1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar
Source link: http://archive.mises.org/11045/intellectual-property-and-libertarianism/

Intellectual Property and Libertarianism

November 17, 2009 by

Commentary by those familiar with IP law is usually devoid of libertarian principle. Most IP experts are, unsurprisingly, proponents of the status quo, just as government school teachers tend to favor government schooling and astronauts cheer NASA. FULL ARTICLE by Stephan Kinsella

{ 95 comments }

ABR November 18, 2009 at 10:52 am

Bala,

I was not justifying taxation. My point is that what we call a tax under the State is merely a fee under anarchy. In the former case, payment is involuntary. In the latter case, payment is voluntary.

ktibuk November 18, 2009 at 11:16 am

Stefan,

You may not be very bright but you are not an idiot either. You know perfectly well what Rothbard was trying to get at but for your own convenience you choose to misrepresent his position. This is a prime example of intellectual dishonesty, which is pretty ironic considering the issue is an ethics issue.

jj November 18, 2009 at 11:35 am

I agree that IP is taken too far. However, I am not fully satisfied with the argument against creationism. The author states that if I carve a statue using my own marble, then I own the result, but if I use someone else’s marble, then I do not own the result. This is a simplistic view, because the value of the finished product is not attributed solely to the raw material, but also to its creator. A statue created by Michelangelo is more valuable than mine, even if I create an equally impressive work.

Then, if part of a thing’s value is attributed to the original creator, the original creator must retain certain rights — in particular, the right to claim they are the creator. I am no expert, but it seems to me that this is a form of independent source of ownership. Even if I owned Michelangelo’s David, I still could not claim that I created it.

I do not see anything in the article that would prevent me from making false claim to creating something. If I use my own capital, I can reprint and sell the author’s book “Against Intellectual Property” because the information contained within is not a scarse resource. But if the creator has no rights of ownership at all, nothing is to stop me from claiming that I am the author.

The point is that the original creator of a work may retain some form of ownership. The question is where that line is drawn. Where does the “intelletual property” end and the distribution of the information begin?

As an example, look at the music industry. Today artists have more power than ever before, and it is because the music is given away for practically nothing as a means to grow the fanbase and bring people to the live shows. This model depends on the artist having claim to ownership over the music itself, but not its means of distribution.

Jay Lakner November 18, 2009 at 12:26 pm

**********
I do not see anything in the article that would prevent me from making false claim to creating something. If I use my own capital, I can reprint and sell the author’s book “Against Intellectual Property” because the information contained within is not a scarse resource. But if the creator has no rights of ownership at all, nothing is to stop me from claiming that I am the author.
**********

Nothing huh? Except maybe:

1. A bad reputation.
Not a thing you want to establish for yourself while you’re trying to sell something.

2. Claims that you have committed fraud.
The original author will buy the book from you and then sue you for fraud.
Then the author gets his entire family to purchase the book and they can all sue you for fraud.
Then the author gets all his friends to purchase the book and they can all sue you for fraud.
Even if you somehow economically justify dealing with all those fraud claims, all the media attention you will receive will lead back to point 1.
That, of course, will lead to a situation where everyone who has purchased the book from you so far can and will sue you for fraud because they know it’s a guarunteed win.

In order to provide a court with proof of authorship and therefore demonstrate that fraud has been committed, authors will need to start taking steps to provide time-stamped proof that they are, in fact, the true author of any works they create. I don’t think that’s an enormous obstacle in today’s society.

Peter Surda November 18, 2009 at 12:28 pm

Dear ktibuk,

with much interest I have read your contributions. Unlike many of the contributors, I think that large parts of your claims are correct and so are some of your objections.

I believe you have found your unique way of defining property (I’m not claiming it’s correct, I’ll just assume it is), however, an important part is still missing. I have explained it before but maybe you didn’t read it or I haven’t articulated it very well. It could also be said that this hole is a byproduct of different interpretations of our respective theories.

Let us first assume, for simplicity purposes, that your arguments are correct. That if you homestead something, you in all cases also have the right to exclude others. Let’s also assume that this is a natural right, independent of people and subjective valuations.

So, let us investigate what happens if person A writes a book, and person B, who doesn’t have a contract with person A, creates a copy of that book (without violating any physical property). According to your theory, person A owns his physical original, as well as the immaterial features “behind it”. Person B owns his physical copy. So far, I have no objection. Now, you claim that there are also some immaterial features “behind” B’s copy and those belong to A. If they really do, he must have had logically homesteaded them. There could only be two ways for that to have happened: either they are identical (there is only one and not two), or they are similar and homesteading one also automatically homesteads the other (derivative work).

So, here comes the question: how do you prove either of those without subjective evaluation? Failing that, the whole argument for IP being natural right falls apart.

Again: how to you prove that the immaterial features of an original and copy represent the same property?

Cheers,
Peter

Stephan Kinsella November 18, 2009 at 12:31 pm

I just received this email from ejt@seanet.com:

Subject: So then, you’re a f*cking thief?
RE.: http://mises.org/daily/3863

What’s next: Legalised rape of children?

Lovely. Now, onto another statist IP argument:

kitbook writes:

You may not be very bright but you are not an idiot either. You know perfectly well what Rothbard was trying to get at but for your own convenience you choose to misrepresent his position.

Not misrepresenting anything; Rothbard was confused and incoherent here; his idea here rests on the assumption that ideas are ownable; and moreover, by “copyright” he either does or does not mean modern copyright. If he does not, that word should not be used. If he does, then he is wrong to think it could be used to cover copying of inventions and artistic creations.

Moreoever, he obviously thinks some coherent scheme can arise thru this easy method of “stamping” things. Anyone familiar at all with how IP law actually works–no offense you [Rothbard can be excused–will realize this is ridiculous, for any number of reasons. For example: how do you “stamp” a process? How does the stamp “bind” third parties? How does the stamp prevent derivative works, instead of merely prohibiting literal copying (and if it doesn’t, then it’s nothing like copyright and won’t satisfy the IP socialists)? How does it prevent independent invention (if it doesn’t, it guts patent law and would not satisfy the IP socialists)? If it only prevents literal copying, then why would you impose this on the buyer–? it only harms him, and does you no good (since third parties can copy it, or at least independently invent it). Copyright is a bundle of rights–which of these are included in the “stamp”? As for inventions, what subject matter is the “stamp” applicable to–how about software, business methods, and even abstract ideas and the laws of nature? What novelty and non-obviousness standards apply? What prior art? Is there a doctrine of equivalents? How do you know what part of the machine is protected and uncopyable without written claims as in a patent? Where you put these claims? What if someone removes the “stamp”? Why should I have to make an actual product to get protection on my idea–and if it’s just an idea, what do I “stamp”–? Oh, I know, just write the idea down in a report, sort of like a patent application, and … register it with the … appropriate authority…

You pro-IP guys know zero about what you are even advocating. It’s pathetic. Think before speaking.

Shay November 18, 2009 at 12:44 pm

jj, When you say that an author has some ownership due to creation, you’re implying that he has a right to use force against someone else falsely claiming authorship. This is unlibertarian, because libertarians hold that force isn’t justified except to defend against someone else unjustifiably using force against you.

In the statue example, Kinsella wasn’t arguing that your carving it into a state didn’t (possibly) add value; he was noting who owns the resulting object. If you did the carving without permission of the owner of the marble block, you would not own the resulting work, even if the carving were worth more than the block. As for the “right” to claim yourself as the carver, I don’t think that’s a right or something libertarianism covers. You can claim yourself as the carver regardless of whether you actually carved it; doing so wouldn’t be using any force against anyone. Now if the owner of the now-carved piece of marble were selling it, it might be considered fraudulent if he claimed himself the carver, because he would be misrepresenting the object being sold.

It’s peculiar that these IP discussions almost always have plagiarism brought up in them. Plagiarism isn’t a matter of property, and under libertarianism, not a use of force, therefore no use of force is justified in stopping it. This doesn’t mean that a libertarian approves of it, just that he punishes plagiarists via social means rather than by the use of force. He might publicly shame the one doing so, in order to make others know of it and hurt his reputation, thus discouraging future plagiarism or causing the plagiarist to lose importance to others.

In your music indistry example, artists could more power because they are more widely known. It wouldn’t be due to them owning their creations or ability to claim authorship, simply that their voices are carried farther and wider than before. It’s little different than the greater power you and I have due to discussion forums like this one.

jj November 18, 2009 at 1:57 pm

Shay, thank you for your intelligent response. Although I still do not feel it is a cut-and-dry issue, your point is well made. One thing I would say is that plagiarism and fraud seem to be two sides of the same coin in this context — and yet only the purchaser is able to take legal recourse, whereas the original creator may only take social action.

Shay November 18, 2009 at 2:49 pm

Plagiarism is about someone else claiming credit for a work, and thus reaping the benefits for his reputation instead of the actual author. A person’s reputation is the aggregate of what other people think about him; as such, he does not own it, and therefore isn’t justified in using force against others who might affect it negatively. He can of course use other means, like publicly asserting that he is the true author and offering facts to back that up. If others believe this, they might ostracize the alleged plagiarist in various ways, thus discouraging plagiarism, but without the use of force against the plagiarist.

When someone misrepresents an item he sells, he’s stealing from the buyer. The buyer is consenting to trading some amount of money for A, while he is given B instead. A might be a box containing a TV, while B might be a box containing bricks.

Bala November 18, 2009 at 3:38 pm

ktibuk,

” The fact that I homesteaded it makes it mine. ”

The extent of context dropping you are engaging in is truly enormous and very visible in this statement. You are failing to realise a very fundamental point that Rights have any meaning at all ONLY in a social context. When you, for instance, talk of “Rights” of a man alone on an isolated island (as you have in your previous post), you are talking drivel.

The statement that I have identified also clearly brings out the “is-ought” dilemma that you are facing and which is causing all your confusion.

Firstly, “ought”s exist ONLY for a rational animal with a volitional consciousness. There is no “ought” outside of the mind (except for scientific “ought”s in the natural world). In the specific example you have taken up, i.e., land that you have homesteaded, the following are the facts
1. you (a human being, a rational animal with a colitional consciousness) exist
2. the piece of land (say, plot P) exists
3. in the past, you have undertaken some action that has in some way changed the state of the land with respect to yourself (say, it was forest land that you cleared so that you may engage in agriculture)

Within this, there is no concept “property”. The notion “property” comes in only when a second person (say A), comes along. Now, the additional facts are
4. A (also a human being as defined earlier) exists

The reality is that either person (you or A) could act to gain value by “using” the land as you deem fit. Let’s assume that you intend to engage in agriculture and A intends to build a factory.

Now comes the important point – What actions will you undertake if A decides to act to build his factory? Will you exert force against A to chase him off the specific plot of land? In contrast, will you just submit and peaceably allow A to build his factory?

Thus, the question is ‘What “ought” I to do?’. In other words, you would be seeking a sanction for your action of either defending the piece of land from other users. The authority from whom you are seeking sanction is Reality. In this particular context, Reality says that your long-range self-interest is better served by acting to prevent A from building his factory on that parcel of land. So, you “ought” to act to protect plot P from A. This “ought” is what constitutes the concept “Property”.

The concept “Property” thus sanctions your actions to defend it from A. It is an entirely Moral concept, an answer to the question “Am I acting right when I kick A out of this piece of land?”. This “right”, translated as “acting in my long-range selfish interest”, is what translates into a “Right” to “Property”.

In this context, homesteading becomes the only basis on which I can decide if I am right or wrong. Hence, homesteading becomes the only basis to decide whose Right to Property is morally sanctioned.

In the absence of a social context, i.e., the existence of A who may also act to use plot P to build his factory, there is no meaning at all to the concept “Property” being applied to plot P.

” According to this view fraud can not be a crime since there is no actual force used. ”

Applying the reasoning I have used above exposes you as being completely incorrect.

The facts prior to fraud now are as follows
1. You exist
2. A exists
3. Object Q (say, some amount of money) exists
4. (Assume) You obtained Q in exchange for something you produced on your land P – This makes it Morally yours to defend, yours by “Right”

Let’s say A commits fraud and Q is now in his hands/possession. The question is “Would you be right to act to retrieve Q from A?”. Reality says ‘Yes’ and therefore, you “ought” to act to retrieve Q from A.

And please…. A is exerting force against me when he prevents me (or even my agent) from retrieving Q. There is no other way he can do so. Since Q “ought” to be mine since I did not consent to transfer possession, that IS initiated force. So, your claim that fraud does not involve initiation of force is completely incorrect.

The picture changes little when you expand the context to include a lot of other people to form a “society”. Assuming power is equally distributed among all the people, your chances of retrieving Q are higher if more people share your moral framework and think you are “right” to act to retrieve it. When this happens, your moral “Right to possess” Q gets elevated to the status of “Right to Property” Q in a legal sense. You are then even likely to find people ready to offer you the service of retrieval for a fee because they can gain by retrieving it for you.

So, if you stop dropping the social context that generates the concept “Right”, you will see that your argument is completely misplaced.

Applying the same principle to IP makes it obvious that it does not fit the concept “Property”.

Actually, drafting this reply made me realise that the “scarcity theory” makes sense. As far as I am concerned, there is only one plot P. I should thank you for the opportunity to get this clarity.

Ron November 18, 2009 at 3:38 pm

In regards to plagiarism, I would argue that it constitutes fraud perpetrated against the consumer of the work that incorporates the plagiarized material. If I buy a book written by someone else and change the by: line, substituting my name for the author’s, then whomever buys the book has been victimized by my fraud. This is contrary to the widely held belief that plagiarism steals from the original author, but it’s consistent with the principles governing any other voluntary transaction. If the transaction is made under false pretenses, in this case because the seller has lied about the source of the contents of the book, that constitutes an act of aggression against the buyer.

Mashuri November 18, 2009 at 6:03 pm

Ron, I would say that holds true if the consumer buys other works from the plagiarist, based on the false reputation given by the plagiarized work.

Bala November 18, 2009 at 7:25 pm

Stephan,

” I agree; and mount a moral, principled objection; but nothing wrong with attacking them on all fronts. ”

Rather than ask for data, I think it might be better to criticise the general approach taken to justify IP laws by citing data. I see the data-centric approach to justification of IP as no different from the approach of mainstream climate science – when you are unsure of your theory, obfuscate using data and brainwash the masses through shrill, emotive, political campaigns.

IMO, the masses take an agnostic position on IP because they live under the misapprehension that the “conclusions” drawn by IP supporters may be valid because they are unable to understand, much less refute the conclusions and how they were drawn. How many people understand that correlation is not causation?

If one’s attempt is to change the status quo (as I guess is yours), the answer is to get the masses on board. The longer you permit the opposing party to obfuscate, confuse, mislead and ultimately lie, the tougher you are making it for yourself to get he numbers.

Exposing them morally and rejecting the data-centric approach on grounds of being fundamentally unsound is, IMHO, a much better approach.

Stephan Kinsella November 18, 2009 at 11:15 pm

jj: “Shay, thank you for your intelligent response. Although I still do not feel it is a cut-and-dry issue,”

I think it’s cut-and-dried. Not “cut-and-dry”. Similarly, it’s iced tea, not “ice tea.”

Ron:

“In regards to plagiarism, I would argue that it constitutes fraud perpetrated against the consumer of the work that incorporates the plagiarized material. If I buy a book written by someone else and change the by: line, substituting my name for the author’s, then whomever buys the book has been victimized by my fraud. This is contrary to the widely held belief that plagiarism steals from the original author, but it’s consistent with the principles governing any other voluntary transaction. If the transaction is made under false pretenses, in this case because the seller has lied about the source of the contents of the book, that constitutes an act of aggression against the buyer.”

right. The victim of plagiarism is the buyer. Not the person mimicked. And in any case, in most situations IP socialists whine about, there is no plagiarism.

Bala:

“Rather than ask for data, I think it might be better to criticise the general approach taken to justify IP laws by citing data.”

I do. But then I also criticize them based even on their own standards. It’s a multi-pronged approach.

ktibuk November 19, 2009 at 4:17 am

Peter Surda,

Firstly my definition of property rights, or my understanding of “law of property” is not unique. It is based on the tradition of Aristotelean, Lockean and Rothbardian natural rights tradition.

Getting back to your questions.

“So, let us investigate what happens if person A writes a book, and person B, who doesn’t have a contract with person A, creates a copy of that book (without violating any physical property).”

Now, he have the problem right there. You describe a situation while assuming your conclusion. You see no problem with this instance where as I see one.

Person A wrote the book. He homesteaded it and he owns it. Without him there would be no such book, hence there would be no possibility for person B to copy it. This is not an ethical proposition but a fact.

Since the book is not a nature given free good, but a man made product it is actually extension of an individual. In this case the author of the book. Again, an “is” propsition.

Thus any action taken regarding the book, including copying of it, should be dependent on the consent of the owner.

We keep talking about aggression or initiation of force. But we don’t define it. Imagine the action of cutting flesh. Whether this action is aggression or not is solely dependent on the consent of the person that is being cut, in oder words self owner. Not some objective definition of physically altering of skin and muscle cells If you elect to have a surgery, if you give consent, then this act is not aggression. If somebody cuts you without your consent it is an act of aggression

So you can not divorce consent from definition of aggression. But this unfortunately is one of the core assumptions of this contradictory property theory of Stefans.

“According to your theory, person A owns his physical original, as well as the immaterial features “behind it”"

Yes but this dichotomy of the physical and features behind it is a false dichotomy. Again assuming the conclusion that intangible stuff can not be property.

“Now, you claim that there are also some immaterial features “behind” B’s copy and those belong to A. If they really do, he must have had logically homesteaded them. There could only be two ways for that to have happened: either they are identical (there is only one and not two), or they are similar and homesteading one also automatically homesteads the other (derivative work).

So, here comes the question: how do you prove either of those without subjective evaluation? Failing that, the whole argument for IP being natural right falls apart.”

Now in this part you are making the fallacy of trying to define ethical rules based on some enforcement ability which seems to be quite common.

Ethical rules are about ideals. That is why the propositions are “ought” propositions. The question is, can you imagine a situation based on human nature and the nature of his environment where ethical propositions can come alive, applied consistently and help people act accordingly (according to nature and reality) to further their lives?

Lets leave aside the IP issue for a minute. Can you imagine a world where individuals respect each others property and act civilized without a state? I am assuming you can, (unlike a socialist utopia which you can not even imagine). Do you think this is actually achievable on this earth? No. Or to make right every wrong after the wrong has been done? Again No but this doesn’t prevent us from articulating ethical rules and try to enforce them.

Similarly can you imagine a world where the ownership rights of all the authors and composers and even inventors are respected? Is this possible according to mans nature? Is this situation where all IP is respected possible?

Apart from some innocent mistakes, it is. Humans can differentiate what is man made and what is nature given. A person stumbling across a novel knows it is some ones creation. He may not have any opportunity to make a deal with the owner at that time, but he would know he doesn’t have an automatic right to take it.

Also you may choose not to read someone elses book or listen to someone elses music. Apart from the request to be left alone, IP owners do not demand anything from you.

Of course in real life we all know there would be problems regarding real actions and enforcement of rules. Just like there will still be theft, murder, rape even if there wasn’t a state systematically doing or causing these crimes. So will there be people disrespecting the rights of the owners of IP. There will be illegal copying and some can be determined and punished and some would not be.

Regarding more unique creations like books and movies and music it is easier to determine if there is an independent homesteading or copying. It may be harder for inventions. But the ethical principle remains.

You may independently invent something, homestead it. But you should not (or ought not to) copy it without the consent of the owner of the original. It is a simple rule, consistent with human nature and reality.

ktibuk November 19, 2009 at 4:49 am

Bala,

“The extent of context dropping you are engaging in is truly enormous and very visible in this statement. You are failing to realise a very fundamental point that Rights have any meaning at all ONLY in a social context. When you, for instance, talk of “Rights” of a man alone on an isolated island (as you have in your previous post), you are talking drivel.”

You are making two common mistakes regarding ethics here.

Firstly ethics is not only about social context. Even Robinson Crusoe has ethical rules to follow based on the rules of the nature, or reality or universe.

Secondly, even though some or most of the ethical rules are about social interactions, this doesn’t mean these rules are derived from the society.

Quite the contrary, ethical rules about social conduct is carried over to the social context from isolated individual.

These rules are rules that carry Robinson Crusoe’s rights arising from being isolated to the social context when Friday comes to the island.

Crusoe is the ideal free man. Whatever you understand about liberty and its effects on the individual, he has it and he can not be any more free (or freer). (A good exercise in figuring out what is a right is to imagine Crusoe and ask if he has that said right or not. If you do this exercise, right to health carei right to education fails, but right to a free speech passes for example)

But being isolated his potential might and abilities are diminished compared to a situation where a division of labor is possible with other individuals.

So the question is, how can Crusoe continue his freedom while living in society which increases his ability, productivity etc. Because that is what his nature dictates. He both has to be free to use his main faculties to survive, and he also has to trade with other humans to stay alive and further his life.

“Now comes the important point – What actions will you undertake if A decides to act to build his factory? Will you exert force against A to chase him off the specific plot of land? In contrast, will you just submit and peaceably allow A to build his factory?”

You are putting the cart in front of the horse.

Ethical choice is not Robinson Crusoe’s. The ethical choice is Fridays. He comes to the island and he has to decide what he ought to do. Respect Crusoe’s property or aggress against it. After only his choice of aggression Crusoe has to make an ethical decision. Whether to use force to repel an aggressor or not.

So you can see, Crusoe rights are not dependent on Friday or some other individual. They are natural rights.

Or in other words, rights are not established by people to avoid conflicts, but conflicts arise when one individual disregards natural rights.

“And please…. A is exerting force against me when he prevents me (or even my agent) from retrieving Q. There is no other way he can do so. Since Q “ought” to be mine since I did not consent to transfer possession, that IS initiated force. So, your claim that fraud does not involve initiation of force is completely incorrect.”"

So you concede to the fact that aggression is not about something physical but solely dependent on the consent of the owner. That is also my point, but I am consistent with it taking it to the IP problem.

Regarding IP, the same is true. Copying some authors book without his consent, is an act of aggression whether there is a physical alteration of some physical form or not.

“The picture changes little when you expand the context to include a lot of other people to form a “society”. Assuming power is equally distributed among all the people, your chances of retrieving Q are higher if more people share your moral framework and think you are “right” to act to retrieve it. When this happens, your moral “Right to possess” Q gets elevated to the status of “Right to Property” Q in a legal sense. You are then even likely to find people ready to offer you the service of retrieval for a fee because they can gain by retrieving it for you.”

This may be the case but it has nothing to do with ethics. As I have also told Peter Surda, ethics are about ideals. Of course it should be about ideals based on reality. This is why socialist ideals fall short. Because they are not based on reality, or nature of men. If people would be more productive isolated, rather in a division of labor situation, socialism paradoxically might have worked. But it is what it is, and you have to live by it.

Jay Lakner November 19, 2009 at 5:54 am

**********
Person A wrote the book. He homesteaded it and he owns it.
**********

He owns the physical materials that make up the book.
He owns the ink on the pages.
But I fail to see how you come to the conclusion that he owns the physical arrangement of the ink on the pages.

**********
Without him there would be no such book, hence there would be no possibility for person B to copy it. This is not an ethical proposition but a fact.
**********

What kind of argument is that? You obviously can’t “copy” something that never came into existence.

**********
Can you imagine a world where individuals respect each others property and act civilized without a state? I am assuming you can, (unlike a socialist utopia which you can not even imagine). Do you think this is actually achievable on this earth? No.
**********

No??? Excuse me? The answer to that question is yes.

**********
Similarly can you imagine a world where the ownership rights of all the authors and composers and even inventors are respected? Is this possible according to mans nature? Is this situation where all IP is respected possible?
**********

No. No. And no.
What you are describing is an impossibility. Once you define “idea”, you come to realise that it is impossible to claim ownership of one.
Every idea is composed of every previous idea that lead to its creation. In order to assign ownership to any idea, one must be able to trace its origins.
Fundamentally speaking, every idea ever conceived can be traced back to cave-man thoughts of space, time, hot, cold, etc.
So your hypothetical society will respect Ug the caveman for first having the thought “hot”. Similarly, your society will respect Ruk the hunter for first thinking “Big”.
After cataloging all the fundamental “ideas”, your society will catalogue all the derivative ideas. Wengl the gatherer discovered “big hot” when she inadvertantly set her hut on fire. Genk the treeclimber discovered “big fall”. Vilk the fisherman discovered “sharp teeth”. And so on.
So in order to truly respect the “intellectual property rights” of all authors, composers and inventors, once a “new” work (such as a novel) has been created, society will need to make sure Ug, Ruk, Wengl, Genk, Vilk, … , Shakespear, Newton, Darwin, … etc, etc, etc, etc are all acknowledged and compensated for the roles they played in laying the groundwork for the idea that was created.

Clearly, this is impossible.

**********
You may independently invent something, homestead it. But you should not (or ought not to) copy it without the consent of the owner of the original. It is a simple rule, consistent with human nature and reality.
**********

Consistent with human nature? Certainly not!

A major component of human learning occurs through imitation. It is human nature to copy others who are achieving desirable results.

It should be clear from this point alone that IP goes completely against the nature of men.

ktibuk November 19, 2009 at 6:01 am

Kinsella,

“Not misrepresenting anything; Rothbard was confused and incoherent here; his idea here rests on the assumption that ideas are ownable;”

Firstly for you to be in disagreement with Rothbad on this issue doesnt mean he is confused. Your arrogance of claiming Rothbard to be confused regarding property rights is not amusing one bit.

“and moreover, by “copyright” he either does or does not mean modern copyright. If he does not, that word should not be used. If he does, then he is wrong to think it could be used to cover copying of inventions and artistic creations.”

This is all semantics. We both know what he meant when he gave the mouse trap example. Maybe he didn’t write a treatise solely on IP but since we know his thoughts regarding a natural rights theory of property law, we can safely assume what he means looking at the rather little amount of writings belonging to him.

And besides Rothbards view on this matter is irrelevant. He might as well have agreed with you one hundred percent. We don’t need to appeal to his authority. The issues is your intellectual dishonesty on this issue. Which diminishes your credibility. On top of your contradictory and shaky theory of property rights.

The rest of your drivel is about your problem of lacking the capacity of articulating a coherent ethical framework. I guess you need to figure out all the possible judicial process based on conflicts that might arise between 6 billion people, in advance. Good luck on that

In ethics all we have to do is establish principles. There will definitely be unique instances involving different people and situations. Each case would then be judged, but you need ethical principles first. ethical principles based on reality.

Stephan Kinsella November 19, 2009 at 10:51 am

Kitbook, despite your handwringing and evasive maneuvers–of course I didn’t misrepresent or disrespect Rothbard–the fact remains that state grants of IP are invalid, patent and copyright are theft because they give non-owners partial ownership rights over others’ property, and the trick of using contracts cannot remotely simulate IP because you cannot bind third parties (because patterns are not property).

End of story.

Shay November 19, 2009 at 12:36 pm

ktibuk wrote, “We keep talking about aggression or initiation of force. But we don’t define it. Imagine the action of cutting flesh. Whether this action is aggression or not is solely dependent on the consent of the person that is being cut, in oder words self owner. Not some objective definition of physically altering of skin and muscle cells If you elect to have a surgery, if you give consent, then this act is not aggression. If somebody cuts you without your consent it is an act of aggression”

A lack of consent isn’t the sole definer of aggression. Even if I don’t consent to you having your own skin cut, you doing so isn’t aggression on me. Thus, it seems to me that aggression on you must involve your own property and unconsented actions towards it. So the above would merely beg the question if it were attempting to justify IP.

“Similarly can you imagine a world where the ownership rights of all the authors and composers and even inventors are respected? Is this possible according to mans nature? Is this situation where all IP is respected possible?

Apart from some innocent mistakes, it is. Humans can differentiate what is man made and what is nature given. A person stumbling across a novel knows it is some ones creation. He may not have any opportunity to make a deal with the owner at that time, but he would know he doesn’t have an automatic right to take it.”

This would lead to a very sorry state of existence, where one would have to consult massive catalogs of owners of every little idea and fashion before making use of it.

Jay Lakner November 19, 2009 at 1:48 pm

Ktibuk,

You profess to believe that ideas can be owned. Yet you are either unwilling or unable to define exactly what an idea is.
You talk about individuals “creating” ideas and therefore having a rightful claim over those ideas. Yet I have not once seen you break down the concept of an idea into its constituent parts and demonstrate the prerequisite requirements for the “creation” of a new idea.

Every new idea requires that there be older ideas upon which to build. A new idea is nothing more than the extention or combination of previous ideas.

You have also failed to consider the premise that a large proportion of human learning occurs through imitation. To grant ownership in ideas is to attempt to prevent human beings from learning and developing. You’ve said before that we need ethical principles based on reality. Imitation is reality. An ethical principle which outlaws imitation is clearly an ethical principle which is not based on reality.

Laws which defy the reality of human nature must eventually collapse. Intellectual property is no exception. You see, to prevent people from using an idea is also to prevent them from extending that idea, or combining it with other ideas. This reduces the number of available ideas in society for people to work with. Clearly the end result must be a stagnation in the rate of the generation of new ideas in society.

You can already see growing evidence of this. In a relatively short time of patent legislation, a complex mine-field of patents has been created. Now businesses have to spend tens or even hundreds of thousands of dollars in legal fees every year to simply avoid getting sued.
The next mine-field to be created will be the copyright mine-field. At some point authors will be too afraid to publish their works in case they accidentally duplicate a passage from an existing book. Once again only those who can afford the exhorbitant legal fees would dare publish. Ultimately, new books will be a very rare thing.

It’s pretty clear that, not only does intellectual property contradict the concept of physical property and go completely against human nature, but that it’s also an unsustainable system in the long term.

overtheedge November 19, 2009 at 5:14 pm

I find it endlessly fascinating that one person or another demands that Libertarianism is a defined entity and being so, must be brought into existence.

Nobody has the right of dictates. Most of this argument fails for one simple reason. Humans are not ethical, responsible or logical. Libertarianism, in the strictess sense, can not exist.

Property rights can’t exist without protection. This demands statism at least at a local level. Human nature being what it is, without some level of statism, every person would be forced to defend their property with force majour.

No Stephan Kinsella, this is NOT the end of the story. Once your IP was posted, you no longer have any authority over the idea. By your own definition, once you tossed it out, you lost all rights to it.

Yes, I agree. A big share of the IP stuff should never have been patentable. If the idea can’t be made into a tangible property in and of itself, it shouldn’t be patentable. By the same token, property that can be created naturally shouldn’t either. As an example, hybrid seeds. Consider some of the infringement cases over natural reproduction of GM pesticide-resistant seeds.

Another thought is: discovery is NOT creation.

IP rights need to be cleaned up, but IP protections will never be extinguished as long as people exist.

The mythical existence of Libertarianism, as defined by certain supposed authorities, is just that.

I would agree that most of the principles of Libertarianism need to be incorporated into social interactions and statism needs to have a chainsaw taken to it. But the elimination of statism demands the elimination of the most fundamental level of statist constructs – family. I would contend that education, beginning at an early age, could effect a social movement towards limitted statism.

Jay Lakner November 20, 2009 at 12:29 am

**********
Most of this argument fails for one simple reason. Humans are not ethical, responsible or logical.
**********

The assertion that humans do not behave in a logical manner is simply false. In fact, every action that a human being ever performs is the most logical course of action to that human at the time.

**********
Property rights can’t exist without protection. This demands statism at least at a local level.
**********

So you’re saying it’s impossible to organise the protection of your property through voluntary agreements?
This is simply false.

**********
But the elimination of statism demands the elimination of the most fundamental level of statist constructs – family.
**********

This is the only interesting point you have made. The rest of your post is full of unsound assumptions and illogical conclusions. (Are you trying to prove that humans are illogical through your own lack of logic?)

I would contend that the family is not a statist construct because there is no monopoly on the use of force.
In a free society, a contractual arrangement negotiated with protection agencies would involve an agreement by the customer to not commit crimes. This also means crimes against their own children. An authoritarian parent cannot use unreasonable force against their family otherwise they risk losing their protection coverage. Furthermore, abused family members can seek protection with an outside agency from their fellow family members.
It’s like the employees of a business. They obey the boss. But a business is not a statist construct because the boss does not have a monopoly on the use of force. Similarly, since the authoritarian members of a family do not have a monopoly on the use of force, it’s clear that the family is also not a statist construct.

Overtheedge, I feel you need the address the fundamental assumptions by which you believe the things you do. Stephen Kinsella’s article did an extremely good job of breaking down libertarianism into it’s fundamental components. But I feel you need to go further. You need to get some definitions straight in your head. Define “idea”. Define “ownership”. Define “property”. etc.
Your posts demonstrate a degree of intelligent thought behind them, but your core assumptions are often contradictory. When forming an opinion on anything, one needs to ask themselves, “What am I assuming?” and “What are the fundamental definitions of the subjects I am discussing?”.

TokyoTom November 20, 2009 at 2:06 am

Stephan, allow me to cross-post here relevant excerpts of my discussions with you on Jeffrey Tucker`s IP, Teaching & Rand post:
http://blog.mises.org/archives/011035.asp#c627711

TT:
My own view has come around to the idea that state-created IP is abusive and has been hijacked by rent-seeking. Firms and individuals that want to maintain information as property should do so without state grants, other than the use of courts in providing remedies for theft.

But that the idea of IP itself as “property” does not seem absurd to me in the least; the prevalence of the idea is an example of the way that communities adopt and internalize rules and apply them rather reflexively (and feel them morally) and is a testament to the capacity of humans to minimize tragedy of the commons situations (as Yandle and Ostrom have noted). The problem is simply that IP has slipped its moorings and become abusive to the point that we need to start working (via legislation, no?) to lessen the evident parasitism and abuse.

Published: November 19, 2009 7:57 AM

SK:
TokyoTizzom:

These comments have an odd air to them–state created IP is “abusive”? It’s been “hijacked”? Libertarians talk about just and unjust, rights and rights violations. And IP was not hijacked by the state any more than taxing power or regulation of wage and working hour or outlawing cocaine was hijacked by the state. It’s not as if these things would occur in a free market.

Yes, let’s just work with the state to decree more unjust fake “laws” …. that’ll work.

Published: November 19, 2009 9:36 AM

TT:
“And IP was not hijacked by the state any more than taxing power or regulation of wage and working hour or outlawing cocaine was hijacked by the state. It’s not as if these things would occur in a free market.”

I`m not sure why you want to drum up disagreements; is it because I agree with you as a practical matter, rather than delving into principle? If we change anything here, it will not be so much as a result of principle as getting others, as a practical matter, to agree that IP has gotten out of hand.

In any event, I was referring to abuse by rent-seekers, not by the state.

Further, while I don`t see how we can possibly conclude that communities cannot, without use of a state, derive the equivalent of taxes, wage regulations or outlawing cocaine, how is this even relevant to a discussion of the legitimacy of IP?

Care to clarify the following?
me: “The problem is simply that IP has slipped its moorings and become abusive to the point that we need to start working (via legislation, no?) to lessen the evident parasitism and abuse.”

You: “Yes, let’s just work with the state to decree more unjust fake “laws” …. that’ll work.”

I`m not following you – what is YOUR proposed course of action for rolling back IP? Are you expecting everyone to simply ignore the state and IP laws? Seriously, I`m missing something.

Tizzy Tom
Published: November 20, 2009 1:36 AM

ktibuk November 20, 2009 at 3:40 am

Shay,

“A lack of consent isn’t the sole definer of aggression. Even if I don’t consent to you having your own skin cut, you doing so isn’t aggression on me. Thus, it seems to me that aggression on you must involve your own property and unconsented actions towards it. So the above would merely beg the question if it were attempting to justify IP.”

If you read carefully what I wrote, of course I am talking about the consent of the owner and nothing else. IP opponents on the other hand divorce “consent of the owner” from aggression only concentrating on “what has been lost”.

They claim since the author doesn’t lose anything when someone copies his work, this means he can not own the novel to begin with.

Can’t you see how absurd this is? Can’t you see you can not divorce “consent of the owner” from the definition of aggression?

If you follow this absurdity to its logical conclusions, some girl being raped when she is unconscious is not a victim of an aggression. No, because she hasn’t lost anything (assuming no physical damage). Thus when she is sleeping or out of it, she ceases to own her body.

Also this absurdity is flipping causality on his head. Copying the original must come only after the original is created. How can some action that can only happen after the creation can be a prerequisite of ownership?

“This would lead to a very sorry state of existence, where one would have to consult massive catalogs of owners of every little idea and fashion before making use of it.”

I do not believe it to be so. There would still be gifts to humanity. Some creators creating and giving away their creations not for material gain but for glory. Some creations can not be protected I will concede to that, but to dismiss an ethical position just based on that is akin to dismissing all private property because there will definitely be aggression that can not be stopped in the future.

Bala November 20, 2009 at 4:17 am

ktibuk,

” Firstly ethics is not only about social context. ”

But “Rights” do. That’s where you are veering way off course.

” this doesn’t mean these rules are derived from the society ”

Of course they do not. I didn’t say that they do either. That, however, does not mean that “Rights” do not have a “social context” or are valid in anything other than one.

” ethical rules about social conduct is carried over to the social context from isolated individual. ”

Whether on an isolated island or living as a member of a society, Crusoe needs to act. However, there is a critical difference which you are omitting here.

On an isolated island, the only factor limiting his freedom of action is the external natural environment. He is free to modify his environment as he deems fit and is able to. He derives objects of value that enhance his life from this environment. The aim of such actions is the sustenance of his life as well as he can.

On the other hand, while he is in a society, there is another factor limiting his freedom of action – the existence of other living beings like himself, rational animals with a volitional consciousness (who I shall henceforth call “men”) acting like him to sustain their respective lives.

He now recognises an important fact of this reality – that there is a better means of dealing with these other men than that which he would use with all other elements of his living environment. This is simply that by abstaining from the initiation of force against them, he can attain a much higher state of living than he can eke out on his isolated island or by treating the other men as he does every other aspect of his environment.

This condition that he recognises is what he calls the concept “Right”.

A “Right” is a MORAL concept. This means that it is a concept that relates to an individual’s actions and choices and imposes no obligations on others. My morals have no implications for you except when my moral-driven actions have an impact on you.

A “Right” is a moral concept that defines and sanctions man’s freedom of action in a social context (Ayn Rand in her article “Man’s Rights”).

Remove the social context and you would be speaking nonsense by using the term “Rights”.

Crusoe alone on the island has a need to act, for if he fails to, he faces pain, suffering or even death. He is free to act as he chooses and there is no other man to prevent him from acting on his choices.
Enter Friday and he now needs to decide how he is going to define the limits of his freedom of action.

” Or in other words, rights are not established by people to avoid conflicts ”

I agree. Rights do evolve from man’s nature. However, I also add that they are valid and meaningful only in a social context.

” but conflicts arise when one individual disregards natural rights. ”

I agree, but it proves nothing of what you are claiming.

” You are putting the cart in front of the horse. ”

Actually, you are confusing the cart for the horse and vice versa. Before A recognises an existent as my “property”, both parties concerned need to have formed the concept “property”. Thus, by referring to recognition of property before defining the concept in the first place, it is you who are guilty of mixing up the positions of the cart and the horse.

As I have said before, the difference between “possession” and “property” is that the latter is a moral “ought”. That which is in my possession and ought to be so is my property. That which is in your possession but which morally ought to be in my possession is also my property.

” So you concede to the fact that aggression is not about something physical but solely dependent on the consent of the owner. ”

Whenever did I disagree or say anything else? The sole purpose of initiating force against a rational animal with a volitional consciousness is to prevent it from acting as per the judgement of its rational mind. How does this advance your position?

” Regarding IP, the same is true. Copying some authors book without his consent, is an act of aggression whether there is a physical alteration of some physical form or not. ”

How??? Aggression requires the INITIATION OF FORCE. In this case, there is no force.

You are displaying extreme intellectual dishonesty in this particular “argument” of yours. I would be copying not the “author’s book” but MY book. The paper, the ink, the binding… everything that constitutes the physical book… is MINE.

In effect, you are saying that the author own a particular way of stringing together words and that by stringing together words in the same way and profiting from it, I would be engaging in aggression. You have completely exposed yourself and the ridiculousness of your argument.

I think you first need to clarify what constitutes “property” and then try to explain why ideas and patterns can be justifiably called “property”. If I use the definition I have given of “Property” as an “ought”, I am forced to come to the conclusion that ideas and patterns can never be labelled “Property”. Thus, in my book of definitions, “Intellectual Property” is an oxymoron. Your “arguments” do not appear to be convincing enough.

Bala November 20, 2009 at 4:26 am

ktibuk,

” Can’t you see you can not divorce “consent of the owner” from the definition of aggression? ”

Can’t YOU see that you cannot apply the “consent of the owner” doctrine to that which cannot be “owned”?

Ideas can only be originated, not owned. “Ownership” requires the ability to exclude. Ideas, by their very nature, are not amenable to that. Hence, your entire “argument” falls flat.

” If you follow this absurdity to its logical conclusions, some girl being raped when she is unconscious is not a victim of an aggression. ”

Firstly, the girl would be a “flesh and blood” human being, not an idea. Her body would be “her” body.

Secondly, that the girl is unconscious does not mean that her consent has been obtained. She would be in a position where her consent CANNOT be obtained.

So, I wonder how you are imagining that this is not aggression.

Bala November 20, 2009 at 4:32 am

ktibuk,

” They claim since the author doesn’t lose anything when someone copies his work, this means he can not own the novel to begin with. ”

Missed this out in my previous post. You have it all backwards. The argument STARTS by saying that the author cannot own the particular way of stringing words together because it is a pattern (remember, patterns cannot be “owned”), HENCE cannot claim ownership in MY book and HENCE cannot label my act of copying the book as aggression.

ktibuk November 20, 2009 at 4:41 am

Jay Lakner,

“You profess to believe that ideas can be owned. Yet you are either unwilling or unable to define exactly what an idea is.
You talk about individuals “creating” ideas and therefore having a rightful claim over those ideas. Yet I have not once seen you break down the concept of an idea into its constituent parts and demonstrate the prerequisite requirements for the “creation” of a new idea.”

Ä°deas are abstract reflections of the reality around us. Just like tangible things can be altered, so do reflections of reality. Taking a piece of wood and carving it to make a chair, is basically the same process as sensing natural sounds an altering them in your mind in a different pattern. And since every idea must originate from an individual every idea is unique. There may be instances where two people coming up with seemingly same abstraction but since the source, the individual is unique and these ideas are extension of the individual (dependent on them for their existence) they must be handled as unique.

Ideas are owned by people and this is a fact whether you like it or not. If you think of something and do not share it, whatever you think ownership implies, you have it. The problem starts with the social context. “Ought” comes in the picture once some one else comes along and has the possibility, the choice to aggress against this ownership or respect it. This is also true for physical property.

To say, “Well if you want to keep it yours then don’t tell anybody” disregarding what ethics is actually, is the same as saying “well if you want to keep you physical property then go live on an deserted island”. If I am isolated of course there is no way for anyone to aggress against my property, whether physical or not. No one can take the fish Crusoe caught and no one can copy the novel he wrote.

“Every new idea requires that there be older ideas upon which to build. A new idea is nothing more than the extention or combination of previous ideas.”

So does every consumer product. Every automobile producer first needs raw materials like iron ore and rubber. But this doesn’t give the right to automobile producers to just take the previously produced goods at whim. Cant you imagine a situation where someone pays someone for an idea then improves upon it? (This is done constantly in music business where some one pays the creator for the rights to remix or remake) Does he have to steal the original idea? It may seem to increase costs but so does paying for raw materials. And in the long run costs would actually be lowered because there would be more producers. If every auto manufacturer stole its raw materials there wouldn’t be any raw material producers and their actual costs would even be higher.

“You have also failed to consider the premise that a large proportion of human learning occurs through imitation. To grant ownership in ideas is to attempt to prevent human beings from learning and developing. You’ve said before that we need ethical principles based on reality. Imitation is reality. An ethical principle which outlaws imitation is clearly an ethical principle which is not based on reality.”

A similar thing can be said about physical property. Prosperity depends on trade. If there is private property trade would be left to the whims of the owners of the property. So there shouldn’t be any private property. And I am sure some socialist has said it.

Your problem here is, you think by giving the ownership rights to the owners they would all act in some manner you imagine. Even if we all concede to the fact treat IP is legitimate, this doesn’t mean every idea can and will be commercialized. This is not true.

Do parents charge money to their children because they have property rights? Do charity dissapears because property rights are respected? Are free give aways for promotional reasons unheard of in a capitalist society? In short, do you really think every physical property changes hand as a commercial transaction?

“Laws which defy the reality of human nature must eventually collapse. Intellectual property is no exception. You see, to prevent people from using an idea is also to prevent them from extending that idea, or combining it with other ideas. This reduces the number of available ideas in society for people to work with. Clearly the end result must be a stagnation in the rate of the generation of new ideas in society.”

Nobody is talking about preventing people to use an idea. I am talking about preventing the copying of the idea without the consent of the owner. If you come up with an idea, if you wrote your own novel, if you compose your own music, by all means do it. Even if the product is very similar to another’s as long as there is no copying nothing is wrong, and the burden of the proof is always on the accuser.

And again, private property doesn’t not reduce production. On the contrary, production is much more efficient in an environment where private property rights are respected. Both for physical and non physical property.

“You can already see growing evidence of this. In a relatively short time of patent legislation, a complex mine-field of patents has been created. Now businesses have to spend tens or even hundreds of thousands of dollars in legal fees every year to simply avoid getting sued.
The next mine-field to be created will be the copyright mine-field. At some point authors will be too afraid to publish their works in case they accidentally duplicate a passage from an existing book. Once again only those who can afford the exhorbitant legal fees would dare publish. Ultimately, new books will be a very rare thing.”

These are the problems arising from the states intervention in property rights not problems arising from private property itself. Patent laws are the result of the positivist approach to law and an abomination. There are also problems with the copyright laws too.

Peter Surda November 20, 2009 at 4:50 am

@Ktibuk:
I’ll cut my reply short, because most of what you write is completely irrelevant.

> Without him there would be no such book, hence
> there would be no possibility for person B to copy
> it.
This is not given in any way. Someone else might have written the book too. A book is just a collection of characters, and there is a finite number of possible contents. Surely, the probability that someone else might have written a book with the same content is not zero.

> Thus any action taken regarding the book,
> including copying of it, should be dependent on
> the consent of the owner.
You assume that there is no way to use a book without also using the immaterial features that are “behind it”. But there is no way to prove this. The connection between the two only exists in some people’s heads and cannot be empirically observed.

> Yes but this dichotomy of the physical and
> features behind it is a false dichotomy.
You are merely using this as an axiom. In my opinion, you need to prove it.

Let’s apply this way of thinking in another example. I pose a question. I homesteaded it. Because of the inability to distinguish between its physical represenation (being stored somewhere on a disk) and its meaning, I “own” the question.

You reply to it. The reply would have been impossible without the question. The question is not a nature-given free good, but it’s a man made product and an extension of the individual (me, the originator of the question). Therefore, logically, you are only permitted to reply when I allow you. Not only that, but any your subsequent actions that can be causally related to you reading my question require my approval (reading = copying).

> Now in this part you are making the fallacy of
> trying to define ethical rules based on some
> enforcement ability which seems to be quite
> common.
No, you are completely wrong here (and, historically, you have been incorrectly repeating the same allegation). I am not analysing the ethical rules, merely the logical. How do you prove there is no dichotomy, and how do you demarcate property? The example above showed the absurdity your proposal. If it is not possible to distinguish between a book and “its meaning”, is it possible to distinguish between any objects whose creation was in some way influenced by each other? If an audiobook in a different language represents the same property as the original dead paper book, where does the property actually end?

The point is, the meaning of a book only exists in people’s minds. It is an interpretation, an effect it caused in your brain while you were reading it. Without a mind, it doesn’t exist, and in every mind, it is different.

> Similarly can you imagine a world where the
> ownership rights of all the authors and composers
> and even inventors are respected?
As I demonstrated above, given your assumptions, there is no way to objectively demarcate ownership (which is a prerequisite for being able to use the property without violation of rights). Your principles of ownership would stretch their invisible tentacles all over and create a convoluted mess. Therefore, such a world is from practical point of view extremely difficult to live in and from theoretical point of view logically impossible.

I’ll make a new proposal. Here and now, I am creating an immaterial entity called “qgzxw”. I am also declaring (axiom) that, from that moment on, it is contained in everything that I can think of. Therefore, I own everything I can think of (conclusion).

Now try to disprove me.

Cheers,
Peter

ktibuk November 20, 2009 at 4:55 am

Bala,

You are confused. You are using all the arguments made previously by every subjectivist collectivist claiming society is made by social contract from Plato to all the way to Rousseau.

Please reread what you have written and think hard.

ktibuk November 20, 2009 at 5:20 am

Peter Surda,

If you care to read everything I write and reply to everything, your answers would show your irrationality but you choose to pick and choose the parts you want to reply to. Thus we can not engage in an argument.

“This is not given in any way. Someone else might have written the book too. A book is just a collection of characters, and there is a finite number of possible contents. Surely, the probability that someone else might have written a book with the same content is not zero.”

This is given because I gave it as an example. Someone else might not have written the book, because Person A wrote it. Someone else might write a similar book without any access to the said specific book, but that would be another book. Not the said book.

“You assume that there is no way to use a book without also using the immaterial features that are “behind it”. But there is no way to prove this. The connection between the two only exists in some people’s heads and cannot be empirically observed.”

What proof are you looking for? I gave the example. I say it is true. If you are talking about an actual case and the proof of judgement that is an enforcement issue.

Person A wrote the book. This is the reality. Reality doesn’t depend on you or your decision (or a courts decision). It exists. You may realize it, or you may not realize it. Someone may prove it in court or he may not. Court may give the right verdict or the wrong verdict. These all do not change the fact that Person A wrote the book.

“Let’s apply this way of thinking in another example. I pose a question. I homesteaded it. Because of the inability to distinguish between its physical represenation (being stored somewhere on a disk) and its meaning, I “own” the question.

You reply to it. The reply would have been impossible without the question. The question is not a nature-given free good, but it’s a man made product and an extension of the individual (me, the originator of the question). Therefore, logically, you are only permitted to reply when I allow you. Not only that, but any your subsequent actions that can be causally related to you reading my question require my approval (reading = copying).”

If you share an idea with someone you do it based on a contract, not always a written one but most of the time on a verbal implied contract. You may attach no strings to it and give it away for free, which people mostly do, or you may share it based on a contract. If you tell the conditions before you share and the other accepts it is a valid contract. If you just say it this means you gave it away.

And why are you going at great lengths just to give an unlikely example? Why don’t you base your example on a book, or a movie, or a piece of software? I think I know the reason but I wont say it.

“No, you are completely wrong here (and, historically, you have been incorrectly repeating the same allegation). I am not analysing the ethical rules, merely the logical. How do you prove there is no dichotomy, and how do you demarcate property? The example above showed the absurdity your proposal. If it is not possible to distinguish between a book and “its meaning”, is it possible to distinguish between any objects whose creation was in some way influenced by each other? If an audiobook in a different language represents the same property as the original dead paper book, where does the property actually end?

The point is, the meaning of a book only exists in people’s minds. It is an interpretation, an effect it caused in your brain while you were reading it. Without a mind, it doesn’t exist, and in every mind, it is different.”

I don’t know what you mean by “meaning of a book”, but the book doesn’t need a second party other than the author to exist. If Robinson Crusoe writes a book it exists, whether some other individual ever knows about or not.

“I’ll make a new proposal. Here and now, I am creating an immaterial entity called “qgzxw”. I am also declaring (axiom) that, from that moment on, it is contained in everything that I can think of. Therefore, I own everything I can think of (conclusion).”

You can not declare anything like that. You can only try to prevent some other person to copy whatever you created without your consent.

Peter Surda November 20, 2009 at 6:36 am

@Ktibuk:
> If you care to read everything I write and reply to
> everything ..
Most of what you write is, maybe, right (I don’t know), but completely irrelevant.

> This is given because I gave it as an example.
But the example does not demonstrate the necessary “spread” of property. What we empirically observed is that person B was exposed to a book created by A and created a new book. In certain cases, the books have similar physical characteristics, in certain cases, (e.g. format change, translation), they don’t. How do you know that B “used” A’s book? That is only a subjective interpretation.

> What proof are you looking for?
The proof that the dichotomy is false. You merely state it as an axiom. I claim that it isn’t an axiom, rather a conclusion that needs to be proven. I also claim that the conclusion is wrong.

> These all do not change the fact that Person A
> wrote the book.
I completely agree. However, that person B copies that book isn’t a fact. It’s an interpretation.

> If you share an idea with someone you do it
> based on a contract, …
Treated from this direction, it is correct. However, not from the opposite: if one gets exposed to an idea, that doesn’t necessarily mean that there is an underlying contract. This phenomenon precisely mimics the more broad contract vs. IP issue. I may have an implicit contract with whoever hosts the website, but there is no contract between you and me.

Also, how do you know that the other party is using your idea? You need to interpret their words or actions and try to find similarities.

> And why are you going at great lengths just to
> give an unlikely example?
To persuade you that the immaterial properties only exist in mind, are subjective and not natural at all. Without them, a book is just a physical object and a copy a different physical object.

> I don’t know what you mean by “meaning of a
> book” …
I’m completely suprised by this revelation. What else besides the meaning and the physical attributes is there to a book? Everything besides the physical attributes is just an interpretation, not an objective attribute.

(my absurd example)
> You can only try to prevent some other person to
> copy whatever you created without your consent.
But how do you know that the copying has or hasn’t occurred? The only thing you can do is to compare physical attributes of the objects. Anything else is subjective. How is your claim any more objective than mine?

So, after all this time, let me summarise:

- You allege that usage of immaterial goods implicates that there is a contract. I disagree, there are cases where there is no contract (or, addressing this from a different perspective, the immaterial good used is a different one, homesteaded separately, so there is no need for a contract).
- You allege that there is a false dichotomy between material and immaterial features of a good. I disagree, see next one.
- You allege that the immaterial properties of a creation are objective. I disagree, any immaterial property is made up, subjective and has no existence besides interpretation.
- You allege that copying can be objectively determined. I disagree, we can only observe physical attributes and activities and make subjective judgements whether copying occurred.
- You have not explained how to demarcate immaterial property, I allege that the rules cannot be objectively determined.

To summarise the summary: unless you are able to satisfactorily explain the above, you need to conclude that IP is subjective, and consequences, when applied consistently, lead to absurd outcomes.

ktibuk November 20, 2009 at 7:17 am

Peter Surda,

All you are saying is,

That you can not imagine a perfect world where each and every possible aggression against IP can be identified and justly dealt with.

I am saying, raping a passed out woman without physically damaging anything, is wrong.

You are saying, there is no way to prove the rape took place in every instance this can happen thus we can not say (ethically clasify) this kind of rape is wrong.

And besides what you say isn’t true in real life either. There are more difficulties identifying and remedying wrongs toward IP, say relative to physical property but this doesn’t change the fact a wrong can be done.

I know some people will copy others creations without consent, by reverse engineering and practically nothing can be done. But this doesn’t change the fact that an ethical wrong has been done.

“- You allege that usage of immaterial goods implicates that there is a contract. I disagree, there are cases where there is no contract (or, addressing this from a different perspective, the immaterial good used is a different one, homesteaded separately, so there is no need for a contract).”

No, I allege when one person shares any information with another there is always a contract. Either he is giving away the idea unconditionally as a gift, or there are conditions regarding it. It is the givers responsibility to make clear what the terms are.

But this doesn’t mean a contract creates the IP. IP exists prior to any contract, contracts are a tool used to share. To bring the isolated idea to society. That is why 3rd parties aren’t off the hook.

“You allege that there is a false dichotomy between material and immaterial features of a good. I disagree, see next one.”

Yes. A book contains the “meaning of the book” as you put it, in its definition. Otherwise it would be called a notebook. When people talk about a book they don’t just mean the physical paper, ink and binding. “Human Action” is not something physical, although it definitely always embedded in something physical.

If you separate the essence of the book, the book itself, from the physical how are you going to differentiate between Human Action and Harry Potter?

“- You allege that the immaterial properties of a creation are objective. I disagree, any immaterial property is made up, subjective and has no existence besides interpretation.”

They are made up, by humans, but they are objective. You may interpret a book differently but the book doesn’t need you, or any second party to exist. It only needs the author to exist. In short every IP is part of reality and reality exist.

“- You allege that copying can be objectively determined. I disagree, we can only observe physical attributes and activities and make subjective judgements whether copying occurred.”

Maybe it can be determined by others maybe not. That is not the point. The point is, a copying of the original either takes place or it doesn’t. Something is either A or it isn’t A, as Aristotle would say. These two possible scenarios don’t depend on the perceptions of others. Others would either sense reality (the fact that either copying took place or not) or they may fail to do so.

If you are claiming there is no objective reality (in this case about copying) or objective reality can not be known to men that is another issue.

“- You have not explained how to demarcate immaterial property, I allege that the rules cannot be objectively determined.”

The rule is simple, you need consent of the creator to have access to IP. Ä°t seems pretty objective to me.

Peter Surda November 20, 2009 at 8:56 am

@Ktibuk:

> That you can not imagine a perfect world where
> each and every possible aggression against IP can
> be identified and justly dealt with.
No, you yet again fail to understand what I’m saying. What I’m saying is that even if everyone knew all the facts and agreed on them, still evaluation of IP violations is subjective, because the immaterial features depend on the state of one’s mind. I already said it multiple times over a period of almost a year. You keep pushing it into the fact gathering/enforcement area. Reread what I wrote and reevaluate in light of this.

> You are saying, there is no way to prove the rape
> took place in every instance this can happen thus
> we can not say (ethically clasify) this kind of rape
> is wrong.
No ktibuk. What I say is that a causal relationship is a necessary, but not a sufficient, determinant of property violation. If taken to extreme, practically anything that you do after being exposed to an idea is causally related to that exposure (because it wouldn’t have happened without it), but that doesn’t automatically mean you have to ask for permission for doing anything.

> But this doesn’t change the fact that an ethical
> wrong has been done.
Stop with that ethical part. I don’t dispute the normative, only the positive, parts of your claim. I dispute the step before the ethical. I claim that copying cannot be objectively determined based on the facts only. You can only determine whether copying has happened after interpreting the original and the copy, and evaluating the amount of similarities. Which is a subjective thing.

> No, I allege when one person shares any
> information with another there is always a
> contract.
But you also allege the converse implication, which I claim needs to be proven, because it requires a separate logical stop. In math speak:
A => B is not equivalent with B => A
I also claim, in an additional step, that B => A is incorrect. Back to casual language, just because B is exposed to an idea does not mean that there was a contract or that it involves A in any way and certainly doesn’t require that A shares anything towards B.

> But this doesn’t mean a contract creates the IP.
Actually, it does. Since immaterial properties only exist in minds, rights thereupon can only result from contracts.

> A book contains the “meaning of the book” as you
> put it, in its definition.
Meaning is subjective and only exists in minds. It therefore cannot be a part of the book.

> If you separate the essence of the book, the book
> itself, from the physical how are you going to
> differentiate between Human Action and Harry
> Potter?
See previous paragraph. The difference is, on one hand, that the books are different physical entities, and on second hand, their meaning in my mind is different. So actually, you are wrong in your assumption. I never alleged that they are same. On the contrary, I allege the opposite: that two copies of Human Action or Harry Potter, respectively, are objectively different, whereas you allege that they are objectively the same. They are only the same subjectively.

> They are made up, by humans, but they are
> objective.
I think you misunderstand me. I don’t claim that it doesn’t exist in your head, but that it isn’t an integral part of the book. A book in english, for example, has no meaning without the english language. Does it mean english language is also objectively part of the book? What about the meaning of the roman letters, font, cultural context, math, logic, necessary for the book to have any meaning, are they also part of the book?

> You may interpret a book differently but the book
> doesn’t need you, or any second party to exist.
Only its physical aspects. All the other aspects are in mind only.

> Something is either A or it isn’t A, as Aristotle
> would say.
They are not A and A, but A and B. An original and a copy are, objectively, completely separate entities. The connection only exists in people’s heads.

> If you are claiming there is no objective reality (in
> this case about copying) or objective reality can
> not be known to men that is another issue.
Again, I think you miss core argument. There are some things which we can objectively determine, and there are some things which we can’t (and are therefore subjective). We can objectively determine the physical aspect of copying, but we cannot objectively determine the immaterial aspect of the copying, because it is subject to interpretation.

> The rule is simple, you need consent of the
> creator to have access to IP.
This evades the question, or, probably, shows that you don’t understand it. So let me rephrase it: how do you determine that two objects/actions refer to the same immaterial property, even if you have all the possible facts? Causal relationship is ok, but insufficient, as demonstrated above. Beyond that, you only have subjective evaluation.

Again, a summary: the only connection between an original and a copy is in people’s heads, and is therefore subjective. If one wants to be free of subjective evaluations and only make conclusions based on objective facts, one has to conclude that an original and a copy are separate entities. They merely subjectively appear similar to some people.

Bala November 20, 2009 at 9:08 am

kbituk,

” You are confused. You are using all the arguments made previously by every subjectivist collectivist claiming society is made by social contract from Plato to all the way to Rousseau. ”

I said “social context”. I wonder how that means “social contract”. I also wonder who is confused.

Collectivist??? Please explain how you claim my arguments to be collectivist. Failing a proper explanation, I will have to infer that you are engaging in smear and shall stop this discussion right here and now.

p.s. My conception of Rights is precisely as stated by Ayn Rand. Are you going to turn around and call Ayn Rand a collectivist thinker? That would be a very interesting position to take.

TokyoTom November 20, 2009 at 9:13 am

It seems to me that Stephan – as most libertarians who focus on principles – fails to ground his fine edifice on or link it into what we understand of the continual saga of competition and cooperation in Nature for acquiring, using and protecting scarce resources, and man`s ascendant path.

Basically, “property” is simply the name we give to the resources that we are able personally to protect, as well as those which – via sophisticated shared mechanisms that continue to be developed within communities over time – we can protect, plus our recognized share of common assets.

In a state of nature, very little is secure, as most life forms have limited means of securing or maintaining exclusive control over assets. What one predator catches, another often soon steals. Different species have developed different ways of coping with the ongoing struggle, utilizing varying degrees of cunning, speed, strength and cooperation.

Humans have triumphed over the rest of nature because we have found sophisticated ways of balancing individual initiative and moderating intra-group struggle with cooperation, and devised methods to acquire, use and defend resources.

Property has been a key tool, but we can readily see that our “property” has its roots in the ways that our cousin creatures invest energy in marking out territory, fighting (individually or in groups) to protect their young, and growling over bones. At the same time, we can see that animals treat each other as dinner, make calculated decisions as to when to “steal” resources that others are guarding, and as well find advantage in cooperating, both with relatives of their kind and with others.

Our need to defend property from other groups has fed our inbred mutual suspicions of “others”, and our ongoing battles, both for dominance within groups and to acquire the resources held by rival groups, – and has led directly to states.

Bruce Yandle has addressed the ascendance of man through methods such as property to facilitate cooperation and to abate ruinous conflicts over resources; he has an interesting short piece I`ve excerpted here: http://mises.org/Community/blogs/tokyotom/archive/2009/11/20/bruce-yandle-on-the-tragedy-of-the-commons-the-evolution-of-cooperation-and-property.aspx#

To tie this in more closely with Stephan`s battle with libertarians and others over IP, I note I have further discussed the ways that groups have, in order to strengthen group cohesion and dampen conflict, of developing and inculcating mores; formal religions are obviously just one branch of this tree:

- see my discussion with fundamentalist here: http://mises.org/Community/blogs/tokyotom/archive/2009/08/30/a-few-simple-thoughts-on-the-evolution-of-moral-codes-and-why-we-fight-over-them-and-religion-liberty-and-the-state.aspx

- and my discussions with Gene Callaha and Bob Murphy on whether there are “objective” moral truths, or simply a felt need on their part to find some: http://mises.org/Community/blogs/tokyotom/search.aspx?q=callahan+moral

These are relevant because they explore not property per se, but our related need to make our property rules stick, by tying them to “sacred postulates” of one kind or another. The problem with this, of course, is that it makes us difficult to abandon what we all pretty much assumed was sacred, like IP. (Of course it also makes even discussing property quite difficult at times.)

TT

Lord Buzungulus, Bringer of the Purple Light November 20, 2009 at 9:19 am

TokyoTom’s latest post is, frankly, bizarre, and I fail to see that it has anything do with the issues of property rights and IP.

ktibuk November 20, 2009 at 10:05 am

Peter Surda,

“No, you yet again fail to understand what I’m saying. What I’m saying is that even if everyone knew all the facts and agreed on them, still evaluation of IP violations is subjective, because the immaterial features depend on the state of one’s mind. I already said it multiple times over a period of almost a year. You keep pushing it into the fact gathering/enforcement area. Reread what I wrote and reevaluate in light of this.”

You have deeper philosophical problem. You deny the fact that reality exists.

Lets say the facts are,

Mises wrote Human Action. You copied it without his content.

Now, are you telling me this is not an objective reality?

Even if we assume there is a probability that you yourself actually wrote the same exact book, the fact that you actually copied it is a fact. It happened.

Some third party may need to judge this. He would face two claims. Either you copied it or you independently wrote.

The fact that you copied it doesn’t depend on the judgement.

Even if the judgment is that you yourself independently wrote it, it is a wrong judgement and it is an example of failing to realize reality.

Unless you realize A is A, existence exits, you will have problem understanding me.

Bala November 20, 2009 at 10:26 am

ktibuk,

” Unless you realize A is A, existence exits, you will have problem understanding me. ”

I realise this completely and hence understand fully well what you are saying. Armed with this understanding, I am saying you are wrong.

For instance, when you say “consent of the owner of an idea or pattern”, you are dead wrong because ideas and patterns can only be
1. originated
2. understood
3. remembered
4. recalled
5. implemented

Ownership requires that the option of exclusion exists in the very nature of the “object” in question.

In the case of material objects, exclusion does not require initiation of force. With ideas and patterns, however, exclusion necessarily requires initiation of force.

Therefore, in a society that recognises the Rights to Life and Liberty as inalienable, material objects can be property while ideas can never be. This does not demean ideas, but is only an identification of their nature and the irrationality of giving them the status of property.

Now, who is failing to understand the meaning of the statements “A is A” and “Existence exists”? You or me?

Stephan Kinsella November 20, 2009 at 10:43 am

Lord B– re TokyoTizzom — I kind of agree.

Tom: I really am not sure what you are asking. You seem to be rambling in a sort of New Age libertarian “we’re all practical moderates can’t we just get along Rodney king” kind of way, “can’t we just have incremental improvement, kumbaya”.

Maybe I’m misreading you. I just can’t follow this amorphous way of thinking.

Peter Surda November 20, 2009 at 10:50 am

@ktibuk:
> You deny the fact that reality exists.
No, I deny that subjective evaluations are objective. You claim that your imagination is an objective truth.

> Mises wrote Human Action. You copied it without
> his content. Now, are you telling me this is not an
> objective reality?
No. What I’m saying is that there is no objective evidence of the immaterial features of the book being copied. The only thing that you have ascertained is the physical aspects of the copying. And, obviously, from objective point of view, the material aspects of the copy are different than those of the original. From subjective point of view, I agree that the immaterial features have been copied, but only because my brain is able to intepret each of the copies and find similarities, therefore, it appears that way to me.

> Even if we assume there is a probability that you
> yourself actually wrote the same exact book, the
> fact that you actually copied it is a fact. It
> happened.
You misunderstand. I agree that the physical act of copying happened and can be objectively ascertained. But from objective perspective, the book isn’t “the same exact book” as you allege. It is only the same in your mind. There is no objective evidence of the copying happening on the immaterial level, it’s just a matter of interpretation.

> Some third party may need to judge this.
Same misunderstanding.

> The fact that you copied it doesn’t depend on the
> judgement.
The fact that copying of physical aspects occurred doesn’t. But the allegation that the copying of immaterial aspects happened does. There is no objective way of determining that.

> Even if the judgment is that you yourself
> independently wrote it, it is a wrong judgement
> and it is an example of failing to realize reality.
But how do you objectively prove that the immaterial aspectsof the original and the copy are identical? You cannot measure them, you can only interpret them. If left to objective facts, you need to conclude that the material aspects are obviously different.

> Unless you realize A is A …
Again, A is not A, A is B. Or are you claiming that there is no possible way to distinguish between an original and a copy? Your eyes see only one object?

Let’s say I botch the copying process and the copy is garbled beyond any recognition. So is it a copy or not? How do you determine that objectively?

I assume you’d say it is. But then where do you draw the line between causality and ownership? Anything that you do after being explosed to the book can be then be alleged to be copying (because there is a causal relationship). You’d be stuck, unable to move or breath, without any approval from the originator. Since there is no way to objectively draw the line, we conclude this approach is subjective.

So let’s assume that a botched copy it isn’t really a copy. Then, years afterwards, a new machine will be built, able to decipher it. This also proves it’s subjective.

Either way, immaterial aspects of anything are purely subjective, only exist in minds and so does the connection between them and the material aspects of the goods.

ktibuk November 20, 2009 at 11:43 am

“Ownership requires that the option of exclusion exists in the very nature of the “object” in question.”

Ownership only requires an individual to alter a nature given thing, a physical object or an abstraction of it, and make it his. Nothing else.

“In the case of material objects, exclusion does not require initiation of force. With ideas and patterns, however, exclusion necessarily requires initiation of force.”

No. Material or immaterial the same is true. Robinson Crusoe catches a fish and make it his. He may also write a novel and make it his. When Friday enters the picture he may respect and accept reality, that Crusoe owns the fish and novel. or he may aggress against him by taking his fish or copy his novel against Crusoe’s consent.

TokyoTom November 20, 2009 at 11:54 am

LBBPL & Stephan:

Sure, it`s a bolt from the blue and kinda past my bedtime, but it`s not so hard:

The deep roots of “property” are not in principle but in simple competition, physical defense of assets valuable enough to make the effort worthwhile, and in the grudging recognition by others – more willingly offered by those who share bonds of community – that yielding to others` claims may be more productive than challenging them. This is as true for rest of creation as it is for man. While we have developed property to a a very sophisticated degree, at it`s core property remains very much about the Darwinian struggle to survive and prosper, violence, theft and calculations as to when challenging control over an asset is not worth the effort.

To the extent we`re past that, which is quite a ways indeed, property is a social construct that is flexible (though rigidified in various ways, including legislation) and based primarily on practical considerations as to what parameters best engender wealth and respond to shared purposes by minimizing free-for-alls, externalities, free-riding & rent-seeking and facilitating voluntary transactions.

Elinor Ostrom has spent alot of time documenting sophisticated local community property rights, all of which at the end of the day all supported by threats of sanctions and violence against rule breakers and outsiders. http://bit.ly/2caqUr

It`s natural that we feel strongly about what we consider to be ours, but this feeling is a gut one that is not in essence grounded on principles deeper than our sense of fair play and just desserts in a community to which we feel we have bonds of common purpose.

And we have a natural tendency to dress up our shared institutions – such as property rights – in moral precepts.

But we always remain subject to problems of theft, especially so as our bonds of community and shared purpose loosen. Libertarians are absolutely right to keep shining a spotlight on how the state has become an instrument of theft.

As for IP, as specialized knowledge can be quite valuable, it seems quite possible for me to imagine a society that developed IP and enforced it mutually, as a way to minimize high costs for protecting trade secrets.But such rules would not be enforceable against other societies, unless resort is made to government. And it seems clear to me that there are substantial rent-seeking costs now associated with state-granted IP.

To roll things back, just the argument that things out of control and is now grossly abused and counterproductive is good enough for me, but I wish you luck in wielding arguments of principle. That`s the great thing about being a pragmatist.

TT

Bala November 20, 2009 at 8:40 pm

ktibuk,

Please explain what you mean by this

” ….. and make it his…. ”

How can he make it “his”? What are the specific actions he needs to undertake to “make” it “his” and keep it that way? That is precisely what I have been explaining and which you have been evading.

The utter ridiculousness and in fact the evil nature of IP will become apparent in this exploration.

Comments on this entry are closed.

Previous post:

Next post: