IP empowers some people to use government to limit other people’s speech and actions. FULL ARTICLE by Jacob H. Huebert
Source link: http://archive.mises.org/15867/the-fight-against-intellectual-property/
The Fight against Intellectual Property
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{ 436 comments }
I know that this was not the main point of your article but, in passing, you say that Mises favored IP. I don’t see the evidence of this. In several places, he describes the issue (free goods v. scarce goods) but he seems to refrain from making decisive policy statements on the issue. In the balance, he seems to come down on the side of freedom, so far as I can tell.
Let me also add that Maclup and Hayek were firmly against IP, and Rothbard went further than any of his predecessors on the topic. It strikes me that the Austrian tradition has mostly tended in the Kinsella direction for many decades. Kinsella’s views look more like the culmination of a tradition rather than a break from it.
Jeffery,
Yes, a tradition that stretches all the way back to Murray Rothbard and is now the firmly established “official policy” of the most prominent spokespersons for Mises.org. But don’t be deceived by the rarefied atmosphere you breath here; I am guessing there are far more supporters of Mises/Hayek than Rothbard, and the gap will further widen given exposure to both.
IP is, at least in the US, a 200+ year tradition. Don’t be confused by your inflated opinions about how “traditional” Rothbard is to the classical libertarian tradition, especially with regard to topics like IP. He is famous as a student of Mises, not the other way around.
Jeff, I agree–my (our) IP views are indeed the culmination of Austrian-Misesian-Rothbardian-Hoppean thought.
By the way, I think Huebert’s chapter is arguably the best overview of the IP issue in print.
As for the thought of Mises and Hayek on IP, see http://c4sif.org/resources/, in particular:
Yes, Stephan,
We have now all referred to the same sections of Mises. Here is a relevant section regarding external economies, which I think you completely ignore in your treatment of the fundamental economic realities of intellectual production.
The External Economies of Intellectual Creation
The extreme case of external economies is shown in the “production” of the intellectual groundwork of every kind of processing and constructing. The characteristic mark of formulas, i.e., the mental devices directing the technological procedures, is the inexhaustibility of the services they render. These services are consequently not scarce, and there is no need to economize their employment. Those considerations that resulted in the establishment of the institution of private ownership of economic goods did not refer to them. They remained outside the sphere of private property not because they are immaterial, intangible, and impalpable, but because their serviceableness cannot be exhausted.
People began to realize only later that this state of affairs has its drawbacks too. It places the producers of such formulas–especially the inventors of technological procedures and authors and composers–in a peculiar position. They are burdened with the cost of production, while the services of the product they have created can be gratuitously enjoyed by everybody. What they produce is for them entirely or almost entirely external economies.
How do you address this issue in your analysis? by using the first paragraph in your justifications for abolition of IP, and ignoring or arguing against the second.
It is precisely the tradeoff between these conflicting policies which IP law serves, as you know.
This was well addressed in the article… people do gain advantages from writing music and such even without IP.
And good for them.
If anyone creates music, software, an invention, etc. and VOLUNTARILY puts it out there free of charge, more power to them. But those who prefer to profit from their intellectual labor ought to be able to do that, too.
Freedom of choice, isn’t that what Libertarianism all about?
No one ever suggested people should not be allowed to try and sell anything for any price. What they’re saying is that the author cannot press charges against people for finding that thing somewhere else.
@ sweatervest March 26, 2011 at 1:46 pm
What do you mean “finding that thing somewhere else”?
That makes it sound like orignal works can just be found laying around on the grass.
All original works of authorship are derived from an original manuscript, and all copies that exist can be traced back up the chain of causality to that original.
How do you explain the assertion that you are making here, that once a copy is made and distributed, the previous ownership title is severed? The title has not been transferred…so how do you now claim better title to it than the author?
You can only do this by claiming that the author only had title to the paper the work was printed it on. Denying that property rights can exist in the intanible work is the only way you can reach this conclusion. By defining property in this way, you preculde the possibility of property in anything but tangible goods.
Yet in any other context, you would recognize the existence of rights to intangible business interests by operation of contract; a debt for example.
How do you square this contradiction of your treatment of the concept of property?
And from Hayek:
“From Individualism and Economic Order (ironically under copyright), Chicago, 1948, pp. 113-14.
Patents, in particular, are specially interesting from our point of view because they provide so clear an illustration of how it is necessary in all such instances not to apply a ready-made formula but to go back to the rationale of the market system and to decide for each class what the precise rights are to be which the government ought to protect. This is a task at least as much for economists as for lawyers.
That is, property is a human device. We might do well to examine economic operations, adopt desirable economic policies, and design laws to accomplish desirable ends.
Humans who live on islands, or in the fantasies of other, non-existent social orders, need not be bothered with such realities of living in a modern society.
“adopt desirable economic policies, and design laws to accomplish desirable ends”
Utilitarianism.
I am sure you are concerned with accomplishing ends that you desire, but what about everyone else’s ends? Desirable for you, but what about for everyone else?
If everyone just decided to respect IP then there would be no problem. The problem is about what to do with people who don’t respect it, and whether or not it is justified to use aggression against those people.
“Humans who live on islands, or in the fantasies of other, non-existent social orders, need not be bothered with such realities of living in a modern society.”
Straw man. The case against IP is concerned only with modern society, not hypothetical constructions.
@ sweatervest March 26, 2011 at 1:49 pm
What do you think Hayek is talking about above?
If you live on an island, you don’t have to worry about that problem. You just have to worry about natural forces squashing you like a bug. If you are a member of a social group, you have to solve the problem you raise. What do you propose other than small hunter-gatherer groups? To get beyond that level, you need social institutions, which you oppose.
Isn’t this the problem with all rules, all laws, etc.? If men were angles, etc. Once you have rules, you need enforcement. If the rules are just (ethical) then there will be support for enforcement as a defensive act. It they are not just, it will be viewed as aggression and eventually overturned.
Ancap society does not exist. Man alone does not exist. If you want to argue from the theoretical assumption that both do, then you need not be concerned with problems of social cooperation and the governance of those institutions which enable that on a large, technologically advanced scale.
My opinion is that chapter 10 of Huebert’s book is a mish-mash of worn out ideas concerning so called “Natural Rights” and intellectual thieft. I know IP is controversial, but I think Mises has it right as quoted below:
“Patents and copyrights are results of the legal evolution of the last centuries.
Their place in the traditional body of property rights is still controversial. People
look askance at them and deem them irregular.
It is beyond the scope of catallactics to enter into an examination of the
arguments brought forward for and against the institution of copyrights and
patents. It has merely to stress the point that this is a problem of delimitation of
property rights and that with the abolition of patents and copyrights authors and
inventors would for the most part be producers of external economies”
As for “Natural Rights, Mises says:
“There is no room left in the framework of an experimental
observation of natural phenomena for such a concept as natural rights.”
Nature is unfeeling and insensible with regard to any being’s life and
happiness.”
“ the teachings of utilitarian philosophy and classical economics have
nothing at all to do with the doctrine of natural right. With them the only
point that matters is social utility. They recommend popular government,
private property, tolerance, and freedom not because they are natural and
just, but because they are beneficial. The core of Ricardo’s philosophy is the
demonstration that social cooperation and division of labor between men
who are in every regard superior and more efficient and men who are in
every regard inferior and less efficient is beneficial to both groups.”
AT LAST! Someone other than Kinsella to argue with!
Norman,
You are so right about Mises. I have quoted this very passage a number of times, and have fanned the flames by asserting that to insist that authors should be willing to be “producers of external economies” is equivalent to advocating for slavery. Those with a choice will simply not do it.
As for his views on property, he also said that “property is a human device”, and therefore the basis of existence for these acknowledged rights (capture, found or adverse possession, creation, contract or transfer) is not as relevant as subjecting them to the operation of the free market. Over time, things will sort themselves out according to the preferences of consumers.
Finally, and I will probably make additional comments later, it is not sufficient to parade the horrors of specific cases of unjust outcomes as the sole justification for attacking the legitimacy of the human device we call IP. As with all social policies, what is called for is to extricate the atrocities, if and where they exist, while preserving the principles of good social policy. The concept of IP, as one can infer from Ricardo, is good social policy.
As for his views on property, he also said that “property is a human device”, and therfore the basisis of existence (capture, found, creation, contract or transfer) is not as relevant as subjec ting them to the operation of the free market. Over time, things will sort themselves out according to the preferences of consumers.
Finally, and I will probably make additional comments later, it is not sufficient to parade the horrors of specific cases as the justification for attacking the legitimacy of the human device we call IP. As with all social policies, what is called for is to extricate the autrocities while preserving the principle.
“Those with a choice will simply not do it”
Mozart did it. Shakespeare did it. You have been commenting this long on the topic and you still come up with bullshit comments like that?
@Anthony March 3, 2011 at 1:15 am
“Mozart did it. Shakespeare did it. You have been commenting this long on the topic and you still come up with bullshit comments like that?
Good to see you too. How have you been?
First, I am not addressing intrinsic motivations. This is a discussion about the economics of IP rights. Therefore we are talking about extrinsic matters, not the personal motivations for human action. How would you or anyone else know about that?
Second, the fact that these artists produced in the absence of IP laws does not mean that they were forced to produce for external markets. In the economies of their times, they connected their output with income. In some cases it was commissioned composition. In others, it was public performances. In any case, the cost of copying was significantly higher than today. Don’t you think that differences in the economic context between today and say, 1600, are slightly relevant?
@Anthony March 3, 2011 at 1:15 am
(my previous post is being “moderated”)
“Mozart did it. Shakespeare did it. You have been commenting this long on the topic and you still come up with bullshit comments like that?
Good to see you too. How have you been?
First, I am not addressing intrinsic motivations. This is a discussion about the economics of IP rights. Therefore we are talking about extrinsic matters, not the personal motivations for human action. How would you or anyone else know about that?
Second, the fact that these artists produced in the absence of IP laws does not mean that they were forced to produce for external markets. In the economies of their times, they connected their output with income. In some cases it was commissioned composition. In others, it was public performances. In any case, the cost of copying was significantly higher than today. Don’t you think that differences in the economic context between today and say, 1600, are slightly relevant?
@Anthony March 3, 2011 at 1:15 am
(My reposts were captured by the moderator twice because, I presume, I copied your post. go figure.)
“Mozart did it. Shakespeare did it. You have been commenting this long on the topic and you still come up with ******** comments like that? “
Good to see you too.
First, I am not addressing intrinsic motivations. This is a discussion about the economics of IP rights. Therefore we are talking about extrinsic matters, not the personal motivations for human action. How would you or anyone else know about that?
Second, the fact that these artists produced in the absence of IP laws does not mean that they were forced to produce for external markets. In the economies of their times, they connected their output with income. In some cases it was commissioned composition. In others, it was public performances. In any case, the cost of copying was significantly higher than today. Don’t you think that differences in the economic context between today and say, 1600, are slightly relevant?
But just because someone else did it that way, EVERYONE should be REQUIRED to do it that way?
Hardly sounds Libertarian to me . . .
Mises is speaking vaguely here:
“For the most part” of what?
Throughout history most inventions and great works of art have been made with little or no protection for the so-called intellectual property of the inventor. Evidently the problem of external benefits did not discourage ingenuity and creativity. There is scanty evidence for an explosion in creativity since the scope and reach of IP law has vastly expanded in the last several decades. For example, Disney Studios produces cartoons which are no more appealing and original now that they have cajoled congress into giving them practically unlimited copyright protection, than the cartoons they produced in the 1930s when the term of protection was more limited. On the scientific front, one sees a lot of questionable “wonder drugs” for sexual dysfunction and vaccines against non-existent influenza epidemics, but I am not aware of any spectacular breakthroughs comparable to insulin or penicillin. The explosion in the number of patents has not coincided with any explosion in human life expectancy or in the fuel efficiency of vehicles.
The entrepreneurial calculation of inventors and artists takes almost no account of what external benefits others would derive from their work by copying it. They will primarily be concerned with the question of what their own benefit will be. I doubt that non-wealthy inventors and artists take much account of the possibility of having the government protect their creations through IP law. Patents are extremely expensive to acquire and are all but impossible to enforce by anyone who doesn’t have tens of millions dollars for litigation. Copyright is obtained automatically, but it is also beyond the reach of ordinary people to prosecute against offenders. These two pillars of IP law, patent and copyright, therefore exist primarily for the benefit of very wealthy individuals and organizations. It is of course absurd to think that these people have any kind of unique genius which is not possessed by those without the means to litigate. It is also absurd to advocate that government should become proactive in the detection and prosecution of IP violations on behalf of everyone, comparable to the way they prosecute cases of murder. The whole problem of IP is that there is no body to produce and no smoking gun.
@By: Ohhh Henry Today, March 02, 2011, 7 minutes ago | Ohhh Henry
“For the most part” of what?
This is much less vague than you imply. Internal Economies: Output equals Income. External Economies: Output does not equal Income. If this is not true 100% for a given situation, it would be true “for the most part”. For example:
An author may receive some income from his book, but the vast majority is received by the publisher who printed and distributed it without compensation to the author. He is producing for an external market, “for the most part”.
“Throughout history most inventions and great works of art have been made with little or no protection for the so-called intellectual property of the inventor. Evidently the problem of external benefits did not discourage ingenuity and creativity.”
As for your first point, comparing pre-industrial-revolution “patents” to inventions in 1780, much less modern technological society, or the ability to profit from another work of authorship before the printing press or especially in the age of digital copying, is not relevant to contemporary discussions of IP laws.
Second, it is quite likely that Disney was one of the primary beneficiaries of the Bono Act (CTEA), and certainly represents the class of primary beneficiaries, those whose copyrights was about to expire. Like all mercantilist legislation tactics, their special interests were met by absconding political power to the detriment of the general population, who generally are not well financed, well organized, or well educated about how legislation will affect them or future generations. This is the legislative bias that patriots are supposed to be vigilant against. Bono was a political whore to his favorite special interests, the entertainment industry.
Your arguments, therefore, do not touch the fundamental principles of IP legitimacy.
“The entrepreneurial calculation of inventors and artists takes almost no account of what external benefits others would derive from their work by copying it. They will primarily be concerned with the question of what their own benefit will be.”
And you know this how?
‘These two pillars of IP law, patent and copyright, therefore exist primarily for the benefit of very wealthy individuals and organizations.”
It is true there is a threshold, just as there is a threshold in tort law enforcement. As a plaintiff, your damages must be high enough to make availing yourself of the process worthwhile and worth the risk, not unlike the entrepreneurial calculation. I would agree the threshold might be lower, but not zero. Do you intend to pursue battery damages for being aggressively bumped on bus? Of course not. So, the high cost of administration of IP laws is an issue. It does not strike at the heart of the issue of the legitimacy of IP on principle.
As to the rest of your post, it is simply uninformed and inaccurate. The enforcement of rights by the government requires a plaintiff, unless the government is the plaintiff. When, in IP laws, is the government the plaintiff?
Well that’s one way to win an argument … declare any counter-arguments invalid which are “not contemporary (enough)”.
As the holder of several patents, a one-time professional musician, and a professional visual artist. And you refute this how?
You mean, “for the most part”. LOL.
@Ohhh Henry March 2, 2011 at 3:09 pm
This is probably not worth it for either of us, but what the heck…
“Well that’s one way to win an argument … declare any counter-arguments invalid which are “not contemporary (enough)”.
Your premise was based on the observation that at some point in the past, people lived without patents and copy rights. At some point in the past, people lived without fire. So?
I am pointing out to you something which I’m sure you already know. Small and insignificant events like the founding of America and the Industrial Revolution have impacts on the way society organizes itself. Innovations emerge. One of those innovations is the concept of laws in general, and perhaps a little later, IP laws. If we only go back to the writing of the Constitution, that is over 200 years ago. You are asserting that nothing relevant to IP laws has occurred in that time. That is obviously absurd.
”As the holder of several patents, a one-time professional musician, and a professional visual artist. And you refute this how?”
Why would I refute that you hold patents and once got paid to make music and draw things? If you say so, fine.
I notice that Jacob H. Huebert does not offer his book for free, and has designated Mises.org as the exclusive distributor of the paperback version, which oddly, is also not being offered for free. His publisher no doubt has the book registered at the copyright office.
So I can see that he is adamantly against IP, for the most part.
You apparently have no such contradictions, because I assume you have assigned your valuable patents to someone who needs them more than you, right?
Harry Browne was against patents, but he felt that copyrights were different, being contracts between buyers and sellers.
I don’t know what he thought of copyright on someone who recorded a broadcast, however. When someone puts something out for everyone to hear or see, I don’t think there’s a contract and so I would argue for freedom in that case. But if you agree not to copy when you purchase, then copyright would be a private contract and should be ok with libertarian principles.
“Libertarians are already winning as people around the globe incessantly violate the legal rights of copyright holders by sharing music through bit-torrent programs and by uploading (and remixing and mashing up) videos of copyrighted material to YouTube without the slightest feeling of guilt.”
I think this is they key quote to take away from this article. All you pro-IP advocates are fighting a losing battle against economic law. People have a natural tendency to respect physical property ownership and disregard IP law, no matter what they’re told (this fact, BTW, demonstrates the absurdity in any claim that IP is somehow grounded in natural law). All those who form oppressive governments to try and enforce such unnatural laws will simply be outdone by those who do not.
Most people don’t have a problem with governments violating the physical property rights of others. Does that mean this is okay?
The dynamic is different. People naturally tend not to feel responsible for the actions of others. Governments take advantage of that tendency as much as possible.
EDIT: I understand my original point can seem like an is/ought fallacy. I understand that it does not justify whether or not IP ought to exist, just that it can’t exist without putting in place an apparatus that most libertarians would find repugnant.
Mashuri March 2, 2011 at 3:06 pm
“I understand that it does not justify whether or not IP ought to exist, just that it can’t exist without putting in place an apparatus that most libertarians would find repugnant.”
Yet you have no objection to calling the cops if someone breaks into your house. You would have no problem availing yourself of the courts if an airplane crashed through your roof, right?
Do you call that kind of “apparatus” repugnant?
If government exists (some libertarians actually think it does and should), then it exists to protect citizen’s rights. All rights.
Yet you have no objection to calling the cops if someone breaks into your house. You would have no problem availing yourself of the courts if an airplane crashed through your roof, right?
Do you call that kind of “apparatus” repugnant?
Yes, I do find an apparatus that forces me to fund and use only their monopoly on enforcement repugnant.
If government exists (some libertarians actually think it does and should), then it exists to protect citizen’s rights. All rights.
Most of us libertarians understand that government exists to primarily serve itself, at the expense of its citizens’ rights.
Classical liberals complain the meaning of “liberal” was distorted and appropriated by the left and the social-democrats.
So classical liberals started talking about themselves as libertarians.
Now it seems the term “libertarian” is being taken by the anarchists.
You cannot be a libertarian (some say a “true libertarian”) unless you are against the State itself, and not some of the things it does. In other words, you are not a libertarian unless you are an anarchist.
I’m not sure this is good. I don’t see any flaws in the anarchist’s argument. However I don’t see the modern world working without the State. Then again, it won’t be the modern world anymore once the state goes the way of the dinossaurs, it will be some other world.
@Mashuri March 2, 2011 at 4:15 pm
“Yes, I do find an apparatus that forces me to fund and use only their monopoly on enforcement repugnant.
Of course you understand this is false. You have every right to self-defense and citizen’s arrest. You can use an arbitrator or mediator if you wish. Where is the force? What you mean is “an authority of last resort”, and perhaps you resent others having the right to use this protection apparatus against you?
I suspect if you were in the shoes of the accused, you would be grateful for those little niceties like due process, procedures, rules of evidence, constitutional protections, trial by jury, presumption of innocence, stuff like that.
Many here seem to imagine how wonderful it would be to have your own PDA to go after the bad guys, but rarely wonder how they would like being innocently accused and having nothing but their own personal resources available to defend with. Funny thing about liberty, it cuts both ways.
“Most of us libertarians understand that government exists to primarily serve itself, at the expense of its citizens’ rights.”
To the extent this is true, I’m with you. To the extent it is not, you are wrong.
What is the ideal? Is it the absence of all forms of government?
How about a government of the people, by the people, for the people? If that was an ideal government, are you still a libertarian? Be honest, now….
@Agusto
“Now it seems the term “libertarian” is being taken by the anarchists.
You cannot be a libertarian (some say a “true libertarian”) unless you are against the State itself, and not some of the things it does. In other words, you are not a libertarian unless you are an anarchist.”
BINGO on this part. It is a well worn Orwellian tactic. Mises.org thinks they own libertarianism, that they carry the torch for the world because they insist they are the “true” libertarians. Sounds like religious fanaticism to me.
You need to work harder on seeing the flaws in the anarchist argument, though, but nobody’s perfect.
Of course you understand this is false… blah, blah, blah…
Really? So, I can just start up my own law enforcement and court system to compete with the U.S. monopoly, and opt out of paying for my competition, without any fear of reprisal? Do tell!
How about a government of the people, by the people, for the people? If that was an ideal government, are you still a libertarian? Be honest, now….
You mean tyranny through mob rule — I mean, democracy? Sounds ideal to me…
The only Orwellians are the ones who try to deviate the term “libertarian” from its defining anti-aggression principle.
You cannot be a libertarian (some say a “true libertarian”) unless you are against the State itself, and not some of the things it does. In other words, you are not a libertarian unless you are an anarchist.
If “libertarian” is to mean anything, it must mean the support of liberty; do you disagree? The state is inherently anti-liberty, since it imposes itself on unwilling subjects (by definition; it’s not a state if it’s entirely voluntary); do you disagree? Therefore it follows that a libertarian must be against the State; i.e., an anarchist. So yes.
@Mashuri March 2, 2011 at 6:53 pm
“Really? So, I can just start up my own law enforcement and court system to compete with the U.S. monopoly, and opt out of paying for my competition, without any fear of reprisal? Do tell!”
Well, almost half of all Americans pay no income taxes at all. You are free to join them. You can further reduce your tax burden by owning no property and buying only groceries. You can show up at emergency rooms when you want to see a doctor, like millions of others do. You won’t get a bill.
You don’t have to ever go to court unless you do something illegal. If someone mugs you, you are not required to call the cops.
If you want to use your own method of third-party dispute resolution, there are several commercial alternatives available; mediation, arbitration, and judicial reference. You can hire your priest and live by his decisions. No one will stop you.
So, what is it exactly you are whining about?
***How about a government of the people, by the people, for the people? If that was an ideal government, are you still a libertarian? Be honest, now….***
i> “You mean tyranny through mob rule — I mean, democracy? Sounds ideal to me…”
See, I knew you couldn’t do it. Pray tell what is anarchy except mob rule? Oh, I forgot. When anarchism reigns supreme, all men will be angles.
“The only Orwellians are the ones who try to deviate the term “libertarian” from its defining anti-aggression principle.”
See, you’re just being funny now. Let me see if I have this…If you have any other principles besides non-aggression, you can’t be a libertarian? All Buddhists and Quakers are pure libertarians? Got it.
Well, almost half of all Americans pay no income taxes at all. You are free to join them. You can further reduce your tax burden by owning no property and buying only groceries. You can show up at emergency rooms when you want to see a doctor, like millions of others do. You won’t get a bill.
That’s a choice in the same sense a criminal saying, “Your money or your life,” is a choice. BTW, you didn’t answer my question so let me clarify: Am I free to start my own law enforcement agency and court system, that supersedes the government controlled system, for those who choose to patronize it? Are those who choose my system free to opt out of paying for the system they no longer use? Yes or no?
See, I knew you couldn’t do it. Pray tell what is anarchy except mob rule? Oh, I forgot. When anarchism reigns supreme, all men will be angles.
Assumption 1: Anarchy can only mean mob rule. By what apparatus would mob rule be imposed in a true anarchy?
Assumption 2: Mashuri thinks all men are angles. Where did I say that? Why did you choose to project that belief onto me?
See, you’re just being funny now. Let me see if I have this…If you have any other principles besides non-aggression, you can’t be a libertarian? All Buddhists and Quakers are pure libertarians? Got it.
Oh, what fun, a semantics tangent totally irrelevant to the original subject. I understand that the term “libertarian” has been used to cover a scope wider than pure anarchy. I’m stating that anarchism is the only truly consistent interpretation of individual liberty and that, among other things, appeals to me greatly. As for your equivocation, any full-on pacifists’ beliefs would certainly be compatible with the non-aggression principle, but pacifism is not required to adhere to the non-aggression principle. Violence as self-defense against violent aggression is perfectly justifiable.
@ Mashuri March 2, 2011 at 1:21 pm
“People have a natural tendency to respect physical property ownership and disregard IP law, no matter what they’re told”
How wrong you are. People tend to act morally. In the absence of morality, it is a matter of force. This applies equally to all rights of humans. If rights have an ethical basis, they tend to be respected by most people. If the consequences are low, people tend to give themselves a “pass” rather than give up self gratification. They usually acknowledge they are doing something wrong.
By your view of humanity, we are all degenerating into immoral thieves anyway, so might was well not fight it. It is a losing battle.
How wrong you are. People tend to act morally. In the absence of morality, it is a matter of force. This applies equally to all rights of humans. If rights have an ethical basis, they tend to be respected by most people. If the consequences are low, people tend to give themselves a “pass” rather than give up self gratification. They usually acknowledge they are doing something wrong.
That’s right, people tend to act morally. Consequences are low if someone finds lost money, for example, but most people tend to return it anyway. This behavior refutes your “pass” premise. In the case of IP violations, most people acknowledge that they are doing something illegal but don’t necessarily feel it is morally wrong. That’s the key difference that manifests itself in whether a person gives themselves a “pass” or not.
By your view of humanity, we are all degenerating into immoral thieves anyway, so might was well not fight it. It is a losing battle.
Do you really need to stoop to creating straw men? If I held that view of humanity, then I wouldn’t have stated that people tend to respect physical property rights.
@Wildberry,
Here is a little excerpt of what Frank Chodorov in Human Nature and the “Perfect Society thinks about human natural tendencies:
But, taking him by and large, man does not always act on principle; more often, he acts on considerations of immediate profit and convenience. Reason seems to be less of a guide for human behavior than appetite. His history supplies plenty of support for this opinion. Even in the smallest and most intimate social unit, the family, the predatory impulse finds expression in the Jacob-Esau inheritance swindle, and the use of fraud or force to acquire property without laboring for it is the leitmotiv of the social saga.
Were it not for this dominant element in man’s makeup, conquest would never have been practiced, slavery would never have been known, privileged classes would never have made an appearance, monopolies never instituted and the “welfare state” never thought of. Indeed, there never would have been a State, which is merely the organization of force for the transference of property from “one set of pockets to another.”
Freedom is not the highest in man’s hierarchy of values. He may talk of it in the most laudatory terms, but his behavior belies his protestations. Although at times, when the multiplication of external restraints makes existence unbearable, he does put forth effort to shake off some of the shackles, his overall biography indicates an overpowering passion for something-for-nothing, an inability or unwillingness to hold it in leash, and a readiness to submit to restraints under the promise of loot.
The modern “welfare state” is most illustrative; it is admittedly and boastfully the organization of force for the confiscation and distribution of property. It is the complete antithesis of that “absence of restraint” that is the substance of freedom.
Despite this bald fact, it acquires a reputation for humanitarianism and receives the blessing of all who batten on the production of others as well as of those who hope to: the banker and the industrialist who thrive on the taxes it collects, the farmer who is paid for not farming, the “free lunch” mother, the host of pleaders for special privilege. Is it freedom they want? Hardly. The responsibilities of freedom are in conflict with the law of parsimony.
sorry, Joe.
I have no idea what you are trying to say.
@Wildberry,
Just trying to contrast what you said, “People tend to act morally. In the absence of morality, it is a matter of force. This applies equally to all rights of humans. If rights have an ethical basis, they tend to be respected by most people. If the consequences are low, people tend to give themselves a “pass” rather than give up self gratification. They usually acknowledge they are doing something wrong.”
Frank seems to have a different opinion. And looking at the world today I would think Frank has hit the nail on the head. The morality of today is steal from one person and give to another. That is the essence of the modern welfare state.
They don’t usually acknowledge they are doing something wrong. The can’t because the concept of right and wrong is not taught by parents and in schools today.
I used to think like you and not long ago. Today as I view the world and the people I meet I have become very cynical.
So morality is changing for the worst. Look at human nature and what Frank has to say “man does not always act on principle; more often, he acts on considerations of immediate profit and convenience.”
I agree with what you say except your faith in the human condition as it pertains to right and wrong and morality.
Sorry to confuse you with my obscure reply above. I should have been more clear.
Joe,
You are right that it comes down to what one believes is the basic nature of human beings. Are you a moral person? Do you think you are alone, or in the vast minority?
The fact is, even when looking at the State in the aggregate, as you are, it is a concentration of political power in the hands of a few. You are making an institutional observation. Even in this view, thieves are not roaming the streets.
Politicians, as an institution, attempt to buy their constituents. Constituents attempt to buy politicians. Your grocer is likely a very moral person. Not the same thing.
Wildberry, since you seem to be so enamored by copyright protections, I would like to see you live up to your ideals: stop quoting those people you are trying to refute, because by quoting them, you are violating their given copyrights.
Granted, you will likely claim that quoting things is “fair use”, but what is fair use? It’s defined on a case-by-case precedent, by court fiat. You can only quote a certain percentage of an article, unless the article is short, and the entire thing is relative to your point, in which case you can copy it up to 100%. But you won’t know whether your case is fair use, until the person you quote registers his copyright, and then sues you in court, and after a lot of lawyer’s fees, it is determined that what you quoted really is fair use, unless it isn’t.
Or, alternatively, those you quote could sue you, with the hope that you’ll settle out of court rather than fight things–which is, by the way, the business model of a law firm called Righthaven–and which is also a club that is used to bludgeon bloggers that make little profit, and are doing this kind of thing in their free time.
Alpheus,
With all DUE respect, you are either ignorant of the law or dishonest. Let’s assme the former.
It is a fair use. Frivilous lawsuits have consequences for the petitioner. By referring to the statute and case law, one can avoid the hassle and expense of litigation, which is a rather important point in the overall scheme of things.
Unfortunately, as demonstrated by Righthaven, even “trivial” lawsuits can have profound effects on people. Because of one lawsuit, Clayton Cramer temporarily canceled his blog, settled out of court (he did not have the means to defend himself), and decided to close his tripod roller business, because he decided that he cannot accept the risk of patent lawsuits after having been sued for copyright. He also now moderates comments–which significantly alters the flow conversation on his blog–because the burden of satisfying the law, to remove risk from himself, is too great. (I cannot remember the precise details, but it involves registering with the DMCA, I think, and there are other conditions which were problematic.)
All for something that was likely to be fair use after all!
Clayton Cramer is a historian, a professor, and a software engineer; he blogs in his spare time. He is not a lawyer, and I doubt he would like to become one. Just why should he be expected to become an expert in statute and case law to avoid the hassle and expense of litigation, just to post his opinion? Or, in the case of the lawsuit in question, to draw attention to lawful uses of self defense? Even with all the statutes and case law, there is *still* plenty of gray area, potentially subject to lawsuit; laws can change; even case law can change. How does it benefit the public discourse to do *any* of this? Why, if copyright is so valuable, do we have such a byzantine source of “fair use” rules, that grow from case to case, to this day?
And how does closing his business benefit the hundreds of people around the world who made use of his products?
So, with all DUE respect, if you love copyright so much, then you should do all you can to bring it up to its full potential. Demand that so-called “fair use” end to today. After all, every person who checks out a book from the library, after the first person has read it, is taking money away from the author!
@Mashuri March 2, 2011 at 2:31 pm
” Consequences are low if someone finds lost money, for example, but most people tend to return it anyway.”
These are your words, so you are confusing me. We seem to be agreeing that most people conduct themselves morally. By the same token, more people buy IP than steal it.
It is not a straw man. It is your view expressed in extreme terms to show the real meaning of what you are saying. You are saying that the only thing standing between moral and immoral conduct with regard to IP is the threat of punishment. For most people, that is not the case.
Try reading the body of discussions on this very blog to see evidence of that. IP opponents on principle are not even the majority, in all likelihood, and the prominent spokespersons on this site are decidedly biased on the issue.
These are your words, so you are confusing me. We seem to be agreeing that most people conduct themselves morally. By the same token, more people buy IP than steal it.
More people purchase IP due to convenience and to avoid potential punishment.
It is not a straw man. It is your view expressed in extreme terms to show the real meaning of what you are saying. You are saying that the only thing standing between moral and immoral conduct with regard to IP is the threat of punishment. For most people, that is not the case.
It is a straw man, regardless if it was intentional or not. The extreme term you came to was based on misleading assumptions. Threat of punishment is one component influencing whether a person chooses to violate IP or not, along with convenience (using iTunes is cheap and easy enough for most not to bother with bittorrent, for example) and other factors. This contrasts, however, with physical property where most people respect property rights even when it’s inconvenient and threat of punishment is low.
Try reading the body of discussions on this very blog to see evidence of that. IP opponents on principle are not even the majority, in all likelihood, and the prominent spokespersons on this site are decidedly biased on the issue.
Actions speak louder than words. Most people respect physical property without any understanding of the principles behind it while a great deal violate IP despite being presented with justifications for its existence and threat of punishment is high. The former is natural law while the latter is not.
@Mashuri March 2, 2011 at 3:28 pm
“More people purchase IP due to convenience and to avoid potential punishment.”
Sounds like a free market to me. If pirating songs was not illegal, I can assure you that iTunes would have a bunch of very convenient competitors.
I think you are drawing a false distinction between rights in land and rights in IP. If people want to get to the beach, and have to trespass, they might do it if the risk of harm is low. If there is a barking dog behind the fence they have to jump, they might choose a different beach. Your point?
You are smuggling in your assumption about how property rights can only arise under a natural rights theory. They can, but it is not necessary. This is similar to my assertion that homesteading is one way property rights can arise, but not the only way.
Property law operates on the principle of better title. This principle fits nicely with IP laws as well. You attempt to support your argument against IP by ignoring the realities of property rights in land. Very, very few people claim legitimate ownership in land because of some former homesteading act. Be honest about that and the rest flows naturally.
Wildberry, you’re hilarious. What free market exists where there is a monopoly provider of IP who isn’t selected through competition, but rather violence and fear?
@ DixieFlatline March 2, 2011 at 4:54 pm
“What free market exists where there is a monopoly provider of IP who isn’t selected through competition, but rather violence and fear?”
And you think I’m hilarious? When was the last time you had a gun placed next to your head under threat of violence and fear, if say, you didn’t read Heubert’s book? Yet you claim this is the case in general? He is the only guy who can write books?
Pray tell, who is the “monopoly provider of IP” and how is he selected by “violence and fear?”
No really, I’m curious!!
You can’t be this bad at comprehension Wildberry. Either present a logically sound argument or spare us your rhetoric.
The state is the monopoly provider of IP. All IP is just a state title grant, is it not?
Sounds like a free market to me. If pirating songs was not illegal, I can assure you that iTunes would have a bunch of very convenient competitors.
I don’t dispute this. iTunes may not survive in such a market and, if not, so be it.
I think you are drawing a false distinction between rights in land and rights in IP. If people want to get to the beach, and have to trespass, they might do it if the risk of harm is low. If there is a barking dog behind the fence they have to jump, they might choose a different beach. Your point?
There is a reason easements easements exist, and they didn’t come about by government fiat. Also, be careful not to draw false distinctions between physical property laws today and natural property laws. There are differences.
You are smuggling in your assumption about how property rights can only arise under a natural rights theory. They can, but it is not necessary. This is similar to my assertion that homesteading is one way property rights can arise, but not the only way.
No, I’m asserting that they are the most natural (by definition) and, therefore, the easiest to adapt and enforce.
Property law operates on the principle of better title. This principle fits nicely with IP laws as well. You attempt to support your argument against IP by ignoring the realities of property rights in land. Very, very few people claim legitimate ownership in land because of some former homesteading act. Be honest about that and the rest flows naturally.
Natural property rights also involve the transfer of physical property between people so tracing all the way back to who homesteaded, while ideal, is not necessary. Physical property rights and IP rights do not fit well at all with each other. In fact, they conflict with each other since IP laws determine control and ownership of physical property. I’ve never seen anyone (including you) satisfactorily answer Peter Surda’s question about said conflict.
@Mashuri March 2, 2011 at 7:13 pm
“I don’t dispute this. iTunes may not survive in such a market and, if not, so be it.”
Who is talking about iTunes? I am talking about authors of original works. They are the ones whose works are being ripped off.
“There is a reason easements exist, and they didn’t come about by government fiat. Also, be careful not to draw false distinctions between physical property laws today and natural property laws. There are differences.
You’re wrong. The creation and enforcement of easements, along with all other operations of property rights, come about through operation of law. You are making two errors here.
First, you assume that property rights can only arise through a theory of natural laws.
Second, you assume there is a significant and fundamental difference between property rights in land and other property rights. There are differences, but they are nuances, not something fundamental, and certainly nothing fundamental enough to stand alone as a justification to abolish the concept if IP rights.
“No, I’m asserting that they are the most natural (by definition) and, therefore, the easiest to adapt and enforce.”
My point is made by your response. You are now saying that the reason you prefer a natural rights theory above all others is because they are easiest to adapt and enforce. If that was your ethical basis, we can just revert to “might is right”. Easy!
“… tracing all the way back to who homesteaded, while ideal, is not necessary.”
We how are you going to transfer something you don’t own in the first place? Isn’t that a little contradictory? If you really believed in homesteading, you would believe that we should give all the land in America back to the natives. And why stop there, there is Europe to correct. Let’s get the world straight and start over. Ooops! Even if you did that, there wouldn’t be anything to homestead! What now? No property rights in land?
“I’ve never seen anyone (including you) satisfactorily answer Peter Surda’s question about said conflict.”
Why do you think that is? I’ve wasted countless hours trying to dialogue with Peter Surda. There is no conflict, so I can’t resolve one. Mystery solved.
Who is talking about iTunes? I am talking about authors of original works. They are the ones whose works are being ripped off.
In the case of copying, they still have their original work so that is not being ripped off. The fundamental difference between you and I is that you believe the originator has a right to an exclusive market share. That’s what you see as being ripped off.
You’re wrong. The creation and enforcement of easements, along with all other operations of property rights, come about through operation of law. You are making two errors here.
I don’t want this to go off on a tangent but my point was that these agreements came about spontaneously, without government decrees. Common law was later adopted by governments and, of course, then distorted in their favor.
First, you assume that property rights can only arise through a theory of natural laws.
In the sense that rights can only be natural, yes. They can be recognized in some official form but they were already evident without any form of decree or fiat. All other property “rights” are actually privileges.
Second, you assume there is a significant and fundamental difference between property rights in land and other property rights. There are differences, but they are nuances, not something fundamental, and certainly nothing fundamental enough to stand alone as a justification to abolish the concept if IP rights.
I think there are no differences in property rights. I just don’t recognize non-rivalrous abstract patterns as property. IP did not exist before some government body declared it so. Physical property rights did.
We how are you going to transfer something you don’t own in the first place? Isn’t that a little contradictory? If you really believed in homesteading, you would believe that we should give all the land in America back to the natives. And why stop there, there is Europe to correct. Let’s get the world straight and start over. Ooops! Even if you did that, there wouldn’t be anything to homestead! What now? No property rights in land?
You don’t understand much about libertarian property theory do you? Were the natives using every square mile of land in the U.S.? More like less than 5% of it. BTW, while the burden of proof would fall on the accuser, I do believe Native Americans have enough evidence to reclaim a lot of property taken from their kin. As for legitimacy, the best one can do is trace any property back as far as possible and, if no foul play can be found, consider the current ownership to be legitimate.
Why do you think that is? I’ve wasted countless hours trying to dialogue with Peter Surda. There is no conflict, so I can’t resolve one. Mystery solved.
I download a song from napster onto my computer. The record company demands that my computer equipment be seized because I stole their intellectual property. I claim that they still have their song and that they are violating my physical property rights in my computer. Just because you agree with a particular side of this conflict doesn’t mean that there isn’t a conflict.
@ Mashuri March 2, 2011 at 8:51 pm
“In the case of copying, they still have their original work so that is not being ripped off. “
With all due respect, you are simply repeating what you’ve heard. Do you deny that the cause of the copy is the original? Without the original, you wouldn’t be able to copy, right? So why are you trying to turn the arrow of causation backwards? It is not the effect of the copy on the original, but the other way around.
“The fundamental difference between you and I is that you believe the originator has a right to an exclusive market share. That’s what you see as being ripped off.”
I keep waiting for you to say something I can support. If you own a hotel, do you have an exclusive right to the market share associated with that hotel, or as another blogger said, would you allow me to set up a hot dog stand in your lobby? Property means monopoly economic rights, doesn’t it? So why do you want to make “special” rules for IP?
“Common law was later adopted by governments and, of course, then distorted in their favor.
Common law is a function of government enforcement authority. You are merely trying to repeat something you heard. Something about how legislative law corrupted the common law.
I have no idea what you mean by “distorted in their favor”, but I assume it is some kind of anti-government sentiment, although your point is lost on me. So give me a clue. Who did what to whom?
“In the sense that rights can only be natural, yes. They can be recognized in some official form but they were already evident without any form of decree or fiat. All other property “rights” are actually privileges.”
I’m not sure what distinction you are making. Are you saying that the only rights that can ever exist must be derived from natural rights theory? Mises has already been quoted on this, so I just refer you to that.
“IP did not exist before some government body declared it so. Physical property rights did.”
Are you thinking about what you are saying? If physical property rights “existed” before government, then you are talking about some primitive form of society in which morals were defined within the tribe, and self defense was the only right against invasion. Invaders claimed legitimate rights under capture theory. It is only when the forces of government authority could offer protection beyond the resources of a single property holder that peaceful exchange could occur, and common law and courts could intervene in disputes.
“You don’t understand much about libertarian property theory do you?”
Well, let’s see. I’ve got the homesteading principle memorized. To be your kind of libertarian, that’s all I need to know.
“As for legitimacy, the best one can do is trace any property back as far as possible and, if no foul play can be found, consider the current ownership to be legitimate.”
Do you see that when you are honest about it, you end up agreeing with what I already said. Who “consider(s)” it legitimate. You abandon your homesteading principle if you can’t find an example of it? You just “assume” it happened? That is my point.
Most land in California finds its origins in Spanish land grants. I doubt if the natives gave it up voluntarily. How does that fact comport with your theory of homesteading? No one in California has legitimate rights to their land, right? Be consistent.
“Just because you agree with a particular side of this conflict doesn’t mean that there isn’t a conflict.”
Who said there isn’t a conflict? You just don’t acknowledge that the IP rights holder is a party to that conflict. You think the government is the party to a conflict with you. That is how confused you are about this subject.
You are violating the rights of the song writer. He has a cause of action. He is entitled to avail himself of governmental institutions of enforcement, just as in any other infringement of individual rights.
Ironically you make another valid point. If IP was not property, why would there be a conflict? Isn’t rivalry part of your principles of property rights? Well, there is rivalry between the owner and misappropriator over the use of something. Who has better title to it, the author or the copier?
With all due respect, you are simply repeating what you’ve heard. Do you deny that the cause of the copy is the original? Without the original, you wouldn’t be able to copy, right? So why are you trying to turn the arrow of causation backwards? It is not the effect of the copy on the original, but the other way around.
What is the effect?
I keep waiting for you to say something I can support. If you own a hotel, do you have an exclusive right to the market share associated with that hotel, or as another blogger said, would you allow me to set up a hot dog stand in your lobby? Property means monopoly economic rights, doesn’t it? So why do you want to make “special” rules for IP?
“Property means monopoly economic rights”. Well, there’s our key difference right there. You do believe people can have exclusive rights to a market share. Where does that right come from? What is the nature of it? Is there any part of it that is not arbitrarily determined? Let’s continue with your hotel idea. Why can’t I have exclusive rights to hotels overall? If I build the first hotel, I should be able to prevent anyone else from building any competing hotels anywhere. After all, I own that market share and any imitators are stealing my idea and my customers. I should also be able to go after any substitutes to hotels, like motels or B&B’s. They take from my market share as well.
BTW, I’m sure you know this, but I submit that property means the right to control a rivalrous resource (rivalrous = no two entities can possess it at the same time).
Well, let’s see. I’ve got the homesteading principle memorized. To be your kind of libertarian, that’s all I need to know.
You obviously don’t. Try reading a little more.
Who said there isn’t a conflict?
You did. Quote: “There is no conflict, so I can’t resolve one.”
If IP was not property, why would there be a conflict? Isn’t rivalry part of your principles of property rights?
Oh, now there is no conflict again? It’s like a line-item flip-flop with you. The conflict is in the control over physical property caused between those who want to impose IP and those who do not.
@Mashuri March 3, 2011 at 7:08 pm
What is the effect?
The copy.
You do believe people can have exclusive rights to a market share.
No. Monopoly rights to property does not mean market share rights. You wouldn’t let me put my hot dog stand in the lobby or your hotel, right? As to the rest, I can’t’ follow. The fact that you own a hotel does not mean you own the CONCEPT of hotel. Because I write a book does not mean that I own the CONCEPT of book. Come again?
BTW, I’m sure you know this, but I submit that property means the right to control a rivalrous resource (rivalrous = no two entities can possess it at the same time).
Yes. If I own a hotel, you can’t rent rooms in my hotel. You can rent rooms in your hotel.
?You did. Quote: “There is no conflict, so I can’t resolve one.”
OK you are getting a little goofy, now. You asked me about Peter. This is my answer to that. Don’t try to make it an answer to something else you didn’t ask. That’s not fair.
Oh, now there is no conflict again? It’s like a line-item flip-flop with you. The conflict is in the control over physical property caused between those who want to impose IP and those who do not.
I’m trying to figure you out. Are you trying to be obtuse?
If you are going to try to throw Peter Surda up to me, then at least understand his argument.
He says that intangible goods cannot exist without a fixation to tangible goods. If all tangible goods are already covered by property rights, then to grant property rights in the intangible means that you have to take away from tangible property. That is his contradiction. It is BS.
I have argued thus: If you start with blank pages of a book, you can establish who owns the paper. If you fix a story on the pages using ink and the alphabet, you have something more than blank paper. If you erase the letters you have blank pages again. What is the difference? Peter says nothing, I say IP. What is the contradiction? Tell me, I’m all ears.
Peter, are you listening? This is where you say, “That is not my argument.” Go for it.
Wildberry,
I have been busy lately (among other things, I got married), but I saved your posts for reading and answering later when I have time.
No Wildberry, I don’t say the “difference is nothing”. I already complained about this misrepresentation, but it appears to fall on deaf ears. As I said previously, your speciality appears to be vagueness and demagoguery.
Among other things, my argument is phrased as an implication rather than an assumption. So that alone disqualifies your “counterargument” even without understanding what my argument is about.
Furthermore, the “counterargument” you provide is a non-sequitur. Merely because sets A and B are not identical, it does not follow that there is a third set, C, which contains elements that are not in either A or B. To put this into an example, let’s say that X prays for his child to recover from and illness, and it does. There is evidently a difference between a sick and healthy child, yet it does not follow that god exists.
My actual argument is, to rephrase it in more colloquial terms, that if all the acts of “creation” and “copying” are covered by physical property rights, then you cannot claim that there are “missing rights”. There are two totally trivial ways of confronting this. One is to show an act of “creation” or “copying” which is not covered by physical property rights, which would refute my claim. The second is to admit that there is nothing missing, but IP is more important than physical property so it’s ok if it takes precedence. IP-confusists are apparently too stupid to understand the first one, and too cowardly to admit the second one.
Wildberry,
So, if X performs an action A (e.g. the creation of an original), and Y performs a causally related action B (e.g. the creation of a copy), and X does not like it, it means that Y violated X’s rights? Because, you know, if your answer is “no”, then you admit that causality is either insufficient or unrelated for “rip off” and your argument falls apart due to a false implication. If your answer is “yes”, then I have some other questions for you, but I’ll wait for now.
Logic, Wildberry. You can’t avoid it, although admittedly you’re trying very hard.
Oh and one more thing Wildberry:
The conflict exists due to the rivalry of the resources the copy is made of. The paper and ink, for eaxmple cannot be simultaneously in states that satisfy both the author and the “pirate”. It does not follow that there is “IP”, that argument is a non-sequitur. On the other hand, if it was possible for the paper and ink to be simultaneously in states that satisfies both the author and the “pirate”, then there would be no conflict. From this it follows that if IP has other effects than the redistribution of rights in physical goods, they would be meaningless (because of the absence of conflicts) and undetectable (because we cannot observe them), so it would be pointless to have a debate about them.
Yet again, logic catches up with you.
Peter, you have taken out a very important variable from your equation.
X performs more than just an action A (creation of an original).
X also performs action A2 (making the original available to someone else on certain conditions).
If Y uses A in a manner that is inconsistent with the conditions imposed on the use of A by X, then yes, Y violates the rights of X.
While under today’s laws copyright protection is “granted” automatically, by virtue of the sole fact of the creation of the work, all it does is that it pacifies creators in their attempts to sell the work without being afraid that it will be used without their permission.
The issue of violated rights only comes into play after the work was made available to (or was unlawfully accessed by) third parties.
So going back to your equation:
X performs action A and then A2
A2 is an offer to the public to the effect that A can be used but only under the terms prescribed by X.
Y wants to use A to create B.
If creation of B from A violates conditions set out in A2, then Y violates the rights of X.
Otherwise, Y is within the license defined in A2.
Andrei,
it is actually you who left out an important variable. You added a contract, but left out third party, which is what IP is about. It’s not about contracts, but about applying restrictions to people who you do not have a contract with. Let’s see what that looks like when you put it all together.
X performs an action A (and A2, although it’s redundant), and makes a contract with Y which stipulates that if Y performs an action B, causally related to actions A and/or A2, Y owes X money. This has nothing to do with IP per se and does not require any other laws than the physical property rights.
However, if Z, which X has no contract with, performs action C, causally related to A, A2 and/or B, did Z violate X’s rights? We know he can’t have violated a contract because there is none. So, what do you do now? It could be that Y did not legally created B, but what does this have to do with Z and C?
Let’s provide an example: there is a bank robbery, and a journalist writes an article about it in a newspaper (= causal relation but no contractual relationship). Does that mean that because the robbers violated the bank’s rights, the journalist also did that?
Peter,
This is where you are wrong.
X does have a contract with Z or anyone else who uses A, simply by virtue of that proposed use.
Look up my first post here. This is no different from an offer to the public on public parking lots, where a person’s parking the car constitutes acceptance of a contract to pay and leave. The parking lot is out there. The owners of the parking lot have no idea who is going to park there at any given time. What they do know is that they want to get paid by anyone who enters the lot and parks their car there.
Same with copyright. We are not talking just about the first license from A to X. We are talking about the copyright owner putting the work on the market with certain conditions. Copyright laws’s objective is to create certain rules that are applies “unless otherwise agreed upon”, and then to allow enforcement.
So yes, when Z picks up a book or a DVD or whatever that contains on it a work of IP, there is a contract between X and Z.
Wildberry: “If you erase the letters you have blank pages again. What is the difference? Peter says nothing, I say IP. ”
THis is basically Schulman’s argument in his Logorights argument. http://blog.mises.org/11323/kinsella-v-schulman-on-logorights-and-ip/ HE argues:
I.e., he has an argument that a thing’s “identity” is bound up in the logo “in” it, and thus you own the logos itself. It’s bizarre and doesn’t follow, but it’s a valiant attempt.
Mincov:
“when Z picks up a book or a DVD or whatever that contains on it a work of IP, there is a contract between X and Z.”
But Z does not need to “pick up” a tangible item to learn information. If X sells a new mousetrap, then Z can learn of the innovations embodied in it without ever handling it or entering into any contract. This is the tradeoff X faces: if he wants to sell his mousetrap he cannot avoid revealing to the world his secrets. So then others can compete with him–emulate him, learn from his product, etc. Sure, he might be able to insist on a contract with each actual customer (though I doubt people would buy the mousetrap if they thereby incurred IP type liability), but that does not bind third parties.
Same with copyright. Z might know the general plot of Star Wars even if he never saw the movie. So he never entered into any contract w/ X, and is free to use his general knowledge to, say, write “Z’s continuing adventures of Han Solo.”
Andrei,
You switched the meaning of terms in the middle of the argument. You use the word “use” to refer to causality. I try to avoid the term “use” in arguments due to vagueness. So, let me ask you differently: can you rephrase same sentence without referring to causality?
This is a non-sequitur. You have the argument backwards. From the fact that a person parks a car you cannot derive the conclusion that someone owns the parking space. Just like from the fact that someone makes a copy you cannot derive the conclusion that someone owns the text that book refers to. Without clarifying what property is and what rights are, the whole debate is pointless. That’s what I’m trying to do, I’m trying to get you to formulate consistent rules.
This is another example of what I’m talking about: vagueness. What does “putting the work on the market with certain conditions” mean and what does it have to do with causality?
From the point of view of economics It is completely irrelevant what copyright is supposed to do. What is important is what it does. It expropriates physical property. That’s what the book excerpt is about, that’s what many Austrian economists realised and that’s what is, apparently, too complicated to comprehend for some people, e.g. those who are emotionally attached to IP and those who invested their time into business models that wouldn’t work without it.
So, why is the journalist from my example exempt from this rule? Or isn’t he? You didn’t really answer that question.
Hi Stephan.
Nice to hear from you. Your ears must be burning.
“I.e., he has an argument that a thing’s “identity” is bound up in the logo “in” it, and thus you own the logos itself. It’s bizarre and doesn’t follow, but it’s a valiant attempt.”
I was tempted to write tl;dr but that’s not my style. I don’t know this guy or his work, so I am not going to express an opinion about this “logo” theory. Your objections don’t give me much to work with anyway.
The point I was addressing with Peter, my number one fan, was his insistence that because he owns paper, he owns anything put on it regardless of the source. Because property rights are already covered by the paper he owns, to acknowledge rights in IP must mean I am taking away rights to his paper. To make such a claim, that rights could exist in the intangible which cannot “exist” except by changing tangible goods, this is a contradiction, simply a different interpretation of the same phenomena.
Do you agree with that?
As you know, in the case of copyright , the possession of the first instance of a work (what you are going to copy from) is acquired within the context of copyright laws. Had that context been non-existent at the time of acquisition, you cannot say you would have had it under the same conditions, price, etc. The author, in making his work available, is relying on copyrights being enforceable. Isn’t that right?
Second, and I’ve always been curious about this, if the work is so non-scarce that it doesn’t warrant property status, in your view, then why all the enthusiasm trying to justify your right to use it without compensation to the author?
Clearly a copy could not exist without an original to copy from. You appear to be claiming that because you have obtained an original instance under the context of copyright, once you possess it you have a better title to the work than the author, and therefore you are justified in the violation of existing laws of copyright. To say it another way, you are claiming that having received the work within the context of copyright law, you are then morally free to violate them. Is that correct?
Wildberry:
I don’t really undersatnd your question. Seems confused. My view is that if you grant rights in ideal objects, they are always enforced in terms of scarce objects, so it’s just a disguised or sneaky way of reassigning rights in scarce resources.
Sometimes information can be learned without using some else’s physical property.
If you are asking if some authors are relying on the state copyright law–sure. Just like some military contractors rely on defense contrats.
We do not deny knowledge is valuable. I might want to use a given informational pattern to guide my use of my scarce resources. Your IP assertions blokck this. That is a violation of my property rights.
So what? And patents have nothing to do with copying anyway.
No, I don’t think information is ownable. I just say that you may use information you have in your head to guide how you use your own body and property.
My main claim is that IP law cannotbe justified, not what is ethical to do or not do given the existence of these laws. Your use of “work” is a bit question-begging too.
@Stephan Kinsella March 4, 2011 at 12:32 pm
“I don’t really understand your question. Seems confused. My view is that if you grant rights in ideal objects, they are always enforced in terms of scarce objects, so it’s just a disguised or sneaky way of reassigning rights in scarce resources.”
If you mean “do you agree?”, then it’s a yes, no, or qualified answer. If you mean that Peter’s argument is confused, we agree. I don’t get it either.
Why do you use the term “ideal objects”? That is not a term of art I’m aware of.
The concept is “rights in the intangible, fixed in a tangible medium”. How does the fact that enforcement is in the “scarce objects” “disguised or sneaky”? Copyrights are attached to the intangible work, and enforced by way of their tangible medium. Why? Because otherwise they are INTANGIBLE! What’s the problem?
Also, as with all property, there are limits on actions that can be taken with it. You can still own and use your paper, just not to fix someone else’s protected work. Other than that, knock yourself out. You can use your baseball bat for anything except bashing my head in. It’s still your bat, but it’s my head.
If you copy the intangible work on your paper, how does that establish better title to the work than that of the author? That is what I’m trying to ask you to explain. Please do.
“Sometimes information can be learned without using someone else’s physical property.”
Yes. And as I have said before, as an IP attorney you would be the last person I would expect to claim that copyright law does something that it does not. As you well know, the use that is protected is carefully circumscribed by the rules of copy, derivative works, and fair use, etc. So how does this statement support the idea that if it IS copied from an original, it is not an infringement of property rights in the original?
“If you are asking if some authors are relying on the state copyright law–sure. Just like some military contractors rely on defense contrats.”
Huh? You obtained the original under the context of existing copyright. You copied it. Are you saying that the act of copying gives you better title to the work than the author?
“We do not deny knowledge is valuable. I might want to use a given informational pattern to guide my use of my scarce resources. Your IP assertions blokck this. That is a violation of my property rights.”
OK, let’s run with this. If a “given” information pattern has value to you, why do you argue that you are entitled to use it without compensation to the party who provides it to you? In your answer, please don’t revert to the “ideas are fee” argument, since we both know copyright does not protect ideas.
“So what? And patents have nothing to do with copying anyway.”
I have been consistently referring to copyright law. That is the context of this discussion.
“No, I don’t think information is ownable. I just say that you may use information you have in your head to guide how you use your own body and property.”
As you know, copyright law does not claim control over information in your head, so to imply so is dishonest. With you I don’t have to worry about referencing the law, right? You are an expert.
Therefore, what you mean to say is “certain information” subject to prior protection, and “certain uses”, clearly defined by the operation of law. Isn’t that correct? This is no more exotic than to say that your use of your car is limited to certain uses, and others are prohibited under penalty of law. There is no special case needed for IP.
“My main claim is that IP law cannot be justified, not what is ethical to do or not do given the existence of these laws. Your use of “work” is a bit question-begging too.
The context of existing copyright law provides the definition of terms which so many of your followers don’t understand, but you do. So for you to object to the use of “work”, given that it is a term of art in the law, lacks good will.
An original work or authorship is what we are discussing. To imply any other meaning appears deliberately misleading. Given a fair reading of terms and operation of the law, most of your objections vanish.
You are left to argue against the “parade of horrors” at the margins which you are so fond of reporting. In the standard case, given a “work” and “use” as defined and used by copyright law, do your objections still stand up?
Your “ethics” supporting your claim that IP is unjustified is that a) rights in property are defined ONLY by scarcity, b) IDEAS are not scarce, and therefore c) copyright PROTECTION OF IDEAS is not ethical. Do I have it right? At this point you quote Jefferson…
As I’ve asked you some months ago, isn’t it true that both copyright and patent laws specifically exclude “ideas” from protection? Isn’t it just a little disingenuous to oppose something for doing what it specifically seeks to avoid?
Respectfully,
@Wildberry
Your “ethics” supporting your claim that IP is unjustified is that a) rights in property are defined ONLY by scarcity, b) IDEAS are not scarce, and therefore c) copyright PROTECTION OF IDEAS is not ethical. Do I have it right? At this point you quote Jefferson…
I’ve read all the posts here and it seems to me this is the gist of the aguments back and forth. It seems that some people can’t reconcile this train of thought. I, personally, thought it was self-evident, but I guess some would like to delude themselves otherwise? Of course property is defined by scarcity; there is only a certain number of parcels of land to use, there is only so much corn to be cultivated, there are only a number of shirts that can be made, etc.
Of course ideas are non-scarce. Once known it cannot be unknown. Now let me clarify. The only time an idea can be “scarce” is like the Jefferson quote says “If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself”. Once that idea becomes public knowledge (in the form of a mechanical invention, music, art, etc.), the idea is now non-scarce. In this respect, how can conventional property rights be applied? Property rights are grounded in scarcity; once divulged, ideas are not scarce. Again, once known; cannot be unknown.
Like Joe‘s post earlier about the human condition as espoused by Frank Chodorov “Freedom is not the highest in man’s hierarchy of values. He may talk of it in the most laudatory terms, but his behavior belies his protestations. Although at times, when the multiplication of external restraints makes existence unbearable, he does put forth effort to shake off some of the shackles, his overall biography indicates an overpowering passion for something-for-nothing, an inability or unwillingness to hold it in leash, and a readiness to submit to restraints under the promise of loot.. So IP provides the “restraints under the promise of loot” “for something-for-nothing” for the original “inventor” of the idea. I use the quote “restraints” because just like the originator uses IP to force others not to profit from “his” idea, so shall he need to aquiesce to the same rules in order to receive his “loot”. And in this regard, the “originator” is effectively “stealing” (licensing, royalties, litigation, etc.) from one to line his pockets, while “doing” (i.e. working) nothing himself.
@Anon March 4, 2011 at 3:45 pm
“Of course property is defined by scarcity; there is only a certain number of parcels of land to use, there is only so much corn to be cultivated, there are only a number of shirts that can be made, etc.
Of course, land and chattel are only classes of property. So if you define property in this limited way, then there can be no other legitimate point of view.
“Of course ideas are non-scarce.”
No need to clarify. Are you reading the other posts here? Once and for all, THERE IS NO IP PROTECTION FOR IDEAS
“So IP provides the “restraints under the promise of loot” “for something-for-nothing” for the original “inventor” of the idea.”
This is so Orwellian of you. You are arguing that it is the author of an original work who is getting something for nothing? You are saying that a copier of that work is actually the one working for it and has better title than the person who CREATED IT?
“I use the quote “restraints” because just like the originator uses IP to force others not to profit from “his” idea, so shall he need to aquiesce to the same rules in order to receive his “loot”.”
Let’s see. In order for a property owner to get the “loot” of the non-aggression principle, he has to agree to allow others to have it too. Ah, yea…
“And in this regard, the “originator” is effectively “stealing” (licensing, royalties, litigation, etc.) from one to line his pockets, while “doing” (i.e. working) nothing himself.”
That was fascinating. The property holder is stealing from others by exercising his rights? When you go to the grocery store, do you “liberate” your bread because the grocer is “stealing” from you? Talk about turning logic on its head!
@ Peter Surda March 4, 2011 at 4:37 am
“(among other things, I got married)”
Congratulations, Peter. No, really.
Wildberry:
No, I mean the way you worded your question is confused. Peter is very good on all of this.
It’s teh term used by Tom Palmer in his excellent treatments of these issues–see his two seminal articles linked at http://www.c4sif.org/resources.
Because instead of saying “I get to take some of your ownership rihgts in X”–whihc would make it more obviously unjust to people hearing this proposal–you say “we just want to grant rights in intellectual creations *in adition* to rights in material objects.” You think you can have them both. Or you put it that way. This is akin to the socialists who say they want to give you a right to a job, to welfare, to healthcare, to education–even though these extra rights always come at the expense of individual property rights. It’s teh same with IP.
It’s theft to take my material property when I have not violate any else’s property rights.
The question is whether you have the right to stop this particular use of my property. You do not, since it does not infringe your own property rights.
I don’t need “better title” to do this. I just need to be not invading the borders of your property when I do this. And I am not.
Your question is so confused it’s impossible to answer.
Why do I need “better title”? You and I can use the same recipe at the same time. No need to “own” it.
Because my use of it does not violate his rights, therefore I do not need his permission.
This is pettifogging. Of course patent and copyrihgt provide property rights in ideas.
@Stephan Kinsella March 4, 2011 at 8:15 pm
“No, I mean the way you worded your question is confused. Peter is very good on all of this.”
I didn’t ask your opinion about Peter, I asked if you support this rendition of his assertions. Apparently you do. In your attempt to assign nefarious motivations to IP proponents, you state:
“My view is that if you grant rights in ideal objects, they are always enforced in terms of scarce objects, so it’s just a disguised or sneaky way of reassigning rights in scarce resources.”
By “sneaky” you mean:
“Because instead of saying “I get to take some of your ownership rights in X”–which would make it more obviously unjust to people hearing this proposal–you say “we just want to grant rights in intellectual creations *in addition* to rights in material objects.” You think you can have them both.”
So you are saying that IP is a vast conspiracy by the evil State to wrest control of Peter’s paper for him and transfer it to authors? Clever plan, indeed! And all this time I thought there was more to it!
As you consistently fail to acknowledge, though you clearly know it to be true, all rights have limitations. All rights of one define the rights of others. So to argue that IP creates some limitations on what another can do with his own property is hardly nefarious.
Second, you oppose IP on the basis that it protects “ideal objects”. Palmer defines this term as that category of things which are non-scarce and the subject matter of copyrights and patents. There is no limit to the number of times they may be substantiated in tangible medium, as distinguished from tangible goods, which do have such limitations.
You would agree then that he is saying an “ideal object” is both non-scarce, AND the subject matter of copyrights and patents.
Any number of times I have asked you to clarify your position on the subject matter of ideas relative to patents and copyrights. If one of the main tenants of your argument is that “ideas are free”, and if you oppose IP because it takes that freedom away (because of the nefarious motivations by a State that is “dripping with evil”), then why, when I asked you this:
**As I’ve asked you some months ago, isn’t it true that both copyright and patent laws specifically exclude “ideas” from protection? Isn’t it just a little disingenuous to oppose something for doing what it specifically seeks to avoid?**
You say this:
“This is pettifogging. Of course patent and copyright provide property rights in ideas.”
Yet from the copyright code itself, we find this:
§102(b) “…In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated or embodied in such a work”.
Yet you continually argue against IP on the basis of how the law treats ideas. You use recipes as an example of “non-scarcity” yet anyone can plainly see that they are not the subject matter of copyrights.
See what I mean:
“Why do I need “better title”? You and I can use the same recipe at the same time. No need to “own” it.”
So when I say you are disingenuous for allowing the opponents to continually state that “ideas are free” and therefore “copyright is violation of my property rights”, because they propose to “provide property rights in ideas”, you say what?
As to the rest of your post, you are merely restating your conclusions:
“It’s theft to take my material property when I have not violate any else’s property rights.”
Who could disagree?
“The question is whether you have the right to stop this particular use of my property. You do not, since it does not infringe your own property rights.”
Of course! On the other hand, if it DOES infringe on my property rights…?
“I just need to be not invading the borders of your property when I do this. And I am not. ”
Yes, but if you are, you would be.
When I ask you this:
**As you well know, the use that is protected is carefully circumscribed by the rules of copy, derivative works, and fair use, etc. So how does this statement support the idea that if it IS copied from an original, it is not an infringement of property rights in the original?**
You say this:
“Your question is so confused it’s impossible to answer.”
This is what you always say when you don’t want to face the issue. You want to argue some marginal case, while I am asking you the general case, where there is no controversy about what we are talking about. Everyone can read the statute above. You are an IP attorney, so presume I understand the code and the standards for infringement.
I am asking you if there is a way that a protected work can be copied onto paper without an original to copy from. Obviously not. I am asking you to state the causal relationship between the original and the copy.
What do we distinguish, that the copy has no effect on the original (who cares?) or that the original is the CAUSE of the copy?
As you know, causation is a legal term of art, meaning that a consequence can be connected with a proximate cause. This causation does not “stretch to infinity” as Peter claims, because beyond the proximate cause, any further causation is irrelevant.
The original work is the ACTUAL CAUSE of the copy. But for the original, the copy could not exist. The transfer of a protected pattern from one medium to another is the VOLITIONAL PROXIMATE CAUSE of the copy’s existence. Therefore the COPIER is liable of the act of COPYING. If copying IS prohibited, then it is an infringement of the original owner’s rights.
Therefore you argue that copying is NOT legitimately prohibited. Why?
Because once you possess the ORIGINAL WORK, you are ethically free to use it as your own because “IDEAS ARE FREE” and the paper you use to make the copy is “ALREADY COVERED BY PROPERTY RIGHTS” and no one has the right to “LIMIT MY USE OF MY OWN PROPERTY”. Your conclusion? If you obtain a copy of an original work of authorship, YOU OWN IT LOCK, STOCK, AND BARREL.
You claim you have better title to the original than the author because you use it to make copies, to the detriment of the producer. You believe authors are producers for your external economies. The fact that a producer put the original in your hands does not require you to compensate him for his work. Why? Because “ideas are free.”
In conclusion, in the course of legal disputes at some point the case goes to the jury. We do not decide cases on the basis of putting lawyers in a room and going with the one left standing, and we don’t allow spectators to shout out insults from the gallery. We argue the facts and put the issue to a jury of our peers.
You are proposing to overturn existing laws, existing ethics, and common sense in your quest for an ideal you share with a very small group of supporters, most of whom are ignorant of the operation of law, and have learned much of what they know about it from your misrepresentation of it. You once said something like this: “It is not important that you know much about the law to oppose it, but if you support it, you better know what you are talking about.”
I say if you are going to oppose something, best that you give a fair reading to it and prove your position on the facts. I believe the burden is on you, counselor, and you have failed to meet it.
@wildberry:
No, I’m saying it’s a way of blocking people from using their own property as they see fit, so that the IP holders then have the ability to charge a monopoly price since their competition is squelched. But the nature of the property-use-blockage is confused and hidden behind assertions of positive IP rights.
I think this is a disingenuous way of putting it. Rights do not have limitations. Rihgts cannot violate rights. It is only actions that have limitations. I can perform any action except actions that violate others’ rights. This limitation on my action is not a limitation on rights, since there is no right to invade others’ property borders in the first place.
In any case, even if we accept your loaded terminology, that all rights are limited, that does not mean that your particular limitation on rights is justified. It does not mean that all limitations on rights are justified. Only that some are. Not IP.
If you want to argue that I may not perform a given action with my property, you need to show that said action invades the borders of another’s property. Otherwise it is permissible. That is the essence of the libertarian view of initiation of force.
Here is hte problem. Advocates of IP are usually ignorant or disengnuous. They usually agree with me on every egregious example of patent and copyright I point to. So wehn I ask them what they do favor, they say they don’t know, they are not IP experts. So they literally cannot outline what they are even in favor of. Like gibbering amateurs, they blabber that there must be some IP, but they don’t know what it is. They agree with my criticisms of current IP… say they are not in favor of that–yet they say they don’t want to repeal it either. Some yokel like you comes along and proudly proclaims like a rooster that IP does not protect ideas; while in the same thread one of your kind repeats the claim that IP does (and should) protect ideas. You guys stammer that it’s not a monopoly, while others of your kind proudly say that it is. I mean you guys are all over the map. It’s shameful. I have NEVER seen a decent, honest, coherent argument for IP. NEVER. NOt even a serious attempt at one.
IP does in fact attempt to provides rights in ideas — some not all ideas –in the sense that it permits the rights holder to veto other people’s uses of their own property in a way that uses or instantiates that idea. That is, to give a property right in ideas you have to provide property rights in every physical instantiation of that idea. That is what IP does. It does not matter that copyright law SAYS that it “only” protects the “expression” of an idea. All that means is that copyright protects only certain aspects of ideas, but not all. Patnets are the same: patents protect logos, patterns, ways of arranging matter, or sequential steps that result in some useful end. It is pettifogging for you to act as if it matters whether patent and copyright protect information, logos, patterns, recipes, knowledge, ideas, facts, etc.–it’s all the same, from the perspective of the libertarian. They all work the same, they all invade real rights the same. So you are completely pettifogging.
I’m not a landlord.
You are pettifoggin like achamp. Define “idea” for me in a way that is distinct from patterns, recipes, information? On this very thread one of your fellow IP socialists said IP protects ideas. These terms are rougly synononymous in this context.
All this means to do is to separate out the field which patents cover from which copyright covers; copyright covers the expression of ideas. But the expression of an idea is a pattern of information. That is information. Patents cover the functional aspect of a given idea–how you can arrange matter to achieve a useful result, either by a pattern or process.
Mises used “recipe” as a general term to cover an idea of how to usefully arrange things. Probably it’s more utilitarian and thus covers patent but there is no reason *in economics* it has to be restricted to that. It can cover any knowledge (or “idea”) that one can use to *guide one’s behavior” so as to achieve a desired result. Praxeology is not limited by the artificial categories the positivist, statist legal system has imposed. It does not have to distinguish between the domain of patent and copyright (or other, un-IP protected, ideas/information). There is a general class of knowledge, whether you call it recipes, information, ideas, that serves the purpose in human action of *informing* and *guiding* action–of guiding what ends you select to pursue and what means you select to achieve the chosen end. IF I want to sing a song, the information might be the tune that would be protected by copyright. If I want to make a machien, the information that guides me might be protected by patent. It is not my fault that your ilk has succeeded in establishing a patchwork of ad hoc invasions of what we might call “idea freedom”–copyright hampers it in one way, patent in another. I am sure not going to complain that your statist IP law is not comprehensive and allows some use of ideas to be free. I am complaining about the cases where it invades that liberty.
You are blabbering incoherently. You really need to re-think. copyright violates my property rights because it allows you to tell me how I cannot use my own property. You have th right to do this ONLY if (a) you own my property (you do not); (b) you have a contract with me (you do not); or (c) I have committed some tort that justifies your seeking punishment or restitution from me (I have not).
You IP socialists do. You seek to limit what I can do with my property even though my desired use does not violate your rights.
But it doesn’t. If I write “Star Wars as Told from the Point of View of the Empire,” by Stephan Kinsella, how does it infringe on George Lucas’s property rights? IT doesn’t invade his property. It doesn’t prevent him from doing anything he wants with his own property. If I independently invent a laser tomorrow, how does that violate the rights of some guy who filed a patent on that yesterday?
yes, and if pigs had wings, they could fly.
You never want to talk about the general case. You don’t even know what you are talking about, like all the other IP advocates.
You read the statute yourself. If you are not aware, copyright does not protect ONLY the right to reproduce (or duplicate, or copy). It also protects “derivative works.” That has NOTHING TO DO with “copying”. The star wars novel I propose above would be a derivative work, blocked by copyright.
And by the way, if I have heard a song growing up but never bought it, and become a musician, and incorporate that tune into one of my own, I also am liable for copyright infringement.
Your concept of “copying” would have to include learning in general.
For copyright there is usually a causal relationship in that some earlier pattern creator comes up with and promulgates the work, so that others learn of it. It can be music, a painting, etc. Or a book. It is no different in form from other kinds of knowledge or ideas that someone originates and spreads, like a mathematical truth or natural discovery or physics formulation. This is called “learning.” I’m sorry you IP socialists hate learning and communication. When people “learn” things they add to the body of knowledge and information they can consult when acting. THis includes a wide variety of types of knowledge. Some of them you want to censor them from using. Some you don’t.
What does it matter? This is metaphysical sophistry.
Proximate cause is a legal term that has to do only with assigning responsibility for a tort to someone. If there is no tort, the term is utterly irrelevant. What tort are you trying to find responsibility for, in the case of IP? Pray tell, what tort? Assault? Battery? Conversion?
A work is a pattern of information. Inanimate objects are “causes” of things? The cause of the copy is the act of copying by the copier. So what? And it could not happen if the original did not exist to copy from. So what? By this stupid argument every piece of knowledge or information in the world cannot be used by those who learn of it, unless they have permission of the first guy to promulgate it. How ludicrous!
So, for example, I’ll grant, arguendo, that my Star Wars Sequel would not exist if George Lucas had never created the original. SOOOO?? This proves nothing. There are an infinite number of so-called “but-for” causes of any given action. So what?
You sound like such an amateur crank here. Please stop trying to reinvent hte law. Next you know you’ll be quoting Blacks’ Law Dictionary at me like a conspiracy nut. This is utterly incoherent. You have NO ARGUMENT AT ALL here.
HAHAHAHAHH at the “therefore”.
I can’t go further. You arguments are not serious.
Stephan Kinsella, you say
“I have NEVER seen a decent, honest, coherent argument for IP. NEVER. NOt even a serious attempt at one.”
Firstly, I have. Schulman’s logorights paper is a serious attempt at a decent, honest and coherent theory. Disagreeing with it is one thing – but saying it is poorly written, dishonest or incoherent would be ridiculous.
Secondly, you not seeing this may be because there are no good arguments. But maybe there some other reason. I’ve read your responses to Schulman. It is nothing more than “everything subject to ownership is tangible”. You in fact clearly say:
“In fact, all ownership rights are enforced in physical terms against scarce resources; which means that granting rights in anything else has to undermine and dilute real rights in real things.”
So, you are saying
1) property comes from scarcity
2) all rights are property rights
3) patterns/information/whatever is not scarce
4) so there can be no rights in patterns/information
This isn’t an argument worth the name – if you are a non-aggression principle believer, it’s a tautology; if you’re not, it’s worthless.
Kid Salami,
Regrettably, it’s not. I complained about it directly to him, but he did not reply. He also does not attempt to resolve the two core issues (self-contradictions and vagueness).
With regards to the specifics of his theory, for example, he does not explain how to establish the boundaries of logos, i.e. what levels of abstraction are relevant from the point of view of his theory. This is important, because different levels overlap, and as you abstract less and less, somewhere at the lower levels of abstraction the boundaries will overlap with that of physical property. So he just says that rights are gained by reinterpreting the world in a different way. Surely that can’t be a serious scientific theory?
Even if Stephan is wrong and there is a coherent argument for IP, I have yet to actually see someone formulating it.
“he does not explain how to establish the boundaries of logos”
I’ll consider this a good argument against it when, for example, the “boundaries” between the amounts of time that can elapse before an abandoned piece of land remains owned and becomes unowned, or the “boundaries” between insufficiently visible/inadequate “fencing” and a clearly visible wall that will suffice to suggest you have homesteaded a piece of land, are deduced with a priori reasoning assuming on the fundamental axiom of human action etc.
I’m not saying that it’s correct or that there is anything in such lines of thought at all it at all, i’m still mulling but on balance I actually think not. But he’s not an idiot – I read the back on forth. What I am saying is that saying “Mr Schulman, I’m afraid your argument can’t be right because your view is inconsistent with the non-aggression principle” or something similar is not, in fact, an argument, it is merely an assumption of the correctness of one of the things which is under discussion.
Kid Salami,
your objection in this context only makes sense when Schulman admits that he’s opposing physical property rights. On another level, I agree with your objection, but that is not what I’m talking about. My point is that most likely IP proponents do not understand their own arguments. Yes, it is quite possible that some level of ambiguity is a necessary component of any theory regarding property right boundaries. However, that does not mean that one can use invalid logic to defend a position.
On one hand, I appreciate your attempts to keep IP opponents “clean”. I might add that I consider your work invaluable for the progress of my understanding. But I can’t understand your tendency to side with parties that get an obscure detail correct but are wrong on everything else.
@The Kid Salami March 6, 2011 at 1:17 pm
I believe your instincts are exactly right on this issue.
Peter complains when there is any ambiguity in one’s understanding or expression, and argues that unless your assertions can be reduced to mathematical exactness, he is justified in his complaints of “self-contradiction” and “vagueness”.
I have repeatedly made this point with the analogy of homicide. You make the same point with your examples. We can all agree that homicide is wrong and where the boundaries are. The general rule requires “the killing of a human being by another”. That is not ambiguous given a certain set of undisputed facts. The further you move away from undisputed facts, the more ambiguity in the rules. This is the nature of things. If this was not the case, philosophy, for example, would be in the realm of the exact sciences, like mathmatics. This is what Peter understands.
It is like by acknowledging the fact-dependence ambiguity of self-defense, manslaughter, negligence, etc, one must conclude that homicide must be OK because the rules get more ambiguous at the margins. With all of this ambiguity, how can we really say what is legal and what is illegal?
One cannot logically argue the general case form the marginal fact-pattern. You start with the premise; homicide is unethical conduct. You procede to exceptions to that rule based on new fact patterns. Most of us are comfortable living with this reality because we realize the general case covers 90% of the cases in real life. We apply special rules to deal with special facts. We can understand the concept of “manslaughter” and attempt to apply that rule to a set of facts, and so on, to deal with the exceptions.
If the entire realm of the human experience could be reduced to binary code, we wouldn’t need juries. This appears to be Peter’s motivation in my view. He wants you to put your views in code so he can look up the answer in 100% of the cases, or perhaps will give the same exact answer despite differences in fact patterns.
In reality, he is actually just trying to tie you up with his “science” so that you can’t be sure your instincts are actually supportable in fact. By the nature of how ethics and laws actually evolved in society over time, common sense generally gives you the right result. That is why it is “common”.
Copyright law, for example, works the same way. The legal presumption is that “original works of authorship” are protected under copyright law as property of the author. When there is a dispute between two parties over that property right,(and it is never a dispute between the State and a defendant), the law applies the special rules to deal with special facts, to resolve the dispute consistent with the general rule.
Despite the imression that has been left here by IP opponents, copyright law proceeds along very rational and logical lines to arrive at an reasonably just outcomes to disputes of IP rights, in the vast majority of cases. Sometimes the rules yeild arguable outcomes. Those are interesting and worthy of debate.
However, we will never discuss that type of issue here, because the debate is constantly returned to the fundamental legimacy of IP laws.
The coherent case is definately there already. It does not depend on Kinsella or Schulman or anyone else. All of the complaints that have been raised in oppositin to IP are fundamentally settled isses in the law. The controversy that Kinsella banks on are the marginal cases, like odd copyright cases, and a parade of horrors in patents.
To use these marginal cases to justify fundamental opposition to IP on ethical grounds ironically places IP opponents in the analogous position of arguing against free speech because Nazis avail themselves of it too, or in the case of IP, that production for external economies is fine, so slavery must be OK too.
This “condradiction” is lost on Peter, but he has no problem complaining about yours.
If opponets want to argue against the fundamental legitimacy of IP, then they need to make their arguments against the general case, giving a fair reading of the law and its operation. This cannot be done, because the entire house of cards rests on the premises that “ideas are free” and “copyrights grant monopoly rights to ideas” and therefore copyright is a Statist conspiracy to deprive us all of our natural liberties. You are for liberty, aren’t you? So you must be against IP!
It is interesting to observe when the patience with Peter runs out in the various contributors to this blog. It always does and nothing ever gets resolved. That should give you a clue.
@Stephan Kinsella March 5, 2011 at 5:14 pm
Stephan, this is about as long as I have been able to keep you engaged. Let’ see if we can keep it going.
This is what I understand about your position, in brief terms. You argue against IP on the following grounds:
1) You argue against IP on natural rights grounds. Your argument is that: a) all rights are property rights; b) property rights can only arise for scarce resources; c) the subject matter of IP, (I am primarily referring to copyright, because that is the most obvious general case) is ideas, and because they are non-scarce, there can be no property rights in them; d) IP laws are illigitimate because they are not tied to a rational ethics of property.
The best refutation I have seen to this general line of reasoning is Kathleen Touchstone’s work, which you published in your journal. She also wrote an excellent book which addresses Rothbard, Rand and other’s work on natural rights, property, and IP. Her arguments have merit, in my view. Perhaps we might come back to that.
2) You argue legally against IP from your perspective as an IP lawyer, and cite the parade of horrors that result from the application of IP law to certain cases and fact patterns. In the process of supporting this line of argument, you often mistate the operation of law and its subject matter. You attempt to argue that because the existing law occasionally reaches undesirable outcomes, the entire concept of rights in IP is illigitimate.
It is reasonable to expect you to proceed from a fair reading of existing law and cases, and to state the operation of the law accurately. When debating on this level, it is reasonable to refer to legal terms of art, statutes, cases and authority, even Black’s Law Dictionary, if relevant. I will try to keep up with you, so don’t worry about talking above my head.
The body of law in property, contracts, torts, and yes, IP laws themselves are perfectly relevant sources of support for both sides. Rothbard and Hoppe are not the ultimate authorities on legal ethics and theory. There are other, and prevailing, points of view.
3) You argue against IP on economic terms, on grounds that IP laws are State interventions that grant monoploy rights to authors and inventors. You base your arguments on the Rothbard’s theory of title transfer in contracts, anarchocapitalim, and flat-out mistatements concerning the way IP laws operate economically.
The two most prominent authorities that I would hope that leaders and followers of Mises.com would at least acknowledge, are Mises and Hayek. OK, throw Rothbard and Hoppe in the mix, but it is not reasonble to dismiss citations given to support IP based on the “higher attainments” of Rothbard, Hoppe and yes, Kinsella. One should be able to overcome their arguments on the merits if the advocated position is valid.
4) You argue against IP from perspective that Ancap philosophy is the only “truly consistent” libertarian position. In support of this, you argue that all governemnt envorcement is part of the “monopoly on the use of force” by the State, and therefore, since IP is also enforced by this “State”, it is illigitimate. To quote you directly, “We have IP because we have the State”.
Such argumentation places all crimes and civil actions in the same boat: since they are only enforced at the hands of the State, which is by definintion, “dripping with evil”, then anything and everything the “State” enforces should be opposed.
You attempt to get around the absurditiy of this position by claiming that “PDAs” or other “free-market” solution would do a better job of enforcing rights that the State.
Again, I refer you to Touchstone as one valuable resource in the analysis of this assertion. It is enlightening.
5) When all else fails, you resort to ad hominem. As a leader here, you set a poor example when you do this. Others, encouraged by your leadership in this, seem to compete for the most vile attacks on ideological opponents. It is disgusting, I object, and you should do your part to put a stop to it.
With this in mind, let’s go through your most recent response.
“No, I’m saying it’s a way of blocking people from using their own property as they see fit, so that the IP holders then have the ability to charge a monopoly price since their competition is squelched. But the nature of the property-use-blockage is confused and hidden behind assertions of positive IP rights.”
First, you mistate the law by reversing cause and effect. It is not the positive right of IP to “block people”, it is the negative right of IP holders to not have their property misappropriated (legal issue). You are reversing cause and effect, and turning the concept of infringement on its head.
Second, you misstate the connotation of monoploy, as Mises warned against. (economic issue) Every property holder has a monopoly to the possession and use of his property. By analogy, if I own a hotel, you cannot rent rooms out in my hotel. I have the exclusive right (monopoly) to do that. This is not equivalent to me having a monoploy on all hotels. You may open one next door. If I owned ALL HOTELS, I would have a market monopoly on hotels, and your statement would be true.
What you are saying is equivalent to saying that because I have a monopoly right to MY BOOK, and have a State sanctioned monoploy on ALL BOOKS. This second connotation is the only way I could command a “monopoly price”. As you well know, copyright laws do not work this away. To paraphrase Mises, every rhymster has a monopoly in his poem, but that does not mean he can command a monopoly price on all poems.
“I think this is a disingenuous way of putting it. Rights do not have limitations. Rihgts cannot violate rights. It is only actions that have limitations. I can perform any action except actions that violate others’ rights. This limitation on my action is not a limitation on rights, since there is no right to invade others’ property borders in the first place.
This is hair-splitting; a distinction without a difference; “rights have limitations” is not significantly different than saying “taking actions based upon one’s perceptions of one’s rights to act are limited by the effects of that action on the rights of others to act”. Naturally, if one did “invade other’s property”, one would have invaded that person’s right to not be invaded. The issue remains, where are the boundaries of the respective rights? Shall we discuss that?
“In any case, even if we accept your loaded terminology, that all rights are limited, that does not mean that your particular limitation on rights is justified. It does not mean that all limitations on rights are justified. Only that some are. Not IP.”
This merely states your conclusion. If the limitation on rights, to use my loaded terminology, means anything in the context of copyright, it would mean that even though you owned some paper, you could use that paper to misappropriate my property (i.e. IP). You could use it for other purposes, including creating your own protected works. So we are back to the same issue; can you or can’t you?
“Here is the problem. Advocates of IP are usually ignorant or disengnuous.
I guess it can go without saying that I am neither. Too late.
“They usually agree with me on every egregious example of patent and copyright I point to. So wehn I ask them what they do favor, they say they don’t know, they are not IP experts. So they literally cannot outline what they are even in favor of. Like gibbering amateurs, they blabber that there must be some IP, but they don’t know what it is. They agree with my criticisms of current IP… say they are not in favor of that–yet they say they don’t want to repeal it either.”
I am not the cheerleader of a pro-IP fraternity. I’m just one guy asking you questions. I’m sure you would not want to take responsibility for every vile personal attach launched by those who share your view on IP. So you’re frustrated with the quality of discourse. How about you do your part to raise the level of play?
“Some yokel like you comes along and proudly proclaims like a rooster that IP does not protect ideas; while in the same thread one of your kind repeats the claim that IP does (and should) protect ideas. You guys stammer that it’s not a monopoly, while others of your kind proudly say that it is. I mean you guys are all over the map. It’s shameful. I have NEVER seen a decent, honest, coherent argument for IP. NEVER. NOt even a serious attempt at one.”
Case in point. In any case, these are issues that are pretty easily resolved, counselor. You and I are on different sides of the argument, but if I ask you if copyrights protect ideas, you say what? If I say that Mises distinguishes between connotations of monopoly and without IP, produces would produce for external economies, you say what?
“IP does in fact attempt to provide rights in ideas — some not all ideas –in the sense that it permits the rights holder to veto other people’s uses of their own property in a way that uses or instantiates that idea. That is, to give a property right in ideas you have to provide property rights in every physical instantiation of that idea. That is what IP does. It does not matter that copyright law SAYS that it “only” protects the “expression” of an idea. All that means is that copyright protects only certain aspects of ideas, but not all. Patnets are the same: patents protect logos, patterns, ways of arranging matter, or sequential steps that result in some useful end. It is pettifogging for you to act as if it matters whether patent and copyright protect information, logos, patterns, recipes, knowledge, ideas, facts, etc.–it’s all the same, from the perspective of the libertarian. They all work the same, they all invade real rights the same. So you are completely pettifogging.”
Do they really? If that is the case, then why does the statute go to all the trouble of listing ideas specifically, along with other forms of information, as not being protectable? As you well know, it is because there is a competing public policy of protecting the rights of authors, for protecting the public domain and widespread access to protected works. You completely ignore this dichotomy and allege that copyrights act on all forms of information in the same way and to the same effect. This is factually incorrect, as you have now (lamely) admitted.
One has to wonder why you, of all people, would be so interested in conflating these distinctions. Because you are a “true libertarian” and you believe that unlimited freedoms to claim all original works as belonging to the public domain is “libertarian”? That sounds more socialist to me.
One of the greatest tenets (see?) of the free market is that property rights are protectable, and that one’s output equals one’s inputs. However, by conflating the concepts of “ideas” with “original works”, you completely ignore the possibility that the “work” is the product of capital goods owned by the author. It is placed on the market under the context of his right to enforce his economic rights of his production. Yet having possessed it, you now claim you have better title to the original than the author, and therefore you claim moral rights to use this product as you see fit, under your claim of “unlimited liberty” to acts which use your own property, completely ignoring the possibility that the original is the CAUSE of the copy, and you do not have ownership rights in the original, and therefore you cannot claim ownership of the copy.
As you now know well, Mises addressed this issue and called this producing for an external economy. To this you say what?
I’m not a landlord.
Good one! That made me laugh. One should not be too dependent on spell check, but one should use it, don’t you think?
“You are pettifoggin like achamp. Define “idea” for me in a way that is distinct from patterns, recipes, information? On this very thread one of your fellow IP socialists said IP protects ideas. These terms are rougly synononymous in this context.
OK. First, although I don’t need to point this out to you, recipes and certain forms of information (formulas, facts, historical periods, etc) are SPECIFICALLY EXCLUDED from copyright protection. So that leaves patterns. As you well know, a pattern is not a protectable form of information in and of itself. So what is protectable? An “original work or authorship” is not synonymous with “idea”, any more than “alphabet” is synonymous with “poem”. “Information” is such a broad category that it is meaningless in the context of copyrights. Hot soup is information to my tongue, but it is not protectable under copyrights, so I guess we need to be more precise with our terms.
“Civil War” is an idea. “Gone With the Wind” is an original work of authorship. As you know, nothing in copyright law prohibits any expressions based on the idea of “civil war”. However, it is unlikely beyond reasonable possibility that a copy of “Gone With the Wind” could ever exist without an original to copy from. That is a rather important distinction, don’t you think?
“All this means to do is to separate out the field which patents cover from which copyright covers; copyright covers the expression of ideas. But the expression of an idea is a pattern of information. That is information. Patents cover the functional aspect of a given idea–how you can arrange matter to achieve a useful result, either by a pattern or process.”
This puzzles me. Let’s stick with copyrights. The statute specifically seeks to make a distinction between “ideas” and “original works or authorship”. Yet you seem to argue that this distinction does not exist. Does it or doesn’t it?
“Mises used “recipe” as a general term to cover an idea of how to usefully arrange things. Probably it’s more utilitarian and thus covers patent but there is no reason *in economics* it has to be restricted to that. It can cover any knowledge (or “idea”) that one can use to *guide one’s behavior” so as to achieve a desired result.
OK, let’s run with that. Under this definition, would a “recipe” be covered under copyright law?
I don’t think so. This seems more germane to trade secrets, don’t you agree? You cannot copyright a recipe for bread or a procedure for producing steel. You might be able to patent a formulation, such as an alloy or drug.
Also, we have been discussing your interpretation of the law, so why switch the context to economics? That is confusing. I would appreciate a more noticeable segue.
“Praxeology is not limited by the artificial categories the positivist, statist legal system has imposed. It does not have to distinguish between the domain of patent and copyright (or other, un-IP protected, ideas/information). There is a general class of knowledge, whether you call it recipes, information, ideas, that serves the purpose in human action of *informing* and *guiding* action–of guiding what ends you select to pursue and what means you select to achieve the chosen end.”
OK, let’s talk praxeology now…
“IF I want to sing a song, the information might be the tune that would be protected by copyright.” (back to copyrights?)
Yes, but you would agree that copyright would not prevent you from singing a song. It may have something to say about a performance. Even there, a performance that caused no economic damage to the owner would not be prohibited or enforceable. Correct?
“If I want to make a machien, the information that guides me might be protected by patent. It is not my fault that your ilk” (I’m an ilk?) has succeeded in establishing a patchwork of ad hoc invasions of what we might call “idea freedom”–copyright hampers it in one way, patent in another. I am sure not going to complain that your statist IP law is not comprehensive and allows some use of ideas to be free. I am complaining about the cases where it invades that liberty.
OK, let’s run with that. In the general case, where I clearly produced an original work, I sold it to you under the context of IP laws, and you made copies of it and sold it for a profit, what is your complaint, exactly? What liberty of yours has been invaded?
If I may anticipate, you might say that I can’t assume the pre-existence of copyrights. OK, then I can say that you can’t assume that you would have a copy under the conditions you do have it, so what conditions would those be? You have no idea, and certainly no evidence that in the absence of IP laws, that you would have anything to copy in the first place. If there was an original, you most certainly wouldn’t have it for $5 from Borders.
If you say none under this case, then what “special case” do you object to? Only where it can be copied digitally, at very low cost, which should be ok?
“You are blabbering incoherently.”
Sorry.
“You really need to re-think. copyright violates my property rights because it allows you to tell me how I cannot use my own property.” (we are back to law now?)
Which is different than other property rights how? When you acquire a baseball bat, it is implied that you cannot use it to bash my brains in. That is definitely me telling you how you cannot use your own property. Do you object to that?
“You have th right to do this ONLY if (a) you own my property (you do not);
I do not claim to own your baseball bat. I am only presumptively prohibiting you from using it to my detriment.
“(b) you have a contract with me (you do not);
Agreed. Although there is an argument that contract law is an analogy for common law, because a right that is granted under contract, thus binding the parties in privity, is analogous to a law, which simply is binding regardless of privity. Criminal laws are like that. I don’t need a contract with you to prevent you from bashing my brains in. It is presumed by law.
“or (c) I have committed some tort that justifies your seeking punishment or restitution from me (I have not).
Well, your use of “tort” is a trap, because IP infringement is not a tort, although it is a civil cause of action, like a tort. As you know, torts are statutorily codified. IP laws are statutorily codified, so the distinction you are making is misleading. You didn’t refer to IP laws, property laws, or any other legal theories which support the idea of IP rights.
Under copyright law, for example, by copying my work you have violated my rights in the intangible work you have copied, which is statutorily actionable. Therefore I have a cause of action, much like a cause I might have under torts. For example, you may not have bashed my brains in, you only threatened to do it. The tort cause of action is assault. If you touched me with it, it is a battery. If you hit me hard enough it might be criminal assault, and if you really bashed my brains in, it might be criminal murder. You see, it depends on the facts.
“You IP socialists do. You seek to limit what I can do with my property even though my desired use does not violate your rights.”
Ad hominem. Again you assume your conclusion. What is your desired use? If it is infringing, then you are wrong, if it is not, then you are right. How would I know?
“But it doesn’t. If I write “Star Wars as Told from the Point of View of the Empire,” by Stephan Kinsella, how does it infringe on George Lucas’s property rights? IT doesn’t invade his property. It doesn’t prevent him from doing anything he wants with his own property.
Again, you misstate the law and reverse causality. It is not your impact on George’s original that is important, it is his original on your story. If you are independently inventing a story that escapes the analysis of “substantial similarity”, then you are good to go. If the only way you can write your story is by making derivations from his work, you have a problem. Best to negotiate with him or write another story.
As you know, this is similar to the case of “The Wind Done Gone”, a derivative work based on “Gone With the Wind”. The court prevented publication. I think that is a shame, but then I think Nazis parading in Skokie is a bummer too. But I can’t have the First Amendment all to myself.
This would be an interesting case to discuss with you. I tend to believe that compulsory licensing should be a remedy in cases like this, but that would merely be a revision to existing statism, so I presume you wouldn’t be on board.
“If I independently invent a laser tomorrow, how does that violate the rights of some guy who filed a patent on that yesterday.”
This is another one of your favorites in your parade of horrors, although I’m not sure how often this actually comes up in real life. Let’s say it is a big problem. Compulsory cross licensing seems reasonable in a legitimate case like real simultaneous invention. Of course this means more litigation because people are bound to try to scam the system, but hey, more work for lawyers, right? In any case, the lack of a solution for your alleged big problem does not undermine the fundamental principles of legitimate patents. It is an outlying issue at best.
yes, and if pigs had wings, they could fly.
Perhaps, although pigs are not very aerodynamic so the jury is out. Theoretically they could fly. Theoretically Ancap society could work. Touché.
“You read the statute yourself. If you are not aware, copyright does not protect ONLY the right to reproduce (or duplicate, or copy). It also protects “derivative works.” That has NOTHING TO DO with “copying”. The star wars novel I propose above would be a derivative work, blocked by copyright.”
I am aware, and that doesn’t seem exactly true. Copying is an exact duplication of the entirety of an original. A derivative work is a transformation of the protected work in substantial part. Your proposed Star Wars novel would only be blocked if you copied substantial elements of the protected work. So if you had a character named Luke Skywalker, that would count against you.
However, if you had a drama set in outer space, which would be fine, right? By the way, “outer space” is an idea. Star Wars is a “work”.
“And by the way, if I have heard a song growing up but never bought it, and become a musician, and incorporate that tune into one of my own, I also am liable for copyright infringement.
That is not, as you know, a foregone conclusion. It would depend on the facts, such as the extent of the similarity, etc. This does bring up an interesting point on terms, though. It doesn’t seem to me that the term should always be similar for all copyrighted works. I don’t think there is much justification for protection for songs beyond the life of the composer. But of course, you and I will unlikely ever get to such a discussion.
“For copyright there is usually a causal relationship in that some earlier pattern creator comes up with and promulgates the work, so that others learn of it. It can be music, a painting, etc. Or a book. It is no different in form from other kinds of knowledge or ideas that someone originates and spreads, like a mathematical truth or natural discovery or physics formulation.”
If what you say here is true, then why does the statute and case law make such an effort to distinguish protectable from unprotectable works? Also, you imply that leaning itself is protected in some way, when it clearly is not. When I read a book, I learn from it. I can think it over, discuss it with others, write about it, quote directly from it, parody it, read it out loud to my friends, etc., etc. There is no prohibition on learning, and most of the examples you give are specifically excluded from copyright protection; mathematical truths and natural discovery or physics formulations are SPECIFICALLY NOT PROTECTABLE UNDER COPYRIGHTS. Why you do imply that they are? Certainly you know better.
“This is called “learning.” I’m sorry you IP socialists hate learning and communication.
If I believe in the legitimacy of IP rights, I “hate learning and communication”?
Now stay with me here. We have had IP for over 200 years in the US. During this time, you are saying that we have not been able to learn or communicate during all of that time? And me and my “ilk” like it this way because we “hate learning and communication”?
Somehow that just doesn’t sound reasonable to me.
“When people “learn” things they add to the body of knowledge and information they can consult when acting. THis includes a wide variety of types of knowledge. Some of them you want to censor them from using. Some you don’t.
As I have said before, this is you completely ignoring the public policy features of IP law. One of the explicit purposes of the laws are to facilitate broad public dissemination of works and inventions for the purpose of fostering the public good derived from knowledge and use of innovation. Yet you imply that one of the purposes is to restrict this access. It is for this exchange that monopoly rights are granted; in exchange for disclosure, to foster the learning and knowledge that results. You know this, yet you continue to misrepresent what the law says and how it operates. Why do you do this? It is unbecoming.
***What do we distinguish, that the copy has no effect on the original (who cares?) or that the original is the CAUSE of the copy?***
“What does it matter? This is metaphysical sophistry.”
Metaphysical? Plausible but fallacious? That sounds tricky. Let’s see…
It matters because one of the tenets (see?) of your argument is that the copy doesn’t violate the rights of the owner of the original because he still has his copy. You are implying that the important distinction here is what effect the copy has on the original. However, as we both know, the distinction is what effect does the original have on the copy. If they are casually connected then we can say the copier infringed on the owner’s original. It does not matter that the original still exists. To state the situation this way seems plausible but it is fallacious. And it is not metaphysical, because since we are dealing with tangible instantiations of protected works, we are dealing with tangible, not metaphysical, reality.
“A work is a pattern of information. Inanimate objects are “causes” of things? The cause of the copy is the act of copying by the copier. So what? And it could not happen if the original did not exist to copy from. So what?
As Ronald Reagan would say, “There you go again!”
First, I am simply pointing out what you now feely admit, that there is a causal relationship between the original and the copy. The copy does not arise on its own, by “accident” or “simultaneous invention” if there is such a thing in copyrights.
That is the basis for claiming that the copier has a duty of conduct owed to the originator, in the same way that you, as the owner of a bat, have a duty to not use it in a way that bashes in my brains. You seem to disagree. You seem to hold that the copier has no duty to the originator.
“By this stupid argument every piece of knowledge or information in the world cannot be used by those who learn of it, unless they have permission of the first guy to promulgate it. How ludicrous!”
First, it would be ludicrous if only it was true. We are talking about the subject matter of copyrights; protected works. We are not talking about information that is in the public domain. I don’t know this for a fact, but I would guess that most of the knowledge of human beings is in the public domain and not protected by copyrights. Therefore the “first guy” would have to have died, under current law, less than 70 years ago to be a subject of your complaint. That is hardly “every piece of knowledge or information” available for learning.
Second, copyrights don’t work that way by design, as you know. Both copyrights and patents are rights for limited terms. Once something gets into the public domain, it is forever unprotectable. We could argue about why the term is this or that, but one thing we can agree on is that it is not perpetual. Therefore your premise is ludicrous.
I didn’t say stupid. You are clever to couch your argument in this way.
“So, for example, I’ll grant, arguendo, that my Star Wars Sequel would not exist if George Lucas had never created the original. SOOOO?? This proves nothing. There are an infinite number of so-called “but-for” causes of any given action. So what?
Actually that is not true, there are not an infinite number, otherwise it wouldn’t be much of a test for anything. In any case, we are trying, by the actual cause test, to connect some direct causal relationship between two things, like an agent and an injury, like a pebble in a pie and a broken tooth. We are asking if THAT pebble caused THAT injury.
I am asking if your derivative work is casually connected to the original work. You agree, though only arguendo, that it is.
If it is, then the copy only exists by virtue of an original which existed first. I am asking how an actor who copies from an original is relieved of the causal connection to the original, which is owned by the author? He is not. If the copy is the ACTUAL CAUSE by the original, then the copier is benefiting from an act that depends on the availability of an original. How can you justify the act without acknowledging liability for it? Ideas may be free, but Star Wars isn’t. Why would you argue that it is? Why would you insist that in this particular case, output (the original FROM the author) does not equal income (the economic value of the copy TO the author)?
“You sound like such an amateur crank here. Please stop trying to reinvent hte law. Next you know you’ll be quoting Blacks’ Law Dictionary at me like a conspiracy nut.
Good idea. proximate cause. 1) a cause that is legally sufficient to result in liability; an act or omission that is considered in law to result in a consequence, so that liability can be imposed on the actor. 2) A cause that directly produces an even and without which the event would not have occurred.
As in torts, in an infringement case the plaintiff would have to prove that the copy was made from the original (actual cause) and that the copier was liable (proximate cause). A copy would have to be identical or substantially similar, and could be proven by direct or circumstantial evidence; substantial similarity PLUS access OR striking similarity that cannot be explained by other evidence.
This is not the same thing as saying that if you make a copy in the privacy of your home, the State will break down your door, put a gun to your head, confiscate hour computer, and throw you behind bars. I think the distinction is important.
“This is utterlyincoherent. You have NO ARGUMENT AT ALL here.
***Therefore the COPIER is liable for the act of COPYING.***
“HAHAHAHAHH at the “therefore”.”
“I can’t go further. You arguments are not serious.”
I’m trying. I’ll try harder.
Wildberry,
You are using the inherent imprecision of human expression and the subjectivity of our experience as an excuse to defend a logically invalid position. I wonder, do you comprehend the significance of such a position?
Wildberry,
Well, this is the first time I’m noticing it. Probably due to the quantity of text you produce.
Let’s say for argument’s sake that I don’t agree that homicide violates anyone’s rights. What would your approach be in proving me wrong?
Theft is an unethical conduct. Since IP is another word for the theft of property of copiers, it’s unethical. How do you respond to that?
However, the IP-confusers also assume that the material that copies are made of is owned by the copiers, thereby contradicting themselves. The current law does not make this assumption. So, the ex-post justification provided by IP-confusers is incorrect.
All law is based on the assumption that someone’s benefit takes precedence over someone else’s and attempts to describe the conditions under which that make happen. That does not mean that an ex-post economic theory trying to explain the phenomenon addressed is correct or even logical. The Law for the Restoration of the Professional Civil Service also “proceeded along rational and logical lines”. That does not mean it was based on economically correct assumptions or that it’s ethical or just.
But I’m doing exactly that. I’m saying that IP in general advocates the theft of property of copiers. That’s my whole point. I have challenged my opponents to show a situation where this is not the case, b
Wildberry, the quantity of the text you produce cannot mask your stupidity. It can only tire some people out of replying.
Timer ran out while I was typing, let me amend:
… but they do not provide it.
Well, I finally made all the way through this chapter, and thank god I didn’t spring for the book.
This is the most poorly reasoned, scattered and disjointed treatment of the subject I have so far encountered.
No wonder Knisella and Tucker love it. Book sales support Mises.org and it is a complete rehash of every fallacious argument against IP that has ever been made.
My advice? Don’t waste your time.
Wilderberry,
Please don’t give up.
You will see this will be one of their sacred literature to enforce their circular dogmatism.
And this is all at “Mises”.org
Marxism started similarly and we are still fighting it.
God forbid we get a logical refutation…
It is hard to do. We have different axioms:
You start from anarchism and
We arrive at minarchism!
Anarchism isn’t my axiom, it’s just my logical conclusion from the human action axiom and the non-aggression principle.
“…and the non-aggression principle.”
Maybe you don’t understand exactly what one of the problems is here. I personally would agree that IP is not defensible IF you assume the NAP as your bedrock. That is, if your DEFINITION of unlawful is “physical invasion of blah blah….” then I would agree that acts that don’t fit this definition are not unlawful but are in fact lawful. “Man shows his support for tautology” is not exactly front page news.
If though, like me, you don’t think that an advanced division of labour society can function with only the NAP, then this isn’t analysis, it is simply defining away the problem. Don’t feel bad though, you’re about the 10,345th person on this site to make this “argument” so you have plenty of company.
@Mashuri, (and all the anarchists here)
Tens of thousands of years of human history without the single emergence of your idealistic anarchic society pushed at this website should, at least, raise concern about your thought process. (No, those desperate attempts used as examples are laughable and only show how detached anarchists are from reality.) It might be assuring that everyone before you were idiots, however, this attitude is exactly how religious zealotry manifests. Minarchy which keeps the possibility open of diminishing the state beyond all measure and starts from current reality, in principle, offers the same result. And still the biggest enemies of the anarchists are not the advocates of totalitarian etatism but minarchy. Isn’t this attitude the same as that of the infighting communists about their road to true communism? By throwing slogans at me, I think, you just demonstrated what I am referring to as dogmatism.
Here is another hint back to reality: I challenge you to find a single factually true sentence in Boldrin and Levine’s rant on pharmaceutical or medical innovation. Show me one practical application of a breakthrough developed without IP being involved. Find one and we can start talking about logical refutation. Until then the fact will trump everything.
The progress of this industry is painstakingly documented and still B&L’s lies can get hold and even used as foundation in the discussion on IP here. Why?
@Andras
Here is another hint back to reality: I challenge you to find a single factually true sentence in Boldrin and Levine’s rant on pharmaceutical or medical innovation. Show me one practical application of a breakthrough developed without IP being involved. Find one and we can start talking about logical refutation. Until then the fact will trump everything.
I haven’t read the book, so I can’t quote any proof of their contentions, but Dr. Jonas Salk’s polio vaccine, which helped eradicate that disease, came about without the use of patents or IP.
@JSD,
Thank you for taking the time to respond.
Salk is a rather controversial figure in medicinal history. I don’t really want to engage in this debate. Let it be enough to say that his whole research on polio was largely government funded and approved. His breakthroughs were published before so he could not patent them anyway due to prior arts. However, he could surely have carved out a few patents from the then existing patent space considering his popularity. I admit his focus was not about patenting his achievements. To note his influence, testing his vaccines on millions of healthy kids wouldn’t be approved today. But this would leave to another debate on the FDA (which I am absolutely against).
More importantly, to produce the vaccine the manufacturer needed an US government license. Practically, the US government owned the master “patent”. It is the same as with all inventions from government founded institutions. (A similarity how taxol was recently licensed to industry.) Moreover, all licensees of the vaccine developed their own manufacturing processes and then …patented them (or kept as trade secrets).
This process also how penicillin made Pfizer. Then again, noone uses penicillin per se but newer and newer beta-lactams protected by thousands of patents.
I hope I could show that there was IP involved in the polio breakthrough. I agree this should open up a lot of debate but first we should learn and respect the facts.
JSD
I found your comment interesting so I looked it up on Wikipedia and found this:
“His sole focus had been to develop a safe and effective vaccine as rapidly as possible, with no interest in personal profit. When he was asked in a televised interview who owned the patent to the vaccine, Salk replied: “There is no patent. Could you patent the sun?”
It appears that he exercised his right to either not patent or not exploit a patent, which of course is the right and privilege of any person who is otherwise entitled to protection. Accepting your premise that he was in the position as inventor, he merely exercised his right to decide what to do with his property rights. That is one of the benefits of having property, right?
This leads me to a simple suggestion. How about Mr. Heubert and Mises.org follow Dr. Salk’s lead and renounce their right to profit from the sale of this book? You know, put their money where their mouth is?
By the way, the development of the vaccine was done while working under an appointment to the University of Pittsburgh School of Medicine, and undertook a project funded by the National Foundation for Infantile Paralysis. Just so you don’t think he was working for free. Also, under the work for hire doctrine, it is possible that the patents were awarded to the university or foundation. I didn’t take it that far, but you could.
So tell me, how is the polio vaccine an example of why IP laws are unnecessary?
You don’t even rely on reasoning yourself. When I asked you on this subject earlier all you could give me is what already exists. I asked for a definition and delineation of property and the best you could give me is that it’s complex and I should read existing law. That’s probably a fair sign you haven’t even thought about the issue outside of what already is. If you had, you could have provided me better than that.
You’ve argued this with numerous people and the best you’ve ever been able to accomplish that I can tell is repeating the supposed intentions of IP law while having absolutely no evidence to backup your assertions that IP law is actually a net positive at all.
When I tell you that IP law is unenforceable without draconian tactics you ask whether I think any laws are worth enforcing, seemingly not regarding the facts that those laws are enforceable and also respected by most people (something that you will find less and less true of IP law, which people don’t respect since there are many who disagree with you).
IP law is like any other “moral” law which is axiomatic such as religious doctrine against homosexuality/etc. It is not rooted in what is necessary for people to peacefully coexist and cooperate (I’m sure you would disagree on this point, but you have to this point never provided any proof to backup your position).
@Matthew Swaringen March 3, 2011 at 7:49 am
It is hard for me to find a way to discuss this with you. I have the sensation of trying to talk to an angry bull while being swung around on its horns. Let’s see if we can turn this into some kind of rational discourse.
“I asked for a definition and delineation of property and the best you could give me is that it’s complex and I should read existing law.”
That fact that this is the way you recall our previous discussions just demonstrates how little attention you paid to the content. Here’s what I got out of you, as I recall:
You oppose the concept if IP, and the “draconian” State that enforces it. You believe this because you have learned the mantra which states that nothing that is not scarce and homesteaded can be property. You define away IP as “ideas” which are not scarce, and therefore not property.
The fact that IP laws, including copyright and patents, specifically exclude ideas from protection does not bother you. You have no problem with opposing something in IP law which is specifically and explicitly seeks to avoid.
You then turned to the operation of IP law. You grossly misstated and misrepresented what it is, what it does, and how it operates. After constructing this straw man, you proceeded to argue against it on the basis of the “Kinsillian theory of IP”. You simply repeat the arguments you have heard him make without regard to any reference to the truthfulness of his assertions, alternative axioms regarding property and rights therein, and you arrive at the ultimately sacred assertion, that since IP law depends upon state enforcement, and you hate the state, it is ok to hate IP law and those who benefit from it, including the legitimate consumers of IP.
Anyone that tries to engage you from outside your tightly woven, internally consistent tautological framework is worthy of the most vile and unwarranted ad hominem attacks.
Property means something in which one may enjoy exclusive rights to possession and use. It is a human device. It does not exist outside of the human experience. It is not a “natural right”, since nature could give two hoots about humans. Natural laws are indifferent.
Humans may hold certain, inalienable rights to be self-evident. HUMANS! Humans devise institutions that serve a purpose and are preferable to alternatives. Certain societies have designed methods to make it possible to peacefully resolve disputes and change their preferences. Wisdom is relevant to this process. Time tends to make bad choices obvious.
IP laws have been around in the US for a couple of hundred years. During that time, we have experienced rather dramatic improvements in the living conditions, health and prosperity of its citizens. While it might be challenging to show that all of this is directly the result of IP laws, we can certainly observe that the impacts were not all negative; they didn’t seem to drag us into the gutter. There is not a groundswell of protest sweeping the world to abolish IP.
So get a grip.
If you are opposed to something, it is reasonable to point out that you are opposing something that doesn’t exist, does not do what you say, and does not operate as a draconian tool, “dripping with evil” as many claim, especially Kinsella and his closest allies in this messianic quest for anarchocapitalism.
Respectfully,
IP laws have been around in the US for a couple of hundred years. During that time, we have experienced rather dramatic improvements in the living conditions, health and prosperity of its citizens. While it might be challenging to show that all of this is directly the result of IP laws, we can certainly observe that the impacts were not all negative; they didn’t seem to drag us into the gutter. There is not a groundswell of protest sweeping the world to abolish IP.
So get a grip.
Flu, cancer, and other infectious diseases have been around us for millenia. During that time, we have experienced rather dramatic improvements in the living conditions, health and prosperity of people. While it might be challenging to show that all of this is directly the result of having the infectious diseases, we can certainly observe that the impacts were not all negative; they didn’t seem to drag us into the gutter. There is not a groundswell of protest sweeping the world to abolish infections.
So get a grip.
And, yes, learn some logic.
@averros March 3, 2011 at 7:56 pm
“And, yes, learn some logic.”
IP equals infections disease.
Very logical.
Wildberry learning logic? I should live so long!
“worthy of the most vile and unwarranted ad hominem attacks. ”
Vile? I’d like to know what your qualification for that is. I don’t recall saying that I think you are a bad guy and thus your arguments are bad/etc. You can accuse me of misrepresenting the argument as you see it that way, but I think you misrespresent me by saying that I haven’t looked at “other axioms”/etc. because you don’t/can’t know that I have not. You also say I don’t look at the truthfulness of Kinsella’s assertions which is something you can’t know/etc.
Basically you make a huge amount of assumptions about my thinking process, assuming I’m “repeating” and even calling it “mantra.” Given my lack of belief in “original thought” I’ll accept the similarity in my viewpoint to that of others, but I deny entirely that I’m merely repeating someone else and that I don’t consider opposing arguments. I could easily say the same in your direction and it would be totally meaningless given that I can’t know it and since we obviously disagree our perspective on that is much different.
The reason I have problems with your argument that IP “isn’t about enforcing protection of ideas” argument was something I said numerous times. My problem is you can’t meaningfully explain it yourself.
You expect me to explain it for you by reading law that I’ve already made it quite clear that I see as arbitrary and about supporting privilege and monopoly, and in fact those who created this law saw themselves as doing these very things when they created these laws, for they even went so far as to call them such.
@Matthew Swaringen March 4, 2011 at 9:17 pm
I was making a generalization about the tone of some opponents here. That blogger who goes by SIONE comes to mind. Kinsella is certainly guilty of vile ad hominem fromtime to time. If you are personally innocent, my apologies.
Although I think you can see that this is not very respectful:
You don’t even rely on reasoning yourself.
Let me skip to the substance of your post:
The reason I have problems with your argument that IP “isn’t about enforcing protection of ideas” argument was something I said numerous times. My problem is you can’t meaningfully explain it yourself.
For an explanation, see my most recent reply to Kinsella.
Wildberry
What you have written on this occasion would have to be one of the most egregious examples of hypocracy to be posted on this forum.
It was you who played the man instead of directing yourself to the substantive and dealing with the fundamentals of the topic under analysis. Last week you initiated an ad hominem against Dr Kinsella (and not for the first time either) for which I saw to it that you were right properly chastised. Since, at the time, you made it clear you did not intend to alter your behaviour the chastisement was intensified. This week you did it again (on this thread), this time directing your nonsense towards me. Again you were duely exposed and chastised.
It is apparent you do not enjoy the discomfort of being publically spanked for your shallowness and dishonesty. While you appear to find the discipline of logically dealing with the substantive onerous, it is to be encouraged that you engage yourself with it consistently. In the long run you’ll learn more while avoiding the discomfort of being exposed as an intellectually shallow fraud or, worse, a hypocrit.
Improve your behaviour.
Sione
matthew,
case in point.
@Sione March 5, 2011 at 3:49 pm
It is apparent you do not enjoy the discomfort of being publically spanked for your shallowness and dishonesty.
“Don’t rely on reasoning” was in the context of “poorly reasoned.” Unfortunately, I think at this point the way we view reasoning is such that we certainly don’t agree on what constitutes good and what constitutes poor reasoning when it comes to IP. In other places we have more agreement, and I don’t think it’s because I’m making unnecessary leaps.
I think the argument is axiomatic, even you seem to have said as much, but you don’t respect my decision not to accept your axiom. Instead you want to say that I am repeating mantra/etc, as though I had not thought about why I have the principles that I do. So if I say you don’t use reasoning, realize that when you tell me I’m “repeating” someone else without thinking about it for myself that you aren’t accusing me of any less.
As a former neo-conservative who now sees the warfare state as wrong, I absolutely do not admit that I’m unwilling to question the underlying presuppositions of my philosophy. I have kept my anti-IP stance which I’ve held for many years because it is the only stance that I believe to be compatible with my belief in voluntarism and personal liberty. I believe very important freedoms will be challenged more and more over time if the real IP proponent – the state – has it’s way. I’ve seen the stupid things the state does in the name of it’s IP regime, and I see no reason to believe it’s less stupid here than it is in the anti-trust arena or it’s ridiculous drug prohibitions.
I certainly don’t have a problem with IP proponents on the grounds that they want people to get paid for work that they do. That’s not some kind of abhorrent idea to me, the problem is what I believe that philosophy leads to.
Of course I realize some here like to toss around the term “IP socialism” and they probably really believe those of us who oppose IP vehemently are really some kind of neo-communist.
Matthew,
Fair enough. I really have no personal beef with you.
Reasonable people can disagree.
See you around.
I am dismayed that so called libertarians still entertain the idea that individual’s can contractually surrender their liberty to copy an object (as opposed to an exchange being conditioned upon whether something is copied).
I’d also point out that the Constitution does indeed specify a pre-existing (natural) right of the individual to exclude others from their intellectual works, as only such rights can be recognised and power to secure them provided. Privileges, such as Letters of Marque, the Constitution empowers Congress to GRANT (and being instruments of injustice, only against a wartime enemy). Just because Queen Anne’s privilege of copyright was granted (on the pretext of securing the author’s exclusive right), that doesn’t mean that the Constitution empowered Congress to grant it. It is possible for Congress to assume power beyond that provided to it by the Constitution.
“BINGO on this part. It is a well worn Orwellian tactic. Mises.org thinks they own libertarianism, that they carry the torch for the world because they insist they are the “true” libertarians. Sounds like religious fanaticism to me.”
Hit the nail on the head, which is why the Libertarian Party can achieve only 5%. Not much difference between the Utopian Socialists and the LibroUtopians.
Mr. Huebert’s article is flawed on so many levels, I find it hard to believe that it was given such prominence on a libertarian website, of all places.
As a long-time IP lawyer in both civil and common law jurisdictions, as someone whose father is a well-known composer who worked both under a socialist copyright regime and a WIPO-copycat copyright regime, as a recent supporter of many libertarian ideas, I find this article gravely misleading in several ways.
Here are my bullet points.
1. In a discussion of what is right and what is wrong in principle, it makes very little sense to refer to what currently exists and what has always existed. That IP laws historically developed from a government grant and that in most countries today they are still considered to be nothing more than a government grant, does not answer the question: is this really the case that we protect IP because “the government knows better”?
More on this in my article Copyright and the Great Socialist Degradation.
2. From the libertarian point of view, as opposed to utilitarian or collectivist point of view, it is completely irrelevant if recognition of the right of creators and their assignees favours society as a whole. More on this in my article Modernization of the Inconceivable. Either the protection is recognized because it is the right thing to allow the creators and their assignees to have an enforceable mechanism of delivering content on their conditions; or it is granted to create the most good for most people at the expense of creating the least evil for least people.
From the point of view that puts an individual in the center of the picture, It is irrelevant whether IP laws lead to more creation and innovation; It is irrelevant how much time creators and their assignees spend creating and litigating. No one has a “right” to other people’s work. What matters is whether a person who chooses to make an offer to the public to use the results of his work can enforce the terms of that offer, regardless of whether they are reasonable or not. More on this under #4 below.
3. Whether or not IP has all of the characteristics of “true” property is irrelevant to the discussion whether IP rights should be recognized and zealously protected.
4. In a truly free society, when a creator or his assignee puts his work on the market, he is making everyone an offer depicting the terms of the use of the work. Think about public parking. Anyone who enters the parking lot and parks there by the act of parking agrees to the terms sufficiently brought to his attention (i.e. to depart after a prescribed number of hours, to pay at a certain rate, etc.). The same idea is behind all IP laws (although it has not been articulated): anyone who wants to use a work agrees to the terms of those who made enjoyment of this work possible. Whether or not these terms are reasonable is irrelevant. Again, no one has the right to use something that would not have existed if the person who created it refused to open it up to the market.
In principle, there is nothing that should prevent an author from making a disposition that his books never be read, let alone copied, with the only authorization being to allow the buyers of the book to create origami from it. This is probably an unwise investment of the author’s talent, but it is HIS decision, and to override it through notions of collective interests would be an abomination.
More on this in my article Failed Business Models of the Past, Eh?.
5. With respect to “abandoned” works, there is a very simple solution: reconceptualize terms of protection of copyright. In my perfect world, there would be a relatively short period (like 14 years to continue the tradition) during which copyright protection would be automatic, without any formalities. Subsequent copyright protection would then be subject to active steps of the copyright owner, i.e. paid-for registration with the payment of fees representing payment for the government’s service of enforcing the copyright. Whether or not there should be a cut-off period for such paid-for registrations and whether any fair-use exceptions should exist and whether they should differ depending on the “age” of the work can be debated.
What is important is to make sure that creators and their assignees are given an opportunity to rely on some legal mechanism that would allow them to come up with whatever conditions they want to impose on the use of their works, but the use of that mechanism should be a conscious act of the creator/assignee, rather than an automatic given.
Andrei Mincov
J.D. (University of Victoria, Canada), Ph.D. in Law (Russia)
Andrei,
At last a fresh and reasonable voice. Welcome.
What’s irrelevant are your and your dad’s credentials. Your argument is terribly flawed and just repackaged mainstream assumptions.
That’s what I call civil intellectual discourse.
Lower your expectations, Andrei. I don’t know you from Adam, but if Kinsella thinks you are a kook, those are impressive credentials. LOL.
Andrei, I mean no disrespect. You are welcome to your views. But I find your argument to be utterly incoherent. And despite this, you are cocksure about it. I have a systematic argument and you are not addressing it. Your argument is full of false assumptions and non-sequitures, metaphors and vague language. If you want to provide a clear argument for why the state is justified in issuing monopoly privileges, feel free to do so.
There is only one reason why I will not be providing a clear argument for why the state is justified in issuing monopoly privileges: I do not believe that IP= state privileges. In fact, I was pretty clear (or so I thought) in stating the opposite principles that the only role for the state is to provide a mechanism of enforcement.
If you protect non-property as property, then property rights conflicts will occur, so the question is incredibly relevant.
No problem Andrei,
let’s assume the state away. So, how exactly does that fix the non-sequiturs, vagueness and false assumptions Stephan and me are complaining about?
Dixie,
I think you mean, “If property rights are not well defined, conflicts will continue to occur.”
Say there is something that more than two peple want and they all can’t own it. Someone has better title than the others. There is a conflict. Without a rule of law, it cannot be resolved peacefully. So we make a rule. This is “property”. This is how we decide who has better title to it. From then on, there is no conclict. Problem solved, except when someone breaks the rule. Right?
No Wildberry,
that’s obviously not what Dixie meant. He meant that the approaches described by IP proponents lead to self-contradictions, i.e. it is impossible to conclude which courses of actions are legal and which are not. Then the question arises what’s the purpose of laws that cannot explain what is legal and what not.
What you said is that if there are scarce goods and laws, some actions will be illegal. Which is a tautology and does not really explain anything.
Those are two separate issues, so kindly stop conflating them.
@Stephan Kinsella March 4, 2011 at 11:30 am
“What’s irrelevant are your and your dad’s credentials.”
“Andrei, I mean no disrespect.” .
I mean, even bringing his dad into this, as in “yo’ MAMA!” lol
It was Mincov who brought credentials into it. I never do this in my arguments.
He wrote “As a long-time IP lawyer in both civil and common law jurisdictions, as someone whose father is a well-known composer who worked both under a socialist copyright regime and a WIPO-copycat copyright regime,… J.D. (University of Victoria, Canada), Ph.D. in Law (Russia)”
What is relevant is if you can make a coherent, libertarian grounded argument. Mincov has not–regardless of his or his dad’s credentials.
This article is disastrous. You are cutting yourselves off from the most important market of the future, the emerging privatized market in IP rights. It’s now happening everywhere there are creative people in advanced countries. Even happening now in China. You guys are trying to stop an onrushing tide. Even King Canute knew he could not do that.
Sadly, you are giving libertarianism a black eye in the minds of the smartest, most creative people on the planet. Yes, gov’t control of IP rights is a disaster. But privately registered, protected, marketed, licensed IP rights is unstoppable. Why? Because those who create the most value, scientists, technologists, innovators of all stripes, increasingly understand that if they can protect their ideas as property, the market will reward their work commensurate with its value as determined by the subjective preferences of 6B consumers. And because markets are far more effective than any other social structure, their ideas will get out to consumers more effectively than through any other way.
We now know how to create a competitive private free market in IP rights. Entrepreneurs are doing it everywhere. You guys are living in the dark ages. You listened to Kinsella. Big mistake. Look, I’m not here to argue. I’m just one guy. And I like to build, rather than argue. Kinsella likes to argue. Endlessly, from what i can tell. Figures. He’s a lawyer. I’m writing this comment for one simple reason: one last chance for Mises people to reconsider their idiotic “Anti” campaign against the future. See, people are creating this market as I write. They’re creating the methods and market mechanisms necessary for a global market in private IP rights, governed by contract, to emerge. The market will converge on methods that make the spread and utilization of new ideas fast, simple and lucrative. Privatized IP rights will result in a far broader array of products and services all delivered at ever cheaper costs. That’s what markets do. Kinsella can’t seem to imagine a non-state controlled market in IP Rights. He’s a dinosaur.
But I gotta ask. Why would a libertarian, someone whose beliefs are grounded in property rights fight so damn hard to deny such rights to those who create the most valuable property in the world? Or deny that it is even possible for such rights to exist or be created. I know all the arguments against IP rights so don’t waste your breath. Yes, I’ve read Kinsella’s original article, Boldrin & Levine, Lessig, etc as well as Hayek’s and Mises’ views on IP rights. They’re all “fighting against” a state system. They don’t see the private system that is emerging all around them whether they like it or not. It’s governed by contracts between producers, mostly far back in the structure of production. And as markets always do, the free market in IP rights is fostering a far broader, more effective, and faster dissemination of ideas into products & services that make life better for everyone. No, you do not need the state to create a market in IP rights. In fact, as libertarians you should know that the state cannot protect property rights period. The state’s existence is based upon a massive, ongoing violation of property rights. That’s why the patent system is imploding. It’s unworkable. But it’s being replaced by an emergent, flexible, powerful free market in IP rights independent of the patent system. To see it though, you have to have the imagination to visualize that it is possible. Most people don’t. But, amazingly, lots do. They’re creating it. Would give you myriad examples, but, hey, you’ve signaled hostility so why should I?
Those who create these markets will become immensely wealthy as a result. And because they are creating, for the first time, a global market in rights to the most important & valuable property human beings create, and one governed exclusively by private market mechanisms, they will shape the future direction of civilization. Your choice. Build the future or fight against it. I prefer building. I leave the fighting and arguing to others.
That’s
Most inspiring comment I’ve yet seen on the Mises blog.
Yeah…but inspiring of what? I especially loved this bit: “Why would a libertarian, someone whose beliefs are grounded in property rights fight so damn hard to deny such rights to those who create the most valuable property in the world? Or deny that it is even possible for such rights to exist or be created. I know all the arguments against IP rights so don’t waste your breath.” (Answer this question…but, oh, by the way, I’m not going to listen to any response! Brilliant! I’m not sure this is a parody of pro-IPers, but it does a good job)
jwd,
No one is arguing against private contracts. But you cannot enforce contracts on third parties in a free market. It’s pretty simple really.
DixieFlatline,
When people are complaining about all the victims of state brutality of enforcement in online movie and music products they forget that only the uploaders, people who breached their contracts and their enablers, the accessories are persecuted but not the downloaders, the third parties.
I might be wrong so please correct me if I am. However, even if I am it should be like I said as it is justified so.
No one claims that defending IP is enforcing a contract. That is fallacy #7.
You have the right to use all necessary force against property violators.
Stranger,
That’s wrong. A lot of IP proponents do that. Just in the comments for this blog post, Andrei and jw deming, for example. I don’t see you complaining to them though.
It’s funny, Peter: some IP guys say ideas are property; IP is a monopoly grant; IP is based on contract; the other half disputes all of these. They really are all over the map. There are no good arguments for IP! see http://mises.org/daily/4601 and http://blog.mises.org/9499/there-are-no-good-arguments-for-intellectual-property/
Kinsella et al do argue against private contracts when they claim, as they have done for years, that ownership of intangible intellectual creations is (a) impossible, (b) impractical or (c) both. That would include a system of IP ownership protected by purely private contracts.
My response to your statement that “you cannot enforce contracts on third parties in a free market” is: Well, yeah. That is pretty simple. It’s true by definition.
But it is irrelevant. The emerging system of privately-protected IP rights depends on no enforcement mechanism whatsoever, much less a mechanism for enforcing contracts on third parties. Unless one has explicitly agreed to a contract, one is certainly not bound by its terms.
In fact, the moment one party “enforces” another party to the contract to abide by its terms, they are no longer in a free market. That is, unless you mean something quite different by the word “enforce” than I do.
Are you familiar with the concept of “market sanctions” as opposed to legal enforcement. If not, I suggest you look into it. Market sanctions, as any decent business person older than, say, 35, knows, are far more effective than any mechanism of legal enforcement at motivating people to keep their promises.
So what is your point?
Contract cannot bind human beings or you end up with bondage.
Contract is concerned with the exchange of that which is alienable, i.e. physical property. It cannot constrain or alienate a person from their liberty to communicate or act upon the information they possess, e.g. to produce copies of what they possess.
So, you cannot ‘enforce’ contracts even on second parties let alone third parties in respect to barring the making of copies. Corporations of course, having no natural rights, you can bind up all you want.
Similarly, contracts do not enforce promises in terms of a party’s actions – since the individual cannot alienate themselves from their liberty through promise. You can contract to alienate yourself from your property sure, but not your liberty of action. NB A promise is distinct from an exchange being conditioned on future actions. A promise is bondage – a loss of liberty. An exchange is not.
I despise IP “rights”. They get in the way of what I would like to do.
As a Linux user, I have to live under the shadow of enemies of Linux, such as Microsoft, and potentially Google, who can obtain patents, and cross-patent agreements, and then descend on competitors that are too small or disorganized to afford fighting off the resulting multi-million dollar lawsuits. Thus, my chosen computing platform is under constant threat!
This, despite the fact that it’s possible to run Linux, without violating patents, by completely simulating the hardware in a computer. (Before you say “that’s absurd!” consider this: would a simulation of a car infringe on any patents that might be used in the design of that car? No, because the simulation would just be data and electrical impulses, which aren’t covered by patent.)
I am also a mathematician, who is still trying to find my way in the world, after deciding not to be a professor. Two such avenues that attract my interest are computer graphics (using linear algebra an topology) and finite element analysis (using computer graphics and differential equations). I have heard rumors–that I have not yet confirmed–that computer graphics in particular is chock full of patented ideas, ideas based on mathematics, but patentable because they are tied to a physical machine (called a “computer”). Thus, by choosing to go this route, I expose myself to the potential of being sued for pursuing work that I would enjoy.
And this irks me, because I earned my mathematical knowledge. I homesteaded those ideas through a lot of study, and a lot of hard work. I have even created new ones, waiting to be published! But now I’m told that, because someone gave those ideas physical form, and patented them, I will put myself in danger of being sued, if I use them myself–even if I do so without knowledge of whoever else is doing it. That really irks me, because I’m well aware that mathematics in particular has many examples where individuals came up with the same idea at different times, without being aware of the efforts of other people!
So say what you will about “protecting” ideas–but you are also setting up fences around those ideas, which fences are, by necessity, invisible, because it is impossible to build literal fences around ideas. Instead, they are filed away in obscure offices by the millions–and then, when anyone wants to do anything of interest, we’re expected to know what’s in those millions of files, and to be able to “work around” those things that infringe on our work!
I think, here, we all agree that the current IP laws are not perfect, some applications of them are outright rotten.
What we do not agree is that the solution is Kinsella’s no IP world.
What can be done to “perfect” IP laws?
As a mathematician, the really good IP–the theorems, and even their very proofs–cannot be protected, even by copyright, because they are natural laws. Oh, it’s true that textbooks and papers are copyrighted, but the ideas contained are so fundamental, they cannot be monopolized in any meaningful way. Yet, as a field, mathematics prospers!
That’s ok, because the only meaningful way to enforce a copyright or patent is for the holder of that privilege to sue the person allegedly violating the copyright or patent. I, for one, am unwilling to sue anyone, so for me, IP is dead anyway. In the case of patents, it would only become meaningful if I had millions of dollars to my name–which I don’t, because I’m in debt, and barely scrape by from month to month.
There are countless artists, writers, and computer programmers, among others, who demonstrate an ability to make a profit, without using the “protections” of IP–indeed, often by denouncing them. While I’m convinced that copyright does more harm than good, I could live with it, because it’s sometimes somewhat clear when I’m copying someone’s actual work. Patents irk me far more, because it puts claims on ideas–and it is this that makes my work as a computer programmer (even one who just wishes to program mathematics!) in such peril.
I just want to be left alone! Is that too much to ask?
Alpheus,
Ideas cannot be patented! This is expressly in the patent law!
Ideas can be patented, when expressed as a physical object. That’s expressly in the patent law, as well.
Thus, linear algebra is non-patentable, but people can pursue patents in computer graphics (and even patent linear algebra) by showing it tied to a computer. Indeed, all software patents are patented this way.
And heaven forbid I decide to take a device, emulated and perfected by finite element analysis, and then actually make the device–if someone else conceived of, and patented it, before me! It doesn’t matter that all physical devices are ideas of nature, embodied in physical form.
Alpheus,
You have a point! However, that does not mean that all IP laws should be abolished.
The whole IT sphere should be handled as a separate entity in IP law as its manifestations are virtual. And it will be. IP law changes. Just recently, genes were removed from the patentable domain. But the applications based on the knowledge stayed, rightfully as its manifestations are very real (diagnostic kits, drugs, treatments).
Andras, it is nice to know that IP law changes, but I could care less about the law! I’m a mathematician, and I care about mathematics. I have been pondering my interests, my skills, and my knowledge, and I have been trying to figure out the best way to pursue mathematics, and to earn a living. Among my interests are robotics, computer programming–especially computer graphics, 3-bit computer architecture (don’t ask me how I’ll get the prototype chips–I don’t know yet), finite element analysis, computer-aided machining, and engineering.
While there are major threads of mathematics flowing through all these fields, these fields are also littered with patent, and perhaps even copyright, land mines! Why should I have to worry about these things, when all I want to do is design things for myself, and for others who find such things interesting?
Patents and copyright law both hinder the innovator, rather than help him.
@Alpheus,
Not caring about the law is a rather dangerous position. What comes around goes around. You are an adult, I am sure you care.
I am a medicinal chemist. As a researcher, it is my duty to know the literature including the patents. I admit, my field is simpler as it is abstracted and documented in an almost singular database. It means it is almost universally accepted that whatever is known is in it. Of course, there are some fringe, borderline cases especially involving time and controversial claims but that by its nature is rather negligible.
So my expertize is not in math.
However, I can offer some general insights. It is always good to know the patent literature. It, by definition, claims the most progressive solutions to a given problem so you don’t have to rediscover the wheel. IP law allows for fair use so you can use those works to build your own applications to study, experiment and just be a mathematician. If you are a real innovator you will shortly progress to the next level and you will not have trouble with IP any longer in any of your endeavours as long as you document them (what you do anyway). Being here and reading these comments you are much ahead of almost all of your competition so you can see the pitfalls of being to theoretical. Now what you have to be able to find are novel, progressive and practical instantiations to convert your ideas into a new work. And voila you are an official inventor. Noone can threaten you any longer.
Innovation is about exploring the unknown, taking risks which means failure is an option (sounds very un-american today but it use to be the essence of America). After all, Lewis and Clarke did not have the false promise of Social Security.
Yes, you have a minefield but learn to navigate it!
Andras,
Very well said. Thank you for that, it was inspirational.
Andras, you assume too much.
First, you assume that I’ll be able to find all that has been done before me, and that I will be able to improve on it. There is a vast amount of knowledge, often in obscure places. Patents are especially obscure–in part, because patent attorneys have a special talent for using “patentese” to make it difficult for others to understand it–but also, in part, because it is impossible to catalog the wide variety of ideas that people think are patentable.
Sometimes people invent the wheel out of sheer necessity; sometimes, though, the wheel is re-invented as an effort to come to understand the basics of an idea. This is a necessary step to come to the point of improving on it!
Second, creativity often goes beyond what is patentable. I may very well create a nice 3D graphics editor, and a nice 3D game, and a nice physics emulator, without “extending knowledge” beyond what is patented. To publish my game, then, I’ll still be subject to patent lawsuits, even though I “extended” the work.
This applies, even if I extend the knowledge of computer graphics! While I may develop a new method involving dual quaternions for that game I’m making, my technique may very well rely on an optimized quaternion algorithm–and if someone has a patent on *that*, I’m stuck!
Furthermore, if I use finite element analysis to improve on the materials of a device already patented–thereby making it cheaper to produce, and more durable to boot–I will not be able to market that device without infringement, because changes in material *aren’t* considered significant changes. This, despite the fact that what I have done is creative, expands on the “knowledge” of the device, may require a lot of time, money, and research, and materially improves it as well.
Finally, patents don’t recognize simultaneous, independent creation. Well, they do, in that if the patent holder can prove that you willfully infringed on your patent, the judgment against you is tripled, as a putative measure. I could come up with a patentable idea, decide it’s not economically viable for me to patent it, and then get sued three years later because someone else *did* patent it. Sure, I’d be able to claim “prior art”, but *that’s* going to involve a patent attorney, lots of court time, and lots of money.
I’ve decided, personally, that IP is a fraud. I’ve been taking steps to distance myself from all the problems I see with regards to patent, and even copyright, law. I should be free to ignore it, and to just pursue my own research and experimentation, without the fear of lawsuits from some patent troll company. *If* there was some way I could opt out–to never be sued, on condition that I never sue anyone else–then I would take it! But that option isn’t given, so I have to do the best I can without it, and hope for the best…
@Alpheus,
Excuses are always there to be found. If it is patented it is documented. You can found it. You have to learn how to read them. The intro and description is the most informative and the claims where it can become harder “legalese”. Obfuscation is usually a sign of weakness. So you should not waste much time on them. Talking about your field, the low hanging fruits has long been claimed as what you listed as interests are not that new any more. They are probably all expired or close to expiration so they are public knowledge. This is another advantage of the current IP system. To be patented it has to be published. After expiration it can freely be accessed and used but noone can claim it any longer. So you are safe. You can focus on what are already free. Reading scientific literature further broaden your scope and inform about your limitations. Whatever published is, by definition, prior art. Again, you are safe.
Planning to be a lone wolf combined with not caring for the literature can be only a partially successful proposition. You will certainly keep your “integrity” and it can give you a false confidence. However, you will remain far away from any competitive level where your contribution can become marketable. This way you will find another incentive to cultivate your ignorance as noone will care to bother you with patent issues.
On the other hand, if you are a genius and a lone wolf with “a moral” fiber against IP you can still go to consulting and earn your living there.
Man, grow up! Decide if you want to do something or just prefer to whine. If the second you will find excuses under any conditions. Non-IP would give you much more basis for whining. Isn’t that the reason you are against IP?
“Talking about your field, the low hanging fruits has long been claimed as what you listed as interests are not that new any more. They are probably all expired or close to expiration so they are public knowledge. ”
Since we’re talking about software patents, in the fields I am interested in, many of the ideas may not be new, but the patents are. There are many ideas in the software industry that have received patent protection, because computer science has a lot of esoteric prior art, and the patent clerks have no idea where to look for them.
Additionally, what makes you sure that all the ideas I’m interested in are no longer new? Applied algebraic topology is a relatively new phenomenon. If I started to use that in my work in finite element analysis, what makes you so sure I won’t be stepping on any patent-holder’s toes?
But my *real* interests are in the field of pure mathematics. To the extent that I’m looking for applications of these things, I’m also looking for a “day job” that will pay the bills as I explore pure mathematics.
“This is another advantage of the current IP system. To be patented it has to be published. After expiration it can freely be accessed and used but noone can claim it any longer. So you are safe. You can focus on what are already free.”
I’m only safe if what I want to do hasn’t been patented, or has expired. And I can only focus on what is already free if I know it is free, and if I have no desire to push the boundaries of what I can do.
“Reading scientific literature further broaden your scope and inform about your limitations. Whatever published is, by definition, prior art. Again, you are safe.”
You’re safe, of course, unless you take that nifty LZW compression algorithm you found in that one magazine to produce a nifty new GIF picture format, and someone then goes and patents that algorithm, you’re stuck with a legally problematic file format.
Recently, I’ve been learning about dual quaternions, and their usefulness in rendering certain types of graphics to eliminate “artifacts”–funky errors that occur in boundary cases of other types of rendering methods. Dual quaternions sans computers are pure mathematics, but dual quaternions on computers are currently patentable according to current software patent policies. Why should I fear being sued for exploring, and later using, dual quaternions in my work? It doesn’t matter if I learned about the techniques from a paper, or if I extended them on my own–if something is patented, I expose myself to the threat of a very expensive lawsuit.
Alpheus, you may despise IP rights, and I don’t blame you under the current system of state monopoly patents and copyrights, but private, contractual IP rights are coming. So you best get used to them. That is, if you want to keep working in any interesting creative field. Anyone who violates an owner’s terms of usage (as long as those terms are announced in advance of disclosure) re any innovation he or she owns, will last as long as someone who regularly violates contracts in any high quality field of endeavor.
Oh, I’m preparing for that, as surely as I’m preparing to do what I can to thwart what the State currently does with IP “rights”.
With regards to contracts I’m not party to, I *don’t* have to worry about them, because I’ve never agreed to those terms. If I develop an idea independently of one of these contracts, I have no fear of it. I already work in the most interesting field there is–mathematics–and the *only* thing that will prevent me from doing anything interesting in this field, is finding the time. Currently, I have a family and full-time work, so I don’t get to pursue math as much as I’d like.
But I have been preparing a “contract” of my own, which I will employ as I find the time to pursue ideas, and people interested in their applications. It would combine the BSD License for software, the CC License for art and story, a “Declaration of Prior Art” for patentable ideas, and a “Free Disclosure and Competition” clause for discussing ideas.
While I reserve the right to keep ideas to myself, for whatever reason, any idea I disclose to someone else will be available for others to use as they see fit.
Private contractual IP rights will present you no problems and, in fact, will solve most of the problems you mention. When property rights are implemented in any field of endeavor it stimulates a market and markets act to distribute products, in this case, ideas to all & sundry more efficiently than any other social mechanism. Once acceptance of private IP rights reaches a certain level, ideas will be available via universal vending machines and brokers will emerge to get them out to those who could make use of them as fast as possible. Innovators want their ideas to be used. Innovators don’t want to have to hide their ideas. They do now to make sure they get proper credit for reputational purposes. Private IP rights solves all the problems you have discussed and will increase the free flow of ideas throughout the scientific community. You won’t need secrecy when enough people respect property in ideas. Kinsella and his ilk would never understand that. They’re too busy arguing against IP rights or even the existence of IP.
One last thought: The market is an emergent phenomenon that rewards people as a function of the value they create for others, that value being measured by the subjective preferences of consumers expressed through their purchases in the marketplace. Why, then, do the creators of the most valuable property of all (again, value measured as per above) get left out of that process? Claude Shannon’s innovations are found in ever single electronic computing device ever manufactured and sold. But Shannon made very little money in comparison to virtually any successful Silicon Valley entrepreneur. Hey, those guys deserve their money. They keep it in a world of private IP rights. But in that world, Shannon would have made even more from royalties, each one an incredibly small % of any one product or service. But in toto the revenue flow to Shannon would have been huge.
Secrecy will not go away. Andrew Wiles worked in secret for *seven years* to prove Fermat’s Last Theorem. When he presented his theorem as a series of graduate seminars, so that he could check his logic, only one other person knew what he was building up to–gradually, graduate student attendance dwindled until no one but him attended.
Later, Paul Erdos criticized Wiles’ secrecy. He felt that the theorem could have been proven much faster had Wiles worked openly, but the lure of being the One Who Proved Fermat’s Last Theorem was so strong, that Wiles chose to work in secret, instead.
Wiles’ proof is not patentable. If I copied it, no one would care–indeed, making thousands of copies would be pointless, because hardly anyone would be interested in such a deep and complicated proof. Within ten years, other mathematicians were writing textbooks taking advantage of how the theorem was proved–and, by the nature of mathematics, they would not be paying royalties to Wiles.
In many ways, mathematics is THE most important field of all. Everything uses it, and depends on it. Yet, it is also virtually impossible to reward the innovators of this field in any substantial and timely way. The ideas are dense, so they take time to absorb. Often, it takes decades for the mathematics to be applied. And mathematics takes weird twists and turns–with many fascinating ideas–but to apply them to the physical world? Ha! Yet some of the weirdest ideas have been used to make surprising advances in all sorts of domains.
This is why I am content with the idea of having no IP “rights”. Knowledge builds on itself. Wiles didn’t *literally* prove Fermat’s Last Theorem. He just proved that elliptic curves and modular forms are the same thing. Someone else, before that, showed that if Fermat’s Last Theorem were false, there would be a weird elliptic curve that was NOT a modular form. Thus, his proof depended on the work of others before him.
And that’s the way with most innovation: we take advantage of what came before us, nurture it, and help it grow into something bigger. If it is “robbery” for others to use what we grow for their purposes (even if those others grew it themselves), then I “robbed” those before me, to grow what I did.
Ideas, by themselves, have no value–even if they seem useful. It is the “successful Silicon Valley entrepreneur” types who provides value, by providing the expertise, the customer service, and even the refining of the product into something that customers want, that provides value. Putting ideas in “vending machines” isn’t going to change that–nor will it change the fact that ideas, once out of the vending machine, can be taught to others, and that ideas *in* the vending machine can still be discovered independently, outside of it.
jw deming,
“Private contractual IP rights” is an oxymoron. Either you have contracts or IP. Make up your mind.
This article starts with fallacy #17 and doesn’t get any better on.
I wish I had the energy to bother responding to this. I mean, The Kinsella “argument” is:
1) property comes from scarcity
2) all rights are property rights
so
3) patterns/information/whatever is not scarce
4) so there can be no rights in patterns/information
and this Huebert individual appears to agree. If this “argument” is so devastating, they ought to be writing articles that consist of 4 or 5 lines tops. The need for all these long screeds – discussing the history of medical innovation and other points which are strictly and totally irrelevant to their “argument” – is maybe telling. Maybe it’s because, deep down, they know the “argument” is simply ludicrous and stating it baldly seems to show this.
The flaw in their argument is obvious. 3) is patently false and refuted by both physics and human action. This is why it is the second most utilized fallacy.
Stranger,
your “refutation” of “fallacy 2″ only proves that media are scarce, not that information is scarce. Or to put it into another words, it explains that the use of information is a reinterpretation of the use of media. Paradoxically, that proves my point that IP contradicts physical property, because without IP, media are already owned by someone.
Of course, you also have not defined what scarcity is, but that’s a minor issue now.
If IP advocates arguments were so devastating, they’d only ever have to write 4 or 5 lines tops. They need long screeds, studies which look at illegal copies as lost sales, state granted privileges, and consent or use of force against 3rd parties to enforce their views. But this is not enough, so they have to be tacky and make the most inane self-defeating arguments out there while regularly accusing the IP opposition of the conflation of which they themselves are quite guilty.
Matthew Swaringen
In the interests of clarity, would you telll us if you agree with the “argument” I present in points 1 to 4 or not?
Do you think it fairly represents the Kinsella position?
1) Is somewhat of an axiom, but I do agree with this idea the most among the others.
2) Is unnecessary to the argument about IP in my opinion. Even provided that all rights aren’t property rights or that there are no rights at all there are legitimately questions about whether IP is either justified as a right (or if there are no rights) whether it is justified on a utilitarian basis.
3) I agree with this one. It does not mean that there are unlimited ideas or that people can’t come up with anything new. It does mean that ideas once they arise are cheaply reproducible and this is part of their nature.
4) Since I don’t accept 2, 4 doesn’t follow completely. I will say that IP is a bad term, because it says “intellectual property” and clearly if I believe property should only be in scarce things it’s not a property right. However I suppose this wouldn’t mean that copyright couldn’t be “a” right.
The reason I don’t view copyright/etc. as valid then is because they require coercion. It cannot be denied that in the modern era the tendency of people is not to respect IP, while people do generally respect the idea of physical property.
I don’t believe you can count on 3rd parties to enforce IP and I think it is wrong to use violence against them to help you enforce them. So if you go to someone’s ISP or their proxy server which they use to copy files and they tell you to take a hike and that they won’t provide you information about their clients, what are you going to do? I’m incredibly doubtful that in any kind of free society all ISPs will be interested in giving up their customers information to turn in potential pirates.
I don’t think IP is in any way reasonably enforceable without draconian laws and huge privacy violations in the long term. I’ve seen what the state has done with this system and the fines put on people who happen to get caught while the huge majority of people have no penalty because catching them isn’t easy.
Due to this reason alone the punishment will never suit the crime. It will always be disproportionate in order to attempt to get people to shy away, and this will only get worse due to the nature of people to do what is in their own best interest.
I think it is entirely valid to try and inspire people’s morality and try to get them to agree to some reasonable beliefs that those who provide knowledge, information, research, art/etc. and to some extent maybe you can voluntarily convince people in some areas to socially reject those who are bootlegging/etc. That said, I don’t think you will ever stamp out copying and I don’t want to be in a society where that was the primary goal.
As to whether or not this is Kinsella’s argument, I don’t think you are 100% wrong but I do think you are oversimplifying. Kinsella makes several different arguments because he knows that not everyone is a believer in argumentation ethics and the idea of property rights as the basis of all rights. It’s not as though IP advocates don’t use different arguments to suit different audiences. The entire purposes of Stranger’s proposed fallacy list is to attempt to categorize his opponents and defeat them with one or several of those 17 “refutations.”
@Matthew Swaringen March 8, 2011 at 11:34 pm
“The reason I don’t view copyright/etc. as valid then is because they require coercion.”
Would you agree that the enforcement of any right requires coercion?
If so, then how do you distinguish between those rights for which coercion is allowed and others?
Isn’t the concept of the human ability to define attributes of something such that it is clear who owns it, what they can to with it, and where the boundaries of exclusive use are, the very definition and purpose of “property”?
“It does mean that ideas once they arise are cheaply reproducible and this is part of their nature.”
Are you saying that we should look to the cost of reproduction as the basis to decide whether the concept of IP is legitimate?
If so, how does technical innovation play into this? At one time it was very expensive to copy a book. Now it is much cheaper. Therefore rights in IP should have followed this cost curve, diminishing disproportionately with cost of reproduction? Because cost of reproduction is not zero, there should be some residual rights left?
Land cannot be copied at all, and that’s why it is legitimate property?
Wildberry,
No, I wouldn’t.
@ Peter Surda March 9, 2011 at 12:46 pm
No, I wouldn’t.
Pray tell.
Wildberry,
the use of force (and I’m not even restricting it to initiation) for resolving disputes involving physical property rights is only necessary if the state of physical possession by the violator is semi-permanent, or at least there is a risk of that. For example if the thief tends to keep his loot at his home. There are plenty of cases where this is not true. If the thief for example leaves the loot outside, taking it back does not require the use of force. If a scammer scams someone for money transfer, for example, the banks can fix it just by cancelling the transaction. Again no force involved. If the violator just caused damage and then vanished, then again no force is necessary to stop the violation. There might be a tort claim waiting afterwards for the violators in my examples but that’s a separate issue.
With IP, it’s not like that. If an “illegal” copy is made, the only way to “fix” it is to exert control over the material the copy is made of. Since the material does not belong to the alleged victim, the use of force is necessary.
“2) Is unnecessary to the argument about IP in my opinion. Even provided that all rights aren’t property rights or that there are no rights at all there are legitimately questions about whether IP is either justified as a right (or if there are no rights) whether it is justified on a utilitarian basis.”
Ok. My working hypothesis is, using the words of Frank Van Dun, is that some acts should be considered unlawful that are not considered aggression in the Rothbard/kinsella sense. This is really all I want anyone to admit – I want people to stop acting as if anyone who doesn’t “believe” in the Rothbard/Kinsella NAP is a moron and accept that a debate is possible. If you accept this, then fine, i could easily stop here.
Maybe though you do believe it but just don’t think it necessary to argue against Ip. Ok.
“3) I agree with this one. It does not mean that there are unlimited ideas or that people can’t come up with anything new. It does mean that ideas once they arise are cheaply reproducible and this is part of their nature.”
Again with the “ideas”. IP is not about “ideas” – it is not “part of [the] nature” of a DVD containing files of of thousands of engineering drawings for a stadium or bridge, that took years to produce, to just transport itself to ahrd drives all around the world to be used by people who refuse to bother accumulating the capital required to produce them themselves. It takes means and intent on the part of some actor somewhere to produce a copy. I’m not talking about preventing you copying my wearing of lipstick – no’one is ever arguing for this, it is a ridiculous strawman.
“4) Since I don’t accept 2, 4 doesn’t follow completely. I will say that IP is a bad term, because it says “intellectual property” and clearly if I believe property should only be in scarce things it’s not a property right. However I suppose this wouldn’t mean that copyright couldn’t be “a” right. The reason I don’t view copyright/etc. as valid then is because they require coercion.”
I suggest that you give this more thought – I’m afraid this comment shows that you are not seeing this clearly. To prove me wrong, please define “coercion”, WITHOUT assuming the NAP (which you said above you didn’t need to rely on). If you try this, I think you’ll find that you are moving in circles, that you have now in fact just transferred the problem to the equally difficult “what is coercion when you don’t assume the validity of the NAP”? And as Wildberry asked, when can you coerce and when not? What are the rules?
“It cannot be denied that in the modern era the tendency of people is not to respect IP, while people do generally respect the idea of physical property.”
I find this comment very odd.
“As to whether or not this is Kinsella’s argument, I don’t think you are 100% wrong but I do think you are oversimplifying. Kinsella makes several different arguments because he knows that not everyone is a believer in argumentation ethics and the idea of property rights as the basis of all rights.”
Read all of Kinsella’s papers – he says, as clearly as is possible, that anyone who is not an anarchist is illogical and relies on this in arguments regularly. This is his fundamental argument and it supersedes all else. He also makes other arguments you’re right – but a) if anyone makes a, say, utilitarian argument to him FOR the IP case, he dismisses it immediately, and b) as he thinks non-anarchists are inconsistent/illogical, it’s not clear what the purpose of these arguments is.
@ Peter Surda March 11, 2011 at 1:54 pm
INTENTIONALLY LEFT BLANK.
Kid Salami,
Due to the core issue of scarcity however, this would also have to mean that some acts which are considered unlawful in the Rothbard/Kinsella sense would be lawful in the Van Dun sense.
And the previous paragraph is really all I want anyone to admit.
Wildberry, on the other hand, is a tougher one. He takes it to the extreme. He alternates between the positions that IP creates new rights and that all rights expropriate.
Peter Surda,
And you have the balls to call me illogical?
Can you explain why you said that? I think Peter’s explanation was understandable myself.
And on my part in the answer to your core question about whether I think rights need violence to enforce them my answer is that they generally do not require violence to enforce. I think this is a consistent voluntarist view of rights, that those rights are valid which people almost always recognize and follow without being forced to follow them by external threats.
Additionally rights of this kind reduce disputes rather than increase them. Lets say that we didn’t have property rights in food. So anyone could come and take food from a market and go home with it.
If this occurred the food would potentially (very likely) be consumed too quickly, leaving some without who would then be forced to engage in violence to capture food from others or starve.
If you are a sole individual in a world with no one else, you have unlimited freedom (but also incredible poverty). Whenever more people enter the picture “rights” become necessary in order to establish social cooperation. In my view, rights should be limited to that which is essential to forming a social order, with as little need to threaten or use violence as possible.
Wildberry,
if you object to my argument for reasons other than emotional, then feel free to explain why. Is there a problem with my definitions (e.g. vagueness or self-contradiction)? Are my examples false (i.e. is force present in them)? Does my post not address the point you brought up (e.g. is it diverting the flow of argument elsewhere)? Is the logical flow fallacious (e.g. showing examples of fixing rights violations without the use of force does not prove that it is possible)?
I’m all ears.
Peter,
Bull.
Here you go Wildberry: http://upload.wikimedia.org/wikipedia/en/c/c9/Charging_Bull_statue.jpg
Anything else I can help you with?
@Matthew Swaringen March 9, 2011 at 3:14 pm
“Can you explain why you said that? I think Peter’s explanation was understandable myself.”
I’m looking forward to your translation.
“…my answer is that they generally do not require violence to enforce.”
What does “generally do not need violence (we were talking about coercion) to enforce” mean?
Coercion is implied in the existence of rights, because rights that cannot be enforced are not rights. Don’t you agree? So, the ENFORCEMENT of rights REQUIRES coercion; TRUE or FALSE?
Are we speaking English here?
”…with as little need to threaten or use violence as possible.”
Little need? How little? Just the threat is sufficient? Isn’t that coercion? The power to threaten implies the power to act to coerce compliance, right? A threat without the actual power to act is not very coercive, don’t you agree?
Now I suppose if everyone was willing to “voluntarily” comply by respecting the rights in others, we would never need coercion. In the absence of this pre-condition, it is required. Ancaps believe the State should not have a monopoly on this power, they want to hire their own roving gangs, but they still agree they need it, right?
It is stupid to try to argue that for one set of rights no coercion is required (when it clearly is), and in the case of IP, it is wrong because it requires coercion. All rights require coercion, because otherwise they are meaningless. IP is not a special case. That’s why Peter’s argument is stupid and illogical.
Second, to argue that the relevant distinction is that IP (say copyrights) claims ownership in someone else’s property is ludicrous. If you infringe on my copyright by making a prohibited copy for prohibited use (pay attention, now), I DO NOT ENFORCE MY RIGHTS BY CLAIMING OWNERSHIP IN YOUR PAPER, which is, to quote PS, ALREADY COVERED BY PROPERTY RIGHTS.
Your USE of your paper for THIS PURPOSE is prohibited, just like your USE of your baseball bat is prohibited FOR THE PURSPOSE of bashing my brains in. It’s still you stupid bat!! But I may use coercion, or the threat of it, to prevent you from bashing my brains, as is my right (to my brains).
Hablas mejor en espanol? Whew!!
Thank for asking. LOL
Peter Surda,
That was good.
Yes, you can eat the intangible part of that word, you know the one that I didn’t fix but we all thought? Yes that one.
Wildberry,
All my examples included a non-compliance with the rights, yet the absence of the need to use force.
Even when I accept your old trick (redefine & “envague”), you’re still wrong. The only thing this would prove is that “coersion” is considered legitimate, not that it’s necessary. We’re talking about different things, moreover you appear to have switched the term in the middle of the argument.
Well, if it’s stupid and illogical, how about attempting to refute it?
If it was ludicrous, then it would be trivial to refute that. Why didn’t it happen so far, Wildberry?
Yet again the same rhetoric trick. It is irrelevant how you describe it, what’s relevant is whether you can do one without the other. This is elementary logic. If you relabel killing as, for example, “purification of race”, that does not mean that by using the latter term you are not at the same time referring to the former one.
Now you refuted yourself again. You use the word “may”. There is no necessity to use coercion. You can, for example, dodge the swing. You can’t make your “IP” dodge a pirate’s attempts to copy it. You have to take control over his material.
Regrettably, just like in the other cases, your post was a collection of faulty logic and tricks designed to confuse.
Wildberry,
I’m not sure I interpret this correctly. Are you attempting to mock me because I used a rhetorical trick? Well, the purpose of it was to add humour to the debate, not to provide a counterargument. If the purpose of your post was to add humour too, then I don’t get the joke.
Me: The Sky is blue.
Peter Surda: Define “The”. Are you saying that your sky is the only one? You are saying that your sky is the same as my sky? If I’m standing here and you are there, are we seeing the “the” sky? Where is your proof? Your sky and my sky cannot be the same sky because my sky already covers all of the sky, and so for you to have a sky, you must take away from my sky because “sky” already covers everything that is sky. How do you explain this contradiction? I keep bringing this up but you don’t answer. It should be very easy to prove with logic. I could do it but I’ll leave that for another time. We’re talking about you and what you said. So it is not important for me to show you that I can do it. It is important that you do it. That is what you claim you can do. Why don’t you do it?
Define “sky”. Do you mean the space above your head? What about outer space? It is not blue. How far up then do you go before “sky” ends and “space” begins? That is totally arbitrary. A person cannot tell if they are looking at sky or space. How is that helpful? Sky can’t also be “space” so that is totally contradictory. Since “space” encompasses “sky”, “sky” is just another way of interpreting the same phenomena. If you are going to say “sky” then you are taking something away from “space”. What is your argument for doing that? Are you saying that sky is better than space? We are better off with “sky” than “Space”? If you don’t have an argument, it is a self-contradiction and your assertion is illogical. You don’t know how to use logic. Why aren’t you smart like me? Then we could communicate!
Define “blue”. How do you know that what you call “blue” is really blue? It is merely a description of the physical phenomena of light exciting neurons; it cannot be separated from the physical so it cannot exist. What about other skies in distant planets, which I’ve already mentioned many times before. They may not be blue. Blue is merely an interpretation of the same physical phenomena as “non-blue”.
Blue is an idea, which cannot exist except in the physical. To assign meaning to “blue” is to take away from “red”, “green” and all the other colors. What about that? I keep asking you to address this contradiction, but you refuse because you can’t. I thought you said you could do this? Well, if you can’t define blue, then you have no argument. Your terms are vague and self-contradictory. I have been complaining of this over and over but you run like a coward away from the debate. I guess that shows what you are really made of. You and all you other “Blue-Confusers”.
I am a falsificast, so if I can show an instance of when the sky is not blue, then your assertion must be false. What about aura borealis? The sky is green. Therefore the sky cannot also be blue. You are illogical. You are committing the fallacy of explosion. If we accept that the sky is blue, we can argue any conclusion. You can’t seem to think. You and all the rest of those “blue sky” supporters, you all say the same thing. When I point this out over and over, you refuse to give me your arguments. I thought so. If you have an argument, I’m all ears.
Me: Bull.
Let me try that too.
Wildberry: Eating an apple is always good for you. However, also sometimes it isn’t good for you.
Peter: That’s a self contradiction. Also, whether it is “good” is a normative question and has no influence on whether the assumptions contradict each other.
Wildberry: No, it’s not a contradiction. I’ll just make up new terms, obfuscate everything and write voluminous posts about nothing.
Peter Surda:
Funny is good. I’m not surprised you didn’t get my joke, but it is my practice never to try to explain humor.
Wildberry,
Since you don’t seem to explain anything, I’m not surprised.
Impersonations aside, is anyone going to explain to me what “coercion” is when we can’t assume the correctness of the NAP? The Rothbard/Kinsella argument would be that, say, any “initiation of aggression” (where aggression is defined as a border invasion or a threat of it) is coercion.
If we accept that there can be rights that are NOT property rights, what is “coercion” then?
Kid Salami,
my argument in this case is more general and does not require a specific definition of coercion or the even the assumption of validity of NAP. Wildberry is free to provide his own definition or just point which of my examples are wrong. He does not even have to be overly specific. He can just say, for example, that he disagrees that dodging a bat swing does not require for the dodger to coerce the swinger.
This statement, “Coercion is implied in the existence of rights, because rights that cannot be enforced are not rights.”, makes no sense.
Rights arise to facilitate cooperation. All that is necessary for rights to succeed is cooperation.
To say that force MUST be used to enforce rights places the burden of motivation solely on incentive and completely ignores persuasion as a motivational factor. A person is likely to be persuaded by a change in perception just as one is likely to be coerced.
….. The poster even reveals his own contradiction later in the same post by reconizing that, “But I may use coercion, or the threat of it, to prevent you from bashing my brains, as is my right (to my brains).”
“May use coercion” implies choice as does “the threat of it”, indicating that the mere threat of coercion is not equal to actual coercion and that the incentive approach may be in-effective.
That the coercive incentive is chosen by the actor is only one choice to motivate the offender. The actor may also choose to persuade the offender, (non-coercive means), to alter perception as a motivational factor for restitution.
In this phrase in my previous post, “and completely ignores persuasion as a motivational factor.”, I intended to say:
“and completely ingores PERCEPTION as a motivational factor.”
“my argument in this case is more general and does not require a specific definition of coercion or the even the assumption of validity of NAP.”
This statement, “Coercion is implied in the existence of rights, because rights that cannot be enforced are not rights.”, makes no sense.
I’m trying to work out exactly what the argument against IP when we don’t assume the NAP. I’m told that there is one and just want to know what it is. If you don’t agree that there is one, or that there needs to be one, then there is no need to answer me.
Otherwise, let’s establish some vocabulary. Let’s say there is one action, called ACT, that is is unlawful even though it is not a Rothbard/Kinsella property violation. Some CRIMINAL does it anyway. If this is “unlawful”, there must be some means to extract restitution from CRIMINAL eg. fine him, do we not agree? If there is no such consequence to an act then it cannot be unlawful – it may be frowned upon, and cause you to lose friends or trade partners or any number of things (rather like it being known that you slept with your best friend’s wife). But it is only “unlawful” if an appropration of CRIMINAL’s property or restriction of his liberty in response to his ACT is justified and is not itself considered “coercion” or “aggression” but is valid.
@The Kid Salami March 11, 2011 at 9:40 am
You are arguing with smoke. This is a common practice of Peter Surda and Kinsella. If you bring them right to the critical point in an argument, they vanish.
Is Peter hoping that he can abandon NAP here and no one will notice? Can we depend on the plain meaning of English language to communicate?
This is not rocket science.
COERCION is use of force or the threat of force to obtain compliance from someone with something. So in your example, we use the threat of punishment to obtain compliance with a given law. If the threat of force doesn’t deter, we USE force; i.e. “enforcement”.
AGGRESSION is the INITIATION of force or the threat of force, as contrasted with DEFENSE, which is a response to aggression.
Rights must have enforcement rights to be a right. Enforcement is accomplished by way of coercion. Rights require coercion or abandonment, in the face of aggression against them.
If I have something and you take it, how do I enforce my rights? My choices are 1) abandon my rights, making them void; 2) use physical force to defend them; 3) appeal to others for support (friends, neighbors, PDAs, police, courts, etc). Who you appeal to is a function of social norms or preference or who knows what. It is not relevant to the current discussion.
So the issue is and always has been, is given use of force AGGRESSSION or DEFENSE?
That depends on whether the right is recognized or not. IP opponents argue that no rights need be recognized, whereas I argue the opposite.
This demand that we all stop and define the meaning of the simple use of words with their clearly intended meaning was the object of my satire of Peter. It is also true of Kinsella.
See here: http://blog.mises.org/15959/hoppe-philosophie-magazine-interview-on-taxation/comment-page-1/#comment-764650
Kid Salami,
I’m arguing against specific claims Wildberry makes. Sometimes they have to do with IP and sometimes they don’t. He said that enforcement of all rights requires coercion. I said it doesn’t and presented counterexamples. What he said afterwards you can see for yourself. What does this have to do with NAP and IP? Nothing. So I said it’s irrelevant.
You can see how he argues. He makes up something, and when you corner him with a contradiction, he makes up something new and diverts the flow of the debate.
I think said something like that it is hypothetically possible to construct a non-self-contradictory theory of property which we can colloquially call IP. But my opponents have not even reached the stage where we can muse whether we call it IP or not.
Oh, of course there is one. There is an infinite number of them even.
Wildberry,
While I might have omitted some replies due to lack of time and volumes of what you write, I submit that it’s the opposite. I address all the claims you make, specifically. You however don’t. Instead of presenting counterarguments, you make up something new loosely related yet logically separate and start talking about that. Just like in this example. There are open questions, but instead of closing them, you make up new ones.
If you feel that there is an argument you made that I left open and needs to be addressed, feel free to post the link. I actually have saved all open ones in my RSS reader even though I did not reply to them yet. Maybe one day I will.
Wildberry, I find it tiresome pointing out how stupid you are. I did not say I abandoned NAP. I said it’s an assumption that is not relevant to the argument. Just like, for example, the colour of apples or what I had for lunch is not relevant to the argument. Apparently you are oblivious to elementary logic.
Let’s for starters assume the descriptions you provided are correct. However it’s only a definition of broad concepts. It does not actually define specific right(s).
There is also a fourth option: defence without using force against the opponent. If this option is unavailable, it’s a a good indicator that you have a system with rights that contradict each other.
Correct. However, that does not mean that if you define two contradictory rights, everything is fine.
Well, at least for myself I can claim that the reason for my opposition is not that the “IP does not need to be recognised”, but that the IP proponents cannot explain what that means without contradicting themselves. But that’s apparently too complicated for you.
I only “demand” that you clarify it to the extent where you stop contradicting yourself. In my opinion, that’s entirely reasonable. However, because you are a logic denier, instead of confronting me, you will make up something new or just continue complaining how unfairly you are treated.
This is all I need to demonstrate what a fake you are:
AGGRESSSION or DEFENSE
Let’s for starters assume the descriptions you provided are correct. However it’s only a definition of broad concepts. It does not actually define specific right(s).
We were taking about coercion, not specific rights. Duh!
If I have something and you take it, how do I enforce my rights? My choices are … 1 … 2 … 3 …
There is also a fourth option: defence without using force against the opponent. If this option is unavailable, it’s a a good indicator that you have a system with rights that contradict each other.
Voluntary compliance does not require coercion. Duh!
Wildberry,
I admire your patience. I am sorry I had enough.
Please let me know if you find a place where we can do more than just pee against the wind.
Until then I’d be glad to see you at Mises.org. I’ll have some occasional comments when I can not resist their provocations.
@Andras March 11, 2011 at 5:58 pm
I’ve been accused of many things, but rarely patience.
How does one go about writing an article here on Mises? If you don’t know, how does one find out?
Perhaps the way to go is to write a piece that gives us a platform to discuss something positive?
That would be novel.
Peter
My claim is simple: arguing against IP is only a slam-dunk if you are an ancapper and NAP worshipper. If you’re not, there is a debate to be had. So, for example above, I asked Mathew Swaringen to make his case against IP without the NAP, and he said he could do this but then casually said:
“…The reason I don’t view copyright/etc. as valid then is because they require coercion.”
just after he explicitly told me that assuming the validity of the NAP was not required to argue against IP. He is saying that “copyright/etc. … require coercion” when of course if we are not assuming the NAP, then copying might be one of the “unlawful” acts that is not an “invasion”. I asked him for his definition of coercion not because I don’t know what coercion is but so we can examine if his statements are consistent (and I’m willing to bet that they’re not, that he’s assuming his conclusion).
We’ve gotten a bit off piste here for reasons which I can’t quite work out. Out of interest, if I ask you for your defence of IP without assuming the Rothbard/Kinsella NAP view, is your answer
a) the NAP is the only way to go. There might be good arguments but I don’t care either way. NAP rules – whooo!!
b) there isn’t one, IP sucks and I can prove it.
c) let’s debate it
Wildberry:
“Perhaps the way to go is to write a piece that gives us a platform to discuss something positive?
That would be novel.”
I like that idea. Post it on your own blog if necessary. You can create one for free on Google.
The Kid Salami:
Since an anti-IP position is compatible with NAP, it can be hard to distinguish the two, unless one effectively says, “While I don’t believe in aggressing against others for this particular reason, I do believe in aggressing against others for other reasons.” I’m thinking of making a blog post illustrating why I believe IP to be morally wrong. Elaborating on this sufficiently here would just make for a painfully large comment.
Wildberry,
I think there is no way to discuss these issues under Mises.org.
Kinsella, Tucker and Rockwell, the individuals responsible for these postings are all ANCAP. Even if you are allowed to post, I am afraid, your thread would be hijacked.
There were others with very positive contributions chased away or even banned from these discussions. Therefore I am sure founding an independent blog would be a huge success.
I have no problem with ANCAP but it is definitely hard to identify with von Mises. Just sad.
Andras and Kid Salami;
Your last two posts are my sentiments exactly. I mean EXACTLY!
Where you lead, I will follow. This is BS.
@Mashuri March 11, 2011 at 7:52 pm
“I like that idea. Post it on your own blog if necessary. You can create one for free on Google.”
As in “Here’s you hat, what’s your hurry?”
Eat me.
Kid Salami,
NAP and anarchocapitalism are based on normative assumptions. My opposition to the arguments presented by various morons and frauds here, on the other hand, are based on positive science and the fact that these disturbed minds contradict themselves. I also said in the past that I participate in the debates to find the truth, not to push a specific view. I also explained several times how it may be possible to refute my claims should they be wrong.
Wildberry,
yet again you avoid confrontation and just complain. I provided specific retorts, all of which you ignore. I asked you to provide specific examples to support your claims, and you did not do that. You’re pathetic.
First you say that in order to determine what is aggression and what is defence you need to know the rights you apply, but when I reformulate this into a more formal sentence, you complain.
So, when I dodge someone’s swing with a bat, does that mean that the swinger is voluntarily complying, or does that mean that he is not violating my rights?
You’re a moron.
Andras,
you’re a fraud. You’re under the delusion that your scientific background allows you the use of faulty logic to defend your emotional biases. How about you take responsibility and admit that?
Mashuri
Since an anti-IP position is compatible with NAP, it can be hard to distinguish the two, unless one effectively says, “While I don’t believe in aggressing against others for this particular reason, I do believe in aggressing against others for other reasons.” I’m thinking of making a blog post illustrating why I believe IP to be morally wrong. Elaborating on this sufficiently here would just make for a painfully large comment.
This statement you make “While I don’t believe in aggressing against others for this particular reason, I do believe in aggressing against others for other reasons.” is very common. Kinsella said almost the exact same thing in his reponse to Frank Van Dun’s criticism of him. It is not at all persuasive, I[m afraid, to be blunt, that it is simply lame and an excuse for analysis (I also have additional arguments about why this is so by the way).
Peter
I also said in the past that I participate in the debates to find the truth, not to push a specific view. I also explained several times how it may be possible to refute my claims should they be wrong.
Not quite sure which of the 3 options you are choosing. Like I say, I think all arguments against IP follow from the NAP (because it simply defines away the problem). So if I agree to accept the NAP, then I’m with you and Kinsella and friends.
Unfortunetly, I think the idea that an advanced division of labour society can function with only the NAP is, at best, to be proven. I actually think o a gut level that it is totally ludicrous and have more than suspicions about this. And it seems abundantly clear to me now that it’s not possible to refute the claims of an anti-IP ancapper unless we agree, clearly in advance, whether or not we are assuming the NAP or not, and then watch every sentence to make sure it doesn’t creep in the back door, because it is used as some kind nuclear option that just can be brought out at any moment and sidetrack the debate.
I’m willing to debate anyone who answers my multiple choice question above as c); or read their proof that there is no justification for IP even jettisoning the NAP as in b); or debate with them the feasibility of their claim that only illlogical/inconsistent people can disagree with a), which is what Kinsella has stated outright.
I’m not willing to debate anyone who wants to chop and change between option a) and option c) as this is a waste of time and I learn nothing from it.
Wildberry
i agree, i am becoming more and more certain that much of this is indeed BS.
Wildberry:
“As in “Here’s you hat, what’s your hurry?”
Eat me.”
Correct me if I’m wrong, but am I detecting a tiny bit of hostility in your tone?
Seriously, if you created your your own blog post, be it on mises.org or elsewhere, I would take the time to read it.
Kid Salami:
“This statement you make “While I don’t believe in aggressing against others for this particular reason, I do believe in aggressing against others for other reasons.” is very common. Kinsella said almost the exact same thing in his reponse to Frank Van Dun’s criticism of him. It is not at all persuasive, I[m afraid, to be blunt, that it is simply lame and an excuse for analysis (I also have additional arguments about why this is so by the way).”
I think we’re pretty much in agreement here, which is why I’d like to make my own blog post to elaborate further.
@Mashuri March 12, 2011 at 5:27 pm
If you can’t detect my hostility, check your instruments.
This is becomming an issue of integrety and playing loose with the facts.
Why would I want to take my discussion with you offline? I have a disagreement with you here. On another blog I will not be debating with An-caps and Kinsella and his followers, like you.
The Rockwell/Tucker/Kinsella triad do not own the Mises/Hayek legacy. They just have a website called mises.org. If you want, wite an article here. I promise I’ll read it.
@Peter Surda March 12, 2011 at 8:19 am
Your dodging has absolutely nothing to do with your rights or the intent of the swinger. If he intends to swing the bat to harm you, that is a violation of your rights and you have the positive right to an apporpriate response. If dodging does it for you, congratulations.
What is the proximate cause of your aprehension that you may be hit, to which you reacted by dodging?
Why are you so proud of yourself? I don’t see it, personally.
Wildberry,
Of course it does. The swinger’s intent is the one of the main reasons for the dodge.
You admit now that the dodging is a usable response, whereas before you excluded this option as unavailable and claimed that a coercive response is the only way to protect your rights. So the whole argument falls apart.
You just said that in the previous paragraph. Also, in the paragraph before that you deny it. I don’t think you’re that stupid. Maybe you’re insane?
There’s a lot of things you don’t see, among other things logic.
Kid Salami,
I try to separate normative and positive claims. I try to avoid making claims that depend on normative claims that my opponent objects to. I am rarely in a situation where an opponent can present a non-contradictory position, so there is no necessity for our normative scales to clash against each other, and I don’t like that type of debate anyway.
With regards to a normative scale that approximately fits IP, one can for example say that we’d have “copyright”, but only on identical word sequences (rephrasing/translation/linking is not a violation), long at least 4096 bytes, there needs to be a causal relationship, and no exceptions (e.g. no “fair use”). Silent movies, for example, would be out of luck. In cases where this matches, it would take precedence over physical property rights for, say, 16 years. It’s a position that’s not self contradictory. I don’t think though that anyone would advocate such a copyright so I’m not dealing with that.
I already asked you about this, but you did not answer. If you disagree that NAP is sufficient, you have two options: either the additional “rules” are not “hard” enforceable (only “soft” like social pressure etc), or they need to violate NAP. Which of those do you pick?
Peter
I’m afraid i don’t really understand the first part of your post – i still don’t see why you have a problem with me wanting to clearly establish the premises of the debate.
“I already asked you about this, but you did not answer. If you disagree that NAP is sufficient, you have two options: either the additional “rules” are not “hard” enforceable (only “soft” like social pressure etc), or they need to violate NAP. Which of those do you pick?”
Well if I didn’t answer, i don’t remember. My answer is clear – these rules can be “hard”. but like I said to Mashuri, this “therefore you want to steal people’s property” argument is too simplistic. It is simply lame. Kinsella says in his reply to Van Dun
“However, since it is not in response to aggression, this is initiated
force. For this reason, I fail to see how one can admit that aggression
should be unlawful, but maintain that things other than aggression are
also unlawful. If aggression is unlawful, then nothing else can be,
because outlawing non-aggression is itself aggression.
In my view, Van Dun cannot really agree with the non-aggression
principle, if he is going to adhere to his ÒbroaderÓ view of unlawfulness.
Rather, to follow this line of reasoning, it would be more consistent
to state that many, even most, acts of aggression are unlawful, but
that some types of aggression are not unlawfulÑnamely, the violent
suppression of some types of non-aggressive conduct (e.g., libel).
But then it would be plain that this theory does support, at least in
some cases, the infliction of violent force against those who have
not themselves initiated force. This does not seem very libertarian.”
Kinsella very clearly DEFINES lawful to be not-violating the NAP, and DEFINES unlawful to be violating the NAP. Yawn.
There are nuances that this view ignores, some more complicated than others. For example, with thigns like libel, what you and jay Lakner and kinsella have actually discussed is stuff like who owns the neurons in your brain and who owns the light moving from the newspaper to your eyes and other stuff which is both ridiculous and, by insisting on only one possibly correct approach, implicitly assuming your conclusion by framing the whole thing in terms of “who owns what tangible object (molecule/photon!)” and ignoring other crucial variables. Remember you admitted to me that the Kinsella/Rothbard theory of propery doesn’t do dynamics very well. Well, yes – it doesn’t.
I can’t really be bothered expanding on this here to be honest – the problems with this is plain enough for anyone to see if they want to see them. If not, nothing I can say will change their mind.
I;m referring to this comment, where you said its unclear how you “homestead something dynamic”
http://blog.mises.org/14320/understanding-ip-an-interview-with-stephan-kinsella/comment-page-1/#comment-735354
@The Kid Salami March 13, 2011 at 6:33 am
In the thread that you reference, notice how the converstaion ends between Benjamin and Peter. I have noticed in several different threads that this is the way it goes with most of those who argue against Peter. In this regard, my experience is no different.
Notice that at no point does he grant even the slightest acknowledgement of any one else’s point of view.
Therefore, it is futile exercise to try to engage rationally. Apparently it cannot end well, as so far it never has.
Don’t disappear. We need you here.
Wildberry – if you fancy a laugh
http://blog.mises.org/14193/interview-with-kinsella/#comment-730373
read that thread. And this comment still makes me laugh…
http://blog.mises.org/14363/intellectual-property-as-socialistic-human-rights/comment-page-1/#comment-735500
(and I don’t mean to be rude to anyone who might have been involved in these threads, but they are your words and much of it is, I’m afraid, entirely ludicrous).
Kid Salami,
the question about homesteading dynamic processes is more about how current implementation of rights fits the theory Stephan (and Hoppe etc) formulated. You can also reject the homesteading of dynamic processes and still arrive at a coherent theory from a scientific point of view. I would not mind talking about that, but I think my limited time is better utilised refuting the much bigger nonsense that is presented here and rejects the very foundations of scientific inquiry.
Wildberry,
the references you and Kid Salami posted are a great example, because they show a common behaviour that matches your too. The process these individuals undergo is that at the beginning, they have a massive emotional urge to express that “something” is “bad”. They cannot explain what, because their emotions take over and prevent them from thinking clearly and formulating a coherent opinion. They come forth as being on a holy mission to eradicate the infidels.
My approach, on the other hand, is the opposite. I am trying to be indifferent to the question of ethics or emotions. I am interested in what is (or more accurately, in what is not), rather than what should be. The question of what should be is outside the scope of science.
Oh and one more thing.
The reason why Wildberry views my position as “does he grant even the slightest acknowledgement of any one else’s point of view” is that I require a refutation rather an emotional reaction. My opponents can’t provide it because they do not comprehend their own position, preventing them from formulating a coherent argument and that apparently frustrates them.
It is the other side, my opponents, that finds alternative approaches impermissible. Their emotional biases prevent them from analysing them impartially. They “live” their biases and if they are endangered, they can’t have that because their whole world would collapse.
I on the other hand have little attachment to such emotions. Should I be proven wrong, not much changes for me. The scientist in me is made happier because he’s closer to the truth.
Oh and Kid Salami,
by the way, with regards to Sasha Radeta’s reference to paedophilia, currently it’s the photographer who owns the copyright to the picture rather than the subject being photographed. So current IP laws actually give perverts a government-enforced monopoly on production (if there were no separate laws against child pornography, of course). This only shows how far from reality those IP-morons are. They are driven by feelings of moral superiority and in their minds, that takes precedence over everything else. That’s why a debate with them is impossible. They are not interested in the distinction between truth and falsehood.
Your position also seems to be problematic. You consider the question “who owns photons and brain cells” ridiculous, but you don’t provide an alternative. Actually, noone provides an alternative. If you have it, I’m all ears!
@The Kid Salami March 14, 2011 at 7:48 am
What a hoot! I hadn’t read this Shasha before, but it was like I was reading my own posts.
The definition of an idiot comes to mind; doing the same thing over and over and expecting a different outcome. This issue is settled. No further comment is required, although I’m sure I won’t be able to resist the fun of it.
What a joke!!
Spot on Wildberry, from this perspective Sasha is exactly like you. A combination of outrage with a sense of infallibility and lack of interest in understanding.
You can also reject the homesteading of dynamic processes and still arrive at a coherent theory from a scientific point of view. I would not mind talking about that.
Maybe yes. But you have stated – so many times that there is no need to find a quote – that the only thing one need consider in any issue is: who is the owner of which tangible good involved in the scenario? I don’t get the impression that you, or Kinsella, is interested at all in talking about any other approaches. My position is clear: this approach works fine for Crusoe and Friday and no doubt a good deal more advanced than that. But the idea that it works – and just obviously works – for a world with 6 billion people and internet shopping and off-sea oil platforms which cost $500K per day (and nuclear power plants!) and so on is pure conjecture. This is where I must take my hat off to Kinsella – he has stated outright that he doesn’t care if it works or not:
Likewise, to my claim that the state and its aggression is unjustified, it is disingenuous and/or confused to reply, “anarchy won’t work” or is “impractical” or “unlikely to ever occur.” The view that the state is unjustified is a normative or ethical position. The fact that not enough people are willing to respect their neighbors’ rights to allow anarchy to emerge, i.e., the fact that enough people (erroneously) support the legitimacy of the state to permit it to exist, does not mean that the state, and its aggression, are justified.
Saying that you are entirely indifferent to whether or not our society can “work” or not (ie. whether we can generate enough energy and grow enough food) and only care about this NAP-thing is certainly courageous, as it puts him right up there with those enviro-nutters who want 5 billion people to die so we can have more trees and so frogs and otters can live more peaceful lives.
The process these individuals undergo is that at the beginning, they have a massive emotional urge to express that “something” is “bad”. They cannot explain what, because their emotions take over and prevent them from thinking clearly and formulating a coherent opinion. They come forth as being on a holy mission to eradicate the infidels.
This is certainly true of many people on this site. I think you’ll find it hard to find quotes to demonstrate this is true of me though.
My approach, on the other hand, is the opposite. I am trying to be indifferent to the question of ethics or emotions. I am interested in what is (or more accurately, in what is not), rather than what should be. The question of what should be is outside the scope of science.
You say this but I don’t think your actions – and the actions of the other anti-IP ancappers on this site – are consistent with this.
I require a refutation rather an emotional reaction. My opponents can’t provide it because they do not comprehend their own position, preventing them from formulating a coherent argument and that apparently frustrates them.
Again, speaking for myself, I don’t believe I’m arguing from emotion nor am I incoherent.
It is the other side, my opponents, that finds alternative approaches impermissible. Their emotional biases prevent them from analysing them impartially. They “live” their biases and if they are endangered, they can’t have that because their whole world would collapse.
This paragraph applies more to Kinsella than anyone else around here. He has so much invested in this he is absolutely the last person who would cave. As I am still on the fence about the status of IP laws, I can’t possibly don’t suffer from this.
by the way, with regards to Sasha Radeta’s reference to paedophilia, currently it’s the photographer who owns the copyright …
I didn’t even read that quote, I was talking about the first paragraph and saw the second paragraph only after I posted the link. No good can come from applying an already murky “theory” to such scenarios.
Your position also seems to be problematic. You consider the question “who owns photons and brain cells” ridiculous, but you don’t provide an alternative. Actually, noone provides an alternative. If you have it, I’m all ears!
Do I have an alternative? No, not a fully formed one – nor do I ever claim to have one. Finding the root of the problem here is much harder than I thought and keeps pushing me down new avenues.
But you’ll notice that I don’t get involved in random discussions about all kinds of stuff, I’m interested in one thing: refuting, step by step, the argument of one Stephan Kinsella. Not because I have any personal animosity towards him but because
a) I believe that he (with Tucker) is (from ignorance, not intentionally) perpetrating a fraud on the readers of this site and
b) he has a clear and official position to refute. One thing you can’t accuse him of is hiding. He’s written plenty of papers on every aspect of this and so his point of view is crystal clear. Each of these papers makes perfect sense alone. But they simply do not make sense when taken as a whole.
You say my position is “problematic”. What is my “position”? I don’t have some grand, far-reaching position. For the here and now, the first step is trying to show that arguing against IP is only a slam-dunk if you are an ancapper and NAP worshipper. If you’re not, there is a debate to be had.
So, to disprove this theory:
a) I could show that you can argue for IP while assuming the NAP. You can’t though – be definition, IP contradicts the NAP. So debating IP with the NAP as a premise of the argument is totally pointless.
b) Or you – or Kinsella or Swaringen or whoever – could prove or demonstrate the ”invalidity” of IP while accepting that there can be acts that are considered “unlawful” even though they are not Kinsella/Rothbard “invasion” eg. blackmail, libel.
Until someone makes the argument b), I don’t see what is problematic about my position. And I’ve been asking for a few weeks now – so far, I’ve got nothing. I’m starting to think that “there is no there there”.
@The Kid Salami March 15, 2011 at 7:59 am
This is one of the best posts on the subject I have seen in quite awhile. It has inspired a lengthy response, I’m afraid…
I completely agree with your assessment of the indifference to the “impossibility of anarchism”. It is irresponsible and childish. It is not as if we are too stupid as a species to make distinctions between various aspects of the status-quo state. But if you take that position, then you can say things like “We have IP because we have the State”, and nothing further is required. On the basis of this, we should simply abandon the thought that there could be any wisdom in the history of human social evolution; that it is all based on a false premise about how things really work, or should work, in the absence of any evidence to the contrary. It is much like arguing that evolution is wrong because penguin’s can’t fly, and that we simply need to open our minds and cast away our fear of a world where penguins too, can crap on our heads.
“You say this but I don’t think your actions – and the actions of the other anti-IP ancappers on this site – are consistent with this.”
I completely agree. The cloak of a scientific method and an indifferent search for the truth is hardly the approach that is demonstrated by the most prominent spokespersons here. They act as a cadre of comrades, and support the attacks, personal and vile, on their opponents. I have adopted the approach of refuting their positions with their own words, while speaking to those with a rational sense of integrity, like you. I believe you have been entirely respectful and rational in your posts.
“He has so much invested in this he is absolutely the last person who would cave.
Kinsella believes he is on some sort of roll. He will not give that up. One of the most dishonest things he said, IMO, is approximately that “You don’t need to know a lot about IP law to understand it is nonsense, but if you support it, you better know what you’re talking about”. He wants followers and active blogs, and doesn’t care how he gets them. Therefore he often plays loose with the facts, misstating and misleading those who are depending on him to explain what the law says and how it operates. He will never give this up because at some level he seems to need the attention. He is not an honest scholar. He thinks “Peter is very good in all this”. Enough said.
“ Finding the root of the problem here is much harder than I thought and keeps pushing me down new avenues.
All of this discussion about “photons and neurons” is stupid. These are settled matters and can be dismissed in a sentence. Photons, like air and ideas, are in the public domain, while neurons are the property of the human in whose body they reside. They are only raised to divert and confuse the unwary. Much like going to a dictionary to start with a clear meaning of a word, the law has dealt with issues like this for centuries. There is nothing wrong with referring to them as a basis to establish a foundation for further discussions, yet based on Kinsella’s mantra, knowledge about the law only applies to proponents. This is dishonest.
“I’m interested in one thing: refuting, step by step, the argument of one Stephan Kinsella.
It is a fraud and those who have already concluded that ancap is the correct conclusion for “truly consistent libertarians”, give him a pass in the area of IP because he has created a narrative that is consistent with the ideology of ancappers. The fact that he misrepresents what the law says and how it operates is never contested. After all, he is a “very experienced IP lawyer”. Yet I have cornered him more than once on his claim that IP controls the use of ideas, which the law explicitly excludes, and he ultimately responds by the most obvious of all passive-aggressive techniques; he simply stops responding.
“If you’re not, there is a debate to be had.”
I agree. But my position would be that confirming the legitimacy of the concept of IP as consistent with libertarian thought, especially that of Mises and Hayek, is not a very controversial proposition. However, it is extremely threatening to the brain trust of Mises.org and their most adamant ancap groupies. The plain fact of their near complete insignificance does not penetrate their thinking in the least. In short, Kinsella’s argument against IP is really overwhelmed by his arguments against the State. He has made a brilliant career of constructing a narrative that bridges the two. To do so, however, he has had to take enormous liberties with the facts. He is a fraud, like Surda. He is much like a defense attorney who knows his client is guilty. He makes the case anyway. This is his “duty.”
Whew! Having said all that, I want to respond to this:
“ a) I could show that you can argue for IP while assuming the NAP. You can’t though – be definition, IP contradicts the NAP. So debating IP with the NAP as a premise of the argument is totally pointless.
I’m not so sure about this. NAP simply prohibits aggression, which by definition is not a response but an initial act. The critical distinction is to determine when it is an aggressive, initial act versus a response to aggression. This distinction depends upon how rights are allocated between the parties. For example, if the author has no rights to the content of a book, copying is not aggression, and so the author’s attempted enforcement of his rights is aggression, and violates NAP. If on the other hand, one allocates rights to the author against which copying is an aggressive act against these rights, then enforcement does not violate NAP. So again, the issue comes down to how and why rights should be allocated in a certain way.
That is what the debate should stay focused on, but it has proven impossible to do that with opponents, for reasons that become obvious over time.
b) “Or you – or Kinsella or Swaringen or whoever – could prove or demonstrate the ”invalidity” of IP while accepting that there can be acts that are considered “unlawful” even though they are not Kinsella/Rothbard “invasion” eg. blackmail, libel.”
These are settled issues in the law, which has a history and tradition which goes back centuries. The importance of that is that humans, over time, work things out and build on them. Laws are no different. There is wisdom in the current legal structure and theories. A fair reading of the law can provide important insights to the issues at the core of the IP debate. Yet this is resisted; why? Because a fair reading of the law conflicts with so many assertions being made in the anti-IP argument that any appeal to authority is denied. It is very similar to the response to Mises where he touches IP. Opponents casually dismiss his analysis on the basis that he didn’t live long enough to work out the truth. What a complete crock.
It is a question of the allocation of rights. Rights are a human device. Therefore property rights are a human device. “We”, meaning the society of highly integrated, cooperating humans, allocate them the way we do for good reasons. Those reasons are so obvious at the core that they appear as “common sense”. They can be easily explained and justified, in principle. There is no need to construct an elaborate new scientific theory.
Rights arise when they are asserted and successfully defended. They may be defended on many levels; ethically, legally and economically, and yes; politically. These are relevant dimensions of the human experience and human society. Mises and Hayek understood this well. Legal scholars also understand the interrelationships involved here.
You are on to something. I have chosen to attack the “ideas are free” angle. You are focusing on the allocation of rights. They ultimately lead to the same conclusion; IP exists because it has proven useful in the service of humans who find that cooperation, division of labor, is preferable to a society of Crusoe’s.
Ancap, and its extension in the anti-IP rhetoric on this site, is an attempt to recreate human history from a novel starting point. Yet the laws of evolution seem to convincingly demonstrate that ultimately all things are tried, and only viable products of experimentation persist. Only humans choose their course. We have chosen IP for solid, rational reasons. An honest attack on the concept of IP must precede from a fair reading of the law and how it operates within the contexts of ethical, legal, economic and political analysis. Anything less is simply demagoguery.
“I’m starting to think that “there is no there there”.
I have now definitively reached this conclusion. Keep probing.
Wildberry:
You might enjoy my post The Irrelevance of the Impossibility of Anarcho-Libertarianism
This is calumny. You have no reason to doubt my intentions or motives or honesty. I came to oppose IP despite it being against my financial interest. It would have been far easier to go along and get along. In fact I gave a little talk at the ASC in 1999 or 2000 on this topic, just a 20 minute thing, on this, assuming it would go unnoticed and I could return to the thing I found of more interest. But the timing was right due to the burgeoning Internet and increased IP crackdown and IP visibility, and I have grown to see how important this issue is and how it important it is to get it right and integrate it with Austro-libertarian thinking.
It’s not dishonest at all. I gave reasons for this and stand by them. First, he who advocates a given law–esp. a legislated state law–has the burden of argument. To argue for existing IP you need to have an understanding of it. To argue against it you need merely know a little bit about it and to point out the burden is on the IP advocate and that he has not satisfied it.
Second, IP advocates are slippery and dishonest and ignorant or some combination thereof, quite often: they agree with excesses and abuses that we point out; they say they do not favor the current IP system; they say however that they don’t want to repeal it; if you ask them what IP system they would favor, they say they are not experts so don’t know. I’d say that kind of person has a burden of knowing what the current IP system is and what about it he does and does not favor and what his ideal IP systme would look like. By contrast, a libertarian who sees Jammie Thomas persecuted for $20M or whatever can know something unjust is happening and does not even need a clear view of whether it’s patent, copyright, or trademark that is causing it–he sees the injustice, and whatever the law behind it, he can condemn it, without knowing all its contours. There are perfectly sound reasons why the IP advocate has a greater responsibility to know what IP law is about, before advocating it, and why this is not symmetrical to the IP abolitionists’ situation.
The anti-IP case has little to do with anarcho-libertarianism. That is only a final nail in the coffin. tHe main argument rests on a libertarian view of property rights and homesteading.
“Ideas” is just a synonym for patterns, information, knowledge. IP does in fact grant property rights in some ideas, but not in all of them. This is not controversial. So waht if the law disclaims it? The copyright law protects the expression of an idea, and patent protects the underlying functional aspect of ideas. This is just another way of saying IP does protect rights in (some) ideas. Thank God it does not protect all ideas, but only a subset.
@Stephan Kinsella March 15, 2011 at 7:59 pm
Nice of you to respond although it’s pretty far down the stack by now. At any rate, I can’t possibly let you have the last word.
“You might enjoy my post “
Yes, read it. I’ve read a good deal of your writing. I would simply say this; first, being against rape is not enough. As a society, we have to deal with our problems. If the solution you offer is unrealistic, unworkable, nebulous, or absent, I’m not sure how much credit you deserve for recognizing rape is wrong. “I am against rape!” is not that helpful unless there is some action taken against it.
Second, it is much easier to be against something wholesale than to do the work of actually discriminating between the positive and the negative aspects. It is not helpful of judging people as being “all good” or “all bad”, and the same principle applies here. This is the art and science of discrimination.
You are against the state, and therefore the police as agents of the state. Yet when you are being raped and they save you, the police are not acting in a manner which is “dripping with evil”. Are we all so stupid that we cannot be trusted with distinguishing the difference? It is enough to just be against it on principle? I don’t think so.
So, impossibility is not irrelevant.
”This is calumny.”
Truth is an absolute defense.
“You have no reason to doubt my intentions or motives or honesty.”
I think I do. But I would be interested to hear you out on the subject.
“and I have grown to see how important this issue is and how it important it is to get it right and integrate it with Austro-libertarian thinking.
If this is your objective, I question your methods and forthrightness. Since you reject the very principle of IP at the outset, I cannot possibly see how you might engage in such an endeavor.
“First, he who advocates a given law–esp. a legislated state law–has the burden of argument.
I reject this premise. Each side of an argument has the burden to overcome reasonable objections and damning evidence to their case. The fact that I could argue equally that you have the burden of proof since you are the one that is opposing the status quo makes the point.
“To argue for existing IP you need to have an understanding of it. To argue against it you need merely know a little bit about it and to point out the burden is on the IP advocate and that he has not satisfied it.”
I disagree. It is unproductive and unreasonable to expect that either side should have to spend time correcting the facts, when they are in plain view. Yet I have complained repeatedly that you misstate the fair reading and operation of the law (infra).
Many of your supporters depend upon your expertise to gain a fair understanding of the law you oppose. If you paint a false picture, you are expecting those who know something about the law to overcome first the straw men you construct, and then allow the misinformed to repeat your arguments unchallenged. This is not an honest search for either the truth or justice. It is demagoguery.
“Second, IP advocates are slippery and dishonest and ignorant or some combination thereof”
You can claim that your supporters are any less ignorant or dishonest? Like most things, counselor, it cuts both ways. Responsible leadership is to insist on sticking to the facts and encouraging civil discourse. You often do the opposite. I object.
“There are perfectly sound reasons why the IP advocate has a greater responsibility to know what IP law is about, before advocating it, and why this is not symmetrical to the IP abolitionists’ situation.”
Misstatements of the law and its operation should be correct by anyone who knows better. You do. I have been following this discussion for some time now, and opponents are not innocent of that conduct which you accuse proponents of committing. It is precisely symmetrical, because otherwise the discussion will always reduce to the lowest common denominator. Leadership is called for. I am not saying you should run for office; it is a matter of personal and professional responsibility.
“The anti-IP case has little to do with anarcho-libertarianism. That is only a final nail in the coffin. The main argument rests on a libertarian view of property rights and homesteading.”
You’re kidding, right? Why is it, from just a statistical point of view, that most ardent opponents on this site are also self-declared ancaps? If your argument was so compelling, wouldn’t you attract support from a more homogeneous demographic, in that regard?
It is not the final nail, it is the starting gun. The entire theory of property rights and homesteading as used in your arguments are put forward by advocates of ancap, especially Rothbard and Hoppe. If ancap has so little to do with the argument, I can see no reason why it should be necessary to ever bring it up. Yet it is a prominent feature in the content. Give me a break.
“Ideas” is just a synonym for patterns, information, knowledge. IP does in fact grant property rights in some ideas, but not in all of them.
Ah, isn’t this a rather important distinction? This is particularly emphasized by the fact that one of the explicit goals of IP laws is to PROTECT the public domain. If “ideas” and “original works” were synonyms, then there would be little purpose in the existence of §102(b) of the copyright act.
As a lawyer, if you could make the case that a given “work” was synonymous with “ideas” you could successfully argue AGAINST the claim that it was the subject of copyright protection, USING THE LANGUAGE OF THE STATUTE ITSELF!
”This is not controversial. So waht if the law disclaims it?”
Again, you are kidding, right?
If you are going to write an anti-IP article whose premise is that “ideas are free”, isn’t it just a little bit relevant that the statute attempts to make a critical distinction between “ideas” and “original works”? If that distinction exists, which it clearly does both in the statute and in case law, then what happens to this argument: “Ideas are free, IP creates rights in (some) ideas, therefore the concept and ideal of IP must be opposed on principle.” Isn’t that your argument?
“Thank God it does not protect all ideas, but only a subset.”
This is a pretty weak admission, but let’s run with it. If IP does not protect ALL ideas, then aren’t the subsets of ideas that it DOES and DOESN’T protect a rather important point to clarify?
If you treat all “works” or “useful inventions” as merely ideas, which belong to the public domain, then we are reduced to arguing by analogy about whether the work uses “letters of the alphabet”, which are clearly also in the public domain. “How can we protect “works” when they use “letters”? Letters are free!” Isn’t that your argument?
Here’s the deal. I do know something about IP laws. So you can forget all the guilt-by- association with all those other “ignorant and dishonest” IP proponents.
I am in support of the CONCEPT AND IDEAL of IP, just as I am in support of the CONCEPT AND IDEAL of limited Constitutional government. There is no purpose in debating the specific issues of a particular horror in the parade unless that issue is settled. I insist that my thinking is consistent with libertarianism, or classical liberalism in Mises’s terms, and Austrian economic theory. Any statement that I make that is inconsistent with those principles is fair game for criticism, from you or anyone else. I’m all for learning more about the subject.
Is an honest, factually consistent, civil discourse on the subject too much to ask?
Wildberry
All of this discussion about “photons and neurons” is stupid. These are settled matters and can be dismissed in a sentence. Photons, like air and ideas, are in the public domain, while neurons are the property of the human in whose body they reside.
Yes photons can come from the sun, but photons can also emerge from people’s torches or be blocked intentionally by a huge screen in your garden etc. I am looking for a more fundamental derivation of a “public good” and would hope that this will coincide with the common law processes that have evolved. I have ideas about this but am not there yet.
But my position would be that confirming the legitimacy of the concept of IP as consistent with libertarian thought, especially that of Mises and Hayek, is not a very controversial proposition.
I’m not so sure about this. I have changed my mind at least twice but on balance at present would tend towards the idea that in most of the scenarios for which it is argued that a lack of IP would mean disaster, new business models and market processes would evolve to a new and entirely satisfactory way of doing things. But I’m not sure about whether this can always happen – it is harder to see this with lengthy research programs whose output can be “encoded” (in the most general sense eg. an architectural design for a building which contains load calculations, validated positions and quantities of services etc., and is extensively tested and retested, all of which takes a great deal of time and knowledge, and can exist on a single DVD). I just don’t know – and Mises certainly seemed to suggest there was, at least, a non-trivial issue here and simply dismissing him is indeed absurd.
I’m not so sure about this. NAP simply prohibits aggression, which by definition is not a response but an initial act…
All I’m saying is that if you DEFINE “unlawful” as acts of “invasion” ONLY, then everything else that is not an invasion must be legal, including copying or trademark infingement or whatever.
I don’t have much of an argument for patents, but I could be convinced about copyright – I still think ancap DROs could have something like copyright. Some could insist when you sign up that when you find something in the street that is a likely candidate for having been copyrighted, you take it in and see if it belongs to a fellow member. if it does, you hand it over – if not, you can go nuts with it. If people want this – and i believe for many items that they would, that there is just something that you instictively feel you possess when you write, say, a novel – then this will become policy of the most popular DROs. Not copyright as it is now but an indirect contract with everyone else, one that – if it took hold and they all used it, then you’d simply have to respect just like you have to respect normal property rights – I guess this scenario is “dripping with evil” for some people around here, who would prefer the arrival of the four-horsemen of the apocalypse to such slavery….
My particular concern is before this even though, it is with the very basis of the free market in a division of labour society, As Frank Van Dun says:
I shall argue that, if pressed to their logical conclusion, they would make the very idea of a contractual order and therefore of a free market incoherent….We can see that Kinsella’s attack on trademark law endangers the very idea of a free market…..Clearly, with signatures, bank notes, and quality labels—trademarks all—rendered legally irrelevant, the free market under the Kinsella Code is bound to hold more surprises in store than even the staunchest libertarian is willing to bargain for. Of course, in the end, it may not make much of a difference. Mankind is an inventive species, and its experience with circumventing legal codes goes back a long time. Nevertheless, the absurdities of that particular code are so glaring that I can hope only that I have profoundly misunderstood Kinsella’s case against property rights in trademarks.
http://mises.org/journals/jls/17_3/17_3_4.pdf
Transaction costs never seem to factor into the anti-IP theories. I think it’s another thing they don’t care about. Shame for them that the market participants seem to.
These are settled issues in the law, which has a history and tradition which goes back centuries. …
Whilst a fair reading of the law is important, I can’t regard it as being settle-able from this – state involvement in these laws (and their hijacking for use contrary to their stated purpose) makes this open to interpretation. I think reasonable people can disagree on the amount and validity of information the laws contain, but reasonable people can’t just dismiss it – De Soto has this to say in his book
The traditional, universal legal principles we dealt with in the last section in relation to the irregular deposit contract have not emerged in a vacuum, nor are they the result of a priori knowledge. The concept of law as a series of rules and institutions to which people constantly, perpetually and customarily adapt their behavior has been developed and refined.
in the middle of the staunchest defence of property rights in money that you will ever read.
Anyway, enough. If anyone has a defence of the anti-IP view that expressly allows for “unlawful” acts that are not “invasions”, I’m all ears.
Kid Salami,
No, that’s inaccurate. What I am saying is that if you want to have a coherent argument for IP, you need to admit that the question “who is the owner of which tangible good involved in the scenario” is sometimes irrelevant (i.e, sometimes stealing is ok). Apparently, most IP proponents have a big mental block that prevents them from admitting this.
But the idea that it works … and so on is pure conjecture./blockquote>
That’s not the real problem. The problem is how you argue that there could be something that works better. Of course, this is a normative issue so purely hypothetically it could. Just like there could be better money than gold. So?
I wonder if you also used the same classification if he was talking about other ethical problems, such as rape, for example. Is saying that rape is always bad, although we might not be able to eradicate it completely, also “nutty”?
I don’t really see you as my opponent, rather as a fellow adventurer.
This wasn’t referring to you. I was just explaining it to you.
Well, but that’s more of a consequence of him being an adherent to the Austrian School rather than being IP opponent. I’m just willing to abandon even my Austrian leanings for the purposes of argumentation. Are you going to scold Stephan for being an Austrian on an Austrian blog?
Ok, that’s fine. I don’t have a fully formed theory either. But at least you could have some sort of proto-argument?
Your position, as I understand it, is that the “scarcity source” theory of property rights (i.e. approximately what Stephan and I propose) is inadequate, because it cannot support complex division of labour. Well, that’s an easy one. Division of labour requires low time preference. Low time preference requires clear property rights. Clear property rights require an explanation who can alter which scarce good. So why should a different theory have a greater success?
Again, purely hypothetically, you might be correct. But you provide literally no explanation with regards to why.
@the Kid “Salami”:
Not at all.
This is a weird comment. First, whether I am for or against IP does not affect whether it’s legitimate. Second, it’s in my interest to justify it since it is my bread and butter. What are you talking about? Anyway, while psychologizing can be fun the main issue is substantive truth.
Why do I “suffer” from this? I am against IP even though it’s harmful to my IP career, hellooo. I have never used this as an argument for my position because it’s dishonest, but certainly it’s not an argument against me. The fact that I have arrived at a substantive view can hardly be held against me by any but open-minded wafflers and relativists.
Surda: “Due to the core issue of scarcity however, this would also have to mean that some acts which are considered unlawful in the Rothbard/Kinsella sense would be lawful in the Van Dun sense.”
Or vice-versa. As I have admitted in my online debates w/ Van Dun–he seems to think some forms of conventional law, that prohibit certain actions (blackmail, trademark infringement, IIRC), are justified, while I do not.
Exactly my point. If rights cover all situations already and a new right is introduced (e.g. not to be blackmailed), that means that certain actions become illegal (blackmail), while other actions become legal (imprisoning the blackmailer or taking money from him by the use of force). As Wildberry likes to say, it’s a reciprocal arrangement.
Peter: right. Recognizing rights in X crowds out or invades the space of rights in Y, in some cases; you cannot have X and Y. That is why positive welfare rights, say, are not “free”: someone has to provide them and thus it invades their rights.
@Stephan Kinsella March 25, 2011 at 11:10 am
By this you mean that recognizing right in X imposes specific limitations is the use of Y’s property as they related to X’s rights?
If so, what’s wrong with that? Isn’t that how all property rights operate?
If I understand your meaning above, how does this follow? Assuming limitations in certain uses of Y because of rights in X, does not mean that both X and Y cannot both exist. The existence of limited rights in X does not negate all rights in Y.
You are asking if welfare rights justifies the collectio of taxes to pay for them?
If so, it is a “coerced” transfer from one to the other?
Isn’t this just a way of begging the question of whether IP rights are justified? How does this analogy prove that? I think your argument is “Because rights to welfare are granted, I am forced to pay taxes to provide for it. I don’t think those rights are justified, therefore I sholdn’t have to pay for them.” Right?
Your analogy is, then, “Because rights to IP are granted, I am forced to pay the IP owner for use of the IP. I don’t think these rights are justified, (i.e. “ideas are free”) so I shouldn’t have to pay (under threat of government aggression).”
Do I have it right?
If so, this merely restates the operation of property rights. If they are granted, somenone has to pay the beneficiary for the use of them, under the threat of coercion. This is how all rights and all property rights operate. This does nothing to resolve the issue of whether those rights are justified in he first place. You are simply assuming that conclusion by your use of “welfare”, which most libertarians oppose.
I think to use this reasoning to make your argument, you would have to adopt either what I call the “ideas are free” line, or “we have IP because we have the State” line.
Did I miss something?
wildb: ” “Recognizing rights in X crowds out or invades the space of rights in Y”
By this you mean that recognizing right in X imposes specific limitations is the use of Y’s property as they related to X’s rights?
If so, what’s wrong with that? Isn’t that how all property rights operate?”
No. A property right gives you the right to use it and exclude others. But you have a general obligation not to invade others’ property borders in your actions, using whatever means are at your disposal, whether your property or not.
Your argument could justify anything. You could justify taxes. I say “but you are stealing my money.” YOu say, “no, you are just limited from stopping the state from taking it.” I say “that is tantamount to a limit on my property rights to my money.” You say, “but all property is limited in one way or the other, so what’s your complaint?”
Uh, hello, my complaint some third party has been transferred to him some of the rights I previously had to control my own property. hellooo
@Stephan Kinsella March 25, 2011 at 3:18 pm
By “property” do you mean any property, or only the property you recognize under the Ancap “homesteading” rule. What I mean is whether this rule only applies to the property you allow as legitimate, or would it equally apply to IP, IF you acknowledged property rights in IP, for example?
To be clear, “border” can only mean physical border, like in trespass to land, or do you mean any conceptual border, say between two individual’s negative rights to their own identity, or some other intangible “property”?
I get it. But isn’t this literally true, as in a tautology? You can justify anything if it is “justifiable”.
Isn’t that still the central issue? Without the “justifiable” point, you could “justify” anything. Doesn’t this just lead us right back to whether there is a justification for IP?
Yes, I understand you are complaining, and that your complaint is valid if the limitation on your otherwise absolute rights is unjustifiable. But if it IS justifiable, it is an invalid complaint.
So in the case of assault, you accept the limitation on the use of your property as just, but in the case of IP you do not accept the limitation because it is “unjust”.
Doesn’t that just lead us back to the same question?
You agree that an original manuscript is owned by the author before the point at which it is distributed or copied, right?
This is based on the ethics of self-ownership and private ownership of the means of production. Am I correct?
You disagree that these property rights should be acknowledged once a copy leaves his control as a tangible fixation (in tangible form) because your legal definition of property only extents to the physical, tangible medium, not the intangible intellectual content, is that right?
You would acknowledge these same rights if they were distributed under contract, but not under property law, because that imposes them upon parties not privy to the contract, correct?
Your argument for severing these original rights of the author to the original manuscript, unless protected explicitly by contract, is that only property rights in the tangible goods are legitimate. There can be no property rights in the intangible, intellectual goods.
Have I stated your position accurately?
Wildberry,
The problem is in something else. We agree that any right poses a limit on other people actions.
However if rights do not cover all actions, then an introduction of a right can address a situation which is not addressed by any other rights yet. Without this right then, there are certain actions for which it is impossible to determine legal status. So the introduction causes some action to change their legal status from “undetermined” to “legal” and some other actions from “undetermined” to “illegal”.
If, however, rights already cover all actions and you introduce a new right, then the only effect (from the point of view of law) it can have is that it taking away rights from one set of people and assigning it to different people. I.e. the legal status of some actions changes from “legal” to “illegal” and vice versa.
Such a right then does not fulfill the function of law (determining which actions are legal and which not), rather other functions.
Do you understand this? Do you agree with this?
Kid Salami,
strictly on the scientific level, I tend to agree with you. However, the same thing could be said about lots of other topics the Austrian economists debate, such as the fiction of social contract, social calculation argument, the inflationary effects of FRB and fiat money, positive rights and so on. They all can be summarised in a couple of sentences, yet voluminous books have been written about them.
Maybe instead of demonstrating contradictions again and again, I should just refer to this wonderful montage (Star Trek fans get bonus laughs). If people have deep emotional attachments to something, they will continue asserting it’s real although there is no logical way to make that conclusion.
I looked at “Fallacy” #17, and it doesn’t hold water. Something is “counterfeit” only when it is a false object passed off as real. I could make a “counterfeit” gold coin out of brass, and then sell it to someone as a “false gold coin made out of brass”, and there would be no counterfeiting going on at all.
Now, the first person who tries to pass of that coin as real gold would be a counterfeiter, because he’s trying to pass of an object as something it isn’t. The difference is a matter of fraud.
The notion that the originator of a design can go after “counterfeits” is a false one. If I made gold coins, and someone made a brass copy of my coins, I have no right to seek out that coin and destroy it. The most I can do is tell my customers, “Beware of brass coins that imitate my gold ones!” And this is true, even in the so-called “capitalist” society we live in right now!
Besides which, how to you “counterfeit” an idea? Is Bolyia’s hyperbolic geometry “false” because Lobachevsky discovered it a few years earlier? But then, Lobachevsky’s geometry must be “false” because Gauss discovered it a couple of decades before him!
You are using fallacy #2 and a mix of fallacy 4 and 7.
Re: Fallacy #2:
You do understand that the scarcity in information you’re citing is rooted in the scarcity of the physical property it’s residing on, right? Even thoughts are stored on physical media, i.e., brains. Does someone have the right to violate my brain if I memorize their patented/copyrighted ideas?
Yes, they do, because you violated their brains to get it.
Interesting. So, since the only way to erase a thought from a brain is to physically damage it, the copyright/patent holders have the right to do so?
They can limit how you use the thought. That is enough.
And how is it that I violated the physical boundaries of their brains to obtain the information? Unless I can read minds, they transferred said information outside their brains, didn’t they? Let’s say I hear a rock band sing a song from their garage and I like it, memorize it, and start performing it myself. What physical boundary have I violated? How about if I get a copy of MS Office and, to remove the complication of a contract in this analogy, the end user agreement has been previously removed by hackers, and distribute it to my friends? What physical boundaries have I violated?
You are using fallacies 12 and 13, along with parts of fallacy 7.
At minimum, you are committing fallacies called “begging the question” and the “principle of explosion” in your premises used to accuse me of said fallacies.
BTW, you still didn’t answer my question re: how exactly I am violating a person’s brain by memorizing an idea they expressed.
Stranger,
the referenced “refutations” of “fallacies” 12, 13 are based on the assumption that causality creates rights. When I asked you however if you consider causality a sufficient condition for rights, you said “It’s nonsense.”. So you’re contradicting yourself. The “refutation” of “fallacy” 7 on the other hand is circular reasoning.
What you describe as fallacies are in most cases only strawmen. How about you address the post that I wrote on your blog, and the posts that you censored instead of replying to them?
Sorry, Peter, you misunderstood me. I said that your posts were nonsense, that is why I removed them.
In fact, causality is all that is necessary to create rights.
Stranger,
Well, so now you admit yourself that you’re not interested in a debate and prefer to cowardly run away. Your attempt backfired.
If causality is all that is necessary to create rights, then why do you object to my question if Y violates X’s rights by performing action B causally related to action A performed by X? Are you capable of logical thought at all?
You cannot object to a question, and there is no question in your question. That is why I keep telling you that you are writing nonsense.
Stranger,
Yet you do it all the time.
And that, ladies and gentlemen, should definitely resolve the issue if Stranger has a problem with self-contradiction: he does not.
In the unlikely case that you actually do not comprehend what is requested from you, then allow me to rephrase the construct in a question form:
If X performs action A, and Y performs action B causally related to action A, and X does not like that, does it mean that Y is violating X’s rights?
If you answer anything else then yes, then how can your arguments based on the assumption that causality leads to rights be true?
Peter,
It really looks like you honestly do not seem to grasp the fact that your questions is completely meaningless. There are limits to the usefulness of abstractions.
“Causality” without more is not a standard against which anything can be measured.
Is shape a necessary condition for color?
If I build a house, and you come and burn down my house (which would not have existed if I did not build it, thus causally related to action A), and I don’t like that, it does mean that you are violating my rights.
If I build a house, and you refuse to come to my housewarming party (which would not have happened, had I not built the house, thus causally related to action A), and I don’t like that, it does not mean that you are violating my rights.
Like I said, “causality” without more is a useless standard for measuring rights.
Andrei,
It looks like you do not comprehend that the question exposes a fatal error in the arguments I’m opposing.
What you probably mean is that as you make more and more abstract claims, you need to drop more and more assumptions and at one point you will drop the necessary one and the abstraction will lose applicability. That is what I’m trying to achieve: I’m trying to get you to explain that point. If you don’t have one, then my reductio ad absurdum applies and exposes the fallacy in the claim.
Well done, you provided an answer. You now admitted that causality is a necessary, but not a sufficient condition for a rights violation. Therefore, you cannot conclude that a copier is violating author’s rights because there is a causal relationship between the copy and the original. The implication is invalid. You just refuted yourself.
Q.E.D.
@Andrei Mincov March 5, 2011 at 2:45 pm
Your point is obvious to everyone but Peter. I have spent hours trying to penetrate his obfuscations, to no avail. No reason you have to repeat my mistake.
Peter is a software engineer. Although that is not a lock on destiny, there seems to be a peculiar attachment in him to reducing all of life’s knowledge and experience to a formal proof that can be reduced to code. I think he fancies himself something like the Architect in the Matrix.
As the result of his style of interaction, opportunities to communicate are destroyed because he can derail any chain of thought by saying that your terms are vague, that you contradict yourself, that we have to stop and define what “is” is, etc. It leads nowhere. Don’t bother yourself about it.
Wildberry,
Just like all the other IP-confusers, it is very difficult to get him to formulate this “point” in a coherent manner. In the end, he kind of did that and that proved his self-contradiction.
I find it fascinating how you can accuse me of obfuscations. I have formulated my approaches in propositional logic and set theory, among other things. I continuously try to simplify my arguments. I have specified both my own assumptions as well as my opponents’ assumptions. I have pointed out where the contradictions among the assumptions of my opponents are. Based on the assumptions, I have provided analogies and asked my opponents to take a position on them. I have explained how it would be possible to refute my arguments, should they be wrong.
Whereas you have a big trouble formulating a coherent position. You provide no clear definitions and switch the assumptions in the middle of the argument. You do not like to answer questions or to confront arguments directly. You derail the flow of argument into vagueness or meta-argumentation. Most of the text in your posts is just complaining about something.
So I wonder, are you just someone stupid who thinks that the quantity of material you read makes him smart, or a sophisticated liar? Since I don’t see any evidence for the latter, I think it’s the former. But of course, for the purposes of our debate it’s irrelevant.
“I find it fascinating how you can accuse me of obfuscations. ”
Actually Peter, my reaction on seeing Wildberry accuse others of obfuscation was not one of fascination, but rather a gag reflex; I almost threw up. What a gruesome joke. “Hypocrisy” and “bullshit” do not even come close to characterizing Wildberry.
I hereby re-christen Wildberry to be Dingleberry!
So, if I observe others and draw conclusions from their behaviour, it means I am violating their brains?
This Saturday, I wanted to convert a quaternion rotation to a rotational matrix–I’m getting ready to revamp efforts to work on computer programming again, and I wanted to see if I could do this, in part to see if I could avoid checking the book on it from the library, and in part to re-familiarize myself with the calculations.
It took about an hour, and it was a *little* tricky–after all, a quaternion rotation amounts to the multiplication of three quaternions, each with four parts to multiply–but I was able to do it, based on my memory of quaternions and matrix algebra.
It is in *this* sense that ideas are non-scarce: I didn’t *have* to have the book before me to do this. *Theoretically*, I could have done this on my own! and while William Hamilton was the first to do this, and it took him 17 years to do so, there’s no reason to suppose that someone working on some problem–perhaps something even completely unrelated to computer graphics–could have done so.
Indeed, there’s a joke about Leonard Euler: he has a huge body of work, but it seems that there are a lot of things discovered, and even named after the mathematicians that discovered them, that can be found published earlier somewhere in Euler’s work. And this is a good thing, too, because otherwise half of mathematics would be named after Euler!
I’d take a course in Euleractics.
“It is in *this* sense that ideas are non-scarce: I didn’t *have* to have the book before me to do this.”
But if you *did* require the book (or a computer with which to wiki the answer), then the idea *would* be scarce? Is this what you’re saying here?
What I’m saying is this: if ideas were scarce, then I’d *have* to have the book before me to obtain them. It is by the virtue that I can come up with them on my own, with a combination of memory and logic, that makes the idea non-scarce.
It would take some time, but I could teach my children the same principles, without even opening a book. The idea isn’t tied to some physical medium. It lives in the brains of thinking beings.
The concern that “IP laws violate property rights” has no more grounds in law, philosophy or logic than the concern that the same as to say that “As long as I do whatever I want to do on the premises that I own, no other law should apply to me, as this would violate my property rights”.
People usually commit crimes using their own property. Just because they use their own property to commit crimes does not mean that laws against these crimes violate the property rights of the offenders, and thus must be abolished. If I want to rob a bank with my own axe, do laws prohibiting me from smashing the bank’s windows and security officers’ heads with my own axe violate my property rights? Really?
Yes, I am aware; see
Kinsella, “The Non-Aggression Principle as a Limit on Action, Not on Property Rights” http://www.stephankinsella.com/2010/01/non-aggression-principle-as-a-limit-on-action/
Kinsella, “IP and Aggression as Limits on Property Rights: How They Differ” http://www.stephankinsella.com/2010/01/2010/01/22/ip-and-aggression-as-limits-on-property-rights-how-they-differ/
But the reason you cannot use your property (or that of others) to commit such a crime is BECAUSE of property rights–because your action would invade the borders of their property. And the fact that there are some limits on what actions you may commit does not mean that just ANY limitation is valid. In fact the libertarian idea is that you CAN perform ANY action you want (whether this employs your property or not) so long as it does not invade the borders of others property–that is, so long as you do not use others’ property without their permission.
But this general structure of the interplay between aggression/trespass and action does not prove that IP *is* property. You need to show that it is.
@Stephan Kinsella March 4, 2011 at 1:43 pm
“But this general structure of the interplay between aggression/trespass and action does not prove that IP *is* property. You need to show that it is.”
OK, fair enough. Then you would also agree that just declaring that it isn’t doesn’t prove it so, right?
As so many before have already pointed out, defining property in a way that excludes rights in intangible works, especially in light of the fact that you contradict this very holding in the context of contract rights to intangible goods, is not an argument against the concept of IP.
You simply are asking to be proven wrong using your own argument, which defines away the problem. As you know, this can’t be done.
However, one can refer to the considerable knowledge that has accumulated around property rights, as has been codified in property law, and demonstrate that property rights arise by operation of capture, found and adverse possession, creation and contract.
Almost all of these can be employed to support the concept of property rights in original works, and in principle, the general case for IP is consistent with these property rules.
In addition, as Mises points out, the issue of IP is as much the subject for economists as for lawyers, since the rights in question are ECONOMIC RIGHTS. On these grounds as well, it has been shown repeatedly that the operation of external economies result when IP is not protected as property.
So FUNDAMENTALLY, you have no argument. You are merely subscribing to an internally consistent system of logic that excludes all contradictions with it by definition.
Stephan,
Peter Surda said:
“it is impossible to conclude which courses of actions are legal and which are not. Then the question arises what’s the purpose of laws that cannot explain what is legal and what not.”
Do you agree with this? Do you hold that a person cannot tell in advance if he is about to do something illegal, or that the law cannot explain this?
We are all relying on your legal expertise in this area.
Wildberry,
it’s called the principle of explosion. If you assume contradictory axioms, you can derive any conclusion. But since you already demonstrated contempt of logic, I don’t think this will have any effect.
Oh besides, if you’re referring to current law, they “solve” the problem easily: IP takes precedence over physical property.
So once again, you don’t have an argument.
Exactly. it’s like dividing by zero.
You left out the whole quote: “that’s obviously not what Dixie meant. He meant that the approaches described by IP proponents lead to self-contradictions, i.e. it is impossible to conclude which courses of actions are legal and which are not. Then the question arises what’s the purpose of laws that cannot explain what is legal and what not.”
I agree wtih Peter. If you advocate an incoherent and internally inconsistent (self-contradictory) legal system, then you cannot predict what the law actually is or what rights are. As Hoppe points out we must be able at any point in time to determine NOW who owns a given resource–that is the whole point of a property rights system.
This is very simple – if you did not create it, or if you created it by copying someone else’s work without permission – it is not yours.
Your confusion is thinking creation is a source of rights. it’s not. http://blog.mises.org/14045/locke-on-ip-mises-rothbard-and-rand-on-creation-production-and-rearranging/
Even rand recognized that we do not create objects, we only rearrange them. When we do this we make them more valuable to us or to customers–we create *wealth*. But you already had to own the thing transformed to rearrange or transform it. Creation is a source of wealth, not of property.
If I “copy someone’s work without permission” it’s not mine? So if someone starts catching fish, and I’ve never seen this fish catching before and I start to do the same thing they are doing it isn’t my work but someone elses?
I know you don’t intend work to mean labor, but when I copy 0s and 1s on a PC that collectively make up a book or music file or whatever it is, those new 0s and 1s aren’t the original 0s and 1s that existed in the original copy. They are in new bits that are physically in existence in the electronic medium to which I copied the data. How is it that by virtue of applying the same pattern of 0s and 1s to something I own that exists in something else that I now come to not own part of the physical media?
How is this qualitatively different from using the idea of catching fish? Because the pattern of 0s and 1s is complex? How complex must this pattern be to qualify?
Andrei,
now you’re back to causality. Can I have a clear answer from you whether causality is or is not a sufficient condition for rights?
Peter,
Here is my clear answer to you.
Causality is or is not a sufficient condition for rights.
“Causality is or is not a sufficient condition for rights.”
Butt-plug say what?
Julius,
A meaningless question deserves a meaningless answer.
Thank you Andrei for a tautology, now I know that you either do not have an argument or are not interested in a debate.
Wildberry,
No, I’m saying that the ex-post-justification, the “theories” you IP-confusers provide, are self-contradictory and therefore based on them, it is impossible to conclude which action is legal and which not.
Furthermore, there’s the issue that the “theories” do not match what current IP laws say. For many IP-confusers, this is not an argument, because they don’t agree with current IP laws, they advocate some other “IP” (they don’t tell though which, just like Stephan said). However, for you, who says that current IP laws (US ones even) do define what IP is, this is a fatal logical error.
You have demonstrated in the past that you are able to construct logically correct claims. However, I wonder why is it such a rare occurrence?
@Stephan Kinsella March 4, 2011 at 8:21 pm
You and Peter make a formidable tag team. Of course, you didn’t address my question. Like a “good” politicians you answer the question you wanted me to ask.
Are you saying that IP laws are so vague and ambiguous that a reasonable person cannot tell which conduct is prohibited and which is not?
If, as you claim Hoppe says, “we must be able at any point in time to determine NOW who owns a given resource–that is the whole point of a property rights system.” then you are saying that a fair reading of say, copyright law, leaves the entire subject so up in the air that a poor copier of a protected work can’t tell that he is doing something illegal? Or to use Peter’s words, “which courses of actions are legal and which are not”?
If the contradictions to which I assume you refer are the “overlapping” property rights in the intangible and tangible goods, then it appears that the contradiction arises simply from the operation of your presumptions, which creates them.
Whereas it may be true that at the margins of copyright law, say the extensions of the term under CTEA, there are some interesting issues to debate, in the general case you argue that the entire concept of copyrights are so vague as to be indecipherable by a reasonable person? That is your point?
And therefore, since there is no way to tell what is what, anyone who thinks they can understand the concepts of copyright law is engaging in the “fallacy of explosions”?
I just want to make sure I understand what the team is saying before I get in the ring.
Andrei,
Of course it is based on logic. Just like the claim that “right to job” and “right to healthcare” violate property rights is based on logic. See, if you said that you do not mind violating physical property rights, because IP (or “jobs” or “healthcare”) are more important, that would be logically correct, although probably not very popular amongst libertarians. But if you say that you support physical property rights and also IP, then you’re contradicting yourself. The justification you provide for that position is irrelevant, because it’s illogical.
The core of the problem is apparently that you do not have a definition of rights or property. The fact that you have a formal education in law makes that even more regrettable. As I said previously, it’s pointless to debate without definitions.
If I want to rob a bank with my own axe, do laws prohibiting me from smashing the bank’s windows and security officers’ heads with my own axe violate my property rights? Really?
Yes really…as long as you own the bank (or at least the windows) and the security officer’s heads. Of course, it is impossible for you to own the security officer’s heads (you can own the head of one security officer, if you are that security officer), but that’s only a limitation on reality, not on the form of your question, so the answer is still “yes”.
Andrei
If you were naughty enought to rob the XYZ Bank using your own axe, then you would have violated the property rights of the owners of the XYZ Bank. Alternatively, if you were to set up your own bank across the road from XYZ Bank, then you have not violated the rights of the owners of the XYZ Bank. Best not to pretend the two scenarios are the same.
Let’s take this a little further. Were XYZ bank to get the state to close the Andrei Bank with the “justification” that XYZ Bank had the idea to set up on Main St first, that would be a violation of the rights the owner/s of the Andrei Bank (that is, you and your fellow equity holders). Along come the state’s enforcers (with axes) to close you down. In effect XYZ Bank employed an agent, the state, to do axe work on its behalf.
You may care to review your position.
Sione
Scione,
We have been steering clear of each other lately, but this one just can’t stand.
“Let’s take this a little further. Were XYZ bank to get the state to close the Andrei Bank with the “justification” that XYZ Bank had the idea to set up on Main St first, that would be a violation of the rights the owner/s of the Andrei Bank (that is, you and your fellow equity holders). Along come the state’s enforcers (with axes) to close you down. In effect XYZ Bank employed an agent, the state, to do axe work on its behalf.”
I bet even Stephan wouldn’t claim that this in any way resembles the operation of copyright, or any form of IP laws.
You are not an IP lawyer, so you can be excused once or twice for not understanding what you are opposed to, but you have already been warned.
You may care to review your position.
Wildberry, your analogy is doesn’t work, precisely because the boundaries of “XYZ Bank” are physical: it’s surrounded by a sidewalk, perhaps a fence; it has windows and doors; it also has a vault where you keep your money. When you pull out your axe (which is also a physical item), you use it to broach these boundaries, and perhaps even the physical boundaries of skin and bone, if you commit murder to obtain the money that’s in the bank.
The pesky little problem with ideas is that they have no boundaries. I can make a fantastic new mechanism for a pistol, for example, and claim it my own–but I cannot build a fence around it! I could file a patent, and claim it to be a “fence”, but it’s not a fence, because someone on the opposite side of the street, or the continent, or the world, or the galaxy, or even the universe, can discover that fantastic new mechanism on his own, and be completely unaware of my patent. Unless you can design a mechanism that broadcasts these “property” rights to every individual in the universe, this will always be the case.
To a limited extent, this is even true of literature and art. I might not come up with “Star Wars” on my own, but when I watch it enough times (perhaps just once, if I have photographic memory), it becomes a part of me–and its lines and philosophies will show up in my writings and art, both consciously and unconsciously–regardless of how many protestations George Lucas makes that it’s “his work”.
Indeed, George Lucas himself discovered this years ago, when he tried to reign in all the fan sites that had been created around Star Wars. After sending a lot of threating letters from his lawyer, the Star Wars community was so outraged that he had to have his lawyer send out a lot of letters saying “Just kidding!”
The reason IP laws are such a problem–and why, in the case of copyright, there has to be arbitrary “fair use” exceptions–is that ideas have a life and an existence of their own, independent of those who use them.
@Alpheus March 4, 2011 at 3:42 pm
“The pesky little problem with ideas is that they have no boundaries.”
Yes this is true. That is why it is important not to argue against IP laws on the basis that they seek to draw boundaries around ideas. This is not the case. Ask Kinsella.
“Unless you can design a mechanism that broadcasts these “property” rights to every individual in the universe, this will always be the case.”
If you are being sued by an alien from Mars, you have a point. Otherwise, perhaps we can limit the scope of this discussion to US IP law, specifically copyright law. If you can defeat the concept of copyright law, we can move on to patents.
“ …it becomes a part of me–and its lines and philosophies will show up in my writings and art, both consciously and unconsciously–regardless of how many protestations George Lucas makes that it’s “his work”.
Are you really saying that a) you could have come up with Star Wars on your own? Why didn’t you…and b) you cannot tell the difference between our expression directly based on Star Wars, and an “original work of authorship” that is not based on Star Wars? You think you might “accidently” write Star Wars and be an innocent victim of copyright laws? That is more fantastic than the idea of being sued by aliens from across the universe.
“Indeed, George Lucas himself discovered this years ago, when he tried to reign in all the fan sites that had been created around Star Wars.”
Sounds like a prudent marketing move, as would be his right. He could have chosen to be an ass. He wouldn’t be the first. Remember, consumers rule.
“The reason IP laws are such a problem–and why, in the case of copyright, there has to be arbitrary “fair use” exceptions–is that ideas have a life and an existence of their own, independent of those who use them.:
It is not possible that I can correct all of your innocent or deliberate misstatements of copyright laws (or patents in this case). You are arguing that “ideas are free”. They are.
However, IP laws specifically seeks to exclude ideas from protection. Given that fact, your argument is what?”
“Yes this is true. That is why it is important not to argue against IP laws on the basis that they seek to draw boundaries around ideas. This is not the case. Ask Kinsella.”
The entire point of IP is to draw boundaries around ideas. Otherwise, why bother patenting an idea? Why register a copyright? Such an action is necessary before suing someone. If the goal isn’t to draw boundaries around an idea, why sue a person who infringes on your patent, if that person came up with the idea independently?
“If you are being sued by an alien from Mars, you have a point. Otherwise, perhaps we can limit the scope of this discussion to US IP law, specifically copyright law. If you can defeat the concept of copyright law, we can move on to patents.”
What’s to stop a Martian from taking an idea developed on Mars, filing a patent, and suing me? A lack of citizenship status? But then, what’s to stop a Martian from obtaining citizenship status?
“Are you really saying that a) you could have come up with Star Wars on your own? Why didn’t you…and b) you cannot tell the difference between our expression directly based on Star Wars, and an “original work of authorship” that is not based on Star Wars? You think you might “accidently” write Star Wars and be an innocent victim of copyright laws? That is more fantastic than the idea of being sued by aliens from across the universe.”
I didn’t come up with Star Wars on my own, because I wasn’t alive at the time. Having said that, what was to stop me from taking ideas as diverse as Eastern Philosophies, WWII images, Wild West ethos, complete destruction of planets (during the height of the Cold War, of all times!), special fighter jets, sword fighting, androids, and revolution against empire?
If I were alive at the time, and pulled all these ideas together, would I have been sued by George Lucas? Possibly not–I may have sued him instead! Which isn’t unheard of in the movie industry…
“Sounds like a prudent marketing move, as would be his right. He could have chosen to be an ass. He wouldn’t be the first. Remember, consumers rule.”
If consumers rule, then why shouldn’t they be allowed to with regards to copyrights and patents? Why shouldn’t an author be free to offer a new Star Wars novel, independent of George Lucas, without fear of lawsuits from Lucas? Or do consumers rule, except when Government Dictate demand otherwise?
“It is not possible that I can correct all of your innocent or deliberate misstatements of copyright laws (or patents in this case). You are arguing that “ideas are free”. They are.
However, IP laws specifically seeks to exclude ideas from protection. Given that fact, your argument is what?”
IP by its very nature attempts to protect ideas. Yes, the Patent Office claims to protect only devices…but what is a device, if it’s not the physical manifestation of an idea? If the Patent Office really was committed to not patent ideas, then why did they allow software patents, or business method patents? Patenting software in particular is the reason I became anti-patent, years before I learned about Kinsella’s work–although it took Kinsella’s work to convince me that copyright had its problems as well.
Even though copyright is touted as “protecting the expression of ideas” rather than of protecting those ideas themselves, having a work “sufficiently similar” to another is enough to bring about a copyright lawsuit, even if such a lawsuit has no merit.
When I sit down to create something–whether it be a computer program, or a device, or a painting, or a story–I shouldn’t have to worry that what I come up with has already been done, and patented and/or copyrighted. (Painting is especially interesting–consider, for example, an abstract painting that consists of a white background with a single blue stripe. How difficult, really, could such a painting be, to independently reconstruct? Should such a painting really be copyrighted?)
IP rights have nothing to do with ideas, they protect information. You are using fallacy #2.
@Alpheus March 4, 2011 at 6:12 pm
“The entire point of IP is to draw boundaries around ideas. Otherwise, why bother patenting an idea?”
The lack of understanding evident in this statement is beyond my willingness to correct. This is why I do criticize Kinsella though, for not caring why people are against IP as long at they are. You are simply mouthing the misinformation you have heard about IP on this site. I think he should do a better job of policing up the ignorance being propagated in his name. It is unethical.
@Both Stranger and Wildberry:
I am not just parroting information I have received from this site. I am also parroting information I have obtained from my own conclusions, working with both Linux and as a mathematician. Indeed, I am so enamored by so-called “Fallacy #2″ because of my understanding of mathematical history, and my intense familiarity with all sorts of mathematical principles.
Bu the claim that IP doesn’t create boundaries is stupid: patents are claims to ideas, and patents are usually written to encompass as many ideas as possible. Devices are physical embodiments of ideas–if you create a device unrelated to a patent’s original purpose, but it falls within the description of one of its claims, your device infringes on that patent, because of the idea that patent describes.
Perhaps the best example of this is one given by Richard Stallman: a compiler infringes on a patent that covers spreadsheets, because the patent describes a method for determining the order of things to be calculated–which is one of the steps the compiler needed to take, to transform source code to machine code.
Another example: If someone had a patent for a steam engine, it doesn’t matter if I use wood instead of coal, or alcohol instead of steam, or titanium instead of steel, to make a different steam engine–it will still infringe on the patent, because the patent covers the idea of a steam engine, rather than a physical type of steam engine.
In both these cases–indeed, with patents in general–it’s the idea that’s patented, not some “information”.
Besides which–what is information, if not ideas? Of course, only certain types of information can be copyrighted or patented, too: data I collect from observing stars would not be copyrightable, because such information is raw data, taken from nature. And it’s certainly not patentable!
@Alpheus March 7, 2011 at 3:09 pm
“I am not just parroting information I have received from this site.”
OK. Fair enough. Let’s run with that.
“Bu the claim that IP doesn’t create boundaries is stupid:”
Who claimed that? Not me. The very purpose of property rights is to establish boundaries. That is how we resolve disputes over use.
“ patents are claims to ideas, and patents are usually written to encompass as many ideas as possible.”
OK, but the downside is that the broader a patent is drawn, to cover more stuff, the more vulnerable it is to attack, because it is overbroad. It is a tradeoff.
“ If someone had a patent for a steam engine, it doesn’ts matter if I use wood instead of coal, or alcohol instead of steam, or titanium instead of steel, to make a different steam engine–it will still infringe on the patent, because the patent covers the idea of a steam engine, rather than a physical type of steam engine.”
This is a pretty good example, though I’m no expert on steam engines. What is patentable is not the “idea” of steam engines. That would be the equivalent of patenting the idea that “expanding pressure of the conversion of water to steam can be used to drive mechanical devices”. That is a scientific principle or discovery. What is patentable is the actual design of a particular strategy for applying this principle to an actual engine. It must be disclosed in sufficient detail, as part of the requirement for obtaining a patent, so that a reasonably skilled artisan could actually build one. That is the trade. That is the public policy: Monopoly rights for a limited term in exchange for full disclosure.
Now if you hold a patent to a steam engine, what do you want to do with it? You want to make money. So are you going to prevent people from using it? No, you are going to encourage them to use it, because every use is money in your pocket. On the other hand, people that conceive of uses for this engine see a benefit to them. They engage in economic calculation. If the price is too high, they pass and the invention languishes. If low enough, certain applications will be cost-effective. If still lower, it will be used for all manner of things. This is the free market operating. Obviously, a patent in a steam engine did not prevent the development of the internal combustion engine. And last I looked, development in gasoline engines has not come to a screeching halt either.
What do you object to, exactly?
“What about property arising as the result of contracts?”
What if I sign a contract selling myself to another person? Am I now their property?
If “yes” then your views are completely incompatible with libertarianism and you may as well be preaching fascism here. If “no” then you refute your above argument.
@Mashuri March 8, 2011 at 3:38 pm
Are you really trying?
Contracts cannot be enforced if the subject matter is illegal. They are void for illegality.
Slavery is outlawed; therefore there can be no contract for it. Just like there can be no legal contract for murder. So as the first part, No.
As to the second part, how so? If you can’t distinguish between a security interest (intangible property) and slavery (illegal and unethical), then how can I help you?
“Contracts cannot be enforced if the subject matter is illegal. They are void for illegality.
Slavery is outlawed; therefore there can be no contract for it. Just like there can be no legal contract for murder. So as the first part, No.”
OK, so contracts are superseded by whatever has been written in some law books. What if slavery were legal? Would I then be someone else’s property? Is law all that is necessary to cause property rights?
@Mashuri March 8, 2011 at 5:36 pm
“OK, so contracts are superseded by whatever has been written in some law books. What if slavery were legal? Would I then be someone else’s property? Is law all that is necessary to cause property rights?”
Look, I’m trying to be fair with you, but you are making it difficult. What if murder was legal? Could you make a contract for it? Yes. Would it be ethical? No.
Law is not all that is necessary, but it can be enough. The problem is when the law tries to reach an unjust outcome. That is the ultimate test: the majority of people who live under its rule must concede the justice in it. This is the reason why IP still exists after 200 years, and why there are still proponents of it blogging here, in the den of the beast.
There is a rational basis to believe in the justice of IP. There are perhaps some cases where the operation of the law reaches unjust outcomes. To the extent that is true, we should change them. To the extent is not true, it is dishonest to insist it is.
@Wildberry: “That would be the equivalent of patenting the idea that “expanding pressure of the conversion of water to steam can be used to drive mechanical devices”. That is a scientific principle or discovery. What is patentable is the actual design of a particular strategy for applying this principle to an actual engine.”
Add “method for” to “expanding pressure of the conversion of liquid to gas to drive mechanical devices” and you have yourself a patent. Now, if I produce a steam engine, I would be infringing on this patent. (I generalized it a little bit, like a good patent lawyer would.)
And, while an inventor has *some* incentive to price in ways to get customers, a patent gives the inventor a *perverse* incentive to sue others who make the same type of device. Without patents, the inventor has a greater incentive to be better than those who copy him, whether it be in price, or in service, or even just plain customer satisfaction.
And if the inventor cannot keep up with demand, or is a lousy businessman, there would certainly be room in the market for others to step up to the plate. With patents, though, the inventor has the means to prevent that from happening.
“Look, I’m trying to be fair with you, but you are making it difficult. What if murder was legal? Could you make a contract for it? Yes. Would it be ethical? No.
Law is not all that is necessary, but it can be enough. The problem is when the law tries to reach an unjust outcome. That is the ultimate test: the majority of people who live under its rule must concede the justice in it. This is the reason why IP still exists after 200 years, and why there are still proponents of it blogging here, in the den of the beast.
There is a rational basis to believe in the justice of IP. There are perhaps some cases where the operation of the law reaches unjust outcomes. To the extent that is true, we should change them. To the extent is not true, it is dishonest to insist it is.”
OK, so you believe that some sort of majority ethical belief is the underlying cause that brings property (IP in this case) into existence. So, if the majority ends up rejecting IP as immoral in the future, then you would view the abolition of IP as ethical and necessary, yes?
@Alpheus March 8, 2011 at 6:43 pm
“Add “method for” to “expanding pressure of the conversion of liquid to gas to drive mechanical devices” and you have yourself a patent.”
Sorry, if it was that easy, I guess everyone would be doing it with words instead of action. To get a patent, you have to actually INVENT something that is UNIQUE AND USEFUL, and then you have to describe it in sufficient detail that it can be BUILT BY A REASONABLY SKILLED ARTISAN IN THE CRAFT. Gee, that sounds a little harder, doesn’t it?
” Now, if I produce a steam engine, I would be infringing on this patent. (I generalized it a little bit, like a good patent lawyer would.)”
Well, that is not a foregone conclusion, but let’s run with that.
“And, while an inventor has *some* incentive to price in ways to get customers, a patent gives the inventor a *perverse* incentive to sue others who make the same type of device.
You are speaking as if the main purpose of obtaining a patent is to sue people! “I’m going to invent a way to feed the world so I can SUE people!” Does that sound reasonable to you?
“Without patents, the inventor has a greater incentive to be better than those who copy him, whether it be in price, or in service, or even just plain customer satisfaction.”
With patents, the inventor has a greater incentive to invent stuff. I don’t know if you realize this from personal experience, but it is a real bummer to invest a bunch of money, work day and night, throw a bunch of failures in the trash and finally, after years of effort, have something really useful and unique, only to find out that Alpheus looked through my window and copied the whole thing for a fraction for the cost that I have sunk into the project. Now I have to compete with him in the market, me who spent my doe on the development, and he who can spend his doe on production and marketing and distribution. This is a place I’m just dying to move to. Where do I sign up?
“And if the inventor cannot keep up with demand, or is a lousy businessman, there would certainly be room in the market for others to step up to the plate. With patents, though, the inventor has the means to prevent that from happening.”
MY GOD! What in INJUSTICE! Alpheus is prevented from ripping me off and getting rich off my production. I just HATE that!
@Mashuri March 8, 2011 at 6:46 pm
“OK, so you believe that some sort of majority ethical belief is the underlying cause that brings property (IP in this case) into existence. So, if the majority ends up rejecting IP as immoral in the future, then you would view the abolition of IP as ethical and necessary, yes?”
Ah, no….if the majority, say led by Kinsella, eventually concludes that the concept of IP is no longer legitimate; I will find myself in the minority and living in a different world.
Time would tell how that all worked out. It would be a world where we no longer believed that the individual production of intellectual works was worthwhile, and it would become a hobby instead of a vocation.
“Ah, no….if the majority, say led by Kinsella, eventually concludes that the concept of IP is no longer legitimate; I will find myself in the minority and living in a different world.
Time would tell how that all worked out. It would be a world where we no longer believed that the individual production of intellectual works was worthwhile, and it would become a hobby instead of a vocation.”
So we’ve determined that it’s not contract, law or aggregate moral/ethical opinion that causes property rights in your view (otherwise, you would agree with whatever those entities determined as property). What is it then?
@Wildberry:
“Sorry, if it was that easy, I guess everyone would be doing it with words instead of action. To get a patent, you have to actually INVENT something that is UNIQUE AND USEFUL, and then you have to describe it in sufficient detail that it can be BUILT BY A REASONABLY SKILLED ARTISAN IN THE CRAFT. Gee, that sounds a little harder, doesn’t it?”
Who’s to decide what is “unique” or “useful”? Two different people applied for a patent on the telephone. By the principle of uniqueness, this should have invalidated the patent–but a patent was granted anyway. As for usefulness, I know of a patent for goggles to put on chickens, so they don’t get their eyes pecked out–yet, even though the patent expired decades ago, I don’t see all that many chickens with goggles. There are thousands of patents that not only are useless, but downright silly!
And who’s to decide that the patent is described in enough detail to replicate it? The patent clerks, who have a degree in an approved field, and then go on to take patent law classes until they take enough to become patent lawyers?
“You are speaking as if the main purpose of obtaining a patent is to sue people! “I’m going to invent a way to feed the world so I can SUE people!” Does that sound reasonable to you?”
Yes, that is the purpose of patent. It is also the purpose of *registered* copyright. The government is going to do NOTHING to enforce your patent or copyright. If you do not sue anyone who infringes on your patent or copyright, then your “rights” are just pretty pieces of paper with no meaning.
“With patents, the inventor has a greater incentive to invent stuff. I don’t know if you realize this from personal experience, but it is a real bummer to invest a bunch of money, work day and night, throw a bunch of failures in the trash and finally, after years of effort, have something really useful and unique, only to find out that Alpheus looked through my window and copied the whole thing for a fraction for the cost that I have sunk into the project. Now I have to compete with him in the market, me who spent my doe on the development, and he who can spend his doe on production and marketing and distribution. This is a place I’m just dying to move to. Where do I sign up?”
I don’t know about your experience, but I *have* taken the time to develop things. I haven’t been able to develop things to the point that I could get them to work, and before I became anti-patent, I dreamed of patenting the things I worked out. Now, let’s say I successfully developed that successful tiny helicopter mechanism out of common household parts. (My budget is limited.) What now? Do I pursue a patent I cannot afford? Or would it be better to just start a business, and hope that no one else copies me? Oh, oh, I know! I could just get that patent, sit on it, and hope that someone else takes the initiative to make tiny helicopters, and then sue them!
It isn’t as easy to copy something as you would like to make it. It took me a bit of time and work myself, and I had the advantages of books from the library! I doubt anyone could make a working helicopter, just from seeing it through the window. Perhaps, if they watched me from beginning to end, they could–but that would take an enormous amount of free time on the watcher’s part.
“MY GOD! What in INJUSTICE! Alpheus is prevented from ripping me off and getting rich off my production. I just HATE that!”
Oh, no, Wildberry managed to copy my helicopter design! I’ve already been able to sell a few, while Wildberry worked out the details for himself. Let’s see what *his* customers are going to think about my *new* helicopter design: it’s not remote control. Instead, it uses analog robotic techniques to follow you around, and to avoid hitting people in the room!
Wildberry,
Just like if the introduction of IP makes theft legal, it does not make it ethical?
Wildberry
If you are going to write to me at least have the decency to spell my name correctly.
You assert, “We have been steering clear of each other lately”
That may be what you’ve been doing after I publically excoriated you last week (for writing nonsense, for lacking substance, for smearing without factual basis etc.). I note your failure to have learnt anything from the obviously deeply felt chastisement of your poor wee ego. Looks like you really do need to receive another dose. Ask your mommy.
You write, “You are not an IP lawyer etc.”
Another example of your inablility to contribute anything of substance to support your arbitrary position. How weak minded you are.
I’m not a registered patent attorney currently in practice. An irrelevant guess on your part. Still, since you’ve raised the subject I’ll continue for a moment. Apart from the moral and practical issues involved in changing career direction at this late stage in life, the reasons I’m not in practice as a patent attorney is that I have not presented final submission to the PSB and am not prepared to spend two years as an employee of a patent attorney firm. I have professional qualification and experience in specialist fields within engineering, science, law, finance & commerce sufficient to prosecute a successful registration though. Further, I can read and I can even “drive a library”. I reckon I am second to none when it comes to patent searching or locating precedent. Now, even though I am not a practicing lawyer or patent attorney I do possess sufficient knowledge and understanding of the subject of IP to discuss it, to learn about it, to read about it, to correspond with authorities in the subject, to make analysis, to debate it, to make conclusions and even to use analogy in regards to it.
You appear to think that somehow my professional status makes your position good. It does nothing of the sort. It fails to do that for several reasons, some of which should become apparent with but a little analysis, even to an intellectual pocket-billiards player such as you. Once again, in relation to the substantive you have produced nothing whatever of value.
Wildberry you can’t expect to substitute smearing for substance. While it is appreciated that is your conventional mode of thought, it remains an invalid approach.
You write this idiocy, “but you have already been warned”
By who? Some know-nothing called, Wildberry?
“You may care to review your position.”
Good idea. A good habit to get into and always worth doing. So, I’ll do just that here and now.
I had thought you to be a slightly misguided young man with a wee bit too much opinion of himself in need of a little straightening up. Now, as events have transpired, I know you to be an intellectual sloth, a person of superficial thinking, a follower of emotional whim and irrationality.
Sione
@ Sione March 4, 2011 at 7:13 pm
Whew! Touchy, touchy!!
I didn’t know mispelling was a matter of decency. I am sure the rest of your post is though.
Ironically, at no point in that enlightening rant did you even attempt to address my point.
Congratulations on your resume. Very impressive.
Wildberry
“at no point in that enlightening rant did you even attempt to address my point”
How disengenuous of you.
You made two allegations in your post and raised nothing of relevance or substance whatsoever. You made no point- likey because you have none to make. You lack substance.
Your two allegations were:
1/. “I bet even Stephan wouldn’t claim that this in any way resembles the operation of copyright, or any form of IP laws.”
Here you attempted to hide behind a known authority, Dr Kinsella, by pretending you knew said authority to share your position in to relation to what I wrote for Andrei. This is a form of passing off. It is dishonest. Wildberry, you need to stop pretending you can substitute such nonsensical twisting and turning for a substantive, rational and informed position.
Dr Kinsella’s opinion can be sought by requesting he make it known (although I’d contend he has done that on several occasions previously). Nevertheless should you have been interested in knowing specifically what his opinion of my comments to Andrei was, you could always have asked him to provide it. It speaks volumes that you didn’t.
2/. “You are not an IP lawyer, so you can be excused once or twice for not understanding what you are opposed to, but you have already been warned.”
Refuted.
By the way, since you so readily play the man, it is likely only a matter of time before enquiry is directed towards your credentials in regards to law, IP and the like…
–
How about you restrain your wee ego, learn the lesson and quit with the nonsense? If you did that would be an enormous improvement over what you have been doing.
Sione
Not worthy of comment.
@Sione
In the case of Wildberry contending that you not being an “expert” in the field of IP waives any right to a tangible opinion on the matter, there’s always the old saying of “you don’t need to be a carpenter to judge the handiwork of a wobbling chair.”
I’ve been really frustrated by my lack of comprehension of the arguments against IP laws. I am inclined toward the position that copyright is wrong when you are broadcasting your IP to anyone who will listen, but I have trouble with how that invalidates *all* IP. Are there arguments that use this line of reasoning? Another ridiculous point: can I really own the rights to someone *else* singing “Happy Birthday?”
I’m truly undecided on this one, and the arguments that I’ve seen here seem to boil down to “I’m right because and you’re argument is illogical!”
I don’t like the argument that ‘all property rights are based on scarcity’ . . . it simply defines its way around copyright. My gut just says that it’s not an objective definition . . . even non-scarce things may be possessed by saying “there may be air freely available, but the air in this bottle is mine.” Surely there’s a better definition of property?
And “all rights are property rights”? Really? C’mon, that’s not realistic. I don’t think this scenario is a property right, but it is a right: kids have a right to protection from their parents and their society. Maybe that’s a little bit socialist, I’m not really sure, but it’s definitely true. How do I know this? I’m not sure, it’s not a logical line of thought on my part, but I doubt anyone can convince me that they don’t. And yes, I believe it’s a positive right that can even make a claim on a bit of my time to make sure that a little one doesn’t starve to death. And yes, I would fault anyone who had knowledge of a specific case, and capacity to help yet allowed a little one to starve via their inaction. (Note: I also think that any law to enforce this would wind up doing more harm than good.)
Help me out here,
Drigan
If you are broadcasting information at large, then you are not claiming IP rights, hence it is irrelevant to the debate over IP rights.
Are you sure? Most music gets broadcast, yet it still claims copyright protection.
Drigan,
Your common sense leads you to reasonable conclusions. That’s the way ethics generally work.
So, even though your understanding if IP law is a little shakey, your instincs are not inconsistent with the operation of IP laws as they are designed.
Regards,
“I don’t like the argument that ‘all property rights are based on scarcity’ . . . it simply defines its way around copyright.”
It’s only seen as “defining it’s way around copyright” if there is the assumption that copyright exists. Yet historically copyright has always been a grant of the state. It has never existed absent a state. This is not to say that there has not been some general ideas of people “deserving payment” and other notions, but these are no different than the ideas people have that other human beings deserve positive rights, such as the right to health care and the right to other people’s money should they fall into a bad financial situation.
Scarcity/rivalry is held as the point of delineation within property rights by those who oppose IP because it is the the simplest theory of property and it requires the least assumptions and arbitrary limitations. One can certainly argue that a more complex/arbitrary theory of property is valid, but when one does this it only makes sense to argue for a theory that is
1) not internally contradictory
2) is relatively clear-cut
The greater the level of complexity the higher the likelihood of falling into either of these 2 problems. If it’s too arbitrary then property rights become difficult to appropriately enforce. How do you decide the rights to a piece of paper stolen from it’s owner which had the text from someone elses IP written on it? Does the IP owner get to destroy the paper despite the theft from the owner of the paper?
In regards to your air example I don’t think IP opponents have any disagreement with you. Air may not be scarce, but because it is tangible it has the potential to be scarce. As you mention you could have air in a bottle (similar to how we have water in bottles despite the abundance of water on earth), and it would be your air. In space or in the ocean the air would be scarce. This is not like intangibles which can always be copied/etc.
I’ll defer to others on the question you have about everything as a property right. I’ve not decided my opinion fully on that.
One way to look at it is that there are ‘de facto rights’ and ‘de jure rights’ if you want to avoid a discussion of natural rights.
When a person owns a piece of private property legally they can be described as having both ‘de facto rights’ and ‘de jure rights’ to that property. Meaning they are the owner and controller of that property as well as having legal protections under the law.
However if a thief steels the property then he will have ‘de facto rights’ simply because he now controls it. He has no legal protection even though the property is under his control through the act of theft.
Also private property existed prior to established government. A person does not need a governing body to know that they own something. It’s a fact of the universe that if you want to make use of a object you have to control it first. It is safe to speculate that de facto rights to private property existed since pre-history. In many cases is was a bit more communal in nature were a tribe shared it or a family unit made use if it… but never the less it was a protected right people were willing to defend against animals and other humans.
The only de facto right to ‘intellectual property’ comes from you keeping it a secret. If you keep a secret to yourself or just with trusted allies then you have a right to that ‘property of the intellect’. Beyond that, however, it does not exist at all. Once you express ideas and other people observe those ideas and concepts then it is simply natural that people will learn it and copy it. Mimicry and sharing of ideas is something that is natural to the human condition. It is a basic requirement of life for humans and without it we would not be competitive with wild animals. It’s our capacity for learning, mimicry, and creativity that sets us apart. It is fundamentally what makes progress in human society possible.
It is safe to say then that copyrights and patents only exist as ‘de jure rights’. They simply cannot exist without organized violence backing them up.
Yup, ‘scarcity’ as an explanation for property is spurious nonsense. Property comes from (the natural right to) privacy, i.e. the physical occupation, enclosure or possession of something by the individual’s body and natural power. Privacy is physically bounded, it is real, it is not a social contract or abstract construct. Ask a bear in his den, or a dog with a bone. It doesn’t matter how scarce or plentiful bones are, the dog owns it.
Privacy applies to intellectual as well as material works, and thus an individual can exclude others from their writings as much as from their sculpture, whether from seizure or copying, or anything else. It is only in the 18th century that we started to recognise that individuals had such an exclusive right to their writings as well as to their ruder goods. Thus it was laudable for the US Constitution to recognise this natural exclusive right. Unfortunately, it was simply used as an excuse to re-enact the monopolies beloved by the unscrupulous in the old world, i.e. patent and copyright. Enabling people to look to their government to defend and remedy burglary, theft or copying of one’s intellectual as well as material works is the purpose of the Constitution, but that purpose shouldn’t have been exceeded to derogate the liberty of all by unconstitutionally granting privileges.
The physical boundary of one’s private domain excludes those without from copying that which is within, and that’s as far as a natural ‘self-evident’ exclusive right can go. But you cannot then exclude those you have included – without derogating from their liberty. If you let someone read your sensitive poetry, whether as a guest in your home or via written correspondence, they cannot be alienated from their liberty to later recite it. Except of course by the granted privilege of a corrupt state – that annuls the right to copy in the majority to leave it by exclusion in the hands of a few (this is why copyright is ‘held’ by copyright ‘holders’ – it’s a privilege, not a right – unless you prefix it with ‘legislatively created’).
It doesn’t matter how scarce or plentiful bones are, the dog owns it.
You are either misunderstanding or misrepresenting what is meant by “scarcity”. If bones weren’t scarce, the dog wouldn’t growl at you when you tried to take it away.
A fish in the jaws of a shark is the shark’s property. It can surrender it to a bigger shark, or it can eat it, but it matters not to the shark whether fish are scarce or plentiful (it could be the last cod in existence for all it cares, or one of trillions). I certainly wouldn’t advise arguing with the shark over possession on the basis fish are abundant.
Property (possessible, inhabitable, securable) arises through physical possession/occupation by the human being. Where a person cannot achieve possession unaided then we get society and government arbitrating as to who should look after which mountain, and who can fish where and how much – given land and fishes aren’t infinite (potentially scarce). But, it is not scarcity that gives right to natural property, scarcity only comes into play when limited resources are concerned and their consumption/allocation among society needs to be carefully/fairly managed.
Thus those who don’t believe in physical possession as a basis for property (together with a desire for monopoly) prefer to believe that property is a utilitarian creation that arises solely from the state (or a social contract). That way ‘magically uncopyable’ intellectual works can be legislated into existence by fiat (they are not naturally uncopyable). And again, don’t argue with a multinational publishing corporation that they should surrender their monopoly over an mp3 file on the basis that it can be copied indefinitely at negligible cost. They’d bite your arm off if it were legal, or at least they’d do it overtly if it were legal.
From the other perspective, it doesn’t matter how potentially abundant copies of an intellectual work could become, what makes an intellectual work property is physical possession by a human being. This person is physically able to prevent others copying it. The physical boundary of their private domain is the barrier that enables them to exclude others from their intellectual property, provides them with an exclusive right to their writings. Don’t argue with an author that their writing cannot be their property because it could easily be made abundant, or that something similar has already been made abundant. Either you persuade them to release or share it (with a large enough offer of money perhaps), or you go elsewhere, but you have no right to seize or copy the intellectual work in their possession, their intellectual property.
So, really, there is no argument about whether intellectual works can be property. The issue that vexes us in these times is Queen Anne’s unethical grant of a reproduction monopoly that has steadily expanded from a boon to her beholden press into a quasi-religious belief that mankind’s primordial liberty to share and build upon his own culture and technology came to an abrupt end in 1709 (and in the US in 1790) – that in our now enlightened ‘civilisation’ no-one can sing a song or tell a story they have not originated uninfluenced, nor can anyone build a mousetrap they have not invented (unless they pay the privileged holder of the respective monopoly).
Property can exist with only the natural power of an individual.
Monopoly needs a monarch or a state.
But all this is academic. Anachronistic, unethical and unconstitutional monopolies are not to be rescued through clever argument. People are to be rescued from persecution by those privileged with now ineffective monopolies. Let’s stop bankrupting and imprisoning youngsters for doing what comes naturally to them just because it makes monopolists feel that something is being done to hold back the tide of the great unwashed. Let’s have no more Pyrrhic martyrs, and no corrupt taxes extracted from the people to compensate the monopolists for the loss of monopolies they should never have been granted. It’s well past time copyright and patent was abolished. It should have ended along with slavery.
Crosbie Fitch,
Although I wasn’t able to find an Austrian definition of scarcity (or maybe I was just too lazy to search well enough), I provide my own definition based on my research of the topic: scarcity is the existence of mutually exclusive states. For example, the fish cannot simultaneously be in shark’s jaws and outside them, therefore it is scarce.
Given this definition, Stephan’s argument (and mine as well) is not that non-scarce goods should not be property, but that it is logically impossible for them to be property. Although based on this claim alone it is not possible to conclude that scarcity is the “metaphysical source” of property rights, it follows that it is a necessary component of property rights.
Peter, scarcity is not even a necessary component of natural property rights (though it may be an aspect that leads to legally granted ‘rights/privileges re property). It’s a red herring, an argument a sophist burglar would use to excuse their copying of an author’s manuscript or an inventor’s design (natural intellectual property).
Where people get confused is when they take an excursion from reality into metaphysics and mistake a monopoly as a claim of property in the abstract, e.g. “I discovered the 523rd prime therefore it’s mine and no-one else in the universe may utilise this number without my permission”. The number is both physically encoded information as well as an abstract concept. Considered purely in the abstract it does not physically exist therefore cannot be physically occupied or possessed by the individual. However, it can also physically exist. It can be written down as an intellectual work fixed upon a physical medium, on a piece of paper say. The discoverer owns this paper and the number written upon it. They can naturally exclude others from copying this number from its physical medium. They can even sell the piece of paper and number upon it (to those who’ve been unable to ascertain the 523rd prime via other means). That the number maps to an abstract concept is irrelevant to the ability of its possessor to exclude others from their possession of its physical instantiation. It’s also not an excuse for a burglar to seize it, or copy it and claim nothing was stolen. Obviously, having control over a physical instance of a number doesn’t confer power upon the possessor to control the abstract concept, nor consequently any other physical instance of the number throughout the universe. For that you need a credulous/superstitious populace. Either that or you ask a queen to grant a privilege enabling the discoverer to register their prime and prohibit unauthorised copies or use (optionally permitting independent discovery – if she’s feeling generous).
Property is a real, physical thing. It should go without saying that no-one can own/occupy/possess anything in the abstract plane. So, there’s no need to introduce the notion of scarcity. All we have is property and monopoly, the natural power and right of the individual vs the unnatural power and privilege granted by the state. It is not a matter of material vs intellectual property, nor scarcity vs abundance. It’s just anachronistic privileges of copyright and patent that need to come off the statute books before too many innocent people are persecuted, and before corporations become so powerful they skip the sham of monopolies and just start taxing the populace directly (ultimately not even providing anything in return, i.e. just extract a mulct). Monopolies aren’t a solution to market failure, they are the cause of it, and arise as a parasite upon prosperity. Civilisation is infested by their corruption, and popular piracy is the people’s immune system fighting back, the reassertion of their natural, cultural liberty.
Crosbie Fitch,
the existence of mutually exclusive states is a necessary component for anything, not only for rights. Without mutually exclusive states you cannot make any conclusion. If a hypothetical good does not have mutually exclusive states, you cannot determine if someone is using it or not, for example. In your example with the shark and the fish, if the fish could simultaneously exist inside and outside of shark’s jaws, it is impossible to determine if he’s eating it or not, alas the whole question becomes nonsensical because the fish could also simultaneously exist in shark’s stomach, or all other shark’s stomach as well as happily swim around the shark. Without mutually exclusive states, there cannot be rights, or for that matter, anything at all.
Some people use scarcity to refer to the phenomenon of mutually exclusive states.
“Property is a real, physical thing. ”
You mean, like air?
Peter, inventing something that can’t happen in reality (unless you venture into quantum entanglement) is frivolous and a spurious non-attribute of property.
Yes, TFPoD, property is physical, like air.
Don’t forget though, that rights (thus to property) require a human being.
Hence the contents of a scuba diver’s tanks are his property because of his physical possession, not some abstract notion that they can’t be in more than one place at a time, or are abundant or scarce.
“Yes, TFPoD, property is physical, like air.”
OK, so who owns the air?
“Hence the contents of a scuba diver’s tanks are his property because of his physical possession, not some abstract notion that they can’t be in more than one place at a time, or are abundant or scarce.”
You really think that to claim that the air in the scuba diver’s tank is scarce, that is to say, the diver’s use of it precludes someone *else’s* use, entails an abstract concept? How is it “abstract” to point out that if someone else *could* use that air without precluding the diver’s use of it in any way, then it would be meaningless to speak of that air as being ownable?
TFPoD, what is there on this planet that is physical and can be physically occupied, possessed, or secured by a human being that ALSO exists simultaneously in more than one place at a time?
If there is such a thing then your necessary non-characteristic of property would be useful. If there isn’t such a thing then it’s spurious.
The only thing that comes close as far as I’m aware is quantum entanglement.
Crosbie,
Because so many people claim IP has the same traits as physical property, Peter and others (myself included) feel the need to explain the differences. This includes describing traits inherent (or not) in the metaphysical vs. the physical. I’m sure you understand this, so do you feel that these statements serve more to confuse the issue rather than clarify it?
“TFPoD, what is there on this planet that is physical and can be physically occupied, possessed, or secured by a human being that ALSO exists simultaneously in more than one place at a time?”
Nothing, and this is the whole point: it is these things and only these things over which conflict can arise (it is meaningless to say you and I conflict over something when no use of one of ours is precluded by a use of the other), and for which we need rules (namely, property rights) for determining who gets to use these things (and who doesn’t). That is to say, for conflict resolution. Scarcity is the starting point of any theory of property rights, and you are wrong to claim otherwise.
The point is two-fold:
1. Ideas are not scarce and hence cannot be property. (Probably only a few of the more out-to-lunch space cadets among the IP proponents actually believe ideas are property anyway, but the point bears emphasis.)
2. Any case for IP must be grounded in a theory of property rights that refers to those objects over which conflict arises, ie, tangible, physical objects. Despite obfuscations, most IP proponents here essentially agree (eg, they’ll claim when pressed hard enough that, no, an inventor doesn’t actually own this pattern, they only have the right to prevent others from copying this pattern onto tangible objects, regardless of the lack of any link the inventor may have to this object). They simply do not provide any coherent theory of property rights that offers a justification for IP.
@Crosbie Fitch March 7, 2011 at 9:41 am
“So, really, there is no argument about whether intellectual works can be property.”
I agree that there is no reason why IP should be viewed in any way that is significantly different than any other property. Whatever can be said of property rights in land, intangible securities, or consumer goods produced with the capital goods of the producer, can be also said of IP.
“The issue that vexes us in these times is Queen Anne’s unethical grant of a reproduction monopoly that has steadily expanded from a boon to her beholden press into a quasi-religious belief that mankind’s primordial liberty to share and build upon his own culture and technology came to an abrupt end in 1709 (and in the US in 1790)”
I take small issue with your rendition of history here. Queen Anne’s Act was a response to the prior monopoly in reproduction granted to the printer’s guilds. This type of monopoly was never suffered in the US. One of the primary effects of the Act was to vest property rights in the authors over the guilds. This vesting the IP rights in individual authors and inventors has always been the approach for US copyright and patent laws. (See Eldrid v. Ashcroft for an excellent and brief summary) To state it another way, the US has never faced the situation that the QAA was meant to address.
“– that in our now enlightened ‘civilisation’ no-one can sing a song or tell a story they have not originated uninfluenced, nor can anyone build a mousetrap they have not invented (unless they pay the privileged holder of the respective monopoly).”
This is factually incorrect. All of these things are possible under current copyright laws.
Fair use allows most uses along the lines you suggest. Most mousetrap patents are likely already in the public domain, and if not, are available cheaply enough to make it more convenient to buy one rather than make one. Even if you did want to copy a patented design, you could likely do that for your own use and/or experimentation. You are exaggerating.
“Property can exist with only the natural power of an individual.”
This is factually incorrect. Whereas the rule of capture, and subsequent defense of possession is a fact of human history and property law, it is not the only way that property rights arise. Others are conquest, found and abandoned, adverse possession, creation and contracts, for example.
Also, no rights exist if they are not enforceable. So, all rights in property imply the right to defend the exclusive right of use by the owner. This is a monopoly only in the sense of the definition of property rights. I have a monopoly on the use of my body, for example.
“Monopoly needs a monarch or a state.”
By this statement, you are referring to market monopoly, where the entire control of a resource is concentrated into an exclusive source. Mises warned about the problem with conflating these two meanings of monopoly.
To paraphrase, every rhymester has a monopoly to his poems, but this does not mean he has the ability to charge monopoly prices for it. He competes with all other poets, and the consumer rules. A monopoly holder for a book or an invention competes with all other books and inventions for the consumer dollar. That is not a monopoly as you use the term here.
“But all this is academic. Anachronistic, unethical and unconstitutional monopolies are not to be rescued through clever argument.”
If this is how you feel, you make a rather passionate case to the contrary, below:
“People are to be rescued from persecution by those privileged with now ineffective monopolies.”
An ineffective monopoly is not much of a monopoly. But assuming they are effective, how are you proposing that the people be “rescued”?
”Let’s stop bankrupting and imprisoning youngsters for doing what comes naturally to them just because it makes monopolists feel that something is being done to hold back the tide of the great unwashed. Let’s have no more Pyrrhic martyrs, and no corrupt taxes extracted from the people to compensate the monopolists for the loss of monopolies they should never have been granted. It’s well past time copyright and patent was abolished. It should have ended along with slavery.”
Very passionate rhetoric but you are simply arguing here that IP laws should be abolished because poor little children are being punished for the pleasure of the monarch/State. Think of the CHILDREN!!
It is ironic that you draw a comparison with slavery. First, you completely misstate the relationship between the author and the protected works. A work is not the vehicle by which the evil State pursues its agenda against innocent children. A work is the property which you agree is protectable. The fact that it is protected by monarch, State, or individual force of arms is irrelevant. It is whether it is enforceable. We can quibble about methods some other time.
Second, as a result of the first issue, you completely ignore the impact of abolishing the economic rights of a property owner, which would be a contradiction of libertarian principles in any other context. As Mises points out, producers of intellectual works in the absence of IP protections would be producing for external economies. That is, one’s output does not equal their income.
This is a very practical definition of slavery, which in effect you advocate. Given a choice, people do not choose to be slaves. Yet apparently you claim that authors and inventors should be satisfied with producing for the glory and recognition of the people! That should be enough!
Do I misunderstand you?
@Crosbie Fitch March 7, 2011 at 12:14 pm
“Peter, inventing something that can’t happen in reality (unless you venture into quantum entanglement) is frivolous and a spurious non-attribute of property.
I particularly like the “frivolous and spurious” part.
”Don’t forget though, that rights (thus to property) require a human being.”
Yes, property is a human device. The concept of “property” does not exist in the natural world. It is a social convention for the purpose of facilitating cooperation, division of labor, and peaceful resolution of conflicts over their use.
“Hence the contents of a scuba diver’s tanks are his property because of his physical possession, not some abstract notion that they can’t be in more than one place at a time, or are abundant or scarce.”
Yes, it is that simple. However, don’t forget that possession is only 9/10 of the law. It is not necessary to have possession in order to own property. An intangible security interest cannot be “possessed” in the literal sense, but rights to it can be enforced in their ownership none the less. Bailment of chattel is another example; transfer of possession does not transfer title.
Yes, Mashuri, it serves only to confuse – like defining the characteristics of angels that they may not be counted on a pin. Either you’re arguing with people who believe in the supernatural, the realisation of imaginary or abstract notions (however useful in the abstract), in which all hope is lost, or you’re arguing with people who simply aren’t quite sure what the difference is between property and monopoly, natural vs state granted – in which case there is hope.
If I possess something physical, that I can naturally exclude others from, and yet is a discrete object (alienable), that I may provide to those others (who may in turn exclude others as I have done, etc), then it’s property. I don’t need to say that it cannot exist simultaneously in multiple places (since nothing does), nor do I need to say that it is not amenable to teleportation, morphic resonance, or repossession by god (since nothing is – as far as we know).
“The fact that it is protected by monarch, State, or individual force of arms is irrelevant. It is whether it is enforceable. We can quibble about methods some other time.”
Mind if we quibble a little about this now? How do you propose enforcing IP for music, video and book publishing firms with things like Bittorrent “violating” them on a massive scale? Do you actually believe it is enforceable in any meaningful way? How do you propose enforcing it in the future, as increases in bandwidth and technology benefit those who choose to exploit IP’s natural duplicability over those who try to suppress it?
“Yes, Mashuri, it serves only to confuse – like defining the characteristics of angels that they may not be counted on a pin. Either you’re arguing with people who believe in the supernatural, the realisation of imaginary or abstract notions (however useful in the abstract), in which all hope is lost, or you’re arguing with people who simply aren’t quite sure what the difference is between property and monopoly, natural vs state granted – in which case there is hope.”
You have a good point.
Wildberry, it’s pretty clear that you define property to include state granted monopolies, whereas I don’t. I limit natural property rights to those things that individuals can naturally, privately possess. Anything beyond that is state supported custody or monopoly, e.g. societies may tolerate individuals to have custody of large tracts of land on condition the land remains publicly accessible.
However, the issue that we’re focussed upon here concerns intellectual work, the difference between it as the subject of property, and as the subject of a state granted monopoly. In the 18th to 20th centuries you had a hope of excluding the population at large from making/printing/distributing copies of, and/or performing/broadcasting works covered by Queen Anne’s privilege of copyright (and its endless extensions). In the 21st century you do not have a snowball’s chance in hell.
Thus the argument is really about deprogramming those afflicted with a belief that state granted monopolies are just as able to define property as natural law. It’s about helping them understand why copyright doesn’t work any more. It’s not about libertarians trying to persuade the incumbents to surrender their cherished privileges. The privileges are already dissolved in terms of effectiveness. They just need to be repealed, because whilst they can no longer achieve monopolies, they can still bankrupt and imprison the innocent.
Queen Anne’s statute of 1709 was NOT a response to her Stationers’ Company having control over all printing, it was a response to that control ending and a need to restore it, especially given the burgeoning sedition from an uncontrolled press that was plain to see in the decade or so of ‘communications anarchy’ prior to 1709. Daniel Defoe was one of the first to use the term of ‘pirate’ in this period to describe the wildcat printers (and actually welcomed their illicit distribution would they print fair copies).
Copyright is simply the grant of a reproduction monopoly arising in original works. That the author of a work is the initial holder of the monopoly arising is incidental, convenient only to a pretext that copyright was created for the poor starving author (as opposed to the state and its press). It was still only the established press that had sufficient power and inclination to exploit and enforce copyright. Just as we see copyright used to silence political speech today, so it was also abused in the 18th century.
In 1790 James Madison simply re-enacted Queen Anne’s statute (barely edited), so you can hardly suggest that US copyright was a different creature to the one Queen Anne spawned.
Unlike slavery that suspends all liberties from a few, copyright suspends a few liberties from all.
Of course the repeal of (already ineffective) monopolies may seem like the removal of a convenient means of commercial exploitation, but this doesn’t prevent the intellectual worker from exchanging their labour in a now free market. It may well cement the ending of the printers’ traditional monopolies. They’ll just have to sell copies at the market rate instead of a monopoly protected price, i.e. ebooks will be $0 (but that doesn’t mean novels or biographies will be $0).
@Mashuri March 7, 2011 at 2:04 pm
“Mind if we quibble a little about this now?”
Not at all. Are we discussing the means employed or the authority to enforce rights?
“How do you propose enforcing IP for music, video and book publishing firms with things like Bittorrent “violating” them on a massive scale? Do you actually believe it is enforceable in any meaningful way?”
I suppose the first issue is whether the musician has any right that are worthy of enforcement. How do you come down on that?
Second, property has a peculiar characteristic; it is not one “thing”. One distinction between one class of property and another is how easily it can be replicated. For example, land cannot be copied. Therefore the issue you raise is irrelevant to that class of property. Chattel can be duplicated but with some difficulty. For example, it is possible to “copy” a car, but it is pretty expensive without all the factories, suppliers, etc. A painting can be easily duplicated photographically (a recent invention) but is very difficult to duplicate in paint and canvas. Copies made are thus called “forgeries” for this class. Selling a forgery is the ancient common law “passing off”, and finds expression trademark, copyright and patents, today.
Counterfeiting money is a form of passing off. The process of detecting monetary forgeries is a cat and mouse game that follows the advancements of technology on both sides of the issue.
The issue you raise in the context of copyrights is a rather recent development. At one time in the not-too-distant past, the only way to hear music was to listen to live performers. Digital technologies make the cost of copying very low compared to the cost of re-assembling the musicians every time you wanted to hear a song. However that does not change the FUNDAMENTAL ISSUE of whether creators of music have any economic rights to it after it is performed live.
As to how and who enforces these rights, I think it is a rhetorical question. I think you are saying that because technology has made it easier to make copies at a low cost, we should abandon the concept that creators have economic rights to their creations. If they do, then the first line of defense against violating those rights is morality; voluntary compliance. You are clearly attacking that defense.
The second line of defense is control of distribution and contracts. You are aware that the music you are referring to was distributed under the assumption that protectable economic rights to it were enforceable. You cannot say what music you would otherwise have in the absence of IP, but we can agree that if you change the initial conditions, the outcome is likely to be affected.
Since we cannot run social experimentation, we have to speculate. I think it is fair to say that under the current system of distribution and contracts, which imply the existence of copyright laws, there is plenty of music out there subject to copying. It seems to me that in the absence of IP laws, there might be music available through very limited distribution, it might be much more expensive per performance, and there would be fewer people doing it, since people generally do not choose to produce for external economies.
Finally, there is dispute resolution, when all else fails. This runs from personal vendetta through government-sponsored litigation, including the equitable remedies of injunction to stop people from continuing to violate another’s rights and to mitigate further, ongoing injury.
This is the subject I was addressing. Where the authority for enforcement comes from is not all that important. I happen to support government enforcement of laws in courts that have rules and procedures, presumption of innocence and trials by jury. You may prefer some other method, (which by the way all are freely available to you; arbitration, mediation, judicial reference, mob contracts). Some have more cost and risk than others.
“How do you propose enforcing it in the future, as increases in bandwidth and technology benefit those who choose to exploit IP’s natural duplicability over those who try to suppress it?
True. As technology continues to advance, the moral imperatives become more important because clearly they are the most cost-efficient. However, I am confused by your concept of “natural duplicability”. What is “natural” about counterfeiting, for example?
Humans being what they are, the easier and cheaper it is to “look the other way”, the more likely the practice will increase. Against that tide, you have the three lines of defense I outline above. Your sense of morality appears to be that if it CAN be done, then it SHOULD be done, and to oppose that “liberty” is oppressive.
Do I understand you correctly?
“As to how and who enforces these rights, I think it is a rhetorical question. I think you are saying that because technology has made it easier to make copies at a low cost, we should abandon the concept that creators have economic rights to their creations. If they do, then the first line of defense against violating those rights is morality; voluntary compliance. You are clearly attacking that defense.”
This may certainly seem rhetorical from an abstract, formal point of view, but I believe it has significance in an informal, practical way. The reality here is that there is a massive level of non-compliance, despite preachings of morality and threats of punishment, that will only become more massive as technology improves. I think IP proponents are in a similar position as the Pope, for example. He decries the decline of human morality (as he sees it) and has a very large army of preachers trying to convince everyone to comply to what is “moral”, only to find that nobody is really listening — including those in his own ranks.
I’m not attacking your moral defense, Wildberry. I’m just pointing out that it is proving futile and you will only find yourself more frustrated the more you rail against what is naturally happening.
“True. As technology continues to advance, the moral imperatives become more important because clearly they are the most cost-efficient.”
Again, you can count on those moral imperatives to fall on deaf ears, as they are now. What then?
“However, I am confused by your concept of “natural duplicability”. What is “natural” about counterfeiting, for example?”
Are you saying that IP cannot be copied? If not, then you have nothing to worry about. Duplicability is in the nature of IP by the fact that it is duplicable. I know this is a tautology but it seems I need to bring it up.
You do understand that “counterfeiting” has a compound meaning, right? It commonly involves copying and fraud. This was covered elsewhere in the thread but I’ll reiterate: If I copy a painting and try to pass it off as an original work, that’s counterfeiting, and the tort involves the deceived purchaser — not the original painter. The action of mine that violated the purchaser’s property was the fraud and not the copying. If I informed him/her beforehand that it was indeed a copy then no violation happened.
Your sense of morality appears to be that if it CAN be done, then it SHOULD be done, and to oppose that “liberty” is oppressive.
I understand that my argument comes across as an is/ought fallacy. The purpose of my questioning is to see if, with massive amounts of individuals freely choosing to violate IP (despite the potential for punishment), you would question your own fundamental beliefs about property in the first place.
Crosbie Fitch March 7, 2011 at 2:46 pm
“Wildberry, it’s pretty clear that you define property to include state granted monopolies, whereas I don’t.”
The difference in our views appears to be one where you assert only natural rights as the basis for property rights. What about property arising as the result of contracts? Most of the land in California is traceable to Spanish land grants, which were repeatedly sold over the years, eventually landing in the hands of current owners. Is their property right legitimate? There was no original act of homesteading, etc. If you say it was a matter of original capture, then can I in turn capture your land now, assuming I am physically able?
“I limit natural property rights to those things that individuals can naturally, privately possess.”
You seem to hold that I cannot naturally, privately possess an original manuscript of a story that I spent the last year writing. Is that correct? If I publish it, I lose possession to that right to exclusive use?
“Anything beyond that is state supported custody or monopoly, e.g. societies may tolerate individuals to have custody of large tracts of land on condition the land remains publicly accessible.”
What you describe here is a “public policy limitation” on private property rights. If public policy is legitimate here, why not in the realm of copyright and patent?
“In the 21st century you do not have a snowball’s chance in hell.”
I assume you are referring to the difficulty presented by digital copying? I think the market will take care of that, but in the meantime, we are discussing whether copying is morally excusable and therefore legally enforceable.
“They just need to be repealed, because whilst they can no longer achieve monopolies, they can still bankrupt and imprison the innocent. “
This kind of hyperbole confuses me. I have read a number of books and listened to lots of music, seen movies, etc. and I have never been imprisoned nor do I know of anyone who has. What is the problem, exactly?
“Queen Anne’s statute of 1709 was NOT a response to her Stationers’ Company having control over all printing, it was a response to that control ending and a need to restore it, especially given the burgeoning sedition from an uncontrolled press that was plain to see in the decade or so of ‘communications anarchy’ prior to 1709. Daniel Defoe was one of the first to use the term of ‘pirate’ in this period to describe the wildcat printers (and actually welcomed their illicit distribution would they print fair copies).”
This is not critical, just interesting. One of the major changes from QA’s Act was the transfer of the perpetual right held by booksellers, who apparently were in cahoots or often the same people as the printers guilds, to authors for a limited term. This is from Eldred v. Ashcroft, the Supreme Court opinion on the CTEA:
This view of the Clause finds strong support in the writings of Madison, in the antimonopoly environment in which the Framers wrote the Clause, and in the history of the Clause’s English antecedent, the Statute of Anne — a statute which sought to break up a publishers’ monopoly by offering, as an alternative, an author’s monopoly of limited duration. See Patterson, Understanding the Copyright Clause, 47 J. Copyright Society 365, 379 (2000) (Statute of Anne); L. Patterson, Copyright in Historical Perspective 144-147 (1968) [*261] (same); Madison on Monopolies 756-757; Papers of Thomas Jefferson 442-443; The Constitutional Convention and the Formation of the Union 334, 338 (W. Solberg 2d ed. 1990); see also supra, at 5.
“Just as we see copyright used to silence political speech today, so it was also abused in the 18th century.”
Sorry, this is just nonsense. How is copyright used to “silence political speech”? All laws CAN be abused. Defining abuse is part of the challenge in the vigilance of liberty. Crying wolf is not vigilance.
“In 1790 James Madison simply re-enacted Queen Anne’s statute (barely edited), so you can hardly suggest that US copyright was a different creature to the one Queen Anne spawned.”
I didn’t say that. I said that before Anne’s act, the right of copyright existed in the booksellers. Afterwards it existed in authors. Before the term was perpetual, afterwards it was limited.
The US never experienced either perpetual terms or rights in other than authors. That is why the Act was the model for US copyright laws. Censorship had to take on a whole new methodology after that. Our forefathers were aware of that, and having vested the rights to authors, further protected them by the mechanisms of the bill of rights. This was a response to the alternatives, which they knew well. Recall that much of the founding documents were developed in CONTRAST to the British system, while other aspects, especially laws of torts and property, etc, were imported almost directly. QAA was no exception in this regard, I agree.
“Unlike slavery that suspends all liberties from a few, copyright suspends a few liberties from all.”
What are you referring to? It suspends the liberty to avail yourself of other’s property? You have this backwards.
“It may well cement the ending of the printers’ traditional monopolies.”
What are you talking about? What monopolies do printers have?
“They’ll just have to sell copies at the market rate instead of a monopoly protected price, i.e. ebooks will be $0”
I just have to ask; why would any self-respecting capitalist make something available on the market for $0? If there is no return, there is no business. When output does not equal income, what drives human action to produce?
“(but that doesn’t mean novels or biographies will be $0).”
What will they be? If ebooks are $0, why would ebooks of a certain subject be > $0?
Sorry, I’m having some trouble following you.
@Mashuri March 7, 2011 at 3:37 pm
“I’m not attacking your moral defense, Wildberry. I’m just pointing out that it is proving futile and you will only find yourself more frustrated the more you rail against what is naturally happening.”
Look, call it what you will. There is a moral component to this issue. First step: Moral or not to copy? I am not frustrated and I am not railing. I’m telling you what I think.
We live with our own choices. Moral MEANS conduct consistent with one’s sense of ethics. It is unethical to take something and enjoy it when it isn’t mine. I need to get permission. That is the way ethics works. When the moment of truth comes, do I ASK permission, or sneak it out the back door? That is a moral issue. Take your stand.
“Again, you can count on those moral imperatives to fall on deaf ears, as they are now. What then?”
If that were true, we would be doomed. We are not. Therefore not all ears are deaf.
“Duplicability is in the nature of IP by the fact that it is duplicable.”
Tautology or not, IP is not a organism that replicates itself and falls from trees. Duplication of IP is a human act, governed by human rationale. One does it or not. If one does not, it doesn’t get copied. You really mean “cheaply reproducible compared to the initial capital investment required to make the first instance”. That is far from what you imply.
“I copy a painting and try to pass it off as an original work, that’s counterfeiting, and the tort involves the deceived purchaser — not the original painter.
This is factually incorrect. If you copy a painting without authorization from the owner of it, you are infringing on his copyrights to duplication. If you pass it off as an original, the bonafide purchaser has a cause of action for fraud against you for fraud in torts and breach of implied warranty in contracts. All are legal causes of action in your scenario.
“The action of mine that violated the purchaser’s property was the fraud and not the copying. If I informed him/her beforehand that it was indeed a copy then no violation happened.”
Read this again in light of what I said above and see if you still think it is correct.
@ Mashuri March 7, 2011 at 3:58 pm
“…with massive amounts of individuals freely choosing to violate IP (despite the potential for punishment), you would question your own fundamental beliefs about property in the first place.”
No. “Everyone is doing it” is not the basis for moral judgment.
“Look, call it what you will. There is a moral component to this issue. First step: Moral or not to copy? I am not frustrated and I am not railing. I’m telling you what I think.
We live with our own choices. Moral MEANS conduct consistent with one’s sense of ethics. It is unethical to take something and enjoy it when it isn’t mine. I need to get permission. That is the way ethics works. When the moment of truth comes, do I ASK permission, or sneak it out the back door? That is a moral issue. Take your stand.”
We both seem to have taken our stands. Lucky for me, the unraveling of IP is compatible with my sense of ethics.
“If that were true, we would be doomed.”
I totally disagree but, I’m sure you know that.
“No. ‘Everyone is doing it’ is not the basis for moral judgment.”
Just thought I’d check.
Wildberry,
> The difference in our views appears to be one where you
> assert only natural rights as the basis for property rights.
Yes, if you don’t.
> What about property arising as the result of contracts?
Property can be exchanged, but it can’t arise by contract.
> Most
> of the land in California is traceable to Spanish land
> grants, which were repeatedly sold over the years, eventually
> landing in the hands of current owners. Is their property
> right legitimate? There was no original act of homesteading,
> etc. If you say it was a matter of original capture, then
> can I in turn capture your land now, assuming I am physically able?
Let’s stay focussed on intellectual work rather than land.
> “I limit natural property rights to those things that
> individuals can naturally, privately possess.”
>
> You seem to hold that I cannot naturally, privately possess
> an original manuscript of a story that I spent the last year
> writing. Is that correct?
No. Of course you can “naturally, privately possess an original manuscript of a story that you spent the last year writing.”. It’s naturally your intellectual property.
> If I publish it, I lose
> possession to that right to exclusive use?
If you produce and provide a copy to another this doesn’t affect your possession of your manuscript, nor your natural right to exclude others from it.
This is separate from the privilege of copyright, that annuls the right of the recipient of the copy to make further copies without the copyright holder’s permission (who, if sufficiently wealthy, can prosecute).
> What you describe here is a “public policy limitation” on
> private property rights. If public policy is legitimate
> here, why not in the realm of copyright and patent?
There can be a natural/effective limit to the size of an individual’s private domain.
A monopoly requires power vastly beyond that of an individual from the outset.
Via ACTA, copyright lobbyists are now pushing for global harmonisation, i.e. global enforcement of a monopoly.
An entire planet of people willingly deferring their liberty to each and every copyright holder? “Why not?” I hear publishing corporations query in bewilderment.
> but in the meantime, we are discussing whether copying is
> morally excusable and therefore legally enforceable.
Morality doesn’t come into it. In any case, it’s illicit copying that publishers are upset about. Even copyright holders think copying per se is morally fine (did Disney lose sleep over copying Snow White?). That’s why they purport to need copyright – to have the commercial incentive to produce something that can be widely copied for the public’s benefit.
> This kind of hyperbole confuses me. I have read a number of
> books and listened to lots of music, seen movies, etc. and I
> have never been imprisoned nor do I know of anyone who has.
> What is the problem, exactly?
Emmanuel Nimley was sentenced to 6 months imprisonment for iphoning movies at a cinema and uploading the results to the Internet.
> This is not critical, just interesting. One of the major
> changes from QA’s Act was the transfer of the perpetual right
> held by booksellers, who apparently were in cahoots or often
> the same people as the printers guilds, to authors for a
> limited term.
You can compare copyright to prior printing monopolies, but it would be a mistake to infer that copyright was a remedy instead of a reprise. In 1695 the ‘Licensing of the Press Act 1662’ expired. So, but for the Stationers’ Company lobbying an increasingly receptive Queen Anne for the restoration of their control we wouldn’t have had the beneficence of her privilege that gave it back to them in 1709, albeit via a monopoly in each work rather than over all printing. As I mentioned before, Daniel Defoe was one of those who enjoyed that brief moment in history in which there was a truly free press.
There was no need to break up any monopoly. It was simply not renewed and should have been left like that.
> Our forefathers were aware of that,
> and having vested the rights to authors, further protected
> them by the mechanisms of the bill of rights.
The Constitution recognised the author’s exclusive right to their writings.
Jefferson did suggest adding monopolies in literary works to the bill of rights, but Madison did not do so.
The Statute of Anne was simply legislated (as US Copyright) on the assumption of power to do so.
> I just have to ask; why would any self-respecting capitalist
> make something available on the market for $0? If there is
> no return, there is no business. When output does not equal
> income, what drives human action to produce?
Frankly, I don’t think there’s much of a business there either.
> What will they be? If ebooks are $0, why would ebooks of a
> certain subject be > $0?
A novel is an intellectual work.
A book is a typeset copy of an intellectual work.
An ebook is a book that costs very little to produce.
That copies cost next to nothing does not affect the value or market price of an intellectual work.
Manufacturers of copies are going to go out of business.
Authors/manufacturers of intellectual works will remain in business (and will likely do far better than before), but they’re going to have to sell their work to their readers rather than manufacturers of copies (because the latter are going out of business along with their 18th century monopoly).
It is unethical to take something and enjoy it when it isn’t mine. I need to get permission.
Why should that be so, when you’re depriving nobody?
Is it unethical for you to enjoy a beautiful sunset?
I think you just have a screwed up sense of ethics.
Wildberry,
Well, since it looks like your confusion attempts did not seem to have the expected effect, now you switch to the “fanatic mode”: you pretend that taking a specific moral position fixes the logical errors in one’s claims. I am afraid that you fail again: it doesn’t. Is stealing immoral? If it is, then relabelling stealing as “IP” does not make it magically moral.
@Crosbie Fitch March 7, 2011 at 7:11 pm
“Yes, if you don’t.”
No, I don’t believe I do. I can’t see how one can enforce rights against nature. If you are struck by lightning, your “natural” right to life has been violated. Who are you going after?
Rights, like property are a human device. They exist if they are enforceable against infringement by other humans. Outside of that context, “natural rights” has no independent meaning.
“Property can be exchanged, but it can’t arise by contract.”
Are you sure? If we enter a contract by which you agree to pay me $100 and I agree to give you a 10% share of my future business, which at the time of signing is only a plan, do you a property right in that intangible property? You have given me 100 tangible dollars, but I have given you what?
“Let’s stay focused on intellectual work rather than land.”
It is an analogy that is often trotted out in support of the “homesteading” principle of natural rights to property. But OK.
“If you produce and provide a copy to another this doesn’t affect your possession of your manuscript, nor your natural right to exclude others from it.”
That is what I thought. So you don’t believe in IP? IP establishes property rights, in the form of economic rights, to “the work”. Producing a copy to another is an exercise of my property rights. That copy, if the source is mine, is also mine, in the limited sense described by the “rights in the intangible” as intended and defined by statutory code.
Yet you seem to hold that the causality (see my description addressed to Stranger) between the original copy (owned) and the “free” copy (claimed by you) breaks this causal relationship. What is the intervening force that makes the “free copy” the consequence of some other cause than the existence of the original copy?
“This is separate from the privilege of copyright, that annuls the right of the recipient of the copy to make further copies without the copyright holder’s permission (who, if sufficiently wealthy, can prosecute).”
How so? Rights are enforceable. They arise by convention which is ultimately tied to an ethical principle. So what is the ethical principle that entitles the copier to claim a right to own something that can only exist if there is something else owned by another that the copies existence depends upon? That is, the copy is only possible if an original exists first. Doesn’t causality run from cause to effect? Which is the cause and which is the effect?
It appears that the copy is the actual cause of the original. Yet you claim that the key distinction is that the copy has no effect on the original, and this lack of effect is the basis for claiming a property right in the copy. Is that a fair understanding of your claim?
“There can be a natural/effective limit to the size of an individual’s private domain.”
What is that “natural/effective” limit and how does it arise?
It seems to me that the issues of the “private domain” of an individual is ultimately determined by the forces of a free market. To the extent there are interventions in that market, it is less free.
If we presume that a “natural” world has no interventions that disrupt it’s operations, how is the “size of an individual’s private domain” limited, by nature or any other factor?
“A monopoly requires power vastly beyond that of an individual from the outset.”
I’m not sure what you mean here, but I presume it has something to do with your belief that only the power of the State can establish monopolies. I think that is one way, but beyond a monopoly in taxi medallions of ferry routes, this is really not the case.
Monopolies are a natural feature of private property and free markets. It is the very definition of property rights, i.e. the “exclusive” aspect of the rights of ownership.
Mises warned about the danger of conflating that connotation of monopoly with the concept of a “market monopoly”; for example, exclusive control of all wheat in the world. That is a market monopoly.
But as Mises also pointed out, since the consumer rules the economic sphere, even if there was a successful collusion between government and the “wheat monopolist”, people are free to use corn, soybeans, rice, barley, etc. So it is much, much more difficult to pull off than you imply. Even the Soviet Union could not maintain a complete monopoly on the production of corn and wheat. Vast crops of corn were wasted because even in a controlled market as complete as that, the consumers eventually rule.
Via ACTA, copyright lobbyists are now pushing for global harmonisation, i.e. global enforcement of a monopoly.
This is a deep subject; but let’s say as an analogy, that if you have enforceable rights against invasion by a citizen, it makes no sense to expect that a non-citizen can break in at will. That is a rational point of view. If all the countries of the world got together an “harmonized” on the rule of trespass so that this offense was enforced consistently around the world, would you object?
Probably not, which reveals your real objection. Since you believe that IP is an unjust monopoly right granted by corrupt government power, the you are not in favor of this injustice spreading across the globe. So you statement here is nothing more than “global conspiracy” fear mongering. If the cause is just, what’s wrong with global harmonization to implement it?
“An entire planet of people willingly deferring their liberty to each and every copyright holder? “Why not?” I hear publishing corporations query in bewilderment.”
I think this statement adequately illustrates your point of view. You single out “publishing corporations” as the evil villain in your drama. However, as I’ve pointed out to you in our brief discussion of Queen Anne’s Act, the right is vested in the individual author or inventor. What happens from there, hopefully, is merely the operation of a free market, in which authors and publishers have a perfectly legitimate role to play.
If your argument is that the market is not free, and somehow the authors are getting screwed by the publishers, well that is another discussion.
Morality doesn’t come into it. In any case, it’s illicit copying that publishers are upset about. Even copyright holders think copying per se is morally fine.”
That is what Peter Surda says, too. But obviously, all acts have components subject to analysis from different frames of reference. At the root of all laws, ideally, there is an ethics that people understand and believe in. Threat of legal punishment is one social mechanism for encouraging individual conduct to conform with those ethics. Religion is another. Philosophy is another.
Laws which are immoral do not last long, from an evolutionary measure of time. Therefore, morality definitely comes into it at some level of human rationalization, which precedes human action.
“Emmanuel Nimley was sentenced to 6 months imprisonment for iphoning movies at a cinema and uploading the results to the Internet.
Regardless of whether the sentence was reasonable or not, are you asserting that as this guy sat in the theatre and recorded the movie, and then distributed it on the net, he was acting morally the whole time? He was “liberating” the movie and setting if “free” to the deserving masses? What, precisely is your case for claiming injustice here?
“There was no need to break up any monopoly. It was simply not renewed and should have been left like that.”
We seem to have a slightly different reading of the history, but it is not that critical to the discussion.
The Constitution recognized the author’s exclusive right to their writings.
Jefferson did suggest adding monopolies in literary works to the bill of rights, but Madison did not do so.
The Statute of Anne was simply legislated (as US Copyright) on the assumption of power to do so.
Again, we have a slightly different view of the history. The Constitution only enumerates Congress power to grant IP rights for a “limited time”. The common law and original Copyright Act set out how this was done. Like the Statute of Anne, the congress choose to vest those rights in the authors and inventors directly, and to limit the term, which has been (incorrectly) extended a number of times.
The power to do so was not assumed, it is enumerated, which is supposed to operate as a limitation of power.
I don’t see how the form of medium or the subject matter of the work has much to do with how rights in them will fundamentally change. You may be right about the demise of books, but I want to remind you that the same claim was made about cinemas when video tapes came out, and Bill Gates said that we will never need more computer storage that 10MB. Free markets seem to have the capacity for surprises.
None of us are smart enough to predict the future.
“Are you sure? If we enter a contract by which you agree to pay me $100 and I agree to give you a 10% share of my future business, which at the time of signing is only a plan, do you a property right in that intangible property? You have given me 100 tangible dollars, but I have given you what?”
Absolutely perfect example that Wildberry is nothing more than a bullshit artist, intent on wasting peoples’ time.
@The Fresh Prince of Darkness March 7, 2011 at 12:30 pm
“You really think that to claim that the air in the scuba diver’s tank is scarce, that is to say, the diver’s use of it precludes someone *else’s* use, entails an abstract concept? How is it “abstract” to point out that if someone else *could* use that air without precluding the diver’s use of it in any way, then it would be meaningless to speak of that air as being ownable?”
I’m not sure you take criticism all that well, but let me give it a shot.
Air is scarce. Try breathing in outer space or underwater. However it is in the public domain (and therefore subject to the tragedy of the commons problems). Yet some of it can be captured and put in a tank. By the rule of capture, the air now belongs to the capturer.
There is plenty of air left for others to breath, so it is also non-scarce in the way IP opponents use the term, because there is no rivalry over its use. People still have their own air to breath. This seems to be some form of contradiction. Peter?
The containment device (tank) is clearly property that can be owned. If something from the public domain (air) is captured and through the application of other capital goods, placed in the tank, then no one would have a better title to it than the tank owner. He can claim exclusive use to it as long as it is contained in his tank. After a time, he breaths it in and it re-enters the public domain as bubbles of air.
Since “ownership” means “exclusive use, dominion and control” we can say that the air in the tank is owned. Air is ownable if it is captured and contained by privately owned means. But there are limits to this ownership right. One cannot (except perhaps in a Batman fantasy; Peter?) attempt to capture ALL of the air in the world. That would be a monopoly in air, and quite different than a monopoly in this particular tank and the air in it.
If you are wondering, this is an analogy. IP rights are not different than any other rights in property. They arise through a combination of capture, creation, labor and capital.
“They arise through a combination of capture, creation, labor and capital.”
Interesting. How, exactly, do they (rights) arise in this manner? How does this process work?
This should be really amusing.
Privacy isn’t a sound foundation for IP rights. If I see your sculpture, or acquire your book, and then copy it in the privacy of my home, and sell it to someone else later, in the privacy of his home, I do not violate the privacy of the originator of the work.
Indeed, if this person tries to figure out what I am doing, he would have to do so by violating *my* privacy.
Granted, if I make a condition to someone, that I will not recite a poem unless they promise not to disclose it to anyone else, if that person later recites the poem, he is in violation of a contract–but I wouldn’t consider that a violation of privacy. And I *certainly* won’t consider it a violation of privacy if someone walking by heard the poem, because the person was reciting it so loudly that I couldn’t *help* but hear it, and I recited it later, I wouldn’t be violating that person’s privacy at all. And *that* is because it is a well-known maxim, that anything that’s made public, cannot be claimed by the sphere of privacy.
Hi chaps,
A bit late to the discussion, however, here are my thoughts.
I own my own mind and body. They are my property.
I own the production of my mind and body: it [production] is my property.
An [original] idea, is my property.
The idea is a capital good.
I exchange my capital good for money or other goods.
The purchaser, combines my capital good with his own [property] capital goods.
A product is created. A book.
The Book = Idea [capital good] + capital goods = Product [consumer good]
If I take the book, and disaggregate it back into an idea + capital goods, and then recombine the idea with my own capital goods, what have I actually done?
I have taken a paid for idea, which now has ownership, and has been transformed into a consumer product through the addition of capital goods, and simply taken someone else’s property through disaggregation of an already existing product, and mixed it with my own capital goods, to form a competing, although different product.
To my mind that is theft of owned property.
Copyright exists as a remedy in law, for theft of property, that originated as IP.
jog on
duc
This type of argument will make sense to IP advocates but I don’t know why there is all this soul searching for the foundation of something that was always seen by it’s original state advocates as being about creating a monopoly or privilege for creators. They made it quite clear from the beginning their intentions were utilitarian, and yet nowadays everyone has this strong desire to turn this into some kind of a natural right despite the fact it was founded explicitly as a positive rather than negative right.
I know some will come back and say to me that the founders weren’t right about it not being a natural right or something, but this is not a terribly appealing argument since so many of those proponents of IP end up proposing extremely similar forms of IP including with limited terms/etc. These propositions make sense in a utilitarian framework, but absent that seem quite ridiculous.
That said, I don’t see anything that you have here that refers to a limited timeframe. At the same time I don’t see anything in your statements that limits the scope of “Idea” present to create the book. So are you saying one sentence is enough to constitute a book? One word? How much is required to be a book? At what point do you decide an idea is ownable and when is it not ownable?
You refer to “disaggregation” but this is merely your way of seeing the process. In reality there is no “disaggregation” at all. If I copy something I am creating the same pattern previously present in something else into the physical medium that I possess. There is no “disaggregation” because this implies some sort of breaking up of components that doesn’t exist.
This kind of pseudo-analogy is really counterproductive to clear thinking in my opinion.
Matt,
You raise a number of points:
[i] With regard to timeframe, in the context of copyright, why would there need to be any timeframe limitation at all? If I own property, it remains in my ownership until I either give it away [gift] or sell it [exchange].
[ii] As to how much, or what constitutes a book, the answer lies in the free market, which is whoever is willing to exchange money for my idea; be it a sentence, a word, or a full length novel. It is ownable when a second party contracts for ownership.
[iii] As regards disaggregation, I would disagree with your assessment. A book is composed of discrete elements, or capital goods, combined to form a product. The idea, in the form of capital goods were purchased, with ownership passing to the purchaser, who further combines them with additional capital goods to form the product.
You say copying the pattern from a book into your own medium involves no disaggregation because this implies some form of breaking of components that doesn’t exist – clearly the components do exist: the idea [story] is a capital good, as are the printing press, labour, paper, ink, advertising, logistics, management etc, have all combined to bring you a complete product that has a value assigned by the consumer.
By isolating the idea, which belongs to the contracting purchaser, you remove a part of the product, the part that carries the vast majority of the value. To my mind that is theft of property.
What justification can you provide that this is not the case?
jog on
duc
i) Most IP proponents (even the ones who have justifications based on “natural” rights of some kind that I’ve seen here believe the need for limited copyright terms. I see that this is not you, which makes your argument make more sense to me from a consistency standpoint but from a utilitarian standpoint makes it weaker.
ii) This is an interesting statement, because IP covers not just 2nd parties (those who agree with the contract) but also typically those who don’t agree to the contract. Same applies to all other property as well in fact. If I own a house it matters not whether someone signs a contract, I have the power and right to prevent them from entering my house against my will. IP is not like this, and you seem to recognize this with the mention of contract, but how do you explain the binding upon 3rd parties?
iii) The words “removed” and “isolated” have specific meanings in a physical context. If I remove a CPU from my PC it will cease to function. If I isolate the CPU from the rest of the PC then it remains outside. The act of copying is neither removing nor isolating, because the original medium still retains the pattern of 1′ s and 0′s it had before I made the copy.
Lets say that I had the power to copy any physical object I wanted to. So lets say I really like the video card you have in your PC. Because I can copy physical objects I simply create a replica of your video card. Would it be appropriate to use the word “remove” or “isolate” in regards to your video card in this context? If so why? I don’t see how, your video card is still there, and now I have a copy.
Of course in reality we can’t copy physical objects like that, but we can copy patterns.
Mathew,
It is not about making a copy (the term ‘copyright’ notwithstanding), it is about refusing to adhere to the terms imposed on the use of the work by its owner.
If I am a car dealer, and I am prepared to sell you a car for 25% of its price on the condition that:
(i) you come to collect it naked and whistling Bach’s Mass in B-minor;
(ii) you undertake to never ever resell it to anybody;
(iii) you undertake to only drive it alone and to never ever have passengers in the car;
is there a problem if I want to enforce these terms if you accept the offer?
What copyright laws do is that they set out the default “don’ts” in respect of works that have not been created by people who did not create them. Honestly, it is beyond my understanding how libertarians, not communists, feel alright about taking something which is not theirs against the express wishes of someone without whom this something would have never existed.
Yes; there’s no problem with the first condition, but there are big problems with the second and third. You can’t transfer ownership of the car to me and then expect to control how I use it forevermore; if you have that control, I’m not the owner, you are. You can rent the car to me under those conditions, ending the rental if I carry passengers (obviously I can’t resell it if I don’t own it), but that’s the best you can do. You can’t prevent people changing their minds.
A lot of people don’t understand that natural rights precede and should determine the law that is enacted to protect them.
Most people fail to recognise natural rights and think the argument is simply a matter of persuading King Canute to tweak his arbitrarily determined law until all his courtiers are happy. The peasants will do what the King tells them.
This is why there are so many proponents of privilege and monopoly (on these pages and elsewhere) petulantly petitioning for the preservation of that which cannot be preserved. One cannot enforce a monopoly that can no longer be enforced. It matters not how much money is invested upon the assumption that an eBook cannot be copied – except by authorised publishers. The tide of filesharers laugh at Canute’s command for them to cease copying. But then Canute told his courtiers this would be the outcome. Even so, they still don’t believe, and still insist that Canute should make the command again, but this time with even more feeling.
“If they copy, cut their thieving hands off!”
Life has progressed through copying since 4,000,000,000BC. Homo Sapiens has progressed through copying since 500,000BC. Evidence of mankind’s cultural intercourse remains from 50,000BC. Mankind’s folklore is believed to span ice ages. ‘Lore’ and ‘learn’ come from leornian to tread in another’s footsteps, to follow or copy another’s path. A mere three centuries ago in an act of self-preservation (to quell sedition and ingratiate her press) Queen Anne annulled her subjects’ right to copy each other on the pretext this would encourage their learning from each other. This contradiction in terms is the corruption that the tide of nature will soon leave as a historical misadventure or barely visible bump in the flat sands of mankind’s cultural and technological progress. People are once again freely copying each other, and copying will soon return again as an honourable act we are at liberty and encouraged to do, rather than a crime to be prosecuted and severely punished.
Wake up. Snap out of the consensual hallucination that has you believing you cannot copy, share or improve upon your own possessions simply because a copyright holder has been granted the privilege of prohibiting you from doing so.
When I count to three you will no longer believe in copyright…
ONE
TWO
THREE!
“And you’re back in the room.”
Very eloquently said, Crosbie. It’s like watching the decline of a religion. IP proponents can rail against Natural Law all they want, but all that will do is make themselves, and others, miserable. It is in the nature of IP to be duplicable while it is in the nature of physical property to be exclusive. We can classify IP as property (or even the meaning of the universe, for that matter) and decry exercising its natural trait of duplicability as immoral but we cannot change its nature. We are witnessing, in this information revolution, one of the major milestones in human history, and it is breaking the chains of IP, patent and copyright whether we like it or not.
No general disagreement with your words here Crosbie, was this more in reply to duc than myself? (Just asking due to the way the comments layer here).
Matthew, in this post I’m not so much replying as joining in to offer my explanation in case it is helpful.
A truly great comment.
I own the production of my mind and body: it [production] is my property.
This is meaningless nonsense.
An [original] idea, is my property.
This is an assumption. If you’re going to make it, you’ll have to explain why it should be so (without the previous nonsense-statement).
“When I count to three you will no longer believe in copyright…
ONE
TWO
THREE!”
This is so far the best and most convincing argument against IP!
(Don’t you want to copyright it?)
CF,
I would agree that [your point] natural rights should precede, and determine the law. I would argue Common law, as opposed to Statutory law.
I have tried to demonstrate how an idea is property.
I own my own mind and body. They are my property.
I own the production of my mind and body: it [production] is my property.
An [original] idea, is my property.
If this is not the case, where and how, do you disagree?
You then draw in learning to the argument. Leaning, or copying, following in another’s footsteps, again, I agree. If you are exposed to knowledge, and you retain it in some manner, you will be able and free to use it. You may even improve upon it. I have no issues with this interpretation at all.
There are some important differences between accumulating knowledge, using it, in whatever manner and copyright protection of property.
[i] By exactly copying a text, and making it generally available, whether for compensation or not, is not learning, and using that knowledge for oneself, or any others with whom you come in contact with.
[ii] Copying is not using the original to inspire the creation of a new property [idea], it is simply exactly reproducing an already existing owned property.
In many ways the music industry has gone the full circle. Beethoven and the other classic composers made their living through performance of their work. There was no record company contract etc.
Along came the record, which allowed scalability to earnings of popular musicians. These outsized earnings were reduced somewhat by cassettes, then came CD’s and to what we have today.
The point being that due to the ability of technology to copy, without the enforcement of copyright, the business model has been forced to evolve back to a greater reliance on performance and other revenue streams, rather than the reliance on copyright, which has become unenforceable.
The written word, was once also performance based, only becoming widely disseminated with the advent of the printing press. Again, to the popular, it allowed scalability of earnings. Technology once again is eroding the power of copyright for the written word.
So my point is this: that while copyright is being circumvented via technology, that does not invalidate the right of property that accrues to an original idea. It simply means that, as a previous poster alluded, a free market will develop for protection of property by some other means.
If this is the case, then the natural rights, or property rights, accruing to an original idea will have been made, and the theory validated.
jog on
duc
@duc March 5, 2011 at 1:55 pm
Although I generally agree with you, I wish to quibble with this:
An [original] idea, is my property.
I have criticized others for implying that mere “ideas” are the subject matter of copyright laws. See my post here today to Kinsella.
If you substitute the more complex concept of “original works of authorship”, then it is clear that you are talking about a “work” and not an “idea”.
Ideas, like the letters of the alphabet, are in the public domain. They are not protectable for all of the good reasons that IP opponents explain. However, their main error is to assert that therefore copyrights and patents are illegitimate because they protect ideas. This is false.
An idea cannot be property as it is not a physical object independently viable. It has to reside in a human mind. You own your own ideas sure, in that no-one can take them from you, but as even Jefferson observes, once you divulge them to another you cannot retract them, nor do you naturally have power over your confidants that you can command them to act as if they’ve forgotten what you’ve told them.
What can be property is an intellectual work: information fixed in a physical medium that can be apprehended by a human being. This is viable without needing a brain to host it. But again, once provided to another, although the physical medium can be repossessed, the idea thus communicated remains with the recipient. Thus intellectual works can be distributed among a few and those few have a natural right to exclude others, but all who are included cannot subsequently be excluded (naturally).
So, sure, you’ve a natural right to exclude others from that which you can naturally exclude them, i.e. the intellectual works in your private possession, but you’ve no natural power whatsoever to give someone an intellectual work AND prevent them from copying it. Even today a copyright holder has no such power. All that Queen Anne granted them was the power to sue someone they could show to have made and distributed copies of covered works without authorisation. An author has a natural right to exclude/prevent others from copying the writings in their possession. Violation of a right is quite different from the infringement of a privilege (a monopoly).
Anyway, the point about rights is that they represent the natural power individuals have. Individuals naturally possess the power and liberty to copy. There was a brief period in mankind’s history in which the facility for mass producing copies of texts was possessed by only a few and thus a monopoly could be granted with the expectation it could be enforced. However, that’s a privilege, not a right (prohibiting all from producing printed copies unless authorised by the privileged). All we see today is that reproduction technology has diffused to all and so the privilege is no longer viable because the proletariat can no longer be dissuaded from employing their facility to infringe it.
This is not a matter of property vs theft, but of privilege vs liberty. In terms of effect, the privilege of copyright is an ex-privilege and no amount of argument can undo this. The only recourse for the monopolists is to dismantle reproduction technology to a pre-Caxton era. All copyright can achieve today is the bankrupting or imprisonment of the fundamentally innocent. Sadistic lawyers and psychopathic corporations can get their rocks off for a few years until copyright is finally abolished.
If this is not the case, where and how, do you disagree?
Here: “I own the production of my mind and body: it [production] is my property.”
Say I dig a hole in the ground. I ask you what you see there (pointing at the place where I was recently digging), and you answer “a hole”. The hole, I think you’ll agree, is a “production of my mind and body”. So is the hole my property? A hole is nothing but absence of material…can I own absence? Let’s say it rains, and the next day I point at the same place and again ask what you see. “A hole filled with water”, says you. Do I still own the hole? (Never mind the water). I assume you’ll say yes. So OK, I can own a hole, and I can own a hole that is filled with water. The water doesn’t make a difference to the “hole-ness” of the hole, any more than the air that previously filled it, right? Presumably I can continue to own the hole no matter what it’s filled with, right? So what if I fill it with the earth I originally dug out, restoring the ground to the same condition it was in before I started digging? Do I still own the hole? How do you even define “the hole” at this point? What’s the difference between digging a hole and refilling it, and not digging at all? Can I own a “hole” I didn’t bother to dig? I suppose that would still be a “production of my mind”…
(What if I dig my hole in your front lawn? Do I still own it? It’s no less a “production of my body”…)
Peter, I’m sorry to inform you that I was passing your front yard recently, and imagined digging it all up, the filling it in (and fixing the lawn). This resulted in a huge dugout that I now own, which is now filled with your yard. Fortunately, I am willing to rent you use of this dugout for only $5/month. I’m sure you’ll agree that this is a very generous offer. I doubt you ever realized how useful such a thing would be for keeping your front yard situated in.
Try that on an IP-supporter, Shay…they’ll surely be happy to pay up!
WB,
Agreed, an idea, after all, is simply a starting point. A “work” I agree is a clearer definition.
jog on
duc
Wb,
Agreed. “Work” is a better definition than idea. An idea is simply a starting point after all.
jog on
duc
CF,
I agree with regard to the word “idea” my error. I also agree [as previously] posted that a “work” is a better definition, and can be regarded as property.
However I disagree that because the ability to circumvent copyright is now widely and cheaply available, that this is a bona fide argument against IP in the form of a work [product]. It simply means that the protection of property in the form of IP requires a free market solution.
There seems to be numerous arguments on the basis that copyright is a privilege or granted monopoly. The assumption seems to be that Queen Anne granted this privilege on a whim. This I suspect is far from the truth. I would imagine that the Crown received payment for this enforcement. In addition, I suspect that the authors of various works requested a solution to the problem of theft in their day. Copyright was the solution that the market came up with.
Today, copyright is insufficient as technology has rendered this solution extinct. The market will in time find another solution: if it doesn’t, eventually you will lose the ability to enjoy newly authored works, save from those that can earn their compensation in another way, a loss leader if you will. Research articles are this type of model currently, they earn their authors prestige, and lead to academic or research positions.
So while I agree that currently individuals possess the power and liberty to copy, they do not possess the “right” to copy: copying is still theft of property, simply, at this point in time, unenforceable. Privilege is simply the model that has become extinct. Again, the loss of privilege is not the “right” to copy.
jog on
duc
Well, actually, individuals having been imbued by nature with the right to copy never actually lost it. Only Queen Anne abridged it via law, thus rendering individuals liable for prosecution should they attempt to do what has come naturally to them and still comes naturally to them.
As to commerce or exchange of work (for money, etc.) this hasn’t been rendered impossible through the natural loss of unnatural monopoly. Artists are still able to exchange their labour for the money of those in their audience who value it. The only ones complaining are publishers (printers) who no longer have a monopoly over the production and sale of copies that now cost nothing to produce. If you think you can sell copies of ebooks that cost $0 to produce at $10 a piece then you’re going to fight like hell to preserve your monopoly irrespective of Queen Anne’s motives. Authors on the other hand have real work to exchange – intellectual work.
The market for copies has ended. The market for intellectual work continues. It’s just that the buyers are no longer printers with a monopoly to exploit, but readers with a thirst for knowledge and entertainment.
There is property in intellectual work, but this means people can’t burgle you and copy your manuscript. It doesn’t mean you can give a copy of your work to someone and prohibit them from making further copies. You can’t weave a basket, sell it, and prohibit the recipient from making a copy. The same applies to a novel. Only copyright, an unethical and anachronistic 18th century privilege, says otherwise.
CF
We seem to agree that intellectual output, into the form of a product, is property. If that is the case then: I can sell my property to whomever I wish, and to whomever values it.
The problem for the author, is at that point, every potential purchaser, becomes a potential competitor. The previous model, with the publisher as intermediary, is increasingly extinct. Therefore, assuming that the author wishes compensation, a new model must emerge for him to be compensated for his exchange of property.
Let’s take your basket weaving analogy: if I weave a basket, and sell it to you, you now know how to weave a basket. You weave your own basket, you own your own capital goods and to them add your own labour. Our two baskets are similar, possibly even identical, or totally different. The addition of your labour is the differentiating factor with regards to ownership of property.
If I sell you a book, and you have capital goods, you substitute copying my labour, for your own labour, thus you steal my property. It is the lack of your differentiating labour, and the use of my labour that highlights the difference in property. This is theft, and should have remedy in law. It was known as Copyright.
Technology, not a “right” has made this possible. Technology has for the moment, made my ability to defend my property, almost impossible. Will this change?
jog on
duc
It’s not just purchasers who are potential competitors. Everyone is an actual or potential competitor. That is a free market. But for archaic privileges otherwise, anyone is free to produce a better mousetrap, whether wholly original or based upon the design of a mousetrap they’ve bought or read about in a book.
Law is about protecting rights. If as a utilitarian you think the protection of rights can be compromised to derogate from some rights in order that you have a commercial advantage, well you’ll have to petition for market regulation/state interference in your favour and/or grants of monopolies peculiar to your industry, i.e. to tie the hands of your potential competitors.
In a free market no individual has a right to compensation for their investment or labour – they have a right to exchange their goods or services (for whatever anyone will offer). Whether a basket maker spends a year researching an obscure weaving technique known only to Greek fishermen, or an author spends a year researching material for a detective novel, it matters not that the purchasers of baskets or books can produce copies and thus enjoy the benefit of another’s investment in research. It’s up to the investor to assure themselves their investment will be recouped. It’s not a matter for the state to bail them out (otherwise I’d like to research a book on cocktails in beach bars around the world) or prevent competition long enough that they have a chance to recoup. It’s nice if you can get such a privilege, but it’s not ethical/libertarian.
Competitors do not steal anything from you when they copy or improve upon the products you have supplied to market. “Stealing another’s customers” is a figure of speech, though I suspect people take it literally.
Anyway, the ‘monopoly is property because it should be’ argument will continue like geocentricity until it’s no longer a useful belief to hold.
Argument will not stop copyright. Reality will (and is).
The more interesting thing we should be doing is figuring out how to do business now that printing, distribution and promotion are services provided at zero cost by one’s best customers.
Clearly, we can’t sell copies to people who are already happy to make them themselves for nothing and distribute them for nothing to those who aren’t yet au fait with modern copying facilities. And whingeing that this isn’t fair won’t help either, nor will bankrupting or imprisoning ‘delinquents’ unaware their liberty to copy has been suspended.
Instead, we have to ask ourselves what business we’re in. Is it selling copies or is it selling intellectual work? If you’re in the business of selling copies such as MP3 files or e-books then the market of gullible/non-cost sensitive people willing to pay $10 for something that costs $0 to produce can’t last more than a year or so. No doubt some will get very rich in this money for old rope business, but it sounds very dubious to me.
The business of selling intellectual work on the other hand seems like it has a great future. We should be able to develop a means by which artists and other intellectual workers can exchange their intellectual work for the money of the thousands who want it produced – without having to go via an anachronistic and ineffective monopoly protected sale of copies qua subscription tickets. http://Kickstarter.com is one. I’ve also had a go a producing what is probably the most sophisticated exchange facility yet, i.e. http://ContingencyMarket.com. All commerce, all exchanges in a free market are voluntary. If a million people want a movie produced, why not let them collectively bid $10 each to commission it? And at the other end of the spectrum, if a hundred people want a blogger to produce another article, why not let them collectively bid a penny each to commission it? See http://1p2U.com.
CF,
I agree with you in regard to improvements made: clearly, this then is a different product, and hence new property rights accrue to it.
I would argue Justice is about protecting rights, Law is simply the tool utilised. In the case of copyright, I feel that the intentions were just. Obviously the law of copyright has been circumvented by technology.
I’ll cut to the chase. I agree that the business of selling intellectual work is the important one. I also can see that the pre-purchase of said work is definitely one way of progressing that solves the problem of the copying of ones work, without any requirement for copyright.
This simply underlines the fact that the intellectual work is in point of fact property, with a potential value, and requires a business model to make it work.
I have no particular axe to grind as far as copyright: my axe was with the protection of owned property. Your solution, while obviously a work in progress, goes a long way to solving that issue.
jog on
duc
It seems that proponents of “intellectual property” like to brandish “fallacies” as though that ought to be the end of the argument. I would propose that the entire premise of “IP” is based on a single fallacy: that ideas are worth something.
Rather than provide empirical data to prove this, I will provide two bits of anecdotal evidence.
Exhibit 1. Ron Garret’s “Top Ten Geek Business Myths“. His blog post can probably be summed up as “ideas have no value whatsoever”. Ron Garret is a former startup founder who is now a venture capitalist. I don’t know much more about him than this.
Exhibit 2. Paul Graham’s essay “Ideas for Startups. I’ll take a single paragraph quote from his essay:
Paul Graham is a founder of ViaWeb, which was eventually purchased by Yahoo!; he currently runs an Angel Investing Fund called “Y Combinator”. He looks for groups of people (two to three in size), and then funds their start-up ideas, and he mentors these groups as they go from idea to viable business.
You could have the best idea and/or patterns in the world, but if you cannot find customers for your novel, or your painting, or your computer program, or your special gadget, you will be a financial flop. If, on the other hand, you have people copying your ideas and/or patterns right and left, but you could convince individuals to purchase those products from you (via good advertising, customer service, reliability, claims to the original, etc), then you will be a financial success.
Or you could be a mathematician, like me. Then you get to work on important ideas (I could think of no other field as important as mathematics!) but be doomed to find your income elsewhere.
To quote Howard Aiken: “Don’t worry about people stealing your ideas. If your ideas are any good, you’ll have to ram them down people’s throats.”
So Newton’s universal law of gravitation and his three laws of motion are not worth anything? Claude Shannon’s Mathematical Theory of Communication and his paper showing how to implement Boolean Logic in electronic circuitry are not worth anything? Maxwell’s Equations (the 4 equations that describe electro-magnetic fields and led to the discovery that they propagated at the speed of light) are not worth anything? Watson and Crick’s discovery of how DNA carried the genetic code is not worth anything? Riemannian geometry is not worth anything? Bardeen, Brattain and Shockley’s invention of the transistor is not worth anything? Sadi Carnot’s discovery of the ideal steam engine not worth anything? Josiah Willard Gibbs’ invention of vector analysis is not worth anything? Or his invention of statistical thermodynamics? How about Joseph Henry’s and Michael Faraday’s discovery of electromagnetic induction? Or Tesla’s invention of generating electricity via alternating currents? Or the ideas of Ernest Rutherford, Albert Einstein, Neils Bohr, Erwin Schrodinger, Werner Heisenberg, Louis deBroglie on the quantum nature and structure of atoms? Not worth anything? Hmmm. Interesting hypothesis that. Let’s try a little thought experiment. Imagine what the world would look like without those ideas? Or the mathematical ideas of Euler, Gauss and Fourier? Or Galois? Hint: it would be very dark and brutish. An enviro-nut’s dream. And it would not be very densely populated.
uhh do you not realize that most of these things are considered laws of nature or “too abstract” to receive a patent? This is one of the problems with patent law–it rewards more mundane applications and not these ideas, thus skewing research from basic R&D to more practical applications and gizmos.
Uhhhh, you did not read previous posts. Patent system is obsolete and collapsing. It’s also immoral and wrong. Other than that it’s all right. We agree on that, I think. But you find it hard to imagine IP rights as anything other than state-issued rights, which to me is a contradiction in terms. Privately registered and protected IP rights are a product, not something imposed by state coercion. If innovators, scientists, mathematicians, inventors, artists, et al like them and find that they make their lives more pleasurable and profitable, they will accept them. If not, I’m wrong. I may be but thus far all evidence from the market we are developing tells me I’m not.
“you did not read previous posts.”
more like, could not follow.
“Patent system is obsolete and collapsing. It’s also immoral and wrong. Other than that it’s all right. We agree on that, I think. But you find it hard to imagine IP rights as anything other than state-issued rights, which to me is a contradiction in terms.”
This is an incoherent statement.
“Privately registered and protected IP rights are a product, not something imposed by state coercion. If innovators, scientists, mathematicians, inventors, artists, et al like them and find that they make their lives more pleasurable and profitable, they will accept them.”
I think you don’t know what you are talking about. You seem to think that some private IP system should supplant the current one–but you have no idea how or what the details are–and it should cover things the modern patent system (which you criticize) should not, such as basic laws of nature and abstract ideas. I.e. you want to expand the patent system, even while you say it’s collapsing and immoral.
Check. Typical of incoherent, utterly confused scientistic engineer IP advocates.
Stephan,
Are you saying that “laws of nature” SHOULD receive a patent? If they did, then the entire system of research and basic R&D will be improved?
Of course I am not. I am saying you guys are a bit clueless about what you are even advocating. As I pointed out in detail in Against IP
http://www.stephankinsella.com/publications/#againstip (see pp 23-),
“One problem with the creation-based approach is that
it almost invariably protects only certain types of creations—
unless, that is, every single useful idea one comes up with
is subject to ownership (more on this below). But the distinction
between the protectable and the unprotectable is
necessarily arbitrary. For example, philosophical or mathematical
or scientific truths cannot be protected under
current law on the grounds that commerce and social intercourse
would grind to a halt were every new phrase, philosophical
truth, and the like considered the exclusive property
of its creator. For this reason, patents can be obtained
only for so-called “practical applications” of ideas, but not
for more abstract or theoretical ideas. Rand agrees with this
disparate treatment, in attempting to distinguish between
an unpatentable discovery and a patentable invention. She
argues that a “scientific or philosophical discovery, which
identifies a law of nature, a principle or a fact of reality not
previously known” is not created by the discoverer.”
I.e., to be consistent YOU should favor this; if you do not, you have an ad hoc, unprincipled, arbitrary approach. And if you do, you favor a system that is so obviously unworkable and suicidal that you provide your own reductio.
@Stephan Kinsella March 9, 2011 at 10:25 am
“But the distinction between the protectable and the unprotectable is
necessarily arbitrary.”
OK, so that leaves two options: 1) abolish the very concept of IP or 2) make distinctions between one thing and another, which you call “arbitrary” to the point of being “obviously unworkable and suicidal”, but which I call reasonable distinctions based on sorting things out based on one of the competing objectives of IP laws: access and use of useful inventions and protecting the public domain. (the other is to incentivize certain types of innovation, not ALL innovation).
The fact that we can distinguish between the law of gravity and a jackhammer does not mean any of the things you claim it does.
Wildnym:
““But the distinction between the protectable and the unprotectable is
necessarily arbitrary.”
OK, so that leaves two options: 1) abolish the very concept of IP”
BINGO
” or 2) make distinctions between one thing and another, which you call “arbitrary” to the point of being “obviously unworkable and suicidal”, but which I call reasonable distinctions based on sorting things out based on one of the competing objectives of IP laws: access and use of useful inventions and protecting the public domain. (the other is to incentivize certain types of innovation, not ALL innovation).”
You can “call it” what you want but it does not make it so.
Everyone here knows how to agree with you. That’s no fun.
Although I always enjoy the “Liar! Liar! Pants on fire!” line or argument, the fact is that it cuts both ways.
Most of your supporters here have depended on you for their understanding of what IP law is. That is why so much confusion abounds.
Happy to debate with you on the merits, but the constant need to object to your representations of the simple facts makes that impossible.
@Stephan,
You are looking for order, definitions, system and regimentation even where there is none. You just can not stand arbitrariness. But that is Human Action. Mises wrote a big book on that to lay its foundation but, I think you could have done it in a page heavy on the word market. But then again it would not have been science just social engineering.
I always had this suspicion that you, the patent lawyer one day had just run out of file cabinets, gotten confused so you decided to get rid of them all and invented the non-IP system.
“Andras”:
“You are looking for order, definitions, system and regimentation even where there is none. You just can not stand arbitrariness. But that is Human Action. Mises wrote a big book on that to lay its foundation”
I don’t see what your argument is. These are just lazy tossed off irrelevant murky assertions. Are you saying b/c the world looks this way to you, anything goes? If not, you are saying nothing. If so, you are nihilist. Either way, your comments are useless.
“I always had this suspicion that you, the patent lawyer one day had just run out of file cabinets, gotten confused so you decided to get rid of them all and invented the non-IP system.”
Believe it or not people are flockign to the anti-IP view not b/c of Stephan Kinsella’s personal makeup but b/c it’s so clear, once you look at it, that it’s antithetical to property rights. I was anti-IP by about 1993, just about the time I started practicing it, but didn’t dislike it until about 2000, after I’d had my fill of doing it. My motivations to oppose it had little to do with my own personal practice with it–if that has any bearing on this issue. It’s not “about me.”
@Stephan,
“I don’t see what your argument is. These are just lazy tossed off irrelevant murky assertions. Are you saying b/c the world looks this way to you, anything goes? If not, you are saying nothing. If so, you are nihilist. Either way, your comments are useless.”
We went through this before but you keep ignoring it.
When Mises says markets are unpredictable he does not mean that we are still not equipped to predict it or we are not smart enough. He means it generally. It is not our fault that we are not able to predict it but that is the inherent nature of markets. This is fortunately getting more and more understood.
Similarly, when he says by abolishing patents and copyrights, authors and inventors would be in most part producers of external economies, he means it. He does not say it can not happen. It can but it will have consequences. Similarly to when you go against market forces by force. He does not say it because he does not know and pushes it to the other side. He does know. For him, there was no other side, he wanted a universal description, a law. Not one for an anarchist society but for all societies. Mises correctly traded specificity for flexibility. He allowed for arbitrariness because he knew that is part of human nature.
So when you say Mises was not on the level to comprehend IP correctly when he stopped just short of delineating the solution you are wrong. If you want these people to stay in an internal economy there is no solution. Or I as a scientist would say, this is the solution. This whole IP thingy is arbitrary. This is just a mix of compromises or… social engineering. And even more, it is very fluid as it should be as individual intellectual properties constantly expire and regenerate on a higher and higher level as humanity absorbs knowledge and individual authors and inventors conquer new ones. So you have to accept that the rules can and will change constantly.
Mises’ law includes your solution as well: non-IP is just one extreme, however, with extreme consequences. I doubt that they are as positive as you seem to believe.
Andras,
Even if this was true, Mises apparently forgot something, and so do you. Patents and copyrights are redistributive policies. They have an effect not only on revenues but also on costs. So half of your argument is missing. Just like they have the potential to encourage some inventions and creations, they also have the potential to discourage some others.
@Andras March 9, 2011 at 8:46 pm
Of course Peter is quite right to point out that producing for externalities is only part of the picture.
This is where the Hayek quote Kinsella linked to and I posted comes in. To paraphrase, since we can’t run social experimentation (i.e. to create a world where IP doesn’t exist and see what happens) we have to employ the theories and observations of economics, and so IP is as much an issue for economists as lawyers.
To save some time, Ronald Coase’s landmark paper, the Problem of Social Cost addresses this issue, as well as many others after him.
Since Peter can’t tell you what the cost/benefit actually is, so he is saying that you can’t either. He argues by nullification.
The problem is much worse than even Peter implies. Just like we can’t aggregate market data and say we “understand” what the market is doing, we cannot aggregate the costs of having IP and say we understand those costs. For the same reasons, the subject matters are not static or homogeneous. So it some areas the cost is higher, while in other areas it is lower.
In the net analysis, although I don’t have the data but I’m sure it is available, I would expect that the total cost of IP litigation is far less than the total revenue generated through the sale and distribution of intellectual works. That would make it a net gain inthe cost/benefit analysis. I believe that relationship is verifiable.
What we can say is that despite 200 years of having IP laws on the books, we have somehow managed to muddle our way through a rather impressive period of technological and informational expansion. Somehow, I just don’t see that the sky is falling. It seems reasonable to assume that at least some part of that expansion can be attributed to the existence of IP rights, which directs economic value (income) to the holder of economic rights(output of private means of production). These are concepts of economics, not law.
@Peter Surda,
“Even if this was true, Mises apparently forgot something, and so do you. Patents and copyrights are redistributive policies. They have an effect not only on revenues but also on costs. So half of your argument is missing. Just like they have the potential to encourage some inventions and creations, they also have the potential to discourage some others.”
Forgot? Like everything else in an (internal) economy they are connected. The moment new IP get internalized it can be planned.
On the other hand, by definition, in external economies, there are islands of authors, islands of inventors, islands of investors, islands of managers and islands of manufacturers. Thus islands of individuals!!!! No connection, no co-operation and no … calculations!
Do you still think Mises forgot something?
“The moment new IP get internalized it can be planned.
The fact that you assume IP can be internalized means you aren’t taking into consideration the full effects of IP. As Mises pointed out himself, the effects of central planning (which IP requires) cannot be fully internalized. I would add that the effects of ANY action, so long as they affect more than one person, cannot be fully internalized. IP proponents only like to talk about perceived benefits and not things like opportunity costs. Here’s one example off the top of my head: IP distorts the market by incentivizing the gathering and protecting of information at the cost of acting on and implementing information. There is no way to calculate the true costs or benefits of this system, so utilitarian arguments like this are useless.
@Wildberry,
Finally, after more than 300 postings to this thread, there is a chance to turn the discussion into something productive. Instead of arguing the sterility of non-IP we can turn our attention how to reform it. It would be great to have a new discussion started for this but, I guess, we can not expect this from mises.org .
I agree, of course, there is economics involved. However, I believe, a cost/benefit calculation is a trap. The numbers are so subjective, so easy to manipulate even non-IP can and will do it. (Even while they charge you as utilitarian.)
I think, there are very weak bodies in IP law. E.g., the uniformity of the length of copyright or the patents in IT. I am sure you have a list, too.
However, there are very strong bodies as well. In my field, I think, the system of composition of matter pharmaceutical patenting is exceptionally strong.
These may show directions for further considerations.
Could it be that there are two Wilderries, one claiming that IP is a redistributive mechanism, and the other one that claims that it introduces new rights? That would explain a lot.
@Mashuri,
“The fact that you assume IP can be internalized means you aren’t taking into consideration the full effects of IP. As Mises pointed out himself, the effects of central planning (which IP requires) cannot be fully internalized. I would add that the effects of ANY action, so long as they affect more than one person, cannot be fully internalized.”
Why would IP require central planning? In the US, IP is more than 200 years old and central planning is less than 100 years old, if you count it from the foundation of the FED which counting is very generous. Or you confuse the title system with central planning?
I think you have contradicted yourself in your last sentence.
I agree that there is no point of system cost/benefit calculations though not because it is utilitarian but because numbers and the process are so subjective. How do you add, e.g., the cost of obfuscation, something even under the current system is present but would become a major cost in non-IP. The cost of preventing something can not even be predicted. That is risk analysis in an external system.
Andras,
You are using deceptive language. You make it sound as if there was a vast untapped resource which you are now making useful. But that’s not an accurate representation. There is no untapped resource. It’s other people’s property you want to redistribute. Often these other people are also creators.
If you are obsessed by making people who use your “invention” pay, you can contact them prior to the act of inventing and ask them for a preorder. Or even look for contracts with manufacturers who might be able to reproduce the invention more efficiently than you. If you don’t gather enough money, you don’t have to spend your resources on inventing. It works for other business endeavors so why should IP be special? There is no apriori reason why shifting the burden of this search for potential customers to a different entity or time is supposed to improve anything.
Andras: “Finally, after more than 300 postings to this thread, there is a chance to turn the discussion into something productive. Instead of arguing the sterility of non-IP we can turn our attention how to reform it. It would be great to have a new discussion started for this but, I guess, we can not expect this from mises.org .”
Ahem. http://blog.mises.org/11494/reducing-the-cost-of-ip-law/. My article, and 249 comments.
@Peter Surda,
We went through this so many times.
Once again. Yes, I can contact anyone in a non-IP system. However, there is no way I give out my solution so we will communicate in vague terms. The same way the other “islands” will communicate. There is no way to figure out who is telling what let alone who is the best.
One more thing, it may be their property but they have no clue how to use it best. That is what I offer.
“Or you confuse the title system with central planning?”
I don’t want to get off on a semantic tangent but I lump any “system” forced onto any group of people as a form of central planning. There is only one U.S. Patent and Trademark Office, correct? To have multiple patent offices giving out the same patents to different people would be self-defeating.
“I think you have contradicted yourself in your last sentence.”
Please elaborate. Where is the contradiction?
“I agree that there is no point of system cost/benefit calculations though not because it is utilitarian but because numbers and the process are so subjective. How do you add, e.g., the cost of obfuscation, something even under the current system is present but would become a major cost in non-IP. The cost of preventing something can not even be predicted. That is risk analysis in an external system.”
The very basis of utilitarianism involves cost/benefit analyses, so we can at least agree that any utilitarian arguments for or against IP are effectively useless.
Andras:
“there are very strong bodies as well. In my field, I think, the system of composition of matter pharmaceutical patenting is exceptionally strong.”
Bodies? Hunh?
Anyway, have you actually read Chapter 9 of http://www.dklevine.com/general/intellectual/againstfinal.htm ? They do a great job imploding the common myths about the case for pharmaceutical patenting.
@Stephan,
“Ahem. http://blog.mises.org/11494/reducing-the-cost-of-ip-law/. My article, and 249 comments.”
That is what you meant?
“How should the IP system be reformed? For those with a principled, libertarian view of property rights, it is obvious that patent and copyright laws are unjust and should be completely abolished. FULL ARTICLE by Stephan Kinsella ”
Thanks.
Stephan: “Anyway, have you actually read Chapter 9 of http://www.dklevine.com/general/intellectual/againstfinal.htm ? They do a great job imploding the common myths about the case for pharmaceutical patenting.”
I had this to say to Mashuri on B&L in this very thread before on March 3, 2011 at 7:30 am. (You can help Mashuri.)
“I challenge you to find a single factually true sentence in Boldrin and Levine’s rant on pharmaceutical or medical innovation. Show me one practical application of a breakthrough developed without IP being involved. Find one and we can start talking about logical refutation. Until then the facts will trump everything.
The progress of this industry is painstakingly documented and still B&L’s lies can get hold and even used as foundation in the discussion on IP here. Why?”
Halleluja, I can predict the future!
@Andras March 10, 2011 at 4:14 pm
Probably too much to hope for. It would be helpful, as you suggest, to have an opportunity to talk about it without getting dragged down to “defining our terms” endlessly.
Anyway, I appreciate that you are here.
@Mashuri,
“There is only one U.S. Patent and Trademark Office, correct? To have multiple patent offices giving out the same patents to different people would be self-defeating.”
So you say that the properties in residential and commercial real estates are also centrally planned?
Mashuri: “I would add that the effects of ANY action, so long as they affect more than one person, cannot be fully internalized.”
Where I see contradiction is: Internal economies, or just economies, by definition has more than one person. They affect each other and that is internalization.
On cost/benefit calculations: Although it is not useful to decide on the validity of IP, once you have decided it is good to optimize the system or subsystems.
Moreover, either you accept it or don’t, IP will be always affected by utilitarianism since IP is a social phenomenon.
“I had this to say to Mashuri on B&L in this very thread before on March 3, 2011 at 7:30 am. (You can help Mashuri.)
‘I challenge you to find a single factually true sentence in Boldrin and Levine’s rant on pharmaceutical or medical innovation. Show me one practical application of a breakthrough developed without IP being involved. Find one and we can start talking about logical refutation. Until then the facts will trump everything.
The progress of this industry is painstakingly documented and still B&L’s lies can get hold and even used as foundation in the discussion on IP here. Why?’”
I agree that Boldrin and Levine’s “historical evidence” is insufficient to refute IP, mainly because history is full of too many variables to serve as an economic test lab for any conclusion even close to accurate. Unfortunately, the “facts” you trot out as logical proof fall victim to the same circumstances. No matter how “painstaking” the documentation was, there is no guarantee for its accuracy and it still cannot account for all the variables and immeasurable externalities that have affected its subject. Historical facts can be used to “prove” pretty much anything.
@Mashuri,
I agree on the value of historical data Just make one thing clear. It is good enough for refuting IP but not good enough for refuting the refutation.
On the other hand I just wanted to refute B&L, The liars they are, it was not about IP.
Andras:
“So you say that the properties in residential and commercial real estates are also centrally planned?”
I think I see where you’re coming from. “Central authority” may be a more accurate description.
“Where I see contradiction is: Internal economies, or just economies, by definition has more than one person. They affect each other and that is internalization.”
I think you misunderstand what an externality is. Conveniently, here’s a great article on the very subject posted today:
http://mises.org/daily/5085/Accounting-for-the-Unaccountable-The-Case-of-Externalities
To borrow Predrag’s preferred definition, “[E]xternalities are beneficial or harmful effects of one’s action on others that were not taken into account in the decision to act.” This happens all the time within any given economy. The point I’m making is that they cannot be measured in any meaningful way.
On cost/benefit calculations: Although it is not useful to decide on the validity of IP, once you have decided it is good to optimize the system or subsystems.
Well, this is moot, since I see IP as immoral.
@Mashuri March 10, 2011 at 6:37 pm
Not to speak for Andras, who is more than capable to speak for himself…
I think “externalities” and “external exonomies” are not the same concept.
A transaction within an “internal economy” can have “externalities”. That is unaccounted for, unanticipated or unintended consequences of an action for which cost the exchange did not incorporate.
Air pollution may be an consequence of coal production for which the price of coal does not acount.
A producer of coal, who’s coal does not return to him as income, is producing for an external economy.
Andras,
Indeed. You jump from argument to argument, and after all have been disproved, you just say “it’s arbitrary anyway”. If that’s you argument, why don’t you say it in the beginning and instead hide behind a fraud?
Have you ever heard about NDAs? Have you ever heard about options? These are all facilities that allow you to make money off potential buyers in face of the unknown.
You are portraying your own incapability and lack of imagination as a universal norm. Luckily, plenty of businessmen don’t listen to whiners who complain about the impossible.
If we look at this from a praxeological point of view, then this is just wrong. If you know how to better use their property then them, then you can make a profit by trading with them. If we just look at it from the utilitarian perspective, are you saying that if you know how to use someone’s else’s property better than them, you are permitted to take it from them? Really? Well then so gimme your computer, because I know how to use it better than you.
As a scientist, you should know better than this.
Wildberry,
Whether something “returns” to you as income is foremost a matter of how well your business model fits the distribution of rights in the system. Those two are interrelated.
@Peter Surda March 12, 2011 at 9:03 am
“Whether something “returns” to you as income is foremost a matter of how well your business model fits the distribution of rights in the system. Those two are interrelated.”
Is there any further evidence beyond this response needed to prove that you are not trying to engage in an honest discussion of this issue, or that you are trying to engage in something else?
If there is ANY income, to whom does it flow, the producer responsible for the output, or someone else? If the former, you are describing an economy internal to the producer, if the latter, it is an economy external to the producer.
This distinction has been made plain to everyone, including you. To attempt to argue that this is a function of distribution rights is quite obviously a tautology. It is the existence and assignment of rights which defines the “distribution rights in the system.” Duh!
You are a fraud and I have no further use for you.
Wildberry,
Now we’re back to causality. Causality is omnipresent, even if you restrict your observations only to proximate causality. Just like you can argue that an author is responsible for the unauthorised copy, you can also argue that the copier is responsible for it. Furthermore, even if you concentrate on only one type of market participant (e.g. by using a rhetorical trick and calling him “producer”) and base your argument on that, the question remains what proportion of income from causality should be redirected to him. So the problem is unsolvable even if you assume preferential treatment. You cannot use this argument to shift the rights, because it applies to any definition of rights. You require a normative scale, which of course you haven’t provided.
Wildberry,
There can only be unaccounted for consequences when the given system of rights does not cover them. Since noone here proposes such a system (neither IP proponents nor IP opponents), it would be more accurate to say that the consequences are accounted for in a way that someone does not approve of. For example, the unauthorised copy is accounted for by the property of the material it consists of. Air pollution is accounted for by the property of the lungs of the people breathing it. And so on.
Again, this argument alone cannot be used to defend one distribution of property vis-a-vis a different one.
Let me clarify: these things have no *economic* value. Who would buy them? People will buy or borrow books to learn from them. They’ll talk to friends. They’ll take classes from professors or pay tutors to teach them. In each of these cases, people provide services–either voluntarily, by pay, or both–to share their ideas to others.
But ideas aren’t *worthless*. I value my mathematical learning very much, even though I regret going into heavy debt to obtain it.
The problem isn’t just that these ideas that these ideas have no economic worth. It’s that they are divorced, by time, from their applications. Often by decades, or even centuries. What is the economic worth of the proof that you can’t trisect an angle using a straightedge and compass? Perhaps one will be found in the future, but currently…
Let’s look at another example: there is a paper that I used to base my dissertation on. After some time of reading through it, and studying it, my advisor said “Congratulations! You are now one of probably four people who understand what is in that paper!” Those people would be me, my advisor, and the two people who wrote that paper. With readership like that, how the heck are you going to reward the authors for their hard work?!?
Of course, it’s possible that this paper will prove to be important enough that a century from now, every mathematician, physicist, chemist, and biologist will be familiar with the contents contained in it. After all, it happened to Relativity. But by the time *that* happens, the authors will be long dead, so financial reward will be meaningless to them.
@Alpheus,
The problem isn’t just that these ideas that these ideas have no economic worth. It’s that they are divorced, by time, from their applications. Often by decades, or even centuries. What is the economic worth of the proof that you can’t trisect an angle using a straightedge and compass? Perhaps one will be found in the future, but currently…
And later
“Of course, it’s possible that this paper will prove to be important enough that a century from now, every mathematician, physicist, chemist, and biologist will be familiar with the contents contained in it. After all, it happened to Relativity. But by the time *that* happens, the authors will be long dead, so financial reward will be meaningless to them.”
Let us be clear, this is mathematics, the essence of science. You do it for the fun of it. If you solve practical problems you call it physics, chemistry and biology or computer science. You are watching it from the wrong perspective. If I recall correctly Bolyai/Lobachevsky did not solve any practical problem. They were just one of the many XIX century mathematicians creating non-euclidean geometries. The reason they are famous because later they were found practical.
If you want to be rich go to applied sciences before you become a Unabomber.
I’m interested in creating a new operating system, designing my own computer-aided machining system, and making my own robots–and, while conceivably these can be profitable, I don’t expect them to be. I want to do these things for the fun of them, too, and because I expect there to be rich opportunities to explore connections to mathematics. Who knows: perhaps some of these things will someday be found to be immensely practical?
Now, I admit: I’ll have to find a day job that would give me enough money to eat and sleep, and ideally give me time to pursue these things. But I am not a businessman, and have no desire to become one. To the extent I am interested in pursuing *anything*, it is to have fun. I’ll leave the profit-making to the businessmen (although I won’t mind consulting a business in these aspects now and again).
Wow, jw deming sure knows how to wiki!
Alpheus, you have to find your income elsewhere because without IP rights (privately registered and protected) there’s no market that can turn them into revenue streams. It’s a great tragedy that the individuals who create the most important & valuable property of all are left out of the market. We’re fixing that. But don’t worry because what we are creating will only work if it is accepted on a voluntary basis by most of the scientists and technologists working today. If they find that private IP rights serve their interests, they will accept them. If not, they won’t. Private iP rights are a product not a “natural right” or a legal concept. So if I am wrong (always a possibility) you won’t lose anything that you haven’t already lost. Innovators and scientists and mathematicians are our customers. You will either accept IP rights voluntarily because it is profitable for you in all ways or you won’t. Private IP rights has to work for guys like you or I’m simply wrong. From what I can tell thus far, I’m not wrong. Change is frightening at first. But methinks you will come to love private IP rights. If they don’t make your life easier and more pleasurable, you will reject them. They will not (and cannot) be imposed. BTW, they will pretty much do away with lawyers. Hard to believe, I know. Again, we will either deliver on that or not. Okay, I’m disclosing too much so am going to exit from this discussion. I found most of the “anti” arguments boring and inane and quasi-religious. Yours, Alpheus, I found fascinating because you work in the field. But, you really are thrusting at windmills. State-issued IP rights are dying with the state. The state and state-issued IP rights are obsolete. No need to fight against them. What doesn’t work eventually gets tossed on the ash heap of history. Best of luck in your endeavors which I found, from your limited discussions of them, very cool.
Jw deming,
That’s incorrect, both theoretically as well as empirically. It is not true that without IP the creative people have no revenue stream. That’s just one founding myths of the IP religion. What happens is that the presence/absence of IP causes the relative profitability of types of business models to shift. Merely because a business model based on monopoly rent becomes unprofitable it does not follow that other business models can’t produce similar goods.
A great example is lawyers. The laws are publicly available at low/no cost. If your logic was correct, then it would be impossible for lawyers to earn money.
I have a difficult time finding a “revenue stream” because for at least a decade, I thought I wanted to be a professor. When I started teaching, I realized that I did *not* want to be one–but I had no idea what I would want to do afterward. I’ve been sort-of “floundering” for three years, trying to figure out the best way to obtain a revenue stream, and also have enough free time to pursue my exploratory interests.
I’m confident that, with enough time, I’ll be able to find the right balance. I may even find revenue streams from the works I create! But, if not, I’m not going to lose sleep over it.
If you’re interested in marketing your ideas and creations, look into Gary Vaynerchuk and his work on personal branding. A great idea poorly sold stands little chance in the marketplace. And some mediocre ideas earn billions.
@Alpheus March 7, 2011 at 4:22 pm
Rebuttal:
http://www.nytimes.com/best-sellers-books/overview.html
Counter-rebuttal:
http://www.baen.com/library/
@Alpheus March 8, 2011 at 5:06 pm
OK, this is a good point, but what is it?
The NYT list is just a form of advertising successful books, like Billboard is (used to be?) for music. If you are looking for a book based on popularity, check the list and hit Amazon, etc.
What you offered was just another market phenomenon: relatively unknown authors who are trying to solve the problem of obscurity. They are making a choice about marketing strategies, as is their right and privilege in a free society.
This is not a rebuttal of my point, which is that such decisions, the traditional “NYT paper for $14.95 route”, or the “free, please read me and if you like it its cheap to buy” route, are decisions best left to the entrepreneur who is hawking his own work. He can do that because he owns it, no one has better title to it, and though he may be obscure or red-hot, at least he doesn’t have to focus on defending his title to his own work. After that, let the market work.
That is my view.
I got mixed up in what I was trying to rebut. I ended up rebutting the idea that you can’t make money unless you have a copyright. What I was *supposed* to rebut was the concept that ideas are worth something.
Your claim is that, because those ideas are on the NYT Bestseller’s less, that means those ideas are worth something. Perhaps that is true. Those ideas are valuable today because they are the latest expressions of people that the public likes to read.
If those ideas are valuable, then we could expect them to hold their value over time. Better yet, those titles that are on the top of the list ought to be able to charge a *premium* because they are so popular–that is, the price should be going up, not down! Yet it’s rather interesting that the price of those books stay relatively constant, whether they gain or lower in popularity.
If ideas have value, that value gets expressed in rather funny ways…
“[S]uch decisions, the traditional “NYT paper for $14.95 route”, or the “free, please read me and if you like it its cheap to buy” route, are decisions best left to the entrepreneur who is hawking his own work. He can do that because he owns it, no one has better title to it, and though he may be obscure or red-hot, at least he doesn’t have to focus on defending his title to his own work. After that, let the market work.”
If an author or publisher decides to defend his title, then he *does* have to focus on defending it: no one but the copyright holder has standing to sue someone who violates copyright. Even so, the author hawking his own work doesn’t have as much title to controlling the outlet of his work as you seem to think he does–those who read his work can still do so by checking it out from the library, or even getting it loaned from a friend–and legally the author can do nothing about these things, which are just as bad as an individual copying a book, and giving the photocopy to a friend, in terms of readership.
@Alpheus March 8, 2011 at 7:15 pm
“I got mixed up in what I was trying to rebut.”
Happens to me all the time!
Your claim is that, because those ideas are on the NYT Bestseller’s less, that means those ideas are worth something. Perhaps that is true. Those ideas are valuable today because they are the latest expressions of people that the public likes to read.
Yes.
“Yet it’s rather interesting that the price of those books stay relatively constant, whether they gain or lower in popularity.”
Yes, the power of mass production and the law of sunk costs.
“If an author or publisher decides to defend his title, then he *does* have to focus on defending it: no one but the copyright holder has standing to sue someone who violates copyright.”
Yes, but the primary mission of an author is to write stuff, not sue people. Only in certain circumstances is that ever worthwhile. There has to be a lot at stake.
“Even so, the author hawking his own work doesn’t have as much title to controlling the outlet of his work as you seem to think he does–those who read his work can still do so by checking it out from the library, or even getting it loaned from a friend–and legally the author can do nothing about these things,”
Yes, which is why I say that copyrights are not nearly as awful as Kinsella would have you believe they are.
“…which are just as bad as an individual copying a book, and giving the photocopy to a friend, in terms of readership.”
Not really but perhaps. Like I said, the infringement acts must be injurious enough to make it worthwhile to hire lawyers and submit it to the courts. That isn’t cheap. In any case, I would leave that up to the author, not the reader.
Dear Jacob,
thank you for this comprehensive exposition of anti IP arguments. This is a very interesting topic, indeed, and you offer a very good survey of the discussion. However, I find neither your arguments nor your examples very convincing at all, I am sorry to say.
Let me begin with your examples on copyright: Shakespeare and Beethoven. I agree that a real artist will always “produce” his art no matter whether this is protected by copyright or not. But is it not obvious that publishers endowed with a copyright monopoly can pay artists a better price for their works? This should be expected, at least, when there is competition among publishers. Without being an expert on Shakespeare I would bet that he was unable to earn his living on publishing his plays. He did so rather by running his theatre (for which he wrote his plays). One could well argue that this management task absorbed a lot of time which prevented him from writing more plays for the benefit of later generations.
Similar reasoning holds true for Beethoven. At least for the time roughly after 1808 when he was too deaf to perform as a pianist anymore he would have had an extremely hard time earning his living on selling his compositions. A number of Vienna aristocrats helped him out granting him a solid rent. Again, had the publishers been able to pay him better being protected from “copy-competition” he might have had been able to stand completely on his own legs.
You yourself give a strong argument in favour of IP protection dealing with the pharmaceutical industry. You mention that a lot of R&E is directed into areas with patent protection instead of the searching other areas like natural substances. Doesn’t this phenomenon clearly demonstrate that invention efforts are directed to areas in which you can earn big money? This is exactly the argument in favour of IP, q.e.d.
Let me end with an own example. Let us assume that you spent a lot of time thinking on how to solve the current economic crisis in the US. After a lot of heavy thinking you came up with a brilliant idea, absolutely new, nobody ever thought of that, just great. Now you intend to tour the country holding lectures and cashing in. Unfortunately you forget your manuscript in the library. An honest man brings it back to you but not before having copied the manuscript (really that honest?). Now he tours the country, as well, skimming at least 50% of your market. What do you think of that? According to your reasoning everything is fine. You have your manuscript back. After all, tangible property is the only thing that counts, and ideas are for free as one can reproduce them a no costs. I doubt your comfort with this solution.
Best regards,
Bernhard
Starting a new “stack” for indenting purposes and to forestall Wildberry’s whinging.
@>Wildberry:
As a society? “we”? “have to”? wow.
Nice diversion, but this rambling nonsense does not show that rape is legitimate or that it’s inappropriate to declare one’s opposition to it. And why would I seek a “solution” to rape unless I was first morally opposed to it. why. THe obvious first best solution is for people not to be rapists. Same with the state: it commits aggression; we real libertarians oppose aggression; the solution is for people not to commit or condone aggression, no offense you minarchists.
What are the positive aspects of rape? I fear I will regret asking this.
Rape is all bad. Sorry. So is all aggression.
what else are you interested in?
I never rejecged it “at the outset”. It was the culmination of years of thought. But I realize muzzy headed people like minarchists never like to settle anything.
Since when has “preserving the status quo” had anything to do with justice or liberty? Jesus dude.
In any case it does not matter since IP opponents tend to know IP better than proponents. I, for one, do, despite your silly, petulant and risible comments to the contrary.
You talk like an ignorant monomaniacal jackass. I have not misstated the law. You cannot back up this ridiculous claim.
Because someone smart and decent enough to appreciate the libertarian principles that underpin the anti-IP argument often can see the anarchist arguments too.
To you statists, maybe.
… to who? you guys are always trying to expand the territory of Ip to cover more and more types of ideas.
I doubt it.
horrible
@Stephan Kinsella March 16, 2011 at 1:13 pm
I was hoping for more, but expected your flippant, sarcastic response. My expectations were not disappointed.
I’ll have to take some time and see if there is anything really worth trying to salvage here.
@Stephan Kinsella March 16, 2011 at 1:13 pm
”As a society? “we”? “have to”? wow.”
I thought you lived in Texas? You speak as if you are Crusoe on an island somewhere. Even obstinate, unreasonable, flippant and sarcastic individuals are part of the society in which they live. You are an exception? Society means cooperating humans. With whom would you cooperate when a fellow human is being raped? Not your problem, cause you live on an island? Wow.
*If the solution you offer is unrealistic, unworkable, nebulous, or absent, I’m not sure how much credit you deserve for recognizing rape is wrong. “I am against rape!” is not that helpful unless there is some action taken against it.*
”Nice diversion, but this rambling nonsense does not show that rape is legitimate or that it’s inappropriate to declare one’s opposition to it.”
Nice diversion, but we are talking about the “irrelevance of the impossibility of Ancap”, not rape. That is your example from your article. We apparently agree rape is morally wrong. Now what? “Hey you rapists…stop doing that so I don’t have to invent a state”.
For the record, I am opposed to rape.
THe obvious first best solution is for people not to be rapists.
I thought so. And then? What is second?
“we real libertarians oppose aggression;”
I’m sure you “real libertarians” where tights with a big “L” on your chest, but who doesn’t oppose aggression? Of course aggression is dependent on the distinction between an initial or defensive act, which implies the need to define rights. But let’s leave all that to “Real Libertarians”.
“the solution is for people not to commit or condone aggression, no offense you minarchists.”
And if all men were angles, etc. etc. Do you think you are contributing something here?
What are the positive aspects of rape? I fear I will regret asking this.
Just because you pull my chain doesn’t mean I have to bark. It is easier to be flatly against the state than to discriminate between an ideal and a practice. It is easier to be flatly against IP than to discriminate between an ideal and a practice. It is easier to be against “statists” than to discriminate between anarchism and anything else. It is a lazy and childish way to be. It is equivalent to saying “I hate vegetables” and stomping your feet and holding your breath. Yawn.
“Rape is all bad. Sorry. So is all aggression.
Really? I’ve never figured that out. (eye roll) Rape is always bad, so people shouldn’t do it; problem solved. This reminds me of the old joke about the guy who goes to the doctor and says “Doc, it hurts when I laugh.” And the Doc says, “So, don’t laugh.” Problem solved.
”what else are you interested in?”
Somehow I get the impression you might not be totally sincere.
‘I never rejecged it “at the outset”. It was the culmination of years of thought.”
I’m not referring to your long struggle with Truth. I’m referring to the “culmination” being a definition of rights which assumes away the issue, and then your insistence that anyone who disagrees with you has the burden of using your own narrow framework to “disprove” your argument. Gee, thanks. Sounds like fun. That should keep me busy while you merrily indulge yourself in your own sense of self-importance.
”But I realize muzzy headed people like minarchists never like to settle anything.”
Sticks and stones… See how the conversation settles at the lowest common denominator?
Now was that aggression or not? I’ve heard Buddhists teach aggression by having students throw flowers against a wall. Certainly your conduct is more aggressive than that.
“First, he who advocates a given law–esp. a legislated state law–has the burden of argument.
*I reject this premise. Each side of an argument has the burden to overcome reasonable objections and damning evidence to their case. The fact that I could argue equally that you have the burden of proof since you are the one that is opposing the status quo makes the point.*
The full quote you responded to below was as follows:
*It is unproductive and unreasonable to expect that either side should have to spend time correcting the facts, when they are in plain view. Yet I have complained repeatedly that you misstate the fair reading and operation of the law (infra). Many of your supporters depend upon your expertise to gain a fair understanding of the law you oppose. If you paint a false picture, you are expecting those who know something about the law to overcome first the straw men you construct, and then allow the misinformed to repeat your arguments unchallenged. This is not an honest search for either the truth or justice. It is demagoguery.”
Since when has “preserving the status quo” had anything to do with justice or liberty? Jesus dude.
We are discussing your habit of playing loose with the facts versus an honest search for either truth or justice. If you are willing to play loose with the facts, and allow others to do the same in support of your position, it is ludicrous to say that you have no burden to demonstrate the validity of your assertion, especially when challenged.
You are asserting that IP laws should be abolished on the way to abolishing the rest of the state. Why? Because “ideas are free” and the state doesn’t have the right to use force against me if I choose to violate existing laws which violate my right to those free ideas. Isn’t that your argument?
Well, if IP laws support the notion that “ideas ARE free” and are and shall forever remain in the public domain, then what happens to your argument? So I am asking, is the concept of “freedom of ideas” and “IP law” contradictory in some way? What is it? I have read your work. It is not as you say. How should I address this with you, besides being willing to suffer your childish insults?
“In any case it does not matter since IP opponents tend to know IP better than proponents. I, for one, do, despite your silly, petulant and risible comments to the contrary.”
If it is true, that you know the law, then you should be able to respond with a legal interpretation when asked for it. Your treatment of the “ideas are free” issue is illustrative. If you insist on making claims which contradict the law, and knowing better you persist, then how should one interpret that conduct? That in objecting I must be simply making “silly, petulant and risible comments”? You do not respond with a fair reading of the facts even in this thread, so how do you deny my accusations?
“You talk like an ignorant monomaniacal jackass.”
Non-responsive, counselor.
“ I have not misstated the law. You cannot back up this ridiculous claim.”
Stephan, do the laws of IP protect ideas?
Is one of the goals of IP law to protect the public domain of ideas?
These are yes or no questions. Now is your chance to prove me wrong.
“Because someone smart and decent enough to appreciate the libertarian principles that underpin the anti-IP argument often can see the anarchist arguments too.
The disparagement of anyone who can appreciate the IDEAL of IP as too dumb and indecent to appreciate libertarian principles is typical of your personal style. It is despicable and distasteful, and an embarrassment to the ideal of civil discourse. I object.
“Ideas” is just a synonym for patterns, information, knowledge. IP does in fact grant property rights in some ideas, but not in all of them.
*Ah, isn’t this a rather important distinction?*
”To you statists, maybe.”
And your legal, logical and ethical rationale for why this is NOT important is….?
And just a short time ago, you claimed that your ancap position is not relevant to the argument, yet you raise “statist” here to declare yourself anarchist? Something is wrong here.
“Thank God it does not protect all ideas, but only a subset.”
*This is a pretty weak admission, but let’s run with it. If IP does not protect ALL ideas, then aren’t the subsets of ideas that it DOES and DOESN’T protect a rather important point to clarify?*
”… to who? you guys are always trying to expand the territory of Ip to cover more and more types of ideas.”
It is important to me, for one. If for argument’s sake I can agree that the scope of IP protection is “expanding” with innovation, then we should be able to at least dissect the most obvious and uncontroversial case of copyrights, shouldn’t we?
If someone writes a book, and it is acknowledged as being an original work of authorship and subject to protection under copyright laws, is the law merely protecting ideas? It makes no relevant distinctions here?
Are you saying that a “work” and an “idea” are synonymous under the law? I would love to hear you explain this.
“I doubt it.”
OK. How about you respond to my question above with your best shot. I’m sure we have some IP attorneys out there that would be interested in your response.
* Is an honest, factually consistent, civil discourse on the subject too much to ask?*
Apparently so.
Wildberry,
you are using a non-sequitur again. Rape is bad, therefore we need a state. People sometimes violate other people’s property, therefore we need a state. People deserve to a profit from their artistic creations, therefore we need IP. That’s a logical fallacy. It’s like in the joke where a scientist is cutting the legs off a flea and telling it to jump. After all legs are cut and the flea does not jump anymore, the scientist writes in his journal: “After cutting all the legs, the flea loses the sense of hearing”.
“Society means cooperating humans. With whom would you cooperate when a fellow human is being raped? Not your problem, cause you live on an island? Wow.”
Cooperation is good. It does not imply the collectivist things you said. Cooperation in fact implies property rgihts and respect for each others’ rights–that is, the libertarian idea of non-aggression. And since the state commits aggression by its nature, cooperation and the state are antithetical.
‘For the record, I am opposed to rape.”
Well good for you! But of course this implies you believe a person owns his or her own body. THi is the foundation of the non-aggression principle. If you have a state it invades property rights in bodies. So you can’t have a just state.
“THe obvious first best solution is for people not to be rapists.
I thought so. And then? What is second?”
That’s just a technical problem.
“I’m sure you “real libertarians” where tights with a big “L” on your chest, but who doesn’t oppose aggression?”
Anyone who endorses the state doesn’t, of course–states are aggressive by their nature. Do you seriuosly deny this?
” Of course aggression is dependent on the distinction between an initial or defensive act, which implies the need to define rights. But let’s leave all that to “Real Libertarians”.”
Do you really maintain that the state only engages in “defensive” acts? So, when it taxes me, that’s “defensive”? When it outlaws competition, that’s “defensive”? Orwell alert!
“It is easier to be flatly against the state than to discriminate between an ideal and a practice. It is easier to be flatly against IP than to discriminate between an ideal and a practice. It is easier to be against “statists” than to discriminate between anarchism and anything else. It is a lazy and childish way to be. It is equivalent to saying “I hate vegetables” and stomping your feet and holding your breath. Yawn.”
It’s easier to be flatly against rape than to discriminate between an ideal and a practical amount of rape.
““Rape is all bad. Sorry. So is all aggression.
“Really? I’ve never figured that out.”
If you had, you would have to oppose the state and its aggression.
” (eye roll) Rape is always bad, so people shouldn’t do it; problem solved.”
Identifying aggression as unjust does not “solve the problem.” There are many human responses to the problem that rights can be violated–to the problem of crime. Locks on doors, associating with better people, self-defense, the possibiltiy of penalties for committing aggression. This is just a technical problem.
“I’m not referring to your long struggle with Truth. I’m referring to the “culmination” being a definition of rights which assumes away the issue,”
It doesn’t “assume away” the issue. If you realize there are IP rights in society and wonder if they can be squared with other libertarian principles, the issue is cloudy and murky at first due to the corruption of normative thinking wrought by state legislation and law. But if you pick the issues apart, and develop a clear, coherent understanding of the nature and basis of libertarian property rights, then it becomes clear that IP rights can in no-wise be justified at all. It is not that we need some “practical amount” of IP even though we can’t get the ideal IP system. That is a confused way of looking at it.
Some of your comments here remind me of some great observations by the great Hoppe, in his Introduction to Ethics of Liberty: http://mises.org/rothbard/ethics/hoppeintro.asp — in this piece and others (such as Theory of Socialism and Capitalism http://mises.org/resources/431 and his response to McCloskey http://mises.org/journals/rae/pdf/rae3_1_16.pdf) — where he contrasts Rothbardian type thinking to that of others who do not like “knock-down” arguments, because everything has to always be an on-going, open-ended “conversation”. Modernists have an aversion to any argument that even purports to “prove” something definitive.
As Hoppe writes:
” and then your insistence that anyone who disagrees with you has the burden of using your own narrow framework to “disprove” your argument. Gee, thanks. Sounds like fun. That should keep me busy while you merrily indulge yourself in your own sense of self-importance.”
well, I tend to think people advocating aggression against my body or property or that of my fellow man, need to justify it.
“Now was that aggression or not? I’ve heard Buddhists teach aggression by having students throw flowers against a wall. Certainly your conduct is more aggressive than that.”
See Hoppe comments above.
“You are asserting that IP laws should be abolished on the way to abolishing the rest of the state. Why? Because “ideas are free” and the state doesn’t have the right to use force against me if I choose to violate existing laws which violate my right to those free ideas. Isn’t that your argument?”
No, it’s b/c granting IP rights to you is a disguised way of taking my own property rights away.
@ Stephan Kinsella March 17, 2011 at 8:43 am
Thank you for your illuminating response. I respectfully refuse to be distracted from the main points of contention, but I will follow the road you lay out to get us back to the central issues.
And since the state commits aggression by its nature, cooperation and the state are antithetical.
You continue to raise the Ancap position, despite your claims it is not central to your argument against IP. Do you mean that NO act by an agent of the state can ever be any OTHER than an act of aggression? Do you mean the state cannot be part of society because society means cooperation, and aggression and cooperation are antithetical?
Conclusion: If you are for cooperation, you must be against the state, is that correct?
“ this implies you believe a person owns his or her own body THi is the foundation of the non-aggression principle..”
No need to imply it. We can agree on this.
“If you have a state it invades property rights in bodies. So you can’t have a just state.”
You are saying that the state ALWAYS invades “property rights in bodies” which is ALWAYS unjust, and so, justice and state are antithetical; justice and state cannot coexist. Is this correct?
“THe obvious first best solution is for people not to be rapists.”
Yes, and the obvious best solution for society is for all men to be angles.
“That’s just a technical problem.”
Of course. It is the technical problems of ethics, cooperation, and the assignment and enforcement of rights that we are discussing. It is very technical. It requires careful analysis.
“Anyone who endorses the state doesn’t, of course–states are aggressive by their nature. Do you seriuosly deny this?”
Why, yes I do. Seriously. Let’s carefully analyze your statement. You say “states are aggressive by their nature”. Do you mean in general, in every act, 50-50? In order to evaluate an act for its aggression, one must distinguish aggression. An act even where physical force is involved that is taken in defense of a legitimate right is not aggression. If I could cite a case where the state acts defensively, your premise would FAIL.
If a cop, who is an agent of the state, comes to the rescue of a rape victim and inflicts force on the rapist in defense of the victim, you would have to agree this is a defensive act AND and act by the State. Because it is in response to a prior act of aggression (rape), it is a response (defense) not aggression (initiation of violence). Therefore we cannot say the state is ALWAYS “aggressive in their nature”. FAIL.
If you are saying NOT ALWAYS, then it is necessary to distinguish between aggressive and defensive actions. Defensive actions, whether taken by an individual, a PDA or the State, are all ethically equivalent, correct?
As I said, “Of course aggression is dependent on the distinction between an initial or defensive act, which implies the need to define rights. But let’s leave all that to “Real Libertarians”.”
“Do you really maintain that the state only engages in “defensive” acts? So, when it taxes me, that’s “defensive”? When it outlaws competition, that’s “defensive”? Orwell alert!”
No, I do not make that claim. Yet you claim the opposite, that it is always aggressive? The state, like humans, (in fact composed of humans) is capable of both aggressive and defensive acts. One would have to DISTINGUISH between the two. All one could say in the absence of such a distinction is that the state is CAPABLE of both, like people. To claim that because you believe an act is aggressive (and some might disagree) and so the state should be eliminated, is equivalent to saying that likewise being capable of aggression, people should be eliminated. Does that seem logical or reasonable to you?
Again, DISCRIMINATION between one thing and another is called for. (Pay attention now, we are getting to the issue)
“Identifying aggression as unjust does not “solve the problem.” There are many human responses to the problem that rights can be violated–to the problem of crime. Locks on doors, associating with better people, self-defense, the possibiltiy of penalties for committing aggression This is just a technical problem.
Of course. If the technical problem is not solved by any of these measures and the crime is not deterred or in progress, the technical problem remains unsolved. Any proposal for enforcement, whether the limited state functions of the minarchist or the completely private enforcement scheme of the Ancaps, would require the same ethical distinction between aggressive and defensive acts, don’t you agree?
An act that would be ethically permissible under ancap theory as defensive would not become aggressive simply by defining it by whether it was prosecuted under private or public means. It would be judged on the basis of the ethics of body self-ownership, correct?
An ethical principle rests on universality, not on the nature of the actors subject to it. What is ethical for the individual would be ethical if done by a third party, whether private or public.
This applies equally in the analysis of all rights. If you defend the existence of a right on ethical ground, you cannot apply it one way to one actor, and another to a different actor. The relevant distinction is the basis in ethics from which the right arises.
This is relevant to the issue of IP rights because you defend your opposition to them, in part, on the basis of ethics; the ethics of property rights. If you apply certain ethical principles to chattel or real property, you cannot violate those same principles for IP. It is a matter of distinguishing whether the principle applies or not.
“It doesn’t “assume away” the issue.”
OK, let’s see:
“But if you pick the issues apart, and develop a clear, coherent understanding of the nature and basis of libertarian property rights, then it becomes clear that IP rights can in no-wise be justified at all. It is not that we need some “practical amount” of IP even though we can’t get the ideal IP system. That is a confused way of looking at it.”
Yes it is, but you are introducing the confusion.
The issue is not one of the “practical amount” of IP, which I have never claimed to be the case. It is whether rights in IP can be tied to some ethical principle that “proves” their legitimacy on the basis of that principle. Your principle of property ethics, that only scarce resources are subjects of property rights, ideas are not scarce, and therefore IP is not legitimate property, precisely defines away all contradictory views.
Your very first premise, “only scarce resources can be property” is the foundation of your argument. Let us agree for argument sake that this is true. Scarce means “subject to potential conflict of ownership” because scarce resources cannot be possessed or used by the same individual at the same time.
Something that can be copied, according to you, does not affect the original’s use or availability, therefore it is not scarce. Yet we can clearly trace causality of the copy back to the original. Since a copy cannot exist without an original, it is the property rights of the original that determines whether making a copy without consent is a violation of the owner’s property rights or not.
Yet you argue it is the lack of effect of the copy on the original that justifies the right of ownership in the copy. This is completely backwards. No wonder you are confused.
Does an author of an original work own the original manuscript? Even you argue he does, based on the principle of self-ownership. As long as he doesn’t share his original manuscript with another, his ownership right in his own work is undisputed. If he transfers a copy under contract, the parties are bound to its terms, based on the theory that the owner has the right to specify those terms. However, if somehow the author allows an instantiation of the work to fall into the hands of a party who is not bound by contract, then his property rights to his work evaporates.
Why?
Because “ideas are free” and are non-scarce, and therefore they cannot be owned by anyone.
Everyone has an equal right to them and their own property, and may use them freely. Therefore, to enforce any rights in the work by restricting the use of another’s private property (i.e. paper, ink, etc) is an act of aggression. Relying on government to enforce this non-existent right is an act of aggression because it is an initial act of violence, not a defense of legitimate rights. This is what States do, they make up reasons to visit violence on unsuspecting copiers who are only using their own property and their own bodies as they see fit, as is their right under the principles of self-ownership and private property rights. This is your argument, right?
Well what if we agree that “ideas ARE free” and are and must remain in the public domain, where there use can be freely enjoyed by all? What if we can show that IP laws, as they currently exist and operate, confirms this view? What happens to your argument?
You would have to prove that “ideas” are synonymous with IP, under the law. Can you do that?
You have so far reluctantly admitted that IP only protects “some ideas” but not “all, thank God”. This is your claim, is it not?
In order to sort that out, you would have to prove which ideas are and which are not protectable, and your argument would only be valid for those ideas which are protectable. How could you argue against IP for protecting that which is unprotected? That is nonsense.
In order to deny any rights in IP, you attempt to prove that the law creates property rights in that which is not legitimately the authors. To do so you can only consider those ideas which are protectable under IP laws, and which were not. If you cannot do this, then you must CONFLATE their meanings and blur any distinction between an “idea” and an “original work or authorship”. This is exactly what you do.
If this was not the case, it would be a trivial issue for you to start with the work “Gone With The Wind” and prove that is was merely an idea. In that case, it would not be protectable either by your own theories or by the letter of copyright law. Can you do that?
Let me use your reading assignment to show everyone who is interested, what you do and how you in fact continue to misstate the law and how it operates in order to make your case.
Allow me to summarize:
Hoppe says that Nozick defined an ethics should not purport to definitively proves or disprove anything. He called such a “knock down” theory “morally coercive” and therefore “morally offensive”.
Rothbard comes along and embraces this “coercive philosophy” and says that ethics are coercive by nature because they are the force that requires us to choose between right and wrong. He proceeds to argue his ethics on the basis that they prove the principles he espouses.
Rothbard is a “coercive philosopher” and “He demanded and presented proofs and exact and complete answers rather than tentative explanations, open questions.” He says, “The libertarian must be possessed of a passion for justice” and “[He] should be an abolitionist who would, if he could, abolish instantaneously all invasions of liberty”.
May I presume that you think of yourself as such a person?
“well, I tend to think people advocating aggression against my body or property or that of my fellow man, need to justify it.”
Well I tend to think that if you are claiming a given act is aggression, you should have to prove it. So here we are back at the beginning. We are back to the distinction between the legitimate defense of rights and an aggression which invades liberty. If certain rights exist, defending them is not aggression.
If we conflate the “coercion” of Rothbard’s ethics and the “coercion” of the state, we would, to be consistent, have to advocate that he be abolished along with the state. If we wish to avoid that ridiculous conclusion, we must distinguish between the individual coercion of personal ethics, the social coercion of moral conduct, and the justified and unjustified coercion of the state. To conflate these meanings enables one to logically arrive at a ridiculous conclusion.
Yet you do exactly that in your conflation of “ideas” and “original works”, and built your entire argument upon that appeal to confusion and equivocation of concepts. You know better, yet you persist.
Rights must be asserted and then defended. The first line of defense is ethical; those who share your ethics will contribute aid to the common defense. If that is not successful, it becomes a “technical problem”.
Your solution to the IP “technical problem” is to abolish IP because you claim it violates your ethics of property; “ideas are free” and cannot be owned. Enforcing laws which grant these illegitimate rights is an act of aggression, not legitimate defense. If “ideas” cannot be owned, then enforcing ownership rights is an act of aggression. Since this specific act of aggression is consistent with the states aggressive nature, abolishing IP and the State are wholly “consistent libertarian” goals of voluntary cooperation and liberty. Isn’t that about it?
To quote you from the beginning of this post:
And since the state commits aggression by its nature, cooperation and the state are antithetical.
“You are asserting that IP laws should be abolished on the way to abolishing the rest of the state. Why? Because “ideas are free” and the state doesn’t have the right to use force against me if I choose to violate existing laws which violate my right to those free ideas. Isn’t that your argument?”
So, I ask IF ideas are free, and IP laws SUPPORT that concept, what is your remaining objection? Haven’t you said repeatedly it is because IP creates rights in “free ideas”? We both know that’s not what the law actually says or does, yet isn’t that why you say you oppose IP?
“No, it’s b/c granting IP rights to you is a disguised way of taking my own property rights away.”
The ultimate dodge. You are now abandoning the “ideas are free” line of argument?
Well, we’ve gone this far, let’s break this down.
“Granting IP rights” implies that they come from a grant and have no ethical basis. Yet you agree that an author does have ownership rights in an original manuscript.
“Disguised” implies trying to conceal the actual, true purpose of IP laws. What is that purpose?
“taking my own property rights away”.
So you are saying here that the real purpose of IP rights is to get at your paper and ink? (you have denied it is the access to ideas) Taking your paper and ink, your property, is an act of aggression, and you expect nothing less from the state, and therefore abolishing IP laws is a way to protect the rights of individuals to own paper and ink without fear of aggressive government intervention?
What you actually know but refuse to admit publically is that the property rights are vested in the intangible work, as fixed on the paper. When a copy is made, it is the intangible work that is transferred to your paper. You now claim ownership of it, severing the prior ownership you acknowledge was originally the authors, but now you claim a better title to it than him?
You have previously stated that limitations in the use of property do not affect the rights of property, but merely the actions one may take with it. You explained this with the bat and “head bashing” example. So even in your ethical system, prohibition of copying does not diminish your property rights or ownership, but only what use you may make of your property. If you argue that one such prohibited use is copying, and that this is illegitimate aggression, then what argument do you make for severing the original ownership rights in the author if not for “ideas are free”? How else do you claim better title to the copy than the author?
You once said you don’t need to claim better title, but you assert it and now you must defend it. If you take away the “ideas are free” argument, what is left to argue with?
You appear to be trapped by your own circular and inconsistent logic.
Call out the dogs.
Wildberry,
States by definition aggress against competing protection agencies on “their” territory. That does not mean that every single act is an act aggression, just like when, say, a rapist buys ice cream, it is not an act of aggression.
Exactly my point. To blur that distinction is objectinable.
Wildberry
What distinction are you trying to make exactly?
Sione
“State action” does not equal “aggression”.
State aggression = aggressive coercion
State enforcement = defensive coercion
That the state engages in acts that are beneficial to someone is really not contested. The non-aggressive acts it engages in are only possible because of it’s first aggression in taxing people to pay for it’s “services” and it’s secondary aggression of preventing competition for those same services.
If you say that taxation is voluntary I say you are being foolish, if you say taxation is unnecessary I think you should not call this institution a state at all, but something else and it would in no way be really different than any other voluntary agency (ie: what we call business). The core essence of what makes a state a state is that it is a monopolistic agent that engages in coercion to prevent competition by other would be states.
I see.
So the state is an agency of coercion.
What happens when the subject of the state’s coercion fails be coerced?
Sione
@Sione March 25, 2011 at 9:09 pm
Yes. However the state is not th only agency of coercion. Social conventions might be quite compelling, but are not enforceable by the state. Think “shunning”. That is not a legal right.
The state, thankfully, doesn’t give up that easily. In some contexts you will probably agree with me. I am thankful the state doesn’t give up on the investigation of a murder, for example (in theory).
But you are begging the question of legitimacy. If you are wondering if the state is acting properly in a particular situation, then you should return to the principle they are supposedly enforcing. Depending on our judgment of whether the action is justified in principle, we can make that distinction.
So my point is not to judge legitimacy based on who the actor is (state or individual, or PDA), but rather whether the act is legitimate through the various building blocks of analysis, ethics to law.
That is the issue with IP that I find interesting. All arguments seem to be begging the fundamental question of the principle of legitimacy of limited rights in IP.
Wildberry,
Shunning is coercion?
Wildberry
What usually occurs when the subject of coercion refuses to be coerced by the state is that an application of aggressive force is applied upon that subject. That may start out mild in nature but ultimately it can be severe to the point of multiple killing. The state is indeed an agency of aggression. It has been that way right throughout the history of that institution.
Anyway, that leads, as you say, to the issue of legitimacy. A conventional position is that the state is legitimate in its action when it is doing the things a particular commentator might happen to agree with and it is doing illegitimate acts when it is doing the things that commentator does not agree with. In either case it is rare and unusual for a commentator to make enquiry into the legitimacy of the institution of state itself or the very idea of state legitimatcy. Those are questions which are almost never addressed.
Now, if it is not possible to make a valid case for the legitimacy of state (in other words, to make the case that the state is sovereign over individuals), then no matter what coercion or aggression the state engages in, no matter what the reasons offered, the state is illegitimate and hence so are the actions it embarks upon. The distinction of our commentator becomes irrelevant.
As this relates to IP, unless proven legitimate, the institution of state has no role in dealing with property issues, let alone IP. The anarchist position is that the institution of state is not legitimate and can’t ever be. It (the state) is an immorality.
As for IP itself, whatever rights are to be recognised can only persist if IP is demonstrated to share the attributes of private property. The question to be asked is whether IP is able to be proven to be private property.
Sione
BTW limited rights are really permissions- they are a positive grant made by the soveriegn entity, not a negative obligation derived from a recognition of the nature of man.
@Sione March 26, 2011 at 3:31 am
Aren’t you just describing enforcement? I think you agree that enforcement is not aggression if it is in response to a prior violation of a person’s rights. Enforcement that is carried out by the state is not always automatically aggression, because the assignment of rights and their subsequent violation is a prior distinction that determines whether to categorize an act as either aggression or defensive enforcement. So it is not sufficient to simply say that the state is an agency of aggression, so that what would otherwise be a legitimate act in defense of individual rights is not illegitimate simply because it was prosecuted by a state agent. As you say:
Right.
I don’t think “a particular commentator might happen to agree” is sufficient to distinguish between legitimacy and non-legitimacy, aggression or defense.
Your frame of reference seems to be the Rothbardian Crusoe “man alone”. From this vantage point each individual has absolute freedom to make his own laws, subservient only to the laws of nature.
However, if our frame of reference is “individuals cooperating in a society”, which is the actual natural state of humans, then there must be a system by which individual differences are resolved within a common ethos. Without this common ethos on some level, cooperation is impossible.
This is the basic issue that The Kid Salami is making regarding the division of labor society. Without cooperation and peaceful resolution of conflict, society cannot develop and prosper because it remains stuck at the “survival of the fittest” or “might makes right” levels of primitive existence; what he calls the “hunter-gatherer” social group.
Perhaps, but we are doing that at the moment. Like many of the terms used here, within the ancap frame of reference “state” is given a specific meaning which is not shared by non-ancappers.
I think it is inaccurate to assert that non-ancappers are immune from any potential reflections on the fundamental legitimacy of self-government, how a system of self-government can by idealized and justified within a common ethos, and how the ideas can be corrupted by forces of mercantilism or socialism.
This is an enormous and very compelling subject. It is not reasonable to simply wave away these issues by declaring that “the state is dripping with evil” and therefore all principles and/or ideals of self-government that involve some form of state structure, are illegitimate by default.
I think you are making my case here. It is sufficient, according to you, that we determine if the state is the actor in a given situation, and if so, it is unjust by definition. It may be true that to some extent, the distinctions that an individual commentator makes may be ineffective in a given situation. However, this is not sufficient to support the claim that no individual may hold that one thing is legitimate and another is not. The ability to express and act on those believes are a hallmark of a free society.
However, a large advanced society requires large, advanced systems of conventions and covenants in order to institutionalize the ethical basis for cooperation between the vast majorities of citizens within the jurisdictions of these institutions.
Rights, property and institutions are all human devices. They exist because they have evolved along with the complexity and diversity of society. They are grounded in ideals which embody an ethos, or they eventually fall. Chattel slavery is an example of that in the US.
Yes, I get this. The question is whether a person like you and a person like me can find any basis for cooperation for the purpose of achieving common goals. If so, we are cooperating, and we are members of a common society. If not, then we are not so connected, and we have to maintain an institution of separation, (or in a primitive sense, one must vanquish the other) because our ethos of rights constantly conflict.
As a result, I conclude that the ancap position is not only radical, but fanatical. It is radical because it attempts to return to the roots of our social ethics, and redraw the “ideal” state of social organization in a way that draws conclusions about “right and wrong” which are fundamentally different that those at the basis of modern society.
It is fanatical because this philosophy cannot tolerate even minor differences of opinions concerning these fundamental issues. Therefore, one of the key arguments in the anti-IP camp is the “We have IP because we have the State” line of reasoning, which you just expressed quite clearly.
I on the other hand believe that the road to greater liberty and away from serfdom, is based on cooperation on a fundamental human level. If we understand what liberty is, and we understand that it is being threatened, we can act cooperatively to change the course of destiny. However, if we insist on a view of liberty as “man alone”, then cooperation is not important, or purely voluntary. In my view, this is a good definition of “victim”. Ancappers are victims of their own concepts and ideals of absolute liberty.
I believe this is another attribute of the ancap view, and why ancappers in particular and libertarians in general don’t understand how to “join” others for a specific purpose or limited objective. “Joining” is not an issue of concern for ancappers. However it is a critical function of social conventions of cooperation. We may adjust them over time, but the existence of the institutions of social conventions are a requirement for a “division of labor society” to exist. I support that ideal, but am interested in “getting it right”. That is why I am here.
Yes, this is the key issue in the operation of IP rights, because unless some form of property rights are recognized, an entirely new system is required to insure that producers of intellectual works are not producing for external economies. If it cannot be done, or only done at a very high transaction cost, the incentive to engage in that particular enterprise will diminish. This is based on the Austrian views of Mises. Also, because this is an issue of sociology, we cannot run empirical experiments to test various theories.
This inability to run empirical experiments means that we must rely completely on analysis and reasoning. This is why, I believe, that this topic has so much enthusiasm on this site. On the one hand, IP is not exactly the most burning issue of our times. On the other hand, it is a great vehicle for discussing the foundation of libertarian ethics.
I don’t really understand why the emotions run so high, except perhaps to surmise that this is an attribute of fanaticism, which seems to create an “us” and “them” mentality at a very fundamental level. It is offensive to “them”, of which I am a part.
You and I had this type of encounter, which is unfortunate because I find you to be articulate and reasonable when you are not being rude. I prefer the tone of our dialogue here, and I will do my part to maintain its continutation.
I would respond that all rights are limited, even for Crusoe, who must subject himself to the laws of nature. Rights fundamentally are asserted and then defended. If the defense is successful, then we can say that the person has “earned the right”.
From the viewpoint of a complex social structure, the defense of asserted rights takes on a very broad scope. The evolution of common law is an example of one way this occurs.
Every legitimate right, and therefore every legitimate law, must be justifiable on the basis of some ethical principle. Ironically, both proponents and opponents of IP can make a case for IP rights based on the ethics of self-ownership and privately owned means of production, yet ancappers and other libertarians reach completely different conclusions on this question from that point of departure.
I think I am beginning to understand where, in the argumentation, those points of departure occur. That is good for me and immaterial to you, as it should be. I’m not running for office here, I’m just developing my understanding.
It’s been a pleasure speaking with you.
“Ironically, both proponents and opponents of IP can make a case for IP rights based on the ethics of self-ownership and privately owned means of production”
This is wrong. Self-ownership and private ownership of anything is incompatible with intellectual property rights. Every intellectual property right is a violation of a homesteaded physical property right.
@sweatervest March 26, 2011 at 1:52 pm
I think you missed my point. I understand your argument.
You can also reach the opposite argument with the same principles.
Briefly, no one seems to contest that an author owns his original manuscript. That is sufficient to establish the ethical principles involved here.
You are now departing from my view by insisting that only tangible goods are legitimate subjects of property rights. I hold that both tangible and intangible goods allow for these property rights.
See?
No!?
All you did is say. “I hold that both tangible and intangible goods allow for these property rights”. You merely claimed you can reach the opposite *conclusion*!
“Briefly, no one seems to contest that an author owns his original manuscript. That is sufficient to establish the ethical principles involved here.”
No it is not. Ownership of that manuscript is no different from ownership of the typewriter used to type it up or his house or any other piece of physical property. He does not own the pattern of symbols on the manuscript, he owns the manuscript. Copying the pattern of symbols requires use of the manuscript, which justifiably requires permission from the owner. That observation does not lead one to IP rights. He still cannot compel anyone to pay him if they happen to get a hold of that pattern of symbols. Someone has to violate the author’s right to the manuscript, but he can only be held accountable for stealing a manuscript, and the people who subsequently make copies are not guilty of any property rights violation.
“You are now departing from my view by insisting that only tangible goods are legitimate subjects of property rights”
No, I am saying only *rivalrous* goods are *possible* subjects of property rights. In order for the concept of property rights to exist, there must exist potential conflicts in use, which is what rivalry is. Ideas are not rivalrous, which means one person’s use of an idea does not conflict with anyone else’s use of ideas or anything else. They are non-rivalrous and are therefore non-economic goods and are not subject to market prices or property rights. The market prices/property rights associated with IP goods are actually prices/rights concerning the use of scarce (rivalrous) resources. In the context of patents it is the use of capital goods in manufacturing. In the context of trademarks it is the use of materials to build signs. In the context of copyrights it is the use of playback or recording devices.
It has nothing to do with being a “legitimate” subject of property rights. It simply cannot be a subject. There literally is no such thing as a discussion of property rights in non-rivalrous goods. If a discussion that appears as such is taking place, it must really be a discussion about something else, and it usually ends up being a discussion about property rights in rivalrous goods associated with the non-rivalrous goods in question.
“I hold that both tangible and intangible goods alow for these property rights.”
This is wrong because, as I explained above, there is no such thing as property rights in the context of non-rivalrous goods, and “intangibility” is a sufficient condition for non-rivalry. However you word it, the issue is not over the use of “ideas”, it is over the use of scarce, rivalrous, physical property like manufacturing plants and recording devices. Every IP claim is in conflict with a homesteading or voluntary trading claim to property. Therefore IP is in conflict with all basic ownership rights, all the way down to one’s ownership of one’s body.
In fact, the right to one’s own body is already capable of being directly violated in order to uphold an IP claim. One can use one’s copyright over a song one has written to insist that any performance of that song, in any case, requires the permission of the author. That means people cannot sing the song, even if they have heard it and memorized the melody, and therefore their rights to use their own vocal chords have been violated.
Wildberry,
However, also noone seems to contest that copiers own the material. In the next step, you claim that merely because they own the materials prior to the act of copying does not mean that the author cannot restrict the copiers’ material after copying. But I can turn it around and claim that merely because the author owns the original manuscript, it does not mean that other people may not restrict what the author does with copies. See? Vagueness is pointless.
“I believe this is another attribute of the ancap view, and why ancappers in particular and libertarians in general don’t understand how to “join” others for a specific purpose or limited objective. “Joining” is not an issue of concern for ancappers. However it is a critical function of social conventions of cooperation. We may adjust them over time, but the existence of the institutions of social conventions are a requirement for a “division of labor society” to exist. I support that ideal, but am interested in “getting it right”. That is why I am here.”
I think it is unwise for you to try and speak for a group of people, especially when you are not part of that group.
What you call “joining”, I call giving up. If a certain side of an issue is wrong, then not only is there no good reason to compromise with that position in the slightest, it would be extremely destructive to the cause of the other side to do so. This has nothing to do with being stubborn or uncooperative. We’re not here talking to members of Congress about what actual strategies should be used to change or remove IP laws. This is an economic think tank devoted to a correct understanding of economic problems. That a whole lot of people refuse to think about it is not a good reason for us to give up on our conclusions.
Suggesting that ancappers are refusing to engage in a “critical function of social conventions of cooperation” is pretty silly, considering that they seem to be the only ones that have anything close to the right idea about what a functioning society is, which is voluntary cooperation not state enslavement some people think is needed to protect “author’s rights”, or state enslavement some people think is needed for society to produce enough entertainment to suit their personal needs.
I’ve brought this up so many times and it has been totally ignored. It is painfully obvious that even the attempt to enforce IP is causing so many more problems than it could ever profess to solve. Washington has to act like their laws are enforceable across the globe (that doesn’t bother them, but it sure bugs everyone else), thousands upon thousands of indebted college students are guilty of crimes whose restitution they could never pay for, IP is the main argument being used by the government now to advocate a crack-down on the internet, which is not only terribly expensive but Orwellian in its lust for control over people.
And if we really want to talk about economics, let’s talk about how much it costs to enforce IP. IP may benefit society by increasing production of entertainment and goods that require innovation (much like taxing for roads will increase production of roads, and taxing for healthcare will increase production of healthcare… and we’re the ones called IP communists. It really is funny). By doing so, not only will it divert resources away from other things towards production of those goods, which is ignored in advocating IP on utilitarian grounds (as is usually the case with utilitarian arguments), it produces a new cost for the economy: the enforcement of IP.
How much money will it cost to keep people searching the internet, shutting down pirate sites, hunting down servers in countries that are not under our government’s jurisdiction, hacking onto people’s computers to get records of their files to use as proof of IP violation? How much will it cost to set up licensing programs for production of goods based on patented ideas, to enforce the shutting down of unlicensed production, and to hire a whole staff of people not only to maintain the buildings and land on which patent offices are built, but to work in the patent offices, keeping the records up-to-date? The only way any of this can be paid for is with taxes (or else no one would pay for them). And this is libertarian how?
Do you really believe that this society is better off, having spent all of those resources on the enforcement of IP, even given a possible increase in the amount of associated goods, which most likely didn’t happen anyways because, as I have detailed quite a bit here before, IP *reduces* the incentives to be creative?
You illustrate my points beautifully. Thank you.
Okay, so your points are that IP bankrupts society and anarcho-capitalists understand just as well if not better than anyone what it means to be cooperative and work together?
Or perhaps you’re suggesting that when a person stamps his feet over and over and says, “Nuh uh, nuh uh” then the civilized thing to do is give him what he wants.
“I’ve brought this up so many times and it has been totally ignored.”
The irony is at least not lost on me!
@sweatervest March 26, 2011 at 2:44 pm
Look, I have no beef with you. I’ve read your posts and resonded to some, but I have no interest in addressing the same old arguments, as I have already done so many times before. You are adding nothing new for me to respond to.
Assume I get your point of view. Can you pinpoint the places were we part company, precisely?
Regards,
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