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Source link: http://archive.mises.org/11020/intellectual-property-and-libertarianism-liberty-magazine/

“Intellectual Property and Libertarianism,” Liberty magazine

November 11, 2009 by

My article Intellectual Property and Libertarianism was published last month in Liberty magazine (December 2009 issue). This article is based in part on a speech at Mises University 2009 (July 30, 2009; audio; video) and also on my What Libertarianism Is, which contains references not present in the Liberty paper (as does The Case Against IP: A Concise Guide). A version with endnotes appeared here in Mises Daily.

{ 42 comments }

Warren Farrell November 11, 2009 at 11:48 pm

WHY MEN ARE THE WAY THEY ARE

T. Ralph Kays November 12, 2009 at 12:29 am

Very powerful article, kudos.

Beefcake the Mighty November 12, 2009 at 7:26 am

Great article, crappy formatting; is there a more streamlined version (i.e., without all the stuff from Liberty in there)?

Also, who wants to bet on how long it takes Silas Bart-hole to come here and make his usual inane and obnoxious comments?

Peter Surda November 12, 2009 at 8:42 am

Dear Stephan,

I have not finished reading your article, but I already spotted a problem:

“… there are millions of dollars in copyright liability imposed on consumers for downloading a few songs.” (emphasis added)

As far as I know, this is incorrect and I am wondering why you claim otherwise (being an expert and stuff). My research shows that all these widely publicised cases were due to uploading (i.e. distribution/publication in legalese), and none were due to downloading. This trend is even consistent across countries (I checked US and EU). I personally saw a couple of C&D emails, and read the official trial documents and they support my conclusions.

So how is it? I am not necessarily claiming that downloading is legal (it probably depends on the country’s law), rather that either
- it is much more difficult to pursue a case based on downloading, or
- its (il)legality has not been tested in court yet

Cheers,
Peter

Stephan Kinsella November 12, 2009 at 9:41 am

Beefcake the Mighty:

“Great article, crappy formatting; is there a more streamlined version (i.e., without all the stuff from Liberty in there)?”

A Mises Daily version is forthcoming — with tons of references and links. If you want to see the Word file of that, email me.

Peter Surda:

“”… there are millions of dollars in copyright liability imposed on consumers for downloading a few songs.” (emphasis added)

“As far as I know, this is incorrect and I am wondering why you claim otherwise (being an expert and stuff). My research shows that all these widely publicised cases were due to uploading (i.e. distribution/publication in legalese), and none were due to downloading.”

You may be right. I was thinking of the Jammie Thomas case where she was accused of “unauthorized downloading and ‘sharing’ of 24 sound recordings on Kazaa.” The “sharing” part might be essential and might imply uploading; I’m not sure, as I don’t use all those half-*ssed services–I buy all my media. But the details are not important. The point is the IP laws are out of control; but I may add “and sharing” to the Mises Daily version at that point, as you suggest.

But if anyone thinks there is no potential liabilty–and big liability–for mere downloading of songs, think again. The insanity of the IP parasites knows no bounds. Take a look at these pieces by law professor John Tehranian, where he shows that, in one day, a typical user infringes the copyrights of emails, paintings, articles, photos, etc., committing at least eighty-three acts of infringement, and incurring liability in the amount of $12.45 million (plus possible criminal charges) … or up to $4.5 billion in potential damages each year.

So am I overstating the potential liability for downloading? I don’t think so.

And it’s only going to get worse. Have you seen the draconian provisions of the secret copyright treaty?

Peter Surda November 12, 2009 at 11:52 am

Dear Stephan,

thanks for the reply. Just to avoid misunderstandings, I am fully on your side. I merely think that the effort to get rid of IP is too important to allow others to attack an argument based on a technicality which is irrelevant from the broad perspective.

Actually Capitol v. Jammie Thomas was one of the cases that I read some of the court documents about and they were only about “sharing” (i.e. uploading). There have been even more ridiculous cases, an elderly couple in Germany had an unsecured wireless access point and someone (undetermined who) used it to share some rap songs while they weren’t at home. The rapper went to court over a C&D they didn’t want to sign and they lost. The court said that it doesn’t matter that they didn’t actually share anything, they were ordered to pay the court costs, not to distribute the rapper’s songs and in case of repeated offence have to pay up to 250k EUR or go to prison for half a year. If you are interested in details, you can google “12 O 195/08″ (that’s the court case number), but the text will be in German.

Since you have undoubtedly much more experience in IP than me, can you recall a case where suing for downloading has been tested in court?

Cheers,
Peter

Shay November 12, 2009 at 12:14 pm

The point here is that unauthorized non-commercial copying by individuals has resulted in astronomical fines.

Martin OB November 12, 2009 at 12:53 pm

Nice article, Stephan, as always.
There’s just one thing that nags me, which is the insistence that libertarians must unconditionally accept the first-comer homesteading doctrine, what I like to call the all-you-can-fence policy. I’m generally in favor of the homesteading rule, but only insofar as no-one abuses this right to deprive others of their share. I think most people in a libertarian society could agree to a combination of homesteading and sharing out of natural resources. The vision of a fencing spree that would result from the strict enforcement of the first-comer rule seems ridiculous and unfair. Besides, I’m not very impressed with the arguments. For instance:

“If the earlier possessor of property did not have a better claim than some second person who wants to take the property from him, then why does the second person have a better claim than a third person who comes later still (or than the first owner who tries to take it back)? ”

That’s a false dichotomy. You can deny that the first person, by being first, has an absolute better claim than the second person, without implying that the second person has an absolute better claim than anyone else.

In my opinion, you don’t need to focus on homesteading to debunk IP. It’s enough to agree that everyone has a property right to his own body and some reasonable share of resources (how much, and why, may be left for another discussion). If you own your resources, you have the exclusive right to control them. But an IP owner can control the resources of everyone else, as far as his IP is concerned, so IP is incompatible with the existence of substantial physical resources owned by anyone other than the IP owner, that is, incompatible with any reasonable, non-trivial distribution of physical property.

Given that IP is incompatible with physical property, one may wonder whether a society is possible where only IP exists, and no physical property. In this society each person would own a set of ideas instead of a set of physical objects. The problem is that ideas and patterns are useless without an embodiment, which requires scarce physical resources. So, this society would end up having to deal with some hampered version of physical property as well. Physical property without IP is clearly possible (indeed, strictly speaking they are incompatible), but not the other way around.

Besides, if property is defined as “the exclusive right to control something”, it can only apply to mutable things, like physical objects. To control something is to decide whether and how it changes. Ideas and patterns don’t change, they just “are”. If it were possible to “use” a physical object without an impact on its availability for other purposes, then there would be no violation of property. For instance, if you own a bonfire, your neighbors may benefit from the heat, free of charge and rightly so.

scott t November 12, 2009 at 1:11 pm

“Question: Does the fair use doctrine permit individuals to upload and download digital audio files containing copyrighted music through a file-sharing service that facilitates transmission and retention of the files by its users?
Answer: The courts that have considered this issue to date have held that this type of “peer to peer file sharing” violates the copyright owner’s exclusive right to reproduce their copyrighted material and does not constitute a fair use.”

http://www.chillingeffects.org/dmca512/notice.cgi?NoticeID=1489

if the above info is true, perhpas its the peer to peer sharing that the courts determined to be unfair use and not so much the up or down-loading question. sharing is a two way street, right?

Stephan Kinsella November 12, 2009 at 2:20 pm

Surda: “Since you have undoubtedly much more experience in IP than me, can you recall a case where suing for downloading has been tested in court?”

No; I don’t keep an exhaustive or categorized listing of all this. There is just too much — it’s obvious there are blatant rights violations left and right.

Silas Barta November 12, 2009 at 2:24 pm

Hm. Don’t see any mention of the equally-unlibertarian electromagnetic spectrum rights.

Wonder why that might be…

Oderus Urungus November 12, 2009 at 3:10 pm

Silas Barta writes:

“It is true (as many, many will remind me) that to broadcast at the same frequency as someone else “interferes” (!) with their “signal” (!). However, your judgment that there is “interference” is itself an arbitrary value judgment about the merit of someone’s intended use. In exactly the same way, copying someone’s ideas can interfere with their intended use.”

This is totally false. An intended use is
one that depends only on my will, not
the will of others. There is no intended
use by the initial manifester of some
idea that can be precluded by a
subsequent manifester of that same
idea. I manifest some idea in some
factors of production; these factors
can be put to the same intended
use after an imitator comes along as
they could before that imitator comes
along. I can still enjoy the output from
those factors (always contingent on not
infringing someone elses physical
property) regardless of the presence of
an imitator. I can still *try* to sell those
factors, regardless of the presence of
an imitator. It is true, that I might not
get the hoped-for selling price because
of the presence of a competitor, but so
what? Libertarians don’t generally hold
that there are rights to value. I can
always unilaterally try to sell my nifty
idea, but to consumate the sale
requires the agreement of another.
Silas Barta would seem to support
preventing consumers from buying
from an inventor’s competitors; why
not simply support compelling
consumers to buy from the inventor to
begin with?

Does Silas Barta believe that there are
rights to value? If so, well, he’s wrong,
but more pertinantly, if not, his analogy
between EM and IP fails.

Buzungulus Unleashed November 12, 2009 at 3:11 pm

Silas Barta is the intellectual equivalent of a hairy musket.

T. Ralph Kays November 12, 2009 at 3:14 pm

The electromagnetic spectrum is a scarce resource amd is subject to private property rights. The governments appropriation of control over the airwaves is another example of their trampling on property rights and has resulted in all of the problems predicted by libertarian theory when property rights are not respected.

Peter Surda November 12, 2009 at 3:25 pm

Dear Silas,

you haven’t replied to my last post in your blog. So let me reiterate. You claim that IP and EM are similar, because in both cases, excluding others has some benefits (you call it “merit”). Which is correct, but also irrelevant. Any restriction whatsoever has a benefit to someone. Does that mean they are equally right or wrong?

As a rebuttal, I claim that they are different, because exclusion of third parties is a necessary condition for consuming EM (and classical property), while it isn’t necessary for consuming immaterial goods. The inability to consume EM without exclusion of third parties is a result of physical phenomena and has nothing to do with merit, subjective evaluation or man’s will. For IP on the other hand all this is missing.

Cheers,
Peter

Andras November 12, 2009 at 3:32 pm

I just do not understand that train of thoughts.
Are blatant violations of property rights (even by the state) a proper call for elimination of property rights?

bob November 12, 2009 at 3:36 pm

As far as homesteading goes, I think a lot of people resort strictly to some legal doctrine or absolute principle. Butler Shaffer’s Boundaries of Order was more enlightening. The only method necessary to homestead any property is to convince those you desire to respect your property rights that you have such rights. The argument used is insignificant. Utilitarian or deontological moral persuasions, Lockean/Rothbardian homesteading principles, natural law, etc. can all be used, and may be varied depending upon a specific audience. I suppose brute force could also be used, although such is more likely to produce a system of control by possession/security rather than by lawful implementation of property rights.

Obviously, some scarce resources may be more difficult to homestead than others. The example Shaffer uses is the only freshwater source on an island that several people find themselves shipwrecked upon. Obviously, the group will not respect a single individual’s absolute control over the resource. No one would respect his right to defecate in or otherwise taint the water, dooming their collective survival. Of course, they may allow an individual to control the resource so long as he uses such control in a manner that the group finds beneficial.

As far as “fence-what-you-can” vs. “sharing”, neither work perfectly. Shaffer points out, however, that individuals or private organizations rarely if ever implement a “fence-what-you-can” plan. It’s fairly easy to see why. It is not defensible ideologically, politically, or practically. The only way such mass ownership of resources ever comes about is through institutionalized brute force, which is particularly powerful under democracy. Government resource ownership is huge. No single private institution comes close. So the rogue homesteader is actually a non-problem.

It’s like a single kid at the party claiming all of the pizza as his. Principles mean nothing when no one will accept them, especially authority figures. That you can use force means nothing when you’re severely outnumbered. Of course if a grown up decides to do something similar, it would have a much greater chance of being respected.

Some people respect IP on moral grounds, some on utilitarian, some out of fear of law enforcement. Others don’t respect it. The state can only hope to enforce a severe minority of IP violations, and as time goes on, this will only get more severe. Also, more people will become more familiar with the methods to obtain content by avoiding IP law. Finally, the means by which the state and IP owners are enforcing IP is hurting their ideological support, as are the enormous riches of many IP holders. I don’t think the state is going to change at all, but as IP loses ideological support, I think the IP owners themselves will switch their distribution models; as it will simply be more profitable.

T. Ralph Kays November 12, 2009 at 3:38 pm

Wow, the trolls are thick today!

T. Ralph Kays November 12, 2009 at 3:51 pm

Bob

The example that you quote from Shaffer is seriously flawed. People shipwrecked on an island with only one water source would presumably have arrived at the same time. How then would one of them be able to “homestead” the water source before the others?
I am not sure, but I think you are combining two arguments here, that people might not respect claims to property is an issue every society must deal with regardless of their political slant. Deciding which principles will guide how property becomes owned is an entirely different question.

Beefcake the Mighty November 12, 2009 at 4:15 pm

“Wow, the trolls are thick today!”

That’s also my reaction whenever I see Silas Barta crop up.

T. Ralph Kays November 12, 2009 at 4:24 pm

And who is Andras? Learning about trolls for the first time is quite an experience, now if I can learn to spot them quickly…..

Beefcake the Mighty November 12, 2009 at 4:52 pm

T. Ralph Kays,

I don’t think Andras is a troll, although he seems to have great difficulty in crafting coherent sentences. Contrast him with Silas, who frankly is an internet stalker and is convinced he has stumbled upon a deep and important argument in support of IP, which (a) he hasn’t, because (b) it at most shows a flaw in Kinsella’s support of EM rights. Even at (b) he fails, yet every post on IP here he shows up, crowing about how he’s bested Kinsella and challenging his manhood. Silas is a waste of bandwidth (and also oxygen).

T. Ralph Kays November 12, 2009 at 5:03 pm

Beefcake

Thanks for the feedback, I admit I am now pretty much overly wary and I hope I didn’t offend Andras. I am sure that there is more to the definition of what makes a troll than I understand at this point. I have greatly enjoyed the chance to be part of some very cool discussions and have also been dismayed at encountering people who don’t want a discussion at all, just a chance to vent or draw attention to themselves. I am stubborn and have clearly pursued some threads beyond the point where a reasonable person would have said “enough”.

Beefcake the Mighty November 12, 2009 at 5:06 pm

BTW T. Ralph, you’ve made some great posts on other threads here, please keep up the good work!

Andras November 12, 2009 at 6:01 pm

Anti-Trolls: I did not get an answer to my question.
For an easier understanding:
Kinsella uses his ridiculous cases to rationalize his anti IP position. A parallel would be to use
missapplications of property rights, e.g., screwing GM bondholders by Ubama (which was upheld by the Supreme Court, the uber-STATE) for a battle cry against property rights.
What makes his argument better?
(He is the gatekeeper and can instruct his minions.)

Beefcake the Mighty November 12, 2009 at 6:12 pm

Andras,

Who’s Ubama? Is he any relation to Ubama bin Laden?

Saul Frugman November 12, 2009 at 6:19 pm

IP is a good way to stimulate the legal industry. IP pumps a lot of money into lawyers’ wallets. This boosts consumer spending, which increases GDP and creates jobs.

Ribald November 13, 2009 at 12:23 am

I agree with Kinsella’s conclusion, but I think the homesteading justification for IP’s illegitimacy has a few minor weaknesses (nothing seems to be in the way of homesteading information). The non-deprivation in the act of duplication implies an argument that I feel is stronger.

It goes like this: a set of copies of information cannot be called one object. IP implies that all identical (or even sufficiently similar) objects of information are a single object with a single owner. Another way to view it is that the uniqueness of a person’s property is also claimed to be his property. Either way, these claims have no meaningful justification that I can think of.

antiip November 13, 2009 at 4:00 am

It is either rights to patterns or rights to objects.

In other words: Rights to types or to tokens.

Or the rights to certain object classes or specific objects.

If you think that there are rights to patterns, than they are superior to the rights to objects (you could call for exceptions but that is in itself highly questionable).

IP rights would beat materialproperty rights.

antiip November 13, 2009 at 4:19 am

Oh and to Peter Surda:

There are to my knowledge no published cases in which persons were convicted for downloading copyrighted stuff.

The big cases worldwide are always for massive uploading/distribution (included in sharing) of copyrighted material. Even if it is mentioned downloading is not important for the fines.

The permanent mentioning of punishments for downloading appears to be part of a FUD strategy.

An important step in the criminalizing of unauthorized copying/distributing was the NET Act.

Some big cases:

http://arstechnica.com/tech-policy/news/2009/06/jammie-thomas-retrial-verdict.ars

http://arstechnica.com/tech-policy/news/2009/07/o-tenenbaum-riaa-wins-675000-or-22500-per-song.ars

You can see that many people don’t get the difference between downloading and distributing:

It say on the Ars Technica article concerning the cases against Joel Tenenbaum
“He was also evasive when asked if he regrets downloading music for free. “That’s really a loaded question,” he replied. “There are so many things that could have been different.”"

But it is cleary stated that the distributing part was the important part and what he got the fines for (not that I approve but one must be clear on this!).

Shay November 13, 2009 at 9:07 am

This reminds me of a joke from bash.org:

NES> lol
NES> I download something from Napster
NES> And the same guy I downloaded it from starts downloading it from me when I’m done
NES> I message him and say “What are you doing? I just got that from you”
NES> “getting my song back fucker”

Jay Lakner November 14, 2009 at 2:40 pm

The right to “intellectual property” is a direct contradiction of the right to physical property.

It should be clear that both cannot exist simultaneously.

If I own some type of “intellectual property” then that means I also have partial ownership of every piece of physical property in the universe.
Obviously the only way society can self-consistently implement IP laws is in the absence of physical property rights.
In such a society, economic calculation would be impossible.

Lysander November 14, 2009 at 9:55 pm

Why do some people have so narrow a concept of property? Yes, geographical boundaries are important, but they are not sacred. Even in the most libertarian regime, I couldn’t do whatever I liked with my property.

Do I even have unfettered rights over my own body? No. I am not free to sell myself into slavery. If I am a suicide bomber, I deserve to be arrested or even shot dead before I accomplish my mission. If I carry a deadly virus that will infect everyone I meet, then I should be halted. If I am about to throw a brick through a window in order to rob a house, I should be tackled.

Do I have unfettered rights over my land? No, I cannot use it in a way that threatens or undermines the property of others. I can’t excavate it to the point that neighboring blocks might subside. I can’t build a skyscraper so unstable that it might collapse on neighboring buildings. I probably shouldn’t stop EMS signals from passing through my land, or shoot down low-flying helicopters which are too noisy. If there is a right of way over my land, I have no right to barricade it. If the entire neighborhood stinks because of my blocked toilet, they could compel me to stop using it until it is fixed. If I store stolen goods in my garage, then the owners should have every right to go in and seize them. And if I make a business of copying CDs without permission of the owner then he, too, should be entitled to seize them.

In short, there are a thousand constraints on how we may use physical property. Using property as a means of stealing the brainchild of someone else seems to me one of the worst breaches of all.

People now grow up on the internet, and think nothing of downloading music. They don’t like to think of themselves as thieves, so they try to rationalize it. They insist that the copyright holders are wealthy, and that one extra download won’t hurt them. It sounds just like the arguments advanced by Congress for taxing the rich.

Yet serial downloaders get very upset if some hacker breaks into their computer and steals those racy pictures they took of their girlfriend, releasing them into the public domain. Can the copying of bit patterns actually be a form of theft?

Kinsella concludes:
A patent or copyright code could no more arise in the decentralized, case-based legal system of a free society than could the Americans with Disabilities Act. IP requires both a legislature, and a state.

No, IP does not. There can be a law against copying inventions, even if there is no state to register patents with. If I create something which some huge organization then mass-produces and sells in their own name, then I should be able to sue for royalties. If challenged in court, the burden of proof should be on the defendant to establish that he made the invention independently, and that he did not copy it from the true inventor. That is not the law, but it in the absence of legislative hijack, it might have been.

The first copyright statute was the Statute of Anne (1710). The question is, was there a prior right to literary property at common law? In 1774, a majority of 12 judges of the King’s Bench, Common Pleas, and the Exchequer held that there was. A majority of the House of Lords, however, denied this, and also ruled that the Statue of Anne would have taken away those rights in any case. At any rate, it is certainly false that copyright “could not arise in a case-based legal system”, since it very nearly did.

Sure, the state grants some crazy patents. But that’s no reason to throw out the whole IP bucket, any more than we should void private land-ownership because of some crazy rights granted to squatters.

Suppose that one man toils on his land, growing cabbages and cucumbers. Another toils in his study, refining an invention, or writing a novel. Why should we allow one man the fruit of his physical labor, while denying to the other the fruit of his intellectual labor? Both of them stand to lose their livelihood if thieves can steal from them with impunity.

Beefcake the Mighty November 15, 2009 at 7:36 am

It’s highly amusing to watch Lysander employ physicalist metaphors (like “brainchild”) in his defense of IP after decrying the limitations of viewing property in physical terms.

BTW, no libertarian would hold that property rights are “unfettered” in the manner Lysander puts forth; the exercise of such rights is always constrained by the non-encroachment of other’s property. Nice strawman, though.

Jay Lakner November 15, 2009 at 9:35 am

Lysander said:
**********
Why do some people have so narrow a concept of property?
**********

That’s a very good question to ask yourself Lysander.

There are two ways one can use their physical property:
A. In a manner which infringes on the physical property rights of others.
B. In a manner which does not infringe on the physical property rights of others.

Anti-IP libertarians deem that B should be perfectly acceptable and that A should be illegal.

Lysander, you seem to have such a narrow concept of property that you can’t differentiate between A and B.

**********
Suppose that one man toils on his land, growing cabbages and cucumbers. Another toils in his study, refining an invention, or writing a novel. Why should we allow one man the fruit of his physical labor, while denying to the other the fruit of his intellectual labor? Both of them stand to lose their livelihood if thieves can steal from them with impunity.
**********

You have to ask yourself here: What is an idea?

Every idea is built on previous ideas. Has not the author “stolen” the ideas upon which his novel is based? Has not the inventor “stolen” the ideas which his inventions extend upon?

As soon as you categorise an idea as a form of property do you not have to trace the origins of every idea ever conceived to determine rightful ownership?
Do we not have to determine the owner of “fire” to determine whether or not we are allowed to install heating devices in our homes? Do we not have to determine the owner of “huts” before we can even own our own homes?
Am I allowed to type this sentence given that all the words in this sentence have been used before?

Please, enlighten me. Can you give me a strict framework for what is and what is not copywriteable and patentable. Which ideas can be “owned” and which ideas cannot be “owned?

I’d also like you to describe to me exactly how we determine for what period of time an idea can be owned by someone.

It would also help if you can reconcile your answers with the premise that a large proportion of human development occurs through imitation. Copying the behaviour and ideas of others is a major method by which human beings learn and grow. Your framework for an ‘intellectual property rights based society’ must also factor this in.

If there are self-consistent, non-contradictory, non-arbitrary answers for these questions, then I’d certainly like to hear them.

Shay November 15, 2009 at 10:49 am

Lysander wrote, “Do I even have unfettered rights over my own body? No. I am not free to sell myself into slavery. If I am a suicide bomber, I deserve to be arrested or even shot dead before I accomplish my mission.”

What does this have to do with rights over your body? A libertarian would have no problem with you blowing yourself up in the middle of an empty field. If you did so around other people, it’d be little different than taking a gun out and shooting them, which is infringing on their rights to their own bodies.

“If I carry a deadly virus that will infect everyone I meet, then I should be halted. If I am about to throw a brick through a window in order to rob a house, I should be tackled.”

What the hell does this have to do with rights over your body? You are doing things that affect others. It is true that liberty when there’s more than one person in existence implies limitation as compared to when there is nobody else; it’s a limitation on my freedom that I can’t punch in front of me when you happen to be standing right there. I think most people understand this limitation and don’t actually think that therefore the idea of liberty is useless.

“Do I have unfettered rights over my land? No, I cannot use it in a way that threatens or undermines the property of others. I can’t excavate it to the point that neighboring blocks might subside. I can’t build a skyscraper so unstable that it might collapse on neighboring buildings. I probably shouldn’t stop EMS signals from passing through my land, or shoot down low-flying helicopters which are too noisy. If there is a right of way over my land, I have no right to barricade it. If the entire neighborhood stinks because of my blocked toilet, they could compel me to stop using it until it is fixed. If I store stolen goods in my garage, then the owners should have every right to go in and seize them.”

With you so far…

“And if I make a business of copying CDs without permission of the owner then he, too, should be entitled to seize them.”

Why? Let’s say the “owner” lives on the other side of the world and never knows of your copying business. What harm have you done that would entitle him to your property? He could examine all his property and find none of it missing or damaged, so what is the deal? Maybe you’d argue that if later he tries to sell his CDs in your area he’ll find no buyers, and therefore you “stole” his market, but what if instead of copying his CDs, you made your own competing CD that also had the same effect on his market? Or what if you persuaded people that live music was superior, also destroying his potential market?

“In short, there are a thousand constraints on how we may use physical property. Using property as a means of stealing the brainchild of someone else seems to me one of the worst breaches of all.”

You have over-simplified things. Your argument seems to be that 1) absolute liberty isn’t possible; people cannot do absolutely anything with their physical property, 2) a person’s intellectual property likewise imposes some restrictions on what you can do with your physical property, 3) therefore, if one objects to intellectual property, one must also object to any limitations on what one can do with his property, including murdering other people.

“People now grow up on the internet, and think nothing of downloading music. They don’t like to think of themselves as thieves, so they try to rationalize it.”

Maybe they can observe that when someone else downloads something from them, they lose nothing, and thus rightly conclude that downloading is fundamentally different than someone stealing something from them. As an example, do you know how many times I’ve copied the text of your message while replying? Did I copy it 1 time, or 1000000 times? You can’t tell, because it doesn’t burden you at all.

“Yet serial downloaders get very upset if some hacker breaks into their computer and steals those racy pictures they took of their girlfriend, releasing them into the public domain. Can the copying of bit patterns actually be a form of theft?”

What you describe is invasion of privacy, not theft.

“Suppose that one man toils on his land, growing cabbages and cucumbers. Another toils in his study, refining an invention, or writing a novel. Why should we allow one man the fruit of his physical labor, while denying to the other the fruit of his intellectual labor? Both of them stand to lose their livelihood if thieves can steal from them with impunity.”

Let’s say both men spent 6 months on the above tasks and wanted to sell the fruits of their labor. Would you have any problem with each receiving a similar amount of money for them, and after that point, not owning them any more? The buyer of the cabbage and cucumber perhaps makes meals at a restaurant and sells them, the buyer of the invention plans makes the item and sells them, and the buyer of the manuscript prints copies and sells them. None of the buyers send any more money back to the original sellers. Would you have any problems with this?

Jay Lakner November 15, 2009 at 11:01 am

Nice work Shay :)

Lysander November 17, 2009 at 8:08 am

“If you did so around other people, it’d be little different than taking a gun out and shooting them”

The difference is that, in my examples, aggression against me would be justified even BEFORE I committed a physical act of aggression against someone else. That is a fairly strong restriction on my liberty.

“I think most people understand this limitation and don’t actually think that therefore the idea of liberty is useless.”

Of course it’s not useless. Nor is the idea of liberty discredited by a limitation on copying and reselling pirated DVDs.

“Let’s say the “owner” lives on the other side of the world and never knows of your copying business. What harm have you done that would entitle him to your property?”

At common law, trespass is actionable regardless of whether harm is done to the land. Or would you have it otherwise?

“What you describe is invasion of privacy, not theft.”

If you accept that there is an act of aggression known as “invasion of privacy”, then that is a monumental blow to liberty, far greater than anything I envisaged. Can I not even direct my binoculars wherever I wish?

“the buyer of the invention plans makes the item and sells them, and the buyer of the manuscript prints copies and sells them. None of the buyers send any more money back to the original sellers. Would you have any problems with this?”

Yes (aside from the pedantic observation that according to you the invention plans are not property and therefore cannot be bought). The inventor or author is short-changed because the distributor will pay him only what the first issue is worth. The subsequent owners can buy them just for the cost of manufacture. That would not fund the inventions with long lead-times but universal benefits.

Lysander November 17, 2009 at 8:21 am

Jay Lakner writes:

“describe to me exactly how we determine for what period of time an idea can be owned by someone.”

This question was debated intensively in the 18th century. Samuel Johnson argued strongly against a perpetual right. 50 years was about right:

By these regulations a book may continue the property of the authour or of those who claim from him about fifty years, a term sufficient to reward the writer without any loss to the publick. In fifty years far the greater number of books are forgotten and annhilated, and it is for the advantage of learning that those which fifty years have not destroyed should become bona communia, to be used by every scholar as he shall think best.

In fifty years almost every book begins to require notes either to explain forgotten allusions and obsolete words; or to subjoin those discoveries which have been made by the gradual advancement of knowledge; or to correct those mistakes which time may have discovered. Such notes cannot be written to any useful purpose without the text, and the text will frequently be refused while it is any man’s property.

Jay Lakner November 18, 2009 at 1:18 pm

Lysander,

You have not worked from fundamental assumptions.
You have not set out a framework for what ideas can and cannot be owned.
You have given me a completely arbitrary answer to the “period of time” question.
You have not addressed the human characteristic of learning through imitation.

Goodbye Lysander.

Dave December 18, 2009 at 4:02 pm

The Bare Bones fact is that once the choices were made to put EVERYTHING in a digital format, that is, one in which ANYTHING can be copied a zillion times with a few clicks of a mouse, the whole ball game changed and the old rules stopped applying. Think of an open-air bank with with no doors or vaults and, frankly, no applicable laws until the last few years. An extremely stupid choice given the nature of digital technology, and definitely a difficult genie to put back in the bottle. I wanted to see Sting last year, the tickets were over $300, and I thought, “If I believed Sting gave three hundred bucks worth of shit about me, I might go see the show.” And so it is with the recording industry. The notion, of course, being that if they can’t continually rape you for a vulgar profit, then your not a good sucker and therefore should be imprisoned. I say, “Fuck You, catch me.”

msouth June 2, 2010 at 4:58 pm

“The Bare Bones fact is that once the choices were made to put EVERYTHING in a digital format, that is, one in which ANYTHING can be copied a zillion times with a few clicks of a mouse, the whole ball game changed and the old rules stopped applying”

The only thing I see not applying is (apparently, in your opinion) logic. Nothing really changed, except that copyright became easier to violate. Instead of something where you would have had to pay for at least, say, copy machine toner, you can now violate it with a few clicks. You can violate copyright for no money, which made it a lot more popular.

Socialism has become more popular recently, but it hasn’t made it right. It certainly hasn’t made it constitutional. If you believe IP should not exist then amend the Constitution. Same thing I tel to socialized medicine’s advocates.

I am particularly distressed to see people who should be advocates of free market solutions slathering for a legal solution to this issue.

If you don’t like copyright, don’t use copyrighted works. It’s trivial for you to get out of the system. We can easily shut down every single movie house and recording company that puts their stuff out under copyright by simply not buying! This is easy and a freely available option.

Instead, people who supposedly value free markets wish to destroy one. We wouldn’t be more free if there was never another production along the lines of LotR or if operating systems like OS X never came into existence. No one forces you to use these products. If people don’t like the terms of use they are completely free to not use.

But they would not be free to see LotR if there was not a system in place that made it worth it, financially, to have metal smiths hand-forge more than 10,000 buckles for the Orcs. It doesn’t hurt anyone. It encourages people to create truly spectacular works of art, or, in the case of MacOS, software that dramatically improves the way other people work.

Who would invest millions in things like this if there was no chance for return?

And if you don’t like it, don’t watch/don’t use/don’t listen. The free market defense against these ideas is trivial to implement. Why mount a legal attack? People that advocate for the destruction of IP remind me of nothing so much as socialists that could easily create the kind of society they wanted if they just went to the effort of collecting enough people. Since that’s hard, they attack the rest of us and try to force it on us with the law.

Once they see the results of the money people have put in to produce things like AIDS drugs or whatever, they try to kill the goose that lays the golden eggs.

It’s amazing as it is disheartening–I would expect this from the left, but I thought libertarians were supposed to be the smart ones.

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