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Source link: http://archive.mises.org/15307/objectivist-greg-perkins-on-intellectual-property-2/

Objectivist Greg Perkins on Intellectual Property

January 12, 2011 by

Back in 2006, Objectivist Greg Perkins wrote a defense of IP entitled Don’t Steal This Article!: On the Libertarian Critique of Intellectual Property. Perkins’s post was part of an attempt by Objectivists to mount a defense of IP given the mounting opposition to IP among libertarians (see The Death Throes of Pro-IP Libertarianism) and even among some Objectivists (see An Objectivist Recants on IP). ((By the way since then, other Objectivists have begun to question the Objectivist take on IP; when I delivered the speech “Intellectual Freedom and Learning versus Patent and Copyright” at the 2010 Students For Liberty Texas Regional Conference in Austin (Nov. 6, 2010) (video; audio), one young lady in the front of the audience was listening intently, with an almost tortured scowl; I wondered if the talk was going badly. At the student pizza party afterwards, she told me she was an Objectivist, and when I mentioned the expression on her face, she said she had been concentrating hard during the lecture because I was persuading her of the anti-IP position.))

I discussed his article a bit in my post Elaborations on Randian IP, but never took the time to do a detailed response. ((I’ve noted deficiencies in his or similar arguments in various publications, such as Perkins on Pursuing Insufficiently Abundant Intangible “Values”; Against Intellectual Property; Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors; Elaborations on Randian IP; An Objectivist Recants on IP; “Intellectual Property and Libertarianism” (in particular see here and the section on Libertarian Creationism); Rand on IP, Owning “Values”, and “Rearrangement Rights”; Libertarian Creationism; Inventors are Like Unto …GODS…; Intellectual Products and the Right to Private Property; New Working Paper: Machan on IP; Owning Thoughts and Labor; and Objectivists on IP; and in media, I discuss problems with Rand’s view at length on the Peter Mac show and at the Mises University this year; also The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism.)) His articles doesn’t contradict my assessment that There are No Good Arguments for Intellectual Property. Neither do the writings of Objectivist law professor Adam Mossoff, who is said to be writing a defense of IP, as mentioned in the Objectivist “Noodlefood” blog post An Objectivist Recants on IP??. (Mossoff’s recent article, How the “New GM” Can Steal from Toyota, provides no reason to think he’ll be able to come up with a solid defense of IP–the latest one is full of unjustified assumptions and flawed arguments about IP.) ((I discuss problems with Rand’s view at length on the Peter Mac show and at the Mises University; also IP: The Objectivists Strike Back!; The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism; Rand on IP, Owning “Values”, and “Rearrangement Rights”; Libertarian Creationism; Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors; Inventors are Like Unto …GODS…; Intellectual Products and the Right to Private Property; New Working Paper: Machan on IP; Owning Thoughts and Labor; also Elaborations on Randian IP; and Objectivists on IP. See also Hsieh and Mossoff on IP and Sewing Machines; Adam Mossoff in the WSJ.))

But since Perkins’s piece is held out by some Objectivists as “Easily the best modern Objectivist advocacy of IP that I’ve read” (until Mossoff works out IP’s “thorny issues” I suppose), ((See Adam Mossoff in the WSJ, in which Objectivist Diana Hsieh admits IP is a “thorny” issue.)) I thought I would make a comment on some of Perkins’s arguments, which he highlighted in An Objectivist Recants on IP??, his response to my An Objectivist Recants on IP. Writes Perkins:

The first thing to note is the plain fact that people are routinely prevented from using their material property when it would violate any right — so the protection of intellectual property rights would not be unique in so “controlling” other people in their use of their material property. For example, my neighbor’s person and property rights are not violated when he is not allowed to spontaneously whack me in the head with his fully-owned two-by-four. His rights are not violated in preventing him from using his tangible truck to pull up to my house and drive off with my entertainment center. We are all restricted from using our persons and property to violate the rights of others, and such restrictions do not themselves constitute an infringement of rights because nobody has the right to violate rights.

It is bad enough that these libertarian scholars ignore such an obvious point, but the evasion reaches full bloom in Kinsella’s explanation of the alleged “taking” caused by the appearance of intellectual property. The charge is that, as intellectual property comes into existence, liberty is lost in a magical transfer of partial ownership from the owners of material property to an author or inventor, thereby unjustly preventing them from doing something they were otherwise free to do with their own property. But in no sense is any ability, permission, or liberty lost. Recall that intellectual property rights protect the manufacture of creations — objects which did not and would not otherwise exist. Before a novel has been written, absolutely nobody has the power to publish it, so its being authored cannot remove any liberty previously enjoyed by printers. And before some better mousetrap is invented, nobody has the power to produce it — so its being invented cannot deny manufacturers any previously enjoyed freedom.

Indeed, far from losing any power or liberty, the options available to owners of material property only increase with the appearance of intellectual property: they are presented with at least the potential to use their property in the production of new, life-serving objects in collaboration with an inventor or artist.

There are so many errors here it is hard to know where to start. But let me try to note a few.

First: “We are all restricted from using our persons and property to violate the rights of others, and such restrictions do not themselves constitute an infringement of rights because nobody has the right to violate rights.” His argument here is similar to that of statists who want to justify government takings and other infringement on rights, when they argue that property rights are never “absolute” anyway; after all, “you can’t yell fire in a crowded theater.” Etc. Of course, Rothbard dispatched such “reasoning” long ago. ((See “Human Rights” As Property Rights:

“Furthermore, couching the analysis in terns of a “right to free speech” instead of property rights leads to confusion and the weakening of the very concept of rights. The most famous example is Justice Holmes’s contention that no one has the right to shout “Fire” falsely in a crowded theater, and therefore that the right to freedom of speech cannot be absolute, but must be weakened and tempered by considerations of “public policy.”3 And yet, if we analyze the problem in terms of property rights we will see that no weakening of the absoluteness of rights is necessary.4

“For, logically, the shouter is either a patron or the theater owner. If he is the theater owner, he is violating the property rights of the patrons in quiet enjoyment of the performance, for which he took their money in the first place. If he is another patron, then he is violating both the property right of the patrons to watching the performance and the property right of the owner, for he is violating the terms of his being there. For those terms surely include not violating the owner’s property by disrupting the performance he is putting on. In either case, he may be prosecuted as a violator of property rights; therefore, when we concentrate on the property rights involved, we see that the Holmes case implies no need for the law to weaken the absolute nature of rights.”)) The mistake here lies in not realizing that limitations on your violating others’ rights has nothing to do with your own property rights; you may not violate others’ property regardless of whose property or what means you use. It’s a limit on action, not on your property rights. In fact, limits on what actions you may engage in presuppose and are based on others’ having property rights. Limits on action don’t limit or undercut property rights–they presuppose property rights So this is just confused. ((See my post IP and Aggression as Limits on Property Rights: How They Differ.))

Second, in Perkins argument, he implicitly presupposes that IP just prevents you from copying other’s ideas–ideas you would not otherwise have since someone else came up with the ideas and you are just copying them. But patents DO NOT REQUIRE COPYING FOR INFRINGEMENT. ((See my comment here.)) It is completely false that patent rights do not take anything away from people that they would otherwise have had absent the innovation by the patentee. Quite often someone has already invented what you patent, or was just about to. Near-simultaneous invention is quite common, as is no surprise, since when the underlying technology (which all innovators “steal” in their attempts to build on top of it) reaches a certain point, many people working on similar problems or products using the same general level of technology will of course come up with similar innovations. In the vast majority of cases the invention would have been invented by others a few years at most after the first guy patented it. Often, someone comes up with a design solution to make a product, and never thinks to patent it; years later someone else independently invents it and patents it, and the earlier inventor can then be sued and stopped. The most common case is that engineers come up with solutions to problems to make a given product; they independently discover or create a design that works for them, but that is similar to some claims of one of the millions of patents buried in the patent office that they are totally unaware of–until they get sued 3 years later out of the blue, once they have enough sales to make it worth the while of the patentee to go after them. They never copied anything. But now they have to pay a tax–or, worse, shut down–to this state-licensed moocher. (This is why I have called for an independent inventor defense and prior user right as a minor patch to patent law.) ((See “Reducing the Cost of IP Law, text at notes 37-38; Common Misconceptions about Plagiarism and Patents: A Call for an Independent Inventor Defense.))

Further, even if I don’t invent something patented by you, I am now prevented from doing so once you have spilled the beans, much like someone spoiling the plot of a movie. This DOES take away freedom and rights I otherwise would have had: the freedom to come up with and use ideas.

Third: we do not live by permission, but by right. I don’t need to find some right-to-use-my-property-in-x-y-z way to have a right to use it this way. So what if the information about how to use my property arises after I acquire the property? Why am I restricted in using it to guide my actions and use of my own property?

Perkins’s basic reasoning is that if the law stops you from using information others came up with, you are no worse off then if they had no come up with or publicized the information in the first place. But what kind of argument is this? It’s just flat-out wrong. It doesn’t follow at all. Absent patent law many people would make their ideas public-for example if I think of a new way to make a mouse trap, then I can keep it secret; but if I want to profit off of it I might decide to sell them publicly even though I realize this will reveal the new design to the public and subject me to competition and emulation by others on the market. Absent patents, when an inventor sells his product, this imparts information to the market and to competitors and others–information they naturally have a right to use!! Of course patents take this away!! What inventors want is to have their cake and eat it too–something I thought Objectivists opposed. They want to sell their product, which requires them to reveal, well, what the product is, thus opening themselves up to emulation and competition by others; so they want to use the power of the state to let them sell it and prevent competition. What nonsense! As Benjamin Tucker said “You want your invention to yourself? Then keep it to yourself.” ((Quoted in Wendy McElroy, Copyright and Patent in Benjamin Tucker’s periodical Liberty.))

Perkins’s argument relies on simplistic “but-for causation” analysis. He seems to think that if you can show that A would not have had information X created by B “but for” B’s creating and promulgating it, then it’s okay for the state to give B a monopoly over use of information X. As I noted above, the premise is not even true, at least for patents (for copyrights, it arguably is). But even assuming the premise, the conclusion still does not follow. So what if I “would not have” knowledge of how to do x, y, and z with my property without B discovering and publishing it. What in the world is wrong with learning? I think IP libertarians and Objectivists have gone off totally the rails; where in the world did they get the notion that justice and property rights has to do with this? Justice requires we limit the use and spread of information? Justice is opposed to learning? To emulation and competition? Justice requires a criminal state to issue anticompetitive, protectionist, state grants of monopoly privilege to help make it easier for innovators to sell products free of competition? Wha’?

***

Coda: I cannot resist quoting Objectivist blowhard Mark Hubbard, who writes:

Just to demonstrate the point that these are primary aspects of reality, let me take the hypothetical scenario of Ogg the Caveman who invents the wheel. Let’s say Ed the Caveman sees Ogg’s wheel and how Ogg uses it. Being a human, he applies his powers of reason to figure out how the wheel works. He then proceeds to gather materials and fashion a wheel for himself. At the end of the day, Ogg and Ed each have their own respective wheels. None of them is any poorer. The idea of the wheel now exists in both their minds.

You don’t see the obvious, even though you state it. Ogg the Caveman who invents the wheel.

Absolutely consistent with my previous post, under this scenario Ogg truly did invent the wheel: his idea and then manufacture came before File Sharer Ed copied the product of Ogg’s mind. You’ve admitted Ogg had a discreet, original idea first, as must always be the case:

Mises understands the reality of this as well as Ayn: The ideas that change the intellectual climate of a given environment are those unheard of before. For these new ideas there is no other explanation than that there was a man from whose mind they originated. From ‘Ideas’.

And yes, after the ‘creation’ of the physical wheel there is no more any scarcity of the wheel, both Ogg and Ed could have one, and Sheila: I state this only to show your scarcity argument was only ever a straw man.

And now here’s the glory.

Imagine if they’d had proper government protecting IP: Ogg could have taken out a patent, securing the product of his mind, and then he could have set up an industry around manufacture of the wheel, and with the capital made from that, set up an R & D unit, because it would’ve possible with IP to secure property in the process/manufacture of what they went onto invent: the car, the truck, then the airplane.

The end result of Objectivist thinking about property rights. It’s like an intentional self-parodying reductio ad absurdum.

Update: A preview of Mossoff’s OList webcast on IP is below. His whole premise seems to be based on the Randian confusion that we have rights in “values” that we “create”, as if values are objective things that are created; it ignores Rand’s insight that we do not actually create new things; we just rearrange existing, owned property; by doing so, we create wealth since we or others subjectively value the rearranged thing more the thing in its original configuration.

{ 98 comments }

givejonadollar January 12, 2011 at 11:26 pm

Great piece Stephan. You nail it like always. :)

Silas Barta January 12, 2011 at 11:29 pm

Fitting, since all he has is a hammer.

sweatervest January 13, 2011 at 12:34 am

I’m convinced. Kinsella you’re outta your mind!

Dave Narby January 13, 2011 at 1:51 am

Who are you again?

Silas Barta January 12, 2011 at 11:28 pm

A little obsessive here, Stephan_Kinsella? What’s with the 5 articles/day on IP that aren’t remotely convincing except to those who already agree with you?

And you keep repeating the multiply-addressed line:

But patents DO NOT REQUIRE COPYING FOR INFRINGEMENT

Great! We heard you the first six times you pointlessly brought this up! The thing is, the people you’re actually arguing against only support patent rights that *do* require a kind of copying!

You need to argue against what people actually advocate, not just assume that any support of “patents” is support of the exact current system called “patents”. So the current patent system isn’t exactly what IP proponents want? Well, neither is the system called “private property” by the government. You still need to address what people are *actually* arguing, not just show off all your knowledge of patent law on the assumption that it must be relevant somehow. (“To a man with a hammer…”)

Seriously, why does anyone here tolerate this sloppy reasoning? Is there nothing better you can argue?

Stephan Kinsella January 13, 2011 at 12:31 am

“the people you’re actually arguing against only support patent rights that *do* require a kind of copying!”

That’s not patent rights, dude.

It’s something else, SilasRights, but you won’t specify what they are.

Moreover, even if you provide the independent inventor defense, it’s not enough. Consider that you and I have been working independently for some time on a new memory circuit. We are both getting close to some idea–say, using a type of resistor to act as a memory element. Now I figure it out on day 1; you are almost there, but I file for a patent. Just as with other cases of nearly simultaneous invention (Newton and Liebniz with the calculus, say, or James Watt and latent heat; Marconi, Lodge, Tesla and Popov and Rutherford re wireless transmission of radio signals, not to mention Trotter, Threlfall, and Crookes; the Wright Bros. and Sir George Cayley and others for the airplane; not to mention telephone, telegraph, and television), you were on the track and without a doubt would have invented it yourself in a month or two. But just as you are about to do this, I file a patent and mail you a copy–now you read it, and it spoils your ability to independently invent it yourself. So now you can’t avail yourself of the independent inventor defense. Why is this just?

Come to think of it, what in the world is wrong with learning and emulating and copying and competing?

Now a clever IP proponent would argue like this: well if so many people were close to finding this solution, it was not non-obvious; it should not have been awarded a patent. But of course bureaucratic patent offices will never be competent enough to make “the right” decisions, much less have all the information they need; further, under the non-obviousness test for patents (called “inventive step” in most other countries), an invention is NOT non-obvious just b/c several people were close to the solution at the same time–each is just making a non-obvious innovation (it’s just that the first one gets a patent).

If you want to not only provide an independent inventor defense–and a prior-use right–AND modify the criterion so that anthing that is a simultaneous invention is considered too obvious to get a patent on…. then… you’re left with almost no patent system at all. Congratulations!

Dave Narby January 13, 2011 at 2:04 am

You seem to have a problem with the concept of being “first”. As in “first to file a patent”.

Peter Surda January 13, 2011 at 7:39 am

The US patent system does not work on a first to file basis.

Crickets chirping.

Stephan Kinsella January 13, 2011 at 8:55 am

Yes, I do have a problem with it. I’m arguing arguendo.

Dave Narby January 13, 2011 at 1:55 am

I noticed that as well. Anti-IP posts here are approaching 50%!

Looks like Mises might have to change it’s stated purpose from “in support of the tradition of thought represented by Ludwig von Mises and the school of thought he enlivened” to “Providing a platform for Anarchists to destroy the IP system”.

Someone coming here the first time might well be confused!

sweatervest January 13, 2011 at 2:04 am

“I noticed that as well. Anti-IP posts here are approaching 50%!

Looks like Mises might have to change it’s stated purpose from “in support of the tradition of thought represented by Ludwig von Mises and the school of thought he enlivened” to “Providing a platform for Anarchists to destroy the IP system”.

Someone coming here the first time might well be confused!”

Hey, everybody, David Narby is pro-IP and he thinks people who are anti-IP are stupid buttheads.

Dave Narby January 13, 2011 at 2:07 am

Well done, bravo.

Who are you again?

sweatervest January 13, 2011 at 2:09 am

I answered that fifteen minutes ago in another thread. Try reading my posts.

Dave Narby January 13, 2011 at 2:19 am

Ahh, there it is! Sorry, it took me a minute to find it, since I had to ask you around ten times.

“Danny Coleman, I am a senior undergraduate studying physics at the University of Virginia.”

So Danny, are you on a roster there somewhere? Got any proof you are who you say you are?

No reason to hide now, right?

sweatervest January 13, 2011 at 2:24 am

Wow, you really are a child, aren’t you.

Go to UVa’s website and type my name in yourself. Do I have to hold your hand the whole damn time? Then again you are a child…

sweatervest January 13, 2011 at 2:25 am

“Got any proof you are who you say you are?”

You have no proof that you are actually Dave Narby. For all I know you are ghostwriting for him and linking to his website, which you could easily do.

sweatervest January 13, 2011 at 2:29 am

“Ahh, there it is! Sorry, it took me a minute to find it, since I had to ask you around ten times.”

It’s none of your goddamn business Narby! I only shared it to show everyone else here how much of an idiot you are for thinking I am Kinsella (which was probably unnecessary, they probably don’t need me to draw this conclusion).

Who goes on the internet and demand people expose their identities? You are a child! You have no argument, nothing substantial to bring to the table. Wow dude you can type “Who are you again” over and over. That just crushes everything I’ve posted here, hardly any of which you’ve actually bothered to respond to.

You have no capacity to argue. None what-so-ever.

Dave Narby January 13, 2011 at 2:42 am

You’re not helping your case that you are who you say you are.

sweatervest January 13, 2011 at 2:58 am

“You’re not helping your case that you are who you say you are.”

What the hell does that mean? What, I’m a physicist so I can’t know anything about economics or ethics?

What do you know? You are apparently a politician. In other words, you have no marketable skills. You do nothing useful for anybody. You presence is such a waste to productive society the only way you have money to buy food is because you send out goons to put guns to the heads of people that *do* have marketable skills.

So don’t tell me what I’m qualified to talk about. You aren’t qualified to talk about anything because you are part of *the* most useless demographic of mankind, the dregs of leeching crooks that get a free ride in society because people allow themselves to be institutionally robbed.

What are you qualified to talk about, Mr. Bureaucrat?

How about this, Narby? I’ve been a musician my entire life, I have an entire library of music I share for free: http://www.ilike.com/artist/Sweatervest%252FDanny+Coleman

You know why I share it for free? Cause I’m trying to get my name out, so people will associate it with solid composition, and then they’ll hire me and pay me money to write music!! It’s cause I’m trying to make money!!! No one knows about me now and I wouldn’t get crap for trying to sell CDs except making sure no one will ever hear of me.

I am one of those poor creative souls IP is out to help. I don’t want your help. I know *first-hand* how destructive it is to the creativity of a musician and the advancement of music as an art form. I know first-hand what it is like to worry that I could get sued for stumbling on someone else’s melody (I am also aware that music uses certain musical structures over and over again, and virtually any composer could make copyright infringement claims against any other composer). Some of the music I have up there is probably liable for copyright infringement, because there are covers of other people’s songs that I played myself (there’s nowhere to do it on the ilike page, but on my FB page I clearly state who composed what tracks). Great, all I wanted to do was remake video game music on real instruments, and Nintendo might burst down my door with a team of lawyers. A real, real good reason for me to not make music at all, which means less music for you to enjoy.

I am actually one of those creative people you are so worried about pampering. Guess what, it doesn’t work!! I understand not only how morally bankrupt it would be but how detrimental to my own cause it would be to restrict peoples’ access to my music. I am a musician and I want my music to be heard more than anything else. Not only that, I have thought this through enough to realize that the more it is heard, the better chance I have to become a professional musician.

So does that make me a little more accredited to talk about the effects of IP on creative people Mr. “I don’t even make an honest living?”

Dave Narby January 13, 2011 at 3:03 am

OK, Danny Colman,

So you have a bunch of music you want to give away.

Assuming it’s good, I’m going to go ahead and use that music to promote my products and myself.

I’m not going to attribute you in any way. You will get no credit. I’m going to act like it’s mine, and I produced it.

You OK with that?

sweatervest January 13, 2011 at 3:19 am

“Assuming it’s good, I’m going to go ahead and use that music to promote my products and myself.”

Great. Please, please do that. It’s free advertising for me. Most of the time people have to pay other people to spread their name. You are doing me a huge favor.

If people hear it and like it, they’ll try to figure out where it came from. If you lie about that, then I could easily come in and inform people who the real composer is without ever having to threaten you with court cases. When people find out who wrote it, they’ll go to my site and see my music. One of them may be a record producer, or the owner of a concert hall. If so, cha-ching for me.

“I’m not going to attribute you in any way. You will get no credit. I’m going to act like it’s mine, and I produced it.”

If you say you wrote it then your lie will be exposed because you cannot write music like me (what the hell do you do when someone asks you to perform one of those songs!?) and then people will wonder who actually wrote it and I will inform them (and I actually can perform them… well, some parts, studio magic ya know). Either way, more people will have heard of me this way than without your unintentional help.

“You OK with that?”

If you plagiarize me I will destroy your reputation through it. Plagiarism has nothing to do with IP, it is much more similar to libel/slander, but I don’t need a gang of police to accomplish that. All I have to do is expose the fact that you plagiarized and no one will ever trust you again (and I would delight in doing so, being as personally vicious as possible in the process). So, no I would not be “OK” with you plagiarizing me, but that doesn’t mean I can or should sue you over it. That’s not IP though. If you took my music and stuck it in an advertisement and put me in the credits (or even just told people when they start asking you “hey what’s that song in your ad?”), which would infringe on my “copyright”, I would be hard-pressed to think of a better step forward for my music career.

I would also hope that upon it being heard in your ad it started popping up in other ads too. And I would not want to burden those potential advertisers with having to come ask permission from me first.

DixieFlatline January 13, 2011 at 3:21 am

I’m ok with that Dave, because then you would be demonstrating that you don’t believe in IP, or you are a thief by your own standard. Either way, you lose.

Peter Surda January 13, 2011 at 8:15 am

Dave,

Assuming it’s good, I’m going to go ahead and use that music to promote my products and myself. I’m not going to attribute you in any way. You will get no credit. I’m going to act like it’s mine, and I produced it.

And now imagine that someone comes to you and says: that’s great music! I’ll hire you to produce me some more like it! What will you do then, Dave? Will you squirm like you do now, afraid of your lies being exposed?

And what if Danny emailed all your customers and said: “I put watermarks on the music, so anyone can verify that it was produced by me and not Dave”. Will you then run away just like you do now, pretending that this never happened?

Peter Surda January 13, 2011 at 8:19 am

Well, looks like sweatervest replied quicker and proved he’s walking the talk. Now, Dave, in order to show that you’re walking the talk too, how about you shut up, because we’re not paying you?

Phinn January 13, 2011 at 9:39 am

No one says “pwn” any more, but if they did, they would say that sweatervest pwned Dave Narby.

Dave Narby January 13, 2011 at 10:48 am

Wow, sure have a lot of people declaring victory here.

DixieFlatline, you missed the point. This has nothing do do with my feelings about IP, it has to do with Danny Colman’s (and everyone piling on here).

You all very conveniently misunderstood and ignored something:

When I said act like his music was mine, I’m not talking about plagiarizing. I’m talking about using Danny Colman’s music, FOR PROFIT, without attribution or permission.

Imagine: I am a giant corporation.

I take his music, I have professionals play and produce it so it sounds great, and then I use it to help sell my product and make a lot of money in the process.

Danny gets nothing. Not even a thank you. I make fat profits. Everybody here is absolutely OK with that?

I know you all have to in order to remain “true to your principles”, but I believe I’m detecting a bit of resentment here.

Phinn January 13, 2011 at 12:15 pm

I take his music, I have professionals play and produce it so it sounds great, and then I use it to help sell my product and make a lot of money in the process. Danny gets nothing. Not even a thank you. I make fat profits. Everybody here is absolutely OK with that?

How do you plan to make these fat profits when I, as a small, less costly corporation can do exactly the same thing?

If Danny can’t enforce an Imaginary Property right to stop you from making copies and semi-similar variations of that musical pattern, then you can’t stop me from doing it, too.

As a result, the economics of the music-production business would shift, would it not? Yes, it would shift away from a business model that is based on the squelching of the development of music that is too similar (to some ill-defined degree) to existing music, and toward things like performance and innovation.

For example, chefs and fashion designers are not granted Imaginary Property rights by our glorious rulers, so the value of their creativity is sold in the marketplace in other ways — through things like performing right there on the spot (i.e., restaurants), or by being new and cutting-edge (i.e., fashionable).

Which is how music was created and developed for all of human history, except for the weird aberration from the early 1900s until the advent of the digital age.

Dave Narby January 13, 2011 at 12:55 pm

“Phinn”,

I make those fat profits because I, as a large corporation with marketing and production power, can easily crush you on marketing and at the margin.

Also, successful fashion designers rely on trademark to promote their brands, and more to the point, you ignored my question entirely.

Don’t worry, I’m used to people ignoring my questions around here..!

sweatervest January 13, 2011 at 2:15 pm

“When I said act like his music was mine, I’m not talking about plagiarizing. I’m talking about using Danny Colman’s music, FOR PROFIT, without attribution or permission.”

Whether you make money off my ad does not negatively affect me. My name gets out whether you get money in the process or not. We’ve already addressed the “without attribution” part. Peter mentioned watermarks, which I didn’t even think of. Good suggestion!

“Imagine: I am a giant corporation.”

Then lots of people know about you and will see your ads. Good.

“I take his music, I have professionals play and produce it so it sounds great, and then I use it to help sell my product and make a lot of money in the process.”

Great. More people will like my music when played by professionals and recorded high-quality, and my name will only spread faster.

“Danny gets nothing.”

Except a buttload of a free advertising. Usually companies have to pay corporations that run media channels to get their name up there. You’re doing it for free.

“Not even a thank you.”

Guys, if I ever sue anyone for not saying thank you, put me out of my misery please.

“I make fat profits.”

Why is that a problem? If anything that just means you will expand your business, advertise more and spread my name even more.

“Everybody here is absolutely OK with that?”

I can’t speak for everyone, but yes I don’t have a problem with other people profiting. Especially since a little patience and civility will only bring me a bigger profit later.

“I know you all have to in order to remain “true to your principles””

At least we have principles.

“but I believe I’m detecting a bit of resentment here.”

You should re-calibrate your detector, then.

Dave Narby January 13, 2011 at 10:50 pm

Watermark?

Sounds an awful lot like you want to keep some sort of control over it there.

Besides which, musical watermarks don’t matter much if you just re-record it with studio musicians.

You don’t get free advertising out of this scenario, BTW. You get nothing. Call me crazy, but I don’t think you particularly care for this scenario.

sweatervest January 13, 2011 at 11:35 pm

“Watermark?

Sounds an awful lot like you want to keep some sort of control over it there.”

Yeah, in the same sense I want “control” over it by having it be an actual recording of my music and not garbled noise. I think this is stretching the meaning of “control” to near meaninglessness. I don’t need any protection by law to stick a watermark in a recording, and all that would serve to do is simplify the process of linking authorship to me. Again, this has nothing to do with IP. This functions the same no matter what IP laws exist.

“Besides which, musical watermarks don’t matter much if you just re-record it with studio musicians.”

Perhaps, but this still does not lead me to want to exercise copyright infringement. I know where you are going with this: you are going to try to beat me at the game of claiming authorship, i.e. plagiarism. But again this has nothing to do with intellectual property. You could just as easily try to plagiarize me by advertising that the site where I host music was actually written by you and I did not rightly attribute you. If you succeed at convincing people it could ruin my career, without violating any conceivable “intellectual property” law. This is patently different issue. Should there be a law, then, to protect one’s reputation? Certainly not, as it would be quite an injustice to make it illegal to lie.

The real question is why would anyone do this? Why are you expecting that people are waiting to execute this plan you have described in the absence of IP? I don’t see the incentives anywhere. I see incentives to copy my music and use it in advertising, but to go out of one’s way, hiring studio musicians and what-not (all of which cost money), to try and prove you wrote it, and for what? What would this businessman have to gain by such an attempt? I find it far, far more likely that such businessmen would instead hire me themselves to write music for his ad department. From the perspective of a businessman, would that not make far more sense?

“You don’t get free advertising out of this scenario, BTW.”

Yes I do get free advertising, your empty claim to the contrary not-with-standing. I can at least convince people in my personal life that I wrote the song in your ad (especially since many of them will have heard it from me first), and they will tell people they know who really wrote it, and so on. Either way, if you effectively convince everyone you are the author, then how in the world could IP help me? You would be in a position to use IP against me, since you have convinced everyone you are the actual author. You would be usurping my IP rights!

“Call me crazy, but I don’t think you particularly care for this scenario.”

You are crazy because you think you know what other people care for. I don’t think you understand at all that justice is not about making the world more like what you want it to be like. I mean, your basis for supporting this is utilitarianism, which is masking “I want this” as “Society wants this”, and now you’re telling me what I would be happier with!? I don’t think you understand at all that your judgments are yours and yours alone.

sweatervest January 13, 2011 at 11:58 pm

“I find it far, far more likely that such businessmen would instead hire me themselves to write music for his ad department. From the perspective of a businessman, would that not make far more sense?”

Extra emphasis on this part.

You are, as you yourself said, making a BIG PROFIT off of my authoring. Would you try to plagiarize that music, giving me a big reason to stop making music and cut off your source of BIG PROFITS, or would you offer to pay me a salary, ensuring my continued authoring and that you will get access to it before any other companies, promising you more and more BIG PROFITS in the future? Other businesses might try to do the same thing: they will compete over me (each one wants me so they can put my music in their ad before any other company does), which drives up my salary. Cha-ching.

Businessman are not hellbent on crushing creative authors, especially the ones that they need to make more money. They are probably much more willing to work cooperatively with those authors.

Jay Lakner January 14, 2011 at 2:23 am

Sweatervest has done an amazingly good job here.

Dave Narby is so used to the status quo that he is having extreme difficulties imagining the incentive structure of a world without IP. If Sweatervest’s recent posts don’t open his eyes at least a little, then I don’t know what will.

Peter Surda January 14, 2011 at 4:22 am

Sweatervest has done an amazingly good job here.

I concur.

Stephan Kinsella January 13, 2011 at 8:58 am

Peter: “Well, looks like sweatervest replied quicker and proved he’s walking the talk. Now, Dave, in order to show that you’re walking the talk too, how about you shut up, because we’re not paying you?”

Nice one.

Peter Surda January 13, 2011 at 5:54 am

Silas,

We heard you the first six times you pointlessly brought this up! The thing is, the people you’re actually arguing against only support patent rights that *do* require a kind of copying!

And we have heard exactly zero times where you explain what you propose instead. Hypocrite.

Edgaras January 13, 2011 at 9:59 am

haha :D brilliant.

Silas Barta January 12, 2011 at 11:50 pm

Don’t steal my posts (into the electronic trash bin).

james b. longacre January 13, 2011 at 1:16 am

“But patents DO NOT REQUIRE COPYING FOR INFRINGEMENT.”

when a patent infringement occurs was something copied?? or repeated?? did something have to be replicated for a patent infringement to occur??

your mousetrap my mousetrap…HFS! mine is the smae as yours an exact copy of the process!!!
is that not how a patetn infringement happens??

Edgaras January 13, 2011 at 10:01 am

there is no “exact copies” in entire physical universe, as far as I know. Every physical object is unique.

sweatervest January 13, 2011 at 2:40 am

People opposing IP post pages and pages elaborating on their theories, justifications and deductions concerning their positions.

People supporting IP ask for proof of identity of the bloggers, bring up cookies and electromagnetic fields in a discussion about the ownability of ideas, make some sort of pathetic attempt to “intellectual bully” us into accepting their position (only an idiot would oppose IP!), systematically dodge the repeated and relentless requests to present what they actually support, litter threads with little smart-ass remarks about how right they think they are, and then cap it all off by saying we’re undermining mises.org.

You can’t reason with people that don’t use reason. The only reason why I respond at all is so other people can come on here and actually read something relevant and substantial on these blogs, instead of having to sift through a bunch of space-wasting, self-serving tripe. They obviously have no interest in doing a deductive analysis, they just need to make sure we all know how stupid they think we are.

My experiences on this blog have only made me so much more sure that any concept of intellectual property is confused, vague, self-contradictory and morally bankrupt.

Jay Lakner January 13, 2011 at 5:18 am

Amen to that!

Jeffrey Tucker January 13, 2011 at 8:30 am

Stephan, this is a very interesting answer. Your point about simultaneous invention is true and it applies to copyright of course. I can’t come up with the same song as some other copyright protected song, even though I’ve never heard it. I can’t write the same rhyming couplet. I can’t tell the same story.

But a more important point is the second one, namely that markets are public and “idea theft” is inherent in the entire competitive process. Without learning of this sort, there is no competition at all. There are only a bunch of independent monopolistic producers making the same stuff over and over and facing no threat to their livelihoods from any other producer. Economic development would stagnate quickly. It would look pretty much like socialism in the real world actually.

Wildberry January 13, 2011 at 7:38 pm

Jeff,

What do you think the odds are that you would come up with the same song, the same rhyme or same story?

It has been said that given enough time, even a monkey with a typewriter could write the Encyclopedia Britannica. Do you think that happens frequently enough that this eventuality should become a centerpiece of anti-IP arguments?

Second, your treatment if “idea theft” is inconsistent with IP law, and is a misrepresentation of competition. Two bakers using the same recipe will still compete. Two authors compete for the best sellers list. Monopolies are everywhere in the competitive market.

IP laws, including patent and copyright, specifically exclude fundamental ideas or even unique ideas that have entered the public domain. The free exchange of ideas, and the dissemination of protected works are at the very foundation of IP legal objectives. It is not reasonable to ascribe to IP law that which it specifically aims to avoid.

We have IP laws now. Have you found that as a result of the past 200 years, as Kinsella likes to point out, “Economic development would stagnate quickly.” Has it?

Please, I want to be respectful, but this is hard to take seriously.

Jay Lakner January 14, 2011 at 2:40 am

“We have IP laws now. Have you found that as a result of the past 200 years, as Kinsella likes to point out, “Economic development would stagnate quickly.” Has it?”

This is terrible reasoning. The usual economic fallacy of only focusing on what is ‘seen’ and neglecting to consider what is ‘unseen’.

The question which needs to be asked is:
How much more advanced and wealthy we would all be right now if IP laws were never enacted in the first place?

If we could answer this question, a comparison to our current state of affairs may very well lead us to conclude that economic development has stagnated over the last 200 years.

In short, Wildberry’s attempt at refuting Tucker’s (a priori reasoned) conclusion with a shoddy utilitarian argument was a dramatic fail.

GoldBacon January 13, 2011 at 10:13 am

I would just like to point out that it is impossible for an Objectivist to change his position on IP; once he takes a position counter to what Ayn Rand said, he is expelled from the cult and thus no longer an Objectivist.

Edgaras January 13, 2011 at 5:47 pm

but he can be simply objectivist :)

Phinn January 13, 2011 at 1:40 pm

I didn’t ignore your question. What is it with you Imaginary Propertarians? You all claim to be martyrs if someone doesn’t treat you like we’re having tea with the Queen. I’ve never seen such a group of thin-skinned whiners.

I disagree with two of your points (the overt one and the implied one).

First, no, it’s not a problem. (I object to corporations generally as state-sponsored entities, but I will address your question as though this copying were done by a legitimate entity, or just some rich guy.) No one has the right to prevent anyone from copying others, so if your hypothetical company can make money selling its recordings, so be it. Publishers today make money printing books that have no copyright, and I have no objection to them either.

I also object to your question to the extent it fails to describe reality. Mega-corporate music publishers exist today because of copyright. Your question assumes they would still exist in a free market society, without Imaginary Property restrictions, and so my point is that you have clearly failed to consider the broader, economy-wide effects on the music business as a whole, not merely as to the relationship between Danny and your hypothetical company.

Jim January 13, 2011 at 4:10 pm

If it helps for folks like Silas, one of the first articles I ever commented on when first visiting this site was an anti-IP piece. I wasn’t sure at the time, but the more I’ve read, the more I’ve become convinced, and now will actively take an educated anti-IP stance when discussing economics with others.

I was coming at it from a completely neutral viewpoint, having not had strong opinions one way or the other about it. I’ve read dozens upon dozens of Silas’ and others pro-IP arguments, and on the balance, I do not believe trying to turn the debate onto esoteric questions of EM band frequencies is going to convince many people of your point. The anti-IP crowd makes concrete, logical, easy to understand examples to illustrate their point, while the pro-IP posters turn to increasingly tortured logic to try and make their points (such as claiming they don’t argue for the CURRENT patent / copyright system, but rather that anti-IP advocates should somehow divine their vaguely outlined “preferred” IP system and argue against that).

Jesse Forgione January 13, 2011 at 7:11 pm

Objectivists who support IP should be glad to know: They haven’t “stolen” a single idea from Ayn Rand, just her wording.

If they understood the fundamentals of her line of reasoning, they would recognize “Intellectual Property” as a Platonist “floating abstraction,” antithetical to an Aristotelian/Objectivist understanding of reality.

Of course abstractions can never be property.

But “Objectivists” who cling to whatever conclusions Rand drew, regardless of whether they can rationally defend them, or whether they’re even consistent with Rand’s more general philosophy, are already frauds on a deeper level.

R.P. McCosker January 14, 2011 at 3:22 am

“Intellectual property” is theft, plain and simple. It is government coercion commanding owners of property how they may no longer peaceably use the property which they already have (or would peaceably procure in the future).

Self-styled inventors and creators have no rational grounds for complaining that their “rights were violated” or “ideas stolen,” because there’s no moral right to restrict others in the peaceful use of their extant property (even if sold to others at a later date). Ironically, according to the U.S. Constitution, IP laws were to serve a utilitarian purpose. But nowadays writers and inventors seeking special privilege for themselves at the expense of others’ property complain bitterly that they have some fundamental moral right to an idea which they were first able to register with the federal regime.

Theft masquerading as sanctimony: But isn’t that what most of politics and government is about?

Ratbert January 14, 2011 at 5:54 pm

Wow. Prior to today I didn’t even realize there are educated people who think intellectual property rights are a bad thing.

If a musician composes a new song, that musician has exclusive rights to publish, sell and profit from his work. Copyright law ensures this.

If an author writes a new book, that author has exclusive rights to publish, sell and profit from his work. Copyright law ensures this.

If an inventor creates a new form of mousetrap, that inventor has exclusive rights to manufacture, sell, and profit from his work. Patent law ensures this.

Fundamentally, it’s all the same concept. People deserve to be fairly compensated for their creativity and ingenuity when that creativity and ingenuity benefits society. Intellectual property legislation ensures this happens.

Daniel January 14, 2011 at 6:14 pm

Congratulations, you’re a positivist!

sweatervest January 14, 2011 at 7:01 pm

“If a musician composes a new song, that musician has exclusive rights to publish, sell and profit from his work.”

You assume what you are trying to prove. You have provided no justification for having this exclusive right.

“If an author writes a new book, that author has exclusive rights to publish, sell and profit from his work.”

Ditto.

“If an inventor creates a new form of mousetrap, that inventor has exclusive rights to manufacture, sell, and profit from his work.”

Ditto.

“Fundamentally, it’s all the same concept.”

Yes, it’s all the same unjustifiable and faulty concept.

“People deserve to be fairly compensated for their creativity and ingenuity when that creativity and ingenuity benefits society.”

By this token, I deserve to be compensated by all my neighbors when I grow a beautiful garden in my back yard and raise their property values.

“Wow. Prior to today I didn’t even realize there are educated people who think intellectual property rights are a bad thing.”

You obviously haven’t put much thought into the subject and have taken it as a “given”.

Rodentbert January 14, 2011 at 7:14 pm

“You assume what you are trying to prove.”

I was just stating my opinion – how I think the world ought to be (and that just happens to be how it currently is).

“By this token, I deserve to be compensated by all my neighbors when I grow a beautiful garden in my back yard and raise their property values.”

Yes, and you are compensated by having beautiful plants to look at every day, and when you sell your house your resale value will be higher than it would have been without the garden.

“You obviously haven’t put much thought into the subject and have taken it as a “given”.”

Yes, that is correct, no argument there.

sweatervest January 14, 2011 at 7:25 pm

“I was just stating my opinion – how I think the world ought to be (and that just happens to be how it currently is).”

This is fine, but would you admit that this cannot be used as a basis to discuss what is justifiable behavior or what the economic consequences of different policies would be?

“Yes, and you are compensated by having beautiful plants to look at every day, and when you sell your house your resale value will be higher than it would have been without the garden.”

When you author a creative work you are always compensated by the fact that you can enjoy that creative work and if everyone shares it for free you would likely enjoy the knowledge that you authored a popular creative work.

Rodentbert January 14, 2011 at 8:14 pm

“This is fine, but would you admit that this cannot be used as a basis to discuss what is justifiable behavior or what the economic consequences of different policies would be?”

Well, let’s see. If we were to discuss what is justifiable behavior (within the context of IP), we might start with our opinions, then analyze those opinions and try to find reasons why our opinions are valid or not.

If I were to study the potential economic consequences of different IP policies, I suppose that could have the effect of either further cementing my current opinion, or possibly motivating me to take a different opinion.

“When you author a creative work you are always compensated by the fact that you can enjoy that creative work and if everyone shares it for free you would likely enjoy the knowledge that you authored a popular creative work.”

Yes, but I would enjoy it more if I were receiving $ for it, and knowing that nobody else was legally allowed to do so. I’m glad our country has laws in place that make it feasible for talented people to earn a living off of their creative works.

Edgaras January 15, 2011 at 1:55 pm

I would enjoy more if I could prevent others from selling food in this country and that could bring me bigger profits due to having a monopoly. Does that make it right?

What you don’t uderstand, IP is not a right, it’s a privilege. Moreover, it invades physical proeprty. Always.

sweatervest January 15, 2011 at 2:05 pm

“Yes, but I would enjoy it more if I were receiving $ for it, and knowing that nobody else was legally allowed to do so.”

Would you not enjoy it more to get compensated monetarily by your neighbors for growing a garden, i.e. you receive the increases in their property values, and nobody else would be legally allowed to do so?

A guy could buy a house next to yours, wait for you and other neighbors to spend money and time raising your property values, which raises his, and then he sells the house and makes a big fat profit off your hard work!! Is he a crook?

“I’m glad our country has laws in place that make it feasible for talented people to earn a living off of their creative works.”

Actually those laws are just obstacles for those people. In the specific case of talented people I think it is very clear that IP helps the distributors, not the authors (a small set of whom may benefit indirectly from the distributors’ profits), which is of course because IP controls the supply (and price) of copies, not talent (IP has given us the monstrous RIAA plus a handful of insanely rich rappers and pop stars, not a class of successful musicians). See further up this thread for my reinterpretation of “stealing” creative pieces as free advertisement.

In the case of patents, IP only helps the innovator if he also embarks on production because patents control production, not innovation. Encouraging them to do so works against efficient production because it confines new innovations to small, inefficient businesses and not allowing larger firms to produce based on this innovation more efficiently. Innovators don’t need to also be businessmen and when they are it is inefficient because there is a lack of division of labor.

Phinn January 14, 2011 at 11:29 pm

I was just stating my opinion – how I think the world ought to be (and that just happens to be how it currently is).

No, stating how the world OUGHT to be is not an “opinion.”

It is an assertion that there is an objectively true and correct ethical principle that REQUIRES things to be a certain way.

Stating something like, “I like things the way they are” is a statement of opinion. That’s your preference. Which is fine; we all have our preferences.

But that’s just it — we ALL have our preferences. By definition, no preference is superior to any other preference. You say, “I like the status quo of IP rules.” I say, “I don’t.” And immediately, we’re at an impasse. Neither assertion of preference has any more power or significance or moral force than the other.

So, in an effort to give your preference more power and the pretense of legitimacy, you dress up your expression of preference as though it were an ethical norm — you say, “IP rules are as they SHOULD be.”

Now, that assertion is testable, verifiable, and falsifiable. It can be proved or disproved.

(It happens to fail all tests of logical rigor, by the way, for the simple reason that property is an ethical principle concerning who gets priority when one person’s use of something interferes with another person’s use of it, or what is sometimes called “rivalry of uses.” Whenever someone makes a copy of some thing, the pattern can be infinitely reproduced without interfering with anyone’s use of any other copy, including the original. No interference of use = no rivalry of use = not property.)

Rodentbert January 15, 2011 at 1:31 pm

“No, stating how the world OUGHT to be is not an “opinion.””

Yes it is. If I say “I think the world ought to be like X”, then that is a statement of opinion.

“…No interference of use = no rivalry of use = not property.”

Here’s where you’re wrong: you’re treating intellectual property as if all the same concepts apply to it as real (or tangible) property. And they’re not the same. In some ways they are similar, but some different concepts apply. Conceptually, you can’t think of “property” as being a superset that encompasses “real property” and “intellectual property”.

In your last paragraph above, replace all occurrences of “property” with “real property”. Then it’ll be correct.

Phinn January 15, 2011 at 7:13 pm

If I say “I think the world ought to be like X”, then that is a statement of opinion.’

Fine. I think it should not.

There. Now that you have downgraded the entire field of ethics to mere opinion, that’s as far as the faculty of human reason can ever go on the subject. We might as well stop talking here, and see who’s stronger, because your preference for IP is exactly as authoritative as my preference against it. Be careful, though, I fight dirty.

See, if ethics is all a matter of mere preference, then your insistence on telling me your lousy opinion is no different than telling me I ought to prefer the same flavor ice cream that you do.

Nothing you can ever say on matters of preference will ever be better, more correct, more reasonable than any other person’s expression of preference.

But you somehow insist on telling me (and others here) that we’re somehow “wrong” to deny Imaginary Property. If that’s just your opinion, then kindly go share it with someone else.

If, however, you want to appeal to reason, and enter the world of rationality and empirical reality, then show me a damned proof. Otherwise, your opinion will be treated with exactly the quantity of respect and credence it deserves.

Edgaras January 15, 2011 at 9:17 pm

Phinn, that was great response.

james b. longacre January 15, 2011 at 6:54 pm

does physical property invade ip?

Edgaras January 15, 2011 at 9:25 pm

Either physical trumps IP, or IP trumps physical. I’d like to hear a theory of property composed of both, physical and imaginary property. I am always open to possibilities, keeping an open mind.

I hope there is no false dichotomy in my post.

Stephan Kinsella January 15, 2011 at 10:53 pm

Longacre, you keep asking incomplete, illiterate, incoherent questions. If you want a coherent response, try to formulate a coherent question.

R.P. McCosker January 14, 2011 at 10:42 pm

Ratbert wrote:

“If a musician composes a new song, that musician has exclusive rights to publish, sell and profit from his work. Copyright law ensures this.”

Well, yes, that’s what the coercion of copyright imposes on the owners of property. Are you insinuating that’s a good thing?

To repeat what I posted earlier, “IP” only has an impact by stealing from the utility of others’ property. Why do you think theft is good? Isn’t happiness and prosperity instead facilitated by the safeguarding of property rights?

Peter Surda January 15, 2011 at 5:53 am

Thank you Ratbert for restating the labour theory of value.

Peter Surda January 15, 2011 at 5:56 am

Oh and of course, please note what I observed and described earlier: IP proponents typically spend all time on justifying IP, and next to none on defining it.

Stephan Kinsella January 15, 2011 at 11:01 pm

and they actually spend little time trying to justify IP; instead, they oppose calls to abolish current IP, while saying at the same time that they are not (“necessarily”) in favor of current IP law.With the latter statement they distance themselves from obvious IP injustices, but they also preserve their nominal pro-IP stance. It’s quite impressive how disingenuous they are.

Wildberry January 14, 2011 at 6:37 pm

Ratbert,

I really don’t know what Daniel means by this, but consider it a compliment.

Boy are you in for a treat!

Rodentbert (was Ratbert) January 14, 2011 at 7:06 pm

From thefreedictionary.com:
positivist – someone who emphasizes observable facts and excludes metaphysical speculation about origins or ultimate causes

Yeah, that seems about right.

By the way, after my earlier post I realized that Ratbert is the copyrighted work of Scott Adams. Therefore I have changed my name to Rodentbert. :)

sweatervest January 14, 2011 at 7:13 pm

“positivist – someone who emphasizes observable facts and excludes metaphysical speculation about origins or ultimate causes”

No, positivism rejects a priori reasoning and proclaims that all knowledge comes from observations.

What, then, is the status of this very statement? If you are rejecting knowing things without basing it on some observation, then what observation led you to believe that there is no a priori knowledge.

For more on the self-contradictory nature of positivism and its complete failure in the social sciences, see Hoppe, The Economics and Ethics of Private Property, particularly “Part II”.

I myself would like to write a book on the failure of positivism in physics. According to positivists, Newton’s Laws of Motion are “mystical metaphysics” for they are neither “observable” nor falsifiable.

So, no, it is not a compliment.

“By the way, after my earlier post I realized that Ratbert is the copyrighted work of Scott Adams. Therefore I have changed my name to Rodentbert.”

So you must have exhaustively read through copyrights to make sure “Rodentbert” is not also copyrighted?

Rodentbert January 14, 2011 at 7:21 pm

“No, positivism rejects a priori reasoning and proclaims that all knowledge comes from observations.”

Oh, OK. Prior to today I hadn’t heard of the terms positivist or positivism.

“So you must have exhaustively read through copyrights to make sure “Rodentbert” is not also copyrighted?”

Well, Google makes no mention of a Rodentbert, so it’s probably not copywrited. Maybe I should file it with the US copyright office. :)

sweatervest January 14, 2011 at 7:31 pm

“Oh, OK. Prior to today I hadn’t heard of the terms positivist or positivism.”

Well don’t take my utter rejection of it too far. Most of the academic world is positivist, even if they don’t explicitly realize it. I think that free-dictionary definition you cited speaks to this.

“Well, Google makes no mention of a Rodentbert, so it’s probably not copywrited. Maybe I should file it with the US copyright office.”

Haha that’s how patents work, you don’t need to “file” a copyright. In fact I’m not even sure you can use copyright to prevent others from stating the name of your works (Kinsella could answer that much better) so your adherence to intellectual property does not really require you to use a different posting name. That name appearing here is not a copy of the novel in question.

AskanIPquestion January 15, 2011 at 6:49 am

To the IP-Defenders:

When is the copyright of a short text infringed?

Only by an unauthorized exact copy (each letter is copied)?
If the content of the story is reproduced?

Please define this as exact as possible!

Edgaras January 15, 2011 at 2:01 pm

they won’t, they can’t. All you can expect is some vague assertions, which tend to be forgotten after few posts.

Edgaras January 15, 2011 at 9:26 pm

Response to james b. longacre January 15, 2011 at 6:54 pm (in case my comment won’t show up)

Either physical trumps IP, or IP trumps physical. I’d like to hear a theory of property composed of both, physical and imaginary property. I am always open to possibilities, keeping an open mind.

I hope there is no false dichotomy in my post.

AskanIPquestion January 17, 2011 at 8:12 am

“I’d like to hear a theory of property composed of both”

There can only be two scenarios:

1) There are rights to certain distinctive objects
2) There are rights to patterns (information) established in all objects of a kind regardless of time and space (including objects, that do not exist at the moment)

Therefore if someone supports IP-rights then there are no OTHER property rights…

Wildberry January 17, 2011 at 2:20 pm

Edgras,

When you say physical and imaginary, do you mean tangible and intangible?

If that is what you mean, then a book has both tangible (paper, ink, letters, words) and intangible (the expressions by the author that arranges intangible ideas into complex works of expression that are fixed in a tangible medium). In copyright law, this is called an “original work or authorship”.

Property rights are a human device for acknowledging monopoly and economics rights in goods. Homesteading is one way to “capture” property, but it is not the only way. For example, property rights in the intangible can be established by contract.

Also, homesteading property only resolves conflict in a gross sense. Someone who has clear title to a piece of property may still have a conflict with his neighbor over the exact location of the boundary. There can also be conflicts over transfer of title. Very few titles in land can actually trace their legitimacy to a prior act of homesteading. So “first use” as the only legitimate method of acquiring property does not have much of a practical application, since as Peter Surda has pointed out numerous times, all physical property is already “owned”.

How it originally got “owned” in the first place does not disturb adherents to “homesteading” property ethics. I subscribe to a concept of “better title”, meaning the owner is the one who has better title than anyone else.

Like Mises, I believe that, within certain boundaries of morality and time, how property originally is established is not as important as insuring that transfer is subject to a free market. In this case, allocation of property is eventually decided by the market.

IP opponents here have trouble with the concept of property (economic rights) in the intangible. This problem vanishes when you adopt a “better title” theory of capture, and recognize that property rights in the form of exclusive economic rights can be established in the intangible as long as they are “fixed” in a tangible medium.

Phinn January 17, 2011 at 2:54 pm

Property rights are a human device …

No, they are not. Whenever one says that others “should” or “ought” to do something (or not do something), one is making an assertion of ethical principle, purportedly derived from logical reasoning. As such, ethical assertions are therefore either objectively true or they are not.

How do we know this? Look at the alternative — if one is not even purporting to make an assertion based on objectively true ethical principles and reason, then the assertion of what others should or ought to do is merely stating an expression of preference: what you are really saying is, “I want you to do X” or “I would prefer that you do X.” Which is fine, but in the event the other person doesn’t share your preferences, the only meaningful response is “I don’t.” Unlike assertions based on objective truth, expressions of subjective preference are all equivalent.

In the context of social relationships, since all expressions of preference are equivalent, then in the event such preferences are not shared by all, then the only way that one person’s social preference can be implemented is by force or the threat of force against the people with differing preferences. The most powerful person or group wins. Which, again, is fine, I suppose, but that’s not ethics.From this, we can conclude that there are only two possible modes of human social relationship — reason (by reference to objective, empirical truth, aka reality), or force. If you want to make an ethical assertion, then you must prove your assertion according to reason and empirical evidence.

You, Wildberry, are purporting to appeal to reason by merely choosing to make an argument. But then you fail to abide by the dictates of reason by pretending that rights can be this “human device” you keep mentioning, which is a nice (but disingenuous) way of saying that property rules can be written any way that some indistinct group of sufficiently-powerful people say they are.

Wildberry January 17, 2011 at 10:49 pm

Phinn,

I find myself agreeing with paragraphs 1-3.

Now, a human device does not mean there is no ethical or rational basis for assignment of property to owners. To argue for an ethics of property assignment based on homesteading” is rational. I understand the principle.

However, an ethics of “better title” is also rational, and incorporates homesteading as one possible way to capture property. It has nothing to do with might over right. It has to do with the fact that a case for better title can be made without depending solely on homesteading. It is a principle of property ethics that incorporates homesteading but is not limited to it. It is not necessary, in my view, to limit property rights to a “first use” doctrine.

As I have said numerous times, there are few examples of property ownership that can trace the original ownership to a legitimate act of homesteading. In America you would have to go back to the time of the Aleutian bridge to find an example that would qualify.

There is no reason for you to call this disingenuous. It is an alternative theory of property rights. This is not the same thing as saying they are what “some indistinct group of sufficiently-powerful people says they are.”

Bala January 17, 2011 at 11:03 pm

Just playing the devil’s advocate here. You said

” No, they are not. Whenever one says that others “should” or “ought” to do something (or not do something), one is making an assertion of ethical principle, purportedly derived from logical reasoning. As such, ethical assertions are therefore either objectively true or they are not. ”

While I agree that ethical principles are to be derived from logical reasoning, how does one ensure that the premises of that process of logical reasoning are not a matter of preference? In particular, I am not clear how you will explain that the premises of the principle “property rights” are not a matter of personal preference.

Wildberry January 17, 2011 at 11:53 pm

Bala,

I think you are correct. If property is a human device, then it is a form of consensus about what property means. It is a legal convention created for a specific purpose. That purpose can be rational and ethical.

Colin Phillips January 17, 2011 at 5:03 pm

I’m not sure I follow you, Wildberry. Are you saying that one set of property rights can be over-ruled by another set of property rights, because the case for the rights’ existence is more convincing in one circumstance than another? More convincing to whom? Do you have a proposed methodology or rationale for determining which set of rights is over-ruled? I think the concept of “better title” seems very subjective, which is fine, but it should have some logical justification.

You also said “property rights in the form of exclusive economic rights can be established in the intangible as long as they are “fixed” in a tangible medium.” Does this mean that, when I build my widget-making machine, I would own the parts I used to get it, as well as the intangible “the form in which this machine was made”, because that “way” is “fixed” in the machine? But if you had built a similar machine in a similar “way”, is your “way” fixed in your machine? If so, say that I had established my exclusive economic rights in the intangible “way” I used – why and how are these rights exclusive? How are they established, and why? Now say we both notice a similarity in our machine’s construction. Now, since you built the machine with your own labour and property, you certainly have a very strong title to the machine, at least in the libertarian view. Is the fact that the machine parts were already yours a “better title” than my claim that it is uncomfortably similar in design to my own?

The problem I have when considering this is the rapid breeding that my exclusive economic rights undergo – when you are making your machine, at what point does my rights to the way I built my machine “jump” to join the rights you established in your machine? When you first have the idea to build the machine? When you finish construction?

I suppose the other problem I have when considering this is the problem of deciding exactly what the boundaries of the intangible property I have established are. Have I fixed both this new design for widget making machines, as well as the concept of “making improvements to widget-making machines”? If I used 17 cogs in my machine, have I fixed my right in the intangible idea of using 17 cogs in a machine, or just using 17 cogs in a machine designed solely for widget-making? I just don’t see how I could meaningfully establish or evaluate these boundaries without using a unilateral declaration, and imposing it on other people.

I would need to declare: that I had built a new widget machine; that the design of it included certain design features; the design features I feel are original; the number of cogs used etc.; and then threaten everyone that anything they had built which was similar to the declaration I had made was a crime and fraud against me, and that I would be seeking damages against them.
To me, this seems the opposite of “allocation of property is eventually decided by the market”, this sounds more like forceful reallocation of property through intimidation.

I do not mean to misrepresent your views, I know that arguments regarding IP on this site get heated. I am simply trying to understand your position, and ensure that it is logically sound, and practical.

Wildberry January 17, 2011 at 11:51 pm

Collin,

“Are you saying that one set of property rights can be over-ruled by another set of property rights, because the case for the rights’ existence is more convincing in one circumstance than another?”

No not exactly. I am saying that even if property ownership in general can be clearly established by say, “first use”, conflicts may still arise. They arise at the margins; for example property lines or rights of use. These conflicts must be resolved in some way. The question is how? Homesteading cannot be employed to resolve such a dispute. In practice, they are resolve through a process of determining who has better title.

“Do you have a proposed methodology or rationale for determining which set of rights is over-ruled? I think the concept of “better title” seems very subjective, which is fine, but it should have some logical justification.”

I agree completely. The question is, what is that logical justification? Fortunately, this does not have to be re-invented. There is a long legal history in property law that is based on hundreds of years of experience with dealing with this type of conflict over property rights. The logic is there for the taking.

“You also said “property rights in the form of exclusive economic rights can be established in the intangible as long as they are “fixed” in a tangible medium.” Does this mean that, when I build my widget-making machine, I would own the parts I used to get it, as well as the intangible “the form in which this machine was made”, because that “way” is “fixed” in the machine?”

No, you are mixing up patent and trade secret concept with copyright. I was referring to copyright law only.

However, I think you are trying to express the essence of IP law. When you make a widget by assembling machines and know-how, there are both tangible and intangible elements to the process. It is not enough that you buy the machinery, or invent it, such that you can make a widget in a way an at a cost that gives you some competitive advantage. In order to accomplish this goal, you also have to apply some rational thoughts and planning. If you invented it and it is the secret that makes you competitive, then it can be granted some protection under trade secret IP law. But the protection is very limited.

If what you invent is very unique, original and useful, you may qualify for even more stringent and powerful protections under patent laws.

If it is a literary expression, as in the example I was giving, there are unique definitions and rules regarding what is a protectable work, and how disputes concerning the boundaries of this work is protected against infringement, just like there are rules in tort law about how disputes in property use are resolved.

“But if you had built a similar machine in a similar “way”, is your “way” fixed in your machine?”

Sorry, you are mixing patent with copyright. Think of a book. My concept of for the book is intangible. I outline the plot and profile the characters. This is in my head and belongs to no one. It is only when I put pen to paper that any rights in the intangible work or authorship arises. That is, when I “fix it in a tangible medium” so that others can understand (by reading) what was in my head.

“If so, say that I had established my exclusive economic rights in the intangible “way” I used – why and how are these rights exclusive?”

If I have property rights in something, I have exclusive economic rights in it. If I am the author of a book, property rights in that book means that no one else can sell my book, or copies of that book, or take the “original expression” in the book and make a movie from it. I own the exclusive right to the property called “book”.

“How are they established, and why?”

Property rights are a human device. That means that groups of humans can agree on the method of assignment of those rights, and how they will be enforced.

“ Now say we both notice a similarity in our machine’s construction. Now, since you built the machine with your own labour and property, you certainly have a very strong title to the machine, at least in the libertarian view. Is the fact that the machine parts were already yours a “better title” than my claim that it is uncomfortably similar in design to my own?”

It is hard to be consistent here, since you are drawing examples from patent and trade secret fact patterns. But think of your question as a boundary dispute between adjacent landowners. How do we decide where, exactly, the boundary “should” be? It is the same between independent designers or independent authors. The problem is to sort out who has better title to the property in dispute, and where the boundaries of that property are.

If we as a society had no methods of resolving such disputes, what would happen? Might would be right. But if we have a method of resolving such disputes without resorting to violence or the threat of violence, then that would be more “civilized”, don’t you think?

“The problem I have when considering this is the rapid breeding that my exclusive economic rights undergo – when you are making your machine, at what point does my rights to the way I built my machine “jump” to join the rights you established in your machine? When you first have the idea to build the machine? When you finish construction?”

I can only give you an answer to this if I switch to talking about patent law. Much like property law and the theory of capture, patent law as a specific way of resolving competing claims to a patent. They may not produce the most just outcome in all cases, but in principle it was first based on first invention, and now has shifted to when the patent application was filed. Copyrights arise at the time the expression is fixed. You have to be clear about what system you are talking about.

“I suppose the other problem I have when considering this is the problem of deciding exactly what the boundaries of the intangible property I have established are. Have I fixed both this new design for widget making machines, as well as the concept of “making improvements to widget-making machines”? If I used 17 cogs in my machine, have I fixed my right in the intangible idea of using 17 cogs in a machine, or just using 17 cogs in a machine designed solely for widget-making? I just don’t see how I could meaningfully establish or evaluate these boundaries without using a unilateral declaration, and imposing it on other people.”

I cannot respond to this intelligently. You need to be clear about the differences between patents and copyrights. You are confusing two different things.

“I would need to declare: that I had built a new widget machine; that the design of it included certain design features; the design features I feel are original; the number of cogs used etc.; and then threaten everyone that anything they had built which was similar to the declaration I had made was a crime and fraud against me, and that I would be seeking damages against them.

To me, this seems the opposite of “allocation of property is eventually decided by the market”, this sounds more like forceful reallocation of property through intimidation.”

Exchange in the market is based on an economic calculation; that you value what you want more than what you have. This calculation depends on a clear assignment of property rights. I there is not dispute about what you own and what I own, then we can make a rational choice about keeping what we own, or trading it for something someone else owns. This is the nature of property rights and economic calculation.

If I owned a huge estate, and sat on my butt for my life, eventually I would go broke. I would have to sell all or some of my property to survive. It is not so important how I originally acquired it, because once I own it, if I don’t do something productive with it, IO go broke and it gets transferred to someone else.

“I do not mean to misrepresent your views, I know that arguments regarding IP on this site get heated. I am simply trying to understand your position, and ensure that it is logically sound, and practical.”

That is admirable. You need to understand that IP is not a single thing, but is broken down into patents, copyright, trade secret and trade mark. Each has their own unique rules and methods. It is most helpful to pick one and explore that. I think copyright is the most straightforward and illustrates all of the points of conflict between proponents and opponents.

AskanIPquestion January 18, 2011 at 3:32 am

“For example, property rights in the intangible can be established by contract.”

Contracts only bind the involved parties. Contracts are not property.

What about inventions, creations, and so on regarding not involved parties?

What if A and B have a contract and C gets to know the information. What then?

AskanIPquestion January 18, 2011 at 3:37 am

A clarification to my question:

“What if A and B have a contract and C gets to know the information. What then?!”

What if C gets to know the information that A sold B (for example a new invention or the content of a book) without As consent?

Colin Phillips January 18, 2011 at 3:57 am

Hi Wildberry,

Thanks, I was meaning to refer to patent throughout, which I do see is at odds with your copyright example. My concerns remain, however, even if I express them poorly.

If I have written a book with very specific characteristics, what is a logical and reasonable way of determining how close a resemblance your book needs to be to mine before it is a copyright violation? In the extreme case, I could claim that one particular character in your book was similar in personality to a character in mine, or that the name of your villain’s secret underground lair was too close to that of mine, and so on. I just don’t see a fair way of judging and enforcing these copyrights.

You said ” [If] there is not dispute about what you own and what I own, then we can make a rational choice about keeping what we own, or trading it for something someone else owns. This is the nature of property rights and economic calculation.” I agree with this entirely. In the interest of reducing property disputes, then, would it not make most sense to reduce the number of potential conflicts, by dropping the idea of rights in intangible objects? It seems to me you are claiming that the book I write is two pieces of property, the physical form and the intangible. However, these two pieces of property can only ever be separated from each other by copying. I necessarily can only copy one book onto another tangible medium, such as another book (or hard drive space). But the paper and ink in the second book is already owned by someone.

In the interest of economic calculation then, does it not make more sense to consider the copy of a book as a single piece of property, the physical, which is made more or less valuable by the arrangement of the ink on the paper, for the general case? If I then want to divide up and sell the rights to that piece of property by means of contract, then that is in my power, and the risk of increased property dispute is mine to bear. However, the default position, in my view, in the absence of a specific contract to the contrary, should be to consider the actual property as a single piece of property.

Thank you for your considered response. I do not concur with your conclusions but I respect your methodology.

Wildberry January 18, 2011 at 12:26 pm

Colin,
“If I have written a book with very specific characteristics, what is a logical and reasonable way of determining how close a resemblance your book needs to be to mine before it is a copyright violation?”

I cannot go into all of the details here, but you ask a fair question. If there was no reasonable way to try a case if infringement, having a law to protect property rights wouldn’t be much use to anyone.

Let me try to summarize. Let’s say you had a book, Catcher in the Rye. Now let’s say someone writes another book and the copyright holder says it is a copy of the original. How would you determine that.

First, you would test for “substantial similarity”. Under the test first proposed by Judge Learned Hand, you could start at the highest level of generality, like “what are the two books about?” Then you could continue to break the two books down into more and more specific analysis: Say the plot, the characters, the events and the sequence in which they unfold, the dialogue, etc. As you continue to increase the specificity of the analysis, are they still similar? Obviously at some point, you could conclude that they were “substantially similar”. Later a two part test was used: Extrinsic analysis (something like the above, perhaps prepared by expert witnesses) and intrinsic analysis (would the intended audience recognize a substantial similarity?). Let’s say that the two books were very similar or even verbatim copies.

Now you would have to show that the second author copied the first author’s work. You could show that by 1) direct evidence of copying 2) circumstantial evidence of substantial similarity and access to the original work, or in some cases 3) a striking similarity in the expressions of the two works such that the only likely explanation is copying.

Next, you would have to show that it was an “unlawful appropriation”. Not all copying is an infringement; for example, I can make copies of large sections your book and hand them out in class for instructional purposes. There are other exceptions.

Finally, once infringement is proven and not otherwise excused, the defendant has an opportunity to put on a “Fair Use” defense.

If you want to understand the “reasonableness” of this approach, then as they say in medicine, when you hear hoof beats, think horses, not zebras. Think of two similar but not identical books (the example above comes from a real case which was discussed on this site sometime ago, brought by the heirs of Author Schlesinger). How would you go about showing “substantial similarity”? At what point of the analyses would you have to admit they are substantially similar? What are reasonable ways to explain that fact? That is the essence of infringement claims.

“In the extreme case, I could claim that one particular character in your book was similar in personality to a character in mine, or that the name of your villain’s secret underground lair was too close to that of mine, and so on. I just don’t see a fair way of judging and enforcing these copyrights.”

You cannot protect a single detail and you cannot protect ideas and historical facts, for example. There are cases where a character itself is protected, say Bugs Bunny. Do you think you could tell if my drawing and the famous drawings of Bugs Bunny were substantially similar? I think it would be difficult in only the most extreme cases.

“In the interest of reducing property disputes, then, would it not make most sense to reduce the number of potential conflicts, by dropping the idea of rights in intangible objects? It seems to me you are claiming that the book I write is two pieces of property, the physical form and the intangible.”

First, the objective of IP law is not to reduce conflict (although it strives to avoid litigation by making the rules as clear and unambiguous as possible, the conflicts still arise). They are to 1) provide for public access of useful works and 2) to incentivize creators of these works by granting exclusive but limited economic rights in them. This is a trade-off that the law seeks to balance.

“However, these two pieces of property can only ever be separated from each other by copying.”

I’m not sure what you mean here but let me respond this way. If you have an original book and you read it, you have received something from reading it. When someone takes their own paper and ink and copies that original work onto their own paper, what is it exactly that they have copied? Without the letters and words, arranged in a meaningful pattern of sentences, sequence, etc. (taken all together, a “work”), you would not have perceived any meaning from the process of reading. If they were not fixed on the pages of the book, there would be no way for you to understand what the author was trying to communicate to you. While they are in the author’s mind, they are intangible; meaning simply that you cannot read the author’s mind directly.

He has to “fix” what is in his mind on paper, using universally understood symbols and concepts (assume English). That is how he makes what is intangible and perceived by no one but him, tangible and capable of perception by others. In this way, you could say that the original work of authorship is comprised of both the intangible product of the authors thinking and expression, and the tangible fixation of that intangible work on the pages of a book. That book becomes something other than simply random ink spots on blank pages, but a reproduction of the intangible work produced by the author. They become integrated and tangible by the act of “fixation”.

As you know from a practical standpoint, the process of fixing one’s ideas in a book takes awhile. It is not like a tree that once germinated and nourished, grows on it’s own. Every word and every sentence must be “worked” out by the author. That work becomes protectable under copyright law when he “fixes” it on paper. It is extremely unlikely, for whatever reason you want to come up with, that two humans, even from the same moment in human history, will take a general subject, write a book about it, and simultaneously come up with something that is “substantially similar” to the work of another author. There may be some weird and marginal examples of where two people are working on a similar problem and come up with simultaneous solutions, like a mathematical proof, but that type of work is not protectable under copyright. It is very unlikely that a work of fiction would be substantially similar to another’s without some form of copying.

“I necessarily can only copy one book onto another tangible medium, such as another book (or hard drive space). But the paper and ink in the second book is already owned by someone.”

Yes, this is the basic argument of IP opponents concerning the non-scarce nature of ideas. However, ideas themselves are specifically excluded from copyright protection. Think “original work of authorship”. That is more than a simple idea. Also, property rights are not determined by the ease by which it can be reproduced. If I have two loaves of bread and you take one, I still have mine. Paper and ink can be separately owned, and in fact are, without any reference to a “work of authorship”. It is only when that paper contains the work of someone else that the issue comes up. Try copying my book without an original to work from. That is unlikely to happen. To understand this, you must acknowledge that the intangible work of the author belongs to him, and just because he fixes it on paper does not mean that it suddenly becomes yours. That is true even if the cost of copying is very low. No one is accusing you of taking my paper that the book is fixed on. It is the content of what is fixed that is at issue. That is a very important distinction that often gets unfair treatment by opponents.

“In the interest of economic calculation then, does it not make more sense to consider the copy of a book as a single piece of property, the physical, which is made more or less valuable by the arrangement of the ink on the paper, for the general case? If I then want to divide up and sell the rights to that piece of property by means of contract, then that is in my power, and the risk of increased property dispute is mine to bear. However, the default position, in my view, in the absence of a specific contract to the contrary, should be to consider the actual property as a single piece of property.”

Indeed, property rights in the intangible work can be assigned by contract. In that case, only the parties to the contract are bound. This is the problem that one has to address. In fact, this is much more common (contractual protection of rights) in trade secrets, as often an employee agrees to non-disclosure. In copyrights (and patents), you have to ask this: If intangible property can be handled by contracts, then what is preventing them being handled by law? What is the relationship between a property right in contract and one in law? The answer is the essence of property rights in the first case: The exclusive economic rights and right of use. A property owner need not enter a contract with every other person in the world in order to have rights against trespass. It applies universally to everyone with a specified jurisdiction.

“Thank you for your considered response. I do not concur with your conclusions but I respect your methodology.”

You are most welcome. Keep asking questions.

Edgaras January 17, 2011 at 7:32 pm

“For example, property rights in the intangible can be established by contract.”I agree with this part. Even though I am really very much skeptical about the contracts and try not to fully embrace them so to speak, but it is the only way some type of IP can survive in an anarchist/libertarian society.But the other part of your post appear to have big holes that Kinsella pointed out many times.

AskanIPquestion January 18, 2011 at 3:34 am

IP rights themselves cannot survive if there are only property rights and contracts.

The “problem” with contracts are always parties that are not involved in the contracts.

So either there are rights to patterns that are superior to material property rights (in fact the include and override those) or there are only material property rights.

Edgaras January 19, 2011 at 1:16 pm

This is not a problem of contracts at all, just a reality of life. That someone can aquire the “secret info” without violating anyone’s property rights. Like in simultaneous inventions and so on. But more or less, I agree with you.

Wildberry January 18, 2011 at 12:35 pm

Edgras,

Anarchism and Libertarianism are not the same thing. There are important distinctions.

Libertarians may believe in limited government. One legitimate function of limited government is creation and enforcement of laws in a fair and impartial way.

Kinsella has made a number of argument, all of which depend on some fundamental premises concerning property rights, contracts, and scarcity, and most importantly the lack of legitimacy of any form of government. For example, he once said, “We have IP because we have the State”. By State, he seems to mean ANY form of governemnt. Assuming government out of the picture is a pretty important premise, but explains why the Ancap ethics seems to strained, because it trys to make society work without any right or possibility of self-government.

So what you may be calling “holes” may be points of distinction between one argument and another. Neither is not automically “correct”. Even Kinsella’s.

Stephan Kinsella January 18, 2011 at 1:41 pm

“Kinsella has made a number of argument, all of which depend on some fundamental premises concerning property rights, contracts, and scarcity, and most importantly the lack of legitimacy of any form of government.”

Everyone has certain “premises.” Mine are at least stated, and they are clearly libertarian.

Edgaras January 19, 2011 at 1:20 pm

sure it is not the same thing, that’s why I used “/” symbol. Many people has different definitions of what these concepts, I am aware of that. I used both for the sake of convenience, like some sort of an umbrella term.

Wildberry January 18, 2011 at 4:36 pm

Stephan,

No argument there. The issue being raised is whether the premise that the non-scarcity of intangible works precludes any ethical assignment of rights to them.

Your premise eliminates that possibility, right?

My premise is that property is a human device. The ethical basis for their existence is derived from self-ownership and “better title”. It applies equally well to tangible goods and intangible works.

To you, a lawyer, it is fair to say this concept of “better title” is standard property law. It encompasses a methodology for resolving conflict at increasing levels of ambiguity at the margins of the general rule. It begins with the rule of capture. Homesteading as you define it would be one method of establishing better title. It has rarely been the way it has actually occurred in real human history, however, and most title in land cannot be traced to such an act. This does not seem to be a problem for you.

Rather than depending on “first use of unclaimed tangible resources”, title it arises from a concept of dominion and control. Ironically, this adapts well to the problem of how intangible works can result in better title in the author than anyone else.

The analysis of a specific application depends somewhat upon a specific fact pattern. Given a sufficiently specific hypothetical, or a case history, we may engage in a process of comparison and distinguishing of the results of one premise versus another in achieving what may be considered a just outcome. That is all I have ever tried to do here.

Homesteading is a general case of capturing property. It does not resolve all conflicts over property ownership. Humans require a systematic approach to resolving conflicts peacefully regarding exclusive economic rights and rights of use of property. Yes, you have a premise. There are others. I think Touchstone, for example does a brilliant job of challenging Rothbard’s premise that “all rights are negative”. That does not make her non-libertarian or irrational.

There is nothing non-libertarian about anything I have said. One fundamental premise that distinguishes your position from mine is that you deny any legitimacy for government. You call this the only consistent libertarian position. As you might imagine, I disagree. Government, as a concept, is distinguishable from that of State. They are not equivalent, and arguments which attempt to conflate them are based on equivocation of that distinction in meaning.

Your brand of libertarianism is a form of radical anarchocapitalism consistent with the writings of Rothbard and Hoppe on that subject. I get it. This system of ethics and rules, or “laws” assumes away many real-life issues of society by excluding them from your initial premise. It then attempts to construct “fixes” by inventing things which have no prior existence in modern society, like Private Defense Agencies, and the Title Transfer Theory of Contracts. It was Rothbard’s hope that a new body of law codes would be developed by the free market to fill in the details of this universal code of laws that all PDA’s would have to adopt. However, these concepts are based on the fundamental premises that government is coercive (always bad) and human will is inalienable (always). I get it.

Finally, we left off our last conversation at the point where I was asserting that you were ascribing things to IP law which it specifically seeks to avoid, and that you appeared to not be giving a fair reading of the law as it is. It had to do with the specific exclusion of ideas from copyright protection. Do you recall?

Best regards,

Shay September 13, 2011 at 2:15 pm

IP laws are extremely subjective. Take music for example. You cannot claim that a chord progression, no matter how unique, is your intellectual property. A melody, however, can be totally asinine and basic but still be considered intellectual property. Humbug.

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