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Source link: http://archive.mises.org/15363/connect-ideas-dont-protect-them/

Connect Ideas, Don’t Protect Them

January 19, 2011 by

All the things you use every day started out as good ideas. In the market economy, good ideas are built upon by better ideas. And the results are not just felt in the abstract but become very real to millions. FULL ARTICLE by Doug French

{ 89 comments }

Terry Hulsey January 19, 2011 at 10:52 am

I feel very strongly that there are serious, serious problems that must be resolved before the rejection of intellectual property becomes a part of the libertarian/anarchist canon. I have wrested an admission of these shortcomings from key intellectual rights deniers:

Stephan Kinsella: http://blog.mises.org/13399/the-death-throes-of-pro-ip-libertarianism/
Sheldon Richman: http://fee.org/articles/tgif/intellectual-property/
Kevin Carson: http://c4ss.org/content/3392
And also Robert P. Murphy admits that “if the state suddenly stopped enforcing ownership claims on intangible, nonscarce things, we can imagine all sorts of potential problems” http://mises.org/daily/4807

Is the state monopoly of grants of intellectual property a disaster? Of course it is. But until these objections, detailed in the foregoing links are cleared up, I think it would be a mistake to embrace this position without reservation.

Stephan Kinsella January 19, 2011 at 11:22 am

Terry, not sure what you mean. What “admission” did I (or others) make? Bob Murphy is right that there would be disruption and problems if the IP system were abolished. That is true of any entrenched, unjust, state system, including having a large military, chattel slavery, social security, etc. So what? That’s another argument against having such systems. When the state creates a false boom, a liquidating bust needs to happen. It’s painful but the alternative is to create exponentially more malinvestment, thus making the inevitable crash even worse.

It is clear that IP law is immoral and unjust, and incompatible with libertarian rights. The fact that ending it would reveal “malinvestment” of a sort in a type of legal “crash” does not change this. That said, recognizing that IP is unjust does not dictate the best way to get rid of it. That’s more of a practical or strategical question.

Terry Hulsey January 19, 2011 at 2:46 pm

The discussions in the links speak for themselves. “On ne dit pas la Messe deux fois pour les sourds!”

Stephan Kinsella January 19, 2011 at 6:29 pm

I don’t see it. You should probably elaborate, as your point is not obvious.

Trust me. I’m a lawyer.

Wildberry January 19, 2011 at 12:13 pm

Terry,

I have been following this discussion, especially here on Mises.org, closely. I agree with you.

It is the absolute rejection of IP and government in it’s entirety that creates these inconsistencies which are simply glossed over or assumed away in the premise.

This is an example:

“It is clear that IP law is immoral and unjust, and incompatible with libertarian rights.”

It is not clear at all, just clear to some who start with a premise that excludes any other possibilities.

Peter Surda January 19, 2011 at 12:43 pm

Wildberry,

I asked you many times to provide a coherent argument (both with regards to IP and state). Regrettably, this has not happened so far. Instead, you obfuscate the issue as much as you can and try to avoid anything that I can understand. You produce voluminous posts, whereas instead of adding, you should be reducing. Often it looks like we’re not even talking the same language.

I think I already stated my position clearly enough. The core problem I have with both IP and state is that all the arguments for them presented to me include a self-contradiction (or are too vague and contain gaps). I did not make these statements, the proponents thereof did. It is completely unrelated to the question whether I personally support or object the existence of these.

Wildberry January 19, 2011 at 12:54 pm

Peter,

This post has no content except a complaint about something which you do not identify here.

I do not intend to engage in an endless repeat of our legnthy exchanges elsewhere. They have not been productive there, and so I have no reason to expect them to be productive here.

If you have a question or objection to something I’ve said, ask it or voice it. Be clear and concise and I will do the same.

Regards,

Beefcake the Mighty January 19, 2011 at 1:14 pm

“Be clear and concise and I will do the same.”

There’s a first time for everything, I suppose.

Wildberry January 19, 2011 at 4:42 pm

Hi Beefcake,

It was a two-way challenge. I’ll try not to fail on my end.

Dave Narby January 20, 2011 at 1:46 pm

Ever wonder why Mises.org seems like an echo chamber?

Charles Hugh Smith knows why! From: http://charleshughsmith.blogspot.com/2011/01/as-public-policy-fixes-are-impossible.html

2. Pragmatism does not inspire the partisan passion that drives politics. The hate mail I receive often includes some line like “you must be a Republican”–the most hateful, vile slam the invective-spewing AC (anonymous coward) can conjure.

Or it might be “you Big Government liberals”–once again, a party-hewed cliche is the most searing condemnation the AC can find to express his venomous rage.

No wonder reasonable voices are soon shouted down, or they leave the room; the partisans demand the sort of ideological purity that simply doesn’t work in the real world, but which inspires fanatic devotion, fund-raising, etc.–the building blocks of partisan political success.

Politics has always been a mean-spirited, ugly business; now, even a whiff of politically charged policy debate will draw the ire of those seeking an outlet for their anger and frustration.

A town-hall meeting might offer up an opportunity for spewing the pressurized anger, and if not, then some blogger or writer will stand duty as the straw man/woman to demonize.

Those of you who have attended these kinds of shout-fests know how the pragmatists feel; they slip out in dismay and disgust. Who needs that kind of abuse?

Perhaps I’ll see some of you at the NYS Libertarian convention this April.

But very likely, I will not.

Adios!

Rockne January 19, 2011 at 11:09 am

Even as we read, tuna-boat captains in the central Pacific (and no doubt elsewhere) are on their radios sharing their knowledge. From Arizona, I am in daily email contact with one of them. The fishermen are in direct competition, all taking their catches to the Honolulu auction where the law of the market rules, but they find it to their advantage to cooperate in chasing the elusive schools of fish. In addition to “radio fish” they look for discontinuities in sea-surface temperature as measured daily by satellites. Satellites also measure back-scattering of radio waves from the sea surface, allowing calculation therefrom surface wind speeds and directions. From this knowlege each fisherman can choose favorable directions to lay out his 30-40 miles of line. The old days of trusting to “luck” will never return.

Capt Mike January 19, 2011 at 4:24 pm

Sounds like seagull behavior.

When one gull finds food in the water, he squawks like crazy to alert the other gulls within hearing. I always thought that this was counter-intuitive. Why share his find?
I still don’t really get it. An altruistic gene?
Gull spiritualism. Who’da thunk?

Stranger January 19, 2011 at 7:04 pm

And of course public tuna is about to go extinct from all this sharing.

Some people never learn.

Capt Mike January 19, 2011 at 7:08 pm

Yep,

The Tragedy of the Tuna.

Stephan Kinsella January 19, 2011 at 11:19 am

Wow, Doug, what a great review. I have the kindle version of Johnson’s book and have skimmed around it but not finished it yet. I need to dive back into it.

Wildberry January 19, 2011 at 12:49 pm

Doug,

I watched the TED video and read your review. It seems to me that nearly everything you say is good about sharing ideas, etc., are compatible with IP laws, in general.

And then you jump to a conclusion that “Unfortunately, governments are standing in the way of all of this potential fusing and connecting as the result of all the value in sharing ideas…”

IP laws exist, and yet all of this sharing and fusing is taking place. Are you suggesting that the DMCA has stopped this process from happening? Are you suggesting that all of the innovation you describe was not the subject of IP law, and that is why it could not happen? That doesn’t seem reasonable to me. Do I misunderstand you?

Also, as I have pointed out to Stephan and others many times, it is not reasonable to accuse IP laws of doing something which it specifically seeks to avoid. Namely, ideas are not protectable in and of themselves. In fact, this is an explicit part of the language of both patent and copyright laws.

When you use the concept of “protected ideas” to describe the subject matter of IP laws, you misrepresent that law.

Also, when Mises refers to the intangibility yet materiality of thoughts and ideas, he is referring to the rationality that precedes human action. He is not arguing against IP, and in fact offers some support of it. In any case, he observes that without IP rights, producers of it would be producing for external markets.

It is also not reasonable to accuse IP laws of preventing something that it specifically seeks to promote; one of the explicit objectives if IP law is to disseminate and provide access to writings and innovations of all kinds. To promote this objective, IP law operates to exchange limited economic rights in the works. IP laws seek to balance these competing objectives: public access and economic incentive to producers.

Of course, that does not mean that everything about current IP laws are all perfectly fine. But, what is the point of discussing changes if the entire concept is dismissed entirely?

You are not Kinsella, so I don’t expect you to be as informed of the simple truth of my statements above as Stephan clearly is. However if you are going to promote his conclusions, please be informed enough and honest enough to give the law a fair reading.

There are plenty of other things about IP laws that are worthy of debate and review. But, it is not enough that you reach an anti-IP conclusion, as Stephan suggests, but that you take that position for understandable and justifiable reasons.

The nearly uniform assumption of the conclusion against IP among the leadership of this site, including you here, prevents any realistic discussion beyond the fundamental justification for its existence.

Respectfully,

Matthew Swaringen January 19, 2011 at 2:14 pm

“It seems to me that nearly everything you say is good about sharing ideas, etc., are compatible with IP laws, in general.”
Compatible with your perception of the outcome of IP laws. Compatible with the actual outcome? I think that’s arguable, and the impetus is on your as a supporter of a method based on forcing people not to copy/etc.

“IP laws exist, and yet all of this sharing and fusing is taking place.”
Sharing and fusing take place because of the limitations of IP laws. In other words, they exist in spite of IP laws, not because of them. The fusing/sharing taking place today is largely a result of communication being much easier and information significantly easier to obtain. And again, this is despite IP laws, not because of them.

“it is not reasonable to accuse IP laws of doing something which it specifically seeks to avoid.”
IP laws wouldn’t disallow people from reusing characters or creating sequels, etc. It would not be about registration and they would not prevent independent invention by default. What IP laws seek to avoid, like all state constructs, is making enough people unhappy that they will oppose the prohibitions on their freedom.

“When you use the concept of “protected ideas” to describe the subject matter of IP laws, you misrepresent that law.”
Perhaps on copyright, not so much on patent, but the reasoning behind protection and the delineation between what is protected and what is not is very murky. I’ve asked IP supporters numerous times to provide a consistent point of delineation in different areas (books, patent, etc.) and to provide the logic behind the delineation, to this point.. I’ve received nothing except responses indicating I’m a troll for asking? Perhaps you’d care to give this a shot.

“It is also not reasonable to accuse IP laws of preventing something that it specifically seeks to promote; one of the explicit objectives if IP law is to disseminate and provide access to writings and innovations of all kinds. To promote this objective, IP law operates to exchange limited economic rights in the works. IP laws seek to balance these competing objectives: public access and economic incentive to producers.”
What? This is beyond bizarre. It sounds like you are telling everyone else that they can’t believe in the law of unintended consequences. So if the state makes a law intending something… we now have to believe that it actually accomplishes it’s intentions? That’s absurd.

I know from your posts elsewhere that you aren’t a socialist. Why do you trust the state to know how to do this properly if they can’t get managing the economy right? How does it know how much protection to do to “enhance” innovation and “help spread” ideas and information vs how much is too much? It has no meaningful way to perform this task arbitrarily… and lacking any consistent logic behind it’s point of delineation what it protects from what it doesn’t it lacks any moral grounding.

“Of course, that does not mean that everything about current IP laws are all perfectly fine. But, what is the point of discussing changes if the entire concept is dismissed entirely?”
The concept requires boundaries to say what is the concept and what it is not. You say the concept does not cover ideas, but precisely where and when is the cutoff in what it does cover?

After you define the concept, then we might discuss how you are going to possibly limit others rights to their own property in order to enforce the concept, and have this viewed as a legitimate thing to do. I suppose since you are a supporter of the state, you view the idea of taxation as a legitimate theft of property, so a legitimate limitation of property would be in support of IP… however, I’m not sure exactly how we arrive at this.

“But, it is not enough that you reach an anti-IP conclusion, as Stephan suggests, but that you take that position for understandable and justifiable reasons.”
Insofar as IP laws are currently defined and insofar as IP supporters have defined them, they clearly cover limitations on the use of others property in ways that we find objectionable. I don’t understand how this is not understandable or justifiable honestly.

To even get to the point where we could potentially agree on the concept the concept would have to be defined, and we’d also have to make the huge step that aggression is justified to limit use of property to protect IP despite the fact enforcement requires very real threats to privacy/etc to accomplish to any reasonable degree.

“The nearly uniform assumption of the conclusion against IP among the leadership of this site, including you here, prevents any realistic discussion beyond the fundamental justification for its existence.”
It doesn’t prevent anything like that. If you want to try to make that point then you are welcome to do so, but you have to explain exactly why anyone else should accept your theoretically more limited version of IP to the one that exists now.

Wildberry January 19, 2011 at 4:22 pm

Matthew,

“Compatible with your perception of the outcome of IP laws. Compatible with the actual outcome?”

Compatible with the express purpose and language of the laws themselves.

“I think that’s arguable, and the impetus is on your as a supporter of a method based on forcing people not to copy/etc.”

You tell me what you mean by force and what is being copied, and I’ll give you an argument if I think you are wrong. Any right must be enforced, or it is not a right. How do you propose to do that?

“In other words, they exist in spite of IP laws, not because of them.”

IP laws exist, and sharing of ideas exists. IP laws specifically address the objective of public access, and specifically exclude ideas from protection. So sorry, I have no idea what you mean by “in spite of them”, or what evidence you have to support this position.

“IP laws wouldn’t disallow people from reusing characters or creating sequels, etc. It would not be about registration and they would not prevent independent invention by default. What IP laws seek to avoid, like all state constructs, is making enough people unhappy that they will oppose the prohibitions on their freedom.”

Sorry, I have no idea what you mean or what you are talking about. It just seems like anti-IP and anti-government rhetoric.

“Perhaps you’d care to give this a shot.”

I have referred directly to the statutes for both patent and copyright law. I would suggest that is the authoritative source for what the law actually says and what it does not. I think you can probably search for it if you are interested, or you want to check my interpretation. I have described an ethics for property rights in IP that arises from self-ownership and a concept of “better title”. This concept incorporates homesteading, but is not limited by it. Property rights in IP fundamentally operate in the market just like any other property right. They are subject to the rules of property, contract and tort law, codified by federal patent and copyright statutes.

“It sounds like you are telling everyone else that they can’t believe in the law of unintended consequences. So if the state makes a law intending something… we now have to believe that it actually accomplishes it’s intentions? That’s absurd.”

Whether it does or doesn’t in a particular circumstance is a case that would have to be made. There is no question that few things operate perfectly. But the presence of an unintended consequence does not automatically dispense with the entire concept of limited property rights in intangible works. If you have a fact pattern you would like to discuss, bring it.

“I know from your posts elsewhere that you aren’t a socialist. Why do you trust the state to know how to do this properly if they can’t get managing the economy right?”

Whether I “trust” the “state” or not is a different issue. Regardless of who or how a right is enforced, we must first agree whether there can be such a right. We haven’t gotten past that issue. No discussion on this site that I have seen ever has.

“How does it know how much protection to do to “enhance” innovation and “help spread” ideas and information vs how much is too much? It has no meaningful way to perform this task arbitrarily… and lacking any consistent logic behind its point of delineation what it protects from what it doesn’t it lacks any moral grounding.”

By “it” you mean a court? Which by implication must mean the “State”? And no court can behave ethically or recognize moral conduct?

Also, no IP law interferes with non-infringing use of protected works, so I don’t know why you are making this point. The objective is to encourage disclosure. Once disclosed, the market deals with it in a normal way, just like any other property. Even protected works can be used in non-infringing ways which allow use, distribution, etc. Don’t claim otherwise unless you have some facts to support your position.

As I have recently posted elsewhere, there is a very specific methodology for both defining and resolving infringement disputes, and it is far from arbitrary. On the other hand, it deals with problems on the margins of the general rule. This is the nuance of the application of all laws.

There are general rules and then elaborate rules and methods for resolving more complex fact patterns. I have used a non-IP body of law, homicide, to illustrate this point. IP laws are no different, although you seem to insist there is an obvious difference.

“The concept requires boundaries to say what is the concept and what it is not.”

With all due respect, to suggest there are no boundaries is to show your ignorance of the subject matter.

“You say the concept does not cover ideas, but precisely where and when is the cutoff in what it does cover?”

How seriously to you want to know? Are you willing to study the subject a bit? If not, you have to either accept or reject what I’m saying: this is covered in great detail in the law and case history. Many cases are available for your reading pleasure that demonstrate how methodology was applied within the meaning of the law to resolve precisely what you claim does not exist. It is not reasonable to reject something that you don’t understand, but I wouldn’t want you to accept it that way either. As my southern ancestors might say, I don’t have a dog in this hunt. Believe what you want to believe.

“After you define the concept, then we might discuss how you are going to possibly limit others rights to their own property in order to enforce the concept, and have this viewed as a legitimate thing to do.”

The concept of copyright is limited property rights (meaning economic rights and rights of use) in intangible works of authorship which are fixed in a permanent medium, making them tangible and subject to the operation of the laws of contracts, property, and torts. Does that satisfy you?

“I suppose since you are a supporter of the state”

If you mean by this the “conspiracy of mercantilist interests and the political power of government”, then no. If you mean self-government that is limited by principles of individual liberty and enumerated powers, then yes.

“you view the idea of taxation as a legitimate theft of property,”

This is just rhetoric. Taxation no more theft in a general sense than making you pay for a loaf of bread is theft. Theft is the assertion of dominion and control of another’s property without consent.

“ so a legitimate limitation of property would be in support of IP”

This is a confused statement. All property use is limited in relation to the rights of others and the laws of nature. IP is no different.

“however, I’m not sure exactly how we arrive at this.”

Do you have a question?

“I don’t understand how this is not understandable or justifiable honestly.”

Do you have a question?

“To even get to the point where we could potentially agree on the concept the concept would have to be defined”

It is so well defined I honestly don’t understand what you don’t understand. Perhaps you can explain? I tried to address this above.

“…we’d also have to make the huge step that aggression is justified to limit use of property to protect IP despite the fact enforcement requires very real threats to privacy/etc to accomplish to any reasonable degree.”

How is this different than any other rights? If rights exist they must be enforced, otherwise they are not really rights. In fact, I think there is a moral obligation to defend rights, because to not do so weakens them for everyone. In addition as I’ve already said, all property use is limited in some way. That is the trade-off for living with and around other humans with rights. There are boundaries that have to be defined and defended. This is true for all rights, and all property. Why would you raise this concern about IP without extending it to property and rights in general?

“It doesn’t prevent anything like that. If you want to try to make that point then you are welcome to do so, but you have to explain exactly why anyone else should accept your theoretically more limited version of IP to the one that exists now.”

My objection is that a discussion like the one you suggest must begin from a foundation, a point of departure, such that we can agree about the facts we are discussing. In my opinion, I have yet to see a discussion or response from an IP opponent that begins with a fair reading of what the law actually says, what it does and how it operates in general.

It makes no sense to try to discuss how it operates in a marginal case of specific facts if we cannot agree how it operates in general. So, out of the hours and hours devoted to this discussion, it has never gotten beyond the definition stage. Yet articles like this one today, that assumes the purely negative claims about what IP does and how it operates, continue to be published day after day, and uninformed supporters of this position, like you, are waiting in the wings to pounce on anyone with the temerity to point out the problems.

The first step in solving a problem is defining the problem. IP is very well defined, even if you claim it is not. To keep asking for a definition is nonsensical, and any attempts to summarize what it is, as it exists, gets met with posts like yours: inaccurate, emotional and uninformed.

What do you propose I do about your ignorance of IP law?

Matthew Swaringen January 19, 2011 at 6:33 pm

“This is just rhetoric. Taxation no more theft in a general sense than making you pay for a loaf of bread is theft. Theft is the assertion of dominion and control of another’s property without consent.”

What? So the money people earn that is taxed and assets they own that are taxed against their will does not equate with “assertion of dominion and control”? Does the state’s war on drugs not “assert dominion and control” or many of the other ridiculous actions it takes, using your money and my money? You think it’s ok it does this against the will of those from whom it takes?

You pay for bread because someone else owns the bread. What is taxation based on? The government’s ownership of your person? Exactly what does the government own here? Are you saying it owns the entire country? By what merit does it have that ownership?

Please don’t tell me you believe in the social contract…

“How seriously to you want to know? Are you willing to study the subject a bit? If not, you have to either accept or reject what I’m saying: this is covered in great detail in the law and case history. Many cases are available for your reading pleasure that demonstrate how methodology was applied within the meaning of the law to resolve precisely what you claim does not exist. It is not reasonable to reject something that you don’t understand, but I wouldn’t want you to accept it that way either. As my southern ancestors might say, I don’t have a dog in this hunt. Believe what you want to believe.”

I’m aware of the “logic” that the state currently uses and it’s delineation is entirely arbitrary. I thought since you are supposedly posing as someone who wants to correct the state system that you might actually have an argument of your own. But now you tell me you don’t have a dog in this hunt.. which makes me think you shouldn’t be posting as an IP supporter since you seem to not have a clear basis for what you support.

“With all due respect, to suggest there are no boundaries is to show your ignorance of the subject matter.”
I didn’t suggest there was no boundaries. I asked what the boundaries were, and suggested that the boundaries are arbitrary and not based on any defensible logic. You haven’t even attempted to prove otherwise.

You need to define “non-infringing” and “infringing” for your points elsewhere to bring any clarity at all to what “right” you are looking to establish/support.

“As I have recently posted elsewhere, there is a very specific methodology for both defining and resolving infringement disputes, and it is far from arbitrary. ”

If the methodology is specific, you should be able to put language to it that is specific, and not so generic as to border on meaningless. You keep hinting to historical cases, but you provide no references and honestly.. I wanted to hear what you thought since you were the one writing, not to get vague notions about IP that you supposedly would like to improve in some form or fashion.

“You tell me what you mean by force and what is being copied, and I’ll give you an argument if I think you are wrong. Any right must be enforced, or it is not a right. How do you propose to do that?”
When a “right” exists, force is initiated defensively and is relatively rare as rights of that nature are easily recognized due to natural scarcity/rivalry. It’s clear when you are using aggression as you violate the person’s ability to use what is theirs.
I see no reason a proposal for rights to property outside scarce things is necessary at all.

Wildberry January 19, 2011 at 8:16 pm

Matthew:

“So the money people earn that is taxed and assets they own that are taxed against their will does not equate with “assertion of dominion and control”?”

In order to assert that taxes are “against their will” you have to assume the absence of self-government. So do you deny that in the particular contemporary instance, or do you deny consent in general because self-government is never legitimate? Once any payment is transferred, dominion and control is also transferred. That is the way property works. The issue of theft turns on consent. Are taxes NEVER collected with the consent of the taxed?

“Does the state’s war on drugs not “assert dominion and control” or many of the other ridiculous actions it takes, using your money and my money? You think it’s ok it does this against the will of those from whom it takes?”

This is anti-state rhetoric that equivocates State with self-government. If you assume self-government, you must grant consent, even grudging consent or consent by acquiescence.

If you are asking me my personal opinion, it is that the Federal Government in particular, wastes most of the money it collects in taxes and spends by fiat creation of money. War on drugs is just one example. Make them legal and prosecute drug-related misconduct severely. Remove most of the welfare support for addicts who can’t work because they are high. That might work better.

“You pay for bread because someone else owns the bread. What is taxation based on?”

Essentially, it is a fee for services. It is way out of hand, with important milestones in undesirable growth in federal government marked notably by the presidential milestones of Lincoln, Roosevelt, Johnson, and Obama.”

“The government’s ownership of your person?”

Of course not.

“ Exactly what does the government own here? Are you saying it owns the entire country? By what merit does it have that ownership?”

I don’t know exactly what this has to do with IP, but I presume it has to do with the legitimacy of government to enforce ANYTHING AT ALL. It should “own” nothing.

“Please don’t tell me you believe in the social contract…”

This is a big subject, and one that I don’t feel we should engage in here. The waters are already too muddy. However, let me say that it is a concept that has general meaning, but I have no idea and would not be hopeful that you and I could agree on terms.

“I’m aware of the “logic” that the state currently uses and it’s delineation is entirely arbitrary.”

Are you sure about that? I haven’t seen any evidence of that so far. I think you are repeating some arguments you have heard.

“ I thought since you are supposedly posing as someone who wants to correct the state system that you might actually have an argument of your own.”

I object to your use of the word “posing”; it implies some form of affectation. Why would you say that?

“But now you tell me you don’t have a dog in this hunt”

I’m saying that I am not invested in whether you agree or disagree with what I write here, or whether you disagree for reasons or just a need to belong to the society of opponents to IP. That is your business. Don’t read anything more into my comment.

“which makes me think you shouldn’t be posting as an IP supporter since you seem to not have a clear basis for what you support.”

As I have said elsewhere, I am arguing for a position in support of IP. My personal opinions are not that important, nor do I have to declare in advance that I can never change my mind. I have asserted as a foundation for this discussion that the law as it exists should be given a fair reading, and not be subjected to assertions and inventions of those who want to conclude it has no positive or ethical purpose. If you want to make that case, it is only reasonable to proceed from a fair understanding of what the law is and how it operates.

For example, how many times have you seen on this site that “IP law creates scarcity where none exists because ideas are not scarce”? How do you reconcile that position with the fact that the law specifically says that ideas are not protectable, either under copyright or patent law? Don’t’ you think that is important?

“I didn’t suggest there was no boundaries. I asked what the boundaries were, and suggested that the boundaries are arbitrary and not based on any defensible logic.”

Why are you suggesting that? Do you have some reason for holding that belief? On the other hand, I have stated various times and places that the law has very specific rules and methods for making distinctions between what is protectable and what is not, what is copying and what is not, what unlawful appropriation is and what it is not. Stephan knows full well what I’m referring to, but according to him, it is not important why you oppose IP, just that you do. You only have to know something about the law if you support IP, but not if you oppose it. As a result, he allows people like you and others to misrepresent what the law actually says and does as long as you hold an anti-IP position. What is the proper response that that, do you think?

“You haven’t even attempted to prove otherwise.”

Sorry, that’s just not the case. If you are asking me a question that I can answer here without referring to the statute itself, what is it? Otherwise, if you are going to make a demand like that, but refuse to acknowledge the authoritative source on the subject, the law itself, then what would you have me do?

“You need to define “non-infringing” and “infringing” for your points elsewhere to bring any clarity at all to what “right” you are looking to establish/support.”

Before you can deal with infringement, you must understand the rights themselves and what is protectable. I think copyrights are the best example to use to explore the issue, so I like to stick to that. If you switch to patents, or try to get too specific while referring only to IP, then things get confusing in a hurry.

“If the methodology is specific, you should be able to put language to it that is specific, and not so generic as to border on meaningless. You keep hinting to historical cases, but you provide no references and honestly.. I wanted to hear what you thought since you were the one writing, not to get vague notions about IP that you supposedly would like to improve in some form or fashion.”

If you wanted to take a specific set of facts and talk it through so you could see how it actually works, I guess I’m game. Quite honestly, I never expected that this conversation about IP would get so bogged down on fundamental issues. But when you have Kinsella, Tucker, and now French all misrepresenting things all over the place, when Kinsella of all people should and does know better, and then all of the blind supporters like you, apparently, it’s like facing a tag team and it gets exhausting. But I’m trying to be fair and honest about what I’m saying here, and I could use a little support in establishing a process for sorting this out. As you know, this debate has been circling the drain now for months, maybe years.

“When a “right” exists, force is initiated defensively and is relatively rare as rights of that nature are easily recognized due to natural scarcity/rivalry.”

Believe it or not, I understand this and agree. This works great when you are talking about apples. But the world of a modern, technological society is more complex than this simple and general case. How about when the tree is planted exactly on the property line? Can every apple be unambiguously resolved as belonging to one property owner over another by employing a homesteading rule? Of course not. You can either acknowledge that or not. If you cannot, then you are simply assuming away this problem. If you can, then you have to acknowledge that you have to draw the line somewhere, ultimately. It is not a precise science that works in every single fact pattern that could arise. But it generally arrives at a consistently just result, even if you disagree on the specifics of a particular case.

“It’s clear when you are using aggression as you violate the person’s ability to use what is theirs.”

It is not as clear as you seem to think. Homicide is clearly wrong, except self defense is excusable homicide. Do you think the distinction between one and the other is always precisely obvious in every conceivable case. How are you going to resolve that problem? How much arbitrariness will you accept as “just”? If there is any arbitrariness in the method, does that mean there is no methodology at all?

“I see no reason a proposal for rights to property outside scarce things is necessary at all.”

Of course you don’t. That is obvious. Here is something to think about in what you are saying: Copyright is not about scarcity, it is about intangible works of authorship. It establishes economic rights in intangible property that is fixed in tangible goods. Like property, it is an exclusive right of use. All exclusive rights under copyright law arise only if and when there is a fixation in tangible (i.e. scarce) medium. Do you believe in the existence of the intangible? That is one place to start.

Matthew Swaringen January 19, 2011 at 10:10 pm

“In order to assert that taxes are “against their will” you have to assume the absence of self-government. So do you deny that in the particular contemporary instance, or do you deny consent in general because self-government is never legitimate? Once any payment is transferred, dominion and control is also transferred. That is the way property works. The issue of theft turns on consent. Are taxes NEVER collected with the consent of the taxed?”

I didn’t say that, I said that they are collected without the consent of the taxed, which is not the same as saying they are never taken with consent of the taxed.

I think you are calling “self-government” democracy, or perhaps representative republic. If this is not what you mean, please clarify. If it is what you mean, I think you imagine “collective consent” and I totally find that view anathema to libertarianism.

I’ll follow the view of limited government as a “necessary evil” which some minarchists are happy to accept but social contract theory is self-contradictory and I don’t accept it at all.

“Stephan knows full well what I’m referring to, but according to him, it is not important why you oppose IP, just that you do.”
I know what you are referring to as well, I’m not entirely ignorant of what is allowed and what is not allowed within the current IP regime. What I lack is a sense of what the meaning behind the distinctions is.

Let me be as clear as I can be by just using literature as an example.
1) Authors can copyright words down to the chapter level, but not generally to the paragraph level which falls under “fair use”
2) Authors own the essence of characters that they write about. Others can write about a similar character with a different name, but if they use the “same” character (even though this concept in itself is crazy, since perceptions of individuals are much different) they are violating copyright unless it’s with permission.
3) Authors own the setting of the story they write in to some extent. So you can’t make a “Lord of the Rings” sequel without the rights. (Trademark is part of the reason for this, but even if the name was not trademarked you can’t just up and write an LOTR novel).

If an IP supporter wants to say that someone should not publish the book verbatim without permission, must they also agree with allowing authors rights over characters and setting as well? And what about summaries, where someone edits the book down to a smaller size? Or translations?

Current law disallows all of this, yet it lets this “fair use” exemption exist for relatively small quantities of text, and “parody.”

All of this is arbitrary because the rules are just things that are defined to suit different interest groups. Academics need to be able to cite the work, so they allow small quantities of text, and because people like comedy and much of it is parody they allow it. But logically, there is no reason to stop there and not to allow sequels and other derivative works.

But I admit, this would not be good enough for me. Because I don’t find the initial argument that “ownership” is on the same basis as physical property reasonable. Additionally, from a utilitarian perspective I don’t think prevention of any kind of copying is cost effective in the long run. You could argue prior to the internet, but you have no argument on this in a post internet era unless you seek to regularly invade privacy to enforce “rights” when you don’t even know they have been violated.

Having said all of that, please let me know what you believe on literature. Where do you think the line is reasonable to draw, and moreover.. why do you think these rights are either 1) “property rights” that are similar to the ownership of scarce things or 2) necessary from a utilitarian perspective. I’m asking because I’m interested in exactly why you want to support IP, and I have to imagine you have some kind of position on this but I’m still not exactly clear on it since you are still being very vague by referring to what Stephan knows.

“How do you reconcile that position with the fact that the law specifically says that ideas are not protectable, either under copyright or patent law? Don’t’ you think that is important?”
I don’t think it’s an important distinction because both ideas an “books” are intangibles. Books (absent the physical paper/etc) are merely a collection of ideas. I don’t distinguish between “an idea” and “many ideas together in the same place” when the laws of nature apply similarly to both, by which I mean logic like that of the old Jefferson quote applies to both:
“He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.”

You may view this as a conflation or an attempt to be deceptive but that’s not what it is. It’s a totally different way of viewing the subject, which makes sense if you delineate what can be property into the 2 categories: 1) that which is scarce/rivalrous and 2) that which is not scarce.

“Do you think the distinction between one and the other is always precisely obvious in every conceivable case.”
It may not be, but I would only accept arbitrary distinction if I believed the alternative to be untenable. I obviously don’t think that’s the case, or I’d follow the utilitarian thinking on IP.

Wildberry January 20, 2011 at 12:01 pm

Matthew,

As much as I would like to spar with you on theories of government, I’ll stick to IP.

“1) Authors can copyright words down to the chapter level, but not generally to the paragraph level which falls under “fair use””

This is not how it works at all. There is no special meaning given to chapters or paragraphs in establishing what are protectable. Copyright law works from a concept of “original expression”. And the Fair Use defense doesn’t refer to that either; it deals with a use of protected works that are not infringement. It only applies once the case has been made that the use would be otherwise infringing.

“2) Authors own the essence of characters that they write about. Others can write about a similar character with a different name, but if they use the “same” character (even though this concept in itself is crazy, since perceptions of individuals are much different) they are violating copyright unless it’s with permission.”

What makes them the “same” or “different” is an important issue, and which requires some careful analysis. The legal standard is “substantially similar”, which sounds vaguer than it actually is.

“3) Authors own the setting of the story they write in to some extent. So you can’t make a “Lord of the Rings” sequel without the rights. (Trademark is part of the reason for this, but even if the name was not trademarked you can’t just up and write an LOTR novel).”

Yes, this is an adaption or derivative work. It has nothing to do with trademark, which speaks to the identifying the origin or source of a good or service. The copyright owner has exclusive rights to adaption for the term of the copyright.

“If an IP supporter wants to say that someone should not publish the book verbatim without permission, must they also agree with allowing authors rights over characters and setting as well? And what about summaries, where someone edits the book down to a smaller size? Or translations?”

These are examples of derivative works. The more you copy, the more likely it will be found to be derivative. The legal standards are “substantially similar + access” or “strikingly similar” where access is not required to be proven.

“Current law disallows all of this, yet it lets this “fair use” exemption exist for relatively small quantities of text, and “parody.”

“All of this is arbitrary because the rules are just things that are defined to suit different interest groups. “

Do you mean absolutely arbitrary, or somewhat arbitrary, or arbitrary in some cases?

“Academics need to be able to cite the work, so they allow small quantities of text, and because people like comedy and much of it is parody they allow it. But logically, there is no reason to stop there and not to allow sequels and other derivative works.”

You are wrong about this. There is a meaningful distinction based of the economic rights and whether use interferes with the owner’s potential markets. Of the factors, this is a big one.

“Because I don’t find the initial argument that “ownership” is on the same basis as physical property reasonable.”

Then what is your purpose for bringing up distinctions in the application of the law if you deny the fundamental premise of any legitimacy in the first place? Also, it is not equivalent to other forms of property rights. They are not absolute and they are not perpetual. They are limited in scope and duration.

“Additionally, from a utilitarian perspective I don’t think prevention of any kind of copying is cost effective in the long run.”

Cost effective for whom? If an author writes a book and no one infringes on it because they understand his rights in it, that seems very cost-effective. Don’t you agree?

“You could argue prior to the internet, but you have no argument on this in a post internet era unless you seek to regularly invade privacy to enforce “rights” when you don’t even know they have been violated.”

I’m not sure what you mean, but if you don’t know about infringement, you cannot bring a claim. I think this happens all the time. That is an issue or morality, failing all else.

“why do you think these rights are either 1) “property rights” that are similar to the ownership of scarce things or 2) necessary from a utilitarian perspective. I’m asking because I’m interested in exactly why you want to support IP, and I have to imagine you have some kind of position on this but I’m still not exactly clear on it since you are still being very vague by referring to what Stephan knows.”

1) they are legitimate property rights because a) all property rights are a human device, and IP is no different. A social/legal convention is a legitimate basis for assigning them. This concept is represented by the concept of “better title”. b) better title to original works of authorship clearly belong to the author, and are derived from the right of self-ownership. These rights are not destroyed by the act of copying, even if copying is very cheap c) they can only be treated by the law when fixed in a tangible medium, which is convenient for working out what is and is not the “intangible works of original authorship”. In this way, the subject of the property rights can be examined and analyzed in detail.
2) Having clear definitions of property rights (economic and use) and producing for internal markets are both necessary for a free market to function smoothly. Also, there is an important policy tradeoff between encouraging public disclosure and dissemination of useful works, and making sure this disclosure does not intervene in free market operations such that the author looses his economic rights if he discloses his work.

“I don’t think it’s an important distinction because both ideas an “books” are intangibles.”

I asked you in the last post if you believed in the existence of intangibles. You have not given a clear answer. I apears you do, but you give them little weight as a factor in economics. Is that correct?

“Books (absent the physical paper/etc) are merely a collection of ideas.”

Agreed. What is a book not absent physical paper/etc?

“I don’t distinguish between “an idea” and “many ideas together in the same place” when the laws of nature apply similarly to both, by which I mean logic like that of the old Jefferson quote applies to both:

OK, well you are missing an important distinction that can be easily demonstrated. When you think of Jefferson’s quote, what example comes to mind? Give me an example of an idea that operates that way.

Now think of a book that you have copied? Is it really possible to pass that entire book from one person to another without making a physical copy? No likely unless you are talking about extraordinary capabilities of human recall. But it is possible for people to discuss some of the ideas in a book. There is nothing in copyright law that prevents this, in fact it is designed to encourage this type of exchange through access to them, and that new books are always becoming an addition to markets for ideas.

How do you deal with that?

“You may view this as a conflation or an attempt to be deceptive but that’s not what it is. It’s a totally different way of viewing the subject, which makes sense if you delineate what can be property into the 2 categories: 1) that which is scarce/rivalrous and 2) that which is not scarce.”

I am very familiar with this reasoning, and it merely assumes the conclusion that property rights cannot arise for intangible works. I get it, but it contributes nothing to the discussion of IP. It merely cuts of the discussion at the outset.

“It may not be, but I would only accept arbitrary distinction if I believed the alternative to be untenable.”

What do you mean by “arbitrary distinction”? What level of arbitrariness do you accept? If the answer is none, you are not being honest with yourself.

Matthew Swaringen January 20, 2011 at 7:17 pm

Wildberry, I don’t know what you mean by “existence of intangibles.” If you are saying whether or not I think ideas (or collections of ideas) affect how people act in the real world, I’d say yes. If you are asking if they are like a physical thing in terms of scarcity or usage I’d say no.

When you say “little weight” I’d have to disagree. The nature of people is to think, and the nature of people is to come up with new ideas that enhance production/etc. The reason humanity is capable of more than any other animal is due in no small part to our ability to communicate and come up with ideas.

So I wouldn’t say they have little weight at all.

“What do you mean by “arbitrary distinction”? What level of arbitrariness do you accept? If the answer is none, you are not being honest with yourself.”

I was saying that I’m only ok with arbitrary insofar as logical delineation is unworkable. If you care to provide an example where you think arbitrary is a necessity I can say what I think, but I am not thinking of anything like this off the top of my head where it matters ethically.

Now if you are asking about “how do you rate the appearance of attractive women” or “how do you rate video games” I’d agree that it is very arbitrary and subjective.

“Is it really possible to pass that entire book from one person to another without making a physical copy? ”

Yes, we have these cool things called computers now? Or are you referring to storage on any physical media (hard drive, ram, etc.) as “physical copy” and if you are, I’d point out that even the human brain is physical, and storage within the brain is at some point physical as well even if not in the manner of magnetic or optical storage devices. So if we ever come to have memory-enhancement devices should those be made illegal to protect copyright? How dare you vividly remember that movie you watched!

“And the Fair Use defense doesn’t refer to that either; it deals with a use of protected works that are not infringement. It only applies once the case has been made that the use would be otherwise infringing.”
Once again you have to define “not infringement” for this statement to have any meaning. What I gave is my current understanding of what counts as “not infringing.” Are you saying that small quantities of text such as paragraphs are something one cannot copy with citations? Or are you saying my definition is too narrow and you have something else specific that is “not infringement” other than what I mentioned.

“You are wrong about this. There is a meaningful distinction based of the economic rights and whether use interferes with the owner’s potential markets. Of the factors, this is a big one.”
So say you, but I am unconvinced of your utilitarianism since you have zero evidence to support the claim that it is economically important not to interfere with “owners” potential markets.

“Then what is your purpose for bringing up distinctions in the application of the law if you deny the fundamental premise of any legitimacy in the first place?”
The purpose was to find out more specifics of what about IP law you were advocating. I learned some things, such as you think authors rights absolutely depend on preventing others from writing sequels or other derivative works and that you basically tow the line. So I suppose it accomplished what I was looking for.

But you are still unfortunately presenting conclusions without evidence or reasoning to support those conclusions.

The discussion about whether IP exists as property is largely axiomatic. If you believe in it you believe in it. Some would say the same of physical property, and others would start to argue against this by pointing out the idea of self-ownership or what not. Personally I’m not fully convinced of reducing everything to self-ownership, but I think property is not axiomatic because there is clear conflict over scarce resource which would end in violence if not for property rights and the respect of those rights.

With IP this is not so. It is entirely possible to non-violently reject IP, because there is no scarcity and thus no necessity of conflict.

Wildberry January 20, 2011 at 8:20 pm

Matthew,

“I don’t know what you mean by “existence of intangibles.”

I’m just asking if you think something can exist even if you can’t perceive it directly. It seems you do. If they were like physical things, some of which are tangible, they wouldn’t be tangible, right? Some physical things are not tangible because they are beyond the perception by our sense organs.

So, intangibles are not limited to simple ideas? There can be a large number and combinations of intangibles? They can be complex stories, like a work of fiction, or very simple and basic, like “a hot day”.

“The reason humanity is capable of more than any other animal is due in no small part to our ability to communicate and come up with ideas.”

I like this and agree.

“If you care to provide an example where you think arbitrary is a necessity I can say what I think”.

The law says homicide is wrong. It also says self –defense is not. Imagine various facts that make the distinction between them harder and harder to determine. Given a complex set of conflicting claims, the jury has to decide one way or the other. There is going to be a certain amount of arbitrariness in the final decision. It will be based on the facts on one hand, and an understanding of the rules of law on the other, and how each juror “feels”, that is the weight and importance they place on each piece of evidence. In the final hour, they take everything together and decide. The logic may not be completely obvious, but it still can be just. In this sense, it is somewhat arbitrary.

This situation is common in all areas of the law. The devil is in the details. At some level of detail, the final decision has an element of arbitrariness. However the entire process is not arbitrary, but strongly logical.

“Now if you are asking about “how do you rate the appearance of attractive women” or “how do you rate video games” I’d agree that it is very arbitrary and subjective.”

Agree. How about “are these two books substantially similar”?

“Is it really possible to pass that entire book from one person to another without making a physical copy? ”

“How dare you vividly remember that movie you watched!”

I said from one person to another. So you watch a movie and you want to share that experience with someone else. Do you watch the movie, or do they pluck it out of your memory, or what?

“Are you saying that small quantities of text such as paragraphs are something one cannot copy with citations? Or are you saying my definition is too narrow and you have something else specific that is “not infringement” other than what I mentioned.”

What I’m saying is that you are asking me to recite laws that are very explicit about the things you are asking about. Would you ask me about astronomy and expect me to recreate a textbook for you here? The laws themselves are available to all. I am pointing you to them as an answer to your question. If you want to learn, you have to put some effort into it too.

“So say you, but I am unconvinced of your utilitarianism since you have zero evidence to support the claim that it is economically important not to interfere with “owners” potential markets.”

Well, I can only point you in a direction. If I write a book, and you take my book and make a movie from it before I do, you think that is ethical? The book is my work, not yours. Write your own book and your own movie. Ideas are non-scarce, remember? Just don’t take my work and try be a free-rider. That makes me your slave.

“The discussion about whether IP exists as property is largely axiomatic. If you believe in it you believe in it. Some would say the same of physical property, and others would start to argue against this by pointing out the idea of self-ownership or what not. Personally I’m not fully convinced of reducing everything to self-ownership, but I think property is not axiomatic because there is clear conflict over scarce resource which would end in violence if not for property rights and the respect of those rights.”

This is very smart comment. Property is a human device and serves the purposes you mention. This applies to all rights and all property. Why do you make a distinction that excludes intangible works by definition?

“With IP this is not so. It is entirely possible to non-violently reject IP, because there is no scarcity and thus no necessity of conflict.”

This is obviously nonsense. First, there is often conflict over scarce resources. Second, what is a non-violent rejection if IP? Misappropriation is an act of aggression.

Peter Surda January 21, 2011 at 5:16 am

Wildberry,

kindly apologies for my insistence on interjecting, but this is crucial:

First, there is often conflict over scarce resources.

I suspect that this is a typo and you mean that “there is often conflict over non-scarce resources” (otherwise the comment would make no sense). However, a conflict over non-scarce resources not only unnecessary, it is impossible. I define scarcity as the existence of mutually exclusive states and conversely non-scarcity as the absence of mutually exclusive states. Yet again, we have arrived at the problem of what you call reciprocity and I opportunity costs. Only because a good can have mutually exclusive states, people can object to some of these states, because they make others unavailable.

What IP proponents do is that they interpret some states of physical goods (e.g. brains, clay, paper, ink, electric charges, orientation of metal atoms on a disc plate etc.) as other, non-scarce goods. Because these physical goods cannot be simultaneously in two states (having the “idea” “expressed” on themselves and not having the “idea” “expressed” on themselves), there is a conflict. To interpret a conflict in physical goods as a conflict of ideas can be useful from social point of view, but from economic point of view, especially those of property rights, it’s misleading.

Wildberry January 21, 2011 at 10:55 am

Peter,

I said I wouldn’t quit on you, so I’m always happy to welcome your comments.

“I suspect that this is a typo”

No, it is not a typo. Land is a scarce resource. Its boundaries are represented by monuments and maps. Adjacent property owners may dispute this boundary. That is a conflict over a scarce resource, yes?

“Only because a good can have mutually exclusive states, people can object to some of these states, because they make others unavailable.”

This is all fine with me. You could restate my “conflict” in these terms, I suppose. Both parties cannot have the boundary line where they want it. Someone has to “win”, right? There has to be a method of resolving this kind of conflict peacefully, right?

“What IP proponents do is that they interpret some states of physical goods (e.g. brains, clay, paper, ink, electric charges, orientation of metal atoms on a disc plate etc.) as other, non-scarce goods.”This is not accurate. Brains are not non-scarce goods. Sometimes I wish I had a better one, but this is the only one I can have.

No one I’ve read here, and certainly I have never claimed that brains are non-scarce. That goes for clay, paper, ink, and electric charges, and all the rest. So back up and take another run.

“Because these physical goods cannot be simultaneously in two states (having the “idea” “expressed” on themselves and not having the “idea” “expressed” on themselves), there is a conflict.”

Do you see how this screws you up? “Idea” is not equal to “brain”. Ideas are intangible.

“To interpret a conflict in physical goods as a conflict of ideas”See? Where does this come from? You are inventing this concept, which by the way I cannot interpret.

“can be useful from social point of view, but from economic point of view, especially those of property rights, it’s misleading.”

I can see no way, based on what you or I have said here or elsewhere, to reach this conclusion. I can only surmise you arrive here through the magic of the following statement:

“What IP proponents do is that they interpret some states of physical goods (e.g. brains, clay, paper, ink, electric charges, orientation of metal atoms on a disc plate etc.) as other, non-scarce goods.”

Whatever do you mean by this…???

Gurrie January 19, 2011 at 2:29 pm

Wildberry,I agree with you and I appreciate your thoughtful analysis. While there are several possible arguments against the idea of governmentally protected intellectual property, free transfer of ideas is not one of them. Free transfer of ideas can of course sometimes cause good things to happen, but one might easily advance the same rationale about personal property or real property. Is this not the basic premise of socialism — that there will be greater good if people are not allowed to have private property and must share their property with all?The basic principle of liberty depends upon the idea of private property, and one of the proper functions of government is to respect and defend private property. If there are good reasons to limit the definition of private property to material possessions only, then anyone who feels this way should serve up some reasons other than flat statements such as “It is clear that IP law is immoral and unjust, and incompatible with libertarian rights.”

Matthew Swaringen January 19, 2011 at 2:47 pm

So either you just started here or you decided to complete disregard the argument that IP requires limiting others rights in how they use their own property? And I suppose you have that coherent theory of IP that precisely defines the delineation between “property” and “not property”?

Oh, and you are consistent in your application of IP as property insofar as you think it shouldn’t be limited by time/etc. but should last forever?

Gurrie January 20, 2011 at 1:50 am

Yes, I just started here, and yes, I understand that IP requires limiting others rights in how they use their own property (and this of course begs the question of how, generally, do we know when to limit people’s rights to use their own guns, knives, matches, hands, etc.) The simple answer is that we try to limit rights to use property in cases where such use would infringe upon the rights of others to use their property and be safe in their person.I would agree that it is hard to develop a totally coherent theory of IP. The theoretical purpose is to encourage creativity, which it does not always do. The imposition of time limitations is clearly a judgment call, but I have no problem with the concept of time limits any more than I have a problem with leaseholds and other time-limited contracts, all of which we expect the government to honor and uphold.To conclude that difficulty of defining intelllectual property or difficulty of enforcing such rights is a proper reason to castigate government for trying to do so strikes me as wrong. With similar logic, I could say that certain high crime areas in the city are too difficult to police and we should therefore eliminate laws against murder, robbery and rape.My point is only that any discussion of the proper use of government power to enforce intellectual property should focus on whether and why it should be considered property in the first place, and not on the question of whether it is difficult to enforce or limits someone else’s commercial activities.

Colin Phillips January 20, 2011 at 3:28 am

The analogy of high-crime areas in a city is a good one. However, many people on this site would reach the opposite conclusion with it. Areas of high crime can essentially be seen as primary “battlefields” in the “War on Drugs”, to use the American phraseology. To me, using government enforcement to attempt to prohibit me from non-violently doing what I want with my own body and property is the root of these problems, not the solution. In the absence of drug wars, most of the high crime areas would see a dramatic drop in the murder and robbery rates, at least (from what I have read, rape is more an attempt to regain a sense of power by robbing someone of their power, rather than motivated by economic concerns).

Actually, the more I think about it, the more I like the analogy – Just like the War on Drugs, Intellectual Prohibition continues to enjoy the support of politicians. Big Corporates fund massive campaigns to maintain even limited public support, just like large pharmaceuticals do for cannabis. The dangers are hugely overblown, and the benefits of removing the oppressive legislation are largely ignored in the mainstream. Even though it is illegal, and unbelievably harsh penalties are imposed on those who are caught, many people try it at least once. Opponents of these laws are frequently seen as crackpots by people who cannot imagine that free people in a free market would be able to work out solutions to problems themselves without a nanny government.

Personally, I’m opposed to Intellectual Prohibition, not because it is *difficult* to enforce, but because it is *wrong* to do so, at least as far as I can tell. It also appears that the onus lies with those proposing these laws to show how they can work without invading privacy and the integrity of a person’s property.

The above is only an analogy, but, for the moment, it is an analogy I am quite enamored of.

Wildberry January 20, 2011 at 7:42 pm

Gurrie,

Short and accurate. I’m working on the short part, myself.

Matthew Swaringen January 20, 2011 at 6:39 pm

If you believe in time limits it’s not about property. You made a comparison to leasing but I can tell you that even in the current system titles aren’t transferred in most states on a lease agreement. When you rent a house you don’t own the house.

At that point you are trying to make the utilitarian case for IP, that the costs of enforcing limitations of how others use their property is less than the costs of not having IP due to the lack of incentive. But if you take the utilitarian case you need to have evidence, do you? It doesn’t sound like it since you stick to “theoretical purpose.”

It makes absolutely no sense to me that you want to limit other people’s freedom on a theory that may actually result in a net loss of wealth. At the very least you should take no opinion until you have something substantive to prove that we gain on net from IP laws.

Gurrie January 20, 2011 at 6:48 pm

I beg to differ, Matthew. Leaseholds are property. Rights to contractual receipts are property. Owning a single half-hour in a tanning booth is property. This is basic law.

Matthew Swaringen January 20, 2011 at 7:39 pm

“This is basic law” aka “Because I said so”

Wildberry January 20, 2011 at 7:43 pm

That post above to Gurrie was meant to go here.

Wildberry January 19, 2011 at 2:58 pm

Gurrie,

The fact that you can see another way to view the same facts does not make you an unreasonable person.

Most of the people here who write against IP want you to belive that 1) property laws do not apply to “original works of authorship” and 2) even if they did, no governmental function can legitimately enforce them anyway.

If you accept those two premises, there isn’t much left to discuss.

Matthew Swaringen January 19, 2011 at 6:46 pm

On point #2, what kind of enforcement would you call legitimate?

Anonymous x uses encrypted p2p to download your “property.” Do you try to get encryption made illegal? Or do you force those who make encryption software to allow loopholes that grant government access? Do you make it illegal to use “unapproved” encryption?

Or perhaps you stop at “commercial piracy” as the point at which you try to defend copyright? But if this is the case, you have vastly different views than are present under current law, meaning you need to supply much more significant answers to the questions I asked earlier about scope.

Wildberry January 19, 2011 at 8:20 pm

Matthew,

Do you believe that government (legislature, courts, rules, jury trial, etc.) has any legitimate role in enforcing rights of any kind?

Matthew Swaringen January 19, 2011 at 10:22 pm

Well, to be honest I’m another of the anarchists here these days, but insofar as you say courts, rules, etc. I would say sure.

It’s just a matter of which rules I think are legitimate and additionally what I think are the proper ways to enforce them.

I think the non-aggression principle should be followed, and so courts/government should not be forcing ISPs to give up the information of their clients (unless they agree voluntarily, which could include getting something for it, knowing it would affect the trust and possibly hurt their bottom line to do so).

Additionally, I think no one has a legitimate right to tell another person he can’t do something as long as he’s not taking using force, violence, or aggression against others. So I think the drug laws are unethical and wrong for example.

So if I believed in IP as you do, I’d have to figure out how I could get everyone to voluntarily agree to enforce my rights, and I think that’s impossible. I don’t think it’s impossible to enforce physical property rights in any way. No one who thinks that initiating violence is wrong accepts theft as legitimate, or assault, murder, rape, etc.

Those who don’t believe initiating violence is wrong (like serial killers/etc.) would be punished in accordance with that. I don’t think society can exist without basic rules like that, but I do think people can peacefully coexist without a state… and I definitely think IP law isn’t a necessity. I think it’s counterproductive if anything.

Wildberry January 20, 2011 at 12:06 pm

Matthew,

Isn’t what you are saying here equally applical to any ethical rule, regardless of how it is enforced?

Do you have to figure out a way to get everyone to voluntarily agree to observe the “no-homicide” rule? Do you have to get everyone to agree to your property rights before you have them? Why is that?

Matthew Swaringen January 20, 2011 at 6:34 pm

“Do you have to figure out a way to get everyone to voluntarily agree to observe the “no-homicide” rule? Do you have to get everyone to agree to your property rights before you have them? Why is that?”

Perhaps you misunderstood? I’m against the initiation of violence. I have no problems with retaliatory violence. I did not say “observe” I said “enforce.”

So lets say that my sister is murdered today. I have a right as her brother to retaliate against her murderer, or to pursue in court a case to retaliate against him. But if I don’t know who it was, I don’t have a right to initiate violence against people to force them to answer my questions so I can figure out who her murderer was.

But honestly I don’t think I should have to use force to accomplish investigation. If it’s murder most people are going to want to help me catch a murderer. But if it’s “IP” which many people don’t believe in at all… how are you going to get many people to voluntarily enforce this right? That’s my point.

Wildberry January 20, 2011 at 7:38 pm

Matthew,

Perhaps I did misunderstand. Let’s try again. Let me challenge you on some important details about what you just wrote.

“So lets say that my sister is murdered today. I have a right as her brother to retaliate against her murderer, or to pursue in court a case to retaliate against him.”

Actually, you do not. It is your sister who has rights that have been violated. Relatives who seek retaliation for crimes against their kin are called vigilantes. That is not the way it really works, so I am wondering if you are meaning to propose some alternative to the current legal system. Are you?

Under our current legal system, the state brings the charges against the murderer, not the brother. By state, I mean the legal system made up of cops, lawyers, courts, laws, and jails.

This is important, because it raises issue that I consider a major holes in the Ancap vision that shows up in various contexts, including discussion of IP rights.

If you sister has rights to non-aggression and she is dead, how do her rights get enforced? I mean, any right that only exists if you are alive is not much of a right. Murder would solve all disputes, right? If the person who murdered her is not brought to justice, then everyone’s rights to life are weakened, right? The question is WHO will seek justice on her behalf?

In the Ancap world, you get the justice you can pay for, and there are highly speculative theories about how rights might be enforced in the absence of any form of government.

Among other problems is this one: who enforces the rights of a dead victim? Relatives? Well, what if she has none living? She is on her own and murder can go unpunished? The neighborhood is going to pass the hat to hire a private “enforcement” agent, investigation costs, incarceration, trial and sentencing. Sort of a pay-per-view model? What if she doesn’t have many friends in the area?

What happens if the murderer holds up in his own house and refuses to go along? Lynch mob? What if it’s the wrong guy? The accused only gets the defense he can afford? I don’t know about you, but this is not a scenario that makes me ask, “Where can I sign up? I gotta have some of this!!”

Is it conceivable to you that a large group of humans would come up with the idea that everyone is better off to assign enforcement responsibilities to an impartial third party that is funded in advance and will follow a very strict set of rules (criminal procedure, due process, evidence rules, presumption of innocence, trial by jury, appeals process, etc.), and treat the defendant and victim with equal justice?

Do you agree that there is no real profit motive for such an enterprise? I mean, can you sell coercion of the accused for profit and compete for business with other firms doing the same? I know some seem to think so, but doesn’t that sound a little risky to you? Especially if, for whatever reason, you found yourself accused of a crime you know you didn’t commit?

Under our current system, it is understood that if you murder someone, there are ready resources organized to bring you to justice. If you didn’t do it, you have some level of confidence that you will be treated fairly. Imagine if none of that infrastructure was there and your sister was murdered, and the only way you could seek justice was through some form of private and personal action. That puts a tremendous burden on victims, and weakens the rights of everyone by making the risk for committing a crime much lower, don’t you agree?

It is a stretch, but there are some similarities between this example and that of IP. You are arguing that there is more popular support for bringing a murderer to justice than for an IP infringer. Is this the basis upon which all rights should be established? They are only valid if you can raise a private army to enforce them? Is that your point?

Perhaps I misunderstand.

Bullseye January 19, 2011 at 1:34 pm

As a copyrighted work, I probably won’t be reading the book until it’s posted free on the Internet, where its contents will be able to “mingle and blend”.

One has to wonder whether Mr. Johnson would’ve published these ideas in the mingled forum though. Maybe the profits allowed by the intellectual property motivated him to write a book instead… ;^P

John Spiers January 19, 2011 at 11:16 pm

“people simply deserve to profit from their good ideas,”

If they serve a customer they will… Everyone is free to start a business to provide a value to the customer, as embodied in their idea turned into a product or service. In a free market propoerty rights are limited to resources mixed with your labor, the extent of resources limited by the extent your labor can operate.

My book is free on the internet, and sells well on Amazon.com, because it is free on the internet. Plenty of people take it free from the internet. They are not stealing, nor do I care, since they were never my customers anyway, and it costs me nothing that they have a copy.

On one hand I am happy there are so many pro-IPR people out there, since they will never compete with me, being unable to produce anything anyone actually wants, since they will not deign to market, they only desire to use the violence inherent in government to own an idea.

On the other hand I regret they deny us the good of their creativity as their contributions are limited to arguing endlessly and risibly for a system that might work for them… maybe… who knows… eventually…

John Spiers

SirThinkALot January 20, 2011 at 1:02 am

The biggest problem I can see with eliminating IP laws(one I havent seen anybody deal with actually) is that of team-oriented projects requiring significant specialized equipment and capital investment, more specifically video games and movies.

Films are somewhat less problematic, especially as technology has made shooting, editing, and even the use of special effects much cheaper and easier than it has been. But at least for now the ability to produce anything beyond a simple flash game requires a significant investment of time and capital(not to mention expertise among programmers, art directors, writers, etc), that people will want a return on.

To put it bluntly: Who in their right mind is going to spend the literally millions of dollars and thousands of hours needed to develop something like Fallout 3 if most people wont even pay for it, but will simply copy/download it from somewhere else?

Other copyright protected media can be put together in people’s spare time(as I started doing with comics), or might even be given limited funding by others who enjoy those things for their own sake, but nobody is going to invest millions into something that its pretty much guaranteed wont be paid for by the majority of their fans/users.

Maybe I’m missing something here, but it seems that to abolish IP laws in their entirity would be the death of most modern video games(and a great many movies). I’m not sure if IP is ‘the’ solution to this problem, but I wonder if there is a free market solution?

garegin January 20, 2011 at 1:15 am

the pattern is clear. the open source is great for projects that thousand coders can chip in- like the linux kernel, mysql, wikipedia. its horribly bad on apps that need paid talented developers and artists. as a result the uni* desktop has a collection of subpar alpha-level apps and games. and this is coming from a linux lover who has ubuntu on his rig.

Peter January 20, 2011 at 6:16 am

its horribly bad on apps that need paid talented developers and artists.
How do you arrive at that conclusion?

garegin January 20, 2011 at 11:20 am

by comparing shotwell to iphoto, gimp to photoshop. also every consumer app that is open source is subpar to their closed source equivalent. i dont mind abolishing ip, as i dont use fancy apps and would actually see a huge boost to my linux desktop as patents are abolished. but am simply stating the facts.

Wildberry January 20, 2011 at 12:53 pm

Peter,

Or to say it another way, insuring that innovators are not producing for external markets. Producing for an external market is one way to define slavery. People do not choose to be slaves, and therefore would focus their energies on making a living some other way.

An innovation that is ahead of the market will require some entrepreneurial investment to bring it about. Someone has to have a vision. Deciding whether to act on a vision is a form of economic calculation. Therefore one would have to rationalize between alternative courses of action based on the data that was available. One important consideration in calculating potential returns, beyond the potential markets and expected selling price and profit, would be the economic rights in the innovation. If that is clearly defined, then it can be incorporated in the calculation. If it is not, or if transaction costs (enforcement) are very high, risks go up and potential return would have to be higher to make it worthwhile.

Either way there are significant risks and every decision to move forward will not be automatically guaranteed success. It might be a “bad” idea. You may have miscalculated your costs.

But if you are going to invest in the long and difficult process of making an innovation available to the market in order to turn a profit, you would want to be sure you owned the rights to take it all the way to revenue.

What justification could you come up with that makes it ok to divert that revenue to another party?

Peter Surda January 20, 2011 at 1:22 pm

Wildberry,

I’m a different Peter, but hopefully I interject meaningfully nevertheless.

Or to say it another way, insuring that innovators are not producing for external markets. Producing for an external market is one way to define slavery.

One of my counterarguments that I brought up already a long time in the past (not to you, but I think I might have mentioned this to you this at some stage too), is that externality is merely a part of causality that you, for some reason, cannot benefit from. There are at least two problems with this.

The first one is that causality extends to infinity, so no matter how you define rights, there will always be an externality (the minor exception is when all rights belong to one person and everyone else gets nothing, but I think it’s safe to assume that you don’t want that).

The second one is that even if a part of causality is not covered by property rights, you can use contracts to increase the scope that you can derive benefit from. From this perspective, what IP does is that it shifts the costs of predicting causality from the IP owner to the IP consumer. Instead of the IP owner having to predict before he performs actions, how these actions will affect others, and attempt to precede these activities (“creation”) with contracts, he only has to fulfil the criteria stipulated in the law and the money from the types of causality covered by IP will come to him. Those are transaction costs. I’m pretty sure as someone familiar with Coase you’re familiar with those too.

There is also another problem, in that patents are not based on causality. They do not recognise the defence of independent discovery. Unless you accept this, you can’t use the externality argument for patents. I honestly don’t remember if you support this or not so it might not apply to you.

Peter Surda January 20, 2011 at 1:36 pm

I was imprecise, here is a fix: instead of part of causality is not covered by property rights, it would be more accurate to say part of causality belonging to someone else. See? I fall prey to the metaphors just as easily as the IP proponents to. But I struggle to fix it.

Wildberry January 20, 2011 at 5:50 pm

Peter,
There is more than one Peter Surda blogging here under that name? That’s confusing.

“The first one is that causality extends to infinity, so no matter how you define rights, there will always be an externality (the minor exception is when all rights belong to one person and everyone else gets nothing, but I think it’s safe to assume that you don’t want that).”

This sounds familiar. I agree with this, and apply the concept of “proximate cause” to deal with it. As the causality extends outward from the act, it become irrelevant at some point. Only causality that is “near” in time and causality to the act is relevant.

“The second one is that even if a part of causality is not covered by property rights, you can use contracts to increase the scope that you can derive benefit from.

I agree that contracts can create or modify property rights that already exist as between the parties to the contract. Also, if property already exists by some other means, the use of contracts does not conflict with the concept of pre-existing rights.

“From this perspective, what IP does is that it shifts the costs of predicting causality from the IP owner to the IP consumer. Instead of the IP owner having to predict before he performs actions, how these actions will affect others, and attempt to precede these activities (“creation”) with contracts, he only has to fulfil the criteria stipulated in the law and the money from the types of causality covered by IP will come to him.”

Not sure I follow you here. The ability to predict causality just means to perform an economic calculation, is that what you mean? Each party to a transaction has to make their own predictions based on the data they have available. That is one component of the transaction costs.

If the data is hard to obtain, or contains a large amount of uncertainty, the cost is high, and costs are low if it is obvious what risks are assigned to each of the parties to the transaction.

One function of IP laws, along with any other form of property right, is to make the boundaries of the transaction more certain by making the economic rights (property) obvious, as much as possible. Is this what you mean? If so, I agree.

Also, enforcement of those rights is another component of transaction costs. Coase would say that if the transaction costs are otherwise high, then property rights should be established to lower those costs. If transaction costs are low, then the parties to the transaction can simply negotiate an agreement.

As for the idea that “money will come to him”, I think this is a general truth about property rights, not limited to IP. Property rights are always established in one way or another, according to some rules that are generally accepted. How title to that property is used and transferred is also part of the rules of property. Those rules entail economic rights and use in general. Contracts can be used to create more complex agreements about transfer and use between parties. But of course as you know, parties to a contract cannot bind third parties. This is another function of property. The rights are universal in the sense that their existence does not depend on prior contract.

Also, all property owners have a monopoly right to their use and transfer. Exclusive rights are not a concept unique to IP.

“There is also another problem, in that patents are not based on causality. They do not recognise the defence of independent discovery. Unless you accept this, you can’t use the externality argument for patents. I honestly don’t remember if you support this or not so it might not apply to you.”

I think this is a problem. The concept of winner takes all based on first to file or first to invent without a process for reasonably resolving disputed claims is a flaw, and it probably tolerated because it affects a small number of total patents, and to increase the causes of action would increase the burden on an already overburdened system.

I think a one-size-fits all rule on terms is also a problem and probably is affected by the same issues. Historically, terms have gotten longer, not shorter, while the actual economic benefits occur mostly in the early years and dissemination times have decreased substantially. The lock Microsoft has had in relation to the life of the PC is a good example of a sub-optimal balance between owner’s rights and public good.

Colin Phillips January 20, 2011 at 2:26 am

I don’t play computer games, but I have friends that do, and most of their games seem to require an account with a login which can only be used by one person at a time. Is this the free market solution you seek? Sure, it doesn’t work for all games, but no libertarian is going to promise you a one-size-fits-all solution to everything. Those games that have worked out how to exclude non-payers from being able to play are making huge profits without resorting to such base tactics as the invasion of privacy inherent in IP law enforcement.

Wildberry January 20, 2011 at 9:42 am

Colin,

One correction. The DMCA, an act that encourages copyright owners to adopt technology self-help measures, make it illegal to defeat these measures. So games are copyrighted, one, and two, have the protection of the DMCA.

Regards,

Colin Phillips January 20, 2011 at 9:52 am

Thanks, I’m aware that these copyright laws exist, my point was simply that there are some free market alternatives to them – it does not surprise me that companies are mixing free market and copyright-law measures, but that does not imply that they would be lost without the copyright law component, just that they would have to make an adjustment.

In your opinion, for the average person that fails to defeat these measures, do you think this is because the measures are well-designed, or because people fear the state? For most people, I would guess that the effort required to “crack” one of these games is the limiting factor, as the effort required exceeds the cost of just buying another copy if you want it, the law is very much a secondary concern. This is just a guess though.

Wildberry January 20, 2011 at 12:58 pm

Colin,

As the owner of an economic right, you may decide, for tactical, strategic, or practical reasons, not to assert them. That is up to the owner of those rights, and third parties should not be inthe business of determining how one uses his property, in general.

However, recall that all property rights are limited as to use. We own our body but we have limitations in its use.

Colin Phillips January 20, 2011 at 1:58 pm

Wildberry,

I agree, I don’t want anyone telling me what can or can’t do with my own property, and I wouldn’t want my rights to dos so to be interfered with based on the claims or assertions of a third party. I’m not sure I see your point though.

I was not saying that, for example, in the absence of copyright law, games manufacturers should be *forced* to adopt non-invasive, non-aggressive tactics to exclude non-payers from play, I was only making the point that these measures *could* be developed, and some games manufacturers *could* profit from using them.

To me, property rights, and body-ownership rights, are limited, (or at least, should be limited), only in the case of conflict with another’s body ownership rights or property rights. In other words, you are free to do whatever you want with your body, as long as your doing so does not aggress against or invade the person or property of someone else.

From your posts elsewhere, I gather you don’t see the issue as much in black and white as I do, and would support the idea that my property rights and my privacy could conceivably be justifiably invaded if there was a reasonable suspicion that I had been involved in, say, copying a computer game. Is this correct?

Anthony January 20, 2011 at 2:58 pm

Wildberry,

Property rights are NOT “limited as to use”. You are prohibited from violating the property rights of others, but it does not make sense to view that prohibition as a limitation on each and every piece of property. Let me give you two models and you can choose which one makes sense:

1.
I own a ball but there is a limitation on my ownership of that ball that means that I don’t own the rights to hit you with it.
I own a bat but there is a limitation on my ownership of that ball that means that I don’t own the rights to hit you with it.
I own a glove but there is a limitation on my ownership of that ball that means that I don’t own the rights to hit you with it.
… in summary, I can own only a subset of the rights to anything (including my body), and the right to hit other people is specifically excluded from the list of rights I have in my property. If Al says “please hit me” he is essentially giving me “hitting Al rights” for my bat, which are then added to the existing list of rights I had to my bat.

or

2.
I have full ownership over all my property, but I am prohibited from hitting you.

Which model is simpler? Other than wanting to defend IP, I can think of no reason to think that what we call “ownership” of an object is in fact possession an extremely complex and constantly variable set of “rights” to specific uses of said object.

You are prohibited from taking ACTIONS that violate property rights, regardless of what property you are using. It is the actions that matter.

Wildberry January 20, 2011 at 6:10 pm

Colin,

“I agree, I don’t want anyone telling me what can or can’t do with my own property, and I wouldn’t want my rights to dos so to be interfered with based on the claims or assertions of a third party. I’m not sure I see your point though.”

My point was simply that if you own property, you may decide to defend against trespassers or invite them in for tea. Same for IP rights, you can use them or lose them. It’s up to the owner.

“To me, property rights, and body-ownership rights, are limited, (or at least, should be limited), only in the case of conflict with another’s body ownership rights or property rights. In other words, you are free to do whatever you want with your body, as long as your doing so does not aggress against or invade the person or property of someone else.”

I don’t disagree with this at all. Of course the problems arises when you have to decide whether a particular act invades someone else’s rights. That is not a straightforward in all cases as some make it out to be.

“From your posts elsewhere, I gather you don’t see the issue as much in black and white as I do, and would support the idea that my property rights and my privacy could conceivably be justifiably invaded if there was a reasonable suspicion that I had been involved in, say, copying a computer game. Is this correct?”

I’m not trying to dodge your question, but I’m not sure what you mean.

You start with ethics: Property entails exclusive rights of use in the owner.

Then you look at morality: Is your act in conformance with the ethical rule?

Do you own all of the economic rights to the game? Did your act of copying infringe on the rightful owner’s exclusive rights to use without consent? If so, your act was immoral, and your owe some restitution to the owner who you “invaded”.

Just because you are in your own home does not make you immune from the moral breach of conduct. Does the rightful owner have a right to make you pay up? I

f he has rights, and you infringed on them, then yes. In one way or another, he has the right to enforce his rights against you. Not every moral breach gets noticed or responded to. That does not make it moral, though, right?

Does this address your question?

Wildberry January 20, 2011 at 6:19 pm

Anthony,

“You are prohibited from taking ACTIONS that violate property rights, regardless of what property you are using. It is the actions that matter.”

That was a long way around the track to show that we are saying the same thing. “Use” means “to apply for a purpose”, so the distinction between “act’ and “use’ is not meaningful in this context. We are saying the same thing as far as I can tell. Using a bat to bash your car, and acting to bash your car with a bat amount to pretty much the same thing, don’t you agree?

SirThinkALot January 20, 2011 at 9:44 am

Actually most console and handheld games dont currently require a logon/password to play. Although I understand its becoming the norm for PC games(with Steam or similar programs being required to play). Still I suppose your are correct it would work as a free market solution to the high development costs of a game. Although companies would need to come up with something better than Steam for it work(because, well Steam blows).

Anthony January 20, 2011 at 2:41 pm

Steam is not so bad… the sales make games much more accessible and the convenience of being able to download anywhere is nice. I stopped pirating games completely once I switched to Steam. I didn’t need to pirate game anymore because the costs (monetary costs and opportunity costs) of acquiring them are so much lower than buying in the store, and are not much higher than the costs of pirating the game.

guard January 20, 2011 at 2:41 am

I wonder also how a free market would play out here. Without IP, I would have no incentive to develop any idea beyond what I could use for myself or maybe gift to friends. I’d get an ego boost, but that makes pretty thin soup. I don’t support government, just wonder how it would work out.

Colin Phillips January 20, 2011 at 3:49 am

I disagree that you have no incentive, you actually have two incentives – 1) to share your work with people who appreciate it, and so make a name for yourself, advertising your skills to potential future employers. 2) you have an incentive to find a non-violent, logically consistent method of extracting payment from those who wish to pay. In the example where you have made a movie, you could rent a cinema, and sell tickets to the prestigious premiere, shown on a bigger screen than most people have at home (that’s what is happening now, AFAICS). This is not the only solution, and each creator must find their own way to maximise their profits.

A seemingly very weak strategy, which seems to work for quite a few authors, is to offer the digital copy of a book for free, but charge for the hard-copy. I know this trick has caught me out a few times – I read a book that I enjoy, and I want to share it with someone, but I know they will not read it just because I send them a link. For the moment, until ebook readers are more affordable, my only option is to buy the hardcopy and lend it out. Other models include the “pay what you think it is worth” model, or online applications such as Flattr, which reward you not for your labour, but for the proportion of my monthly entertainment that was provided by your output. These free market models are being developed all the time.

Dagnytg January 20, 2011 at 4:42 am

Guard,

Just look at the car industry. Does anyone have exclusive rights to four wheels? (Apparently not) Has that stopped people from investing and developing car companies throughout the world?

If you and I had the same idea and we were equally successful in bringing our product to market, you don’t believe that there is enough market share in the world for both of us to prosper???

What about a hundred of us???

Granted we may not become filthy rich but we would be wealthy and so would the world.

If you eliminated IP, everyone would have an incentive and you would see a renaissance in innovation that would advance civilization beyond our imagination.

Guard…don’t fear the uncertainty of freedom…embrace it!

Wildberry January 20, 2011 at 12:18 pm

Dagnytg,

You are partially correct; no one has a patent or any other protected rights in the idea of four wheels. That is in the public domain, and once there can never be returned to protected status.

However the car industry is subject to at least patent and trade mark protections, as well as some protections under trade secrets.

Second, I think a good case could be made for quite a bit of innovation having taken place in the presence of IP protections.

So how do you conclude that things would be so much better if we just “embraced freedom” and eliminated IP. That is your assertion, right? Please give some arguments or evidence that leads you or supports that conclusion.

Dagnytg January 21, 2011 at 5:55 am

Wildberry,

I am probably the least informed on this topic and have been watching from the fence sort to speak. I was only giving a conceptual and motivational reply to Guard. Had I seen Colin’s reply (which is far more articulate and detailed) I would have never posted my comment.

Needless to say…

I cannot predict the future but I can tell you about my most recent experience in developing a business plan for an educational website. I teach for a living and for the last seven years developed a large and successful program at two schools but my sixty-hour a week job is now twenty and I believe will be shut down within a year.

I’ve worked with the underclass for most of my teaching career. I’ve come to know them intimately… their hopes, fears, dreams, and have earned their respect. In turn, I have become endeared to them.

But there is one thing in my way… it’s called the American Council on Education. You see, these academic elitists have close ties to the gov. and have an exclusive copyright and monopoly on one of the main products that serve my current and future clients. Even though I have been using their products in my classroom, serving 700 students or more per year, I have no doubt they will deny me access to use their products in an online format trying to serve thousands. (I will go through the humiliating process of asking but I believe I would have a better chance with a group of greedy capitalists.)

So, how do I know the world would be better if we just “embraced freedom” and eliminated IP…

I know for the people I serve the world would be a better place.

My effort, experience, vision, and passion multiplied by thousands like me, in other fields of endeavor, each improving the world in some small way… how can you not see it?

PS> Wildberry, I know this wasn’t the answer you were looking for but I thank you for asking.

Wildberry January 21, 2011 at 11:16 am

Dagnytg,

People trying to do the right thing get rolled over by collusion between special interests and government power all the time. I can sympathize.

All I can say it that it is sometimes difficult to put the cause of something like this in the right place. Sometimes good people with good intentions are limited by the rights of others. Sometimes people are exploited by legitimized yet unfair competition.

What we are talking about here is the very legitimacy of IP as a concept, as a device that serves society. This involves some kind of reciprocal relationship between unlimited individual liberty, and some desirable social purpose.

Without knowing any more than you have said here, there are ways to do what you want to do. Just not in the school system in which you work (for now) and not with the materials that are owned by someone else.

Allowing Nazis to have a parade is the distasteful cost of protecting others’ right to do the same. We would not suggest that in order to prevent Nazis form doing it, we should all give up our own right to this kind of expression. So be careful laying the blame for your situation solely at the feet of IP.

Life is not always fair, but I wish you success.

Dagnytg January 21, 2011 at 7:41 pm

Wildberry,

I’m not laying the blame at IP. I’m only saying IP is a convoluted sense of property. It’s not clear by any means. If you read “fair use” via the copyright office, you find an incredibly vague article.

But this quote sums it up:

The distinction between fair use and infringement may be unclear and not easily defined.

My interpretation…you can be sued anytime someone feels like it.

If you’re going to use property rights as a distinction, then it should be clear and easily defined. Otherwise, you’re not talking property rights… you’re talking about wants.

If I buy and use educational tools to serve 700 students and no one screams copyright infringement, then how is it when I use the same tools to reach an audience of 7000 via the internet it’s now a copyright infringement. I fail to see the difference.

As far as your Nazi parade analogy…if I own the road, I am not obligated to let anybody parade on it. If I sell the road to the Nazi’s, they own it and can do what they please.

In conclusion, IP doesn’t make sense because it is not clear to those who support it or the copyright office. It is apparently undefinable.

You’re right, life is unfair… the internet evolved and IP is seen for what it really was all along… Luddite.

SirThinkALot January 20, 2011 at 12:37 pm

I dont think this is the best analogy, while building cars requires significant investment its not easy for somebody to simply build their own car using somebody else’s desgin, where as anybody with just a bit of tech-smarts can copy a game or movie and distribute it via internet or some other electronic storage medium at virtually no cost. Even anti-piracy measures taken by companies will, at best slow down indviduals determined to copy them.

meh, I’m not a die-hard supporter of IP, I was simply trying to point out an area I think the anti-IP crowd has not completely thought through.

Sione January 20, 2011 at 2:52 pm

SirThinkAlot

Interestingly enough GM had a practice of patenting technology (GM developed) that had to do with safety systems or emissions systems. Once the patent was granted GM would neglect to pay renewals etc. and allow it to lapse. I asked about why this was and got told that it was an insurance, intended to limit the ability of rouges from claiming they’d invented features on GM cars and then going to the courts to win money from GM. In the absence of that threat GM’d not bother with much of the patent activity they’d been involved in.

Even though there is an enormous investment involved in building a car, and its not trivial for somebody to simply build a copy using somebody else’s design, anybody with just a bit of law-smarts can patent a feature or a system or a method and squat on it via exploitation of CIP, first to invent, fair basis, failure to enable or some other trick at virtually no (or very modest) cost. Even anti-squat measures taken by companies will, at best, slow down indviduals determined to rape them.

Among other issues, the pro-IP crowd has not thought enough about the practical application of patents, let alone their premise that IP is properly treated as property. There is a great deal of position statements, things like, “Oh well, we don’t support the actual system as it is, but we support IP…”, and not at all enough consideration of the results of the real world application of pro-IP ideas when reduced to practice. Ironically it was Ayn Rand who said that the moral is the practical. Well, the application of the idea that IP is property is readily demonstrated as impractical. A cursory investigation easily demonstrates it.

Sione

Wildberry January 20, 2011 at 12:11 pm

Sir,

Your common sense approach leads you to reasonable conclusions. This simple fact concerning the relationship between the cost of innovation and economic rights in those works, has been a part of our social awareness at least since the constitution’s oringal authorship.

That is why it just “makes sense” to you. Any further deatiled understanding would simply reinforce your initial instincts.

Good on you.

Gurrie January 21, 2011 at 1:52 am

I confess to not having read every last one of the above posts, so maybe much of what I have to say has been said. IP sure does get libertarians worked up, doesn’t it?.

A few things are being overlooked in many of the above posts. IP laws are not “enforced” in the same sense that criminal laws are. Someone who claims a patent or a copyright or a trademark is registering a “claim” with the government, asking for its potential future protection. Only the patent applications actually undergo a detailed review process. Trademarks are merely “registered” and copyrights are established only by the copyrighter’s mark. The government does nothing at all to police any of this on its own. Even if they becomes aware of an actual or potential infringement, the police cannot take action to stop it. It is only the owner of the claim who can attempt to enforce it, and, like contracts, the enforcement must be through the courts. If the court agrees that an infringement has occurred, it issues an appropriate order, such as an injunction or an award of damages. It is the court order that then becomes the vehicle for the use of police power.

One view of IP is that it is an extension of contract law. It is certainly similar to contract law with respect to governmental involvement in the enforcement process. The police don’t go around looking for, or enforcing against, breaches of contract.While I am still wrestling with the philosophical underpinnings of IP, I have no doubt that an advanced free market could not function properly without contracts.

Wildberry January 21, 2011 at 10:27 am

Gurrie,

“IP sure does get libertarians worked up, doesn’t it?”

It is curious, I agree. I have decided to try to address inaccuracies being propagated here about what the law is and does, and see where that leaves us. It’s a much bigger job than I ever anticipated. If the law is going to be debated, I believe we should start with a fair reading of what it is. To that end, let me make a couple of minor corrections to your statements, but I support your conclusion.

All laws are enforced only when there is a “complaint”; in contract terms, a “breach”. In this sense, IP “infringement” is not much different than any other law. It begins with a complaint by a party who believes s/he has been injured.

Second, government is actually involved in two ways. First, the laws themselves often have legislative and constitutional origins, and second, police power is an exclusive power of government. Courts often refer back to “legislative intent” , just like they will look at “intent of the parties” in contracts.

Third, while you are essentially correct about patents, certain rights arise upon some act, and as you say, are passive rights until they are offended in some way; same for real property or any other property right. In the case of copyrights, they arise when an expression is fixed in tangible form. Registration is related to giving notice for copyrights, just like recording your title gives notice concerning your ownership of land.

“One view of IP is that it is an extension of contract law.”

I think this statement is very important. I have argued that if rights in the intangible can be established in contracts between parties, then they can be established by laws.
If fact nearly anything that can be handled by a contract can become law. What is the difference? It is simply privity. Contracts only bind the parties who agree in advance. Laws bind everyone (within jurisdiction). Some call this a “social contract” but that is a charged concept and invites debate similar to IP.

The fact is, however, that 100% of the members of a society COULD (theoretically and actually) all become parties to a contract if they choose to do so. In that case, the contract would operate exactly like a law, meaning and ALL parties had gained enforceable rights. In some cases, depending on what the subject of the contract was, these rights could be used and/or traded. Not only is this LIKE property, it IS property.

“While I am still wrestling with the philosophical underpinnings of IP, I have no doubt that an advanced free market could not function properly without contracts.”

I have nothing to “win” here if you end a supporter or opponent of IP. But your common sense approach allows you to reach a good conclusion. If society is defined by cooperation, then any device humans can invent to facilitate that cooperation has value. Contracts are one of the best and oldest examples of a human device that facilitates economic cooperation. IP is no different in this regard.

Having said that, it is still possible to have issues with specific aspects of contract law, just like any other law. Like all artifacts of civilization, its devices evolve over time. Despite localized ups and downs, in general civilization is advancing. This is not happening in spite of the human devices that have been invented to help that to happen, but because of them. Property and IP are such device.

I hope to see your contributions here more often.

Gurrie January 21, 2011 at 1:26 pm

Wildberry,

I have read your response several times and I honestly do not see what corrections you are making to my statements. I am not an attorney, but I deal with real property and contracts all the time, and my son is the owner of some 200 patents.

A patent is issued by the patent office, who makes a sincere effort to ascertain what is unique about the device or process for which the patent is being applied. If they find that it is unique and, potentially, commercially important. they issue a patent. Nothing happens regarding this patent unless the patent owner feels that there has been an infringement, knowingly or not. He must then go to court and establish to the court’s satisfaction that such an infringement has occurred. He will seek relief that is very specific to the facts of the case. There is no jail, no fines, no punishment of any kind that is independent of the court’s decision. The police, if they are necessary at all, are enforcing the court’s order, not the patent or patent law.

Trademarks are registered. If there is any review at all, it is cursory in nature. Whether a trademark has been infringed is again a matter of a complaint by the owner, then adjudication by the court. Againm the police only enforce the court’s order.

Copyrights can be claimed merely by making the circled “c” on any document. They can also be registered, but they do not have to be. It is not even automatic that they have to be “published”, although a copyright claimer would be hard pressed to win a lawsuit if he does not. If a document had been stolen before its publication, for example, he would be well advised to go after a charge of theft than one of copyright infringement.

To clarify, I am not in some sort of cosmic search for truth relative to IP. I believe the IP laws have merit and should not be rejected by libertarians. As with all areas of government enforcement, however, I remain open to evaluating arguments about whether this is always and in all factual circumstances a proper role for government to have.

Wildberry January 21, 2011 at 2:57 pm

Gurrie,

Sorry, I didn’t mean to nitpick. They were minor and relatively unimportant.

Your last parragraph is perfect. Staying open is a good thing, IMHO.

Sione January 21, 2011 at 3:09 pm

Gurrie

The fundamental issue remain whether IP is properly considered as property. For that case to be made it isn’t sufficient to say things like, “one view is that it is an extension of contract law…” and the like. What is required is the case actually be made. On a previous thread I’ve mentioned some of what that would entail. It isn’t a trivial undertaking and it is yet to be accomplished. If it isn’t, then IP is not property, then claims and laws relying upon it (the IP as property notion) are false and must be dismissed without further consideration.

As far as actual IP “enforcement” is concerned, it makes litle difference to the target whether a state agency or an informer initiates the process of attack. In the end the agents/employees of state are there to threaten or actually undertake the wet work.

The IP debate is of vital importance to libertarians because it involves determination of what property is and who has ownership. Ownership of property, what property actually is and can be, who has the right to own and why that is, are fundamental. That is why it is taken seriously.

For a very long time IP was hardly considered at all in libertarian circles. It was accepted as a given and rarely examined critically or analytically or in any great depth. That changed in recent years (see the papers of Dr Kinsella and book by Levine and Boldrin for examples). There has been the realisation that the case for IP is not as strong or moral or logical as previously assumed. There are severe shortcomings and failures evident in the theories and reduction to practice. Of course, that has annoyed those with interests to defend (under the present arrangement) or who have significant intellectual investment in the belief of IP as property.

In the end, no matter how upset or emotional the protagonists become, the burden remains for the pro-IP promoters to develop and present a real case that IP is properly considered as property. And that is but the first step of the challenge faced.

Sione

Gurrie January 21, 2011 at 8:13 pm

Sione,

Why do we sancitfy property in the first place? I have always felt that it is, ideally, the reward that one acquires for one’s labor or one’s economically productive ideas. Property can also be acquired in ways that are not very nice or very honorable. We respect anyone who has acquired property through hard work or creativity or raw talent. We are less respectful, but still respectful, of people who have acquired property through inheritance or even trickery.

We should all agree fundamentally that you own your own person, and ought to be able to control and own the fruits of your physical and mental labor, at least without the threat of having some legally constituted political or authoritarian gang come in and take it from you. Legitimate governments are supposed to help you keep your property, not take it from you.

If intellectual property is also a product of your physical and mental labor, how is the government’s protection of it any different from their helping to protect your home against invasion by burglars or foreign governments?

The proper extent of government’s power has always been the issue. The degree of acceptance of governmental authority by the people has always been the limiting factor on government power. I personally do not think it is wrong to accept governmental authority if it is limited to the arena of force and fraud, both of which are offensive to reason. IP is at best only on the very edges of the arena of force and fraud, but if it is viewed as the product of ones’ physical and/or mental labor, it deserves to be protected against force and fraud even though the force and fraud is of a softer kind.

Colin Phillips January 21, 2011 at 9:12 pm

Those are some pretty important “Ifs” you have there. So yeah, you have identified the points of contention, albeit in a biased and roundabout way. One further point, though. You said:
“I personally do not think it is wrong to accept governmental authority if it is limited to the arena of force and fraud, both of which are offensive to reason.”
The issue is not about “accepting” state authority, the issue is that people have no real viable way of rejecting that authority – you must pay the taxes, abide by the regulations and edicts, and generally appease the political class, whether you accept it or not. This becomes even more of a problem when it is that same “authority” which is the primary cause of force and fraud being perpetrated against you – your only recourse is yet another branch of that same authority.

Gurrie January 22, 2011 at 1:24 am

Colin,

To me the issue is always about what state authority the people will accept. History is filled with examples of governments that were overthrown, or people who simply fled and went to another land. Any authoritarian government will breed its own opposition, but indeed most of them are “accepted” by the vast majority of the people until their power becomes more than the people can bear. In ancient times, the majority of the people accepted the idea of monarchies. In the 20th Century, most Germans and Italians and Russians accepted the idea that government should have the power it had.

Only rarely did a clear thinker such as Bastiat come along and say that the state cannot solve the problems because the state is the problem. Most people in the world today accept the idea that government has some role to play. The debate is about where to draw the line, and limitation of force and fraud is my own personal line.

Colin Phillips January 22, 2011 at 7:55 am

Gurrie,

Just because a state has not been overthrown does not make it legitimate or moral.
“The debate is about where to draw the line, and limitation of force and fraud is my own personal line.” That is all well and good, but in the presence of a state you have no meaningful way of sticking to that line if the state chooses to use your tax money to enforce its own will on others. IP is perhaps a good example – some people see the invasion of privacy and property by the state inherent in the process as immoral and unjustifiable, yet they have no say on whether the taxes extracted from them are used to pay for such misdeeds. I think before we can discuss “where to draw the line”, we need a clear picture of what we can realistically do if that line is crossed. In the presence of a state, the answer is “appeal to the state for mercy from the ravages of the state, and appease the state as far as possible”.

Matthew Swaringen January 21, 2011 at 2:40 pm

WildBerry:

“Actually, you do not. It is your sister who has rights that have been violated. Relatives who seek retaliation for crimes against their kin are called vigilantes. That is not the way it really works, so I am wondering if you are meaning to propose some alternative to the current legal system. Are you?”
In my view the person who killed has violated the essential rule not to initiate aggression. If the killing was in self-defense then I don’t think I am justified in doing this, and obviously if I’m not 100% certain then I shouldn’t do it either and others would have a right to take action if I did act in such a manner.

Having said that, I think personal enforcement against crimes like that is generally a bad idea, and I don’t think many would take that route. I even imagine that there may be many voluntary agreements that would be made to prevent that in order to avoid the obvious possible problems that could arise.

I’m aware of the current system, but I don’t think it’s by any means perfect. It does avoid some problems but creates it’s own.

“If you sister has rights to non-aggression and she is dead, how do her rights get enforced? I mean, any right that only exists if you are alive is not much of a right. Murder would solve all disputes, right? If the person who murdered her is not brought to justice, then everyone’s rights to life are weakened, right? The question is WHO will seek justice on her behalf?”
There is probably more, but 4 possibilities come to mind.
1) Relatives/friends seeking justice on their own, or more likely through some third party agency
2) An insurance company seeking to get compensation from the murderer since they have to pay out in the event of her death.
3) People who independently work on crimes like this voluntarily, perhaps as part of some kind of “charity” organization. (I think that those who have no relatives/etc. would fall to that in many cases)
4) No one. – Yes, I admit the possibility that someone can be murdered and no one really cares to follow up on it in a limited number of cases. Even in the current system there are people murdered and while there is some limited investigation it doesn’t go on nearly as long if it’s not high profile.

“In the Ancap world, you get the justice you can pay for, and there are highly speculative theories about how rights might be enforced in the absence of any form of government.”
The theories are speculative in the same way that someone might speculate how we would have flying machines in the middle ages and precisely what would make them work. This doesn’t make it impossible by any means.

And you really are pushing this “pay for” point but I wonder how you explain the discrepancy in various groups that show up in jails/get convicted/etc. Some of that is explainable by culture or values of groups, but.. not all. The current system is by no means perfect in terms of ensuring justice for the “less fortunate.”

I happen to believe the incentives that result from voluntary agreements are better towards promoting justice than anything else. I actually work for a company that handles arbitrations, and despite the possibility of bribery/etc. it doesn’t work that way. I suppose you can imagine that regulations are the reason, but such things could be hidden if desired. The true reason this doesn’t occur is that no one would come to the company for arbitration if they perceived it to be crooked. With the state’s monopoly you have no choice in that matter.

“What happens if the murderer holds up in his own house and refuses to go along? Lynch mob? What if it’s the wrong guy? The accused only gets the defense he can afford? I don’t know about you, but this is not a scenario that makes me ask, ‘Where can I sign up? I gotta have some of this!!’”
What happens now? What if he’s the wrong guy now? The accused doesn’t necessarily need a separate defense, with private law I don’t think there would exist nearly as many loopholes/etc. I’d have no problems defending myself on a murder charge, except for this arcane system we currently have. Even then I’d be inclined to try with murder. If it was something where there are highly involved state-laws that no one can fully comprehend like anti-trust I would be stuck. Fortunately those things are constructs of government.

“Is it conceivable to you that a large group of humans would come up with the idea that everyone is better off to assign enforcement responsibilities to an impartial third party that is funded in advance and will follow a very strict set of rules (criminal procedure, due process, evidence rules, presumption of innocence, trial by jury, appeals process, etc.), and treat the defendant and victim with equal justice?”
Totally conceivable, and I’m fine with it as long as the large group of humans is all voluntarily paying for it (or they agree that some get the service for free, but again, only if those getting the service agree to the contract).

“Do you agree that there is no real profit motive for such an enterprise? ”
I don’t know what you mean by what you said after this, but no I don’t agree that there is no way for the profit motive to work here.

“That puts a tremendous burden on victims, and weakens the rights of everyone by making the risk for committing a crime much lower, don’t you agree?”
No, I don’t agree at all. I think you imagine the burden to be higher when it would not be for various reasons.

“It is a stretch, but there are some similarities between this example and that of IP. You are arguing that there is more popular support for bringing a murderer to justice than for an IP infringer. Is this the basis upon which all rights should be established? They are only valid if you can raise a private army to enforce them? Is that your point?”

They are valid insofar as the exist as part of human nature or as part of the natural order and inasmuch as they limit violent conflicts which are destructive.

Matthew Swaringen January 21, 2011 at 5:45 pm

I should clarify something. Jeff Riggenbach had a recent review about a book called “The Art of Not Being Governed” where he made a well-articulated point that the author should have distinguished between state and government. I’ve not been too careful in that regard, but I don’t think they have to be one and the same.

When you say self-government, I am strongly inclined to believe you are referring to (representative) democracy, and when you said consent earlier, I am fairly certain you intended to mean “group consent” to some degree, though you weren’t 100% clear on that matter.

I have no problems with the idea of a government as long as it is a voluntary arrangement on the part of every individual, and as long as the existence of this government is not taken to mean that these individuals now have some kind of legitimate power by which they can use force against others regardless of how good their intentions may be.

So I do think in an “ancap world” that there would be numerous voluntary societies, and they need not necessarily be bound to static geographic regions.

Wildberry January 21, 2011 at 7:00 pm

Matthew,

I didn’t go any farther than to say that self-government as a concept of social cooperation seems legitimate.

You seem to agree, as long as everyone in the particular group has consented. I am wondering what this really means in a practical sense?

For example, on any particular day, would I be free to withdraw my consent, say to pay taxes that I had previously agreed to? How long is the laundry list of things that woud have to be in this “contact”? I mean I understant human will, according to some, is inalienable. That means, even if I say I will do something, I don’t have to really to it when the time comes.

Also, I am wondering how somethign like propety rights would work if the person accross the street wasn’t part of your tribe of consent? Everyone could have their own rules, and we could spend our time trying to enforce our rights against “outsiders”? Say I wanted to buy his house? I would have to start with the ethics of property adn see if we agreed on that, adn then I could move to how title is supposed to be recorded, and eventually, I woud get to the price? And if he agreed to sell, when my moving truck shows up, he can change his mind?

Or, if we all agreed on a single “code of ethics”, then doesn’t that start to look a lot like government?

I think when you try to re-organize humanity from scratch and assume away any legitimate function for government in the normal meaning of the word, you have a rather large number of issues to deal with. This is especially ironic when many of these issues have been already “institutionalized” in our social systems.

Colin Phillips January 21, 2011 at 7:54 pm

Wildberry,

Bob Murphy has dealt with these (and other) concerns about the practicality of freedom. For example, http://mises.org/daily/1874

You seem to be wary of self-organising systems, unnecessarily. We would not need, for example, for everyone to have ‘agreed on a single “code of ethics” ‘ for the same reason that right now, we do not all need to agree on a single price for shoes – the market uses incentives to respond to the needs of consumers.

This is the great feature of the free market – wherever there is a problem, such as your example of two people using different ideas of contract, entrepreneurs are motivated to find an optimal solution. I, for one, would not do business with a person whose idea of contract law was incompatible with mine, and so people subscribing to strange legal practices would lose out on my business. So private contract dispute resolution companies would be able to make a killing if they found a way to reconcile two different schools of contract thought, as parties on both sides would like to have access to the customer base of the other side.

In this way, yes, over time, the market will probably “settle down” so that, on average, people will tend to interpret contracts in the same way, and this a single dominant average understanding, but that does not mean that it is similar to a state (note, you should be careful not to conflate “state” and “government”, as they can be different things, although I make this mistake all the time too) body of laws. There are two important differences:
1) In a free society, adherence to this average understanding of contract would be voluntary – of course, it is almost impossible to survive in the modern world without the input of other people, and if you are known not to honour contracts, you are making your own life much much more difficult, as rational people will not trade with you.
2) The “average” understanding will be a dynamic, fast-evolving, fair system worked out on a case-by-case basis, rather than a leviathan institution growing its own self-serving, arcane, contorted rules and imposing them on the populace.

A lot of work has already gone in to showing how a free society could function in the absence of a state, and it makes for a very interesting read. For example: http://mises.org/journals/jls/14_1/14_1_3.pdf

Matthew Swaringen January 21, 2011 at 6:12 pm

WildBerry:

First, I won’t reply to anything specific on your points about arbitrary except to say we probably see the “possible murder” scenario a little differently. I would agree that a lack of knowledge certainly can make decisions difficult, and ultimately sometimes you do have to decide without knowing everything. This is one reason I’m not a huge fan of the death penalties myself. At least you can reverse imprisonment (although, I think imprisonment should be a lot more rare as well) and you can mostly reverse monetary penalties, but you of course can’t reverse the effects of any punishment.

Now I wouldn’t call this arbitrary personally, because I think the decision that’s made was ultimately right or wrong. You made the decision based on the available facts, but you could be making the right decision without some facts, which turns out to be wrong when the information is revealed.

On this matter, you are saying IP is arbitrary and so we need this huge body of law that I will just need to sit down and read if I want to learn it all. But you are missing the point of why I’m asking you I think? I’m not interested in the current law because I don’t agree with the parts of it that I’m fully aware of as is. It’s a huge waste of time for me to learn about all of the specifics if I don’t even agree with the premise.

“This is very smart comment. Property is a human device and serves the purposes you mention. This applies to all rights and all property. Why do you make a distinction that excludes intangible works by definition?”
This is what makes that whole IP discussion axiomatic. I could just as easily ask the question in reverse, why do you not make the distinction to exclude intangible works?

I make the distinction because I think there is no need for conflict over intangibles which are not scarce and which I think better serve humanity when they are free to be used, combined, modified, etc.

If I honestly thought we didn’t need property in scarce things I could be against property, but I think that is impossible because of human nature. You certainly do find people who can successfully share, and you could say many families function internally like communists or something, but collectivism fails horribly when applied to large heterogeneous groups, and commonly fails even at small scale with some groups of individuals.

“This is obviously nonsense. First, there is often conflict over scarce resources. Second, what is a non-violent rejection if IP? Misappropriation is an act of aggression.”
I never said there wasn’t conflict over scarce resources. I’d agree it would be nonsense if I said that. I used the words “relatively rare” in the past to talk about the conflicts, and I do think that most people as a rule can easily recognize boundaries of property in most cases, but you did bring up a decent point about a tree planted “on the line.” earlier where you may have a conflict that needs to be resolved.

I know you want to say that people are “misappropriating” books by copying them, but I think the term “appropriate” doesn’t apply to intangibles. If you are referring to a physical object “appropriating” is to take or secure it for yourself and only you have it. If someone else “misappropriates” your property they are taking it and you have no access to that property anymore.

But with IP there is no misappropriation, because the original is still there to be used.

Wildberry January 21, 2011 at 7:28 pm

Matthew,
“This is one reason I’m not a huge fan of the death penalties myself.”

I think your arguments have merit.

“Now I wouldn’t call this arbitrary personally”

I think this is what arbitrary means: you make the most reasonable decision you can based on what you know, but the “rightness” or “wrongness” is not known for certain. You end up deciding on standards like “beyond a reasonable doubt”. That is not mathematically precise. It requires judgment and therefore there is a subjective component.

“It’s a huge waste of time for me to learn about all of the specifics if I don’t even agree with the premise.”

I don’t think anyone should disagree with this. I don’t. Of course all we have been doing at Mises.org on this subject is debating the premise. You and I don’t seem to agree as to what is true and legitimate, fundamentally.

“I could just as easily ask the question in reverse, why do you not make the distinction to exclude intangible works?”

I think you mean “tangible” but I get your point. Ancaps have a premise for how property is legitimate. I find it limited and impractical.

“I make the distinction because I think there is no need for conflict over intangibles which are not scarce and which I think better serve humanity when they are free to be used, combined, modified, etc.”

I get that. However, you are leaving out of your statement the other side of the competing objective: rewarding innovation by preventing the innovator from merely producing for external markets. This is the reciprocal nature of IP laws. Everybody gets something by giving up something.

“collectivism fails horribly when applied to large heterogeneous groups, and commonly fails even at small scale with some groups of individuals.”

I agree. The irony is that you don’t see how taking someone’s work product and granting everyone free access to its use is simply a restatement of the ethical principles of socialism; individual labor for the greater collective good.

“you did bring up a decent point about a tree planted “on the line.” earlier where you may have a conflict that needs to be resolved.”

OK, didn’t mean to put words in your mouth. I was not intending to focus on how often it happens, but to the nature of conflicts being at the margins, where the general rule doesn’t apply very well. Simple conflicts get resolved easily and quickly; conflicts not covered by a current rule need more attention and care.

“I think the term “appropriate” doesn’t apply to intangibles.”

Yes, I know. This is probably the main point of contention.

“If someone else “misappropriates” your property they are taking it and you have no access to that property anymore.”
By adding that last bit, you assume the conclusion of your premise; that property can not arise for intangibles. Property is an economic right as well as use. If you leave me my use and take my economic rights, you still have taken something, right?

“But with IP there is no misappropriation, because the original is still there to be used.”

And that’s why you can reach this conclusion.

Colin Phillips January 21, 2011 at 9:04 pm

Um, this seems to be an inconsistency:
Wildberry: “This is the reciprocal nature of IP laws. Everybody gets something by giving up something.”
Matthew Swaringen: “collectivism fails horribly when applied to large heterogeneous groups”
Wildberry: “I agree”

Wildberry, if you agree that this “Everybody gives and everybody gets” system is not for you, then why do you support IP? The main difference between collectivism and freedom is that in a free society, people only take on the costs they voluntarily choose to accept. You must see that being part of this “everybody” that must “give up something”, means that a cost is being imposed on me, whether I accept this cost or not?

If I am mistaken, please explain, and excuse my confusion.

AskanIPquestion January 22, 2011 at 9:19 am

“then why do you support IP? ”

Because he is a utilitarian. And a fan of democracy.

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