volume in that way, so you homestead that right.

By contrast, there is no way to make such a claim for IP. If I configure my own metal and plastic into a new vacuum cleaner, that is not some use of others’ property over all space, that gives me the right-to-imprint-that-pattern on their own property.

Analogy FAIL.

Silas Barta August 27, 2009 at 11:31 am

@Stephan_Kinsella: Why does transmitting the information contained by EM waves over that volume of space constitute “using that particular volume in that way”, while transmitting the information contained by the new vacuum cleaner over the surrounding area *does not* constitute “using that particular volume in that way”?

In both cases, the relevant transmission is over the information, not necessarily any kind of “wave”. Remember, you only consider radio waves scarce in terms information transfer capacity. Trivially, everyone could broadcast at the same frequency, they just wouldn’t transmit any information.

In both cases, someone is claiming the exclusive right to form and transmit a pattern of information. In one case, you support the right, and in the other, you don’t. Why?

@Peter_Surda: Others and I addressed your points before, and I’m not going to bother trying to get through again.

Russ August 27, 2009 at 11:40 am

Silas Barta wrote:

“Just as a red shirt returns waves from a subset of those that hit it, a radio tower returns waves from a subset of those that hit it (with some amplification).”

A radio tower doesn’t return waves that hit it. A radio tower generates waves. The waves *originate from* the tower. The red light waves do not *originate from* the shirt; they originate from a light bulb or the Sun.

But all that, while I believe it is technically correct, is also unimportant. What I believe it important is as follows…

“Indeed, how can you claim the exclusive right to emit 600 kiloHertz (a radio wave), but not 400 terraHertz (the color red)? You tell me.”

You can claim exclusive rights to a portion of radio frequency spectrum because, by the nature of the radio spectrum, exclusive control in a given geopraphic area is required to make it useful. You can’t claim exclusive rights to the color red, because you don’t need exclusive ownership of the color red to make a red shirt useful.

To clarify, homesteading is used to claim ownership of some things, yes. But that does not imply that *all things* are “homesteadable”. Homesteadability only reasonably applies to those things that require exclusive control in order to be useful (such as land or EM spectrum), not those things that don’t (such as software or the color red).

“When you claim ownership of IP, you’re claiming the exclusive right to instantiate a pattern. You’re doing the same thing when you claim ownership over a portion of the EM spectrum, such as the frequency 600 kHz, because you’re claiming the exclusive right to form EM waves around that frequency, another kind of pattern.”

Your concept of instantiating a pattern is interesting, but I believe that another concept is required. That is the concept of *medium*. A pattern cannot be instantiated without a medium. When you claim ownership of EM spectrum, for instance, you are claiming the right to exclusive control of the *medium*, which implies that you and you alone can instantiate any pattern on that medium. When you claim ownership of software, for instance, you are claiming the right to exclusive control of the *pattern*, which implies that you and you alone can instantiate that pattern on any medium (be it EM spectrum, a computer disk, a length of string… or a shirt *grin*). Once again, EM spectrum ownership claims exclusive control of the *medium*; IP ownership claims exclusive control of the *pattern*. The two claims are categorically different. Hence, as Stephan pointed out, any analogy between the two fails.

As a matter of fact, I think the concepts of pattern and medium clarify why IP is not justified. If I claim ownership of a string, for instance, I claim the exclusive right to control it. This claim would imply that I have the exclusive right to instantiate any pattern using said string. If you claim ownership of a pattern of 1′s and 0′s, you are claiming the exclusive right to instantiate it. This claim would imply that I cannot rightfully use my string to instantiate your pattern, which I could do by tying knots in the string. Your claim to exclusive control of the pattern interferes with my claim to exclusive control of the string. Hence, the two claims are incompossible. In a nutshell, IP rights interfere with real property rights.

Michael A. Clem August 27, 2009 at 12:20 pm

Silas seems to be confusing the medium (EM freqencies) with the message. I understand art critics sometimes have the same problem! ;-)
Look instantiate the pattern of an EM frequency all you want–no one can directly experience that pattern like they can view your painting or t-shirt, or hear that song. The receiver is necessary to turn those frequencies back into music or a talk show or whatever you happen to be broadcasting. Furthermore, radio broadcasts don’t necessarily imply IP, either, since it could be a talk show, or a sports broadcast, or just the news. Thus, the analogy for IP fails on several levels.

Stephan Kinsella August 27, 2009 at 12:30 pm

Person/Silas/John Sharp/Richard Hardin:

@Stephan_Kinsella: Why does transmitting the information contained by EM waves over that volume of space constitute “using that particular volume in that way”, while transmitting the information contained by the new vacuum cleaner over the surrounding area *does not* constitute “using that particular volume in that way”?

In both cases, the relevant transmission is over the information, not necessarily any kind of “wave”.

I don’t know whta you mean by “relevant transmission”. and IP is not a “transmission”. The reason why the transmitter of an EM signal values it is not the reason why it is property. It is property (if it is) b/c of the scarcity. It is an actual use of a scarce resource–the EM spectrum over a given volume of space.

Impatterning my own objects in a certain way is nothing like this. it is NOT a use of other people’s property.

What people like you would need to argue is something like this: having an IP right would give me a right to make more profit by using the monopoly to squelch competition. So just as being able to transmit a usable EM signal lets me make a profit, so does being able to stop others from impatterning their own property.

But stated out in the open like this it’s clear how siilly this is.

Remember, you only consider radio waves scarce in terms information transfer capacity. Trivially, everyone could broadcast at the same frequency, they just wouldn’t transmit any information.

This is a separate argument. IP is not any kind of information transmission.

In both cases, someone is claiming the exclusive right to form and transmit a pattern of information.

NOt true, IP is not about transmitting patterns.

Silas Barta August 27, 2009 at 2:33 pm

@Stephan_Kinsella:

The reason why the transmitter of an EM signal values it is not the reason why it is property. It is property (if it is) b/c of the scarcity. It is an actual use of a scarce resource–the EM spectrum over a given volume of space.

With all due respect, it’s statements like these that reveal your confusion on the issue. You contradict yourself here: it is because the transmitter values (exclusive) transmission at that frequency (due to the capability thereby to transmit information) that a “scarce resource” exists at all.

OTOH, if you try to say that the scarce resource is “the EM spectrum over a volume of space”, you immediately see there’s no scarcity at all, because there is no limit whatsoever to how many people can blast out radio waves at 600 kHz in the same area. Sure, sure, there’d be no communication possible, but what does that matter? They all *use* it, don’t they? Where does this right to make other people adhere to the necessary assumption for information transmission over a radio wave come from?

Impatterning my own objects in a certain way is nothing like this. it is NOT a use of other people’s property.

If it’s “using someone property” to send EM waves over it, it’s certainly “using someone’s property” for visible light (which is also EM waves) from your things to pass through it.

What people like you would need to argue is something like this: having an IP right would give me a right to make more profit by using the monopoly to squelch competition. So just as being able to transmit a usable EM signal lets me make a profit, so does being able to stop others from impatterning their own property.

First of all, I have explained to you several times that that is NOT a fair characterization of the pro-IP stance, and you are poisoning the well by stating it that way. But just for the sake of the argument, let’s say you’re right about what IP advocates are saying.

In that case, the argument for EM spectrum rights is just as flimsy! EM spectrum rights advocates have to say something like, “Having the exclusive right to transmit at frequency f0 (including the right to stop other people who try to transmit at f0) would give me a right to make a profit by using the monopoly to create the conditions necessary for radio communication. Because only one person can make a profit this way for a given frequency, obviously there’s scarcity, which entitles me to this monopoly.”

Remember, you only consider radio waves scarce in terms information transfer capacity. Trivially, everyone could broadcast at the same frequency, they just wouldn’t transmit any information.

This is a separate argument. IP is not any kind of information transmission.

No, it’s an argument that reveals the similarity. As I’ve said several times, there are two kinds of things going on with respect to radio wave transmission. People are transmitting a) waves, but they are also (potentially) transmitting b) information. But just as it would be absurd to say, “What’s the matter? You can still transmit!” when you interfere with someone’s frequency, it’s absurd to say, “What’s the matter? You still have your instantiation of that pattern!” to someone asserting IP rights.

Not true, IP is not about transmitting patterns.

Are you kidding? IP rights are nothing *but* the exclusive right to transmit certain patterns.

Russ August 27, 2009 at 4:24 pm

Just as IP is a useful abbreviation, why don’t we use EMP as an abbreviation for EM property.

Silas Barta wrote:

“IP rights are nothing *but* the exclusive right to transmit certain patterns.”

You said it better in your earlier post to me; IP has to do with the exclusive right to *instantiate* certain patterns, not transmit them. (I will gladly concede that transmission of a pattern is one way of instantiating it.) To be more specific, IP has to do with the exclusive right to instantiate *certain* patterns on *any* media. EMP has to do with the exclusive right to instantiate *any* pattern on *certain* media. While I can understand how one could confuse the two, there is a difference.

“But just as it would be absurd to say, “What’s the matter? You can still transmit!” when you interfere with someone’s frequency, it’s absurd to say, “What’s the matter? You still have your instantiation of that pattern!” to someone asserting IP rights.”

There is also a difference here. I see you agree that saying “What’s the matter? You can still transmit!” is absurd. When somebody says “What’s the matter? You still have your instantiation of that pattern!”, that is different.

In the first case, the pattern is disrupted; i.e. the pattern no longer gets to its intended receivers. This is analogous to somebody intercepting your mail, and burning the letters.

In the second case, the pattern is not disrupted, and does get to its intended recipients (those who are willing to pay for the IP). But in addition, the pattern also gets to those who are not it’s intended recipients. This would be analogous to somebody intercepting your mail, copying the letters, and then putting the letters back in the mail so that you receive them.

Now let’s introduce the concept of security. When the medium of transmission is mail, you could rightfully claim that reading your mail is wrongful snooping into your private affairs, because the medium of mail is *secure*. You would have to violate real property rights in order to intercept mail. In the case when the medium of transmission is EM spectrum, snooping cannot sensibly be considered wrong. After all, the idea that people can listen in on the transmission is the entire point. EM spectrum is by its very nature an insecure transmission medium, and insisting that nobody listen in on one’s transmission on EM spectrum is absurd. That’s exactly how the reception of radio transmissions work!

IP such as software is similar. The whole point of digital media is that it is easy to copy a pattern on digital media an indefinite number of times without degradation of the pattern. So “transmitting” your pattern on such a media, and then expecting nobody to “violate your privacy” by “snooping in on” your transmission, is absurd. Such an expectation is contrary to the very nature of the medium.

Stephan Kinsella August 27, 2009 at 5:07 pm

Silas_Barta/John Sharp/Richard Harding/Person:

“If it’s “using someone property” to send EM waves over it, it’s certainly “using someone’s property” for visible light (which is also EM waves) from your things to pass through it.”

No, it’s not–this is the whole point. For me to transmit EM waves thru your property does not interfere with your use of your property, as Rothbard carefully explained (see his pollution article). If it did, it would be a form of trespass, or nuisance. See?

Silas Barta August 27, 2009 at 5:12 pm

@Stephan_Kinsella: No, it’s not–this is the whole point. For me to transmit EM waves thru your property does not interfere with your use of your property, as Rothbard carefully explained (see his pollution article). If it did, it would be a form of trespass, or nuisance. See?

Forget your previous posts? My comment was referring to this remark you made:

In EM rights, if you recognize them, the idea is that when you transmit EM waves over a given physical volume of space, you are the first to use that particular volume in that way, so you homestead that right.

Okay, so if being the first to transmit EM waves through a given volume (by which I assume you meant radio waves) gains you the right to transmit radio waves through that volume, why not other patterns of light, which are also EM waves?

Think about it.

Silas Barta August 27, 2009 at 5:30 pm

@Russ:

EMP has to do with the exclusive right to instantiate *any* pattern on *certain* media. While I can understand how one could confuse the two, there is a difference.

There isn’t a difference. EMP has to do with the right to instantiate a *specific* set of patterns (those in a frequency band) on *any* device capable of generating such waves. Do you own a transmitter? Sorry, according to Stephan_Kinsella, he actually has partial ownership of it if he owns part of the EM spectrum.

In the first case, the pattern is disrupted; i.e. the pattern no longer gets to its intended receiver.

Okay, but my point is, why does this matter? Why do you classify it as “inteference, and therefore bad” in the first place? Where did the right to communication from?

A brief primer of the information theoretical aspect of radio communication: Radio communication works, to the extent that it works, because a listener can perform a measurement, and thereby learn something about the source, i.e. the message transmitted. (This “something” they learn is called the “mutual information” between the two points, and is equivalent to so-called “Bayesian evidence”.)

In practice, this measurement is: turning on a radio and setting a dial that makes it resonate when the surrounding area is being excited by EM waves around a certain frequency. Now that it acts in sync with the transmitted waves, the radio converts it into sound that is meaningful for you.

All of this functioning relies on an assumption: that by performing the measurement, you do in fact learn something about the source. That assumption is violated when more than one person transmits at the frequency you perform a measurement on. In this case, no measurement result tells you anything about either source: it’s just gibberish. (In the lingo, there’s no “mutual information” between you and either source.)

So when you talk about “disruption”, what you really mean is “violation of an assumption some parties were using to communicate which, when violated, makes them unable to communicate.”

Again, where are you getting this right from? How can you have a right to “an assumption about the oscillation of local EM fields holding true”? When you answer that, I claim, you will have a general enough basis to justify IP rights.

I hope that clarifies my position for you.

Russ August 27, 2009 at 5:52 pm

Silas Barta wrote:

“Okay, so if being the first to transmit EM waves through a given volume (by which I assume you meant radio waves) gains you the right to transmit radio waves through that volume, why not other patterns of light, which are also EM waves?”

It has to do with the different nature of radio receivers and light receivers (eyes), not the similar nature of radio waves and light. Radio receivers are non-directional in nature. If two people transmit separate signals at the same frequency in the same geographic area, a radio receiver picks up both signals at the same time. It then superimposes the two transmitted patterns, rendering them both useless. Therefore, in order for EM spectrum to be useful, homesteading is required. Light receivers (eyes) are directional in nature. Two people can wear shirts with red lettering on them. I can receive either transmission by simply turning my head to look at one shirt or the other. Since the transmission of signals in the frequency of red is not rendered useless by multiple transmitters in the same geographic area, homesteading of light is not required.

I’ve taken your argument regarding red seriously and on its own terms, and think I’ve found a flaw in your reasoning. I’ve also taken your argument regarding pattern instantiation seriously and on its own terms. In fact, I’ve taken it so seriously (since I think it is the more weighty of your two arguments) that I have expanded on it by distinguishing between pattern instantiation and medium of pattern transmission, and also introduced the concept of security of the medium. Will do me the same favor, and take my responses to you seriously enough to respond to them on their own terms?

Buzungulus Rising August 27, 2009 at 6:13 pm

Russ,

You’re wasting your time; Silas is a complete ass-hat.

Russ August 27, 2009 at 6:19 pm

Silas Barta wrote:

“Do you own a transmitter? Sorry, according to Stephan_Kinsella, he actually has partial ownership of it if he owns part of the EM spectrum.”

It sounds suspiciously like you are dropping support for EMP.

Caveman wrote:
“Silas, if/when Kinsella drops his support for EM spectrum rights, what then?”

Silas Barta replied:
“Caveman: Then he resigns himself to permanent crankdom. He’ll just be known as the guy who doesn’t believe in communication via radio waves.”

Are you resigning yourself to permanent crankdom, Silas?

“Okay, but my point is, why does this matter? Why do you classify it as “inteference, and therefore bad” in the first place? Where did the right to communication from?”

It sounds a lot like you don’t believe in communication via radio waves.

“Again, where are you getting this right [to communicate via radio waves] from?”

From the same place I am getting the right to own land, or any other material property. Ownership of EMP is the only way to make EM spectrum useful, in just the same way that ownership of land is the only way to make land useful (otherwise you get the tragedy of the commons). Now, granted, we could live without the ownership of EMP, while we couldn’t live without the ownership of land. But anyway, if you don’t acknowledge the ownership of EMP, then by your own admission, you resign yourself to permanent crankdom. I think you’re painting yourself into a corner here, Silas.

Sasha Radeta August 27, 2009 at 6:20 pm

It’s a shame so many non-economists talk about issue of scarcity.

My dear fellow libertarians, scarcity is not the only prerequisite for something to qualify as property. Economic services are also scarce, meaning their supply would be lower than demand if prices were set to zero. Consequently, in order to decide who gets these services, market prices are set. People now pay for services such as labor — or even service of looking at someone’s works of art in a gallery. However, you can never own labor or artistic beauty in proprietary sense. We can all agree that services cannot be treated as property, although they are scarce – because they cannot be homesteaded or exclusively physically occupied.

You also cannot own ideas; and by the way, IP is not based on this notion – since it only applies to material (physical) goods, restricted for commercial use by people other than owners. By the same token, you can never homestead EM spectrum, because your radio messages can be disrupted by someone else without any physical trespass against your property. EM spectrum is not tangible and it is no more “physical” than light, work or energy (which also cannot be owned and homesteaded).

On the other hand, radio stations can simply claim easement rights for their business over a particular space — and there you have it. Easement does not give the holder a right of “possession” of the property, but only a personal privilege to use land of another for a limited purpose. People can have an easement for solar light (in order to protect their property from being encircled by high walls from all sides), however this by no means suggests that “light is property.”

So when I read postings by anti-IP advocates about EM spectrum being type of real property — and at the same time some IP proponents saying ideas are economic goods that can be protected by patents – I can’t help but wonder would this blog go out of business if Amsterdam coffee shops and insane asylums would switch off their internet access? Just kidding – don’t get mad.

Russ August 27, 2009 at 6:27 pm

Sasha Radeta wrote:

“On the other hand, radio stations can simply claim easement rights for their business over a particular space — and there you have it.”

I think you’re splitting semantic hairs here. Whether you call it easement or ownership of EM spectrum or EMP or a purple platypus, the point of the matter is the same; does a person have the sole right to broadcast in a certain frequency range in a given geographic area, or not?

Sasha Radeta August 27, 2009 at 7:00 pm

Russ,

it”s more then semantics. As you can see on this blog, both IP proponents and opponents are arguing about “idea ownership” ad nauseam, while in fact ideas are not even the subject of IP — and the whole issue in reality revolves around the issue of unauthorized use of author’s real property (trespass) — and how distinctive features of works of authorship can be used to proved unauthorized commercial use such as replication.

At the same time, it is not semantics when I say that light cannot be owned — but the person may have easement rights over other person’s use of his property in order to obtain this economic necessity. Likewise, for some businesses, broadcast over a specific frequency range over specific geographic location is easement. The specific use of frequency represents necessity for substantive property rights over some business.

To answer your question, the person may broadcast exclusively in a certain frequency range in a given geographic area, based on easement that doesn’t violate another person’s existing property rights in similar business. However, this cannot logically be viewed a homesteading act over a piece of property.

Russ August 27, 2009 at 7:38 pm

Silas,

In the interest of being more civil here from now on, I apologize for being snotty with you in my last post. In my defense, I did so because I found your presentation extremely confusing. I find your “red” argument to be horribly counter-productive; it does not help to clarify your position. In fact, I think it obscures it. (I do not, BTW, consider you an “ass-hat”. I’m not even sure what that means, although I somehow doubt it’s complimentary.)

After stepping away from my computer, and having a few cigarettes and some Guinness while mulling over what you wrote, I think I understand what you meant better now. I will now attempt to take what I think you mean seriously.

Axiom 1: The exclusive right to broadcast over a given frequency range in a given geographic area (EMP for short) will be considered as a given, since if one doesn’t take it as a given, one is resigning oneself to permanent crankdom.

Axiom 2: Property rights give one the exclusive right to control said property, as long as that does not not violate the rights of others to do the same.

Argument: Axioms 1 and 2 are contradictory. If one has EMP rights, then that denies others the right to control their property (transmitters), as they see fit.

Conclusion: One of these axioms must give. If we stick with Axiom 1, then it follows that Axiom 2 must be modified, such that property rights do not give one the *total* control of one’s property. Specifically, one does not have the exclusive right to control one’s transmitter, if that interferes with another person’s EMP rights.

Corollary: If one’s EMP rights can rightfully limit another’s right to control his own transmitter, one can similarly use IP to rightfully limit another’s right to control his own computer.

If this were the end of the discussion, and assuming this is a correct understanding of your position, I would have to agree with you. IP rights and EMP rights are analogous; if one is valid, why not the other?

But this is not the end of the discussion. Stephan uses the concept of scarcity to explain why the *apparent* paradox of considering EMP justified but not IP is not really a paradox. I prefer to use the concept of exclusivity instead of scarcity. (I’ll save the explanation for that preference, unless someone is actually interested.)

My de-paradoxification of the apparent paradox is as follows:

We take Axiom 1 above for granted, because otherwise EM spectrum would be useless. It seems absurd to deny ourselves any meaningful use of this resource. It seems, on the face of it, similarly absurd to deny ourselves any meaningful use of IP.

However, IP and EMP have different natures. EMP is justified by its utility. That utility requires that the right to transmit on a given frequency range, in a given geographic area, be *exclusive*. Otherwise, no utility. IP is different. The utility of a piece of software does not *require* that the right to instantiate that pattern be exclusive. The inventor (or discoverer, as you prefer) of a pattern, i.e. the writer of the software, still retains the ability to get use out of that software, even if somebody else copies it. If he writes a piece of software to perform quaternionic algebra, and somebody copies that software, he can still use his original copy to perform quaternionic algebra. No functionality is lost. Hence, exclusivity is not required for the software to be useful, as it is with EMP. The natures of IP and EMP are not really the same, despite their *apparent* similarity. Hence, the corollary above is false, and the apparent paradox is not really a paradox at all.

Where you err, in my opinion, is in the conflation of the utility of the software with the ability to make obscene amounts of money by selling it. The hope that one can make money by selling the software is not the (direct) utility of a piece of software; it is a business plan.

Russ August 27, 2009 at 7:46 pm

Sasha Radeta wrote:

“…ideas are not even the subject of IP — and the whole issue in reality revolves around the issue of unauthorized use of author’s real property (trespass)…”

Trespass on the author’s real property? How so?

“To answer your question, the person may broadcast exclusively in a certain frequency range in a given geographic area, based on easement that doesn’t violate another person’s existing property rights in similar business. However, this cannot logically be viewed a homesteading act over a piece of property.”

I think you’re taking these phrases too literally. Of course the idea of “homesteading” EM spectrum makes no literal sense. But it does make figurative sense, and seems a reasonable analogy. We’re not lawyers here (not most of us, anyway).

newson August 27, 2009 at 8:13 pm

i, too, think kinsella risks wandering into silas’ e.m. mousetrap.

i see homesteading of e.m. as fraught with problems. where does the “territory” end? with shifting fences, any “property” is open to endless fights. it sounds like an invitation for a squad of technical goons to oversee the industry.

everyone should be free to use whatever part of the spectrum they desire. the earlycomers will probably have the advantage of having powerful antennas set up, so latecomers risk having to cough up enormous amounts of capital to overpower the existing signal (and why would you do this, if your signal is to be distorted by the existing one?). or maybe you can use the same spectrum without interference, by emitting only in dead moments on the same wavelength.

at a dinner party, generally it’s seen as rude to interrupt someone already speaking, but it can be done in particular instances, and there is no hard and fast rule that can be applied.

soapbox orators in a park tend to use commonsense and space themselves at a distance from the “competition”, so that their audience isn’t distracted by the others’ noise. nobody has any rights to hear one speaker in isolation. commonsense and good manners rule the day.

Russ August 27, 2009 at 8:42 pm

newson wrote:

“the earlycomers will probably have the advantage of having powerful antennas set up, so latecomers risk having to cough up enormous amounts of capital to overpower the existing signal (and why would you do this, if your signal is to be distorted by the existing one?)”

To silence political dissent, for instance?

“commonsense and good manners rule the day.”

Yes, and if everybody exhibited common sense and good manners with respect to real property like land, we wouldn’t need the concept of property rights. And yet, we do.

Sasha Radeta August 28, 2009 at 2:12 am

Russ,

trespass by its definition is use of one’s property without the owner’s consent or authorization. IP issues always deal with unauthorized commercial use — kinds of services that owners of original works of authorship want to keep exclusively for themselves (and private property rights allow them to do so, because ownership means ability to control and sell services derived from your property).

I’m not a lawyer either, but I think it is very important to avoid incorrect assertions such as “EM homesteading.” As you can see from this discussion, debate about whether ideas, thoughts, or frequencies can be owned, are only diverting the discussion away from the real issue here.

And the major aspect of EM spectrum issue comes down to substantive property rights of individuals in their businesses. Whenever the proper exercise of property rights is violated, there must be an easement provided for this owner (for example, completely blocking the light source toward other person’s garden is disabling its basic functions making his property rights rather formal – so the easement for light is provided to protect the essence of property rights).

The fact that state now assumes the role of assigning these easement rights does not make these common law principles wrong in principle — just like states assignment of IP rights does not imply that protection against unauthorized use is statist.

Peter Surda August 28, 2009 at 2:12 am

@Silas Barta
> Others and I addressed your points before, and I’m
> not going to bother trying to get through again.
With all due respect, no. On the contrary, they have been dodged and the most vocal IP proponents keep repeating arguments which are either obviously false or confusing. Even now where I admitted to agree with you about MHz vs THz and explained why it is consistent with my views, you still dodge.

So let me summarise:

(terminology)
- IP is not the right to instantiate anything, rather a right to prevent others from doing so
- the right to instantiate something (as long as such a right even is possible) is (classical) property
- kindly consult the diagrams that I made to explain this: http://shurdeek.shurdix.org/tmp/ip.png and http://shurdeek.shurdix.org/tmp/ip2.png

These claims are backed by experts including IP proponents, it’s not just something that I pulled out of thin air.

(assertion)
- only the right to use and right to trade can be used to determine if something is property. Other views lead to contradiction in the underlying theory.
- the right to exclude alone is not sufficient, and in some cases, not even necessary for any property rights.

(conculsion)
- even if IP is recognised, it has nothing to do with property
- the argument for IP as a natural right is unsubstantiated

Sasha Radeta August 28, 2009 at 2:24 am

Surda made a great summary:

IP is not the right to instantiate anything, rather a right to prevent others from doing so (WITH YOUR OWN PROPERTY – I add).

In short: If you believe that property owner should be able to allow (sell or rent) one kind of use of his property – while at the same time having the right to retain other exclusive rights of use – you support copyright.

EM spectrum issues are far more complex than IP, because they deal with the concept of easement, which stem from basic property rights (no wonder why many IP opponents also reject easement for radio frequencies).

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