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Source link: http://archive.mises.org/11383/intellectual-property-and-the-structure-of-human-action/

Intellectual Property and the Structure of Human Action

January 5, 2010 by

There are various ways to explain what is wrong with IP. You can explain that IP requires a state, and legislation, which are both necessarily illegitimate. You can point out that there is no proof that IP increases innovation, much less adds “net value” to society. You can note that IP grants rights in non-scarce things, which rights are necessarily enforced by physical force, against physical, scarce things, thus supplanting already-existing rights in scarce resources. (See, e.g., my Against Intellectual Property, The Case Against IP: A Concise Guide” and other material here.)

Another way, I think, to see the error in treating information, ideas, patterns as ownable property is to consider IP in the context of the structure of human action. Mises explains in his wonderful book Ultimate Foundations of Economic Science that “To act means: to strive after ends, that is, to choose a goal and to resort to means in order to attain the goal sought.” Or, as Pat Tinsley and I noted in “Causation and Aggression,” “Action is an individual’s intentional intervention in the physical world, via certain selected means, with the purpose of attaining a state of affairs that is preferable to the conditions that would prevail in the absence of the action.”Obviously, the means selected must therefore be causally efficacious if the desired end is to be attained. Thus, as Mises observes, if there were no causality, men “could not contrive any means for the attainment of any ends”. Knowledge and information play a key role in action as well: it guides action. The actor is guided by his knowledge, information, and values when he selects his ends and his means. Bad information–say, reliance on a flawed physics hypothesis–leads to the selection of unsuitable means that do not attain the end sought; it leads to unsuccessful action, to loss. Or, as Mises puts it,

Action is purposive conduct. It is not simply behavior, but behavior begot by judgments of value, aiming at a definite end and guided by ideas concerning the suitability or unsuitability of definite means.

So. All action employs means; and all action is guided by knowledge and information. (See also Guido Hülsmann’s “Knowledge, Judgment, and the Use of Property,” p. 44.)

Causally efficacious means are real things in the world that help to change what would have been, to achieve the ends sought. Means are scarce resources. As Mises writes in Human Action, “Means are necessarily always limited, i.e., scarce with regard to the services for which man wants to use them.”

To have successful action, then, one must have knowledge about causal laws to know which means to employ, and one must have the ability to employ the means suitable for the goal sought. The scarce resources employed as means need to be owned by the actor, because by their nature as scarce resources only one person may use them. Notice, however, that this is not true of the ideas, knowledge and information that guides the choice of means. The actor need not “own” such information, since he can use this information even if thousands of other people also use this information to guide their own actions. As Professor Hoppe has observed, ” in order to have a thought you must have property rights over your body. That doesn’t imply that you own your thoughts. The thoughts can be used by anybody who is capable of understanding them.”

In other words, if some other person is using a given means, I am unable to use that means to accomplish my desired goal. But if some other person is also informed by the same ideas that I have, I am not hindered in acting. This is the reason why it makes no sense for there to be property rights in information.

Material progress is made over time in human society because information is not scarce and can be infinitely multiplied, learned, taught, and built on. The more patterns, recipes, causal laws that are known add to the stock of knowledge available to actors, and acts as a greater and greater wealth multiplier by allowing actors to engage in ever more efficient and productive action. (It is a good thing that ideas are infinitely reproducible, not a bad thing; there is no need to impose artificial scarcity on these things to make them more like scarce resources; see IP and Artificial Scarcity.) As I wrote in “Intellectual Property and Libertarianism“:

This is not to deny the importance of knowledge, or creation and innovation. Action, in addition to employing scarce owned means, may also be informed by technical knowledge of causal laws or other practical information. To be sure, creation is an important means of increasing wealth. As Hoppe has observed, “One can acquire and increase wealth either through homesteading, production and contractual exchange, or by expropriating and exploiting homesteaders, producers, or contractual exchangers. There are no other ways.” While production or creation may be a means of gaining “wealth,” it is not an independent source of ownership or rights. Production is not the creation of new matter; it is the transformation of things from one form to another — the transformation of things someone already owns, either the producer or someone else.

Granting property rights in scarce resources, but not in ideas, is precisely what is needed to permit successful action as well as societal progress and prosperity.

This analysis is a good example of the necessity of Austrian economics–in particular, praxeology–in legal and libertarian theorizing (as Tinsley and I also attempt to do in “Causation and Aggression“). To move forward, libertarian and legal theory must rest on a sound economic footing. We must supplant the confused “Law and Economics” movement with Law and Austrian Economics.

{ 99 comments }

Kerem Tibuk January 6, 2010 at 3:27 am

“There are various ways to explain what is wrong with IP.”

Let’s hear them.

“You can explain that IP requires a state, and legislation, which are both necessarily illegitimate.”

Which would be a lie.

“You can point out that there is no proof that IP increases innovation, much less adds “net value” to society.”

Which would be irrelevant because property is the subject of ethics.

“You can note that IP grants rights in non-scarce things, which rights are necessarily enforced by physical force, against physical, scarce things, thus supplanting already-existing rights in scarce resources.”

Which would show that you are actually positivist statist, clinging to concepts like “grants” where if you would be a natural rights libertarian you would know nobody grants nothing regarding property. Property exists as an outcome of natural law and you as an individual either respect it, or aggress against it. But no one grants nothing.

“To have successful action, then, one must have knowledge about causal laws to know which means to employ, and one must have the ability to employ the means suitable for the goal sought. The scarce resources employed as means need to be owned by the actor, because by their nature as scarce resources only one person may use them. Notice, however, that this is not true of the ideas, knowledge and information that guides the choice of means. The actor need not “own” such information, since he can use this information even if thousands of other people also use this information to guide their own actions. In other words, if some other person is using a given means, I am unable to use that means to accomplish my desired goal. But if some other person is also informed by the same ideas that I have, I am not hindered in acting. This is the reason why it makes no sense for there to be property rights in information.”

It is really amusing to see someone talk about “causality” and flip the cause and effect on its head.

You think property exists because humans act. But in reality humans act because they own themselves. Without self ownership action is meaningless because the concept of action assumes self ownership.

The starting point, before human action and before external property, is the concept of self ownership. People own themselves not because they have been assigned to their bodies because there are a scarcity issue regarding bodies. They own themselves because this is the law of this universe. Whether their decisions are limited by natural reasons besides other humans, or whether other humans are the limiters, humans make their own choices within certain possibilities.

Since other natural phenomenon limiting human choices don’t have reason and free will, they are not a subject of ethics. You can not say “wolves ought not to attack humans”. But other humans have free will and whether they limit the actions of other humans or not is a subject of ethics.

Since humans own themselves and they are not sipirits they have to and have a right to extend themselves to the external and make the external as if it is internal.

There would be no question regarding a mans kidney on whether it is his or someone else’s. And no stupid theory like scarcity theory is relevant when it comes to the kidney of an individual.

You don’t claim that the kidney in you, is yours because, since the kidneys are scarce they have to be assigned as property. If you would, people would laugh at you. The kidney is yours because it is a part of you.

And when a person picks an apple off a tree, when he extens his self ownership to the external, in other words when he homesteads, he makes the apples his, just as his kidney is his. He extends the properties of his kidney to the properties of apple. Before the the act of homesteading the apple has many properties like it is a living organism, it is round and sweet. And after the homesteading it gains another property, the property of being a property of the individual (I don’t know if two meanings of property is related somehow but it seems to me that they should be related). And after that, the apple is a part of him, as much as his kidney is a part of him.

And if there is an aggression (an act against property without the consent of the owner) against the apple it is the same as an aggression against he kidney.

This is what property is. Not some fanciful human invention to keep people happy and peaceful.

Bala January 6, 2010 at 4:14 am

Kerem Tibuk,

I am still waiting for a sensible reply to all the questions I had posed to you on the blog “Have you changed your mind about Intellectual Property?”. Out there, my last 3 posts essentially showed how your entire approach is unadulterated nonsense. It is indeed depressing that after all that, you still persist in repeating the same meaningless drivel without even having the courtesy to offer a serious reply.

Once again, all the major points you have made out here are balderdash. Please address the holes in your own theory before you go around finding (imaginary) holes in others’ theories.

I am reproducing here some important bits of what I had said out there.

********
” What you miss here is the concept of “action” you use as a premise presupposes self ownership whether you realize it or not. ” (sadly, this rubbish is repeated in this thread as well, albeit in a slightly different form)

Unadulterated nonsense. Life by the very defnition I am using is a sequence of self-generated, self-sustaining actions. Action is a basic attribute of life – a a part of the very definition of the concept “life”. Life is an EXISTENT. There is at this stage no room or necessity for the concept of “self-ownership” (whatever that nonsensical term means).
******************
Yeah!! And I have repeatedly shown that every “argument” of yours is utter garbage. Your “theory” of natural rights is garbled nonsense because your definition of the “nature” of man is laughable at best. Your concepts of “homesteading” and “morality” are a monstrosity because they are incomplete and are rooted in certain arbitrary constructs rather than on reality. You have not given a a definition of “extending”. Your concept of “sovereignty” has no morality attached as shown by the lack of an answer to my question on what it is (and is not) proper for a man to extend his “sovereignty’ over. You have failed to identify what is “external”. Above all, the epistemology you seem to display is just not man’s. You fail to understand that there is no existent that you can call “property”. You are unable to see that “property” is only a concept that describes man’s relationship to physical existents, specifically the moral aspects of the possession of (and the subsequent exclusion of others from) specific existents by specific individuals. You therefore talk as though property “exists”.

You fail to recognise that the concept of non initiation of force is extremely fundamental because it is a logical corollary of the Right to Life – the fount of all rights. You therefore have no problem defining the concept “property” in an arbitrary manner irrespective of the clashes such a definition has (and has to have) with the concept “Right to Life”.

I tried showing the flaws, but you insist on repeating the same thing and avoid addressing my criticism (probably because it stings). Unless you show some honesty and address my criticism, there is actually no point in continuing the discussion.
******************

Kerem Tibuk January 6, 2010 at 4:54 am

Bala,

It seems you lack the civility and the intelligence required for a discussion. It also seems that what you only got from Rand is some memorized lines and insulting style and strong words like, “unadulterated nonsense, meaningless drivel, rubbish, utter garbage, monstrosity, etc”.

I think you are angry because you know you are intellectually inadequate. And you are right.

You do not know what ethics is, you do not know the difference between “is” and “ought” propositions. You do not know what natural law is. I am assuming you are young fellow who met philosophy through Rand (and read only Rand) and somehow came to this site and got bombarded with this IP socialism and as a result you are confused.

“Unless you show some honesty and address my criticism, there is actually no point in continuing the discussion.”

And what makes you think that I am interested in a discussion with you?

Peter Surda January 6, 2010 at 4:58 am

@Kerem:
Bala basically said it all. If you fail to answer the hard questions and attempt to fill the glaring holes in your theory, and instead merely stick to cheap shots, that makes you an intellectual coward.

Bala January 6, 2010 at 5:07 am

Kerem Tibuk,

” And what makes you think that I am interested in a discussion with you? ”

Good. Now that that point is settled, I can keep going on with what I have to say and ignore you because you have the habit of deliberately refusing to engage, in a serious discussion, especially when your most fundamental points are shown to be completely meaningless, while simultaneously repeating those very same meaningless points ad nauseum to the point that those you are “engaging” actually get nauseated.

” strong words like, “unadulterated nonsense, meaningless drivel, rubbish, utter garbage, monstrosity, ”

Just go back to that thread and see how many times you avoided addressing the points I was making to tear apart your pointless criticism and then tell me if it is civil or not. I am as civil as necessary to someone who is acting like a troll. In any case, the strong word was not directed at you personally but at the points you were making. That is not being uncivil but being strongly judgemental.

Kerem Tibuk January 6, 2010 at 5:08 am

Peter,

Bala should know pretty well, as an admirere of Rand, you can not discuss anything with anyone if you can not agree on premises.

Bala refuses to acknowledge the fact that humans have self sovereignty. he refuses to acknowledge the fact that whatever the limiting circumstances are humans make their own choices, and only if the limiting circumstance is another human being the issue becomes an ethics issue.

Plus, he is uncivil and full of hatred.

I try to engage anyone in these comments sections, as you know but after a point it is a waste.

Peter Surda January 6, 2010 at 5:18 am

@Kerem:
Yet again you manage to avoid confrontation. The objections you bring up are either irrelevant or are caused by your own insistence of using vague expressions. Indeed, as Bala said, many of your sentences bear no recogniseable meaning at all.

Jay Lakner January 6, 2010 at 5:23 am

Kerem Tibuk,

You are wrong. Completely wrong.

I’ll give you a simple example for which your definition of ownership does not hold up.

An individual human inhabits a small island. Let’s call him John. He hunts. He gathers. He uses the caves for one purpose, the trees for another purpose, the fresh water spring for another purpose, and each beach has its own separate role in his life. John cleverly hunts and kills different animals at different rates so as to conserve their numbers at exactly the amount to ensure a long lifetime. His presence is in perfect harmony with the entire island.

By your definition of property, John has extended his self ownership to the entire island. According to you, the entire island and everything on it is John’s property.

One day, another man washes up on the beach. Let’s call him Bob. He is the only survivor of a shipwreck. Bob wishes to survive but, according to you, the island and everything on it belongs to John. John explains that he has extended his self ownership to the entire island. John doesn’t want Bob to be on his island. He has no wish to change his life. According to you, John can rightfully tell Bob to start swimming.

Bob even has advanced knowledge of agriculture, animal husbandry, metal working, chemistry, etc. Bob tries to explain to John that his life will be more plentiful and prosperous if they work together. But John likes his life. John already has it planned out. John doesn’t want it to change. According to you, Bob has no choice but to just die.

This simple example demonstrates that “property” is not a result of an individual “extending his self-ownership to the external”.

“Ownership” can be directly derived from the action axiom. Continuing with the example above, John and Bob have two choices:
A. Have a violent conflict for their own survival, or,
B. Cooperate and agree to share the island and the resources on it.
John and Bob will choose the option which is higher on their value scales. If they choose option B, only then will the concept of “property” emerge.

Bala January 6, 2010 at 5:53 am

Kerem Tibuk,

” Bala refuses to acknowledge the fact that humans have self sovereignty. ”

This shows how poorly you have understood what I said. I did not dispute the fact that humans have self-sovereignty. I said that it is an “ought” that is derived from man’s nature. I also said that it cannot be a good basis for a theory of ethics that is rooted in man’s “nature”. I also disputed your concept of “sovereignty” and the manner in which you sought to define “extension of sovereignty”.

Bala January 6, 2010 at 6:10 am

Jay Lakner,

” If they choose option B, only then will the concept of “property” emerge. ”

This is actually a very important point that Kerem Tibuk is evading. He insists that the concept “property” exists and is relevant irrespective of whether there is one person or many persons. His problem is one of treating the concept “property” as an axiom whereas it is not.

Kerem Tibuk January 6, 2010 at 6:30 am

:-)

Fine I have time at the moment so I will indulge.

Bala said,

“Unadulterated nonsense. Life by the very definition I am using is a sequence of self-generated, self-sustaining actions. Action is a basic attribute of life – a a part of the very definition of the concept “life”. Life is an EXISTENT. There is at this stage no room or necessity for the concept of “self-ownership” (whatever that nonsensical term means). ”

We (including Kinsella) are talking about “human action” here. So not all life acts, but only humans do. The prerequisite of human action is reason (human action is purposeful) and free will.

The concept of free will assumes self sovereignty. A puppet or an animal doesn’t have free will, a human always do. A puppet is controlled by another self sovereign being. And animals act automatically according to its nature.

Even when a human is threatened by another human being the individual has free will. He still gets to choose to obey or disobey. Ultimately humans and only humans can make choices regarding life and death. This is not so for non humans.

Thus concept of property arises from this human self sovereignty which is based on reason and free will. Concept of property is not a man made concept but an extension of a universal fact regarding human nature.

” Your concepts of “homesteading” and “morality” are a monstrosity because they are incomplete and are rooted in certain arbitrary constructs rather than on reality. ”

Homesteading is the act of acquiring property. The justification is your self ownership. Which is an undeniable axiom as I demonstrated many times. Morality is a set of actions consistent with natural law.
,
Humans derive morality (ought) from their nature (is) by the help of reason. Since they have free will they have the ability to act against their nature and disregard reason thus there is a possibility for them to be immoral. On the other hand animals don’t have any ability to act against their nature so they can not be immoral but only amoral.

“Your concept of “sovereignty” has no morality attached as shown by the lack of an answer to my question on what it is (and is not) proper for a man to extend his “sovereignty’ over.”

A man can extend his sovereignty to anything that wasn’t the subject of another mans extension of his self sovereignty first. In short a man can homestead anything that hasn’t been homesteaded by another human.

” You have failed to identify what is “external”.”

Really, do I need to identify what is external? External is whatever it is that is outside of a mans body and mind. Do you need definitions of body and mind? And when I give definitions will you as for the definitions of the concepts I use to define them, ad infinitum? If you had any intellectual honesty you would try to find out what I am trying to say instead you, and Peter, are using a very old tactic.

“Above all, the epistemology you seem to display is just not man’s. You fail to understand that there is no existent that you can call “property”. You are unable to see that “property” is only a concept that describes man’s relationship to physical existents, specifically the moral aspects of the possession of (and the subsequent exclusion of others from) specific existents by specific individuals. You therefore talk as though property “exists”.”

Yeah, nice to come at the point where we argue on existence. With an self proclaimed Objectivist none of the less. Yeah Bala nothing exists.

And what moral aspect of possession you are talking about? The one that society “grants” you?

“You fail to recognise that the concept of non initiation of force is extremely fundamental because it is a logical corollary of the Right to Life – the fount of all rights”

There is no right to life. And the concept of “force” in your “non initiation of force” principle is dependent on the self ownership.

A surgeon cutting your flesh during a surgery is initiating force. Whether this initiation is a crime of not depends on whether you gave consent to the operation or not. And your right to give consent to the operation depends on your sovereignty over your body. A parent of a child may give consent to the surgery despite the objection of the child, since the parent is temporary care taker of the potential self owner.

Kerem Tibuk January 6, 2010 at 6:39 am

Jay,

Do you think any individual has a duty to any other?

You don’t need vague examples where we cant really say if John has homesteaded the whole island or parts of it.

I will give you another example.

I am travelling in the desert and I have plenty of water. The water is mine. I haven’t even homesteaded it, I bought it.

And I run into you in the desert and you dont have any water and you will die if I dont give you some water.

Does your need for water, removes my ownership of my water?

It seems you have problem with private property not just IP. Which is actually a consistent position unlike Kinsella’s for example. But a consistently wrong position.

Bala January 6, 2010 at 6:53 am

Kerem Tibuk,

You make it very easy for me.

” So not all life acts, but only humans do. ”

Wrong right there. Even an amoeba that moves towards a particle that its bio-chemical sensors help it recognise as “food” and then changes the shape of its own body to change the relative position of the particle from “outside” to “inside” its body is acting.

Even this action is “purposeful”. The purpose it self-sustenance. For a living being, living is synonymous with existence.

” The prerequisite of human action is reason (human action is purposeful) and free will. ”

You couldn’t be so obviously wrong, but you do it consistently.

Man is a rational animal. It is not a “pre-requisite” but a fundamental fact. It is a part of his nature that he is capable of rationality.

“Free will” (I prefer to use the word “Liberty”), on the other hand, is a condition of existence essential for the survival of man qua man, i.e., as a rational animal with a volitional consciousness choosing his values with the standard being his life and acting to sustain his life in consonance with his values.

Man “is” not free. Man “ought” to be free.

Once these issues are sorted out, why you are wrong on everything else is obvious.

” And animals act automatically according to its nature. ”

Wrong again. Man too acts according to his nature, except that his nature, unlike that of other animals, is that of a rational animal. He differs from other animals in the breadth and depth of the concepts he can form.

” Homesteading is the act of acquiring property. ”

Right.

” The justification is your self ownership. ”

Wrong. The justification is his “nature”. To live otherwise is to cease to live like man.

” Thus concept of property arises from this human self sovereignty which is based on reason and free will. ”

What is “property”? – You say “That which you homestead”

What is “homesteading”? – You say “The act of acquiring property”

I can see the circularity. Can you?

An aside….

” A surgeon cutting your flesh during a surgery is initiating force. ”

Using, not initiating.

Peter Surda January 6, 2010 at 6:57 am

@Kerem Tibuk:
> A man can extend his sovereignty to anything that
> wasn’t the subject of another mans extension of his
> self sovereignty first.
Which, when applied to non-rival goods, has dual meaning.

> External is whatever it is that is outside of a mans
> body and mind.
Since immaterial properties only exist in human mind, it follows that they are non-property.

> And when I give definitions will you as for the
> definitions of the concepts I use to define them, ad
> infinitum?
There is no need for infinite regression, merely to the point where the “shape of the property graph” is determined. For that you need to make a distinction between ownership and causality on one axis, and similarity and identity on the other.

Bala January 6, 2010 at 7:05 am

Kerem Tibuk,

” And what moral aspect of possession you are talking about? ”

The simple fact that I acquired it to apply it in the service of my life and the fact that I did not initiate force against another person in doing so. I still think this is very simple and easy to understand, unless of course one is Kerem Tibuk.

” Yeah, nice to come at the point where we argue on existence. With an self proclaimed Objectivist none of the less. Yeah Bala nothing exists. ”

You show your complete inability to grasp the what I am saying, which is that there is no existent called “property”. The concept “property” exists, but only as a concept in the minds of humans capable of forming “concepts”.

” There is no right to life ”

No wonder we disagree so much. Could you please explain why? I have eplained why I start with the “Right to Life”. Could you please explain your position?

” And the concept of “force” in your “non initiation of force” principle is dependent on the self ownership. ”

Life requires action. Man’s action needs to be volitional for him to be true to his nature. Force negates volition. Hence, force negates the right to life. Self-ownership comes nowhere near it.

Kerem Tibuk January 6, 2010 at 7:15 am

“> A man can extend his sovereignty to anything that
> wasn’t the subject of another mans extension of his
> self sovereignty first.
Which, when applied to non-rival goods, has dual meaning.”

What the hell is non rival good and what does rivalry have anything to do with what IO am saying? You are bringing this concept of rivalry because you are assuming your conclusion, the silly scarcity premise.

“> External is whatever it is that is outside of a mans
> body and mind.
Since immaterial properties only exist in human mind, it follows that they are non-property.”

Who said only the external can be property? On the contrary the justification of external property arises from the fact of internal property.

IP socialist like yourself flip this causality on its head very often.

You assume, since according to you property is established to resolve conflict regarding scarce resources, one may homestead an apple. So if one can homestead an apple, he can also own his kidney because kidneys are scarce.

I am saying just the opposite. Your self ownership, or your ownership regarding your kidney doesn’t arise from some silly man made law, regarding what can be granted as property. Your ownership of an external like an apple arises from the fact that you own yourself, like you own your kidney.

Kerem Tibuk January 6, 2010 at 7:17 am

Bala,

I give up.

Guard January 6, 2010 at 7:53 am

I admittedly haven’t put much thought into this, so maybe you guys could help me out here. It seems that ideas are totally private property until they are used or expressed, at which time they are made available to others who see them used or hear them spoken. At that point they seem to be given away.
I would submit that whatever information enters through my five senses, de facto belongs to me. That is, information made available to me is now owned by me, regardless of how the information was transmitted to me. No information can be removed from my mind by any means, and I cannot avoid using the information I have to make future decisions – it becomes part of my being. The interesting thing is, this is true of any information even if I steal it, for example by torturing someone to get them to talk. Seems there logically is no such thing as ownership of information after the owner expresses it.

Peter Surda January 6, 2010 at 8:57 am

Dear Kerem,

again and again you move on the same loop. You misinterpret what is said, avoid confronting and drag the conversation into the irrelevant.

> What the hell is non rival good …
I explained it already long time ago. Non-rival good is a good where consumption does not decrease the supply.

> … and what does rivalry have anything to do with what
> IO am saying?
When your sentence is applied to non-rival goods, it has two different meanings.

> You are bringing this concept of rivalry because you
> are assuming your conclusion, the silly scarcity
> premise.
No, I am bringing up this concept because it demonstrates that your sentences are too vague. It has nothing to do with the “scarcity premise”.

> Who said only the external can be property?
Nobody. But if one assumes (just like I do) that immaterial properties only exist in minds, it follows that IP means ownership of other people’s minds. But since, as you yourself claim, one’s mind belongs to oneself, this is a contradiction.

> On the contrary the justification of external property
> arises from the fact of internal property.
This might or might not be true, but is irrelevant.

> IP socialist like yourself flip this causality on its head
> very often.
Intellectual coward like yourself avoids clarity and confrontation and concentrates on confusion, obfuscation, irrelevance and emotions.

> You assume, since according to you property is
> established to resolve conflict regarding scarce
> resources, one may homestead an apple. So if one
> can homestead an apple, he can also own his kidney
> because kidneys are scarce.
This may be technically correct (I consider the issue of self ownership rather irrelevant in this debate so I don’t need to clarify this), but not the argument I am making. This is a conclusion, rather than a premise.

> I am saying just the opposite. Your self ownership, or
> your ownership regarding your kidney doesn’t arise
> from some silly man made law, regarding what can
> be granted as property. Your ownership of an
> external like an apple arises from the fact that you
> own yourself, like you own your kidney.
The concept of scarcity (or as I prefer to say, rivalry) has nothing to do with “man made laws”. It is a natural law. It exists without people. Unlike property. For my arguments in this thread, it is irrelevant whether the minimum number of people required for “property” to exist is 1 or 2, because logic and rivalry are also valid for 0.

Now, if you would be so kind, go back to my objections and clarify your position please: how to differentiate between causality and ownership, and how to differentiate between similarity and identity.

Shay January 6, 2010 at 9:03 am

Guard, using terms like “owns” and “theft” seems misleading. X might know something that nobody else knows, but someone else still might discover it without any interaction with X, so X never really owned it (in the sense that he had complete control over who else would be allowed to know it besides him). And X torturing Y to vocalize information isn’t theft of information, since Y still knows it after vocalization. It’s simply coerced vocalizing. What Y presumably does “give up” is leverage, though X doesn’t necessarily gain it; the leverage might simply vanish.

IP Question January 6, 2010 at 9:17 am

The problem I have with anti-IP is that even though the copying of information is abundant and non-depleted.

Even though consuming information is not depleting it and that iformation, music, video games, movies etc. can be copied and distributed for nothing.

The creation of the content does require the consumption of real ressources and this creativity is scarce.

Even though it’s easy to copy a software, programming the software in an efficient manner to solve a problem is something scarce.

Even though we can easily copy a .mp3 file, creating an entertaining song is something scarce.

Even though we can easily download movies, creating an entertaining movie is difficult and requires consumption of real ressources.

So how does the content creator or the inventor get paid back for the effort and ressources he invested if he can’t sell his content ?

Once the invention is invented, once the content is created, once the software is developped, it costs nothing to copy and distribute it.

But to create those things require a lot of real capital.

How will inventors or creators get paid if they can’t sell their creation ?

When you buy a song, you reward creation.

How will creation be rewarded without intellectual property ?

Peter Surda January 6, 2010 at 9:59 am

Hello IP Question,

welcome to the discussion. The question you are posing is handled quite extensively by Boldrin & Levine in “Against Intellectual Monopoly”. You can buy the book or download it for free: http://levine.sscnet.ucla.edu/papers/imbookfinalall.pdf

To summarise, monopoly rent is merely one of the possible business methods. Coincidentally, I’ve been a software engineer my whole career and as far as I remember, neither copyright nor patents were necessary for me to earn money. I have been earning money by selling labour, contract work or services instead of selling licenses. And I wasn’t even doing that for ideological reasons, I became an IP opponent only fairly recently.

J Cortez January 6, 2010 at 10:05 am

IP Question,

The best answer to your question is that they create the product and bring the it to market before anybody else. The people that copy the product in question still have to rely on the original creator. The original creator is the driver. Being the driver, the creator has the best means of getting profit.

A book (which Peter Surda mentioned above) called Against Intellectual Monopoly by Michele Boldrin and David K. Levine greatly expands on this argument. It has case study after case study, historical episode after historical episode. I find that if you aren’t convinced by Kinsella’s ethical arguments, it’s much harder to dismiss Boldrin and Levine’s emphirical arguments.

Buy it here: http://www.amazon.com/Against-Intellectual-Monopoly-Michele-Boldrin/dp/0521879280

Or download it free (it’s the authors’ site) here: http://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm

Guard January 6, 2010 at 10:06 am

You’re right. Gives me more to think about.

Deefburger January 6, 2010 at 10:07 am

@Guard

BINGO! You get the IP prize.

I argue that control is the deciding factor for ownership.

“No information can be removed from my mind by any means…”

I argued elsewhere that this fact makes the idea of IP indefencable. There is also evidence in the study of thought and mind that suggest strongly that the “space” we observe in our minds is the same “place”. (I’m working on a proof of this.)

Control requires action. That action may include the denial of use of an externality, such as an apple tree. It may include the raising of a wall or fence or signpost. It may include sitting there with weapons, or growling or both.

Manipulation is possible in the mind, so that level of control exists. But denial of trespass is not possible, nor is the raising of walls or the sitting with weapons bared and ready. If someone were to “enter” your territory in the conceptual “space”, you would have no way of knowing of the trespass. You cannot Control the space, you cannot prevent trespass, and you cannot contain the property.

“Seems there logically is no such thing as ownership of information after the owner expresses it.”

Exactly. The best form of control you have available to you is to not disclose it’s “location” in the conceptual space. But this only reduces the probability of subsequent trespass, it does not eliminate it or change whether or not you could know of any trespass.

What of value? IP has value only in the knowledge and the potential for it’s use. Knowledge is not scarce, as physical property can be. It has no intrinsic value. It has to be applied in the physical space to have intrinsic value, which is now a physical property of the thing created.

As far as Bala and Tibuk’s “argument” is concerned, I can’t figure out where Bala is comming from or what ideas he is raging against. Perhaps Bala is sitting on some ideas and is trying to defend them from trespass? A frustrating experience for him I’m sure!

Guard January 6, 2010 at 10:07 am

You’re right. Gives me more to think about.

Bala January 6, 2010 at 10:30 am

Deefburger,

” As far as Bala and Tibuk’s “argument” is concerned, I can’t figure out where Bala is comming from or what ideas he is raging against. ”

Actually, it’s not ideas I am “raging” against but outright intellectual dishonesty. It’s not every time that you come across a guy who ignores everything you say, avoids every argument you give that puts paid to all he says and goes on saying the same thing till you lose your patience. In the event of any doubts, just check out the conversation I had with him on “Have you changed your mind about Intellectual Property?”

” Perhaps Bala is sitting on some ideas and is trying to defend them from trespass? ”

Actually, no. I have said whatever is on my mind but with Kerem Tibuk, no logical argument works mainly because he prefers to start mid-course with ridiculous premises.

Guard,

I couldn’t agree with you more. You (and Deefburger) made it look really simple, but for some people (probably I too fall in that category), simple is not good enough.

Seattle January 6, 2010 at 10:30 am

IP Question, that’s the “Incentive” argument. Creative Commons, Open-source software, and the proliferation of the arts since long before the creation of IP are standing monuments against this.

You are right that creation is scarce: And if people value creation, they will pay for it. However, when you purchase a copy of something, you are not paying for its creation, you are paying for the copy. Payment for the commission of works is an old model that predates IP, it worked then, works now, and will work in the future so long as people value creation.

Furthermore, if a car company is unprofitable, in a free market it would rightfully collapse and allow capital to be allocated for more efficient purposes. Why is IP special? If artists and programmers can’t profit by their own merit, why should we artificially prop them up at the expense of the rest of society?

scineram January 6, 2010 at 10:32 am

Hurry and enforce it! Go!!

You can find me here.

Magnus January 6, 2010 at 10:36 am

IP Question,

For strange historical reasons, neither chefs nor fashion designers are afforded the US government’s special copyright protection.

In other words, if you see a chef’s creative work in the form of a unique arrangement of ingredients and cooking methods, you can copy it with impunity.

If you see an item of clothing, from a cool but simple leather jacket, all the way up to a haute couture dress worn by a Hollywood starlet on the red carpet, you can copy it, with impunity. You don’t even have to buy one first.

There are no copyright or other IP protections against copying the creative works in food or clothing.

And yet, creativity thrives in both fields. They exhibit constant invention and change. They have well-paid creative artists working in these fields. There are celebrities and middling success stories all over, and have been for many, many years. There is so much competition in these fields that several competitive schools have opened to help train young people to be better at them, so they can be more successful at it.

The same thing could easily be achieved in books, movies, music, etc. Those fields are stagnant, skewed, and exhibit poorer quality and innovation as the result of statist IP protectionism.

Russ January 6, 2010 at 10:36 am

SK wrote:

“Causally efficacious means are real things in the world that help to change what would have been, to achieve the ends sought. Means are scarce resources.”

A computer program is a means. If this implies that computer programs are scarce resources, then computer programs should be property according to Lockean theory. Hence, you’ve just proved IP valid. Either that, or not all means are scarce resources.

Deefburger wrote:

“I argue that control is the deciding factor for ownership.

[Guard wrote: ]“No information can be removed from my mind by any means…”

I argued elsewhere that this fact makes the idea of IP indefencable.”

This may be valid for patents. I’m not sure it is valid for copyrights. Information such as software is not held in the mind of any individual; no human except perhaps an idiot savant like Rain-Man could hold such a large sequence of digits in his head. It’s held in hard drives, DVDs, etc. Controlling these would not be equivalent to controlling the mind.

Bala January 6, 2010 at 10:43 am

Russ,

” Either that, or not all means are scarce resources. ”

I was about to say that when my attention got diverted elsewhere. But yes… this is important.

Ohhh Henry January 6, 2010 at 10:47 am

Intellectual means “of the mind”.

Property means “that which is owned”.

Intellectual Property means “Mind ownership”.

Rather than these long-winded discussions of the problems of intellectual property, which are of interest mostly to legal beagles, I think it would be more effective to remind the public as often as possible that if they submit to intellectual property law they are accepting the principle of ownership of their minds.

Bala January 6, 2010 at 10:51 am

Ohhh Henry,

” I think it would be more effective to remind the public as often as possible that if they submit to intellectual property law they are accepting the principle of ownership of their minds. ”

Not sure how far that would go when the pro-IP crowd is busy projecting anti-IP as attempts to give legitimacy to theft.

Stephan Kinsella January 6, 2010 at 10:57 am

Russ: “”Causally efficacious means are real things in the world that help to change what would have been, to achieve the ends sought. Means are scarce resources.”

A computer program is a means. If this implies that computer programs are scarce resources, then computer programs should be property according to Lockean theory. Hence, you’ve just proved IP valid. Either that, or not all means are scarce resources.”

We don’t have to decide whether all means have to be scarce resources in order to be causally efficacious, or not. The point is many means are indeed scarce resources. If I want to attach a board to a wall, the physical nail is a means. If I want to drive the nail, the hammer is a physical means of doing this. The nail and the hammer are scarce resources. Unless I have control over them and no one else does, I cannot use these (scarce) means to succeed in action. That is why there are property rights in them.

The knowledge and ideas I use to make these choices, however, need not be owned.

Now, whether there is some in-between category of non-scarce but nevertheless somehow causally effective means, I don’t know, but it’s irrelevant. I’m skeptical that such a thing exists, but it does not really matter. Your example of a computer program is a bad one. A program as a mere pattern does nothing but inform action. What is a means is a physical computer — a machine — programmed in a certain way. The machine-running-a-program is a scarce resource that can serve as a means.

IP Question January 6, 2010 at 11:00 am

Magnus,

trademarks protect the food and clothing industry.

Try making a pair of shoes and claim that they are nikes.

Try making some cheese spread and call it cheeze whiz or kraft.

When it comes to fashion, people buy the name not the dress.

When it comes to high food, people buy the restaurant’s reputation, not the food.

When it comes to groceries, people buy brands, not food.

You can copy the product, but since you can’t copy the brand the original company stays ahead.

Buyers want to be genuine, only slackers buy copies.

Russ January 6, 2010 at 11:02 am

Ohhh Henry wrote:

“Intellectual Property means “Mind ownership”.”

Again, the ownership of software, for instance, is not “mind ownership”. This is a strawman and an over-simplification, in some circumstances, at least.

Russ January 6, 2010 at 11:10 am

Stephan,

I didn’t mean to imply that my nitpick destroys your greater argument. I don’t think that it does. In fact, what you have said in the article is my general position as well, although I have never spelled out my position so meticulously. My position, in a nutshell, is that property is not valid when it is not necessary, and it is not necessary when there is no scarcity involved. But when there is scarcity involved, the concept of property validly applies, even if that means overriding more intuitive material property rights, as with EM spectrum rights.

Curt Howland January 6, 2010 at 11:12 am

On the “profits” question, keep in mind that wide-spread copying eliminates the profits for _everyone_, including the copiers.

So without the dire threat of I.P. law enforcement, there is no profit in copying. The profits are found at the time of production, by the individual who does the release.

Shakespeare made his money by putting on his plays, because no one else was capable of putting on a Shakespeare play except himself.

Do you really expect tickets to an Andrew Lloyd Webber musical to drop in price merely because someone else could put on the same musical later on?

If such were true, no one would buy a ticket once it was available on DVD, or TV, or any venue of lesser charge. But they do.

People pay good money to see productions of hundred-year-old operas. Not because they haven’t heard that music before, nor because there is no other way to hear it again. They go to see the production to see that particular production, the one thing that cannot be copied.

Deefburger January 6, 2010 at 12:03 pm

“Now, whether there is some in-between category of non-scarce but nevertheless somehow causally effective means, I don’t know, but it’s irrelevant. I’m skeptical that such a thing exists, but it does not really matter. Your example of a computer program is a bad one. A program as a mere pattern does nothing but inform action. What is a means is a physical computer — a machine — programmed in a certain way. The machine-running-a-program is a scarce resource that can serve as a means.”

I would like to add to this that the program is stored on a computer that is physically my property. Second, that the means of action that this pattern represents is not owned. I could write my own program to effect the same ends. What I object to is the assumption that the program I have is not mine, or that I can be prevented from implementing a similar pattern myself. Copyright and Patent are attempts to limit what I can do with my own property, and limit what I can do with my mind. I might be able to keep a program in my head, in fact, I do it all the time. Who has the means of preventing me from coding in a particular way, or in a particular pattern? No one. I control the copy that is in my possession, physically, within my own computer. Just because it is a pattern, and thus IP, does not divorce it from the fact of possession or control in the physical.

It is the attempt to control the non-physical that is wrong. It is not possible. So, creating laws to make the impossible possible serves no useful purpose. It’s a pipe dream of control that can not be made real.

The closest we can get to that level of control is contract. But contract is a voluntary agreement between parties. Patent and Copyright violate contract by entering “everyone else” into an agreement in absentia. This is a fraud. I cannot enter you into a “voluntary” contract without your direct consent.

Russ January 6, 2010 at 12:20 pm

Deefburger,

If you alone can write a program that does the same as MS Word, for instance, you are a programming god! It takes whole teams of programmers a long time to write that kind of app. If you not only can write a program that does the same thing as Word, but just so happens to be binary identical, well…. you would not be a god, but The God! As for for being able to hold a many megabyte long sequence of bits in your head!? I must confess that I think you are being a bit disingenuous.

“I would like to add to this that the program is stored on a computer that is physically my property.”

The pro-IP person would say, “So what?” You are assuming that your right to control your physical property trumps another person’s right to control a pattern he originated. Just as many people did in the last IP thread, you are here simply assuming that IP is wrong. That’s not much of an argument.

Curt Howland January 6, 2010 at 12:37 pm

“If you alone can write a program that does the same as MS Word, for instance, you are a programming god!”

Or just use http://OpenOffice.org/

Magnus January 6, 2010 at 1:26 pm

IP Question: trademarks protect the food and clothing industry

Trademarks are typically lumped in with copyright and patents, but trademark rights have nothing to do with copyright and patent protectionism.

Trademarks prevent the outright fraud of claiming that the maker of some object was Person A (or Company A), when it was actually Person B (or Company B).

Copyright protection is completely different. It purports that no one can legitimately copy something (other than food preparation methods or clothing designs, I guess), other than the holder of the privilege.

Copyrights and patents restrict everyone, even if the buyer and seller of a covered work are 100% honest with each other about the origin of the thing in question, and fully understand that it was copied.

In other words, copyrights and patents restrict everyone, regardless of whether they agreed to it, or whether they are honest or fraudulent in their transactions. In contrast, trademark addresses the problem of identity fraud, which is something else entirely.

People who believe in freedom can and should oppose fraud, but should reject copyrights and patents, since they protect nothing that can legitimately be called property, and actively violate genuine property rights.

Deefburger January 6, 2010 at 1:31 pm

@Russ

I know I can’t re-do Word. Didn’t mean to imply that I could do that! It is true that it took a lot of work to create that code. I don’t argue that fact. Creation is definately a labor that has value. No argument here about that either.

The question of property though is one of possesion and control, not creative labor. There is value in the labor, and value in the product. These values are worth paying for. But once the price is paid and the media is handed over, it is mine to do with as I please.

The problem of monetizing the creativity itself is what is at issue. Word is not the only solution to the problem of word processing. The media is physical, but the content is infinitely reproducible. What is scarce is the support, the updates, the fixes, and the enhancements. The business model that depends upon the legal non-reproduction of the infinitly reproducible is skewed.

Open Source Software is on the rise because it works as a business model. It’s the support, enhancement, and updates to the creation that are valuable to the end user, not the code per se. It is the useability of the code, and the ability to plan for future use that make it work as a business. Support contracts with large companies with large installations make the model work as a service model rather than a product model.

Russ January 6, 2010 at 1:51 pm

Deefburger wrote:

“The question of property though is one of possesion and control, not creative labor. There is value in the labor, and value in the product. These values are worth paying for. But once the price is paid and the media is handed over, it is mine to do with as I please.”

You’re still simply assuming that IP is not property, and hence you can do with it as you please. You’re also just assuming that when you shell out your money, you’re buying full rights to the software. Why would corporations like MS bother to produce software, if after one person pays for it, they could put it on rapidshare.com, and never get paid for it again? If you were actually paying for full rights, you’d have to pay millions of dollars.

Basically, what I’m saying is that property is *not* just about possession and control. It’s about scarcity. If there is no scarcity (as with digital content), there is no need for exclusive possession and control, and hence no need for the concept of property with respect to digital content.

“The business model that depends upon the legal non-reproduction of the infinitly reproducible is skewed.”

I won’t argue with this.

“Open Source Software is on the rise because it works as a business model.”

That’s debatable. I used to work at the IT department of Ford, and once I heard two management wonks in the bathroom talking about Linux. They didn’t like it for the web farm because the TCO (total cost of ownership) was too high! This is free software we’re talking about here! But people that are capable of administering Linux boxen are much more expensive and harder to come by than Microsoft Certified Solitaire Experts (MCSEs), so they didn’t think it was worth the up front savings. (You could argue, probably correctly, that one good Linux admin could effectively administrate many more Linux boxes than a typical MCSE could Windows Servers. But nonetheless, it’s a hard sell.)

ABR January 6, 2010 at 1:55 pm

“Shakespeare made his money by putting on his plays, because no one else was capable of putting on a Shakespeare play except himself.” — No one else was allowed to. Bill had a monarch’s monopoly.

“My position, in a nutshell, is that property is not valid when it is not necessary, and it is not necessary when there is no scarcity involved.” Land is not scarce. It is not necessary that we own land, but only that we own (temporarily) the land our bodies currently occupy. Most humans today recognise a more permanent form of ownership, when a person mixes his labour with the land. But this form of ownership is not necessary. We could survive quite happily without it, living a nomadic existence.

And we could survive quite happily without IP.

Magnus January 6, 2010 at 2:04 pm

Land is not scarce.

Yes it is. Economic “scarcity” means that the use of something is rivalrous.

The same patch of earth cannot be used for more than one economic purpose at a time.

Jay Lakner January 6, 2010 at 2:05 pm

I tried to post this before but nothing happened. I’ll try again. (I apologise if this results in a double post)

@Kerem Tibuk.
———-
“Do you think any individual has a duty to any other?”

When did I ever say this?

———-
“You don’t need vague examples where we cant really say if John has homesteaded the whole island or parts of it.”

The example is not vague at all. John uses the whole island. I said it was a small island. The only reason you called the example “vague” is because you don’t have an answer to it. Your position is completely invalidated by this example.
Your definition of property, if universally acknowledged, would lead to conflict rather than cooperation. You still have not managed to grasp the fact that the reason property rights are required for peaceful cooperation is because property rights are a logical consequence of peaceful cooperation. You have your cause and effect completely backwards. Please pay special attention to the following:
The proof is in the fact that property rights can be logically derived from the action axiom but the action axiom cannot be derived from property rights.

———-
“I am travelling in the desert and I have plenty of water. The water is mine. I haven’t even homesteaded it, I bought it. And I run into you in the desert and you dont have any water and you will die if I dont give you some water. Does your need for water, removes my ownership of my water?”

As usual, I would apply the action axiom to ascertain the outcome. This has nothing to do with what morally “should” happen. This is about what “must” happen. The concept of “ownership” only emerges when multiple human beings cooperate.
As for your example, you can only “own” something if we cooperate. This means you can only “own” something if I recognise your ownership of it. If I’m forced to choose between fighting you for your water or dying, I will choose to fight. This is obvious and predictable. So the choice is entirely yours: Which is the most satisfying outcome for you? Giving me enough water to survive or engaging in a violent confrontation with me? What will result will be determined by your value scales.
“Ownership” does not yet exist in the example you gave. It is only when you agree to share your water to enable my survival that the concept of “ownership” emerges.

———-
“It seems you have problem with private property not just IP. Which is actually a consistent position unlike Kinsella’s for example. But a consistently wrong position.”

If that’s the conclusion you’ve come to, then you truly have no idea what you’re talking about.

Ohhh Henry January 6, 2010 at 2:14 pm

Russ:

“Again, the ownership of software, for instance, is not “mind ownership”. This is a strawman and an over-simplification, in some circumstances, at least.”

It is called intellectual property by the proponents of copyright and patents and we must take their words at face value. They deliberately chose the term “intellectual” which means the mind, and its thoughts. If they consider this an oversimplification then they must come up with another term which more precisely defines what it is they own and what the alleged “pirates” have stolen.

If they cannot precisely define what is their property and what is being stolen, or the value of the supposed theft of intellectual content (i.e. thoughts), then this undercuts their entire case. For example, what is original in Walt Disney’s drawing of Mickey Mouse and what is unoriginal? How much is the peculiar shape of Mickey’s ears worth, compared to the ordinary, unoriginal “mousy” parts of this cartoon? When you view an official picture of Mickey Mouse online it is stored in your browser cache – if you view it from your cache 1 hour later have you stolen their original artwork? What if you view it 1 day later or 1 week later? When did the theft occur? Is a compressed and therefore degraded AVI version of Steamboat Willie worth as much as its uncompressed DVD format and must the alleged loss of DVD revenues be used to measure the value of the alleged theft? If downloading copies of a cartoon is theft because it represents loss of revenues, this implies that the victim knows and can prove that the person “would have” bought the material if they had not downloaded it. Can they read people’s minds to determine possible future intent or likelihood of buying something?

The strawman is intellectual property law itself, starting with its fundamental definition and continuing through all of its elaborate and arbitrary refinements.

Magnus January 6, 2010 at 2:18 pm

“I am travelling in the desert and I have plenty of water. The water is mine. I haven’t even homesteaded it, I bought it. And I run into you in the desert and you dont have any water and you will die if I dont give you some water. Does your need for water, removes my ownership of my water?”

Lifeboat scenarios are almost always presented in order to ask inherently stupid questions, but even with this one, the answer is: no. The owner of the water is the owner. Stealing it (or some of it), even to survive, is a violation of property rights.

In the real world, if people wandering a particular spot of ground were commonly finding themselves without water, then, in a regime of private property, some enterprising person would set up a business there to sell water, and POOF! … instantly we see a reduction of the incidence of desperate, lifeboat, gonna-die-without-water situations.

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