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Source link: http://archive.mises.org/10919/a-note-on-intellectual-property-and-externalities/

A Note on Intellectual Property and Externalities

October 27, 2009 by

Dissatisfied with inconsistencies in Hayek’s concept of individual freedom, I was looking for an assessment that (at least) tried to avoid these inconsistencies. Hoppe’s approach was and still is a representative of this rare species. FULL ARTICLE by Hardy Bouillon

{ 32 comments }

Anonymous October 27, 2009 at 10:32 am

Maybe I’m missing something but if ‘Intellectual property’ has no impact on how I use my property, then what is the purpose of it at all? Just to establish the history of the ‘property’ in question?

Michael A. Clem October 27, 2009 at 11:18 am

To put it differently, we can talk meaningfully of intellectual property and intellectual property rights. However, intellectual property as such—being free of any material “extension”—is of no immediate importance to business life. What counts in the market are the externalities that can be derived from intellectual property. How to deal with these externalities is, of course, a different matter.
While the article helps clarify things in some small degree, I felt rather cheated to be left hanging like this. What is the analytical form or definition of property, and how can “intellectual property” be called such? And how we deal with these externalities is the primary question we’re trying to answer, isn’t it? Isn’t this just background leading to those answers?

tz October 27, 2009 at 1:25 pm

Ownership is just as much an abstract idea as any invention or artistic work, as are rights.

Whether someone “owns” something or not tends to be subjective, even for real property – If I like the forest and lake as is – in it’s natural state, am I “using it” so would have a claim, or the fact that I don’t alter it means it is functionally abandoned? If ownership is merely the ability and willingness to use violence to defend something, then ideas and other things can be property. Usually the “evidence” of ownership is a deed or some other abstract proof of ownership granted by some human authority.

I would also note that most people who reject IP will accept any term in any contract. So what happens if I sell you a book or let you use an invention under the terms you must not disclose the contents? Having no copyright or patents does not mean the information will be free – some may not exist (the same way property whose rights are disputed is usually left undeveloped), and other bits may be encumbered with individual legal and/or technical measures which may be even worse than what exists now.

And “property rights” has nothing to do with any process involving a peaceful settlement of disputes. At some point one or more disputes will not be resolvable – both parties may have an equally good or bad claim or it would depend on some factor which cannot be independently verified. Either some authority (typically the state) comes in and says A is right and B is wrong and will do violence to B if he tries to pursue the claim or obtain the property. If there is no 3rd party enforcement of property rights (true 3rd party, not someone hired by either or both disputants), then the parties can go through whatever private ritual they want, but it will matter who has or can obtain the greatest stealth or most effective weapons – even such battles in an abstract place like an arbitration hearing will have to move to the real world which is where it will have some finality.

My fundamental problem with the anarchocapitalistic models is the subtle assumption that there will be providers of “protection” instead of providers of mere violence. That there might be Pinkertons (who often were thugs – are Blackwater contractors today better because they are “private”?), but NOT that the free market will produce entrepreneurial, creative thieves and assassin’s guilds – and they would be effective with the full force of the free market. And the Thieves merely need to make it uneconomical for the protection agencies to do more than occasionally pay off on the insurance and raise premiums. (“The Professional Thief, written in the 1930s shows how this did work and is probably a better example and is a real case of how things work outside the state, or by going outside it; more recently the series “It takes a thief” on Discovery showing how easy it was to ransack a house on a weekly basis). They will not catch every thief, so the probability of recovering an amount which would pay for the investigation, apprehension, finding the property, disputing ownership of “stolen property” has to be greater than just doing the paperwork and paying off the claim. If a company would only begin investigating claims above $2000, thieves are smart enough to steal only $1900.

There are stateless societies. Afghanistan before 9/11/01. Somalia. The tri-border region in South America and Now parts of Mexico. Returning to the US might be a problem, but these places without any state ought to be paradises. Yet I’ve never heard anyone say they actually want to move there and attempt to set up their anarchocolony in actual

ktibuk October 27, 2009 at 1:36 pm

There is one main, and false assumption underneath the opposition against IP.

The first wrong assumption can clearly be seen in the Hoppe quote and often repeated by IP opposition.

But to quote the author,

“In other words, assuming that scarcity is the reason for conflict over goods with competing interests[4] and that the very function of property rights is to solve these conflicts peacefully, there is no need to provide property rights for intellectual property, because intellectual goods are not scarce.”

This is a clearly positivist approach to law which is polar opposite of natural law. One can not claim to believe in natural law and repeat this assumption without contradicting himself.

According to natural law theory, laws are not made by people but they are discovered. Laws exist and humans realize, accept and act accordingly. Or not, of course. The implications of disregarding reality and its laws may have different consequences but they do have consequences.

Thus laws regarding property rights are not created by man to solve conflicts or better society or some other goal. Natural laws regarding property exist whether people realize and accept them or not.

Laws are not made to resolve conflicts, conflicts arise when some other person disregards the laws of reality.

This means Robinson Cruseo can own property before Friday comes to the island. Conflict may arise if and when Friday comes to the island and disregards natural law, that says Cruseo homesteaded property on the island.

On the other hand Hoppes assumption suggests, Cruseoe can not own property before anyone else comes to the island (he should starve I guess). The only way to establish laws regarding property is for Friday to come to the island and both of them make a law that might resolve potential conflicts.

Which is putting the cart in front of the horse, and wrong

Andras October 27, 2009 at 5:45 pm

The prevailing dogma in some libertarian circles is that IP is not property due to its lack of scarcity. However, whenever an idea first discovered or recognized it is scarce. It is so scarce it is unique (the reason it was an externality).
Can we put the horse in front of the cart and say that the definition of IP is the extent of its scarcity. Measuring this extent, however, is a problem. We only know that the two extremes, the unique and the infinite what borders it. The transition from one extreme to the other coincides with the process of internalization of a new idea. In the patent laws the recognition of novelty is awarded by an extended grace period (monopoly) to slow this transition. Although this award is arbitrary it is not unique. Internalization of a physical property goes the same way in the sense that the process (homesteading) is also arbitrary though not with time.
The advantage of having IP through patent laws that they enable for calculations even before the idea becomes fully internalized. Of all places, mises.org should be expected to comprehend this advantage.

Peter October 27, 2009 at 5:51 pm

Natural laws regarding property exist whether people realize and accept them or not.

What, independent of men? If all life in the universe was wiped out tomorrow, “natural laws regarding property” would still be in operation?

Somebody’s “disregarding reality”, but I don’t think it’s the anti-IP folk :)

D October 27, 2009 at 7:12 pm

Peter, you paint a picture where humanity has been wiped out totally….and then point fingers at others about ‘disregarding reality’.

Yikes.

Michael October 27, 2009 at 8:17 pm

tz says:
“I would also note that most people who reject IP will accept any term in any contract. So what happens if I sell you a book or let you use an invention under the terms you must not disclose the contents? Having no copyright or patents does not mean the information will be free – some may not exist (the same way property whose rights are disputed is usually left undeveloped), and other bits may be encumbered with individual legal and/or technical measures which may be even worse than what exists now.”

This doesn’t take into account the fact that contracts don’t apply to third parties. The second this idea is revealed to someone who wasn’t a part of the contract, all the original protection is gone.

And this doesn’t seem to be enforceable. How would you prove that a third party is violating a contract by printing a book or making an invention that takes advantage of an idea. You’d have to be able to trace it back to the person who signed the contract, and then that person would be at fault, not the third party.

Michael Vogt October 27, 2009 at 8:32 pm

ktibuk says:
On the other hand Hoppes assumption suggests, Cruseoe can not own property before anyone else comes to the island (he should starve I guess). The only way to establish laws regarding property is for Friday to come to the island and both of them make a law that might resolve potential conflicts.

This may be the strangest argument I’ve seen. How does what Hoppe state in any way imply that the island not a scarce resource in your example? Is it supposedly not scarce because only one person is there? I certainly can’t find a way to interpret his statement to arrive at that conclusion. And how is your Crusoe example any different than when someone homesteads any other property on Earth that nobody else has found yet?

Of course we don’t have to worry about conflict until a second person comes along, but that doesn’t mean ownership hasn’t been established.

averros October 27, 2009 at 8:34 pm

First of all, “intellectual property” is not property – simply because it is a TEMPORARY monopoly privilege granted by the government.

It does not exist without government, unlike real property.

The idea that “IP” somehow does not collide with real property rights is just absurd. The property rights in photocopier and paper permit me to do whatever I want with them. Including copying a book. The claim by the author of the book that I cannot do that are preventing me from exercising my material property rights – while it does NOT cause any material, demonstrable harm to the author. (Loss of income due to non-aggressive acts of other people is NOT harm – otherwise, we’d have to outlaw competition… wait, that’s exactly what IP laws do).

It is as simple as that.

huh? October 27, 2009 at 8:53 pm

ktibuk said that the following is a clearly positivist approach to law which is polar opposite of natural law : “In other words, assuming that scarcity is the reason for conflict over goods with competing interests[4] and that the very function of property rights is to solve these conflicts peacefully, there is no need to provide property rights for intellectual property, because intellectual goods are not scarce.”

Anyone care to explain in detail why this is positivist?

Michael Vogt October 27, 2009 at 8:59 pm

Andras said:
However, whenever an idea first discovered or recognized it is scarce.

I don’t understand how you can consider an idea to be a scarce resource. If I find an unowned diamond, that diamond is a scarce resource that I own, and nobody can take that same diamond from me without my permission without violating my rights. But even if someone doesn’t reveal an idea to others, someone else could very well come up with the same idea separately. Here someone has the same idea as someone else who had it before, but obviously without a violation of property rights.

And since when do we need to measure scarcity? With what? Utils? Seems to me that something’s either scarce or it isn’t.

And what does internalization has to do with property rights?

Russ October 27, 2009 at 9:36 pm

Michael Vogt wrote:

“Seems to me that something’s either scarce or it isn’t.”

I think you just hit the heart of the matter.

Obviously, information isn’t scarce. It mostly comes down to the fact that some people think that a person who comes up with an idea has a right to profit from it. If that is a moral position on the part of a pro-IP person, there’s not much arguing with it. (You can disagree with it, but it’s hard to argue a person out of a moral belief.) If it’s a utilitarian position, though, that’s different. Shakespeare didn’t have copyrights, and yet we aren’t denied Shakespeare’s art. He figured out a way to profit from his work without copyrights.

Del Lindley October 27, 2009 at 9:44 pm

To say that IP rights are non-existent (Hoppe) or to say that they exist but do not extend to material externalities (Bouillon) to me seems to be a distinction without a difference. Once a (public) idea is legally divorced from its material implementation it loses all market value, and any “good” without market value would not constitute property in any meaningful sense. Hoppe makes all ideas appear worthless because they are easily copied. Both approaches imply that idea discovery is an effortless process from which no market value can be derived.

This conclusion is refuted by the fact that many (if not most) useful commercial ideas are not patented but held as closely guarded trade secrets. Having no external market, the value of these ideas may be gauged by the cost of guarding them. The authors of these ideas, if no one else, appreciate the effort required to create them.

The material “collision” that supposes an IP owner can effectively own another’s property seems to be wildly overblown. How is the IP owner to know that his patent has been violated without the violator (directly or indirectly) advertizing the fact? The IP owner is concerned with competition in the marketplace, not how individuals or entities act with respect to their private consumption.

Michael Vogt October 27, 2009 at 9:55 pm

tz said:

And “property rights” has nothing to do with any process involving a peaceful settlement of disputes.

Are property rights not the basis of any natural rights process involving a peaceful settlement of disputes?

At some point one or more disputes will not be resolvable – both parties may have an equally good or bad claim or it would depend on some factor which cannot be independently verified.

If we’re still talking about property, how exactly would two parties have an equally good or bad claim? Why should a dispute not be resolvable? What sort of non-independently verifiable factor do you have in mind? This is so vague as to be difficult to understand what you’re saying.

Either some authority (typically the state) comes in and says A is right and B is wrong and will do violence to B if he tries to pursue the claim or obtain the property. If there is no 3rd party enforcement of property rights (true 3rd party, not someone hired by either or both disputants),

Why would someone hired by both disputants not be a “true” third party? If you want an example of a false third party, see every case where the government is both a party in the dispute and the decider in the dispute.

then the parties can go through whatever private ritual they want, but it will matter who has or can obtain the greatest stealth or most effective weapons – even such battles in an abstract place like an arbitration hearing will have to move to the real world which is where it will have some finality.

Why assume that stealth and weapons would immediately be used in disputes? Are people really just that eager to engage in a fight to the death or perhaps leave everything in the middle of the night?

My fundamental problem with the anarchocapitalistic models is the subtle assumption that there will be providers of “protection” instead of providers of mere violence.

There’s no subtle assumption about private protection agencies. This is explicitly advocated by anarchocapitalists, and if you feel that warlords would take over, that’s an argument you’ll need to back up with some reasoning. As it is today in the U.S., most organized violence happens in the black market, which wouldn’t exist in an anarchocapitalist society.

That there might be Pinkertons (who often were thugs – are Blackwater contractors today better because they are “private”?),

They certainly might be if they were on a free market, you had a choice about whether to hire them or not, and they were held responsible when they violated the rights of others.

but NOT that the free market will produce entrepreneurial, creative thieves and assassin’s guilds – and they would be effective with the full force of the free market.

Such criminals are hardly rendered ineffective by the presence of government. How would criminals operate any differently in an anarchocapitalist society than one ruled over by government? It’s not like criminals are currently hampered by bureaucratic red tape and regulation.

And the Thieves merely need to make it uneconomical for the protection agencies to do more than occasionally pay off on the insurance and raise premiums.

So we’re assuming the protection agencies would supply insurance and also make such bad decisions as to fail in the market place. Nevermind that insurance investigators have always been more effective at finding stolen property than state police forces.

(“The Professional Thief, written in the 1930s shows how this did work and is probably a better example and is a real case of how things work outside the state, or by going outside it; more recently the series “It takes a thief” on Discovery showing how easy it was to ransack a house on a weekly basis).

Wait, I haven’t read this, but I’m assuming this story takes place with the state in place. If that’s the case, why should the state’s inability to stop a thief be considered an evidence in the state’s favor?

They will not catch every thief, so the probability of recovering an amount which would pay for the investigation, apprehension, finding the property, disputing ownership of “stolen property” has to be greater than just doing the paperwork and paying off the claim.

It would be up to the protection or insurance agency to determine how to be profitable, and at least they would obviously have an incentive to find the thief. If you’ve ever had something stolen and spoken to the police, you’ll quickly find out how interested they are in recovering your goods.

If a company would only begin investigating claims above $2000, thieves are smart enough to steal only $1900.

That’s an incredibly arbitrary amount to choose, but like I said, the police practically never bother with looking for stolen goods. They’re only interested in catching criminals. And even when they do, they don’t care about your loss and really aren’t interested in recovering your goods for you.

There are stateless societies. Afghanistan before 9/11/01. Somalia. The tri-border region in South America and Now parts of Mexico. Returning to the US might be a problem, but these places without any state ought to be paradises. Yet I’ve never heard anyone say they actually want to move there and attempt to set up their anarchocolony in actual

Sorry you got cut off there.

First, no anarchocapitalist has ever claimed it would be a utopia, or that their ideas are solely concerned with the mere absence of a state. This is obviously strawman nonsense. There were also stateless societies in Ireland and Iceland, and though they obviously weren’t anarchocapitalist, they were also relatively successful without states. You have to overlook the whole of anarchocapitalist thought to believe that Somalia or just any stateless society somehow represents its ideas.

Michael October 27, 2009 at 10:07 pm

Del Lindley said:
The material “collision” that supposes an IP owner can effectively own another’s property seems to be wildly overblown.

Really? Aside from defensive patents, what’s the point of having a patent if you can’t control other’s property? How can you enforce a patent against a competitor and not stop others from using their property

How is the IP owner to know that his patent has been violated without the violator (directly or indirectly) advertizing the fact?

I would imagine they typically find out because often their competitors are in the same field they are. It’s worth the effort of looking around if you can take someone like RIM to court over a patent, and I don’t think Blackberry was “advertising” their use of such technology. Or even look at the guy who developed open source software for a train set. If you can knock out a competitor, you might be able to make more money.

The IP owner is concerned with competition in the marketplace, not how individuals or entities act with respect to their private consumption.

Check the train set story. There are IP owners who produce absolutely nothing. What exactly is their competition in the marketplace?

ktibuk October 28, 2009 at 4:36 am

“This may be the strangest argument I’ve seen. How does what Hoppe state in any way imply that the island not a scarce resource in your example? Is it supposedly not scarce because only one person is there? I certainly can’t find a way to interpret his statement to arrive at that conclusion. And how is your Crusoe example any different than when someone homesteads any other property on Earth that nobody else has found yet?”

I am not talking about scarcity. The main point in Hoppes argument is “conflict resolution”, scarcity is just a potential reason for conflict.

Positivist claim, laws are made to reach an end, in this case a broad goal “resolving conflicts”.

Natural law theorists claim, laws are not made, they are discovered and conflicts arise only when some individual disregards natural law.

Clearly Hoppes approach to property rights are positivist and legal positivism has many distasteful consequences.

If potential conflict is the only reason there are laws regarding property, how can one claim

“Of course we don’t have to worry about conflict until a second person comes along, but that doesn’t mean ownership hasn’t been established.”

ktibuk October 28, 2009 at 4:59 am

There are two main epistemological approaches in philosophy.

1. Reality and laws regarding reality exists independent of men. Men percieves, realizes and acts according to these realities in order to survive.

Take “the law of gravity”. It doesn’t exist because men gathered and decided they didn’t want to fly off to nothingness. Gravity exists independent of men. People may realize this fact of reality and act accordingly or they may not. Both actions have consequences. In the case of the law of gravity consequneces of defying reality, jumping off of a cliff and flapping your arms for example, have direct and dire consequences so not many people dispute it.

Laws regarding property rights (or economics laws) are just the same. They are dictated by reality. But in this case defying reality has indirect consequences so people may defy reality, for a while at least.

2. Crudely, reality is dependent on the mens mind. Reality is what men wants and can be bent according to mens wishes. Or in the more sophisticated Kantian sense, even if there is some objective reality it can not be perceived by men, thus the main concern of men is the reality that is dependent of mens mind.

This is the basis of positivism. At least legal positivism, because as I mentioned positivism is physics or chemistry is quickly identified as schizophrenia.

Hoppes definition of property rights is tainted with legal positivism. The consequence is the oppostion of IP (IP socialism) in this case, but if one follows these assumptions to their logical ends you would reach nothing but full blown socialism

Peter Surda October 28, 2009 at 6:07 am

@ktibuk:

> There are two main epistemological approaches in
> philosophy.
Yes. And your “property theory” is clearly positivist. IP cannot exist without a mind, but (classical) property can. If there is an apple and a horse eats it, or if an eruption on Sun causes disturbances in EM spectrum around the Earth, the consumption of these resources becomes impossible even in the absence of people. But no phenomenon could prevent a parrot from singing “I’m bad” or a monkey from writing Hamlet. Men have to come up with that and hit the poor animals with a stick.

I believe Hoppe’s argument wasn’t necessarily that conflict resolution is the justification of property. It could very well be a byproduct. Or that conflict resolution is a necessary condition, not a sufficient one, for rights.

I do not like the term “scarce” when used in the context of property, I prefere “rival”. Non-rival does not imply infinite supply or zero cost (as non-scarce seems to, which confuses people).

IP socialism would be if you were forced to disclose information or provide services against your will without an underlying contract. For example some of the people in the Free Software movement would like it to be compulsory for everyone to supply source code if they distribute binaries. Or make DRM illegal. In my opinion it would be more accurate to describe that approach as IP socialism.

If I was to accept Hoppe’s definition of IP (and its non-overlappingness with the material world), in that case my position might be described as IP socialism: If an immaterial good is not a subject to a contract you aggreed to, you can consume it unrestricted. But I don’t aggree with Hoppe’s definition, because that shifts the focus into externalities (i.e. utilitarian approach).

If you insist that your approach is natural, how do you naturally set boundaries of this immaterial property? What about the objections I wrote about in previous posts? E.g. translations, paraphrasing, change of form, usage by ownerless animals and machines? What if person A says “aguya beal afiruq” and person B says “oh, that gives me a great idea”, does that mean person B is using A’s property?

Cheers,
Peter

ktibuk October 28, 2009 at 6:51 am

Peter Surda,

Firstly I claim Hoppes definition of property is “tainted” with positivism. It is clearly not totally positivist, or he would be a socialist.

Secondly, natural law doesn’t say men is totally irrelevant. Of course men is always in the middle. Reality may be independent of men but it certainly relates to men. We are all men after all and we are the ones thinking and arguing about these issues.

The product itself (not only IP but also tangible property) may be the creation of the mind but the law regarding IP is not a creation of men. At least not all. Patent laws for example are the result of a positivist approach to a natural law subject. That is why they are always at the center of attack. And this is not unique. There are millions of written legal code based on natural law but perverted by positivism.

But according to Hoppe not only property is mens making but laws regarding property, or property rights are mens making. They are means to an end. And that end is, as clearly stated, a conflict free world.

Again.

Laws are not made to resolve possible conflict, but conflict arises only when at least one party disregards natural law.

Peter October 28, 2009 at 7:01 am

Positivist claim, laws are made to reach an end, in this case a broad goal “resolving conflicts”.

Natural law theorists claim, laws are not made, they are discovered and conflicts arise only when some individual disregards natural law.

These are not conflicting ideas as you claim; the natural law theorist (at least, the sensible ones) are not claiming there’s some sort of Platonic reality in which “laws” are floating around waiting to be discovered by physicists, which is what you’re implying here.

Peter Surda October 28, 2009 at 8:19 am

@ktibuk

> Firstly I claim Hoppes definition of property is
> “tainted” with positivism.
I don’t agree. I think you are misinterpreting his arguments and have not thought about the article thoroughly. I have read some of his previous work. He clearly makes a distinction between the normative and the positive but his wording is often overly complicated and takes time to comprehend correctly.

> Secondly, natural law doesn’t say men is totally
> irrelevant.
In a way, they are. There is a distinction between being an originator of the law and being a passive observer of the law. A passive observer is not the cause of the law.

> The product itself (not only IP but also tangible
> property) may be the creation of the mind but the
> law regarding IP is not a creation of men.
After all this time you have failed to explain how it is anything but. As I said previously, IP is only the right to exclude, not the right to use and trade. So, how is the right to exclude using immaterial goods not a creation of men? How is it anything but a utilitarian experiment?

> But according to Hoppe not only property is mens
> making but laws regarding property, or property
> rights are mens making.
Again, misinterpretation. Hoppe knows the difference very well, probably better than either of us.

> Laws are not made to resolve possible conflict,
This is redundant. Natural law (should it exist) wouldn’t be created by men, and men’s law obviously has conflict resolution as one of the aims.

> but conflict arises only when at least one party
> disregards natural law.
No. Conflict arises whenever there is a disagreement over the use of scarce resources. It doesn’t matter what the rights are or should be. You are probably mistaking conflicts for injustice. That’s not the same thing.

Cheers,
Peter

Michael A. Clem October 28, 2009 at 10:39 am

I’m not going to defend Hoppe, other than to say I think you’re misinterpreting what he’s said. It would be absurd indeed for an anarchocapitalist to rely upon positivistic law for the foundation of an anarchocapitalist society. Natural law is more about human nature and how people interact with each other based upon that nature rather than about any particular legal system that may be built upon that.
But to get back to the topic of IP, if it requires posivitism to have IP, then it is clearly unnatural and could not exist without an authoritarian government. However, the assumption that a creator cannot profit without IP is just that, an unwarranted assumption. There are, and may be, many different ways to profit. If an idea is worth something to someone, the market will value it and treat it accordingly. People will profit from their ideas. The mistake is in thinking that these ideas must be considered “property” and/or that some positivistic law must exist in order for people to profit from their ideas.
An unskilled laborer is valued for the labor he does–showing up for work and punching in on the timeclock is merely a prerequisite for the labor he does. Likewise, having an idea, however unique it may be, is still just a prerequisite for implementing the idea and making a profit from it–the profit comes from how the idea is used, not merely for having the idea.

Michael October 28, 2009 at 6:16 pm

@ktibuk

I can’t make any sense out of your argument. Hoppe’s recognition of conflict as a necessary (but not sufficient) condition for property rights. Natural rights come out of the nature of things. The nature of our existence includes multiple persons who can come into conflict with one another. I don’t see how this is problematic.

Perhaps you can answer this question: How are property rights going to matter if there’s only one person on earth? How exactly would you conceive of natural rights in this situation in a way that would actually matter?

I also have never seen your definition of positivism used in philosophy or in the legal profession. Where are you getting this stuff?

Greg October 28, 2009 at 7:19 pm

Either there is a property right to matter or a property right to patterns. Both cannot exist at the same time.

“Intellectual property” rights would be rights to patterns. They would be superior to rights to matter, because rights to patterns would include rights to matter.

Rights to patterns are therefore not compatible with libertarianism.

ktibuk October 29, 2009 at 2:57 am

I am not misinterpreting anything since the assumption, the axiom, at the root of this “property theory” is quite simple and already quoted and repeated endlessly by IP oppononents.

“”In other words, assuming that scarcity is the reason for conflict over goods with competing interests[4] and that the very function of property rights is to solve these conflicts peacefully”

Thus the conclusion,

“there is no need to provide property rights for intellectual property, because intellectual goods are not scarce.”

I am challenging the assumption. I am saying it begs the question and I am also saying this is a typical positivist approach to law.

And actually Michael asked the relevant question which I have brought up many times..

“Perhaps you can answer this question: How are property rights going to matter if there’s only one person on earth? How exactly would you conceive of natural rights in this situation in a way that would actually matter?”

If the reason for property is the possibility of conflict amongst individuals, how can Robinson Cruseo homestead anything and make anything his property?

Property is property whether there is one person or many. It is dictated by nature, by reality. If humans doesnt homestead and use natural resources they can not stay alive.

The core property, self ownership, is also dicated by reality not the whims of men. Even a slave is ultimate decision maker. He can rebel at anytime because he is in total control of his actions, he k-just choses not to rebel because of the possible consequences.

This is not so because, people got together and decided each would have total and ultimate control over themselves because there may be conflicts otherwise. This is so because it is. And conflicts arise when someone else tries to enslave another because this action is against the laws of reality, nature.

Coming back to IP.

There is positivism in IP law, and I never denied it. All laws are tainted with it but the most perverse is patent laws. Patent law is natural law, perverted by positivism Also there are problems with copyright laws like time limit on ownership.

But the core IP, the basic right to be left alone, is a natural right as any other.

You can not arbitrarily dismiss it because you think you can make the law and decide what is a natural right or not.

Peter Surda October 29, 2009 at 4:37 am

@ktibuk:
Even if we assume that everything you write (about property making sense even if there are no people) is correct, you still haven’t explained how IP follows from nature. I can maybe see how you can “kind-of-homestead” an immaterial good (in a very narrow sense), but how can you naturally deduce its boundaries? There is no natural connection between an original and a copy, translation, paraphrasing, format change etc. That connection only exists in people’s minds and that contradicts your original assumption that it is independent of them.

How do you prove that the immaterial “property” they use is identical? The only thing you can do is to compare some physical manifestations and try to interpret them.

Without men (or aliens, whatever), there is no interpretation. Without interpretation, there are no boundaries. Without boundaries, there is no exclusion. Without exclusion, there is no IP. Therefore, without men there is no IP.

Cheers,
Peter

Shay October 29, 2009 at 5:11 am

ktibuk wrote, “If the reason for property is the possibility of conflict amongst individuals, how can Robinson Cruseo homestead anything and make anything his property?”

I think that it is meaningless until someone else arrives on the island. At that point, Crusoe has effectively already homesteaded the island.

“Property is property whether there is one person or many. It is dictated by nature, by reality. If humans doesnt homestead and use natural resources they can not stay alive.”

I tend to think of property ownership as simply meaning whoever has the ultimate decision about its use, and whatever it is cannot be used for more than one thing simultaneously. So a lone person inhabiting a place is effectively the owner of it all, unless perhaps there’s a fierce lion that won’t let him near a certain place. If there is a state that can take “your” property if you don’t pay taxes, for example, then the state effectively owns it and is simply allowing you some input on its use.

“This is not so because, people got together and decided each would have total and ultimate control over themselves because there may be conflicts otherwise. This is so because it is. And conflicts arise when someone else tries to enslave another because this action is against the laws of reality, nature.”

But the aspect of conflict is an explanation of how such laws come into existence. There wouldn’t be any if there weren’t the aspect of conflict. If there were no issue of deciding who decides what is done with something, then what would property mean? It’s all about the potential conflict when more than one person wants to decide what is done with something.

Peter October 29, 2009 at 7:26 am

“In other words, assuming that scarcity is the reason for conflict over goods with competing interests[4] and that the very function of property rights is to solve these conflicts peacefully”

Thus the conclusion,

“there is no need to provide property rights for intellectual property, because intellectual goods are not scarce.”

I am challenging the assumption.

Which assumption? That scarcity is the reason for conflict over goods with competing interests or that the function of property rights is to solve conflicts peacefully? Both seem self-evident…what is your argument?

Peter October 29, 2009 at 7:29 am

This is not so because, people got together and decided each would have total and ultimate control over themselves because there may be conflicts otherwise.

Oh, is that what you’re arguing with? Well, sure; you’re right…but nobody ever made the claim you’re disputing! “The function of property rights is to resolve conflict” is not the same as “some people decided to make up property rights to resolve conflict” (after all, any process could do that!)

Abhilash Nambiar October 31, 2009 at 9:41 pm

This article is all muddled up.

Ed Plant December 11, 2010 at 5:04 pm

This article is, I’m afraid, quite confused. The conclusion makes little sense. If intellectual property exists but can’t/shouldn’t have any effect on the material world, then it’s a wholly meaningless and pointless concept. No advocate of IP would accept it having no effect on real property. It’s not only pointless but confused and misleading, since a property right in a non-scarce resource which can never be acted upon is no property right.

Kinsella made a strong argument that real and intellectual property rights are incompatible with one another. This author references Kinsella but unfortunately proposes the very contradiction that Kinsella highlighted.

Disappointing.

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