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Source link: http://archive.mises.org/11445/writers-can-prosper-without-intellectual-property/

Writers Can Prosper Without Intellectual Property

January 13, 2010 by

If composers could set still-unmatched records of productivity without copyrights while managing to earn a living, imagine what writers could do in an environment that did not give them the hope of forever subsisting off past accomplishments. FULL ARTICLE by Gennady Stolyarov II

{ 146 comments }

pro-IP-libertarian January 14, 2010 at 5:19 pm

Jason Zuweig-

Make some Lavoisier efforts to bring back the waste into something new and call it yours.

Or you could start from the beginning and study the history and development of something: its invention, its development, the failures, the successes, the blind alleys, etc. and really get an understanding of it. (That’s the smart way to approach it.) Then you make something new and improved and it is yours.

Or you could sit around and insult people on blogs.

Silas Barta January 14, 2010 at 5:21 pm

@pro-IP-libertarian: I was parodying Curt_Howland’s point

@Russ et. al, I’ll get to your replies later. I would much appreciate you becoming familiar with this when you get a chance, so you can again see the significance of “What is a communication channel though? … it’s really just ‘the assumption that no one else will try to broadcast at this frequency’”.

pro-IP-libertarian January 14, 2010 at 5:25 pm

Silas-

Sorry, my mistake.

Curt Howland January 14, 2010 at 6:10 pm

Silas, I’m all for repealing all the statute laws that support “private property”.

I would be very, very happy to have all statute laws repealed. Every one of them. Entirely. I’m no hypocrite, thinking that this law is good but that law is bad.

Do you have a reply to that?

Curt Howland January 14, 2010 at 6:17 pm

Pro-IP-Lib, I do not claim any “right to profit”. There is no “right to profit”, even though that is what is used to justify I.P. laws.

If I sell something I own for a profit, that’s my business, no one else’s. If it happens to have been something I copied, again that’s my business and not anyone else’s.

The creator has first-to-market advantage. They have every “right” to take all the advantage of that they can, and I’m glad it exists. Once the idea is out in the real world, be it a chair, a book, a song or a tempering process, if I can copy it and make money thereby then that is MY right since it is MY labor that I am selling.

They already sold their labor. If they didn’t make enough money from it, that’s their problem. Next time, they’ll do better.

pro-IP-libertarian January 14, 2010 at 6:32 pm

Russ-

So now the burden of proof is on you to convince us that IP is jusitifiable in utilitarian terms. Of course, people who are dogmatic and think utilitarianism is evil will never be convinced. You shouldn’t waste your time on them. But for the rest of us; would the world as we know it really fall apart if IP were abolished? Or are you really just approaching this from a moralistic angle where the creator must morally be allowed to make a profit?

From what I can tell moralism and utilitarianism are pretty much joined at the hip when it comes to property rights. Outrage at the violation of property rights creates conflict and reduces efficiency, lowering productivity and overall societal wealth. But what the heck, I’ll play anyway:

The go to example in comparisons between capitalism and collectivism/socialism (which is what this issue comes down to, capitalism vs. collectivism) in my opinion is North versus South Korea. It is as close to a controlled experiment as one can come, because the two are quite similar in geography, demographics, etc. but have vastly different economic systems. One is as close to true socialism as they come and the other is a pretty free market capitalist economy. South Korea comes up with a fair amount of inventions and innovations, whereas there doesn’t seem to be much from North Korea. Now they are a pretty closed society, so they could be hiding a lot of things but I don’t think so. If they were teleporting around and had high tech sex robots I think we would hear about it one way or the other.

Aside from that one has to go to other countries and times that had highly restricted property rights. Soviet Russia would be another example. You had some amount of innovation but it was mainly centered around areas with truly massive amounts of government spending – mainly the military. There might have been some invention in the civilian sector, but nothing really leaps out at you. And this was at a time when personal computers – for one example – were being developed and becoming a part of most homes, etc. in the west.

So with informal, back of the envelope analysis it would seem that societies with little or no property rights in general, including intellectual property rights, don’t develop as much intellectual property. And what they do develop tends to mainly occur in areas of massive government spending.

Now one could argue that the reduction in physical property rights made it difficult to create intellectual property, and you would have a point. I’m not sure how one could adjust one’s analysis for that.

But the conclusion would have to be that more intellectual property is created when it is rewarded financially. And the best way to do this on a large scale across a wide range of areas is to do this through protected intellectual property rights in the context of a capitalist, free market economy.

Russ January 14, 2010 at 6:59 pm

Silas Barta wrote:

“…”What is a communication channel though? … it’s really just ‘the assumption that no one else will try to broadcast at this frequency’”.”

With respect to EM spectrum, I don’t disagree with that. I just find it competely irrelevant to IP. From your blog:

“For example, how about asserting rights as “the only one who can broadcast radio waves in this area within a particular frequency band”? How about asserting rights as “the only one who can distribute books containing Harry Potter stories”?

Hey! That last one kinda sounds like intellectual property rights… ”

Sure, there are similarities; there are also disimilarities. EM communication channels are scarce; at least, they are scarce if they are to be *useful* in communicating information. That being the case, there has to be “only one” person who can transmit at a given frequency if we want to maintain that utility. That justifies EM spectrum rights. There does not have to be “only one” person who gets to say who controls a pattern for that pattern to be useful. There does not even necessarily have to be “only one” person who gets to say who controls a pattern for that pattern to be *created*. If that were the case, I believe that it would make a good prima facie utilitarian case for IP. If you believe that is the case, convince me!

In other words, I understand your argument; I just don’t find it convincing, because you haven’t presented a good enough argument for why IP is necessary.

pro-IP-libertarian January 14, 2010 at 7:02 pm

Curt Howland-

There is no “right to profit”, even though that is what is used to justify I.P. laws.

That’s your opinion.

If I sell something I own for a profit, that’s my business, no one else’s. If it happens to have been something I copied, again that’s my business and not anyone else’s.

Not if you agreed not to at purchase, then you are dishonest.

And if you copy and sell someone else’s IP you may be sued. In my opinion that is fair, because that is lazy and dishonest. If you want to sell IP, create and sell your own.

The creator has first-to-market advantage.

And under IP they have exclusive rights as well. If you don’t like that invent your own IP.

Once the idea is out in the real world, be it a chair, a book, a song or a tempering process, if I can copy it and make money thereby then that is MY right since it is MY labor that I am selling.

No, it isn’t. You wouldn’t be making it that way unless they created it. So it isn’t entirely your labor you are selling, it is partly theirs. Calling it yours is incorrect. Of course you would be free to make copies not containing any proprietary IP.

They already sold their labor. If they didn’t make enough money from it, that’s their problem. Next time, they’ll do better.

No, they just agreed to sell you use of their product. They didn’t license you to reproduce their proprietary technology. (We are still talking about an IP regime here.)

Russ January 14, 2010 at 7:09 pm

Silas,

I should have reiterated in my last post the reason why I believe the burden of proof should be on you. That’s because enforcement of IP rights involves what would otherwise be the violation of normal property rights, which are the primary bases of all libertarian law. It could also be a big privacy issue; what if the law decides that if you stumble onto a warez site, that gives the law probable cause to go through your home and computer looking for bootlegged software? So in order to justify IP from a utilitarian point of view, there has to be a huge downside to not having IP, such that the possible problems with enforcement would be counterbalanced.

Silas Barta January 14, 2010 at 8:31 pm

@Curt_Howland: Silas, I’m all for repealing all the statute laws that support “private property”. I would be very, very happy to have all statute laws repealed. Every one of them. Entirely. I’m no hypocrite, thinking that this law is good but that law is bad. Do you have a reply to that?

Yes. After a snide remark about your inability to carry more than two logical steps in your mind at any one time, I would ask, um, so how exactly do your political philosophies on IP and physical property differ? AFAICT, they don’t. In both cases, you want the “laws” regarding them repealed, and then, “the market” to decide what laws to enforce. So in what sense do you oppose IP but support physical property?

What exactly is your complaint against IP? Don’t tell me the state supports it, because the state supports physical property too.

@Russ: EM communication channels are scarce; at least, they are scarce if they are to be *useful* in communicating information. That being the case, there has to be “only one” person who can transmit at a given frequency if we want to maintain that utility.

We’re going in circles. Do you honestly not see how this point destroys your attempt to distinguish EM rights and IP?

Why do you believe the EM spectrum *must* be used to transmit information, and that people’s rights can be restricted to support this information-carrying aspect? Why does it matter that people value information transmission? Why does this whimsical desire to get that accomplished justify exclusivity rights? (Maybe because … valuations actually *do* determine what counts as scarce?)

You claim that the EM spectrum is somehow more “useful” when there are exclusivity rights to frequencies. But I can just as easily say that the ideasphere/noosphere (set of all ideas) is more useful when people can have exclusivity in certain ideas, because it leads to better ideas overall.

How do you differentiate the two?

Why is the possibility of infinite people simultaneously transmitting on the same frequency irrelevant, while the possibility of infinite people instantiating the same idea isn’t?

When you’re done wrestling with these issues, give me a holler. Stephan_Kinsella too. He’s stuck on this one just the same.

That’s because enforcement of IP rights involves what would otherwise be the violation of normal property rights, which are the primary bases of all libertarian law.

Tautology, much? You could replace “IP rights” with “physical property rights” and the sentence would be just as true.

It could also be a big privacy issue;

Yep, when everyone rejects a kind of right and continually violates it, the people who try to enforce it will end up having to violate privacy if they want to enforce it. There must sufficient general support for a rule in order for it to exist.

So what’s your point?

Bala January 14, 2010 at 9:19 pm

I think the fundamental issue is really the point that ideas and patterns ARE NOT and CANNOT BE treated as legitimate property. Once that is settled, there is (I think) nothing further to discuss.

Why can they not be treated as legitimate property? For the simple reason that they are not, by THEIR VERY NATURE, amenable to the most fundamental characteristic of “property”, i.e., the exclusion of others from them. Formulating and implementing IP laws is little worse than whim worshipping. It is extremely stupid to try to rebel against nature and act as though you could beat her. Nature, to be commanded, has to be obeyed.

And why are they not legitimate property? Because exclusivity is not a necessary condition for the producer of an idea or a pattern to be free to act to instantiate it and benefit thus. Period.

I think anyone who argues otherwise (this includes @pro-IP libertarian and @Sila) should first specifiy their definition of the concept “property” and why (they think) IP is a legitimate form of “property”.

Russ January 14, 2010 at 9:21 pm

Silas Barta wrote:

“You claim that the EM spectrum is somehow more “useful” when there are exclusivity rights to frequencies. But I can just as easily say that the ideasphere/noosphere (set of all ideas) is more useful when people can have exclusivity in certain ideas, because it leads to better ideas overall.”

You could certainly say that, yes. Now you have to demonstrate that that is in fact true! It is obvious that EM frequencies are less useful when everyone tries to transmit on them at the same time. It is not so obvious that patterns are less useful without exclusive ownership rights. Your claim requires justification, which you stubbornly refuse to give. What the heck, Silas? I am not saying that the idea of IP is invalid *in principle*. I am only saying that you need to justify it from a utilitarian point of view. Why would be be worse off without IP? If we would not be worse off without it, why should we institute laws enforcing it?

“Why is the possibility of infinite people simultaneously transmitting on the same frequency irrelevant, while the possibility of infinite people instantiating the same idea isn’t?”

Who what huh? When have I ever said that the possibility of multiple people simultaneously transmitting on the same frequency irrelevant? Of course it’s relevant, because it renders EM communication channels useless! Infinite people instantiating the same idea, on the contrary, does not make that idea useless! You’re not making any sense here.

Assuming that you meant:

“Why is the possibility of infinite people simultaneously transmitting on the same frequency *relevant* [not "IRrelevant"], while the possibility of infinite people instantiating the same idea isn’t?”

Because infinite people simultaneously transmitting on the same frequency renders transmitting useless, while infinite people instantiating the same idea doesn’t render having the same idea useless. Is this really such a difficult concept?

“So what’s your point?”

My point is that in order to make a good utilitarian case for IP, you have to convincingly argue that the benefits of IP outweigh the costs, including the potential costs of enforcing it. You have consistently failed to do so.

Russ January 14, 2010 at 9:41 pm

Bala wrote:

“Why can they not be treated as legitimate property? For the simple reason that they are not, by THEIR VERY NATURE, amenable to the most fundamental characteristic of “property”, i.e., the exclusion of others from them.”

Well, obviously ideas *can* be treated as property, because they are treated as property now. The question is, what are the costs of trying to force-fit ideas and patterns into the mold of normal property? Are the benefits worth the costs?

Also, EM spectrum is also unamenable to the exclusion of others from it; it’s very hard to prevent others from broadcasting on a frequency if they really want to. So according to this criterion, EM spectrum rights are also invalid.

Silas Barta January 14, 2010 at 9:42 pm

@Russ: You could certainly say that, yes. Now you have to demonstrate that that is in fact true! It is obvious that EM frequencies are less useful when everyone tries to transmit on them at the same time. It is not so obvious that patterns are less useful without exclusive ownership rights. Your claim requires justification, which you stubbornly refuse to give. What the heck, Silas? I am not saying that the idea of IP is invalid *in principle*.

Well, my main task in dealing with this topic is to show that there’s a parallel between EM spectrum scarcity and idea scarcity, in that both scarcities arise due to valuations by people. If I can establish that point, I’m pretty much done.

Now, if you want to further, and ask how I can establish it on a utilitarian basis, I *have* answered it: specifically, that all utilitarian arguments about the social value of physical property apply, without loss of generality, to property in ideas, even and especially when they can be costlessly reproduced.

For example, take the calculation problem: without IP, the valuations of new ideas is not captured in their selling price. No matter how much people want e.g. good songs, it will cost no more to transmit them than to transmit random files of the same size. Yet this contradicts our firm knowledge that production of random noise does not produce the same value (appropriately defined) as meaningful songs.

Furthermore, no matter how non-scarce an idea is after production, you must apply scarce means to its production, meaning that they trade off against the use of those means for other ends. If prices can’t reflect these differential valuations of ideas (both with respect to each other, and to non-idea goods), society is in a state of calculational chaos just as surely as if it didn’t recognize property rights in e.g. lumber. Sure, some folks would still bite the bullet and produce lumber, in their spare time, for person use or to give to friends. But there wouldn’t be a clear market in it, or be any of the other benefits to property rights.

The case is made. The trouble is the stubborn refusal of many to recognize their very own arguments in a different context.

Who what huh? When have I ever said that the possibility of multiple people simultaneously transmitting on the same frequency irrelevant?

I meant irrelevant to proving EM rights non-scarce. That is, the fact that infinite people can transmit at the same time doesn’t disprove that the EM spectrum is scarce, and so is irrelevant to the issue. Yet simultaneous usages of an idea somehow is relevant to proving them scarce? How do you justify the distinction?

My point is that in order to make a good utilitarian case for IP, you have to convincingly argue that the benefits of IP outweigh the costs, including the potential costs of enforcing it.

If I’ve failed, so has every justification of physical property. And the enforcement cost issue is a red herring. Such costs depend on how widely accepted the property system is among people in society. When the very debate is about which property system should exist, and therefore which one should be widely accepted …

Please tell me you see the circularity there….

Bala January 14, 2010 at 9:56 pm

Russ,

” Well, obviously ideas *can* be treated as property, because they are treated as property now. ”

You “can” treat ideas as “property” just as much as you “can” try to strap pn wings, jump off a cliff, flap the wings and hope to fly. Even thus, you can fly only for so long (as demonstrated by gliders). At some point, the flight stops.

That’s what I meant by “cannot”. It cannot be sustained….. unless of course you are ready to impose a police state upon people and make it impossible for man to like qua man by making it “legitimate” for the police state to initiate force against anyone at all.

Russ January 14, 2010 at 10:31 pm

Silas Barta wrote:

“Well, my main task in dealing with this topic is to show that there’s a parallel between EM spectrum scarcity and idea scarcity, in that both scarcities arise due to valuations by people. If I can establish that point, I’m pretty much done.”

Well, then, I think you’re in trouble. Valuation and scarcity both come into play, true. But material goods are economically scarce because of their physical nature, not because we value them. It’s the same with EM spectrum. EM communication channels are scarce because of the nature of EM waves and the technology involved, not because we value them. Granted, if we didn’t value the comm. channels, then people could transmit and interfere with each other’s transmission all they wanted, and there would be no scarcity, because there would be no comm. channels, just noise. I don’t think that means that the valuation creates the scarcity, though. EM comm. channels would be scarce whether we valued them or not; it’s just that if we didn’t value them, scarcity wouldn’t matter. Even if I did think that valuation creates scarcity with respect to EM spectrum, I don’t see how the concept applies to IP. In fact, it seems to be just the opposite; valuation of patterns/ideas causes them to be copied and thus less scarce.

“I *have* answered it: specifically, that all utilitarian arguments about the social value of physical property apply, without loss of generality, to property in ideas, even and especially when they can be costlessly reproduced.”

You have done no such thing. You haven’t answered the question, Why is IP necessary, if patterns/ideas are costlessly reproduced? After all, if the creator can still use the idea/pattern (i.e. there is no economic scarcity), then why is exclusivity needed?

“For example, take the calculation problem: without IP, the valuations of new ideas is not captured in their selling price. No matter how much people want e.g. good songs, it will cost no more to transmit them than to transmit random files of the same size. Yet this contradicts our firm knowledge that production of random noise does not produce the same value (appropriately defined) as meaningful songs.”

Selling price depends not only on demand, but *supply*. If the supply of existing ideas/patterns is in effect infinite, then marginal value theory says that the price should be extremely low, yes? So, the valuation (demand) does figure in, but so does the supply.

“Furthermore, no matter how non-scarce an idea is after production, you must apply scarce means to its production, meaning that they trade off against the use of those means for other ends.”

This is true. Now convince me that people will not pay for the *creation* of new ideas/patterns (as opposed to not paying for copies of existing ideas and patterns that they can get elsewhere). If you can do that, you’ve got me.

“That is, the fact that infinite people can transmit at the same time doesn’t disprove that the EM spectrum is scarce, and so is irrelevant to the issue. Yet simultaneous usages of an idea somehow is relevant to proving them scarce? How do you justify the distinction?”

I still think you’re confused (or at least confusing), but if I understand you correctly, the distinction is that infinite people cannot use EM spectrum *as a comm. channel*. In other words, EM spectrum in general may not be scarce, but comm. channels comprised of EM spectrum are. Patterns/ideas (once created) are not scarce.

Granted, the creators of patterns/ideas are scarce, but I don’t see any analogy whatsoever between that and EM spectrum. Patterns/ideas are not comprised of their creators, and hence are still not scarce once created.

Russ January 14, 2010 at 10:41 pm

Bala,

Firstly, your argument is somewhat strained. At present we do have IP laws and they are enforced (fitfully). We still do not live in a police state. The haphazard enforcement that does exist is enough to make it quite profitable for people to produce new ideas and patterns. No police state necessary.

Secondly, even if you were right and IP did require a police state, that is part of the cost of enforcement that I am referring to.

Bala January 14, 2010 at 10:52 pm

Russ,

” Secondly, even if you were right and IP did require a police state, that is part of the cost of enforcement that I am referring to. ”

I agree. Frankly, it is because we do not have a “police state” that IP laws are enforced “fitfully” as rightly you put it.

That apart, I am unclear as to what you mean by this

” Also, EM spectrum is also unamenable to the exclusion of others from it; it’s very hard to prevent others from broadcasting on a frequency if they really want to. So according to this criterion, EM spectrum rights are also invalid. ”

If you say that my attempt to define “property” by factoring in the need for and the possibility of exclusion is flawed, then it does not matter whether it conflicts with the acceptance of EM spectrum as legitimate “property”. The problem then would be that my theory is wrong and an alternative would be required (at least for me to maintain my sanity).

If, on the other hand, you do not disagree that the need for and the possibility of exclusion is an important and integral aspect of the concept “property”, any conflicts with the acceptance of EM spectrum as legitimate “property” casts doubt on the validity of the latter.

It would help if you clarify.

Russ January 15, 2010 at 12:00 am

Bala wrote:

“If you say that my attempt to define “property” by factoring in the need for and the possibility of exclusion is flawed, then it does not matter whether it conflicts with the acceptance of EM spectrum as legitimate “property”.”

Well, yes, it does matter. If you accept EM spectrum rights as legitimate property, then you must accept there is more to property than just the fact that it’s hard to exclude others from it. I do accept EM spectrum rights, and think any definition of property that renders them invalid is prima facie absurd.

“The problem then would be that my theory is wrong and an alternative would be required (at least for me to maintain my sanity).”

An alternative theory is that property must be scarce. Another alternative theory is that the concept of property is validly applied when it is of value for us to do so.

Peter Surda January 15, 2010 at 1:26 am

@Silas:
>> There is no need to value anything.
> Yes, there most certainly is. If someone doesn’t
> value being able to RECEIVE a clear signal,
> where is the rights violation?
The rights violation is in the damage of integrity of the reception, not in the value thereof.

> Ultimately, it is people *wanting* to be able to
> use the EM spectrum for transmission of
> information that generates the conflict over it,
> and eventual scarcity in its capacity.
No. The damage happens also if noone wants to receive the transmission or value the contents. It also happens if the damage was caused by a natural phenomenon instead of a human being. Your argument is incorrect.

> And your premise is false as well: you DO still
> receive the transmitted EM waves.
You might be correct on the metaphysical level, but most definitely wrong on the empirical one. Empirically, I wouldn’t receive the original transmission but a different one. Which is the whole point of your error: you claim that it is the interpretation that determines infringement, whereas I claim it is the measurement.

> It’s just that can’t extract the *information*.
This is irrelevant.

> But again, why does this matter?
Because the outcomes are empirically different. There is no need to value or interpret anything.

> Why does the possibility of transmitting
> information through the EM spectrum,
> conditional on there being exclusivity in
> frequencies, justify IMPOSING MONOPOLIES
> on the use of frequencies?
Strictly speaking, it doesn’t. However, causing problems with other people’s reception might create a liability on your side even without any existence of a monopoly grant.

> You have yet to answer this instead of defining
> away the problem.
I believe I just did.

Peter Surda January 15, 2010 at 2:05 am

One more thing (I realised this a while ago but haven’t used it yet): the difference between rival and non-rival goods is also in that in order to determine consumption of the rival one it is not necessary to observe the consumer. This holds both for EM and physical goods, but doesn’t for IP.

If someone steals my car, I can observe the parking place and see that the car is not there anymore. I might not know who stole it, but I can conclude that the theft occurred. Similarly, because I hear disruptions on my radio, I can conclude that someone else is transmitting too (or a natural phenomenon is occurring).

But with IP, usually the only way to determine infringement is to observe the illegitimate consumer. You cannot determine it by observing legitimate copies of a copyrighted work or a patented machine.

This also has the outcome in how to protect against violations. With physical goods, one can put up cameras, build walls, close it in a safe. However, with IP, you literally have to monitor every person in the world. This is why it is less likely to happen in a stateless society.

While this does not “prove” the illegitimacy of IP, it shows another clear differing aspect and brings about practical questions.

Crosbie Fitch January 15, 2010 at 3:45 am

Even as a copyright and patent abolitionist, I’d still argue that patterns can be property. You just have to recognise that patterns are only universals in the abstract. When a pattern is actually realised, physically manifest, then each instance has no relationship to any other except that of similarity (and possibly provenance if constructed through copying). Identity can only occur in the abstract. Two instances may be indistinguishable, but they are not a single instance.

I’ve thought of a number. It’s my idea that I own. It has been realised in my mind. If I set it down on paper it becomes my physical property (material and intellectual property). I control access to both the paper and the number written on it (while I keep it exclusive or private to me). NB I do not control the abstract number, thus have no ability to prevent anyone else using or realising this abstract number, which must be by unwitting coincidence since they have no access to the number I’ve realised. I can sell the number on the piece of paper to someone else (and my memory of it may evaporate) or I can make and sell umpteen copies of it. But no-one else can access this number unless they obtain authorisation from any one of those who have become privy to the number. However, neither myself who thought of the number, nor anyone who is privy can naturally prevent anyone else who is privy from making and selling as many copies as they wish. It would take something unnatural like copyright to pretend such power. However, no-one apart from those who are privy are naturally able to make copies, because they have no access. Other people might independently think of a number that by pure coincidence represents the same abstract number (though neither party can know this until someone privy to both recognises the similarity).

So, numbers and thus information can be property when realised, fixed in a physical medium that is separable from the body. What are unnatural abominations are privileges suspending people’s natural liberty to make copies of what they are rightfully privy to, or use/reproduce (patent) registered designs.

This is the position of natural IP, which accords with the US constitution, but is antithetical to the privileges of copyright and patent, as well as the position of IP nihilism (“No such thing as IP”).

Scott Regener January 15, 2010 at 4:15 am

I fail to see how option #5 makes any sense whatsoever. The only reason advertising-driven sales would come to you is because it is illegal for other sites to copy the work. If any website can copy the work in total, they can pocket whatever advertising dollars they earn rather than send the author a red cent. First-mover disappears because the tools exist to “harvest” such works immediately.

Peter Surda January 15, 2010 at 7:24 am

@pro-IP-libertarian:
> Just another change in semantics.
I’m starting to get confused. It was you who brought up the concept of value. If you disagree with my definition, maybe it would be helpful if you brought your own?

> If I recall correctly
> even discussion of physical homesteading refers to
> changing the “value” of goods with one’s labor.
Actually, no. The homesteading of physical goods is defined as mixing the unowned with your labour. There is no need to value anything.

> Adding some collectivist claims and calling it
> the “value” approach seems like a semantic game.
I am afraid it is you who uses the value approach. I claim the approach is invalid, because there is no way to objectively determine value.

> I’m unconvinced. People are emotional, react in
> crowds, and don’t easily change initial opinions.
Yet, the same applies to speech that is not legally slander and libel. There is no way to determine where to draw the line. I think other libertarian authors, e.g. Walter Block in Defending the Undefendable: http://mises.org/books/defending.pdf are more eloquent in this respect than me, I tend to stick to minimalist logic (probably an result of my math and software engineering background).

> The libel and slander laws originated because there
> was a need – you can do real damage to people’s
> lives and reputations with defamatory speech.
The need alone does not prove legitimacy. There is a lot of “needs” whose satisfaction cannot be legitimately enforced, especially on the emotional level.

> Sure there is, the current libel, slander,
> defamation, “false light”, invasion of privacy, etc.
This turns my problem inside out. My approach is first to try to establish a coherent theory, and then determine how that would apply in real life situations. You seem to be doing the opposite: from current practice, you inductively arrive at a theory. Unfortunately, it turns out that the theory does not actually explain or justify the behaviour so you are stuck.

> There is a general libertarian prohibition on fraud.
Yes, there is, but fraud requires an underlying contract.
Deception without an underlying contract is not fraud. It might be immoral but it does not consitute a violation of rights. If it was, again that would lead to absurd conclusions.

> Generally, where current IP draws the line works
> reasonably well.
See my above point. You deduce the boundary from current practice with no underlying theory. In my opinion, the boundaries should follow from the theory, rather than the other way around.

> The laws governing physical property like real estate
> aren’t perfect either – “first to courthouse”, etc.
I am afraid I don’t understand this. My point is that if one owns a non-rival good, it creates a lot of questions which need to have a theoretically founded answer. With rival goods, these questions do not exist.

> There is still the absurdity of a copycat publisher
> having an equal claim on profits from a work as the
> author themselves.
There is no right to profit. That would be a corollary of the labour theory of value (nowadays associated with Marxism but rejected by most economists).

> And people just want to buy their books, movies,
> music, etc. – most aren’t going to check the
> provenance of something when making a purchase.
The same objection is also valid for rival goods, so we must reject it.

> The natural rights violation goes back to Locke. The
> creator has a natural law interest in his creation
> because it is a fruit of his labor.
This sentence can be interpreted in several ways, so it’s meaningless as an argument. I can for example say that I agree with the sentence but consider immaterial goods to be always unique and “fruit” to be only an outcome of a contract.

> It’s collectivist because members of the public have
> the same claim on the labor of the creator that the
> creator does.
“Claim on labour” is a meaningless phrase. Same problem as above.

> Anyone with a printer can distribute Harry Potter
> books, so it becomes the property of the public, the
> collective.
This is only valid if one assumes that:
- immaterial goods are non-unique
- one can own immaterial goods
- ownership of immaterial goods is exclusive

These are just random assumptions. They do not follow from anything.

> Depends on the facts. If the 2nd buyer …
Let me stop you right here. I think I should be more elaborate. Let’s say I hear my neighbour playing music, or see a patented mouse trap through his window, and than create a copy. There is no contractual relationship between either me or my neighbour or me and the patent/copyright holder. Therefore, I am not bound by any restrictions with regards to them. It is true that this might cause my neighbour to be liable (depending on the contract), but I have no liability. This is where copyright/patents would be necessary to create the liability.

> These were theoreticals, with some exceptions I
> basically agree with the current IP system.
However, you have not provided a property theory that explains it.

> No, the current IP scheme offers a pretty good
> methodology for establishing what ideas or creations
> are “homesteaded” or not.
It doesn’t, but that’s irrelevant. What’s relevant is that it doesn’t provide a valid theory for them.

Merely the existence of decisions does not prove that the decisions were based on higher objective principle. Merely the fact that a rule has a benefit to someone does not prove that that it is justified. Merely the fact that someone feels offended or wronged does not prove that injustice occurred. Merely labelling an entity “property” does not prove it has the features of property or leads to the same consequences.

Stephan Kinsella January 15, 2010 at 1:20 pm

Crosbie, you regularly make these strange and confused assertions: that you condemn the state IP monopoly grants, but that there can be “natural” property anyway in IP. I think you are just using idiosyncratic, crankish language, that impedes communication.

For example you write:

Even as a copyright and patent abolitionist, I’d still argue that patterns can be property. You just have to recognise that patterns are only universals in the abstract. When a pattern is actually realised, physically manifest, then each instance has no relationship to any other except that of similarity (and possibly provenance if constructed through copying). Identity can only occur in the abstract. Two instances may be indistinguishable, but they are not a single instance.

I’ve thought of a number. It’s my idea that I own. It has been realised in my mind.

You do not specify what you mean by “own” here. Of course if you are thinking of a number, then … you can do what you want with this idea or information. You can decide not to reveal this thought to others. But this is because you own your body. There is no “ownership” of a number, just because you can keep the thought of the number private, just because you can rely on it in acting. (See my post Intellectual Property and the Structure of Human Action.)

You go on to say: ” If I set it down on paper it becomes my physical property (material and intellectual property).”

No, there is no “it” that “becomes” your property. You already own the paper. You still own it, even if it now has a different appearance due to your having marked it wiht a pencil you own.

“I control access to both the paper and the number written on it”

Your ownership of the paper and your body allows you to keep its contents private, sure. Rothbard explained something similar regarding free speech rights: in Ethics of Liberty, ch. 15, “‘Human Rights’ as Property Rights”:

Take, for example, the “human right” of free speech. Freedom of speech is supposed to mean the right of everyone to say whatever he likes. But the neglected question is: Where? Where does a man have this right? He certainly does not have it on property on which he is trespassing. In short, he has this right only either on his own property or on the property of someone who has agreed, as a gift or in a rental contract, to allow him on the premises. In fact, then, there is no such thing as a separate “right to free speech”; there is only a man’s property right: the right to do as he wills with his own or to make voluntary agreements with other property owners.

There IS NO SEPARATE (i.e, indepenent) right to free speech; it’s just a consequence or implication of property rights. Likewise, your ability to keep information secret because you have property rights in your paper and body is not itself a separate, independent right. It’s just a consequence of your rights. To call it a right, to say you own numbers and information, is crankish. You are simply trying to express something obvious–that if you keep information secret, no one knows it; that if you have information, you may use it–but make it sound like more than it is by including it confusingingly in the concept of property and ownership. Thus, you crankishly insist that there is still “natural intellectual property” even though you oppose state grants of IP. All you mean is that if the state does not grant IP monopolies, but your rights in your body and other property are respected, you are free to act on information you have, and to keep it secret. Yes, this is quite obvious; no need to come up with an “ownership” category to explain this obvious fact. Likewise if I own my body I’m able to take a bath, scratch an itch; these are just a few of billions of things I can do by exercising my rights.

pro-IP-libertarian January 15, 2010 at 7:08 pm

Bala-

Why can they not be treated as legitimate property? For the simple reason that they are not, by THEIR VERY NATURE, amenable to the most fundamental characteristic of “property”, i.e., the exclusion of others from them.

Exclusion is part of it, but exclusion is largely a function of statute and the state. Your deed says you can exclude and the state will help you exclude. (Same with title and mere possession of other property.) Likewise with IP.

And why are they not legitimate property? Because exclusivity is not a necessary condition for the producer of an idea or a pattern to be free to act to instantiate it and benefit thus. Period.

It is necessary in many cases to profit from it.

Besides that, your approach results in the absurdity of the public having an equal claim on the labor of the creator, which is collectivism. And immoral.

I think anyone who argues otherwise (this includes @pro-IP libertarian and @Sila) should first specifiy their definition of the concept “property” and why (they think) IP is a legitimate form of “property”.

I’m not going to reinvent the wheel here, see IP law. Generally, novel or unique creations that have subjective value.

Here’s a question for you: If IP isn’t scarce why do you have to copy other people’s? If someone objects to it because they want to profit, can’t you just go to the infinite source of IP and get some from someone that doesn’t object?

pro-IP-libertarian January 15, 2010 at 7:18 pm

Silas Barta-

Furthermore, no matter how non-scarce an idea is after production, you must apply scarce means to its production, meaning that they trade off against the use of those means for other ends. If prices can’t reflect these differential valuations of ideas (both with respect to each other, and to non-idea goods), society is in a state of calculational chaos just as surely as if it didn’t recognize property rights in e.g. lumber. Sure, some folks would still bite the bullet and produce lumber, in their spare time, for person use or to give to friends. But there wouldn’t be a clear market in it, or be any of the other benefits to property rights.

Good characterization and application of the calculation principle.

pro-IP-libertarian January 15, 2010 at 7:24 pm

Bala-

That’s what I meant by “cannot”. It cannot be sustained….. unless of course you are ready to impose a police state upon people and make it impossible for man to like qua man by making it “legitimate” for the police state to initiate force against anyone at all.

Please. There is hardly a police state forming. And enforcement could certainly be handled through civil suits and associations rather than using state enforcement. (I forgot about current FBI enforcement earlier in the thread.)

Bala January 15, 2010 at 7:48 pm

pro-IP-libertarian,

” Exclusion is part of it, but exclusion is largely a function of statute and the state. ”

This show’s that you have got it all topsy turvy and are hence thoroughly confused. If I take possession of an apple and hold it, I would have excluded it from you by refusing to give up possession. There is no State and no statute.

The moral concept “property” precedes the legal acknowledgement of the same.

” It is necessary in many cases to profit from it. ”

Once again, you are failing to understand the meaning of necessary and using the wrong one.

It is probable that you are not aware of where I come from, so let me make it clear. As I see it, “rights” are

1. a moral concept defining and sanctioning man’s freedom of action in a social context
2. a recognition of a condition of existence essential for the survival of man qua man

Survival “qua man” only requires that he be free to act as per the judgement of his mind since his nature is that of a rational animal with a volitional consciousness. The way to make it impossible for man to survive “qua man” is to initiate force against him and over-ride his volition. Therefore, it is a “necessary” requirement for man to survive “qua man” that other men desist from initiating force against him.

In the case of physical possessions that a man acquires so that he may apply them in the service of his life, exclusion of others becomes a “necessary” condition as described above since if you have an apple, I cannot have the same. If I have an apple, you are not free to act to modify its status since doing so without my consent would be tantamount to initiation of force against me. If you take possession of the apple through the initiation of force, my freedom to act on the apple is removed since I do not have it any more.

In the case of ideas and patterns, however, such exclusion is not “necessary”. My possession of an idea does not adversely affect your freedom to act on the idea. It does not matter whether 2 people have it or a million do. The freedom of no single person is affected adversely by the possession or the subsequent instantiation of an idea/pattern by any of the other people.

A “right to a profit” is a right to an outcome and is hence as monstrous as a right to food. You have a right to be free to work for profit but not a right to a profit itself.

” Besides that, your approach results in the absurdity of the public having an equal claim on the labor of the creator, which is collectivism. And immoral. ”

Topsy turvy again. No one is conceding the public any claim. I am only saying that ideas, by their very NATURE, are not amenable to exclusivity. You cannot, short of lobotomising me, prevent me from forming the concept behind an invention that forms a part of a product you sold me. By just observing the product (which is now MY property because you SOLD it to me), I am capable of learning everything about the idea. So can any human being.

Unless you are talking of lobotomising all buyers of your product, you are discussing an impossibility when you demand exclusion of others from your idea, especially after you sell the instantiation of it.

You are therefore worshipping your whim that your idea should be exclusive. Nothing could be more immoral than that.

” If IP isn’t scarce why do you have to copy other people’s? ”

If it is scarce, how is it that even after I acquire the idea, you still have it? Here too, you have got the concept “scarcity” all wrong. “Scarcity” means that there is and can ever be only 1 of it. Ideas are capable of multiplying infinitely and can exist in every mind capable of forming them. Hence they are not “scarce”.

Bala January 15, 2010 at 7:51 pm

pro-IP-libertarian,

” Please. There is hardly a police state forming. ”

Hmmm…. What do I say to this????

Bala January 15, 2010 at 8:01 pm

Russ,

If you still around on this thread, I just wanted to state that I do not differ from you on the importance of “scarcity” as the basis of defining the concept “property”. I am just attempting to explain WHY scarcity is the only morally sound basis of the definition of the concept “property”. It is probably just a preference of mine (considering my Objectivist roots) to talk of everything in a moral context first before going to other contexts, but I also feel that it can work better in a discussion with a lot of people who tend to see a “scarcity” based definition of “property” as a utilitarian one or even a pragmatic (and hence unsound) one.

” If you accept EM spectrum rights as legitimate property, then you must accept there is more to property than just the fact that it’s hard to exclude others from it. ”

My point was not “being hard to exclude”. There were 2 parts to my position – necessity and possibility (not difficulty). I have clarified both these in my reply to pro-IP-libertarian and request you to read that since I do not see the value of repeating it all over again in the very next reply.

Russ January 15, 2010 at 8:08 pm

Bala wrote:

“”Please. There is hardly a police state forming. ”

Hmmm…. What do I say to this????”

IP is not what is causing us to drift further into socialism. I truly do think that LvMI spends way too much time on IP, and not nearly enough on more important and timely issues such as the health care coup that is currently going on, even though the IP problem is interesting from a philosophical point of view.

Bala January 15, 2010 at 8:19 pm

Russ,

” IP is not what is causing us to drift further into socialism. ”

I was only questioning the claim that we are not drifting towards a police state, not saying that IP is causing it.

And yes… I do agree that the healthcare coup is a far bigger danger to the concept of Liberty than IP is and coverage of this issue is scant.

pro-IP-libertarian January 15, 2010 at 8:53 pm

Russ-

Even if I did think that valuation creates scarcity with respect to EM spectrum, I don’t see how the concept applies to IP. In fact, it seems to be just the opposite; valuation of patterns/ideas causes them to be copied and thus less scarce.

The production of novel or new ideas is scarce, otherwise people would not bother copying them. And if someone objected because they wanted to profit the user would just move on to other ideas from the infinite pool. The effort of copying is an indication of scarcity, and therefore value.

The separation of idea production and duplication or reproduction is just the way the issue has been framed.

You haven’t answered the question, Why is IP necessary, if patterns/ideas are costlessly reproduced? After all, if the creator can still use the idea/pattern (i.e. there is no economic scarcity), then why is exclusivity needed?

For the same reason that it is necessary to profit from scarce property like real estate or part of the EM spectrum: exclusion. One could theoretically profit or enjoy real estate or EM spectrum without exclusion, but it would be very difficult and the profits would be greatly diminished. And it follows that people would have less incentive to invest in and develop those resources.

Selling price depends not only on demand, but *supply*. If the supply of existing ideas/patterns is in effect infinite, then marginal value theory says that the price should be extremely low, yes? So, the valuation (demand) does figure in, but so does the supply.

The supply isn’t actually infinite. New and good quality IP is actually scarce. The notion that IP is “infinite” comes from framing that separates production from duplication/reproduction.

Now convince me that people will not pay for the *creation* of new ideas/patterns (as opposed to not paying for copies of existing ideas and patterns that they can get elsewhere). If you can do that, you’ve got me.

They will pay, but much less. And many would be less likely to invest time and resources in creating them. Just imagine what would happen to the real estate market if you couldn’t exclude. Your nice beach house loses its charm when any member of the public can crash there, barbecue in the back, graze their llama’s in the yard, etc. There would likely be numerous other consequences, seen and unforseen: people only sharing low-value ideas, all kinds of price changes, something like guilds forming, all kinds of secrecy, etc. As you can imagine, you can’t forsee the exact changes without a crystal ball or experiment, but you can pretty much tell they are going to be negative. The closest comparisons we have were/are the communist/socialist countries, and that is pretty negative.

Granted, the creators of patterns/ideas are scarce, but I don’t see any analogy whatsoever between that and EM spectrum. Patterns/ideas are not comprised of their creators, and hence are still not scarce once created.

This comes from the framing mentioned above that confuses possibility of mass use with level of scarcity. EM spectrum is scarce and mass use with no exclusion would greatly reduce the value. A beach house is scarce, but mass use and no exclusion would greatly reduce its value. New ideas are scarce, and mass use and no exclusion would greatly reduce their value. And what would follow in all three scenarios is a disinclination to invest one’s time and capital into developing those types of property.

Bala January 15, 2010 at 9:09 pm

pro-IP-libertarian,

” EM spectrum is scarce and mass use with no exclusion would greatly reduce the value. A beach house is scarce, but mass use and no exclusion would greatly reduce its value. New ideas are scarce, and mass use and no exclusion would greatly reduce their value. ”

A highly questionable conflation. EM spectrum and the beach house continue to remain scarce (there is only 1 EM wave of a particular frequency and there is only 1 of that particular beach house) even with mass use whereas the idea multiplies and resides in every mind that “mass-used” it without depriving any other mind of using it further.

Russ January 15, 2010 at 9:20 pm

pro-IP-libertarian wrote:

“…One could theoretically profit or enjoy real estate or EM spectrum without exclusion, but it would be very difficult and the profits would be greatly diminished….”

This is true. But patterns are different. One doesn’t need to exclude others from using a pattern in order to use it oneself.

“…As you can imagine, you can’t forsee the exact changes without a crystal ball or experiment, but you can pretty much tell they are going to be negative. The closest comparisons we have were/are the communist/socialist countries, and that is pretty negative.”

Well, I don’t imagine that the changes will be all that negative. I see writers making their money via speaking engagements or spoken word performances or selling autographed books at signings; musicians using the ‘Net to advertise (as they do now) and making their money from performances and merchandise; major corporations or consortiums of corporations paying for new versions of software that they will need (which the masses can then benefit from once they are released); movie makers making their money more from theaters and less from DVDs. Heck, it could be a good thing. Now, we have rich actors and performers like Alec Baldwin and Bono being good little socialist useful idiots to try to assuage their guilt. Maybe without IP we’d have less of this.

As for saying that an IP-less world would be like a socialist country, that’s laughable. The Soviets, etc., are the ones who suppressed expression of thought, and samizdat publishing was what fought it. You have things exactly backwards, as far as I can tell.

pro-IP-libertarian January 15, 2010 at 11:04 pm

Peter Surda-

I’m starting to get confused. It was you who brought up the concept of value. If you disagree with my definition, maybe it would be helpful if you brought your own?

Just noting that it is a little confusing. Under most discussions of physical property, homesteading is described employing your labor on land and improving or increasing its value. Then the value based approach to IP you describe involves claims that the creation of IP diminishes the value of the property of others.

Actually, no. The homesteading of physical goods is defined as mixing the unowned with your labour. There is no need to value anything.

Come now. Labor usually is undertaken to accomplish something productive, and usually the discussion turns to “developing” or “improving” the land, increasing its value, etc. Even if that is only in the eyes of the laborer. I’ve attended several college courses covering property issues at both the undergraduate and graduate level, and value was discussed and implied in each.(And yes, one of them was from a fairly libertarian, Lockean perspective.) I realize that simple enclosure could entail homesteading, but this seems a strange point to hang up on.(And would possible even support my case.)

I am afraid it is you who uses the value approach. I claim the approach is invalid, because there is no way to objectively determine value.

Correct, markets are what indicate value through a subjective pricing mechanism. A type of value can also be determined indirectly by what individuals spend their time on.(Mises) But I do not use what you describe as the “value” approach to IP, which I take it is set forth somewhere. Although my approach is based partially on value.

I am afraid I don’t understand this. My point is that if one owns a non-rival good, it creates a lot of questions which need to have a theoretically founded answer. With rival goods, these questions do not exist.

Unauthorized copies of IP are rivalrous, because they may crowd out authorized copies for sale. This effects how society prices IP production.(from Silas Barda)

There is no right to profit. That would be a corollary of the labour theory of value (nowadays associated with Marxism but rejected by most economists).

Certainly under natural law you wouldn’t say person Y selling grain that person X produced with his labor as his own would be acceptable. Since IP is rivalrous the same applies to IP. My least favorite Marx brother doesn’t come into this.

This sentence can be interpreted in several ways, so it’s meaningless as an argument. I can for example say that I agree with the sentence but consider immaterial goods to be always unique and “fruit” to be only an outcome of a contract.

Not quite. Rejecting the “copying is production” framing and replacing it with the “actual creation is production” approach means the copycat publisher did not labor on the product, and therefore does not have a valid claim on profits. Or if you want to stick with contract law the contract is invalid because it is illegal – the labor creating the product was not the copier’s, nor did he purchase it.

One could claim that copying is “labor”, but not in this context. Safecracking is technically “labor” as such, but we don’t recognize it as a valid claim on the property or profits obtained.

“Claim on labour” is a meaningless phrase. Same problem as above.

No, natural law recognizes the laborer’s right to claim profits from the sale of goods they produced. If your “copying is production” framing is rejected, the profits from the creator’s labor is recognized as his, from both a moral and utilitarian standpoint.

This is only valid if one assumes that:
- immaterial goods are non-unique
- one can own immaterial goods
- ownership of immaterial goods is exclusive

These are just random assumptions. They do not follow from anything.

Explained above.

Let me stop you right here. I think I should be more elaborate. Let’s say I hear my neighbour playing music, or see a patented mouse trap through his window, and than create a copy. There is no contractual relationship between either me or my neighbour or me and the patent/copyright holder. Therefore, I am not bound by any restrictions with regards to them. It is true that this might cause my neighbour to be liable (depending on the contract), but I have no liability. This is where copyright/patents would be necessary to create the liability.

True. But remember that was a point on how contract law could butress IP law, I did not claim that contract law was a suitable replacement.

Merely the existence of decisions does not prove that the decisions were based on higher objective principle. Merely the fact that a rule has a benefit to someone does not prove that that it is justified. Merely the fact that someone feels offended or wronged does not prove that injustice occurred. Merely labelling an entity “property” does not prove it has the features of property or leads to the same consequences.

Addressed, see posts above.

From your comments on libel, slander, and defamation law you seem to consider the libertarian prohibition on “fraud” meaning only fraud in a sense relating to contract law, while seeming to consider some other kinds of deceptive, immoral, illegal, and/or tortious (under modern, common, and/or natural law) behavior as somehow acceptable. Since this is unusual and this was really a separate discussion I will address those in a separate post below.

pro-IP-libertarian January 15, 2010 at 11:34 pm

Russ-

This is true. But patterns are different. One doesn’t need to exclude others from using a pattern in order to use it oneself.

The same goes for real estate – you could step around the llamas and their droppings on the way to your lawn chair. For RF spectrum too – you could publish a notice in the paper saying that you wanted to do your hour long show on broadway showtunes from 7-8PM every sunday and it would be really cool if no one broadcast over you during that time.

The point is that it would negatively effect the pricing of and investment in all three types of property.

Well, I don’t imagine that the changes will be all that negative. I see writers making their money via speaking engagements or spoken word performances or selling autographed books at signings; musicians using the ‘Net to advertise (as they do now) and making their money from performances and merchandise; major corporations or consortiums of corporations paying for new versions of software that they will need (which the masses can then benefit from once they are released); movie makers making their money more from theaters and less from DVDs. Heck, it could be a good thing. Now, we have rich actors and performers like Alec Baldwin and Bono being good little socialist useful idiots to try to assuage their guilt. Maybe without IP we’d have less of this.

There is still the absurdity of copiers profiting rather than creators once the “copying is production” framing is rejected. And that is a violation of natural law libertarian principles. Buy hey, if you’re a libertarian and have no problem rejecting natural law I guess that’s the thing to do. I don’t know if someone that rejects natural law is really a libertarian, however….

As for saying that an IP-less world would be like a socialist country, that’s laughable. The Soviets, etc., are the ones who suppressed expression of thought, and samizdat publishing was what fought it. You have things exactly backwards, as far as I can tell.

But where’s the Soviet auto industry, electronics industry, entertainment industry, etc, etc, etc…? We’re talking about a huge land mass there. Most technological advancements were in military and related areas. And I mean no offense against the Russian people, its truly horrible what a bad economic and property rights system did to an area that is incredibly rich in natural and human resources. Same for the North Koreans and everyone else.

Russ January 15, 2010 at 11:41 pm

pro-IP-libertarian wrote:

“Certainly under natural law you wouldn’t say person Y selling grain that person X produced with his labor as his own would be acceptable. Since IP is rivalrous the same applies to IP.”

Come on, pro (may I call you “pro”?), we both know that us anti-IP people reject the idea that IP is rivalrous. So the same does not apply to IP in our eyes. The idea that “copies of IP are rivalrous, because they may crowd out authorized copies for sale” is irrelevant to us. The owner of the original copy of the IP can still use the IP, hence from our point of view IP is not rivalrous, and hence not really property. Making a profit off the pattern is not a right. If you can do so without violating other peoples’ rights, fine. If you can’t, then it’s not fine.

Making a pattern off of a material object that you produce with your labor is different. The object that you create is scarce, “rivalrous”, whatever. That makes it property. The fact that it is scarce is what makes it not OK for others to steal it, not the fact that you made it. Labor isn’t magical.

Russ January 15, 2010 at 11:54 pm

pro-IP-libertarian wrote:

“The same goes for real estate – you could step around the llamas and their droppings on the way to your lawn chair.”

Umm, yeah. Could I build a shopping mall on land while you grow corn on it? Would the shoppers just have to avoid the combine machines? Get real!

“For RF spectrum too – you could publish a notice in the paper saying that you wanted to do your hour long show on broadway showtunes from 7-8PM every sunday and it would be really cool if no one broadcast over you during that time.”

And what if somebody decides to be not cool? Sorry, property is required here, for EM spectrum to be useful.

“There is still the absurdity of copiers profiting rather than creators once the “copying is production” framing is rejected.”

I don’t find it all absurd that copiers profit. After all, imitation is what people do; it’s how ideas spread and how people learn.

“And that is a violation of natural law libertarian principles. Buy hey, if you’re a libertarian and have no problem rejecting natural law I guess that’s the thing to do. I don’t know if someone that rejects natural law is really a libertarian, however….”

All I can say here is that you have an overly narrow conception of libertarianism. Is David Friedman not a libertarian? Sorry to say, but not all libertarians are believers in natural law.

“But where’s the Soviet auto industry, electronics industry, entertainment industry, etc, etc, etc…? We’re talking about a huge land mass there. Most technological advancements were in military and related areas. And I mean no offense against the Russian people, its truly horrible what a bad economic and property rights system did to an area that is incredibly rich in natural and human resources. Same for the North Koreans and everyone else.”

Yes, but the socialism in those countries is the socialization of *scarce* resources. You know, actual property.

pro-IP-libertarian January 16, 2010 at 12:50 am

Peter Surda-

Yet, the same applies to speech that is not legally slander and libel. There is no way to determine where to draw the line.
earlier:
Furthermore, if the incorrect information was a part of a contract, it would constitute fraud and the liar would be liable for damages (to the one who was deceived, not to the one who the misleading information referred to). Finally, it is also possible to damage one’s reputation even without committing libel or slander, without making false or derogatory claims, merely by using suggestively formulated questions or confusing grammar, or appealing to emotions. There is no way to determine where to draw the line.
and
You seem to be doing the opposite: from current practice, you inductively arrive at a theory. Unfortunately, it turns out that the theory does not actually explain or justify the behaviour so you are stuck.

Generally there is a libertarian prohibition on force and fraud. You seem to be arguing that the term “fraud” only applies to fraud as applied to contract law. But when libertarians say they are against “force and fraud” that generally means all their forms and derivatives as well. For “force” that would mean robbery, assault, murder, extortion, kidnapping, rape, torture, etc. For “fraud” that would mean all its derivatives – embezzlement, forgery, conversion, waste, counterfeiting, false claims, etc. Not just fraud in the sense of contract law. And note that the fraud and force are usually just flip sides of the coin – robbery is way to take property by physical force, embezzlement is a way to take property by deception.

Now libertarians are not just against these things only on moral grounds, they are against them on utilitarian grounds. Behaviors like those mentioned above do not make for a good, efficient, or prosperous economy or society.

Now for libel, slander, and defamation. Let’s say you own a van company and I threaten a customer that wants to buy a fleet of delivery vans from you with a beating or worse if he buys from you, steering the business to a competitor. This is civil extortion.(It’s also criminal extortion, but we’re just talking about civil offenses.) It is obviously wrong on moral grounds. It is also wrong on utilitarian grounds because the business doesn’t necessarily go to the best or cheapest producer, it goes to the most dishonest and violent one. Now what if I use defamation to do the same thing – make dishonest statements about someone to prevent a deal and steer the deal to someone else. This is defamation. It is wrong on moral grounds, and it is also wrong on utilitarian grounds for the same efficiency reasons above. The business goes to the most dishonest, not the best or cheapest producer. Civil extortion is the branch that uses “force”, civil defamation is the branch that uses deception or “fraud”. They are both morally wrong, they are both wrong on utilitarian grounds.

Now it goes even further than that. If the defamatory statement was widely disseminated it might disrupt a number of potential transactions, not just one. Making its impact even worse. And it could effect your life in other areas, like your personal and romantic relationships. (It would be extortion to disrupt your romantic and personal relationships with threats of violence, this is just the “fraud” side of the coin.)

I don’t have time to run through all the nuances of common and modern law, etc. But generally libel, slander, and defamation hinge on damaging someone through deception, or what libertarians refer to as “fraud” in the general sense. So it is wrong on moral grounds, and it is wrong on utilitarian grounds. Now I know that some cases slip through the cracks, but generally to be successful in a libel, slander, or defamation action the case has to be fairly egregious and the evidence has to be pretty strong.

So are there some portions of libel, slander, and defamation law that are likely not exactly in congruence with libertarian or natural law thought or philosophy? Probably. But should we throw out the whole area? No. Because most of it falls within the area that libertarians consider “fraud” and is therefore wrong on moral and utilitarian grounds.

ABR January 16, 2010 at 1:48 am

Typically, libertarians reject defamation law because a person’s reputation is not property. A person’s reputation lives in the minds of others.

If I defame X, and Y decides to fire X based on my false accusations, then Y has not aggressed against X’s property, nor have I. Y doesn’t owe X his job. A job is not property.

If I defraud a person, it is over property.

Peter Surda January 16, 2010 at 3:54 am

@pro-IP-libertarian:
I regret that you continue to use the value definition of property, even though it has been refuted. That makes most of your arguments false.

re: fraud
You mix fraud and initiation of force. Of course, for initiation of force there is no need for an underlying contract. Therefore, IP affects the initiation of force and not fraud. This leads back to the definition of property, which I addressed above.

re: rivalry
What you describe as rivalry is merely the substitution effect on the market. It’s not rivalry. Rivalry means that consumption does not decrease the supply. It does not mean that consumption can’t decrease. Correct definition: rivalry = if consumption happens, then supply doesn’t decrease, whereas you claim: if consumption decreases, then the product is rivalrous.

re: libel & slander
This is a mix of the previous issues: the non-differentiation between fraud an initiation of force, and labour theory of value (right to reputation).

It all seems to boil down to the labour theory of value. So let me ask you something. If you are familiar with Popper’s theory of falsifiability, what argument would persuade you that the labour theory of value is incorrect? In my opinion I already proved it, however it looks like you don’t consider that sufficient.

Curt Howland January 16, 2010 at 2:33 pm

Silas,

“After a snide remark about your inability to carry more than two logical steps in your mind at any one time…”

Please don’t bother. It would just be insulting only to you while adding nothing to the discussion.

“In both cases, you want the “laws” regarding them repealed, and then, “the market” to decide what laws to enforce.”

Actually, that is not what I said. I believe statute laws to be arbitrary, and therefore anti-reality. Every situation deserves to be examined both independently and within the context of society. That is, after all, why we have both police and courts.

What is enforced without statute “laws” are not “laws”, but the social standard of interaction we live by every day without those statutes. I do not murder my neighbor, not because there is a statute law against it, but because the principle of non-initiation of force is to me the most moral and noble way to live.

“So in what sense do you oppose IP but support physical property?”

I.P. exists because it is defined in statute law. I oppose I.P. because it is defined in statute law as “property” which violates the principle of “property” as defined by human interaction as a way of dealing with scarce resources.

Ideas once published, like electrons, are not scarce. My use of them in no way hinders anyone else’s use of them. Period.

I’ve seen that you already have dismissed the “scarcity” principle, so it will be easy enough to say I have nothing new to add for you to counter.

Pro-IP-Lib,

“Not if you agreed not to at purchase, then you are dishonest.”

Please, if you would be so kind, show me where anyone has advocated, promoted, or otherwise said anything about getting away with violating contracts?

How else would a manufacturer, keeping their process secret, be able to employ anyone?

To say that there could be no contracts without copyright is, I believe, to be seriously screwing up the issues involved.

Yes, it is my opinion that there is no “right to profit”. To say that there is a “right to profit” is to be entitled to the property of others, and that is slavery.

Curt Howland January 16, 2010 at 2:45 pm

Pro-IP-Lib,

“No, they just agreed to sell you use of their product. They didn’t license you to reproduce their proprietary technology. (We are still talking about an IP regime here.)”

I think this statement itself is very enlightening.

Why do you get to sit back and not even try to justify the imposition of the “IP regime” in the first place?

And no, the first premise is false. No one sold me the “use” of their product. They sold me the product itself unless there is a specific contract signed, in advance, to the contrary. The Microsoft EULA, for example, which is one reason I don’t run Windows.

Curt Howland January 16, 2010 at 2:53 pm

Russ,

“We still do not live in a police state.”

Yes, we do. You just haven’t felt sufficiently inconvenienced yet.

Yet.

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