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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 }

Beefcake the Mighty November 17, 2009 at 7:54 am

In anticipation of what we all know is coming, I’d like to say now: Silas, piss off.

Ned Netterville November 17, 2009 at 11:53 am

Stephen, in the final analysis–that is to say, in the last short paragraph of your long article–you say all that needs to be said to persuade me that IP, like the necessity of men (and women) governing other men (and women), should be understood by libertarians to be an intellectual fraud. Thanks.

Andras November 17, 2009 at 12:08 pm

From liberal to libertarian then to librarian.
What a descent!!

Fallon November 17, 2009 at 1:22 pm

Here I was thinking that getting rid of public schools- especially the unions- was the ‘Cobden and Bright’ anti-privilege issue of our time. Nope. IP is.

Is there an Anti-IP League (a la Anti-Corn Law League) yet?

PirateRothbard November 17, 2009 at 2:45 pm

Kinsella is a great writer, maybe the best at Von Mises.

But I don’t really care for his public speaking. When I saw the video of him giving this speech I couldn’t get used to his southern accent. I’m just biased like that.

Bob Kaercher November 17, 2009 at 2:50 pm

Nicely done, Stephan.

(And, if I may add, that was quite skillful use of the Rothbardian color-coded hypothetical parties.)

John Deal November 17, 2009 at 3:03 pm

OK Stephan. I think I agree with you but here is a question for you: Can a certain piece of property be homesteaded in different ways, giving one person certain rights to a property while another has other rights to the same property? I believe Ms Rand argued that subsurface rights do not necessarily belong to the surface homesteader. Similarly perhaps I can find a concurrent use for the soil in which you grow your crops that does not interfere with your ability to grow your crops.
Of course you would argue that either way those rights are real and the subsurface property limited, but Ms Rand might say there is no difference between the subsurface property and something that wouldn’t even exist if not for the thought of the creator (and thus limited). I’m not saying this is the correct analysis, I just think you have not done justice to the counterargument.
And the property might have unlimited concurrent uses that you may not have contemplated. Do those belong to you? or may I homestead the property for some or all of those other uses? I guess what I am trying to say is that there are multiple dimensions in which a thing can be used. Does your homesteading something in one dimension entitle you to the the thing in all other dimensions? or are there limits to property? if there are limits for “real” things then why not for thoughts?

FYI I think Ms Rand’s arguments with respect to subsurface property was simply a means to justify the taking of surface property that she knew should have been retained by the aboriginal homesteaders. I think homesteading property for one use gives you a right to the property in all others, but that is simply because it is easier, not because you or I have any reason to think it so.

Zach Bush November 17, 2009 at 4:34 pm

@John Deal

I was reading through your post and was going to respond with the fact that Rand probably just used that argument to justify her position that it was OK for US oil companies to drill in other countries. But then you beat me to it in the FYI.

I do not believe that the existence of a third dimension undermines Mr Kinsella’s point, for if it did it would render his legal framework useless because it fails to address the real world.

I believe once you homestead an area XY of land, you then have claim to a cube with dimensions XYZ; Z equaling a range of +Z to -Z, with Z=0 equal to ground level.

I feel this is justified because in order to use the subsurface (-Z) you would have to first break the surface (Z=0), which is clearly owned by the homesteader.

I think Rothbard made similar arguments in a paper on property rights and pollution.

Mr Kinsella brought up a great point about utilitarian arguments and their tendency to lead to justification of any crime imaginable. I am currently reading Mises’ “Socialism” and I almost had to stop reading when I read that he justified England’s colonization of India on the grounds that it opened up the global marketplace to more goods and resources.

Reading this was pretty much the deciding factor in abandoning the classical liberal (minarchist) position for anarcho-capitalism (archist).

Zach Bush November 17, 2009 at 4:37 pm

Note: Reading this was pretty much the deciding factor in abandoning the classical liberal (minarchist) position for anarcho-capitalism (archist).

THIS in the above is referring to Mises’ justification of England’s colonization of India.

Zach Bush November 17, 2009 at 4:52 pm

“And the property might have unlimited concurrent uses that you may not have contemplated. Do those belong to you? or may I homestead the property for some or all of those other uses?”

If you do not put them to use, then you do not own those uses. You only own the property. If you do not put the property to its most productive use, then that is your loss. If an entrepreneur believes that the land is not being put to use, he will then try to buy it from the current owner (or steal it using eminent domain). Depending on the owners subjective value of the land, he will sell it or he will not (or he could choose to rent/lease it). In the case of a full sale, the owner forfeits any future value that the property may produce.

I think a good example would be if I were the original inventor of the wheel. But for some reason rather than use it to help transport heavy material, I choose to use it as a toy to entertain myself. Another individual comes along and sees my wheel and knows that he could use that wheel for more profitable purposes. This does not justify the entrepreneur from taking my wheel and using it. He could, however, go back to his house and, using his own property, make his own wheel and do whatever he would like with it. I would not (in an anarcho-capitalist society) be able to lay claim to any of the entrepreneurs future income.

Andrew Lynch November 17, 2009 at 5:42 pm

Kinsella: “They cannot point to any study to support their utilitarian contention; they usually just point to Article 1, Section 8 of the Constitution, as if the backroom dealings of politicians two centuries ago were some sort of evidence.”

This confuses me. I understand the context in which he makes this remark, but I don’t understand why he wouldn’t enrich the context by even briefly exploring the “backroom dealings.” Without that perspective, it sounds only as if he has long ago dismissed the value of “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Isn’t this sort of selective dismissal of Constitutional parts and pieces what we loathe in political sophists?

overtheedge November 17, 2009 at 6:26 pm

Quote: a property right is the exclusive right to control a scarce resource;[13] property rights just specify who owns, who has the right to control, scarce resources.
Unquote

So the creator of the idea is owned by the public? I thought Libertarianism was individual, but this piece states no. We are owned by the body politic according to this monograph.

I shall explain. If I am sovereign, then my thoughts are mine. If I use my thoughts to create an item, then the item is mine. My thoughts are scarce as I am the only possessor. Ergo, my creation is scarce.

However, this article claims that my thoughts aren’t mine to control as I see fit. The very act of creation, if observed by a second party, can easily result in the theft of my right of control and its transfer to the public. The public then has the right to render my creation a non-scarce item and deprive me from any financial benefit.

Effectively, the public has a claim against my person that I never tendered. So now we have the public right superior to the private right.

Therefore my thoughts have zero value and belong to the public. Any and all expenses I spent pursuing the idea are expropriated by the public.

In the name of Libertarianism, we trot out Socialism and make individuals slaves to the body politic. It is either my right to pursue my idea or it is a public right to my idea.

No thanks and the argument fails. I readily agree that IP rights are way out of control. “limitted Time to Authors and Inventors” has morphed into unlimitted and transferable.

matskralc November 17, 2009 at 6:36 pm

I shall explain. If I am sovereign, then my thoughts are mine. If I use my thoughts to create an item, then the item is mine. My thoughts are scarce as I am the only possessor. Ergo, my creation is scarce.

Once your thought enters my mind, whether by my seeing its fruit, your telling it to me, my reading about it, or whatever, it’s not your thought anymore. Now it’s my thought in my mind. Stop claiming ownership of my mind.

Sophisticated Serpent November 17, 2009 at 6:37 pm

I really do not think that, from a concrete perspective, ‘ideas’ can be considered “not scarce”. They are scarce, indeed.
Unless you embrace a sort of platonism – you should agree that the number of useful, concrete, and realistic ideas are finite in number. I invite everybody to think about it. Each modification of every single ideal structure must meet certain standards in order to realistic (you cannot make infinitesimal variations in real life, for example).

Besides, IP laws provide a service to capitalists – I really do not undestand why lately libertarians (I consider myself one, somehow) are opposing them so much. If I invest a lot of capital to create a product with certain structural features and I expect that these features are going to make the difference – why shuold I let my concurrents profit from my investment at lower cost (copying costs are typically inferior to development costs). Without IP laws, some private entity would provide similar services to innovative investors, belive me.

Last remark. The idea that IP laws are there to “prevent others from using their own property” can apply also to phisical property. Thieves own a lot of fancy tools – which are very useful when you have to steal something. So, technically, there are laws that – in order to protect your property – prevent thieves from using their own. Is that bothering a libertarian spirit? No, because the “respect” of one’s property comes first – the “freedom to use” things you own comes last.

Andrea

T. Ralph Kays November 17, 2009 at 6:45 pm

Sophisticated? Serpent

From a concrete perspective, what is the physical limitation on how many people can have the same idea? Ideas might be scarce, but we aren’t talking about anyone owning “all ideas”, just an idea.

Sophisticated Serpent November 17, 2009 at 7:05 pm

Ralph, I think we should first clarify what it means to “have an idea”. Is it something in our brain? Where exactly? How can you demonstrate me that you had an idea, concretely? You cannot pull anything tangible out of your skull, of course (except lots of organic material).

If you think it’s possible for two or more people to “have the same idea” then you are being platonic. You are assuming that somewhere there is a very light and immaterial object (the idea) and that this weird thing is parasiting two or more brains (maybe souls?) at the same time.

Of course I cannot proove that such scenario is false. It’s just a matter of taste – as for me, I am trying to quit platonism, I don’t think it’s healthy.

I do not think that immaterial ideas exist – and when you give the concrete TRANSLATION of an idea, then – my friend – we are talking about concrete, everyday, scarce objects. At least, this is how I see it.

T. Ralph Kays November 17, 2009 at 7:20 pm

Sophisticated? Serpent

Now you are just playing the part of the eternal skeptic.

ABR November 17, 2009 at 7:33 pm

Kinsella mentions that libertarians “already realize that “intellectual” rights, such as the right to a reputation protected by defamation law, are illegitimate.” It’s an excellent point, and it illustrates what I see as an essential dilemma facing libertarians and anarchists.

Libertarians developed a theory of property rights in tandem with the non-aggression axiom. [Or ‘principle' as Kinsella prefers to call it.] A person’s reputation cannot be deemed property—one cannot sell it—and even if it were property, it would belong not to the person in question but to those holding an opinion about the subject. Ergo, a reputation does not qualify for protection under the non-aggression axiom.

Libertarians developed their theory of property assuming the existence of a State. Later on, libertarians such as Rothbard turned against the State completely, declaring themselves to be anarcho-capitalists. But these same libertarians failed to reconsider the basis of their rules of property, which were a defence against the State. Once a fiat monopoly of government is replaced by a free market of government, one ought to reconsider those earlier defences.

The right of an accused to remain silent, for example, is critical to English Common Law. But would every society embrace that right voluntarily? I think not. Some would prefer a lesser right: the right to remain silent until tried. Why would some prefer the lesser right? Because they’d see the lesser right as in the self-interest of their members. It would be easier to convict a genuine criminal in the absence of that right, and the obligation to answer questions at trial would be so rarely invoked, from the perspective of an honest member who expects never to be tried, that he might gladly accept that obligation. Those wishing to remain silent at trial are free to join another society or form one of their own.

Kinsella argues that IP is not a scarce resource, and therefore does not qualify as property. Creativity, of course, is scarce but no one (ideally) is obstructing creative people from pursuing their intellectual endeavours. Hence, let’s abandon IP. Hurrah!

The problem here is similar to that of defamation. Most people, including libertarians, would agree that it’s wrong for a person to defame, knowingly, another person. Most people, including some libertarians, would agree that it’s wrong for person X to spend years of his life on a creative work, one that millions are most happy to have read, seen or heard, and then for X to receive no remuneration for his efforts.

Members of a voluntary society are likely to consider both the benefits and negatives of defamation law or IP law. The details of a proposed law would greatly influence each member’s decision as to whether one should accept or reject that law.

Kinsella writes near the end of his article: “A patent or copyright code could no more arise in the decentralized, case-based legal system of a free society than could the Americans with Disabilities Act.” Which free society? The Kinsella Society? Are we going to replace one monopoly with another?

Kinsella writes earlier: “The libertarian view is that each person completely owns his own body—at least initially, until something changes this, such as if he commits some crime by which he forfeits or loses some of his rights.” This statement is misleading. Under libertarianism, a person is not allowed to strike another person aggressively. Nor is a person allowed to trespass on another person’s land. Effectively, others are constraining the behaviour of each person. A person does not completely own his own body.

In regard to land, Kinsella describes the homestead principle and the prior-later distinction. He assumes, as do most libertarians, that ownership is eternal and universal. But some argue that ownership of land is merely an agreement among neighbours as to who owns what. Agreements sometimes come to an end. An employer informs an employee that his services are no longer needed. An employee resigns.

Strangers might arrive in the neighbourhood and note that in years past they used to travel through the residents’ land. The strangers argue that they will only recognise the residents as exclusive owners until the latter have compensated the strangers for having lessened their right to travel freely.

I am not endorsing chaos, here, nor am I endorsing extortion. My point is that the libertarian view of property is but one of many. In a free society, laws are agreements. Agreements can take many forms.

In the IP section, Kinsella writes: “the state is assigning to A [the creator] a right to control B’s property: A can tell B not to do certain things with it. Since ownership is the right to control, IP grants to A co-ownership of B’s property. This clearly cannot be justified under libertarian principles. B already owns his property.”

But B is already being told what he can and cannot do with his property. He cannot launch rockets against his neighbour. He cannot start fires on his property that spread to his neighbours’ property. A restriction on B not to print Atlas Shrugged is merely one of many restrictions he faces.

In the Utilitarianism section, Kinsella argues that “all sorts of terrible policies could be justified this way: why not take half of Bill Gates’s fortune and give it to the poor?” Kinsella’s warning is apt in the context of the State. But in the context of a voluntary society, I don’t think it likely that members would agree to such a policy. Even Bill Gates, the philanthropist that he’s become, is not likely to agree to that policy.

Utility has a place within a voluntary society. That is, members might agree to a law out of self-interest. Indeed, I see no reason why any rational person would agree to a law for any other reason. It may turn out to be that any version of IP would fail to serve the self-interest of any set of persons, but I doubt it.

Kinsella writes: “…what is bizarre is that utilitarian libertarians are in favor of IP when they have not demonstrated that IP does increase overall wealth.” Kinsella makes a good point—though utilitarianism is usually thought of as a system that promotes the greater good—but how could anyone offer a conclusive demonstration? One would have to conduct an experiment in dual worlds that are identical in all respects but one: world X has IP; world Y does not.

Kinsella writes: “It is beyond dispute that the IP system imposes significant costs, in monetary terms alone, not to mention its costs in terms of liberty.” He is correct on both accounts, but in regard to costs, one could devise an alternate IP system that entails lower costs.

Kinsella writes: “The usual argument, that the incentive provided by IP law stimulates additional innovation and creativity, has not even been proven.” What one can be sure of, however, is that profit is a motivator. If an artist or inventor is faced with the prospect of penury no matter how successful his work might be, he will be less inclined to produce that work.

T. Ralph Kays November 17, 2009 at 7:49 pm

ABR

Your argument boils down to “people in a voluntary society will adopt nonvoluntary practises”, not really much of a point.

Stephan Kinsella November 17, 2009 at 8:30 pm

Andrew Lynch:

Kinsella: “They cannot point to any study to support their utilitarian contention; they usually just point to Article 1, Section 8 of the Constitution, as if the backroom dealings of politicians two centuries ago were some sort of evidence.”

This confuses me. I understand the context in which he makes this remark, but I don’t understand why he wouldn’t enrich the context by even briefly exploring the “backroom dealings.”

What I mean is that the provision in the Constitution doesn’t prove that IP is justified. It only proves that a bunch of politicians put it in there. What do they know?

Without that perspective, it sounds only as if he has long ago dismissed the value of “securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

I don’t “dismiss the value of” this. It’s valuable to the monopoly-rights holders, sure. But is it justified? IP advocates say that IP law is needed, that it generates net wealth. Where is their proof?

Isn’t this sort of selective dismissal of Constitutional parts and pieces what we loathe in political sophists?

Sure. I dismiss the unlibertarian parts. I loathe them for this reason. Any other questions?

ABR:

Libertarians developed their theory of property assuming the existence of a State. Later on, libertarians such as Rothbard turned against the State completely, declaring themselves to be anarcho-capitalists. But these same libertarians failed to reconsider the basis of their rules of property, which were a defence against the State.

Not so. We are against the state because we favor property. As Bastiat said, “Property does not exist because there are laws, but laws exist because there is property.”

Once a fiat monopoly of government is replaced by a free market of government, one ought to reconsider those earlier defences.

Not me, bub. I’m here for the long haul.

The right of an accused to remain silent, for example, is critical to English Common Law. But would every society embrace that right voluntarily? I think not. Some would prefer a lesser right: the right to remain silent until tried. Why would some prefer the lesser right?

I fail to see what a picayune argument about prophylactice rights to silence has to do with IP here.

Kinsella argues that IP is not a scarce resource, and therefore does not qualify as property. Creativity, of course, is scarce but no one (ideally) is obstructing creative people from pursuing their intellectual endeavours.

Creativity is not a scarce resource. Creativity if a capacity of characteristic of a person. What are you babbling about?

The problem here is similar to that of defamation. Most people, including libertarians, would agree that it’s wrong for a person to defame, knowingly, another person. Most people, including some libertarians, would agree that it’s wrong for person X to spend years of his life on a creative work, one that millions are most happy to have read, seen or heard, and then for X to receive no remuneration for his efforts.

Most people think taxation is fine too.

Kinsella writes earlier: “The libertarian view is that each person completely owns his own body—at least initially, until something changes this, such as if he commits some crime by which he forfeits or loses some of his rights.” This statement is misleading. Under libertarianism, a person is not allowed to strike another person aggressively. Nor is a person allowed to trespass on another person’s land. Effectively, others are constraining the behaviour of each person. A person does not completely own his own body.

Saying I don’t completely own my body because I may not murder other people is ridiculous. If I own my body, it implies others similar situated also own their bodies; so the impermissibility of my using my owned body to harm someone else’s own body is an implication of my own self-ownership, it does not undercut it! (I am reminded here of Rand’s attack on (the idealistic version of) Kant who said reason was inefficacious because it had a certain nature! how absurd).

I am not endorsing chaos, here, nor am I endorsing extortion. My point is that the libertarian view of property is but one of many.

Yes… and the others are tantamount to extortion.

But B is already being told what he can and cannot do with his property. He cannot launch rockets against his neighbour. He cannot start fires on his property that spread to his neighbours’ property. A restriction on B not to print Atlas Shrugged is merely one of many restrictions he faces.

The prohibition on B harming A’s property has nothing to do with B’s property. It is not a limitation on B’s property rights. B may not invade A’s property borders with any means, whether they are owned by B or not. And the reason he may not, is because of property rights–A’s property rights. But if A has them, so does B.

The reason, however, that B may not invade B’s land is because it is B’s property. You cannot just say that this means it’s okay to prevent B from using his own property in certain peaceful ways, unless you show that it violates A’s property rights. To say that it does in the case of B just using his property according to a certain pattern or recipe, is to presuppose that A has a property right in patterns. Which begs the question.

ABR November 17, 2009 at 8:31 pm

T. Ralph Kays:

No, that’s not my point. If I agree not to murder my fellow members, how can that agreement be involuntary?

Andrew Lynch November 17, 2009 at 8:41 pm

Thanks, Stephan, for your response (and for the article, which I’ve forwarded to many friends). I’d be interested in hearing (someday) what in your opinion constitutes the “unlibertarian” parts of the Constitution as a whole. Cheers.

ABR November 17, 2009 at 8:47 pm

Kinsella writes: “We are against the state because we favor property.” A communist might favour property, too: as in, the State owns everything.

Kinsella writes: “Most people think taxation is fine too.” I apply for membership at a club. The club requires that its members pay a fee. I can pay the fee or decide not to join.

Libertarians view liberty in the form of rights; in particular, property rights. I am suggesting an alternate approach, that we view liberty in terms of agreements.

The latter approach is far more flexible than the rights approach. Libertarians have historically loathed flexibility in government because it has always meant an opening for the State to close its jaws.

Eliminate the state, and we can afford to be more flexible in our ways of government.

Stephan Kinsella November 17, 2009 at 8:49 pm

Andrew Lynch: “Thanks, Stephan, for your response (and for the article, which I’ve forwarded to many friends). I’d be interested in hearing (someday) what in your opinion constitutes the “unlibertarian” parts of the Constitution as a whole.”

Pretty much all of it. I guess “Congress shall have no power” is okay.

T. Ralph Kays November 17, 2009 at 8:52 pm

ABR

You illustrate your argument with the example of the right of an accused to remain silent. You postulate that not every society would adopt that policy voluntarily. Does that not mean that they were willing to force testimony from the accused? You cannot criticize a voluntary society by pointing to a nonvoluntary society. You are essentially claiming that a free society would not allow freedom.
If a society did force people to testify against themselves then by definition it would not be the voluntary society libertarians talk about.

Gil November 17, 2009 at 11:23 pm

Actually S. Kinsella:

1. I.P. rights are defended on a ownership basis – you having control of your own creation. A Communist would be in favour of no I.P. because he believe the products of everyone should be available to anyone else.

2. That idea that I.P. produce more than it takes has a lot going for it: inventors and producers want it, patents and copyrights have increased over time, innovations keep occurring, there’s no obvious technological stagnation, etc. Are LCD and Plasma TVs the same crap that was around in 2005? Nope they’re better and slimmer than ever. If patents and copyrights were as bad as you’re making out then only one company would be producing them and they’d have no incentive to improve the image quality of the TVs.

3. I.P. is a contract with everyone? So is R.P.: when you own a piece of land everyone else immediately becomes a trespasser until invited hence you made an instant contract without requiring the permission of anyone else.

4. People would find it virtually impossible to defend their I.P. interests without the State? How long could people defend their R.P. without the State?

ABR November 18, 2009 at 12:00 am

T. Ralph Kays:

If an accused, 3 years ago when he joined the TRK Society, signed an agreement obliging him to give testimony should he ever find himself on trial in a TRK court, and now he finds himself on trial in a TRK court, then I don’t view as tyrannical the expectation of the court that he ought to give testimony. He can still refuse, of course, but surely the TRK Society has on the books a penalty for refusal, and surely the accused agreed to that penalty 3 years ago.

Bala November 18, 2009 at 12:18 am

Stephan,

You said

” IP advocates say that IP law is needed, that it generates net wealth. Where is their proof? ”

Why are we even asking for proof? Is IP not to be rejected on more fundamental grounds? If my position is that IP is morally repugnant, why would I then concern myself with the claim that it “generates net wealth”? Such a claim as the justification for IP implies that those who justify IP law see no connection between law and morality. My limited reading and understanding say that is one of the fundamental “principles” of legal positivism, a notion you too seem to reject. (Correct me if I am wrong, for I know very little on this issue)

I therefore see IP opponents being better off by rejecting the claim as an evasion of the moral question.

T. Ralph Kays November 18, 2009 at 12:24 am

That has nothing to do with anything I said. Try reading my posts.

T. Ralph Kays November 18, 2009 at 12:26 am

Sorry, previous post is for ABR.

Bala November 18, 2009 at 12:30 am

ABR,

” I apply for membership at a club. The club requires that its members pay a fee. I can pay the fee or decide not to join. ”

The fee is for the limited right to use the PROPERTY of the club and avail such services as the club may agree to provide as per the terms of the membership. How this serves as an analogy that justifies taxation beats me.

scott t November 18, 2009 at 1:16 am

“patents and copyrights have increased over time, innovations keep occurring…”

did brains stop working during less ip eras?

are there items available today, that have no ip associated them that are regularly – improved?

the corn flake for instance…i guess anyone can make them…i can see them for 1.70 on the shelf or 3.00 plus. and the 1.70 corn flake tastes just as good and holds up in milk well.

are there others?

Gil November 18, 2009 at 1:44 am

Well, Bala, it’s because virtually nobody owned land before the government (not to mention most people immigrated to most lands). Unsurprisingly, the government leases the land hence the analogy is valid.

Gil November 18, 2009 at 2:00 am

Well scott t – if I.P. was a mere ‘monopoly grant’ then there should be fewer patent applications as time goes by as the first comers should be getting patents for everthing whereas latecomers find their patent application almost always infringes on someone else’s. The wiki graph shows otherwise. Besides it’s not a matter whether innovation stops as much would inventors bother when R&D costs are high whereas to reverse-engineer is cheap.

Bala November 18, 2009 at 2:17 am

Gil,

” …it’s because virtually nobody owned land before the government (not to mention most people immigrated to most lands). ”

????

” Unsurprisingly, the government leases the land hence the analogy is valid. ”

How do I lease land that I do not own? I see faint but definite traces of “eminent domain” in your reply.

scott t November 18, 2009 at 3:06 am

“was a mere ‘monopoly grant’ then there should be fewer patent applications as time goes by as the first comers should be getting patents for everthing whereas latecomers find their patent application almost always infringes on someone else’s…”

if an ip’ed good comes along that wasnt there before and spawns dozens of ip’ed accessories for it why in the world would there be fewer patent applications??

ktibuk November 18, 2009 at 3:16 am

“And libertarian discussions of IP often confuse the details of the law under debate. In fact, it’s common for libertarians to conflate trademark, copyright, and patent (Murray Rothbard talked about a copyright on a mousetrap,[2] which is an invention and therefore the subject of patents).”

Please stop misrepresenting Rothbard. Rothbard knew very well the difference between patents and copyrights. He just didn’t think, quite correctly, that patent laws were compatible with private property. But he also believed copyright contracts were valid.

So, he proposed using copyright principle for the inventions as well as the usual stuff copyright covers. This way you get rid of the independent discovery conundrum.

I have read, and argued with Stephan quite a lot over the years and now I am very sure of his intellectual dishonesty because he uses every fallacy and misrepresentation while arguing to bolster his shaky contradictory theory.

ktibuk November 18, 2009 at 3:32 am

“Of course one’s own body is a scarce resource. As Hans-Hermann Hoppe has explained, even in a paradise with a superabundance of goods,

every person’s physical body would still be a scarce resource and thus the need for the establishment of property rules, i.e., rules regarding people’s bodies, would exist. One is not used to thinking of one’s own body in terms of a scarce good, but in imagining the most ideal situation one could ever hope for, the Garden of Eden, it becomes possible to realize that one’s body is indeed the prototype of a scarce good for the use of which property rights, i.e., rights of exclusive ownership, somehow have to be established, in order to avoid clashes.[17]
In other words, every person has, controls, and is identified and associated with a unique human body, which is a scarce resource.”

This approach is completely false. Self-ownership is not an “ought” proposition as Hoppe implies. It is an “is” proposition. There is no “is-ought” dichotomy here.

Every individual owns his body and mind. Even a slave is in absolute control over himself. He constantly makes the choice to obey his master. He may obey to his masters wishes but not because he has no other choice, but because he doesn’t want to face the risk of doing otherwise. The same is true if someone is “forced” to do something at a gun point.

Of course as in the case of slavery this reality can be disregarded. Man has always found ways to disregard reality, at his own peril. But natural law dictates that man should act according to his and his enviroment’s nature.

It is quite simple really. If man acts according to his nature, which he can observe and understand using his sense and mind, he can live longer and he can live better. If he doesn’t he either stops living or lives miserably.

Law of property and law of gravity are inherently based on thing. Natural law.

You can disregard law of gravity and you can disregard law of property. Both would have dire consequences, but one would be more direct and causal relation more clear. The other would be more indirect and causal relations more obscure.

But the principle is the same.

So law of property is not a man made law that is based on some prerequisite like scarcity. Law of property is not some thing people came up with to live “conflict free” lives. You can not decide what can be property and can not be.

Bala November 18, 2009 at 5:15 am

ktibuk,

” So law of property is not a man made law that is based on some prerequisite like scarcity. Law of property is not some thing people came up with to live “conflict free” lives. You can not decide what can be property and can not be. ”

So what according to you is the Law of Property? I too find the theories based on “scarcity” and “avoidance of conflict” quite weak. I too am very uncomfortable with the entire theory being based on the “axiom” of self-ownership.

Therefore, I would very much like to hear your explanation.

scineram November 18, 2009 at 5:26 am

LOL. And you said his theory is shaky and contradictory.

Gil November 18, 2009 at 5:45 am

Actually ktibuk if the body is a type of property then it can be bought and sold hence a person can sell their organs (in a theoretical free market) or offer money for others’ organs. Likewise a person can offer their body and their labour as collateral for a debt hence a person can be a debt slave. On the other hand, a person could be born into slavery and as such has no birthright to ownership over their body – a person might be a product of debt slavery parents and as such has inherited debt for which his body is owned by someone else from the start because the slaves consume resources for which the master is billing them for and making extremely difficult to pay off the original debt.

ktibuk November 18, 2009 at 6:14 am

Bala,

“Law of property” is still based on “self ownership”, but as I explained, in this case this axiom is not an “ought” proposition but a fact.

An act of aggression against ones body, for example an act of enslavement, is an act against the natural law, reality. One may feel that he is in total control over his slave, after a successful attempt at enslavement, but that is just an illusion.

Firstly the owner of a slave is never in total control over the slaves actions. The slave makes constant choices between to be enslaved or rebel and face the consequences.

Secondly if we understand “enslavement” as a strong manipulation regarding someone else’s choices this also means the owner is also enslaved by the slave itself since the owner is a parasite that is dependent on the slaves output and his actions are also manipulated, although more indirectly, by the slave.

All other property is an extension of ones self, ones self-ownership. Since nature dictates humans to occupy space, eat, and shelter themselves against his natural environment, they must do so to stay alive and live well.

To do this humans extend themselves and homestead. Mix a apart of them with the environment, or consciously alter their environment to suit their natural needs and make something theirs.

This homesteading doesn’t need prerequisites like scarcity or possibility of a conflict arising from another human. Even if there is no other human, natural law dictates the one individual to homestead. In other words, Robinson Crusoe can and should homestead property to stay alive. He doesnt need Friday to come to the island first and create an possibility of a conflict and make a social contract before he can own himself and extend his self ownership to his environment and homestead property.

Once an individual homesteads property he necessarily gains the right to exclude other humans from that property. He may not always have the ability and might to do so, but he certainly has the right.

Some insist “the right to exclude” doesn’t exist within property rights They say, since property rights are made by men to resolve conflicts caused by scarcity, only natural exclusion is permitted.

But this is contradictory to natural law.

When it comes to Bill Gates, his wealth and me, who can say that there is an issue of scarcity thus natural exclusion. Gates’s wealth is more than enough for both of us. If property rights are based on scarcity and possible conflict how can Bill Gates can exclude me from his wealth? The only origin of conflict here is his whim not natural scarcity. And if personal whim is enough to exclude how can one claim an author doesn’t have the right to exclude certain other people whether there is natural scarcity or not.

If you take this scarcity, thus possibility of conflict, thus property rights theory to its logical conclusion, all you can reach a version Georgist position where people can only own property that they can consume, which is an arbitrary measure not based on any reality or natural law.

Lord Buzungulus, Bringer of the Purple Light November 18, 2009 at 6:44 am
Bala November 18, 2009 at 7:53 am

ktibuk,

” And if personal whim is enough to exclude how can one claim an author doesn’t have the right to exclude certain other people whether there is natural scarcity or not. ”

Are you saying that this is why IP is legitimate property? If so, I think this is where you are slipping up and contradicting yourself.

For a simple explanation, if Bill Gates’ wealth is his “property” not simply because of his whim but also because of his having stored it in such a manner that he can fight to protect it from potential usurpers like you and me. Most importantly, he stores it in such a manner that any potential usurper has to necessarily initiate force against him (or the guardians to whom he has entrusted the job of protecting his wealth) to get at even a cent of his (Bill Gates’) wealth.

This necessity to initiate force becomes the justification for Bill Gates to label any force he may exercise to repel such potential usurpers as “retaliatory force”, which in turn makes his force morally justified.

An author, on the other hand, may start with the same whim to exclude others but has no means to enforce it other than by initiating force against potential usurpers. Since there is no initiation of force by the potential usurpers, there is no way the author can call his force as retaliatory. He therefore has no moral justification to prevent others from usurping his “wealth”. That, to me, is indication that it is absurd to call it “his” wealth in the first place.

What makes matters worse is that since the potential usurpers are spread far and wide, the author decides to enlist the services of a thug who has spread his tentacles far and wide and who has armed himself to the teeth so that he may initiate the necessary force with impunity. The thug I am referring to is the State. The weaponry I am referring to includes IP law.

Therefore, I think you are wrong to call Stephan’s position incorrect. At the very worst, I would call it incomplete. That’s where I think he needs the support of a rational moral framework like the one Ayn Rand identified. However, his conclusions on IP appear perfectly valid to me.

Gil November 18, 2009 at 8:30 am

Yeah, yeah, Purple, correlation does mean causation when it’s something you don’t like.

Gil November 18, 2009 at 8:33 am

. . . doesn’t . . . X(

ktibuk November 18, 2009 at 8:42 am

“For a simple explanation, if Bill Gates’ wealth is his “property” not simply because of his whim but also because of his having stored it in such a manner that he can fight to protect it from potential usurpers like you and me. Most importantly, he stores it in such a manner that any potential usurper has to necessarily initiate force against him (or the guardians to whom he has entrusted the job of protecting his wealth) to get at even a cent of his (Bill Gates’) wealth.”

Ability to exclude others and having a right to exclude others are two different things and they don’t have to be each others prerequisite either.

If I own something it is mine. My ability to protect it doesn’t make it mine. The fact that I homesteaded it makes it mine.

I may be careless and leave something of mine unprotected making it easier for you to take or it might be that I am weak and you are strong but that doesn’t give you right to take it.

Abandoning property on the other hand is something else. Abandoning is consciously letting go of ownership and not an inability to protect property.

“An author, on the other hand, may start with the same whim to exclude others but has no means to enforce it other than by initiating force against potential usurpers. Since there is no initiation of force by the potential usurpers, there is no way the author can call his force as retaliatory. He therefore has no moral justification to prevent others from usurping his “wealth”. That, to me, is indication that it is absurd to call it “his” wealth in the first place.”

Again, ethical propositions and enforcement of them are two separate issues. If this wasn’t so there wouldn’t be “ought” propositions. There wouldn’t be a need for them.

Also there are enforcement methods for copyrights. in a free society. You don’t need a state to enforce copyrights just as you don’t need a state to enforce any kind of contract. Would it be better than this statist system? Yes. Would it be perfect? No. But all you can do is find the right ethical position which is actually the laws of reality and try to act accordingly.

Also your understanding of “initiating force or aggression” is very narrow. According to this view fraud can not be a crime since there is no actual force used.

A definition of aggression can only be based on the “consent of the property owner”. Rape is a crime because the victim, owner of the body, hasn’t consented, theft is a crime because owner hasn’t consented the transfer of the property and copyright infringement is a crime because the owner hasn’t consented to the certain uses of IP.

Stephan’s position is wrong because he starts off the wrong assumptions. His is not a reality based, natural law but subjective positive law. That is why it is full of contradictions. The only strength in his argument is the corrupted legislation that is enforced by the states today. Attacking it is easy. Coming up with a non contradictory property theory is hard.

ktibuk November 18, 2009 at 8:46 am

“Actually ktibuk if the body is a type of property then it can be bought and sold hence a person can sell their organs (in a theoretical free market) or offer money for others’ organs. Likewise a person can offer their body and their labour as collateral for a debt hence a person can be a debt slave. On the other hand, a person could be born into slavery and as such has no birthright to ownership over their body – a person might be a product of debt slavery parents and as such has inherited debt for which his body is owned by someone else from the start because the slaves consume resources for which the master is billing them for and making extremely difficult to pay off the original debt.”

Anything alienable on your body can be sold. Like organs. But you can not sell your whole body and mind because you can not separate your consciousness from your physical body. There is a ton of writing on this issue, mostly by Rothbard. I suggest you read them.

Lord Buzungulus, Bringer of the Purple Light November 18, 2009 at 8:54 am

Gil is the new Silas.

Stephan Kinsella November 18, 2009 at 10:20 am

Bala:

” IP advocates say that IP law is needed, that it generates net wealth. Where is their proof? ”

Why are we even asking for proof? Is IP not to be rejected on more fundamental grounds? If my position is that IP is morally repugnant, why would I then concern myself with the claim that it “generates net wealth”?

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

kitbook:

“And libertarian discussions of IP often confuse the details of the law under debate. In fact, it’s common for libertarians to conflate trademark, copyright, and patent (Murray Rothbard talked about a copyright on a mousetrap,[2] which is an invention and therefore the subject of patents).”

Please stop misrepresenting Rothbard. Rothbard knew very well the difference between patents and copyrights. He just didn’t think, quite correctly, that patent laws were compatible with private property. But he also believed copyright contracts were valid.

So, he proposed using copyright principle for the inventions as well as the usual stuff copyright covers. This way you get rid of the independent discovery conundrum.

First, copyright has nothing to do with contract, so talking about a copyright contract is nonsense.

Copyright’s standard by the way is originality of creative expression. That’s why its subject is things like books or songs. The standard for patentability has to do with inventiveness: namely, novelty (newness) and non-obviousness. That’s why the subject of patent law is inventions–practical machines and processes. To try to treat inventions under the standard of “originality” makes no sense whatsoever. Oh, you might say, you aren’t talking about copyright as it exists now. Oh, why didn’t say so, kitbook? So why even use the word “copyright”?

Finally, anyone who knows a thing about patent law realizes that adding an independent inventor exception would decimate it (hurray)–which is why your fellow IP socialists would fight such an exception tooth and nail.

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