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Source link: http://archive.mises.org/11162/an-objectivist-recants-on-ip/

An Objectivist Recants on IP

December 4, 2009 by

On the Mises blog, I noticed one of the frequent commentators on IP-related blog threads, one Bala, used to defend the IP position but of late had been taking an anti-IP position. We discussed this privately and I asked him to give me a short write-up about his thought process as he changed his mind on this issue. I find such “conversion” stories interesting, and have seen it in others as well–myself, Jeff Tucker, etc. He sent it to me; I append it below.

Pro-IP to Anti-IP:
The Transformation of an Objectivist

by S Balasubramanian

[The author resides in Chennai, India, and has a B Tech (Aerospace Engineering)--Indian Institute of Technology (IIT) Madras ('94), PGDM (equivalent of an MBA)--Indian Institute of Management (IIM) Ahmedabad ('98). He is a businessman, running a test prep company that trains students for competitive examinations for admissions to institutions of higher education, especially for those aspiring to get into the top B-Schools in India. He also recently started a pre-school which he hopes to build into a full-fledged school. His email is bala.hfca@gmail.com]

It was in August of 2009 that I stumbled, or rather fumbled, my way into mises.org. I was guided to LvMI by none other than the Ayn Rand Institute, which referred LvMI as the place to go to if I wanted to get any understanding at all of economics, especially capitalism. As a long-time fan of Ayn Rand, having read a lot of her fiction as well as non-fiction and actually applying the basic principles of Objectivism in my daily life, I decided to take the tip seriously.

Pretty much to my shock, almost the first thing I came across was a little Rand-bashing and, worse, a denunciation of an idea Rand had explained as being the cornerstone of property rights – that of Intellectual Property.

The ideas I came in with

My ideas on intellectual property were formed almost completely based on Rand’s arguments justifying the idea. It all begins with the fundamental premises that:

  1. Ideas are legitimate property;
  2. Ideas owe their existence to the person who originated or “created them” and hence morally “belong” to the creator.
    1. It is important for a reader to understand that Objectivists use the term “morally” differently. Morality, to an Objectivist, is a code of values that guides man’s actions in the face of choices. It is rationally derived starting with recognition of the Objective reality that we are a part of. It is not a set of edicts or diktats from a higher authority.
    2. Those who copy ideas deprive the creators of the value that should rightfully accrue to them and are hence guilty of stealing (the emphasis is on “rightfully” as it flows from point 2 above).
    3. It is the fundamental responsibility of government to protect individual rights, property rights being the most important of man’s rights.
    4. A system of patent & copyrights is a way by which creators register their claim to creating ideas, a means by which they inform all interested parties as to whose property an idea is
    5. Infringement of patents and copyrights is a violation of property rights and government enforcement of patent & copyright laws is legitimate protection of property rights.

Questions that troubled me

In the course of some heated discussions, a few interesting questions came up for which I had to reach deep inside to find the answers

  1. How do you reconcile the facts that recognising and enforcing IP essentially gives some people a right to the physical property of others?
  2. How can ideas and patterns be property?
  3. How do you propose to enforce IP except through the State machinery? Considering that the State has never demonstrated any tendency other than for evil, how is this consistent with the advancement of Liberty?

What made me realise the error in my (and the “orthodox” Objectivist) position on IP

To cut a long thing short, the moment I realised that there is a conflict between rights to intellectual property and rights to physical property, I also realised that something is wrong about the whole thing. Such a contradiction usually means that something is wrong with the premises of the person facing the contradiction – me.

Restricting a person from giving physical shape to an idea he has in his mind is clearly a violation of his Liberty and Property Rights. However, this is precisely what implementation of IP means. IP proponents typically tent to retort saying that what I am calling “violation of Liberty and Property Rights” is actually implementation of the property rights of the owner of the idea/pattern that is the subject of the IP.

If it is true that in the name of protecting Intellectual Property Rights, one is actually violating the Liberty of some individuals, in effect one is also saying that the holders of Intellectual Property have an undefined lien on the Liberty of the individuals of the other part. Translated, this gives some individuals the right to enslave others by virtue of being holders of Intellectual Property rights. This made the notion all the more bizarre to me. It was in direct contradiction of the most basic principles of Objectivism that no man may claim the right to initiate force against another.

This led me to realise that there is a fundamental problem in the way different people were defining the concept “property”. At least, the way Objectivists seem to be defining “property”, they are setting themselves up for a conflict between the right to physical property and the right to Liberty on one side and the right to Intellectual Property on the other.

The answer, to me, was to obtain clarity on the relationship between the Right to Liberty and the Right to Property. The question I was trying to answer was “Which of the 2 rights is more fundamental to human nature?”. If Liberty is more fundamental to human nature, it would be futile to define Property independent of Liberty because such a definition is bound to lead to a contradiction.

Liberty or Property – Which is more fundamental?

To me, the answer was obvious – Liberty. The Right to Liberty is a logical corollary of the Right to Life and is in fact a restatement of the latter focusing on a specific part of it. The Right to Liberty, as per Objectivism, is nothing more than the freedom to act as per the judgement of one’s rational mind. Action being essential to life and in fact being an integral and inviolable part of the definition of the concept “Life” (a sequence of self-generated self-sustaining actions), violation of the Right to Liberty is a violation of the Right to Life itself.

Once again taking from Rand herself, value is that which you act to gain or keep. Thus, gaining or keeping value is impossible unless one is free to act. Thus, it is futile to place “property”, which is nothing more than the value one acts to gain or keep with the aim of sustaining one’s life, above that which is a prerequisite to the process of gaining or keeping value, i.e., action. Translating this into a simple inequality,

Right to Life > Right to Liberty > Right to Property

Therefore, the choice was clear – to define the concept “property” in terms of the more fundamental concept “liberty”. The outcome is bound to be a non-contradictory system of Property Rights where it is possible for Liberty and Property Rights to coexist.

Defining the concept “Property”

(The most fundamental premise I used in this discussion is that initiating force against another is a violation of his Right to Liberty. As per my limited understanding of Objectivism, this is how Ayn Rand defined Liberty.)

Objects exist in 3 states – existent, possession and property. An apple exists. When I hold the apple in my hands, it is in my possession. When my possession is morally justified, i.e., when the apple “ought” to be in my possession, it is deemed my “property”.

Clearly, not every “possession” is “property”. That raises the question how and when a “possession” becomes “property”. The answer to the question is to be found by a study of the morality of the actions that went into gaining and keeping “possession”. If you obtain possession the “right” way, it is morally yours, i.e., you are better off with it than without. On the other hand, if you did something “wrong” in the process of gaining possession, it is not morally yours, i.e., you are better off without it than with it. Objectivists in particular should have no difficulty evaluating issues from a moral perspective and to talk of issues like “right” and “wrong” because they ought to be used to deriving these logically from reality, which they consider absolute.

From an Objectivist perspective, there is only 1 “wrong” that a man can commit in the process of gaining possession of an existent – that is to initiate force against other men in the process. Thus, possessions to gain which man has to necessarily initiate force against others will not get moral sanction. Such possessions cannot be considered property.

Equally fundamental to the concept “property” is the right to exclude others from total or partial enjoyment of the value that the property holds. Exclusion of others requires specific actions from the person in possession of an object. The nature of the actions one needs to undertake in order to exclude others from one’s possessions also influences the moral status of the possession in question. If excluding others requires retaliatory force only, such exclusion would be a morally sound action. If, on the other hand, exclusion itself involves initiation of force, it would naturally be immoral and the author cannot exclude and be right at the same time. Such possessions that create contradictions by their very nature cannot and should not be deemed property.

Applying this idea to the 2 broad categories of property – physical and intellectual, physical possessions clearly justify the use of the term “property” to denote their ownership. The taking possession of or the exclusion of others from physical objects does not necessarily involve initiation of force. On the other hand, the taking away of a physical good without the consent of the legitimate owner always involves the initiation of force. Thus, the statement “no man shall take away the physical property of another man without his consent” is equivalent to saying that “one man may not initiate force against another”. In this sense, it is no different from the basic Objectivist principle of non-initiation of force.

Ideas and patterns, on the other hand, presented a problem when I tried to treat them as “property”. While there is no denying the value of ideas in human advancement, exclusion of other individuals from an idea or pattern necessarily involves the initiation of force. For instance, how else is A to prevent B from incorporating A’s idea in his B’s product other than to force himself upon B’s property and coerce B to prevent him from doing so, thus violating B’s Liberty? In effect, recognising ideas and patterns as property is tantamount to saying that A has a moral right to initiate force against B simply because he has coined an idea. Thus, as an Objectivist, classifying ideas and patterns as “property” takes me into dangerous territory where I am ready to label the initiation of force as legitimate.

Even worse than the above is to codify IP into law and giving the State and its machinery additional legitimacy engage in rampant violation of Liberty. As an Objectivist, I hate the State as much as anyone else can. To see the State as an ally just because it is the only agency capable of enforcing Intellectual Property Rights is downright immoral. I realised that once there, there was no turning back. I become as evil as the very collectivists and statists that I am trying to condemn and fight against.

I am now left with a very moral choice – do I or do I not recognise ideas and patterns as “property”. If I should remain true to my Objectivist roots (which I value for good reason), my only option is to apologise to Rand for disagreeing with her strongly and telling her that she was wrong on this one and that I am not ready to apply the label “property” to ideas and patterns.

(While in the above analysis, I might appear to be going in circles around essentially 1 idea, the non-initiation of force, given that that principle is the most important Objectivist social principle, the one that defines how an individual ought to deal with the society he lives in, I do not think I am guilty of circular reasoning. Rather, I am making my axioms clear and validating all my conclusions against my axioms.)

Conclusions

An Objectivist cannot and should not support the notion of Intellectual Property because it violates fundamental Objectivist principles. Rejecting the validity of “Intellectual Property” does not mean that one is rejecting Objectivism. Anyone who claims otherwise needs to be reminded of Ayn Rand’s warnings against package deals. He who wishes to say “Rand said otherwise” needs to be reminded of Rand’s other very important point – that no human may consider himself or any other human being to be infallible, not even Ayn Rand herself.

{ 128 comments }

Silas Barta December 5, 2009 at 6:26 pm

@Peter_Surda: Very true — you can’t have conflicts over resources that never come into existence in the first place, and you will starve to death if one of those never-produced resources (e.g. a new agricultural method) happens to be necessary for continued food production after some point in time.

…and?

Peter Surda December 5, 2009 at 6:29 pm

@Silas:
In order not to look like a fool, it is useful to first actually comprehend what you write. In your case, I seriously doubt it.

Legal systems developed due to the necessity for conflict resolution. Obviously, they often serve other purposes too, but conflict resolution is the defining one. There is no need for conflict resolution in immaterial goods. If you actually attempted to analyse the case more thoroughly, it would have been plainly obvious. IP systems do not resolve consumption conflicts, nor is it possible for them to do that in any hypothetical legal system, since there are no consumption conflicts. IP is only possible in a legal system that has features other than conflict resolution. Which would not be libertarian.

If you look at current IP systems, you see that they target production and not consumption (at least not to a large extent). Even if we recognise the ownership of ideas and their spread over the whole universe, such an implementation still turns the idea of property on its head. A consistent implementation would not target producers but consumers. This would require the control of thoughts. Unlikely to happen without a government.

Peter Surda December 5, 2009 at 6:39 pm

@Silas:
> Very true — you can’t have conflicts over resources
> that never come into existence in the first place,
You commit the same error that you accuse your opponents of: you assume your conclusion.

In addition to that, it’s irrelevant. With the same logic one can claim that you need to pay taxes because otherwise there will be war.

> and you will starve to death if one of those never-
> produced resources (e.g. a new agricultural
> method) happens to be necessary for continued
> food production after some point in time.
You skip over to empirical area (and prove nothing). Like I said many times before, IP merely shifts the investment. Just like it happens with artificially low interest rates in central banking, some investments are made which wouldn’t have, and some aren’t which would have.

Existence of physical property, on the other hand, does not shift investment (versus non-existence of physical property). In fact it is difficult to imagine a world without a system of physical property.

newson December 5, 2009 at 7:09 pm

silas barta says:
“Probably the same way that patterns of EM waves can be property…”

petitio principii.

Bala December 5, 2009 at 7:15 pm

John Donohue,

” You start with the anarchist premise. You are an anarchist. All government, law, objectified protection against aggression is evil and illegitimate. ”

You got it all wrong. I never said anything about anarchy. I spoke only of the danger of giving legitimacy to state-initiated actions of violations of individual liberty. So, your subsequent attack related to anarchy appears completely irrelevant.

” You start with the anarchist premise. You are an anarchist. All government, law, objectified protection against aggression is evil and illegitimate. ”

‘Individual Rights are the means of subordinating society to moral law’ – Ayn Rand in her essay “Man’s Rights” (1963)

My point is that morality is independent of, pre-exists and overrides “law” (as you use it). Law that contradicts (objective) morality is bound to be an abomination. When you define that which is morally “wrong” as legally “right” and vice versa, you know you are headed for a disaster.

Stephan Kinsella December 5, 2009 at 7:26 pm

MichaelM: “Whatever number of Rand’s ideas Bala has adopted and lives by, in the context of this post and these comments, he and Kinsella are perpetrating a hoax by referring to him in the title as an “Objectivist” sans some qualifying adjective. When all is said, read, and done, it is abundantly clear that Bala is not recanting agreement with an Objectivist tenet, he is recanting his agreement with what he mistakenly thought the Objectivist position is but actually is not.”

It is not a hoax; people are free to click and read the whole thing. This kind of whining has become increasingly hollow in hte modern age. I get whining like this often when I include a hyperlinked article for a contention, and people whine that I’m misrepresenting what’s said… hey, I provide the link. Peole can click thru and read for themselves.

In any event, Rand’s basic philosophy was:

1. Metaphysics: Objective Reality
2. Epistemology: Reason
3. Ethics: Self-interest
4. Politics: Capitalism

If you want this translated into simple language, it would read: 1. “Nature, to be commanded, must be obeyed” or “Wishing won’t make it so.” 2. “You can’t eat your cake and have it, too.” 3. “Man is an end in himself.” 4. “Give me liberty or give me death.”

I agree with all 4. How to apply them, and the details, get more interesting. That’s why some of us realize that if you oppose aggression (implied by #4) you have to oppose the state; thus the most consistent Objectivists become anarchists (indeed Galt’s Gulch is anarchist). And likewise, a really consistent adherent to these principles would have to oppose not only the state, but legislation and all artificial rights such as IP.

Silas Barta December 5, 2009 at 7:50 pm

Quick replies:

@Bala: Excellent responses to my position. Oh wait, you don’t have any reply.

@newson: More like petitio mensi — normal, well-adjusted libertarians accept the validity of EM spectrum rights.

@Peter_Surda: clearly, there are goods that exist that fit the profile of a good that can’t exist without IP — specifically, if no entrepreneur can expect to recoup costs without exclusion rights despite the production and use of the idea being pareto optimal even given IP restrictions. Clearly, it’s a possibility, and it’s easy to see why it’s a likely one — because there are very similar scenarios involving large-scale investment in physical capital that need an environment in which random people won’t just grab it from you. (Please don’t point out how such goods are more tangible or physically scarce; it’s doesn’t affect this particular point that certain goods need certain rights enforced in order for entrepreneurs to want to make them.)

Just as you can come up with scenarios where people are deprived of goods because of IP, I can show scenarios where people are deprived of goods because of its absence.

I don’t see the relevance of your comparison to justification for war taxes, mainly because you didn’t present the corresponding argument, and also because any argument you’d make would not be isomorphic to the one I made for IP.

Bala December 5, 2009 at 7:51 pm

MichaelM,

” Ayn Rand explained …….. the Objectivist position is but actually is not. ”

So, what you are essentially saying is that Objectivism is whatever Rand said (irrespective of any inner contradictions that may exist). This reveals the thought process of a “Randite” rather than an Objectivist.

“Any material element or resource which, in order to become of use or value to men, requires the application of human knowledge and effort, should be private property—by the right of those who apply the knowledge and effort.”

Yeah!! It “should” be. But what if it “cannot” be? What do we do if “should” meets “cannot”? “Should” to me indicates a wish or a whim. “Cannot” indicates reality. I would never place my whims over reality.

In effect, what if the very nature of the “object” prevents it from ever being regarded as “property”?

“Bear in mind that the right to property is a right to action, like all the others: it is not the right to an object, but to the action and the consequences of producing or earning that object.” [The Virtue of Selfishness, p.94]

My point precisely. If it is a right to action, it can only be that you be free to act and that others may not prevent you from acting. It cannot be that you alone that shall be free to act that way and no one else shall. It definitely cannot be that anyone else who acts that way should surrender a portion of the value they gain to you or that if they do not, you may initiate force against them to get at the value.

” Thus, there is no conflict between the rights to intellectual property and the rights to physical property. ”

You conveniently forget that when it comes to physical property, either you act to possess, use and dispose of them or I do. We can’t both do it simultaneously. Take an apple for instance. Either you eat it or I do. We can’t both eat the same apple.

With an idea or pattern, on the other hand, we can both simultaneously act on it. My acting on an idea does not prevent you from acting on it.

This is the difference that I am trying to highlight.

” Also pertinent here is the error of holding … the underlying metaphysics and epistemology. ”

You are sounding very much like a mystic out here. Which part of the underlying metaphysics and epistemology am I missing out here? Please elucidate rather than just accuse.

” The source of the ethical principle … both those that define “ownership” and “property” as well as those that regulate the use of physical force. ”

If it is reason and a commitment to reality that we are talking of, why are you neglecting the reality that exclusion of others from an idea necessarily requires the initiation of force? How then do you have the courage to use it as a “moral” concept?

Bala December 5, 2009 at 8:00 pm

Silas Barta,

I’m sorry, but am left with no option but to say that you make no sense.

” Probably the same way you recognize that all property rights place limits on other property rights, and homesteading only gets you some rights (not e.g. the rights to all the heavens above the plot of land). ”

Placing limits is not the same as being given a right over another person’s property. One is a natural limitation and the other is a redistribution of rights.

” Probably the same way that patterns of EM waves can be property, I’m guessing. ”

A lot of people have tried to tell you this before. So let me just reiterate it. You are incorrectly mixing up IP with EM spectrum rights.

” Probably the same way civilization always developed, I’m guessing — by mutual recognition of social conventions…. ”

So, morality is all about “social conventions”, is it? Thanks for the clarity. You have discredited yourself completely in just 1 phrase.

Stephan Kinsella December 5, 2009 at 8:05 pm

Silas, your little “tu quoque” fails miserably because we libertarians are very explicit aout what property rights we respect and the system in which rules can be refined. We specify clearly what abstract property rights are, and because the basic idea has been used in decentralized legal systems in the past, so we can at least consult and draw on those bodies of law by analogy; and we can see how in a private society decentralized legal systems can refine and apply these abstract principles. But these same theories that tell us what property righst are say that IP rights are not legitimate. Silas casually says that IP rights “have been” generated in private legal systems. I call bullsh*t. Where, silas? How?

Now is time for you to put up or shut up. Where have they been developed, and in accordance with sound libertarian principles? Please tell us. Where were monopoly rights to inventions found? (patents) Where were copyrights found? The only thing I’m aware of is common-law copyright, which is more like trade secret than modern copyright.

And tell us, Silas: what is the natural, libertarian right to innovations? Just give us a general description. What is patentable subject matter? What is the standard of nonobviousness? What counts as prior art for purposes of novelty? What should the patent term be? Penalties for violation? If you don’t know, kindly [refrain from commenting].

newson December 5, 2009 at 8:20 pm

silas barta says:
“…normal, well-adjusted libertarians accept the validity of EM spectrum rights.”

appeal to authority. “mensi”?? i guess this is your oblique compliment to kinsella.

John Donohue December 5, 2009 at 8:39 pm

Mr. Kinsella [sic, spelled correctly], for someone posting so intensely against Ayn Rand, this ignorant statement…

“Objectivists are supposed to be against aggression.”

. . . invalidates any credibility you might have. At least make the opposition’s case accurately before you thrash it, otherwise you are just a spitter, not a smart person.

Just in case (and I doubt it) there is anyone reading this that does NOT know the ACTUAL Objectivist politics: The proper function of government is the rectification of cases in which a citizen initiated force against another. Moreover, the government itself may not initiate force against a citizen. That is not a government based on aggression.

Your comment on what governments currently “are” is also revealing. You imply “THIS IS GOVERNMENT” as if metaphysically given by nature. This is a fallacy.

Which of the supposed Mafia/gang governments you spoke of is the one Ayn Rand would point to as an example of proper government under her philosophy?

John Donohue

Bala December 5, 2009 at 10:44 pm

John Donohue,

” for someone posting so intensely against Ayn Rand ”

Mr. Kinsella is not posting against Ayn Rand. He is just saying “IP is one idea on which Ayn Rand was wrong.”. You are confusing an intellectual discussion for a personal attack. If you read his previous post, he agrees with the basic Objectivist principles on Metaphysics, Epistemology, Ethics and Politics as identified by Rand. How then could he be attacking Rand herself?

” You imply “THIS IS GOVERNMENT” as if metaphysically given by nature. This is a fallacy. ”

This is not the point. His idea is that a single entity having a monopoly over the initiation of force is not consistent with the preservation of Individual Rights. The only logical extension of such a monopoly is a single world government – a rather dangerous and scary situation.

Incidentally, do you favour one world government?

That apart, my argument against IP is NOT based on a rejection of the State. It is a rejection of the notion that ideas and patterns can be legtimately considered under the concept “property”. I am basically saying that the term “Intellectual Property” is an oxymoron. If you are arguing with me, that’s what you need to be disputing.

newson December 5, 2009 at 11:32 pm

brian macker says:
“if someone from Kinsellaville steals a book from Mackerville and then copies and publishes it. Not different than if someone from Kinsellaville murdered a member of Mackerville…”

nobody from the anti-ip camp would endorse the theft of a physical book. the person who buys a copy of the stolen book, and who has not participated in the original theft has not deprived the original holder of his book, only perhaps some opportunity profits. a life is irreplaceable, so the murder comparison is invalid.

ruddy December 5, 2009 at 11:35 pm

If owning a concept gave you the rights to the concept, then do I need permission to use the concept of owning a concept?

Silas Barta December 6, 2009 at 12:15 am

@Bala: Thanks for making an effort to respond! I’ll go through your errors now:

[1]Me:” Probably the same way you recognize that all property rights place limits on other property rights, and homesteading only gets you some rights (not e.g. the rights to all the heavens above the plot of land). “

You:Placing limits is not the same as being given a right over another person’s property. One is a natural limitation and the other is a redistribution of rights.

Do you remember what this was responding to? It was your first point (1) that IP is problematic because it places restrictions on “other people’s property”. My response was that — well duh, so do rights that you agree with, so this aspect actually isn’t problematic. How is your response, to arbitrarily declare a difference between limits and rights to “others’” property relevant? How is your response that one is a “natural limitation” relevant? Remember, your entire point was that IP infringes on other people’s property rights.

But I’ve shown that this begs the question as to *which* property rights can be justly claimed. By saying that IP infringes others’ rights, you’re assuming away the problem, not seriously addressing it. (Though in fairness, Stephan_Kinsella does the same.)

[2]Me: ” Probably the same way that patterns of EM waves can be property, I’m guessing. “

You: A lot of people have tried to tell you this before. So let me just reiterate it. You are incorrectly mixing up IP with EM spectrum rights.

Is that supposed to be a response? Declaring, by fiat, that these are two different topics? That’s not how logic works, Bala. IP and EM spectrum rights are identical in the critical respects, as I have explained here and elsewhere. You don’t get to dodge this by observing that they’re two different topics. (And I’m *totally* sure that in following this blog’s discussions about IP, you followed through to the many links to that post, right? Because you’re like, serious about this topic and everything? Yeah … didn’t think so.)

[3]Me: “Probably the same way civilization always developed, I’m guessing — by mutual recognition of social conventions…. “

You: So, morality is all about “social conventions”, is it? Thanks for the clarity. You have discredited yourself completely in just 1 phrase.

Again, you seem to have forgotten what I was responding to there. I was responding to your question (number 3) about how IP can arise — what actual *mechanism* allows it — without the state. This wasn’t addressing the basis of morality, just the question you asked (the one you just conveniently forgot about) about how IP arise without the state.

Sheesh, can you *ever* keep track of your own arguments? If you could, that would prevent me from having to remind you of what they were!

Silas Barta December 6, 2009 at 12:19 am

@newson: appeal to authority. “mensi”?? i guess this is your oblique compliment to kinsella.

mensi = mind, I think (don’t know Latin that well). petitio mensi = small mind, I think.

It’s an appeal to things that are pretty obvious to everyone. Don’t agree with them? Fine, but you’re far enough out of the realm of common agreement a to be irrelevant to this debate. It’s like trying to rehash what’s bad about the state before getting to anything else. If you want to question fundamental assumptions everyone here already shares, find the appropriate forum for it, which isn’t here.

Bala December 6, 2009 at 12:35 am

Silas Barta,

” Remember, your entire point was that IP infringes on other people’s property rights. ”

That was just a point that bothered me. It was not my POINT. So much for your reading. The way I resolved it for myself was to figure out that it is absurd and monstrous to elevate ideas and patterns to the level of the moral concept “property”. Guess you either missed that out completely or are refusing to address it.

” IP and EM spectrum rights are identical in the critical respects, as I have explained here and elsewhere. ”

Very simply put, they are NOT identical. EM waves are EXISTENTS. Ideas are a particular way of understanding reality. They exist only in our minds. There goes your argument.

” This wasn’t addressing the basis of morality, just the question you asked (the one you just conveniently forgot about) about how IP arise without the state. ”

Oh!!! And pray tell me how IP will arise without the State when the very concept of IP is fundamentally immoral? In the absence of a State to enforce your notions, how do you plan to get a lot of people (society) to agree with you that initiating force is an acceptable means to exclude people from what you claim is YOUR idea? Where are you going to get your social convention from? A group of barbarians and savages who do not think it is wrong to initate force against a fellow human being? That’s the kind of people whose support you are likely to get. Go ahead and give it a try. Just leave me out of it.

Silas Barta December 6, 2009 at 12:44 am

@Stephan_Kinsella: Silas casually says that IP rights “have been” generated in private legal systems. I call bullsh*t. Where, silas? How?

Easy. Names. From prehistory on, each person could use a certain designation as referring to himself. For others to claim someone else’s name as their own (in sufficient detail to assert that they are the other person) would be in contravention of social conventions. These were precursors to clan/tribe designations and trademarks.

You … weren’t aware of these?

Oh, right, I forgot, “trademarks don’t count. They’re, um, well, more of a *fraud* issue. Yeah, *fraud*. They’re too uh, uh, different from *normal* IP, yeah, that’s it, they don’t count as a valid example, YEAH!”

Okay, fine, then look at medieval guilds. Some had state endorsement, most didn’t. Their members expended vast resources in innovation. They claimed a species of IP in those innovations. Mainly, they use a kind of Omerta (code of silence) to keep free riders from using copying, but inevitably the secret would get out and they’d use more, forceful methods, in the context of a legal system — with social support — outside of the official state-endorsed one.

Now, we may disagree with their methods — heck, I certainly do — but it’s a clear case of social conventions supporting the right of innovators to their (large scale) innovations, external to official state approval.

Ah, check out the money quote: “The modern patent system was set up to break the power of the guilds.”. Hm … patents better than guild enforcement of innovation rights. go fig.

Not that this is a crucial point — as long as we realize that it’s possible in theory for social conventions to protect IP-type rights, the “omg teh statezors would enforce IP!” is a red herring.

Silas, your little “tu quoque” fails miserably because we libertarians are very explicit aout what property rights we respect and the system in which rules can be refined. … And tell us, Silas: what is the natural, libertarian right to innovations? Just give us a general description. What is patentable subject matter? What is the standard of nonobviousness? What counts as prior art for purposes of novelty? What should the patent term be? Penalties for violation? If you don’t know, kindly STFU.

I’m no more obligated to answer these questions in defense of IP, than you are obligated, in defense of physical property, to answer the questions: What EXACTLY counts as “first use” for purposes of homesteading? What uses of the land and adjacent resources do which acts of homesteading entitle one to which rights in? How low can aircraft be before you get to gun them down? Which interactions with new “land” (and how is that defined when it comes to new environments like space and orbits) count as a use sufficient to give a superior claim? How long must something be abandoned before others can claim it? What should be the penalties for which kinds of trespassing and property infringement, including those with no calculable monetary harm?

One standard for IP, another for the rights that you like. Conclusion assumed in advance, arguments fabricated to fit it.

Bala December 6, 2009 at 12:47 am

Silas Barta,

I missed this out

” Remember, your entire point was that IP infringes on other people’s property rights. ”

Wrong as usual…. My point was that IP is immoral because exclusion of others from an idea NECESSARILY involves the initiation of force.

newson December 6, 2009 at 1:12 am

to silas:
“mens” is the latin word for mind, and “petitio” is appeal, not small.

“It’s an appeal to things that are pretty obvious to everyone…assumptions everyone here already shares”

appeals to (imagined) majorities don’t shore up your arguments. this is far short of your best.

Silas Barta December 6, 2009 at 1:19 am

@Bala: That was just a point that bothered me. It was not my POINT. So much for your reading. The way I resolved it for myself was to figure out that That was just a point that bothered me. It was not my POINT. So much for your reading. The way I resolved it for myself was to figure out that it is absurd and monstrous to elevate ideas and patterns to the level of the moral concept “property”. Guess you either missed that out completely or are refusing to address it.Guess you either missed that out completely or are refusing to address it.

Well, see, that’s still not how it works. The position that: “it is absurd and monstrous to elevate ideas and patterns to the level of the moral concept ‘property’.” would be your *conclusion*. But a conclusion needs, well, actual *arguments* to support it. And one of those arguments was the “point that bothered [you]“. Which was, of course, “that IP infringes on other people’s property rights.” But since I have shown this ground-level assmption to be in error (in being no different from cases you support), you conclusion is weakened to such an extent as well.

Is it starting to make sense now? Again, I can help you with putting arguments together and all.

Very simply put, they are NOT identical. EM waves are EXISTENTS. Ideas are a particular way of understanding reality. They exist only in our minds. There goes your argument.

Great! You’ve gone a little further this time. Instead of just trying to declare the topics irrelevant to each other by fiat, this time, you’re offering up a *reason* why they’re different.

However, it’s still in error. IP rights — just like EM spectrum rights — most emphatically do NOT protect “ideas in themselves”, whatever those are. Instead, they restrict the *physical instantiation* thereof. So this is clearly not a different: both the physical instantiation of the EM spectrum, as well as the physical instantiation of ideas are, under your terminology, “existents” in exactly the same sense.

How about giving this one another go?

Oh!!! And pray tell me how IP will arise without the State when the very concept of IP is fundamentally immoral?

Assuming your conclusion: not good reasoning.

Anyway, I welcome your approaching of this topic. It looks like you’ve done a lot of soul-searching before making the news bigtime by changing your mind. However, now that I’ve presented arguments you haven’t quite given full attention, it looks like you need to do the same thing all over again and put the interviews on hold before you reach your *next* solid position.

That would only be fair, don’t you think?

Silas Barta December 6, 2009 at 1:23 am

@Bala: Wrong as usual…. My point was that IP is immoral because exclusion of others from an idea NECESSARILY involves the initiation of force.

Great. So does keeping trespassers off your land.

Are you against that, too? Okay then. Moving on…

Peter Surda December 6, 2009 at 2:57 am

@Silas:
> Just as you can come up with scenarios where
> people are deprived of goods because of IP, I
> can show scenarios where people are deprived
> of goods because of its absence.
And this proves what? You yourself admit that it can go both ways. How that is supposed to confirm your argument is beyond me. Besides, you switched to empirical area when it showed that your theory is flawed.

> I don’t see the relevance of your comparison to
> justification for war taxes, mainly because you
> didn’t present the corresponding argument, and
> also because any argument you’d make would
> not be isomorphic to the one I made for IP.
Silas, you apparently can’t read. I wrote, quote: ” … you need to pay taxes because otherwise there will be war.” How anyone would describe the example as “war tax” I fail to see. The example fits exactly.

Bala December 6, 2009 at 7:31 am

Silas Barta,

I’m actually getting a little tired and am beginning to understand why a lot of people just prefer to ignore you.

” Well, see, that’s still not how it works…..you conclusion is weakened to such an extent as well. ”

What I said is that the point that IP rights seem to infringe upon physical property rights bothered me.
This forced me to dig deeper and check my premises. This helped me come up with an understanding of the immorality of treating ideas as “property”. Once that was done, I could understand why the conflict existed earlier. How you see my original statement as a part of my arguments still beats me.

” IP rights — just like EM spectrum rights — most emphatically do NOT protect “ideas in themselves”, whatever those are. Instead, they restrict the *physical instantiation* thereof. ”

Ah!!!! Physical instantiation….. Now the light dawns upon me….. So, you are saying that IP “rights” restrict the freedom to represent a particular abstract concept by a concrete or tangible example. How do you restrict the freedom to represent a particular concept by a concrete or tangible example without physically preventing a person from doing so? How is this not just another act of initiation of force of the kind I had originally referred to?

In case you haven’t yet figured out, this was my original argument too – that calling ideas as property necessarily means restriction of the freedom of individuals who have not initiated force against anyone. I wonder how this “defeats” my argument in any way.

” Assuming your conclusion: not good reasoning. ”

My conclusion: I doubt if you will get your “social convention” going

My assumption: Treating ideas as property is an immoral choice and most people would recoil from it.

Now please show me where I have assumed my conclusion. Incidentally, your statement would be justified if one assumes that morality is a social convention. That’s what I said the last time around.

” Great. So does keeping trespassers off your land. ”

Explain the word “trespassers” and the phrase “your land”. Please also explain what the trespasser would have to do to trespass on my land. Assume that I have put a suitably high wall all around my land with suffiecient announcements that it is private property. I get the sneaky feeling that the trespass is the initiation of force and my force would be retaliatory. You have an alternative opinion?

Incidentally, ever heard of how tigers mark off their territory and what happens when one tiger trespasses upon the territory of another? Is that what you wish in human societies too? Nice world view.

Stephan Kinsella December 6, 2009 at 9:03 am

Silas,

“@Stephan_Kinsella: Silas casually says that IP rights “have been” generated in private legal systems. I call bullsh*t. Where, silas? How?

Easy. Names. From prehistory on, each person could use a certain designation as referring to himself.”

Nonsense. If you are named Silas Barta, others can be named Silas Barta too.

Further, even if this is prohibited in some situations this has noting to do with copyright and patent; it would be more a variant of trademark law, whihc I have explained has a more defensible basis (moored in fraud) than patent or copyright. You need an example of how a decentralized legal system protects rights to original works (copyright) or practical inventions (patent), in a way compatible with libertarian principles.

“Okay, fine, then look at medieval guilds. Some had state endorsement, most didn’t. Their members expended vast resources in innovation. They claimed a species of IP in those innovations. Mainly, they use a kind of Omerta (code of silence) to keep free riders from using copying, but inevitably the secret would get out and they’d use more, forceful methods, in the context of a legal system — with social support — outside of the official state-endorsed one.”

Medieval guilds cannot stop outsiders from using whatever patterns they want on their own properyt.

“‘Silas, your little “tu quoque” fails miserably because we libertarians are very explicit aout what property rights we respect and the system in which rules can be refined. … And tell us, Silas: what is the natural, libertarian right to innovations? Just give us a general description. What is patentable subject matter? What is the standard of nonobviousness? What counts as prior art for purposes of novelty? What should the patent term be? Penalties for violation? If you don’t know, kindly [refrain from commenting].’

I’m no more obligated to answer these questions in defense of IP, than you are obligated, in defense of physical property, to answer the questions: What EXACTLY counts as “first use” for purposes of homesteading?”

See, Silas, this is more of you dodging the qeustion. You have no idea. Hre’s what I think. You obviously have no idea about what you are in favor of. None whatsoever. You basically are opposed to abolishing the state’s patent and copyright law. You are basically a defender of the status quo–of statism

Silas, just give an *example,* how about that? I can give one for real property. A guy walking thru the wilderness sees an apple on an unowned tree. He plucks it. He is now the owner. He breaks off a branch to use as club. Now he owns the club. Until he abandons it. He then fences in a 1-acre tract of land, puts a farm and a cabin on it. Silas, he owns that tract of land and improvements on it–in perpetuity, or until he sells or abandons it. The ownership of these items means that others need his permission before using these things–before entering the house, etc. Before invading the borders thereof.

Now, how about you give a very simple but waht you regard as clear-cut example of exactly what kind of original work or invention leads to what kind of ownership cliam and how. Let’s hear it.

Bala December 6, 2009 at 9:29 am

Stephan,

” Silas, just give an *example,* how about that? I can give one for real property……Before invading the borders thereof. ”

Thanks for the explanation. It makes the meaning of the term “trespass” obvious to me. It also makes it clear as to why “trespass” as understood from this example is an initiation of force. I wonder if it does to Silas.

Peter Surda December 6, 2009 at 9:45 am

@Stephan Kinsella:
He can’t provide an example, because he still didn’t realise that IP prevents production, not consumption (apart from minor exceptions). If ownership of ideas was implemented the same way as physical property, it would have to penalise consumption. As far as I know, it is not illegal to read an unauthorised book copy or listen to unauthorised music reproduction, but it is illegal to create them. It is not illegal to use unlicensed software, but it is illegal to install it (i.e. owner of the computer is prosecuted rather than the computer user). It is not illegal to buy a patent-protected drug from an unauthorised manufacturer, but it is illegal to manufacture and sell the drug.

How can someone claim that this is anything else but market regulation is beyond me. Sure, in theory, one could create a system that penalises consumption instead of production. That would be consistent with the concept of ideas being a property. But such a system would be so much different from what we have now that it’s impossible to predict its features, apart from one: it would have to control thoughts. Certainly saying that “just like other systems would without government” is utterly insufficient.

John Donohue December 6, 2009 at 11:29 am

Bala,

Your last post spends it’s first third addressing an irrelevant point, just blowhard showing off, leaving my refutation of Kinsella undisturbed. Here, I’ll help you out by rephrasing on the dubious hope you have an actual answer, although it is not addressed to you: For someone posting against Rand’s identification of property rights as protected by a proper government, Mr. Kinsella displays abject ignorance. . .’ then return to the point.

Me to Kinsella: ” You imply “THIS IS GOVERNMENT” as if metaphysically given by nature. This is a fallacy. ”

Bala: This is not the point. His idea is that a single entity having a monopoly over the initiation of force is not consistent with the preservation of Individual Rights. The only logical extension of such a monopoly is a single world government – a rather dangerous and scary situation.

Me: Don’t tell me what the point is. The point of my objection in this sentence, addressed to Kisella, not you, is that he makes an exaggerated case for all current and past governments being thieves, murderers, etc (the full anarchist boring litany) and concludes that because governments have exhibited that behavior any future government would. That is begging the question and other fallacious thinking.

Bala: Incidentally, do you favor one world government?
Me: Yes, I would favor a world government based on Objectivist/Enlightenment principles of individual rights with a government monopoly on the rectification of initiation of force. That is called freedom and peace on earth. I do not favor one-world gang warfare based on anarchism.

Stephan Kinsella December 6, 2009 at 12:08 pm

John Donohue: “‘Bala: Incidentally, do you favor one world government?’
“Me: Yes, I would favor a world government based on Objectivist/Enlightenment principles of individual rights with a government monopoly on the rectification of initiation of force. That is called freedom and peace on earth.”

Wow, it is almost creepy how these guys will actually admit it. They are in favor of one-world government. Jesus, they admit it!

MichaelM December 6, 2009 at 1:34 pm

@ Bala

“So, what you are essentially saying is that Objectivism is whatever Rand said (irrespective of any inner contradictions that may exist). This reveals the thought process of a “Randite” rather than an Objectivist. ”

Yes, just as Aristotelianism is whatever we know Aristotle said, contradictions included. Misinterpretations of what Aristotle said are ipso facto not Aristotelian. Everyone is free to cherry pick any philosophy, but no one may alter another person’s philosophy. You may reformulate Objectivist ideas in your own philosophy, but those reformulations will not be Objectivist any more. No one may add to or subtract from Objectivism. And I have no idea what you think a “Randite” is, but whatever it is it cannot have any relevance to the content of Objectivism. That is a body of ideas that is entirely independent of the actions of any person, including Rand herself. Ideas stand or fall on their own merit.

————————

“In effect, what if the very nature of the “object” prevents it from ever being regarded as “property”?”

Such as?

————————

“If it is a right to action, it can only be that you be free to act and that others may not prevent you from acting. It cannot be that you alone that shall be free to act that way and no one else shall….”

A right to an action is not a blank check, it is ever and always contextual. Put it back into the context in which she said it and we’ll talk.

————————–
“Yeah!! It “should” be. But what if it “cannot” be?”

Not every new application of reason/effort is worth the effort of a creator to protect it. The concept of intellectual property is not incompatible with the concepts of open source and public domain.

—————————

“You conveniently forget that when it comes to physical property, either you act to possess, use and dispose of them or I do. We can’t both do it simultaneously. Take an apple for instance. Either you eat it or I do. We can’t both eat the same apple.”

No one else can eat your apple because you own the share of all applications of reason/effort that are embodied in that apple and give it value. All of the wealth you possess, you earn by applying your reason/effort to objects and trading the product thereof with others who gained their wealth in the same manner. Then you trade some of your wealth with the apple’s grower, picker, transporter, packer, distributor, trucker, grocery and all of the creators and producers of products and machines they use that put it within your reach. Subject to all voluntary contracts of others involved, you are now its sole owner and violate no rights in consuming it in its entirety including the shares of their reason/effort embodied in it, and you do so simultaneously with hundreds of thousands of others who will consume their embodied shares as well.

But note that when you partially acknowledge this here, …

“With an idea or pattern, on the other hand, we can both simultaneously act on it. My acting on an idea does not prevent you from acting on it.”

“This is the difference that I am trying to highlight.”

… you assert that there is a difference that does not exist.

Think of the concept property having two contexts. One is the context of applied reason/effort that is the owned source of value. The other context is possession of otherwise unowned matter by the right of having created/exerted or purchased the sum of all reason/effort embodied in it.

The geneticist’s property is the idea of how to combine matter into a more delicious apple and the demonstration of its viability that is the product of his reason/effort. The apple picker’s property is the idea of how to pick efficiently or faster than others and his intellectual and physical ability to apply it. Both of them sell to the grower shares of their property to be embodied in the apples that neither of them ever possess. Your apple is first possessed by the grower whose reason/effort purchases the reason/effort of all others involved and applies it to the land and resources similarly acquired and thus causes the sum of reason/effort to be embodied in the particular combination of matter that becomes the apple. The matter that constitutes the apple becomes private property only by default from the fact that it embodies all the owned reason/effort that has been earned.

—————————

“If it is reason and a commitment to reality that we are talking of, why are you neglecting the reality that exclusion of others from an idea necessarily requires the initiation of force? How then do you have the courage to use it as a “moral” concept?”

The moral principle that mandates an individual’s autonomy over the product of his reason and effort establishes the ownership of his ideas and labor. Exclusive access and use of that which is owned does not constitute an initiation of force. To deny that relationship between the ethical concept of autonomy and political concept of ownership is to embrace the politics of statists and the morality of thieves.

John Donohue December 6, 2009 at 4:16 pm

First of all, don’t call me a “they.” Others will speak for themselves.

What is creepy — no worse than creepy — is your betrayal of Ludwig von Mises, Mr. Kinsella. Shame on you. You are a parasite. Go get your own website and spew your hatred for civilization, rule of law, and individual rights.

I will visit it and excoriate you for admitting your rampant, militant hateful anarchy.

htran December 6, 2009 at 4:49 pm

Thank you everyone who participated here. It was a very fascinating read.

Bala December 6, 2009 at 6:18 pm

Stephan,

” Wow, it is almost creepy how these guys will actually admit it. They are in favor of one-world government. Jesus, they admit it! ”

Frankly, it was the recognition that this was THE logical conclusion that truly scared me.

John Donohue December 6, 2009 at 9:28 pm

while I do not withdraw my violent objection to Mr. Kinsella’s post that sparked my outburst, I will temper any future posts with more moderate language.

John Donohue December 6, 2009 at 9:34 pm

bala, the logical conclusion to your abandonment of rule of law is world chaos and war. That is what is scary here.

You and Mr. Kinsella are not just admitting it, you are trumpeting it.

Lord Buzungulus, Bringer of the Purple Light December 6, 2009 at 10:00 pm

John Donohue,

Take a red, dude.

Peter Surda December 7, 2009 at 5:45 am

@John Donohue:
While I don’t think I was ever an objectivist, I used to be a minarchist. What persuaded me to switch to anarchocapitalism was mainly prof. Hoppe’s application of Mises&Hayek’s economic calculation problem to the production of protection (policy and military). You can read it e.g. in Democracy – The God That Failed. Maybe you can try to confront that before you complain.

Allow me to summarise: in order to provide services such as protection of property, deterrance of violence or conflict resolution, one has to first produce them. Production requires to spend capital and to determine the product portfolio. From this point of view, there is no difference to any other service. A government holds a monopoly in those areas, one cannot freely enter into competition with them. However, without the feedback from market (prices), the producer cannot determine what product mix to create and how to spend the money. Should everybody be provided a tank or is a police car that drives around the block every hour more suitable? Without the price mechanism and free market in the protection services, there is no way to determine that. Therefore, just like in any other cases of monopoly, the service quality will decline and costs increase.

I observed that a lot of adherents to ideologies (not limited to objectivism, also the green, communists and religious fundamentalists) seem to think that if the adherants to their ideology had the power in their hands, that will fix all the problems. However, as the example above demonstrated, that is not the case. Ideology can’t calculate.

Pedro Carleial December 7, 2009 at 6:36 am

It is not surprising that Bala “coverted” seeing as his grasp of the Objectivist concept of property was tenuous at best.

An Objectivist knows that rights do not conflict. An Objectivist does not look for a hierarchy of rights and choose one to vitiate. Asking the question “Liberty or Property – Which is more fundamental?” is a red flag.

In reality, Intellectual Property rights do not generate any conflict – just as the right to life does not conflict with the right to liberty.

Why does the individual right to life not conflict to the right to liberty? Is the fact that you cannot shoot a man in the head not a limit on your freedom of action?

This apparent contradiction is dispelled by proper understanding of what rights are: the means to replicate in society the same freedom one would have outside of it.

Outside of society there is no “other man”. Thus in society the fact that you cannot shoot another man in the head is not a reduction of your freedoms – you never had the freedom to shoot another man in the head.

The same applies to IP. If you create a mixture of chemicals that happens to cure the aging process and patent it, that does not reduce my freedom of action with regard to the chemicals I own.

Before your invention I could arrange those chemicals in any useful combination I knew. The crucial fact is: I did not know the combination you invented. I could not concoct that medicine.

After your patented invention I am in the same situation I was before – I cannot concoct your medicine. I have lost nothing. I have actually gained something: with your authorization I can make the compound.

The creator of an invention does not reduce the freedom of any other man. By definition those other men could not make what he invented before he invented it – they lose nothing.

Two issues remain: independent invention and “the freedom to invent”.

Independent invention must be recognized. However the burden of proof rests on the person claiming independent invention to show that he did not have access to the original. Patent systems usually circumvent this issue by publishing patent requests and assuming everyone has read them (the merit of this solution is debatable).

And there is the argument that when one person invents something and patents it the freedom of other people who might have invented it instead in the future. Rights are about what is, not about what one could imagine to be. There is the person who did invent something. That is the fact.

Forwarding the “freedom to invent in the future” argument undermines the very concept of homesteading – which most Austrians consider uncontroversial when it comes to physical property.

Jay Lakner December 7, 2009 at 6:37 am

Well said Peter.

Jay Lakner December 7, 2009 at 7:16 am

John Donohue wrote:
“bala, the logical conclusion to your abandonment of rule of law is world chaos and war.”

Why is it that so many people equate anarchy with chaos and war? We have just come out of the bloodiest century in human history, yet the majority of people are simply incapable of recognising that such chaos and war are a result of the state.

Another thing I have never quite been able to fathom is how someone can call themself an objectivist and yet not be an anarchist. Anarchy is the logical conclusion to true objectivism.
How can someone believe in the non-initiation of force and at the same time advocate the existence of an organisation that initiates force?

Anyone who takes such a position must have made contradictory assumptions in the formation of their philosophy. Bala discovered one such contradiction, that in the concept of IP. Ayn Rand made some excellent contributions towards objectivist thought, but she made mistakes. A true objectivist should know that nobody is infallible, not even Ayn Rand. Unfortunately, most people who call themselves objectivists are not true objectivists.

Peter Surda December 7, 2009 at 9:04 am

@Pedro Carleial:
> Before your invention I could arrange those
> chemicals in any useful combination I
> knew.
You could also arrange it into those that you didn’t, although you might not have known the outcome. If your assumption was correct, noone would be able to invent anything, ever, because it would depend on someone else having developed it before.

> The crucial fact is: I did not know the combination
> you invented. I could not concoct that medicine.
Those two sentences are not identical.

> By definition those other men could not make
> what he invented before he invented it
Incorrect. They could have, they merely didn’t.

If I was to generalise the argument, I could claim that anything that can be causally related to some action requires permission from the one that caused it. Me writing this reply would not have happened if you didn’t write yours. Does it mean you have the right to prevent me from replying?

Therefore, a reasonable approach would be to restrict the rule to only property & contract violations. Which brings us back to the original problem of definition of property.

Pedro Carleial December 7, 2009 at 10:51 am

“They could have, they merely didn’t.”

This is really the crucial point. They couldn’t. Human action requires knowledge. Until the prerrequisite knowledge is created, purposeful action is not possible.

You are arguing against what is based on what is not (but you imagine could have been).

We cannot cure cancer. There certainly is some combination of chemicals that has that effect – but untill someone invents it we cannot produce the cure for cancer.

Shay December 7, 2009 at 11:35 am

Pedro Carleial wrote, “Outside of society there is no “other man”. Thus in society the fact that you cannot shoot another man in the head is not a reduction of your freedoms – you never had the freedom to shoot another man in the head. [...] Before your invention I could arrange those chemicals in any useful combination I knew. The crucial fact is: I did not know the combination you invented. I could not concoct that medicine.

After your patented invention I am in the same situation I was before – I cannot concoct your medicine. I have lost nothing. I have actually gained something: with your authorization I can make the compound.”

If I happen to see your invention, my mind is poisoned with your idea. Now I have to avoid thinking along those lines or risk infringing. Before, I could have thought along those lines without restriction. Humans have a drive to use any ideas they happen to glean from their surroundings, especially other humans. Alone, I could make full use of any ideas I come across. But in your society, I have to constantly suppress this.

Stephan Kinsella December 7, 2009 at 11:55 am

Shay and Surda: very good responses to Pedro.

Pedro:
Your reply is typical of IP advocates who are fairly clueless about the nature of the system they advocate, about the nature of the ideal system they would propose, and who are quick to give in on obvious injustices we point out but have no idea what an ideal system would look like.

You seem to favor an independent inventor defense, but for some reason put the burden of proof on the accused. And you talk about proving no-access. How do you prove no-access? And this is a copyright concept. You seem to be unaware that permitting such a clean-room defense would largely gut patent law–which I’m in favor of but which the patent bar would fight tooth and nail; they would call you one of the IP nihilists. do you even realize this?

Further, you then undermine your independent inventor defens with a tepid defense of the constructive notice aspect of the patent publication system–you may be in favor of it, maybe not. Who knows? You don’t know what kind of system you favor. Anyone who favors justice and understand the system realizes the constructive notice presumption of the patent system is complete BS, akin to the BS notion of the “social contract.” It’s just a statist legal fiction. Yet if you accept it, you undermine your independent inventor defense. I think you must really be thinking of prior use rights, not an independent inventor defense… further proof you don’t know what you are talking about.

Your post is a set of question-begging and mutually inconsistent ideas. You say that patenting a recipe doesn’t take anything away from others–sure it does, it prevents them from independently inventing it later and being able to use the idea for free. And you seem to be utterly unaware of how common simultaneous invention is. Do you konw why? Because certain technology makes no sense until other technical or market prerequisites appear… and when they do, the innovation becomes virtually inevitable.. so to award a monopoly to one of these people is obscene and absurd–not to mention, each patentee also learned and built on work of countless others in society, and in the past. Why he gets a monopoly for merely making an inevitable improvement on what others thought of is a mystery.

“The creator of an invention does not reduce the freedom of any other man. By definition those other men could not make what he invented before he invented it – they lose nothing.”

You could say the same of abstract or scientific theories, even philosophical ideas. Patent law currently does not cover these. By the insane IP-mania of the Randians and Galambosians, all would be covered by IP. There is no stopping point. At least the law is tempered by unprincipled, pragmatic utilitarianism… which is what Rand implicitly adopts too, in her fumbling justification of a finite, fixed term for copyright and patent.

“Forwarding the “freedom to invent in the future” argument undermines the very concept of homesteading – which most Austrians consider uncontroversial when it comes to physical property.”

qustion-begging nonsense. HOmesteading is a way to determine which person owns a given contested scarce resource: the idea is the first user has a better claim than latecomers. This rule is preferred by civilized people because it is the only rule that can be adopted if one seeks to find a conflict-free way for resources to be used in society. But by this very rule, if I homestead or own by contract from a homesteader certain chemicals, I am already the owner of this; I am the first user. The property is no longer unowned, no longer homesteadable. To give an outsider a veto right over how I use my own property is to give him rights in my already owned property. this contravenes the idea of homesteading. So any IP socialist who tries to justify IP based on homesteading undercuts himself, because homesteading is contrary to IP.

Peter Surda December 7, 2009 at 12:01 pm

@Pedro Carleial:
> This is really the crucial point. They couldn’t.
Of course they could. Let’s say we have 1000 doors and behind one of them is the answer. If someone manages to open that door first, that doesn’t mean anyone else couldn’t have done that either. It merely means they didn’t.

> Human action requires knowledge.
It doesn’t.

> Until the prerrequisite knowledge is created,
> purposeful action is not possible.
Of course it is. We see it all around us. People hold all kinds of misguided, even obviously incorrect, views, or do things for the wrong reasons. More often even their knowlege is incomplete. Yet it doesn’t stop anyone from acting. What is rather necessary is the belief that one’s actions are going to bring about the desired results.

You seem to treat “knowledge” as something that has an existence on it’s own and is objectively determinable. There is no such thing.

> We cannot cure cancer.
Let’s reformulate it: so far we haven’t cured cancer.

> There certainly is some combination of
> chemicals that has that effect
See, this is a belief. There is no such certainty.

> but untill someone invents it we cannot produce
> the cure for cancer.
This argument it flawed, because, as I demonstrated above, you can apply it recursively to show that nothing can ever be invented.

Your arguments feature what I call the fallacy of reverted implication and see it in a lot of debates. In math speak, the incorrect argument goes like this:
A => B, therefore ‘A => ‘B
Whereas the correct argument would be:
A => B, therefore ‘B => ‘A

Also, you need to reply to the other argument I wrote about. Causality is not a sufficient justification for property claim.

Jay Lakner December 7, 2009 at 12:17 pm

Pedro wrote:
**********
This apparent contradiction is dispelled by proper understanding of what rights are: the means to replicate in society the same freedom one would have outside of it.

Outside of society there is no “other man”. Thus in society the fact that you cannot shoot another man in the head is not a reduction of your freedoms – you never had the freedom to shoot another man in the head.
**********

Your so called “proper” understanding of rights is the source of a major flaw in your reasoning. The fact that tangible materials are scarce automatically disproves your definition of rights.

Outside society I can take a bite out of every apple I see, build huts wherever I want, hunt cook and eat any deer I find, and so forth.
Within society I certainly do not have these same rights. I do not have the right to eat another person’s apple. I do not have the right to build houses on another person’s land. I do not have the right to kill someone else’s deer.

It is the scarcity of tangible materials that requires us to even invent the concept of property. I’ll explain more below.

Pedro also wrote:
**********
And there is the argument that when one person invents something and patents it the freedom of other people who might have invented it instead in the future. Rights are about what is, not about what one could imagine to be. There is the person who did invent something. That is the fact.
**********

Rights are not about “what is”. Rights are what you are entitled to do. Rights are all about ‘what can be’.

Every individual has the right to act in any manner so long as they do not initiate force against another individual.

This includes anything you can possibly imagine, such as researching technologies, rearranging chemicals or placing words on a piece of paper. As long as you do not initiate force against another in the process, your rights are virtually limitless.

Consider the following:
In order to survive, we must act.
Inaction would result in death.
In order to sustain ourselves, we must consume and manipulate tangible materials.
No two individuals can both use the same item.
Therefore, the concept of property is required in order to prevent conflicts.
Hence, it is the scarcity of tangible materials which logically leads us to the necessity of developing rules for assigning property rights to individuals.
Without scarcity, there would be no need for the concept of property.

However, you wish to assign property rights to specific configurations of tangible materials, ie ‘patterns’.
To do so is to place limitations on what others can do with their own property.
The only justification for this would be to demonstrate that they are initiating force against you.
They are not interfering with any of your physical property (which includes your body).
Hence, they are not initiating force against you.
In fact, in order to protect your ‘ownership’ of a particular pattern, you would need to initiate force against them.
Therefore, to grant individuals ownership of ‘patterns’ directly violates the rights of others.
Hence, ‘patterns’ cannot be considered a form of property.

The above line of reasoning demonstrates two clear reasons why patterns should not be considered a form of property.
Firstly, they are not scarce. They are infinitely reproducible. There can never be a conflict between two individuals trying to simultaneously use the same pattern. Since the concept of ‘property’ was required to deal with scarcity, applying it to non-scarce things like patterns is a completely unnecessary and non-fundamental step to make.
Secondly, and most importantly, assigning property rights to patterns is a direct contradiction to the assignment of property rights to tangible materials. You must initiate force against others if you wish prevent them from using their own physical property. This contradiction clearly demonstrates that physical property rights and intellectual property rights cannot coexist.

cpx December 7, 2009 at 6:36 pm

Great piece!

Objectivism was also my first encounter with these ideas, so to speak. While I have since rescinded from the belief in Intellectual Property and known the righteousness and the full logical coherence of it, I haven’t been able to reconcile it with my former Objectivist roots. This, you have now accomplished for me.

And in true Liberty-rooted fashion, I will now proceed to reproduce your ideas in as many copies as I can! ;-)

Silas Barta December 8, 2009 at 2:40 pm

If I had twice as much time as I do now, I couldn’t individually respond to all the fallacious arguments directed against me.

Let me just point out what I’m dealing with here. In this comment, Stephan_Kinsella gave the responses I already expected and anticipated in the very comment he was responding to, and doesn’t seem to be aware he was making arguments that were addressed before he even posted!

Furthermore, we see that Bala’s “conversion” isn’t grounded in any kind of deep understanding of the issues. A cursory cross-examination of his thinking quickly revealed that he thought he could get out of the EM spectrum comparison by calling it — labeling it — a different topic.

To but it bluntly, that’s just not how it works. Your principles need to be consistent across nominally different topics, and it appears Bala didn’t give any consideration to the EM spectrum issue, in which he probably still believes in exclusive rights to make certain (EM wave) patterns, in direct contradiction of his supposed disagreement with IP.

Bala’s la-la intellectual journey is not something IP opponents should point to.

Lord Buzungulus, Bringer of the Purple Light December 8, 2009 at 2:49 pm

Silas, God forbid you have *any* more time to spew your nonsense here.

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