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Source link: http://archive.mises.org/11042/rand-on-ip-owning-values-and-rearrangement-rights/

Rand on IP, Owning “Values”, and “Rearrangement Rights”

November 16, 2009 by

In Jeff Tucker’s superb article If You Believe in IP, How Do You Teach Others?, he notes Rand’s increasing focus on exalting the creator and elevating “intellectual rights” to such a height that they totally trump real rights. This is no exaggeration. As I noted in Against Intellectual Property, Rand actually, incredibly said that “patents are the heart and core of property rights.” See also my post Inventors are Like Unto …. GODS….., noting Objectivist IP attorney Murray Franck approvingly repeating this quote: “intellectual property is after all the only absolute possession in the world.”

So, yes, Objectivists focus on the creation of value, and thus in rights in value, and explicitly drop the connection between property rights and scarcity. As I note in footnote 76 of Against Intellectual Property, Objectivist David Kelley wrote:

Property rights are required because man needs to support his life by the use of his reason. The primary task in this regard is to create values that satisfy human needs, rather than relying on what we find in nature, as animals do. . . . [T]he essential basis of property rights lies in the phenomenon of creating value. . . . Scarcity becomes a relevant issue when we consider the use of things in nature, such as land, as inputs to the process of creating value. As a general rule, I would say that two conditions are required in order to appropriate things in nature and make them one’s property: (1) one must put them to some productive use, and (2) that productive use must require exclusive control over them, i.e., the right to exclude others. . . . Condition (2) holds only when the resource is scarce. But for things that one has created, such as a new product, one’s act of creation is the source of the right, regardless of scarcity. [emphasis added]

Letter on Intellectual Property Rights, IOS Journal 5, no. 2 (June 1995), pp. 12-13 (including: David Kelley, “Response to Kinsella,” IOS Journal 5, no. 2 (June 1995), p. 13; and Murray I. Franck, “Intellectual and Personality Property,” IOS Journal 5, no. 3 September 1995), p. 7.

Thus, Objectivists will talk about man creating values. For them “a value” is a thing that exists; it’s what you “create”. For the Austrian and Austro-libertarian, you don’t talk about “a value” as if it’s an existing thing that you create. I don’t make a value. For us, it’s more of a verb: we value things as ends or as means to ends. We can make something more valuable by transforming it, but we do not create new property when we do this. As discussed in Intellectual Property and Libertarianism, creation is an important means of increasing wealth. As Hoppe has observed,

One can acquire and increase wealth either through homesteading, production and contractual exchange, or by expropriating and exploiting homesteaders, producers, or contractual exchangers. There are no other ways. [Hans-Hermann Hoppe, "Banking, Nation States and International Politics: A Sociological Reconstruction of the Present Economic Order,"Download PDF Review of Austrian Economics 4 (1990): pp. 55-87, p. 60. Emphasis added.]

While production or creation may be a means of gaining “wealth,” it is not an independent source of ownership or rights. Production is not the creation of new matter; it is the transformation of things from one form to another — the transformation of things someone already owns, either the producer or someone else.

By viewing “values” as things that we create, Objectivists then think there should be property rights in values. They are things, after all, right? But this is a fundamental mistake. As I noted in Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors, a common mistaken belief is that one has a property right in the value, as opposed to the physical integrity of, one’s property. For elaboration, see pp. 139-141 of Hoppe’s A Theory of Socialism and Capitalism; also see my comments re same to Patents and Utilitarian Thinking. This assumption sneaks into or lies at the basis of many fallacious notions of property rights, such as the idea that there is a right to a reputation because it can have value. It ties in with the (especially Randian) notion of “creation” as the source of rights, and the confusing admixture of the “labor” idea, when we talk about using our labor to “create” things of “value” (like reputations, inventions, works of art). As Hoppe notes in The Economics and Ethics of Private Property:

According to this understanding of private property, property ownership means the exclusive control of a particular person over specific physical objects and spaces. Conversely, property rights invasion means the uninvited physical damage or diminution of things and territories owned by other persons. In contrast, a widely held view holds that the damage or diminution of the value (or price) of someone’s property also constitutes a punishable offense.As far as the (in)compatibility of both positions is concerned, it is easy to recognize that nearly every action of an individual can alter the value (price) of someone else’s property. For example, when person A enters the labor or the marriage market, this may change the value of B in these markets. And when A changes his relative valuations of beer and bread, or if A himself decides to become a brewer or baker, this changes the value of the property of other brewers and bakers. According to the view that value damage constitutes a rights violation, A would be committing a punishable offense vis-à-vis brewers or bakers. If A is guilty, then B and the brewers and bakers must have the right to defend themselves against A’s actions, and their defensive actions can only consist of physical invasions of A and his property. B must be permitted to physically prohibit A from entering the labor or marriage market; the brewers and bakers must be permitted to physically prevent A from spending his money as he sees fit. However, in this case the physical damage or diminution of the property of others cannot be viewed as a punishable offense. Since physical invasion and diminution are defensive actions, they are legitimate. Conversely, if physical damage and diminution constitute a rights violation, then B or the brewers and bakers do not have the right to defend themselves against A’s actions, for his actions – his entering of the labor and marriage market, his altered evaluation of beer and bread, or his opening of a brewery or bakery – do not affect B’s bodily integrity or the physical integrity of the property of brewers or bakers. If they physically defend themselves nonetheless, then the right to defense would lie with A. In that case, however, it can not be regarded as a punishable offense if one alters the value of other people’s property. A third possibility does not exist.

Both ideas of property rights are not only incompatible, however. The alternative view – that one could be the owner of the value or price of scarce goods – is indefensible. While a person has control over whether or not his actions will change the physical properties of another’s property, he has no control over whether or not his actions affect the value (or price) of another’s property. This is determined by other individuals and their evaluations. Consequently, it would be impossible to know in advance whether or not one’s planned actions were legitimate. The entire population would have to be interrogated to assure that one’s actions would not damage the value of someone else’s property, and one could not begin to act until a universal consensus had been reached. Mankind would die out long before this assumption could ever be fulfilled.

Moreover, the assertion that one has a property right in the value of things involves a contradiction, for in order to claim this proposition to be valid – universally agreeable – it would have to be assumed that it is permissible to act before agreement is reached. Otherwise, it would be impossible to ever propose anything However, if one is permitted to assert a proposition – and no one could deny this without running into contradictions – then this is only possible because physical property borders exist, i.e., borders which everyone can recognize and ascertain independently and in complete ignorance of others’ subjective valuations.

Rand did have insights that militated against property rights in “values”; as she once wrote:

The power to rearrange the combinations of natural elements is the only creative power man possesses. It is an enormous and glorious power–and it is the only meaning of the concept “creative.” “Creation” does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. “Creation” means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before.

She should have realized that this means there cannot be property rights in value since this would have to mean property rights in arrangements or patterns, which would then give the owner of the arrangement rights in other people’s already-owned property. If she had kept her focus on the fact that rearranging already-existing property can indeed make that property more valuable, she would have realized that creation (rearrangement) is not an independent source of property rights: if you rearrange your own property, even if this makes it more valuable, you already owned the property that you have rearranged (made more valuable). Yet this does not give you rights in other people’s property. You can re-word the Randian view as follows: if you make your property more valuable, it gives you additional property rights–the right to prevent other people from making their own property more valuable. And this makes it all the more obviously flawed.

This is where the Misesian approach to subjectivist value makes sense: things have value to a valuer; values do not exist independently as free-floating things that can themselves be owned. And again, Rand should have recognized this; e.g., she once wrote, “Material objects as such have neither value nor disvalue; they acquire value-significance only in regard to a living being–particularly, in regard to serving or hindering man’s goals.” (For more on the compatibility between Objectivism and Austrian economics, see Mises and Rand (and Rothbard); Randian Hoppe(?), Austrian Rand(?).) So she should have realized that if rearranging owned property makes the owner or potential buyers value the object more, it does not mean there is any additional thing created for which we need to find an owner.

I think a similar mistake is made by Tibor Machan. Rand slips into thinking of values as ownable things because she thinks of values as created things, rather than thinking of it as a verb: people value things (and demonstrate this preference or valuing in action). I’m sure Machan would disagree with my way or framing his argument, but his argument, to me, seems to say that if you can have a concept for some”thing”, or a name or word for “it,” then it’s an ontological “type of thing,” and after all, if you create this thing, why shouldn’t you be “its” owner? The problem with this is it does not first ask: what is an ownable type of thing? Surely you can’t just say that any type of thing you can conceptualize or come up with names for is therefore ownable. I don’t own my wife just because I say she is “mine”; language does not determine normative reality. It is just a useful tool. If I use the word “poem” to describe a pattern of words that I wrote, and if I refer to the poem as an “it” and say things like “I created it” to mean that I moved my pencil in such and such a way on paper resulting in a certain configuration of letters, just because we arrange our concepts and words in this manner does not mean the poem is a “thing” that can be owned. In my view, all talk about “ontology” is just a fancy way of dressing up the fact that we understand the world conceptually, and use words of a language to denote those concepts. It does not imply that any thing I can happen to come up with a word or concept for is ownable. I have a concept of running; who owns “running”? There is math; who owns math? It is “a truth” that WWII began in a certain year. Who owns that fact? The point is that saying that you own the poem because you create it presupposes we are asking who the poem’s owner is. If that’s the question, then sure, the creator is a natural answer. But you only get to this question if we need to find an owner for the poem; if it does or can have an owner; if poems are ownable types of things. In my view, only scarce resources are ownable things. Something does not qualify for this status just because of the words we use–and saying something is “an ontological type of thing” doesn’t change this. (For more on this, see New Working Paper: Machan on IP; Owning Thoughts and Labor; this comment to “Trademark and Fraud”; Libertarian Creationism; also Elaborations on Randian IP and Objectivists on IP.)

Update: Note: I pasted into the end of this post my side of a looong debate with Randians about IP. It’s very illuminating.

{ 65 comments }

Lord Buzungulus, Bringer of the Purple Light November 16, 2009 at 5:01 pm

Brilliant point about viewing value as a verb as opposed to a noun. On a side note, I believe this is the essence of von Mises’ calculation argument: as value is not a thing or an entity, there can be no calculations in terms of value (as opposed to calculation in terms of money prices). See Huelsmann’s discussion of this in his biography of Mises. In this regard, the Randians are closer to the neoclassicists than the Austrians.

Silas Barta November 16, 2009 at 5:18 pm

She should have realized that this means there cannot be property rights in value since this would have to mean property rights in arrangements or patterns, which would then give the owner of the arrangement rights in other people’s already-owned property.

Yeah! Right on! That would be ridiculous! It would be like having a right to tell people what they can use for the settings on their radio transmitter! Hey — they OWN the transmitter. The issue is resolved! How can anyone possibly tell them they can’t transmit at this or that frequency. Property rights mean you can be told what to do with your transmitter!.

Ty November 16, 2009 at 5:48 pm

Silas,

You do whatever you want with a radio transmitter as long as you don’t violate someone’s homesteaded frequency. By your logic, why don’t we just ram our cars into each other since no one owns the paths our cars are taking? Or maybe we can agree to share the limited pathways the cars can take and not overlap simultaneous use of those pathways.

What is the principle that allows overlapping use of radio but not crashing cars into each other?

Or am I just not understanding what you are saying?

Ty November 16, 2009 at 5:49 pm

As far as IP goes, who do I make the check out to for inventing Fire? I use that almost everyday in one form or another. I would feel guilty if I wasn’t paying a licensing fee.

Silas Barta November 16, 2009 at 5:59 pm

How is crashing into someone’s car like broadcasting at the same frequency? What gives you the right to receive information over the EM spectrum? Why can’t you and I just be content to overlap each other?

Lord Buzungulus, Bringer of the Purple Light November 16, 2009 at 7:07 pm

Silas Barta is the intellectual equivalent of a child molester.

Ribald November 16, 2009 at 7:30 pm

Ty,

Presumably, people would not attempt to share the same paths on the road because their cars would get totaled. In the same vein, I think Silas made the implicit assumption that this would translate into the frequency spectrum as well, so that those with transmitters would avoid unnecessary interference by choosing different frequencies.

That assumption may or may not be correct (one can imagine interference being used to monopolize radio communications, for instance). In the same vein, someone might find advantage in blocking certain roads.

Can frequencies can be homesteaded, as land and roads can be? My view is that they can’t be, although a good case can still be made that interference is a violation of someone’s property rights (because someone else’s photons are harming the functioning of your receiver).

The controversy lies, I think, primarily in the fact that interference does not cause material damage while causing devices to function poorly (how can it be bad if nobody/nothing gets hurt?). If it did, everyone would be in absolute agreement.

Does inhibiting the function of someone’s devices constitute property damage by itself? On the one hand, a device can only potentially produce some good, and a potential something is non existent, so preventing a device from producing something is not itself enough. On the other hand, a person has the right to use his belongings, and the products of their use are arguably inseparable from their use. I feel that the latter is closer to the truth, if only for the fact that it seems to be the norm when it comes to the issue of inhibition of functionality (what devices are ok to inhibit?).

Lord Buzungulus, Bringer of the Purple Light November 16, 2009 at 7:35 pm

“Why can’t you and I just be content to overlap each other?”

Silas, you dumb-shit, aren’t you even faintly aware of the prior-later distinction that underlies the theory of property rights that libertarians like Kinsella espouse? Maybe you would disagree with it, but to be ignorant of it (or to feign ignorance of it) in this discussion is appaling. Here’s the answer to your question: one of the broadcasters broadcasts first, therefore his claim to broadcast at that frequency trumps subsequent would-be broadcasters. It is precisely in this sense that the EM spectrum is scarce, and hence ownable. Do your goddamn homework, you asshole.

newson November 16, 2009 at 8:00 pm

silas barta says:
“Why can’t you and I just be content to overlap each other?

when you emit audible frequency by talking, you don’t homestead that frequency, and others don’t have to observe silence (except when on your land).

good manners determine who talks and who is silent; or maybe we’re all boors and all talk at once, and don’t listen to each other. only when audible noise causes physical harm or nuisance (shouting in the middle of the night) do there exist grounds for an action in tort (no legislation required). freedom of speech is not a licence for waking the neighbourhood.

if audible frequencies are not ownable, why are em transmissions different in principle?

Bala November 16, 2009 at 8:07 pm

I have posted this earlier in another discussion thread, but thought it better to reproduce the relevant parts rather than reinvent the wheel (I’m copying from myself :) ). I am also posting this because I think Stephan is still nowhere close to an argument that could convince an Objectivist who reads this article. So, I am trying to put across what made me (a self-proclaimed Objectivist) reject Rand’s concept of IP (while continuing to be a self-proclaimed Objectivist).

My attempt is to show that starting from the basic premises of Objectivism can only lead one to reject the concept of IP and hence conclude that Rand was wrong to treat IP the way she did.

Actually, IMHO the problem faced by most people who call themselves Objectivists is the failure to see that Rand made a mistake on IP. In my assessment, her position on IP contradicts her own concept of Individual Rights.

Ayn Rand defined Morality as a code of values. As per Rand, the highest value to any man is his Life. Life is a sequence of self-generated and self-sustaining actions. The purpose of life is life.

To sustain life, man, like every other living being, needs to act. Since man’s concepts and values are not automatic, he needs to form them using his rational mind. The concepts and values thus formed help man identify the best course of action under any circumstance. The end result of this process of concept formation and thinking is action. The purpose of such action is to seek value – value that sustains his life.

To sustain his life qua man, man needs two fundamental conditions to be satisfied
1. The Liberty to form concepts based on the percepts he receives from his environment and
2. The Liberty to act on his choices
Preventing him from doing either of these is to condemn him to death.

The only way to infringe upon a man’s Liberty is to initiate force on him. Thus does the principle of “non-initiation of force” originate.

The concept of Liberty has a “positive” and “negative” aspect. The “positive” aspect is that a man may undertake any action as long as he is not initiating force against another man. The “negative” aspect is that others may not initiate force against him. This is the moral and political concept of Liberty.

The concept of property logically derives from the principle of Liberty thus outlined. Man is at liberty to seek the values he chooses either by gathering or by producing. As long as he is not initiating force against another man, no one may prevent him from doing so. Once he has acquired these values, there is only two ways to take the value away from him.

1. Trade with him – give him some other value in exchange for the value he has
2. Initiate force against him to make him give up the value for nothing or for some thing of less value

The former is moral because it preserves his Liberty. The latter is immoral because it is an infringement of his Liberty.

This, IMO, is the moral concept of Property Rights – not from labour; not from creation or anything else similar. The concept of Property is the recognition that initiation of force is not a proper means of dealing with other men.

Rand also said “Law is a means of subordinating society to Moral Law”. While this is a very nice statement, what she (IMO) missed out is that society to a man is just a certain number of other individuals and that the ONLY Moral Law that others need to follow with respect to an individual is to refrain from initiating force against him. She herself said that no man has any obligation to another other than respecting his individual rights.

In other words, the only Law that man needs is one that ensures that others do not infringe upon his Liberty and that if they do so, they will not get away with it. No law may be promulgated that violates individual liberty of those who have not violated that of others, even if it may claim to protect certain other rights.

Specifically on the point of Intellectual Property and the “copying” of inventions, Rand’s error was fundamentally to ignore the simple (though not obvious) point that in forming a concept, man is not initiating force against anyone else. This error is especially intriguing, coming from a person who have given a very sound epistemology of reason in her book “Introduction to Objectivist Epistemology”.

For instance, if you come up with an invention, incorporate it in a product and then sell the product to me, the first thing that happens is that the product becomes my property. When I subsequently study that product, I am not initiating force against you because I am engaging in a study of my own property. If in the process, I form the concept of how your invention works, I am completely at liberty to do so because I am acting as per my nature as man – a rational animal with a volitional consciousness seeking to organise his percepts into an intelligible system of interrelated concepts. If I then choose to give physical shape to the concept by arranging materials (which I procure by trading with those that have them, thus making them my property) suitably, I am being morally correct because surviving by producing value for consumption and trading is moral; it is the natural state of man.

The concept of IP seeks to hold as punishable, the act of forming concepts and acting on such concepts even though the process does not involve any initiation of force by the individual on any one else, least of all on the person who “produced” the idea. By seeking to initiate force on such men to restrain them from being human, it is a gross violation of their Right to Liberty.

To claim otherwise is either an error of omission (that goes for Rand) or an error brought on by a deliberate evasion of reality.

In sum, even if one uses Ayn Rand’s conception of Individual Rights, IP is an abomination because it is antithetical to the concept of Liberty.

A very simple inequality is very useful to condense my argument. The 3 key Individual Rights can be ranked on a scale of importance as

Right to Life > Right to Liberty > Right to Property.

This is a very simple inequality to understand. A look at the structure of the penal systems followed in civilised societies will give us a hint that this is indeed already implicitly accepted world over. Simple crimes are punishable with fines (loss of Property). Graver ones are punishable with imprisonment (loss of Liberty). The gravest ones are punishable with death (Loss of Life).

Individuals practice it too. When faced with a choice between Liberty and Property, people mostly choose Liberty (when people choose to give up wealth or the opportunity to seek it to fight for Liberty). When forced to choose between Life and either Liberty or Property, people choose Life unless not acting otherwise can lead to a painful life with no scope of Liberty ever in their life-time – An example is rich people leaving a lot of their wealth behind and fleeing for their life.

Thus, the only correct position (IMO) for an Objectivist to take is anti-IP.

Silas Barta November 16, 2009 at 8:32 pm

Could a moderator PLEASE delete Lord Buzungulus’s comments? Those are the very definition of what is not wanted here.

Bala November 16, 2009 at 8:34 pm

In fact, there is another simple way to understand why Rand was wrong on IP.

As per Rand, all Rights are Right to action. There is no such thing as the Right to a value or a thing. IP, on the other hand, is all about the Right to a “thing”.

The Right to “exclude” others when applied to IP is a right to violate their Liberty. Violation of Liberty is tantamount to enslavement. As per Rand, however, there can be no such thing as a ‘Right to enslave” coexisting with a “Right to Liberty” – Reality abhors contradictions. How can an Objectivist then reconcile IP with Individual Rights? IMO, never or by evading reality, i.e., by ceasing to be an Objectivist.

p.s. Applying the “Right to exclude” to physical property is different because it would translate into a retaliatory use of force – an attempt to take away physical property without the owner’s consent necessarily requires the initiation of force.

Lord Buzungulus, Bringer of the Purple Light November 16, 2009 at 8:38 pm

Actually, Silas, you’re a shining example of what’s not wanted here. Enough of your internet stalking.

T. Ralph Kays November 16, 2009 at 8:38 pm

Silas Barta

I find ALL of Lord Buzungulus’s comments interesting and enlightening, yours however…..not so much, to put it politely.

Lysander November 16, 2009 at 11:41 pm

Kinsella writes:
“She should have realized that this means there cannot be property rights in value since this would have to mean property rights in arrangements or patterns, which would then give the owner of the arrangement rights in other people’s already-owned property.”

Nonsense. You cannot lay claim to ownership of an arrangement or pattern if that pattern already occurs in other people’s property, because you would not then have the prior claim.

In its most fundamental form, the claim to copyright is a claim to a pattern. Books, photographs and movies in digital form are bit-patterns. A chromosome is a DNA pattern.

Of course there should not be property rights in “values”. Rand never said it, never implied it. Straw man.

Seattle November 17, 2009 at 1:18 am

A point that I think should be made with regards to “Property Rights.”

Property Rights don’t “exist” in the objective sense. When you lay claim to a piece of property, an “Ownership Particle” doesn’t entangle itself with it to solidify your claim.

Property Rights, and by extension all “rights” are human constructions. And, like all human constructions, they only exist to the extent people believe in and respect them.

With the exception of some certain State actors, people tend to respect and believe in property rights a lot. Why do they do this? Because property rights work.

Why do property rights work? Because of scarcity with regards to physical objects. There has been more than enough discussion as to why this is, but the important thing to remember is there’s no such thing as scarcity with regard to ideas.

It is THIS reason that IP “rights” should be abandoned and, in a free market would be, because simply they do not work! It doesn’t make any logical sense to apply a solution to a problem that doesn’t exist.

Bala November 17, 2009 at 2:07 am

Lysander,

” Nonsense. You cannot lay claim to ownership of an arrangement or pattern if that pattern already occurs in other people’s property, because you would not then have the prior claim. ”

You have misunderstood Stephan and I am responding because I expect him to respond as harshly as you have done.

Stephan’s point is that your laying claim to ownership of a pattern prevents me from modifying my property to create the same pattern on it, even though my doing so does not require any initiation of force against you by me. Preventing a person from acting as per the assessment of his rational mind can only be achieved by the initiation of force, thus violating his Liberty. Thus, your Right to your IP necessarily depends, for its implementation, on violation of my rights to Liberty and my right to property (which I may have owned owned before you even staked claim to the pattern under question). This is what he is objecting to.

Assuming that you are talking from the Objectivist view of IP, how do you reconcile the inherent conflict between one person’s IP and another person’s Rights to Liberty and Property? IMO, you cannot.

Further, from a very Objectivist point of view, IP constitutes a claim of a “Right to an object”, something Rand objected to very strongly. In Rand’s own view, all rights are rights to action. Thus, IP contradicts the Objectivist concept of Individual Rights.

Peter Surda November 17, 2009 at 6:41 am

@Silas:
Kindly respond to the objections wrote about with regards to your arguments.

I can state it again, this time using Stephan’s quote of Hoppe: property rights are violated when the integrity is damaged. If you send a signal over a frequency that is already used by someone, it damages the integrity of that other signal. Even if you use compatible encodings, it decreases the bandwidth available to the other person. This is a measurable phenomenon and doesn’t require any concept of value and is valid regardless of the rights being recognised by anyone. It doesn’t even depend on people existing at all. If there were for example two robots communicating and a sun eruption would disturb the signal, the signal would still be disrupted.

On the other hand, there is no equivalent phenomenon in IP. There is no integrity damage that can be measured. You can only measure changes of value, which you obviously cannot own. And the “violations” are very closely tied to the rights being recognised by other people. If noone (including the author/inventor) recognises IP, there is simply no violation/disturbance whatsoever.

Cheers,
Peter

Lord Buzungulus, Bringer of the Purple Light November 17, 2009 at 6:58 am

Lysander writes:

“In its most fundamental form, the claim to copyright is a claim to a pattern.”

How can someone claim a pattern? If you arrange factors of production into a particular pattern, and I arrange different (but validly owned) factors into the same pattern, where’s the conflict? There is nothing you could do with your factors prior to my identical arrangement, that you can’t do after my copying. You can still, e.g., use your factors for your own personal enjoyment, my copying prevents that in no way. I’m guessing, then, that what you mean is that if you planned to sell the output of those factors, then my copying induces competition for your output. That’s true, but so what? You have no right to revenue on the market; you are still free to *try* to sell your wares, either before or after a copier comes along. In no sense is there conflict between the scarce objects here, the real property: namely, the factors of production. Ultimately, non-utilitarian defenders of IP do support rights in value, I would say.

Peter Surda:

You’re gonna be waiting a long time for a response from Silas. He does nothing more than come here like a small child and squeal about he’s (alledgedly) found an inconsistency in Kinsella’s position. A total tool.

ktibuk November 17, 2009 at 7:44 am

A drunk woman has passed out. Deep a sleep. Some guy comes and has sexual intercourse with her.

There is no physical damage to the woman.

There is no conflict arising from scarcity of the physical, the body, since the woman has passed out and not using her body at the time.

Prove that this is an act of aggression and a crime using the same premises used to argue against IP.

Lord Buzungulus, Bringer of the Purple Light November 17, 2009 at 7:51 am

ktibuk,

Are you completely deranged? Of course the woman in your example is using her body, whether she’s sleeping or not.

Josh November 17, 2009 at 8:31 am

Silas’ point is well taken – it’s not easy to come up with an airtight definitions of “property”. Clearly “intellectual property” is over the line, but do you own the right to an EM frequency when you “homestead” it by transmitting information on it for the first time? I’d say no, but it’s an interesting question, and posts (like Buzungulus’ first in this thread) that consist entirely of ad hominem attacks merely detract from the discussion.

Lysander November 17, 2009 at 8:41 am

Bala writes:
“Stephan’s point is that your laying claim to ownership of a pattern prevents me from modifying my property to create the same pattern on it”

If you are referring to potential rather than existing patterns, then the question is not one of more or less liberty, but of whose property rights should take priority. If you accept, as I do, that intellectual property exists, then I am infringing the author’s property-rights by copying his patterns.

Your view is that each claim to ownership of a pattern restricts my liberty to do what I may with my property. I acknowledge the restriction, but I regard it as reasonable because the patterns could never have come into existence without their authors.

I accepted the restrictions on the potential abuse of my property when I bought it. I didn’t buy blank DVDs to bootleg films any more than I bought my gun to shoot my friends.

I also believe that homesteading does not confer an unfettered right to pattern-replication. For when you establish a homestead by developing a property, you do not thereby lay claim to all potential uses to which the land might be put.

If, for example, I develop land for farming, I do not thereby acquire rights to its airspace, or to its mineral rights, or to its airwaves, even if the technologies that use them were invented after I bought the land. The reason is that they are outside the scope of my homestead.

In each case we have conflicting claims. The claim to airspace, the claim to minerals, the claim to airwaves, the claim to patterns. In Mises’s words, “this is a problem of delimitation of property rights”. I do not think the problem can be decided by appeal to “natural” rights. Nor can it be decided by statistics, which can be bandied about endlessly. I think that the issue can be decided only by a priori argument based on utilitarian considerations.

Lysander November 17, 2009 at 8:43 am

Lord Buzungulus writes:
If you arrange factors of production into a particular pattern, and I arrange different (but validly owned) factors into the same pattern, where’s the conflict?

If you spend millions designing an automated factory, and someone else copies your blueprint, they can undercut you in the market. They do not have a huge R&D budget to factor into the price of the final product. They can send you broke.

Is the consumer better off? Yes, in the short term. No, in the long term. R&D won’t be worth the candle.

Silas Barta November 17, 2009 at 8:59 am

@T._Ralph_Kays:

I find ALL of Lord Buzungulus’s comments interesting and enlightening, yours however…..not so much, to put it politely.

Really? Even the one that did nothing but compare me to a child molester?

@Peter_Surda: I’ve addressed this point several times, so you already have an answer, but as usual, I’ll answer its latest manifestation.

property rights are violated when the integrity is damaged. If you send a signal over a frequency that is already used by someone, it damages the integrity of that other signal.

You have switched the sense in which you use the term “integrity is damaged” when applying it to this context, so the argument doesn’t carry over. “Damaging the integrity of a radio signal” is not the same as damaging the integrity of physical goods. As I explained on my blog, a radio signal’s “integrity” is only destroyed because some abstract assumption — relied-upon to communicate — is violated. It’s no different than if I started hitting a gong at a time when your friends were expecting no one else but them to hit a gong.

If you can have a right to this non-physical kind of integrity — the “integrity of assumptions remaining valid” — then you can have IP rights.

Lord Buzungulus, Bringer of the Purple Light November 17, 2009 at 9:03 am

Josh, you’ll see that my first post here (the first one in the thread) addressed value theory, not Silas. Re. ad hominem attacks, hey, if the shoe fits. Just adopting the libertarian standard of proportionality here.

Lysander’s scare stories about bankrupting inventors is totally irrelevant. Plainly lots of market actions can put people out of business; so what? No one has a right to collect money on the market, that’s the whole point of competition.

Stephan Kinsella November 17, 2009 at 9:49 am

“Lysander”:

Bala writes: “Stephan’s point is that your laying claim to ownership of a pattern prevents me from modifying my property to create the same pattern on it”

If you are referring to potential rather than existing patterns, then the question is not one of more or less liberty, but of whose property rights should take priority. If you accept, as I do, that intellectual property exists, then I am infringing the author’s property-rights by copying his patterns.

But patent rights do not require you to copy the innovator’s pattern. It only requires that the pattern you use (or method, recipe, technique, design) be similar to what the patentee has described in a document filed with the government. You may have independently invented the pattern. In fact, you may have invented it before the patentee. Still, if you use your own property in the way described in the patent, you are infringing the patent.

This is part of the problem: ignorant laymen libertarians pontificate about some vaguely described IP system. When you point out a particular application of it is unjust, they back down and say, “Well, well, of course, I don’t support that.” So… what do they support? Who knows. They can’t tell you. They can’t describe the system they support–after all, they’re not experts. They just think “innovation” should be “protected”.

For example if the nym Lysander here says that copying should have to be shown, he is unwittingly supporting an amendment to the existing patent system that would largely gut it–there is a reason that all the normal, mainstream advocates of the patent system would fight this change tooth and nail–because they understand the patent system, unlike ignorant libertarians who feel compelled to weigh in vociferously on something they know little about.

Lord Buzungulus, Bringer of the Purple Light November 17, 2009 at 9:57 am

Silas,

I did not compare you to a child molester. I said you were the intellectual equivalent of a child molester: a foul corrupter of youthful minds, who lacks any sense of decency.

Hope that clarifies things.

Lord Buzungulus, Bringer of the Purple Light November 17, 2009 at 10:52 am

Here’s a question for all those (e.g., Lysander) who are so worried about inventors being “undercut” on the market by copiers: won’t inventors also be harmed, monetarily speaking, if consumers refuse to buy their products? Putting out a product no one wants can send a lot of R&D dollars down the drain.

Here’s my question: if you’re so concerned about inventors, why not force consumers to buy their products in the first place?

snargles November 17, 2009 at 11:13 am

@ Silas:

The gong example is convoluted. Wavelengths can fit the definition of physical property rights because they are physical things! This goes for EM as well as all gongs. If someone hits a gong at you, they are inhibiting your physical enjoyment of your real property, your land! If however, they are shooting EM waves over your property, they are not.

If someone is the first to transmit over a specific frequency over an area, they can raise revenue from advertisers. Since it is mutually exclusive, an owner of a transmitter who would transmit over the same frequency and area, would negatively effect the revenue generating ability of the original transmitter, thus effecting his claim to a physical property right.

IP is none of this, and shouldn’t exist.

Silas Barta November 17, 2009 at 11:45 am

@snargles: You’re putting too much emphasis on the nuisance aspect of the gong. For purposes of the example, assume that, by the time the gong hits other properties, it’s relatively quiet and below nuisance level, but still audible if you listen for it. In that case, it does contain information but does not inhibit the enjoyment of others property.

Can people claim the right to inhibit others from interfering with their tradition of being the only gong-hitter at 8am? If not, neither can you inhibit others from interfering with your tradition of being the only one injecting information into a given frequency.

Silas Barta November 17, 2009 at 11:47 am

@Lord_Buzungulus,_Bringer_of_the_Purple_Light:

I’ll respond to your challenge as soon as your uncivil posts are deleted. So please delete them.

snargles November 17, 2009 at 11:53 am

@ Silas:

The nuissance of the gong is not relevant. If it affects how people can enjoy their property then it is a violation of property rights.

Lord Buzungulus, Bringer of the Purple Light November 17, 2009 at 11:54 am

Not sure there’s much point to this, but:

“Can people claim the right to inhibit others from interfering with their tradition of being the only gong-hitter at 8am?”

Obviously, it depends. Since few people want to deal with such annoyances, they typically craft things like restrictive convenants governing what people can do with their property in a communal setting, e.g., no gong-banging early in the morning.

“If not, neither can you inhibit others from interfering with your tradition of being the only one injecting information into a given frequency.”

Obviously (again), the issue here doesn’t concern tradition, it concerns who was the first injector, and why his rights (to inject) trump those of second, third, etc. injectors.

I now understand why Kinsella has to spend half of his papers on IP spelling out rudimentary issues of property rights.

When you grow up Silas, maybe you’ll realize that word games with bad analogies (like conflating tradition with first-use) don’t constitute a coherent argument.

Silas Barta November 17, 2009 at 12:04 pm

@snargles: The nuissance of the gong is not relevant. If it affects how people can enjoy their property then it is a violation of property rights.

And the copying of ideas doesn’t affect how people can enjoy their property…?

@Lord_Buzungulus,_Bringer_of_the_Purple_Light: Again, delete your incivil comments and we can talk, Stephan.

Lord Buzungulus, Bringer of the Purple Light November 17, 2009 at 12:08 pm

Silas, I’m not Stephan. I am Lord Buzungulus. Please, learn my name.

Stephan Kinsella November 17, 2009 at 12:11 pm

Silas, Lord B can’t “delete” his comments. I can.

I am not Lord B–I don’t do nyms, unlike you, John Sharp, Richard Harding, Person.

snargles November 17, 2009 at 12:14 pm

@ Silas

“And the copying of ideas doesn’t affect how people can enjoy their property…?”

Positively, it does, it positively affects how people use their property. But only if they choose to copy, what to copy, and how to copy can you determine the benefits they will receive.

Using this as a way to justify IP is ridiculous. The person IP supposedly protects is the copied person, and he is in every case unaffected. You’re in some very murky water here.

Stephan Kinsella November 17, 2009 at 12:15 pm

You know, Lord B is making a lot of sense. Amazing I agree with him so much. Since, you know, Silas, I’m, like, not him. I mean, if I was him, would I have a little back and forth with myself like this? Wouldn’t I be able to predict what “I” was going to say?

Let’s see, hmm, what will “I” do next… hmmm

S Andrews November 17, 2009 at 12:25 pm

Stephen,

Yes, Lord B’s comments make sense – most of the time, but he did an unnecessary ad hominem on Silas. I think it would be in the interest of this blog to keep name calling and four letter words to a minimum.

Stephan Kinsella November 17, 2009 at 12:47 pm

S, yeah, except Silas is sort of like the belligerant drunk who insults a burly longshoreman’s mom at a bar and is surprised to elicit a punch to the jaw. Yeah, it’s unjustified, I suppose–but it’s invited by engraved invitation, like the Dominique and Roark rape scene.

In any event, “I” am not Lord B. (Right, Silas? Hmm? ;)

Peter Surda November 17, 2009 at 2:14 pm

Dear Silas,

> You have switched the sense in which you use
> the term “integrity is damaged” when applying it to
> this context, so the argument doesn’t carry over.
How have I switched? The “damage” is objectively measurable. In IP, only value change (subjective) is observable.

> a radio signal’s “integrity” is only destroyed
> because some abstract assumption — relied-upon
> to communicate — is violated.
No Silas, that’s incorrect. The integrity is violated regardless of any abstract assumptions, evaluations and merit. It is also violated if noone is attempting to communicate, e.g. eruptions on two stars also violate integrity of each others’ signals.

The point is that the integrity (or lack thereof) can be objectively measured, observed and quantified.

You cannot mix subjective evaluations into your arguments (regrettably, some of IP opponents do it too). Anything can be subjectively evaluated. That does not make it into a right. And if you remove the “value” aspect of your arguments, there is nothing left.

So again:
- you cannot use “value” to define property
- integrity violations in EM can be measured in a value-free manner (just like praxeology requires)
- integrity violations in IP cannot

Your turn now.

Cheers,
Peter

bob November 17, 2009 at 2:46 pm

Audibility in some environment is certainly a own-able resource. A theater has every right to remove those who damage the audible integrity of their scarce space.

Consider noise pollution, or the prohibition of amplified devices in public places without a license.

Silas Barta November 17, 2009 at 3:15 pm

Oh gosh, I’m so sorry; I’ve been remiss. I mistakenly *thought* that Lord_Buzungulus,_Bringer_of_the_Purple_Light was actually Stephan_Kinsella, but now with his clear, firm denial, I know they are actually two different people.

Perhaps what threw me off was how they have the exact same writing styles, make the exact same complaints about alleged misunderstandings in Stephan_Kinsella’s writings, laud each other excessively, use the same profanities when attacking me, and manage to not get their comments deleted even when in blatant contravention of comment policy.

A hasty rush to judgment on my part, I guess.

Lord Buzungulus, Bringer of the Purple Light November 17, 2009 at 3:25 pm

Well, I’ve been a big admirer of Kinsella’s work for a long time, he’s had a huge influence on me. But seriously, Silas, why would he use a pseudonym to deal with you here? He’s obviously taken the more sensible approach of simply ignoring you. I should continue to follow his influence and do likewise.

Lord Buzungulus, Bringer of the Purple Light November 17, 2009 at 3:32 pm

Also, Silas, where did either one of us “laud each other excessively?” He said I made sense, I referenced his extensive writings on the topic of property rights. You should simply realize, there’s plenty of hate to go around here for you, there’s no sock puppetry going on.

snargles November 17, 2009 at 3:44 pm

Silas,

Your objections have been sufficiently answered. I would like to believe that more time has been used up by members of this community babying you along than any other person here.

It’s high time for you to join our crusade against the evil IP law or stop commenting about your misunderstanding of the issues lest you continue to be berated by the people here.

MichaelM November 17, 2009 at 6:49 pm

The right to property is not a right to entities themselves. There is no ethical principle deriving from the nature of man that can establish a moral claim to control an entity in the absence of any application of ideas and actions to it. A property right is the right to control the use of unowned entities if and when they are the repository of the product of an autonomous application of ideas and actions to existence.

That one must embody that which generates the value does not entitle one to regard the embodying matter as the source of value. Absent the buckets of chemicals my friends consist of, I could not value them. But the chemicals are not the source of their value to me – their minds and the contents thereof as manifested in their choices and actions are. Matter is just the medium of value.

When someone creates an application of an idea to an entity, and that application did not previously exist, only he has a moral claim to benefit from whatever potential position that application can generate in the value hierarchies of others, because that position is a direct result of his and only his thoughts and actions.

Consequently, all property rights are rights to intellectual property that must be embodied to be protected. Knowledge, ideas, and labor cannot be protected — only combined applications of them in the particular format of their embodiment.

T. Ralph Kays November 17, 2009 at 6:54 pm

MichaelM

I am sorry to say this because I don’t really want to offend you, but to quote a great man: “the language is the language of english, but the sense is the sense of nonsense”

Lord Buzungulus, Bringer of the Purple Light November 17, 2009 at 7:14 pm

“When someone creates an application of an idea to an entity, and that application did not previously exist, only he has a moral claim to benefit from whatever potential position that application can generate in the value hierarchies of others, because that position is a direct result of his and only his thoughts and actions.”

For example, a sandwich? I think your theory is a pretty open-ended grant of privelege.

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