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Source link: http://archive.mises.org/13399/the-death-throes-of-pro-ip-libertarianism/

The Death Throes of Pro-IP Libertarianism

July 28, 2010 by

The libertarian IP awakening seems to have caught the old-guard libertarian defenders of intellectual property slumbering, clinging to the fossilized remnants of their arguments. FULL ARTICLE by Stephan Kinsella

{ 532 comments }

Slim934 July 28, 2010 at 7:30 am

My stance on IP came totally to the “IP=state granted monopoly privilege” after reading 2 sources.

Kinsella’s work on the actual effectiveness of IP at it’s stated goal, and then his systematic analysis as to the inherently arbitrary and silly nature of what does and does not constitute IP very heavily tarnished the entire concept in my mind.

The death blow was when I read the first chapter of Dr. Hoppe’s “A Theory of Socialism and Capitalism”. The combination of Kinsella’s reappraisal of the actual mechanics of IP, coupled with Hoppe’s explanation as to why property rights come in to being to begin with (to end disputes among different players over scarce resources) was all it took. Combining the two destroyed any real legitimacy I felt the concept still had.

Russ July 28, 2010 at 8:12 am

“…Hoppe’s explanation as to why property rights come in to being to begin with (to end disputes among different players over scarce resources)….”

Just because this is the reason Hoppe uses to justify regular property rights, it does not follow that this is the only possible reason one could reasonably use to justify IP rights.

Darcy July 28, 2010 at 7:52 am

I actually switched to pro-IP from a libertarian anti-IP stance, after I carefully studied the economics and physics of information, which you have not.

Curt Howland July 28, 2010 at 2:27 pm

“after I carefully studied the economics and physics of information, which you have not.”

Excellent. Have you written up your support of I.P. to convince the non-believer and back up your assertion?

Darcy July 28, 2010 at 8:06 am

I must add that it seems to me that the sudden proliferation of IP-related posts on the Mises blog relative to all other, much more urgent subjects, demonstrates that it is the IP opponents who are suddenly getting desperate, that they have found that the IP proponents have seriously injured their argument and that something must be done to drown out their voice.

Russ July 28, 2010 at 8:14 am

I agree that there are more urgent subjects that mises.org could be taking on. But I think the reason for the “sudden proliferation” is simply that every once in a while the powers that be here get on an IP jag, not that they are have a sense of desperation.

Darcy July 28, 2010 at 8:16 am

Why else but desperation would Kinsella go through the process of replying point-by-point to blog comments?

Russ July 28, 2010 at 8:48 am

Because:

1) He believes the topic is important.

2) He is a lawyer, and as such, is naturally drawn to debate. In other words, he likes to argue.

Stephan Kinsella July 28, 2010 at 10:31 am

funny, let me get this straigth: the Libertarian IP Relics are criticizing me now …. because I reply to them and answer their questions? Wow.

J. Murray July 28, 2010 at 11:08 am

I saw that same illogical conclusion myself. There isn’t anything desperate about answering legitimate debate questions. The only time answering a question is when being accused of something you’re cleraly not (ie racism).

Curt Howland July 28, 2010 at 2:40 pm

Stephan, there is one logical conclusion you’ve missed, they’re not asking questions.

First principles time. Since using someone else’s idea is “theft”, everything that follows is either rationalization to justify that theft, or in support of punishment for that theft.

Sadly, I don’t see any way around it. Unless the logic of the position persuades all by itself, no quantity of “argument” is going to do anything but solidify the believer’s faith in their first principle.

So of course the believer is going to attack your method, since your arguments themselves are just so many nonsense syllables to them.

Stephan Kinsella July 28, 2010 at 4:00 pm

Curt, of course there is no theft–the owner still has his thing and information. Nothing is taken from him.

Curt Howland July 28, 2010 at 6:54 pm

“of course there is no theft–the owner still has his thing and information.”

I know that, and you know that, but to the pro-I.P. person, it IS theft. The idea was taken and used. Not borrowed, not shared, “taken”. I agree it’s a mis-use of the language, but that is how they feel.

That’s what I mean about “first principles”: To you it’s not theft, to me it’s not theft, to someone else it is. And we descend into simple argument:

No it isn’t.

Yes it is.

No it isn’t.

Yes it is.

and so on.

Russ July 28, 2010 at 7:05 pm

“I know that, and you know that, but to the pro-I.P. person, it IS theft.”

The thinking, of course, is not that somebody deprives somebody of his copy of the IP by making another copy of it. The thinking is that the copyer deprives the owner of the IP of his profits, which he supposedly has a right to, since he originated the IP. This is similar to the case where somebody builds a widget, and another person deprives him of his right to make a profit off it by selling it (in this case, by truly stealing it). Granted, the cases aren’t identical, because of the “non-rivalrous” nature of IP, but there are marked similarities. It’s no wonder that some people consider the two cases morally equivalent.

Peter July 28, 2010 at 7:28 pm

This is similar to the case where somebody builds a widget, and another person deprives him of his right to make a profit off it by selling it (in this case, by truly stealing it).

No it isn’t. It’s similar to the case where somebody builds a widget, and another person deprives him of his right to make a profit off it by selling it (in this case, by selling the buyer something else he prefers instead). E.g., it’s the same as Pizza Hut opening a restaurant in a town already served by a McDonalds.

Russ July 28, 2010 at 7:57 pm

“E.g., it’s the same as Pizza Hut opening a restaurant in a town already served by a McDonalds.”

No, it’s not the same, because Pizza Hut can’t open a restaurant by effortlessly making a copy of a MacDonald’s after MacDonald’s has gone to the considerable trouble of building it, and then changing a few things around and making easy, high profit.

Peter Surda July 29, 2010 at 4:45 am

The thinking is that the copyer deprives the owner of the IP of his profits, which he supposedly has a right to, since he originated the IP.

So wait a minute. You first rejected the proposal that owning of immaterial goods is based on their metaphysical identity. Now you reject your former claim that it is based on sharing attributes and propose that it is based on a right to profit. So which is it?

Oh, besides, the phenomenon you address merely means that the illegitimate copies are substitutes. Do you have a right to profit from substitutes?

Peter July 29, 2010 at 8:19 am

No, it’s not the same, because Pizza Hut can’t open a restaurant by effortlessly making a copy of a MacDonald’s after MacDonald’s has gone to the considerable trouble of building it, and then changing a few things around and making easy, high profit.

But that isn’t what you said. You talked of “depriv[ing] the owner of the IP of his profits, which he supposedly has a right to” — without taking anything else away from the “owner of the IP”. This is precisely analogous with the Pizza Hut/McDonalds case, and not at all like your stealing scenario.

Huntsmen July 28, 2010 at 12:09 pm

You should see his comments at the No-Treason Blog and Distributed Republic. He goes much lower than arguing.

Magnus July 28, 2010 at 10:02 am

Critiquing other people’s selection of topics is always a red flag for me.

You choose to comment on this topic, yet you also claim that the selection of topics is somehow inferior to what you would choose. You’re like a fat guy telling everyone how to lose weight — your actions refute the content of your message.

If your taste in topics and style of writing are so clearly superior, and these alleged “urgencies” that you claim to have identified really exist, then what are you doing wasting your time posting comments here?

By your own argument, you really ought to spend more time starting your own blog and gathering readers, and less time trying to tell other people how to run theirs.

Or are you satisfied with being the lone voice in the darkness, who alone sees the truth of all things IP, and yet are wholly incapable of attracting an audience, building an institute and running a popular blog, that you must instead contribute to this one as a mere commenter?

Stephan Kinsella July 28, 2010 at 10:32 am

Yes. And the thing is, having a clear view on IP removes roadblocks to a better understanding of property and even economics–such as the role of information and knowledge in an economy and how it should not be treated as a type of scarce resource like means of action are. This is significant.

Silas Barta July 28, 2010 at 10:42 am

So ideas that don’t even exist yet should be treated as non-scarce? Wouldn’t that lead you to make some pretty significant errors in economic praxeologicalistic methodology?

Stephan Kinsella July 28, 2010 at 11:12 am

Silas, you are talking nonsense as usual. Why don’t you stop being a gadfly and be serious.

Silas Barta July 28, 2010 at 11:17 am

I was serious (and seriously mocking the focus on a class called praxeology).

Let me put it another way: aren’t you going to make serious errors in economic analysis if you assume all ideas are non-scarce, given that some don’t exist yet? (in the sense that they’ve never been instantiated)

If your economic analysis assumes the possibility of production method that aren’t possible (due to no one knowing them), which you do by treating all ideas as non-scarce, then you will infer invalid conclusions, right?

Stephan Kinsella July 28, 2010 at 12:11 pm

Silas, an idea is just information. Information is not scarce. Ideas that don’t yet exist are neither since they don’t exist. You are flogging a dead mule dude. Big dead end you have backed into. Mabye out of petulance, since your first communications to me were IP sketpical, but since I insisted you needed more footnotes you stamped your feet and rejected it, I guess.

Silas Barta July 28, 2010 at 12:24 pm

@Stephan_Kinsella: If non-existent ideas aren’t scarce, where can I get them for free?

And if you’re going to try to define away the problem by decreeing that scarcity is an inapplicable concept, then you’re saying that you can’t account for the role of new ideas by only using the concept of scarcity.

Doesn’t that support my point that you’re going to make errors in economic analysis when you try say that all information is non-scarce?

Think about it.

Julien Couvreur July 28, 2010 at 1:10 pm

I think the discussion is stuck over the term scarcity.

Silas’ argument regarding the cost of creating ideas and information is valid, and not-yet-invented ideas count towards that scarcity.
But it does not invalidate Stephan’s argument (non-rivalry, replicability, managing conflicts).

If scarcity means “limited in quantity”, then ideas and information is indeed scarce. But you are not trespassing when you replicate them, which means that it is not “property”.

Property rights can be seen as a systematic solution (probably the only one) to managing a natural problem (conflicts unavoidable due to scarcity, rivalry, etc.). Intellectual property seems to create a problem where there is no such natural problem (there is still scarcity of new ideas, but no scarcity of replicas of existing ideas and there is no usage exclusivity/rivalry).

Peter Surda July 28, 2010 at 1:26 pm

@Julien: It is nice to see someone who shares my opinions.

Curt Howland July 28, 2010 at 2:44 pm

Julien,

No one on either side of this discussion has ever tried to assert that the creative spark isn’t scarce. I think it’s the most scarce thing it is.

As such, it deserves whatever remuneration the creative individual is able to negotiate for themselves. Picasso selling a painting for $10M? Fine by me. Someone selling a copy of it for $1? Also fine by me.

Do you see the difference?

Julien Couvreur August 11, 2010 at 3:39 pm

@Curt Howland

“As such, it deserves whatever remuneration the creative individual is able to negotiate for themselves.”

If creators can negotiate remuneration for their work (a confidential blueprint, a CD with some music, …), that’s fine. I don’t think Kinsella objects to that. I don’t either.

The question is whether the law should prevent me (as consumer of the creative work) to use it in any way I want, within the parameters of the contract with the creator.

Currently, the copyright and patent law prevents me from using my legitimately acquired property (my brain included) in ways that I want, outside of explicit contracts with creators. For example, if I independently invent something similar to your patent, you can sue me. That’s wrong.

The reason it is wrong is fundamentally because ideas and information are not rivalrous goods.

Matthew Swaringen July 28, 2010 at 5:08 pm

Talking about scarcity in non-existent ideas is like talking about scarcity in dragons or unicorns or zombies. None of these exist. I don’t think the term holds any meaning when used for something that doesn’t exist.

Even if you were to go with something now extinct that used to exist I think saying the creature is scarce isn’t meaningful.

Peter July 28, 2010 at 5:59 pm

Pretty sure I saw Tom Woods being interviewed by a zombie recently :)

mpolzkill July 28, 2010 at 10:22 am

“I agree that there are more urgent subjects that mises.org could be taking on”

Problem is, Russ is on the wrong side of those. Or maybe you’ve recanted on your support of this Security State? As I’ve suggested time and again, Russ, if you don’t like the balance of powers here, why don’t you drop your cloak of anonymity and present your own scholarly papers here? Have you? Do “the powers” reject them? I would love to see you become the expert around here on these basic matters. First, if you would, your thoughts please, thank you:

http://original.antiwar.com/henderson/2010/07/25/life-in-the-ussa/

[I don't have any decent thoughts, I've been scared into a stupor.]

You could post your thoughts somewhere else. I’ve been waiting for years (I think) to hear all of your thoughts on 9/11 because I guess you can never find the right forum.

Russ July 28, 2010 at 11:30 am

Russ wrote:
“I agree that there are more urgent subjects that mises.org could be taking on”

mpolzkill wrote:
“Problem is, Russ is on the wrong side of those.”

Gee, I was thinking more along the lines of Obamacare, cap and tax, and so forth, on which (I assume) you are on the same side as me.

I don’t really consider anarchism/minarchism to be a strategically important subject, because I consider anarchism to be a complete non-starter in the real world. Hell, even minarchism has about a snowball’s chance in hell.

Regarding the anti-war article, gee, Buzzkill, I didn’t know you cared so about my opinions! Yeah, why don’t we just unilaterally disestablish our military, hand Israel over to the Muslims, and completely open our borders. Then everybody will love us, and we’ll have nothing to worry about, right?

mpolzkill July 28, 2010 at 2:29 pm

Oh, I care. I’m very disappointed that all I ever get on these topics from you are these emotional diversions. “The Muslims”, pshht. Hands up, who’s more afraid of the Caliphate than they are afraid of, for starters:

* Some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security, and intelligence in about 10,000 locations across the United States.

* An estimated 854,000 people, nearly 1.5 times as many people as live in Washington, D.C., hold top-secret security clearances.

* In Washington and the surrounding area, 33 building complexes for top-secret intelligence work are under construction or have been built since September 2001. Together they occupy the equivalent of almost three Pentagons or 22 U.S. Capitol buildings – about 17 million square feet of space.

* Many security and intelligence agencies do the same work, creating redundancy and waste. For example, 51 federal organizations and military commands, operating in 15 U.S. cities, track the flow of money to and from terrorist networks.

* Analysts who make sense of documents and conversations obtained by foreign and domestic spying share their judgment by publishing 50,000 intelligence reports each year – a volume so large that many are routinely ignored.”

Maybe you’re right though, maybe I just haven’t seen what the Caliphate can do. I *have* seen what the U.S.S.R. and the KGB and the Stasi could do to their own people though.

And “Buzzkill”, I like that. I want to be like Mike and flatter myself here: on the internet and bar prowl, killing the buzz of fat and happy house slaves.

Russ July 28, 2010 at 4:05 pm

I saw what the “Caliphate” could do on 9/11. Maybe you missed it because you were too busy focusing on us house slaves?

mpolzkill July 28, 2010 at 4:09 pm

Yeah, silly me, 19 thugs with box cutters killing 3,000 people could have nothing to do with the mental state of the house slaves.

(among other things)

Russ July 28, 2010 at 4:26 pm

Yeah, it’s all the fault of the damned house slaves. Yep, if it weren’t for their false consciousness, we’d be living in utopia. Hell, this blaming the victim stuff is candy-assed; why don’t we go into full-fledged Stockholm Syndrome and start identifying with the Islamic extremists like the left does. Yeah! There’s the ticket. Nothing was the fault of those 19 thugs with boxcutters, or the millionaire whackadoodle who funded them. They were all just acting out, because of years of oppression from the Great Satan, the US, and our evil butt-buddies, Israel. We shoulda just sent them to the corner for a time-out.

mpolzkill July 28, 2010 at 3:49 pm

I’ll try to scream this just one more time, Russ. The people setting up this security state, and the people setting up RomneyCare writ large, and the people setting up cap and tax, and the people expanding and beefing up “IP” law (to try to get back to our host here): They’re all the SAME FREAKING PEOPLE!!!!!!

Russ July 28, 2010 at 4:20 pm

Yeah, so?

My point is, barring the successful inception of Ancapistan in the US (which ain’t gonna happen anytime soon, judging by the fact that a majority of voters apparently thought that Obama was a good idea), government gets the job of protecting peoples’ rights. So we might as well accept that, and not rag on the government just for being the government. There are plenty of more sensible reasons to rag on the government. For instance, ObamaCare. ObamaCare doesn’t protect the average US citizens’ rights; it violates them. Or cap and tax. Cap and tax doesn’t protect the average US citizens’ rights; it violates them. But preventing people from getting burned to death with aviation fuel in their workplaces by terrorists does protect the average US citizens’ rights, so I’m OK with that for now. And if a few known terrorists have to get eavesdropped on or, yes, even waterboarded, to effect that protecttion, I don’t really care.

BTW, even Obama ain’t quite so bad as the KGB or the Stasi yet. Don’t you think that kind of hyperbole is a bit much?

mpolzkill July 28, 2010 at 4:35 pm

Yeah, that’s the thing, “yet”. Just wait, sleepwalker. This “Ancapistan” crap…total lack of understanding…hopeless. I’ll leave you alone, sweet dreams, and really, you should get your own blog, you’ll be less frustrated with all of us pinkos.

- – - – - – - – - – - – - – - – - -

Anyone awake here who hasn’t seen this video about “our protectors”, this chump just reminded me of it again:

http://www.youtube.com/watch?v=wZtPzOukjZA

Russ July 28, 2010 at 4:44 pm

You’re just a beautiful dreamer, Buzzkill. You dream of getting rid of the State, because you imagine that in one fell swoop it would irreversibly make the world a better place. Then we could just get on with the business of living, without all this nasty business of watching the watchman. Yeah, that would be nice. But it ain’t ever gonna happen. Welcome to the real world. You might as well man up and accept it, because living in your dream world of denial does nothing but make you resent the real world and and everyone in it.

Russ July 28, 2010 at 4:48 pm

Oh, BTW, I do not consider you, or most of the people here, to be pinko. Sure, there is michael, and billwald, and other assorted retards. But they aren’t representative of the site. At least here, there are different kinds of mistakes than the ones repeated on TV news every night, made by people who for the most part can still think.

mpolzkill July 28, 2010 at 4:52 pm

Complete crap and so very dishonest as well. I’m a panarchist as I’ve told you, I don’t know, 36 times? And I try to tell people over and over and over again that if they want a government, they’re right to want a republic. That’s why they should set about getting one instead of being fooled by these horrifying gangsters and their crony capitalists who run this faux republic and empire. Wake up, I don’t hate sleepwalkers, my voice gets a bit shrill and hoarse from time to time, though, I’ll admit. Something to do with soul rending terror. And I really hope I’m wrong, doubt it, I’ve seriously studied history.

Russ July 28, 2010 at 5:00 pm

“I’m a panarchist as I’ve told you, I don’t know, 36 times?”

Anarcho-libertarian, panarchist, I don’t see a difference. They both want competing governments, so they’re basically the same thing.

“And I try to tell people over and over and over again that if they want a government, they’re right to want a republic.”

That’s what I do want, since I consider myself a classical liberal. I just think that one of the rightful functions of a republic is to protect the rights of its citizens, including the rights to not be blown up in the street, and the right to not be made into the bitches of the Ummah.

“…I’ve seriously studied history.”

And you still think panarchism is possible???

mpolzkill July 28, 2010 at 5:05 pm

A Republic can’t be this large, this is not a Republic, and it is not going to protect you.

Who said it was possible? There would have to be an *end* of history.

Oh, and the “pinko” was an attempted reference to your empire’s last aggrandizing terror scam.

Russ July 28, 2010 at 5:14 pm

“A Republic can’t be this large…”

Says who?

“…and it is not going to protect you.”

I hate to blaspheme and speak well of the Devil, but Bush’s administration did apparently prevent any further terror attacks on US soil after 9/11.

“Who said it was possible? There would have to be an *end* of history.”

Yeah, so you favor a political organization that is impossible. Which is silly. It’s like refusing to have sex with the kinda cute girl next door, because you’re saving yourself for Megan Fox (or whoever). Or going on hunger strike because you want filet mignon, and there is only hamburger.

mpolzkill July 28, 2010 at 5:26 pm

“Says who”

Oh, I don’t know, Plato, Aristotle, Montesquieu, Hume. Madison knew better, but went along with this hare-brained scheme for some reason.

“Bush”

No, Russ, I have a magic rock, I took it out on 9/12 and I do a special magic dance to it every day. You better be nice to me and hope you’re not right about me hating all of you house slaves.

Besides the fact that your Empire will probably crumble in our lifetimes, being a house slave destroys one’s soul.

“political organization”

This is why I say that you were an anarchist like Michael Bolton was a soul singer.

Russ July 28, 2010 at 7:54 pm

“This is why I say that you were an anarchist like Michael Bolton was a soul singer.”

Hah. Good one. But unlike Bolton, I don’t claim to be an anarchist.

Gil July 29, 2010 at 3:25 am

You want a Republic mpolz? What for? Didn’t Hoppe point out that Monarchies are more stable and having a longer term outlook than Democracies?

Peter Surda July 29, 2010 at 4:01 am

government gets the job of protecting peoples’ rights

What about the economic calculation argument? If you are not paid according to customer satisfaction, how do you know what resources to use and what services to offer?

Security is even harder. Most of what is presented as security is just a theater. It makes the impression of grandiose projects and impressive measures, with dubious effectiveness. I think it was Bruce Schneier who said that the only two changes made so far that will actually help to prevent situations like 9/11 in the future are the reinforcement of cockpit doors and that the passengers now know to fight back (rather than, as it was before, sit quietly while expecting hostage negotiations).

Also, the guys in charge have trouble with logic: http://www.youtube.com/watch?v=u7OvOf-T2Hc

And if a few known terrorists have to get eavesdropped on or, yes, even waterboarded, to effect that protecttion, I don’t really care.

You know, I actually don’t care about that either. What I do care about is that innocent people are being aggressed against, and an elitist class of untouchables rises. Even if we abandon principles and look at the problem from a utilitarian perspective, what is happening does not make sense either. Most of the measures have these effects: the growth of government, increasing wealth redistribution and violations of property rights. Believing this increases security does not make it so.

Daniel Coleman July 28, 2010 at 10:26 am

IP opponents are far from desperate. The reason there is a proliferation of new material is because, until roughly 15 years ago, hardly anyone was opposed to IP. Up until roughly 10 years ago, there was scarcely any serious libertarian debate on the subject. And up until roughly 5-6 years ago, even many Austrian anarchists remained pro-IP. It’s still a field or research and argument that is in its first stages — it’s on the cutting edge of libertarian theory.

Not only is it new, but it’s tremendously exciting and forward-thinking. The Mises Institute is one of only a handful of organizations to take a hard anti-IP stance with their own material, putting as much of it out there as they can. It has sparked a revolution in publishing and drastically increased the number of people who have heard about Austrian economics.

It’s been especially exciting for younger libertarians. Jeff Tucker relates often that wherever he goes to speak, it’s just about the only subject people want to talk to him about after he lectures.

Desperation hardly describes the state of these libertarian theories on intellectual property.

Franklin July 28, 2010 at 4:29 pm

“Not only is it new, but it’s tremendously exciting and forward-thinking.”

Yes! Hurrah, Daniel. This seemingly innocuous sentence – no, adjective — struck me, lifted me.
“Exciting.”
For me you have defined the libertarian paradigm, the libertarian outlook.
It’s what it means to be libertarian, to be an Austrian, an individualist.
It is the difference between those who prefer stasis and those who welcome dynamism.
It is optimism, intrigue, the fearlessness to welcome all ideas, and the evolution of ideas.
It is the way we embrace and assess cultures, philosophies, other human beings.
We define the future not as frightening; we embrace the challenge and the hope.
We recognize the virtually infinite nature of our environment, our knowledge — our dreams.
Allow me my celebration nested deep inside this scholarly debate.
Thank you for this. It is all very “exciting” indeed.

Curt Howland July 28, 2010 at 5:22 pm

That “hardly anyone” included one of the most prolific, Leonard E. Read and the FEE.

As has been addressed on Mises.org, Read not only deliberately eschewed copyright, he deliberately and loudly placed everything in the public domain, not even asking for attribution.

He realized that the ideas are more important than anyone.

I don’t have his self confidence. I like receiving attribution, if someone is directly inspired by something I write.

Darcy July 28, 2010 at 5:23 pm

Strangely enough the Mises Institute does not put material in the public domain, it copyrights them under Creative Commons.

Information wants to be free only so far…

Darcy July 28, 2010 at 5:22 pm

Communism and opposition to property rights is hardly a new idea.

The Mises Institute copyrights its material, and so it is itself a proponent of IP demonstrated in action.

Curt Howland July 28, 2010 at 5:23 pm

Darcy, if you understood anything about copyright, you would realize that copyright is automatic. No one “places” their work under copyright any more, it just is.

Look it up.

Darcy July 28, 2010 at 5:24 pm

When you deliberately inscribe that your material is copyrighted in your material, then you are choosing to restrict the rights of the readers.

Look at the bottom of this page. There is a creative commons tag. There is not a public domain tag.

Peter July 28, 2010 at 6:05 pm

You don’t know what you’re talking about, as usual. Saying “copyright” on your material doesn’t change a thing. It neither adds nor removes any restrictions on readers or anyone else.

Barry Loberfeld July 28, 2010 at 8:17 am

Objectivists, on the other hand, maintained that what Ayn Rand spoke and practiced on the subject remains the unalterable truth.

Though this reads like a caricature, it is Leonard Peikoff himself who has maintained that “what Ayn Rand spoke and practiced” on anything “remains the unalterable truth.”

Shay July 28, 2010 at 12:50 pm

I’ve seen the pro-IP people accusing Austrians of going against their own “gods”, by countering things Mises, Rothbard, etc. wrote about copyright, as if Austrains shouldn’t ever improve on their ideas.

Curt Howland July 28, 2010 at 5:25 pm

Roderick Long’s great line, “Mises was not a Misessian”.

Jesus wasn’t christian, either. Funny thing.

Aubrey Herbert July 28, 2010 at 8:24 am

Ohh snap!
R.I.P pro IP… R.I.P.

Aubrey Herbert July 28, 2010 at 9:55 am

For the supporters of IP; (you’ll love it)

http://www.youtube.com/watch?v=jsaTElBljOE

Saerden July 28, 2010 at 8:30 am

Darcy, could you please elaborate on the physical nature of information, the relationship with entropy etc? What kind of IP-system does this imply?

Darcy July 28, 2010 at 5:02 pm

It’s been done on the very own Mises Institute forums,

http://mises.org/Community/forums/t/13841.aspx
http://mises.org/Community/forums/t/13692.aspx

Although some of the guys were then banned from the forums for embarrassing the moderators. More insecurity demonstrated.

Peter July 28, 2010 at 6:11 pm

Haha. Hilarious. Ridiculous, though. (“Avatar takes 10Gb and it only requires 266 bits to label every atom in the universe.” Hahaha. So Avatar can’t exist in this universe!)

Darcy July 28, 2010 at 6:16 pm

You have utterly failed at physics.

Peter July 28, 2010 at 7:31 pm

I don’t think so. It’s you who fail, if you buy this line of nonsense.

Saerden July 28, 2010 at 8:14 pm

I was hoping for some deep insights into the nature of the universe, observation, entropy, quantum mechanics.

The second link is a collection of nonsense. “Fallacy” 5 is especially confused.
The first link is just plain hilarious. Ownership in natural numbers (=bit pattern).”Informational universe”. This is basically comedy. Or tragedy, if people actually take this seriously.

You do realise that if you are correct, there is about a pretty decent chance that you are a slave to some space slug civilisation in another galaxie who “homesteaded” the entire “bit pattern universe” 5 billion years before you did, right?

Seriously, fact is that outright 1:1 copying of bit patterns is the least of our problems. Noone concerned with civilisation really cares strongly about wether kids can download movies. The dealbreaker is the enforcement (total tyrannical control of peoples home) necessary to achieve that. But even if we could somehow guarantee that enforcement never becomes tyrannical, the real problems with IP are not copying but innovation and imitation. “Copying is not theft” is true, but its the least of our worries.

Without entrepreneurs “stealing” business practices that work, there would be no market in the first place. This is the real problem. IP – if taken seriously – is the most fundamental attack on the free market, far more important then the current clown in power and his newest healthcare ponzi scam.

When J. K. Rowling can shut down stories because they happen to be about a young wizard named Harry Potter, its unjust, but not that threatening – maybe its even amusing. When a corporation can shut down YOU because your DNA happens to be “similar” to a DNA pattern they own, its stops being funny at all. It may sound over the top – yet this is exactly the secenario your linked threads propose. If you “own” a bit pattern that represents a DNA, then you own the person whose DNA pattern is “similar” – he violates your copyrights by simply existing. This isnt even that far fetched as technology may allow growing children from designed DNA in the next century.

If your theory produces conclusions like that, its time re-examine it honestly.

Gil July 29, 2010 at 3:30 am

Why would it be wrong for J.K. Rowling? She’s protecting her creations but that’s not the same as prohibiting any one from creating their own wizard stories. If I.P. was all-encompassing then Rowling would be unknown because she would be infringing on Tolkien’s work.

dave b July 28, 2010 at 9:05 am

Stephen,

You have opened my eyes to the case against IP. I never thought of it before until I kept checking your FB posts and some here. This post was loaded with additional information that will take me a while to go over but you are definitely starting to convince me…Alot.

Thank you for your work on this and the consistency of thought in making the case. Artificial scarcity in IP is only because of a government granted monopoly rights that it exists in the first place. I just have to take it all in right now.

Again, thanks to you and the Mises institute for all the valuable media at no cost. I have been reading and listening to books at every chance I get. Even though I have the audio book and PDF, I have still asked my wife to buy some actual books from mises.org for my birthday so I have a hard copy. In the end, you have driven many people to the site for free education and by that, many like me will actually will still buy the books because they are so worth having in the physical form, and you are spreading the message of Austrian economics and libertarianism better than any other school of thought. Simply great!

Silas Barta July 28, 2010 at 10:15 am

Wow, Stephan, is your wrist sore from patting yourself on the back? I notice you didn’t mention the contradiction between your rejection of IP and your acceptance/”undecidedness” on EM spectrum rights, or indeed, anything that could threaten your case. This is really just a list of the (already debunked) articles in favor of IP, designed to look overwhelming.

You also haven’t responded to the calculation problem, noting only that, basically, “hey, it’s the *entrepreneur’s* job to figure out how to make a profit [in the absence of IP]“. Okay, but couldn’t you also say it’s the entrepreneur’s job to figure out how to make a profit in the absence of (libertarian style) property rights, or in the presence of state regulations, communism, looting, disrespect of property rights, etc.

You didn’t mention anti-IP libertarians’ sheepish attempts to sneak IP in through the back door by basically advocating the same enforcement mechanisms against people who use unauthorized copies as they do against people who infringe property rights. See here.

You didn’t mention that the entire classification of IP as “redistributing property” assumes the validity of the property rights you prefer, and thus is circular, or at least not an additional argument beyond what justification you have for Lockean rights.

You haven’t mentioned your long (and recanted) history of trying to say that IP rights are invalid because there’s “no rivalry” in ideas, even though the very fact that there’s a debate in the first place!

Nothing new here.

Magnus July 28, 2010 at 10:17 am

Nothing new here.

Tu quoque.

You should change your pseudonym to “Nothing new here.” It would save time.

Peter Surda July 28, 2010 at 11:02 am

Dear Silas,

while I am not Stephan, I have answered all your objections, including those on your blog, before, upon which you bailed out of the discussion.

Wait a minute, didn’t the same thing happen already two weeks ago? Well, since it is “the same”, you now owe me money.

Silas Barta July 28, 2010 at 11:11 am

I stopped arguing with you because the discussion was no longer productive, as you weren’t saying anything responsive, and you kept demanding everyone fit their points into your framework without establishing relevance.

Russ, thankfully, took the futile job of trying to explain this to you, but you’re still not getting it. If you want your points to be relevant, all you have to do is explain exactly how the framework you keep harping on is crucial to the issue, and how the disputants fail to make (or incorrectly make) the distinctions salient to your framework … like Russ and I have asked of you several times.

(Note: when I entered these discussions and introduced a framework, I explained very precisely why the distinctions I was making are relevant, yet you are not doing the same, so it’s completely justifiable why I would ignore you, and why no one else seems to be endorsing your framework when they make arguments.)

Also, it would be nice if you stopped saying things like, “How can you own something in someone’s mind?”, when several people, including me, have already explained to you that IP rights are never asserted over anything in anyone’s mind, just physical, observable instantiations in physical goods.

Peter Surda July 28, 2010 at 11:43 am

So, because you are unable to explain yourself, it is my duty to fix that? Sheesh.

Oh wait a minute, that sounds familiar too. Although it probably wasn’t you I was addressing.

Also, it would be nice if you stopped saying things like, “How can you own something in someone’s mind?”

I don’t think I made that argument anytime recently…

when several people, including me, have already explained to you that IP rights are never asserted over anything in anyone’s mind, just physical, observable instantiations in physical goods.
Of course, if I said the above as a refutation to this, that would be pointless.

So, let me give you a hand nevertheless. How about you define “instantiation” other than “There is a causal relationship and some attributes match the description”? Because without that, IP is just a false dichotomy, a metaphor.

Old Mexican July 28, 2010 at 11:13 am

Re: Silas Barta,

I notice you didn’t mention the contradiction between your rejection of IP and your acceptance/”undecidedness” on EM spectrum rights[...]

Maybe because IP has nothing to do with EM spectrum rights.

You also haven’t responded to the calculation problem, noting only that, basically, “hey, it’s the *entrepreneur’s* job to figure out how to make a profit [in the absence of IP]“. Okay, but couldn’t you also say it’s the entrepreneur’s job to figure out how to make a profit in the absence of (libertarian style) property rights, or in the presence of state regulations, communism, looting, disrespect of property rights, etc.

Ok, it’s the job of the entrepreneur to figure out how to make a profit in the presence of all these hurdles, since he’s the ONLY one who know what HE wants. This has nothing to do, NOTHING, with the validity of IP. IP is being argued on moral, ethical, and not pragmatic, grounds.

You didn’t mention that the entire classification of IP as “redistributing property” assumes the validity of the property rights you prefer, and thus is circular, or at least not an additional argument beyond what justification you have for Lockean rights.

Nobody here simply assumes the validity of property rights, Silas – property rights, as an extension of the Self Ownership Principle, are axiomatic, a self-evident truth. You OWN yourself, and by extension, anything that YOU obtain (notice I did not say “steal” nor can “steal” be implied from “obtain”.)

You haven’t mentioned your long (and recanted) history of trying to say that IP rights are invalid because there’s “no rivalry” in ideas, even though the very fact that there’s a debate in the first place!

You’re equivocating, Silas: “Rivalry” in economics means that a good cannot be possessed by two or more individuals at the same time – since ideas can spawn in people’s minds infinitely, then ideas are NOT rivalrous, ergo they cannot be property. You’re instead thinking of rivalry as in “fighting.”

Silas Barta July 28, 2010 at 11:36 am

Maybe because IP has nothing to do with EM spectrum rights.

Yes, they are. They’re both exclusive rights to instantiate a specific pattern, asserted over other people who are using “their own property” to instantiate the pattern. See my comment below.

Ok, it’s the job of the entrepreneur to figure out how to make a profit in the presence of all these hurdles, since he’s the ONLY one who know what HE wants. This has nothing to do, NOTHING, with the validity of IP. IP is being argued on moral, ethical, and not pragmatic, grounds.

How is that responsive to my point? What did you think I was arguing, and how do you believe this is responsive to it?

You’re equivocating, Silas: “Rivalry” in economics means that a good cannot be possessed by two or more individuals at the same time – since ideas can spawn in people’s minds infinitely, then ideas are NOT rivalrous, ergo they cannot be property. You’re instead thinking of rivalry as in “fighting.”

Bzzt. No, I’m not. Rivalry refers to whether a good can be used in a way that satisifies arbitrarily many parties. While an idea can be *used* by arbitrarily many parties, it cannot be used in a way that *satisfies* both parties, which is why there is a disagreement in the first place. This is why the debate over IP shows there is rivalry *in the relevant sense*. Note that standard groundings for property rights, including in Stephan_Kinsella’s anti-IP paper, the rivalry they refer to in order to justify property rights is *precisely* in the sense of a mere disagreement, the same way I’m using it here. To the extent that there’s equivocation, it’s on his part, not mine.

I will futher comments from you until they show more familiarity with the debate.

Old Mexican July 28, 2010 at 12:02 pm

Re: Silas Barta,

Yes, they are. They’re both [IP and EM Spectrum] exclusive rights to instantiate a specific pattern, asserted over other people who are using “their own property” to instantiate the pattern. See my comment below.

Once again, you’re equivocating. The EM Spectrum is a natural frequency which cannot be changed and exist before man. IP is instead a series of laws that purport to limit people’s usage of their OWN property based on an arbitrary “original design” and “original designer”.You seem to have dismissed physics in order to give plausibility to your IP = EM Spectrum argument, but in fact, the usage of the EM Spectrum IS rivalrous (two people can interfere with each other if trying to use the same frequency the same way two people can interfere with each other if trying to build a house on the same spot) and thus subject to a PROPERTY RIGHTS solution. Instead, the copying of a design is NON-RIVALROUS: the person that had the original idea loses NO PHYSICAL PROPERTY, NOR are his actions IMPEDED if another uses his or her OWN PROPERTY to make something similar to the person with the “original” idea.

How is that responsive to my point?

I responded to this: “but couldn’t you also say it’s the entrepreneur’s job to figure out how to make a profit in the absence of (libertarian style) property rights,”

I showed you that I CAN say it, and also making the point that the argument that entrepreneurs would have to figure out how to make a profit sans IP is irrelevant.

By the way, your “calculation” argument is preposterous. The calculation problem explains why central planning cannot work in the absence of market prices. It has nothing to do with IP.

Rivalry refers to whether a good can be used in a way that satisifies arbitrarily many parties.

You should write your own economics book, Silas, if you intend to drastically modify the meaning of the words to suit your means. I cannot challenge you on your neologisms, that should be left to a psychiatrist.

Peter Surda July 28, 2010 at 2:23 pm

They’re both exclusive rights to instantiate a specific pattern,

This is only one way to define EM rights, I have explained to you others. Why should this be the authoritative one? Merely because one accepts the notion that emitting EM waves can cause property damage does not imply rights to instantiate patterns.

It seems to me that a lot of people have trouble accepting the notion of evaluating multiple theories in parallel, and it baffles them how a certain fact can have multiple explanations.

Stephan Kinsella July 28, 2010 at 11:14 am

Silas, your “calculation” argument is one of the stupidest I have ever seen. Really. It’s just ridiculous and incoherent. There are so many things wrong with it one knows hardly where to begin.As for EM, there are differences between EM and IP, so that one’s view on EM does not determine one’s view on IP, and moreover, the case for EM is a tricky one. The case for IP is not. Again, you are stuck on this like a monomania, and just chattering to yourself, while the IP Revolution passes you by.

“You didn’t mention that the entire classification of IP as “redistributing property” assumes the validity of the property rights you prefer, and thus is circular, or at least not an additional argument beyond what justification you have for Lockean rights.”

Yes, Silas, when talking to libertarians, I do in fact assume that they, like me, respect the validity of property rights in scarce resources. This is fairly uncontroversial. If you yourself accept this, then you have nothing to complain about as you are assuming it just as I am; and if you do accept it, then in promoting IP you are being inconsistent since IP does in fact undercut rights in scarce resources. And if you reject rights in scarce resources–which is what you must do, in order to promote IP, since it is incompatible with rights in real things–then you are not a libertarian and are some kind of socialist and obviously I cannot assume common, civilized ground with you on this topic. Given your gadfly stubbornness and sophistic non-seriousness in the way you treat ideas, it’s probably better to treat you as a mere technical problem than to waste time trying to talk you out of some variant of socialism. If you don’t want to adopt civilized values, your loss.

Silas Barta July 28, 2010 at 11:30 am

Silas, your “calculation” argument is one of the stupidest I have ever seen. Really. It’s just ridiculous and incoherent. There are so many things wrong with it one knows hardly where to begin.

You could start by saying how it differs form the problem referred to in Mises’s calculation argument.

Oh, you can’t? Interesting.

As for EM, there are differences between EM and IP, so that one’s view on EM does not determine one’s view on IP, and moreover, the case for EM is a tricky one. The case for IP is not.

Why? Because “you say so”? For anyone who’s interested, I’ve laid out the case for equivalent between IP and EM spectrum rights here and here. As you will note from reading the links, Stephan_Kinsella has already admitted that he can’t distinguish them in terms of justification. Oops.

Yes, Silas, when talking to libertarians, I do in fact assume that they, like me, respect the validity of property rights in scarce resources.

Except that you are doing more than that — you’re assuming that the property rights that they respect are precisely such that they exclude IP rights — which is the very thing your anti-IP arguments are trying to prove! Given that there are self-described libertarians who believe they endorse Lockean rights, it’s not at all clear to them why this is sufficient to invalidate IP.

Shay July 28, 2010 at 12:54 pm

As you will note from reading the links, Stephan_Kinsella has already admitted that he can’t distinguish them in terms of justification. Oops.

I’m always curious as to the meaning when you call him Stephan_Kinsella (with that odd underscore). Is it because you’re getting agitated, or is it some copy-and-paste from long ago that you reuse periodically? It’s very puzzling.

Silas Barta July 28, 2010 at 12:55 pm

It’s a software issue.

Stephan Kinsella July 28, 2010 at 4:09 pm

No, this is a lie. Shay, he does it to be a pest and a gadfly. He’s lucky he hasn’t been banned yet (I saved him from it once). He has gone by several bizarre nyms–Person, Richard Harding, John Sharp, probably others we don’t know about. He was exposed years ago. He was calling me Stephan I think as a nym and I told him to call me Dr. Kinsella, which he started doing, then I said just Stephan Kinsella will do, so he has petulantly adopted this computerized looking thing so he can pretend — as he says here — that it’s a software issue. All he does is paint himself as a gadfly.

Silas Barta July 28, 2010 at 4:22 pm

Do you have any substantiation whatsoever for your claim about how the Stephan_Kinsella appellation originated? Link to the relevant discussion? I’ve always been putting underscores in the blanks because that’s what my software picks up.

Peter July 28, 2010 at 6:31 pm

You can type spaces between every other pair of words, so if it’s a software issue it’s because you wrote the software and specifically told it to do that. Which is no different from doing it manually…because you’re a “pest and a gadfly” as Stephan puts it.

Russ July 28, 2010 at 6:53 pm

Even if Silas is nothing but a pest (which I don’t agree with, BTW), so what? Kings of old used to have jesters in their courts to mock them, and thus remind them that they were mortal and fallible, just like anyone else. Maybe somebody should commission Walter Block to publish an article called “Defending the Gadfly”?

Silas Barta July 29, 2010 at 1:02 pm

Peter, it’s quite simple. My software — which I didn’t write — picks up screen names in (standardly-formatted) blog discussions and saves them in such a way that it allows me to easily call them up. But it chokes on spaces, instead replacing them with underscores. I don’t actually type the names myself. But I type the *rest* of the comment, so it’s easy to put regular spaces in the rest of the comment.

Yes, I *could* edit the saved screen names or the screen name that is inserted into a comment when I hit the hotkeys, but it’s a pain, and seriously — who really cares that their name has an underscore instead of a space? “Oh, no, my name is being written with an underscore where a space should be! It’s like 9/11 all over again!” WTF?

Thom Blake August 11, 2010 at 10:54 am

Wow, this comment thread is a cesspool. The tone of the responses, even the author’s response here (not to mention the colorful graphic below), does a lot to lower my estimation of Mises as a credible institution.

Russ July 28, 2010 at 6:49 pm

“You also haven’t responded to the calculation problem, noting only that, basically, “hey, it’s the *entrepreneur’s* job to figure out how to make a profit [in the absence of IP]“. Okay, but couldn’t you also say it’s the entrepreneur’s job to figure out how to make a profit in the absence of (libertarian style) property rights…”

Yes, one could say that. But I think the point is that some people seem to have this notion that people automatically have a right to control the use of patterns that they originally instantiatied, and thus make a profit off of selling something that is easily copyable. But that’s not necessarily so. It seems to me, at least on the face of it, that the idea that people will give you lots of money in return for something, when they could just as easily get a copy from a friend for free, is just a bad business plan. At any rate, if people do have a right to control the use of patterns that they originally instantiatied, I don’t think it’s self-evident, and thus those who favor such rights carry the burden of proving that they exist.

Silas Barta July 29, 2010 at 4:24 pm

@Russ: Is it a bad business plan when people can just steal from your factory instead of buying it legally?

Peter Surda July 29, 2010 at 5:48 pm

It is also a bad business plan to try to sell at a higher price than your competitors. But of course, we know that IP proponents never explain how to distinguish substitutes from “theft”. Because, you know, that would require intellectual honesty, rather than insemination of potty.

Silas Barta July 29, 2010 at 8:41 pm

WTF is “insemination of potty”? You keep using that term.

It is also a bad business plan to try to sell at a higher price than your competitors. But of course, we know that IP proponents never explain how to distinguish substitutes from “theft”.

When I steal stuff and sell it for less that the market price of comparable goods, I guess that’s just fair competition, and entrepreneurs just have to figure out how to undercut the prices of thieves who never had to bear the costs of production?

???

Peter Surda July 30, 2010 at 1:55 am

WTF is “insemination of potty”? You keep using that term.

WTF is "instantiation of pattern"?You keep using that term.

When I steal stuff and sell it for less that the market price of comparable goods, I guess that’s just fair competition,

You’re begging the question Silas, you need to prove that copying is theft, not assume it.

gregw July 28, 2010 at 9:19 pm

‘I notice you didn’t mention the contradiction between your rejection of IP and your acceptance/”undecidedness” on EM spectrum rights,…”

The corollary between EM and IP is nonexistent. Thus it makes sense to leave it out.

hth,
GregW
Radio Engineer

Silas Barta July 29, 2010 at 9:12 pm

In case anyone’s stupid enough to believe gregw’s bare assertion because he’s a “Radio Engineer”, please read this post and this one. Several IP opponents have already decided to oppose

Even Stephan_Kinsella isn’t sure where he stands on such a basic issue as EM spectrum rights, which should *really* tell you something.

Peter Surda July 28, 2010 at 11:09 am

Thanks Stephan for all the wonderful work you do. Lately especially the paper about theory of agression which you linked to last week, clarified some things for me (e.g. why dictators are agressors even though they might not kill anyone personally). I disagree with some of your arguments and am not abandoning falsificationism though, but it would be kind of boring if everyone had the same opinion.

Stephan Kinsella July 28, 2010 at 11:20 am

Thanks Peter. My thanks go to the Mises Institute for all they do. What they are doing with their open information policy is showing how really committed they are to our mission and their principles. It is one of the most heroic, inspiring things I’ve ever seen in my life.

I am not opposed to falsificationism property understood and used; in the natural, causal sciences, of course; and even as a sort of “check” on your logic in the apodictic, teleological sciences–since we are not infallible (apriorism doesn’t imply infallibility).

Silas Barta July 29, 2010 at 9:13 pm

But … but … I thought Misesians get to ignore empirical evidence! Are you saying you guys are Bayesians now?

Uh oh, there goes Austrian epistemology…

Stephan Kinsella July 30, 2010 at 2:42 pm

Typical non-serious, eristic, strawman gadflyism. What a joke. Might as well start a new nym since you’ve ruined the credibility of your current handle.

Russ July 30, 2010 at 2:50 pm

“Typical non-serious, eristic, strawman gadflyism. What a joke.”

You make it too tempting and too easy for him. Maybe if you’d take the corncob out once in a while, just for a change of pace?

Beefcake the Mighty July 30, 2010 at 2:45 pm

Silas, even by your standards this is an utterly stupid statement. Truly, you are without shame to be able to make an ass of yourself so consistently. (And no, I’m not Stephan Kinsella, or Stephan_Kinsella for that matter.)

J. Murray July 28, 2010 at 11:26 am

The matter of IP is certainly not one that has an easy answer. Unlike a physical product, like a chair, the IP debate involves a purely abstract concept. How can you own something that is infinitely plentiful, intangible, and unidentifiable? How do you identify ownership when little of the claimed IP is truly original (take the Star Wars example used two nights back, Lucas borrowed liberally from older science fiction movies and long-existing mythology to produce the film), what exactly is a resonable period of ownership, if it is truly property, then isn’t public domain a purely illegal concept as heirs will always be available to receive ownership?

On the flip side, while the IP itself is infinitely reproduced with no effort, there is a supply limitation in the form of the IP creators. We can copy Moby Dick over and over to infinity, but not anyone can be Herman Melville. As noted by Mr. Kinsella, the whole IP debate is a relatively new one and, being one of the remaining concepts in the broader libertarian ideology that isn’t (for the most part) settled, it does need to be discussed.

For me, I’m still on the fence between pro and anti-IP rights. Both do have their own set of convincing arguments, but I’m currently leaning toward the anti-IP camp. More consideration and debate is necessary to truly get a full picture of which path is the better one.

Curt Howland July 28, 2010 at 5:40 pm

Mr. Murray,

If I may provide a detail which I think is useful to consider for someone “on the fence”:

Copyright does not reward creation, it rewards reproduction.

The beneficiaries of copyright are rarely the originator, the performer, the author. It’s the software publisher, the book publisher, the RIAA and MPAA.

Eliminating the monopoly grant of copyright changes the incentives from reproduction to creation. The one “monopoly” that does not depend upon statute is how the creation is released. The artist has that monopoly to leverage for profit, just as I have the monopoly over my own labor.

Anyway, just a thought. And good hunting!

If you do become convinced that I.P. is valid, please, please, tell us why. There is a serious lack of rational pro-I.P. argument out there, most of it seems to be just shouting “Thief!”

Silas Barta July 29, 2010 at 4:21 pm

Mr. Howland,

If I may provide a detail which I think is useful to consider for someone who is “on the fence”:

Property rights do not reward *production*, they reward *rich people*.

The beneficiaries of property rights are rarely the people who do the actual *work*. It’s the factory owner, the land owner, the banker, the financier.

Eliminating the monopoly grant of property rights changes the incentives from investing to *production*. The one “monopoly” that does not depend upon statute is how the work is *applied*. The worker has that monopoly to leverage for profit, just as I have the monopoly over my own labor.

Anyway, just a thought. And good hunting on the aristocratic estate!

If you do become convinced that property rights are valid, please, please tell us why. There is a serious lack of rational pro-property rights argument out there, most of it seems to be just shouting, “Mine!”

Curt Howland July 29, 2010 at 4:29 pm

Silas,

I’m not on the fence, because not once has anyone presented a logical argument as to why 3rd parties must be held to contracts they were never party to. Nor has anyone explained how human creativity will cease without the artificial monopoly grants. They merely assert. You merely assert.

The rest of your ascii diarrhea, and pretty much everything else you’ve posted on this subject, consists of nothing more than shouting “thief” over and over, and then declaring how everyone else is wrong for not believing you.

Silas Barta July 29, 2010 at 4:54 pm

@Curt_Howland: Since you obviously failed to get it the first time, what you just read was satire: I posted the same thing you did, except referred to (physical) property rights, because your arguments are just as applicable there.

Second of all, you most certainly *do* believe that third parties should be held to contracts they were never party to. Like I’ve explained to you several times (as many, many others have done as well!), you certainly believe that people should have to respect your property rights even in the absence of a contract. Yes, you may, one day, come up with a reason to distinguish the IP from physical property, BUT, with regard to this specific argument you’re hopelessly trying to use, the claim that “dur! it’s being enforced against 3rd parties, and that’s BADDY!” is obviously invalid.

Finally, I’ve certainly done a lot more than shout “thief” over and over, and it’s an outright lie for you to claim otherwise. Please, show some honor.

Curt Howland July 29, 2010 at 7:16 pm

“you certainly believe that people should have to respect your property rights even in the absence of a contract.”

Only after they have been informed of it, and if they object they are more than welcome to bring suit to support their position.

I expect people to respect property rights, because I respect theirs.

“Please, show some honor.”

Hypocrite.

Silas Barta July 29, 2010 at 8:33 pm

So, once people inform you that you’re infringing their IP, they’re also welcome to bring suit to support their position? And if the court rules in favor, then …? Did you think that far ahead?

Curt Howland July 30, 2010 at 7:42 am

Silas,

“So, once people inform you that you’re infringing their IP, they’re also welcome to bring suit to support their position? And if the court rules in favor, then …? Did you think that far ahead?”

Indeed, I have. And my response is contained within my posts you are responding to. So either you cannot read, or you are being deliberately disingenuous.

Let me be painfully clear and maybe you will get it this time.

Yes, they may bring suit. I welcome it! A non-violent response to a non-violent “trespass”.

And in full public view, in front of the arbiter, they can try to present a logical, rational support for their “right” to control other people’s property, hold people to contracts they were not party to, effect a restraint of trade, etc., without the present government statutes to fall back upon.

If they are able to do so, which I have never seen anyone do, then so be it. If I believe the ruling is flawed, and still fail on appeal, then I will abide the decision and live in peace after paying restitution.

The precedent will be set, yea or nay, and society will continue on.

And you, Silas, what will you do if such adjudication goes against you?

Peter Surda July 29, 2010 at 5:50 pm

not once has anyone presented a logical argument as to why 3rd parties must be held to contracts they were never party to

Oh, that’s “evident”. A little handwaveium with a sprinkle of magic and presto!

Silas Barta July 29, 2010 at 9:14 pm

Just as much handwaveium as Curt_Howland used in his anti-IP post…

Peter Surda July 29, 2010 at 5:45 pm

Eliminating the monopoly grant of property rights changes the incentives from investing to *production*.

This is a non-sequitur. Property rights in rival goods do not grant monopolies. The monopoly is the consequence of the rivalry, not of granting rights. Once consumed, a rival good is gone, regardless of who is in control of it. If you are using it as an investment rather than for consumption, it is replaced by another good, hopefully by one with a greater value. This has nothing to do with rights.

But of course, because a construction like this does not fit into IP proponents’ theories, they fabricate other assumptions and come up with other flawed theories, for example that property rights grant monopolies, or that you have a right to consequences of your actions, or tons of other metaphors designed to mask the redistributive nature of the proposed policies. And of course you also have weirdos that claim that IP is not monopoly.

Silas Barta July 29, 2010 at 8:37 pm

This is a non-sequitur.

Yeah, Peter_Surda — that’s the whole freakin point. It’s just as much a non-sequitur in Curt_Howland’s attack on IP.

Peter Surda July 30, 2010 at 1:52 am

I don’t agree with Curt’s arguments.

Quarto July 28, 2010 at 11:36 am

So please forgive me if I sound ignorant on this and trust that I’m not actively trolling when I ask you how a country with no IP protection can survive in the real world.

Let us assume that you create a nation-state that does not have IP protection laws anymore, because you demand that information, as a naturally infinitely reproducible resource, should not be restricted. Why would anyone who invests substantial time, money, and effort in creating something that would normally be protected by IP laws, such as a medical formula, a piece of software, a patentable process, or even just a work of art ever bother to work in your nation state? As an entrepreneur whose responsibility it is to figure out how to make money in prevailing market conditions, I would shift my intellectual property-driven business somewhere else where it was easier to make my living.

Since businesses that produce ideas and not things are some of our top revenue producers (excepting the massively profitable companies that exploit scarce natural resources), I would think you would quickly handicap your own workforce with a massive brain drain as all of your leading thought producers left. When companies like Google, Microsoft, MGM, EA, SONY, etc., etc. all leave the country and take their employees with (or worse, leave them here and unemployed), you would find yourself in a very unpleasant situation very quickly.

Am I incorrect about this? Is there something that I don’t see about the need to provide some encouragement and protection for developing new ideas? I agree that 70 years + forever (or whatever the heck it is that we’ve devolved to by now in the IP protection arena) has long since surpassed ridiculous and harmful. But providing a 10 or 20 year protection on a new idea still seems to me, even after reading your well-composed article, a wise idea.

J. Murray July 28, 2010 at 11:44 am

Well, we can look back on history to determine that. During the 1870s-1900s, the United States was considerd to have an incredibly weak IP legal system. Britain, on the other hand, had a rather strong one. While this was the case, it was actually quite common for British authors to completely avoid publishing in Britain while publishing works in the United States under the weak IP model. It is possible to attribute this behavior of purposefully placing your own work into a weak IP country as a mechanic of having the weak IP environment. To attract authors, American publishers outright purchased manuscripts upfront for a flat fee. This created a greater degree of reliable income for authors who would gladly take the up-front fee as opposed to the risk of facing poor book sales. The weak IP laws also created a form of free advertising as large sections of text from books ended up in the public view, which pushed the book to popularity, leading to further sales.

Going further back in history, IP simply didn’t exist. Take the Italian Rennaisance for example. Many great artists and invetors came into being despite the total lack of the IP component. Great composers like Bach didn’t have their long symphonies protected by IP. Many great pieces of music, art, and literature were created over the centuries despite IP not being a concept that society had come up with yet. Even today, open source programs are highly popular in the computing arena. There was a time it was unthinkable of leaving your operating system open to whoever wants to put a program on it. When we compare the anyone can put a program on it method vs the more closed system, we find those more tightly controlled OSs to be far more unpopular in the marketplace as a whole even if the more unpopular one is viewed more positively from a feature and safety standpoint (see Windows vs MacOS for an example).

There may be other factors involved, but compared to actual history of a weak vs strong IP legal system, the weak system shows to be preferrable to content creators. What we consider logical today can be proven illogical in practice. IP has the features to be one of those illogical logical laws.

Shay July 28, 2010 at 12:59 pm

Reading your post, I can’t help but recast it as someone asking how they could manage eat anything in countries where they use chopsticks, because it’s so hard to imagine how you’d hold or get the food into your mouth.

Eric July 28, 2010 at 1:05 pm

The early software industry, before software patents were created by congress (about 1980ish) showed the largest growth in computer software technology.

All the great computer systems (unix, multix) and languages (fortran, c, …) came about without IP protection.

Even the GUI, invented by Zerox, was freely shared.

Once software patents became widespread, technology slowed. (Remember how the gif file format was patented and only AFTER it became widespread – because everyone thought it was public domain – then the patent trolls woke up and sued everyone). What great new ideas in operating systems do we see today? The current versions of the 3 main personal systems haven’t done much. Smaller versions now run on phones etc. but they still don’t do anything more than what was done on zerox’s original smalltalk systems (which mac os copied).

I used to attend computer user group conferences where the spirit of sharing software was huge. Ideas for “hacking” software systems (in a good way – i.e. add cool features) were awarded prizes (mostly recognition) in the “magic” sessions of these conferences. It was enough to hear my name mentioned to spur me on to publish more of my own ideas. One idea I shared by another led me to create a product line of software that was quite popular in the 1980s.

Once software patenting began, we see the entrance of the lawyer into software development. This has led to patent war chests, just to use to beat up other competition. Software ideas are patented, even if they are never used, just to keep others from using them. And many of the ideas are so obvious, such as Amazon’s single click idea (big deal, they save your personal information in a database so you don’t have to reenter it).

With linux and gnu software, we have tons of non-copyrighted open source software and it has led to quite a bit of innovation. Even with processors, we see competition. AMD first copied Intel, then they took the lead on 64 bit instruction sets, which was then copied by intel. Had there been patents on every little idea (such as pipelining) there’d likely be huge wasted efforts in lawsuit battles between the companies.

Stephan Kinsella July 28, 2010 at 1:31 pm

Quarto, you cannot be serious in thinking that without IP law a country would DIE?

Curt Howland July 28, 2010 at 6:12 pm

“without IP law a country would DIE?”

That is exactly what it seems the pro-I.P. folks say. L. Neil Smith practically SHOUTED that without I.P. there would have been no technological advancement over the last 300 years.

…and certainly no big Hollywood blockbuster movies.

mpolzkill July 30, 2010 at 4:01 am

Longacre: “believe many other posters on other threads have stated reasons of why they would bother to work”

Howland: “and certainly no big Hollywood blockbuster movies”

This is something that is just killing me for some time now, but I can’t figure out how to put it in words. McClees today talking about Metallica….Metallica needs the State, but Beethoven didn’t need anyone but Bach, Haydn, Salieri & Mozart. What’s wrong with the “IP” salesmen’s pitch?

Curt Howland July 30, 2010 at 7:46 am

“What’s wrong with the “IP” salesmen’s pitch?”

I believe the problem is that there isn’t an underlying principle to build I.P. upon, so the defense of I.P. ends up being emotional, rather than logical.

james b. longacre July 30, 2010 at 3:36 am

“Let us assume that you create a nation-state that does not have IP protection laws anymore, ……… Why would anyone who invests substantial time, money, and effort in creating something that would normally be protected by IP laws, such as a medical formula, a piece of software, a patentable process, or even just a work of art ever bother to work in your nation state?.”

i believe many other posters on other threads have stated reasons of why they would bother to work.
medical formula? cancer society gives millions to cancer research. software…open source distributions and contract programmers (some sort of retainer system perhpas), processes?? here..use a hand truck instead of your back. everyone is better off.

Anonymous July 28, 2010 at 12:26 pm

It doesn’t surprise me that younger libertarians are mostly anti-IP. These days, almost everybody under the age of 30 is. The fact that our left-liberal and neo-conservative adversaries are pro-IP or at best only in favor of “reform” rather than abolition helps us grow the libertarian movement. I think an emphasis on why copyright is not a form of property and is actually a form of theft can aid our efforts to expand our movement. Before I became a libertarian through the Ron Paul campaign, became an anarchist by reading Rothbard, and became anti-IP by reading the arguments of anti-IP libertarians, I used to engage in “piracy” even though I was pro-IP by default. Now, I understand that I am not violating rights when I ignore IP, but rather that the IP monopolists are violating rights when they use their monopolies to vandalize warez and video streaming web sites.

Julien Couvreur July 28, 2010 at 1:18 pm

I agree. With the digital age, younger generations sense that something is wrong with IP. It does not make sense, but they cannot really say why. Providing a consistent theory of property and economics which allows them to understand their uneasiness contributes to drawing their attention towards austrolibertarianism. You can see it as the foot in the door to make people curious and learn more about the “good stuff” ;-)

Curt Howland July 28, 2010 at 6:39 pm

The I.P. proponents have done it to themselves, too.

By continually extending and expanding what I.P. covers, the problems that were always there have been amplified to the degree that everyone can see how I.P. is crushing innovation.

If it really were “for a limited time”, it would be so much harder to argue against I.P.

So maybe, the surge of anti-I.P. philosophy is because the RIAA has been so successful in getting copyright expanded!

gregw July 28, 2010 at 9:25 pm

“If it really were “for a limited time”, it would be so much harder to argue against I.P.”

Probably so. Just like if the governments limited themselves to < 10% taxation (guess), then hardly anyone would bother wasting their time with anarchy, even if they thought it was theoretically correct.

But it grows and it grows. Perhaps it is the nature of the beast.

Philip Dimon July 28, 2010 at 12:26 pm

In the Principles, Menger lists four conditions that must exist in order for an element of the external world to have “goods-character”:
1. A human need.
2. Such properties as render the thing capable of being brought into causal connection with the satisfaction of this need.
3. Human knowledge of this causal connection.
4. Command of the thing sufficient to direct it to the satisfaction of the need.

Does IP violate article 4?

Russ July 28, 2010 at 12:33 pm

Does article 4 imply that if you have sufficient command of the thing through the State, then IP has “goods-character”?

Silas Barta July 28, 2010 at 12:52 pm

I remember when the folks on the google group bought this up. I’ll tell you the same thing I told them:

Why do I care what Menger said about goods? What I care about is whether you use the definition of good *consistently* so that your inferences about “goods” remain consistent. You don’t just get to decree that, “this is what Menger said a good is, IP doesn’t meet that, therefore, IP is invalid”.

When you define a good in a relevant way, you will find the relevance to IP. A good, for purposes of human action, is simply any experience that one acts to achieve. Someone might value a good like, “The experience of knowing a working cure for cancer”. Even though there’s no corresponding physical object that encompasses that entire good.

People run astray on this topic when they think of a good as being the physical objects themselves. But when you buy an apple, the salient thing going on is that you are gaining the physical ability consume the apple and a greater degree of social recognition of your claims to the apple. You could just as well achieve this by “renting” an apple, eating it, and returning the digested part as per a contract; it’s just that people don’t typically do this.

But note: at this level of generality, the same kind of thing can happen for intellectual works: you may be purchasing the legal right (i.e. social recognition) to instantiate that pattern (like the text of a book or EM oscillations) — nothing inherently contradictory about that.

And remember, just as people expend resources to produce (modify) physical goods, they expend resources to locate good ideas (in the space of all possible ideas). *Either one* is capable of satisfying wants, and something people expend means to access. And people must determine whether one or the other is a better use of their means. (Hence the calculation problem of how, without prices for idea rights *themselves*, it’s possible to calculate the relative merit of using your means to produce physical goods or search for ideas.)

Peter Surda July 28, 2010 at 2:47 pm

purchasing the legal right (i.e. social recognition) to instantiate that pattern

So, how exactly do I inseminate the potty? Oh I’m sorry, I didn’t realise you were serious.

Silas Barta July 29, 2010 at 9:14 pm

Anyone have a serious reply?

Philip July 28, 2010 at 12:41 pm

Nice. Exactly what I was thinking but you said it better then I would have.

Philip July 28, 2010 at 2:27 pm

This was my response to Russ’s statement.

mclean July 28, 2010 at 1:00 pm

has anyone seen inception?

pro-IP-libertarian July 28, 2010 at 1:12 pm

Sheesh, Darcy and Silas are right, this could be retitled “The Insecurity of Anti-IP libertarianism”. It’s settled! We won! Some people agree with us! Nothing to see here, keep moving.
I’ll make some points, but I don’t have time for a long, drawn out debate right now. That will have to wait until I have time for writing and a blog later. As Darcy said there are some more important things to work on right now, so responses may be spotty.
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IP is a type of systematic redistribution of property rights, contrary to Lockean homesteading rules, that can only be implemented by the state and its legislation.
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Not at all. IP is consistent with Lockean homesteading. Locke himself supported IP. And state recognition is basically needed for physical property rights as well. Try defending your physical property rights without state recognition that the property is yours. And just because the state does something now doesn’t mean it can’t be done by a private entity.
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Anti-IP is what is redistributionalist, since it collectivizes intellectual property. I don’t classify the anti-IP types as socialist/communist. I classify them as collectivist because that is what they propose. They propose collective ownership of intellectual property, not state ownership. Oh, except for what can be termed the “plagiarism paradox”, of course. Anti-IP writers still want “credit” – i.e. a form of ownership – when it comes to property that is important to their academic and writing careers.
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We own things we create, they say, even though ownership is meant to solve conflicts over scarce things (see “What Libertarianism Is”), not just any thing you can conceptualize and put a name to.
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Good IP is scarce, that’s why you want to copy it for free instead of paying for a copy. There is plenty of free IP around – shareware, public domain music, etc. – you just want the good stuff for free because it is valuable. That is what is actually going on once we ignore the “since you can duplicate it, it isn’t scarce” framing. And yes, commercial use of IP is rivalrous. Sort of like academic use of IP and plagiarism.
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If you explain that every creator’s work also built on the thought of others, they come up with a convenient public domain or “fair use” exception.
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No, we just acknowledge that there have to be some rules about where novel ideas and creations begin, just like there are rules about owning and homesteading physical property. Technically Ogg, the first homosapien to write the first written symbols (language), had a big part in creating human knowledge, so technically one could argue his ancestors should own nearly everything. I’m being facetious, of course, but that line of argument becomes a reductio ad absurdum pretty quickly.
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They say that you need patents to stimulate invention and copyright to stimulate artistic creativity — they are often hyperbolic and say there would be no innovation in an IP-free world. If you point out that there would obviously be some innovation absent IP law, they then say there would not be enough innovation.
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I’ll speculate what would happen: As many anti-IP commenters themselves mention, if IP was done away with the main remaining benefit would be “first mover” advantage. Now who are the few entities that could best capitalize on first mover advantages? The largest manufacturers and distributors. Individual and small-scale entrpeneurship would be basically done away with or marginalized to the point of being eliminated. Corporations, especially corporations in heavy-IP industries, would become more oligarchic. The proverbial “band that got screwed in a deal with a big record company” would be even more screwed because the record company wouldn’t even need to make a “deal” – they would just take their music and have some employee musicians play and record it.
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The big names in libertarianism – aside from Locke, that is – might have been fairly quiet on intellectual property, as mentioned. But they weren’t that quiet on entrepeneurship, which would be hampered without IP. Even more than it is hampered now. There is a lot of literature about the big, established players using the government to stifle entrepeneurship with regulation. With no IP, the big players could take the innovations and inventions of the entrepeneur at will. Often without the entrepeneur being able to fund more than a study or prototype. Or use their innovation to grow to the point where they could compete with the big players in a particular market. Innovations would be quickly “emulated” (taken) and smaller, independent entrepeneurs would be quickly driven out of business.
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And then there are the pricing problems that Silas Barta mentions, which are the fatal flaw of socialism. I wouldn’t write those off if I was advocating IP collectivism.
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If you point out that it’s the job of the entrepreneur to figure out how to make profit in the market given the costs of exclusion and externalities, they are not satisfied: they switch from individualist free marketeers to central planners demanding to know exactly what a market freed of the IP restrictions they favor would look like.
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Not at all. It’s not the job of the entrepeneur to figure out how to deal with IP collectivism because he has natural law rights in his creation, as IP recognizes. Its the job of IP collectivists to figure out how they would price IP under collective ownership.(As an exercise, that’s not to say anyone is going to agree with them or adopt their model.) Just like the socialists had to figure out how to set prices in a centrally planned economy. They didn’t do too well. IP collectivists just throw it on the entrepeneur whose property they want to take for the collective, like the socialist commissars blaming the workers or anti-revolutionaries for the failure of their flawed system. There is already a market, not centrally planned and with prices set by entrepeneurs, for IP. And it works quite well. There are plenty of free or low cost products and the prices of paid products are coming down as well. Just thirteen years ago you had to buy a whole album or a hard to find single to get a particular song. Now you can download it from a huge, searchable database for $1.00 or less.
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So there is a market and it is not centrally planned. The IP collectivists want something of value from entrepeneurs and they threaten to (or actually do) take it when they are unwilling to pay the price asked. That isn’t libertarianism or free market economics. That is extortion and force.
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When the holes in their weak arguments are exposed, they escalate and call us IP socialists or communists — even though the idea that people who mentally “labor” “deserve” a “reward” for their labor is itself Marxian (see “Locke, Smith, Marx and the Labor Theory of Value”; “Objectivists: ‘All Property is Intellectual Property’”).
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Blatantly incorrect and disingenuous. First, note that I term you IP collectivists. You want collective ownership of intellectual property, not state ownership, although the effects can be similar.
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And I don’t claim that IP creators “deserve” to be rewarded for their labor. That would be rooted in the Marxist “Labor Theory of Value”. They just have the right to set a price for their labor. Note that being able to
sell – set a price for – one’s labor is rooted in natural law and natural rights. So they set a price for their IP. You either agree to pay it or you walk away. Instead, IP collectivists claim that if they don’t agree with the price a creator sets for IP, they have a right to take it without paying. Whether you call that, it isn’t libertarianism.
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The mistake made by IP libertarians stems in part from the imprecise, overly metaphorical Lockean notion that the reason you own things you homestead is that you “own” the labor you “mixed” with these things — rather than the more straightforward argument that by first appropriating an unowned resource you establish a better claim than latecomers — no fiction of “labor ownership” is needed (see “Intellectual Property and Libertarianism”).
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That’s pretty amusing because Locke supported IP. In any case note above that I am not making any claim based on the “labor theory of value”. Intellectual homesteaders merely have a right to set a price on IP that they have created. They don’t have a “right” to receive that price, but no one has a legitimate right to take that property from them if they don’t agree with the price. That’s how markets work.
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They say that you own things you find (appropriate or homestead) and things you buy from others — and “also” anything you create. They miss the fact that finding and contractual acquisition exhaust the ways of legitimately acquiring ownership of external objects.
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Argument by definition. You’re just trying to define away something that Locke believed individuals had a property right in. In any case even if one accepts your framing one can argue that intellectually homesteaded property is discovered, which could be situated squarely under the “found” category.
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This is getting long and a lot of the other arguments are also based on the incorrect claim that pro-IP libertarians are arguing for some kind of right based on the “labor theory of value”. Or they are variations on arguments I addressed above. In any case the issue isn’t “settled” and the flawed arguments set forth don’t make a strong or conclusive case for the anti-IP collectivists or anti-IP libertarians.

Julien Couvreur July 28, 2010 at 1:25 pm

It is true that creating new ideas and information is costly, just like growing new potatoes, and therefore it is fair to call them scarce, in my opinion.

But ideas and information, unlike potatoes, can be replicated without trespassing on the producers property. They are non-rivalrous and non-exclusive, which means that they are not subject to the same kinds of conflict that potatoes do and which prompt the use of property rights as a way to resolve conflicts. Therefore their “nature” does not qualify them as property.

Jonathan Finegold Catalán July 28, 2010 at 2:09 pm

Not at all. IP is consistent with Lockean homesteading. Locke himself supported IP. And state recognition is basically needed for physical property rights as well. Try defending your physical property rights without state recognition that the property is yours. And just because the state does something now doesn’t mean it can’t be done by a private entity.

Actually, there is empirical evidence which suggests that property rights were developed privately and later assimilated by the State. As such, proper rights were defended prior to their recognition of the state. Property rights are a form of social cooperation as a provision of social order.

Philip July 28, 2010 at 2:30 pm

Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.
Bastiat

Peter Surda July 28, 2010 at 2:55 pm

IP is consistent with Lockean homesteading.

Homesteading requires boundaries. Boundaries require change. Non-rival goods cannot be changed. Next!

Stephan Kinsella July 28, 2010 at 4:23 pm

Superb insight. Have you read closely the first couple chapters of Hoppe’s Theory of Socialism and Capitalism, and his stuff about property borders, embordering, etc.?

Russ July 28, 2010 at 4:38 pm

So Hoppe is where Peter’s crap comes from? I mighta known.

Oh, and rival goods can be changed. I could take a book, copy it, change one word somewhere, and claim it as my own. And it would still be plagiarism.

Stephon Smith July 28, 2010 at 7:31 pm

He said non-rival goods can’t be changed. An idea is an idea, and any alteration is a new idea that leaves the original one in tact. The same cannot be said for a piece of property, which when changed, entails the non-existence of the previous form.

Silas Barta July 28, 2010 at 5:06 pm

Oh, *that one*? The one that proves that EM spectrum rights can’t exist because you can’t emborder the ether that’s being used to transmit EM waves? Why would anyone listen to that kind of shady reasoning?

gregw July 28, 2010 at 9:29 pm

There is no ether.

Silas Barta July 28, 2010 at 9:48 pm

Thanks for the heads-up, Captain Obvious.

Peter Surda July 29, 2010 at 4:10 am

Why are you avoiding my arguments? It is different to say that there are rights in EM spectrum rights and that emitting EM waves can cause property damage. The former does not imply the latter.

Silas Barta July 29, 2010 at 8:43 am

I’m not avoiding your arguments; I’ve thoroughly addressed them. In the example you just gave, I showed how the assumption about “damage” implicitly assumes a standard for what kinds of propagating patterns constitute damage, which would equally well show that IP infringement causes damage.

Curt Howland July 29, 2010 at 8:53 am

“which would equally well show that IP infringement causes damage.”

Except that two people cannot transmit on the same frequency at the same time, while two people can write the same book at the same time without rivalry.

Peter Surda July 29, 2010 at 9:56 am

So if I shoot a laser (EM radiation) at your house and burn it down, I am assuming a standard for potty protectionism? Thorough addressing my ass.

Silas Barta July 29, 2010 at 10:09 am

@Curt_Howland: Yes, people can transmit radio waves on the same frequency at the same time. Try a different phrasing that’s actually correct and you start to see how it’s arbitrary to claim that there’s “interference” or “property damage”. Just like I demonstrated here.

@Peter_Surda: Radio wave transmissions used to broadcast are in no relevant way similar to that kind of EM transmission. The EM waves under discussion do not cause any observable change to the property unless you look for them.

Hey! Kinda like intellectual works in that respect, you know? Those don’t change your property unless you deliberate *look* for the patterns so you can instantiate them with your property, either, right?

Russ July 29, 2010 at 10:22 am

“Yes, people can transmit radio waves on the same frequency at the same time. Try a different phrasing that’s actually correct and you start to see how it’s arbitrary to claim that there’s “interference” or “property damage”.”

The above is no better than Peter Surda’s claims that wanting to restrict the copying of certain “attributes” of a DVD (the attributes that happen to represent the information, of course), but not other attributes (the ones that don’t represent information), is arbitrary. I can see no real difference substantive difference between the two arguments. They both rely on arbitariness, as if the intentions in either case are really arbitrary.

Peter Surda July 29, 2010 at 10:27 am

Radio wave transmissions used to broadcast are in no relevant way similar to that kind of EM transmission.

Because?

The EM waves under discussion do not cause any observable change to the property unless you look for them.

You can just measure at the oscillations of your receiver at your premises. The laser burning down your house is the same phenomenon (changing oscillation of matter), just so much more intensive that it causes a chemical reaction, while your radio receiver is more sensitive. It’s a question of quantity, not quality. Now, of course that does not imply that “patterns of EM” can be owned, but it explains that EM emmissions can cause property damage even if you only assume property rights in physical goods. Potty insemination can’t do that.

Or are you going to claim that if you bash someone’s fragile equipment and cause microscopic fractures, it is not a damage of property because you need a microscope and know where to look?

Russ July 29, 2010 at 10:28 am

“I showed how the assumption about “damage” implicitly assumes a standard for what kinds of propagating patterns constitute damage, which would equally well show that IP infringement causes damage.”

There’s still a difference between the two cases, though. In the case of EM, the interference is “lossy”; it destroys information. In the case of IP, there is no such loss. The only way there could be such interference would be if there were some sort of “entanglement” between copies of the same software that are “causally connected” (to use Peter’s lingo) such that if a copy is made, the original suddenly becomes corrupted and ceases to work.

Peter Surda July 29, 2010 at 10:39 am

The above is no better than Peter Surda’s claims that wanting to restrict the copying of certain “attributes” of a DVD (the attributes that happen to represent the information, of course), but not other attributes (the ones that don’t represent information), is arbitrary.

I disagree in that the comparison is alike. Actually I agree with Silas in this part of his argument, merely he later commits the same error himself. Damage of patterns or of information is indeed a metaphor, but damage of physical goods isn’t.

But regarding the DVD, the problem of arbitrariness actually isn’t that one part represents information and the other one not. Both parts represent information, merely you do not consider the latter one relevant for you in that situation. That’s the problem. You can’t define property boundaries by relevance. Relevant for whom? For what purpose? As I said, a collector would not accept a copied DVD. A teenager might not even know what a DVD is and ask “where do I download it from?”.

Silas Barta July 29, 2010 at 11:14 am

@Peter_Surda: It seems you’re agreeing with me that one kind of EM wave causes unignorable property damage (in that it’s destroyed or demonstrably weaker), while another kind has to be looked for. You could say the same about IP. “Hey, your copies of my work are propagating onto my property.” “So ignore them!” “What does that matter, it’s still my pattern!”

(By the way, the first question you asked of me was answered by the *very next sentence you quoted!* Why did you even ask it?)

@Russ: Thanks for taking the thankless job of trying to repeatedly answer the same points Peter_Surda makes, and for giving the most serious, honest responses of anyone so far to my criticisms of the anti-IP arguments.

As for your last point, how does it matter that one is “lossy”? Remember, it’s only according to a system of *values* that you can even say that information is being destroyed. You can find a similar destruction of information — measured relative to the appropriate party’s *values* when it comes to IP. So that’s not a distinction.

Peter Surda July 29, 2010 at 11:38 am

You could say the same about IP.

I admit I am baffled how the analogy should work.

“Hey, your copies of my work are propagating onto my property.” “So ignore them!” “What does that matter, it’s still my pattern!”

This makes no sense to me at all. What does it mean “your copies are propagating onto my property”? Is he throwing his copies of DVD onto the author’s premises? What is actually happening Silas? Why do you suddenly invoke “pattern”, where did it come from? Does it make sense if you cannot own patterns? I doubt it makes sense regardless of that.

By the way, the first question you asked of me was answered by the *very next sentence you quoted!* Why did you even ask it?

The purpose was to accentuate that the answer is inadequate.

Russ July 29, 2010 at 12:07 pm

“As for your last point, how does it matter that one is “lossy”?”

It matters, because it is an objective, physical difference in the two situations. It doesn’t depend on whether you value the information, or care about its loss.

Russ July 29, 2010 at 12:12 pm

“That’s the problem. You can’t define property boundaries by relevance.”

Why not? Says who? Are you against EM spectrum rights? It seems that, according to your argument, you should be.

“As I said, a collector would not accept a copied DVD.”.

Then he doesn’t have to accept one.

Curt Howland July 29, 2010 at 12:17 pm

Silas,

“Yes, people can transmit radio waves on the same frequency at the same time.”

Not all signals. Two FM broadcast stations, for example, cannot because their signals interfere with each other.

Which is why broadcast radio was getting thrashed out the same way that easement, trespassing, homesteading, etc., was worked out, prior to the existence of the FCC.

“Try a different phrasing that’s actually correct and you start to see how it’s arbitrary to claim that there’s “interference””

Interference isn’t arbitrary. It is either a provable claim, or it isn’t. When it is, the same rules of easements and trespassing apply.

Which is exactly what was happening prior to the FCC, and is a perfect example of government regulation creating conflict.

Russ July 29, 2010 at 12:29 pm

“Remember, it’s only according to a system of *values* that you can even say that information is being destroyed. You can find a similar destruction of information — measured relative to the appropriate party’s *values* when it comes to IP. So that’s not a distinction.”

But it is a distinction; it’s just one that you insist on ignoring.

First off… Unlike IP, with respect to interfering EM broadcasts information is being lost, whether you value that information or not. The loss of information does not depend on values; it just depends on looking at EM waves one level of abstraction higher, as the medium of a communication channel. (This is the same problem Peter is having, by looking at DVDs in a purely reductionist manner, as collections of purely physical attributes, rather that at a higher level of abstraction as a communication channel. The difficulties I see in your respective theories are very similar.)

Second, interfering with or frustrating someone’s plans is not a destruction of information. In other words, values are not information. (This is basically another way of saying what I said long ago on this topic; you’re using the word “interference” in two different senses; one, information-theoretical and physical, the other, in the sense of frustration. Then you’re conflating the two. So, basically, your whole argument is based on a semantic trick.)

Peter Surda July 29, 2010 at 12:36 pm

Why not?

If you can’t have a method of determining homesteading without referring to subjective factors, then a debate about property is pointless. Any theory would be as good as any other.

Are you against EM spectrum rights? It seems that, according to your argument, you should be.

I recognise that emitting EM radiation can violate property. I am unsure if the current form of EM spectrum rights is based on proper homesteading. I don’t know how to fix it but expect a market based solution.

Then he doesn’t have to accept one.

But why is then other guy’s opinion relevant for defining property boundaries, but the collector’s not? If the collector does not consider “a copy” to be “the same”, why should be copying illegal?

Peter Surda July 29, 2010 at 12:39 pm

Two FM broadcast stations, for example, cannot because their signals interfere with each other.

I am afraid Silas is correct here. Broadcasting is non-rival. However, on further points, he is wrong. Receiving is rival and that’s the issue.

Peter Surda July 29, 2010 at 12:49 pm

This is the same problem Peter is having, by looking at DVDs in a purely reductionist manner, as collections of purely physical attributes, rather that at a higher level of abstraction as a communication channel. The difficulties I see in your respective theories are very similar.

I believe you misunderstood. I am aware of the higher level abstraction. I am merely questioning the relevance thereof. There are infinite ways to divide abstractions horizontally (e.g. by the intended use) or vertically (e.g. by the production stage or branch of science). Because of the distinction between physical objects and abstract concepts, having a claim on an abstract concept creates an overlap with the ownership of physical goods. So there are already two problems: why is it relevant in the first place, and how do you fix the problem of overlaps? Well, obviously, the abstract concepts take precedence over the physical, you can’t do it the other way around. This is why IP is an just a redistribution of wealth.

In addition, patents are more abstract than copyright. For objects that are covered by both, you already have three separate “ownerships”: the guy that owns the DVD, the guy that wrote the software on it, and the guy who owns the patent for the methods used by the software. Why can’t I just fabricate another abstraction and claim property rights on that, because “it is useful for me”? Why can’t I claim the most generic abstraction and thereby own all physical property?

Silas Barta July 29, 2010 at 12:56 pm

@Curt_Howland:

me: “Yes, people can transmit radio waves on the same frequency at the same time.”

you: Not all signals. Two FM broadcast stations, for example, cannot because their signals interfere with each other.

You’re not reading my posts. The fact that their signals “interfere” (i.e., superpose on top of each other in terms of electric field and magnetic field strength) DOES NOT contradict the fact that they are still both *transmitting* the waves; it merely means that their waves are superposing on top of each other.

Which is why broadcast radio was getting thrashed out the same way that easement, trespassing, homesteading, etc., was worked out, prior to the existence of the FCC.

Yes, private property rights were being delineated without the state. Good work! So now you understand how private property rights in ideas could be delineated without the state either, thus refuting this old chesnut.

Interference isn’t arbitrary. It is either a provable claim, or it isn’t.

Well, people can make provable claims about whether their ideas are being instantiated by others. So I guess IP isn’t arbitrary either, now, is it?

@Peter_Surda:

This makes no sense to me at all. What does it mean “your copies are propagating onto my property”? Is he throwing his copies of DVD onto the author’s premises? What is actually happening Silas? Why do you suddenly invoke “pattern”, where did it come from? Does it make sense if you cannot own patterns? I doubt it makes sense regardless of that.

It simply means that, in places where the person has a right to be, he can detect the instantiation of his idea and whether he has authorized that instantiation. (Hint: this is how people know there’s someone to sue for IP infringement.)

Exactly like the EM spectrum “owner” can detect the instantiation of “his” EM frequency and that it’s not authorized!

You still aren’t showing how they’re different.

@Russ:

me: “As for your last point, how does it matter that one is “lossy”?”

you: It matters, because it is an objective, physical difference in the two situations. It doesn’t depend on whether you value the information, or care about its loss.

First, it most certainly *does* matter whether someone values that information, because if people did not broadcast (or measure EM frequency bandwidths) with the intent to transmit (or receive) information, there wouldn’t be a conflict — or need to assign property rights — in the first place! For example, if people just liked making EM oscillations for the heck of it, irrespective of whether the superpose with others’ waves, there would be no conflict.

Second, it is only objective relative to the interpretive properties of humans’ brains. Nature does not tell you whether the EM-to-sound transformation within a certain bandwidth carries information; it is humans that recognize the presence or absence of the desired information.

You know, just like IP.

Curt Howland July 29, 2010 at 1:01 pm

Silas,

“You’re not reading my posts.”

After this, you can be sure of it. You’re obviously arguing some extremely esoteric point that I, as an electrical engineer, just cannot grasp.

“Yes, private property rights were being delineated without the state. Good work! So now you understand how private property rights in ideas could be delineated without the state either, thus refuting this old chesnut.”

What chestnut, copyright? Excellent! I’m so glad you’re for abolishing it, too.

Russ July 29, 2010 at 1:06 pm

Silas wrote:

“You know, just like IP.”

I already covered this. EM isn’t just like IP. The reason is because values are not information. EM broadcasts interfere with one another, whether you care about that interference or not. Business plans are only interfered with if they exist in the mind of a human being. In yet another wording, EM interference is an actual, physical superposition of waveforms, whether you care about that superposition or not. Business plan intereference exists only in the human mind.

Peter:

So, who’s dodging now? Please tell me whether or not you believe that EM spectrum rights are legitimate. Otherwise, I can not continue any meaningful dialogue with you.

Silas Barta July 29, 2010 at 1:17 pm

@Curt_Howland: You don’t need to be an EE to understand; in fact, I was able to give an example with the same dynamics as the EM spectrum in this post, but which doesn’t involve the EM spectrum. Please read that example, as it shows how you can have the same conflicts when you try to encode information via sound waves and other people “interfere”.

@Russ:

I already covered this. EM isn’t just like IP.

With respect to the *specific* aspect you referred to, I showed that they are same; other aspects are addressed elsewhere.

The reason is because values are not information. EM broadcasts interfere with one another, whether you care about that interference or not. Business plans are only interfered with if they exist in the mind of a human being. In yet another wording, EM interference is an actual, physical superposition of waveforms, whether you care about that superposition or not. Business plan intereference exists only in the human mind.

Business plans are irrelevant. The new ideas superpose onto the existing ideas in the existing media, just like EM waves superpose over the existing waves in the existing regions of space. These are *both* the exact same kind of interference.

Remember, nature doesn’t know whether a given region’s EM field oscillation carries information or not; only people interpreting it with respect to a known encoding protocol know that.

And nature doesn’t know whether an object instantiates “Silas’s idea for a new book” or not; only people interpreting the object with respect to some encoding protocol know whether it does or not.

Russ July 29, 2010 at 1:28 pm

OK, I’m going to try to not think in terms of the higher-level abstraction of a communication channel, and only think in the most concrete terms possible. You know, like Peter does. *grin*

“Remember, nature doesn’t know whether a given region’s EM field oscillation carries information or not; only people interpreting it with respect to a known encoding protocol know that.”

So what? The EM waves superimpose. That is physical; it is real.

“And nature doesn’t know whether an object instantiates “Silas’s idea for a new book” or not; only people interpreting the object with respect to some encoding protocol know whether it does or not.”

True. But since the atoms of ink in one copy of a book don’t “interfere” with the atoms in another, at least in any way I can determine, the only “interference” is in your desires. That is subjective; it is “not real” (from a purely concrete-bound persepective).

Therefore, there is a difference between the two cases. If you jump to a higher level of abstraction and view EM waves and DVDs as information channels, there are even more differences. Namely, EM channels are rivalrous, while DVD channels are not.

Peter Surda July 29, 2010 at 1:35 pm

It simply means that, in places where the person has a right to be, he can detect the instantiation of his idea and whether he has authorized that instantiation. (Hint: this is how people know there’s someone to sue for IP infringement.)

Oh, that one. That’s actually the most reasonable retort I got from you so far.First let me reformulate it so that it actually is precise enough. You setup monitoring equipment, on your premises, that detects infringement. When the infringement is detected, a change in your monitoring equipment happens (e.g. a bit is flipped).

While it is true that the detection is causally related to the infringement, the infringement is merely a means for the change. The actual originator of the change is the one who is operating the measuring equipment. So, it is not trespass. This is very nicely explained in a paper by Stephan Kisnella where he investigates a theory of agression. The example he uses is when a terrorist mails a bomb to the victim. Victim opens it, it explodes and he dies. The postman, although his actions were causally related to the death, did not aggress against the victim, he was merely a means.

The only thing you have shown is that, if you define certain rules, it might be possible to determine by measurement whether a set of facts matches them or not. That is a different from claiming that a certain measurement result has a specific meaning that has nothing to do with the rules.

Peter Surda July 29, 2010 at 2:34 pm

So, who’s dodging now? Please tell me whether or not you believe that EM spectrum rights are legitimate. Otherwise, I can not continue any meaningful dialogue with you.

I answered as good as I can. I do not have a full fledged theory regarding “EM spectrum rights”. My current level of knowledge as well as analyses are insufficient to conclude the exact features of “EM spectrum rights”. I was able to prove that the rights in the physical goods are sufficient to involve EM emissions to some extent, making it distinct from IP. The answers to other questions regarding “EM spectrum rights” I don’t have and at this moment don’t care about them.

Silas Barta July 29, 2010 at 4:04 pm

@Russ: I don’t understand where the disconnect is. Physical objects instantiate patterns. Knowledge of these patterns propogates through the ether, whether the pattern is of a book, or an EM wave, whether it manipulates paper or magnetic fields to spread.

When I open my eyes, the receive information that can represent a book, or a blank page. When I flick on my radio, I can receive information that can represent someone’s voice, or garbled noise. Patterns can superpose on top of other patterns to convey information. That dynamic is going on in both cases, and in both cases your pattern formation is equally observable by others for inspection as to whether it copies a pattern they own.

Same, same, same.

See also my latest post about how EM waves *literally* require, for their enforcement, that people also not copy the *exact content* of the radio transmission.

Russ July 29, 2010 at 5:11 pm

“@Russ: I don’t understand where the disconnect is. Physical objects instantiate patterns. Knowledge of these patterns propogates through the ether, whether the pattern is of a book, or an EM wave, whether it manipulates paper or magnetic fields to spread.”

So far, so good. (Given that I understand you are using a metaphor when referring to the ether.)

“When I open my eyes, the receive information that can represent a book, or a blank page. When I flick on my radio, I can receive information that can represent someone’s voice, or garbled noise.”

Yes, but a blank page, and garbled noise, are very different. If somebody violates EM rights, it causes garbled noise. If somebody violates IP rights, it does not cause a blank page (or an empty or garbled DVD).

Different, different, different.

“See also my latest post about how EM waves *literally* require, for their enforcement, that people also not copy the *exact content* of the radio transmission.”

Wow. Man. You’re really stretching here. A Faraday cage makes the reception of the EM impossible. Copying IP does not make the reception of data from a DVD or book impossible. There is only a very metaphorical similarity here. Just like there is only a metaphorical similarity between interfering with someone’s intention to transmit data via EM, and interfering with someone’s business plans, values, whatever.

Let me try to break it down how I am thinking about this. I’ve never really explained this methodically, even to myself, so let me think here. Hmmmmm…. OK, there are three different levels of abstraction working here.

1) The purely physical level. On this level EM waves superimpose, but there is no “interference” of communication, because there is no communication at this level of abstraction. Copying information (IP) does not cause interference on this level, because copying information is impossible at this level; there is no information to copy yet.

2) The information channel level. On this level of abstraction, a protocol of some sort is imposed to use EM waves, or attributes of a DVD, to represent information. At this level of abstraction, information and communication channels exist. At this level, there is a possibility of interfering with an EM communication channel (causing garbled noise via superimposing EM waves), but still no possibility of interfering with an IP communication channel (and thus causing a blank or garbled page or DVD) by means of copying. You might or might not care about the information transmitted on these channels, but either way, the information exists.

3) The subjective human level. This level of abstraction is where human intentions, values, ideas and rights exist. Here, finally, there is the possibility of actual rights violations. Here, also, is the only level at which the frustration of (or “interference” with) intentions or values is possible.

You, as far as I am concerned, are conflating the second and third levels. More specifically, you are conflating interference of EM communication channels on the second level, and interference with intentions or values (with respect to IP) on the third level. Because you are crossing abstraction levels, you are equating two forms of “interference” that are actually quite distinct. Any similarity between the two forms of interference can only be metaphorical.

Peter Surda July 29, 2010 at 6:00 pm

@Russ: Nice one. Only I would like to remark that if the EM waves are of high intensity, they can cross from level 2 to level 1 and cause physical property damage. So I would actually just merge level 1 and 2 (because it is a matter of intensity rather than a qualitative distinction), but I’m willing to provisionally accept your criteria to see how Silas reacts and if he attempts to de-metaphorise his claims.

Russ July 29, 2010 at 6:31 pm

Peter Surda wrote:
“@Russ: Nice one. ”

Thank you.

“Only I would like to remark that if the EM waves are of high intensity, they can cross from level 2 to level 1 and cause physical property damage. So I would actually just merge level 1 and 2 (because it is a matter of intensity rather than a qualitative distinction)”

It is not a qualitative distinction, but it is a conceptual one. In this conceptual framework, I would have to say that EM waves are always in level 1, not level 2; level 1 is the purely physical level, and EM waves are a purely physical phenomenon. The information conveyed by the waves is in level 2.

BTW, my criticism of your attitude towards IP in terms of this framework is that, in focusing solely on the physical “attributes” of a DVD, and not acknowledging the information on the DVD as something real, you seem unwilling to transition conceptually from level 1 to level 2.

Silas Barta July 29, 2010 at 8:59 pm

@Peter_Surda: You were only calling his point good because it agrees with your conclusion. That’s the same reason Stephan_Kinsella compliments your arguments. He doesn’t actually read them, he just thinks that everyone who agrees with him is “on his side” so they must be making a good argument.

@Russ: I’m glad that you’re distinguishing the levels, but I will note that if you keep consistent standards at any level, you’ll find that they equally well violate rights.

- “Is the violation detectable?” For both IP and EM spectrum, the answer is yes.

- “Does the violation inhibit the purported ‘owner’ from doing what they want with the resource?” For both IP and EM spectrum, the answer is yes — all that differs is what they *value* doing with the resource. But this just regresses to the question of why one valued activity should be protected and the other shouldn’t be.

- Now, for how you try to allege difference: “Does the violation ‘garble’ the original?” You think you’ve obviated this question by saying that, since copying someone’s ideas doesn’t garble any of the originals, it’s not doing the same thing as EM rights violation.

But my point is, why is “garbling” even the relevant category? “Garbled noise” is not a natural category. What one person might regard as garbled, another might be able to interpret meaningfully as per a highly-compressed encoding.

On what basis do you have a “right” to non-garbled transmissions? Remember, the garbling doesn’t hurt anyone’s physical property. To even define the rights violation at all, you cannot refer to a specific unit of property, but to a pattern, *irrespective* of where it occurs.

No, the only sense in which something was damaged was that — wait for it — someone *valued* an experience less! Remember, the “ether” (yes it’s metaphorical) does not someone “want” to transmit information. It is simply one use among many we have been able to wring out of by making certain assumptions. But this is no different from trying to use a system of gongs to transmit information. If you hit your gong when someone is trying to send a message with his, you just as well “garble” his transmission — but where exactly does the garbling take place?

As for the Faraday cage argument, I don’t think you understood it. The point isn’t that there’s a “Faraday cage for ideas”. The point is that I could infringe someone’s EM rights by superposing the identical (but inverted) wave in the area where they try to infringe. Therefore, if you endorse EM rights, you ought to believe that you should be able to stop someone from, er, instantiating the wave, all the way down to the information level. But if exclusive EM rights allow you to stop others from encoding specific information, what’s so problematic about IP rights doing that?

Russ July 29, 2010 at 10:37 pm

Silas Barta wrote:
“- “Is the violation detectable?” For both IP and EM spectrum, the answer is yes.”

For EM, the answer is definitely yes. For IP, that may be more problematic. Let’s say Mr. Smith has bootlegged some Microsoft software. How do law enforcement officers determine this? Can they get enough probable cause to justify a warrant? If so, how?

“- “Does the violation inhibit the purported ‘owner’ from doing what they want with the resource?” For both IP and EM spectrum, the answer is yes — all that differs is what they *value* doing with the resource. But this just regresses to the question of why one valued activity should be protected and the other shouldn’t be.”

To answer this, I think we have to go back to regular property rights. Why should valued regular property be protected? Because regular property is rivalrous, and because without that protection, almost everybody would be worse off.

Why should EM rights be protected? Because the EM communication channel (as considered from level 2 of my framework) is rivalrous, and because without that protection, almost everybody would be worse off.

Why should IP rights be protected? Because IP (as considered on level 2 of my framework) is rivalrous? Ummm, no, it’s not. On level 3, it is, though. Is this enough to justify IP rights? I don’t think so, because regular business competition is also rivalrous, when considered from level 3, and we don’t protect businesses from competition, do we? Why should this level 3 rivalry be sufficient to justify protection in the case of IP, but not in the case of business competition? I’ve demonstrated, to my own satisfaction at least, that IP and EM rights are quite different. Now, in order to determine whether IP rights are justified, we have to consider them by their own standards, not by the standard of something that’s not really equivalent.

“But my point is, why is “garbling” even the relevant category? “Garbled noise” is not a natural category.”

It is not, if you artificially restrict yourself to the purely physical level, level 1. But noise is most certainly a natural category in level 2.

“As for the Faraday cage argument, I don’t think you understood it. The point isn’t that there’s a “Faraday cage for ideas”. The point is that I could infringe someone’s EM rights by superposing the identical (but inverted) wave in the area where they try to infringe. Therefore, if you endorse EM rights, you ought to believe that you should be able to stop someone from, er, instantiating the wave, all the way down to the information level. But if exclusive EM rights allow you to stop others from encoding specific information, what’s so problematic about IP rights doing that?”

You don’t need to “encod[e] specific information” to interfere with an EM communication channel. Broadcasting any number of possible signals at the same frequency would be enough to accomplish that. Yes, a Faraday cage interferes with a signal by using the exact opposite waveform (which means it’s basically the same signal in terms of information content). But it is not a requirement that a signal be interfered with by an exactly opposite signal for interference to take place. Random noise would suffice. So, EM rights don’t “allow you to stop others from encoding specific information”. They allow you to stop others from encoding any information that would interfere with the information channel. This is sufficiently different from the case of IP rights that I don’t think there is enough similarity for the analogy to even be that interesting. The fact that a Faraday cage uses the same exact signal that it blocks, in terms of information content, is just an oddball special case. Besides, in order to use a Faraday cage to prevent me from receiving radio waves, it would have to pretty much surround me, which I’m pretty sure would violate some of my easement rights.

Peter Surda July 30, 2010 at 1:46 am

BTW, my criticism of your attitude towards IP in terms of this framework is that, in focusing solely on the physical “attributes” of a DVD, and not acknowledging the information on the DVD as something real, you seem unwilling to transition conceptually from level 1 to level 2.

My objection is not in recognising relevance of level 2 per se, but in arbitrarily dividing level two into relevant and irrelevant.

Peter Surda July 30, 2010 at 3:20 am

You were only calling his point good because it agrees with your conclusion.

In a way, yes. It is another approach that arrives the same (or similar enough) conclusion and explains what the problem is. It demonstrates that the same conclusion is present even if you use different assumptions, so it does not depend on a specific assumption. That makes your argument stronger. I don’t see why that is a bad thing. Falsificationism doesn’t have a problem with evaluating multiple possible theories in parallel.

I’ll leave for Russ to deal with the rest.

Russ July 30, 2010 at 9:47 am

Peter Surda wrote:

“My objection is not in recognising relevance of level 2 per se, but in arbitrarily dividing level two into relevant and irrelevant.”

There is no dividing on level 2 into relevant and irrelevant arbitarily. You’re confusing level 1 and level 2. The pits or whatever of a DVD that represent the data are the level 1 infrastructure of a level 2 communication channel. They depend for their proper interpretation on a protocol of some sort. Other attributes of the DVD, say for instance the incidental scratches on the surface, do not make it to level 2; they stay in level 1. They also do not involve a protocol in any way.

There is a division of level 1 properties into those that form the infrastructure for level 2 (the pits), and those that don’t (the scratches). But that is not at all arbitrary. It is done with an explicit purpose.

Peter Surda July 30, 2010 at 10:03 am

There is no dividing on level 2 into relevant and irrelevant arbitarily. You’re confusing level 1 and level 2.

I beg to differ. If someone claimed that all intentional information is ownable, I would not make this objection (I might make others though). But IP proponents don’t claim that. Even with intentional information, they divide it according to relevance by prevailing business models.

Russ July 30, 2010 at 10:13 am

Peter Surda wrote:
“If someone claimed that all intentional information is ownable, I would not make this objection (I might make others though). But IP proponents don’t claim that. Even with intentional information, they divide it according to relevance by prevailing business models.”

I don’t see how the inconsistency of current IP laws invalidates the concept of IP rights. How do any rights get enforced? In courts of law. Even if the more reasonable visions of Ancapistan, there are still courts of law. And courts of law are comprised of humans. There will always be some inconsistency. So what?

Regular property rights are enforced by inconsistent laws as well. I supposedly own my property, and should be able to do anything I want with it that does not violate the rights of others. But my local community has ordinances that insist that I mow my lawn every once in a while. Having tall grass does not violate their rights, and I signed no contract saying that I would keep my grass short. So what gives? Anyway, the law is inconsistent. This does not invalidate the concept of regular property rights.

Peter Surda July 30, 2010 at 11:14 am

It’s not about current laws. None of the IP proponents I asked considered the ownership of information to the full extent, they describe my examples of what that would mean absurd. Even if it was possible to fix the inconsistencies in the law, they don’t want that.

Peter Surda July 29, 2010 at 4:08 am

No I haven’t read it yet.

Andras July 28, 2010 at 5:09 pm

Scope of patents are the bounderies and they are no more arbitrary than the subjects of physical homesteadings. Next!

Peter Surda July 29, 2010 at 4:14 am

We’ve been through this before. Your “boundaries” are basically a sophisticated version of dibs, my “boundaries” are based on natural phenomena (and do not depend oh numan interpretation). If I accept your premise that a description is a way of creating boundaries, then you cannot derive your version of dibs from that assumption. Any distribution of rights is a valid one. So, you need to make several more assumptions than me, and I don’t need to make any assumptions you don’t make. Occam’s razor cuts you down.

Silas Barta July 29, 2010 at 11:15 am

It’s not a “natural” phenomenon that Billy-Bob “owns” “this much” of “this” land. Nature won’t tell you when you’re on a human’s property; a *human* will recognize it and tell you.

No difference shown.

Peter Surda July 29, 2010 at 11:53 am

It’s not a “natural” phenomenon that Billy-Bob “owns” “this much” of “this” land.

Except I didnt’ say homesteading is a natural phenomenon. I said homesteading is based on natural phenomena (rather than, as you would like to have it, imagination). You homestead your property by changing it. The change does not occur in your head, it occurs in the external world, therefore is based on natural phenomena. You know, like physics, chemistry, biology and so on.

You of course assume too much and address irrelevant parts of the theory. If you assume homesteading should be an objective process, it requires change. If you don’t agree that homesteading should be objective, then any theory works, so there is also no reason why your should be preferred to mine. Indeed, if homesteading cannot be objective, then why have that concept at all? Either way, your argument is pointless.

It’s the same problem with inductive reasoning. You think that by adding assumptions, you refute my claims, while it is the opposite, you can only do that by removing assumptions.

Silas Barta July 29, 2010 at 12:41 pm

Except I didnt’ say homesteading is a natural phenomenon. I said homesteading is based on natural phenomena (rather than, as you would like to have it, imagination). You homestead your property by changing it. The change does not occur in your head, it occurs in the external world, therefore is based on natural phenomena. You know, like physics, chemistry, biology and so on.

If that were an actual distinction between IP and physical property, then no one would ever be able to tell when their IP is (believed to be) infringed.

Yet, somehow — perhaps through magic? — people are capable of *physically* recognizing that someone else is instantiating their ideas. Are the blurry edge cases? Sure. Just as there are for physical homesteading.

No difference shown, try again.

Peter Surda July 29, 2010 at 1:10 pm

If that were an actual distinction between IP and physical property, then no one would ever be able to tell when their IP is (believed to be) infringed.

It is refreshing that you finally realise something which I wrote before. Yes, that is right. You cannot tell if a non-rival good is being trespassed. The only thing you can do is to look at rival goods and try to establish whether they are causally related to the non-rival good, and/or whether their attributes match those the non-rival good defines.

Yet, somehow — perhaps through magic? — people are capable of *physically* recognizing that someone else is instantiating their ideas.

Just like people can “magically” recognise when the traffic lights are red, although the boundary of “red” is not a natural phenomenon. Red was probably chosen for easier detectability due to how human retina works. So, the boundary is purely utilitarian. Just like IP is purely utilitarian due to how human brain works, how our culture develops and what business models are prevalent.

No difference shown, try again.

See above. I already had a debate on this with Kerem.

Curt Howland July 28, 2010 at 6:42 pm

“Good IP is scarce, that’s why you want to copy it for free instead of paying for a copy.”

Good air is scarce, that’s why I want to just go outside and breath instead of buying it canned.

Silas Barta July 29, 2010 at 11:16 am

Why do you download [data recognizable to you under some known interpretation as] music, rather than random bitstreams?

Think about it.

Curt Howland July 29, 2010 at 12:18 pm

Why do you assume I do?

That’s projection.

Silas Barta July 29, 2010 at 12:38 pm

Okay, ignore the reference to the person Curt_Howland and answer the question for music pirates in general.

Think about it.

Curt Howland July 30, 2010 at 7:49 am

To tell you why other people do things would be the height of hubris.

That you assume you can ask such a question tells me a great deal about you.

Stephan Kinsella July 30, 2010 at 1:17 am

A few responses to pro-IP-libertarian:

“Sheesh, Darcy and Silas are right, this could be retitled “The Insecurity of Anti-IP libertarianism”. It’s settled! We won! Some people agree with us! Nothing to see here, keep moving.”

That’s not the argument. It does appear to be the case that there has been a dramatic and decisive shift on this issue, and an dramatic increase in awareness. I have seen this over and over in recent years. THis is notable in and of itself, even though it is not an argument for the position’s correctness.

IP is consistent with Lockean homesteading. Locke himself supported IP. And state recognition is basically needed for physical property rights as well. Try defending your physical property rights without state recognition that the property is yours. And just because the state does something now doesn’t mean it can’t be done by a private entity.

Support for your contention that Locke supported IP? In any case it’s not part of his homesteading theory, which is all that we support as libertarians–and not all of that, anyway–we reject his Lockean proviso. If he was for IP he was wrong. So what.

And no, private property does not come from or need the state. And no, you cannot have a private version of the Statute of Monopolies http://en.wikipedia.org/wiki/Statute_of_Monopolies_1623

Anti-IP is what is redistributionalist, since it collectivizes intellectual property.

This assumes IP is a type of property. that is what is under debate. So here we have the tired old question-begging IP libertarians routinely resort to.

They propose collective ownership of intellectual property, not state ownership.

Only property can be owned. IP is not property. It’s information.

Oh, except for what can be termed the “plagiarism paradox”, of course. Anti-IP writers still want “credit” – i.e. a form of ownership – when it comes to property that is important to their academic and writing careers.

Attribution and plagiarism are not what IP is about. IP is about duplicating or using ideas. Attribution does not rely on IP–it’s just a fact whether you did or did not originate a pattern and IP is neither necessary nor suficient to demonstrate this fact. As for plagiarism if it’s fraudulent it’s handled by the law of fraud, if not, then it’s just something that makes you look like a fool or fake. Again, no IP needed. And no paradox.

Good IP is scarce, that’s why you want to copy it for free instead of paying for a copy. There is plenty of free IP around – shareware, public domain music, etc. – you just want the good stuff for free because it is valuable.

This is so confused hard to know where to start. By this reasoning all the info someone wants to use for free is valuable, and it must be scarce, and thus property. In other words, not wanting the state to impose a monopoly on every single idea means I want it for free, implying that it’s scarce, so that it SHOULD be monopolized. Nice bootstrapping!

This is all confused handwaving. The libertarian view is that we should cooperate and use scarce resources peacefully–that is, assign ownership rights according to a fair scheme, which is of course the Lockean rule of first-use-first-own. It is very simple and intuitively fair. The entire purpose of this is because conflict is possible–this is why it centers on scarce resources–things that are rivalrous. A pattern is simply not rivalrous. It may be used by a million people at once without exhausting the supply. My copying and using an idea does not take it away from anyone else. It is simply beyond cavil that information patterns are not scarce resources. To say that it is is either rank stupidity or dishonest equivocation (between meanings of “scarce”).

I suppose there is “collectivism” now in the fashion industry and perfume smells–no copyright there. I suppose you guys would plug this hole and make IP cover ever more of modern life. There is no stopping point.

That is what is actually going on once we ignore the “since you can duplicate it, it isn’t scarce” framing. And yes, commercial use of IP is rivalrous. Sort of like academic use of IP and plagiarism.

This is so incoherent i have no idea what is being said.
“If you explain that every creator’s work also built on the thought of others, they come up with a convenient public domain or “fair use” exception.”

No, we just acknowledge that there have to be some rules about where novel ideas and creations begin, just like there are rules about owning and homesteading physical property.

You make arbitrary limits on IP’s scope and length. You know that if it’s infinite in length like normal property it would eventually choke the world with ensnaring IP tendrils; no one would be able to move or act, we would not have the permission. You limit it to blunt its sharp edges. If we point to an injustice you say well fair use shoudl cover that. Etc.

Technically Ogg, the first homosapien to write the first written symbols (language), had a big part in creating human knowledge, so technically one could argue his ancestors should own nearly everything. I’m being facetious, of course, but that line of argument becomes a reductio ad absurdum pretty quickly.

Yes, um, that reductio words against you, not against us. Hellooo

if IP was done away with the main remaining benefit would be “first mover” advantage. Now who are the few entities that could best capitalize on first mover advantages? The largest manufacturers and distributors. Individual and small-scale entrpeneurship would be basically done away with or marginalized to the point of being eliminated. Corporations, especially corporations in heavy-IP industries, would become more oligarchic. The proverbial “band that got screwed in a deal with a big record company” would be even more screwed because the record company wouldn’t even need to make a “deal” – they would just take their music and have some employee musicians play and record it.

THis is just speculation, but anyway, what is the relevance? Are you a consequentialist now?

But they weren’t that quiet on entrepeneurship, which would be hampered without IP. Even more than it is hampered now. There is a lot of literature about the big, established players using the government to stifle entrepeneurship with regulation. With no IP, the big players could take the innovations and inventions of the entrepeneur at will.

You mean, they would “learn” things? They would emulate? Knowledge would spread? Horrors!

I was unaware that a key principle of libertarianism was that we must stop knowledge from spreading too quickly!

And note how silly this is: you realize the state is corrupt–it enacts regulations at the behest of big business. So… we should trust this corrupt, evil state to make things right … by passing another law? Why would anyone expect them to even want to pass the “right” law?

Innovations would be quickly “emulated” (taken) and smaller, independent entrepeneurs would be quickly driven out of business.

Ridiculous and mere assertions.

And then there are the pricing problems that Silas Barta mentions, which are the fatal flaw of socialism. I wouldn’t write those off if I was advocating IP collectivism.

So… the fashion industry is in calculational chaos? How in the world to the big designers even know how to wake up in the morning, what with all this calculational chaose spread by the lack of IP in fashion designs!

Not at all. It’s not the job of the entrepeneur to figure out how to deal with IP collectivism because he has natural law rights in his creation, as IP recognizes.

More (horribly worded) question-begging.

There is already a market, not centrally planned and with prices set by entrepeneurs, for IP. And it works quite well.

So does the income tax system and the prisons housing drug criminals.

The IP collectivists want something of value from entrepeneurs and they threaten to (or actually do) take it when they are unwilling to pay the price asked. That isn’t libertarianism or free market economics. That is extortion and force.

Babbling, question-begging, assertions, confusion. Nothing to respond to.

“When the holes in their weak arguments are exposed, they escalate and call us IP socialists or communists — even though the idea that people who mentally “labor” “deserve” a “reward” for their labor is itself Marxian (see “Locke, Smith, Marx and the Labor Theory of Value”; “Objectivists: ‘All Property is Intellectual Property’”).
.
Blatantly incorrect and disingenuous….
And I don’t claim that IP creators “deserve” to be rewarded for their labor. That would be rooted in the Marxist “Labor Theory of Value”.

Did you not even click on the links that you just copied? It’s all over the place. E.g. Objectivist Diana Hsieh: “producers deserve to be rewarded handsomely for their efforts”

IP collectivists claim that if they don’t agree with the price a creator sets for IP, they have a right to take it without paying. Whether you call that, it isn’t libertarianism.

“Take” it? This is not true. If someone keeps information private, its a crime to coerce the person to reveal it or to trespass to find it.

If they reveal information to the world, it’s not longer private. And if others learn from this and use this knowledge to guide their actions, that does not take anything from the creator of the idea. The creator still has the idea. It is not taken!

Intellectual homesteaders merely have a right to set a price on IP that they have created.

They are not homesteaders. Homesteading is becoming the first user of a previously unowned resource, the person who sets up borders and transforms it–so that when there is a dispute or conflict over use of it, he wins because he had it first, and thus has a better claim to it than the latecomer.

But creating an idea is just thinking of a better way to use or arrange your own property that you already own. If you rearrange your property into a more useful shape by following some idea or pattern you thought of, you don’t own anything new. You already owned the things you rearranged. You simply have made your thing more useful and valuable. You didn’t homestead or appropriate any unowned resource. Nor is the idea scarce, so that there is a need for property rules to prevent conflict–we can both use the idea. Nor is it conceivable to mark off borders to an idea. If I see an apple that is unowned and pick it up, now I have it, and you cannot. It was unowned before and now has an owner. If I think of a way to use my apple, that method or recipe was not some unowned scarce resource lying in the state of nature waiting for me to “homestead” it. It’s just a way I used my apple. I don’t own the way i used my apple. I don’t own knowledge or information. To suggest I do is simply absurd.

Michael McLees July 30, 2010 at 5:17 pm

” The libertarian view is that we should cooperate and use scarce resources peacefully–that is, assign ownership rights according to a fair scheme, which is of course the Lockean rule of first-use-first-own. It is very simple and intuitively fair. The entire purpose of this is because conflict is possible–this is why it centers on scarce resources–things that are rivalrous.”

Do you mean scarce and rivalrous things like the market of potential customers and the limited supply of money with which they may purchase things? Both are scarce and rival. And can we not simply say that the granting/holding/decreeing/legislating, etc… IP is the way we fairly distribute that market (in favor of those who own the IP)? Just as land ownership rights are assigned to the first homesteader (therefore he has the ability to make the best possible use of his land through use or sale), should IP rights not be assigned to the creator of an invention or creative work to this same end?

I know that the writer of a creator of some creative work can still use and sell his work, but is he not at a competitive disadvantage when his competitors may sell the same product without first spending the time/money to develop it? And isn’t that the same kind of unfairness we should be seeking to eliminate with both physical properties and intellectual products?

Stephan Kinsella July 31, 2010 at 12:06 pm

“Do you mean scarce and rivalrous things like the market of potential customers and the limited supply of money with which they may purchase things? Both are scarce and rival.”

Exactly: IP fascists think that you have a property right in your customers and their business. That’s basically slavery.

“Just as land ownership rights are assigned to the first homesteader (therefore he has the ability to make the best possible use of his land through use or sale), should IP rights not be assigned to the creator of an invention or creative work to this same end?”

IP rights give pattern-creators ownership rights in scarce resources ALREADY owned by others. So tha’ts why it’s in conflict with Lockean homesteading. It’s an an additional right–it comes at the expense of real rights: just as it does when liberals create positive rights to welfare etc.: these come at the expense of other rights. That’s why my first major article on this was titled “In Defense of Napster and Against the Second Homesteading Rule” http://www.lewrockwell.com/kinsella/kinsella2.1.1.html

Huntsmen July 28, 2010 at 1:17 pm

“Sheesh, Darcy and Silas are right, this could be retitled “The Insecurity of Anti-IP libertarianism”. It’s settled! We won! Some people agree with us! Nothing to see here, keep moving.”

Sad, ain’t it? I know a couple of teacher who had an epiphany style reaction from reading a Mises Daily I gave them, The Anti-Intellectual Effects of Public Schooling, and the Jeffery/Kinsella anarcho-axis would rather make malinvesments toward the banal subject of IP.

DD5 July 28, 2010 at 1:30 pm

Having a clear view on IP has actually made it on my list as #1 on as the most evil and destructive State intervention. Even more evil then central banking.

End IP!

Darcy July 28, 2010 at 5:18 pm

Just the kind of moral confusion that we have come to expect from IP opponents.

It’s more important that kids be able to download movies than that billions of people be able to protect their wealth from counterfeiting.

Shay July 29, 2010 at 2:42 am

If you think about it, sharing information increases wealth; it allows people to make better use of what they have. The fed printing money merely shifts wealth around; it doesn’t (directly) destroy or create it. It’s just an effect on the representation of it. It’s an important distinction. Put another way, if suddenly all money disappeared, there’d be some chaos, but all the things of value would still exist (farms, food, buildings, etc.). If somehow we all forgot everything and all books and information suddenly disappeared, we’d be set back hundreds of years, and have lost a lot of wealth. This is not to say that printing money isn’t harmful, but merely to point out the relative difference in harm.

Darcy July 29, 2010 at 8:18 am

Sharing information increases wealth in the same way as printing money does – it expropriates the producers to enrich the counterfeiters.

pro-IP-libertarian July 28, 2010 at 1:54 pm

Julien Couvreur-
.
But ideas and information, unlike potatoes, can be replicated without trespassing on the producers property. They are non-rivalrous and non-exclusive, which means that they are not subject to the same kinds of conflict that potatoes do and which prompt the use of property rights as a way to resolve conflicts. Therefore their “nature” does not qualify them as property.
.
That only applies to the personal use of intellectual property. The commercial use of intellectual property is harmed by unlicensed duplication. That’s why the anti-IP collectivists’ model relies on the “ease of duplication means IP isn’t scarce” framing. Good IP and good IP creators are scarce, that’s why everyone wants to copy their IP. And the alternate models often proposed by IP collectivists – public domain music sites, Radiohead’s “pay what you want” releases. etc. – haven’t taken off as credible replacements. IP collectivists want the good IP “potatoes”. But when they don’t want to pay the asking price, and rather than walking away they claim they have a right to take them.

mpolzkill July 28, 2010 at 2:11 pm

“IP collectivists want the good IP ‘potatoes’”

See Russ, Surda, over the course of *years* was nearly driven insane by thousands and thousands of these faulty and/or dishonest metaphors, and *now* you pounce on him when he has become a little shrill from the strain. Tsk, tsk.

Mo July 28, 2010 at 2:14 pm

So what is being said here is that consumption of IP is non-rivalrous and non-exclusive, but IP as a capital good involves rivalry and exclusivity? Is that correct?

Peter Surda July 28, 2010 at 3:01 pm

According to my analysis, abstract concepts are non-rival, but the goods that are causally related to them can be rival. IP proponents dilute the distinction between the non-rival good and the rival goods that succeed it, leading them to weird constructions. Non-rival good is actually just a metaphor for causality.

Peter July 28, 2010 at 6:58 pm

Run, Peter: the Grammar Police are coming for you.

(Goods can be rivalrous; they can’t be “rival”)

Peter Surda July 29, 2010 at 4:29 am

So what is the distinction between rival and rivalrous?

Peter July 29, 2010 at 8:43 am

I guess it’s a sense of “action” in the former vs passivity in the latter: rival, as an adjective, means “competing” or “holding the position of rivals”; you can have, e.g., “rival ideas” (the ideas are at odds with one another), but “rival goods” is hard to make sense of — the goods themselves are the subjects of, not participants in, the rivalry (i.e., they’re rivalrous).

Peter Surda July 29, 2010 at 10:00 am

The distinction does not sound like something important.

Russ July 29, 2010 at 10:02 am

“Rival” is a noun, “rivalrous” is a adjective. Sheesh.

Peter Surda July 29, 2010 at 10:17 am

If you google, you’ll find some dictionaries that include rival as adjective.

Peter July 29, 2010 at 8:59 pm

rival is a noun, an adjective, and a verb, but only the adjective is at issue. If this distinction isn’t important, why not just use “scarce” as Kinsella does — the difference in meaning is smaller. (One thing can be scarce/rivalrous; it takes at least two be called rival things (“to be rival” doesn’t make sense))

Peter Surda July 30, 2010 at 3:23 am

Because a lot of people evaluate “scarce” as “there is not enough of it”. That definition is insufficient, and leads them to wrong conclusions.

Russ July 28, 2010 at 7:22 pm

“IP proponents dilute the distinction between the non-rival good and the rival goods that succeed it, leading them to weird constructions.”

I don’t dismiss the distinction between non-rivalrous and rivalrous goods. I just think that if you are a pro-IPer, and justify ownership of non-rivalrous and rivalrous goods in a different way, then it is a distinction without a difference.

“Non-rival good is actually just a metaphor for causality.”

So? If Mr. Smith has written some software, and Mr. Jones copies it, then, yeah, Mr. Jones’ copy would not exist without Mr. Smith’s. There is a definite causal connection there. Duh. That’s kinda the whole point. Mr. Jones is not just enjoying the benefit of some accidental attributes of a DVD. Mr. Jones would not be able to benefit from his copy of the software, were it not for the labor of Mr. Smith. In other words, Mr. Smith’s labor is a predecessor in the causal chain of Mr. Jones’ benefit. What’s more, if everyone free-rode off Mr. Smith’s labors, then Mr. Smith would not be able to afford to expend the labor necessary to create the software. In other words, this is not an externality that can be free-rode off of without negative impact. Since people benefit off of Mr. Smith’s software (or they wouldn’t bother to copy it), and since Mr. Smith won’t write the software for free, then if we institute such laws necessary to give Mr. Smith sufficient incentive to write the software, then everybody is better off.

Again, this may not be a perfect argument. But it is an argument.

Peter Surda July 29, 2010 at 4:35 am

I don’t dismiss the distinction between non-rivalrous and rivalrous goods.

But then you don’t have an argument. What remains is the Theory of Claims on Causality: if you have some sort of claim on A and B is causally related to A, you also have some sort of claim in B. But if you implement this consistently, you are in trouble, because causality extends to infinity. So, you need to divide causality into “claimable” and “unclaimable”. Which is something you cannot do. On one hand you say “laws do it”, then you say “laws can be inconsistent”. On one hand you say “I don’t care how it is divided”, then you say that there are two theories (utilitarian and moral) that depend on that division. So you are contradicting yourself. You have no explanation whatsoever for anything.

I know you are merely trying to make sure arguments are correct. I understand that. I am a falsificationists. But falsificationists do not prove, they disprove. I cannot disprove something that doesn’t exist.

Stephon Smith July 28, 2010 at 7:35 pm

The idea is non-rival. The product that results from implementation of the idea is rival. If you “steal” the idea, it does not preclude production. But if you steal the product, that’s theft. That’s as clear a distinction as I can think of.

Russ July 28, 2010 at 7:52 pm

What Peter means is that a copy is non-rivalrous in the sense that the original owner still has his copy and can get use from it at the same time that the copyer is getting use from the copy.

Peter Surda July 29, 2010 at 4:41 am

That is a bit imprecise. What I claim is that the idea and the physical representation thereof are separate entities and having a claim on one does not imply having a claim on the other. In case someone misinterprets this again as a reverse implication fallacy, let me preempt that and explain that I don’t propose that those two claims cannot coincide, rather that the implication is absent.

Peter Surda July 29, 2010 at 4:38 am

So, are you a proponent of the Theory of Claims on Causality? The theory states that if you have some sort of claim on A, and B is causally related to A, it also means that you have a claim in B. If you are a proponent of this theory, then you face the problem that causality extends to infinity, so you need to divide it into “claimable” (“theft”, “IP”) and “unclaimable” (externalities). So, it is up to IP proponents to explain how this division works.

Peter Surda July 28, 2010 at 2:54 pm

The commercial use of intellectual property is harmed by unlicensed duplication.

In other words, “unlicensed duplication” is a substitute. Next!

Mo July 28, 2010 at 3:25 pm

sweet

Julien Couvreur July 29, 2010 at 12:18 am

“harmed by unlicensed duplication”

Your clobbering the term “harm”. There is nothing wrong with my choosing to grow more potatoes or opening a shoe store next to yours. Yes, it will diminish the value of your business, thus causing you “harm”, but this is not aggression or trespassing (like theft, rape, kidnapping).

“The commercial use of intellectual property is…”

Define commercial. Then ask yourself if bittorrent is a commercial activity.
There is no difference between commercial and personal use from an economic perspective, both a for one’s own benefit.

“And the alternate models often proposed by IP collectivists …”

Read Kinsella’s article above. We do not know what models the free-market would produce, absent monopoly power over IP. We also do not know the kind, quantity and pricing. It is possible that music will be only available in special rooms where recording devices are forbidden. Who knows. The point is that you should not equate anti-IP and “free music”. Before copyright, musicians were already getting paid and also copied and emulated. Already today, musicians make more of their revenue from concerts, not CDs or downloads…

Also, the term “collectivist” is improper, as IP opponents claim that intellectual stuff cannot be owned. It is not private property, it is not collective property, it is just not property.

Finally, two more argument which illustrates how absurd and arbitrary any IP laws are:

1) You own a bicycle forever, you can give it to your children and so on, and someone taking it in a hundred years from you descendants is a thief. If ideas or information where property, who wouldn’t you also own them forever?

2) It is possible and indeed common for different people to independently come up with the same idea, solution or design. How can you claim that the second inventor did anything wrong?

Mo July 28, 2010 at 2:07 pm

I read a post somewhere outlining the idea that someone could prohibit the copying of a product as a provision in the buying contract. For instance, a sticker on a box of software that says ‘If you buy this you agree not to copy and redistribute it’.

I’m thinking this line of argument is conflating legitimate contract with preemptive restraints on legitimate property. The former is enforcement after the fact, the latter is force prior.

I can’t seem to clarify this scenario. Anyone have any insights?

mclean July 28, 2010 at 3:51 pm

you just restated the exact definition of copyright.

Peter July 28, 2010 at 7:22 pm

No he didn’t.

(And “a sticker on the box” does not a contract make)

Julien Couvreur July 29, 2010 at 1:32 am

Copyright as it exists today is not a voluntary contract, it is law.

The law was changed to extend the term of copyright, which affected retro-actively previous products. But a contract cannot be changed without consent.

Also, if copyright was handled as simply a contract (which would be acceptable for libertarians) you might have some with longer terms, which are not possible with the current law.

Curt Howland July 28, 2010 at 6:47 pm

Such a non-disclosure contract isn’t uncommon at all. They happen every day.

Someone breaks their non-disclosure agreement and “shares” whatever it is, then it is the person who broke that contract who is liable.

Under copyright, 3rd parties who receive whatever it is, who were never party to the non-disclosure agreement in the first place, are criminals.

Just another reason copyright violates basic property rights.

mclean July 29, 2010 at 12:30 pm

I completely agree with you about 3rd parties, but the heart of the debate lies elsewhere.

I haven’t read Kinsella’s book, but I did read the IP Chapter in True Libertarianism where the author tries to distinguish the anti-”IP” view with that of Rothbard’s. Rothbard favored non-disclosure agreements ONLY, and thought these should be carried in perpituity. In fact, Rothbard’s arguments against patents are essentially identicle to the anti-”IP” arguements I’ve read so far. He did not convince me that Rothbard was wrong, yet he goes on to conclude that copying books and selling them is acceptable. I assume he means that the copyers would be so called 3rd parties? If that is the case, this is not inconsistent with Rothbard, and the whole anti-IP thesis is nothing more than a restatement of Rothbard.

Furthermore, we need to redefine IP to its literal meaning, that of IDEAS only. Books, even spoken words are only media of exchange of ideas. Telling someone a secret is simply copying the idea and giving it as a gift to another. If non-disclosure agreements are acceptable, surely the scenerio of stealing an idea from inside someone’s head is wrong, as in the movie Inception.

Mo July 28, 2010 at 2:30 pm

Liberty is an idea that should be prevented from unauthorized duplication by freeloading collectivists

Michael A. Clem July 28, 2010 at 2:59 pm

Too late! Anybody can copy that idea without restraint, whether they believe in it or not. ;-)

Ellen July 28, 2010 at 5:29 pm

I am a software consultant and I have been working for months on a project. This software is not just some random idea that is floating around and could occur to anyone but is a product of a lot of effort. It does not seem to me to be fair for the client to have invested so much in it for it to not belong to them – they paid for it to be developed and should be able to recoup their investment. It is their property, tangible or not.

Darcy July 28, 2010 at 5:34 pm

You dirty capitalist pig, turn that software over right this second! You have no right to own what you invested your capital in to produce! It’s just an idea that we could have at any time, hence it’s worthless and costless. So turn it over.

Curt Howland July 28, 2010 at 6:50 pm

Yes, they are paying you for the creation of the software, to solve a particular need.

The vast majority of programmers work every day fulfilling such needs.

But what then? The code is written, the customer is satisfied and has their business improved by the use of this code. What becomes of the code?

The reason I like F/OSS is that that code is not lost, it is available to all to built upon and BETTER solve the next problem, make the next business BETTER than the last.

“If I compute faster than other men, it is because my code rests on the shoulders of Giants.”

Russ July 28, 2010 at 6:57 pm

True, most software that is written stays in-house, and can be adequately protected by non-disclosure agreements.

But, why would a company want to invest valuable resources to generate code that anyone can use? That sort of defeats the purpose of having a program that others don’t have, which gives you a competitive advantage. Paying for it, and then giving it to your competitors, would be giving your competitors an advantage. Not a great way of doing business.

Curt Howland July 28, 2010 at 7:36 pm

“Not a great way of doing business.”

Agreed. There will be business models which fail due to a repeal of I.P.

Just as there will be shipbuilders and munitions manufacturers who would go out of business if the military industrial complex were abolished.

This, to me, is not an argument in favor of maintaining the artificial monopoly grants.

So instead, I look around and see if there is software that does not depend upon copyright for its profitability: F/OSS.

In fact, I haven’t used a Mac since 1992 or Windows since 2000. I run Linux, I’m posting this through FireFox, displayed with a KDE GUI using Xwindows.

Xwindows predates Linux by a decade. The most widely used web server in the world is the Apache server, which costs not a penny to use and deploy.

Without copyright, maybe Apple would have to make all its profits being “first to market” with large profits margins before their ideas were knocked off.

Oh, wait, that’s what already happens.

Honestly, I think very little would actually change without I.P., except for the speedy failure of businesses entirely dependent upon rent seeking, like the R.I.A.A.

Russ July 28, 2010 at 7:51 pm

Curt Howland wrote:
“Agreed. There will be business models which fail due to a repeal of I.P. …

This, to me, is not an argument in favor of maintaining the artificial monopoly grants.”

The argument is that we would all be worse off without the production of the IP. Of course it is a utilitarian argument, but I don’t see why this means that we must automatically reject it.

“So instead, I look around and see if there is software that does not depend upon copyright for its profitability: F/OSS.”

I don’t think that F/OSS is such a great substitute. I do have Linux and know how to run it, but I prefer Windows. Besides, Linux is built on the intellectual superstructure of Unix, which was of course proprietary software made for profit.

Peter July 28, 2010 at 7:53 pm

Unix, which was of course proprietary software made for profit
No it wasn’t.

Russ July 28, 2010 at 8:02 pm

Really? I was under the impression that it was created by Bell Labs, and that the source code was closely guarded for many years. I know that the early copies of the source were distributed by “samizdat” press.

Curt Howland July 28, 2010 at 8:14 pm

“The argument is that we would all be worse off without the production of the IP.”

So, prove that without copyright there would be no production of ideas.

I have demonstrated that there is a great deal of creative work going on that is not dependent upon the government monopoly grants. This is, to me, a direct refutation of your bald and unsupported assertion that without those monopoly grants there would be no creation of creative materials.

“but I prefer Windows.”

All your doing is showing how you prefer one over another, not how that would not exist without copyright. Either you’re avoiding your own assertion, or you have no basis for your assertion.

“Linux is built on the intellectual superstructure of Unix, which was of course proprietary software made for profit.”

False on all counts. Please read Dr. Peter Salus “The Daemon, the GNU & the Penguin”:

http://www.groklaw.net/staticpages/index.php?page=20051013231901859

Remember that silly little monopoly grant given to AT&T to be the one and only telephone provider in the US? It was illegal for them to make proprietary software for profit when they wrote UNIX, and started giving it away for free to pretty much anyone who asked.

Russ July 28, 2010 at 8:24 pm

Curt Howland wrote:
“So, prove that without copyright there would be no production of ideas.”

I don’t have to prove that; I only have to have a reasonable argument that there would be enough less production to negatively impact society.

“I have demonstrated that there is a great deal of creative work going on that is not dependent upon the government monopoly grants. This is, to me, a direct refutation of your bald and unsupported assertion that without those monopoly grants there would be no creation of creative materials.”

You have directly refuted a strawman.

“All your doing is showing how you prefer one over another, not how that would not exist without copyright.”

So you think Microsoft would continue to bother paying people to write software, if they could not claim IP rights to it? I think that’s patently absurd.

“False on all counts.”

I didn’t mean that Linux is based on Unix source. I meant “intellectual superstructure” in a more generic sense.

“Remember that silly little monopoly grant given to AT&T to be the one and only telephone provider in the US? It was illegal for them to make proprietary software for profit when they wrote UNIX, and started giving it away for free to pretty much anyone who asked.”

I stand partially corrected, then. But still, AT&T wouldn’t have written Unix if they hadn’t felt that they somehow profitted by doing so. And I’m sure they would have attempted to profit from it by selling it, had they been allowed to.

Curt Howland July 28, 2010 at 9:01 pm

Russ,

“I don’t have to prove that; I only have to have a reasonable argument that there would be enough less production to negatively impact society.”

Good sir, THAT IS NOT WHAT YOU SAID.

You specifically stated “without the production of the IP.”

Not “less”. Without. As in NONE. But let’s go forward with your new phrase anyway.

It’s already been proven that the artificial monopoly grants are crushing creativity and innovation, so go ahead and prove that without those artificial monopoly grants there will be such a lack of creativity that it will overbalance the now-freed-up creativity.

But then, a benevolent dictatorship is quite efficient. That doesn’t mean I have any interest in living under one.

“You have directly refuted a strawman.”

So your argument was a deliberate straw-man? That’s impolite.

“So you think Microsoft would continue to bother paying people to write software, if they could not claim IP rights to it? I think that’s patently absurd.”

Indeed, it would be absurd, so you can be certain that is not what I was saying. I said “Windows”, not Microsoft.

“I didn’t mean that Linux is based on Unix source. I meant “intellectual superstructure” in a more generic sense.”

And again, that is false. Either read the source materials, or stop talking about a subject in which you are woefully ignorant.

No, let me take part of that back. Here’s a starting point for your education: POSIX standards were built into UNIX years after its initiation, just as they were built into Linux from the very start.

“AT&T wouldn’t have written Unix if they hadn’t felt that they somehow profitted by doing so.”

Exactly what I was saying at the start: Programming will happen, artificial monopoly grants or not, because it is valuable to solve particular problems. They did “profit” from UNIX, because they had UNIX to use where they did not have it before.

1) Write code
2) Use it
3) Profit!

I’m not seeing any mystery steps with big question marks here.

Peter July 28, 2010 at 7:52 pm

FYI: there’s no such thing as “Xwindows”; it’s just “X” (or “the X Window System” in full — that’s X [Window System], not [X WIndow] System)

Curt Howland July 28, 2010 at 8:16 pm

Thanks, yes, I was inaccurate. I would hope I was accurate enough, for anyone actually interested.

Darcy July 28, 2010 at 7:59 pm

The problem is not producer-level software used in-house to respond to a specific need – it is consumer-level software produced to respond to a specific consumer market.

Open source has never produced a substitute to Adobe CreativeSuite, and it has no chance of ever succeeding.

Curt Howland July 28, 2010 at 8:17 pm

“Open source has never produced a substitute to Adobe CreativeSuite, and it has no chance of ever succeeding.”

This only demonstrates that Adobe has been “first to market” with a product that is in demand. Although, seriously, I’ve never heard of it.

If Adobe can’t figure out how to profit from that, it’s their loss. Nothing to do with copyright at all.

Darcy July 28, 2010 at 8:47 pm

Curt, your comment is an astounding demonstration of your ignorance of scarcity – time matters in scarcity.

Adobe is first to market because no one has the capital to invest in a consumer-grade suite of creativity tools. The only reason Adobe could have the capital is that they own the software they produce. If they are expropriated, the company will be ruined and no capital investments in consumer creativity tools will ever be made again. That is capitalism 101.

You keep repeating that it’s their fault if they can’t make money without property. This is an economics blog. You must provide an explanation of the economics of capital investment in consumer software and how it results in profit, or otherwise you have nothing to say and no grounds to be part of the debate.

Curt Howland July 28, 2010 at 9:11 pm

Darcy,

“time matters in scarcity”

Golly, then maybe I was right when talking about first-to-market being the one monopoly that a creator has that has nothing to do with statute monopoly grants.

Thank you, I’m so happy you agree.

“If they are expropriated, the company will be ruined and no capital investments in consumer creativity tools will ever be made again. That is capitalism 101.”

Such hyperbole. Please, explain how I have OpenOffice.org and The GIMP on my system right now. As far as I can tell, I seem to have “expropriated” them since I gave them no money. By your definition, “no capital investments in consumer creativity tools will ever be made again”!!!

You must provide an explanation of the economics of capital investment in consumer software and how it results in profit, or otherwise you have nothing to say and no grounds to be part of the debate.

I would much rather hear you support that no consumer software will be written without the artificial monopoly grants, when it’s available right now.

As for what I “must provide”, I suggest you read Eric Raymond’s “The Cathedral and the Bazaar”.

And, unless I am very badly mistaken, you are a guest on this forum and hardly in a position to tell other people what the rules are. But my oh my, how agitated you when shown wrong over, and over, and over.

Darcy July 29, 2010 at 8:14 am

The cathedral and the bazaar shows clearly that open source software development is strictly limited to only producer goods, not consumer goods. You continue to name producer goods and deny the very existence of consumer goods in order to obfuscate the severe flaws of the open-source model.

Why does Apple Computer keep being “first to market” and open source never catches up, decades after it promised it would? Because Apple Computer is capitalized for the consumer market. It is economics 101.

It’s getting to the point where it is obvious that open-source proponents are not only confused, they are downright selfish and want only their preferred platforms to be used by the market.

Curt Howland July 29, 2010 at 12:30 pm

Darcy,

“You continue to name producer goods and deny the very existence of consumer goods in order to obfuscate the severe flaws of the open-source model.”

Bald. Faced. Lie.

I named Linux, OpenOffice, GIMP, KDE, X, and would continue with some hundreds of consumer applications, games and distractions, if I thought it would do you any good.

“Why does Apple Computer keep being “first to market” and open source never catches up”?

Because Apple is a hardware company. Just ask them.

BTW, Apple now uses the BSD kernel for their Mac operating system, because “Open Source” is doing better what Apple was trying to do in-house.

“It’s getting to the point where it is obvious that open-source proponents are not only confused, they are downright selfish and want only their preferred platforms to be used by the market.”

My, what interesting things your projections say about you.

You made the false statement that without copyright, there would be no production of software. I have handed you example after example, and your only valid counter is that the two software applications YOU like could not possibly exist without copyright.

That is your problem, not mine.

Russ July 28, 2010 at 8:04 pm

Wasn’t X developed by MIT? Which would mean it was developed using government largesse?

Curt Howland July 28, 2010 at 8:21 pm

Looking at the development of various “government funded” college projects, the “government funding” was actually secondary. The individual scientists were already trying to fill a need.

I really enjoyed asking Bob Kahn about that when I had a chance to talk to him in 1993.

I haven’t met many of the giants of the ‘Net, but the ones I have have all been very independent. Government involvement was always secondary or of no importance at all.

Russ July 28, 2010 at 8:28 pm

Where did these scientists’ salaries come from?

Ellen July 28, 2010 at 8:22 pm

It gets sold to their customers. (Not an in-house product.)It doesn’t matter that someone else might be able to improve it and benefit from that, it matters that it belongs to THEM. Same issue as other redistributions of wealth.

Curt Howland July 28, 2010 at 8:33 pm

Do you mean that if I buy a piece of software, it’s mine to share just like if I buy book I can give it away?

The programmers labor is being sold to their customer, the company that wants the software written. Is that what you mean?

“Same issue as other redistributions of wealth”, are you speaking of the author’s code being taken by the company, or the idea that, once written, software itself is non-scarce?

Russ July 28, 2010 at 8:35 pm

“It doesn’t matter that someone else might be able to improve it and benefit from that, it matters that it belongs to THEM. Same issue as other redistributions of wealth.

I hate to parrot Stephan Kinsella, but you’re simply question begging here. That is, you’re simply asserting that the software belongs to them, in the sense that they have the right to control all copies of it. But that is exactly the point under contention! That being the case, simply preaching (making assertions) won’t do much to convince anybody who isn’t already sitting in the choir.

And there is a difference between copying software and what is normally considered redistribution of wealth. That difference is the normal redistribution takes something away from the “donor”, whereas copying software does not deny the “donor” his copy. (Of course, there are also similarities between copying software and what is normally considered redistribution. I don’t deny that.)

Darcy July 28, 2010 at 8:50 pm

There is a simple explanation why the software belongs to them – it came from their property and they never agreed to renounce its ownership.

Much more in depth thread in the Mises forums on this subject: http://mises.org/Community/forums/t/13692.aspx

Peter Surda July 29, 2010 at 6:11 am

Ah, so we have another proponent of the Theory of Claims on Causation.

Russ July 29, 2010 at 7:43 am

Peter, I never said that mere causation justifies IP. If that is what you think of my arguments, you have misunderstood them.

Peter Surda July 29, 2010 at 8:31 am

That was a reply to Darcy, not to you. Specifically, it addressed “it came from their property”.

Russ July 29, 2010 at 8:39 am

OK. I assumed you were referring to me when you said “another proponent”.

Julien Couvreur July 29, 2010 at 1:37 am

I’m a software engineer as well. Some software you could protect with contracts (license agreements) and technology (DRM, software keys, watermarks, license servers, etc.). But you could not prevent a competitor from emulating you, as patents currently allow.

The effort put into something is not justification for granting you property rights.

Jonathan Finegold Catalán July 28, 2010 at 6:57 pm

The issue to me seems to stem from the idea that there is such thing as objective property law. I realize that this will put me in direct conflict with a number of people here, but as a nihilist of sorts I don’t believe that there is objective law of any sort. As such, the argument that intellectual property is not property in the same sense as a house is your property seems rather superfluous to me.

I, at first, wanted to avoid giving my opinion, knowing that few would probably agree, but I think it is a relevant response to Ellen’s post. Ellen writes,

I am a software consultant and I have been working for months on a project. This software is not just some random idea that is floating around and could occur to anyone but is a product of a lot of effort. It does not seem to me to be fair for the client to have invested so much in it for it to not belong to them – they paid for it to be developed and should be able to recoup their investment. It is their property, tangible or not.

Neither do I think it is fair that that property is protected through legal monopoly, provided by the government. I don’t see that as a necessary protection of property rights. Like I wrote above, property rights were developed “privately” over a period of time, establishing social boundaries for cooperation. They exist, not because of some objective law, but because society found them beneficial to advancement — individuals claim property, and the recognition of said property amongst society is a form of social cooperation.

Intellectual property strikes me as falling under the same conditions. If the “owner” found a method by which to exact recognition from those he interacts with, or those he can interact with, then it seems to me that that form of protection of property rights is valid. For example, keeping a code secret is valid. Having the government use force to monopolize your ownership over that secret, is not. I mean valid in the sense of social cooperation versus use of monopolized force (I don’t mean necessarily right or wrong).

Curt Howland July 28, 2010 at 7:43 pm

It is my opinion (since we’re giving opinions) that in an entirely voluntary society, attribution would be given just as attribution is given now.

This is because putting my name on someone else’s work is lying.

But that’s the end of it. And I don’t consider it a bad end, for the very utilitarian argument that it’s not copying that hurts a creator, it’s obscurity.

Darcy July 28, 2010 at 7:46 pm

Intellectual property strikes me as falling under the same conditions. If the “owner” found a method by which to exact recognition from those he interacts with, or those he can interact with, then it seems to me that that form of protection of property rights is valid. For example, keeping a code secret is valid. Having the government use force to monopolize your ownership over that secret, is not. I mean valid in the sense of social cooperation versus use of monopolized force (I don’t mean necessarily right or wrong).

If the owner simply seized counterfeit copies and destroyed them himself instead of going through the monopolist government, then that would be fine with you? There is no difference between erecting a wall to keep out thieves and simply fighting the thief yourself. It is usually an economic choice. And producing security at the large scale through another party, government or not, is also simply an economic improvement over self-defense.

So if you accept that information can be owned by secret, there is no reason for it not be owned by law as well. It is simply more economically efficient to provide that service.
.

Jonathan Finegold Catalán July 28, 2010 at 8:14 pm

Darcy,

I’m not sure if I am unable to put my argument forth clearly. I am having a similar debate over on Facebook, and it seems as if my argument is not getting through. You write,

If the owner simply seized counterfeit copies and destroyed them himself instead of going through the monopolist government, then that would be fine with you?

Within the framework I gave, I think the question isn’t necessary. I said that I believe things such as property are developed as a method to allow for social cooperation. By avoiding conflict over property, one can better reach certain ends. Thus, it was in society’s preference to develop property rights.

Property rights are not used as a method of justifying violence or force, even if it is to protect your so-called property. For example, it might not be beneficial at all to go out and burn property that you believed someone stole from you. Not because this would disallow you to use it, but because this might inspire further conflict between you and your neighbor, where conflict is not necessarily desirable.

I think that if there was an effective method of providing protection for property by law (private law, not arbitrary law) then that would be conceivable within a libertarian society.

Darcy July 28, 2010 at 8:34 pm

You are thinking backwards. Property arises from conflict, it is not a suggestion to resort to non-violence. Property rights are established when a conflict over a scarce good results in a violent confrontation, and an arbitrator is invoked to rule the law in the matter.

So, if someone builds a fence and someone else tears it down because it is in his way, how do we tell which side has the correct property right? The law and precedents tell us. One side is justified in either building the fence or tearing it down. Similarly, one side is justified in either making counterfeit copies or destroying them. Perhaps both sides will attempt to use violence to stop the other side, but only one side can be in their right.

Which side is it?

Jonathan Finegold Catalán July 28, 2010 at 8:53 pm

Darcy,

I am not thinking backwards, you are just misinterpreting what I am writing.

Property rights are established when a conflict over a scarce good results in a violent confrontation, and an arbitrator is invoked to rule the law in the matter.

I agree, and I too stated this in my reply to you. Property rights are a method by which individuals avoid conflict. I would add the caveat that individuals may not need an arbitrator, other than themselves (sometimes, for example, we can arbitrate disputes over land ourselves [referring to farmers in Spain]).

So, if someone builds a fence and someone else tears it down because it is in his way, how do we tell which side has the correct property right? The law and precedents tell us.

I think this is too simplistic. If we agree that there is some law that is universally respected across the land, then sure. It also needs to be enforced, and the individual who it is enforced upon needs to recognize it. In a free society, I am not sure the issue is as black and white. It would make more sense for the two individuals to arbitrate the specific case.

I’m not sure the concept of “right” and “wrong” is necessarily relevant. The only thing that is relevant is that both individuals meet their ultimate ends, and to do so efficiently both recognize that the minimization of conflict is ideal. As such, this is why I hold property rights not to be objective existent, but a form of boundaries to allow for said social cooperation.

I feel that our responses are leaving the topic I was originally writing on, and we are making this more abstract and complicated than it needs to be. The only thing I was talking about was the creation of so-called property rights, and then applying it to intellectual property.

Saerden July 28, 2010 at 9:14 pm

The gist is this. Noone cares about “right” and “wrong”. Noone cares about wether someone is “justified”. Noone cares about what the judge says. But Shooting people (=violent conflict = war) is expensive and risky, so noone sane wants it. Over the course of time, the market begins the develop a solution – property and arbitration. People dont respect property because it is just, they respect it because it makes them better off overall. They can resolve disputes with people they do not really want to shoot (their neighbours and friends) and feel better about shooting people theyd shot anyway (criminal strangers)
Justice and Morallity are just good marketing to make it “stick” and easy to remember.

While this is stated in an extremely controversial way to explain the principle, think of the reverse – imagine if something was “just” / morally right but extremely inefficient. People who would insist on doing the right thing would be at an extreme disadvante. They would simply be outcompeted and and go extinct.

The idea here is that free exchange is far more likely to produce a good outcome then central planning – the same argument that demolishes monopoly on shoes demolishes monopoly on law.
The probability of a policy being pathetic is directly related to the amount of violence needed to enforce it. Thats why anything done by a central monopoly of force is suspect by default.

If you want a pretty good mix between “artists get paid” and “my DNA is fair use!”, leave it to the market. It is a pretty good sanity check against laws that allow you to own numbers on the one hand, and laws that lead to total collapse of civilisation (because noone invents anything!) on the other. Remember that it is not a violent free for all, as good arguments have an effect on which laws people want to purchase.

Good reads are
Read Law’s Order
http://www.daviddfriedman.com/Laws_Order_draft/laws_order_ToC.htm

or the Machinery of Freedom
http://daviddfriedman.com/The_Machinery_of_Freedom_.pdf

mclean July 29, 2010 at 12:40 pm

“Property arises from conflict”

That absurd metaphysical nonsense. Sounds exist even when there is no one to hear them. The rest of the world exists even though I’m not looking at it.

Donald Rowe July 28, 2010 at 9:13 pm

JFC,
The link specified by your name returns “Account suspended. Please contact the support team.”
I expected it to lead to a site that displays more of your thinking. I was disappointed.

Cordially,
Don

Darcy July 28, 2010 at 7:44 pm

Intellectual property strikes me as falling under the same conditions. If the “owner” found a method by which to exact recognition from those he interacts with, or those he can interact with, then it seems to me that that form of protection of property rights is valid. For example, keeping a code secret is valid. Having the government use force to monopolize your ownership over that secret, is not. I mean valid in the sense of social cooperation versus use of monopolized force (I don’t mean necessarily right or wrong).

If the owner simply seized counterfeit copies and destroyed them himself instead of going through the monopolist government, then that would be fine with you? There is no difference between erecting a wall to keep out thieves and simply fighting the thief yourself. It is usually an economic choice. And producing security at the large scale through another party, government or not, is also simply an economic improvement over self-defense.

So if you accept that information can be owned by secret, there is no reason for it not be owned by law as well. It is simply more economically efficient to provide that service.

Zorg July 28, 2010 at 10:49 pm

If IP is a RIGHT, why are there time limits on patents? Why is there
anything in the public domain at all?

Why isn’t Joe Bockenburgerstein from Leafy Woods, Nebraska, who is
the direct descendant of Og, the neolithic stone mason who invented
the wheel, not the richest man in the world owning ALL profits derived
from wheels everywhere in the world since time began, now, and for
all time to come?

Is it not his RIGHT?

How many of you pirates are stealing Joe’s rightful profits by using
unlicensed wheels which originated in the mind of the great Og?
Have you no shame? :-/

Zorg July 28, 2010 at 11:21 pm

Isn’t it funny how the idea of monopoly and of a claimed right to
it is at the heart of arguments for the state AND IP?

IP = monopoly.

State = monopoly.

IP = State.

Just as all arguments for the state lead directly to absurdity, so
do the claims made for IP. This is why the comments on these types of
articles go off in a thousand different directions. The “pro” group
can never touch the fundamental issue of enforced monopoly, just
like in political philosophy debates. Arguing either for the state or for
IP requires that concepts and word meanings be endlessly malleable
to fit the argument of the moment. In the next sentence, of course,
the whole thing will shift and go someplace else.

Have fun on that trip, but monopolies of force will always be indefensible.
No amount of question begging or special pleading will ever change that.

I think I’ve read just about every comment on many of these IP threads
and I’ve yet to see an actual pro-IP *argument*. It’s just all mush to me.
It’s just like listening to someone ramble on about the “social contract” or
something. You say, “What contract?” and there is no answer. You ask
IPers “What property?” The same.

You’re chasing shadows but the shadows won’t be caught.

It’s so mind-numbing. It’s like trying to fill a cup with empty.
(You can quote me without attribution. I promise I won’t sue.) : )

Alistair July 28, 2010 at 11:47 pm

Wow, huge thread.

I have to say, as evidence here indicates, pro-IP libertarianism might not be in its death throes, yet, though it could be that the numerous IP proponents on this blog might not consider themselves libertarians.

I just want to address this EM spectrum nonsense that someone further up was pushing. IP and the EM spectrum have nothing to do with each other. Electro-magnetic radiation is NOT information. It is simply a means of encoding and transferring information that human beings have developed. Just like talking or beating a drum. It physically exists, and has done since the universe began. We represent it as a spectrum because we are aware of the realm of possible wave lengths and frequencies; this description is information NOT the actual photons or the various states of energy in which they exist. It is homesteaded and abandoned and re-homesteaded constantly, and can be done so, because of the realities of interference by both geography and other transmissions. How co-operation and ownership work when it comes to EM is for a different day entirely, as it has nothing to do with the validity of intellectual property.

Ned Netterville July 28, 2010 at 11:53 pm

Stephen, I’m on your side, but I don’t like the tone of this article because it reminds me ever so much of the maddening attitude of those statists who want to put the almighty State in charge of the earth’s weather. These climate alarmists dismiss their opponents’ arguments saying “the science is settled, the debate is long over, the problem is real, now lets get about solving it before it is too late,” by which they mean let us give government the authority to take whatever amount it determines it needs from people in the form of taxes, and that it (the state) may regulate lives to whatever extent it pleases in the name of addressing climate change, whatever that means.

As the comments here indicate, the IP debate among libertarians is NOT settled, and I do not think that saying it is advances the anti-IP argument. Rather it is like waving a red flag in a bull’s face. You’ve made solid strides in advancing the anti-IP case, but it seems the jury is still out, and even a favorable verdict will be subjected to appeal. Don’t count your chickens before they hatch; the eggs, like the human genome, may be patented.

Stephan Kinsella July 29, 2010 at 12:35 am

Thanks Ned. I am not trying to argue by authority or numbers, or crow triumphantly prematurely. But it is the case that there is an enormously large and noticeable movement toward the anti-IP camp. I have seen it with my own eyes these last 5 or so years. I’ve never seen anything like it in libertarianism. Why is this not worth noting–even cheering?

And I’m trying to explain this phenomenon: I think it’s because we are right; and it’s clear once you look at it, equipped with Austrian principles; and the current state laws and the erroneous views of some libertarian founders, is the reason why there has long been a roadblock to seeing things clearly, to adopting the right approach.

Darcy July 29, 2010 at 8:24 am

I will celebrate this movement when the Mises Institute releases all its material into the public domain.

Peter Surda July 29, 2010 at 9:02 am

The Mises Institute can’t do that. Only the government can. But, if you were actually reading what Stephan writes, you would already know that, right?

Matthew Swaringen July 29, 2010 at 2:33 pm

And if Darcy were being honest he’d have to admit it’s pretty close now. I can download most any book I want here and the articles allow these huge comments/debates so it’s not like they are seriously silencing opposing viewpoints either.

Darcy July 29, 2010 at 6:01 pm

Yes you can do all of this, within some limits. It is those limits that legitimize IP.

Despite what IP opponents will have you believe, even open-source software is pro-IP. It functions as a model only to the extent that it can limit the rights of the programmers.

It is only a few die-hard communists who actually believe that Creative Commons and open-source software are actual models of a non-IP society.

Kerem Tibuk July 30, 2010 at 3:28 am

Mises Inst can in fact do that.

Wordings are meaningless. No state prosecutes copyright infringement without any complaint from the IP owner. So stating in plain English, that the material is not copyrighted in the real sense, and people who use it freely will never be asked to be prosecuted would be the honest thing to do.

What do you think would happen if Mises Inst does not follow the legal language of copyright on their site, regarding the material they already own, and make a deceleration that they will never be a party of a copyright infringement case? Do you think the state will prosecute the Mises Inst?

Also there is another glaring hypocrisy of the Mises Inst.

If people running the Mises Inst, truly believe IP is injustice, and if they believe it is only a method of bleeding the poor consumers who already have a right to the material, by the help of the state, if they really believe the actions of any copyright owners to protect their IP is in fact agression against real??? property rights, they should not sell any outside material that is copyrighted.

Since those books, whatever they may be, are owned by publishers and authors who believe in IP and collect their due, by even associating with these people through their books, Mises Inst is being hypocritical. They are aiding the people who supposedly use aggression against innocent people by the help of the state.

But I have learned long time ago, you can never expect honesty and integrity from a patent attorney crusading against IP.

mpolzkill July 30, 2010 at 3:42 am

“you can never expect honesty and integrity from a patent attorney crusading against IP.”

Right on, Tibuk. A couple other disingenuous bastards I know of: Ron Paul and Raoul Wallenberg.

“But I have learned long time ago…”

You sound like a particularly addled 13-year-old.

Peter July 30, 2010 at 6:43 am

What do you think would happen if Mises Inst does not follow the legal language of copyright on their site, regarding the material they already own, and make a deceleration that they will never be a party of a copyright infringement case? Do you think the state will prosecute the Mises Inst?

Of course not. But if it’s not enforceable, saying “not copyrighted” doesn’t actually make it not copyrighted — 20 years from now the Kochtopus could get control of the LvMI and reassert control…over what people, believing the “not copyrighted” text on the site, have been using as if it wasn’t. If they put a CC license on it, or whatever, those people are protected. Besides, why lie to people?

by even associating with these people through their books, Mises Inst is being hypocritical

Pffft!

Kerem Tibuk July 30, 2010 at 7:04 am

“Of course not. But if it’s not enforceable, saying “not copyrighted” doesn’t actually make it not copyrighted — 20 years from now the Kochtopus could get control of the LvMI and reassert control…over what people, believing the “not copyrighted” text on the site, have been using as if it wasn’t. If they put a CC license on it, or whatever, those people are protected. Besides, why lie to people?”

That is just nonsense. First every material has a unique and identifiable author. Say Kinsella writes an article. Nobody can come later and say “since we run the Inst now Kinsella’s article is ours”. Unless Kinsella somehow gives his article to the Inst. The only thing that can happen is Kinsella can change his mind later on. But his initial announcement regarding the copyright situation of that article would be enough even if he later tried to use copyright protection. These things go to courts and I don’t thing any court would rule otherwise.

And in the case of selling other authors works and publishing articles with a copyright disclaimer in the bottom like Reisman’s articles, is hypocritical.

When you claim IP laws are unjust and whoever profits from these IP laws, be it publishers or authors are actual aggressors, and then sell these books of these authors, there is no way of escaping hypocrisy.

But being armchair philosophers with no real life consequences is easy. Living what you preach and having a spine is actually hard.

Peter Surda July 30, 2010 at 7:18 am

Kerem, you are just talking nonsense. Even if Stephan does not change his mind, the law can, against his intentions, transfer the copyright to other people, who might not share his opinion. For example, he might go bankrupt and the copyright be auctioned off. Or he might die and his heirs might be morons. Or a fraudster can trick judges to rule the copyright is his. Tons of things can happen. CC is a more suitable way of preventing this than saying “this is not copyrighted”. Merely because you lack imagination does not make your arguments true.

But being armchair philosophers with no real life consequences is easy.

Hahaha, nice self-reflection.

Living what you preach and having a spine is actually hard.

So, are you ready now to proclaim all externalities and all substitutes property?

Stephan Kinsella July 30, 2010 at 3:19 pm

As I said below, Kerem is confused. The problem is that the copyrgiht that IP fascists like him support prevents us from getting rid of it. Writing “this is not copyrighted” is simply false and does no good. It’s the fault of IP itself that we cannot easily make it public domain. http://blog.mises.org/9240/copyright-is-very-sticky/

THe idea is that if you do a CC license (which is by the author, since he consents to the Mises.org publication of it this way) then it cannot be taken back later b/c some people have relied on it in the meantime. But this is al somewhat speculative–which is the problem with copyright in the first place. A CC0 license would be better , or “public domain,” but these are known not to be as universally effective as CC attribution only is. But even this one, I have my doubts about. The only way to be clear about it would be to have a signed agreement between the publisher (or author) and every reader. this is obviously unworkable. This huge mess is all the fault of IP and its advocates.
Yet they blame us for not making it public domain when their laws won’t let us! How horrible they are.

Kerem:

But I have learned long time ago, you can never expect honesty and integrity from a patent attorney crusading against IP.

Kerem, you are in danger of being banned for making personal comments, and outrageous, defamatory ones at that. Dishonesty? How dare you.

Peter Surda July 30, 2010 at 3:42 am

Mises Inst can in fact do that.

So now you are a legal expert too, huh?

So stating in plain English, that the material is not copyrighted in the real sense, and people who use it freely will never be asked to be prosecuted would be the honest thing to do.

Stephan (or was it Tucker?) addressed this too. It could happen in the future that Mises Institute is taken over by IP zealots, which then will re-assert their copyright claim. If however you license the materials under “anti IP licenses” such as CC, this becomes impossible. CC is there to protect the consumer.

Also there is another glaring hypocrisy of the Mises Inst.

No, it shows that you don’t know what you are talking about.

Stephan Kinsella July 30, 2010 at 3:16 pm

Kerem is confused. The problem is that the copyrgiht that IP fascists like him support prevents us from getting rid of it. Writing “this is not copyrighted” is simply false and does no good. It’s the fault of IP itself that we cannot easily make it public domain. http://blog.mises.org/9240/copyright-is-very-sticky/

THe idea is that if you do a CC license (which is by the author, since he consents to the Mises.org publication of it this way) then it cannot be taken back later b/c some people have relied on it in the meantime. But this is al somewhat speculative–which is the problem with copyright in the first place. A CC0 license would be better , or “public domain,” but these are known not to be as universally effective as CC attribution only is. But even this one, I have my doubts about. The only way to be clear about it would be to have a signed agreement between the publisher (or author) and every reader. this is obviously unworkable. This huge mess is all the fault of IP and its advocates.
Yet they blame us for not making it public domain when their laws won’t let us! How horrible they are.

Robert July 29, 2010 at 6:21 am

Stephan you win. Reading the comments from people still defending IP is depressing. Someone literally said something to the effect that you must be wrong because you take the time to answer their questions……My head hurts.

Otherwise smart people I enjoy reading, like Silas Bartas, come across as personally vindictive and angry, with no substance behind their claims.

It’s not even close. People have an extremely hard time changing and admitting they are wrong. I would not waste my time trying to convince everyone. The IP issue has largely been settled. In time that will only become more apparent.

Silas Barta July 29, 2010 at 12:36 pm

Robert, you do realize I used to be anti-IP, right? So it’s not exactly a case of me hanging on to a view against evidence. Quite the contrary: IP opponents fail to recognize the implications of their standard, unquestioned arguments for the case of IP. Specifically:

- The calculation problem of how an entrepreneur can know how much of what resources to allocate towards producing ideas as opposed to making physical goods.

- The sharp, unavoidable parallels to EM spectrum rights, which are an interesting case of “pattern privileges” that anti-IP libertarians already accept.

- The fact that all the business models proposed for creating intellectual works in the absence of IP would *just as well* work as business models for producing physical goods in the absence of physical property rights, yet no anti-IP libertarians regard the latter as reason to get rid of physical property rights or to prove that they’re irrelevant and a form of state subsidy.

See points 2) and 3) in this comment.

You, my friend, are the one seeing with blinders on. If I appear angry, it’s because so many others are, too.

Peter Surda July 29, 2010 at 1:00 pm

1 – refuted, you bailed out of further discussion
2 – a debate is in progress, although you delayed it by ignoring me for 10 months
3 – I don’t think I refuted this explicitly, so I’ll just mention that externalities refute this

The core problem is that no matter how you divide the rights, you can never reap the full benefits of your actions. There will always be externalities. Merely pointing out that the one whos effort results in a product cannot reap revenue from that product is insufficient, because that just shifts the problem into a different area. If it was a problem, it would be unfixable.

Peter Surda July 29, 2010 at 2:47 pm

Oh and one more thing, I just realised a connection. I wrote elsewhere that IP merely creates another layer upon already homesteaded physical goods, so it is just a redistributive measure. This also refutes the economic calculation argument. IP does not introduce additional prices into the picture, that would require you calculate some prices twice. In fact, it can be argued that IP has inflationary effects, since it injects new property rights into the same amount of scarce goods. So those Austrians that think fiat money and FRB are illegitimate should also oppose IP for the same reason :-)

Silas Barta July 29, 2010 at 4:13 pm

And that’s just as confused and hard to decipher as pretty much everything else you say.

Please, justify and ground your concepts before you claim that people fail to meet standards predicated on those concepts.

Peter Surda July 29, 2010 at 5:34 pm

It is not my fault that you have trouble comprehending and are not spending time on understanding your own theories. When I don’t understand something you say, I ask. But if the case is reverse, you just ignore it and pretend it doesn’t exist. That is intellectual dishonesty.

Do you agree with the statement that you cannot use non-rival goods without using rival goods that are causally related to them? Do you agree with the statement that rights in non-rival goods only redistribute rights in rival goods that are causally related to them? Do you agree with the statement that when you introduce rights in non-rival goods into a system with rights in rival goods only, that does not increase the amount of goods covered by property rights, it only shifts relative market sizes?

Robert July 30, 2010 at 4:57 am

Silas,

I won’t even attempt to weigh in on the merits of what you listed in your post. I do not see how they have any relevance. You may be right, you may be wrong. I honestly have no idea. I also don’t understand how the definition of whether or not something is considered property depends on things like “the calculation problem of X…” or whether business models would “work just as well” etc.

The most convincing anti-IP arguments to me are the ones who clearly lay out the definition of what property is and where it comes from and then it becomes undeniable that if one agrees with the libertarian view and definition of property, IP is not property at all! If your only defense in disagreeing with this viewpoint is listing potential problems as a result of properly redefining IP as not having property rights, then you have no defense at all.

Silas Barta August 4, 2010 at 3:20 pm

@Robert: (and since this is such a great thread)

I won’t even attempt to weigh in on the merits of what you listed in your post. I do not see how they have any relevance. You may be right, you may be wrong. I honestly have no idea. I also don’t understand how the definition of whether or not something is considered property depends on things like “the calculation problem of X…” or whether business models would “work just as well” etc.

Is that because you’re not seriously trying to engage the issue? I have spelled out very precisely, every time I’ve brought up these arguments, how they apply to the issue, and you have no excuse for dismissing them on the grounds of not seeing their relevance. I’ve given it — you need to refute that, in the places you see it, if you want to make this argument.

For the IP calculation argument, let me ask you this: in what contexts, and for what purposes, is Mises’s economic calculation argument (which he uses as a critique of socialism) relevant? Whatever answer you have in mind, that is the context and purpose I deem the IP calculation argument relevant for. (IP opponents have a long history of changing the topic when one critique of the argument is given, so your answer may differ from others.)

The most convincing anti-IP arguments to me are the ones who clearly lay out the definition of what property is and where it comes from and then it becomes undeniable that if one agrees with the libertarian view and definition of property, IP is not property at all! If your only defense in disagreeing with this viewpoint is listing potential problems as a result of properly redefining IP as not having property rights, then you have no defense at all.

Well, I’ve done much more, though I don’t see why that’s “no defense” — if the argument assumes away the very delineations its needs to justify, it hasn’t proven anything.

One point I’ve made is that Stephan_Kinsella’s argument is actually ambiguous with respect to which usage rights a homesteading grants you. For example, if homesteading a piece of real estate *really* grants you *all* usage rights in it (which he claims is the implication when he starts talking about IP), then this would mean that you have the right to scramble any EM wave passing through your property.

But wait — Stephan_Kinsella claims that homesteading does *not* grant you *this* usage right in that property (or at least, he’s “not sure”). Therefore, by his very own argument, the fact that you have homesteaded something does not imply that you have gained rights to usage of all apsects of it. Therefore, Lockean homesteading arguments do not suffice to justify the right to use the property to instantiate a novel idea.

(Just as you have not homesteaded the right to form the pattern “EM oscillations at frequency f”, you havne’t necessarily homesteaded rights to form the pattern “novel idea I was not even aware of but for the work of this particular organization”. Yes, you could have other reasons to justify such a right, but that’s thte whole point: this wouldn’t be one of them!)

So his argument doesn’t prove what he wants it to. Oopsie! But no matter, he’s aware of this and keeps arguing it anyway. Go fig.

Peter Surda August 5, 2010 at 5:16 am

Therefore, by his very own argument, the fact that you have homesteaded something does not imply that you have gained rights to usage of all apsects of it.

You are using the word “usage” in a metaphoric meaning to denote causal relationships. Causality extends to infinity, you can never gain rights to usage of all aspects of it, no matter how you define the rights.

Silas Barta August 5, 2010 at 7:53 am

Yes, there you go again, making cryptic comments about metaphors, causality, and infinity, with no corresponing explanation to how these terms fit in with the topic, or what I’m talking about, why they matter, how my exposition violates the standards you propose, and why, specifically, I should care about those standards.

So, all I see when you make a comment is, “But you don’t recognize the znoogblorg of the gifgarg!” So? Why do I care care about the znoogblorg? In what way did I not recognize it? Why does that non-recognition matter.

I answered the corresponding questions when I started posting on the topic; why can’t you?

mpolzkill August 5, 2010 at 8:17 am

Hopefully Surda too realizes that you guys are at an impasse, right? Right. Alright, Barta, from your first post here:

“illegitimate copies are substitutes. Do you have a right to profit from substitutes?”

On the streets of Ulaanbaatar, a Mongolian national sells a bootleg DVD he transferred from his camcorder that he had turned on and pointed at the screen in a theatre playing “Avatar” (still not sure if you’re a Randian or not, so I thought I’d put in every detail to be safe). I believe you think he is stealing from James Cameron. What do you advocate doing about that, if anything?

Silas Barta August 5, 2010 at 9:40 am

@mpolzkill: I didn’t make that post. Try again.

mpolzkill August 5, 2010 at 9:45 am

Oh, damnit, you’re right. But does it matter? Forget the original quote and answer the question, please.

Silas Barta August 5, 2010 at 11:16 am

Okay. Here’s my answer: same thing you want done for shoplifters.

mpolzkill August 5, 2010 at 11:23 am

I don’t know what that is, I don’t have any feelings about shoplifters in Ulaanbaatar. What do you want done to shoplifters in Ulaanbaatar, anything?

Silas Barta August 5, 2010 at 12:29 pm

And … that, folks, is what I have to deal with.

Peter Surda August 5, 2010 at 1:36 pm

Now you have shown you have no interest in reading or understanding what I write. I have explained the damn thing zillion times. Including to you. IP “theory” requires that you create a false dichotomy between externalities and causality, and another false dichotomy between substitutes and similarity. It arbitrarily divides them to “bad” (those which are covered by property rights and using them requires permission) and “good” (those which are not covered and anyone can use them). This is done with metaphors. For example “usage of all aspects of it”. I explained that you cannot use non-rival goods without using rival goods causally related to it. So, “usage of all aspects of it” dilutes this distinction and merges some rival goods with the non-rival good. But, since causality extends to infinity, you need to arbitrarily select which goods to merge and which not. No matter how you divide it, the dichotomy is unavoidable.

How about you stop being a coward and actually respond to all the questions that I pose?

Peter Surda August 5, 2010 at 1:42 pm

Oh and of course it is hypocritical to accuse me of using garbled language when you are constantly referring to “inseminating the potty”, not realising you are talking about externalities and substitutes. Since theory depends on a false dichotomy, there is no point in recognising it or not.

mpolzkill August 5, 2010 at 1:47 pm

Yes, you certainly will have to deal with figuring out how to enforce your desires. Perhaps you could deign to tell me if you have a plan for Mongolian shoplifters and if so what that is. It’s the same as your plans for a Mongolian bootlegger it seems, now what is that? And please forgive my ignorance, your majesty.

- – - – - – - –

I guess Peter doesn’t agree about the impasse.

jerry August 5, 2010 at 6:23 pm

What is the starting point of people’s argument being made here against IP, is it one of these or something else.

- we can determine “objectively” (in some sense that we could all agree on) that the guy in ulan bator is piggy-backing on james cameron’s work ie. that he is selling a dvd that came from a copy of one of the dvds produced by james cameron, and agree that the seller saved the cost of cameras and sets and actors and is now selling the dvds for the same price as james cameron without the costs. And even though cameron (or the studio, whatever) expressed a wish via contract whenever they sold a copy that it not be further copied or sold, the only way to hold people who didn’t make explicit contracts (ie. who found the dvd in a field) to this is via the existence of copyright. This means that everyone in some jurisdiction must obey laws or restraints which are not restricted to property rights violations and this requires the state and acts of aggression and therefore wrong.

or

- we’d like to but we can’t determine objectively if the guy in ulan bator piggy-backed on james cameron’s work and made a product because is relies on tracking information or comparing patterns or whatever, which is not possible. Maybe he hired the same actors and sets and filmed it himself. We can track shoplifting of bread because we can track the physical loaf of bread but we can’t track information or ideas so we can never determine if he copied it or not.

or

- we don’t care a jot if the guy in ulan bator piggy-backed on james cameron’s work, or if we can determine it objectively or not, because it relies on tracking information or patterns and information and patterns simply cannot be stolen, as they are by definition not property, and property rights are all we care about, so we don’t care because caring about this would be like caring about water running downhill.

mpolzkill August 5, 2010 at 6:46 pm

Jerry,

I don’t have an argument, I’ve never been fully swayed by either camp (though the performance by the “IP” advocates has been so lousy that I’m definitely leaning the other way), I want to know how libertarians plan on enforcing these asserted rights. In a hypothetical free world I have ideas about what I’d do about shoplifting in my town, and I have ideas about what I’d do about bootleggers in my town. I have not a care in the world about either in Mongolia, you guys do? What are your ideas about that? (for the third time…of course just ignore it if you don’t want to sell your idea to me, lefties don’t run “right to living wage” stuff by me either.)

jerry August 6, 2010 at 2:07 am

mpolzkill

I’m not on either side either, I’m trying to understand the arguments. I don’t read persuasive ones from either side, I in fact think they’re all over the place, fundamentally obfusscated by the constant use of the word “property” when i do not in fact think “property” is or can be well-defined.

But I’m not spouting and teling people they’re wrong, I’m admitting my own thoughts are not straight either and so I’m trying to get clarification of where exactly to begin the attempt to straighten them. It seems very curious to me that the hostile aggressive posters against IP get all the air time and that people asking questions to clarify often get ignored.

mpolzkill August 6, 2010 at 5:12 am

Well I’m with you, Jerry. Of course “property” and “rights” are some nebulous things. No matter how many words are used in parsing the concepts they really remain gut feelings. It is possible to examine which gut feelings when heeded generally by a society make for the most healthy society. Many common ones are clearly pernicious. I think it used to be that most toddlers quickly developed the best ones. Most people seem to spend the rest of their lives willfully forgetting them. Saddest thing, even many tiny chidren are becoming quite rotten.

Peter Surda August 6, 2010 at 5:23 am

Jerry,

from my point of view, it is a mix of those. We can determine objectively (or, at least, I would not object if someone claimed) that:
- the copies are causally related to the original
- the copies, for certain purposes, are similar enough to be used instead of the original

Now, the problem is that from economic point of view, goods that fulfil such criteria are called externalities and substitutes, rather than property. That’s the first issue. The second issue is that IP theorists claim that these two criteria do not always lead to property, only sometimes, yet they do not explain how to distinguish between the two. The third issue is that causality extends to infinity and similarity is subjective, so if we accepted the conditions as sufficient, it would be impossible to implement. In summary, the pro-IP argument is stuck on two false dichotomies.

jerry August 6, 2010 at 7:06 pm

Peter

“from my point of view, it is a mix of those. ”

I don’t see how it can be a mix of those, this doesn’t make sense to me (although the hazy definitions means that reasonable people could differ on this).

Either information just cannot, axiomatically because it is not “property”, be tracked or constrained (case 3)
or
we’d like to be able to track it by whatever means necessary but there are no mechanisms to correctly determine when something was and wasn;t copied (case 2)
or
we can determine whether or not someone made a copy or not (almost always) but as we can only enforce this on a third party via a copyright situation, which requires a state, then it is illegitimate.

In my view, one of these must be the first obstacle.

Peter Surda August 7, 2010 at 8:48 am

I don’t see how it can be a mix of those, this doesn’t make sense to me…

I understand, so let me clarify. The concepts such as “information” and “copy” are not empirical phenomena, they are metaphors that we use for certain types of causality. Both concepts are too vague to use them in a precise declarations like you do. So, on a higher level, you are right, however because the terms you are using are vague, the argument fails on the low level. I think that you should concentrate to define “information” and “copy”.

jerry August 8, 2010 at 11:22 am

“…I think that you should concentrate to define “information” and “copy”…”

The definition of these words depends on the context, and it that context I am trying to establish. And by the way, the word “property” is used willy-nilly on these forums although there is no satisfactory definition for that either.

But I think your answer implies that it is the first case which is the main obstacle, meaning we don’t need to define these words. You are I think saying that you can “cause” someone to write a book in many ways and writing it first yourself is just one such way, and that there is no mechanism to determine in all the many many grey areas that someone “copied” something or not? Is this a fair stab at what you mean when you say these are just causality and externalities?

If so, then we can forget cases two and three. the fundamental problem is that when someone writes harry potter and desires that no’one reproduce it, when they sell it they stipulate in the contract that the person may not make any copies of it. But as this can’t apply to someone who finds the book in a field (who never entered any contract) without the existence of a state, then this is a non-starter meaning we must just let people copy as and when they feel like it. So it is the first item I listed that is the principal objection. Is this correct?

jerry August 8, 2010 at 11:42 am

hang on, I’m not entirely making sense here – if i say “may not make any copies of it”, then obviously I DO need to define copy. What does it mean to say i “copied” the harry potter book?

We don’t need to have abstract definitions for this – I can release the book in some electronic format prohibit the buyer of the book from specific actions – say, from printing it out or holding the file anywhere other than on a device in his own home that is not connected to the internet, say. He could write it out manually or inscribe it in tablets of stone then if he likes, and if that was a problem we could put that in the contract too. But the point it, the writer could restrict the buyer from certain actions as a condition of the sale.

The problem then remains basically the same – a person catching sight of it by accident is not bound by this and so this can only happen with a state and copyright yada yada….

Now, i can see problems with that myself already, but what would your problem with that be? Do you agree that my case number one is the primary obstacle?

mpolzkill August 8, 2010 at 11:48 am

Jerry, if an insane but great writer stipulates that you must read his new books whilst standing on one leg, do you humor him (and get some good stomach exercise) or forever forgo the pleasure of reading anymore of his books?

Peter Surda August 8, 2010 at 11:57 am

The definition of these words depends on the context, and it that context I am trying to establish.

Yes, that’s precisely the problem.

And by the way, the word “property” is used willy-nilly on these forums although there is no satisfactory definition for that either.

This is true, but at least some recognise that “property” needs to be defined before you start accusing your opponents of this and that. I admit I wasn’t able to come up with an 100% accurate definition, but I was able to narrow it down sufficiently to exclude non-rival goods.

You are I think saying that you can “cause” someone to write a book in many ways and writing it first yourself is just one such way, and that there is no mechanism to determine in all the many many grey areas that someone “copied” something or not?

That is a common misinterpretation of my argument. My argument does not depend on the issues involved in determining causality. Let’s say we both agree causality is present in a specific case. But here comes the issue: is causality a sufficient condition for extending the claim from the “source” to the “effect”? As long as one accepts the notion of externalities not being property, we must answer “no”. So before we can move further, we need to explain how to distinguish between the two.

Is this a fair stab at what you mean when you say these are just causality and externalities?

Almost. What I mean is that if one claims there is a difference between a copy and an externality+substitute (one is property and one is not), one needs to explain what this difference is. Only after this issue is resolved can one ask the questions you are asking.

jerry August 8, 2010 at 3:33 pm

I don’t see how what you are saying is relevant – I think I see what you mean and that it makes sense, but the point I’m making is that there are problems before this. That is, before we even get to determining whether someone “copied” something or not, we need to be determine whether (even if we agree that there is a foolrpoof way to distinguish copies from externalities) that there is some mechanism on a stateless free market to do anything about this copying at all.

And it seems to me that there isn’t.

For example, I accept your book – I sign a contract to say I won’t “copy” it (using the foolproof method we are assuming the existence of) and then I, to get around this contract, accidentally on purpose leave it somewhere where it is copied by my mate. Even though i have broken the contract and may be liable for damages or whatever, the point is the book contents are now in the hands of someone else who is not bound by any contract and so you’re screwed. And if it is more valuable to me to break the contract and be sued (because I’m splitting the profits with my mate who I let copy the book) than keep to the contract, then this can happen easily.

So, my point is this. If the scenario under discussion is one of a stateless society, it is totally irrelevant whether you can define what a copy is or not. Do you agree?

Peter Surda August 8, 2010 at 4:29 pm

I humbly disagree. In order to violate someone’s rights, you have to violate a contract, or trespass property. Other actions are not a violation of someone’s rights, therefore if you try to use violence to prevent them, you are initiating violence.

jerry August 8, 2010 at 4:39 pm

Sorry Peter i don’t understand your response, although i maybe am not being very clear.

What I’m saying is that you can make the anti-ip argument without ever needing to worry about whether or not you can determine what “copy” means. Even if we assume that there is a perfect foolproof mechanism to do this, a third party who gets a hold of the original book (or whatever) by some legal means is not in any way restrained in his use of the book unless we have a state which enforces copyright.

Peter Surda August 8, 2010 at 5:24 pm

Your argument is only valid if unauthorised copies aren’t trespass. However, IP proponents claim that it is.

jerry August 8, 2010 at 5:45 pm

“Your argument is only valid if unauthorised copies aren’t trespass. However, IP proponents claim that it is.”

I’m not making an argument for IP, and i’m not interested in what “Ip proponents” claim as I don’t agree with most of their arguments. What I am saying is what I said in the last post, ie.

What I’m saying is that you can make the anti-ip argument without ever needing to worry about whether or not you can determine what “copy” means. Even if we assume that there is a perfect foolproof mechanism to do this, a third party who gets a hold of the original book (or whatever) by some legal means is not in any way restrained in his use of the book unless we have a state which enforces copyright.

So, the main argument against IP must then be that it cannot exist on a free market (without an aggressor state) and so therefore must be illegitimate. It is totally irrelevant what “information” and “copy” mean – that even if we all agree on what they mean it doesn’t matter, as the third party guy given the dvd as a present doesn’t have any rstriction on his use of the dvd. What is it about this that you don’t agree with?

Stephan Kinsella August 5, 2010 at 7:28 pm

if homesteading a piece of real estate *really* grants you *all* usage rights in it (which he claims is the implication when he starts talking about IP), then this would mean that you have the right to scramble any EM wave passing through your property.

But wait — Stephan_Kinsella claims that homesteading does *not* grant you *this* usage right in that property (or at least, he’s “not sure”). Therefore, by his very own argument, the fact that you have homesteaded something does not imply that you have gained rights to usage of all apsects of it.

This comment is borne of confusion about the nature of property rights. By your reasoning if I can’t use my gun to shoot an innocent person, I don’t fully own the gun. Nonsense. The prohibition on me harming innocent people has nothing to do with the means I use–the point is, don’t use some means to cause the invasion of another’s body or property. It doesn’t matter whether I own the gun or not–I can’t use any gun to commit aggression. The non-aggression principle limits my actions. Not my property rights.

I also can’t launch a rocket and have it fall on your house. That’s not a limitation of my property rights. It’s a recognition of your property rights. Likewise, if it is the case that someone has homesteaded a right to a given EM broadcast band in a given area, then your using your property (or someone else’s) to broadcast on that band trespasses on his property rights, analogously to the cases above.

So the question remains about whether EM spectrum are homesteaded. As I’ve noted, I tend to think they can be. If this is right, then your concern evaporates as it does in the other examples above.

Silas Barta August 6, 2010 at 11:16 am

@Stephan_Kinsella:

This comment is borne of confusion about the nature of property rights. By your reasoning if I can’t use my gun to shoot an innocent person, I don’t fully own the gun. Nonsense. The prohibition on me harming innocent people has nothing to do with the means I use–the point is, don’t use some means to cause the invasion of another’s body or property. It doesn’t matter whether I own the gun or not–I can’t use any gun to commit aggression. The non-aggression principle limits my actions. Not my property rights.

I’m sorry, but that argument doesn’t work here, even as it might apply in other contexts that you’ve used it.

Remember, this isn’t a case of the property owner pushing his property onto someone else’s. It’s a case of him simply modifying his own property so that it doesn’t allow EM waves through it. Doesn’t he own the 3-dimensional space through which the EM wave passes? Didn’t he homestead that right along with the land when he first mixed his labor with it and established a superior claim?

Like I just said above, even accept your reasoning about the distinction between using your own property, and modifying someone else, the only way you could justify the transmitter’s right to stop modifying the EM properties of the landowner’s “own property” would be to claim — like I just accused you of — that homesteading doesn’t grant him the usage of *this specific aspect* of his property. So your claim, that homesteading grants you usage rights to the property (including modification of all things *on* it), evaporates.

So the question remains about whether EM spectrum are homesteaded. As I’ve noted, I tend to think they can be. If this is right, then your concern evaporates as it does in the other examples above.

Yes, you think that one kind of pattern formation right can be homesteaded, which gets you out of this dilemma. Now, see if you can maintain that position while also rejection my claim that you can homestead pattern formation rights with respect to the idea space in addition to the EM spectrum.

What’s that? You *can’t*? You’re not sure? You haven’t really thought about the parallels?

Well then, get to work.

Scott D August 8, 2010 at 1:01 pm

For the IP calculation argument, let me ask you this: in what contexts, and for what purposes, is Mises’s economic calculation argument (which he uses as a critique of socialism) relevant? Whatever answer you have in mind, that is the context and purpose I deem the IP calculation argument relevant for.

There is no need to deal with context, because your argument contains a false premise. Allow me to restate your argument:

P1. Efficient allocation of goods and services relies upon the price mechanism.
P2. Eliminating copyright also eliminates the price mechanism for IP.
C. Eliminating copyright prevents the efficient allocation of IP.

P2 is the problem here. You are assuming that the current system is the only possible system for pricing IP. To see why this is false, consider what might arise if copyright were more broadly applicable than it is currently. Imagine that Sally the accountant copyrights her ledgers and sells them, rather than selling what she does as a service. A company that wanted her services would pay a license fee per user of the ledger she created for them, and would require her permission (and a fee) to reprint her ledger.

If we assumed that ledgers as IP were the only way for accountants to get paid for their work, removing that system would seem to imply that accountants would work for free. We know that the reality is quite different, that there is no problem with calculation in the purchase of accounting services. In fact, I could see how the scheme I outlined would cause a lot of ineffiency, as the business tried to keep the number of users of the ledger as small as possible to keep the cost down.

Peter Surda August 8, 2010 at 2:42 pm

Actually, it’s even simpler than than. All it takes is to realise that one cannot use non-rival goods without using rival goods that are causally related to it. As long as all rival goods are covered by property rights, introducing rights in non-rival goods therefore only redistributes ownership of the rival goods. Even though metaphorically, new prices arise where there were none before, what actually happens is that old prices change.

Your examples are actually also quite nice examples of what I’m talking about.

Silas Barta August 8, 2010 at 4:59 pm

@Scott_D: The case of “limiting ledger use” is not an example of inefficiency at all: the more valuable Sally’s work is, the more people would pay to use one more and the more money Sally would make. If people were willing to sell unrestricted ledger rights, as most accountants do, she would be outcompeted from doing something like this, even under a legal system in which people could claim that IP. Competing accountants could waive the right, just as people waive property rights when they give something away.

By the way, could you explain to me how someone knows whether or not to make a movie? That is, whether the enjoyment consumers get out of it is worth lost opportunities to use the inputs for something else?

By the way, I’ve put up another post about IP that you all might be interested in.

Scott D August 8, 2010 at 9:58 pm

That hardly invalidates my point. If her services are more valuable, Sally simply charges more for them. There is a price mechanism at work in spite of the lack of any property protection in place for the work Sally does and anything lasting that she creates.

“By the way, could you explain to me how someone knows whether or not to make a movie?”

How does an artist know whether or not to paint? It is creative expression. People don’t go into script-writing because they already have a firm grasp of the price that their movie will fetch on the market. Some people write blockbusters, others write Carnosaur 4. I can’t see how your argument has any more merit than an environmentalist waxing poetic about the need to marshal the apparatus of the state to preserve some bit of wilderness.

Stephan Kinsella July 30, 2010 at 10:53 am

I agree, Robert. It’s great, too. Clear thinking in this area removes lots of roadblocks, and other things fall into place.

Silas Barta August 4, 2010 at 3:22 pm

Then do so.

Chet July 29, 2010 at 7:36 am

An idea remains a secret to the individual till he decides to share it. Praxeology tells us it is HIS, regardless of whether one thinks his idea is IP or not. Should he have any rights then regarding the terms of his individual decision to share it? If you say he does not, then it would only seem a matter of time till his more tangible representation, his body, becomes an instrument of ideas for the benefit of the collective. (The State IS an apparatus of force and coercion – sometimes on those who would blatantly disregard the rights of individuals.)
This is probably why Rothbard and Mises didn’t write much on the subject – for them the issue was settled – they were pro-IP.

Curt Howland July 29, 2010 at 8:37 am

Chet,

“Praxeology tells us it is HIS, regardless of whether one thinks his idea is IP or not.”

Indeed, I could not agree more.

“Should he have any rights then regarding the terms of his individual decision to share it?”

I must ask, what kind of structure can you imagine that would somehow take that decision away? The creator has an absolute monopoly upon how, when, where, etc, they release their creation. I can’t see how that will ever change.

Darcy July 29, 2010 at 6:03 pm

I must ask, what kind of structure can you imagine that would somehow take that decision away? The creator has an absolute monopoly upon how, when, where, etc, they release their creation.

And if they release it only with restrictions on copyrights, then they have the right to destroy all unauthorized copies.

Argument settled.

Peter July 29, 2010 at 9:06 pm

blah blah non-sequitur blah

I win!

Curt Howland July 30, 2010 at 7:58 am

Darcy,

“And if they release it only with restrictions on copyrights, then they have the right to destroy all unauthorized copies.”

Only those possessed by parties to the contract, if that is what is spelled out in the contract.

“Argument settled.”

I’m glad you finally agree with me on everything.

mpolzkill July 30, 2010 at 8:07 am

I’m still not sure about Kinsella’s “Death Throes”, but I don’t know, it sure is ugly, ain’t it?

Curt Howland July 30, 2010 at 9:19 am

“it sure is ugly, ain’t it?”

I’m impressed. Really.

L. Neil Smith, an excellent writer and long-time (decades!) advocate of liberty, is putting out a new book soon, his version of “For A New Liberty” and “The Market For Liberty”, but with a focus on action rather than just philosophy.

He’s stated that in it he’s got a section on I.P., and due to recent events it’s clear that he’s actually taking a Randian pro-I.P. stand.

I’m looking forward to it to see if he has a logical and principled support of I.P.

At the least, I know from experience that everything else in the book will be both interesting and entertaining.

mpolzkill July 30, 2010 at 9:26 am

I’m excited too. Maybe we can get a very public, bitter and final divorce from the Randians. Bala sure would be lonely in his own sect though, makes me sad, truly.

Josh Fulton July 29, 2010 at 7:42 am

*Yawn*

There is no difference between “owning” physical property and “owning” ideas. What is ownership? It’s basically society agreeing that somebody has the right to use something for his or her benefit. There is no “ownership” outside of the human mind. There is only existence. This is why the idea that only physical goods are scarce, but not intellectual ones does not work. The scarce good is the right to trade or control a good not in the actual good itself. If we do not have a system of property rights, we wind up with a tragedy of the commons situation. This applies to intellectual property as well.

The real solution to this problem is compulsory licensing, which solves the problem of giving people property rights while still prohibiting the monopoly of ideas that has become so dangerous. Here’s my paper on it:

http://joshfulton.blogspot.com/2010/06/ending-monopoly-of-ideas-compulsory.html

Also,

“They demand to know how artists and innovators are supposed to be paid absent IP. If you point out that it’s the job of the entrepreneur to figure out how to make profit in the market given the costs of exclusion and externalities.”

You’re kidding me, right? So, if a person can’t try to reach a wide audience without having his or her work getting ripped off, it’s somehow his or her fault? As soon as you release an idea or invention into the world, you’re right it’s, so to speak, infinitely reproducible. The odds are stacked heavily, heavily against you. It is the role of the government is to support property rights, including intellectual property rights.

It’s funny but these no-IP arguments always seem to be supported who do not have to rely exclusively on their creative work to make a living. Just read Piracy by Adrian Johns. You’ll see plenty of examples of the dangers of no intellectual property rights which are so easily glossed over by “anti-IP” advocates.

Curt Howland July 29, 2010 at 8:19 am

Josh,

“You’re kidding me, right?”

No, actually, that is the function the entrepreneur fills: finding ways to profit.

“So, if a person can’t try to reach a wide audience without having his or her work getting ripped off, it’s somehow his or her fault?”

Define “ripped off”.

If you mean people sharing this person’s work and thereby giving them a wide audience, then I don’t see how that could be failing to reach a wide audience.

“who do not have to rely exclusively on their creative work to make a living.”

You’re ignoring two very important facts:

1) The entrepreneur function. There will always be ways to profit from creating material that is in demand. The fact that it is shared shows that it is in demand, so there is a profit opportunity. Good ideas that generate profits will be copied by other content creators.

2) The artificial government monopoly grants do what all such intervention into markets do, they cause some people to “win” and others to “lose” based not upon the merits of their work but because of the way those monopolies are utilized. So yes, some people who make money through those monopoly grants will not without them. At the same time, some that do not make money now because of the monopoly grants will make money without them.

The fact is that if someone cannot figure out how to make money doing what they want to do, they must fall back upon what they CAN make money doing. Just because that same rule applies to everyone, even people YOU like, doesn’t make it any less valid.

Darcy July 29, 2010 at 8:22 am

Is “using violence to defend against counterfeiters and thieves” a legitimate way for entrepreneurs to make their profits then?

I never get a reply on that line from IP opponents.

Michael McLees July 29, 2010 at 9:38 am

Funny, neither do I. Check out this exchange I had with mpolzkill about 4/5th down regarding this very topic.

http://blog.mises.org/13327/l-neith-smith-on-ip/#comments

mpolzkill July 29, 2010 at 12:47 pm

Only problem is you never asked about counterfeiters or actual thieves. You asked about known pirates (piraters?) and those who you believe steal your ability to make money in the way you were told you can.

Michael McLees July 29, 2010 at 1:51 pm

Didn’t stop you from failing to answer the question. And I don’t see a difference between a counterfeiter and a pirate. Both sell unauthorized copies of legitimate products.

mpolzkill July 29, 2010 at 2:16 pm

“Didn’t stop you from failing to answer the question”

You just gave me an instant headache. Anyway, I did answer the question, I said “no” according to my definition.

This isn’t my field at all, “IP”, I have never made up my mind on it because I barely care. I’m actually sympathetic to you boneheads, or I would be if you stopped calling me a Commie (one step above child molester [props: Woodsy Allen]). I think that there is a lot of natural inclination towards your view and most in a free and uncorrupted society would respect your (what you mistakenly call) “rights” (the word is “feelings”). Anyway, someone might correct me, but my definition of “counterfeit” (in short) is when an item one sells has been fraudulently claimed to be authentic or genuine. I believe that fraud is a crime. Assault, theft and fraud, in all their varieties: the only crimes. Many, many things are pernicious or possibly pernicious, like making inferior copies of DVDs for attempted profit, blackmail, drugs, prostitution and monster truck rallies, but these are not crimes.

Michael McLees July 29, 2010 at 2:23 pm

I’m not going to get into this deeply with you. But whether something is counterfeit or pirate makes little difference in the debate. The question that still remains is, if someone is selling unauthorized copies of my creation (pirated movies, copies of books, etc…) what may I do to stop them?

According to the other thread, you want to answer, “Anything but assault.” You then failed to define assault, which leads me to believe you will define assault as, “Any physical act which prevents the sale of said unauthorized goods.” When I say your logic is breaking down, you avoid the topic altogether. It’s right there in black and white in the other thread. Either define assault or give me a good alternative.

mpolzkill July 29, 2010 at 2:31 pm

A violent physical attack that is not in defense of your person or actual property.

I didn’t avoid anything, unless you consider my refusing to think up a means of living for you “avoiding”.

Yes, your loaded terminology is never going to go far toward justifying the State’s “IP” enforcement.

Michael McLees July 29, 2010 at 3:00 pm

OK. Now that “assault” is defined, is there anything physical that I may do that is not encompassed by your understanding of violence? I already asked if I could take the unauthorized copies of my work out of the marketplace by fire, but you balked and called that “assault”. How about if I had a magic magnet gun that erased and made useless the media on which my works have been copied? Let me guess… assault?

What if I erect a 100 foot electric fence around the pirate/counterfeiter, which would keep people out of his ill-stocked store? I’ll take a crack at that… assault?

What if I contract with the mob so that they can create a new contract with their henchmen to take all the pirated works from your store? I’m not in privity with the henchmen, so that’s OK, right? (Extending out the logic of, “It’s OK for pirates to do what they’re doing because they have no privity of contact with the authors…” argument…) Wait, hold on… is it… could it be… assault?

The reality is, anything I do which would prevent the sale is going to be called assault by you, whether or not is a “violent” or against “actual property”, which is why your logic is flawed. Your claim that I have a “right” to prevent a sale is negated by the pirate’s “right” to sell the goods. It’s also really annoying that when I bring this up to you, you hide in your corner, saying “It’s not my job to tell you how to make a living…” as though that solves any of the problems you’ve heaped on your position.

You might as well cut to the chase and go ahead and say it. I have no right to prevent the pirate or counterfeiter from selling products which are copies of my product. At least then you’d be consistent; but your embarrassment of being caught in the company of counterfeiters is ruining your otherwise consistent (if morally bankrupt) thinking.

mpolzkill July 29, 2010 at 3:15 pm

All you ever prove is your lack of imagination (naturally, you’re a statist). I don’t think you’ve exhausted all the possibilities on how to turn some idiot trying to sell booleg copies of your movie (or music or whatever) to your advantage.

And you can’t remember or don’t want to remember that the burden is entirely on you. You are the one propagandizing to have my money stolen by State goons so that some may make a lving in this arbitrary way. *You* need to prove your case. I know that’s easy to do with statists (and you’ll get to forever pay for all of their “rights”, too), but we’re libertarians, and you guys always fail, IMHO.

Michael McLees July 29, 2010 at 3:27 pm

Again, you’re doing nothing to solve the problem with the internal logic of your thinking. And you’re again doing exactly what I said you’d do, “It’s up to Metallica to figure out how to counteract the millions of people downloading their music for free on Napster. They could probably give music lessons or something…” which is always the standard line.

Curt Howland July 29, 2010 at 3:41 pm

Michael,

“And you’re again doing exactly what I said you’d do”

If someone has such massive sharing of their materials going on, then by definition there is great demand for their work.

Why is it so atrocious to say that they should figure out a way to capitalize on that popularity, rather than try to crush the sharing itself?

Maybe the reason you keep hearing the same argument, is that it is the argument.

Do you agree that obscurity is the real killer of creative artists?

mpolzkill July 29, 2010 at 3:57 pm

Do you even play music, McClees? These recordings aren’t even really music. Canned music is to live music about what plastic fruit is to an apple (I wanted to use a dirty metaphor, but people get mad at me). Consider these canned artificial performances as advertisements for a musician’s persona and related merchandise and real performances. In other professions they pay hard money to have done what these file sharers do on their own.

Some people are unimaginative graspers though, you sound like a big Metallica fan.

Michael McLees July 29, 2010 at 4:24 pm

I don’t agree. It all depends on the business model they’ve chosen. For example, there is an obscure artist named Matthew Barney who made a series of films called The Cremaster Cycle. The DVD’s sell for absurd prices because they are exceedingly rare and come in lavish packaging.

http://cremasterfanatic.blogspot.com/2007/10/cremaster-2-on-sale-at-sothebys-new.html

Is this a good business model? That’s not the point. But for Matthew Barney (and Co.), the works would not exist, so he is the one that gets to determine how they are distributed. If he sets the price at $1,000,000 per DVD, and you don’t have the cash… too bad. Human action.

Going to my hypo. Suppose Mr. Barney opens a store selling the DVD. I have pirate/counterfeit copies, so I open up next to him, selling the DVD’s at $10. The typical anti-IPer will say, “See, now it’s more affordable for everyone to see the work and everyone is happy.” They of course neglect to mention Barney, the person but for whom the art would not exist. So when Barney complains, there’s mpolzkill waiting in the gutter… “It’s not up to me to show you how to profit on your creations. The burden is on you!!! Besides why are you complaining anyway? Don’t you know that you don’t own the ideas and patterns you create once you release them on the market?”

One wonders where we’d be if the artists simply said, “Screw you then, moocher. I’m not creating anything anymore that is copyable. I’m only showing the film in theaters and you’ll be subject to x-rays and body scanners to make sure you have no recording devices. Problem?”

Michael McLees July 29, 2010 at 4:27 pm

“These recordings aren’t even really music…”

Solve your internal logic problems and I’ll get back to you.

mpolzkill July 29, 2010 at 5:13 pm

You’ll get back to me? You’re the salesman. I do have a suggestion for you on how to make a living after all: not in sales.

mpolzkill July 29, 2010 at 2:26 pm

That reminds me, and my advance apologies to Ralph….

THE greatest Simpsons line on “IP”:

After realizing that he’s been a victim of a Gabbo “prank call”, Krusty the Clown:

“Hey! If this is anyone but Steve Allen, you’re stealing my bit!”

mpolzkill July 29, 2010 at 3:38 pm

I think I’ve told you at least 5 times that I’m not going to solve your problems. I don’t even like you.

You are demonstrating why I almost never make dopey predictions on exactly what a free world would look like. Try explaining to a different class of rent seekers than you exactly how a free market in medicine would look.

(I would, btw, suggest to Metallica to take some music lessons before giving any)

Curt Howland July 29, 2010 at 3:43 pm

What’s funny is that the demand is to prove how a free world will be perfect, and then the fact that it cannot ever be “perfect” is used to deny freedom.

mpolzkill July 29, 2010 at 4:22 pm

I guess it’s funny.

I’ve enjoyed a lot of your posts lately, fellow Kinsella parrot. Take care.

Curt Howland July 29, 2010 at 4:34 pm

You are too kind.

I admit to enjoying your postings and the reparte’ as well.

Like you, I am also wearing down in trying to nail the statist jello to the wall.

Russ July 29, 2010 at 5:17 pm

You use the words “rent seekers” as if rent seeking is a bad thing?!?!? If a person owns property, what is wrong with seeking rent from it?

mpolzkill July 29, 2010 at 5:39 pm

Rent seeking with the government: the manipulation or usage of bogus laws to secure profits, like George Lucas did. I was also refering to “Healthcare” gamers. You see the docs and dentists show up here all the time, remember? Are you just being full-time facetious now? Oh yeah, keeping people honest. Impressive.

- – - – - – - -

“Canned music is to…apple”

That was inelegant and dimwitted. Well, the dimwitted and dull McClees was boring me towards a stupor. I should have maybe said, “canned music is like canned fruit.”

Silas Barta July 29, 2010 at 4:07 pm

@Michael_McLees: We’ve picked up another reading of an IP advocate evading the question — very persistently — on this very discussion. See the exchange below with Curt_Howland.

Good to have yet another poster who doesn’t mindlessly parrot Stephan_Kinsella’s lines.

mpolzkill July 29, 2010 at 4:10 pm

Silas, when did you stop beating your wife?

Curt Howland July 29, 2010 at 4:14 pm

Silas,

What question am I evading? I answered you very carefully and completely.

It may be you just don’t like the answer.

Silas Barta July 29, 2010 at 4:29 pm

I asked you what methods the protection agency you have in mind would use against trespassers.

It’s a simple question, and you didn’t answer it.

You didn’t answer it, because the answer would refute the argument you were trying to use, that “only violence should be used against violence”, and your answer would involve the PA forcibly evicting the trespassers.

Not answering was a pretty good decision, all things considered, but it still reveals you to have a baseless position. Give it another go, and see if you can argue something worthwhile.

Curt Howland July 29, 2010 at 4:32 pm

Silas,

“I asked you what methods the protection agency you have in mind would use against trespassers.”

The same ones used at present by private security. Against a peaceful trespass, peaceful reaction to inform of the trespass.

Against violent action, such as forced entry, violent response such as physical restraint.

How does this in any way relate to your support of government monopoly grants?

Silas Barta July 29, 2010 at 4:48 pm

First of all, you *never* gave that answer before, so you need to apologize for delaying this long.

Second of all, that answer is obviously not right, because it implies that your only reaction to trespassers would be to tell them they’re trespassing, and that you would never forcibly remove them and that they could stay there forever.

“Whatever private security would do” is a remarkably vague answer. Different security forces have different thresholds for what methods they could use. But either way, the point is you would eventually use violence against “non-violent” trespassing, invalidating the principle you were using the argue the whole time! (Do you remember that discussion, or were you hoping to draw this out long enough that no one would remember what shoddy position you were taking?)

Curt Howland July 29, 2010 at 5:16 pm

Silas,

You didn’t ask that question, so of course I couldn’t answer it.

And the fact is that no one can say exactly what the future will bring, so demanding to know absolutely what the future WILL have is…insane.

“Second of all, that answer is obviously not right”

From this I can make no conclusion but that you have some answer you want, and if you don’t get it you’re not satisfied.

If so, then asking the question in the first place was also insane.

“(Do you remember that discussion, or were you hoping to draw this out long enough that no one would remember what shoddy position you were taking?)”

No, since I had no discussion where I hoped such a thing. You’re projecting.

Curt Howland July 29, 2010 at 12:41 pm

Darcy,

“Is “using violence to defend against counterfeiters and thieves” a legitimate way for entrepreneurs to make their profits then?”

Violence in response to a non-violent act is not polite. What I think you meant leads me to wonder if you’ve ever heard about “Protection Agencies”, an entrepreneurial response to defending people against trespass.

“I never get a reply on that line from IP opponents.”

Wow. I don’t usually get to be the first at anything.

Silas Barta July 29, 2010 at 3:44 pm

Wow, your protection agencies don’t use violence? Do they have those Joker guns with the “bang” flag?

Curt Howland July 29, 2010 at 3:45 pm

I think you have enough information now to go look up the subject yourself.

Silas Barta July 29, 2010 at 3:50 pm

No, I don’t.

Also, do your protection agencies do anything that you don’t believe they have the right to do to someone a client believes has infringed his “copyrights”?

If so, what actual difference do you see between IP and other property, since you believe the same things are justified for the enforcement of each?

Curt Howland July 29, 2010 at 3:55 pm

Silas,

I’m sorry you are so woefully ignorant of how liberty works.

Go right ahead and assert “copyright” protection. Demonstrate harm, and collect restitution.

…if you can.

Without the artificial government monopoly grants, it is going to be very, very hard to demonstrate that harm.

But who knows? Maybe it will be possible. To say it is impossible is to place a limitation on human imagination, which is exactly what the monopolists and prohibitionists who want Big Mommy Government to Protect Them from teh Evil File Sharers are doing.

Unlike you, I believe people are smart enough to live without Big Mommy.

Silas Barta July 29, 2010 at 3:56 pm

You still haven’t explained what protection agencies do for enforcement, and I don’t expect you ever will. You haven’t answered a basic question about your position. Be more specific, or concede the point.

Peter July 29, 2010 at 9:28 pm

Go right ahead and assert “copyright” protection. Demonstrate harm, and collect restitution.

…if you can.

You can have the shadow cast by the money you want, as in the Egyptian Pharaoh’s excellent decision I posted about a couple of days ago :)

Saerden July 30, 2010 at 7:35 am

Using violence against petty thieves is very impolite and may get you shunned / blacklisted. No need for philosophical arguments to persuade you when you are freezing and starving in the midst of civilisation. Shooting unarmed robbers (think Ocean 11) is at least debatable. Home Invadors are open season every day of the year.

Thieves have absolutely nothing to do with this debate though. Mentioning thieves or real pirates (explicitly, not just via “piracy”) is a obvious dishonest debate tactic. If you are undercover for the anti-IP side, please drop it, its very impolite and not that convincing. I think libertarians want to win using convincing arguments, not showing that the opposition is beyond stupid.

There is a simple way to defend yourself against counterfeiters. Proove to the victims / customers that the wares they are buying are fake. If this doesnt stop counterfeiting, its not really counterfeiting…

Curt Howland July 29, 2010 at 8:22 am

Josh,

“If we do not have a system of property rights, we wind up with a tragedy of the commons situation. This applies to intellectual property as well.”

False. The “tragedy of the commons” is a problem of scarcity. Information is not scarce.

Darcy July 29, 2010 at 8:23 am

If information were not scarce, there would not be pirate markets for it.

Curt Howland July 29, 2010 at 8:29 am

Darcy,

“If information were not scarce, there would not be pirate markets for it.”

There is no piracy of information that is not artificially restricted by copyright, because information itself is not scarce.

Didn’t you notice that?

All you’re doing is pointing out the same thing that has been said many, many times before: the government monopoly grants create artificial scarcity.

Darcy July 29, 2010 at 6:06 pm

There is no pirate download site for air or patented ideas, because those are legitimately non-scarce goods that anyone may take at will. However, you need a pirate to commit the act of uploading data to you in order to obtain information, which by action demonstrates that this information is scarce. It must be reproduced by someone else in order for you to obtain it.

Peter Surda July 29, 2010 at 6:14 pm

which by action demonstrates that this information is scarce

Duh, the action only demonstrates that copies are scarce (well, I dislike the word scarce, I prefer rival). You are conflating non-rival goods with rival goods that are causally related to them, a very common fallacy of IP proponents.

Darcy July 29, 2010 at 6:17 pm

The copies are the information. They are produced from an original copy that is the property of the creator, and all derivatives of his property are also his property unless he explicitly sold the rights of it, which he explicitly did not when he claims a copyright. By exploiting his property without his consent, you are stealing, much as you are stealing if you have a backyard barbecue on someone’s property while he is out of town.

Peter Surda July 30, 2010 at 1:43 am

The copies are the information.

Only metaphorically.

They are produced from an original copy

So, they are causally related.

that is the property of the creator, and all derivatives of his property are also his property

Theory of Claims on Causality.

Yawn.

Peter Surda July 29, 2010 at 8:29 am

There is no difference between “owning” physical property and “owning” ideas.

What is ownership? It’s basically society agreeing that somebody has the right to use something for his or her benefit.

Ah, but there is a problem already here. When you say “use”, you actually mean “benefit causally related to”. You cannot “use” ideas, or anything non-rival for that matter. You can only use rival goods that are causally related to them. So, your argument boils down to the Theory of Claims on Causality: if you have some sort of claim on A, and B is causally related to A, it also means that you have some sort of claim on B. However, since causality extends to infinity, you need additional criteria. Which? IP proponents are silent on this one.

Russ July 29, 2010 at 8:38 am

“You cannot “use” ideas…”

I will borrow some jargon from the Randians here; with respect to IP, you are concrete-bound, and incapable of thinking on a higher conceptual level.

Peter Surda July 29, 2010 at 9:00 am

Well then, your fluid-boundedness, how do you use ideas without using rival goods that are causally related to them? Have you been ignoring all that stuff I wrote about falsificationism? Is it my fault that my opponents can’t come up with answers?

Josh Fulton July 29, 2010 at 8:40 am

“B is causally related to A, it also means that you have some sort of claim on B. However, since causality extends to infinity, you need additional criteria. ”

Ah, I think you’re right, and I think I understand your argument.

If someone’s original work does contribute to a derivative work, I think the original creator should be compensated for their contribution to the derivative work. This can either be worked out by the two (or more) parties or by a court if the parties can’t agree.

Curt Howland July 29, 2010 at 8:43 am

“I think the original creator should be compensated for their contribution to the derivative work.”

To what limit?

Does every travel novel author have to compensate the estate of Homer?

Dave July 29, 2010 at 9:17 am

The moment Mr. Kinsella lumped Ayn Rand in with the libertarians, he lost his credibility. He obviously never read what she wrote about them, or consulted the Ayn Rand Lexicon to find out why she completely REJECTED libertarianism. He is basing this “alliance” on the fact that libertarians grabbed a few of her concepts (such as liberty and freedom), out of context and without knowledge of the more fundamental concepts behind them, and ran.
They use “liberty” as an axiom. Ayn Rand showed that existence, consciousness, and identity are the fundamental axioms. Argue about specific topics like intellectual property all you want, but don’t misrepresent anyone or anything in the process!

mpolzkill July 29, 2010 at 9:30 am

And please Dave, do your utmost to carry this message to the 99% or so of the world who have also lumped us together. This kind of stuff is so detrimental and just plain embarrassing:

http://www.youtube.com/watch?v=JoAWCwm-UXw

“*her* concepts” That cracked me up.

tralphkays July 29, 2010 at 1:42 pm

absolutely great post mpolzkill, that guy in the link chills my blood.

mpolzkill July 29, 2010 at 1:56 pm

Thanks, Ralph, I think, Well, “damned straight” if you’re serious, or “brrrrrrr” if you’re being sarcastic.

That’s Ayn’s heir, I’m sure you know, and the apple didn’t fall far from the tree. So bloodthirsty and unhinged I think he freaked O’Reilly out.

Peter July 29, 2010 at 9:33 pm

And please Dave, do your utmost to carry this message to the 99% or so of the world who have also lumped us together

Including the majority of Objectivists.

Michael A. Clem July 29, 2010 at 1:52 pm

Gimme a break, already. Rand completely embraced the principle of non-aggression (well, ALMOST completely) and introduced a whole heck of a lot of people to the idea, including me. That makes her a libertarian. That Objectivism is a larger, more comprehensive philosophy that covers things other than political philosophy doesn’t change that. That libertarians can disagree about the fundamental basis for libertarianism also does not change that. Rand got to define “objectivism”, but people other than her have defined libertarianism.

mpolzkill July 29, 2010 at 1:59 pm

Yeah, “almost”, it seems her non-aggression philosophy did not extend to the mud races. Ralph, have you seen her on Donohue charming the crowd?

tralphkays July 29, 2010 at 2:08 pm

no, I haven’t seen her on Donohue, would love to though. Didn’t Rothbard write a funny little play about Ayn Rand? I actually am a fan of her books, but have always been appalled by the ‘religion’ she built around herself. All it took was an introductery philosophy course in college to show me that all of ‘her concepts’ had been taken from others.

Michael McLees July 29, 2010 at 2:26 pm

YouTube is your friend. Search “Rand Donohue”.

mpolzkill July 29, 2010 at 2:56 pm

“introductory philosophy…’her concepts’…taken from others.”

A second “damned straight.” This is why I call her Nietzsche’s second most famous and destructive half-wit child.

Yeah, you could follow the similarly charming McLees’ advice to find the context of this:

http://www.youtube.com/watch?v=2uHSv1asFvU

Rothbard’s spoof is on this site, and this one filled me with whimsy (it was this or those radishes [R.I.P. Groucho]):

http://www.emba.uvm.edu/~wilson/aynrand.pdf

tralphkays July 29, 2010 at 8:53 pm

Thanks

Crosbie Fitch July 29, 2010 at 9:40 am

The US Constitution’s progress clause does not grant (or empower Congress to grant) monopolies. It only empowers Congress to secure the individual’s natural right to exclude others from their intellectual works that THEY CAN NATURALLY EXCLUDE OTHERS FROM.

Thus the poem on a piece of paper in my drawer is my intellectual property that I have a natural ability and right to exclude you from. However, if I sell you a copy, I have no natural ability or right to exclude you from your own possession.

The monopolies of copyright and patent were granted because they were extremely lucrative to those printers and manufacturers who hoped to exploit them.

If material property is libertarian then so is intellectual property. However, unnatural monopolies should be granted to neither, since by necessity such monopolies must annul the liberty and right to copy/reproduce in the many in order to legally reserve it as the privilege of the few – consequently making the privileges instruments of injustice.

There is therefore nothing unnatural or unconstitutional about intellectual property.

Only the monopolies of copyright and patent should be abolished.

I would have no-one entitled to steal my intellectual work, and so must regard as flawed the argument that would cease the recognition of it as my intellectual property. If you want my writing, my intellectual property, why not offer an equitable amount of money in exchange? What you do with it once you’ve purchased it is up to you. I need no monopoly to prevent your manufacture of copies, but I do have a natural right to exclude you from my property until I’ve sold it to you.

Silas Barta July 29, 2010 at 3:45 pm

Stay out of the discussion until you have something insightful to add, please. Making exactly the same point as several others did on the very same thread is not insightful.

Thanks.

Beefcake the Mighty July 29, 2010 at 3:57 pm

“Stay out of the discussion until you have something insightful to add”

You should heed your own advice.

Michael McLees July 29, 2010 at 4:42 pm

Good one.

Crosbie Fitch July 29, 2010 at 5:10 pm

Well, if you’re ever short of a pro-IP libertarian willing to argue the validity of IP I’ll be glad to accept your invitation to return to the discussion.

Beefcake the Mighty July 29, 2010 at 12:59 pm

Hey Silas, here’s some pattern instantiation for you:

…………../´¯/)
…………./¯..//
…………/….//
……/´¯/’…’/´¯¯’)¸
…/’/…/…./……./¨¯\
.(‘(…´…´…. ¯~/’…’)
..\……………..’……/
…’\……………. _.·´
…..\……………(
……\……………

Silas Barta July 29, 2010 at 1:24 pm

Clean-up on aisle 9. Moderators, we have a clean-up on aisle 9.

Russ July 29, 2010 at 1:31 pm

(Jedi mind-trick mode on)

There is no finger here. There is only a bunch of punctuation marks. Any finger that you imagine that you see is only there because of your subjective evaluation. This isn’t the finger you’re looking for. Move along….

(Jedi mind-trick mode off)

tralphkays July 29, 2010 at 1:46 pm

ah libertarian morse code, examine it carefully Silas, line by line, there is undoubtedly a crucial message contained within.

Michael A. Clem July 29, 2010 at 1:47 pm

Does it take a set of values to determine a pattern in this ascii text? No–the human mind looks for recognizable patterns and designs in the data it sees. Does it take a set of values to determine the meaning of this pattern? Yes, I’d say it does, not to mention a cultural background to determine the intent of the pattern.

Russ July 29, 2010 at 1:51 pm

God, we’re such geeks.

Michael A. Clem July 29, 2010 at 1:58 pm

Yowza! :-)

Curt Howland July 30, 2010 at 8:14 am

I take my geek-ness very seriously.

Got into a discussion of Linux with a lady at the tire store yesterday.

Terry Hulsey July 29, 2010 at 8:35 pm

Mr Kinsella:
Before you carry Boldrin and Levine off on your shoulders to celebrate the death of IP, a few questions:
Your objection to state control of IP>>
Would there be a defense of IP if its guarantor were an agency other than the state?
Your position that IP is a non-rivalrous good>>
Are you not intensely proud of the anti-IP good that you have promoted and attached to your name; are not scholars keenly jealous of their reputations?
Your position that IP is an easily replicated, hence less valuable, good>>
Are counterfeiters to be celebrated for making, say, a copy of Avatar or a copy of J.K. Rowling’s latest novel, as plentiful as the air around us?
Your position that the key definition of property is to manage conflicts>>
Is not the key definition of property the power of disposal? And as such, if I choose to speculate on the future value of my IP by withholding it from the public, isn’t that very much my business?

Also, there were some excellent points made by pro-IP-libertarian above (July 28, 2010 at 1:12 pm). Could you reply to those?

And 14 fallacies of the anti-IP group are posted at http://mises.org/Community/forums/t/13692.aspx — Could you reply?

I realize that you have a life outside this forum, but think that these last two might be worthy of your time.

Thanks.

Stephan Kinsella July 30, 2010 at 1:18 am

Pro-IP-libertarian’s remarks were so terrible they were not worth replying to, but I did, per your request. I dont know if I have time to answer the other linked forum. I’ll take a look.

Stephan Kinsella July 30, 2010 at 2:25 am

I replied partly to the Mises community post–which was even worse. Horrible. Not worth even reading. These all just verify my contention that there are no good arguments for IP. Is this the best your side has?

mpolzkill July 30, 2010 at 2:40 am

First paragraph:

“It has been a recent fashion by some libertarians to denounce…intellectual communists.”

End of sales pitch for this listener.

Terry Hulsey July 30, 2010 at 12:25 pm

Stephan,
Thanks. IP is not particularly “my side” — and especially the current regime of state-as-IP-kingmaker is indefensible in my view. However, the anti-IP argument will definitely have to admit that some creators will be injured by its policy.

pro-IP-libertarian cited “since you can duplicate it, it isn’t scarce” (you replied “This is so incoherent…”) and referred to a “first mover advantage” (you replied “This is just speculation”) and finally said that “independent entrepeneurs would be quickly driven out of business” (you replied “Ridiculous and mere assertions.”).

What he means might best be illustrated by a specific case. Several years ago perfect copies for less than $3 of the DVD “Lion King” appeared on the streets in China, before its release in the US. Would you be in favor of a monument being raised to this anti-IP hero? Or perhaps Internet opprobrium, while he laughs in his villa? His case is a concrete example of the “first mover advantage”: he certainly made money on gearing up production ahead of Disney; and while he certainly didn’t put Disney out of business, he did deny them a huge amount of money that would have been very significant for an independent entrepreneur of such DVDs.

Another example. Consider the case of Philo Farnsworth, the creator of television. I suppose that by delivering his rear on a plate to RCA even faster than was the case, anti-IP would have saved him legal bills. Once again, there is no defense for US IP in his case, but what would anti-IP have done for him?

BTW, I didn’t see your reply at http://mises.org/Community/forums/t/13692.aspx but likely I am misunderstanding.

Stephan Kinsella July 30, 2010 at 3:10 pm

it’s http://mises.org/Community/forums/p/13692/294963.aspx#294963

you have to go to the last page of comments. pages, etc. basic stuff.

Michael McLees July 30, 2010 at 5:04 pm

I’m Pro-IP and that was painful.

Terry Hulsey July 31, 2010 at 4:14 pm

Stephan,
You avoid answering the specific cases of the “Lion King” DVD and Philo Farnsworth, cases where the creator of an idea suffered injury. Therefore I must make inferences from your reply to the “14 anti-IP fallacies” (at http://mises.org/Community/forums/t/13692.aspx?PageIndex=7 if anybody wants to go directly there). On that page you say:

“Copying it, emulating it, using it, learning things based on it–does NOT TAKE THE IDEA FROM YOU. [...T]his kind of ‘taking’ is justified.”

This statement seems pretty clear to me that you agree that intellectual creators WILL suffer injury. It should be pointed out that Sheldon Richman, also an ardent defender of the Boldrin/Levine anti-IP position, admits that these injuries will occur (see http://fee.org/articles/tgif/intellectual-property/).

But to be absolutely sure of your meaning, I would like to hear, in your reply to the specific examples of the “Lion King” DVD and Philo Farnsworth, a clear confirmation of the following:
* Agreed, intellectual creators WILL suffer injury under an anti-IP policy.
* Agreed, there is no remedy in supposing that some PRO-IP policy can be devised by a non-state guarantor of IP, since the real issue is in the non-existence of IP, not in how this fictitious thing might be guaranteed.

Thanks.

Stephan Kinsella August 1, 2010 at 1:18 am

How would I know if “intellectual creators WILL suffer injury under an anti-IP policy.”

Do you mean all of them? No way.

Anyway, what do you mean, “suffer an injury”? The only kind of “injury” we care about *as libertarians* is aggression: invasion of the borders of your property. That is, a rights violation. So, no: they will not suffer this kind of injury.

As for other “injuries,” depends what you mean. If you mean they may face more competition now, and might lose sales to a competitor in some cases–sure, but this kind of “injury” is permissible, just as Burger King is permitted to “injure” McDonald’s by “stealing” some of “its” customers.

Terry Hulsey August 1, 2010 at 10:34 am

Stephan,
Being captious does not do you credit. This is a forum for ideas, not a witness stand. I have provided you 2 clear examples of injury done to intellectual creators. Mr Richman was able to man up and respond. Please don’t cavil about the legalistic tort significance of “injury” — just give a clear confirmation citing the provided specific examples:
* Agreed, intellectual creators WILL suffer injury under an anti-IP policy, just as occurred in the “Lion King” DVD case, just as occurred in Philo Farnsworth’s case.
* Agreed, there is no remedy in supposing that some PRO-IP policy can be devised by a non-state guarantor of IP, since the real issue is in the non-existence of IP, not in how this fictitious thing might be guaranteed.
Thanks.

Terry Hulsey August 1, 2010 at 6:16 pm

Stephan,
Since you have visited this page since today’s 10:34 am post, it seems that you hesitate in giving a forthright confirmation of the 2 points described regarding injury due to copying and a non-state guarantor of IP. However, before accusing you of pusillanimity, I follow St. Thomas’ injunction to try to understand another’s thinking, insofar as possible as they conceived it.

You touch on both these points here: http://blog.mises.org/7877/renaming-intellectual-property/ and mention J. Neil Schulman, who was exactly the person I had in mind as one staking out a position pro-IP with a non-state guarantor. Yet, as generous as you are in conceding to his term “logorights,” you grant no more, holding that the term is useful only in side-stepping the issues associated with the word “property,” not that the term signifies something that should be granted protection, state or non-state. I assume that you waded through Schulman’s article here: http://www.pulpless.com/bp21samp/logorite.html (I must digress to say that the article is a perfect representative of “Internet Philosophizing”: The refusal to use terms with reference to their historical arguments, and thus the need for a tiresome elaboration of a new, idiosyncratic, context, culminating in a neologism.)

Your article does not therefore constitute a demurral of what you have said elsewhere: “Copying it, emulating it, using it, learning things based on it–does NOT TAKE THE IDEA FROM YOU. [...T]his kind of ‘taking’ is justified.” And: “copying is not theft because the originator still has his copy”. And: “the owner still has his property and ideas [...] IP infringement is just learning and emulating”. Therefore, finding no alternate reply from you, I have to conclude that you do indeed confirm the following:
* Agreed, intellectual creators WILL suffer injury under an anti-IP policy, just as occurred in the “Lion King” DVD case (where “injury” was loss of millions of dollars from copying), and just as occurred in Philo Farnsworth’s case (where “injury” was loss of millions of dollars from lack of attribution).
* Agreed, there is no remedy in supposing that some PRO-IP policy can be devised by a non-state guarantor of IP, since the real issue is in the non-existence of IP, not in how this fictitious thing might be guaranteed.

Having established these points, most of those in the pro-IP camp would say: Quod erat demonstrandum.

Most in this camp, being “brain-workers” themselves, have just these kinds of examples in mind. Though they use the phrase “intellectual property,” they do not advocate the property implications of A.J. Galambos; true, some of them are pro-IP “because Ayn Rand said so.” But in general, they intuit that injury (loss of money) WILL result from copying and refusal of attribution, and the real, specific examples prove them right. I think that you honestly realize this too, but do not want to provide “handles for arguments” (as the Federalist Papers concinnitously put it). Therefore, you cavil with the Clintonesque “what do you mean by ‘injury’” or “that’s a rare example”.

As for my own views (which are not so important), I think that choosing IP rent-seeking over real production usually harms the rent-seeker himself (Boldrin and Levine provide great examples of this); that the state IP process favors those with political “pull” and doesn’t consider factors that should shorten the term of protection. I am also certain that intellectual creators will suffer loss. But let one of these “brain-workers” speak, one who is no IP ideologue, the passionate J. Neil Schulman himself:

“Now. If after all this you still think a logos [invention] can’t be property because it isn’t a “scarce economic good,” or if you think creation isn’t essential to the origin of property–then compose your own damn symphonies, write your own damn novels, invent your own damn computer–much less figure out how to program it–design your own damn houses, film your own damn movies, and come up with the damned recipe for bread on your own, –because a person who makes his or her living by creating a logos for license isn’t going to work for free.”

Stephan Kinsella August 5, 2010 at 10:12 am

Terry, thanks for your comments.

Do you have a specific question?

Terry Hulsey July 31, 2010 at 4:15 pm

Stephan, You avoid answering the specific cases of the “Lion King” DVD and Philo Farnsworth, cases where the creator of an idea suffered injury. Therefore I must make inferences from your reply to the “14 anti-IP fallacies” (at http://mises.org/Community/forums/t/13692.aspx?PageIndex=7 if anybody wants to go directly there). On that page you say:”Copying it, emulating it, using it, learning things based on it–does NOT TAKE THE IDEA FROM YOU. [...T]his kind of ‘taking’ is justified.”This statement seems pretty clear to me that you agree that intellectual creators WILL suffer injury. It should be pointed out that Sheldon Richman, also an ardent defender of the Boldrin/Levine anti-IP position, admits that these injuries will occur (see http://fee.org/articles/tgif/intellectual-property/).But to be absolutely sure of your meaning, I would like to hear, in your reply to the specific examples of the “Lion King” DVD and Philo Farnsworth, a clear confirmation of the following: * Agreed, intellectual creators WILL suffer injury under an anti-IP policy. * Agreed, there is no remedy in supposing that some PRO-IP policy can be devised by a non-state guarantor of IP, since the real issue is in the non-existence of IP, not in how this fictitious thing might be guaranteed.Thanks.

Ned Netterville July 29, 2010 at 9:36 pm

I don’t know if anyone has mentioned this yet, but there is a great episode of South Park in which IP is central and doesn’t come off too well. (http://en.wikipedia.org/wiki/Christian_Rock_Hard) The script almost sounds like Kinsella has been moonlighting?)

Silas Barta July 29, 2010 at 10:05 pm

Could you please pick a less dorky pen name?

newson August 1, 2010 at 7:01 pm

like “person”?

Piotr from Warsaw July 30, 2010 at 7:58 am

Whether IP is right or wrong, I cannot accept the argument that ideas are nonscarce. They are scarce and become less scarce as people learn them. Only ideas known to everyone are nonscarce.

Peter Surda July 30, 2010 at 8:03 am

Ideas are not scarce (I prefer the word rival). What is scarce is the goods that are causally related to them. A lot of IP theorists conflate the two.

Piotr from Warsaw July 30, 2010 at 8:42 am

You are right to prefer the word rival as it makes much more sense, though I still have to think it through.

mpolzkill July 30, 2010 at 8:04 am

Piotr, did you know that there are more possible chess matches than there are atoms in the observable universe?

Piotr from Warsaw July 30, 2010 at 8:42 am

I had no idea.

Curt Howland July 30, 2010 at 8:57 am

Piotr,

What is meant by “non-scarce” is not that everyone already has it, it’s that everyone CAN have it.

When I have a stick, only I can have that stick. If you want that same stick, you must take it from me.

If I have a bag of sand, and you take some of the sand, I have less sand.

If we go to a theater, and both see the same movie, neither of us sees “less” of the movie just because there is more than one person watching it. Any number of people can see the movie and still see exactly the same movie as everyone else that sees it, because the movie itself is not scarce. Or, as Peter words it, we are not rivals for the same movie.

For another example, “addition” is an idea. Everyone can use “addition” without any impact on anyone else’s use of “addition”.

Yet the proponents of Intellectual Property would assert that, because someone else had the idea “addition” first, that I owe that other person for my use of “addition”.

Only the most strident of I.P. proponent would assert such a grant of monopoly upon “addition”, however, because they talk about arbitrary lengths of time they believe such monopolies “should” be enforced.

I believe the various arbitrary values asserted for “scope” and “duration” for I.P. are due to the lack of a logical underlying principle.

Piotr from Warsaw July 30, 2010 at 9:45 am

If you understand “non-scarce” in this sense, then Mr. Kinsella’s sentence: “And what does IP do? In the name of capitalism and the free market, it imposes artificial scarcity on things that are already infinitely reproducible.” does not make sense. IP does not change the fact that an idea CAN be in possession of two persons at the same time. In other words, it does make ideas scarcer. Unless he uses “scarcity” here in a different meaning. But that is just confusing.

Curt Howland July 30, 2010 at 9:53 am

Piotr,

That is an excellent point. I agree, the sentence does not make literal sense.

What he meant is that it imposes an artificial limit, beyond which it is illegal for the idea to be shared. I can sing the song “Happy Birthday” all day long for free, but if I do so in a movie without paying a royalty I have broken the law.

As the vast file sharing and copying going on now demonstrate, a “legal” limit is not a physical one, and people naturally share what is unlimited.

mpolzkill July 30, 2010 at 10:17 am

Sorry Piotr, “IP”, doesn’t concern me any more than gaming doctors or any other particular group of rent seekers, I just wanted to ask you another liberty related question. Is it just my imagination that there’s a far higher percentage of liberty minded people in Poland than in most countries? When I used to fight on YouTube I met so many awesome individuals from your country. I wish I could speak Polish, if I could I’d maybe go back to YouTube [I have to anticipate every joke from my detractors around here: I know, I know].

Here is one of my very interesting friends if *you’re* interested at all:

http://www.youtube.com/user/Polishman1

Oh, and I hope that’s not Warsaw, Indiana, that would be embarrassing.

Piotr from Warsaw July 30, 2010 at 11:36 am

It is Warsaw, Poland :) I am positive there is an unusually high percentage of liberty minded people in Poland. I attribute it to activity of some energetic and very prolific “close-to” libertarian publicists who began to write articles, esseyes and books in 1980s and 1990s. I mean mostly Kisielewski, Korwin-Mikke, Ziemkiewicz, Michalkiewicz, but there were others though less prolific and influential. It is through their writings that I got interested in the ideas of liberty. The mentioned writers established a “fairly” libertarian party (UPR) that was quite strong in the beginning although later turned into almost a joke.

mpolzkill August 1, 2010 at 11:38 pm

Thanks for the reply, Piotr.

“established a “fairly” libertarian party…that was quite strong in the beginning although later turned into almost a joke.”

I believe you’ll find that to be the case every time.

Cheers.

Donald Rowe July 30, 2010 at 1:21 pm

Curt,

“If we go to a theater, and both see the same movie, neither of us sees “less” of the movie just because there is more than one person watching it. Any number of people can see the movie and still see exactly the same movie as everyone else that sees it, because the movie itself is not scarce. Or, as Peter words it, we are not rivals for the same movie.”

No disagreement here. But there is rivalry for the seat in the theater.
It is axiomatic that actions have consequences, is it not.

I think I do not want you sitting on my lap.

Cordially,
Don

Curt Howland July 30, 2010 at 4:04 pm

The theater seat is scarce. Not the movie.

Donald Rowe July 30, 2010 at 9:15 pm

“Those who do not learn from history are doomed to repeat it” George Santayana

“Those who cannot predict the consequences of their actions are doomed to a life filled with surprises.” unknown

Beefcake the Mighty July 30, 2010 at 9:28 pm

“Those who do not learn to ignore Silas Barta are doomed to waste their time.”

Beefcake the Mighty

Sione July 30, 2010 at 2:52 pm

An excellent summation of the IP debate and how it has changed the perspective of libertarianism. It was interesting to see the usual arguments and strategies and excuses of IP advocates summed up accurately and concisely, along with their failings. In particular it is interesting to see that I’m not the only one who has discovered the philosophy of Objectivism has shortcomings in regards to the topic. Ayn Rand was correct about so many things, but it does appear that IP was not among those.

Sione

Etaoin Shrdlu August 1, 2010 at 3:18 am

I find it mildly amusing that Mr. Kinsalla is selling his book opposing IP rights (including copyright) for $6. I’d check ThePirateBay.org to see if anyone’s torrenting it, but his nonsensical ranting isn’t worth the read anyway.

By the way, perhaps I’ve just missed it, but has he explained yet why trademarks are evil? Why should we peons have a care in the world about whether the car we bought was really made by Honda, or the sunglasses are really Ray-Bans? The “Nike” shoes I bought in Bangkok lasted a whole two weeks before falling apart; isn’t that more than adequate? (Well, really, it was only about one week, but I had to wear them for another week because I had to get my next paycheck before I could buy yet another pair from a different vendor — free market in action there.) Why wouldn’t an Indian-made “Honda”, with real cow manure for wiring insulation, be just as good as the expensive Japanese-made product?

For that matter, think of the evils that certification marks (a form of trademark, indicating that a product has undergone testing and conforms to some guidelines) bring. Lamps and clothes irons certified by UL set things on fire all the time! Why, then, should consumers be forced to pay the higher prices that manufacturers demand in order to cover their costs in getting products certified? Why are we discriminating against knock-off manufacturers that shave costs by shaving insulation, using defective wiring, eliminating safety features, and using toxic materials? Surely the purchasers of goods would prefer the immediate cost savings that a lack, nay, a total elimination of trademark enforcement could bring.

And if a few kids croak from eating date-rape-drug coated Aqua-Dots, hey, that’s just the price of freedom, baby!

Russ August 1, 2010 at 3:28 am

“By the way, perhaps I’ve just missed it, but has he explained yet why trademarks are evil? ”

It’s the same as the argument against copyright or patents. If a law restricts Mr. Smith from doing something, which doesn’t violate another’s regular property rights, then it violates Mr. Smith’s regular property rights.

Selling a product that bears the trademark of another company could easily be construed as fraud, so I agree with you so far as that goes that the extreme anti-IP argument is silly.

But just because the extreme anti-IP argument is easily refuted with respect to trademarks, that doesn’t necessarily mean it’s so easily refuted with respect to copyrights and patents.

Peter Surda August 1, 2010 at 4:53 am

I find it mildly amusing that Mr. Kinsella is selling his book opposing IP rights (including copyright) for $6.

Which indicates that you do not comprehend the arguments.

Stephan Kinsella August 1, 2010 at 9:39 am

Shrdlu, this is a stupid comment. Being against copyright does not mean I have to make it easy for others to copy my work.

In any case, we do make it easy. My book is available in PDF format for free. You are free to do what you want with it. Convert it to kindle and sell it on Amazon. I don’t care. Put it on lulu and sell the book for … $5? if you want. Have at it. Notice the Creative Commons attribution only license at the bottom of this very page?

Scott Dysart August 1, 2010 at 3:36 pm

Etaoin Shrdlu:

I don’t normally take the time just to insult people, but this contribution truly inspired me.If ignorance is bliss, your face is surely split wide open by the blank grin you are wearing. I mean, I’ve seen some unspeakably stupid drek thrown at these forums before, but few have been so wrong in so many ways with so few words.

Stephan Kinsella August 1, 2010 at 9:41 am

Russ, the argument against TM is not silly. I have explained it in detail. I have explained that aspects of TM law can be justified if they are based on fraud (so, eliminate the “dilution” cause of action, and suits in cases where the customer knows he is buying a knockoff), and if the plaintiff is the defrauded customer, not a competitor who “lost sales.”

Russ August 1, 2010 at 10:01 am

Let’s say somebody makes fake Nikes that have a Nike logo on them. The Nike logo is Nike’s equivalent of a signature; a way of saying “This shoe was made by Nike”. By putting a fake Nike logo on his shoes, the “pirate” is thus effectively lying about who manufactured the shoes. As far as I can tell, that is a good prima facie case for intent to defraud. The fact that some customers may recognize the fraud for what it is, and not care, is immaterial.

Stephan Kinsella August 1, 2010 at 10:36 am

it’s not immaterial at all. what are you talking about? This is jsut assertion. Intent to defraud is not a crime in and of itself. It’s just evidence that there was actual fraud. But if there is no fraud, no problem. And anyway, let’s be realistic: there is NO intent to defraud the customer at all. The knockoff artist knows full well there is a healthy consumer demand for cheap knockoffs! He knows the customers are not deceived, and there is no intent to defraud at all. What are you talking about? This is truly confused, horrible reasoning.

Russ August 1, 2010 at 11:05 am

Is the pirate explicitly telling all his customers that his products are indeed fakes? If not, then how is he sure that none of his customers will be fooled by his fakes? Sure, some customers will know and not care. Some customers will not know, and if the pirate doesn’t tell them that his products are knockoffs, then he has just committed fraud, as far as I am concerned.Even if a customer knows, if the pirate has never explicitly told the customer his products are knockoffs, then as far as I am concerned, he intended to commit fraud. Saying that he didn’t is similar to this; let’s say a man breaks into a woman’s house, chloroforms her, gags her, wakes her up, and rapes her. But it turns out that the woman liked it. Is the man guilty of rape? I say yes, because he didn’t know the woman would like it. The man could say that all women really want it, just like a pirate could say that all his customers know his products are fake. But he doesn’t really know that.

“Intent to defraud is not a crime in and of itself.”

Maybe I should have said attempted fraud. Whatever. I’m not a lawyer. So you’re saying that, for instance, if a con man attempts to con somebody out of his money by fraud, and the mark catches on to the fact that he’s being conned, then no crime has been committed??? If that is truly the way the law works, it shouldn’t be. Attempted murder or attempted rape is a crime. I can’t see why attempted fraud shouldn’t be.

Stephan Kinsella August 1, 2010 at 1:04 pm

Your examples are just bizarre I think. Have you ever seen fake rolex watches or fake louis vuitton merchantes–they have little temporary shacks in a bazaar or something. eVeryone knows what they are. what are you talking about. I have never even HEARD of a single person ever on the planet being fooled by these things.

Anyway, if so, it would be fraud. So waht?

Russ August 1, 2010 at 1:32 pm

So what? So, if the pirate does not explicitly tell everyone that his watches or whatever are fakes, then he is attempting fraud. He cannot rightfully assume that “everyone knows”, just to justify his attempted fraud. And you cannot rightfully assume that “everyone knows”, just so that trademarks fit neatly into your little theory. Talk about “horrible reasoning”! In fact, I would go so far as to call your reasoning intellectually dishonest.

Stephan Kinsella August 1, 2010 at 11:16 pm

“So, if the pirate does not explicitly tell everyone that his watches or whatever are fakes, then he is attempting fraud.”

? Why must it be explicit?

“He cannot rightfully assume that “everyone knows””

How do you know?

“, just to justify his attempted fraud.”

Question-begging.

“And you cannot rightfully assume that “everyone knows”, just so that trademarks fit neatly into your little theory. Talk about “horrible reasoning”! In fact, I would go so far as to call your reasoning intellectually dishonest.”

I’m not sure what your reasoning is.If someone is defrauding people, it’s fraud. I fail to see the relevance of whether a particular group of knockoff artists is or is not committing actual fraud to what is under discussion.

Russ August 2, 2010 at 5:58 am

Stephan Kinsella wrote:
“? Why must it be explicit?”

Because it’s hardly reasonable to assume that “everyone knows” the counterfeits are counterfeits, due to the very nature of counterfeits. They’re designed to fool people. I covered this in a reply to Sione below.

“Anyway, if so, it would be fraud. So waht?”

So, this gives an instance where copying a trademarked logo is indeed a violation of rights.

Stephan Kinsella August 2, 2010 at 1:25 pm

Russ, this is all just a factual, context-dependent question. IF the seller knowingly deceives the buyer, then it’s fraud. If not, it’s not. So, fraud is a possible crime. We all know this.

Unless you can show that EVERY SALE of a knockoff is NECESSARILY FRAUDULENT, I fail to see the relevance of your entire side-argument here. The point is that sales of knockoffs are not a violation of any libertairna rights,and do not necessarily give rise to fraud–meaning that not every sale of knockoffs is a violation of fraud-based-trademark law. The ones that ARE fraudulent would be prohibited or actionable. So… what argument arey ou trying to make? That the possibility of fraud in the sale of a knockoff means current trademark law is justified? I’m really not sure what you are doing with your tendentious, apparently pointless pettifogging arguments.

Sione August 1, 2010 at 3:49 pm

Russ

I certainly would go as far as to say you really are sick in the head. In the end this appears to be where many IP advocates descend- dreaming up deceitful, malevolent fantasy scenarios in order to justify some IP ideal. No wonder these arguments lack credibility.

What needs addressing directly is the establishment of a proof that the entity “IP” is correctly recognised as private property. So far that has not been demonstrated. If it can’t be, then the entire edifice of “IP” is erroneous and false. Since it is the pro-IP cohort that are supporting the claim that IP is property, then the burden of proof falls upon them. There is no burden upon Mr Kinsella and the antis to disprove the contention (although they appear to have gone a long way in that direction, if not already defeated it). All they need do is demand proof and check it out for themselves. So far what has been delivered from the pro-IP side has not been sufficient to make the proof.

Is it even possible that a suitable proof can be presented? So far it is looking more and more doubtful.

Sione

Russ August 1, 2010 at 8:50 pm

This subject is really not so difficult, except apparently to people who have their moral sense dulled by trying to define all crime by deriving it from libertarian dogma. So I’ll try to spell it out explicitly:

What is a knockoff? A knockoff is an item deliberately designed with the specific intent of fooling people who don’t know any better into believing that it was made by somebody it was not, in fact, made by. It is reasonable to assume that such an item might, occasionally, actually live up to its intended purpose and fool somebody. That being the case, somebody who sells such items has the moral obligation to inform his customers that the items he sells are not, in fact, what they appear to be. If he does not do so, then it is reasonable to assume that he intends that the items fulfill their intended purpose and fool people, namely, his customers. In other words, it is reasonable to assume that he is knowingly misrepresenting the items he sells. He is at least attempting to commit fraud.

Let’s say that Billy Bob Lee runs a gas station in Skunk Junction, W. Va. In this very small town out in the middle of nowhere, “everybody knows” that Billy Bob adulterates his gas with 10% ethanol, even though his signs say nothing but “Gasoline”. Dino Vitelli, a city silcker driving through from NYC, drives in and buys some gas from Billy Bob. Billy Bob does not inform Dino that the gas is 10% ethanol. Has Billy Bob committed fraud?

Conversely, let’s say that Dino owns a booth in NYC where he sells knockoff Gucci purses. In this neighborhood, “everybody knows” that these purses are knockoffs. Bill Bob is visiting the big city for the first time, and sees Dino’s booth. He has heard of Gucci purses from TV, notices that the prices are reasonable, and reckons that his girl, Daisy Rae, would surely fancy one o’ them fancy purses. He buys one. Dino does not inform Billy Bob that these purses are knockoffs. Has Dino commited fraud?

In both cases, I think it’s obvious that the answer is an unqualified “Yes”. Blithely saying “everybody knows” is not sufficient to exonerate either one.

BTW, keep up the insults, guys. So far, I’ve got “bizarre”, “horribly confused”, and “sick in the head”. Wow. I must be hitting some soft spots. Just know that I can dish it out every bit as well as I can take it. I’m not going to being intimidated by intellectual bullying.

Scott Dysart August 1, 2010 at 11:14 pm

Russ,

It would have been nice if Stephan Kinsella’s post had been more tactful and informative, but considering the number of morons who choose to throw their strongly-worded and poorly-reasoned opinions into the fray, well, I’m sure it starts to grate after a while. I think your comment didn’t deserve to be dismissed as such, so I’ll try to answer it.

You correctly identify the consumer as the party who is harmed by purchasing goods that are fraudulently represented as being manufactured by another company. You are absolutely correct to call it fraud if a consumer is lied to about the nature or contents of goods in a purchase. However, it is a non-sequitur to say that this justifies trademark law. Trademark law is designed to provide monopoly protection to the holder of the trademark, not fraud protection to the consumer. Under current law, Gucci in your example can send Dino a cease-and-desist letter, or file suit, to stop Dino from selling the purses with the Gucci trademark.

Absent trademark law, it is only the consumer who can bring forward a complaint about fraudulent goods. If Daisy Rae realizes that the purse that Bill Bob bought is not a real Gucci, he can demand restitution from Dino or haul him off to court. On the other hand, if Dino actively reveals to his customers that the Gucci knockoffs are fake, I can see no reason to force him to stop selling them. Again, current trademark law says that Gucci can stop him, and that is unjust monopoly protection.

Russ August 2, 2010 at 5:44 am

“You are absolutely correct to call it fraud if a consumer is lied to about the nature or contents of goods in a purchase. However, it is a non-sequitur to say that this justifies trademark law.”

You are willing to meet me halfway? Awesome.

“Trademark law is designed to provide monopoly protection to the holder of the trademark, not fraud protection to the consumer.”

It’s not monopoly protection, by any means. Anyone can make handbags, not just Gucci. The only restriction is that others cannot make handbags and claim that they are Guccis. In other words, people aren’t allowed to misrepresent their products. Not much of a restriction.

“Under current law, Gucci in your example can send Dino a cease-and-desist letter, or file suit, to stop Dino from selling the purses with the Gucci trademark.”

Yeah, so what’s wrong with that? I can’t understand why you guys think that people should have the right to misrepresent their products as the products of others. And I can’t understand why the person or firm whose reputation is being besmirched (by having inferior purses being misrepresented as Gucci, for instance) doesn’t have a right to take action. I know that this doesn’t follow from my previous fraud argument, but I thought that since you accepted that, I would move on.

BTW, don’t bother giving me a lesson about how reputations are in the minds of others, and hence are not owned by the persons affected by them. I know that one; I just don’t buy it. Like Brian Macker said in the blackmail thread, I think that if you try to derive all laws from overly-simplistic libertarian dogma, you quickly get into trouble. As far as I am concerned, the only thing the “people don’t own their own reputations” argument proves is that, since it leads to what is, IMHO, a prima facie absurdity, libertarian dogma is incomplete. In other words, I accept your logic, but I don’t accept your premises.

“Absent trademark law, it is only the consumer who can bring forward a complaint about fraudulent goods.”

Yes, which is one reason why trademark law is justified. If only consumers can file suit, then there is little chance that this fraud will be stopped. The other reason is that people and firms do indeed have a right to protect their good names.

Stephan Kinsella August 2, 2010 at 1:43 pm

Russ:

““You are absolutely correct to call it fraud if a consumer is lied to about the nature or contents of goods in a purchase. However, it is a non-sequitur to say that this justifies trademark law.”

“You are willing to meet me halfway? Awesome.”

Russ, I’ve said since the getgo that if the seller lies then it’s fraud. Have you missed all that?

“It’s not monopoly protection, by any means. Anyone can make handbags, not just Gucci. The only restriction is that others cannot make handbags and claim that they are Guccis.”

PUtting a Gucci logo on it is not “claiming” it’s a Gucci. If you inform the buyer, then they know it’s a fake Gucci. THERE IS NO FRAUD in such a case. So Trademark law as applied now against knockoffs *when there is no fraud* is unjustified. Do you see this?

” In other words, people aren’t allowed to misrepresent their products. Not much of a restriction.”

Correct, but selling a Gucci knockoff IS NOT NECESSARILY MISREPRESENTING IT. If the buyer knows it’s a knockoff it’s NOT MISREPRESENTED. How can you not see this? It is so obvious.

“Under current law, Gucci in your example can send Dino a cease-and-desist letter, or file suit, to stop Dino from selling the purses with the Gucci trademark.”

Yeah, so what’s wrong with that? I can’t understand why you guys think that people should have the right to misrepresent their products as the products of others.

Russ. You are being inexplicably dense here. If you are justifying TM law based on fraud, then the victim of the fraud is the defrauded party: the customer. The CUSTOMER CAN SUE. We all agree he should be able to. We all agree the seller should not have the right to misrepresent (to the buyer–that is, defraud him) the nature of the product sold. If they do htis the custoemr should sue. NOT THE TRADEMARK HOLDER. It was the CUSTOMER’S RIGHT that is violated when he is defrauded, not the trademark holder.

Moreover, this makes it clear the customer may NOT sue if he DID know he was buying a knockoff! Do you agree?

And I can’t understand why the person or firm whose reputation is being besmirched (by having inferior purses being misrepresented as Gucci, for instance) doesn’t have a right to take action.

Because if I defraud you I am not violating John’s rights.

and this is a sneaky disingenuous way to put it: with your double negatives: it’s akin to saying: Show me why we should not have a law against drug use; unless you can show this the law should stay. NO, rUss, the presumption is liberty: NO LAW is justified UNLESS it is consonant with property rights. So you should say, instead: why is a law protecting rights in reputation justified? Why is there a property right in reputation?

BTW, don’t bother giving me a lesson about how reputations are in the minds of others, and hence are not owned by the persons affected by them. I know that one; I just don’t buy it. Like Brian Macker said in the blackmail thread, I think that if you try to derive all laws from overly-simplistic libertarian dogma, you quickly get into trouble.

this is not an argument at all. Just asserting you don’t like it.

“Absent trademark law, it is only the consumer who can bring forward a complaint about fraudulent goods.”

Yes, which is one reason why trademark law is justified. If only consumers can file suit, then there is little chance that this fraud will be stopped.

Even if this is correct, how does this show that the trademark holder has the right to sue? It just doesn’t follow. This is horrible argumentation.

The other reason is that people and firms do indeed have a right to protect their good names.

do they? more question-begging and mere assertion. Poor performance today, Russ.

Peter Surda August 2, 2010 at 2:03 pm

Like Brian Macker said in the blackmail thread, I think that if you try to derive all laws from overly-simplistic libertarian dogma, you quickly get into trouble.

Brian provides no recognisable criteria for making a decision whether an undesirable action is a violation of rights or not. Whenever I show to him that a certain criterion is not a sufficient one (and typically not even necessary one), he jumps to another one, eternally avoiding clarity. Your positions are at least clear and you don’t mind admitting that on some questions you’re a utilitarian. I think some of your utilitarian arguments are “miscalculated” but at least you don’t avoid answers.

Back to the topic, as Stephan said, putting a logo on your product is not equivalent with claiming it was made by X. Sometimes, it can mean that, but in general these two don’t correlate. And if they don’t correlate, then the logo is not relevant for the question of fraud.

Stephan Kinsella August 1, 2010 at 11:23 pm

Russ: ‘What is a knockoff? A knockoff is an item deliberately designed with the specific intent of fooling people who don’t know any better into believing that it was made by somebody it was not, in fact, made by.”I think you are just mistaken about how knockoff sellers work. They are not attempting to deceive anyone, in my experience. Their customers know they are buying knockoffs and do it to save money. Now the customer may be wanting to fool other people into thinking they have a genuine article, but that is not fraud any more than wearing makeup is.

“Let’s say that Billy Bob Lee runs a gas station in Skunk Junction, W. Va. In this very small town out in the middle of nowhere, “everybody knows” that Billy Bob adulterates his gas with 10% ethanol, even though his signs say nothing but “Gasoline”. Dino Vitelli, a city silcker driving through from NYC, drives in and buys some gas from Billy Bob. Billy Bob does not inform Dino that the gas is 10% ethanol. Has Billy Bob committed fraud?”

Yes. But that’s not a typical knockoff-seller scenario. Anyway, this just shows that it depends on context.

“Conversely, let’s say that Dino owns a booth in NYC where he sells knockoff Gucci purses. In this neighborhood, “everybody knows” that these purses are knockoffs. Bill Bob is visiting the big city for the first time, and sees Dino’s booth. He has heard of Gucci purses from TV, notices that the prices are reasonable, and reckons that his girl, Daisy Rae, would surely fancy one o’ them fancy purses. He buys one. Dino does not inform Billy Bob that these purses are knockoffs. Has Dino commited fraud?”

Don’t know. Not enough facts. If the Gucci goes for $1000 normally and he is selling these for $30, then they should know something is up.

gene August 2, 2010 at 10:06 am

Sure, IP is private property.

And, the owner has every option to keep it private or sell it.

It’s as simple as that. The State is not needed to carry out the transaction, the creator can already do whatever they want. State intervention is intrusion into private contracts and violates freedom of action [and transaction]. IP laws are very similar to incorporation laws, state intervention into the free economic sphere. completely unwarrented.

Capt Mike August 1, 2010 at 3:50 pm

Yeah, I went to a “Tribute to the Beatles” concert and they WEREN’T EVEN THE BEATLES!!!!Boy! Was I ticked off!!!420 comments?!?!? Is that a record?

Sione August 2, 2010 at 4:14 am

Russ

Yup. You hit a soft spot alright. The one which reacts to the malevolent sexual abuse fantasies sickos like you dream up.

As far as the 10% ethanol in the gasoline is concerned, that’s a matter of buyer beware. Last time I was in the USA I found many gasoline retailers supplying ethanol in gasoline. It’s up to you to determinewhether that is a problem for you or not. If it is a problem, then it is up to you to ask the retailer if ethanol is presenrt or not BEFORE YOU BUY ANY. HOw simple is that? Same goes for the Gucci example. Ask the retailer about his wares. Find out before you buy. That’s YOUR responsibility.

Sione

Russ August 2, 2010 at 5:11 am

“Yup. You hit a soft spot alright. The one which reacts to the malevolent sexual abuse fantasies sickos like you dream up.”

Get over it. And it wasn’t a fantasy, moron. It was an (admitted extreme) example of situation where a crime could be said to have been committed, even though it turned out that the “victim” did not consider him/herself victimized.

“If it is a problem, then it is up to you to ask the retailer if ethanol is presenrt or not BEFORE YOU BUY ANY.”

No, it is not. It is the responsibility of the retailer to properly and honestly represent his product. Overly dogmatic attitudes like yours are why libertarianism is not taken more seriously. People confuse your extreme views with those of all libertarians.

mpolzkill August 2, 2010 at 8:02 am

What’s extremely stupid is believing you ever get more than one mom and one dad in this world. You are responsible for yourself and you need help getting information; help from consumer protection businesses with a profit motive, not from con-artist taxfeeders.

Whenever I hear Statist dreams about protection I always think of the State Lotto.

Russ August 2, 2010 at 8:20 am

These “caveat emptor” arguments crack me up. They are basically no different from saying that if you can’t protect yourself from a mugger, you deserve to get mugged. They devolve from ancap properly considered to anarchism of the “property is theft” variety. After all, even in an ancap society, there could still be PDAs that consider counterfeiting wrong.

It’s not Statism to think that people have rights that need to be protected somehow. The fact is that people can’t always protect them themselves, and need someone to do it for them. But, hey, that’s division of labor at work, eh?

mpolzkill August 2, 2010 at 9:04 am

It’s Statism to think the State can do it and to then advocate their delusions, scams and theft.

If there must be “public” school, I’d advocate branding “caveat emptor” on every child. No, then there wouldn’t be “public” school.

mpolzkill August 2, 2010 at 9:13 am

I sure wish “caveat emptor” wasn’t such a joke to you whenever (about every 10 minutes) I think of the more and massive and mighty spying-for-taxing apparatus being created. That was sold to you as A-Rab protection, of course. “Bait and switch”, you know about that in subjects where your mind’s wiring wasn’t destroyed.

Sione August 2, 2010 at 2:49 pm

Russ

Extreme? And that’s how YOU describe your own sexual fantasies. Well they are that, but the term sick is more accurate. You can try to deny your fantasies all you like, but it remains fact that what you presented was the self-generated product of a sick mind. Get professional help before you hurt someone!
-
The retailer is selling gasoline. Gasoline is a mixture of compounds. If a buyer is concerned about the recipe, it is up to him to ask. Same goes for a bag. It is up to the potential buyer to enquire about the specifications and provenance and quality and price and anything else he wants to know about it BEFORE BUYING.

That’s so simple that surely even the likes of you should be able to understand.

There is no such thing as a right to be prevented from making an error, as you would pretend. Such nonsense is indeed the route to Statism.

Your attempt to slime your way out of the corner you painted yourself into is noted. It won’t work. Selling gasoline is not analogous to a mugging (which is a physical assault).

To make the argument in favour of IP requires providing proof for the contention that IP is properly consider private property. You certainly have not accomplished that. Nowhere near it.
In the end you have no valid argument for your position. Perverse fantasies are not good enough.

Sione

Lunarmony August 3, 2010 at 1:08 am

I wonder if opponents to IP have ever read Human Action, p385?

(No, your so-called ‘solution’ of branding certain products ‘endorsed by the creator’ does not work. Consider how many ‘endorsed by the creator’s we would have to look for on a personal PC had your solution been implemented. An average customer will never have time to know which inventors he should support, and a PC manufacturer will always choose the cheapest hardware, all other things being equal.)

Darcy August 8, 2010 at 11:53 am

Quoting the relevant part:

Yet there is an exception to this general rule that monopoly prices benefit the seller and harm the buyer and infringe the supremacy of the consumers’ interests. If on a competitive market one of the complementary factors, namely f, needed for the production of the consumers’ good g, does not attain any price at all, although the production of f requires various expenditures and consumers are ready to pay for the consumers’ good g a price which makes its production profitable on a competitive market, the monopoly price for f becomes a necessary requirement for the production of g. It is this idea that [p. 386] people advance in favor of patent and copyright legislation. If inventors and authors were not is a position to make money by inventing and writing, they would be prevented from devoting their time to these activities and from defraying the costs involved. The public would not derive any advantage from the absence of monopoly prices for f. It would, on the contrary, miss the satisfaction it could derive from the acquisition of g.

Now Kinsella and his ilk have to explain why both Rothbard and Mises are wrong, and why they are the geniuses.

Peter Surda August 8, 2010 at 12:19 pm

If you say that g contains f, both g and f require resources to be spent on them, and f does not have a market price, it does not follow that g cannot be produced. Only if there is perfect competition the argument is valid. The first one to enter the market can charge a premium. Also, if f is non-rival, it only needs to be produced once.

Mises is very careful and he phrases his arguments in an “if … then …” form.

Darcy August 8, 2010 at 12:58 pm

And how would the consumer benefit from lower profits to the producer because of a 1 millisecond early market advantage in g over full perpetual property in g? It would result in a much lower production rate of f and thus much less g, and so the consumer would be worse off than he otherwise would be without perpetual property in g.

Usually, the argument against monopoly is that it artificially restricts production and restricts the market for consumer goods. In this case, Mises points out that monopoly exceptionally expands production and expands consumer goods. This is what IP opponents are against.

Peter Surda August 8, 2010 at 2:37 pm

You can’t suddenly switch to utilitarianism in the middle of the argument. We are not concerned about “optimal” level of production. In addition to that, you can make that argument about any substitute. In order to introduce a new good (g), a company needs to perform market research (f). However, once the product (g) is launched, their competitors do not need to spend money on the market research, because they see whether (g) sells well or not. The company cannot charge for (f), and their competitors get it for free, so their costs of producing (g) are lower. An IP proponent would argue that that means all substitutes should be illegal.

Darcy August 8, 2010 at 7:21 pm

I didn’t switch to utilitarianism, economics has always been about utilitarianism. And since the anti-IP league makes no economic argument to defend their position (and in fact blame the producers for failing to make a profit without IP), that makes them communists.

Your analogy is also irrelevant. The market research is not an input into the production of good g. Firm a could simply take a risk and go straight to the production of g. This is not the case in IP, where good g cannot exist without an investment in good f.

This fact makes the anti-IP argument economically nonsensical. The anti-IP position is that if everyone is free to make copies of g, then the price of g will fall to its marginal cost, and the marginal cost of f is irrelevant. But this assumes that f has already been produced, when in reality g will simply not exist unless an investment in f is made, and that investment depends on the profit-maximization of g. Much like in Hoppe’s argumentation ethics, where someone cannot argue for communism without writing themselves out of existence, someone cannot argue against intellectual property without eliminating the very goods they want people to have the freedom to copy out of existence.

Let me make myself perfectly clear:
opposition to intellectual property is impossible. There must first exist intellectual property for any media to be worth reproducing to exist.

Peter Surda August 9, 2010 at 3:59 am

I didn’t switch to utilitarianism, economics has always been about utilitarianism.

Austrian economic school doesn’t.

And since the anti-IP league makes no economic argument to defend their position…

It is exactly the opposite. The IP proponents cannot make an economic argument to defent their position. In addition to that, they cannot even make a logically coherent argument to explain their position, making the economic point of view moot.

Your analogy is also irrelevant. The market research is not an input into the production of good g. Firm a could simply take a risk and go straight to the production of g. This is not the case in IP, where good g cannot exist without an investment in good f.

You missed both the specific as well as more generic point of the argument. Without market research, you wouldn’t know what to produce, so g does not come into existence. If I was to take your argument seriously, I could argue that one doesn’t need to invent a mouse trap, you can just make something and “take the risk”. Makes no sense? Yea that’s what I thought. The more generic argument is that practially all competition (more specifically, substitutes) requires that the market already exists, and they would not exist without the first producer.

One of the main cofusions of IP proponents it the Theory of Claims on Causality. It says that if you have some sort of claim on A, and B is causally related to A, you also have a claim on B. The theory fails because the proponents thereof do not provide a way to distingiush which part of causality is relevant and which is not.

This fact makes the anti-IP argument economically nonsensical.

No, it makes your argument illogical.

The anti-IP position is that if everyone is free to make copies of g, then the price of g will fall to its marginal cost, and the marginal cost of f is irrelevant. But this assumes that f has already been produced, when in reality g will simply not exist unless an investment in f is made, and that investment depends on the profit-maximization of g.

Yes, claims on causality, just like I wrote above. For your argument to be consistent, you need to extend the ownership claims to all causality, or explain how to distingiush between the causality which should be property and that which should not.

Much like in Hoppe’s argumentation ethics, where someone cannot argue for communism without writing themselves out of existence, someone cannot argue against intellectual property without eliminating the very goods they want people to have the freedom to copy out of existence.

A complete non-sequitur. As I wrote elsewhere, IP only metaphorically extends property rights to new goods, in reality it rearranges property rights in rival goods.

You fall prey to metaphors, just like all the other IP proponents I debated.

opposition to intellectual property is impossible.

What is impossible is the denial of causality, which is something that IP opponents do all the time.

There must first exist intellectual property for any media to be worth reproducing to exist.

Again, a non-sequitur. If your argument was correct, it would apply to all causality.

jerry August 10, 2010 at 5:08 pm

“One of the main cofusions of IP proponents it the Theory of Claims on Causality. It says that if you have some sort of claim on A, and B is causally related to A, you also have a claim on B.”

You say such chains of causality extend to infinity or whatever, which is true in theory – but then this argument can be applied in the case of real physical property.

For example, I own a trigger of a gun, and a handle, and a barrel, and some other metal mechanism that connects them together in a certain way, and I own some gunpowder and a bullet which at present are sitting somewhere within in that mechanism. My property, and surely I can do what i like with it and arrange it in any “pattern” I like.

If I shoot someone, you say that I am violating their property rights. Correct?

But why? I didn’t physically invade their person, I might be 100 yards away. It is only because the bullet hitting the victim and me putting a slight bit of pressure with my finger on a bit of metal in my own house, using property that I own 100%, are considered to be connected “causally” that this is considered a property violation.

Peter Surda August 10, 2010 at 5:29 pm

You say such chains of causality extend to infinity or whatever, which is true in theory – but then this argument can be applied in the case of real physical property.

Exactly, which is why the theory is wrong. I only came up with it to understand how IP proponents argue, not because I am a proponent of that theory.

If I shoot someone, you say that I am violating their property rights. Correct? But why?

This is a very good question, I wasn’t actually able to come up with a proper answer myself, but Stephan Kinsella came to rescue: http://mises.org/journals/qjae/pdf/qjae7_4_7.pdf

jerry August 11, 2010 at 4:52 am

Peter – in this post you said

http://blog.mises.org/13327/l-neith-smith-on-ip/comment-page-1/#comment-702826

“The question whether a property was violated does not depend on intent or sophistication of the method used.”

You just pointed me towards Kinsella’s piece. Here is a direct quote from it, from page 100, which is certainly not intended to be a cherry-picking but is I think I good summary of the position outlined therein:

“As a shorthand we say that A killed B, but implicit in this account is that A undertook intentional action employing means and exploiting causal laws to achieve his desired result”

A cursory glance suggests your words and Kinsella’s piece, that you say supports your argument, contradict each other.

And I’m not just looking for quotes out of context to find contradictions. This now gets us gets right to the heart of my problem with the anti-IP argument and I go back to the very first thought experiment that I posted on this topic. I’m going to repeat it below but make it a little clearer.

http://blog.mises.org/13327/l-neith-smith-on-ip/comment-page-1/#comment-702794

As a thought experiment for discussion purposes to elaborate on what I asked, imagine that once you get someone’s dna, then you can do a calculation so that a certain very precise quantity of water, coffee grains, milk and sugar mixed together will kill them, but you need to analyse their dna to get this mixture exactly right.
Someone in my house finishes their glass of water and asks me for a cup of coffee. I go into my kitchen and lock the door. I emerge 5 mins later with a cup of coffee and hand it to him. They die after drinking it from what is determined to be the coffee concoction. Did I kill them? Did I violate this person’s “property” rights? Someone, somewhere, some arbiter, has to decide this, in any society.

It firstly depends crucially on whether or not I went through a PROCESS of obtaining their genetic code or not, of somehow “accessing” or “copying” their genetic code from a piece of skin they left on the original glass of water. And, even if I admit I did this, and admit that I weighed out all the correct amounts of all the water, coffee grains, milk and sugar, I can still argue that I just happened to have had a recollection, 30 seconds after accessing their dna, that my gran said the best cup of coffee is made with this particular combo of water, coffee grains, milk and sugar – by pure coincidence, I didn’t actually do the calculation from the dna, it was just bad luck. How can the arbiter know what my “intent” was, what my state of mind was?

He can’t. He can only act on measurable data. And how can he possibly know what I got up to in the kitchen alone in that 5 minutes? He can’t.

(And that situation and defence were of course absurd in practice but I exaggerate only to demonstrate the principle which, in greyer areas, will still hold)

And so the only way to proceed now is to deem that
1. a person’s genetic code – whether it be in a discarded cell, in medical records, from some yet to be invented device which gets it from a distance or whatever – is his property (“intellectual property” if you will, although I don’t like the term) and that anyone going through a process which can be interpreted as an intent to access this data is breaking the law, a general copyright-type law (that is, everyone is deemed to have copyrighted their genetic code at birth)
2. murdering people using a causal _information-based_ process is ok although a causal _mechanical/physical-based_ process (eg. pulling a trigger) is not
3. everyone in that society stops drinking coffee
4. everyone wears an astronaut suit at all times so no hairs or skin are left anywhere, and they never see a doctor who might be able to access their genetic code as it might be accessed by a burglar etc.

Which of these then in the ip-less world would you go for? I think I know at least some of what you are going to say (and guess the word “utilitarian” will be used) but I don’t think this cuts it – but I’ll let you respond first.

NB. I’m still not definitely on either side – but I certainly don’t think it is right to present the anti-ip stance as a slam-dunk as it is.

jerry August 11, 2010 at 5:35 am

You might argue that a fifth option would be deeming that discarded cells are a person’s “property” and it is here that the rights violation took place.

But this is not pertinent. You can assume you can access their genetic code via a beam of electromagnetic waves fired through their body which leaves the body entirely as it was. This principle is not science fiction – photoplethysmography can calculate the oxygen content of the blood in exactly this fashion (those clips you see on people’s fingers in hospitals), I could adjust the argument to use this device, this is not the heart of the matter.

Jay Lakner August 11, 2010 at 6:15 am

Jerry,

Intent to kill is all that’s important here.

This is the same as hiring someone to commit murder. Sure they are just words, but it still counts as murder. There is a difference between a speech act and aggression.
See http://mises.org/journals/qjae/pdf/qjae7_4_7.pdf for more explaining this.

You scenario is pretty much the same. The use of information that results in the death of another is only murder if there is intent to kill.

jerry August 11, 2010 at 6:39 am

I don’t disagree. I career off the road on some ice and kill someone and say it is accident. The next day someone says they overheard me say to my friend that I wanted to kill this person and was thinking of ways I can do it and get away with it. I could then be deemed to have “intended” to kill this person and go to jail after some due process. We agree, yes?

How do we determine whether or not the coffee maker had intent to kill or not? I suggest that the equivalent to the conversation in the scenario above (the proof of the intent) is the process by which I accessed his genetic code (eg. equipment in my kitchen next to my coffee maker with bits of his skin in it or whatever). But if accessing someone’s genetic code is ok (that is, if they are not allowed to copyright it) then I can say I had some other reason for accessing this information and so how do we determine whether the coffee maker “intended” to commit murder or not?

Peter Surda August 11, 2010 at 7:06 am

A cursory glance suggests your words and Kinsella’s piece, that you say supports your argument, contradict each other.

Jerry, maybe I should have phrased my words even more apparently, or maybe you just need to relax a bit and take your time reading my statements. There is no contradiction, because the two statements talk about different things. My statement explains how to determine whether a violation of rights occurred or not. Stephan’s statement explains how to determine who the violator of rights was. My statement is less specific, it does not answer the second question. Indeed, I several times admitted that my argument is often insufficient to determine who the violator is.

Surely you can recognise that in order for there to be a violator of rights, a violation must be present in the first place. So it is not excessive to require that the first question is answered before one asks the second question. In your example, before you ask “Did I kill him?” you first need to ask “Was he killed?”. A chain of events was set into motion, and using biologic and chemical processes, succeeded. If the guy that is now dead had been aware of the chain of events, he would probably tried to avoid it. So, the question “Were his rights violated?” is to be answered affirmatively. To be more exact, according to my theory it can also mean that the whole thing was an accident and there is no aggressor, because my theory is not overly specific, I designed it for falsification of IP rather than affirmation of anti-IP. Now, Stephan explains how to determine if it was you who aggressed or not. The example with the terrorist is in my opinion a very good one.

I hope it’s clearer now. Often I design theories which only answer a tiny subset of questions. Merely because something is incomplete does not mean it is useless. My theory can show that certain situations do not involve a violation of rights. That’s all. It can’t do the reverse.

jerry August 11, 2010 at 7:35 am

I did say “a cursory glance” Peter, i wasn’t suggesting this was a ringshot or trying to sharpshoot your comments unfairly. I elaborated on what I see to be a problem with your argument, and your suggestion that I’m not reading stuff is clearly not true.

I understand what you say – I don’t have time to answer fully right now but will do so later. But your initial answer does not placate me

“Surely you can recognise that in order for there to be a violator of rights, a violation must be present in the first place. So it is not excessive to require that the first question is answered before one asks the second question. In your example, before you ask “Did I kill him?” you first need to ask “Was he killed?”. ”

Yes, I agree. That’s what I’m asking, was he killed? But you can’t say “he was killed, but no’one was responsible” that doesn’t make any sense surely, no’one being deemed responsible (ie. to have intentionally caused the death) might be a decent DEFINITION of an accident. So I don’t think you can separate these issues quite so obviously.

Peter Surda August 11, 2010 at 8:45 am

Jerry, as I am trying to explain, my theory does not feature the answer “Yes, definitely a violation of rights is present”. It can only, given a set of facts, decide that exactly one of the following is true:

- there was no violation of rights present
- there was either a violation of rights present or accidental damage occurred

I hope it’s clear. These options combined cover all possible sets of facts and are mutually exclusive (i.e. in the language of set theory, are complementary and disjunct subsets of a superset of all situations). For questions which are not addressed adequately by this, Stephan’s paper provides better answers.

GT August 4, 2010 at 8:01 pm

An excellent piece, this one – with abundant links that reveal just how hard folks have been thinking about the issue. But at bottom it’s pretty easy… a thing with a replication cost of near-zero, will be priced at near-zero.

Pro-IPers: Bleat all you want about how removing a legislated monopoly will cause your genius to go back under a bushel, but if you are trying to pretend that sunk costs aren’t sunk or that price ≠ marginal cost, then you’re operating subject to a misconception that will drive you to the poorhouse eventually (because the State can’t afford to utilise its armed goons and robed ‘judges’ to support you forever, you tax-eating welfare queens).

Intelligent people of good will can disagree on things, but it usually remains that one side will be wrong. (Good will be damned – I LIKE the ad hominem bitchery… there should be more of it and it should be directed at any politician that walks the earth; plus, I’m never on the wrong side).

Cheerio

GT

Walt D. August 8, 2010 at 11:39 pm

“There must first exist intellectual property for any media to be worth reproducing to exist.”
Case in point. Without patents, there would have been no Swiss Patent’s Office and it is unlikely that Einstein would have had the time to develop Special Relativity. Without SR, no university appointments and no General Relativity. Without Special Relativity and General Relativity, no Global Positioning System. :-)

Paul August 9, 2010 at 6:30 pm

Dear Mr. Kinsella,
I just read your article and found it rather interesting. I am just starting to explore libertarian theory (I’m a sophomore in college) and I thought this was intriguing. However, I have to disagree with your conclusion.

According to you (if I understood you correctly), pirating CD’s or DVD’s is not theft because intellectual property does not exist, and therefore if you take a copied CD/DVD from a second hand producer you have not taken anything from the actors in the movie, the movie directors, etc. I wonder, though, about live theater/opera. If an opera was in town and charged $60 for admission, but instead you bribed a theaterhand $10 instead to see the show, would that not be a form of theft either? You’ve taken nothing from the singers onstage, after all. It seems to me that what you have done, in that circumstance, however, IS robbery: the actors of the opera proposed to offer their services for the price of $60, and in not paying them but taking their work anyways you’ve definitely swindled them. If you agree with this then there can be no legitamate differences with a CD or a DVD, because a CD or DVD is just a more convient form of a show.

It seems to me that intellectual property has an invisible contract: the seller works to create the intellectual property and the buyer pays a set price for it. If you don’t want to be a buyer that’s fine, but it’s not fair to take only the part of the contract you want and not the other. Perhaps it’s a naive argument or simplistic, but I would like to hear your thoughts on how you would reconcile the two scenarios.

Dan August 10, 2010 at 1:06 am

Paul, you have to look deeper into what you are saying. If you believe in the “Lockean” homesteading principle and the non-aggression principle you have to start by seeing if either of these are violated in order to justify the law. It is your responsibility to show that these principles have been broken. When you look deeper you see that IP laws actually break these principles and you are forced into a contradiction to say I believe in both.

“If an opera was in town and charged $60 for admission, but instead you bribed a theaterhand $10 instead to see the show, would that not be a form of theft either?”

Yes it would be theft as you don’t own the opera theater and can’t illegally by your way onto it. This has nothing to do with IP.

“If you agree with this then there can be no legitamate differences with a CD or a DVD, because a CD or DVD is just a more convient form of a show.”

I am not infringing on anybodies property if I download a movie on my computer and use my dvd to copy it. The original owner still has his copy and I also have a copy, but neither of us lost any property. Now if you want to argue that he loses profits, that can be debated, but profits are not a property right.

IP is invalid if it violates someone elses property rights. Since IP limits how I can use my own property to my benefit, even when it doesn’t affect anothers person or property, it is immoral.It is not our job to protect profits but to allow for a free competition in the pursuit of them.

Dantiumpro August 10, 2010 at 7:12 am

The question of morality is an interesting one, maybe more interesting than whether information constitutes “property” (I don’t believe it does). I’m anti-IP but think that to make information ‘free’ without recognising the legitimate concerns of information originators is a mistake.

It appears there’s two sets of moral assertions here:

1) If I modify my property to reflect an existing pattern it would be immoral to penalise me as it does not affect the originator’s use of their property. I am not party to any contract if it was given to me and have no obligation to the originator.

2) If I originate something I have the moral right to gain economic reward for that (if it has value) as prior to my efforts it was infinitely scarce. It would not exist if I hadn’t spent the time in creating it and it is immoral for others to profit from it without expending effort if it means they gain in my stead.

Well, assertion 2 doesn’t mention property so what might the “something” be otherwise? Information, obviously. But if it isn’t property then what other rights inhere? Information is abstract but needs a physical medium for storage and / or transmission and property rights extend over that medium.

A person has the right to grant or restrict access to their property and has freedom of contract to determine what is given in consideration for such access and under what conditions, or perhaps form a promisory estoppel. So, in the first instance, the originator can contract or otherwise agree with a second party that they will give access to the medium under the condition they do not disclose the contents to a third-party without permission. If they do disclose the information then they breach the contract or are estopped from doing so. All right and proper as far as I can see, freedom of contract being a cornerstone of the free market.

If the receiving party wishes to make additional copies for themselves, even if stipulated otherwise, absent copyright it would be likely unenforceable at law (as trivial) as the information isn’t property, the receiver already has access to the medium and the originator could not quantify loss in remedy of such breach – the value is placed on access to rather than the content of the medium, no value is placed on the content itself. The receiver’s rights under moral assertion 1 are maintained.

Now if I find a copy – the unmodified pattern subsisting in the original that is recognisable in another medium ,or instance of the first medium, by a reasonable person – laying in a field as Jerry suggests above, I’m not party to the orignal contract or promise. However, we can protect the originator’s rights under moral assertion 2 without unduly burdening me as an unconnected third-party; the key would be to consider what torts we want to protect against outside of property.

If I give a copy (as defined above) to a friend, there is no tortious loss unless the originator can demonstrate that a) the friend would have otherwise paid for access to media under the originator’s control and b) that I was aware of this and therefore knowingly prevented the originator from gaining his profit. In practice this would be impossible and therefore freely sharing the information would be the result.

If I sell a copy, I am knowingly depriving the originator of a sale – by selling it we have established that access to a medium containing the information has a value to the purchaser – and this is an intentional economic tort. I may try to argue that the medium on which it exists is mine and have rights to do with it as I please, including selling it, but I can’t avoid the fact that I am interfering in the originator’s trade (assuming they sell such access, a fair assumption unless I know this not to be the case). I would be liable for the economic damage caused to his business in lost sales – i.e. those where I sold access in the originator’s stead.

If I take the information and modify it and pass it on (in a suitable medium) without crediting the originator, I am misrepresenting who the originator is in the event of someone wishing to purchase access to the information. Also, if I modify the information and credit only the originator I may be liable for defamation if the modifications reduce the perceived quality of the information and this damages the originator’s reputation.

Although this may not seem too disimilar to current copyright law, it allows for-free dissemination of information (unless prohibited by contract or promise) while allowing that, if anyone is to receive economic reward for access to information, it is the originator or their proxies that benefit financially as it is they who have invested the time and effort in it’s creation. It does not rely on the concept of property, only initial access to the carrier medium, then demonstrable interference with trade or damage to reputation. It deals in intent and consequences rather than objects.

The sledgehammer of IP serves a purpose but the nail is getting bent out of shape. None of the above constitutes “theft”, it’s all kept civil.

Isaac August 10, 2010 at 7:34 am

“If I originate something I have the moral right to gain economic reward for that (if it has value) as prior to my efforts it was infinitely scarce.”

I find this claim lacking in support. There is an unstated premise which seems to say that a person automatically deserves reward for labor. This smells a lot like LTV to me.

As far as I’m concerned, information is nothing more than a positive externality. To draw an analogy, I carry a gun most of the time. People who carry guns create a positive externality by creating disincentives for robbery. However, if I claimed people should pay some royalty to me for reducing the crime rate, you would laugh. I feel the same way about information.

Dantiumpro August 10, 2010 at 8:02 am

“As far as I’m concerned, information is nothing more than a positive externality.”

The problem you have with that view is information is not only the intended output of an action, it is also something that people would trade in absent IP law. Rather than being a side effect it is commonly the subject of trade – ‘I will tell my secret to the highest bidder’.

“There is an unstated premise which seems to say that a person automatically deserves reward for labor. This smells a lot like LTV to me.”

The premise is explicit – if the product of labour has value [to someone], the originator is the one who has the moral right to receive the [wages, profit] in exchange. That is not to assume there is inherent value or that the value is directly related to the amount of time spent on it.

The problem I believe most have with IP is that it extends to claims over other people’s physical property. My points above are about consequences rather than property – providing restitution rather than control.

Peter Surda August 10, 2010 at 10:02 am

The problem you have with that view is information is not only the intended output of an action, it is also something that people would trade in absent IP law. Rather than being a side effect it is commonly the subject of trade – ‘I will tell my secret to the highest bidder’.

You cannot use non-rival goods per se, you can only use rival goods that are causally related to the non-rival goods. You cannot exchange information as such, you can only exchange some representation of it, for example a drawing, a copy of an electronic file, a spoken word or just permitting a glance at an otherwise obscured object. Media are necessary for storage, trade and use of information, none of it is possible without. Even if the storage is your brain. Or, to put it into a different angle, information is a metaphor that we use for certain parts of causality.

The problem arises when one claims that the causal relationship between the non-rival good and the rival goods that it causes entitles him to something even if others affected by that causal relationsip do not agree with that claim. I call this Theory of Claims on Causality.

The premise is explicit – if the product of labour has value [to someone], the originator is the one who has the moral right to receive the [wages, profit] in exchange. That is not to assume there is inherent value or that the value is directly related to the amount of time spent on it.

The problem with this is that product of labour (=causality) extends to infinity, and therefore it is impossible to obtain full reward no matter how the legal system is designed.

The problem I believe most have with IP is that it extends to claims over other people’s physical property. My points above are about consequences rather than property – providing restitution rather than control.

I have had issues with this argument, but later understood that it is maybe just the phrasing. Extending claims over other people’s physical property is not only a possible, but a necessary requirement for IP. It only rearranges ownership of goods that are already covered by property rights.

Dantiumpro August 11, 2010 at 6:25 am

I understand Peter and agree with everything that you say – however my point is not about claims of ownership of the nonrival good trumping existing property claims, but about payment received when a nonrival good is the object of exchange.

You’re right, I didn’t phrase it very well; I’ll have another go… :)

Although the nonrival good cannot exist without the rival good in which it subsists, the rival good is not usually what a purchaser places the monetary value on (except for things like the original Mona Lisa where the specific media has additional value because of it’s relationship with the content). Acquiring the nonrival good is the objective of the transaction for the purchaser where it is a copy (as I define a few posts above). However, I don’t agree with the pro-IP stance that the nonrival good constitutes property.

As you say, if you allow someone to have title to a pattern that is infinitely reproduceable and allow that claim to override existing property claims you end in unfairness, absurdity even. My argument is that any title to information (as a nonrival good) is not a claim of property and is weaker than a claim on the property that it subsists in (the rival good, the medium), except where the nonrival good is the reason for trade.

My reasoning is that although the uses of a nonrival good are infinite, the number willing to pay for it are not; there are only so many opportunities to exchange the nonrival good for money and if I sell information I did not originate that is one less sale for the originator. I may be free to use information as embodied in my property – I am free to arrange my property as I wish and it does not interfere with anyone else’s enjoyment of their property – but if I sell the nonrival good I interefere with the originator’s business. That may be fine if my claim of property in the medium gives me that right, but does it?

If my property is a blank DVD it might be worth 15 cents at the market; if I burn a film on there it may be worth $2. If the property is worth only 15 cents, wherein lies my claim to the extra $1.85 over the originator receiving the same amount? Is my act of burning the pattern (film) onto the DVD – and the fact that it happens to be my media it’s transferred on – a better claim to the monetary difference than the time invested by the originator in creating that pattern? If so, what is so special about a property claim that allows this?

I am arguing for free use and free distribution of information (when not prohibited by contract), but that if someone is willing to pay a price attributable to the nonrival good, the originator has the best claim to it via restitution due to unjust enrichment. Sorry if I’ve been less than clear previously, I’m working on it ;)

Peter Surda August 21, 2010 at 10:48 am

Sorry for the late reply, I’m catching up.

Your argument boils down to: the boundaries of property are determined by the intended objective of the consumer. How can you determine what non-rival object is intended by the consumer? You can’t.

Jay Lakner August 10, 2010 at 7:50 am

This is very similar to an argument I tried to make not too long ago.

I tried to argue that a third party that has full knowledge of the original contract, and chooses to copy an author’s work, can be considered an accessory to the crime of contract violation. Therefore, under certain circumstances, it might be justified to prevent third parties from copying.

Just like you I was trying to propose a pro-IP position that does not rely on the concept of property, only intent and consequences.

At present I do not yet have a full grasp of the theory of contracts so I don’t yet know if this line of reasoning makes any sense. I see holes, flaws and contradictions in current theory. The more I read and learn, the more I’m beginning to think that a complete, consistent and logical theory of contracts has not yet been formulated.
Stephan Kinsella filled in a lot of holes for me recently when he provided me this link:
http://mises.org/journals/jls/17_2/17_2_2.pdf
It gave me plenty of food for thought.
I’d greatly appreciate it if anyone could direct me to more information on contract theory.

Dantiumpro August 10, 2010 at 10:40 am

Thanks for the link Jay, it was an interesting read.

I just want to clear up though, I’m not making a pro-IP argument – at least I don’t believe I am; quite the contrary.

What I’ve tried to explain is that even if information is not property (and therefore not an appropriate subject for the wholesale import of property-based rights), there are rights that an individual may claim regarding the sale and distribution of the information they produce. The basis for this is tort law which is outside of contract law as it concerns those who are not party to a contract (although it can sometimes be invoked rather than reliance on contractual terms for things such as duty of care). Together with torts we have concepts such as unjust enrichment and restitution which may equally be applied against bad faith commercial exploitation of a person’s services as they do to property.

I believe that founding protection of information rights in equitable principles and providing restitution rather than upholding a claim of ownership is the proper way of dealing with information. That way, information (which is infinite) doesn’t provide a back-door to ownership of property (which was hitherto finite) merely because it is embedded in it. It is only if someone not under contract profits from selling information (or rather access to the physical medium that contains it) to the detriment of the originator of the information that a legal claim may be made, and only for restitution i.e. the profit that has been made in their stead.

There would be no restitution if information was given away for free by a person not under contract There could be no compensation unless the intent was demonstrably to prevent the originator receiving payment they would otherwise have received.

The Wikipedia page for Restitution in English law.

Issues such as defamation would of course still be compensatory.

I hope that clears up what I meant.

mpolzkill August 10, 2010 at 7:51 am

Just because someone makes or takes an unofficial copy of an artist’s recording, it doesn’t mean he was ever going to pay the asking price for its official copy. It doesn’t mean he isn’t going to buy the same or different recordings from the same artist later in a different or superior packaging. There is also the chance that he is providing free advertising for the artist and that his friends and family will later buy recordings from the artist they have discovered through the copy.

Dantiumpro August 10, 2010 at 8:11 am

Which is why I could distribute the copy I ‘found’ above for free – there would not be a demonstrable loss.

If I sold the copy, there is a price to be had and it interfere’s with the originator’s trade as that’s a paying customer that I have acquired at their expense.

Dan August 10, 2010 at 12:14 pm

Why does the original creator have any right to any profit? To me that seems to be a very arbitrary and emotional view. If I sell copies of some DVD I am not preventing the originator to sell his DVD. I might steal his customers but that isn’t a crime unless I defraud someone. Competition is tough business and isn’t for the faint of heart. It is not our responsibility to look for ways to protect the profit opportunity for an original idea. I know it sucks for the musician and artists who love their monopoly privileges but that is their problem and they need to sack up. Being forced to pay so called restitution to the originator of an idea is theft. The original creator is only entitled to the opportunity to sell his idea. He isn’t entitled to all the profits that come from the idea. Profits aren’t property and people have no right to them in a voluntary society.

Russ the Apostate August 10, 2010 at 12:44 pm

“Why does the original creator have any right to any profit? To me that seems to be a very arbitrary and emotional view.”

It’s not just “arbitrary and emotional”. There is a utilitarian consideration involved in the pro-IP argument. (Or at least utilitarian concerns can be part of a pro-IP argument; they are not part of every pro-IP person’s argument.) Now, you may think that utilitarian considerations should not be entertained (which I think is a bit extreme), or you may think that the utilitarian case for IP is not solid enough to justify overriding regular property rights (which I think is the way to go, if you want to argue against IP). Either way, there’s more than just arbitary emotions involved, at least in some peoples’ arguments for IP.

Peter Surda August 11, 2010 at 4:41 am

There is a utilitarian consideration involved in the pro-IP argument.

While I dislike utilitarianism, the actual problem that I have here is that utilitarian IP proponents are almost unilaterally oblivious to the fact that IP not only has an upward effect on the revenue, it also has an upward effect on the costs. So, for the utilitarian argument to be true, one would need to explain how to measure each, and prove that the revenues exceed the costs in some way. We’ll leave the details for a time after utilitarian IP proponents realise this. From purely mathematical point of view, this is impossible, IP is just a redistributive mechanism, so the total costs must equal the total revenue. The question would rather be more in the lines of who are the ones who pay, and who are the ones who earn. According to my earlier remarks, the only certain way to earn money with IP is to eliminate inputs that are affected by it. The prototype of such a business plan is a patent troll. My personal opinion is that who benefits from IP are primarily lawyers and the state (because it goes in line with the big brotherisation).

One other contributor (I forgot his name) about a year ago said in the comments on the blog that the introduction of IP shifts the process of new development from the vertical to the horizontal (i.e. “me too” products, or substitutes). I thought this is a very insightful remark and another nice counter to utilitarianism. Whether an increase in depth or breadth is preferable is more a matter of personal preference rather than an economic argument.

Paul August 10, 2010 at 1:04 pm

Dan, I feel that perhaps you’re too deep into it. The point I was making with the opera was that the artists who were performing the show agreed to sell their services for a set price, and the person who saw the show without paying the price is clearly not fulfilling his end of the bargain. I say that you are imposing on somebody’s property rights if you download a movie onto your computer and use a DVD to copy it. The right to sell the fruits of one’s labor for a set price is a cornerstone of private property. The original owner of the DVD is not the one who is hurt at all; it is the actors and producers of the movie who have been hurt by your actions, because you have been entertained by their efforts but failed to compensate them.

Scott D August 10, 2010 at 2:49 pm

I say that you are imposing on somebody’s property rights if you download a movie onto your computer and use a DVD to copy it. The right to sell the fruits of one’s labor for a set price is a cornerstone of private property. The original owner of the DVD is not the one who is hurt at all; it is the actors and producers of the movie who have been hurt by your actions, because you have been entertained by their efforts but failed to compensate them.

Am I similarly harming the actors and producers if, instead of downloading the movie myself, I go watch it at a friend’s house? What if I borrow my friend’s DVD and watch it? Have I not been entertained without compensation? Shouldn’t such acts be prohibited? Or am I okay, since my friend and I can’t watch the movie at the same time (unless I invite him to my house to watch it)? What if my friend invites 200 people to his house to watch the movie? If we buy into the idea that my entertainment is someone else’s loss that must be compensated, then all of these represent a violation, and we should all be paying usage fees any time a movie is shown to someone other than the purchaser of the movie (multi-user licenses might be available to allow the purchaser’s household to join in watching the movie–better put the kids out of the room if you forget to pay for them).

There is no logical basis whatsoever to say when and how property has been violated in any of these cases, since what we are really dealing with is an attempt to assert control over something that cannot be controlled. We can’t fence it off, we can’t make the information come back to us or self-destruct when the terms of its usage are over. At best, the cases that result in the largest number of copies made or people entertained, such as peer-to-peer filesharing or public showings, are singled out for prosecution. What results is an unjust system that is either pratically unenforceable or requires such extreme enforcement measures that liberty is severely and pointlessly restricted.

What is most entertaining to me about this debate is that it is only in the libertarian sphere that property rights are put forth as the primary reason for IP protection. The mainstream invariably takes the utilitarian approach, deeming copyright and patent necessary for promoting the creation of inventions, art, and entertainment. The “libertarian” case for IP is hopelessly muddled and inconsistent with its actual implementation, whereas the mainstream case looks to be pretty well compatible with it, in plan if not always in actual execution.

Dan August 10, 2010 at 2:59 pm

It is not my duty to compensate them unless I buy their property from them. The right to sell the fruits of one’s labor for a set price is the cornerstone of private property, but that doesn’t mean I am forced to pay that price. If someone can provide the same service for less money then I should be free to get it from them. It isn’t my responsibility to make sure that whoever comes up with an original idea is paid for it any more than it is to make sure the poor have safety nets. My actions hurt my accountant every time I copy his procedure in doing my taxes but that doesn’t mean I am doing anything wrong by doing my own taxes. A musician might not get my money for a cd but I didn’t steal anything from him because profits aren’t property. If your business model can’t make you money then you need to do something different.

As for the utilitarian argument that ip is just because on net it benefits society, I just don’t agree. I never even see utilitarians give any evidence to support this claim. If they are going to support an idea that prevents people from using their own property how they please then it is their responsibility to prove this claim. Still even if this were shown to be the case I would not support it because it goes against the non-aggression principle.

Paul August 11, 2010 at 9:45 am

“It is not my duty to compensate them unless I buy their property from them. The right to sell the fruits of one’s labor for a set price is the cornerstone of private property, but that doesn’t mean I am forced to pay that price. If someone can provide the same service for less money then I should be free to get it from them. ”

I agree with everything you’ve said here. The problem with IP is that the second seller is providing someone ELSE’S services for less money. That is what’s fundamentally wrong here.

Dan August 13, 2010 at 7:58 pm

The service wasn’t creating the music. The service was selling a cd. Nobody forces a musician to create a song so he can put it on a cd and sell the bootleg copy. The musician creates a song in the hopes of being able to sell the service of a cd or concert. What property did the original creator lose if someone copies their music on their own cd and sells it to me? If it is just profits, who cares? Profits have nothing to do with property. If the original creator doesn’t want his stuff copied then keep it to himself. Once you put the idea, song, or whatever out there then more power to people who use it to better their lot in lives. So again where is the lost property for the original creator to cry theft?

Paul August 14, 2010 at 5:34 pm

To Dan below, since I can’t hit reply to his last post

Yes, the service is creating the music; you’re missing the entire point. What you’re proposing is that someone has the right to take someone else’s work and sell it for money, and that’s fundamentally wrong. The service is not selling the CD; if the CD was blank and had no songs on it then it would be worthless. Your competition can’t compete unless it takes the work of the artist against his will and with no compensation and THEN sells it.

Dan August 14, 2010 at 11:35 pm

What property does the original creator lose? They don’t lose their work as they still have it too. The original creator still has all his property but possibly lost out on some profits. Since he lost non of his property, wasn’t forced to provide a service for anyone, and only had his work copied, not stolen, where is the crime? You seem to believe that if someone does some work they are entitled to something. Only if someone willingly pays for your work are you due anything. The musician is still free to charge for live perfomances, to make new music, to sell their own cd’s, to make a living off his music in whatever way he can without infringing on others right. Not allowing someone to sell their own property, because you feel that you should get paid anytime someone uses a recording with your voice on it, is infringing on the rights of others. You don’t want people to copy your songs then keep them to yourself.

Peter Surda August 15, 2010 at 3:50 am

Paul, what you are proposing is something I labelled Theory of Claims on Causality. The theory is based on the assumption that if you have some sort of claim on A, and B is causally related to B, you also have a claim on B. The problem with this is that causality extends to infinity, so for the theory to be correct, you have two options:
- all externalities should be property, or
- there needs to be an explanation how to distinguish between “good” and “bad” causality

When you say “someone else’s services” or “someone else’s work”, you are using a metaphor for causality. Merely because two objects are causally related does not mean they are metaphysically the same object.

Dantiumpro August 15, 2010 at 5:08 am

- there needs to be an explanation how to distinguish between “good” and “bad” causality

Peter, I believe I already explained how one can make this distinction in my reply to your comment above:

http://blog.mises.org/13399/the-death-throes-of-pro-ip-libertarianism/#comment-711052

I believe what Paul is saying is the act of copying or using a copy isn’t the issue, it’s the act of selling it that causes harm to the originator.

He recognises there are a limited number of people who would be willing to exchange money for the information, the sale mage by the non-originator means one less sale for the originator, and that the originator has a better claim on the right to make that exchange than someone who only owns the property in which the information subsists.

Formally, the medium is a necessary condition for an exchange to take place – we agree on that – however it is not a sufficient condition. Both Paul and I have explained this with reference to the blank CD / DVD owned by the seller: it would not fetch the same price if it wasn’t for the information on it.

This needn’t give rise to a claim over the CD / DVD, only monies attributable to the demand for information contained on it. In your terms of ‘causality’, we are drawing a line on the continuous graph of causality at the point at which the information is the reason for an exchange rather than the medium itself. It isn’t an arbitrary distinction, it is a line drawn at the point where the originator is deprived of a sale.

If I use a copy of some information subsisting in my property, the originator loses nothing as they have use of their own copy; they have no claim over my use. If I give a copy away to someone, receiving nothing in exchange there is no certainty that the receiver would have otherwise paid for the information – the originator cannot successfully claim a loss.

If I sell my property and it fetches a higher prices than the same property without the originator’s information, what claim do I have on the difference in price? What is it about ‘property rights’ that means I can claim the right to interfere with the originator’s business? I have contributed nothing to the creation of the information so what right do I have to gain commercial enrichment from it?

In English law (and systems based on it) there is the concept of “Unjust enrichment” which seems to fit this particular case:

http://en.wikipedia.org/wiki/Unjust_enrichment
http://en.wikipedia.org/wiki/English_unjust_enrichment_law

It does not rely on property rights, nor is it incompatible with causality being a continuum. It is also not a utilitarian or socialist doctrine to point a finger at – it’s about being fair to individuals with competing claims.

Jay Lakner August 15, 2010 at 5:37 am

Dantiumpro,

Can you please define “monopoly” for me?

Dantiumpro August 15, 2010 at 5:59 am

I can Jay, but Google may return more authoratative sources.

Can you point to what is unfair or fallacious in what I’ve written above if you wish to undermine the argument please? ;)

Sione August 9, 2010 at 6:38 pm

Walt

That’s drawing a long, long bow! Still I reckon it’s worth a try.

“There must first exist private property for communism to exist”.

Case in point. If Marx hadn’t married the daughter of a wealthy man with plenty of private peoperty, he’d not have been able to sit around dreaming up communist ideologies. He’d not have had the time to. He’d have been too busy working. Then there’d have been no communism!

Oh dang! Hang on a minute! If he’d have been working in the Patent Office with Einstein it seems he’d have had plenty of time. Einstein was able to dream up Special Relativity, so it isn’t unreasonable to expect Marx would have been able to develop Communism sitting around there, hanging out with Einstein at the Patent Office.

Then again. Perhaps this is a good reason to be anti-IP after all. Quick, burn down the Patent Office!

Sione

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