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Source link: http://archive.mises.org/11327/ip-the-objectivists-strike-back/

IP: The Objectivists Strike Back!

December 27, 2009 by

It is clear to anyone who pays attention that IP is under assault–both institutionally, as digital copying, encryption, distributed information, the Internet, and the inherent impotence of IP policing make attempts to monopolize information patterns increasingly futile; and intellectually, as more and more people, especially libertarians–and especially younger libertarians–see the injustice of IP made manifest and obvious. There is a growing body of work that explodes the myths–moral and utilitarian, principled and empirical–of the IP proponents (see the works listed at the final section of “The Case Against IP: A Concise Guide“). There has been a noticeable and growing migration of libertarians toward the anti-IP position. I have lost count of the number of people who have personally told me they have seen the light on the IP cause in recent years. Among the radical and principled libertarians I know, there is a lot of debate about a lot of things–abortion, federalism, activism, “thickism,” left- vs. right-, etc.–but on two issues there is a striking degree of agreement: these are anarchy, and intellectual property. That the state, and IP, are unjust, seem obvious to them after a little reflection. More and more libertarians are realizing that the case for IP being part of legitimate property rights is a hollow one that never needed to be accepted (see Have You Changed Your Mind About Intellectual Property?).

So it is no surprise that Objectivists would be distressed by this phenomenon. Not only are they among the most ardent modern advocates of intellectual property (in addition to Andrew J. Galambos [see Against Intellectual Property], and perhaps J. Neil Schulman), but Rand in a sense built her entire philosophical edifice on IP: to-wit, Rand incredibly said that “patents are the heart and core of property rights” and Objectivist law professor Adam Mossoff explicitly claims that “All Property is Intellectual Property” (see Objectivists: “All Property is Intellectual Property”). And so, realizing Rand’s arguments for IP are deeply flawed, and that fewer and fewer people are buying it, they are starting to fight back.Let’s survey a few. I’ve already mentioned neo-Objectivist (?) J. Neil Schulman’s logorights; I have pointed out problems I see in his view in On J. Neil Schulman’s Logorights and Reply to Schulman on the State, IP, and Carson. I think some of the mistakes Schulman makes are echoed in the tentative IP views of Machan; a problem with both is that they seem to think that any conceptually identifiable “thing” is ownable. For more on this, see Rand on IP, Owning “Values”, and “Rearrangement Rights”; my comments in the thread of the post Intellectual Products and the Right to Private Property; New Working Paper: Machan on IP; Owning Thoughts and Labor; this comment to “Trademark and Fraud”; Libertarian Creationism; also Elaborations on Randian IP and Objectivists on IP.

Another one was Objectivist IP attorney Murray Franck’s defense of IP and his reply to my response in the IOS Journal, back in 1995 (I also discuss Franck’s views in Inventors are Like Unto …GODS… and Regret: The Glory of State Law). Here we can see glimmers of the idea that “all property is intellectual property”–or, at least, that IP is the most important type of right (just as Galambos held).

There is Greg Perkins’s piece, Don’t Steal This Article!“, from 2006. I’ve noted deficiencies in his or similar arguments in various publications, such as Perkins on Pursuing Insufficiently Abundant Intangible “Values”; Against Intellectual Property; Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors; Elaborations on Randian IP; An Objectivist Recants on IP; “Intellectual Property and Libertarianism” (in particular see here and the section on Libertarian Creationism); Rand on IP, Owning “Values”, and “Rearrangement Rights”; Libertarian Creationism; Inventors are Like Unto …GODS…; Intellectual Products and the Right to Private Property; New Working Paper: Machan on IP; Owning Thoughts and Labor; and Objectivists on IP; and in media, I discuss problems with Rand’s view at length on the Peter Mac show and at the Mises University this year; also The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism.

Then there’s Objectivist law professor Adam Mossoff who is writing a defense of IP, as mentioned in the Objectivist “Noodlefood” blog post An Objectivist Recants on IP??. Roderick Long informs us that “the Ayn Rand Society session at the APA is also devoted to intellectual property”–indeed it is, with the topic “The Normative Foundations of Intellectual Property: Two Perspectives,” having as speakers Adam Mossoff and Eric R. Claeys, both of George Mason University Law School, and chaired by Allan Gotthelf (University of Pittsburgh), on Dec. 28, 2009 (sadly, I’ll miss it, since I’m here skiing in Steamboat, Colorado. Wait, not so sadly). I’m eager to see Mossoff’s paper (and curious to see what Claeys has to say), but suspect it will be built on the fallacies and errors noted in posts above such as this Objectivist blog post and Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors.

Also noted in Roderick Long’s post is his upcoming Molinari Society IP symposium at the APA later this month (Dec. 29 , 2009), including Bob Schaefer’s “Response to Kinsella: A Praxeological Look at Intellectual Property Rights.” I’ve taken a look at Schaefer’s piece, and it’s not pretty. It’s just a mess. Roderick Long ably dissects just a few of its glaring flaws here.

(Aside: Long’s comments are really superb and insightful. A few comments. Discussing the IP comments of another author, Long writes, “a strong case can be made for thinking that Lockean principles must be substantially distorted in order to press them into service on behalf of IP”. Long backs this up very ably. In the same article he makes an illuminating distinction between three conceptions of “capitalism” that helps to dispel the confusion among both right and left in addressing this issue.)

The Objectivist approach is mired in a number of problems. It anchors property rights to the idea of “creation”; it requires legislation, and the state; it believes in some intrinsic value and some property right in value; it advocates utterly arbitrary and/or unprincipled, utilitarian finite lengths for IP; it rests on an arbitrary distinction between discovery and innovation. In a world where we took the ideas of the IP advocates seriously patent and copyright would have to have infinite duration. And the gaps in coverage would be fixed, and the state’s arbitrary exceptions fixed, such as the “fair use defense” to copyright. At present patent and copyright cover a statutory class of “inventions” and artistic works, respectively. Many logos, idea-patterns, “creations,” values are not protected at present. These include: perfume smells, the fashion industry, food recipes, certain business methods, databases (unoriginal but useful collections of information), abstract ideas such as mathematical algorithms, proofs, and techniques and physical laws. Under the ideas of the IP fanatics, there is no reason not to grant state-monopolies to these patterns too. And the term should not expire in 20 or 100 years–does your property to your house expire after some time limit? And why the utilitarian fair use exception? No principled case for IP could tolerate it.

I would love to see libertarian IP advocates have to live in a world that truly implemented their IP views fully, consistently–it would be like a communist USSR stripped of its power to ape Western price structures, to ameliorate the effects of communism. They would either die out, as the material world was strangled by an impossible nettle of ghostly IP-rights tendrils, or they would cry uncle. Even today, one imagines the cognitive dissonance of Objectivists living in our digital age–cutting and pasting, linking, learning and reworking ideas of others–all the while maintaining that all the things they themselves cannot but help engage in are “immoral” or some such tedious nonsense. I think of modern do-gooder environmentalists–they must feel pangs of guilt while flying on a jumbo jet to a friend’s wedding 2000 miles away, or to attend UN conference or job posting on another continent. They must wring their hangs in agonized guilt and indecision about whether to use styrofoam, paper, or a washable coffee cup. They must feel tremendous guilt whenever they discard a scrap of soiled napkin instead of recycling it. Environmentalist parents must feel terrible pangs of guilt at using disposable diapers (or they suffer by using cloth ones: either way, I am pleased by the thought of their discomfort). Likewise, when an Objectivist emails a vandalized picture of an apostate like Alan Greenspan to a friend they must be conflicted–wait, no, there’s a fair use exception! Thank Rand for the State and its wise laws!

Addendum:

Book Essay: The strange world of Ayn Rand

Control freak

One striking feature of Objectivism is it outspoken support of intellectual property. A key scene in Atlas Shrugged is where metallurgist genius Hank Rearden is compelled by the government to hand over his intellectual rights to his innovative metal alloy, and Ayn Rand acted in kind. She passionately used the copyright on her works to bar people from forming “John Galt Societies”, citing that the name John Galt is her creation and her intellectual property.

For a person bent on propagating her ideas to the maximum extent possible, this would seem eerily counterproductive. Stealing an object from someone is obviously depriving the original owner of his property, but copying it isn’t. It may or may not be harmful to potential income, but that income remains potential, in the realm of the unprovable. This is a debate that incites extreme passion.

While Objectivists, libertarians and conservatives strongly agree on the principle of physical property rights, the picture is much more divided when it comes to ‘intellectual property’, a catch-all phrase for several different items, including patents, copyright and trademarks. In a landmark essay by Stephan Kinsella, Against Intellectual Property, argues that ‘Intellectual property’ is not only meaningless and harmful, it is in direct violation of the general principle of private property, and primarily constitutes a state-sanctioned creation of artificial scarcity, leading ultimately to poverty, not job creation and wealth.

The wider libertarian movement accepted the argument, put it into action (see www.mises.org/books) and moved on. Objectivists, on the other hand, maintain that what Ayn Rand spoke and practiced on the subject remains the unalterable truth.

(See also on this Jeff Tucker, If You Believe in IP, How Do You Teach Others?.

{ 152 comments }

Bob Kaercher December 30, 2009 at 12:48 pm

Russ: How is using *my own computer* to download a film or a song the equivalent of initiating aggression, i.e., using a “baseball bat” or a “gun” to assault someone and/or invade their property?

Your analogy should be pointed in exactly the opposite direction. It is, in fact, the *IP PROPONENT* who is against property, since they think that a creator has some right to use a “gun” or a “baseball bat” against others for doing completely peaceful, non-invasive activities with their own property, e.g., using one’s own computer to download a song from the web. Such a definition of property is, in fact–regardless of whether the IP advocate can see it or not–*anti*-property.

And what Stephan said.

But I’ll leave off for now and let you have any last words. I don’t see much point in arguing with someone who seems to be desperately looking for kind of semantic loophole in someone else’s argument for who-knows-what reason.

Jesse Forgione December 30, 2009 at 1:46 pm

Russ,

Owning intellectual property amounts to owning one or more possible uses for physical property.
For any given piece of physical property, the more of it’s possible uses are owned by others, the less it’s owner is free to use it. He may only use his physical property in ways that remain unclaimed or in ways that he himself owns which others who own similar property may not use (without his permission). If we follow IP to it’s extreme conclusion where all possible uses are owned, we reach the state where no two people may make the same type of use of similar physical property without one getting the permission of the other. If someone owned a piece of physical property, but none of it’s possible uses, he could not be said to own it in any meaningful way.

In principle, to own a method or pattern is to have a degree of control over all the physical property that exists. To the degree that the various possible uses of others’ property can be owned, those others are not it’s owners.
Let’s imagine I use my own materials to build a house of my own design. You, my neighbor, own similar materials, and seeing my method of building, you imitate my design for your own house. Now either I am justified in knocking your house apart to take back my intellectual property or I’m not. If IP is valid you have stolen my pattern and I should take steps to get it back. If IP is not valid than I’m a vandal violating your property rights. But we can’t both be right. Either I control the pattern you arrange your property in, or you do. If it’s the former, than you cannot really be said to be “owning” your physical property. This would amount to the fascist model where there is nominal private property but the state controls what can be done with it, rendering the “ownership” meaningless.

Also, there’s no reason in principle that IP couldn’t be applied to broader, more general or more obvious ideas. What if I owned not just the design of a specific car, but the very idea of a car? …or the very idea of mechanical transportation? …or the wheel? The difference is only in degree.

Jesse Forgione December 30, 2009 at 1:56 pm

Russ,

Sorry, I should have indicated that the above is in response to:

“Once again, no, IP does not negate classical property rights.”

Peter Surda December 30, 2009 at 1:58 pm

Hi Russ,

thanks for the reply. Yes, I believe in “sort of” property rights in EM and explained my position to Silas several times. I think since the last time I explained it I was able to think of a more coherent approach.

In my opinion, a property infringement means that the integrity of the property is compromised. I didn’t actually come up with the idea, it is one of the known libertarian approaches. In the case of EM, a sender can under certain circumstances cause disruptions in the recipients of other sender’s broadcast. I.e. the integrity of the reception is compromised. This can be prevented (by the second sender) for example by using a different frequency or by agreeing with the first sender to a transmission protocol that allows bandwidth sharing.

An analogy would be that the senders are producers and the recipients consumers. With IP, the provisioning of services by competing producers do not prevent each other. With EM, in certain cases, they do.

The analogy I gave to Silas was spraying a wall. Two sprayers can spray on the same wall in parallel, however the wall can only show one picture at a specific time.

Now, I have not come to the conclusion if it’s the sender or the recipient that “own” the EM spectrum. Arguments can be made with regards to both. Possibly it is a mix of those. Nevertheless, at least one of them has a right to prevent an unwanted sender from disrupting the reception. In some cases, that means they can’t send at all. But it is not the prevention of sending that is the core issue, rather prevention of disruption of reception. If the sender can somehow manage to send without disrupting the reception of another broadcast, there is no infringement.

Stephan Kinsella December 30, 2009 at 6:14 pm

Peter Surda: “I agree with Russ. Presented the way Stephan does it is circular logic. Please remember, both Russ and I are IP opponents. We do not oppose Stephan’s conclusions, merely consider the argument insufficient.”

Peter, I don’t think it’s circular because our view of property rights is grounded in a Lockean homesteading view as applied to scarce resources. Under that view you can perform any action you want so long as you do not invade the borders of (i.e., change the physical integrity of) another’s Lockeanly-owned scarce resource, without his consent. How is this circular?

And given this view, to oppose the use of my scarce resource by another, without my permission, is not circular either.

A consequence of this view is that you may use force to prevent others from committing such invasion. But other types of force would then necessarily be trespass, aggression. Force that is not consented to may be used only in response to trespass, otherwise it is trespass.

Now, the IP idea says that A may use force against B, if B is using B’s scarce resources according to a certain pattern that A claims some “right” to. In other words, A claims a right to use force against B, even though B never did perform any action that invaded A’s scarce resource, even though B never did change the physical integrity of A’s property.

That is why A’s claimed right to force is wholly unjustified and is indeed incompatible with the libertarian conception of property rights in scarce resources. We believe every scarce resource should be assigned an owner, based on Lockean principles. IP would set up a second rule for assigning property rights to scarce resources.

Bala December 30, 2009 at 7:05 pm

Bob Kaercher,

I know you posed this question to Russ, but since I seem to agree with him, I thought I’ll reply.

” How is using *my own computer* to download a film or a song the equivalent of initiating aggression, i.e., using a “baseball bat” or a “gun” to assault someone and/or invade their property? ”

If IP is valid, the very meaning of it is that the patent/copyright holder alone has the right to instantiate the idea/pattern. The very act of instantiation by someone else is an initation of force against the “owner”.

In typical Objectivist argumentation, the very existence of the idea/pattern being owed to the creator, there is no excuse anyone can give for claiming that they could not have known that someone created the idea. This is similar to saying “Once you have put a fence to your land, there is no way any person can fail to understand that it is your property”.

Whenever anyone asks “How do you put a marker to show that an idea is owned”, an Objectivist would respond saying that you probably do not even understand the metaphysical nature of ideas – that they cannot come into existence without a creator and that their very “existence” is their “identity” (more Objectivist language, in case you are unfamiliar). You will promptly be labelled “concrete-bound”.

Just as any person crossing a fence without your permission is guilty of initiating force against you, any person copying an idea is then considered guilty of wilfully ignoring the “metaphysical reality” of ideas and initiating force against the creator (who is the “owner”).

In this case too, it is the action of instantiating that which is clearly someone else’s idea that is a violation of his “property rights” just as the action of swinging a baseball into my face is a violation of my “right to life” or the action of invading my land is a violation of my “property rights”. In all 3 cases, it is the action that is being restricted. If…. that’s a big IF…. both classes of property rights (physical and intellectual) are valid, someone who disagrees with the “use” of force to defend one has to necessarily disagree with the use of force to defend the other.

Therefore, Russ is right that if you accept the validity of IP, copying is tantamount to invasion of owned land. Similarly, if you reject IP protection, you should reject physical property protection too on the same grounds.

Bala December 30, 2009 at 7:16 pm

Stephan,

” I don’t think it’s circular because our view of property rights is grounded in a Lockean homesteading view as applied to scarce resources. ”

It is because the basic Objectivist argument for IP does question the validity of the application of the Lockean homesteading view to ideas & patterns and then citing their lack of “scarcity” as the reason to say that they are not “property”.

Further, Russ’s point was “If IP were valid…..”. A response that says “Since IP is invalid…..” and then goes on to say that force is used to protect the “invalid” right and that that is further grounds to consider the right invalid, one is indeed guilty of engaging in circular reasoning.

This error is what I meant when in some other post, I said that your arguments are too libertarian. I can clearly see why most Objectivists will not agree with you and why any arguments you have with them turn heated and end in name-calling. You call them “wilful aggressors” and they call you “concrete-bound”.

Bala December 30, 2009 at 8:17 pm

Peter Surda,

” In the case of EM, a sender can under certain circumstances cause disruptions in the recipients of other sender’s broadcast. I.e. the integrity of the reception is compromised. ”

I was thinking on slightly different lines but came to similar conclusions. My thinking was that when I send a message on a frequency, the message is my property just as much as a letter I have sent out in the custody of a courier is my property till it is delivered to the recepient.

On these lines, my conclusion was that it is not the EM spectrum itself that is owned but the message that is being broadcast on it. Therefore, anyone broadcasting a signal that distorts my message (meaning it would have to be on the same frequency) is violating my property rights.

Interestingly, I was coming to the same conclusion that if the second user of the same frequency could use it without distorting my message, there would be no property rights violation just as your sending a letter through the same courier does not violate the property right I have in the letter I send.

Does this make sense? Is it simple to understand?

Silas Barta December 30, 2009 at 10:10 pm

Looks like Peter_Surda and I have a rare agreement on this issue.

@Stephan_Kinsella:

Peter, I don’t think it’s circular because our view of property rights is grounded in a Lockean homesteading view as applied to scarce resources. Under that view you can perform any action you want so long as you do not invade the borders of (i.e., change the physical integrity of) another’s Lockeanly-owned scarce resource, without his consent. How is this circular?

This has been explained to you several times by now, but let’s try it again a different way. The circularity lies in your assumption about which rights you gain by doing how much homesteading, and it is in no way obvious how the rights must work the way you think they do.

Say I homestead a plot of land. How far above and below does that homesteading entitle me to? Yes, you can justify a specific amount, but that’s the point: you have to justify why your rights extend to that boundary (abstract or otherwise), not just assume that your land ownership implies ownership of the airspace through which planes fly, and then argue that “airplanes necessarily violate the property rights in already-owned land” … which, when you think about it, is pretty much what your IP case is.

But that’s just the beginning: does homesteading the land entitle you to block (non-nuisance) concentrated sound waves from passing through your land (e.g. ultrasound)? And of course, back to the ol’ chestnut: does the land ownership entitle you to block every single frequency of the EM spectrum passing through?

Now, there are many cases where you can assume that homesteading entitles you to certain rights. However, here, the very debate is about which rights you are morally entitled to by virtue of homesteading what. And in that case, it is in fact circular to assume a certain level of homesteading-based rights, since you’re trying to prove what the homesteading-based rights are in the first place, which people dispute!

Note that since this is the central argument of Against Intellectual Property, its circularity isn’t very encouraging when judging its merit as an argument against IP.

Andras December 31, 2009 at 12:48 am

Not to mention that the act of homesteading itself is totally arbitrary. How do you homestead a land. Setting the horizontal size of it is as arbitrary as the vertical size. Fencing it? Who are you kidding?
At least a composition of matter patent is unambiguous.

Russ December 31, 2009 at 5:08 am

Bob Kaercher wrote:

“Russ: How is using *my own computer* to download a film or a song the equivalent of initiating aggression, i.e., using a “baseball bat” or a “gun” to assault someone and/or invade their property?”

I’ve already explained that several ways later on in this thread. I said that *IF* IP rights were valid, then using your computer to violate my IP rights would be initiating aggression. Or, if a person’s rights to EM spectrum were valid (which I believe they are), then using your transmitter to violate my EM spectrum rights would be initiating aggression.

“Your analogy should be pointed in exactly the opposite direction. It is, in fact, the *IP PROPONENT* who is against property, since they think that a creator has some right to use a “gun” or a “baseball bat” against others for doing completely peaceful, non-invasive activities with their own property, e.g., using one’s own computer to download a song from the web. Such a definition of property is, in fact–regardless of whether the IP advocate can see it or not–*anti*-property.”

Here you are assuming that which you wish to prove, just like Stephan is. Note the words “completely peaceful, non-invasive activities”. You are *assuming* that using a computer to download a song is a completely peaceful, non-invasive activity. But an activity is only completely peaceful and non-invasive if it does not violate rights. So, by assuming that using your computer to download a song is a completely peaceful and non-invasive activity, you are implicitly assuming that it does not violate rights, which implicity assumes that IP rights are invalid. A Randian would call what you are doing the fallacy of the smuggled premise.

“But I’ll leave off for now and let you have any last words. I don’t see much point in arguing with someone who seems to be desperately looking for kind of semantic loophole in someone else’s argument for who-knows-what reason.”

I’m pointing out what I believe to be a logical flaw in your argument, not looking for “semantic loopholes”. The reason why I am doing this is that I think your argument is both a flimsy argument against IP and a possible (although also flimsy) argument against classical property!

@Jesse Forgione:

I have already argued some of my points elsewhere in this post or thread, so I’ll let those speak for themselves. My comment to you specifically on your last post is that you seem to be going for a sort of reductio ad adsurdem argument against IP. The only problem with using reductio ad adsurdem arguments in philosophy is that some philosophers, being the armchair types they are, won’t find the conclusions absurd! Why not stick to the scarcity argument against IP? It’s perfectly reasonable, and once you have one disproof of the validity of IP, do you really need another?

Stephan Kinsella wrote:

“…I don’t think it’s circular because our view of property rights is grounded in a Lockean homesteading view as applied to scarce resources. Under that view you can perform any action you want so long as you do not invade the borders of (i.e., change the physical integrity of) another’s Lockeanly-owned scarce resource, without his consent. How is this circular?”

It’s not the scarcity argument for the validity of property that I think is invalid. I agree with this. I believe that the circularity is actually in another argument, which you seem to be melding together with your scarcity argument. This is the same argument that Bob Kaercher and Jesse Forgione are using without the scarcity argument to prop it up.

That second argument is that IP is invalid, because enforcing it violates the property rights of classical property owners. But it can’t be said that enforcing IP violates the rights of classical property owners, unless IP is invalid. Therefore, this argument implicitly assumes that which it intends to prove. As I said before, it is a smuggled premise.

@Peter:

However you want to slice the EM rights thing is irrelevant to my argument, I think. The main thing is that we agree that somebody has a right to use force to prevent a second sender from using his classical property (his transmitter) to interfere with the reception of a signal sent by a first sender. As long as we agree on that, we both agree that there is a case of “overlap” between classical property rights and a newer form of property right (EM spectrum rights), where the newer form rightly wins. That being the case, you should have no objection to overlap in general, hence the overlap argument against IP fails, IMVHO.

Peter Surda December 31, 2009 at 5:34 am

@Russ:
I believe you commit the same logical error as Silas does when arguing for similarity between EM and IP. In EM, it is not the overlap on the sender side that is the cause of the alleged infringement, rather the overlap on the receiver side. More accurate analogy to the IP case would be if person A was sending signal to person B (potentially A and B are the same), with both A and B’s agreement, instead of B receiving the broadcast by person C, and that was alleged to cause an infringement of C’s rights.

If one was to make that claim, one could also claim that preventing person A shooting his gun in a way that the bullet leaves person A’s premises and hits person B is equivalent to IP.

Russ December 31, 2009 at 8:12 am

@Peter:

I’m afraid I don’t understand your last post at all. Maybe not enough caffeine on my part? I’m not sure I understand your overlap theory completely, and I am trying to organize my thoughts on it as I am writing, so bear with me.

My understanding of your theory is that IP would be wrong because there is an overlap of rights with respect to a single object; a CD, for instance. Person A owns a CD, but person B owns the software on the CD, and thus could rightfully use force to prevent A from using his CD as he wishes, if that use violates B’s IP rights. You see this as a contradiction due to the overlap of rights, and thus as a disproof of IP, am I right? I don’t see it as a contradiction, and hence don’t see it as a disproof of IP. The reason I don’t see it as a contradiction is because B using force to prevent A from using his CD in any way he wishes, is in principle no different from me using force to prevent you from using your classical property any way you wish (i.e. using your bulldozer to crush my house). It’s the same with EM spectrum rights. It doesn’t really matter what side the overlap is on, receiver or transmitter (although I can’t see how EM spectrum rights could work if the “homesteading” trasmitter owner didn’t own the rights). All that matters is that *somebody* has the right to use force to prevent somebody else from using his classical property (his transmitter) as he wishes. This is an overlap of EM spectrum rights over classical property rights, since it prevents a second transmitter owner from doing with his own transmitter as he would like, but it’s still valid.

In fact, I would argue that since all property rights involve limitations of what others can do with their own property, all property rights involve overlap, in a sense. Hence, the overlap doesn’t invalidate anything, or all property rights would have to be thrown out the window. I would also argue that your overlap theory is just a more sophisticated packaging of the “IP violates classical property rights, therefore it’s invalid” argument.

Peter Surda December 31, 2009 at 9:27 am

@Russ:

I think you misunderstand me. Apparently my arguments are harder to explain than I anticipated.

You are correct in that overlaps are nothing specific for IP or EM. Which is why abandoned the circular reasoning. Yes, ownership overlaps can also happen if you have purely physical property only, and you are also limited in what you can do with physical property even without IP. Let’s split the argument into two parts.

Overlap: it is my observation that in case of an overlap, the more abstract aspect always takes precedence. The overlap prohibits (from legal perspective) the owner of the less abstract aspect from using it, but the owner of the more abstract aspect is not prohibited from using it. If you only have physical property, for the duration of the overlap both sides are prohibited from using their aspects. If I mix physical objects that do not belong to me (e.g. cheese omelette from stolen eggs & cheese), this prevents all owners equally from using the results (absent agreement).

While (hypothetical) ownership of immaterial properties can lead to prohibition of using physical objects, it doesn’t work the other way around. The more abstract takes precedence. Patents > copyright > physical. Ownership of the lower layer becomes insufficient justification for its usage, there is always an overlap between the layers. This is the core of my argument.

Limits: I don’t think this is an argument I can make within the creation theory of property, from that point of view all limitations whatsoever are irrelevant. I can only show the difference if property is interpreted as a right to integrity.

Stephan Kinsella December 31, 2009 at 9:47 am

Russ:

“It’s not the scarcity argument for the validity of property that I think is invalid. I agree with this. I believe that the circularity is actually in another argument, which you seem to be melding together with your scarcity argument. This is the same argument that Bob Kaercher and Jesse Forgione are using without the scarcity argument to prop it up.

That second argument is that IP is invalid, because enforcing it violates the property rights of classical property owners. But it can’t be said that enforcing IP violates the rights of classical property owners, unless IP is invalid. Therefore, this argument implicitly assumes that which it intends to prove. As I said before, it is a smuggled premise.”

I am not sure this is right. You say, “But it can’t be said that enforcing IP violates the rights of classical property owners, unless IP is invalid.” But it seems to me you can say that “enforcing IP violates the rights of classical property owners, IF classical property is valid.”

Russ December 31, 2009 at 10:14 am

Peter Surda wrote:

“I think you misunderstand me. Apparently my arguments are harder to explain than I anticipated.”

Yes, they are difficult. The medium we are using to communicate is not as good for “dialoguing” about this as a face-to-face talk would be, but what can be done?

“While (hypothetical) ownership of immaterial properties can lead to prohibition of using physical objects, it doesn’t work the other way around. The more abstract takes precedence. Patents > copyright > physical. Ownership of the lower layer becomes insufficient justification for its usage, there is always an overlap between the layers. This is the core of my argument.”

That this abstraction layer exists is a valid point, because it has to be that way. If IP or EM rights could be derived from classical property rights, there would be no abstraction layer issue. The fact that IP cannot be derived directly from classical property rights (AFAICT) means that IP or EM rights must necessarily be on a different layer of abstraction. This is where some people here fall down, IMO. They insist that only the classical property level is valid, and IP is valid only if it is derivable from classical property rights. It is not so derivable, hence IP is invalid. But assuming that *only* the classical layer is valid is when the smuggling of premises comes into play. If you assume that 1) only the classical layer is valid, and if 2) IP is not derivable from the classical layer, then you have implicitly baked your conclusion into your premises. One could argue that this is what logic is, and what can be done? What can be done is to prove the first premise, which these people don’t do.

That the layers exist, if IP is to exist, I agree with. That the IP layer must override the classical layer for IP to make sense, I agree with. That this somehow invalidates IP, I don’t agree with. Here’s why:

From a previous thread:

Peter Surda wrote:

“The point is that IP creates a dual reality scheme. There is the physical layer, and immaterial layer. These necessarily overlap, and the overlaps cause dual ownership. Therefore, they cannot both be valid at the same time. Since the IP proponents claim that the immaterial ownership takes precedence, that invalidates (classical) property rights.”

I object to the “therefore” part above. Yes, IP prevents a CD owner from using it in any way he might like. It does not, however, prevent him from using it in any way whatsoever. For instance, he could use it to install the software on it, in agreement with the IP owner’s terms of use. He could use it as a coaster. He could use it as a frisbee. He could, in short, use it in any way that does not violate the IP owner’s rights. This is no different than with classical property rights. I can use my gun to target shoot with on my own land. I can use it to hunt deer on my own land. I can use it as a decoration over my mantel piece. I cannot, however, use it to shoot your dog, because your property rights limit me from rightly doing do. What you are saying is equivalent to saying that your right to your dog means that my right to my gun is invalid. It is not invalid, it is only limited. I don’t see how the creation theory gives an IP owner unlimited rights over the CD, only over very specific uses of it.

Stephan Kinsella December 31, 2009 at 10:22 am

Andras: “Not to mention that the act of homesteading itself is totally arbitrary. How do you homestead a land. Setting the horizontal size of it is as arbitrary as the vertical size. Fencing it? Who are you kidding?”

HEy, even dogs are smart enough to recognize territory. It’s a wonder some libertarians are not.

Russ December 31, 2009 at 10:48 am

Stephan Kinsella wrote:

“… it seems to me you can say that “enforcing IP violates the rights of classical property owners, IF classical property is valid.”

Certainly, enforcing IP would violate the rights of classical property owners, if classical property rights always “trump” IP rights. But assuming that classical property rights are the trump suit is quite an assumption. It is basically assuming that which you want to prove. If, on the other hand, you assume that IP trumps classical property rights, then enforcing IP certainly does not violate classical property rights. As I said in my last post to Peter, since IP rights cannot be derived from classical property rights (at least I can’t see how), then it seems to me that for the extension of the concept of property called IP to be enforcable at all, assuming that IP trumps classical property rights would be necessary.

I don’t think this requires throwing out classical property rights, though. Enforcing IP would not mean completely negating *all* property rights to pieces of classical property; CDs, for instance. It would just *limit* the uses that the owner of the CD can make of it, just as my classical property rights limit the uses that others can make of their property. If you try to throw out the idea of property rights *limiting* the rights of others to use their own property, you effectively throw out the whole concept of property rights, AFAICT.

This is where I think Silas has a valid point. If classical property rights trump the extension of the concept of property called IP, then why doesn’t it also trump the extension called EM spectrum rights? If classical property rights are indeed the trump suit, then EM spectrum rights should also be invalid. After all, for EM spectrum rights to be enforcable, they would also have to trump classical property rights (i.e. the right to use a transmitter that interferes with homesteaded bandwidth), AFAICT. If you say that EM spectrum rights trump classical property rights, then you are admitting that some extensions of the concept of property can trump classical property rights. You can’t then say that any trump of classical property rights by an extended form of property right is invalid, because you’ve just admitted that it is valid in one case. In order to preserve the “can’t trump classical property rights” argument, you’d have to 1) throw out EM spectrum rights (thus consigning yourself to perpetual crankdom *grin*), or 2) somehow derive EM spectrum rights from classical rights, which I don’t think can be done.

Silas Barta December 31, 2009 at 11:18 am

Trying again, because I got a message that my comment is being help up for approval, probably because it was too long. Heres a shorter version:

@Stephan_Kinsella:

You say, “But it can’t be said that enforcing IP violates the rights of classical property owners, unless IP is invalid.” But it seems to me you can say that “enforcing IP violates the rights of classical property owners, IF classical property is valid.”

That’s still circular, because you’re assuming specific boundaries of classical property, which are the very matter in dispute, and which are far from obvious. Does classical property entitle you to the air above the land up to 60,000 feet?

Stephan Kinsella December 31, 2009 at 11:32 am

Russ:

“… it seems to me you can say that “enforcing IP violates the rights of classical property owners, IF classical property is valid.”

Certainly, enforcing IP would violate the rights of classical property owners, if classical property rights always “trump” IP rights. But assuming that classical property rights are the trump suit is quite an assumption.

But it’s not circular. It follows from the *Lockean* conception of homesteading applied to scarce resources. It may be unjustified, wrong, poorly argued, but it’s not circular.

Silas: ” You say, “But it can’t be said that enforcing IP violates the rights of classical property owners, unless IP is invalid.” But it seems to me you can say that “enforcing IP violates the rights of classical property owners, IF classical property is valid.”

That’s still circular, because you’re assuming specific boundaries of classical property, which are the very matter in dispute, and which are far from obvious.”

It’s not circular. You disagree with the Lockean-libertarian conception of property rights, perhaps, just as a criminal or socialist does too-so we have a disagreement. But that does not make my position circular.

Silas Barta December 31, 2009 at 12:21 pm

@Stephan_Kinsella: Where does the Lockean position imply that rights to land only extend to e.g. 30,000 feet? Where does it say that you get the rights to block EM radiation of 4 THz (light) but not 100 MHz (radio waves)? The Lockean position isn’t clear on this, so it can’t be used as proof that your property rights include IP rights.

To prove that without circularity, you would have to go back to the original Lockean justification of property rights, to all the premises for the argument, and establish exactly *which* homesteading acts entitle you to *which* uses, which requires a much finer-grained analysis of the origin of property rights than you gave in your paper, or, to my knowledge, that you have ever provided anywhere.

And that’s a lot of work, don’t you think?

Beefcake the Mighty December 31, 2009 at 12:42 pm

Speaking of 60,000 feet, that’s the height I’d like to see Silas dropped from.

Let’s make it our New Years resolution to ignore this twisted little ass-hat, deny him the attention he so clearly craves.

Silas Barta December 31, 2009 at 12:48 pm

Clearly inappropriate comment from Beefcake_the_Mighty, can we get a deletion over here please?

Andras December 31, 2009 at 12:49 pm

Stephan Kinsella:
“HEy, even dogs are smart enough to recognize territory. It’s a wonder some libertarians are not.”

Dogs are domesticated animals. They do what their master says. Wild dogs have an alpha for the pack and between packs territorial fights set the boundaries. However, people has no instincts, an universal code to set their behavior. The situation for people resembles to the jungle where different species try to set their boundaries without a universal code. They have anarchy. The situation is not “nice”, some consider the other “food”.
I hope this is not what you plan for us.

Russ December 31, 2009 at 1:15 pm

Stephan Kinsella wrote:

“But it’s not circular. It follows from the *Lockean* conception of homesteading applied to scarce resources. It may be unjustified, wrong, poorly argued, but it’s not circular.”

Stephan,

The meat of your earlier post was:

“enforcing IP violates the rights of classical property owners, IF classical property is valid.”

The above says nothing about Lockean theory, one way or the other. It just says that if classical (material) property rights are valid (for whatever reason), then enforcing IP violates the rights of material property owners.

Also, I never said that the quote above is circular; I said that an earlier formulation of yours was circular. I said that the above quote assumes that which you want to prove.

Also, how would you respond to this:

“enforcing EM spectrum rights violates the rights of classical property owners, IF classical property is valid.”

???

I recall that you approve of EM spectrum rights, correct? If so, then you must believe that it is OK to use force to prevent others from using their classical (material) property when that violates EMP (EM ‘P’roperty) rights, even though EMP rights are not compatible with classical (material) property rights. After all, radio transmission does not involve using a slot in the ether which can be homesteaded like land can be. It involves emitting photons, which can travel through empty space. The whole idea of “homesteading” EM spectrum is a sort of legal fiction. The “spectrum” itself, from a homesteading point of view, is a legal fiction. In reality, there is no “spectrum” out there to be homesteaded; all there is is photons, being transmitted by transmitters and being received by receivers. If you enforce EMP rights, you are then violating somebody’s property rights, according to the classical theory, because EMP rights cannot be based on the homesteading of something real.

In order to accept EMP rights, you must extend the concept of property beyond the classical formulation. If you think it’s OK to extend the concept in this case, then you are apparently not opposed to the idea of extending the concept in general. Therefore, you can’t say “IP is wrong, because enforcing it would violate the classical concept of property”. This is equivalent to saying “IP is wrong, because in order for it to be rightfully enforcable, it would require extending the concept of property”. But so does EMP, and you think EMP is OK. There must be another reason why IP is invalid.

My reason for accepting an EMP-extended concept of property is that it is necessary for radio transmission to be useful, not because EM spectrum can be homesteaded like classical property (it cannot; that’s a legal fiction). My reason for rejecting an IP-extended concept of property is not that such an extension is wrong in principle, but simply that it is unnecessary, since ideas and patterns don’t need such protection to be useful.

Stephan Kinsella December 31, 2009 at 2:26 pm

Andras: the point is not that dog fight over territory. It’s that even dogs can *recognize* (a crude version of) property boundaries.

Russ et al.: You guys are getting too fancy for your own good. The basic libertarian view is simple: if there is a scarce resource–something that might be contested because of its rivalrous nature–the libertarian view is that the Lockean-homesteader, or his descendant in title, has property rights in it–the right to right to exclude others, to grant or deny them permission to use it. That is all.It does not mean you can do “anything” with it for the simple reason that you are not permitted to do anything you want–you hav a right to engage in whatever actions you want except those that invade others’ property. This basic formulation does not answer all the gray areas or procedural or epistemic issues, but that does not make this a “circular” idea, Silas. but it is the libertarian idea.

Given this idea the only acts that are prohibited are that that use others’ property without their consent. A continuum issue might arise with somehting like sound or smell: a little bit is permissible, too much interferers w/ your neighbors’ use of their property, so is an invasion. This is a continuum issue.

But IP is not. There is no conceivable argument whereby A’s peaceful use of his own property–fashioning it into certain shapes, using it according to certain recipes or steps–invades the borders of others’ property. This is not circular. It follows directly from the Lockean libertarian conception of the very nature, purpose, and justification of property rights.

Bala December 31, 2009 at 2:33 pm

Stephan,

” It follows from the *Lockean* conception of homesteading applied to scarce resources. It may be unjustified, wrong, poorly argued, but it’s not circular. ”

Russ has already handled the “circular” part. So, I’ll stick to the “poorly argued” part because that has been a long-standing problem of mine.

There is a fundamental problem with having the Lockean conception of homesteading applied to scarce resources – you CANNOT apply them to entities that are not scarce by their nature. Since ideas and patterns are not scarce, you cannot even honestly apply this principle to them because that they will fail to meet the criteria is obvious to the lowest of intelligences. To then say that that is the reason for refusing to acknowledge them as property is equally ridiculous.

That is why you need to go beyond the Lockean conception of “property” and develop a whole new theory of “property”. Any such theory has to be based on a proper understanding of nature – that of man and of the objects to which we would be applying the label – and should be derived through a process of reasoning starting from self-evident axioms.

That’s what the Objectivists claim to do though I am quite confident that their approach uses some flawed ideas mid-course to justify labelling ideas and patterns as “property”.

You will need to do that too. If and while you do that, I think there is a lot in the Objectivist framework that gives an extremely good starting point, especially the definition of man, his nature and the very concept of “rights”. In particular, I find the idea that all “rights” are “rights to action” particularly fascinating because that, IMO, is where in the inductive process, ideas and patterns lose all claims to the status “property”.

(That’s also why I have NOT sloughed off Objectivism and still claim that I am an Objectivist.)

” You disagree with the Lockean-libertarian conception of property rights, perhaps, just as a criminal or socialist does too-so we have a disagreement. ”

No. I am (and I think Russ too is) saying that the Lockean-Libertarian conception of property rights is not applicable to all categories of entities to which the label “property” is being attached. Hence, there is a need to expand it by going to its root and starting inductively all over again.

Bala December 31, 2009 at 2:43 pm

Stephan,

” There is no conceivable argument whereby A’s peaceful use of his own property–fashioning it into certain shapes, using it according to certain recipes or steps–invades the borders of others’ property. ”

There is a conceivable argument (though I think it would be flawed for reasons very different from what you cite) and I think you are not even recognising it, leave alone trying to understand it.

You are insisting on forcing your premises (Lockean conception of “property”) on everyone else, even on those who think there ought to be a different basis because the Lockean basis is not good enough.

Here’s another reason why you are excluding (incorrectly) ideas & patterns from your analysis – they cannot be “homesteaded” because to be “homesteaded”, they must be in existence prior to the act of “homesteading”. Ideas & patterns need to be brought into existence first and the “creator” does just that.

Jesse Forgione December 31, 2009 at 2:46 pm

I don’t agree that EMP rights require extending the classical concept of property. A transmission, unlike the information itself, is physical. The message from the sender to the receiver is in the form of a sequence of photons. Blocking or otherwise damaging a transmission is no different from damaging someone’s mail. “Homesteading” a frequency would simply mean you were the transmitting your message first, and the latecomers are the ones interfering with it and damaging it.

Bala December 31, 2009 at 3:06 pm

Jesse Forgione,

” Blocking or otherwise damaging a transmission is no different from damaging someone’s mail. ”

This part I agree with and have stated so.

” “Homesteading” a frequency would simply mean you were the transmitting your message first, and the latecomers are the ones interfering with it and damaging it. ”

Not if one figures out a way of sending multiple messages on the same frequency without one message distorting the other.

Russ December 31, 2009 at 3:10 pm

@Jesse:

One problem with your argument is that a second transmitter does *NOT* block transmissions from the first transmitter. The receiver receives *both* transmissions. Unfortunately, it receives them as one waveform that is the superposition of both messages, and cannot separate them.

Another problem is that since the message is transmitted through the space in between the transmitter and the receiver, what says that the transmitter has the right to send the photons through the intervening space, if he doesn’t own all that space?

Peter Surda December 31, 2009 at 3:13 pm

@Russ:
> The fact that IP cannot be derived directly from
> classical property rights (AFAICT) means that IP
> or EM rights must necessarily be on a different
> layer of abstraction.
I am not sure I can prove the difference between IP and EM within the context of IP proponents’ assumptions. I can only do that by using the “property = integrity” definition. In this context, the concept of layers is irrelevant.

> I object to the “therefore” part above.
You have a valid point, I think the “therefore” was premature. I’ll think about a way to prove that some other way.

@Stephan:
You have proven that the definition of property via scarcity is incompatible with IP. I hope I won’t sound too rude if I say that this is nothing new. What however Bala, Russ and I are trying to achieve is to prove that the IP proponents’ premises lead to contradictions. At least that’s what I am trying to do. That’s much harder. I agree that your definition of property (via scarcity) is correct, I arrived at essentially the same one via multiple routes. However, I want to prove that this definition is not a premise, but a conclusion, by showing that other definitions are self-contradictory or useless.

Bala December 31, 2009 at 3:19 pm

Peter Surda,

” However, I want to prove that this definition is not a premise, but a conclusion, by showing that other definitions are self-contradictory or useless. ”

I agree. That is precisely my point too. If Stephan’s objective is to take on the (philosophically) strongest proponents of IP, then he needs to take on the Objectivists. To do so, he needs to start from their premises and show how ONLY entitites that are scarce by their very nature OUGHT to be treated as “property”.

Jesse Forgione December 31, 2009 at 3:41 pm

@Bala,

“Not if one figures out a way of sending multiple messages on the same frequency without one message distorting the other.”

I agree with that, but I don’t see how it’s an objection. The reason I put quotes around the word “homesteading” is because it’s not exactly the right word for the right to not have your property damaged in transit, provided it is not already infringing on another’s property.

@Russ,

The first problem is silly. I’m sure you’ll agree that if I mix feces into your food, it’s been damaged, and has become unusable.

The second problem only exists if the transmission is somehow infringing on someone’s property, which is not the case so long as it doesn’t interfere with the usefulness of said property to it’s owner. This is also important for the people who were talking about arbitrary heights above someone’s land. For more on this point I’ll refer you to Rothbard: http://mises.org/daily/2120

Russ December 31, 2009 at 4:36 pm

Stephan Kinsella wrote:

“But IP is not. There is no conceivable argument whereby A’s peaceful use of his own property–fashioning it into certain shapes, using it according to certain recipes or steps–invades the borders of others’ property. This is not circular.”

This circularity thing really bugs you, doesn’t it? Fine, I’ll take it back. I still think that your argument is a smuggled premise, i.e. you are implicitly assuming that which you wish to prove.

Here is what I understand your argument in your last post to be, in a nutshell:

Premise 1) The only valid theory of property is the Lockean homesteading theory of property.

Premise 2) IP cannot be derived from Lockean homesteading theory.

Conclusion) Therefore, IP cannot be enforced without violating property rights. Therefore, IP is invalid.

If the premises are true, then the conclusion is true, I’ll grant you. But the first premise is not obviously true. By taking it as a given, you are basically assuming all the rest.

Let’s go back to the quote above, which I’ll repeat part of:

“…There is no conceivable argument whereby A’s peaceful use of his own property–fashioning it into certain shapes, using it according to certain recipes or steps–invades the borders of others’ property. …”

Let’s say A fashions his own physical property into a machine. Then he uses the machine to emit “Barta rays” to a machine that Z built which is designed to detect Barta rays. B builds a machine similar to A’s, and also emits Barta rays. Z’s machine also detects these. Z would rather that B’s machine not emit Barta rays, because the Barta rays that A’s machine is emitting are modulated into a message that Z wants to receive, and B’s Barta rays are interfering with this. Nonetheless, B is not doing anything that invades the borders of Z’s *physical* property. Nothing B’s machine is doing is damaging either A’s or Z’s machines. And neither A nor Z has a real right to expect that only A can use his Barta ray emitter, or that Z can receive the message. Therefore, neither A nor Z really has a right to make B turn off his machine.

Then along comes a lawyer. He notes that Barta rays exist in a range of frequencies. He says, “What if we call this range of frequencies ‘Barta space’? Then we can pretend that Barta space is like real space; then it can be homesteaded and owned!” Voila, the concept of Barta space property, or BS property, is born!

The lawyer gets the government to enforce BS property rights. Pretty soon Barta ray emitters and detectors are everywhere, become a significant part of the economy, and people can’t imagine living without them.

Then another person, C, comes up with a machine he calls a “pattern manipulator”. It turns out that a pattern manipulator, if configured with the proper patterns, can do many useful things. He comes up with a really useful pattern. The only problem is, people get copies of this pattern from their friends instead of paying C for them, and this puts a real crimp in C’s business plan. But C can’t stop them. After all, if people make their own pattern manipulators out of their own property, then they can do what they want with them, right?

Along comes the lawyer again. He says, “What if we say that the set of all possible patterns is part of ‘pattern manipulator space’? Then we can pretend that pattern manipulator space is like real space, and can be homesteaded and owned!” Voila, pattern manipulator space rights, or PMS rights, are born!

Now, what is the essential difference between BS rights and PMS rights? After all, they’re both just legal fictions, that don’t involve homesteading a real space or piece of material property. If one is OK, why not the other?

(BTW, no offense was intended to Mr. Barta. All was written in the spirit of good, clean, silly fun.)

“but it is *THE* libertarian idea.” (emphasis added)

Ahem. No. It is *A* libertarian idea. It’s amazing how *THE* libertarian ideas always seem to agree exactly with what you happen to believe.

Silas Barta December 31, 2009 at 4:41 pm

@Stephan_Kinsella:

-the libertarian view is that the Lockean-homesteader, or his descendant in title, has property rights in it … This basic formulation does not answer all the gray areas or procedural or epistemic issues, but that does not make this a “circular” idea, Silas.

You clearly haven’t been reading my comments, because I answered this exact point already:

1) If you’re justifying property rights (in the abstract) through Lockean homesteading, it’s not a circular argument. I agree with you here. That’s not the problem.

2) But when the very topic of dispute is about which specific property rights a homesteading entitles you to, you cannot assume that it does or does not entitle you to specific rights. That is circular, because you’re essentially saying, “IP violates already-owned rights because those rights are already owned.” Um, but *why* are they owned?

3) When your 2nd biggest argument is that IP rights are vague, you make that argument irrelevant when you admit that your property system leaves property rights vague as well. Yes, it’s impossible to define a property system with arbitrary precision. So what?

Silas Barta December 31, 2009 at 4:55 pm

Great example, Russ. No offense taken. I would recommend, however, that people read my example about a dispute analogous to one over EM rights.

EM rights are basically the same as the “right to hit a gong in this area for the five minutes after 8am”. It is necessary for people to respect both rights in order for information to be transmitted through that medium. If more than one person transmits at frequency f, people cant measure frequency f and get a message out of it. if more than one person hits a gong at 8:03am, you can’t send messages via the gong at that time.

I think there’s an unfortunate tendency to blur metaphors with reality when talking about EM rights. When you send a message via radio waves, what’s really going on is that you’re exciting electric fields in a certain pattern, and people use a pre-defined method to decode the patterns. Everyone can transmit the waves at the same time, but *not* while also sending information. But why does this information transmission capability entitle one to claim a portion of it as their own? If you can justify that, you can justify IP. And yet most people intuitively see the scarcity in EM waves.

Russ December 31, 2009 at 5:36 pm

Peter Surda wrote:

“What however Bala, Russ and I are trying to achieve is to prove that the IP proponents’ premises lead to contradictions.”

That’s not what I am trying to do. I’m trying to show that the “IP is invalid because it violates classical property rights” argument is invalid. This is not because I am pro-IP; I’m not. It’s because I think this argument is poor; it assumes that no “extended” conception of property rights is valid, even though I think that an extended conception of property rights is needed to justify EMP. Also, I think the argument, when not explained in its Lockean fullness, could be used against classical property.

Jesse Forgione wrote:

“The first problem is silly. I’m sure you’ll agree that if I mix feces into your food, it’s been damaged, and has become unusable.”

Sure, but food is a material that I can own under a Lockean theory of property. Radio signals are not property in the same sense; I don’t believe there is a reasonable expectation under Lockean theory that a radio receiver will not receive signals that the owner doesn’t want.

“The second problem only exists if the transmission is somehow infringing on someone’s property, which is not the case so long as it doesn’t interfere with the usefulness of said property to it’s owner.”

What if I build a tall metal wall that blocks radio waves? Is that OK? That would interfere with reception just as much as another signal on the same frequency would. Is one OK, and one not?

Silas Barta wrote:

“But why does this information transmission capability entitle one to claim a portion of it as their own? If you can justify that, you can justify IP. And yet most people intuitively see the scarcity in EM waves.”

There is “scarcity” in the sense that there is a scarcity of useful channels, in the information theory sense of the word “channel”. Only one transmitter can use a channel at a time, and have it still be useful for transmitting information. I don’t think there is any scarcity of anything physical here, though, so it’s hard to derive EMP from pure Lockean theory, AFAICT. As I said above, I don’t think there is a reason under Lockean theory for a person to expect that a radio transmitter/receiver pair will be a useful information channel. In order to do that, somebody has to say “Wouldn’t it be nice if we all pretended that these scarce information channels are really scarce physical goods? Then we can treat them like property and get some use out of them!” But that introduces the bête noire of many people here; utilitarianism! AAARRGGHHH!!! *grin*

But with respect to IP, I don’t think there is a scarcity of any kind here. An indefinitely large number of people can get use from the same pattern at the same time, including the person who originated the pattern. Since there is no scarcity of any kind here, the argument falls back to “Let’s pretend that patterns are scarce physical goods; then people can sell them for money. If they can’t do that, nobody will make them. That’s unacceptable, so we need to pretend they’re like scarce physical goods.” My only problem with this logic is that I don’t think that people will stop programming, writing, making music, etc., if IP goes away. If I could be convinced that this is the case, then I would become pro-IP.

Andras December 31, 2009 at 6:40 pm

Stephan Kinsella:
“(To Andras): the point is not that dog fight over territory. It’s that even dogs can *recognize* (a crude version of) property boundaries.”

Your comment about dogs and property is totally irrelevant.
As an IP lawyer you should know that IP and IP laws are not about property but homesteading of properties, internalization of the external. They try to codify this arbitrary process. Of course, here your scarcity argument will not stand either, an original idea is unique by definition. My original comment, that even homesteading of land is at least as arbitrary as the IP laws was then thrown to the dogs. This issue is always ignored or ridiculed.

Jesse Forgione December 31, 2009 at 6:54 pm

Russ,

To own a “channel” or “frequency” would necessitate the kind of abstraction you’re talking about, but no imaginary “Barta-Space” is required given that what’s being transmitted is a useful physical object, and that sabotaging it’s function destroys it, as much as covering a written letter with more ink.
It’s not that you can homestead some imaginary territory, you simply have a right not to have your property destroyed. If you were broadcasting a signal that did not destroy someone else’s signal, than you have a right to continue doing so without your (quite physical) property being destroyed.

It’s funny you should mention a metal wall, because I almost used the example of erecting a giant lead wall, but I had already been accused of taking things to the level of absurdity, so I changed it to tampering with the mail. But the wall is a good example as it demonstrates the physicality of the signal itself, and no, you should not build a giant metal wall in cases where the the airspace was already in use for broadcasting. (You’ll like that Rothbard article, I promise.)

Silas Barta December 31, 2009 at 7:04 pm

@Russ: Thank you for your thoughtful analysis. Let me explain where i disagree with your attempt to distinguish IP from EMP.

In EMP, people recognize that there is a scarcity to the extent that people deem EM waves more valuable if people have exclusive rights in them. The desires of everyone in transmitting information cannot be all satisfied, so in the sense that people value using the EM spectrum to transmit information, there is scarcity. But people value *some* transmission capability over zero transmission capability, and the assignment of EMP eliminates some, though not all, of the scarcity.

It is in this sense that IP is parallel: people deem (both as creators and consumers) ideas more valuable when the creators can have exclusion rights in them. The consumers value the better ideas, and the creators value being able to do something they like when they can (choose to) have more control over its distribution. This allows more value to be extracted from the “idea space”, just as exclusivity in EM waves allows more value to be extracted from the EM spectrum.

It’s also parallel in that people can detect when others are transmitting their pattern in violation of their claimed rights, just as they can detect radio interference. Despite IP opponents’ protests of “how does this use of property enter your property’s boundaries?”, the IP infringement does in fact “leak out”. After all, how do IP rights holders ever know who to sue, and that they need to sue someone, when others infringe?

It’s also funny that I spent the earlier evening of the last two New Year’s Eves making the IP/EMP parallel on the Mises blog. Go fig.

Beefcake the Mighty December 31, 2009 at 10:00 pm

Since it’s not 2010 yet, I’d like to point out that Silas Barta is the intellectual equivalent of a dirty sanchez.

random troll January 1, 2010 at 1:41 am

Don’t read this post.

(sorry, I’m just trying to fix an error)

Jay Lakner January 1, 2010 at 1:44 am

I sent this post already, but the site seems to be a bit buggy at the moment. I apologise if this results in a double post. (the “random troll” above was me, my apologies)

The EM spectrum argument is exactly the same as a “sound waves” argument. The same problems arise, for example, when two bands decide to hold a concert on the same night right across the road from one another. It seems to me that “communication” is a special case of “property”. Another example which seems to fit into this area is whether or not someone is allowed to paint their skyscraper bright pink. This is clearly not in the “communication” category and demonstrates that their is a fuzzy line between the two.
It seems clear to me that more work needs to be done in this area from all camps.

I think the charges against Stephan Kinsella for “circular reasoning” or “assuming his own conclusion” are not justified. As usual, the source of the disagreement comes down to simple definitions. This all comes down to whether your definition of “ownership” is positive or negative.
If you define ownership as: ‘the right to transform your property in any arrangement or pattern’, then IP rights clearly violate classical property rights.
If you define “ownership” as: ‘the right to exclude others from transforming your property in any arrangement or pattern’, then IP rights do not violate classical property rights.

I adopt the first definition myself and therefore I think Stephan’s arguments are valid. Lastly, I should point out that, if in the process of transforming your property you interfere with someone else’s property, you are violating their rights. Hence I believe the first definition has the second definition embedded within it.

I’m not sure if I explained that well enough. In any case, I think everyone needs to clearly state their definition of “ownership” prior to engaging in a discussion like this. Otherwise we all just go round in circles.

Peter Surda January 1, 2010 at 4:06 am

@Silas:
I have tried to explain to you why your argument is wrong. First of all, it requires the value definition of property (which is demonstrably wrong). Then, it fiddles with the meaning of the word “scarce”, which only confuses, and doesn’t clarify. Last but not least, if the integrity definition of property is taken, the argument falls apart and the difference between EM and IP is clarified. Integrity aspect is equivalent with rivalry: non-rival goods do not have integrity.

It is theoretically possible that the integrity argument does not prove ownership of EM per se, but only of the transmissions, however from practical point the consequences are identical. Just like the right to prevent others from making noise and flashing you in the eyes is a consequence of you wanting to hear or see something else and does not necessarily require the ownership of sound waves and light.

In EM, concurrent signal sending sometimes changes what the recipient receives. In this case, one can assume a violation. There is no equivalent phenomenon in IP, no matter how many (unauthorised) copies are made, the (legitimate) customers of the original author still can use their own copies unaffected.

Peter Surda January 1, 2010 at 4:17 am

@Jay Lakner:
In a way I agree with you. However, our goals seem to be different. My goal is not to show that my own premises invalidate IP, but that my opponents’ premises either:
- invalidate IP too, or
- lead to contradictions, or at least
- are useless (void of meaning)

Jay Lakner January 1, 2010 at 5:32 am

@Peter Surda,

I know what you’re trying to do but I think the task is impossible when you consider how broad their premises are. Every Objectivist I’ve argued with has demonstrated a complete lack of willingness to precisely define their premises. The very fact that I have not yet once seen specific Objectivist definitions of “property”, “ownership”, “action”, etc is proof of how shaky their foundations are. Objectivists avoid doing this completely. They usually just start quoting Ayn Rand and calling me names when I raise these questions. The exceptions to this rule (eg Bala, Deefburger) have all converted to the anti-IP position.

“Intellectual Property” is a contradiction in itself. And the absurdities that result from following this concept to it’s logical conclusions should be obvious to everyone. Objectivists themselves realise the contradictions. That’s why they advocate these arbitrary limited time periods on “IP” and why they state that discoveries are ineligible for protection while creations are eligible (as if there was any difference between a discovery and a creation).

The contradictions are already present. No need to spend time finding even more of them. Now we have to show where their reasoning is false. And this, I believe, lies in the “broadness” of their premises. In particular their very definitions of property and action.

Once they define “action” as something along the lines of “a transformation of a tangible material from one pattern to another pattern”, the flaw in their reasoning starts to become apparent.

Surely the only way to make progress is by demonstrating the “broadness” of Objectivist premises and encouraging a more precise definition.

Bala January 1, 2010 at 6:16 am

Jay Lakner,

” Surely the only way to make progress is by demonstrating the “broadness” of Objectivist premises and encouraging a more precise definition. ”

I don’t think it has anything to do with the “broadness” of Objectivist premises but with errors in interpretation of a number of their own premises including the basic definition of “rights”.

For instance, after stating that rights are moral concepts sanctioning man’s freedom of action in a social context (Rand’s own emphasis was on the word “freedom”), Rand goes on to “deify” Intellectual Property even though copying an idea or pattern does not in any way affect the freedom of action of the originator.

By insisting that the originator alone should be free to instantiate the product, she has converted IP rights into a “right to an object” or an “exclusive right to perform an action” rather than a “sanction of the freedom of action”. That to me is as self-contradictory as it can get.

There is more. A thorough analysis can reveal all the errors.

That apart, the main defence that serious Objectivists offer to most refutations of their stand is that their position is inductively derived from a proper understanding of the man’s nature and is hence a position most suited to the survival of man qua man. They reject most refutations as arrived at through a process of deductive reasoning and hence unsuitable to disprove conclusions obtained through an inductive process originating in self-evident axioms.

As I understand it, there are errors that have crept into the inductive process leading to wrong conclusions. These errors include ignoring key aspects of the nature of man as well as the entities that one is attempting to assign the moral status “property”. This has led them to treat entities that they ought not to consider as “property” as just that.

Therefore, IMO, the correct way to take on Objectivists is to start from their own premises, go through an inductive process, correct the errors of omission and commission that they have made (pointing them out clearly) and show that the Lockean conception of “property” is the most moral one.

If and when that can be done, IP would stand automatically invalidated to any honest Objectivist.

Peter Surda January 1, 2010 at 6:24 am

@Jay Lakner:
I agree with you to a certain extent, I also bemoan the lack of proper definitions by IP proponents. That’s my point 3. But it is difficult for me to argue this way. Since I wasn’t able to bring (most) IP proponents to make proper definitions, I need can only attack a strawman (e.g. “creationist” definition of property).

MichaelM March 5, 2010 at 1:27 am

@Jay Lakner

Property: an owned value
Ownership: justifiable possession
Action: self-initiated exercise of a mental or physical function
Action (in the context of rights): self-initiated exercise of a mental or physical function to gain or keep a value

“… (as if there was any difference between a discovery and a creation).”

Facts are discovered, and they cannot be property because their existence and value to man is not a product or consequence of anyone’s reason and effort. Ideas, on the other hand, but for someone’s reason and effort would not otherwise exist as values.

@Bala

“… copying an idea or pattern does not in any way affect the freedom of action of the originator.”

You have dropped the context of “action”.

The actions rights protect are individuals’ applications of reason to their effort for the production of life-fulfilling values. The right to an action is the right to its product and consequences. There is no point to defining rights to actions in pursuit of life fulfilling values if the values that are the product and consequences of those actions would not be recognized as property.

Concrete-bound Misesians can’t see the values owned for the physical “actions” and “patterns” over which they obsess.

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