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Source link: http://archive.mises.org/11494/reducing-the-cost-of-ip-law/

Reducing the Cost of IP Law

January 20, 2010 by

How should the IP system be reformed? For those with a principled, libertarian view of property rights, it is obvious that patent and copyright laws are unjust and should be completely abolished. FULL ARTICLE by Stephan Kinsella

{ 252 comments }

Peter January 29, 2010 at 4:03 am

Okay, so I can print 1 trillion U.S. dollars copies since they are not scarce because two people can have copies at the same time.

Yes…but you can’t print a trillion ounce-of-gold copies – which is precisely why gold is a better money than fiat paper!

Peter January 29, 2010 at 5:15 pm

And do you think it is somehow wrong for a property owner to gain benefit from his property over and over again by keep renting it?

How is that any different than gaining the same benefit once by selling it? You’re confused.

Peter January 29, 2010 at 5:21 pm

You can get linux for free but you want Windows

Most people get Windows for free, and pay for Linux…but who in their right mind would want Windows?

Peter January 29, 2010 at 6:43 pm

IP doesn’t create a positive obligation on other people; it just puts limits on what they can do with their property, like other property rights do.

But other property rights don’t — see Stephan’s post a little above yours!

pro-IP-libertarian January 29, 2010 at 7:52 pm

Peter Surda-

your whole premises rest on an arbitrary definition of “homesteading”. Just like many other IP proponents, you draw an arbitrary line on the causality scale. Maybe it would help if you tried to explain where exactly you draw the line, then you’d realise it’s arbitrary.

Not at all. The first Harry Potter novel is a creation. All duplications, authorized or unauthorized, depend on the first one. Yes, there is causality, but it is relatively easy to identify.

This is just a first step in the argument. In the second one, you need to establish how far the homesteading reaches and what takes priority if there is a conflict. That is the whole point of my objection. Causality does not answer that.

Self-ownership has its own set of proofs in natural rights. One inhabits one’s body first so they own their body and their labor, etc. Otherwise there is some kind of state of slavery – either another person (including parents) or the state would “own” the person so this is rejected. From there you simply branch out to homesteading.

It does not answer whether children’s ownership of themselves or parent’s ownership of themselves takes precedence (logically, the parent’s should, because it is predates the child).

No, rejected by self-ownership. One inhabits one’s body first, even in the womb. Then there are the slavery arguments. Some concessions are made to parents making decisions, etc. but these end on emancipation, adulthood, etc. Plus there are exceptions like fraud, abuse, neglect, other tortious and criminal conduct, etc.

It does not answer whether only “good” influences should be considered, there is no reason why Soviet Union should not co-own Atlas Shrugged. Besides, back to my original objection, there is no way to distinguish between immaterial goods and externalities. But according to theory, you can own the former but not the latter.

The Soviet Union’s claim would be rejected by both self-ownership (otherwise it’s slavery) and homesteading.

Your externality arguments are somewhat nebulous. I adressed the examples you gave. IP owners decide how they are going to profit by weighing what externalities they can forsee. But this isn’t too different from the process with physical goods and there isn’t too much controversy over that.

What is “proper party”? That’s just another arbitrary assumption. Governments also claim that some transactions are invalid without them being involved, but that does not make it true.

In a transaction there is a consensual buyer and a consensual seller. If someone is unilaterally taking property it isn’t a market transaction. And there is no legitimate price signaling occurring.

Exclusion in material goods is not “enforced”, it “is”. It is the natural feature of those things. It exists regardless of laws or people.

Not exactly with land. Physical exclusion in real estate is only truly present when we are talking about very small pieces of land when the owner is present. Plus land ownership and homesteading has to be widely recognized and acknowledged so a market in the asset can occur, if not by the state then by some other body or association.

It is.

Not any more than buying land is. Others are free to homestead or buy land to compete. No one is forcing any exchanges, like what occurs in the “duplication is equivalent to creation” IP model.

This is only valid from your point of view. From my point of view, it’s the opposite: competitors homestead new grounds, and a monopoly prevents them from using it. From my perspective, those new grounds are externalities of the original.

Not just from my view. Doing away with IP creates a public, collectivist claim on individual labor and creates mispricing like socialism does.

Exactly! IP owner, just like anyone else causing externalities, should consider the effects before making his move, instead of complaining how little he gained by using an infeasible business model.

Just because you want to unilaterally take something without paying for it doesn’t make sale of that something “infeasible”.

There are already property rights in the physical, those are sufficient to address the most common and harmful effects of undesired activities.

Right, there are currently IP rights that take care of externalities there as well. If you can argue from the status quo, so may I. Homesteading vests equivalent rights, status quo here I come.

This is merely another stage of the problem (i.e. you are trying to cure the symptom rather than the cause). The illicit photographer trespassed on physical property. When a woman with a miniskirt goes to a street, she needs to make herself informed about the rules regarding photographing that the street owner does (some might permit photos, some might not). There is no need for IP from this perspective.

Not at all, the camera placer might have been an invited guest. I was just illustrating how people are already aware of most of the externalities. People know they have less control over their image when they appear in public as opposed to when they are in their dwelling, etc.

But what does this mean? I fail to see how this can mean owning anything apart from that which is in one’s own head. The line where you draw the distinction between immaterial goods and externalities is arbitrary. That’s what you need to recognise. IP is the claim of ownership of other people’s minds. It does not bother you here, but it bothers you with children and Ayn Rand. You need to explain this dichotomy.

You are mixing your lack of awareness about self-ownership here. That addresses the issue of children, Ayn Rand, and the foundation of homesteading.

IP is not claiming “ownership” of other people’s minds, merely one’s own creations for a time. Anti-IP, on the other hand, results in collectivist claims on individual labor and the mispricing of intellectual property creation.

Peter January 29, 2010 at 9:06 pm

I don’t see how, without EM spectrum rights. After all, if the land in between the two plots is not yours, how can you have the right to pass your radio waves through that property that you do not own?

The question isn’t “how can you have the right to pass your radio waves through that property that you do not own?”, the question is: who has the right to stop you? If your transmission doesn’t interfere with the current owners’ use of their properties, the answer is obvious: nobody. Hence, you have that right, because you have all rights that don’t interfere with anyone else’s! So when a latecomer starts interfering with your use of your property, he’s at fault.

Peter January 29, 2010 at 11:10 pm

Theoretically, you could use and trade real property without exclusion but the value would be greatly reduced.

No. The value you could personally extract from it would be reduced, in the sense that it would sell for less; but the total value, to everyone, would be massively increased. If you could use real property without exclusion, that would be an unalloyed good.

Peter January 29, 2010 at 11:20 pm

Exclusion isn’t necessary to use real estate either. You could squeeze a large number of people into the average 3br 2 ba house

So? How does that indicate that exclusion isn’t necessary? You can drive my car…but if you do, I can’t drive my car at the same time. If you squeeze all those people into my house, it will certainly interfere with my use of my house!

pro-IP-libertarian January 30, 2010 at 12:21 am

Jay Lakner-

Do you believe that Harry Potter the book is the same as (or similar to) Harry Potter the movie?

No, one is a novel and the other is a film based on it. Rowling created the first copy of the novel through her labor – thinking and writing. This can be thought of as intellectual homesteading. It is easy to see that someone making an unauthorized copy of the novel is not creating, they are duplicating. They did not do an equivalent amount of labor and indeed most people probably could not perform the same labor. (Although they are free to try – do their own homesteading – as long as they don’t duplicate.) And importantly, they would not have anything to duplicate if Rowling had not written – created – the first novel.

Or, do you agree with me that they are totally different and the perceived similarity is just a result of the subjective meaning humans place upon them?

No, they aren’t totally different because they have the same main plot, a lot of the same scenes, most of the same characters, etc. They are different because they are different mediums – film versus novel – and different mediums have different limitations. One of the main limitations being budget. They could have a film that followed the book exactly but it would wind up being twenty hours or more, very slow moving, and very expensive.

It still sounds like you are trying to equate creation with duplication. They are different. Rowling wrote the first novel (longhand, if memory serves, but this is unimportant) and any other duplicate depends on this.

pro-IP-libertarian January 30, 2010 at 12:43 am

Peter-

The question isn’t “how can you have the right to pass your radio waves through that property that you do not own?”, the question is: who has the right to stop you? If your transmission doesn’t interfere with the current owners’ use of their properties, the answer is obvious: nobody. Hence, you have that right, because you have all rights that don’t interfere with anyone else’s! So when a latecomer starts interfering with your use of your property, he’s at fault.

This isn’t really what we were talking about. Radio waves of certain frequencies are allowed because they don’t hurt anyone and are generally a public benefit. But you couldn’t, for example, beam high intensity microwaves at someone because that would be assault, battery, harassment, possible attempted murder, etc.

Plus in most jurisdictions you couldn’t illegally eavesdrop on people, etc. You don’t have “all the rights that don’t interfere with someone else’s”. Trespassing doesn’t generally involve interfering with someone else’s rights, but that doesn’t mean it’s not a tort/crime. Someone can keep you off their property or out of their dwelling if they want, they don’t need a reason.

No. The value you could personally extract from it would be reduced, in the sense that it would sell for less; but the total value, to everyone, would be massively increased. If you could use real property without exclusion, that would be an unalloyed good.

Doubtful. People would spend far less developing real estate. Why have a nice house when you could wake up to find a bunch of hippies and their pet pot-bellied pigs in your living room at any time?

So? How does that indicate that exclusion isn’t necessary? You can drive my car…but if you do, I can’t drive my car at the same time. If you squeeze all those people into my house, it will certainly interfere with my use of my house!

I do believe exclusion is necessary for real estate property rights. I was exposing on of the fallacies of the anti-IP case: they claim IP is “claiming ownership of market share” when it isn’t. I did this by showing that real estate exclusion is not “claiming ownership of market share” either – someone is free to homestead or buy other real estate and compete with you. Just like someone is free to create (homestead) or buy other IP and compete as well.

Peter January 30, 2010 at 4:18 am

Why have a nice house when you could wake up to find a bunch of hippies and their pet pot-bellied pigs in your living room at any time?

But you couldn’t — that would interfere with your use of your property, which is precisely why physical property is exclusive. If you’re assuming some strange universe in which both you and the hippies can occupy/use the same space at the same time without interference — nothing they do there can interfere with you — then what difference does it make if they are in “your” living room (you can’t see them, smell them, touch them, etc., etc…that would imply an exclusionary universe!)

pro-IP-libertarian January 30, 2010 at 2:17 pm

Peter-

But you couldn’t — that would interfere with your use of your property, which is precisely why physical property is exclusive.

I could, it just would be difficult to turn a profit and people would be less likely to do it. Just like what would happen with IP if we did away with IP rights.

And as I said above real estate is only directly rivalrous in very small plots or pieces of land. So exclusion isn’t a necessity, we just provide it because that is the best way to make sure we have a healthy market in, and people will invest in, real estate. Basically, the ability to exclude from real estate ensures that the pricing mechanism works in that asset.

If you’re assuming some strange universe in which both you and the hippies can occupy/use the same space at the same time without interference — nothing they do there can interfere with you — then what difference does it make if they are in “your” living room (you can’t see them, smell them, touch them, etc., etc…that would imply an exclusionary universe!)

I don’t need to. Real estate is only directly rivalrous on very small plots. If you had a house the hippies could just crash when you were at work or asleep, and leave when you needed the kitchen, living room, etc. They could leave you your bedroom for “personal use”. Or they could just park a camper in your yard if you had a big yard.

It’s an absurd example, but it is no more absurd than claiming that someone who copies (duplicates) an author’s book is doing the same amount and kind of work, and has the same talent, as the author who spent hours and hours writing, rewriting, researching, etc. – creating – the book. Duplication/copying is not equivalent to creation. The ability to exclude in IP rights ensures that the pricing mechanism works in – that people will invest in and develop – that asset.

Peter January 30, 2010 at 6:42 pm

And as I said above real estate is only directly rivalrous in very small plots or pieces of land.

In your idiolect, perhaps…you’re using the word differently from everybody else, hence your misunderstanding!

Jay Lakner January 30, 2010 at 7:13 pm

pro-IP-libertarian,

I see that you are falling into the very same error I mentioned. I believe you’re confusing the subjective meaning you assign to an entity with the entity itself.

pro-IP-libertarian wrote:
“No, they aren’t totally different because they have the same main plot, a lot of the same scenes, most of the same characters, etc.”

The “plot”, “scenes” and “characters” are only similar in your mind. There is no objective similarity between the book and the movie.

Do you think someone who can’t read would consider them similar?
Do you think that someone who didn’t understand English would consider them similar?
Do you think my pet cat would consider them similar?

The meaning you gain from reading the book is similar to the meaning you gain from watching the movie. But that does not make them similar. That is personal to you, to your mind.
It is only the subjective meaning that you apply to both the book and the movie that lead you to conclude similarity. But objectively, they are very different.

So, what you are really advocating is that “meaning” is a form of property. You are advocating that artists should be granted property rights in the “meaning” of their works.

Before I explore the ramifications of this, I need to ask:
Do you understand my reasoning so far?
Do you agree?

Bala January 30, 2010 at 7:53 pm

pro-IP Libertarian,

” I could, it just would be difficult to turn a profit and people would be less likely to do it. ”

????

If you squat on my land, I cannot dig it up to lay the foundation of the house I try to build on it without forcing you off. I cannot plough it without ploughing you into the soil too (unless you scoot or I throw you out). I cannot plant a tree on a spot I choose without uprooting you from there in the first place.

In every case, my freedom of action is affected adversely by your attempt to simultaneously use my land.

This is getting truly ludicruous. Since you are wrong at the root, I presume it is obvious that you are wrong in your conclusions as well.

pro-IP-libertarian January 31, 2010 at 2:54 am

Jay Lakner-

The “plot”, “scenes” and “characters” are only similar in your mind. There is no objective similarity between the book and the movie.

Wrong. The movie is based on the book. There would be no movie in that form if the book hadn’t been created.

Do you think someone who can’t read would consider them similar?
Do you think that someone who didn’t understand English would consider them similar?
Do you think my pet cat would consider them similar?

Immaterial. You are talking about subjective perceptions. The movie is based on the book, this would be the case no matter how many people weren’t aware of or couldn’t understand this.

So, what you are really advocating is that “meaning” is a form of property. You are advocating that artists should be granted property rights in the “meaning” of their works.

No, just pointing out that the creators of intellectual property have natural rights interests in their creation through a homesteading model. They just should have rights to sell their own work. No one is forced to buy. But on the other hand no one should be permitted to force a transfer on them – nonconsensually copy or resell their work.

Before I explore the ramifications of this, I need to ask:
Do you understand my reasoning so far?
Do you agree?

You seem to be focusing on subjective perceptions and therefore claiming that their are no objective facts with IP. That is incorrect, there are. I have noted where I disagree above.

pro-IP-libertarian January 31, 2010 at 3:07 am

Bala-

If you squat on my land, I cannot dig it up to lay the foundation of the house I try to build on it without forcing you off. I cannot plough it without ploughing you into the soil too (unless you scoot or I throw you out). I cannot plant a tree on a spot I choose without uprooting you from there in the first place.

Oh it could be done, it would just be very difficult, time consuming, etc. The market value of real estate would certainly be effected and people would be less likely to spend their time and resources on it. Just like what would happen if there were no IP rights.

In every case, my freedom of action is affected adversely by your attempt to simultaneously use my land.

Right – and so it goes with IP. Unilateral copying and reselling of IP adversely effects the efforts of those that create and sell it. Exclusion is necessary to effectively develop and make a market in real estate, it is also necessary to effectively develop and make a market in IP.

And note exclusion in real estate is owner-focused. We don’t say the right to exclusion in real estate is claiming a “right to market share”. So it is not correct when some claim this is what one is claiming with IP exclusion.

This is getting truly ludicruous. Since you are wrong at the root, I presume it is obvious that you are wrong in your conclusions as well.

No, if you are an advocate of the “duplication is equivalent to creation” model you are basing your model on a fallacy and the model itself runs counter to natural rights principles.

pro-IP-libertarian January 31, 2010 at 3:11 am

Jay Lakner-

Should be “there” in the first line of the last paragraph.

Jay Lakner January 31, 2010 at 5:48 am

I wrote:
“There is no objective similarity between the book and the movie.”
pro-IP-libertarian replied:
“Wrong. The movie is based on the book. There would be no movie in that form if the book hadn’t been created.”

You have made a major logical error here.
If two things are causally related, that does not mean they are similar.

“You are talking about subjective perceptions.”

Exactly. I am pointing out to you that the similarity between the movie and the book are subjective and very much dependent on who is making the judgement.

“…just pointing out that the creators of intellectual property have natural rights interests in their creation through a homesteading model.”

But what exactly are they homesteading? What exactly is this “intellectual property” that they are homesteading?

Objectively speaking, there are only tangible entities and the arrangements they can take.
Subjectively speaking, there are characters, plots, scenes, heroes, villians, magic, goblins, giant talking elephants, and a multitude of other intangible meanings that different human beings can conceptualize. Things that only exist in the human mind.
Are you arguing for the ‘objective entities’ or the ‘subjective entities’ to be property?

From your responses, it is clear that you have made two major logical errors:
1. You have defined similarity in terms of causality. Two things that are causally related are not necessarily similar, and two things that are similar are not necessarily causally related. Clearly, ‘causality’ can not be used as a measure to determine ‘similarity’.
2. You seem to often equate the subjective meaning humans assign to an entity with the objective reality of the entity itself. There is that which exists in your mind, and there is that which exists in reality. Two entities may induce similar brainwave activity in your head, but that does not mean the two entities are objectively ‘similar’.

Do you follow what I’m saying?

(Keep in mind, agreement with me on these points does not invalidate IP. We have yet to explore the ramifications of considering objective patterns to be a form of property)

Bala January 31, 2010 at 11:04 am

pro-IP-libertarian,

I can see why you are so thoroughly confused and (hence) pro-IP.

” Oh it could be done, it would just be very difficult, time consuming, etc. ”

It is NOT about how difficult it will be. It is about the fact that it is METAPHYSICALLY IMPOSSIBLE for me to engage in agriculture and for you to build and operate a factory on the same plot of land SIMULTANEOUSLY. The reason for that is that there is only 1 of THAT plot of land that CANNOT be used simultaneously for more than 1 purpose.

This is NOT TRUE of ideas. Any number of people instantiating your idea does not and CANNOT prevent you from doing so yourself.

If this obvious aspect of reality escapes you, I don’t think I am in a position to try and convince you any more.

Peter Surda February 1, 2010 at 4:55 am

Dear pro-IP-libertarian,

regrettably, I don’t have enough time to address all of your arguments, so I’ll just concentrate on the core. The core has been mentioned by Jay: immaterial goods are subjective. They do not exist outside of people’s minds. It’s people’s minds only that give them “boundaries”. I made an example with a book summary earlier that demonstrates this, you can look it up. The second problem is a corrolary of this: you cannot distinguish between immaterial goods that are covered by IP laws and positive externalities. Either both violate rights and should be rejected, or neither violate rights and should be accepted.

pro-IP-libertarian February 1, 2010 at 5:32 am

Jay Lakner-

You have made a major logical error here.
If two things are causally related, that does not mean they are similar.

When one is based on the other – has the same plot and many of the same characters – it does mean they are similar, and causally related. If there were no Harry Potter book there would be no movie based on the book’s story.

Exactly. I am pointing out to you that the similarity between the movie and the book are subjective and very much dependent on who is making the judgement.

No, you pointed out a bunch of examples of people that subjectively couldn’t determine the similarity. (Did not speak english, were not of the species, etc.) But they are objectively similar. There would be no movie without the book. So your examples are as I said immaterial.

Objectively speaking, there are only tangible entities and the arrangements they can take.
Subjectively speaking, there are characters, plots, scenes, heroes, villians, magic, goblins, giant talking elephants, and a multitude of other intangible meanings that different human beings can conceptualize. Things that only exist in the human mind.
Are you arguing for the ‘objective entities’ or the ‘subjective entities’ to be property?

Your framing is incorrect. There is IP that is objectively new. The Star Wars universe was objectively different from the Star Trek universe that came before it.

Maybe the use of the word “objective” is throwing you off. There is one meaning that means only things in a physical sense. That is not the meaning used here. The meaning here refers to the characteristics of an object. The Star Wars universe is objectively different from the Star Trek universe. We can objectively tell that the movie adaptation of a Harry Potter book is similar to it, because that is what an adaptation means by definition.

From your responses, it is clear that you have made two major logical errors:
1. You have defined similarity in terms of causality. Two things that are causally related are not necessarily similar, and two things that are similar are not necessarily causally related. Clearly, ‘causality’ can not be used as a measure to determine ‘similarity’.
2. You seem to often equate the subjective meaning humans assign to an entity with the objective reality of the entity itself. There is that which exists in your mind, and there is that which exists in reality. Two entities may induce similar brainwave activity in your head, but that does not mean the two entities are objectively ‘similar’.

No, I defined similarity in terms of things that are objectively (characteristically) similar. Causation came up because we were discussing a film adaptation of a book, which is by definitiong causally related to the book.

Your other point springs from you using a different meaning for the word “objective”, which isn’t the meaning I was referring to.

Aside from your errors there, you still seem to be simply attempting to equate duplication with creation. They are not equivalent. The first Harry Potter book was objectively (characteristically) different from Tolkein’s books. Claiming that an unauthorized copy of the Potter book are just another set of “patterns” is laughable. The copy wouldn’t exist without the original. The Potter book is different enough that it would still exist without the Tolkein books.

Your “duplication is equivalent to creation” model depends on you claiming that all IP is “subjective patterns” and therefore equivalent. That is a fallacy. IP can be objectively (characteristically) determined to be different from other IP, such that new or unique creations can be identified.

pro-IP-libertarian February 1, 2010 at 5:56 am

Peter Surda-

The core has been mentioned by Jay: immaterial goods are subjective. They do not exist outside of people’s minds. It’s people’s minds only that give them “boundaries”.

That seems to be a misunderstanding about how you are using the words objective and subjective. Your model depends on claiming that duplication is equivalent to creation. You simply extend this by claiming that “all IP is subjective” and therefore equivalent.

But IP can objectively (characteristically) be determined to be different from other IP. That is one of the reasons why documentation is required for IP to be recognized (homesteaded), so creations of the mind can be set down in concrete form.

I made an example with a book summary earlier that demonstrates this, you can look it up.

Not sure what you are referring to here.

The second problem is a corrolary of this: you cannot distinguish between immaterial goods that are covered by IP laws and positive externalities. Either both violate rights and should be rejected, or neither violate rights and should be accepted.

Not at all, we just deal with positive externalities as we deal with externalities from physical property. IP creators just decide how they want to sell their property and the price, consumers decide if they want to buy. They just aren’t allowed to take it if they don’t agree on price.

pro-IP-libertarian February 1, 2010 at 6:16 am

Bala-

It is NOT about how difficult it will be. It is about the fact that it is METAPHYSICALLY IMPOSSIBLE for me to engage in agriculture and for you to build and operate a factory on the same plot of land SIMULTANEOUSLY. The reason for that is that there is only 1 of THAT plot of land that CANNOT be used simultaneously for more than 1 purpose.

Not at all. You are just assuming things based on the current, exclusion-based business model. You just mark off where the factory will be and me and my squatter friends will just plant our organic crops where the yards and open spaces will be. There may be some hassle if our goats and sheep happen to wander onto the worksite, just shoo them off. I’ll give you some goat’s milk to compensate for any messes they may make.

This is NOT TRUE of ideas. Any number of people instantiating your idea does not and CANNOT prevent you from doing so yourself.

Wrong. Someone distributing free, unauthorized copies of a song crowds out sales of the same song. Just like authorizing someone to use or occupy your real estate for free would crowd out your commercial use of the property in many cases. But note again we don’t call real estate exclusion “claiming a right to market share”. IP exclusion isn’t “claiming a right to market share” either.

Peter Surda February 1, 2010 at 6:22 am

Dear pro-IP-libertarian,

> Your model depends on claiming that duplication is
> equivalent to creation.
No, rather I claim that this distinction is completely irrelevant. The only reason why anyone would need to claim it’s relevant is because they need it for their theory to be correct. To me, it’s just a random irrelevant assumption.

> But IP can objectively (characteristically) be
> determined to be different from other IP.
No, it cannot. That’s the problem in your argument.

> Not sure what you are referring to here.
Ok, let me repeat. I’ll summarise a book:
——————
This book is a story of a bright boy. He had trouble getting along with his family, but one day was selected for special (yet so far almost unmanifested) skills and sent to an elite school. The school allows him to hone his skills. He excels in combat disciplines and demonstrates great leadership abilities. Meanwhile, the world is being threatened by a powerful enemy. The enemy was temporarily beaten some time ago, but is planning a comeback. It is said that the special skills that the boy possesses are the only way to defeat the enemy. In the end, he defeats the enemy, but finds out that he had been skillfully manoeuvred into the confrontation by his own mentor.
——————

So, what book am I summarising? Is it Harry Potter or Ender’s Game? There is no objective way of telling. The only way to know is to determine what I was thinking while I was writing this. Therefore, whether it refers to Harry Potter or to Ender’s Game depends wholly on my thought processes and nothing else. Therefore, immaterial features are not a part of objective reality, but subjective to one’s mind. Therefore, immaterial goods do not have objective boundaries. Therefore, they can’t be property (in the meaning of IP-proponents).

> … we just deal with positive externalities as we
> deal with externalities from physical property.
This underscores the problem in your argument. You do not provide a method to distinguish between an immaterial good that can be property and one that cannot (such as externalities). There is no way to make such a distinction, therefore, one must either reject IP or extend it to all causally related activities (i.e. externalities).

Peter Surda February 1, 2010 at 6:34 am

Dear pro-IP-libertarian,

> You are just assuming things based on the current,
> exclusion-based business model.
This is another problem with your arguments, you redefine rivalry so that it matches your theory.

There are only two ways of “using” a good. One is when you literally consume it, making it at least temporarily or partially unavailable to anyone alse. This can only happen with rival goods. The other one is the metaphorical “use”, when you try to gain some benefit that is causally related to that good, but without the unavailability aspect. This is what we call non-rival, externalities, and this also covers all “IP”. Since there is no unavailability, if you still want to increase your benefits, you need to cover your status with contracts and a working business plan.

> Someone distributing free, unauthorized copies of
> a song crowds out sales of the same song.
A good example. There is no “unavailability” present here. There is only “loss” of market share. “loss” and “crowding out” are a “meaning”, and you can’t own “meanings”. Furthermore, as I said before, the same effect would happen if you distributed substitutes or expressed negative opinion of that song, yet IP proponents typically don’t consider this a problem.

Peter Surda February 1, 2010 at 7:06 am

Dear pro-IP-libertarian,

> No, they aren’t totally different because they have
> the same main plot, a lot of the same scenes, most
> of the same characters, etc.
But why is this relevant? As Jay correctly pointed out, the only similarity is in their meaning. Absent the meaning, they are completely distinct.

Another example:
> The Star Wars universe is objectively different
> from the Star Trek universe.

Oh is it? Allow me to another summary trick:
————————
It’s a story about a captain of a really cool space ship and his crew. The crew is a collection of people with different backgrounds, abilities, temperament and attitudes, some feature superhuman abilities, but they work well together. The captain is a bit macho. Get into fights and does not follow rules. They fly around the space, from time to time visit a planet. They fight the bad guys. They fights often include shooting. When they are outgunned, they win by using unconventional tactics. The stories have lots of fans and a cult status.
————————

This actually not only matches Star Wars and Star Trek but also others, such as Farscape and Firefly.

Jay Lakner February 1, 2010 at 10:59 am

pro-IP-libertarian,

It seems that you are unable to strip away the subjective human interpretation you give to the Universe and see what is actually there.

Consider the following sentence:

The giraffe ran off into the sunset.

What are the objective features of this sentence?

If you answered something along the lines of: “running, giraffe, sunset” then you are wrong.

If you answered something along the lines of: “small collections of black symbols separated by spaces on a white background” then you are correct.

The meaning you assign to that sentence is not an aspect of objective reality. It is a meaning that only you and other English speaking humans can derive from that sentence. Those symbols, upon being viewed, trigger brain activity of a giraffe running into the sunset.
But they do not trigger that brain activity in somebody who does not read english. Their senses are perfectly fine. Their perception is perfectly fine. They see the exact same symbols and spaces that you see. Yet when they view that sentence, it does not trigger brain activity of the sort that is triggered in you.

It demonstrates that the sentence is nothing more than a pattern of symbols. The meaning that you derive from the sentence is an image of a giraffe running off into the sunset. If someone were to claim ownership of that sentence, what exactly are they claiming in your eyes?

1. Are they claiming ownership of a sequence of symbols and spaces?
or
2. Are they claiming ownership of the entire concept of a giraffe running into the sunset?

Based on your answers so far, I’m guessing you answered 2. But then that get’s back to one of my original questions…

Do you consider the “meaning” that an artist/author conveys with their work to be a form of “property”?

Jay Lakner February 1, 2010 at 11:13 am

pro-IP-libertarian wrote:
“When one is based on the other – has the same plot and many of the same characters – it does mean they are similar, and causally related. If there were no Harry Potter book there would be no movie based on the book’s story.”

You continue to commit the same error. You seem to somehow believe that causality is the same as similarity.

If I choose a movie at random and then try to produce a second movie which is the exact opposite of the chosen movie, are the two movies similar?

They are definitely causally related. My movie would not exist if the movie I based it on did not exist.

But everything in my movie is the opposite of everything in the movie I based it on. How can they be considered similar? Aren’t they the exact opposite of similar?

Similarity and causality are completely different. One does not at all imply the other. How you can even dispute this is beyond me.

It’s like saying, the act of stealing and the act of sitting in prison are similar because one would not happen without the other.

Jay Lakner February 1, 2010 at 11:41 am

pro-IP-libertarian wrote:
“No, I defined similarity in terms of things that are objectively (characteristically) similar.”

“Objectively” does not mean “characteristically”. It has never meant “characteristically”. “Objectively” means to have actual existence.

Something can have objective characteristics and subjective characteristics. The objective characteristics of the word “giraffe” are seven black symbols on a white background. The subjective characteristics are whatever meaning you derive from looking at these symbols. They are subjective because they are characteristics that not everyone perceive to exist. You may think of a tall four legged animal, but someone who doesn’t speak English certainly doesn’t.

Objective:
1. Of or having to do with a material object.
2. Having actual existence or reality.
3.
a. Uninfluenced by emotions or personal prejudices: an objective critic.
b. Based on observable phenomena; presented factually: an objective appraisal.

It should be clear from the context of our discussion that I have been using definition 2. Maybe you should reread everything again, with a correct definition of “objectively” in mind?

Bala February 1, 2010 at 8:16 pm

pro-IP-libertarian,

” You are just assuming things based on the current, exclusion-based business model. ”

Not at all. Even in your example, can the squatters pland their organic croops or whatever on precisely the same spot on which I have a factory?

Instead of addressing this, you go off to the open spaces. What if the “open” spaces are not truly “open” but are uncovered parking lots for my trucks (which will routinely squash the squatters crops, organic or otherwise)? The 2 uses are then SIMULTANEOUSLY impossible.

” Someone distributing free, unauthorized copies of a song crowds out sales of the same song. ”

Crowding out does not reduce FREEDOM OF ACTION. It does reduce the compensation the original “creator” gets, but not the creator’s freedom. Is this that difficult to comprehend?

pro-IP-libertarian February 2, 2010 at 3:26 am

Peter Surda-

No, rather I claim that this distinction is completely irrelevant. The only reason why anyone would need to claim it’s relevant is because they need it for their theory to be correct. To me, it’s just a random irrelevant assumption.

I’m sure you would like to assume it is irrelevant, since your model depends on that assumption. They are different. True creation and innovation is scarce, that is why people want to copy and use the property created. Duplication ability is not scarce. If any IP was as good as the next the free music sites would be on their way to ruling the universe through ad revenue like Google – they are not.

So, what book am I summarising? Is it Harry Potter or Ender’s Game?

Or you could water down the archetypes even further and say that all art is about sex and/or death. There – now “there is no new intellectual property” or “all IP is the same”. But note how you undermine your own argument here. If people can’t objectively tell IP apart then why do they bother copying protected material? Why are some authors more popular than others? There is plenty of public domain material that is free or low cost. Human action is telling you that there are objective differences. Presentation, style, atmosphere, tone, characterization, etc. – dozens and dozens of variables.

As far as boundaries are concerned mentioning the archetypes actually harms your case. One simply has to make sure that they aren’t blatantly copying another author and they will be safe. How do we set these boundaries? The same way we set boundaries for other property violations that involve subjectivity, like fraud and related offenses. We make rules that generally catch the most serious, offensive, and blatant cases.

This underscores the problem in your argument. You do not provide a method to distinguish between an immaterial good that can be property and one that cannot (such as externalities). There is no way to make such a distinction, therefore, one must either reject IP or extend it to all causally related activities (i.e. externalities).

Wrong, the property can be identified. We set rules for subjective offenses like fraud and related offenses we can set rules for IP. Externalities are simply handled like they are with physical property, with the property owner just deciding on a product and price.

There are only two ways of “using” a good. One is when you literally consume it, making it at least temporarily or partially unavailable to anyone alse. This can only happen with rival goods. The other one is the metaphorical “use”, when you try to gain some benefit that is causally related to that good, but without the unavailability aspect. This is what we call non-rival, externalities, and this also covers all “IP”. Since there is no unavailability, if you still want to increase your benefits, you need to cover your status with contracts and a working business plan.

This coming from the person working with terms defined to support their model.

Real estate is quite a good parallel to IP. Land is only truly rivalrous in small parcels. We need homesteading and exclusion to optimally commercialize and make a market in the asset. Unavailability for commercialization IS present when one cannot exclude in IP, just as in real estate.

Your model is flawed because it involves defining terms to enable the taking of an asset from another without an agreement on price or indeed any agreement at all. And the ease of the taking isn’t an excuse or justification, as illustrated by numerous examples. Shoplifting actually involves approximately the same amount of effort as buying. Computer fraud can be easy. Trespassing can be easy. Etc…
Note we don’t claim those on the receiving end of those crimes/torts need a better living or business model.

Without a bilateral transaction there is no pricing mechanism in effect. Therefore you have the same pricing problems that occur in socialism. (per Mises/Silas Barta)

A good example. There is no “unavailability” present here. There is only “loss” of market share. “loss” and “crowding out” are a “meaning”, and you can’t own “meanings”. Furthermore, as I said before, the same effect would happen if you distributed substitutes or expressed negative opinion of that song, yet IP proponents typically don’t consider this a problem.

See above. There is an “unavailibility” for commercial use. Just as if you had a farm and people squatted in your fields but left you your farmhouse. Note again, we don’t consider land exclusion “owning” market share.

Bad reviews are already accepted externalities, as long as they aren’t intentionally dishonest or misleading.

Substitutes are accepted as either externalities or competition, not a factor.

pro-IP-libertarian February 2, 2010 at 4:05 am

Jay Lakner-

Do you consider the “meaning” that an artist/author conveys with their work to be a form of “property”?

See the response to Peter Surda, above. Reducing everything to archetypes and claiming “it’s all the same” doesn’t help your case. It isn’t the meaning. Authors have different styles, atmospheres, characterization, etc. Human action tells us consumers can tell the difference between authors because some are more popular than others. In fact archetypes hurt your case since an author only has to make sure a work isn’t a blatant copy of another’s to avoid infringement claims.

You continue to commit the same error. You seem to somehow believe that causality is the same as similarity.

With adaptations by definition they are similar, and causally related. That is a fact. The error is yours.

If I choose a movie at random and then try to produce a second movie which is the exact opposite of the chosen movie, are the two movies similar?

No.

Similarity and causality are completely different. One does not at all imply the other. How you can even dispute this is beyond me.

In some cases they are different and in some cases they are not. We were talking about an adaptation, which by definition is both similar and causally related.

It’s like saying, the act of stealing and the act of sitting in prison are similar because one would not happen without the other.

That wasn’t the example we were discussing. The example we were discussing was one where the acts by definition were both similar and causally related.

“Objectively” does not mean “characteristically”. It has never meant “characteristically”. “Objectively” means to have actual existence.

“Characteristics” is a synonym for “observable phenomena”. So yes, it does mean characteristically. Especially if we are talking about science or law.

It should be clear from the context of our discussion that I have been using definition 2. Maybe you should reread everything again, with a correct definition of “objectively” in mind?

No thanks, I clarified my meaning. My points still stand.

pro-IP-libertarian February 2, 2010 at 4:40 am

Bala-

Not at all. Even in your example, can the squatters pland their organic croops or whatever on precisely the same spot on which I have a factory?

Sure, when it’s finished there should be space on the roof, walls, sunlit open spaces inside, etc. (Containers, window boxes, trellises, etc.) We’ll take a look at your plans, since you can’t exclude us from coming in and taking a peek.(Oops, we might take a look at very valuable R&D too and commercialize it ourselves or sell it to someone.)

Instead of addressing this, you go off to the open spaces. What if the “open” spaces are not truly “open” but are uncovered parking lots for my trucks (which will routinely squash the squatters crops, organic or otherwise)? The 2 uses are then SIMULTANEOUSLY impossible.

We’ll rotate containers from the roof or from nearby squats into open parking spaces when they’re on the road. And watch you don’t injure anyone, because there are still laws against negligence, battery, etc. there just isn’t exclusion from real estate. It would be difficult and it would dramatically effect your ability to commercialize your property, but it would not be “impossible”.

That said, isn’t it great that current real estate exclusion lets you more effectively commercialize your property? No one unilaterally decides that they will commercialize your property, or unilaterally uses your property in a way that interferes with your commercialization. Notice that it isn’t “claiming a right to market share”, because someone can buy or homestead their own real estate and compete.

Crowding out does not reduce FREEDOM OF ACTION. It does reduce the compensation the original “creator” gets, but not the creator’s freedom. Is this that difficult to comprehend?

Wrong. It reduces the creators’ freedom to commercialize their property. Just like doing away with real estate exclusion would reduce the owners’ ability to commercialize their property.

And it is a unilateral taking of someone else’s asset. Since there is no agreed upon transaction and no price, there is no price signaling and mispricing similar to that resulting from socialism occurs.(Mises/Silas Barta) Taking someone else’s asset without their consent certainly restricts their freedom. And no, offering items for sale does not mean one should accept them being stolen. (See above: Ease of computer fraud or shoplifting does not justify either property violation.)

Peter Surda February 2, 2010 at 5:44 am

Dear pro-IP-libertarian,

> I’m sure you would like to assume it is irrelevant,
> since your model depends on that assumption.
Actually, it doesn’t. Whether it is valid or not, my theory is unaffected.

> They are different.
It is merely a matter of extent. They always share some commonalities and some distinctions. Yet you claim that sometimes the commonalities take precedence (“property”), and sometimes the distinctions (“externalities”) without explaining how you draw such conclusions.

> Or you could water down the archetypes even
> further and say that all art is about sex and/or
> death.
Exactly. It’s a matter of where you draw the line.

> But note how you undermine your own argument
> here.
I don’t. I never said that the aspects are never present, only that they sometimes aren’t. Elementary logic error on your side. The refutation of a claim “A always leads to B” is not “A never leads to B”, rather “A sometimes does not lead to B”.

> If people can’t objectively tell IP apart then why do
> they bother copying protected material?
Because the similarities are more useful to them than the distinctions. This is a subjective evaluation. There is no need for anything objective in this.

> As far as boundaries are concerned mentioning
> the archetypes actually harms your case.
I am afraid it harms yours and not mine.

> How do we set these boundaries? The same way
> we set boundaries for other property violations
> that involve subjectivity, like fraud and related
> offenses.
Regrettably for you, fraud requires an underlying contract. You can’t defraud a third party. Which is precisely what I’ve been arguing about.

> Wrong, the property can be identified.
No, it cannot. You merely assert this, without explaining how to actually do that.

> Externalities are simply handled like they are with
> physical property, with the property owner just
> deciding on a product and price.
Exactly. And because the goods covered by IP are just a form of externality, the owner is free to decide what strategy and contractual relationships to pursue in order to maximise his personal gain off it. There is no need for IP anywhere.

> This coming from the person working with terms
> defined to support their model.
This is coming from a person that is trying to base his assumptions on observation rather than theory-utilitarianism.

> Land is only truly rivalrous in small parcels.
So you are saying that it is rivalrous in small scope but not in large? I am afraid you are using the “utility” to define rivalry. That is an invalid approach. Utility is subjective.

> We need homesteading and exclusion to optimally
> commercialize…
So I am right. “Optimally commercialize”. You’re using an utilitarian approach. That invalidates your other part of the theory that tries a natural rights approach. You can’t mix them, you need to prove the independently.

> … and make a market in the asset. Unavailability
> for commercialization IS present when one
> cannot exclude in IP, just as in real estate.
This has nothing to do with property rights. The ability to market something depends on entrepreneurship and not exclusivity.

> Your model is flawed because it involves defining
> terms to enable the taking of an asset from
> another without an agreement on price or indeed
> any agreement at all.
Your theory is flawed because you assume there is an “asset” where there is none. There is no asset, only utility and that is subjective.

> And the ease of the taking isn’t an excuse or
> justification, as illustrated by numerous examples.
Yet again you are assuming the utilitarian approach. I don’t mind it per se, but you can’t arbitrarily switch between those two approaches (natural rights vs. utilitarian).

> Without a bilateral transaction there is no pricing
> mechanism in effect.
For the purposes of this debate, I’ll assume this is correct.

> Therefore you have the same pricing problems
> that occur in socialism. (per Mises/Silas Barta)
Silas’ argument has been refuted. I wrote a five-point refutation. Suffice to say that the ability to exclude has nothing to do with the calculation argument. If it was, it would refute all trade altogether, since noone can exclude third parties from all externalities of any good whatsoever.

> There is an “unavailibility” for commercial use.
Utility argument, metaphorical “unavailability”.

> Bad reviews are already accepted externalities,
> as long as they aren’t intentionally dishonest or
> misleading.
Accepted by whom? What is different if they are dishonest or misleading? Why is any of this relevant?

> Substitutes are accepted as either externalities or
> competition, not a factor.
Why is this relevant? It is only relevant because otherwise your theory is a fail.

Peter Surda February 2, 2010 at 5:48 am

Dear pro-IP-libertarian,

> In some cases they are different and in some cases
> they are not. We were talking about an adaptation,
> which by definition is both similar and causally
> related.
Yet you fail to define either causality or similarity. You admit that some externalities do not lead to a property claim. So you admit that causality is an insufficient condition for defining property. Then you claim that in some cases, similarity does not lead to a property claim either. So you admit again that similarity is not a sufficient condition for defining property.

These two conditions eliminated, your theory is left without a definition of property.

Jay Lakner February 2, 2010 at 12:55 pm

pro-IP-libertarian wrote:
“Authors have different styles, atmospheres, characterization, etc.”

All subjective. All dependent on human interpretation. All are “meanings” that humans derive from the work. Not one of these things is an objective characteristic of their work.

“With adaptations by definition they are similar, and causally related.”

No, no, no. Stop trying to evade the point.
I stated that the book and the movie were objectively completely different. To demonstrate their similarity, you continually brought up causality. I then demonstrated that causality doesn’t prove anything.

Now you introduce this new word, “adaptation”, whose meaning is so broad that I’m sure you’re going to try to twist its definition around to suit your needs.

By my definition of adaptation, my “complete opposite” movie IS an adaptation of the movie it’s based on. But you’re going to deny that and say that I’m using the word “adaptation” wrong.

So please, you need to specifically define “adaptation” before using that word again.

“In some cases they are different and in some cases they are not. We were talking about an adaptation, which by definition is both similar and causally related.”

Now you’re changing your tune. I guess you realised that equating similarity with causality is indeed a logical error. Unfortunately, instead of just admitting it and moving on, you’ve desperately tried to cover up your error by introducing this “adaptation” word.

“The example we were discussing was one where the acts by definition were both similar and causally related.”

Please stop being intellectually dishonest. We were discussing an example where the acts are causally related, but similarity was in dispute.

I specifically stated:
“The two are very different. However, humans assign the same meaning to the book as they do to the movie. So an individual might come to the conclusion that they are the same story. But in reality they are not.”

You countered by saying:
“Wrong. The movie is based on the book. There would be no movie in that form if the book hadn’t been created.”

You tried to demonstrate that they must be similar because they are causally related. I demonstrated the flaw in this thinking and now you’re trying to cover up your mistake.

In the grand scheme of things this is a meaningless series of forum posts which will probably never be read again. So you made a mistake, who cares? Can you at least try to be intellectually honest and move on. I don’t want to waste my time arguing with someone who is more interested in their own self-image than the content of the discussion.

“”Characteristics” is a synonym for “observable phenomena”. So yes, it does mean characteristically. Especially if we are talking about science or law.”

“Observable phenomena” is a subset of “characteristics”. ie all observable phenomena are characteristics but not all characteristics are observable phenomena. This is because there can be both objective characteristics and subjective characteristics. So no, they are not true synonyms.

But this is irrelevant at this point.

We are not trying to decipher a text here. We are trying to convey meaning to one another.
I have explained to you what I mean when I say “objectively”.
You should now understand my intended meaning of the word “objectively”.
It would be intellectually dishonest to pretend I mean something different than the meaning I intend.

Bala February 2, 2010 at 6:44 pm

pro-IP-libertarian,

Thanks for revealing the kind of mind it takes to form a position such as yours.

” And watch you don’t injure anyone, because there are still laws against negligence, battery, etc. ”

Why are such laws justified? What is the basis of these laws? Why should I not injure anyone?

” It would be difficult and it would dramatically effect your ability to commercialize your property, but it would not be “impossible”.

That said, isn’t it great that current real estate exclusion lets you more effectively commercialize your property? No one unilaterally decides that they will commercialize your property, or unilaterally uses your property in a way that interferes with your commercialization. ”

Oh!!! So rights, specifically property rights, originate from the need for commercialisation? Quite interesting and revealing (as I said, of the state of your mind).

Frankly, that’s where this discussion should start because your basic concept of rights itself is nothing more than a grab bag of notions based on “convenience”. Yours is not a “natural rights” position and hence, any argument between you and a person starting from the concepts of “natural rights” is bound to end in this situation.

So, please do tell me where man’s rights originate from and then let us take the case up using reason.

pro-IP-libertarian February 4, 2010 at 6:37 pm

Peter Surda-

Actually, it doesn’t. Whether it is valid or not, my theory is unaffected.

Wrong. If you believe in natural law, Austrian economics, and libertarianism, it does. Homesteading is part of the foundation of natural law and the others.

It is merely a matter of extent. They always share some commonalities and some distinctions. Yet you claim that sometimes the commonalities take precedence (“property”), and sometimes the distinctions (“externalities”) without explaining how you draw such conclusions.

Basically, we start with exact copies of protected works being infringing and work from there. Legal rules have developed to sort these out. Just because distinctions are difficult to make doesn’t mean they shouldn’t be made. Note we make legal rules to make difficult distinctions involving natural law rights all the time. Physical property homesteading, contracts, fraud, etc. So if you want to abandon natural rights the minute a difficult distinction comes up perhaps you are in the wrong field.

Unfortunately I can’t address the rest of your points until later, just wanted to chime in when I could.

I will be addressing the other posters too if they are still following.

Peter Surda February 4, 2010 at 7:39 pm

Dear pro-IP-libertarian,

> If you believe in natural law, Austrian economics,
> and libertarianism, it does.
I still fail to see the connection. Some activities are harder to perform than others, that is correct. But this does not serve as an explanation for anything in natural law, Austrian economics or libertarianism. In fact, it’s a utilitarian approach.

> Basically, we start with exact copies of protected
> works being infringing and work from there.
You begin with a faulty assumption already. There is no such thing as an “exact copy”. It’s just an abstraction, or a metaphor that we use when we deem the distinctions irrelevant.

> So if you want to abandon natural rights the
> minute a difficult distinction comes up perhaps
> you are in the wrong field.
On the contrary, it is you who insists on squeezing natural rights in some place where there are none.

> Unfortunately I can’t address the rest of your
> points until later, just wanted to chime in when I
> could.
I don’t have as much time myself as I would like to argue, so a slower pace is welcomed.

pro-IP-libertarian February 5, 2010 at 11:35 pm

Peter Surda-

I still fail to see the connection. Some activities are harder to perform than others, that is correct. But this does not serve as an explanation for anything in natural law, Austrian economics or libertarianism. In fact, it’s a utilitarian approach.

Because those are based partly on principles of self-ownership and homesteading.

You begin with a faulty assumption already. There is no such thing as an “exact copy”. It’s just an abstraction, or a metaphor that we use when we deem the distinctions irrelevant.

Not at all. You know what “copies” are from contracts and titles for physical property. There is an original, and then there is a copy. If you can’t understand the “abstract” concept of originals and copies there I guess there goes physical property too…

On the contrary, it is you who insists on squeezing natural rights in some place where there are none.

Wrong. Homesteading (and self-ownership) is one of the foundations of natural rights, and the same person that documented and perhaps originated the concept believed homesteading applied to intellectual property as well.

Peter Surda February 6, 2010 at 4:40 am

Dear pro-IP-libertarian,

> Because those are based partly on principles of
> self-ownership and homesteading.
We are moving in circles. We’re back to the causality argument, which you yourself admit is an insufficient condition for homesteading.

> You know what “copies” are from contracts and
> titles for physical property.
I am not sure I understand. If a “copy” is made according to a contract, then it is the contract that defines the scope of copy, or, which attributes are relevant and which not. This still does not imply that the result is an “objective copy”.

> There is an original, and then there is a copy.
Indeed. You yourself admit that there is a distinction between them by calling one of them “original” and one of them “copy”. Now, without using the causality argument, we are stuck with the “similarity”, which as shown before and above, is also subjective.

> If you can’t understand the “abstract” concept of
> originals and copies there I guess there goes
> physical property too…
With physical goods, there is no “original” and “copy”. There is always just one. There is no way to distinguish one physical object from the same physical object.

pro-IP-libertarian February 8, 2010 at 6:38 am

Peter Surda-

We are moving in circles. We’re back to the causality argument, which you yourself admit is an insufficient condition for homesteading.

Not sure what context you are referring to. The only thing necessary for physical homesteading is enclosure, which is definitely “caused” by the homesteader. The process for IP homesteading is similar. This is a long thread, cite it or paraphrase the exchange please. If there is an inconsistency I’ll be happy to address it.

I am not sure I understand. If a “copy” is made according to a contract, then it is the contract that defines the scope of copy, or, which attributes are relevant and which not. This still does not imply that the result is an “objective copy”.

No, I wasn’t referring to a contract transaction.

I was referring to contracts as patterns. You claim it is some great mystery telling an original IP creation from a copy. Yet much of our physical property rights are based on written contracts – and copies of contracts. We have to recgonize different “patterns” for recording and transacting with physical property, so it is no great hardship to do so with intellectual property.

Indeed. You yourself admit that there is a distinction between them by calling one of them “original” and one of them “copy”. Now, without using the causality argument, we are stuck with the “similarity”, which as shown before and above, is also subjective.

Homesteading IS causality. With both physical property and intellectual property. With physical property you enclose or whatever and go down to the courthouse (or land office, etc.) and get your homesteading recognized. With intellectual property you put it down in writing and go get a copyright, patent, trademark, etc.

What’s different with intellectual property is you want to equate a duplicate of already homesteaded IP with the original. But it has already been homesteaded. It is like you coming into my apple orchard and picking the apples and claiming “look, I did the picking, these are mine”. That is incorrect because my homesteading claim is superior to yours.

With physical goods, there is no “original” and “copy”. There is always just one. There is no way to distinguish one physical object from the same physical object.

Couple problems with this. First of all, some physical property can and does need to be distinguised, that’s why we have deeds, etc. – a lot of land looks just like the land next to it. Next, with homesteading part of the process is to make sure your homesteading is recognized and easy to establish in court if that becomes necessary. Same with IP homesteading.

Peter Surda February 8, 2010 at 7:22 am

Dear pro-IP-libertarian,

let me first explain the moving in circles. Our debate goes like this:

You: Property is derived from causality.
Me: What about externalities?
You: Ok, you need the additional condition of similarity.
Me: Similarity is subjective.
You: Ok, but original and copy are causally related.

So you see? You’re moving in circles. You admit yourself that both conditions are insufficient. Absent the condition that is sufficient, you are left without a definition of property and your theory falls apart.

> You claim it is some great mystery telling an
> original IP creation from a copy.
There is no mystery, merely subjectivity. Actually, the whole sentence is a bit confusing. I claim indeed that an original and copy are different, not that it is difficult to tell them apart. Sometimes it might be difficutl to say which is which, nevertheless there are still two of them.

> Yet much of our physical property rights are
> based on written contracts – and copies of
> contracts.
This does not invalidate my argument. For this to work it is sufficient that both parties involved agree on the meaning to a sufficient degree. An arbiter only has to ascertain whether there is an overlap between what the parties involved mean. That overlap is the contract. If there is no overlap or an insufficient one, there is a mistake or fraud. None of this requries that anything objective, it wholly depends on the meaning that the involved parties derive from the communication. It does not depend on a third party opinion. Even the arbiter does not need to share the meaning.

> What’s different with intellectual property is you
> want to equate a duplicate of already
> homesteaded IP with the original. But it has
> already been homesteaded.
As I am attempting to explain, so far IP proponents have failed to demonstrate the “already” part. I fail to see this description as anything else than a metaphor, there is no empirical evidence for this ever happening. Furthermore, as I pointed out again several times, this brings up the question of boundaries, which again has not been answered by any of the IP proponents.

> It is like you coming into my apple orchard and
> picking the apples and claiming “look, I did the
> picking, these are mine”. That is incorrect
> because my homesteading claim is superior to
> yours.
While it is true that this example is valid within your theory, it is also valid within mine. Taking apples alters the tree and makes the apples unavailable to anyone else. However, making a copy of an apple does not alter either the idea of apple nor the existing “original” apples, nor does it make the existing “original” apples unavailable to anyone. Furthermore, unlike your theory, my theory does not have the boundary problem.

> First of all, some physical property can and does
> need to be distinguised, that’s why we have
> deeds, etc. – a lot of land looks just like the land
> next to it.
I am not sure I understand this. Apart from the feature of “looks”, land has the feature of location. Precisely because “looks” are subjective, they are not a suitable determinant of boundaries.

> Next, with homesteading part of the process is to
> make sure your homesteading is recognized and
> easy to establish in court if that becomes
> necessary. Same with IP homesteading.
Correct me if I’m wrong, but the courts do not recognise land ownership based on what it looks like, rather where it is located.

pro-IP-libertarian February 8, 2010 at 7:39 am

Jay Lakner-

All subjective. All dependent on human interpretation. All are “meanings” that humans derive from the work. Not one of these things is an objective characteristic of their work.

Subjectivity is everywhere, including in contracts for labor and physical property. That doesn’t keep us from distinguishing it. Same with other concepts involving natural law, like force and fraud. We deal with distinguishing “subjective” similarities all the time. (By using “objective” or observable criteria, phenomena, or characteristics.)

No, no, no. Stop trying to evade the point.
I stated that the book and the movie were objectively completely different. To demonstrate their similarity, you continually brought up causality. I then demonstrated that causality doesn’t prove anything.

You picked a bad example to use, because the book and movie are causally related by definition.

In any case homesteading basically is and relies on causation. See Locke.

Now you introduce this new word, “adaptation”, whose meaning is so broad that I’m sure you’re going to try to twist its definition around to suit your needs.

I don’t need to twist anything. An adaptation is the process of “adapting” a story from one medium to another. Same main story. Same main characters. Same main plot. A movie adapted from a book is by definition both similar and causally related.

By my definition of adaptation, my “complete opposite” movie IS an adaptation of the movie it’s based on. But you’re going to deny that and say that I’m using the word “adaptation” wrong.

You are using it wrong. An adaptation follows the same basic plot. Doing things completely different could either be a completely different work or possibly a parody, depending on how it was done.

Now you’re changing your tune. I guess you realised that equating similarity with causality is indeed a logical error. Unfortunately, instead of just admitting it and moving on, you’ve desperately tried to cover up your error by introducing this “adaptation” word.

Not at all. I just pointed out that adaptations are both similar and causally related, which they are.

Please stop being intellectually dishonest. We were discussing an example where the acts are causally related, but similarity was in dispute.

Watch the spurious “dishonest” accusations. Up until now I’ve ignored your caustic, insulting, and condescending tone and ad hominems. If you’re going to start claiming I’m dishonest then I may decide to stop responding to your comments.

You tried to demonstrate that they must be similar because they are causally related. I demonstrated the flaw in this thinking and now you’re trying to cover up your mistake.

Didn’t make a mistake. Adaptations are both similar and causally related. I confirmed that other examples you gave were disimilar.

In the grand scheme of things this is a meaningless series of forum posts which will probably never be read again. So you made a mistake, who cares? Can you at least try to be intellectually honest and move on. I don’t want to waste my time arguing with someone who is more interested in their own self-image than the content of the discussion.

The mistake is yours. See above.

“Observable phenomena” is a subset of “characteristics”. ie all observable phenomena are characteristics but not all characteristics are observable phenomena. This is because there can be both objective characteristics and subjective characteristics. So no, they are not true synonyms.

I didn’t say they were “true synonyms”. Meanings don’t have to overlap completely for words to be synonyms.

It would be intellectually dishonest to pretend I mean something different than the meaning I intend.

I didn’t. And you now know my intended meaning. And you’ve been warned about the “dishonesty” nonsense.

pro-IP-libertarian February 8, 2010 at 8:47 am

Peter Surda-

You: Property is derived from causality.
Me: What about externalities?
You: Ok, you need the additional condition of similarity.
Me: Similarity is subjective.
You: Ok, but original and copy are causally related.

So you see? You’re moving in circles. You admit yourself that both conditions are insufficient. Absent the condition that is sufficient, you are left without a definition of property and your theory falls apart.

That’s a mischaracterization:

pil: IP is derived from homesteading.

PS: What about externalities?

pil: Basically, same as with physical property. The IP owner just decides how they’re going to sell/license their good.

PS: Similarity is subjective.

pil: Subjectivity is everywhere, including in numerous principles in the law dealing with physical property. So to claim subjectivity is an obstacle means we discard physical property too. To throw out the pricing mechanism for IP for basically collectivist claims on the grounds of “subjectivity” would be pretty unwise.

Homesteading and some rulemaking are sufficient for physical property, they are sufficient for intellectual property as well.

There is no mystery, merely subjectivity. Actually, the whole sentence is a bit confusing. I claim indeed that an original and copy are different, not that it is difficult to tell them apart. Sometimes it might be difficutl to say which is which, nevertheless there are still two of them.

There is plenty of subjectivity in the law dealing with physical property. Once you recognize homesteading for IP its just a matter of rulemaking. Just like with real estate and the rulemaking surrounding homesteading and exclusion there.

As I am attempting to explain, so far IP proponents have failed to demonstrate the “already” part. I fail to see this description as anything else than a metaphor, there is no empirical evidence for this ever happening. Furthermore, as I pointed out again several times, this brings up the question of boundaries, which again has not been answered by any of the IP proponents.

There are documentation requirements for IP. This is analogous to homesteading and getting one’s homestead recognized.

Boundaries – how much exclusion to allow – would be addressed with rulemaking.

While it is true that this example is valid within your theory, it is also valid within mine. Taking apples alters the tree and makes the apples unavailable to anyone else. However, making a copy of an apple does not alter either the idea of apple nor the existing “original” apples, nor does it make the existing “original” apples unavailable to anyone. Furthermore, unlike your theory, my theory does not have the boundary problem.

Your analogy is only relevant if you are talking about a new kind of apple that was created by me. If you took the apple and produced it commercially your theory has worse problems than the boundary problem. Your claim that you are entitled to copy my apple without my consent represents a unilateral, collectivist claim on another’s labor/property. And most importantly your unilateral appropriation of my apple design would throw out the pricing mechanism (per Silas Barda) for creating new apple designs and varieties, especially those that were costly or time-consuming.

The need for a little rulemaking, like we have with real property exclusion, is a lot better than throwing out the pricing mechanism and installing IP collectivism.

I am not sure I understand this. Apart from the feature of “looks”, land has the feature of location. Precisely because “looks” are subjective, they are not a suitable determinant of boundaries.

Correct me if I’m wrong, but the courts do not recognise land ownership based on what it looks like, rather where it is located.

What’s important with homesteading is not only that the land is identified, but that you are identified as the owner (the one mixing their labor with the land) and that this is acknowledged. The acknowledgement through documentation is what is important, just like with IP homesteading.

pro-IP-libertarian February 8, 2010 at 9:04 am

Bala-

Why are such laws justified? What is the basis of these laws? Why should I not injure anyone?

Because each person owns themself (otherwise there is some state of slavery) and you would be infringing on their rights, etc. Our hypothetical only dealt with doing away with exclusion in real estate.

Oh!!! So rights, specifically property rights, originate from the need for commercialisation? Quite interesting and revealing (as I said, of the state of your mind).

No, that’s just one of the main reasons for exclusion. There are many others. But it’s pretty funny it was one of the first things you started focusing on prattling on about your factory and such.

Frankly, that’s where this discussion should start because your basic concept of rights itself is nothing more than a grab bag of notions based on “convenience”. Yours is not a “natural rights” position and hence, any argument between you and a person starting from the concepts of “natural rights” is bound to end in this situation.

Nonsense. My position is more strongly rooted in natural rights than yours.

So, please do tell me where man’s rights originate from and then let us take the case up using reason.

Man’s rights begin with self-ownership and the corresponding right to one’s labor (Note: Not a particular value on that labor, the right to sell or form a contract for it.) and branches out from there through homesteading.

Peter Surda February 8, 2010 at 10:52 am

Dear pro-IP-libertarian,

I’m glad we’re making some progress.

> Subjectivity is everywhere, including in numerous
> principles in the law dealing with physical property.
You use subjectivity here to denote different issues that I am pointing out. I am talking about measurable aspects, you are talking about utility or meaning. There is nothing subjective in physical objects. Their existence determines their scope. Of course, we can discuss what object belongs to whom, and how an apple can be used. But that is a completely different issue. An apple does not extend beyond the skin, and ownership of an apple does not extend to places outside this skin. Why should then (the immaterial) book extend beyond the author’s head, and the homesteading beyond his copies? That is a completely unfounded assumption. Whereas with physical objects, their scope is determined by measurement, with immaterial it is determined by meaning or utility. So you see, we are talking about different “subjectivity”. Even if we can’t be completely sure with regards to results of measurement, we are still sure that there is only one thing to measure. But with meaning and utility, the scope can be literally anything.

Furthermore, you evaded the actual issue. The condition remains subjective. My condition (alteration and/or making unavailable) doesn’t.

> Homesteading and some rulemaking are sufficient
> for physical property, they are sufficient for
> intellectual property as well.
Of course, this misses that it is the scope of homesteading that we disagree about.

> Once you recognize homesteading for IP its just
> a matter of rulemaking.
Yet already you are making a rule where you assert that the homesteading of immaterial extends beyond one’s head. That’s the equivalent of claiming that ownership of an apple extends to objects in its proximity, or to objects that taste sweet when eaten.

> Just like with real estate and the rulemaking
> surrounding homesteading and exclusion there.
With physical objects, you homestead the actual objects based on their measurable properties (which are objective), rather than utility (which is subjective). That invalidates your real estate example. With immaterial objects, you again have a choice between two approaches, but regrettably for you, both are subjective: meaning and utility.

> There are documentation requirements for IP.
> This is analogous to homesteading and getting
> one’s homestead recognized.
Yet, before we even come to this stage, we need to agree that homesteading ideas extends beyond one’s head.

> Your analogy is only relevant if you are talking
> about a new kind of apple that was created by
> me.
What is “new kind of apple”? Is this again you trying to determine the limit where dissimilarities are relevant?

> If you took the apple and produced it
> commercially your theory has worse problems
> than the boundary problem.
What do you mean “took the apple”? If I take an apple without your permission, that would be theft.

> Your claim that you are entitled to copy my apple
> without my consent represents a unilateral,
> collectivist claim on another’s labor/property.
What are you talking about? If I copy an apple, I created an externality. Unless you covered such an occasion by contracts, your ownership does not extend to it. Exactly the same way as externalities are handled with regards to material goods.

> And most importantly your unilateral appropriation
> of my apple design would throw out the pricing
> mechanism (per Silas Barta) for creating new
> apple designs and varieties, especially those that
> were costly or time-consuming.
Yet, for some strange reason, none of the IP proponents are bothered by the same effect being achieved by externalities or substitutes. For some strange reason, you keep asserting that there is a difference between an illegitimate copy and an externality, between an original and a substitute, without explaining anything. I keep explaining that there is no such difference, and you just shrug it off.

> The need for a little rulemaking, like we have with
> real property exclusion, is a lot better than
> throwing out the pricing mechanism and installing
> IP collectivism.
Your argument fails on externalities, substitutes, etc.

> What’s important with homesteading is not only
> that the land is identified, but that you are
> identified as the owner (the one mixing their labor
> with the land) and that this is acknowledged.
This is only at the second stage of the theory. In the first, it needs to be determined what a homesteading would mean. You have to define it first, which you haven’t because your conditions are insufficient.

Explicitly or implicitly, you provide some of the following conditions for homesteading:
- causality (you admitted insufficient)
- similarity (you admitted subjective)
- utility (you denied as a condition)
- meaning (you have not mentioned this but I added it for completeness’ sake)

I think that you are mentally stuck with this approach to defining property. As I have demonstrated however, this approach does not deliver a usable definition. This is the core issue that you need to solve before the rest of your arguments even are relevant. You need either to make your conditions sufficient, or abandon this approach. I did the latter: I abandoned this approach and favour a different one, that is based sufficient conditions and measurable boundaries.

Niko Matsakis February 23, 2010 at 7:50 am

On a related note, I like this scheme for reorganizing patent law. The key idea is to change the law so that the value of a patent is proportional to how much effort it saved you in practice. This means that ideas which take a long time to think up but, once conceived, are easily reproduced, get more protection than ideas that are simply a lot of engineering effort. I think this intuitively lines up with what we expect from patents, while preserving the right of an inventor to invent freely without fear of what others might have done in the past.

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