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,

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

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.

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.

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.

“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?

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.

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?

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.

“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.

” 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.

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.”

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.

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.

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.

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…