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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 }

Curt Howland January 13, 2010 at 7:00 pm

ABR, your fear is groundless. The fact is that there is “value” and people will “pay” for it.

The argument that copies somehow detract from the “fair” remuneration of the creator is specious, because the creator will not release their creation without being “fairly” paid. The fact that under present IP laws there is an expectation of royalties does not change the fact that the creator would not have released their creation without a contract for what they thought was “fair” for the royalties, or a one time payment, or whatever that contract was.

So you’re afraid that people won’t create? You consider your personal fear to be so important that you’re ready to enslave everyone else to your idea of right and wrong?

If you’re so afraid, then pay for what you use. Find out who the author is and send them $1. Stand up for your beliefs and pay authors what you think they’re worth. Do you require the coercion of government before you’ll do what you think is right?

Pro-IP-Lib, you also seem to operate under the illusion that what is created magically appears, and then people get paid out of royalties. Well, no, the creator _releases_ their work.

The “floppy with X’s book on it” if stolen is THEFT, because it is stolen. The thief owes restitution no less than if the object stolen was a jewel necklace.

Curt Howland January 13, 2010 at 7:11 pm

Silas, those against government monopoly grants are in the position of having to prove their point, because the laws are already in place.

Please, if you would, take a moment and justify the imposition of IP. Can you make a convincing argument that does not depend upon what already exists?

ABR January 13, 2010 at 8:03 pm

Curt Howland: “You consider your personal fear to be so important that you’re ready to enslave everyone else to your idea of right and wrong?” — No.

Curt: “If you’re so afraid, then pay for what you use. Find out who the author is and send them $1. Stand up for your beliefs and pay authors what you think they’re worth.” — Good idea.

“Do you require the coercion of government before you’ll do what you think is right?” — No.

Micah January 13, 2010 at 10:19 pm

What’s the difference between “good” IP and “not good” IP that makes “good” IP scarce and “not good” IP not scarce? It sounds like a subjective value is being placed on IP to make it scarce.

If I hate Harry Potter and want nothing to do with it, does that mean it is not scarce to me, but only scarce to those that think it is “good”?

Silas Barta January 13, 2010 at 10:52 pm

@Curt_Howland: Please, if you would, take a moment and justify the imposition of IP. Can you make a convincing argument that does not depend upon what already exists?

Sure, I’ll do that, just as soon as you take a moment and justify the imposition of physical property.

@Shay: Certainly, if you stop people from making copies of the book, it will become scarce, and its price will be driven up. If I grew oranges, I’d certainly like to stop everyone else from growing them so as to drive the price up and bring me more profit. How is the former any more justified than the latter?

Gee, I don’t know. Maybe because oranges would and could still exist if you didn’t grow them, while if you hadn’t come up with a certain idea, no one would be able to have it at all?

Kind of funny how easily IP opponents forget this little tidbit. It’s almost like they thing IP means some drunk wandering around, and whoever he touches gets random IP rights in some idea, no matter what connection he may or may not have to it.

Nelson January 13, 2010 at 11:20 pm

Absence of copyright monopoly would be ok for certain intellectual creations. Those who only have one buyer for instance. But when you’re trying to achieve economies of scale, that is release a popular work to tens or hundreds of thousands who are willing to pay no more than a few dollars each, then copyright monopoly is a very useful device for dividing the cost among those consumers while minimizing the free rider problem.

sneaker January 14, 2010 at 12:06 am

Give me a break. Please. These utilitarian arguments bore me to death. And yet the bogging down continues.

What gives you the right to tell/force me to not play/sing/print a piece of music written by *you* but realized by the exercise of *my* property rights?

What gives you the right to prohibit me from burning a CD that I legitimately acquired with a pattern of bits that you disapprove of? Or making a sand castle in a pattern you originated? How dare you.

And, btw, your identity (your own comprehension of your self) is your and yours alone. Who cares? Do not confuse that with your *reputation* which is the *opinion* of (ok, loosely defined) the public of you. You do not own and therefore control the content of mens minds. You do not own your reputation.

Again, my question is: What gives *you* the right to control my physical property? You can whine all day about what the effects might be. But what gives you the RIGHT?

Kerem Tibuk January 14, 2010 at 12:46 am

Jeffrey,

As you know, before Mises’ ground breaking insight regarding the calculation problem in socialism, there were still arguments being made mostly in parallel with this article. Capitalist claimed there would be an incentive problem and socialist claimed problems would be dealt with, similar to the claims made in this article.

But these are shallow arguments. The nail in the coffin, the deciding factor for people who know and care about economics is the calculation problem which incentives are irrelevant.

Since this is Mises Inst. and since “calculation problem” is known and understood by every economist associated with this institute it is really interesting none of them wrote a value free economics argument on it.

I am also disappointed in seeing that natural rights ethics is practically dead in Mises Inst, probably died with Rothbard. But that is ok since this is an firstly economics institute and there may be people with different philosophical bends. But at least we have right to see one or two economists writing about the calculation problem regarding IP sociÅŸalism besides hundereds of articles and posts written by you, Kinsella, Fedako and Oliva.

Could you kindly ask one of the economists to think about and write on this subject.

Crosbie Fitch January 14, 2010 at 3:48 am

Well said sneaker.

Kerem, natural rights does indeed provide a path to enlightenment for those people who can’t quite grasp the difference between a state granted monopoly and the natural right of privacy from which our notions of property can easily be seen to derive. It is physical enclosure by the individual that delimits property.

Thus an individual has a natural exclusive right to the writings within their property (from a natural right to exclude others from their private domain).

For example, you have no natural right to copy the words of my manuscript (in my private possession), but if I show, lend or sell it to you such that it is no longer exclusive to me (no longer private to me), then I no longer have any right to prevent you copying that which you now own or have access to.

Intellectual property is thus as natural as material property, in that just as hand crafted baskets cannot be copied except by those who have authorised (or otherwise legitimate) access, nor can manuscripts.

What is unnatural is to give creators of allegedly original work the privilege to prevent people who have legitimate access to that work making and distributing further copies (and now many uses/performances/communications).

Patent is also unnatural in giving those who register allegedly novel designs a reproduction monopoly.

Abolish copyright and patent and you’re left with natural IP. And yes, it can be exchanged for money in what is consequently a free market.

Given the Internet, it’s also far easier to do multilateral deals between a single producer of an intellectual work and millions of customers. A million Harry Potter fans pledging a dollar each in exchange for a sequel. Any printed copies can then be produced in a free market (by anyone, without monopoly).

Peter Surda January 14, 2010 at 4:11 am

@Silas Barta:
> All of Gennady Stolyarov II’s 1-4 claims are just as
> true for producers of physical goods.
No, only for 3 and 4. 1 and 2 make no sense with rival goods.

> Is he ready to abolish physical property rights?
His argument in the strictest sense isn’t that abolishment of IP is desirable, rather that IP is not necessary for writers to prosper (which is a claim some IP proponents make).

Artisan January 14, 2010 at 4:17 am

The Creative Genius

Far above the millions that come and pass away tower the pioneers, the men whose deeds and ideas cut out new paths for mankind. For the pioneering genius to create is the essence of life. To live means for him to create.

The activities of these prodigious men cannot be fully subsumed under the praxeological concept of labor. They are not labor because they are for the genius not means, but ends in themselves. He lives in creating and inventing. For him there is not leisure, only intermissions of temporary sterility and frustration. His incentive is not the desire to bring about a result, but the act of producing it. The accomplishment gratifies him neither mediately nor immediately. It does not gratify him mediately because his fellow men at best are unconcerned about it, more often even greet it with taunts, sneers, and persecution. Many a genius could have used his gifts to render his life agreeable and joyful; he did not even consider such a possibility and chose the thorny path without hesitation. The genius wants to accomplish what he considers his mission, even if he knows that he moves toward his own disaster.
Neither does the genius derive immediate gratification from his creative activities. Creating is for him agony and torment, a ceaseless excruciating struggle against internal and external obstacles; it consumes and crushes him. The Austrian poet Grillparzer has depicted this in a touching poem “Farewell to Gastein.” [13] We may assume that in writing it he thought not only of his own sorrows and tribulations but also of the greater sufferings of a much greater man, of Beethoven, whose fate resembled his own and whom he understood, through devoted affection and sympathetic appreciation, better than any other of his contemporaries. Nietzsche compared himself to the flame that insatiably consumes and destroys itself.[14] Such agonies are phenomena which have nothing in common with the connotations generally attached to the notions of work and labor, production and success, breadwinning and enjoyment of life.

The achievements of the creative innovator, his thoughts and theories, his poems, paintings, and compositions, cannot be classified praxeologically as products of labor. They are not the outcome of [p. 140] the employment of labor which could have been devoted to the production of other amenities for the “production” of a masterpiece of philosophy, art, or literature. Thinkers, poets, and artists are sometimes unfit to accomplish any other work. At any rate, the time and toil which they devote to creative activities are not withheld from employment for other purposes. Conditions may sometimes doom to sterility a man who would have had the power to bring forth things unheard of; they may leave him no alternative other than to die from starvation or to use all his forces in the struggle for mere physical survival. But if the genius succeeds in achieving his goals, nobody but himself pays the “costs” incurred. Goethe was perhaps in some respects hampered by his functions at the court of Weimar. But certainly he would not have accomplished more in his official duties as minister of state, theater manager, and administrator of mines if he had not written his plays, poems, and novels.

http://mises.org/humanaction/chap7sec3.asp

I know some here won’t even understand any difference of “free will” or differences of “human action” if you prefer to be made between “selling oranges” and “writing a masterpiece of literature”, which explains why they see “no damage to be done” with IP abolition.

Others insist the difference of quality described above is important to humans : so they argue that if free will is the essence of natural law, than every objective aspect of its quality, should also be integrated to property rights.

I think the director of this site, Mr Tucker, understands the difference but won’t allow it to play a role…

The following quote by LvMises I find however, strongly leans to the other more differentiated type of libertarian interpretation even though its title “creative genius” leaves quite some room for interpretation. The key concept there is the description of “activities with ends in themselves” though (which excludes hence the engineering of patented can openers, and of course the selling of oranges.)

These human activities could be protected some ways as being some particular expression of individual free will.

Peter Surda January 14, 2010 at 4:24 am

@Silas
> But what if someone wrote an aritcle showing how
> you can make decent money as a baker without
> physical property rights, because, hey, you can come
> up with some clever ways to make money even as
> people are allowed to take your output.
While this may be correct if the absence of physical property rights was partial, it wouldn’t work if it was complete. Without any physical property rights, it would be impossible to earn any money whatsoever. You are misinterpreting the contents of the claim and making an analogy which is not even true. The claim made in the article isn’t that IP is undesirable but unnecessary from economic point of view.

Kerem Tibuk January 14, 2010 at 4:31 am

“Your comment has been received and held for approval by the blog owner.”

Can someone explain this. This has happened before and some o my comments got lost.

Kerem Tibuk January 14, 2010 at 4:32 am

I will try again,

Crosbie Fitch,

I am not going into a debate about natural rights and property here. I have done that many times before. This post is about the utilitarian argument, and a shallow one at that. On another site it may be sufficient. But in here, Mises Inst, you have the ultimate utilitarian argument called “calculation problem” and no one bothers to apply it to IP socialism.

I think it applies and proves that in absence of private property rights regarding IP, there would be not sophisticated division of labor thus an industry. An economist familiar with the calculation argument may think otherwise. I just want to see it.

And I think it is kind of telling why there are no articles regarding this issue: Economists work on issues regarding economics in general and some people who are not economists but still affiliated like Kinsella, Tucker, Oliva, Fedako, etc do their own thing. Their own thing being IP socialism.

IP socialism have many problems regarding ethics. But it also has problems regarding economics

Peter Surda January 14, 2010 at 4:32 am

@Silas
> … my past thorough refutations …
Your refutations have been thoroughly refuted on the very webpage you link to! Oh the arrogance. To reiterate:
- you are using the value definition of property, which is bogus
- from the non-rivalry of production you incorrectly deduce the non-rivalry in consumption
- as long as bundling is possible, there is no economic calculation argument

Peter Surda January 14, 2010 at 4:50 am

@Silas
> Sure, I’ll do that, just as soon as you take a moment
> and justify the imposition of physical property.
With rival goods, the right to exclude third parties is a necessary requirement in order to consume the good. With non-rival goods, it is not. Therefore, if we assume that consumption is desirable (quite easy, otherwise everyone would die), property rights on rival goods are necessary. This of course does not show how the property should be distributed, which is a different debate, it merely proves their necessity, which refutes your arguments.

pro-IP-libertarian January 14, 2010 at 4:57 am

Peter Surda-

You are, just like Silas, using the value definition of property (property right = right to value). In previous discussions on the site it has been shown to be bogus even if applied to material goods.

I wasn’t present for those discussions. If you want me to address your point please give a concise explanation of what you mean, preferably in the context of the current discussion.

pro-IP-libertarian January 14, 2010 at 5:09 am

Shay-

Good ideas are scarce; there are only so many, and it takes thinking to produce more. But this scarcity doesn’t have any effect on the scarcity of objects employing them. Making a copy of a book doesn’t “use up” an idea,…

It does have an effect on the creator’s ability to profit from the ideas. If I make copies of Harry Potter’s books and sell or distribute them I diminish the author’s ability to sell them. Same thing for alternate uses of ideas/images: If I make knock-off Star Wars figures the creator or rights owner is going to be able to sell less of them.

pro-IP-libertarian January 14, 2010 at 5:18 am

Curt Howland-

You consider your personal fear to be so important that you’re ready to enslave everyone else to your idea of right and wrong?

It’s not “slavery” any more than keeping uninvited people out of my legal dwelling is “slavery”. Anyone is free to create or purchase their own competing ideas any time they want.

Well, no, the creator _releases_ their work.

Under IP, they only release it for certain uses and under certain conditions.

The “floppy with X’s book on it” if stolen is THEFT, because it is stolen. The thief owes restitution no less than if the object stolen was a jewel necklace.

Right. But it is also theft if someone took the disk, copied and returned it, and then was printing copies of it and selling them or distributing them for free. The copies diminish X’s ability to profit from his creation, just like stealing the original would have.

Peter Surda January 14, 2010 at 5:22 am

@pro-IP-libertarian:
Regrettably, I’m not sure about the original blog post, but I think this: http://blog.mises.org/archives/011042.asp

I’ll try to reiterate: If there was right to value, any action whatsoever that lowers the value of a good would be prohibited. That would make almost all human action illegal, especially competition and the emergence of markets. It would be illegal to sell substitutes to any good or express personal opinions about any good. Furthermore, it is nigh impossible to predict of one’s action would decrease the value of some goods, making it impossible to forsee the legal consequences of one’s actions. Therefore, we must reject the value based approach.

There is also a related definition based on value (property right = right to the “fruits” of one’s labour), I don’t think others addressed it much here, but it has been debunked by Block, although he was talking about externalities in general. Basically, if one has a right to all the fruits of one’s actions, it would make all positive externalities property rights violations. Anything causally related to person A’s actions would become his full or partial property and require his permission. Again this leads to absurd consequences.

You can avoid these problems by using the integrity based approach (property right = right to integrity of the property). This allows a theory that is more suitable for reflecting the reality. You sound like an intelligent person, so should be able to see that in light of this definition, most of your arguments lose their applicability with regards to immaterial goods. Alternatively, you could try to present a different definition that would not suffer from the absurdities shown above, something in which IP proponents so far have failed.

pro-IP-libertarian January 14, 2010 at 5:29 am

Micah-

What’s the difference between “good” IP and “not good” IP that makes “good” IP scarce and “not good” IP not scarce? It sounds like a subjective value is being placed on IP to make it scarce.

Markets are partly based on subjective value. I may not value Lawrence Welk records but someone else likely does. Same for other goods, although when one gets to commodity goods there is less subjective value. Art auctions are the other end of the spectrum, where the value is mostly subjective.

If I hate Harry Potter and want nothing to do with it, does that mean it is not scarce to me, but only scarce to those that think it is “good”?

Yes. But note that the market (those to whom it is valuable) gives an indication of value. You may not choose to spend your own money on it, but if you found a book you would be foolish to throw it away because you could resell it.

pro-IP-libertarian January 14, 2010 at 5:37 am

sneaker-

What gives you the right to tell/force me to not play/sing/print a piece of music written by *you* but realized by the exercise of *my* property rights?

Because nothing is stopping you from creating your own music. The only inhibition of “your” property rights is preventing you from profiting from someone else’s work. Why do you think you should profit from someone else’s work?

pro-IP-libertarian January 14, 2010 at 5:46 am

Crosbie Fitch-

For example, you have no natural right to copy the words of my manuscript (in my private possession), but if I show, lend or sell it to you such that it is no longer exclusive to me (no longer private to me), then I no longer have any right to prevent you copying that which you now own or have access to.

I do have the right to only show, sell, or lend a work to you under the condition that you don’t sell or distribute copies of it. Same for selling you a car under the condition that you don’t manufacture copies of the unique technology contained therein.(Although you are free to copy public domain technology or create your own.) It’s similar to allowing you on my property when I invite you for lunch, but not to sneak on at night and steal my chickens. If you can’t stand not being able to copy and sell my work, don’t buy it.

pro-IP-libertarian January 14, 2010 at 5:56 am

Artisan-

I haven’t read Human Action, but from your quote Mises seems to be engaging in some strange line-drawing. Because certainly many “geniuses” create works that are as valuable as the stereotypical manufactered widget. Some much, much more valuable because it is a more valuable or cheaper type of widget altogether. I’m not familiar enough with Mises work to know whether he addresses these issues more satisfactorily elsewhere.

Peter Surda January 14, 2010 at 6:16 am

@pro-IP-libertarian:
> I do have the right to only show, sell, or lend a work to
> you under the condition that you don’t sell or
> distribute copies of it.
This is completely correct, however such an arrangement cannot bind third parties. IP and contracts are disjunct sets, IP allows you to sue people that are not a party to a contract with you.

Kerem Tibuk January 14, 2010 at 6:40 am

“This is completely correct, however such an arrangement cannot bind third parties. IP and contracts are disjunct sets, IP allows you to sue people that are not a party to a contract with you.”

This contracts, third parties, copyrights confuses a lot of people, and mostly IP socialists.

Firstly, a contract that binds future human action is not a valid contract. If it was a valid contract, then third party objection would be relevant.

Thus copyright contracts are not contracts binding one persons actions in exchange for some other good or money. They are contracts regarding the exchange of two alienable things, in this case one being IP the other money, with certain conditions.

Therefore third party argument is invalid.

If one of the parties of the copyright contract violates the conditions he is personally responsible because he violated the terms regarding an exchange of two alienable things.

If a third party gets involved they are not violating any contract, but they are egressing against the property. Which are two different things.

Person A rents a car from Person B for 2 days on certain terms. This means Person A and Person B made a contract regarding the exchange of conditional ownership of a car against certain amount of money.

If Person A violates the terms of the contract he is responsible.

But this doesn’t mean Person C who steals the car gets off the hook because he doesn’t have a contract with Person B.

In short, contracts (mainly copyright contracts) do not create IP. Rather they are a tool used in the exchange of IP.

pro-IP-libertarian January 14, 2010 at 6:59 am

Peter Serda-

If there was right to value, any action whatsoever that lowers the value of a good would be prohibited. That would make almost all human action illegal, especially competition and the emergence of markets. It would be illegal to sell substitutes to any good or express personal opinions about any good. Furthermore, it is nigh impossible to predict of one’s action would decrease the value of some goods, making it impossible to forsee the legal consequences of one’s actions. Therefore, we must reject the value based approach.

I agree that the implications of this are absurd because it relies on assuming the present state should be static and any value creation would somehow “upset” this balance.

The terminology here also seems unfortunate and misleading, since the approach seems to be focusing on collectivist claims limiting individual value creation, rather than value creation by the individual.

As a sidenote the hostility to libel, slander, and defamation laws is unusual, because you can easily ruin and destroy someone with defamatory and misleading speech. Defamatory and misleading speech is also against the libertarian prohibition of fraud, so that is even more strange.

There is also a related definition based on value (property right = right to the “fruits” of one’s labour), I don’t think others addressed it much here, but it has been debunked by Block, although he was talking about externalities in general. Basically, if one has a right to all the fruits of one’s actions, it would make all positive externalities property rights violations. Anything causally related to person A’s actions would become his full or partial property and require his permission. Again this leads to absurd consequences.

I’m not so sure about this. It seems like it results in absurdities only when reduced to absurdities. It seems odd that physical homesteading is an accepted means of vesting property rights, but the process of creation or invention, which can be thought of as a kind of intellectual homesteading, is allegedly not an acceptable means of vesting property rights. Parsing out whether a creation was actually unique and the result of a particular person or entity’s creative or intellectual labor, while imperfect, is not an impossible task. Note that historical incidences of physical homesteading and the like are not perfect either, but the consequences of those are generally accepted.

You can avoid these problems by using the integrity based approach (property right = right to integrity of the property). This allows a theory that is more suitable for reflecting the reality.

In my opinion this approach results in its own set of more severe (and collectivist/immoral) absurdities. Here, a copycat publisher would be permitted to copy an author’s work and sell it as their own. That is obviously absurd, just as if the author had homesteaded a field of crops and the town drunk rushed onto their property at harvest time while the author was away and declared that the farm and crops was theirs. Absurd, immoral, a violation of natural rights, and collectvist. (Collectvist in that it treats public claims on an author’s labor and profits as superior to the author’s own.)

pro-IP-libertarian January 14, 2010 at 7:09 am

Peter Serda-

…however such an arrangement cannot bind third parties…

One could include language with the product on initial sale that any re-sale, transfer, or gift of the product requires that transferer inform the recipient that there is only right to possession and use, not duplication. Language could also be placed on the product stating that duplication is not permitted, regardless of how it comes into possession.

Peter Surda January 14, 2010 at 7:53 am

Dear Kerem,

your post is illogical nonsense.

Crosbie Fitch January 14, 2010 at 8:22 am

Kerem, you are right, a contract only concerns the contingent exchange of goods (an equitable agreement). It can’t alienate someone from their liberty – even if the respective party wishes to surrender their liberty to copy what they receive or are given access to.

Just as someone cannot be forced to perform the work they had agreed $100 would be equitable payment for, nor can they surrender their liberty to produce copies or further disseminate what has been communicated to them (however much money is offered).

The 3rd party aspect is redundant. Contracts don’t constitute micro-legislation, and are thus unable to enact micro-privileges.

A contract can specify a reward to be paid in the event that after some period there is no evidence that someone has disclosed what they’ve been told, or manufactured a copy of the design they’ve been entrusted with. However, a reward for not utilising a liberty one has not been alienated from, is not the same as prosecution for taking back a liberty alienated from them (by contract if it was possible).

Thus, it is not unethical, and should indeed be encouraged for people to take back the liberty alienated from them by anachronistic 18th century privileges such as copyright and patent.

Peter Surda January 14, 2010 at 8:49 am

Dear pro-IP-libertarian:
> The terminology here also seems unfortunate and
> misleading, since the approach seems to be
> focusing on collectivist claims limiting individual
> value creation, rather than value creation by the
> individual.
Maybe the problem lies in the definition of the word value. In my view, value of something is a subjective judgement of utility that thing to oneself, and on free market is reflected in prices. From this point of view, one cannot own a value of anything as that would require ownership of people’s minds.

> As a sidenote the hostility to libel, slander, and
> defamation laws is unusual, because you can easily
> ruin and destroy someone with defamatory and
> misleading speech.
This has been handled already by several libertarian theorist, my favourite is as usually Block. One can assume for example, if there were no laws against libel and slander, people would tend to be more skeptical about outrageous claims and would expect the would-be libeller to provide some facts to back up their claims. 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.

> It seems like it results in absurdities only when
> reduced to absurdities.
My point is that there is no clear way to determine at what stage of the causality to stop. The IP proponents I debated completely ignore this, and continue to assert that the boundary is somehow “obvious” without explaining anything.

> Parsing out whether a creation was actually unique
> and the result of a particular person or entity’s
> creative or intellectual labor, while imperfect, is not
> an impossible task.
There is another issue, there is no clear way to establish immaterial identity. How do you know that two immaterial goods are identical or only similar but unique? You don’t. You can merely interpret both and see if their differences are “significant”. From the strict point of view, they are always different. So, even if one accepts that homesteading an idea is valid, one still needs to prove that this also homesteads “the other ideas”.

So, with this approach, you have a graph with two axes: causality and similarity, and then you draw an arbitrary curve on it and call it “property”. I reject this approach, it’s completely unscientific.

With rival goods, there is no need for such metaphysical approach. Property is determined by the four dimensions (space & time), it cannot suddenly “jump” to other objects merely because they are similar or causally related.

> Here, a copycat publisher would be permitted to
> copy an author’s work and sell it as their own.
This is, from the narrow point of view, correct. However, it is a different thing altogether to assume that such an action has no consequences. On the contrary, his reputation and future business potential would dramatically decrease and in some cases he would be liable for damages to his customers because of fraud. We see it actually in the current state of world too, plagiarism of works that are either public domain or have permissible copyright notices, or even those that you wrote yourself is still plagiarism and often has exactly the same consequences as pointed out.

> Absurd, immoral, a violation of natural rights, and
> collectvist.
Immoral indeed, but why the others? Nowadays, there is no special provision in the law against plagiarism, yet the there is no problem dealing with plagiarists.

> One could include language with the product on
> initial sale that any re-sale, transfer, or gift of the
> product requires that transferer inform the recipient
> that there is only right to possession and use, not
> duplication.
Which, again, cannot bind third parties. It might create a liability on the side of the buyer but not a third party.

> Language could also be placed on the product
> stating that duplication is not permitted, regardless
> of how it comes into possession.
This can’t bind third parties either. It only binds those that accept the contract. Even nowadays there is an issue about the enforceability of so called shrink wrap contracts.

If this approach was valid, I could “homestead” any metaphysical entity and claim that this gives me the right to prevent other people from acting in certain way I consider “infringing”. There is no way to objectively determine the boundaries of immaterial entities or their “infringement”, therefore, even if homesteading them was recognised, has no practical effect whatsoever.

Curt Howland January 14, 2010 at 10:46 am

ABR, if you get down this far, I am very pleased by your reply. The imposition of I.P. is the reason for my objection to I.P., I’m very much in favor of artists making money from their creation.

The only problem really is one of finding mechanisms other than statute law to do so. It is my opinion that, as with every other form of competition, the free market will evolve processes for such remuneration because there in fact is demand for the creation of art.

Pro-IP-Lib, your argument depends upon restraining 3rd parties to contracts they never agreed to. That is why I.P. is slavery. It means some people own the actions of others.

I find a book by the side of the road, read it, copy it, give it away, I have done NOTHING WRONG. To assume I have is to assume that my life and my labors belong to someone else, that I cannot enter into mutually agreed upon acts, such as transferring a copy of something I found, because of the “ownership” of someone not party to that transaction.

To presume ownership of someone else’s future actions has no other name than slavery.

Justin Zuweig January 14, 2010 at 10:51 am

I love you all.

Great discussions entwined with the echoes of past and future disruprive accomplishments.

Let’s prey the world will continue to turn around and the spirit will hover still on the mist of the time, as it has been doing for the perenial eternity in the dying worlds and those hopping to be created.

The creator has not put IP rights on the Fiat Lux, yet nobody has dared to copy its knowhow.

Who will try to make a new world through reverse engineering of whatever he has put up above the chaos?

Silas Barta January 14, 2010 at 11:27 am

@Peter_Surda: I’ll try to reiterate: If there was right to value, any action whatsoever that lowers the value of a good would be prohibited

Then why do you base your support of rights to EM frequencies on “rights to value” — specifically, the right to the value of EM waves that comes from being able to transmit information on them? Why is the argument that, “hey, infinite people can transmit EM waves at the same frequency and time” insufficient to convince you that EM waves aren’t scarce?

Because it’s scarce in the sense of *values*, a distinction I tried to make before, which everyone tried to dismiss, but no one tried to comprehend. Some people *want* a wave used a certain way. Others don’t want it used that way. This mere conflict of wants suffices to say that radio waves are scarce.

It is the same conflict that exists over “scarce” property, which is scarce in exactly the same sense: people disagree about how it is to be used.

But people can have the exact same conflict over an idea! And don’t tell me that one is “real and physical” while the other isn’t. If ideas don’t have a physical, observable presence, how do people ever know that their IP is being infringed so they know who to sue? Think about it.

Silas Barta January 14, 2010 at 11:34 am

Curt_Howland, if you get down this far, I am very pleased by your reply. The imposition of property rights is the reason for my objection to property rights, I’m very much in favor of producers making money from their product.

The only problem really is one of finding mechanisms other than statute law to do so. It is my opinion that, as with every other form of competition, the free market will evolve processes for such remuneration because there in fact is demand for the creation of products.

Curt_Howland, your argument depends upon restraining 3rd parties to contracts they never agreed to. That is why property rights are slavery. It means some people own the actions of others.

I find a cornstalk by the side of the road, eat it, give it away, I have done NOTHING WRONG. To assume I have is to assume that my life and my labors belong to someone else, that I cannot enter into mutually agreed upon acts, such as transferring something I found, because of the “ownership” of someone not party to that transaction.

To presume ownership of someone else’s future actions has no other name than slavery.

Tu quoque: Forcing people to re-evaluate their positions since before the fall of Rome ™.

Justin Zuweig January 14, 2010 at 11:50 am

It is hard to understand.
Children and fools have the same kind of thoughtfulness: if someone says to have invented the snowball they will candidly agree to by one, for the sake of playing smelting it into water.
Make some Lavoisier efforts to bring back the waste into something new and call it yours.
There is always the chance to sell it to your acquaintances.
Nihil novum sub solem.

Curt Howland January 14, 2010 at 12:13 pm

Silas, thank you for the praise for my argument by copying it so.

In fact, I find your re-wording very interesting.

The free market has in fact found a mechanism for remuneration for products: Property rights.

Property rights reduce contention over that which is contentious, what is termed “scarce”.

I’m glad to see your support for private property. Thank you.

Silas Barta January 14, 2010 at 12:25 pm

@Curt_Howland: Markets *presuppose* property rights, they are not a market solution. I could just as easily say that the free market has found a mechanism for remuneration for discovery of better ideas: intellectual property rights.

Then you’d say, no, physical property rights are “different” because they’re actually justified, or people like them more, or something equally circular or ad-hoc, and then we’d start the game all over again.

Shay January 14, 2010 at 12:40 pm

pro-IP-libertarian wrote, “The only inhibition of “your” property rights is preventing you from profiting from someone else’s work. Why do you think you should profit from someone else’s work?”

Are you seriously suggesting that I should not profit from positive externalities?

Walt D. January 14, 2010 at 12:52 pm

Silas:
To claim that only one person can broadcast on a an EM frequency presupposes that everyone is stuck with obsolete analog technology. This is more of a State Control issue – the State wants to control who can and cannot broadcast. Modern communication protocols, such as TCP/IP allow for multiple packets of information to be sent down he same communication line. I think all TV broadcasts in the US are now digital.

Russ January 14, 2010 at 12:53 pm

Silas Barta wrote:

“It is the same conflict that exists over “scarce” property, which is scarce in exactly the same sense: people disagree about how it is to be used.”

This isn’t at all the same thing with respect to normal property or even EM spectrum that it is with IP. Normal property and EM communication channels are scarce, so only one use can be made of them at a given time. This is not so with patterns. Any number of people can use them at the same time, because they are easily copiable. (But you knew that. *grin*) The disagreement is not over how the patterns will be used, but simply over whether somebody gets paid.

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?

Curt Howland January 14, 2010 at 1:19 pm

Silas, if you want to assert that “intellectual property” is a market force, then repeal the statute laws that support it.

If it continues, then I will agree. Until those laws are repealed, it is not a “market” force.

“Markets presuppose property rights”? Excellent! Then you agree that what we call property rights pre-exist any government.

Artisan January 14, 2010 at 1:31 pm

@pro-IP-libertarian

I’m not sure what you’re saying but… no Mises doesn’t go more into details as far as I know

Artisan-

I haven’t read Human Action, but from your quote Mises seems to be engaging in some strange line-drawing. Because certainly many “geniuses” create works that are as valuable as the stereotypical manufactered widget. Some much, much more valuable because it is a more valuable or cheaper type of widget altogether. I’m not familiar enough with Mises work to know whether he addresses these issues more satisfactorily elsewhere.

Peter Surda January 14, 2010 at 2:40 pm

@Silas:
> Then why do you base your support of rights to EM
> frequencies on “rights to value” …
I don’t and I wrote that several times. Why do you repeat that? You base your support for rights on value. I consider the approach invalid.

> Why is the argument that, “hey, infinite people
> can transmit EM waves at the same frequency
> and time” insufficient to convince you that EM
> waves aren’t scarce?
Because transmitting EM waves is not consumption of EM spectrum. Do you have trouble reading? I wrote it several times. The fact that one transmission doesn’t prevent other transmission is irrelevant. What is relevant is that it prevents the reception thereof. There is no need to value anything. The phenomenon is the same as with any other rival good. On the other hand, it is absent with IP. No matter how many DVDs with Avatar I burn, it does not prevent anybody whatsoever from watching Avatar. Of course, it is also true that me burning a DVD with Avatar does not prevent other people from burning DVDs with Avatar, but it is completely irrelevant.

Just because an activity is non-rival, you cannot conclude that all the goods it affects are non-rival too.

Russ January 14, 2010 at 2:58 pm

Peter Surda wrote:

“The fact that one transmission doesn’t prevent other transmission is irrelevant. What is relevant is that it prevents the reception thereof. There is no need to value anything.”

Actually, there is valuing going on here. We value EM spectrum for its utility as communication channels. If we didn’t, then we wouldn’t have EM spectrum rights, because nobody would care if one transmission interfered with another. So EM rights are based (partly) on our valuing of EM communication channels. I’m not sure if that’s what Silas meant, though.

Silas still doesn’t address the scarcity problem, though. Yes, we value patterns. But those patterns are not scarce, so one person’s using a pattern does not prevent others (including the creator) from doing the same. Granted, the creator cannot as easily “use” a pattern to make money without IP. But my position there is still that if a person plans to make lots of money by creating an easily copyable pattern, then he simply has a bad business plan.

If Silas thinks that getting rid of IP would seriously impair the quality of life in our society, then the burden is on him to explain how that would be, since the enforcement of IP would intrude on normal property rights. Or if Silas thinks that creators of patterns have some moral right to use force to prop up their otherwise poor business plans, just by virtue of them being the creators of those patterns, then he needs to justify that.

Silas Barta January 14, 2010 at 4:05 pm

@Walt_D.: It’s not a state control issue. Yes, there are better ways to use the EM spectrum, but information transmission capacity is still limited, meaning the need to assign property rights. Please get informed on this issue.

@Russ: The disagreement is not over how the patterns will be used, but simply over whether somebody gets paid.

No, this is a strawman. IP is about exclusive rights to use a pattern, whether or not the rightsholder wants money. Like with physical property, people may instead prefer to excercise their right to the property for non-monetary reason. It’s just that money is a common reason to excercise the right (again like with physical property).

Normal property and EM communication channels are scarce.

What is a communication channel though? As I’ve argued before, it’s really just “the assumption that no one else will try to broadcast at this frequency”. And why does the possibility of transmitting information on this channel mean rights should be assigned in it?

As for the utilitarian issues, it’s pretty simple. You just pull over all the standard points about property, and recognize that they’re just as valid, even though ideas aren’t scarce after production.

Remember, everything Gennedy listed as being a “business” model is *already* possible today. Every method not requiring IP is available today, unless it, um, requiring infringing on works that, er, wouldn’t exist except for IP rights. On top of that, IP allows additional Pareto improvements: cases where a worker prefers to produce an idea, and the users of it prefer its existence, but it can’t otherwise happen unless there are IP rights.

@Curt_Howland: Silas, if you want to assert that “intellectual property” is a market force, then repeal the statute laws that support it.

And if you want to assert that “physical property” is a market force, then repeat the statutue laws that support it.

“Markets presuppose property rights”? Excellent! Then you agree that what we call property rights pre-exist any government.

Property rights pre-exist government, but what does that have to do with markets pre-supposing them? My point was that markets require recognition of property rights *before* they can exist. Saying that the markets *produce* the property rights is getting it reversed. And in any case, the same situation exists in IP. You need IP rights before people can trade such rights, and before people can produce the works that would make trading exclusive rights in them worthwhile. Without IP, you don’t get the works that require them to exist.

@Peter_Surda: What is relevant is that it prevents the reception thereof. 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? 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.

And your premise is false as well: you DO still receive the transmitted EM waves. It’s just that can’t extract the *information*. But again, why does this matter? 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?

You have yet to answer this instead of defining away the problem.

Russ January 14, 2010 at 4:27 pm

Silas Barta wrote:

“…IP is about exclusive rights to use a pattern, whether or not the rightsholder wants money. Like with physical property, people may instead prefer to excercise their right to the property for non-monetary reason. It’s just that money is a common reason to excercise the right (again like with physical property).”

Whatever. It makes no difference. The fact remains that multiple people can use the same pattern at the same time, and all can get some use out of it. So IP cannot be justified by scarcity.

“What is a communication channel though? As I’ve argued before, it’s really just “the assumption that no one else will try to broadcast at this frequency”.”

Yeah. So?

“And why does the possibility of transmitting information on this channel mean rights should be assigned in it?”

Because of the utility. Because we value the use made of the channels.

“As for the utilitarian issues, it’s pretty simple. You just pull over all the standard points about property, and recognize that they’re just as valid, even though ideas aren’t scarce after production.”

Now who’s handwaving? Basically, what you just said was “You just pretend IP is just like normal property, even though in reality it’s completely different after production”!

Before you do something so drastic, you have to justify that! That means, from a utilitarian viewpoint, that you have to demonstrate the utility added from IP, or conversely the loss of utility from a lack of IP.

“Remember, everything Gennedy listed as being a “business” model is *already* possible today.”

You mean to argue that “pattern producers” could use these models now, but don’t? Well, of course they don’t! Of course the pattern producers prefer the IP model, because it coerces others into paying them more money! That doesn’t prove anything!

“On top of that, IP allows additional Pareto improvements: cases where a worker prefers to produce an idea, and the users of it prefer its existence, but it can’t otherwise happen unless there are IP rights.”

The burden is on you to prove that “it can’t otherwise happen” without IP. If a bunch of people want a product, then they can pay for the *act of production*, instead of the product itself. Writers used to do this by organizing subscriptions which would be paid before the writer produced the work in question. A team of programmers could incorporate and charge other corporations for modifying open source software to their specifications. Etc. Since enforcement of IP involves telling others they can’t do things with their own physical property, and since physical property rights are so fundamental to liberty, then if you care about liberty, you have to come up with a pretty good justification for IP, which you have not done yet.

pro-IP-libertarian January 14, 2010 at 4:46 pm

Peter Surda-

Maybe the problem lies in the definition of the word value. In my view, value of something is a subjective judgement of utility that thing to oneself, and on free market is reflected in prices. From this point of view, one cannot own a value of anything as that would require ownership of people’s minds.

Just another change in semantics. If I recall correctly even discussion of physical homesteading refers to changing the “value” of goods with one’s labor. Adding some collectivist claims and calling it the “value” approach seems like a semantic game. But that’s neither here nor there.

One can assume for example, if there were no laws against libel and slander, people would tend to be more skeptical about outrageous claims and would expect the would-be libeller to provide some facts to back up their claims.

I’m unconvinced. People are emotional, react in crowds, and don’t easily change initial opinions. 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.

There is no way to determine where to draw the line.

Sure there is, the current libel, slander, defamation, “false light”, invasion of privacy, etc. laws.

There is a general libertarian prohibition on fraud. Which includes a general distaste of and aversion to dishonesty. Which to me makes the slander and defamation laws a strange target for academic libertarians to go after.(Maybe someone they disliked was being slandered and they got their kicks or had a vested interest in it continuing. As we see with some anti-IP libertarians, libertarians aren’t immune to the property envy the socialists/collectivists fall for.)

My point is that there is no clear way to determine at what stage of the causality to stop. The IP proponents I debated completely ignore this, and continue to assert that the boundary is somehow “obvious” without explaining anything.

Generally, where current IP draws the line works reasonably well.

So, with this approach, you have a graph with two axes: causality and similarity, and then you draw an arbitrary curve on it and call it “property”. I reject this approach, it’s completely unscientific.

The laws governing physical property like real estate aren’t perfect either – “first to courthouse”, etc. But that seems to work pretty smoothly. The same with intellectual “homesteading” – IP.

However, it is a different thing altogether to assume that such an action has no consequences. On the contrary, his reputation and future business potential would dramatically decrease and in some cases he would be liable for damages to his customers because of fraud.

There is still the absurdity of a copycat publisher having an equal claim on profits from a work as the author themselves. 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.

Immoral indeed, but why the others?

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.

It’s collectivist because members of the public have the same claim on the labor of the creator that the creator does. Anyone with a printer can distribute Harry Potter books, so it becomes the property of the public, the collective.

Which, again, cannot bind third parties. It might create a liability on the side of the buyer but not a third party.

Depends on the facts. If the 2nd buyer was told that only a license to use, and not to copy/sell, was being transferred then they would be bound.

It only binds those that accept the contract. Even nowadays there is an issue about the enforceability of so called shrink wrap contracts.

These were theoreticals, with some exceptions I basically agree with the current IP system. But with the right agreements you could bind with contract law.(Not that I advocate replacing IP with contract law.)

If this approach was valid, I could “homestead” any metaphysical entity and claim that this gives me the right to prevent other people from acting in certain way I consider “infringing”. There is no way to objectively determine the boundaries of immaterial entities or their “infringement”, therefore, even if homesteading them was recognised, has no practical effect whatsoever.

No, the current IP scheme offers a pretty good methodology for establishing what ideas or creations are “homesteaded” or not. So there is practical application.

pro-IP-libertarian January 14, 2010 at 5:00 pm

Curt Howland-

…your argument depends upon restraining 3rd parties to contracts they never agreed to. That is why I.P. is slavery. It means some people own the actions of others.

Not quite. When enforced it just prevents you from using someone else’s work product without permission. You are free to create your own works, use public domain works, purchase other works, etc. That is hardly “slavery”.

I find a book by the side of the road, read it, copy it, give it away, I have done NOTHING WRONG.

Basically, you are correct. (You may have technically violated copyright but you are not likely to be sued, etc.) But if you made multiple copies and were giving them away or reselling them, effecting the author’s ability to profit from them then you would be doing something wrong.

To presume ownership of someone else’s future actions has no other name than slavery.

To presume you have more of a right to profit from someone else’s work than they do is dishonest, collectivist nonsense.

pro-IP-libertarian January 14, 2010 at 5:08 pm

Silas Barta-

The only problem really is one of finding mechanisms other than statute law to do so. It is my opinion that, as with every other form of competition, the free market will evolve processes for such remuneration because there in fact is demand for the creation of products.

Why? IP lawsuits involve a private entity suing another private entity. So even if the government weren’t involved you would still have to pay a mediation service, etc. if there was a dispute. What is so wrong about the current IP system?

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