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Source link: http://archive.mises.org/12732/the-ethical-case-against-intellectual-property-by-david-koepsell/

The Ethical Case Against Intellectual Property, by David Koepsell

May 17, 2010 by


Ohhh Henry May 18, 2010 at 10:23 am

A good lecture.

I don’t think that the radio spectrum is a true commons however. While it is true that one cannot stop another person from transmitting on the same frequency which one has homesteaded, it is also true that if one owns a large farm one cannot practically prevent people from trespassing, cutting wood or stealing apples from one’s orchard. It is not the ease of defending the property which determines whether it is real property or not, but whether the use of your property by someone else diminishes your own enjoyment of the property. Thus the human genome pattern is not homesteadable and not property, but the radio spectrum is.

An interesting supplemental question is *why* laws are passed by governments which violate natural law. The answer is that this is government’s real purpose and its stock in trade – to violate natural law to benefit those who control the government. Government itself is lawless.The time and energy which governments spend attempting to enforce true property rights – for example catching burglars – represents only a relatively tiny amount of their activity. Government spends vastly more effort trying to violate the law – for example with foreign wars, welfare spending, the war on drugs, enforcing intellectual property laws, and so on. It is vital for propaganda reasons for governments to spend a slight amount of effort on enforcing natural law, but they expend only enough effort as required to achieve the desired propaganda effect and only when it does not interfere with government’s main rackets.

The reason that the government spends so much time violating the law and so little time enforcing the law is that there is very little money to be made in enforcing natural law. Everyone recognizes natural law and therefore everyone mostly obeys it and transgressions by private individuals are relatively rare. But to create entire new fields of unnatural law is tremendously lucrative. There are an infinite number of ways to create absurd new categories of non-existent property and then appoint one’s self and one’s cronies to either own it or enforce it. Pointing out the absurdity of unnatural laws such as intellectual property is a useful activity, but the herd of velociraptors in the room is the gang of goons who are constantly egging people on to pioneer non-property rights so that they can give themselves the job of beating up and shaking down everyone who violates those non-rights.

Chip D. Panarchy May 22, 2010 at 12:35 am

I don’t think that the radio spectrum is a true commons however. While it is true that one cannot stop another person from transmitting on the same frequency which one has homesteaded

Yes, you can stop another person from transmitting on the same frequency.Have you heard of Jammers?

Silas Barta May 18, 2010 at 3:39 pm

I can’t see the video, but based on the above comment, it seems the video indicates people are finally having to take the EM spectrum’s similarity to IP seriously. Wonder if I’ll get any credit for it?

Beefcake the Mighty May 18, 2010 at 4:10 pm

The only thing you deserve is an habanero-laced enema.

Plimothrock May 18, 2010 at 4:20 pm

He already receives one every Sunday.

Beefcake the Mighty May 18, 2010 at 4:24 pm

Ahh, then there is some justice in this life, I guess.

Abhilash Nambiar May 19, 2010 at 5:47 am

Radio spectrum is not a ‘commons by necessity’. It is a scarce good that can be homesteaded and once homesteaded it can be bought and sold. Air also is not a ‘commons by necessity’. Air is in fact bought and sold today. Like the oxygen used in hospitals and airlines, or helium used for balloons or neon used in lights, propane used in stoves and so on. Air in its most commonly used form (for breathing) is not bought and sold because it is super-abundant, but that also used to be once true for water.

I do not understand the need for the ‘commons by necessity’ concept it is more than just unnecessary, it confuses the issue. The nature of the argument is that scarce goods (like genes and Radio Waves) cannot be owned because it remains in the public domain and that never can change. Of course it can, through homesteading, things can move from the public to the private domain. That is how, I own my genes and you own yours. The reasons ideas cannot be enclosed or possessed is not because it belongs to category called ‘commons by necessity’, it is because the concept of scarcity does not apply to them. Only scarce goods can be possessed and enclosed. And indeed through the patents and copy rights restrictions are applied on how scarce goods are used and these restrictions are violations of property rights.

The reason why genes cannot be owned through gene patents is best understood by Stephan Kinsella’s argument against intellectual property. The fact that you discovering a new way to use scarce goods (in case of writing a book, that could be paper and ink) does not give you any new rights over how somebody else uses their scarce goods.

In the case of genomes, the argument may go something along these lines. The fact that you can use your time and effort to study genomes does not in any way give you right over how I use my time and effort (to study genomes or use genomes or otherwise).

In short David Koepsell’s argument against intellectual property sounds a lot like the argument of the monetarists against the Fed in that it is not well thought out.

David Koepsell May 31, 2010 at 5:01 am

Since delivering this lecture, I have amended my theory of commons, realizing thanks to some observant students that certain things are commons by “logical”necessity (like laws of nature), and others are commons by “practical”necessity, like water, air, radio spectra (which are all simply very hard to enclose). I do think this actually clarifies the nature of unencloseable vs. merely scarce resources, and contributes to an understanding of the nature of bona fide ownership vs. intellectual property. Ideas are, of course, a commons by logical necessity, making for the strongest case against IP one can think of.

Julien Couvreur May 19, 2010 at 10:36 am

The author makes one argument about a category of objects that are unenclosable. He purports that such unenclosable objects are commons by nature, or by fact. For example, genes, ideas, the atmosphere or the radio spectrum.

It is fair to say that those things are different than land, a car or a tree, which are enclosable. But somehow this categorization does not seem the most natural to me.

The biggest reason why ideas and information are not (intellectual) property is that they are non-rivalrous; my taking is not your loosing that idea or information (although you may be loosing some value out of it).

On the other hand, I am still wondering about the atmosphere and the ocean. Could individuals “own” the ocean and manage to divide it in a meaningful way?

antiip May 20, 2010 at 1:34 pm

“Could individuals “own” the ocean and manage to divide it in a meaningful way?”

Yes, the same way the can homestead land and its resources.

Only matter can be owned. Every “idea” is present in a material object. There is no such thing as matter-less idea.

Therefore only property rights in matter without property rights in “ideas” can exist without creating inconsistency because property rights in “ideas” would mean property rights in patterns materialized in x to infinite objects in this world and thereby overruling material property rights.

Dantiumpro June 2, 2010 at 10:03 am

An excellent point, right to the heart of the matter IMO.

EM spectra, the oceans, biological cells are all physical media; therefore they are subject to the same property claims that we have understood and based our laws upon for centuries. We can all get with John Locke and take ownership by mixing our labour with these media.

In the process of mixing our labour we impart information on the medium, changing it in some way from its natural state. So we have the medium, our action (labour), and the information that is now embedded in the medium; we own that part of the medium that we have affected, except where someone has a prior claim through their action upon it. The information cannot exist outwith the media.

An action will follow some process, either defined or ad-hoc, which is itself information – how to sow a seed for example. If a person can own a process to the extent that anyone copying it owes them a royalty, it is effectively a claim on others’ labour and fruits of their labour. This might be considered just reward for sharing the process and allowing others to benefit; however, we know that labour and physical media are necessarily limited whereas ideas (or how many ways to skin a cat) are not. Therefore we can have infinite intellectual property claims over a limited number of physical resources and it becomes more profitable to invent than to perform physical actions as the raw materials (concepts) are more abundant in the former case. Some will not be able to afford the premium for using the process as they have already committed much of their labour to other IP claims and therefore do not gain the use of the innovation. A familiar scenario.

So what is the equitable and economically viable alternative?

The issue is, the originator of the process has already had the reward for their invention / discovery, i.e. the use of it. If the process is, say, a novel way of using aquaculture to raise a more productive crop, the increased productivity each time the originator uses it is the reward for their discovery. Moreover, by sharing their discovery the inventor helps to increase overall output in the economy as each new follower of the process experiences higher productivity.

None of this costs the originator a thing – they still have use of their invention – although some may argue the increased supply of the crop due to increased productivity would diminise the value of the end product. The intrinsic value of the crop certainly isn’t affected but then neither is the relative value – this process of innovation doesn’t occur in vacuo but rather across fields of human endeavour; as we innovate, there is either more of most things, or the same amount more easily gotten, or combination of the two. We are moved away from scarcity toward abundance, from monopoly toward perfect competition, even mutualism as we share innovations.

Like the Fosbury flop, it just means we can all jump higher and make better use of the intellectual commons for our individual and collective ends. I struggle to understand why we now have infinite claims (rather than just wants) over limited resources when the alternative is so obviously open-source pirate-bay crowdsourced in-your-face.

Perhaps they should teach the difference between medium and information at school? “Now children, enclosed in this matter is an idea and it is the property of the school. If you copy it, we will own part of what you copy it on to. Any questions?”.

antiip May 20, 2010 at 1:35 pm

First sentence of my above post should read: Yes, the same way theY can…

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