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Source link: http://archive.mises.org/16099/ideas-free-and-unfree-a-book-commentary/

Ideas, Free and Unfree: A Book Commentary

March 18, 2011 by

This book helped me see the world more clearly and understand so much that had previously remained cloudy. FULL ARTICLE by Jeffrey A. Tucker

{ 201 comments }

Daniel March 18, 2011 at 8:42 am

Hey Jeff,

I’m putting this into the epub format, I have done 7 of 10 chapters. Would you be interested in putting it up here at the Mises Institute?

Jeffrey Tucker March 18, 2011 at 10:36 am

sounds great to me!

Wildberry March 18, 2011 at 4:23 pm

Jeff,

There are so many issues I would like to take up with you on this article, but in the interest of time, I’ll highlight this one:


Imitation in economic affairs is essential for development, since nothing is ever perfect right out of the box, and society is constantly changing.

In order to make this an anti-IP argument, you would need to demonstrate that IP laws prevent this from happening. You can only do this by a logical conflation of “ideas” about economic affairs, and the “expression” of the actual business operation of these affairs.

For example, presumably at some time in the past an enterprising person hit on the idea of cooking more than is needed for the immediate family and selling the excess production to those who prefer to paying to cooking; the idea of a restaurant was born. If what you said here was true under IP laws, then for the protected period no one else could own the ideas of “restaurant”. Look around, this is clearly not the case. Any strip mall in American clearly demonstrates the abundant variations on theme. There is little danger that Taco Bell will be confused with McDonalds. Each are unique imitations of the “idea” of restaurant, though each are also completely original “expressions” of the idea.

Likewise by conflating “ideas” with “original works” you claim that under IP laws, “ideas are unfree”. This is a total equivocation and factual fallacy. You are a victim of Kinsella’s propaganda about the non-scarcity of ideas being a reason that the operation of IP laws are illegitimate. They are no such thing, at least for this reason he and you claim.

Peter Surda March 18, 2011 at 5:10 pm

Wildberry,

In order to make this an anti-IP argument, you would need to demonstrate that IP laws prevent this from happening.

Let’s skip over the obvious and let me ask you this: what’s the difference between creating copies and imitating?

If what you said here was true under IP laws, then for the protected period no one else could own the ideas of “restaurant”.

According to current laws, you are mostly right (there is always some sort of exception). However, the example still matches the theoretical justifications for IP that the proponents thereof formulate. You have all the components present: the act which is considered “original” and people who are influenced by it and acting in a similar way. Why should the economic principles underlying the example with a restaurant be different than if the “original” was a book?

There is little danger that Taco Bell will be confused with McDonalds.

If there was such a danger, would that mean that one of them can sue the other? Why? Shouldn’t it be the customer that is the victim?

Likewise by conflating “ideas” with “original works” you claim that under IP laws…

Unless you can show me an example of an idea that is detached from a physical phenomenon, the objection makes no sense.

You are a victim of Kinsella’s propaganda about the non-scarcity of ideas being a reason that the operation of IP laws are illegitimate.

Whether IP laws are legitimate or not is of a secondary importance. What is of primary importance that the proponents thereof cannot provide a coherent theory explaining them.

Daniel March 18, 2011 at 5:52 pm

WB, read the book. I believe you’d find that we are at least a century behind technologically than we would be without IP laws.

And I know the above is a bald assertion (and it’s meant to be), so read the book to find out!

sweatervest March 18, 2011 at 6:28 pm

“You are a victim of Kinsella’s propaganda about the non-scarcity of ideas being a reason that the operation of IP laws are illegitimate. They are no such thing, at least for this reason he and you claim.”

Oh that bastard Kinsella and his propaganda!

I actually reached exactly the same conclusion that Kinsella did before I ever read any of his writings, or the writings of any other anti-IP libertarians. Scarcity, which is more accurately called rivalry, is the reason why property rights exist and how goods become economized.

Over and over I have heard IP proponents say, “nuh uh” to this. Yet none of them have been able to come up with a single example of the use of an idea ever being rivalrous, nor do they respond with their own explanation of why property rights exist.

So easy to condemn, so hard to create.

IP proponents have no property rights theory, they just ad hoc postulate what is wrong with the property rights theories that are presented. Case in point, you simply say, “They are no such thing, at least for this reason he and you claim”, and leave it at that. I beg to differ. Ideas are non-rivalrous, they will always be non-rivalrous, and that means there are no property rights in ideas. That is because rivalry is a necessary condition for conflict to arise over the use of goods, and property rights exist only to resolve conflicts over the use of goods. Where there are no conflicts, this is no property, nor are the property rights. Property is about exclusion, and you simply cannot exercise exclusion over the use of an idea.

“Likewise by conflating “ideas” with “original works””

Once again, as I have pointed out over and over, you make use of a concept that has no definition, which is “original work”. I can already anticipate your response, which is, “I don’t have to define it, the law does that and you can look it up.” Suffice to say this is pretty lame, since it would be trivially easy for you to copy and paste this definition and shut us up for good, of course if it actually existed.

There is no definition of “original work”. You can stipulate definitions all day, but stipulative definitions don’t establish anything, they only clarify one’s use of language. You have never provided a definition of original work that isn’t completely arbitrary, and you never will because it doesn’t exist. Another usual response to this charge, which is even lamer than the previous one, is to say “nothing is ever clearly defined so this isn’t a problem”. I find it difficult to make a serious response to this.

To reiterate, “original work” is an empty vessel of language that gets filled up by those who use it on a per-case basis, differently every time. It has no definition.

Peter Surda March 19, 2011 at 4:15 am

sweatervest,

I actually reached exactly the same conclusion that Kinsella did before I ever read any of his writings, or the writings of any other anti-IP libertarians.

By the way, I reached a precursor to this realisation also several years before I even knew anything about the Austrian School. It was during one of the times when there was an effort to push software patents through the European Parliament. I protested because the introduction of software patents would have expropriated the rights that I had through copyright. What’s the point of software patents when software is already covered by copyright, I asked. It was obvious to me already that these are mutually exclusive, even though I tended to approach economic questions from a utilitarian perspective. Later after being exposed to Stephan’s writings I realised that the same can be said about copyright: what’s the point of copyright when “original works” are already covered by physical property rights? It was a natural evolution.

Even many IP proponents realise this self-contradictions in their claims, just their brains stop in the middle of the argument. Must be cognitive dissonance.

Wildberry March 19, 2011 at 1:07 pm

@sweatervest March 18, 2011 at 6:28 pm

Certainly at this point I am not afraid of reading yet another article or book making the same case on the same arguments.

What I don’t know how to do is to get a response that is actually relevant to what I’m raising. Let’s give you a try.

Yet none of them have been able to come up with a single example of the use of an idea ever being rivalrous, nor do they respond with their own explanation of why property rights exist.

We can discuss the concept of property another time. For now let’s just agree that if you own property, you have monopoly rights in its exclusive possession and use. “Ownership” means “dominion and control”.

Let’s discuss the subject matter of IP, specifically Copyright, as you raise below.
Do you realize that if you argue that “ideas are free”, you are making the EXACT SAME ARGUMENT as IP law does? How do you argue against something for doing exactly what it DOES NOT DO?

I am asking what your basis is for conflating “ideas” and “original work”. If “ideas are free” and IP laws do not contradict that notion, why do I have to come up with an example that tries to prove something that is not true, and is not the subject of IP laws in the first place?

IP proponents have no property rights theory, they just ad hoc postulate what is wrong with the property rights theories that are presented. Case in point, you simply say, “They are no such thing, at least for this reason he and you claim”, and leave it at that.

First, I don’t speak for anyone and no one speaks for me. I you want to take issue with something I said, go for it. Otherwise, leave me out of your generalizations.

My general theme here is the willingness to abandon discretion between one thing and another in order to support a conclusion. It is the fallacy of conflation and equivocation.

Second, I don’t know if you read anything else I’ve posted here, but I reject homesteading as the only POSSIBLE way for property rights to arise. Even if I didn’t, I can’t get you off the notion that “ideas are free” and so ideas can’t be property. Who but you and other opponents claim they are property? Not me.

I beg to differ. Ideas are non-rivalrous, they will always be non-rivalrous, and that means there are no property rights in ideas.

See, I get it. Now make your argument against IP without using “ideas are free”.

Once again, as I have pointed out over and over, you make use of a concept that has no definition, which is “original work”. I can already anticipate your response, which is, “I don’t have to define it, the law does that and you can look it up.” Suffice to say this is pretty lame, since it would be trivially easy for you to copy and paste this definition and shut us up for good, of course if it actually existed.

OK, let’s start with this. This is quoted directly from the Copyright Act.


§ 101. Definitions
“Literary works” are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.
§ 102. Subject matter of copyright: In general
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.

(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 work.

There is no definition of “original work”.

The requirement of “originality” has two facets: First, the author must have engaged in some intellectual endeavor of her own, and not just have copied from a preexisting source. Second, in addition to being the author’s independent creation, the work must exhibit a minimal amount of creativity.

The application of this “arbitrary” standard has been well established in case law. For example see Feist Publications, Inc. v. Rural Telephone Service Co, Inc. 499 U.S. 340 (1991) where it was ruled that white pages listings were not “original” because they lacked the creative component.

Case law also has established that short phrases, slogans, etc. are not subject to copyright protection.

§102(b) is designed specifically in service of one of the two primary objectives of Copyright law; to protect the public domain. To this end, ideas etc. are specifically excluded from protection. In addition, once something enters the public domain, regardless of how it gets there, it can NEVER be removed.

Kinsella says,

“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.

Although this a major waffle, Kinsella does finally admit that there is a DISTINCTION here between the concept of “idea” and IP protection of “(some) ideas”. I am simply saying that that distinction is important. If you are going to oppose IP, do it for what it DOES, not for what it clearly and explicitly AVOIDS DOING.

To reiterate, “original work” is an empty vessel of language that gets filled up by those who use it on a per-case basis, differently every time. It has no definition.

Still think so? If you want to argue against the concept and ideal of IP, just take an original work, say Gone with the Wind, and argue that it is nothing more than an idea, and is therefore exempt from protection, and you will have completely dismantled Copyright legitimacy. Go for it.

You and Peter may be proud of yourselves for anticipating Kinsella’s position and then recognizing your established view in his works, but without reference to what actually exists and how it operates, you are just making stuff up and telling yourself how smart you are to oppose the very straw man you construct. Not exactly an epic accomplishment, IMHO.

The Kid Salami March 21, 2011 at 7:44 am

Scarcity, which is more accurately called rivalry, is the reason why property rights exist and how goods become economized. Over and over I have heard IP proponents say, “nuh uh” to this. Yet none of them have been able to come up with a single example of the use of an idea ever being rivalrous, nor do they respond with their own explanation of why property rights exist.

Your consistent use of the words “them” and “they” is a bit troubling – I will agree it is a lot of fun to attack imagined enemies that exist in your own head, they are much easier to beat that real ones. But it does not really advance the debate much.

As for this sentence which you regard as so self-evident that only obtuse morons could disagree – “Scarcity, which is more accurately called rivalry, is the reason why property rights exist and how goods become economized” – I believe it contains three distinct elemtents, and i disagree with two of them and find the last incoherent.

IP proponents have no property rights theory, they just ad hoc postulate what is wrong with the property rights theories that are presented.

Schulman has a property rights theory – “logorights”. You can disagree of course – I personally don’t favour this approach myself as it happens – but it is a coherent theory and worthy if debate, I would defend that aspect of it. If you do disagree, why not read it and post some comments to demonstrate how he has “no property rights theory” to speak of and how it is “ad hoc” etc. so as to start an actual debate about something concrete instead of pining and howling into the sky about how lame are those who don’t seem to share your absolute 100% conviction that ancap is heaven on earth.

Ideas are non-rivalrous, they will always be non-rivalrous, and that means there are no property rights in ideas. That is because rivalry is a necessary condition for conflict to arise over the use of goods, and property rights exist only to resolve conflicts over the use of goods. Where there are no conflicts, this is no property, nor are the property rights. Property is about exclusion, and you simply cannot exercise exclusion over the use of an idea.

I make no apologies for not being convinced byt this “argument”. Can you precisely articulate your argument for non-ancappers? I’m doing a bit of a survey. You appear to be with Peter, for whom “vagueness” is a big problem – is this correct?

Peter Surda March 21, 2011 at 9:28 am

Kid Salami,

Schulman has a property rights theory – “logorights”. You can disagree of course – I personally don’t favour this approach myself as it happens – but it is a coherent theory and worthy if debate, I would defend that aspect of it.

I respectfully disagree. Schulman’s theory has at least two problems. The first one is that, just like almost all IP proponents, it does not address the problem that it expropriates physical property. The second one, which I have not formulated earlier but referred to in examples and questions, is that that the violations of property depend on the intent, rather than the action, of the potential violator. That’s a big scientific no-no.

The Kid Salami March 21, 2011 at 11:01 am

“The first one is that, just like almost all IP proponents, it does not address the problem that it expropriates physical property.”

It is impossible to “address” this problem with an ancapper.

“The second one, which I have not formulated earlier but referred to in examples and questions, is that that the violations of property depend on the intent, rather than the action, of the potential violator. That’s a big scientific no-no.”

Can you clarify this complaint? For example, let’s start with Kinsella’s words (as usual) from “Causation and aggression”:

“Intent matters because without intent there is no action and without action there is no actor to whom we may impute legal responsibility. If A did not intend to do anything at all, then we cannot determine that A’s actions caused the death of B—because A took no action. Intent is a necessary ingredient in human action; if there is no intent, then there is no action, only behavior: involuntary physical movements guided by deterministic causal relations.”

So firstly, do you agree with Kinsella’s argument? If not, maybe you could say how. If you do agree, how would you square your complaint “the violations of property depend on the intent, rather than the action, of the potential violator”.

Peter Surda March 21, 2011 at 11:45 am

Kid Salami,

It is impossible to “address” this problem with an ancapper.

You misunderstand. All I need is for the IP proponents to admit it.

Can you clarify this complaint?

Hopefully, see below.

So firstly, do you agree with Kinsella’s argument?

I am not 100% sure, but let’s just say for the time being yes.

My point is that the intent cannot determine whether rights are violated. It can only determine who the person responsible is, and/or what the appropriate compensation/punishment would be. That is why, for example, the law differentiates between murder, manslaughter, negligent homicide and so on. Based on Kinsella’s article, you could argue that in case of killing in self-defence it’s the original attacker (who subsequently died) who is responsible for his own death (cue obligatory Terry Pratchett quote about suicide in Ankh-Morpork).

Some IP proponents (e.g. Schulman) argue, for example, that copying for educational or satirical purposes is ok, but not for profit. Why? Should we then be allowed to steal or kill for educational or satiric purposes too? The argument makes no sense.

Wildberry March 21, 2011 at 12:46 pm

@The Kid Salami March 21, 2011 at 11:01 am

I have been following your exchanges closely.

“The first one is that, just like almost all IP proponents, it does not address the problem that it expropriates physical property.”

It is impossible to “address” this problem with an ancapper.

The argument as I understand it is that limiting the use of property for infringing acts of “copying” is an “appropriation” of private property.

First, this depends on assuming that the enforcement is an act of aggression, which requires an assumption that no rigt exists in the “aggressor” in the first place.

Second, it equivocates that “limits on use” equates to “appropriation of property”. As I’ve pointed out, all property works exactly the same, even Kinsella agrees with this, yet he continues to state it this way. A bat cannot be used to bash in my brains. Limiting this use does not mean I have claimed your bat as mine. This argument makes no sense in the fist place, so I don’t know how you could argue against it.

So I agree, to go around this track one more time is idiotic.

Can you tell me where you pulled the Kinsella quote? I have this argument with him earlier using the concepts of actual and proximate cause. What he is talking about here is proximate cause; the connection of an act or object of injury, and the liability for it by a specific person.

Based on this quote, he seems to be contradicting what he said to me. I’d like to run it down.

Regards,

The Kid Salami March 21, 2011 at 1:08 pm

Peter

“You misunderstand. All I need is for the IP proponents to admit it.”

It’s true – of course. But it is a request bit of a “when did you stop beating your wife” type request. If I don’t accept the NAP, then yes I agree that I advocate “aggressive” action against people who have not committed a border invasion. Anyone for a law against, say, blackmail is advocating the same thing. I think that you can’t advocate your view and simultaneously be for an advanced division of labour society.

“My point is that the intent cannot determine whether rights are violated. It can only determine who the person responsible is, and/or what the appropriate compensation/punishment would be….Some IP proponents (e.g. Schulman) argue, for example, that copying for educational or satirical purposes is ok, but not for profit. Why? Should we then be allowed to steal or kill for educational or satiric purposes too? The argument makes no sense.”

I think that’s pretty clear. I don’t agree though, for well documented reasons (I still don’t see anything other than the NAP in a cheap moustache-glasses type disguise), so there is not much more to say until I present an actual coherent theory.

The Kid Salami March 21, 2011 at 1:16 pm

Wildberry

“The argument as I understand it is that limiting the use of property for infringing acts of “copying” is an “appropriation” of private property.”

This is my understanding also. I agree that it makes no sense – it is assuming its conclusion. In fact, it simply IS a conclusion.

“Can you tell me where you pulled the Kinsella quote? I have this argument with him earlier using the concepts of actual and proximate cause. What he is talking about here is proximate cause; the connection of an act or object of injury, and the liability for it by a specific person.”

Paper is here

http://mises.org/journals/qjae/pdf/qjae7_4_7.pdf

It makes sense when read on its own. However, the reasoning contradicts many other things he has written – so if you have other instances, I won’t be surprised.

The Kid Salami March 21, 2011 at 1:24 pm

I stumbled upon this exchange the other day, between Reisman and Kinsella regarding trademarks, which I thought was interesting if anyone wants to read it. Reisman makes a couple of points that I would make myself.

http://blog.mises.org/7409/trademark-and-fraud/

And the scenario he puts to Kinsella involving Oskar Lange made me laugh out loud.

Stephan Kinsella March 21, 2011 at 1:42 pm

“Wildberry”:

Second, it equivocates that “limits on use” equates to “appropriation of property”. As I’ve pointed out, all property works exactly the same, even Kinsella agrees with this, yet he continues to state it this way. A bat cannot be used to bash in my brains. Limiting this use does not mean I have claimed your bat as mine. This argument makes no sense in the fist place, so I don’t know how you could argue against it.

I have explained this already in “The Non-Aggression Principle as a Limit on Action, Not on Property Rights” and “IP and Aggression as Limits on Property Rights: How They Differ“. Take a read; tell me what “you” think.

Can you tell me where you pulled the Kinsella quote? I have this argument with him earlier using the concepts of actual and proximate cause.

I am clear on this too. Actual cause is not a clear concept but you appear to be talking about what is called “but-for” causation; of course this is never sufficient for liability. Otherwise Hitler’s mom is liable for the holocaust. Proximate means “near” which is a metaphor for the legal idea that you have to be “close enough” in some relevant legal sense to the action you cause to be held responsible. It’s another way of saying you are legally responsible, or the legal cause.

Based on this quote, he seems to be contradicting what he said to me. I’d like to run it down.

I said it in my Causation article w/ Pat Tinsley; see my site stephankinsella.com/publication. Of course there is no contradiciton. You just dont grok it yet. You will, you will. You will be assimilated. :)

Stephan Kinsella March 21, 2011 at 2:01 pm

Kid “Salami”:

I stumbled upon this exchange the other day, between Reisman and Kinsella regarding trademarks, which I thought was interesting if anyone wants to read it. Reisman makes a couple of points that I would make myself.

http://blog.mises.org/7409/trademark-and-fraud/

And the scenario he puts to Kinsella involving Oskar Lange made me laugh out loud.

Reisman to his credit tries to grapple with this. He tries in vain to show that if you rearrange your own property to a new shape that is more valuable to you or someone else–that is, you “create” “wealth”–that you have a source of property rights by virtue of intellectual creativity. This is in vain and it contradicts what even rand recognized: as I noted in Rand on IP, Owning “Values”, and “Rearrangement Rights” http://blog.mises.org/11042/rand-on-ip-owning-values-and-rearrangement-rights/ and http://blog.mises.org/14045/locke-on-ip-mises-rothbard-and-rand-on-creation-production-and-rearranging/. I suggest you check these out. Carefully.

I remember, when I gave my talk against IP at a 1999 or 2000 ASC Reisman was in the audience and approached me after, kind of dumbfounded I would oppose copyright. But at least he had an open mind to discuss it civilly, unlike most Randians and IP advocates.

Wildberry March 21, 2011 at 2:22 pm

Stephan Kinsella March 21, 2011 at 1:42 pm

You just dont grok it yet. You will, you will. You will be assimilated.

Yes, resistence is futile. LOL

Wildberry March 21, 2011 at 3:56 pm

@Stephan Kinsella March 21, 2011 at 1:42 pm
This is what “I” think:

First, the flashing of your life in your photo album while I’m trying to read is a little distracting, but whatever….

Second, the very first exchange explains Kid Salami’s comment about why it is impossible to discuss this “outside the circle” of your ancap logical structure.

If IP really were a valid right, then a person *would* have “a right to use *force* against another to prevent them from using *their own property* to reproduce the aforementioned creator’s work”. That’s what the word “property” implies! For instance, let’s say that you own a gun. Let’s say that I own a dog. By virtue of my ownership of the dog, I *do* have the right to use force against you to prevent you from using your own property (your gun) in any way you might wish (e.g. if you wish to shoot *my* dog with *your* gun). Similarly, any property right implies the right to use force to limit what another can do with their own property.

Sure. And if chattel slavery were valid, the whipping of one’s slave would not be aggression. And if pigs had wings they could fly. But chattel slavery is not valid, and pigs do not have wings–and IP is also not valid

Which all amounts to the following type of exchange: “You did too!” “No, I didn’t!” “Did too!” “Nah uh!”, etc. etc. etc.

If IP rights existed, protecting them would not be aggression. If they don’t exist, it would be. Yawn…

Thing is they DO exist (in reality) and you think they shouldn’t. Well we can argue all day, but until you win (we all live in Ancap bliss), they do and they will, and most people see the common-sense principle embodied in them. One day you will wake up and realize you have been living on the dark side, Borg notwithstanding. (Sorry to mix metaphors…)

As for the second link, I select this illustration of the futility of resistance:

It does not assume that ONLY scarce things are property, but it assumes that scarce things ARE property–don’t we all agree on this? The one that is up for debate is property in anything else. My contention is that assigning rights in non-scarce things necessarily undermines rights in scarce things. Since we all agree with rights in scarce things, we should oppose the type of rights-inflation that undermines this.

Surda:
any theory of property restricts the way some people may act.

Let’s be precise here. It is the nature of scarcity that restricts how people may act.

Property is scarce, it is the nature of scarcity that restricts how people may act, so it is the nature of property that restricts how people may act. Right. Glad we got that cleared up.

To distinguish IP from other property, you argue that it is non-scarce. Your argument assumes your conclusion because of your equivocation of “ideas” and “IP”. If we assume that IP is non-scarce because “ideas are free” then I would have to agree with your statement about property in non-scarce things and that IP is not and cannot be property.

However, if we decouple the “ideas are free” argument from the anti-IP narrative, (as you recently have acquiesced that SOME ideas are protected under IP while others are not), then we can see that an original work is NOT synonymous with “idea”. If an original work is distinguished FROM “ideas” in the context of IP laws, then these works ARE scarce by your definition, since their natural occurrence is limited and use is rivalrous. So the whole scarcity argument against IP drops away as soon as you stop equivocating on the “ideas are free SO IP is also free” narrative.

If original works of authorship are scarce, you cannot claim they are non-scarce simply because the cost of copying is rendered low by the use of digital technology. The low cost of copying is all the more reason to recognize the property rights in IP, not to deny them. In contrast, land is impossible to copy. An original manuscript that has never been shared is easy to copy, yet you admit openly that both are property. Therefore ease or difficulty in copying is not the critical distinction between one type of property and another. It is scarce BECAUSE it is subject to exclusivity of ownership; i.e. use and possession. That is merely the definition of property and the rights embodied in its ownership, in general.

You continue to argue that even though the original manuscript is property, and rights to copy can be limited by contract, once a non-party obtains a copy, no matter how this is done, the property rights of the author suddenly vanish! Why? Because ideas are free and ideas are non-scarce, and so to grant property rights in the non-scarce is a reallocation of the property rights of others! Ooops! How did “ideas are free” sneak back into this?

If you abandon the narrative that “ideas are free”, the entire anti-IP argument falls apart. That is why I have been pressing you on it so hard. It is the ultimate fallacy in your case.

Peter Surda March 25, 2011 at 4:22 am

Hello Kid Salami,

I think that’s pretty clear.

What is clear? That it should not be permitted to violate rights for educational/satirical purposes? Well then that invalidates IP as a large chunk of IP proponents define it.

I don’t agree though,

With what?

I still don’t see anything other than the NAP in a cheap moustache-glasses type disguise…

Ok, then should the intent of an action influence whether rights were violated or not?

Peter Surda March 25, 2011 at 6:53 am

Wildberry,

Your argument assumes your conclusion because of your equivocation of “ideas” and “IP”.

Your theory assumes your conclusion that ideas are distinct from the media they are reflected in. I refuted that assumption many times, by using set theory, propositional logic and reductio ad absurdum. Not only that, but there are even IP proponents who agree with me (although they fail to follow their own argument into the logical conclusion). Stranger, for example, says that in “fallacy #2″. Silas, before he was banned, admitted this too.

Without a solid foundation in logic, all the voluminous constructs you produce are meaningless.

Peter Surda March 21, 2011 at 1:48 pm

Kid Salami,

But it is a request bit of a “when did you stop beating your wife” type request.

It would be, if the IP proponents did not insist on a self-contradiction.

If I don’t accept the NAP, then yes I agree that I advocate “aggressive” action against people who have not committed a border invasion.

This is all correct. So, all I need from IP proponents is to admit that they at least partially don’t agree with ownership of physical goods and that from the perspective of someone who does, IP is always theft. That should not be so hard. But apparently, it is very difficult emotionally (due to cognitive dissonance). Instead of admitting this, IP proponents produce all kinds of nonsense.

The Kid Salami March 22, 2011 at 5:18 am

Peter – I don’t know what your point is, you are going round in circles. The defintion of “theft” in ancap world will remain exactly the same once we introduce a law against, say, libel?

Of course not. Say someone commits the crime of libel and is fined – you are saying he has then had money taken from him and this is “theft”. This is not the same definition of “theft” as in ancap world. Once we introduce the possibility of non-invasions being crimes then people can have their goods “taken from them under threat of force” yes – in ancap world this is theft, in the world where libel is a crime and this is in response to committing this crime, then this is legitimate.

Stephan Kinsella March 22, 2011 at 7:50 am

Kid Salami: “Peter – I don’t know what your point is, you are going round in circles. The defintion of “theft” in ancap world will remain exactly the same once we introduce a law against, say, libel?

Of course not. Say someone commits the crime of libel and is fined – you are saying he has then had money taken from him and this is “theft”. This is not the same definition of “theft” as in ancap world. Once we introduce the possibility of non-invasions being crimes then people can have their goods “taken from them under threat of force” yes – in ancap world this is theft, in the world where libel is a crime and this is in response to committing this crime, then this is legitimate.

Uh, yes, this is the very problem with IP rights, and rights in any non-scarce things: it undermines and cuts into rights in material resources. This is exactly why in one of my earlier pieces on IP I entitled it In Defense of Napster and Against the Second Homesteading Rule. IP is possibly only by setting up a second homesteading rule that is incompatible with and undercuts the Lockean one that is at the root of libertarianism.

The Kid Salami March 22, 2011 at 8:29 am

“Uh, yes, this is the very problem with IP rights, and rights in any non-scarce things: it undermines and cuts into rights in material resources. ”

I understand the argument, it is clear. But this is also the argument against, say, libel – making libel a crime “undermines and cuts into rights in material resources”. I agree. This has nothing to do with IP per se – it is just adherence to the NAP.

So my attempt to break down the anti-IP case into

a) the arguments which hold against all rigths that “cut[s] into rights in material resources” (ie. adherence to the NAP).
b) those that apply only to patents or copyrights or trademarks (and that might take place between two people in whose framework libel, for example, is a crime but who differ on IP).

is simply an attempt to clarify the situation.

Peter Surda March 24, 2011 at 5:40 am

Kid Salami,

Peter – I don’t know what your point is, you are going round in circles.

No, I’m not.

The defintion of “theft” in ancap world will remain exactly the same once we introduce a law against, say, libel?

I don’t understand. It’s up to the IP proponents to formulate the definitions, not for me. That’s my whole point. If they formulate them in a self-contradictory manner, it’s their problem and I’m pointing it out.

Say someone commits the crime of libel and is fined – you are saying he has then had money taken from him and this is “theft”. This is not the same definition of “theft” as in ancap world.

I don’t understand. My argument would be (in case of libel) that if someone advocates physical property rights, protection against libel is always theft, or in another words, protection against libel always takes precedence over physical property rights. If my hypothetical opponent agrees, then it’s fine. But they don’t, they make up loads of crap instead.

Once …. then this is legitimate.

Of course. But that does not mean that you can present this based on a self-contradictory theory. You understand it correctly and can phrase it correctly. But the proponents of these weird theories typically don’t understand that.

The Kid Salami March 24, 2011 at 6:52 am

“My argument would be (in case of libel) that if someone advocates physical property rights, protection against libel is always theft..”

You say “always theft”. I get it, I’m not trying to “convert” you I’m just being clear that you reject any approach that is not “let’s see who owns what tangible object and consider this AND ONLY THIS”. We are at a fork in the road (because although you and Kinsella call this an “argument”, I suggest that it is NOT worthy of this name).

Peter Surda March 24, 2011 at 8:25 am

Kid Salami,

We are at a fork in the road (because although you and Kinsella call this an “argument”, I suggest that it is NOT worthy of this name.

This is a very good metaphor. Allow me to use is to explain my argument then. We’re at a fork in the road, and I’m saying: hey guys, there’s a fork. You need to choose where to go. And IP opponents say: behold the magic, one, two, three and there is no fork.

Peter Surda March 24, 2011 at 9:20 am

Should have been “IP proponents”.

The Kid Salami March 25, 2011 at 5:59 am

Peter – like I said, there is nowhere else our debate can go on this particular topic of rights violations. Where we differ is clear.

Stephan Kinsella March 21, 2011 at 1:56 pm

The kid “salami”:

“Paper is here

http://mises.org/journals/qjae/pdf/qjae7_4_7.pdf

It makes sense when read on its own. However, the reasoning contradicts many other things he has written – so if you have other instances, I won’t be surprised.”

I don’t think so. Can you please give a clear, unambiguous example of any contradiction? Unlike IP proponents I actually care about consistency, so would like to know.

The Kid Salami March 22, 2011 at 4:33 am

Actually, no I can’t. It is a little off of me to say that on here without being able to back it up so i won’t say it again until I can. But the circularity I see is of course not at all obvious – there is no “statement X and statement Y are conflicting”. It involves chasing around lots of definitions and i’ve not completely clarified it in my own head yet. But briefly, when you say:

“For example, A somehow persuades C to plant a bomb under B’s car, which kills B. Libertarians will often conclude that, while C is responsible for B’s murder, A is not, because C’s actions were undertaken with free will, thereby breaking the chain of causality. They argue that what C did was commit murder, while A only committed a speech act, which does not in itself aggress against anyone’s person or property. This appears to be Walter Block’s view. Block (2004, pp. 13–16) follows Rothbard in maintaining categorically that “inciting” others to commit a crime (such as a riot) is simply not a crime. Rather, “‘Inciting to riot’ . . . is a pure exercise of a man’s right to speak without being thereby implicated in a crime” (Rothbard 1998, p. 81, also pp. 113–15). Block points out that the rioters have “free will” (Block 2004, p. 16)—unlike an inanimate object such as a bullet—and therefore the inciter is not responsible for the riot…”

I think you are correct to disagree with Block – a division of labour society requires this to be able to function at all. Yet I also suggest that you must differ from Block in other scenarios also – that is, if you take your words here into other scenarios you have used as examples in other papers, it seems to me that you must also drop your “hardline” NAP stance.

Stephan Kinsella March 22, 2011 at 7:47 am

I think you’re confused here. My views on causation are linked with and support my opposition to aggression; it’s just a question of how aggression is committed by human action.

I’ll let you sort it out in your mind and wait to hear back from you.

Stephan Kinsella March 19, 2011 at 8:41 pm

Wildberry, the point is to show that emulation and competition and copying are normal and good. yes, you are right, that it is “permitted” in many cases–this is as it should be. But where it is stifled and restricted, that is bad. It’s astonishing you would try to deny what IP actually does. The more honest Ip advocates are forthright that it is a monopoly, a limit on competition, that they are advocating. William Shughart, e.g., http://blog.mises.org/11559/shugharts-defense-of-ip/ says “patents and copyrights slow down the diffusion of new ideas for a reason: to ensure there will be more new ideas to diffuse … Granting a temporary monopoly to the rare breakthrough is necessary…”

So let’s not be coy. You and your ilk are advocating anticompetitive limits on the use of ideas, in some case. Not in all, thank God, but that is not to your credit, really, is it?

Wildberry March 20, 2011 at 2:35 pm

@Stephan Kinsella March 19, 2011 at 8:41 pm

OK, but before we move on to the issue of competition, let’s consolidate our gains.

yes, you are right, that it is “permitted” in many cases–this is as it should be.

Thank you. I think this is just too important, however, to simply gloss over.

You are admitting that “ideas” are free under both your system of ethics AND under copyright laws, specifically. All that I have been asking of you is a fair reading of the law and its operation.

If there is a difference between “some” ideas and “others” within the context of IP laws, then I hope you will agree that distinction is not irrelevant to these discussions. If you continue to conflate the general connotation of “idea” with the far more restricted concept of “ideas” that are implied in an “original work”, you will be continuing to misstate the law, as I have been saying to you all along.

So in the future, I can count on you to support me when I point out on this blog when someone is assigning to IP laws an operation which it does not pursue?

Wildberry, the point is to show that emulation and competition and copying are normal and good.

The same fallacy of conflation and equivocation applies to the concepts of “competition” and “monopoly” as you use them in the context of IP laws. If you conflate their meaning, you misstate the situation and mislead those who are predisposed to agree with your conclusions.

If your case is legitimate, it is not necessary to rely on this misdirection. These words take on a much more restricted meaning within the context of IP laws. To blur that distinction is misleading and a misstatement of the law and how it operates.

In general, we can agree that emulation and competition are “normal and good”. But like all words, their meaning depends largely on the context in which the author is using them. So let’s be precise. “Emulation” is not equivalent to “copying” within the context of IP, especially copyright because “copy” has the specific meaning in the context of copyright.
Likewise, completion is not absent in the presence of a private property monopoly. It is not ALWAYS absent even in the face of a market monopoly. For example, a complete monopoly in wheat must still compete with corn.

To lose these distinctions conflates the meaning of the words in the context of IP such that illogical conclusions can be reached based on equivocation of their use. These distinctions are relevant to a fair reading of the law and its operation.

But where it is stifled and restricted, that is bad.

Always? In a general sense, when property rights “stifle and restrict” others from possessing and using another’s property, is it bad? If I own a hotel, and you want to open a hot dog stand in the lobby, it is bad that I “stifle and restrict” you from doing so? No, because under an ethics of private property rights, the owner of property has exclusive rights to possession and use. I have the ethical right to exclude you from my hotel.

Yet in the context of IP you attempt to argue that this principle of private property does not apply, because it results in a stifling and restriction of “emulation, competition and copying”.
As with any other concept, say violence, the “rightness” or “wrongness” of it depends on the facts and context of its application.

Using the hotel as an analogy to copyrights, if I acquire through legal means some property upon which I build the first hotel, I have a monopoly on that property, but not on the idea of “hotel”. Anyone is free to emulate my idea by opening their own hotel. Do you say that “monopoly” here stifles “emulation” and “competition”?

Likewise, if I write a book that is an original work, my claim of exclusive monopoly rights to it, in principle, does not stifle others from emulating my work and writing their own book. Competition in books is preserved, even under copyright law.

Mises warned about the danger of conflating the meanings of “monopoly” in this way. A monopoly in the exclusive ownership of property is a hallmark of libertarian ethics. Such a monopoly does not equate to an economic monopoly, which under a free market system, is very difficult to establish or maintain. It is a misstatement of IP laws to claim that one meaning is synonymous with the other. Agree?

Again, within the context of IP, you conflate the meaning of “emulation” and “copying”. Copying has a very specific and restricted meaning within the context of IP. It does not equate to emulation in a general sense.

If fact the public policy goal of IP, to encourage public access to innovations and original works, increases the opportunities for emulation. That is why we have both Taco Bell and McDonalds rather than just competing instantiations of one or the other. It is the idea that is emulated, but the expression is creative and original within the context of IP, trade dress in this example.

In this regard, it could be argued that IP creates a higher level of competition, requiring that each subsequent innovator, or “emulator” in your terms, add something new to the existing expression. This enhances competition while encouraging emulation. The diversity of consumer choice is to some degree driven by this dynamic tension between private property rights in expression, and freedom to emulate ideas in the marketplace.

What specifically is wrong with this?

It’s astonishing you would try to deny what IP actually does. The more honest Ip advocates are forthright that it is a monopoly, a limit on competition, that they are advocating.

It is only possible to make this statement if you do, in fact, conflate these meanings of competition and monopoly as I’ve explained above. As I have plainly said, IP, like all property rights, IS A MONOPOLY in the instance of that specific property. That is consistent with all other aspects of property rights in this general regard. Ownership of any property stifles competition for the rivalrous possession or use of that specific property. This is merely an expression of the ethics of property rights in general.

If you are going to oppose IP for establishing a monopoly in this sense, then to be consistent, you must oppose ALL private property holdings as being a monopoly. Do you do this?

To oppose IP for creating a monopoly is equally erroneous as opposing it because “ideas are free”. This is a misstatement of what the law does and how it operates, in the context of ANY private property rights. You must prove that rights in IP are not legitimate, compared to the way other property right operate. It seems that you must make that case without relying on an “ideas are free” argument, or a “monopoly” argument that conflates the connotation of these words within the context of IP.

In light of this, we return to the central issue of whether IP is a legitimate subject of property rights, which is the central issue.

William Shughart, e.g., http://blog.mises.org/11559/shugharts-defense-of-ip/ says …

I am not here to defend Shughart or anyone else. I don’t speak for him nor he for me. I am not leading the charge on behalf of anything or anyone. I am speaking directly to you.

So let’s not be coy. You and your ilk are advocating anticompetitive limits on the use of ideas, in some case. Not in all, thank God, but that is not to your credit, really, is it?

I am not an “ilk” and I’m hardly coy.

A competitive market and private property rights are not antithetical. So if you are going to claim that IP is anticompetitive on the basis of private property rights, you would have to show me that it creates a market monopoly, not a private property monopoly.

Can you do that? Can you show a case where copyrights in a “book” creates a market monopoly in “books”? Please try. If you cannot, it is a misstatement of the law and how it operates to claim otherwise.

Wildberry March 20, 2011 at 2:41 pm

Sorry, screwed up the blockquotes. Hope you can follow.

Anders Mikkelsen March 22, 2011 at 9:46 am

It seem like in Wildberry’s world IP is only copyright and not patent. (In the real world we have patent to deal with.) Wildberry believes that copyright is property and therefore restricts what people can do.

One problem is that you can do whatever you want with your property and it isn’t a crime. So if you’re given a copy of something and you can’t copy it you don’t really own it do you?

It seems like people think they own their books, so maybe it was fraud to give them this idea. Fraud is a problem to be addressed.

Personally I think this question of ownership of the copy is off because really you’re saying that I can’t use my printing press to print any book I like. This seems like a restriction of my property rights. Wildberry seemed to indicate it is analogous to the restriction that I can’t use a club I own to bash in someone’s property, e.g. head or china vase. But I don’t quite see how using my property to print a book on my paper involves stepping outside my property.

When I print a book I use my head and body to do things. If my book is a copy it is because I copied the book in to my mind – I memorized it and regurgitated it as type it even if only word by word. When I read a book I also memorize it enough to understand it. So I’m allowed to copy the idea in to my mind, but not create my own copy in the real world. But once it is in my mind, which is legal to do, I’m no longer USING your property. Or you’re making a claim that the contents of my mind are your property and any copies I make with my property are transformed in to your property with all the potential for criminal penalties that entails. (This transformation seems similar to transubstantiation.)

IP is contradictory to property rights.

A monopoly on property means no one else may violate my property. It doesn’t restrict what my neighbors do on their property. Because things are scarce we have property to reduce conflict over control.

A monopoly of salt production means no else may produce salt. A monpoly of the production of champagne, a variety of a larger category, means no one else may produce champagne. A monopoly of the production of a specific work means no one else may produce that specific work. It does restrict what they do on their property.

So I think they’re different forms of monopoly. They’re also conflicting. IP means the continual restricting of what my neighbors do on their property. Private Property means lifting those restrictions – my neighbor can produce salt or champagne if he wants.

Wildberry seems to keep making a leap that because the author has a right to his manuscript or a right inherent in books he published though they leave his possession, the author has some sort of say and standing in court over what other people do with their printing presses. While in reality many of us do make this leap and understand it, it isn’t at all clear how this leap can be justified. If it just another form of mercantilism – state grants of monopoly privilege seem pretty clearly unjustified and an attack on property. I still can’t find Wildberry’s justification of the connection between what I do with my printing press and the violation of rights – however attacking me for using my printing press as I see fit does need to be justified.

It should be clear by now that in the real world many people have no respect for intellectual property because they don’t get why they shouldn’t be able to use their computers to copy things. (In fact the entire internet is a giant system for making copies.)

Enforcement mechanisms for IP seems to be a clear indication that something is wrong with IP. In a similar sense the drug war is wrong because prohibition is enforceable only by violating rights in common law and the constitution, and even that level of enforcement does not make illegal drugs particularly difficult to purchase. Even if we assume copyright is a real right, it is hard to see how copyright can be enforced without violating rights. Given that much copyright violation is conducted by people who wouldn’t or couldn’t pay anyway, it isn’t clear there’s a substantive monetary loss. Given the ease of making copies it isn’t clear copyright can or will be enforced.

While I’m not a lawyer, I also don’t recall that common law allows for many property rights for unknown owners. If you find a piece of unused property and live there long enough in many places you can’t be kicked out. I believe one can salvage things or take things found on the street without being a criminal. It is hard to imagine common law principles would uphold restriction of the actions of people who come in to possession of used or abandoned media. The idea of an implied contract is a stretch – even more so when there’s often no way to get permission. If there’s no owner it is up for grabs.

It’s just hard to see how copyright doesn’t conflict with other rights including property rights. Especially given the expanded notions of IP – which seem to extend well beyond Wildberry’s notion – there are more and more restrictions on real property use as more IP is created.

If wildberry believes in IP for patents, I think a key problem is the time aspect. Every time an idea is patented the ‘law’ changes as to what people can do with their property. Who can keep up? How is this Law?

Given the way IP law is becoming more expansive people are also asking “How is this Law? How is this Justice?”

Wildberry March 22, 2011 at 2:00 pm

@ Anders Mikkelsen March 22, 2011 at 9:46 am

I am sorry for the length of this post, but yours was so comprehensive and reasonable, that I took the opportunity to respond to each point you raise.

It seem like in Wildberry’s world IP is only copyright and not patent. (In the real world we have patent to deal with.) Wildberry believes that copyright is property and therefore restricts what people can do.

No, in my world patents, copyright, trademarks and the so-called “reputational rights” exist. I tend to focus on copyrights because if the anti-IP argument can succeed, it must succeed in rendering the general concept and principles of copyrights unjustified. It is difficult to talk about patents and copyrights in the same analysis because the terminology, purpose, etc. are different. In general, they have similar foundations, which are clearly illustrated by copyright law.

To your second point, property is a human device used to establish boundaries for scarce resources. The subject matter of IP laws are scarce resources, even by Ancap standards, if you eliminate equivocation that “ideas” are “IP”. All property rights impose limitations on the actions others may take, even with their own property.

One problem is that you can do whatever you want with your property and it isn’t a crime. So if you’re given a copy of something and you can’t copy it you don’t really own it do you?

No, any more than by limiting your use of your bat to assault me, I am not claiming ownership of your bat. I am limiting your use of it by the boundary that exists between my rights and yours. It is the operational definition that distinguishes defense from aggression.

It seems like people think they own their books, so maybe it was fraud to give them this idea. Fraud is a problem to be addressed.

I think some people here do not believe that there are justifiable rights in “original works of authorship” based on a equivocation with the concept that “ideas are free”. Therefore they deny rights in IP because it is justifiable to deny rights in pure ideas. Ideas are non-scarce, original works are scarce.

Ironically, these same IP-opponents recognize these rights as enforceable by contract, but argue that lack of privity relieves the original author of his property rights. This is unique to Kinsella, I think, and may here follow his lead on this point. I disagree. If a person originally has rights to certain property, they HE is the one that determines the terms of transfer, not someone else (copier) who has no basis to claim better title to it than the author. The only way this is possible is to conflate the meaning of “ideas” and “IP”, which is false. Therefore the argument fails.

Personally I think this question of ownership of the copy is off because really you’re saying that I can’t use my printing press to print any book I like. This seems like a restriction of my property rights.

It is. It is a limitation of use, as is the case with all rights and all property. There is no justification for making special rules for IP which do not apply to any other property rights. So the issue rests on whether the rights are justified or not. This determines the aggression issue and the limitations on copying.

Wildberry seemed to indicate it is analogous to the restriction that I can’t use a club I own to bash in someone’s property, e.g. head or china vase. But I don’t quite see how using my property to print a book on my paper involves stepping outside my property.

You are correct. That is the concept. Property rights create boundaries and boundaries create limitations.

Your term “stepping outside my property” is a little confusing. If you mean how that is a violation of my property boundaries, then it arises through the existence of my own rights. What is the object of your printing? You are printing something you are calling a book. What is a book? It is, in part the tangible, scarce resources, which are already covered by property rights. You may own the printer, paper and ink, for example.

Yet the reason you are printing the book is to instantiate a copy of the “work”, which is intangible until fixed on paper, in our example. If property rights exist in this intangible work, as is the operation of copyright laws, then you are placing an instantiation on your paper. The original author did not transfer his rights to that property to you. Therefore you are violating his “exclusive rights of use and possession” by creating the additional instantiation without consent or compensation. You are getting something for nothing except the very low cost or replication. When you get something for nothing, except the very low cost of taking it, it is called stealing. This is why copyright infringement is analogous to stealing. It can only be argued it is not stealing if you deny property rights in the intangible work. IP opponents have used various arguments to attempt to arrive at this conclusion, all of which fail, in my opinion.

When I print a book I use my head and body to do things. If my book is a copy it is because I copied the book in to my mind – I memorized it and regurgitated it as type it even if only word by word.

This line of reasoning is an example of what I’m talking about. You are claiming that because you memorized it, you are immune for any property rights of the author in the original copy that you memorized. Why?

IP opponents will argue that it is because the copy that you make has no effect on the original, it still exists and the author still has use of it. This is backwards. If you follow the causal relationship between the original manuscript, the original copy you have, and the copy you make, you will clearly see that each copy is caused by the original. Transferring it from the pages of a book to your photographic memory and then to your keyboard does not intervene in this causal chain. It is the existence of the original that makes it possible for you to copy. Therefore in justifying your action as aggression, it is necessary to trace the ownership rights backwards from your copy to the original. If you don’t own the original, then you cannot claim ownership in the copy. The transfer of the ownership of the original was not transferred to you by the owner. You did not homestead it and it was not abandoned. On what theory of property rights can you claim better title to the copy than the original author? There is none, so you must deny the original rights of the author to reach that conclusion. This is a major contradiction in the analysis.

When I read a book I also memorize it enough to understand it. So I’m allowed to copy the idea in to my mind, but not create my own copy in the real world.

You are conflating ‘idea” and “book”. A book is not an idea or even an arrange of several ideas. It is an expression. Because ideas are not the subject of copyright protection, the distinction between these concepts is important. The operation of copyright law makes detailed analytical distinctions between ideas, which are not protectable, and expressions, which are. It is not arbitrary, as some claim.

Think of the book Gone with the Wind. What is the idea? What are the 10 most important ideas? They are not protectable, and you may use them freely, because they are in the public domain, like the letters of the alphabet. No one does or can own them.

Yet the book is something that you can read and understand and what you are exposed to by reading it becomes part of your human experience. You could write your own book about the civil war, plantations, slavery, dashing young confederates and spoiled women of the privileged class with their slave housemaids. You can quote large sections of the actual book, criticize it or otherwise analyze it and write about it. You can make a parody of it. You can read it out loud to your friends and family. None of these actions are prohibited by existing copyright laws.

But once it is in my mind, which is legal to do, I’m no longer USING your property. Or you’re making a claim that the contents of my mind are your property and any copies I make with my property are transformed in to your property with all the potential for criminal penalties that entails. (This transformation seems similar to transubstantiation.)

You CAN use the protected work. There is an entire doctrine of fair use which protects your rights to do so. You simply misunderstand the operation of existing laws in your example. It is not surprising, because there is a good deal of misinformation here about how the law operates. If you oppose IP, do so because of what it does, not what you incorrectly assume it does. That seems the reasonable way to approach the subject.

IP is contradictory to property rights.

And thus you reach this incorrect conclusion about IP. IP is a form of property rights. The rights in IP are wholly consistent with the operation of other property rights, be they real property or chattel. Again, the real debate is whether ANY property rights exist in the intangible, original works of authorship.

A monopoly on property means no one else may violate my property. It doesn’t restrict what my neighbors do on their property. Because things are scarce we have property to reduce conflict over control.

You are incorrect about this. Because you own property does mean that it restricts your neighbors. The restrictions are a function of the boundaries between your property and theirs. That is how property rights operate, in general.

A monopoly of salt production means no else may produce salt. A monopoly of the production of champagne, a variety of a larger category, means no one else may produce champagne. A monopoly of the production of a specific work means no one else may produce that specific work. It does restrict what they do on their property.

Of course, this is the definition of monopoly, but as I have pointed out many times, Mises warned about confusing the connotations of monopoly.

A monopoly of salt production is a market monopoly, and implies that the entire means of production of salt is controlled by a single or small group of cooperating producers. In a free market, this type of monopoly is very hard to maintain. The history of someone like J.P. Morgan gives a great illustration of this. He had every advantage but could not keep it going.

However, a monopoly to salt production from a particular salt mine is not the same thing. All property ownership creates a monopoly. You cannot open a hot dog stand in the lobby of my hotel. I have a monopoly on the use and possession of that particular hotel. I do not have a monopoly on all hotels or the concept of hotel. Big difference.

So I think they’re different forms of monopoly. They’re also conflicting. IP means the continual restricting of what my neighbors do on their property. Private Property means lifting those restrictions – my neighbor can produce salt or champagne if he wants.

This is really a misunderstanding of the operation of IP laws. There is almost no restrictions on what you can do ON you own property. If you wanted to make copy of a book, or even duplicate a patented device, those activities are permitted under current laws. When you send a copy to someone, or attempt to market your copies of a patented device, you are not longer just doing something on your own property. You are engaging in commerce, and you cross boundaries created by the economic rights (property rights) in IP.

Wildberry seems to keep making a leap that because the author has a right to his manuscript or a right inherent in books he published though they leave his possession, the author has some sort of say and standing in court over what other people do with their printing presses.

What is unique about this in comparison to other property rights? This is the way property rights work. Restating how they operate does not prove that the rights are not justified in the first place. That is a leap you are making.

If it just another form of mercantilism – state grants of monopoly privilege seem pretty clearly unjustified and an attack on property.

This is a good point, and is another area where opponents equivocate. Mercantilism, if I understand it to be a capture of political power to create economic power for one group (merchants) at the expense of another (consumers), is something I am opposed to. But as I recently said to Kinsella, governments, being of and by the People, are like people in that both have a capacity for both good and evil, even within a single individual. It is important ethically, legally, and economically to be able to distinguish between the ACT and the ACTOR. Some merchants are capable of competing ethically, some not, and some do some of each.

When special interest groups, (be it merchants, unions, banks, etc.) capture the instrumentalities of government or political power in order to intervene in the free market, it is unjustified and should be opposed. That is my view. However, an otherwise justified act should not be viewed as unjustified just because the actor is a government agent. Government agents are capable of performing justifiable acts. Distinguishing one from the other is a measure of wisdom.

I still can’t find Wildberry’s justification of the connection between what I do with my printing press and the violation of rights – however attacking me for using my printing press as I see fit does need to be justified.

If your use of your property violates my rights, that use is limited. If your printing press caused me no harm, there is no limitation relative to me. If you print a book that is in the public domain, there is no problem. If you print and sell my book, there is a problem. This is consistent with the normal operation of all property rights. That is the connection. You would have to argue that my rights in my book are unjustified. You cannot do that without relying on the narrative that “ideas are free”. That is an equivocation, so your conclusion is incorrect; IP should be free because ideas are free.

It should be clear by now that in the real world many people have no respect for intellectual property because they don’t get why they shouldn’t be able to use their computers to copy things. (In fact the entire internet is a giant system for making copies.)

The internet is also a giant system for making bombs or any number of other prohibited activities. The issue remains whether any particular activity is justifiable according to a consistent system of ethics.

Enforcement mechanisms for IP seems to be a clear indication that something is wrong with IP. In a similar sense the drug war is wrong because prohibition is enforceable only by violating rights in common law and the constitution, and even that level of enforcement does not make illegal drugs particularly difficult to purchase.

Enforcement of a law that is viewed to be unethical by the populace doesn’t have much of a chance. Some people seem to believe that certain types of stealing is OK because the act is so easy, cheap and difficult to detect. It is the same reason, as you correctly point out, that some people use drugs despite the illegality associated with that act.

But not everyone steals and not everyone uses drugs, even if they could do it if they chose, despite what the law actually says and does. This is why it is important to have laws which are firmly rooted in a common ethos. If the ethos is challenged by some development, social, political, legal or technological, controversy arises and people choose sides. Abortion is a good example too, as are drugs.

Because of the developments in digital technology, our ethos is being challenged regarding copyrights, in particular digital copying of music. Often times, in a free market, the market solves the problem before the laws catch up. I think that is what is happening now, and why this topic is so hot here on mises.org. This is not dissimilar to the situation for copyrights between Queen Mary’s and Queen Anne’s reigns.

Even if we assume copyright is a real right, it is hard to see how copyright can be enforced without violating rights. Given that much copyright violation is conducted by people who wouldn’t or couldn’t pay anyway, it isn’t clear there’s a substantive monetary loss. Given the ease of making copies it isn’t clear copyright can or will be enforced.

Imagine property rights that were based only on economic loss. Trespassing would be OK as long as you couldn’t prove economic loss. This has been addressed long ago in the common law of trespass; even bending a blade of grass is an injury, although nominal, and so qualifies as a prohibited act. It is the act as understood at the boundaries of another’s rights. It is neither reasonable nor necessary to invent a completely different operation of property rights for IP. Property rights in IP operate just like any other property right; you either violate the boundary condition established by them, or you don’t.

While I’m not a lawyer, I also don’t recall that common law allows for many property rights for unknown owners. If you find a piece of unused property and live there long enough in many places you can’t be kicked out. I believe one can salvage things or take things found on the street without being a criminal.

You are referring, I think, to the rule of adverse possession in land, where a person can obtain legal title to land by living on it uninterrupted for a period of time, usually 21 years. Also, you can capture chattel property that has been abandoned. However, in both cases, the existence of a prior owner is presumed, even if their identity is not known. You have to go through a process to prove that it is in fact abandoned.

It is hard to imagine common law principles would uphold restriction of the actions of people who come in to possession of used or abandoned media. The idea of an implied contract is a stretch – even more so when there’s often no way to get permission. If there’s no owner it is up for grabs.

IP is no different. If a protected work (copyright) is abandoned, there would be no one to take action against you for using it. When copyrights were for a period of 14 years with a one-time opportunity to renew, the vast majority were not renewed. In any case, when the term of a protected work expires, it becomes part of the public domain. There is no owner, even of a work that once had copyright protection.

I personally think that the repeated extension of the copyright term is one of the problems with current law, and an example of the mercantilist problem you raised earlier. Life +70 years is roughly equivalent to forever, especially by any reasonable economic means of measurement. But that view does not conflict with the fundamental position that IP rights are justifiable in principle.

It’s just hard to see how copyright doesn’t conflict with other rights including property rights. Especially given the expanded notions of IP – which seem to extend well beyond Wildberry’s notion – there are more and more restrictions on real property use as more IP is created.

All property rights conflict with other rights at the boundaries of those rights. One of the fundamental functions of property rights is to establish rules for resolving those conflicts peacefully and rationally.

I agree that if we are too lax in our definition of what is protectable and what is not, it creates problems and defeats one of the purposes of IP. If we are to tight, it defeats the other. IP laws attempt to balance and trade off individual property rights against the general rights of the public domain. We may have allowed that balance to become skewed, much like we have allowed the balance of our constitutional government to become skewed in favor of special interests. We can fix this, but we cannot fix it by misunderstanding the problem. The problem is not the justifiability of the concept of IP, it is the balance of interests in the implementation. This is another rather important distinction to make.

If wildberry believes in IP for patents, I think a key problem is the time aspect. Every time an idea is patented the ‘law’ changes as to what people can do with their property. Who can keep up? How is this Law?

This discussion is a microcosm of how we keep up. Laws mostly change at the margins of their application, while preserving the ethical core of the principle they are intended to encode. Kinsella has sharpened his knives against the very concept and principles of IP. This is fundamentally a questioning of the ethical justification for the concept. If the ethics change underpinning the laws, then the laws will necessarily change to reflect the change in social norms. I personally believe that the principles are sound, and that special interests have intervened to make that principle produce some undesirable outcomes, which I refer to as Kinsella’s parade of horrors.

I look forward to a time when the fundamental ethical questions are either resolved or perhaps another type of discussion can emerge where the topic is the desirable changes to current laws. I am not a fan of throwing out the baby with the bathwater, but Kinsella is.

Given the way IP law is becoming more expansive people are also asking “How is this Law? How is this Justice?”

Good questions. I hope I have given you a reasonable response, whether you ultimately agree or not.

Stephan Kinsella March 22, 2011 at 3:22 pm

It is not arbitrary, as some claim.

sure it is

Think of the book Gone with the Wind. What is the idea? What are the 10 most important ideas?

this is not how libertarians (people interested in justice) think. This is irrelevant. Your job as an actor or entrepreneur is to find a way to profit (psychically or monetarily) from your actions. It has nothing to do with property rgihts. Prop rights are established, then actors figure out what to do within them.

I am not a fan of throwing out the baby with the bathwater, but Kinsella is.

Because the baby is Rosemary’s Baby: pure evil. Extirpation is called for.

Good questions. I hope I have given you a reasonable response, whether you ultimately agree or not.

Your tone now is slightly more reasonable and humble, but your arguments are not.

Wildberry March 22, 2011 at 5:07 pm

@Stephan Kinsella March 22, 2011 at 3:22 pm

sure it is

Is not.

this is not how libertarians (people interested in justice) think. This is irrelevant. Your job as an actor or entrepreneur is to find a way to profit (psychically or monetarily) from your actions. It has nothing to do with property rgihts. Prop rights are established, then actors figure out what to do within them.

Libertarians don’t think about ideas? My job? Profit has nothing to do with property rights? Property rights are “established”?

I will grant you this: Given a ceratain set of property rights, humans will adapt to them.

.Because the baby is Rosemary’s Baby: pure evil. Extirpation is called for.

OK, that’s funny right there. That, Mr. Kinsella, is the difference between you and me, in a nutshell.

Your tone now is slightly more reasonable and humble, but your arguments are not.

Do you believe that you reap what you sow? I am a pretty reasonble and humble person, but I’m not easily intimidated by rudeness. Want to be friends? You first.

Anders Mikkelsen March 22, 2011 at 11:24 pm

I have to admit I fail to understand how patents might be justifiable under the law of wildberry. Patents are about ideas. If copyrights have the same foundation in wildberry law as patents, then . Slaves are ‘property,’ but I think we realize that the foundational principle of property is actually quite different.

I don’t think property is a human device to establish boundaries for scarce resources. Scarce resources by their nature have boundaries and exist in time and space. Property rights are the recognition of who has control over a scarce resource. (I would submit that under politics there is a lack of recognition of control over scarce resources – e.g. budget dollars can be allocated in many different ways.)

>All property rights impose limitations on the actions others may take, even with their own property.

Actually property rights are the recognition that you have no legal limitations on or in the use of your property, so long as you do not trespass on others.

So we caught you – you are a commie pinko! Recant before we call out the Spanish Inquisition and burn you at the stake like the heretic you are! :)

Seriously though I do think this is a big problem with your argument and why I suspect you can’t possibly create a foundational argument (as there’s no foundation.)

> I am limiting your use of it by the boundary that exists between my rights and yours.

Yes, well it seems like the boundaries keep on changing and intruding in an IP world.

> Ideas are non-scarce, original works are scarce.

I still don’t get it. Making a work less scarce by copying it doesn’t seem relevant to the scarcity problem of original works. The original work isn’t affected physically – though in wildberry law rights and boundaries are violated.

Actually contract rights are different from property rights. Rothbard has pointed out that not all contracts are valid. Common law agrees with this.

> If a person originally has rights to certain property, they HE is the one that determines the terms of transfer, not someone else (copier) who has no basis to claim better title to it than the author. The only way this is possible is to conflate the meaning of “ideas” and “IP”, which is false. Therefore the argument fails.

So you transfer a book to me a printer. You claim some title over the book even though you sold it to me. This alone is dodgy – we don’t believe in restrictive covenants that forever forbid the real owners from selling their land to people of X race or y religion. (But you can of course sell your land to whoever you want.) But the real problem is that the copier isn’t doing anything with the book.

> It is. It is a limitation of use, as is the case with all rights and all property.

As stated above property is the recognition of abolute rights over your property and yours alone (no trespassing though!)

It seems to me that Wildberry law is a law of positive rights. You have a limited use to your money – not paying some in taxes or forced charity or tithes woud violate the rights of the poor, state, church, etc. There are all sorts of rights schemes like this, however they aren’t libertarian.

>If property rights exist in this intangible work, as is the operation of copyright laws, then you are placing an instantiation on your paper. The original author did not transfer his rights to that property to you.

So the author owns all instantiations? Except the instantiations he sold? How is he able to own all future non-existent instantiations?

> Therefore you are violating his “exclusive rights of use and possession” by creating the additional instantiation without consent or compensation.

So he possesses all instatiations? (I don’t see how his ‘use or possession’ is violated by creating an instantiation unless he owns them.)

> You are getting something for nothing except the very low cost or replication.

I don’t see what anyone is getting in this example? One simply created an instantiation at one’s own expense. The physical instantiation being copied was of course transferred (and intangible work was transferred in to the mind of the owner at at low cost.)

> When you get something for nothing, except the very low cost of taking it, it is called stealing. This is why copyright infringement is analogous to stealing. It can only be argued it is not stealing if you deny property rights in the intangible work.

Well actually stealing is when you take something that doesn’t belong to you. When you get an intangible work in your mind you aren’t taking something that doesn’t belong to you – if you were you wouldn’t be allowed to read or listen. Similarly if you record the output generated by electronic media you aren’t taking.

I don’t really get how property rights in intangible work are valid claims to impact real property – property rights in people don’t really seem valid either. It seems more like such property rights are the right to violate other peoples’ property.

> On what theory of property rights can you claim better title to the copy than the original author?

That I created the copy obviously and he has no right to invade my real property to enforce his claims to my transformation of my property however I see fit. My ownership of resources to produce the instantiation are part of the causal chain too. In fact lots of things are. However property rights in tangible things sans IP rest on solid ground – IP seems to rest on a ‘just so’ story that begs the question.

I still don’t see how a configuration of atoms falling in to a certain configuration magically changes the ownership of the atoms. Nor do I see how such a configuration can be illegally possessed by me (e.g. drug laws and other prohibitions against ownership of certain things.) In the case of people I do see there is a magical change when new life appears – but the magical change certainly doesn’t mean someone owns my child for life. (I also don’t think the original creator of a new form of life owns all copies of that life form.)

I also meant to point out that when I read something I copy it into my mind. Not just that I create ideas about the book, but I copy the book word for word in to my mind. I may forget it, but it all goes in to my mind.

The response to my point here

> But once it is in my mind, which is legal to do, I’m no longer USING your property. Or you’re making a claim that the contents of my mind are your property and any copies I make with my property are transformed in to your property with all the potential for criminal penalties that entails. (This transformation seems similar to transubstantiation.)

seemed totally irrelevant. But I guess you addressed it earlier when you admitted that under wildberry law all instantiations are owned by the creator until he transfers them. This kind of transformation of ownership seems quite dangerous – one could create all sorts ways to take over the property of others as soon as they transform it, and in fact that is what IP seems to in fact be doing which is why it is so objectionale.

> Again, the real debate is whether ANY property rights exist in the intangible, original works of authorship.

Actually it seems like the debate is whether property rights in the intangible create property rights in instantiations, and whether the creation of an instantiation instantly transfers ownership away from the creator of the instantiator to the creator of the intangible original work.

>You are incorrect about this. Because you own property does mean that it restricts your neighbors.

I said it doesn’t restrict what they do on their property. How am I wrong? I agree it is my right to restrict what they do on my property or ban them entirely. In fact you say “The restrictions are a function of the boundaries between your property and theirs.” This is very confusing.

> When you send a copy to someone, or attempt to market your copies of a patented device, you are not longer just doing something on your own property. You are engaging in commerce, and you cross boundaries created by the economic rights (property rights) in IP.

So now apparently between my property and someone elses property IP has created a boundary? It seems some third party unilaterally changed the boundary between my neighbor and I. In wildberry law IP is some sort of interproperty commerce clause?

I said
> Wildberry seems to keep making a leap that because the author has a right to his manuscript or a right inherent in books he published though they leave his possession, the author has some sort of say and standing in court over what other people do with their printing presses.

Wildberry replied

> What is unique about this in comparison to other property rights? This is the way property rights work.

I guess the leap is that you believe authors potentially own all instantiations. I do think giving up your property by transforming it is kind of unique, unless of course you believe it is inherent to the concept of property.

I’d say it is unique because normally I can do whatever I feel like within the confines of my property. There’s no external people I need to worry about. In the case of IP I no longer can do whatever because what if
A: I’m violating IP on my property?
and/or
B: I’m violating IP by transferring my property to my neighbor?
My home is no longer my castle – it can be invaded by legal agents or I can find myself violating the property rights of someone who isn’t even there and didn’t leave there property there if I violate IP.

> If your use of your property violates my rights, that use is limited. If your printing press caused me no harm, there is no limitation relative to me.

Lots of things I do can ‘harm’ you. That doesn’t mean they’re illegal. It is true I can’t violate rights.

Since I don’t see how one can own all future instantiations, I don’t see the connection with violation of rights. We have ownership to make it clear who controls things. I control my instantiations, you control yours. The copy might not exist without the original – but it also wouldn’t exist without my property to make it. Taking my property seems more like stealing than my making a copy?

Seems like the point was missed that enforcing IP will likely involve trespass – just like enforcing drug laws entails wholesale violation of rights.

It seems like slavery creates all sorts of boundaries, but it isn’t valid.

I think extension of copyright makes it clearer that the principle of IP is problematic. If copyright is just – why not have it for longer? Real property rights don’t expire! That’s a feature not a bug of property rights.

>All property rights conflict with other rights at the boundaries of those rights. One of the fundamental functions of property rights is to establish rules for resolving those conflicts peacefully and rationally.

Wrong. Property rights properly formulated don’t conflict at boundaries! The boundaries meet. You do you and I do me. There’s no conflict with property defined property rights. That’s the whole point of mises book liberalism – how do we create a social system free of structural conflict. He asked and answered how do we create justice – defined as ongoing peaceful relations?

I’d say this is right “One of the fundamental functions of a legal system is to establish rules for resolving conflicts about what the property rights are peacefully and rationally.” However the property rights don’t establish rules.

Regarding the response to patents -
While in real life each person has their own conceptions of law – any true Law must be as solid as 2+2=4. The constant discovery of new ‘patents’ creates a constant unsettling of what people are allowed to do. Property is supposed to create a settlement – you do your thing over here and I do mine over here, no need to quarrel if we leave each other alone.

This creation of constant conflict is the reason why IP is being attacked.

matt470 March 23, 2011 at 9:19 am

Nice critique Anders – I agree with most of what you said and as Wildberry acknowledged it is nice to have some fresh views on this merry-go-round.

To move further in this debate I think it is sensible to try and clear-up or agree to disagree on a couple of issues that always rear their heads here….

Are “ideas” synonymous with “original works”? No I don’t think so. I can see the distinction Wildberry is making and I think he is right to say there are differences although I don’t agree with the extent at which describes this difference nor quite his utilisation of it. Can we all agree that original works are a particular or specific sequence of ideas expressed in a tangible medium at least part of which is original (by definition)?

I can then agree with Wildberry somewhat that the argument that “ideas are free” by itself is not very effective at establishing that copyright is bad because copyright is actually more specific than just ideas (and from Wildberry’s paste above from the statute it specifically excludes ideas). I think the specific exclusion of ideas though is in a large part due to things that it puts with them….

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 work.

Why not? Because otherwise there’d be no room for patents – aren’t those specific things of authorship it mentions instead protected by patents?

My criticism of Wildberry’s exaggeration of the distinction between “ideas” and “original works” is that he does so to separate copyrights from patents so that he can focus only on copyrights and ignore one of the other crucial parts of IP. I’m not sure that Wildberry likes to defend patents at all because it is further down the slippery slope and closer to infringing on “ideas are free”.

Ok, let’s get rid of another troubling one….
You have to be an ancapper and a full subscriber to homesteading rules to disapprove of IP. I don’t have a problem with ancappers and theories of homesteading (although I’m not totally convinced) but you do not need to be in this camp to disagree with IP. I think there have been quite a few bloggers on this site to point that out. There is little point just hammering out this debate firmly anchored to different philosophies – therein lies the merry-go-round.

I agree with Wildberry somewhat again that property is a human device (although Robert LeFevre may disagree because he points out property boundaries in the animal kingdom – ie. territoriality). This doesn’t then mean though that we have to be completely utilitarian about it. By accepting that the purpose and existence of property rights are a device for humanity to get along peacefully and cooperatively doesn’t tell us that we ought to use property rights to attempt to maximise societies’
wealth. However pro IP folks use it in this way which to me seems quite anti libertarian as I think Anders has done a good job of pointing out.

Another thing that troubles me is the IP proponents insistence on labeling breaches of copyright as theft or piracy. I guess I can’t argue about the use of the word piracy now as it seems to be accepted in our language to also mean this but come on, have a look at what the conventional definition means and then try and relate that to the act of unauthorised duplication of original works….

Piracy is a war-like act committed by private parties (not affiliated with any government) that engage in acts of robbery and/or criminal violence at sea. The term can include acts committed in other major bodies of water or on a shore. …

I mean please! This is just as bad as the adulteration of the term “liberal”. As so many have pointed out and as I think the many of the public seem to agree with (at least judging by their actions) that claiming infringements of copyright are theft is also unfair (although yes it does fit the definition if one accepts that IP is truly property). If we accept it is theft then while I can’t point to specific evidence, I doubt any will disagree that the proportion of IP thieves to regular thieves is mind blowing-ly enormous. Is that just because it’s easier to get away with or is it because so so many people don’t feel it is really theft? I’d suggest it’s some of the prior but a lot of the latter.

I also think it is unhelpful that Wildberry (sorry to single you out but you should be flattered because I’d say you’ve put the most emphasis on this site to support IP that I’ve seen) likes to remind the anti-IP folks that we are living in a dream world while he lives in the real world because these laws have been in place for a long while. As all libertarians should agree… supporting a position simply because it is the status quo is not a real defence… it is a cop out. We’ve also had to live with central banks for several hundred years and I don’t think that fact justifies their existence anymore than 200+ years of copyright laws justifies it’s own existence. In fact if I were an IP proponent I doubt I’d be pinning my colours to this position because have a look around you at what is really going on in the world… is copyright infringement just something occurring here and there or is it ubiquitous and having an enormous effect on how products and services are really marketed? Would iTunes songs cost $2 if it wasn’t for “piracy” or would they more likely cost perhaps $5-$10?

Wildberry while you are correct to argue that copyright infringement has become significantly cheaper and easier because of modern digital technology – isn’t it also true that the reproduction costs of the sellers of original works has to same extent reduced to the point of almost vanishing for each extra unit produced? Here’s where the true purpose of copyrights is revealed…. producers of these goods want to take full advantage of the advancement in technology and pocket these enormous margins between the cost of original production of the good and the low, low cost of spreading it to thousands or millions from simply because they’ve been granted privileged statutory protection.

I completely agree with Kinsella, Tucker, Surda and others that authors of original works could reliably earn good money from producing popular works without having to resort to IP. The ways they achieve this would need to be a little different and perhaps even a little creative themselves but why is this bad for society or why would it mean such authors would effectively become slaves as you’ve argued before? I have first hand experience in authoring an original work, not enforcing copyright and yet achieving positive financial returns for my company as a result of that original work.
In my experience most authors produce these goods as much for their own satisfaction and perhaps posterity and it is a distant second, third or fourth thought about whether it will make them rich or not!

Oops, a bit long already! I’ll leave it here for now.

The Kid Salami March 23, 2011 at 11:03 am

Matt470

“You have to be an ancapper and a full subscriber to homesteading rules to disapprove of IP. I don’t have a problem with ancappers and theories of homesteading (although I’m not totally convinced) but you do not need to be in this camp to disagree with IP. I think there have been quite a few bloggers on this site to point that out. ”

Really? Notwithstanding the various people that have indeed “point[ed] that out” to me, I’ve been asking for specifics for some time. I will in fact show the list I have so far

1. Vagueness.

Erm, that’s it. Please furnish me with your argument if you have one, I’m all ears. And incidentally, I reject that criticism of vagueness.

“I agree with Wildberry somewhat again that property is a human device (although Robert LeFevre may disagree because he points out property boundaries in the animal kingdom – ie. territoriality).”

I think you are missing the point here.

matt470 March 23, 2011 at 9:33 pm

@ Kid Salami

Are you seriously suggesting that I need to prove why I don’t fit within the box you’re trying to place me in simply because I also disagree with IP? It is not my job to defend others’ arguments just because they may also disagree with IP!

Don’t be lazy. State your objections and/or what you want me to clarify about the points I’ve directly raised and we can take it from there.

I think you are missing the point here.

I’ve read and re-read your post several times and I’m pretty confident it is devoid of any point so I’m not surprised I’m missing it… Out of interest, can anyone else explain the point I’m missing please?

Wildberry March 24, 2011 at 12:56 am

@Anders Mikkelsen March 22, 2011 at 11:24 pm

I have to admit I fail to understand how patents might be justifiable under the law of wildberry. Patents are about ideas.

To claim that “patents are about ideas” is just as equivocal as to claim that you oppose copyrights because “ideas are free”.

For those interested, here is brief blurb from Cornell: http://topics.law.cornell.edu/wex/Patent

What patents and copyrights have in common is the competing objectives of economic incentives through limited monopoly v. public access and protection of the public domain. I prefer to discuss copyrights because the issues are more straight-forward and it illustrates the fundamental principles of DISTINGUISHING between mere “ideas” which are in the public domain and therefore PROTECTED from ownership claims, and “property monopoly” of protected works, which rests on the concepts of property rights.

If copyrights have the same foundation in wildberry law as patents, then . Slaves are ‘property,’ but I think we realize that the foundational principle of property is actually quite different.

You must unpack your concepts of what are the subject matter of IP laws from the concept of property rights. Property rights, as a concept, can exist outside of the context of IP.

In short, both patents and copyrights distinguish between “ideas” and “protectable subject matter” of the applicable IP law. In this regard, you cannot argue against IP by conflating that distinction. I object to that common practice here in this discussion.

I don’t think property is a human device to establish boundaries for scarce resources. Scarce resources by their nature have boundaries and exist in time and space. Property rights are the recognition of who has control over a scarce resource. (I would submit that under politics there is a lack of recognition of control over scarce resources – e.g. budget dollars can be allocated in many different ways.)

Property is a concept. At the most fundamental level, property can be nearly anything, tangible or intangible. Also at the most fundamental level, property rights arise when 1) rights to something are asserted and 2) successfully defended.

From this viewpoint, there is no difference in the way that the concept applies to animals (territoriality) and humans. Both will assert and defend their territorial integrity against invaders.

When you are discussing property rights in the context of human society, you must address the various levels of analysis: ethical, moral, legal, and economic.

The first line of defense of an assertion to property is force. Second is ethics. Ethics are designed to establish rules that contribute to the avoidance of conflict, in general by binding a society to a common code or morality.

There is nothing inconsistent in asserting that “slaves are property” under a theory of property rights. If that assertion is successfully defended, chattel slavery would follow normal rules of property law: the right in the owner to exclusive use and possession.

However, this assertion fails the ethical test that asserts that “all men are created equal”, inter alia. Therefore the assertion fails, and eventually that assertion could no longer be defended on ethical grounds, and the laws asserting property rights in slaves were abolished.

This narrative has nothing to do with the operation of property, as human device for establishing how resources are going to be handled in the face of competing claims of ownership; i.e. use and possession.

This right of ownership extends up to and including the boundaries of your rights. No one has a right to cross those boundaries without violating your property rights. That is simply the nature of all property rights.

Actually property rights are the recognition that you have no legal limitations on or in the use of your property, so long as you do not trespass on others.

I think you will agree that trespassing is a limitation on your property rights. You own your body and chattel, but you cannot cause it to cross the boundaries of another’s property. In the act of trespass, you do not surrender your ownership of your own property. However, you are liable for the damages you cause by your trespass. The force used or threatened to make you pay these damages is not aggression, because it is a defensive action against your initial aggression of trespass.

This is an analogy for the operation of all property rights in general, and has little to do with whether or not you have justifiable rights to the subject property. If you do, this is how it operates. If you don’t own property, then it is an act of aggression to take liberties with property you do not own, because if you don’t own it you have no rights to it to defend. Don’t you agree?

Seriously though I do think this is a big problem with your argument and why I suspect you can’t possibly create a foundational argument (as there’s no foundation.)

This is why I asked you this question here: http://blog.mises.org/16099/ideas-free-and-unfree-a-book-commentary/comment-page-1/#comment-767533.

Although I can restate the foundation, it is not necessary. You agree that an author of an original manuscript owns it as his property. So we are only debating how that property right operates in the context of copyrights and the act of copying. Isn’t that correct?

Yes, well it seems like the boundaries keep on changing and intruding in an IP world.

I suppose this is meant to be an general anti-IP editorial comment. Each time property rights are created, it changes things at the margins of the boundaries of the property rights. The very concepts of “original” and “unique” mean that they did not exist before they were authored or invented. If everything is already owned at the moment of creation, how is new property brought into existence?

Peter Surda argues that new creations can only exist if they somehow take away some rights in the pre-existing property, since all property is already owned 100%. This is a zero-sum-game concept of reality. The very concept of innovation means that something new is created. It is not always simply a “reconfiguration of existing property”, as he claims. Some things cannot be created, such as land. Other things are created, like paper. If paper was a finite resource, we might have all of the books we were ever going to have. New works and inventions are net increases to the prior state of property. They get created like paper gets created; it grows out of a combination of goods in both the private domain (land) and the public domain (rain, air, wind-blown seed).

Innovations are created out of the private domain (body, mind, experience, intellectual endeavors) and the public domain (ideas, letters, words, concepts language, facts, history, formulas, natural laws, etc.)

Kinsella argues that creation is not a justified basis for property rights to arise because we really don’t “create anything”. This is another equivocation. We may not create hydrogen, but a hydrogen bomb is clearly an innovation. Within the meaning of “original work” we do in fact create works that did not exist before, and there is no reason why there isn’t room for these goods as property. We are not “full up” with books, and we haven’t run out of paper to print them on, although we may abandon the practice for economic reasons…

I still don’t get it. Making a work less scarce by copying it doesn’t seem relevant to the scarcity problem of original works. The original work isn’t affected physically – though in wildberry law rights and boundaries are violated.

This is the bass-ackwards analysis of causality I mentioned earlier. When you counterfeit a $100 bill, it would be worthless in the absence of legitimate currency that you are copying. Getting $100 of purchasing power for the cost of some paper and ink is a rip off of somebody, right?

Don’t go too far with this analogy, I’m just talking about the causal relationship between the original and the copy. The rip off is only possible because the legitimate original exists. You cannot make a copy of something that doesn’t already exist.

To make your anti-IP argument in the counterfeiting context, you would argue that there is nothing wrong with counterfeiting because everybody still has their own money. But somehow this makes sense to you in the context of IP. Go figure.

we don’t believe in restrictive covenants that forever forbid the real owners from selling their land to people of X race or y religion. (But you can of course sell your land to whoever you want.)

I don’t follow you here. Are you saying by analogy that by me asserting rights in the IP contained in the book I sold you, I am discriminating against your rights to sever those rights on the basis of a covenant that enforces on you something like racial discrimination? I can’t see it.

But the real problem is that the copier isn’t doing anything with the book.

It is. It is a limitation of use, as is the case with all rights and all property.

As stated above property is the recognition of absolute rights over your property and yours alone (no trespassing though!)

Are you sure it these rights are absolute? You said yourself “except trespassing”. Isn’t that a limitation on your property rights? Is literal trespassing the only offense for which those rights are limited? No. Therefore your right to exclusive use and possession of your property is not absolute.

It seems to me that Wildberry law is a law of positive rights. You have a limited use to your money – not paying some in taxes or forced charity or tithes would violate the rights of the poor, state, church, etc. There are all sorts of rights schemes like this, however they aren’t libertarian.

Well, looking past the commie-pinko accusations in your statement, isn’t this literally true? It is your money, but is it “libertarian” to spend it on a contract murder? I mean, it IS your money, right? I’m not advocating for a welfare state, or one where one’s only defense against aggression is based on personal means.

I think I am trying to say the exact opposite. My negative rights to my own property imposes limitations on your positive right to use your property in ways which violate my rights. That is the very definition of aggression; violating someone’s negative rights.

If property rights exist in this intangible work, as is the operation of copyright laws, then you are placing an instantiation on your paper. The original author did not transfer his rights to that property to you.

So the author owns all instantiations? Except the instantiations he sold? How is he able to own all future non-existent instantiations?

Well, that is a strange way to put it. What does the author own? He owns the intangible work. What is that, actually? It is something intangible. If you want to know what it is, I have to fix it on paper so you can read it. Why would that fixation sever my property rights?

What is it about making a work tangible that destroys the author’s rights in it? If I own the work, then I have exclusive rights to use and possession. If you use it (original copy) to make a copy, what are you copying but the intangible work? Is it impossible to distinguish between the paper and ink, and the work that is encoded by the use of the alphabet and words to create the expression which you experience as “reading” a book? What are you reading? Paper, letters, ink, photons?

You can only avoid the obvious conclusion that an intangible work exists as revealed by its tangible fixation if you deny that there is any “work” in the first place, that you are merely copying ink spots when you copy a book. If that were the case, then you could not distinguish between a book with random letters, and the specific patterns that you experience as “an original work or authorship”.

So he possesses all instantiations? (I don’t see how his ‘use or possession’ is violated by creating an instantiation unless he owns them.)

Exactly. If he owns them (meaning the rights to the “work” you are copying), they are his, not yours. If I leave my wallet on the counter where you can reach it, it is still mine, even if you take it.

I don’t see what anyone is getting in this example? One simply created an instantiation at one’s own expense.

An instantiation of what, exactly? You are speaking as if WHAT you are copying is non-existent or irrelevant. “I just made a perfect replica of a $100 bill at my own expense!” “I just made a copy of my own poem at my own expense”. See the distinction?

The physical instantiation being copied was of course transferred (and intangible work was transferred in to the mind of the owner at at low cost.)

Yes, not much point in writing a book unless you let someone read it. So let’s say you read a book that no one has ever read before, and afterwards, because you have a perfect photographic memory, type all 500 pages out on your computer. What did you type out? Where did it come from? Who is the owner of what you typed?

You appear to be saying that you are, because everything BUT the work was your own property. Yet what about the work? Isn’t that what you copied? What you copied is the relevant distinction, not whose resources you used to make the copy.

When you get something for nothing, except the very low cost of taking it, it is called stealing. This is why copyright infringement is analogous to stealing. It can only be argued it is not stealing if you deny property rights in the intangible work.

Well actually stealing is when you take something that doesn’t belong to you.

Aren’t we in agreement here? It’s only stealing if you take it, use it, and it isn’t yours.

When you get an intangible work in your mind you aren’t taking something that doesn’t belong to you – if you were you wouldn’t be allowed to read or listen. Similarly if you record the output generated by electronic media you aren’t taking.

Of course not. When you buy a book you are supposed to read it. It is the reading of this particular work that you are paying for. You are actually paying for the intangible content and the package. If you can make the package cheaper by digitizing it, you are still getting the content, right? Who does that belong to? When a book is “sold”, you are buying the reading experience, not clear ownership of the work. That is not being transferred to you. Why would you believe that it is? Because it is cheap for you to make a copy? How does that establish your better title to the work than the author, and how does it sever the author’s property rights in the work.

Perhaps we can return to contract theory for a moment. If I own an original manuscript, and by contract sold you a copy of it, with the provision that you can’t make copies or claim any property rights in the copy to make other copies from it, you would be fine with that, right? There is no controversy about how the author’s ownership arose, or how he established the limitations on your use of it.

Now if exactly the same thing is happening by operation of law, why would you object? What is the difference in the two cases? Privity; the difference between a contract and a law is that under the law, “privity” exists for everyone under the jurisdiction of the law. No contract required. You don’t ask everyone to sign a contract not to trespass on you land. The legal concept of property right makes everyone subject to the operation of the legal rights you have in the land, by operation of law.

To put it another way if property rights are encoded in a law, you don’t need a contract with everyone to enforce your rights. That is the general nature of the operation of all property rights. So again, IP merely operates the way that all property operates. That is why this is an empty argument. It only leads you back to the issue of legitimacy of the rights to IP.

Now you may argue that just because it is a law doesn’t make it right. Of course! If a law is unethical, it should be opposed and overturned. So again, the first defense of an asserted right is violence, the second is ethics. Ethics is preferable over violence because peaceful resolution of disputes is more “civilized”, and laws not grounded in acceptable ethical principles eventually fall.

I am simply arguing that the existence of property rights in IP is ethical because under the principle of self-ownership and free use of the public domain of ideas, no one can claim a better title to an original work of authorship than the author. It is that simple.

Forget all the side arguments, and start with an original manuscript. Ownership is not in dispute. When it is transferred in the form of a copy to you, it is, by legal convention, a property transaction. Property can be sold free and clear, rented, leased, etc. The transfer of property can be done with conditions. IP law is simply a convention for establishing those conditions. There is no controversy about any of this. The only real controversy is whether it is ethical for property rights to arise in IP.

If you are going to argue that IP in general, and specifically copyright is not ethical and therefore unjustified, you have to make that case without equivocating relevant distinctions. If you cannot make that case, then all of the other arguments around the illegitimate operation copyrights fall apart.

I don’t really get how property rights in intangible work are valid claims to impact real property – property rights in people don’t really seem valid either. It seems more like such property rights are the right to violate other peoples’ property.

When the ethics of one right conflicts with another, it must be resolved by deciding which principle is supreme. That is the answer to the slavery issue you raise. What principle does IP conflict with would not be true of any other property rights?

That I created the copy obviously and he has no right to invade my real property to enforce his claims to my transformation of my property however I see fit. My ownership of resources to produce the instantiation are part of the causal chain too. In fact lots of things are. However property rights in tangible things sans IP rest on solid ground – IP seems to rest on a ‘just so’ story that begs the question.

So you are saying that by creating the copy, you have established your ownership of the object of the copying? Why? You had to have an original that you don’t own, to copy from. If you copied from the original manuscript, now there are two copies of the work. You have equal title to the work as the author of the original?

I still don’t see how a configuration of atoms falling in to a certain configuration magically changes the ownership of the atoms.

I agree, why would it, any more than making a copy of a work magically changes the title to that work? It is not the physics of reading a printed page that is relevant. Photons are in the public domain. When a movie projects on a screen, no one is saying the light that bounces off the screen is “owned”, even though the movie is protected under copyrights.

Nor do I see how such a configuration can be illegally possessed by me

I am not saying that even if you made a copy from a book you bought, that you illegally possess it. I am saying that if your use of the work did not fall within something like a “fair use”, then you can’t do it without violating the rights of the author.

In the case of people I do see there is a magical change when new life appears – but the magical change certainly doesn’t mean someone owns my child for life.

I agree. Kathleen Touchstone writes on this beautifully, contrasting Rothbard’s view on “child ownership” and natural rights.

This kind of transformation of ownership seems quite dangerous – one could create all sorts ways to take over the property of others as soon as they transform it, and in fact that is what IP seems to in fact be doing which is why it is so objectionale.

Are you talking about derivative works here? If so, you can’t generalize in this way. The concepts and copying and transformation have very specific meanings. Can you come up with some example of what you find objectionable?

Actually it seems like the debate is whether property rights in the intangible create property rights in instantiations, and whether the creation of an instantiation instantly transfers ownership away from the creator of the instantiator to the creator of the intangible original work.

Aren’t you reversing causality here? Property rights in the original entails similar rights in copies, because the rights are in the work, not the tangible fixation. If you make a copy of the original and claim ownership to the work in the copy, aren’t you claiming to take ownership away from the author? To take ownership away from you, you would have to own it first. When and how did that happen without depending on the original for your copy?

I said it doesn’t restrict what they do on their property. How am I wrong? I agree it is my right to restrict what they do on my property or ban them entirely. In fact you say “The restrictions are a function of the boundaries between your property and theirs.” This is very confusing.

I don’t understand why, except maybe for the grammar. In real property context, the property line is the “event horizon” that determines whether trespass occurred or not. That is the physical boundary. Rights establish boundaries that limit your actions, as we discussed before with the bat/car example. You can swing your bat all you want, right up the boundary of my car.

This limitations is in use, not property rights. I don’t own you bat because swung it into my car. You do owe me something for crossing my property boundaries and damaging my car with your property.

Fair use of my book on your own property is pretty unlimited. It is not the act of copying that is really the issue. If you made 100 copies of the book and stacked them in your closet, it would be hard to show infringement of my copyrights. But if you distributed them, you would be engaging is an economic activity beyond the confines of your own property. If I have exclusive economic right so something, and you engage in commerce with my property, that is an infringement.

So now apparently between my property and someone elses property IP has created a boundary? It seems some third party unilaterally changed the boundary between my neighbor and I. In wildberry law IP is some sort of interproperty commerce clause?

Well, copyright is an economic right, as is all property rights. Also as with all property there is a distinction in the law between certain acts and others. It is not trespass for me to look at your property. You don’t own the photons that are hitting my eyes just because they bounced off your property. Likewise, it is not a violation to borrow or distribute or sell a single copy of a book to others. Otherwise libraries wouldn’t exist. So it is only the specific acts of engaging in the use of the economic rights through copying, i.e commerce. Such acts are an infringement of the economic rights of the owner of the original work.

I guess the leap is that you believe authors potentially own all instantiations.

Yes, it is hard for me to understand why this causes you difficulty. Say I write a book and license it to a publisher. When you buy a book, (think traditionally) the money flows from you to the store to the publisher/printer to the author. That is the channel of distribution for the production of the book owned by the author. Now you come along, and take one of the copies, in which you have invested none of the capital required to establish this distribution, not the least of which was the work required by the author to crate the original, and you set up your own distribution chain. Suddenly everyone in the author’s distribution chain is competing with you. You wouldn’t be able to compete at all unless you used the original copy to make your copies, but you didn’t do any of the work, yet you claim equal title to the work as the author has. How is that respectful of property rights? How is that libertarian?

Recalling the distinction between “property monopoly” and “economic monopoly”, the author is not claiming title to ALL books, jut the particular original work that he authored. This is the same as claiming a monopoly in my particular hotel. I think you are distracted by the low cost of copying. That is not a fair accounting of the situation. Our copy is cheap because you are not incurring any of the capital costs that were required to produce the original work. Why would you claim an economic right to that for “free”, or for the cost of a single book to copy from?

I’d say it is unique because normally I can do whatever I feel like within the confines of my property.

I think you can under current copyright laws, anyway.

My home is no longer my castle – it can be invaded by legal agents or I can find myself violating the property rights of someone who isn’t even there and didn’t leave there property there if I violate IP.

If you are copying music and sending it out over the internet, are you still within the confines of your property? If you are making copies and backing up your CD’s by making archive files, or moving them onto iTunes, are you within the confines of your property.

The “no” in the first part and the “yes” in the second part are distinctions that make common sense, and are reflected in the current law. The image of agents from the Matrix invading your home is a bit of an exaggeration, don’t you think?

Since I don’t see how one can own all future instantiations, I don’t see the connection with violation of rights. We have ownership to make it clear who controls things. I control my instantiations, you control yours. The copy might not exist without the original – but it also wouldn’t exist without my property to make it. Taking my property seems more like stealing than my making a copy?

This contradicts what I said earlier about the difference between violating my rights and taking (claiming ownership rights) to your property. I have not said that is the case, and nothing in copyright operates that way. The common denominator between my “instantiations” and yours is the “work”. Why do want to blow right past that obvious fact? Take your property, your printer, your computer, whatever, and do what you want. Your only limitation is that you can’t use your property to violate mine. That is a general rule and applies outside the context of IP. Why make a special case for IP?

Seems like the point was missed that enforcing IP will likely involve trespass – just like enforcing drug laws entails wholesale violation of rights.

In both examples you give, the common denominator is the distinction between a trespass (aggression) and retaliation (defense) for trespass. If the act is illegal, then enforcement of a violation is not aggression. If you think something shouldn’t be illegal on ethical grounds, that is different. Again, this argument just comes back to the legitimacy of the rights in the first place.

You have already conceded that the original manuscript is the author’s property so we don’t have to argue about that. You can’t seem to admit that a manuscript is comprised of both tangible and intangible goods. If you apply the same rules of property rights to the intangible work as you do to the tangible medium of fixation, you can see they operate exactly the same. If you shift your definition of IP rights to attach to the intangible work instead of the tangible fixation of it, everything else falls into place.

I think extension of copyright makes it clearer that the principle of IP is problematic. If copyright is just – why not have it for longer? Real property rights don’t expire! That’s a feature not a bug of property rights.

You may be surprised to find that I agree with you on this. The term of copyrights has been exploited by what amounts to mercantilism. It should not be zero, and it should not be perpetual. I think the original scheme of 14 years and one renewal is about right. At the most, life of the author plus 14 years. Perhaps something tailored to the nature of the work might make sense. We’ll have to leave that for another time.

One quick objection. Real property rights DO expire. They expire at the end of the property owner’s life, normally, when title typically transfers to heirs or devisees. Even in the operation of wills designed to control this transfer for as long as possible into the future, the rule against perpetuities limits the life of the “invisible hand”. All right expire.

Wrong. Property rights properly formulated don’t conflict at boundaries! The boundaries meet. You do you and I do me. There’s no conflict with property defined property rights. That’s the whole point of mises book liberalism – how do we create a social system free of structural conflict. He asked and answered how do we create justice – defined as ongoing peaceful relations?

You are right to correct me on this. I meant that conflict occurs at the boundaries, where the boundaries meet. That is the event horizon of conflict. I agree with Mises, who also said property is a human device, exactly for the reason you describe, to reduce or eliminate structural conflict within society.

I’d say this is right “One of the fundamental functions of a legal system is to establish rules for resolving conflicts about what the property rights are peacefully and rationally.” However the property rights don’t establish rules.

I agree. Property rights don’t establish rules, they are the rules.

This creation of constant conflict is the reason why IP is being attacked.

OK, let me agree with you here. I know Kinsella hates it when anyone says this, but I think there are big problems with patent law above all other IP. It is partly a function of exponential technological innovation characteristic of our times. Mostly though, it is a reflection of the general incompetence of our present government, and the exploitation of political power by special interests.

Like intervention in banking, government sponsored mercantilist distortions of the patent system is a big problem. Also like banking, in order to figure out what the “libertarian” solution might be, we have to distinguish between the proper principles and the desired operation and outcomes.

The debate on IP here has been focused on whether the fundamental concepts and principles of IP laws are legitimate and justified. Answering “yes” does not mean the entire system is fine as it is. I don’t have to abolish the concept of banking to understand that central banking schemes are antithetical to libertarian and Austrian economic principles.

To abolish the concept of IP is equivalent to abolishing the concept of banking. Both are human devices, and both can be created, revised or abolished according to our will. I happen to believe, after many, many hours of reading and writing on this subject, that IP rights in principle are legitimate and justified.
I don’t think they are “Rosemary’s baby” to quote one of Kinsella’s funnier lines.
funnier lines.

The Kid Salami March 24, 2011 at 4:33 am

matt

“Are you seriously suggesting that I need to prove why I don’t fit within the box you’re trying to place me in simply because I also disagree with IP? It is not my job to defend others’ arguments just because they may also disagree with IP! Don’t be lazy. State your objections and/or what you want me to clarify about the points I’ve directly raised and we can take it from there.”

What on earth are you talking about? You seem to be offended – yet what you are suggesting I do is exactly what I, in fact, did already. Your words were:

“I don’t have a problem with ancappers and theories of homesteading but you do not need to be in this camp to disagree with IP. I think there have been quite a few bloggers on this site to point that out. ”

And my response to your words was:

“I’ve been asking for specifics for some time…Please furnish me with your argument if you have one, I’m all ears.”

I repeat – where is this argument? Do you have one?

And I’m not lazy. I am simply tiring of constantly correcting people about completely obvious points. I’ve read that book “The Territorial Imperative” that Robert Le Fevre discusses and it is my contention that your comment means you are missing the point of what is contained therein and Wildberry’s comment about property being a “human” device.

Peter Surda March 24, 2011 at 4:57 am

Wildberry,

Peter Surda argues that new creations can only exist if they somehow take away some rights in the pre-existing property, since all property is already owned 100%.

Almost. Only I phrased my argument as an implication (if … then …).

This is a zero-sum-game concept of reality.

And this is a deceptive formulation that attempts to trick the reader into the emotional reaction of rejecting my argument.

The very concept of innovation means that something new is created.

By using two different words to refer to the same phenomenon, you pretend that there are two different phenomena. Just like someone who invents “race purification” to distract from the fact that they are referring to murder. If there were, in fact, two different phenomena, then it would be possible to show a situation where one occurs without the other.

If, on the other hand, the trick of using a new word was a valid methodology, then it would be impossible to disprove anything and all debates whatsover would be pointless. But I already said that, Wildberry.

Yet again your argument is a complete failure. You are ignorant of elementary logic and the scientific method.

matt470 March 24, 2011 at 8:52 am

@ Kid Salami – March 23, 2011 at 11:03 am

If I understand you correctly then you are simply asking me what are my grounds for opposing IP?

This is a strange request. Every where I’ve blogged on the topic, all of it on this site, written down as my own “original works” and gifted freely to all who want to see it ;-), I’ve been laying down my objections to IP and they are not synonymous with the ancappers objections (although many similarities). I contend that it is not my job to specifically point out to you all or even any of those differences – this is your job (hence me saying your request is lazy). Likewise I intend not to restate my entire case against IP just for you…. search entries from “matt470″ on all of the LvMI IP blog pages and voila… there they are. After you’ve read these then if you have any specific queries or criticisms of my stance then by all means post them here and I’ll have a go at answering them if I feel they merit it.

BTW, I wasn’t offended but perhaps a bit flabbergasted by your initial response. I don’t intend to offend you either with my comments about being lazy but I tire easily of repetition.

The Kid Salami March 24, 2011 at 11:21 am

“If I understand you correctly then you are simply asking me what are my grounds for opposing IP?”

No, this is not exactly true. What I asked is there for all to see in perfectly clear English.

“This is a strange request. Every where I’ve blogged on the topic, all of it on this site, written down as my own “original works” and gifted freely to all who want to see it , I’ve been laying down my objections to IP and they are not synonymous with the ancappers objections (although many similarities). I contend that it is not my job to specifically point out to you all or even any of those differences – this is your job (hence me saying your request is lazy). Likewise I intend not to restate my entire case against IP just for you…. search entries from “matt470″ on all of the LvMI IP blog pages and voila… there they are. After you’ve read these then if you have any specific queries or criticisms of my stance then by all means post them here and I’ll have a go at answering them if I feel they merit it.”

No answer to my question? Ok. I don’t usually expect to be handed research projects from debates on threads such as this – so in the absence of any words or links to help me out, I’ll have to pass I’m afraid.

Wildberry March 24, 2011 at 12:05 pm

@matt470 March 23, 2011 at 9:19 am

Are “ideas” synonymous with “original works”? No I don’t think so.

OK we have an agreement on this. Let’s build on it.

I can see the distinction Wildberry is making and I think he is right to say there are differences although I don’t agree with the extent at which describes this difference nor quite his utilisation of it.

I look forward to understanding more about this difference.

Can we all agree that original works are a particular or specific sequence of ideas expressed in a tangible medium at least part of which is original (by definition)?

Yes, and I would add that the part of a work that is not original, say it is already in the public domain, or from another protected work, is not protectable, even though the “expression” is protected under copyright.

I can then agree with Wildberry somewhat that the argument that “ideas are free” by itself is not very effective at establishing that copyright is bad because copyright is actually more specific than just ideas (and from Wildberry’s paste above from the statute it specifically excludes ideas).

Strong agreement here. All I have been asking for is a fair reading of the law and its operation. We can take it from there.

I think the specific exclusion of ideas though is in a large part due to things that it puts with them….
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 work.

Why not? Because otherwise there’d be no room for patents – aren’t those specific things of authorship it mentions instead protected by patents?

No, I disagree here. This is an example why it is not easy to compare apples and oranges, copyright and patents.

Copyright can exist without reference to patents, and in fact does not attempt to limit the subject matter of copyright in order to “leave room” for patents.

My criticism of Wildberry’s exaggeration of the distinction between “ideas” and “original works” is that he does so to separate copyrights from patents so that he can focus only on copyrights and ignore one of the other crucial parts of IP. I’m not sure that Wildberry likes to defend patents at all because it is further down the slippery slope and closer to infringing on “ideas are free”.

Let’s assume this is true (it is not). If the anti-IP arguments can hold up, they can hold up against copyrights. Focusing on that helps keep things straight in the argumentation. If you want to discuss patents specifically, we have to go down the same road as copyrights using the principles of patents, which have some similarity with copyrights (i.e. distinctions concerning what is protectable and what is not) and some significant differences, (i.e. the subject matter and operation of patents)

I understand that opponents want to pick the worst example of the most severe form of IP protection, and then pick the worst horror in the parade, in order to make the general case against IP. I am taking the approach that says that “ideas are free” is not adequate to prove that the principle of IP rights is unjustified within a context of libertarian thought and Austrian economics. You agree, so let’s stick with copyrights as the context of that debate. It serves the purpose.

Ok, let’s get rid of another troubling one….
You have to be an ancapper and a full subscriber to homesteading rules to disapprove of IP.

I would not say it this way; I favor Kid Salami’s way of framing the issue. Ancaps have a system of self-supporting logic that claims that rights in tangible property are the ONLY measure allowed to evaluate aggression. By definition, then, rights in intangible goods are unjustified. If you grant that property rights are not determined solely by tangibility, then you have to argue the justifiability of rights in intangible goods. Ancaps won’t go there, and invent all kinds of arguments to prevent this enlargement of the concept of property rights, including the “ideas are free” argument.

Oddly, there is no way to argue that an author “owns” the rights to an original manuscript, provided he uses his own legitimate means to author it (ahem…), which seems to be an accepted premise, and then to deny the rights to the intangible once the first copy of it is made. This is the fundamental contradiction of the opposition, which ultimately is indefensible.

I don’t have a problem with ancappers and theories of homesteading (although I’m not totally convinced) but you do not need to be in this camp to disagree with IP.

I can agree in principle, but I haven’t seen much here at mises.org to support that assertion.

I think there have been quite a few bloggers on this site to point that out. There is little point just hammering out this debate firmly anchored to different philosophies – therein lies the merry-go-round.

I disagree here, and align with KS on this. I think fundamentally there are two arguments against IP put forward here. First, “ideas are free” and “we have IP because we have the State”. If you peel back everything said here in opposition to IP, it reduces to those two arguments.

I agree with Wildberry somewhat again that property is a human device (although Robert LeFevre may disagree because he points out property boundaries in the animal kingdom – ie. territoriality). This doesn’t then mean though that we have to be completely utilitarian about it. By accepting that the purpose and existence of property rights are a device for humanity to get along peacefully and cooperatively doesn’t tell us that we ought to use property rights to attempt to maximise societies’
wealth. However pro IP folks use it in this way which to me seems quite anti libertarian as I think Anders has done a good job of pointing out.

I don’t know where you get this, but I disagree with your conclusion. Property is a human device because it is a social convention in the service of cooperation, including division of labor, the hallmark of any sophisticated society. In fact, all rights serve this human purpose. In this regard, there is no other reality to the concept of “natural rights” if you mean “granted by nature”. They are only “natural” in the sense that humans may hold them to be “self evident”.

Another thing that troubles me is the IP proponents insistence on labeling breaches of copyright as theft or piracy. I guess I can’t argue about the use of the word piracy now as it seems to be accepted in our language to also mean this but come on, have a look at what the conventional definition means and then try and relate that to the act of unauthorised duplication of original works….

Let’s not quibble here. We are really talking about the distinction between aggression and defense. Since Ancaps have captured “aggression” as a term that they define to support their conclusion, it is hard to use that word in a more general sense. So piracy and theft are analogous concepts, as each is an act of aggression.

(although yes it does fit the definition if one accepts that IP is truly property).

We can agree on a more general interpretation. I am not saying that copying an MP3 file is the equivalent to blowing a ship out of the water and plundering the cargo. It is meant to be an analogy.

We’ve also had to live with central banks for several hundred years and I don’t think that fact justifies their existence anymore than 200+ years of copyright laws justifies its own existence.

OK, I agree with you. Do you think that if we agree that central banking should be abolished, that we must conclude that ALL banking is unjustified? No, we make a distinction between one thing and another. We define a theory about why central banks are undesirable, and use that argument to revise our concepts about banking.

IP opponents here are attacking the very CONCETP of IP, so arguments pro and con must address the principles that support their position. Both sides share the burden of proving their arguments. That is what is called for.

Would iTunes songs cost $2 if it wasn’t for “piracy” or would they more likely cost perhaps $5-$10?

This is an interesting question. I would say that a free market adapts to changing conditions. I would also say that morality is tested when the “crime” is easy to commit and unlikely to be detected. People sometimes do things they know is wrong ethically, because then justify “it really isn’t that bad”.

The best solution is always a market solution. In the absence of something like iTunes, I might be tempted to copy digital music. I hate buying a $14 CD to get one song I like. iTunes solved that problem for me while preserving the musicians right to income from his products. I “feel” better buying from iTunes all around. Problem solved without ever having to resort to an argument that says “well, the musician really doesn’t own his songs”. This has reduced the necessity or probability of piracy to boot. Win-win.

producers of these goods want to take full advantage of the advancement in technology and pocket these enormous margins between the cost of original production of the good and the low, low cost of spreading it to thousands or millions from simply because they’ve been granted privileged statutory protection.

Watch yourself, this sounds a little Marxian. In a free market, seller and buyer have free choice. You can always decide to go without, since consumers rule. Lowering the selling price increases consumption, all else being equal. I just said that lowering my cost from $14 to $.99 for a single song I want is a big cost reduction in my calculations. That is made possible by the innovations you describe. At this cost, I become a customer. The system works fine WITH copyrights.

I completely agree with Kinsella, Tucker, Surda and others that authors of original works could reliably earn good money from producing popular works without having to resort to IP.

I think this is correct. In the absence of copyrights, say, people will still produce intellectual works that will result in income. Humans are adaptive. The question is what would be the trade-offs. That is a huge question what cannot be dismissed simply because you claim that “everything will be better without the State”. There are real issue here, and you can’t run a social experiment to “prove” your assertion. So don’t be so glib on the subject of how the market would adapt to a compete abolishment of IP. Don’t forget, when you pose a scenario like this, you are also dismissing the impacts of patents, copyrights, trademarks, and “reputational rights” (i.e. blackmail), all of which will require social adjustment in the ways we do daily business. As Peter Surda recently said, it is a “1, 2, 3 Poof!” kind of an argument. I would want to know a little bit more about what’s at the bottom before I jump of this particular cliff.

The ways they achieve this would need to be a little different and perhaps even a little creative themselves but why is this bad for society or why would it mean such authors would effectively become slaves as you’ve argued before?

Do you see how you are minimizing the problem? As a general principle, you are saying that the connection between an author’s output and his income will not change with or without IP? As a general principle, as Mises observed, when an author produces a work that is freely available, he is producing for external economies. Unless you can demonstrate how you solve that problem across all of the dimensions of IP, you cannot claim that the absence of IP will have no significant impact on the output/income relationship for producers of intellectual works.

I have firsthand experience in authoring an original work, not enforcing copyright and yet achieving positive financial returns for my company as a result of that original work.

This is an issue of marketing strategy. As the owner of property, you are entitled to invent your own strategy for bringing your products to market. No one should tell you how you need to do it. The entire area of ePublishing is emerging in response to this issue. Doing something because you CAN do it is not the same as doing something because you have NO OTHER CHOICE. Libertarians believe in giving these types of choices the producers of goods through private means of production.

In my experience most authors produce these goods as much for their own satisfaction and perhaps posterity and it is a distant second, third or fourth thought about whether it will make them rich or not!

I recall Mises dealing with this issue, and he uses a technical manual as his example (he always seems to use examples which cut to the heart of the issue). Whereas the intrinsic rewards you describe may be true for the poet or novelist, or even a political activist, etc., I can’t see how this argument would apply to the authoring of a technical manual that takes a couple of years to produce, has very high value and very small customer base. The transaction costs of selling this manual under contract, and policing breaches would be high. Would they be higher or lower in the absence of IP laws? Well I know what they are with IP, but not without IP. Do you? That is a problem. If this problem could not be solved, then the author would find himself producing for an external economy, which I have said, which is somewhat inflammatory, I agree, that this is the definition of slavery. So unless you can adequately prove that IP is not required to preserve this relationship between output/income, then you are advocating that authors operate merely on the basis of intrinsic rewards, which would be a form of slavery. Since slaves who have a choice set themselves free, this type of work would vanish, or the cost of production and distribution would have to be much higher for the individual producer.

Oops, a bit long already! I’ll leave it here for now.

I can hardly complain about verbosity. I hope you find this useful.

Peter Surda March 24, 2011 at 12:43 pm

Wildberry,

The question is what would be the trade-offs.

The tradeoffs are obvious:
- higher predictability of legal status of business activities
- lower law compliance costs
- lower production costs
- stimulation of competition

Even if you disregard the Austrian approach altogether, those points are easily accepted by many mainstream economists as beneficial. It’s the same argument that is used against other protectionist measures, like tariffs, subsidies, monopoly grants and so on.

matt470 March 25, 2011 at 7:33 pm

@Wildberry – March 24, 2011 at 12:05 pm

Wow, I’ve had to scroll through a few paragraphs now to hit our first real stumbling block in this latest dialogue. It’s a bit satisfying to reach some areas of agreement. The road gets a bit bumpy from here down though….

I understand that opponents want to pick the worst example of the most severe form of IP protection, and then pick the worst horror in the parade

This is an exaggeration. I work for a run of the mill corporation (we’re no horror parade) and we own many patents. The existence of IP laws changes our behaviour in several ways – some would be considered good, eg. investment in R&D, others not so good, eg. monopoly protection that saves us from further R&D investment and stifles any competition in those areas. I personally judge that in the balance it harms our industry and consumers generally more than it does them good. This is not a case of scouring the net for extreme cases to make a horror parade out of, we’re just another cog in the division of labour wheel. Ok, let’s move back to copyrights again then.

Ancaps have a system of self-supporting logic that claims that rights in tangible property are the ONLY measure allowed to evaluate aggression. By definition, then, rights in intangible goods are unjustified. If you grant that property rights are not determined solely by tangibility, then you have to argue the justifiability of rights in intangible goods.

Sure, ancaps claim that tangible property is the only property that should be protected by property rights. It is a logical fallacy that I’m sure you can recognise to then suggest that anyone holding this view must be an ancap. Take note Kid Salami that was my same objection to you trying to pigeon hole me for the benefit of your pre-constructed arguments.

Tangibility is a crucial element of property rights because without it there cannot be rivalry and hence the human device of property rights are not needed to prevent conflict over their use… we can all use it in our own ways at the same time (eg. recipes).

Oddly, there is no way to argue that an author “owns” the rights emphasis added to an original manuscript, provided he uses his own legitimate means to author it (ahem…), which seems to be an accepted premise, and then to deny the rights to the intangible once the first copy of it is made. This is the fundamental contradiction of the opposition, which ultimately is indefensible.

Not at all… this is just where you are stuck. Your use of “the rights” is redundant. The author simply owns the original manuscript and there is no logical bridge to then say that person must own the intangible it is based on. Why? The author has full control over the intangible on the manuscript while it remains original and undistributed… they lose control of the intangible once it has been distributed outside of specific contracts. The intangible itself was never a property right, its tangible expression was. This is an entirely conceivable way of operating and has requires no dependence on homesteading or ancap principles. I believe it was the way most of the known world operated prior to IP laws and very sure that the vast majority of those societies were not based on ancap principles. So if this possible stance has not been asserted at mises.org before, it has now.

I think fundamentally there are two arguments against IP put forward here. First, “ideas are free” and “we have IP because we have the State”. If you peel back everything said here in opposition to IP, it reduces to those two arguments.

IP exists in its current form because we have the State – I would think that is fairly uncontroversial. Could we have IP without the state? Yes, but voluntarily and contractually. Would it exist without the state? I don’t know, I suspect in some limited areas but nowhere to the extent it is today.

Property is a human device because it is a social convention in the service of cooperation, including division of labor, the hallmark of any sophisticated society. In fact, all rights serve this human purpose. In this regard, there is no other reality to the concept of “natural rights” if you mean “granted by nature”. They are only “natural” in the sense that humans may hold them to be “self evident”.

I’m not sure what we arguing about with this… I actually think this is completely correct. Unfortunately for you though, accepting the above doesn’t mean that we have to use the concept of property to maximise society’s wealth in line with some common utilitarian philosophies.

We can agree on a more general interpretation. I am not saying that copying an MP3 file is the equivalent to blowing a ship out of the water and plundering the cargo. It is meant to be an analogy.

Sure, but words can hardly describe how poor an analogy it is. Anyway, I shouldn’t have bothered taking us off track with this, it’s simply a frustration I have. We can move on.

IP opponents here are attacking the very CONCEPT of IP, so arguments pro and con must address the principles that support their position.

I’m attacking the concept of IP as it exists today; I’ve agreed there may be other potential ways of having some form of IP.

Watch yourself, this sounds a little Marxian. In a free market, seller and buyer have free choice.

In a free market an interventionist State doesn’t lay down the framework and statutes to create monopoly privileges.

The question is what would be the trade-offs.

Watch yourself, this sounds like you think absolutely any intervention by the State is proper so long as the sovereign leaders believe the “trade-off” is worth it. Too bad for me if the trade off involves trampling any of my rights. Not really libertarian is it?

As a general principle, you are saying that the connection between an author’s output and his income will not change with or without IP?

Check my comments again. I did not come close to implying that. Saying that authors could still make an earning makes no reference to whether it would be more, less or the same.

Unless you can demonstrate how you solve that problem across all of the dimensions of IP, you cannot claim that the absence of IP will have no significant impact on the output/income relationship for producers of intellectual works.

Correct, and nor have I made this claim. See my point immediately above.

Libertarians believe in giving these types of choices the producers of goods through private means of production.

Please! Only having the option to pay monopoly prices for a non-rivalrous good is something I CAN do but it is not the same as having to pay monopoly prices for the same good because I have NO OTHER CHOICE. Libertarians believe in giving these types of choices the producers of goods through private means of production.

I recall Mises dealing with this issue, and he uses a technical manual…..If this problem could not be solved, then the author would find himself producing for an external economy, which I have said, which is somewhat inflammatory, I agree, that this is the definition of slavery. So unless you can adequately prove that IP is not required to preserve this relationship between output/income, then you are advocating that authors operate merely on the basis of intrinsic rewards, which would be a form of slavery.

I also recall Mises dealing with this issue and that example he uses. It does not mention slavery (and I suggest that is the case for a very good reason).
Economics 101… if a good is scarce and there is a demand for it will command a price in a free economy market (and a hampered market economy for that matter).
Ok so Mises’ point is that the price for some technical manuals may be so low to prevent many of them being produced. So what? If the price is that low then the demand isn’t that great and the world continues on it’s merry way. If the demand spikes because we realise the terrible trouble we’re in without these technical manuals then I’ll let you answer what would happen to the price?

I hope you find this useful.

Fun as always. I somehow doubt it ends here :-)

Wildberry March 26, 2011 at 7:29 pm

@matt470 March 25, 2011 at 7:33 pm

Sure, ancaps claim that tangible property is the only property that should be protected by property rights. It is a logical fallacy that I’m sure you can recognise to then suggest that anyone holding this view must be an ancap. Take note Kid Salami that was my same objection to you trying to pigeon hole me for the benefit of your pre-constructed arguments.

Whether you are an ancap adherent or not is not relevant to this point. This assertion is inconsistent with other rights you do acknowledge, which are intangible.

A debt is an intangible business interest, and is treated as such by the laws of contracts and remedies. You don’t deny rights in those, you just refuse to call this type of property “property”.

So your adherence to the tangibility requirement for property rights puts you in the ancap/Rothbard camp on this issue. You may have other differences, but I don’t know what they are. Kid and I appear to be aligned on this point of defining away the possibility of property rights in an intangible good, but he can speak for himself.

Tangibility is a crucial element of property rights because without it there cannot be rivalry and hence the human device of property rights are not needed to prevent conflict over their use… we can all use it in our own ways at the same time (eg. recipes).

There is too much confusion here to sort all this out. A recipe is not the subjet of IP protection because “ideas” is not equivalent to “IP”. Suffice to say that you are demonstrating my point above. In addition, I would argue that “original works of authorship” are scarce, and as such have all of the problems of tangible property rights regarding rivalry. If it wasn’t for rivalry, the author wouldn’t complain about unauthorized copying and no one would bother doing it.

Not at all… this is just where you are stuck. Your use of “the rights” is redundant. The author simply owns the original manuscript and there is no logical bridge to then say that person must own the intangible it is based on.

Here you are merely restating your conclusion that property = tangibility.

Why? The author has full control over the intangible on the manuscript while it remains original and undistributed… they lose control of the intangible once it has been distributed outside of specific contracts. The intangible itself was never a property right, its tangible expression was.

And so as a result, you can reach this ridiculous conclusion. On what theory do you claim that something which is once owned is no longer owned? You are severing ownership without legal transfer. You can only do that by claiming that he didn’t own anything but the paper and ink in the first place. The “work” is not the paper it is printed on. That “work” is what is owned, because that is what has been produced by the author with his own private means. You are bending over backwards to reach the conclusion you want to reach.

This is an entirely conceivable way of operating and has requires no dependence on homesteading or ancap principles.

OK, with all due respect, you have to be kidding. This is a central tenet of Ancaps. Homesteading only applies to tangible property. It is a tautology. Homesteading=property=tangibility.

I believe it was the way most of the known world operated prior to IP laws and very sure that the vast majority of those societies were not based on ancap principles. So if this possible stance has not been asserted at mises.org before, it has now.

Prior to the appearance of humans on the planet, I presume property rights were asserted by the dominant species and defended by strength of force. Since then we have come a long way, baby. Along the way we developed division of labor and laws, one of which is IP. We didn’t used to have fire, but fire can be the subject of property rights, under the right set of facts.

IP exists in its current form because we have the State –

Kensella’s argument verbatim. The state is “dripping with evil” and so if you are for IP you are for the state and you are evil. I know this one by heart.

I’m attacking the concept of IP as it exists today; I’ve agreed there may be other potential ways of having some form of IP.

You have to make up your mind. You can’t support the concept of IP and still hold that only tangible goods are the subject of property rights.

Watch yourself, this sounds like you think absolutely any intervention by the State is proper so long as the sovereign leaders believe the “trade-off” is worth it. Too bad for me if the trade off involves trampling any of my rights. Not really libertarian is it?

This is a mish/mash of many ideas. I can’t take the time to deconstruct it for you. Mises already explained this trade off better than I could, in two short paragraphs.

See here: http://blog.mises.org/15867/the-fight-against-intellectual-property/?replytocom=763653#comment-762540

I also recall Mises dealing with this issue and that example he uses. It does not mention slavery (and I suggest that is the case for a very good reason).

No, I am the one who made that connection from something else I read about how producing for the benefit of someone else is an operational definition of slavery.
Chattel slavery is the ultimate example of working for external economies. That is the analogy. It got me on Kinsella’s “Worst arguments against IP” list.

Later,

matt470 March 27, 2011 at 10:59 am

@Wildberry – March 26, 2011 at 7:29pm or http://blog.mises.org/16099/ideas-free-and-unfree-a-book-commentary/comment-page-1/#comment-768255

Tangibility is a crucial element of property rights because without it there cannot be rivalry and hence the human device of property rights are not needed to prevent conflict over their use… we can all use it in our own ways at the same time (eg. recipes).

There is too much confusion here to sort all this out. A recipe is not the subjet of IP protection because “ideas” is not equivalent to “IP”.

Read Wildberry please, read. I didn’t say a recipe is or isn’t the subject of IP, I’ve clearly used it above as an example of a non-rivalrous good. You don’t dispute a recipe is a non-rivalrous good do you?

Now is a good time to thank you for your quote from Mises… it is helpful for clearing up my position (find it here http://blog.mises.org/15867/the-fight-against-intellectual-property/?replytocom=763653#comment-762540.

So Mises says it is not because goods are intangible that they remained outside the sphere of private property but rather because their serviceableness cannot be exhausted. Or, in other words because they are non-rivalrous goods.

He then goes on to consider drawbacks with this but I suggest you look carefully at the way he phrases this because you’ll notice he is careful (as he so often is) to be vertfreibeit or value free. He says:

People began to realize only later that this state of affairs has its drawbacks too

You realise the significance of the phrase “has its drawbacks too”? It means excluding IP from being covered by private property has problems (as you and others here point out), as well as the corollary which is allowing IP to be covered by private property (as myself and others point out).

I agree with Mises here and yourself for that matter that there some potential problems that would crop up without IP, and I don’t want to be accused on underplaying it so I’d even admit some quite significant problems could arise. Significant problems could arise from winding back social welfare legislation too but that isn’t a reason for us not to do it if it were up to me.

I would argue that “original works of authorship” are scarce, and as such have all of the problems of tangible property rights regarding rivalry. If it wasn’t for rivalry, the author wouldn’t complain about unauthorized copying and no one would bother doing it.

This is absolutely wrong and shouldn’t be written in the same comment that quotes Mises under a heading of “The External Economies of Intellectual Creation” saying that “their serviceableness cannot be exhausted”. If you disagree with Mises here then that’s fine but can you acknowledge it for the benefit of this discussion please.
The rivalry you speak of in that last sentence is not the same rivalry that we’re referring to in speaking of inexhaustible serviceableness. You maintain that the important part of original works is the not the tangible expression but the intangible part of it. How can that intangible be scarce once it has been shared with others (in any format). It is no longer scarce because the author retains it even when it is transferred. You will point out that what she doesn’t retain is her legal economic monopoly rights over it and I would agree. This is something I’m arguing she never should have had in the first place. So you are arguing that the author should have a property right in the intangible original work, the tangible expression of it and then a distinct and detached property right in her economic monopoly rights over it (because clearly you would like her to be able to retain the latter long after she’s sold or gifted the two prior rights)?

That’s a lot of property rights to keep track of and control over and I’m saying it shouldn’t be that way. She should have the right over the tangible expression and she would have control over the intangible it is based on by it’s very nature of having originated with her until she shared it.

People bother copying IP protected works because they value them. We’re in agreement on this. The author complains for the same reason that anyone complains when “their” economic interest is potentially harmed. In a world where we currently have IP laws then they have a case, they’ll get more financial reward if people operate within those laws.

Not at all… this is just where you are stuck. Your use of “the rights” is redundant. The author simply owns the original manuscript and there is no logical bridge to then say that person must own the intangible it is based on.

Here you are merely restating your conclusion that property = tangibility.

Well then we’re both guilty of this. Stating that an author “owns the rights to the original manuscript” is adding something that we don’t both agree on. That is, that those “rights” are distinct from just owning the original manuscript. It is simply restating your conclusion, “owns the rights” is analogous to “owns the copyright” as I see it. Lets move on.

And so as a result, you can reach this ridiculous conclusion. On what theory do you claim that something which is once owned is no longer owned? You are severing ownership without legal transfer.

I don’t claim that there was anything else owned other than the original manuscript regardless of how pretty and meaningful the arrangements of ink are on the page. I spoke of the author having control over the intangible prior to it being shared, I didn’t say it was a property right.

This is an entirely conceivable way of operating and has requires no dependence on homesteading or ancap principles.

OK, with all due respect, you have to be kidding. This is a central tenet of Ancaps. Homesteading only applies to tangible property. It is a tautology.

Homesteading=property=tangibility.

It wouldn’t matter if it’s a central tenet of Fabian-ism! Believing that only tangible goods should be the subject of property rights does not mean I have to accept homesteading principles even if every “homesteader” to have ever existed also agrees with this. It is akin to saying…. catholics believe there is a god, you believe there is a god, therefore you are a catholic. Dr Gordon’s Intro to Logic course was very good at pointing out this sort of thing… I highly recommended it. So no I certainly wasn’t kidding and I think it would look better for you if you retract this illogical criticism.

Prior to the appearance of humans on the planet, I presume property rights were asserted by the dominant species and defended by strength of force. Since then we have come a long way, baby. Along the way we developed division of labor and laws, one of which is IP. We didn’t used to have fire, but fire can be the subject of property rights, under the right set of facts.

So you’re saying that human progress is constant, we have IP today and didn’t have it in the past therefore it is justified. That paragraph doesn’t need rebutting, it crumbled all by itself.

I’m attacking the concept of IP as it exists today; I’ve agreed there may be other potential ways of having some form of IP.

You have to make up your mind. You can’t support the concept of IP and still hold that only tangible goods are the subject of property rights.

To be honest you’re probably right here. I can’t say it is possible some form of IP should exist in absence of IP laws. If there are not laws granting property status to certain intellectual creations then the property part of the acronym IP obviously falls away. I should have been clearer. We could still have certain intellectual creations protected in certain ways but not as a type of property right. An example of this was given by Anders I think which is really an extension on an explicit contract (eg. if you want to sign-up to a certain dispute resolution organisation then you agree to abide by certain conditions, one of which gives some protections to authors of original works.

Every power handed to or taken by the state is a power that civil society no longer has. As a libertarian I prefer as many powers as possible to remain with civil society and voluntarism.

Peter Surda March 27, 2011 at 11:45 am

Wildberry,

A debt is an intangible business interest, and is treated as such by the laws of contracts and remedies. You don’t deny rights in those, you just refuse to call this type of property “property”.

Yet again you repeat your core fallacy where you from different interpretations of a phenomenon derive that there are two distinct phenomena. Debt is just a special type of contract over physical property. Merely because sometimes it is helpful to re-interpret it as an intangible good and, for example, list it as an asset in your bookkeeping does not mean that there is an intangible good that is separate from the physical good that is the subject of the debt.

We’ve been over this again and again and yet there is no reaction from you.

Wildberry March 28, 2011 at 10:32 am

@ matt470 March 27, 2011 at 10:59 am

Matt, I posted a response, but apparetly the site was having problems. I’ll repost to you tonight.

Wildberry March 28, 2011 at 12:20 pm

@ Peter Surda March 27, 2011 at 11:45 am

OK, I’ll give you a run.

Imagine a contract where A agrees to pay B $100 at the end of 1 year if B refrains from taking action X before that time.

Where is the tangible good?

Peter Surda March 28, 2011 at 1:30 pm

Wildberry,

Imagine a contract where A agrees to pay B $100 at the end of 1 year if B refrains from taking action X before that time. Where is the tangible good?

The tangible good is the $100. If B manages to avoid performing action X, the title to the money is transferred from A to B, otherwise stays with A. Rothbard calls this type of contract conditional transfer of title. See:
http://mises.org/rothbard/ethics/nineteen.asp

Wildberry March 28, 2011 at 3:41 pm

@ Peter Surda March 28, 2011 at 1:30 pm

Imagine a contract where A agrees to pay B $100 at the end of 1 year if B refrains from taking action X before that time. Where is the tangible good?

The tangible good is the $100. If B manages to avoid performing action X, the title to the money is transferred from A to B, otherwise stays with A. Rothbard calls this type of contract conditional transfer of title. See:
http://mises.org/rothbard/ethics/nineteen.asp

Ehhhh! Thanks for playing. There is no tangible $100. There is a promise to pay (a promise is intangible) and a promise not to act (intangible). In one year, provided the condition precedent is met, the promise may be converted into a tangible $100 bill, or some other form of money substitute.

In the Rothbard world, this promise is not property, because he believes will cannot be alienated, so after a year when performance is due, the promisor can renege. However under current contract law theory, this intangible business interest can be traded as property, because it is an exclusive economic right to $100 from A.

Perhaps you want to play again?

Stephan Kinsella March 28, 2011 at 4:23 pm

“Ehhhh! Thanks for playing. There is no tangible $100. There is a promise to pay (a promise is intangible) and a promise not to act (intangible). In one year, provided the condition precedent is met, the promise may be converted into a tangible $100 bill, or some other form of money substitute.”

The Rothbad theory is that the FUTURE $100 is transferred at the future moment, by virtue of the previous contract. It has nothing to do with a promise. The future $100 IS a material, real good, IF it exists. Its existence is contingent, uncertain, at the time of the contract. Therefore, the contract has a built-in condition: “I hereby transfer in one year to you $100-that-I-own-then IF I own it.”

Peter Surda March 28, 2011 at 4:28 pm

Wildberry,

There is a promise to pay (a promise is intangible) and a promise not to act (intangible).

you’re back to your old fallacy where you reinterpret something from a different perspective and declare that that disproves the correctness of other perspectives.

However under current contract law theory ….

Yes, current contract theory interprets the phenomenon differently. That neither disproves the validity of other interpretations, nor proves that the current contract theory is coherent.

Perhaps you want to play again?

I’m not here to play, but to study.

The Kid Salami March 28, 2011 at 4:30 pm

matt470

You could make things simpler here. Rather than state what seems like several opinions all at once – and ironically pepper this confused diatribe with unsolicited tutorials on propositional logic – why not go along with the spirit of this thread and tell us whether you agree that

1. an “intangible” good can ever be considered “property” ie. ownable or subject to exclusive control or whatever. if yes, please give an example.
2. there can be any restrictions on your behaviour other than that you are not allowed to “invade” or “aggress” the tangible property of anyone else. if yes, please give an example.

I say this because i think you are another in the long line of bluffers who like to talk about anything and everything but avoid being pinned down on exactly what they think. You can prove me wrong very easily by stating your position on these two clearly (which will of course be consistent with your previous comments above here). And as you said yourself “There is little point just hammering out this debate firmly anchored to different philosophies – therein lies the merry-go-round.” – indeed. So are you giong to do this?

I should point out that I have no problem with someone not knowing what they think. However, I do have a problem with people stepping into a debate with comments like “Ok, let’s get rid of another troubling one….” and then waffling.

Wildberry March 28, 2011 at 6:03 pm

@Stephan Kinsella March 28, 2011 at 4:23 pm

The Rothbad theory is that the FUTURE $100 is transferred at the future moment, by virtue of the previous contract. It has nothing to do with a promise. The future $100 IS a material, real good, IF it exists. Its existence is contingent, uncertain, at the time of the contract. Therefore, the contract has a built-in condition: “I hereby transfer in one year to you $100-that-I-own-then IF I own it.”

Yes, I think I understood this distinction. It is interesting to note the difference. In the Rothbard theory of contracts, the promise has no value in the present, because future performance cannot be made certain under a theory of remedies.

Under current contract theory, the future promise has present value, and can be traded at a discount, if desired. Contracts create an enforceable right to a future performance.

That makes it a business interest in an intangible good (future promise to act), worth $100 discounted to present value, less the risk of collection, which could be collateralized as a mitigation. There is no need to invent a “title transfer theory” unless 1) you want to preserve an assumption that property = tangibility, and 2)you want to argue that you are reducing the dependence on enforceability “technical problems”, which would require that these new mechanisms of insurance or PDAs operate in the absence of any government enforcement mechanisms, based on some “uniform code of laws” which at the moment doesn’t yet exist.

All of this seems like a lot of overhead to incur to create an alternative system of contracts which doesn’t operate with even the same economic advantages of the current system.

It appears to me that Rothbard goes to great lengths to avoid recognizing property rights in the intangible so that he might avoid a conflict with his property theory, which assumes tangibility as a first principle.

Wildberry March 28, 2011 at 6:08 pm

@Peter Surda March 28, 2011 at 4:28 pm

you’re back to your old fallacy where you reinterpret something from a different perspective and declare that that disproves the correctness of other perspectives.

You continue to demonstrate why it is a worthless exercise to try to dialogue with you. Like I said, there is no income here. You contribute nothing.

I’m not here to play, but to study.

What, pray tell?

Wildberry March 28, 2011 at 9:23 pm

@matt470 March 27, 2011 at 10:59 am

Read Wildberry please, read. I didn’t say a recipe is or isn’t the subject of IP, I’ve clearly used it above as an example of a non-rivalrous good. You don’t dispute a recipe is a non-rivalrous good do you?

Sorry, I jumped ahead and assumed you’d follow. Let me be clearer by going step by step.

Recall that property is a human device. Ideas, like recipes, and another intangible subject matter, including the most original and complex expressions, have the characteristic that their serviceableness cannot be exhausted. That is, they operate much the way “ideas are free” is described by Kinsella and the often quoted passage from Jefferson. Therefore one could reasonably assert that there can be no property rights in any intangible goods. This is the situation described in the first paragraph of Mises. No IP. This is similar to the state of affairs advocated by Kinsella.

On the other hand, if you classified ALL intangible goods, or intellectual works, as a form of property, pretty soon every idea on up through recipes, formulas, natural discoveries, etc. would be subject to ownership rights, and human pursuit of knowledge and use of fundamental ideas would be curtailed. Likely, like in the case of the medeaval knowledge class of the privileged, the common person would have little access to the free-flow of knowledge and ideas. This is the situation that is implied by the “ideas are free” line of reasoning, as expressed in the anti-IP argument; because ideas are free, and IP is the creation of property rights in ideas, so it is unjustified.

So Mises says it is not because goods are intangible that they remained outside the sphere of private property but rather because their serviceableness cannot be exhausted. Or, in other words because they are non-rivalrous goods.

We might be quibbling here, but this is a very specific definition of rivalrous. If we define it as “capable of creating conflict between two potential owners” then we are making different distinctions; my definition does not depend upon tangibility. You are making the distinction exclusively on the basis of whether two people can compete for the possession of a given TANGIBLE good. To define it your way precludes my way. That is an important point of distinction. That is why I say that for you to do so assume your conclusion.

In any case, intangible goods are easily copied because the intangible is inexhaustible. That is more an attribute of intangibility that it is an attribute of “ideas” versus “original work”. Nonetheless, as Mises is pointing out, it is possible to deny property rights in all intangible goods, but to do so leads to the problem he describes in the next paragraph, as you continue below:

He then goes on to consider drawbacks with this but I suggest you look carefully at the way he phrases this because you’ll notice he is careful (as he so often is) to be vertfreibeit or value free. He says:
People began to realize only later that this state of affairs has its drawbacks too

Yes, and what are those value-free drawbacks?

You realise the significance of the phrase “has its drawbacks too”? It means excluding IP from being covered by private property has problems (as you and others here point out), as well as the corollary which is allowing IP to be covered by private property (as myself and others point out).

Yes. So much to the chagrin of people like Surda and Kinsella, this is a trade-off that has to be rationally but somewhat arbitrarily resolved. It is not a math problem. It is an economic problem, and so is subject to praxeological analysis. It is a function of social, not empirical science.

I agree with Mises here and yourself for that matter that there some potential problems that would crop up without IP, and I don’t want to be accused on underplaying it so I’d even admit some quite significant problems could arise. Significant problems could arise from winding back social welfare legislation too but that isn’t a reason for us not to do it if it were up to me.

I think you miss the point here. What is the problem that arises? It is the problem of production for external economies. Mises does not make the argument that you do, nor do I.

This is absolutely wrong and shouldn’t be written in the same comment that quotes Mises under a heading of “The External Economies of Intellectual Creation” saying that “their serviceableness cannot be exhausted”. If you disagree with Mises here then that’s fine but can you acknowledge it for the benefit of this discussion please.

You are assuming that “scarcity” cannot apply to intangible goods. It can. Without any of the analysis that Mises makes concerning production for external economies, it is certainly possible, since property is a human device, to deny ALL rights in the intangible. There is a rational basis for doing this if you don’t worry about the other issue he raises as a counterpoint.

Again, we are getting ahead of ourselves here, but I would argue that IF ideas and original works are not equivalent, then we have to distinguish them. One distinction is that although the use of ideas is inexhaustible, the creation of original works is not a “free” commodity like ideas, or air, or letters of the alphabet. They require capital inputs to produce. That is an important distinction that Mises indeed makes. So for the record, no, I do not disagree with him on this, and I reject your assertion that my position and his are contradictory. I think I can demonstrate this later in this post.

The rivalry you speak of in that last sentence is not the same rivalry that we’re referring to in speaking of inexhaustible serviceableness.

I think what you mean is that your use of the term and my use are different. I agree. I claim that rivalry does not depend upon tangibility.

You maintain that the important part of original works is the not the tangible expression but the intangible part of it.

Yes.

How can that intangible be scarce once it has been shared with others (in any format). It is no longer scarce because the author retains it even when it is transferred.

Because if the intangible work is scarce, meaning that its existence can create conflicts in the claim of use, then it is rivalrous by definition. You can’t see this because you exclude intangible goods from your definition.

The fact that the author retains the original does not mean that you own the copy. The copy could only exist if there was an original to copy from. Yet your definition of property is limited to the tangible good, so you are following the ownership of the tangible paper and ink, etc. Copy MEANS “duplicate of the original”. Of course the original still exists. That is not even a relevant distinction, yet opponents to IP make out like it is earthshaking. Ease of coping is a function of intangible goods, and is all the more reason that if you are going to try to avoid the problem of production for external economies, you are going to have to recognize property rights in intangible goods in a way that a balance is reached between the two problems that Mises describes.

You will point out that what she doesn’t retain is her legal economic monopoly rights over it and I would agree. This is something I’m arguing she never should have had in the first place.

Yes, I know, but I am saying if you take that position, you ignore the problem of external economies that Mises is raising. This is what Kinsella does; he argues the first paragraph, and ignores the second. That is why I keep raising it to him.

So you are arguing that the author should have a property right in the intangible original work, the tangible expression of it and then a distinct and detached property right in her economic monopoly rights over it (because clearly you would like her to be able to retain the latter long after she’s sold or gifted the two prior rights)?

You lack an understanding of how IP laws operate, and you demonstrate that above.

IP (I have been using copyrights as the illustrative branch of IP law) establishes property rights in the intangible work. However, the rights are governed by the use of the tangible fixation, and follow the principles of property law; for example “ownership” means “rights to exclusive use and possession”. As Kinsella rightly points out, the laws CREATE these rights, but why shouldn’t they? Property is a human device, just like the laws that governs their operation in economic trade.

Therefore it doesn’t really matter what form the fixation takes, since the property rights are only instantiated in a fixation of tangible goods. That is why it is ridiculous to claim that you have better title to these rights than an author, because you use your own paper and ink to make the copy.

That’s a lot of property rights to keep track of and control over and I’m saying it shouldn’t be that way. She should have the right over the tangible expression and she would have control over the intangible it is based on by it’s very nature of having originated with her until she shared it.

You are getting far afield here. All property rights operate in a similar fashion. The right to exclusive use and possession of property IS an economic right. That is why you can sell your land, your watch, your labor, and your original work of authorship. If it wasn’t property, no one could make claim to it. Do you see how defining property as “tangible goods only” leads you to make this erroneous conclusion?

Ironically, IP opponents are willing to grant that property rights in the intangible exist, but they want to limit the concept to the context of contracts only. They fail to realize (or admit) that it is the nature of the intangible that it cannot be understood by human cognition unless it is FIXED IN A TANGIBLE MEDIUM. So naturally these intangible property rights exist in contracts; otherwise, how would two people be able to understand what the subject of their contract actually was???

People bother copying IP protected works because they value them.

That’s right. Why would they bother to copy them if they had no value?

We’re in agreement on this. The author complains for the same reason that anyone complains when “their” economic interest is potentially harmed. In a world where we currently have IP laws then they have a case, they’ll get more financial reward if people operate within those laws.

I’ll have to wait to see what you mean by “more financial reward”. I say that for privately owned means of production, output equals input. That does not mean some quantitative “value”. That means that privately owned means produces income (in any form or at any range of profitability or lack of) FOR THE PRODUCER. That is the very definition of an internal economy. That is the solution to the problem that Mises raises in his second paragraph, and by the way, it is central to his entire argument against socialism as an economic system.

Stating that an author “owns the rights to the original manuscript” is adding something that we don’t both agree on. That is, that those “rights” are distinct from just owning the original manuscript. It is simply restating your conclusion, “owns the rights” is analogous to “owns the copyright” as I see it. Lets move on.

Not so fast there, quickdraw. What do we mean that he “owns the manuscript”. We mean that no one can claim a better title to it to him, and therefore he has exclusive rights to the use and possession of it, a product monopoly. What is “it”? Well, we know it is the tangible paper and ink and bindings, etc. Is that all? It is just a particular but random sequence of letters of the alphabet? When you copy the manuscript, what have you copied? It is the “work” that gives the manuscript its potential value. Some works are more valuable than others, and some are worthless, but either way, that work is owned by the author under the same system of ethics of self-ownership and privately owned means of production that apply to all property rights.

You simply ignore the intangible aspect of the manuscript, and insist that the property value can only be traced by following the paper around. Viewed in this way, that claim that only tangible goods can by property looks kind of nutty. To make my point, you say:

I don’t claim that there was anything else owned other than the original manuscript regardless of how pretty and meaningful the arrangements of ink are on the page. I spoke of the author having control over the intangible prior to it being shared, I didn’t say it was a property right.

I get your argument. Do you get mine? Do you think that “pretty and meaningful” are the criteria for establishing rights in the work? The criteria is “original work of authorship”. You are simply denying that there is anything to this “intangible” thing. I get it.

Believing that only tangible goods should be the subject of property rights does not mean I have to accept homesteading principles even if every “homesteader” to have ever existed also agrees with this.

Well, I would like to hear you explanation of why what you say above is not EXACTLY the homesteading principle, which defines property as first use of tangible resources. If it walks like duck…

It is akin to saying…. catholics believe there is a god, you believe there is a god, therefore you are a catholic.

Except I am not saying you are Catholic. I am saying that if you believe in God, you have that in common with Catholics. That seems logical…

So you’re saying that human progress is constant, we have IP today and didn’t have it in the past therefore it is justified. That paragraph doesn’t need rebutting, it crumbled all by itself.

I believe it was you who said that we got along fine before we had IP, so why do we need it now? Ah, it is a failed argument either way. So ironically, we agree.

To be honest you’re probably right here. I can’t say it is possible some form of IP should exist in absence of IP laws.

Well, this is not choosing. We are discussing the principle of IP, how it operates in the form of property rights, and its ethical and economic justifications. If you think it is justified on those terms, how you implement it is a “technical problem” as Kinsella would say.

We could still have certain intellectual creations protected in certain ways but not as a type of property right.

You are making a distinction without a difference. This line of reason doesn’t survive Ockham’s razor.

See if you can pick out your core argument from all of this. I think it is “intangible goods are not subject to property rights.”

Regards,

P.S. I wrote this Sunday, and since then Kid Salami summarized all this in a couple of paragraphs. Just answer him if you want; that is the essence of the problem.

matt470 March 29, 2011 at 12:02 am

@Kid Salami – March 28, 2011 at 4:30 pm

These specific questions are good thanks. I’ve had to rethink my argument and hence what I say below admittedly may contradict parts of my previous argument. I’m happy to admit to this though because it demonstrates that I’m not being dogmatic but instead trying to work through the objections raised.

1. I have to say yes. An example I can think of (which will partially help your argument but I’ll articulate it to be fair) is if someone broke into my home and copied files from my computer I would consider that theft. I would be complaining of more than just the crime of breaking and entering my house. Those hypothetical digital files are intangible and yet at that point they are my property.

My problem with IP arises by saying they are still “protected” after I’ve willingly distributed them (presumably sold them to someone). You will perhaps say that in distributing them I only sold the viewing/using rights not the re-distribution or copying rights. My belief is these “rights” should not be differentiated. I’ve given up my exclusive control. I would be entitled to encrypt them and make them as difficult as possible to redistribute but I would not have recourse to take people to court should they bypass that protection and re-distribute (unless they violated a direct contract whereby they’d explicitly agreed not to do this). To me that should simply be a known risk that the entrepreneur has to take into account when trying to market their good.

Wildberry’s claim that I am severing ownership without legal transfer would not be correct (within the system I’m proposing) because the full ownership is tied up with that release… it’s all or nothing. Therefore to get my financial reward from my authorship I’d need to market the good in a way that captures as much value for me as possible with that initial release because after that point I no longer have exclusive control.

The important distinction is that the “theft” I speak of in that example has come in a completely unauthorised way (ie. in a way we’d all agree is unauthorised)… in that case accompanied by an aggression against tangible property rights (the break and enter). It is clearly different to granting economic monopoly rights over the intangible work contained within goods that are willingly put on the bookshelf in stores or the intangible works sold on websites and then not allow people to do as they please with the good they’ve bought.

I’d love to hear from the IP opponents such as Kinsella on the above because there may well be things I’m not considering and I’m treading some new ground here (new ground for my thinking anyway). Happy to admit I’m a novice when it comes to law.

2. Yes, fraud and negligence. For example, if I open my door freely to customers and then someone gets electrocuted in a manner that should have been foreseeable to me then I’m guilty of negligence. I don’t think this would be covered as an aggression or an invasion?

matt470 March 29, 2011 at 12:32 am

@Wildberry – March 28, 2011 at 9:23 pm

P.S. I wrote this Sunday, and since then Kid Salami summarized all this in a couple of paragraphs. Just answer him if you want; that is the essence of the problem.

Yeah I had the same problem posting my last reply to you so I understand how frustrating it can be (the one that eventually got posted on March 27, 2011 at 10:59 am).

I’ve responded to Kid Salami’s good questions so have a read of that and we can go from there. There are a couple of issues in your lengthier post that I disagree with but since I’ve changed my position at least a little I might let them go for now.

I do want to repeat though that just because I said I don’t care how pretty and meaningful the arrangements of ink are… da da da.. DOESN’T mean I don’t recognise that those arrangements are the key part of the value of the good in many cases. I personally think it is naive to dispute the potential value in the intangible. This value doesn’t HAVE to be considered a separate right though. If a new school and beautiful park are built near my house the value can change significantly but the property right aspect of it hasn’t changed.

Regards.

matt470 March 29, 2011 at 1:48 am

@Wildberry
@Kid Salami

This quote popped-up on my home page today and couldn’t resist in light of my recent comments…

“Any fool can paint a picture, but it takes a wise man to be able to sell it.”
Samuel Butler

Peter Surda March 29, 2011 at 3:57 am

Wildberry,

You continue to demonstrate why it is a worthless exercise to try to dialogue with you.

I wonder if it is because you dislike being pointed out the difference between a conclusion and an alternative, or because you want to be the only one permitted to use a re-interpretation as a method of refutation? It looks like some things will remain a mystery.

Like I said, there is no income here.

No income where?

You contribute nothing.

May I ask you what you contribute then, other than long posts devoid of meaning and connection to what other people say?

What, pray tell?

Anything that interests me.

Peter Surda March 29, 2011 at 4:11 am

Wildberry,

In the Rothbard theory of contracts, the promise has no value in the present, because future performance cannot be made certain under a theory of remedies.

Would you be so kind and point out where Rothbard, Kinsella or any of people referring to him, or even any Austrian economist or or an IP opponent on this site said any of this? What you produce is actually a compound argument:
- a promise has no value in present
- the reason for no value is uncertainty

I cannot recall any of this. Can you refresh my memory?

Under current contract theory, the future promise has present value, and can be traded at a discount, if desired.

Well, surprise. So can happen under “Rothbard’s” theory.

All of this seems like a lot of overhead to incur to create an alternative system of contracts which doesn’t operate with even the same economic advantages of the current system.

Rothbard’s approach reduces the overhead, because it does not have to deal with imaginary and contradictory rights. It makes it more clear which actions are legal and which are not.

It appears to me that Rothbard goes to great lengths to avoid recognizing property rights in the intangible so that he might avoid a conflict with his property theory, which assumes tangibility as a first principle.

Rothbard goes to great lengths to create a consistent theory. Making up random assumptions does not prove or disprove anything.

Wildberry March 29, 2011 at 9:04 am

@Peter Surda March 29, 2011 at 4:11 am

If you want to make an argument, go for it. I don’t take homework assignments from you. I’m not about trying to reconcile my arguments with Rothbard. I am givin you my arguments and contrasting with my understanding of what Rothbard (and Kinsella) wrote.

If you think I am wrong about something, lay it out. You might learn something which I believe is your goal.

Peter Surda March 29, 2011 at 11:08 am

Wildberry,

If you want to make an argument, go for it. I don’t take homework assignments from you. I’m not about trying to reconcile my arguments with Rothbard. I am givin you my arguments and contrasting with my understanding of what Rothbard (and Kinsella) wrote. If you think I am wrong about something, lay it out. You might learn something which I believe is your goal.

I specified exactly where you are wrong (among other things, you did not portray Rothbard’s arguments correctly, i.e. strawman fallacy), and I asked questions about points that need to be clarified. You reaction is meta-argumentation. You do not engage in a debate, you do not answer questions.

Since you show no tendency for changing your approach, constantly challenging you to a direct confrontation serves a twofold purpose: it prevents you from wasting other people’s time, and it exposes your true colours to the others. Also, should I be wrong, it has the potential to result in a quicker resolution of my error.

Alas, that is not what I intended to learn, but a lesson learned nevertheless.

Wildberry March 29, 2011 at 5:22 pm

@Peter Surda March 29, 2011 at 11:08 am

I specified exactly where you are wrong

Well, I disagree, but we can clear this up easily.

Please provide a bullet list of my argument(s) and what, specifically you object to, and what the “correct” reasoning actually “is”.

Then we can all see what you are talking about. Other than throwing out terms like “strawman, fallacy, vagueness and self-contradiction” that are grounded in nothing coherent, I haven’t got a clue.

Feel free to start a new thread. Then everyone can easily respond to what you have to say.

Wildberry March 29, 2011 at 6:13 pm

@Peter Surda March 29, 2011 at 4:11 am

Would you be so kind and point out where Rothbard, Kinsella or any of people referring to him, or even any Austrian economist or or an IP opponent on this site said any of this? What you produce is actually a compound argument:
- a promise has no value in present
- the reason for no value is uncertainty

Stephan Kinsella March 28, 2011 at 4:23 pm
The Rothbad theory is that the FUTURE $100 is transferred at the future moment, by virtue of the previous contract. It has nothing to do with a promise. The future $100 IS a material, real good, IF it exists. Its existence is contingent, uncertain, at the time of the contract. Therefore, the contract has a built-in condition: “I hereby transfer in one year to you $100-that-I-own-then IF I own it.”

http://blog.mises.org/16099/ideas-free-and-unfree-a-book-commentary/comment-page-1/#comment-768492

Rothbard’s approach reduces the overhead, because it does not have to deal with imaginary and contradictory rights. It makes it more clear which actions are legal and which are not.

Just because you can state a conclusion doesn’t mean you’ve made an argument.

Since you have misunderstood my output/input comment at least twice now, let me clarify: OUTPUT = PRODUCTION (my writing to you). INCOME = EXCHANGE OF OUTPUT FOR VALUE (your response being of value in exchange). OUTPUT is not equal to INCOME. Talking to you is producing for an external economy. The incentives are weak. As an enterprise, it is bankrupt.
See?

Peter Surda March 29, 2011 at 6:19 pm

Wildberry,

Please provide a bullet list of my argument(s) and what, specifically you object to, and what the “correct” reasoning actually “is”.

I provided the points already. Let’s see if your ability to read is improved by repetition.

You said:

In the Rothbard theory of contracts, the promise has no value in the present, because future performance cannot be made certain under a theory of remedies.

And I asked you for your source. This is simply not the argument Rothbard is making, but I phrased my objection as a question because that makes it harder for you to use your tricks.

Then you wrote:

Under current contract theory, the future promise has present value, and can be traded at a discount, if desired.

You presented this as a contrast to Rothbard’s theory. I pointed out that you can do the same under Rothbard’s theory.

Then you said:

All of this seems like a lot of overhead to incur to create an alternative system of contracts which doesn’t operate with even the same economic advantages of the current system.

I pointed out that Rothbard’s approach also decreases overhead.

And what’s the correct reasoning? Why are you asking me? You need to fix the logical errors in your claims, not me. There is an infinite number of ways of doing that.

Furthermore, I asked you many many other questions. How about answering them?

I’m not going to repeat anymore how big a fraud you are. I’m just going to hammer you with questions. It’s up to you whether you answer them or continue avoiding them.

Wildberry March 29, 2011 at 6:30 pm

@matt470 March 29, 2011 at 12:02 am

1. Those hypothetical digital files are intangible and yet at that point they are my property.

Sorry, digital files are tangible fixations of your work. It is possible to steal a tangible good without infringing on the intangible property which is fixed upon it.

Your real answer is “no”, you just don’t understand why.

2. Yes, fraud and negligence

Sorry, fraud and negligence are unrelated to Kid’s question. Fraud is an inducement to take someone’s property by deception. Negligence is a tort theory of liability for breaching a duty owed which causes an injury.

Your real answer is “no”, you do not recognize crimes for violating rights in the intangible, like liable or blackmail, or infringement, just like Rothbard does not recognize the intangible business interest of a contractual promise. In this view, only the tangible goods can be aggressed against.

Wildberry March 29, 2011 at 9:58 pm

@Peter Surda March 29, 2011 at 6:19 pm

And I asked you for your source. This is simply not the argument Rothbard is making, but I phrased my objection as a question because that makes it harder for you to use your tricks.

Did you even notice or read that I quoted Kinsella from this very thread? If you think he misquoted Rothbard, take it up with him.

You presented this as a contrast to Rothbard’s theory. I pointed out that you can do the same under Rothbard’s theory.

Yes, and offered nothing in rebuttal. NOTHING. No Income…see?

I pointed out that Rothbard’s approach also decreases overhead.

Yes, you made a statement with absolutely no support or argument. NO INCOME.

And what’s the correct reasoning? Why are you asking me?

Yes, exactly. YOU HAVE NOTHING!!

Furthermore, I asked you many many other questions. How about answering them?

You know what the definition of an idiot is, right?

I’m just going to hammer you with questions. It’s up to you whether you answer them or continue avoiding them.

Doing the same thing over and over and expecting a different outcome?

Peter Surda March 30, 2011 at 1:11 am

Wildberry,

Stephan Kinsella March 28, 2011 at 4:23 pm
The Rothbad theory is that the FUTURE $100 is transferred at the future moment, by virtue of the previous contract. It has nothing to do with a promise. The future $100 IS a material, real good, IF it exists. Its existence is contingent, uncertain, at the time of the contract. Therefore, the contract has a built-in condition: “I hereby transfer in one year to you $100-that-I-own-then IF I own it.”

Could you please show where this quote uses the term “value” or a synonym thereof?
I don’t see any. The only thing I see is a clarification what is the object of the contract and what rights apply in different situations and times. I don’t see any point here that claims that the promise has no value to anyone and that you cannot exchange the contract for money with a third party. Do you see such a point? Where?

Just because you can state a conclusion doesn’t mean you’ve made an argument.

First of all, if you do the same, then it’s ok? Still, I have a proof: unless you reject the notion that all physical goods can potentially be covered by property rights, you theory requires more conditions for every situation which is covered by the extra rights you invented. Therefore, in these situations, Rothbard’s theory has a lower overhead, and in no situation it has a greater overhead in determining which actions are legal and which not. Do you understand this? Do you agree with this?

Since you have misunderstood my output/input comment at least twice now, let me clarify: OUTPUT = PRODUCTION (my writing to you). INCOME = EXCHANGE OF OUTPUT FOR VALUE (your response being of value in exchange). OUTPUT is not equal to INCOME

You said previously, I quote:

…when output does not equal income, producers will choose not to produce for external markets.

Now you say that “OUTPUT is not equal to INCOME”. How can be output simultaneously equal and not equal to income? My objection was that this regardless of IP, output is never equal to income. Do you understand this? Do you agree with this?

Talking to you is producing for an external economy. The incentives are weak. As an enterprise, it is bankrupt.

Yet, you continue doing it. How do you reconcile that?

Peter Surda March 30, 2011 at 1:26 am

Wildberry,

Did you even notice or read that I quoted Kinsella from this very thread?

Yes, and as I was saying, the quote does not say what you claim it says. Where does it refer to value or to the impossibility of exchanging a contract for value?

Yes, and offered nothing in rebuttal. NOTHING. No Income…see?
No Wildberry, it is you who offered nothing. Neither Rothbard nor Kinsella did say that a promise has no value or that you can’t exchange it for money.

Yes, you made a statement with absolutely no support or argument. NO INCOME.

No Wildberry, it is you who offered not support or argument. I did. You theory adds rules, but does not remove any (compared to a physical rights theory). Therefore, it has more overhead.

Yes, exactly. YOU HAVE NOTHING!!

No Wildberry, you have nothing. No argument, no source, no theory, and you continue to contradict yourself.

You know what the definition of an idiot is, right?

Yes, I do. Do you know what the definition of a fraudster is?

Doing the same thing over and over and expecting a different outcome?

I don’t expect a different outcome. I just cannot, as a scientist, fully exclude it. Someone else might answer the questions too. Furthermore, the side effects are sufficient already.

Where did Kinsella/Rothbard say that a promise has no value and that you cannot exchange it for money? In which situations does your theory decrease an overhead in determining which actions are legal and which not? Where are the answers to my other questions?

matt470 March 30, 2011 at 6:43 am

@Wildberry

Can you edit the wiki on “intangible good” please because it clearly defines intangible goods as those goods which cannot be touched and explicitly states digital files as an example of such goods?
Oxford Dictionary states it this way “unable to be touched; not having physical presence”. Can I touch the 1s and 0s as they fly from someone else’s computer to mine via wifi? How about television broadcasts? What about the synapses in your brain (you might wanna check these because I think you’re suffering some misfires)?

Are you now saying that copying digital files is not an infringement of IP because those files are a tangible expression and not “intellectual” property? I can see why people get so frustrated with your constant shifting of definitions to suit whatever argument you want but this time you’ve clearly bitten off more than you can chew.
My example could have been someone breaking into my house and duplicating my draft novel – the example still holds up, it is just your stupid equivocation that doesn’t.

Your real answer is “no”, you just don’t understand why.

A conceited and obnoxious reply that shows you really are incapable of having a proper debate on something.

Kid’s question was specific and I answered it more than adequately. I’m sorry for you if you’d pinned your colours to his question and then the way I answered it and the example I gave didn’t suit your argument. Instead you felt the need to pose a different question and then answer it for me.

I’ll let others decide if they think I answered Kid’s question… here it is:

Kid Salami:

…why not go along with the spirit of this thread and tell us whether you agree that

2. there can be any restrictions on your behaviour other than that you are not allowed to “invade” or “aggress” the tangible property of anyone else. if yes, please give an example.

matt470:

2. Yes, fraud and negligence. For example, if I open my door freely to customers and then someone gets electrocuted in a manner that should have been foreseeable to me then I’m guilty of negligence. I don’t think this would be covered as an aggression or an invasion?

to which Wildberry says:

Sorry, fraud and negligence are unrelated to Kid’s question. Fraud is an inducement to take someone’s property by deception. Negligence is a tort theory of liability for breaching a duty owed which causes an injury.

Your real answer is “no”, you do not recognize crimes for violating rights in the intangible, like liable or blackmail, or infringement, just like Rothbard does not recognize the intangible business interest of a contractual promise.

My real answer is the one I gave. If you want to play with yourself (in more than one sense) go ahead.

Don’t bother replying Wildberry… It would be more mentally stimulating playing scrabble than your silly word games.

Stephan Kinsella March 30, 2011 at 7:17 am

Peter:

Stephan Kinsella March 28, 2011 at 4:23 pm

The Rothbad theory is that the FUTURE $100 is transferred at the future moment, by virtue of the previous contract. It has nothing to do with a promise. The future $100 IS a material, real good, IF it exists. Its existence is contingent, uncertain, at the time of the contract. Therefore, the contract has a built-in condition: “I hereby transfer in one year to you $100-that-I-own-then IF I own it.”

Could you please show where this quote uses the term “value” or a synonym thereof?
I don’t see any. The only thing I see is a clarification what is the object of the contract and what rights apply in different situations and times. I don’t see any point here that claims that the promise has no value to anyone and that you cannot exchange the contract for money with a third party. Do you see such a point? Where?”

Of course, you are right. Wildberry is, here, as usual, at best, confused. I was just showing that his understanding of libertarian contract theory is confused, when he said: “the promise may be converted into a tangible $100 bill”. He is viewing contracts as most people do, as a binding promise that is enforceable. But that is not Rothbard’s view. So instead of saying “the future promise has present value, and can be traded at a discount”, as Wildb did, we might say that the future title transfer of $100 associated with a given contract might have a present value less than $100 that can be traded at a discount. In fact this is exactly the nature of a loan: A gives B $1000 now (full title to the $1000 transfers NOW, unconditionally–it has to be unconditional so that B can use/spend it); *in exchange* for this present title transfer B, at the same time (now), gives to A a future $1100 (this *is* conditional since the future $1100′s very existence is uncertain). But there is no promise at all here. It is just title transfers. But you can see that in this example A is in fact purchasing the future-$1100 for a discount: he is paying $1000 for it.

Wildberry March 30, 2011 at 9:02 am

@Stephan Kinsella March 30, 2011 at 7:17 am

But there is no promise at all here. It is just title transfers. But you can see that in this example A is in fact purchasing the future-$1100 for a discount: he is paying $1000 for it.

If there is not an enforceable promise here, then what has A paying for? Since the future promise is not enforceable, what does he have? No $1000, and no promise. What would you be willing to trade for that?

Stephan Kinsella March 30, 2011 at 10:07 am

Wildberry:

” But there is no promise at all here. It is just title transfers. But you can see that in this example A is in fact purchasing the future-$1100 for a discount: he is paying $1000 for it.”

If there is not an enforceable promise here, then what has A paying for? Since the future promise is not enforceable, what does he have? No $1000, and no promise. What would you be willing to trade for that?

HE is paying for the future $1100.

I don’t think you grok Rothbard’s title transfer theory. As he writes:

if A says to B, “I hereby give you $10,000,” then title to the money has been transferred, and the gift is enforceable; A, furthermore, cannot later demand the money back as his right. On the other hand, if A says, “I promise to give you $10,000 in one year,” then this is a mere promise, what used to be called a nudum pactum in Roman law, and therefore is not properly enforceable.9 The receiver must take his chances that the donor will keep his promise. But if, on the contrary, A tells B: “I hereby agree to transfer $10,000 to you in one year’s time,” then this is a declared transfer of title at the future date, and should be enforceable.

Wildberry March 30, 2011 at 12:02 pm

@Stephan Kinsella March 30, 2011 at 10:07 am

HE is paying for the future $1100.

But the $1100 doesn’t exist, and the promise doesn’t exist. You said previously,

“[B] at the same time (now), gives to A a future $1100 (this *is* conditional since the future $1100′s very existence is uncertain). But there is no promise at all here

So, the “existence of the $1100 is uncertain”, and there is “no promise at all.”

Isn’t that what I said? So what does A have?

I don’t think you grok Rothbard’s title transfer theory. As he writes:

if A says to B, “I hereby give you $10,000,” then title to the money has been transferred, and the gift is enforceable; A, furthermore, cannot later demand the money back as his right. On the other hand, if A says, “I promise to give you $10,000 in one year,” then this is a mere promise, what used to be called a nudum pactum in Roman law, and therefore is not properly enforceable.9 The receiver must take his chances that the donor will keep his promise. But if, on the contrary, A tells B: “I hereby agree to transfer $10,000 to you in one year’s time,” then this is a declared transfer of title at the future date, and should be enforceable.

Since you object to me quoting Black’, try this:

http://en.wikipedia.org/wiki/Nudum_pactum

A nudum pactum in Latin literally means ‘Bare or Naked Promise.’ In common law, it refers to a promise that is not legally enforceable for want of consideration.

So it is a promise without consideration that is unenforceable, but in your example, B receives consideration for his promise. A receives a promise for $1100 at a future date, for consideration. If the promise doesn’t exist, what did B give in return and what did A receive?

Under contract theory, if the promise doesn’t exist, then A gave a gratuitous gift to B of $1000.

If B gave nothing in return, then A has nothing. Since he has nothing, it has no value in the market, because who in their right mind would trade “something” for “nothing”?

Yet this is what Rothbard proposes in his theory of contracts. Don’t you think that would have just a little teensy-weensy impact on the transaction costs of making contracts? How would you propose handling that problem?

As I recall, there was something about A having to buy an insurance policy against the risk of that future moment when B says, “Hey, sorry, the $1100 doesn’t exist and I don’t have it”. How would the insurance company subjugate the claim to B? B gave nothing and A willingly gave him $1000.

Under these conditions, assuming you were an actuary for the insurance company, how would you calculate the premiums?

Rothbard concludes thus:

But if, on the contrary, A tells B: “I hereby agree to transfer $10,000 to you in one year’s time,” then this is a declared transfer of title at the future date, and should be enforceable.

What is the statement, “I hereby agree to transfer” if not a promise to transfer? A promise for consideration is enforceable, in both standard contract and Rothbard’s terms.

Yet when the time for performance finally arrives, A (in Rothbard’s example) is not bound to perform, because “will is unalienable”. The “promise” is not enforceable, yet “title transfer” is?

How do you explain that? Did I not “grok” something about the Rothbard’s theory of title transfer?

Stephan Kinsella March 30, 2011 at 1:17 pm

Wildberry:

@Stephan Kinsella March 30, 2011 at 10:07 am

” HE is paying for the future $1100. ”

But the $1100 doesn’t exist, and the promise doesn’t exist.

The promises “exists,” whatever that means, it’s just not enforceable qua promise. the future-$1100 is a future thing. It does not yet exist or not exist; it may or may not exist on the due date. That is waht uncertain means.

It’s analogous to what the civil law calls “sale of a hope.” http://www.legis.state.la.us/lss/lss.asp?doc=109493
Art. 2451. Sale of a hope

A hope may be the object of a contract of sale. Thus, a fisherman may sell a haul of his net before he throws it. In that case the buyer is entitled to whatever is caught in the net, according to the parties’ expectations, and even if nothing is caught the sale is valid.

This is not that difficult to grok.

You said previously,

“[B] at the same time (now), gives to A a future $1100 (this *is* conditional since the future $1100′s very existence is uncertain). But there is no promise at all here

So, the “existence of the $1100 is uncertain”, and there is “no promise at all.”

Isn’t that what I said? So what does A have?

A has title to the future-$1100, at the future transfer timem, IF the money exists. It has nothing to do with “promises.”

http://en.wikipedia.org/wiki/Nudum_pactum

A nudum pactum in Latin literally means ‘Bare or Naked Promise.’ In common law, it refers to a promise that is not legally enforceable for want of consideration.

So it is a promise without consideration that is unenforceable, but in your example, B receives consideration for his promise.

YOu sound like a typical layman or crank citiing legal dictionaries. A naked promise means one that has no consideration. This is b/c consideration is required in common law to make a promise enforceable. It’s a whole differnt model than the libertarian appraoch. In libertarian law there is no need for consideration–you can have gifts, etc.

” A receives a promise for $1100 at a future date, for consideration. If the promise doesn’t exist, what did B give in return and what did A receive?”

A received a future-uncertain $1100. it has nothing to do with promise.

“Under contract theory, if the promise doesn’t exist, then A gave a gratuitous gift to B of $1000.”

It’s not gratuitous; it wsa in exchangefor a future valuable good.

Wildberry March 30, 2011 at 1:32 pm

@matt470 March 30, 2011 at 6:43 am

Can I touch the 1s and 0s as they fly from someone else’s computer to mine via wifi? How about television broadcasts? What about the synapses in your brain (you might wanna check these because I think you’re suffering some misfires)?

We are discussing this in the context of IP, right?

OK, so the general definition of “imperceptible by human senses” is somewhat ambiguous in the context of copyrights and digital fixations of protected works. So is it or isn’t it? Is it tangible or intangible, for the purpose of this discussion?

Rather than move to metaphysics, let’s stick with IP. As I said to Kinsella below, tangible and intangible have specific meanings in the context of IP law. This very issue, whether the fixation of digital patterns (which are fundamentally electrical charges which represent the values of “1” or “0”) are “tangible fixations” within the meaning of copyrights, has been tested in court. One could argue either way, right? That means it has to be interpreted by case law, which it was.

For the purposes of copyrights, digital representation is a tangible fixation, the rationale being that their purpose is to make the pattern perceptible on a computer screen, which is analogous to paper. Therefore the digitization of the pattern does not relieve it of its tangible interpretation for the purpose of copyright law. It is a tangible fixation of the intangible work. You didn’t know that, apparently. Now you do.

Are you now saying that copying digital files is not an infringement of IP because those files are a tangible expression and not “intellectual” property?

Copyright is a concept of limited property rights in the intangible work, yet operates only with the tangible fixations of that intangible work. You have to understand that to understand IP. You have to understand IP to argue against it.

So, copying digital files of a protected work IS an infringement. Stealing digital files that are already fixed on a medium is theft. If the thief ALSO copied the files he stole, that would be, in addition to theft, infringement. They are two different things, just like drunk driving and manslaughter are two different things.

I can see why people get so frustrated with your constant shifting of definitions to suit whatever argument you want but this time you’ve clearly bitten off more than you can chew.

I think people, like you, are trying to grasp the meaning of IP without really knowing too much about it. When I explain it to you, it seems like doubletalk because you lack understanding of the fundamental principles about what it says and how it operates. There is nothing arrogant about pointing that out to you.

My example could have been someone breaking into my house and duplicating my draft novel – the example still holds up, it is just your stupid equivocation that doesn’t.

“Duplicating” is not “taking and carrying away”; they are two different actions. Given that, “duplicating” a novel written on paper and one encoded digitally are legally equivalent.

A conceited and obnoxious reply that shows you really are incapable of having a proper debate on something.

No need to get touchy. Do you see now why I said “you don’t understand why”? Don’t be so sensitive. I didn’t call you an idiot or anything…

I’ll let others decide if they think I answered Kid’s question… here it is:

Kid Salami:
…why not go along with the spirit of this thread and tell us whether you agree that

2. there can be any restrictions on your behaviour other than that you are not allowed to “invade” or “aggress” the tangible property of anyone else. if yes, please give an example.

matt470:

2. Yes, fraud and negligence. For example, if I open my door freely to customers and then someone gets electrocuted in a manner that should have been foreseeable to me then I’m guilty of negligence. I don’t think this would be covered as an aggression or an invasion?

to which Wildberry says:

Sorry, fraud and negligence are unrelated to Kid’s question. Fraud is an inducement to take someone’s property by deception. Negligence is a tort theory of liability for breaching a duty owed which causes an injury.
Your real answer is “no”, you do not recognize crimes for violating rights in the intangible, like liable or blackmail, or infringement, just like Rothbard does not recognize the intangible business interest of a contractual promise.

My real answer is the one I gave.

Based on what I’ve said here, do you want to change your answer?

Wildberry March 30, 2011 at 2:10 pm

@Stephan Kinsella March 30, 2011 at 10:07 am

The promises “exists,” whatever that means, it’s just not enforceable qua promise. the future-$1100 is a future thing. It does not yet exist or not exist; it may or may not exist on the due date. That is waht uncertain means.

A “sale of hope” in your example would have been stated as follows:

“I agree to transfer the title to whatever I have a date certain, up to $1100”

That is quite different than promising to an amount certain to be paid on a date certain, which is the example you gave.

This is not that difficult to grok.

I shouldn’t think so.

A has title to the future-$1100, at the future transfer timem, IF the money exists. It has nothing to do with “promises.”

What if the money does not exist? What is enforceable and how? What would be the Rothbardian theory of enforceability under these facts?

YOu sound like a typical layman or crank citiing legal dictionaries. A naked promise means one that has no consideration. This is b/c consideration is required in common law to make a promise enforceable. It’s a whole differnt model than the libertarian appraoch. In libertarian law there is no need for consideration–you can have gifts, etc.

I’m at a loss to say what you sound like here. Under common law, gifts are perfectly legal and enforceable. There is no need to test for consideration under your theory, because no promises are enforceable in either case, with or without consideration. Right?

And by “libertarian law” do you mean “Rothbardian/Kinsella” law? I must have missed the coupe.

A received a future-uncertain $1100. it has nothing to do with promise.

What is a “future-uncertain $1100”? How can you receive title to something that doesn’t exist and whose very existence is uncertain? It is a promise that does not serve as consideration, so under common law and “Rothbardian/Kinsella” law, it is worthless. Why would someone loan $1000 to someone in exchange for nothing?

It’s not gratuitous; it wsa in exchangefor a future valuable good

Where is the value? Where is the good? It doesn’t exist. We won’t know if it exists until date certain. When that day comes and it doesn’t exist, what happened to the “value”?

Therefore, under Rothbardian “Title Transfer Theory” of contracts, being non-binding against a promise to perform, contracts fail to serve their purpose for anything other than present exchange of tangible goods, which is what I said in the first place.

Creation and enforcement of intangible business interests by contract do not appear possible under the R/K contract theory.

Grok me, baby!

matt470 March 31, 2011 at 10:38 pm

@Wildberry

You either willingly choose to misprepresent my examples or are simply incapable of conceptualising a different set of conditions in the world to what we have today (you’re not capable of ever hitting that top box on Maslow’s hierarchy of needs triangle). Let me point out for you where you are tangled up on this.

My example could have been someone breaking into my house and duplicating my draft novel – the example still holds up, it is just your stupid equivocation that doesn’t.

“Duplicating” is not “taking and carrying away”; they are two different actions. Given that, “duplicating” a novel written on paper and one encoded digitally are legally equivalent.

This distinction you’re are making was the whole purpose of my example – why are you not capable of such simple comprehension? Do you not think I would’ve just said “stole my book” if I wasn’t trying to distinguish between those different actions? You are so condescending.

Likewise in my initial example I stated that the person breaking and entering my house… copied the files, not stole my hard drive. I can already see the difference and yet you choose to spend paragraphs trying to explain to me there is a difference. I’ll say it again… you are so condescending.

matt470:

…if someone broke into my home and copied files from my computer I would consider that theft. I would be complaining of more than just the crime of breaking and entering my house.

Here is another of your all too frequent yet invalid criticisms:

“You have to understand IP to argue against it.

Hypothetically matt470 says:
“I don’t agree with the death sentence, I think it is immoral for the state to execute people.”

Hypothetically Wildberry says:
“But you don’t understand the process by which we execute people, you have to understand the death penalty legislation if you want to argue against it”

Doesn’t hold up to scrutiny does it? I only have to dislike one aspect of IP to argue against it if that is how I feel. I do not need your permission to hold this view. I would also have thought that I’m welcome to suggest other ways our society could deal with IP on this blog just as you’re welcome to criticise them? Good for you that you know the current legislation far better than me, but how about you make a genuine effort to try and consider any possible merits or pitfalls in my suggestions rather than simply repeating ad nauseum that it is at odds with how the law currently operates… I already assume this or there would be no point me making my suggestions.

Let me put into plain english for your benefit again where I sit at the moment on the specific aspects of IP we’ve been debating recently. Notice I reserve the right to change where I sit because I approach such topics with an open mind:

1) intangible goods can have intrinsic value (ie. a book with meaningless ink scribbled on it is different to a book with very meaningful representations printed on it).

2) “original works” can be the subject of private property and CAN BE stolen (or infringed if you want to make that distinction). Obviously their tangible expression can be stolen in the “take and carry” sense (surely this goes without saying) but ALSO, and importantly for this discussion, in the duplication sense provided that a) the author has not already distributed it in some manner, and b) the author has taken reasonable steps to prevent such theft (an example of non-reasonable steps may be uploading the data to a unsecure web server, reasonable steps would be as simple as having the data stored locally on a hard drive in their home).

If you accept that property is a human device, why can you not accept that the above is at least technically possible (regardless of the way IP currently operates)? Is it also not different to what we currently have and what ancaps are promoting? Why do you insist I have to be in one camp or the other? I suspect because it helps with your pre-formulated arguments.

Based on what I’ve said here, do you want to change your answer?

Definitely not, the answer I gave was perfectly valid. Is negligence an aggression against or an invasion of someone’s tangible property? I don’t think so. Is it a restriction on behaviour in my ideal world? Yes.

Do I want to address your re-phrasing of Kid’s question and answer it? Okay I will answer the specific examples you suggested of liable and blackmail but not “infringement” because I’ve covered that above:

I agree with Rothbard that both liable and blackmail should not be considered crimes because liable essentially claims you have a property right in your reputation which is ridiculous IMHO and nobody is forced to cooperate with a blackmailer, it is a choice (provided the information that is the source of the blackmail had been obtained legitimately – eg. not through break and enter). Is liable and blackmail unethical though? Yes in my opinion.

I sincerely hope you can do better at commenting on the above than the track record of your last few posts. Hint… try conceptualising society potentially operating a different way rather than closing your eyes and burying yourself in the safety blanket of your self-professed great understanding of how IP currently operates. I just can’t go another round of having to constantly re-explain how you’ve misinterpreted just about everything I’ve said.

Wildberry April 1, 2011 at 10:34 am

@matt470 March 31, 2011 at 10:38 pm

Let me just skip over all the emotional stuff about my not being “self actualized” and such and cut to the chase:

Here is what TKS said:

1. an “intangible” good can ever be considered “property” ie. ownable or subject to exclusive control or whatever. if yes, please give an example.

To which you responded:

1. I have to say yes. An example I can think of (which will partially help your argument but I’ll articulate it to be fair) is if someone broke into my home and copied files from my computer I would consider that theft. I would be complaining of more than just the crime of breaking and entering my house. Those hypothetical digital files are intangible and yet at that point they are my property.

I said:

Sorry, digital files are tangible fixations of your work. It is possible to steal a tangible good without infringing on the intangible property which is fixed upon it.

Your real answer is “no”, you just don’t understand why.

Let me try again to clarify:

You have conflated the meaning of “infringement through copying” and “theft of a tangible good” in your answer. You may not like my style, but that is what I am pointing out to you.

If you want to answer yes, then you have to agree that you not only have property rights to the tangible file, which was copied (infringement) and taken away (theft) but rights to the intangible work that is fixated in the file. That means that in addition to the file the thief takes from you, any FURTHER use of the file is an additional violation of your rights through infringement. Do you hold that you have rights in the intangible work, and not just the tangible digital file?

I surmise you would hold that subsequent copies would be additional theft, since the original copy the thief took was stolen from your home. There was no legal transfer to the thief.

Yet you also hold, I surmise, that if you had sold a copy of the file to the “thief” instead, he would be free to copy it at will, unless you signed a contract with him first.

This demonstrates that you only recognize property rights in the tangible good.

TKS asks:

2. there can be any restrictions on your behaviour other than that you are not allowed to “invade” or “aggress” the tangible property of anyone else. if yes, please give an example

You answered:

2. Yes, fraud and negligence. For example, if I open my door freely to customers and then someone gets electrocuted in a manner that should have been foreseeable to me then I’m guilty of negligence. I don’t think this would be covered as an aggression or an invasion?

I said:

Sorry, fraud and negligence are unrelated to Kid’s question. Fraud is an inducement to take someone’s property by deception. Negligence is a tort theory of liability for breaching a duty owed which causes an injury.

So you see, if you are going to answer yes, you have to say that fraud applies situations where misrepresenting the truth induced you to transfer title to your intangible property rights, because the object of fraud is to acquire property unlawfully through misrepresentation. So the nature of the property subject to fraud is central to the question. Do you believe you can be fraudulently induced to transfer your economic rights to your own copyright (economic rights to intangible goods)? If the answer is no, because there are no property rights in the intangible, then your answer to TKS is no.

As to negligence, it is a theory to assign liability for an act which causes injury for a breach of duty. To apply here, you begin with establishing that there is a duty to do something; you would have to agree that someone has a duty to act to say, prevent harm to your intangible property rights. Is that your holding? If not, your answer is no.

The typical offenses relevant here are liable, slander, blackmail, etc. They are offenses to intangible property, one’s reputation. You do not believe any of these rights to reputation are legitimate.

Because you are using concepts that you don’t fully understand, you make logical errors. To you, given that you have your own understanding of what you mean, it makes sense to you, and you think I am just trying to play with you. This is not the case, but at the same time, I cannot follow you along a logical path which attempts to redefine the meaning of the words and concepts you are using to make your argument.

If you want to test that, here are the elements of negligence: Duty, breach of duty, causation (actual cause and responsibility for that cause tied causally to the breaching party) and injury.

You would have to show that negligence caused harm to your intangible property. Can you do that?

Based on my analysis of your response, I see nothing that distinguishes your position form the position taken by Rothbard/Kinsella/ancaps on these issues. You may not think of yourself this way, but you do hold at least this belief system about property rights in common with that view.

Regards,

matt470 April 11, 2011 at 9:08 am

@Wildberry

It’s taken me a while to gather my patience to have another crack at this but for some reason that hit me while I was driving today, I thought I would…

Aside from all the BS this is essentially the motivating principle behind all IP supporters:

To promote IP law in order to divert what would otherwise be a “market failing” and redistribute wealth back to creators of original works so that they can be encouraged to produce more IP.

IP opponents on the hand argue that copying is not theft.

I watched “Copying Is Not Theft” after getting the link from J. Neil Schulman’s website. He then claims “Now I will destroy it”. FAIL

The arguments he makes simply goes along the lines of… poor, poor authors, how will they ever recoup their blood, sweat and tears? He tries to link this in with libertarian ideology by a Randian approach of saying that self ownership means one should also own one’s creative works. This approach has more in common with a labour theory of value than with libertarian philosophy because it focusses on the amount of effort put into the creation as being the source of value rather than simply the value of the final good to consumers. It leads to contradictory theories of property rights also because on the one hand IP proponents vehemently reject homesteading (prior vs later distincion) as the source of all property rights yet then dive straight into offering protection to creations precisely because they were the first in to get the work protected (or first to produce the work depending on which countries IP laws we are referring to).

Undisputedly a creator does own their creation, the material part of it (assuming it was justly acquired in the first place), and in fact even the immaterial or “intellectual” part of it also (by nature of them having exclusive control and use over it)… until they share it. Once you share or distribute that painting, book, invention or whatever then you are voluntarily relinquishing these intellectual rights. This is what sharing and distribution is all about… it is relinquishing exclusive control of something and allowing others to experience and interact with it, making adaptations or improvements if they wish, sharing with their friends if they wish.

Oh but these poor souls [the cry goes out] created their cake so shouldn’t they be the only ones to eat it? I agree they should. If they feel so hard done by with the thought of relinquishing some of their intellectual creation, DONT relinquish it! Sit at home and digest it piece by piece until nothing remains! The real argument IP proponents are trying to make is that they want to create an inexhausible cake that they can exclusively sell unlimited pieces of (a non scarce cake) and yet at any stage still expect to own the whole cake.

Valuable creations add value to the material good they are made from or fixed upon, this is not controversial. Why does this added value from the intangible necessitate protection as an alienable property right though? Is that really the ONLY possible suggestion to solving the supposed “market failure” of production for external economies? IP proponents act as judge, jury and executioner when they decide all by themselves that there is simply no other way that creators could get adequate financial reward for their work without the state giving them special economic privileges.

Why not throw caution to the wind and try extricating yourself from the warm, reassuring smell of the herd and see whether voluntarism, civil society and free markets can allow creativity to flourish along with everything else in life under these conditions?

Wildberry March 23, 2011 at 10:44 am

@Anders Mikkelsen March 22, 2011 at 11:24 pm
@ matt470 March 23, 2011 at 9:19 am

This is somewhat refreshing. I will take the time to respond to the issues you raise, but it will take me a little time.

Meanwhile, can we deal with a fundamental issue of property rights?

It is my understanding that there is little contention that the author of an original work “owns” the original manuscript. Is that correct, or is it necessary to offer an argument concerning how that ownership arises?

If my assumption above is correct, then what we are talking about is whether those right are “property rights” and how they operate in the context of conflict that arises from copying? Is this right?

Anders Mikkelsen March 23, 2011 at 10:54 am

Good comments Matt470.

@Wildberry

The author own’s the manuscript or anything else he makes with his property. Once he transfers the manuscript the problems start. How can he have rights over what others do with their property and on their property?

It seems like there is no conflict – until IP comes along – then it creates constant potential for conflict.

Gotta run.

matt470 March 23, 2011 at 8:38 pm

@Wildberry

Agree. There is little contention that the author of an original work owns the original manuscript provided they are also the legitimate owner of the tangible materials used in it’s creation. This may seem an unimportant or at least irrelevant criterion to you but I don’t think it should be glossed over so please state whether you agree or disagree with it (perhaps consider a graffitti “artist’s” creation on someone’s wall as an example).

BTW, please don’t think that I’m asking for agreement with this point to try and argue that there is no difference between a blank book and a book with an original work fixed on it – we’ve been there and I have no problem agreeing that there is a difference.

Andras March 23, 2011 at 9:04 pm

I think the root of the problem is that opponents of IP mistake (physical) property rights with sovereignty. Of course, there can not be more than one sovereign in a certain domain, however, anyone can become a sovereign if he shrinks his domain enough. Nevertheless, in a cooperative society these domains overlap in multiple dimensions resulting in variable (in space and time) limitations of accepted property rights. This fallacy also explains why ANCAPs like to explain their delusion in a Robinson/Friday i.e. Islander situation. Moving away from this, the statement of property is a human device becomes too obvious and they can’t avoid pulling the rug from under themselves.

matt470 March 23, 2011 at 9:55 pm

@ Andras

I can’t speak for other IP opponents but I don’t think I mistake sovereignty with physical property rights – ie. the two terms are not interchangeable.

I think sovereignty usually involves poliitical control over a geographical domain which includes control over people (usually including the right to initiate force against them). I can be the title holder of a piece of land and have monopoly control over it’s use but it doesn’t mean I can decide to lock away a person who stepped foot on my land (ie. a trespasser) for 43 years and subject them to daily whippings (for example).

The “Dear Leader” has sovereignty over North Korea… if you want to experiment personally with the difference you could try crossing it’s borders unannounced and I’m sure they’d kindly give you a demonstration of the difference between the two.

Wildberry March 24, 2011 at 1:03 am

@matt470 March 23, 2011 at 8:38 pm

I agree, the legitimacy of the authors means is important, and I agree with our characterization here.

Thank you for reminding me you agree there is a “work” there. I will try to respond to some of your posts tomorrow.

Regards,

Andras March 24, 2011 at 1:23 am

@matt470:
“I think sovereignty usually involves political control over a geographical domain which includes control over people”.

I am surprised you pull this here, isn’t everything based on (physical, sarcasm off) property rights? Political control over geographical domain is just an abstraction though a bigger abstraction based on property claims.

Matt470: “I can be the title holder of a piece of land and have monopoly control over it’s use but it doesn’t mean I can decide to lock away a person who stepped foot on my land (ie. a trespasser) for 43 years and subject them to daily whippings (for example).”

Why not? Who dares to limit you, the owner? On what base? I am sure you will find circumstances and people who disagree with you. Up to the “Dear Leader” solution.
Your comment is also interesting from the aspect of proportional punishment. Another weak point of ANCAP. What will prevent them from drifting to just a short step away from vendettas.

By the way, you don’t have to educate me on “Dear Leader”. I escaped from a communist country. The more equals had property rights, all right.

Peter Surda March 24, 2011 at 6:01 am

Andras,

I think the root of the problem is that opponents of IP mistake (physical) property rights with sovereignty.

No, the problem is that IP proponents invent newspeak to mask theft.

Wildberry March 24, 2011 at 8:55 am

@Andras March 23, 2011 at 9:04 pm

Nevertheless, in a cooperative society these domains overlap in multiple dimensions resulting in variable (in space and time) limitations of accepted property rights. This fallacy also explains why ANCAPs like to explain their delusion in a Robinson/Friday i.e. Islander situation. Moving away from this, the statement of property is a human device becomes too obvious and they can’t avoid pulling the rug from under themselves.

This is very good. I agree completely. Have you read any Kathleen Touchstone? She deals with this issue beautifully. Crusoe is “man alone” and man alone is not society. As soon as you consider “man in society”, everything you describe comes into play.

In this regard, all rights are human devices, established in the service of cooperation.

Andras March 24, 2011 at 12:44 pm

@Wildberry,
“Have you read any Kathleen Touchstone”
No, I have not. I have just connected the dots. I am looking her up. Any suggestions?

Wildberry March 24, 2011 at 2:30 pm

@Andras March 24, 2011 at 12:44 pm

Try this:

http://libertarianpapers.org/2010/18-touchstone-rand-rothbard-and-rights-reconsidered/

This is where I started with her.

Andras March 24, 2011 at 6:41 pm

Wildberry,
Thanks for the Touchstone paper. It was very interesting as I had always seen a weakness even in Rand not to mention Rothbard regarding children. (You have to have one to know one! Its funny how these “economists” and “lawyers” just ignore biology.) There are so many more sensible thinks to discuss instead of this chatter here. I will definitely look up Athena.
BTW, Thanks also to Kinsella for running LP, the source of this paper.

Wildberry March 24, 2011 at 10:34 am

@matt470 March 24, 2011 at 8:52 am

If you will accept my input here, this is a major cop-out. It would be great if we only had to say things once in one place, but that is not realistic.
You know your own arguments better than anyone, so it is reasonable to ask you to succinctly restate your core objections to the concept of IP rights. Pick your best argument and state it. The fact that you claim to not depend on the arguments of ancaps is interesting. I would like to hear it.

Regarding the burden of proof, this is also a cop out. Both sides of the argument carry the burden of proof for their view. I could make that same argument you are making in reverse. Since you proposing changing the existing status of IP laws, you have the burden of proof, since you are “prosecuting” for a change.

But in reality, an argument means give and take, back and forth, pro and con.

matt470 March 24, 2011 at 8:02 pm

Ok Wildberry – I’ll have to just wear that criticism for now because I don’t have the many hours necessary in the next few days to put together my thoughts on this (again).

In the interest of fairness though, don’t you think you should have a look again at the comment from Kid Salami that solicited that response from me? He hasn’t asked for any specifics and yet has bundled my argument with others then attacked that group. Isn’t this a bit of straw man?

Wildberry March 24, 2011 at 11:55 pm

@matt470 March 24, 2011 at 8:02 pm

Sorry if that seemed harsh, I really didn’t mean it to be.

The problem Kid is raising is a reasonable one. It is difficult to track things down in time and place, especially in such a prolific thread as IP posts. Even Kinsella links to articles or threads (he does that maybe better than anyone else here) so we can reference earlier things he’s written.

For myself, I like restating my position in response to someone new (not the continuous loop Surda has a tendency to get into) because I find I am more clear in my own thinking when I try to re-express by postion more clearly and succinctly (although I am hopelessly verbose, I realize).

If you feel that you have already laid out your postition clearly somewhere, keep the link handy and post it for us, or use the link yourself and re-post the relevant portions of what you want to say in the new thread. That we we can keep things moving.

Kid has sort of staked out a position regarding the NAP and that is what he is exploring. I am sort of focused on challenging those who don’t give a fair reading of the existing law and its operation. Others take a different entry point.

I can summarize Kinsella’s argument in a couple of slogans: “Ideas are free” and “we have IP because we have the State” which is “dripping with evil”. Surda has his “vagueness and self-contradiction” schtick.

So, even though I have read a bunch of stuff you have written here, I’m wondering too, what is your “anti-IP elevator speech”?

And yes, it is a straw man to expect you to carry the burden for some group you don’t represent. Speak for yourself, that is sufficient.

You seem like a sensible guy so I’m interested.

Regards,

Stephan Kinsella March 25, 2011 at 2:18 am

Wildberry: “I can summarize Kinsella’s argument in a couple of slogans: “Ideas are free” and “we have IP because we have the State” which is “dripping with evil”.”

That is not a summary of my views at all. “Ideas are free” is some kind of factual statement, not an argument. And saying we have IP because we have the state is just an explanation of why we have it–not an argument against it.

The primary argument against IP is what I have consistently stated since the beginning (my first major piece on IP, In Defense of Napster and Against the Second Homesteading Rule, September 4, 2000, LewRockwell.com, and in my earliest published piece against IP, Letter on Intellectual Property Rights, IOS Journal 5, no. 2 (June 1995), made this clear): assigning IP rights in effect transfers property rights from exisitng owners to the IP owner–he becomes a partial owner of others’ property, as he has a veto over what they may do with it. This is theft. That is the central problem, as I have maintained from day 1.

Peter Surda March 25, 2011 at 4:57 am

Surda has his “vagueness and self-contradiction” schtick.

I see. Earlier on, Wildberry was pretending to argue with me and merely avoided direct answers. After I exposed his intellectual fraud and the lack of foundation for his arguments, he realised that the trick does not work on me, and I won’t let him get away with it. So he switched to avoiding any confrontation with me and merely refers to me.

I’ll just repeat, the concept of self-contradiction is the foundation of all scientific discourse. Without it, argumentation is impossible. Wildberry, apparently, disagrees.

The Kid Salami March 25, 2011 at 5:51 am

Matt

I’m sorry I’m not familiar with your body or work. If matt470 is your internet stage-name and you are Chomsky then I humbly apologise – but as I see it, you’re just another douchebag like the rest of us posting on the internet. Until a day or so ago I’d never seen your name on any of the IP threads here. Why you think you have some far-reaching reputation and body of work that I should know, or can just read about at will, is beyond me. I don’t really give a shit about your arguments for or against anything now….but – as your confusion here is illustrative – for the record, you say:

Moron: “In the interest of fairness though, don’t you think you should have a look again at the comment from Kid Salami that solicited that response from me? He hasn’t asked for any specifics and yet has bundled my argument with others then attacked that group. Isn’t this a bit of straw man?”

“He hasn’t asked for any specifics” – what is wrong with you, can you read? I didn’t “bundle” you with anyone or anything, I quoted your words..

Moron: “I don’t have a problem with ancappers and theories of homesteading (although I’m not totally convinced) but you do not need to be in this camp to disagree with IP. I think there have been quite a few bloggers on this site to point that out. ”

.. and then in response to these, I asked you a question…

Non-moron: Really? Notwithstanding the various people that have indeed “point[ed] that out” to me, I’ve been asking for specifics for some time….Please furnish me with your argument if you have one, I’m all ears. And incidentally, I reject that criticism of vagueness.

..which you STILL, despite all your meta-bullshit – and like most of the other anti-IP argument-free dogmatists – haven’t answered.

Then you complained about specifics and I asked you again, by copying and pasting the words again. And you STILL don’t answer and come back with “He hasn’t asked for any specifics”. Maybe you want me to say “pretty please with sugar on top”?
This is the root of the problem here – you are not alone. You haven’t, in your own head, delineated the arguments correctly and separated the assumptions. Wildberry said

You know your own arguments better than anyone, so it is reasonable to ask you to succinctly restate your core objections to the concept of IP rights. Pick your best argument and state it. The fact that you claim to not depend on the arguments of ancaps is interesting. I would like to hear it.

So now we’ve both asked you and then, incredibly, you STILL didn’t answer. The core of my argument is simple – “I believe that an advanced division of labour society requires there to be some acts that are not Rothbard/Kinsella invasions that should nevertheless be ‘unlawful’.”.

I can’t prove it in a paragraph, but I can state it. And Peter, for example, is clear on what his object is. I don’t agree, but have at least found the exact point at which we disagree and beyond which further debate is futile (until such time as I produce a theory). Same goes for Kinsella.

But you say you don’t need ancap. Yet you seemingly can’t even STATE this argument succinctly, you can’t even STATE your exact point of departure from any other reference point. This is either because you are a bullshitter or because you are not clear enough in your own head what your core argument is and just like to jump around. Probably a mix of the two, insofar as they are separable.

Peter Surda March 25, 2011 at 7:36 am

Kid Salami,

The core of my argument is simple – “I believe that an advanced division of labour society requires there to be some acts that are not Rothbard/Kinsella invasions that should nevertheless be ‘unlawful’.”.

I addressed this a couple of days ago, but probably you missed it because it was in an old blog post. See:
http://blog.mises.org/15867/the-fight-against-intellectual-property/comment-page-1/#comment-767063

The Kid Salami March 25, 2011 at 8:40 am

Peter

I had not seen the reponses from yourself and Kinsella there no, they must have been some time after the post. I guess I can say I wish I hadn’t said one or two things in that post. But I stand by the core of my argument. A clear point of departure is this: say we have a state which has one law only that is not ancap heaven, a law against libel. In your framework, there is no difference between

- a blanket law not allowing people to spread knowingly false information about others for personal gain
- a blanket law allowing rape

at the start of the analysis, as both are “invasions” and the first consideration is “invasion or not-invasion”. I will stand by my claim that this is “nutty”.

I suggest that the first distinction to be made should, in fact, categorise these acts differently, and intend to demonstrate this clearly at some point.

Peter Surda March 25, 2011 at 9:55 am

Kid Salami,

they must have been some time after the post

That’s no problem, I’m processing through a backlog.

In your framework, there is no difference between…

It’s not really a framework you’re referring to, but assumptions. But different people have different assumptions. There are people who consider a rape the fault of a woman, for example, and want to punish her for it.

I will stand by my claim that this is “nutty”.

What is? The claim that they are both violations?

Let’s rephrase the argument. Instead of your
a blanket law not allowing people to spread knowingly false information about others for personal gain
we’ll say
blanket law not allowing people to earn money by talking when someone who is not participating in the talk does not like what they are talking about

Doesn’t that sound completely different? It’s all in the perception.

In some countries you can easily get around slander/libel by using tricky formulations. For example, instead of using statements that are false, you use statements that are phrased as questions, contain emotionally charged verbs/nouns/adjectives, shift the perception of the listener/reader into thinking you are making a claim which you from a purely logical point of view are not making, or use invalid logic to confuse the listener/reader.

So, is that the correct approach or not? Should the effect be relevant or the falsehood of the claim? What about making a truthful claim that most people interpret as a different, false one? What about people who cause market share changes by making false statements, for example, should psychologists be able to sue astrologists?

Your whole objection is logically incoherent and boils down to the fact that some people do not like what others are doing. Which is a wholly insufficient reason, and, if I may, “nutty”.

The Kid Salami March 25, 2011 at 10:19 am

“Your whole objection is logically incoherent and boils down to the fact that some people do not like what others are doing. Which is a wholly insufficient reason, and, if I may, “nutty”.”

Once again, I get it. And once again, this is, even more precisely, where I say you and Kinsella are wrong. It simply does not boil down to this, about people “liking” the actions of others or not – you, and a LOT of other people, are convinced that it does. But it doesn’t – just as argumentation ethics says “if you do this (argue), then you must accept this (property rights in your own body etc.)” then also “if you accept XYZ (a requirement in a division of labour society) then you must accept ABC (things I will show follow from this)”.

So I intend to show that you can be consistent and admit you want us all to be hunter-gatherers, or be consistent and drop the idea that it “boils down” to what you say, or be inconsistent. And I’m not going to say why this is in dribs and drabs any more – I’m going to do it once correctly or not at all.

Peter Surda March 25, 2011 at 10:45 am

Kid Salami,

… you, and a LOT of other people, are convinced that it does …

Well, from Austrian perspective, it does. But from the falsificationist perspective the problem is the self-contradiction of my opponents’ arguments.

If I get you right, you actually have two different objections. One of them is that using different rules than NAP causes a better division of labour than NAP. The second one is apparently that people do not like NAP. What kind of argument is that?

I intend to show that you can be consistent and admit you want us…

What I want is for my opponents to provide a logically consistent position. Apparently, this is too much to ask.

… all to be hunter-gatherers.

This is a complete non sequitur. Why should this be the consequence of my arguments, but not a consequence of yours? Are you serious?

Wildberry March 25, 2011 at 11:08 am

@Stephan Kinsella March 25, 2011 at 2:18 am

assigning IP rights in effect transfers property rights from exisitng owners to the IP owner–he becomes a partial owner of others’ property, as he has a veto over what they may do with it. This is theft. That is the central problem, as I have maintained from day 1.

@The Kid Salami March 25, 2011 at 5:51 am

The core of my argument is simple – “I believe that an advanced division of labour society requires there to be some acts that are not Rothbard/Kinsella invasions that should nevertheless be ‘unlawful’.”

@Wildberry March 2, 2011 at 1:36 pm

The core of my argument is that the production of intellectual works in the absence of IP protection would amount to production for external economies.

In my view, all of these points of departure reduce to an argument that supports or refutes the justifications for recognizing property rights in “intellectual production”, as defined by existing IP laws.

The Kid Salami March 25, 2011 at 11:15 am

Wildberry

“In my view, all of these points of departure reduce to an argument that supports or refutes the justifications for recognizing property rights in “intellectual production”, as defined by existing IP laws.”

Do you mean, for example, you could treat your “reputation” as some kind of intellectual property?

Wildberry March 25, 2011 at 1:04 pm

@ The Kid Salami March 25, 2011 at 11:15 am

Well, perhaps conceptually. The so called reputational rights are liable, slander, publicity, etc. These are not strictly part of the IP system, but they are tangential and are generally inclusive of the “rights in the intangible” category.

I only mean to imply that my reasonsing with regard to the property rights in the intangible for copyrights, patents, and trademarks is consistent with the laws of the “reputatinal” rights of liable/slander/blackmail/etc. I support the justifications for making these offenses illegal as being consistent witht the justiications for IP.

More specific to IP laws is the right to publicity, which covers identity theft and related issues. It was meant to be a catchall category that is IP related, but is not specifically patent, copyright, or trademarks.

I am enjoying the good fight you are waging. I look forward to reading your dissertation.

Wildberry March 25, 2011 at 1:20 pm

@Peter Surda March 25, 2011 at 9:55 am

I find very little of what you have posting here, including your recent responses to me useful. I addition that that, have you considered why I would want to correspond with someone who speaks to me so rudely? Probably not.

You are an obstructionist. You create vagueness so you can complain about it. Same with your “self-contradictions”. I can’t tell what your core argument really is, so I left you out of my little summary. Who knows?

But I do find the below illustrative of my fundamental complaint about your approach, which is shared by others here, including Kinsella. You have provided a very clear example below:

Let’s rephrase the argument. Instead of your

a blanket law not allowing people to spread knowingly false information about others for personal gain

we’ll say

blanket law not allowing people to earn money by talking when someone who is not participating in the talk does not like what they are talking about
Doesn’t that sound completely different? It’s all in the perception.

In your version you equivocate “ spread knowingly false information” with “talking” and the implied “ actual injury to the slandered party” with “does not like”.

By such equivocation, you completely strip TKS’s statement of its intended meaning, and then base your argument on your own reconstruction of that meaning. This is clearly the construction of a straw man by equivocation.

It is the same techniques as claiming that opposition to IP is equivalent to opposition to “ideas are free”.

It is dishonest, unproductive and it is a waste of time trying to argue with people who insist on doing this despite objection. I continue to object, but I don’t continue to waste my time trying to correct you. I am just one in a long string of bloggers here to reach that limit with you.

Peter Surda March 25, 2011 at 4:06 pm

Wildberry,

I find very little of what you have posting here, including your recent responses to me useful.

That is my conclusion too. I assume you realised that your approach does not have the desired effect on me.

I addition that that, have you considered why I would want to correspond with someone who speaks to me so rudely?

I assure you, the impression is mutual, albeit the reason different. My reason is that although you write, you do not engage in a debate. You do not address arguments. This is most prominently visible when you are confronted with a clear question. One time, you even had the audacity to claim that I did not ask a question.

You create vagueness so you can complain about it.

I sometimes do this intentionally to reflect the vagueness of my opponents claims, in order to demonstrate the problems in their own arguments. By all means, feel free to address these. If you think that I did that in a different context, fell free to provide an example too and I’ll revisit it.

I can’t tell what your core argument really is, so I left you out of my little summary.

Well then, how about I stick to questions only. Would you agree that without recognising that self-contradiction disproves a claim, a debate is impossible? Would you agree that using two different terms to refer to phenomena does not necessarily mean that there are two distinct phenomena? Would you agree that unless we can show a situation when A occurs without B, we cannot draw the conclusion that A and B are distinct phenomena (or more precisely, that A is not already present in B)?

In your version you equivocate “ spread knowingly false information” with “talking” and the implied “ actual injury to the slandered party” with “does not like”.

I see that you did not get my point. What I am doing is attempting to provoke my opponents into a reaction and explanation what the difference is. I am challenging my opponents to disprove me. That is how a proper scientific discourse works.

By such equivocation, you completely strip TKS’s statement of its intended meaning, and then base your argument on your own reconstruction of that meaning. This is clearly the construction of a straw man by equivocation.

What I am trying to do is exactly the opposite: I am trying to find the lowest common denominator, i.e. the core of that claim. You are free to pinpoint any section of my argument and say “here’s the relevant distinction”.

What I did in the example above was merely repeating your rhetorical trick which “proves” that IP “exists”. If you object to my trick, why don’t you object to your own?

Once again, in simpler words. The point of my “equivocation” was not that outlawing defamation is wrong, but that by the use of tricks you can evoke emotional reactions that can go either way. The point was to motivate my opponents to provide properly constructed arguments, rather than promote any specific conclusion regarding defamation.

It is the same techniques as claiming that opposition to IP is equivalent to opposition to “ideas are free”.

I actually have a problem with the claim that “ideas are free”. It’s a nice metaphor but not a scientific argument. It confuses.

matt470 March 25, 2011 at 7:53 pm

@Kid Salami – March 25, 2011 at 5:51 am

moron says…..

Don’t be so puerile, although now I get the reference to “Kid” in your name.

I joked about “my work” being gifted to all on this site… you didn’t notice that little emoticon thingy next to that comment?

I struggled with your question to provide specifics because how can I be specific about the differences between my argument against IP and ancappers arguments if I don’t have a strong grasp of their arguments (I won’t be doing too well on this site if I alienate them also)? To make a comparison you need to know about the two things you’re comparing. In this case I only know my own position so I have tried to refrain from stating things I know little about. I guess given that I shouldn’t be blogging at all! [insert smiley thing here to show this is an attempt at self deprecating humour].

I don’t really give a shit about your arguments for or against anything now

Shame, you’ve given up on me. Oh well, I prefer rational discourse with like minded people rather than kids that throw temper tantrums and immediately resort to name-calling when they don’t get what they want.

matt470 March 25, 2011 at 8:40 pm

@Kid Salami

So now we’ve both asked you and then, incredibly, you STILL didn’t answer.

I try to respond to Wildberry because he asks his questions clearly and acts rationally and maturely.
Have a read:
http://blog.mises.org/16099/ideas-free-and-unfree-a-book-commentary/comment-page-1/#comment-768056

Peter Surda March 25, 2011 at 9:01 am

Wildberry,

So if you are going to claim that IP is anticompetitive on the basis of private property rights, you would have to show me that it creates a market monopoly, not a private property monopoly. Can you do that?

I’m not sure why you brought this up. You claimed earlier that all rights expropriate. Now you complain that Stephan has not proved that IP expropriates. Which is it then?

Wildberry March 25, 2011 at 1:29 pm

It is an equovation to make “property monopoly” equal “economic monopoly”. See Mises.

“You claimed earlier that all rights expropriate” is not equivalent to “all rights impose limits on property use.”

“expropriate” does not mean “limit”. See?

Peter Surda March 25, 2011 at 4:33 pm

Wildberry,

It is an equovation to make “property monopoly” equal “economic monopoly”. See Mises.

I humbly disagree with Mises on this (if he, in fact, formulated it in the way you are portraying it). Monopoly is a loaded term, it’s not a scientific one.

“You claimed earlier that all rights expropriate” is not equivalent to “all rights impose limits on property use.”

Well, I can’t find any post which poses some sort of a logical step between those two, so instead I’ll ask you directly: can you show me an example of a limit on property use which does not involve expropriation?

Wildberry March 25, 2011 at 5:54 pm

@Peter Surda March 25, 2011 at 4:33 pm

So with a few keystokes, you can comletely dismiss Mises’s analysi of monopoly and attempt to ban the use of the word as being unscientific?

You are entirely too full of yourself, Mr. Surda, even for a Euorpean…LOL

Peter Surda March 26, 2011 at 2:49 am

Wildberry,

thank you for an excellent demonstration of your behaviour. Yet again you avoid confrontation and rather talk about whatever you want. I explained my position on the term “monopoly” elsewhere. If you want, look that up.

By the way, you ask if Stephan can prove show that IP is an “economic monopoly” rather than “private property monopoly”. According to my definition of what you refer to as “economic monopoly” (mutually inexclusive actions are deemed illegal vis-a-vis each other), IP is an economic monopoly.

Now, how about you answer my question? Or would that go against your principles?

Wildberry March 26, 2011 at 6:01 pm

@ Peter Surda March 26, 2011 at 2:49 am

Yet again you avoid confrontation and rather talk about whatever you want.

I see no point in trying to engage with you, but this is just too rich to ignore.

First, avoiding confrontation with you over your convoluted, incomprehensible, and utterly mixed-up questioning is a matter of practicality. As I have said, given a choice, when output does not equal income, producers will choose not to produce for external markets. There is no income here. I am not your slave.

Second, what do you propose I talk about, what you dictate? I repeat, I am not your slave.

As an aside, what you mean Silas got banned?

Peter Surda March 27, 2011 at 5:01 am

Wildberry,

First, avoiding confrontation with you over your convoluted, incomprehensible, and utterly mixed-up questioning is a matter of practicality.

I repeatedly told you that you should by all means ask if you don’t understand something and pinpoint the location of my error. This has not happened.

As I have said, given a choice, when output does not equal income, producers will choose not to produce for external markets.

And as I have said, this is a false analogy. Without IP, the proportion of “external markets” of your output is not 100%, and with IP it is not 0%. Furthermore, you omit to mention that IP also affects costs, not only revenues. Why should then producers choose to produce if they have to funnel their revenues to other people?

There is no income here.

This is both theoretically and empirically false. Among other things I have been earning money as a programmer my whole career and cannot recall a situation where the income required IP, even in the long years before I became anti-IP.

I am not your slave.

And I am not your slave. You can turn any vague argument around. You don’t like it? Then stop doing it.

coturnix19 March 19, 2011 at 11:35 pm

Copyright, at least as it was originally conceived, protects original expressions; but patents are about ideas – and that’s why patents are unconditionally evil. Copyright ,OTOH, might be for good or for evil, depending on what exactly it protects.
The fundamental problem here is that it is impossible to draw a clear line between ideas and their expression, at least not in all cases, which gives both pro- and con- IP people a tool to push their agendas (and also to confuse patents and copyrights).

Take an example: Given a book ‘harry potter’ , what should be (not is) protected from unauthorized copying
1 ) the original text
2 ) translation into foreign language
3 ) inexact retelling of the text (but of considerable size, say an adaptation for movie plot)
4 ) the plot
5 ) the characters
6 ) the idea of wizard boy studying in given school
7 ) names devised by the author
8 ) movie made from the book
…….
could be more.
Where to draw the line? I think, many people would disagree on where exactly.

Daniel March 20, 2011 at 1:55 am

I think WB would agree that were IP protection to be enforced, but privately and voluntarily, that is, without a state, said protection would not be nearly as damaging as IP protection as it is enforced today.
Said protection would, naturally, be limited since it would probably occur among contracting parties, and subject to market forces.

nate-m March 20, 2011 at 3:08 am

There would be no such thing as ‘IP protection’ without state intervention.

The only thing resembling them would be formal voluntary contractual obligations between parties. These agreements would only affect the people agreeing to them and have no affect on controlling the execution of ideas by third parties.

Gil March 20, 2011 at 3:51 am

So I can rob your house because I never signed any contract with about what’s your property?

nate-m March 20, 2011 at 6:07 am

If you want to get shot in the face then that would be a good way to go about accomplishing it.

It also has nothing to do at all with anything I was talking about.

Peter Surda March 20, 2011 at 3:54 am

Without state intervention, “IP protection” is simply theft. So the question is, how much would it be tolerated?

The Kid Salami March 20, 2011 at 4:07 am

“The only thing resembling them would be formal voluntary contractual obligations between parties. These agreements would only affect the people agreeing to them and have no affect on controlling the execution of ideas by third parties.”

Do you agree that a dispute resolution organisation in ancap world could insist that you agree, as one of the terms when you sign up, that when you find something in the street that is a candidate for having been “copyrighted” (which here means registering yourself as the author of something with your DRO ), you take it in and see if it belongs to a fellow member of this DRO.

If it does, you hand it over – if not, you can go nuts with it (maybe you are compensated too buy the author). Also, say you can’t breach the “copyright” of fellow DRO members in any other ways.

If people want this – and I personally believe for many items that they may, that there is just something that you instictively feel you possess when you write, say, a novel – then this could become policy of the most popular DROs. Not copyright as it is now but indirect “formal voluntary contractual obligations between parties”. If it took hold and almost all the DROs used it, then you’d essentially have to respect just like you have to respect normal property rights.

Do you think this is plausible? Do you have any objection to it?

nate-m March 20, 2011 at 6:06 am

Do you agree that a dispute resolution organisation in ancap world could insist that you agree, .

If people want to submit themselves to that then that is fine. I wouldn’t though. I would recommend heavily against any business or individual agreeing to submit to such a organization.

What is the upside of it? What would be the financial benefit for me or a business to agree to such a thing?

The Kid Salami March 20, 2011 at 6:26 am

Businesses and individuals who produce works which can be encoded in a final complete form (novels and plays, engineering and architectural drawings, software etc.) might form their own DRO and thereby agree between themselves to respect each others “copyright”.

No’one else of course has to join. But they could try to get people who don’t want any such “copyrighting” (and want to just copy drawings and software as they feel like it) to use this new DRO during negatiations for new contracts (ie. we’ll provide you with this design provided that you join the DRO of our choice, else you’ll have to go elsewhere). Others who produce similar works but don’t join this DRO because they think IP is inhibiting will then compete against them and try to take the business of those who want to be free to copy. At the end, some business models will be left standing and some will be dead.

They might succeed, they might not. It might be more efficient for the market to do this, it might not – we’d find out in ancap world.

nate-m March 20, 2011 at 6:59 am

They might succeed, they might not. It might be more efficient for the market to do this, it might not – we’d find out in ancap world.

What your describing is a industry cabal. Or a trust or whatever you want to call it. Which in itself is fine, but they don’t last very long in a free market.

Effectively your creating a industrial association that forbids to do business with companies that engage in activity that does not conform to the best financial interest of the association. Given there is a long history of these sort of things it’s fairly obvious how it would play out.

The Kid Salami March 20, 2011 at 7:06 am

“What your describing is a industry cabal. Or a trust or whatever you want to call it. Which in itself is fine, but they don’t last very long in a free market. ”

I don’t believe I am describing one of these but…

“Given there is a long history of these sort of things it’s fairly obvious how it would play out.”

Can you give me some examples?

Colin Phillips March 20, 2011 at 8:32 am

Kid Salami,

This suits me perfectly – let the people who want to live by the restrictions of IP try to find innovative ways to convince others to do the same. Absolutely, there could be some DRO’s that require their members to abide by these restrictions. People that support IP can then, if they so choose, give preferable pricing to those DRO’s, or refuse to deal with people with different DRO’s, or whatever they want to try. I’m not sure it’d work, myself, but I am completely in favour of a free market that allows people to try.

Personally, I wouldn’t sign up to a pro-IP DRO if there was a regular DRO available, but I wouldn’t stop anyone else from doing so.

nate-m March 20, 2011 at 9:13 am

Can you give me some examples?

I can’t think of anything notable off the top of my head. If you look around Mises for people discussion antitrust laws and such things you can find information on it.

Peter Surda March 20, 2011 at 11:50 am

Kid Salami,

Do you agree that a dispute resolution organisation in ancap world could insist that you agree, as one of the terms when you sign up, that when you find something in the street that is a candidate for having been “copyrighted” (which here means registering yourself as the author of something with your DRO ), you take it in and see if it belongs to a fellow member of this DRO.

Based on my analysis of the theories provided by IP proponents, such a rule would be either overly specific and thus having little practical effect, or be overly generic and thus causing confusion regarding which acts are violations and which are not, thereby creating a market disadvantage for the said DRO. So the whole premise is highly dubious.

Peter Surda March 20, 2011 at 12:21 pm

Kid Salami,

But they could try to get people who don’t want any such “copyrighting” (and want to just copy drawings and software as they feel like it) to use this new DRO during negatiations for new contracts (ie. we’ll provide you with this design provided that you join the DRO of our choice, else you’ll have to go elsewhere).

Unless you agree with the very specific definition of IP these DROs provide, from your perspective these DROs is essentially a mafia. If we assume that mafias would not prosper very much in anarchocapitalism, why should IP-supporting DROs?

The Kid Salami March 20, 2011 at 2:10 pm

“…let the people who want to live by the restrictions of IP try to find innovative ways to convince others to do the same.”

If people think it benefits only a small number at the expense of the rest, they won’t do it. If they “like” a society where people “own” the text of novels, maybe it will. I’m not sure what would or could happen either (I’m even more confused as to how this suggestion makes me an IP fascist in the eyes of some…).

“I can’t think of anything notable off the top of my head. If you look around Mises for people discussion antitrust laws and such things you can find information on it.”

I don’t want “information” on it – I can think of examples too, I’m not a moron. I wanted your examples so I could point out where they might differ from what I’m suggesting to show why I can’t rule it out with as much certainty as you.

“Based on my analysis of the theories provided by IP proponents, such a rule would be either overly specific and thus having little practical effect, or be overly generic and thus causing confusion regarding which acts are violations and which are not, thereby creating a market disadvantage for the said DRO. So the whole premise is highly dubious.”

So it should be really crystal clear, something like, erm, block’s reply to Van Dun about encirclement:

http://libertarianpapers.org/articles/2010/lp-2-4.pdf

Suppose that Mr. B fully intends to homestead the entire area, A+B….What are the size limitations on B (+A)? this issue is not unrelated to the one concerning how intensive or extensive must the homesteading be, in order to count as a justification of ownership. According to Rothbard (), this depends upon the culture, the common practices, the history of the area, and can legitimately vary depending upon these considerations. For example, the land is better watered, on average, and more fertile, east of the Mississippi, than west of it. Therefore, the tradition is likely to be a requirement of more intensive homesteading and farming east of this river than west of it.
Similarly, the optimal size of the farm holding is likely to follow this pattern. For example, if Mr. B initially enclosed 160 acres in Louisiana, or 1600 acres in New Mexico, this would be far more reasonable than the reverse.9 If Mr. B somehow places a fence around the entire U.S., and then starts homesteading it, working from the south to the north as in our previous example, then Mr.
C would be entirely justified in breaking through the fence, say, in North Dakota, and working south.
Let us now return to the case where Mr. B placed the fence around (a reasonable sized) B (+A). Only instead of working from the south to the north, he began at the perimeter fence, and worked his way inwardly, toward A. After a week or so, we may suppose that Mr. B had now covered the
entire terrain, B, and was continuing inwardly to A. At this precise point in time, Mr. C breaks through already homesteaded land in B, and starts erecting a path toward A, on the ground that Mr. B is a forestaller of A. My point is that as long as Mr. B is in the process of homesteading the entire area A+B, has already planted his crops in B, then Mr. C is in the wrong. How long should this process take? What are the time limitations? Again, it is a matter of context. It should depend upon custom, the terrain, history, etc. as in the case of the intensivity of the homesteading. For
example, 100 years is way too long. But Mr. B need not rush, and plant all of his 160 (or 1600) acres in one day either. It is another continuum issue as to precisely how much time Mr. B has at his disposal before it would be justified for he must build, or allow to be built, a path in B to allow Mr. A, or Mr. C to begin homesteading in area A.

Or can we conclude that, once again, demands are being made on copyright law that are WAY in excess of those made with regard to laws about tangible property.

“from your perspective these DROs is essentially a mafia”

i don’t see this. if people don’t like the condition, they use another DRO. No’one is threatening anyone.

Peter Surda March 21, 2011 at 9:42 am

Kid Salami,

So it should be really crystal clear, something like, erm, block’s reply to Van Dun about encirclement:

I have a problem with Block’s reply. Homesteading happens in 3D, not in 2D or 1D.

Or can we conclude that, once again, demands are being made on copyright law that are WAY in excess of those made with regard to laws about tangible property.

I’m not sure what that means. We however can hopefully agree that:
- most IP proponents want to keep some sort of physical property rights
- IP is more complicated than physical property

i don’t see this. if people don’t like the condition, they use another DRO. No’one is threatening anyone.

If you assume that “pro-IP” DROs stick to their own customers and don’t prosecute non-members, then what you have from an economic point of view is a non-compete agreement (cartel). Without the ability to prosecute non-members, a cartel cannot keep its position long term, because all members can gain by cheating. For example, they can just outsource to another company that is with a different DRO. So again, it’s a no-go.

The Kid Salami March 22, 2011 at 5:37 am

“I’m not sure what that means. We however can hopefully agree that:
- most IP proponents want to keep some sort of physical property rights
- IP is more complicated than physical property”

Yes, I agree. My point is that if you rule out an argument for IP (arbitrariness and lack of clarity) with a criticism that can reasonably be levelled at Block’s arguments about tangible property theory, then this is a weak criticism.

“If you assume that “pro-IP” DROs stick to their own customers and don’t prosecute non-members, then what you have from an economic point of view is a non-compete agreement (cartel). Without the ability to prosecute non-members, a cartel cannot keep its position long term, because all members can gain by cheating. For example, they can just outsource to another company that is with a different DRO. So again, it’s a no-go.”

Framing the problem as you have, I agreed. But I’m not so sure there are two clear sides fighting with each other – what if a critical mass of people “like” the idea of people retaining control over novels and drawings and so on that they created (even if they themselves do not expect to gain from this directly). In this case this is not so obvious and the question of whether it takes hold or not becomes an empirical one.

Colin Phillips March 22, 2011 at 7:51 am

Kid Salami,

I appreciate the effort you’re putting in here, it is certainly helping me follow the arguments. To that end, is it fair to characterise your position as asking the following questions?
1) Does every conceivable system of property rights which abides by the NAP necessarily thereby exclude IP?
2) If one rejects the NAP, are there any other justifiable reasons for excluding IP?
3) Is it possible to develop a coherent system of property rights which achieves the stated aims of IP (the “good ones”, not the unnatural monopolies and censorship) without contradicting the NAP?
4) Is it possible that a society might develop where a system like IP was voluntarily accepted by a critical mass of people, which made it into a sort of custom, without violating other property rights, simply because nobody would deal with a person who wouldn’t sign the non-compete contract?

I hope you see that this is not an attempt to insult you, just to help me follow the discourse. If the above is accurate, please see my thoughts below.
1) I believe so, but I can’t prove it, obviously. When I think of IP, I am specifically referring to the dogma of prosecuting people who, through whatever non-violent means, own property that bears some arbitrary level of similarity to property you own, even if those people didn’t agree upfront not to own property similar to yours. I think the important bit there is the “through whatever non-violent means” bit – if your property system has a basis in the NAP, you shouldn’t use violence to prevent non-violence.
2) I like the NAP because to me it does seem to be coherent, and logically consistent. It seems a good basis to build a system of property rights on. In fact, I don’t know of another basis which does not have some sort of internal contradiction, or some silliness (like, in any conflict over scarce resources, the victor is he who is tallest). What bases would you consider as valid for the purposes of assumption?
3) I don’t think we’ve successfully been able to separate the good effects of IP from the bad, because IP as I referred to it in my response to 1) rests on something I consider bad (violating the NAP). I don’t think protecting the monopoly of the author can be enforced using violence in an NAP world, meaning that it cannot be entrenched in property rights. That does not mean that it can’t be customary though – using social ostracism or somesuch to maintain these monopolies is justifiable, in my view.
4) Yes, it’s possible that such a thing might happen. I would prefer that it did not, I think social and market ostracism should be reserved for actual crimes like rape and murder, but that’s just an aesthetic preference.

I hope I have not misrepresented you here. Please feel free to correct me.

The Kid Salami March 22, 2011 at 9:13 am

Colin – I see your points but you’ll forgive me if I don’t spend the time to correct your interpretations of my view and then answer your comments while mentally adjusting them based on the corrections…. If you want to ask me specific questions about my actual words then I’ll certainly answer.

Colin Phillips March 22, 2011 at 9:34 am

Kid Salami,

Fair enough. Was I close though? I’m hoping that if I can synthesise the position of each of the “camps” in this debate, I can see where the camps are “talking past” each other. There seems to be a great deal of “As I’ve explained before” and “which you don’t seem to understand” and “trying to pin you down” and so on in these comment threads. The first step is to collect the salient points of each camp. Next will be to try find the sticky differences, and investigate them.

I started by asking you rather arbitrarily, simply because you have the most neutral “writing voice” right now. In future, I will withhold my comments.

matt470 March 23, 2011 at 11:55 pm

@ Kid Salami – March 20, 2011 at 4:07 am

Your approach here is new and I like it. Your question of whether some form of IP could still exist in an ANCAP society is a very good one and I certainly believe it is possible. In fact I think it is probable that some of this would occur particularly between businesses in specific industries whereby they recognise a mutual benefit from doing so

The cartel-type objections could be diminished if dispute resolution organisations made the use of their services conditional on this as you’ve suggested. Insurance companies could also do something similar.

The huge distinction between your approach here and the more usual statutory IP approach is that now it would be consented to by all parties involved and would be controlled in a free-market manner (ie. not just at the behest of the loudest lobby groups and foisted on all in a very unlibertarian manner).

Peter Surda March 24, 2011 at 5:15 am

Kid Salami,

My point is that if you rule out an argument for IP (arbitrariness and lack of clarity) with a criticism that can reasonably be levelled at Block’s arguments about tangible property theory, then this is a weak criticism.

And my point is that unless an IP proponent completely rejects physical property, then he his argument fails due to parsimony.

what if a critical mass of people “like” the idea of people retaining control over novels and drawings and so on that they created

That still does not fix the logical errors in the claims of IP proponents, therefore keeps the contradiction and with it the impossibility of implementing it. Now, purely hypothetically, these issues are fixable. However, as I said previously, the reactions I get from IP proponents do not indicate this is likely.

Wildberry March 20, 2011 at 2:49 pm

@Daniel March 20, 2011 at 1:55 am

From an ethical viewpoint, private or government enforcement is not relevant. If the right exists in IP, then enforcement is a “technical problem” (to quote Kinsella) that can be addressed in a number of ways.

Protection of any right should be limited and proportionate, with protections against prosecution of the innocent.

Contracts can be and are used both within and outside the context of both IP and government enforcement.

I am attempting to restrict the discussion to the ethics of property rights in IP, while maintaining a fair reading of the law and its operation. I am not advocating the correct “technical solution” at this point.

nate-m March 20, 2011 at 3:03 am

Copyright, at least as it was originally conceived, protects original expressions; but patents are about ideas

Copyright as it was originally conceived was used as a mechanism for censorship. The only people that were allowed to copy documents were ones that registered with the state and allowed official censors to vet documents before they were released to the public.

Once that was abolished then copyright made a second appearance as the great publishing businesses, which were created through this censorship mechanism, saw their profits erode as authors and smaller publishers could by pass them. Those publishing houses campaigned for copyright once again so that they could control the market. As a result authors were forced to go through them because they had access to the markets and the markets were forced to go to the big publishing houses because they owned all the copyrights.

What your talking about is probably the third or forth iteration in copyrights.

Basically everybody has been lying about the origins and purposes of copyright.

Even to this day the true use/effect of copyrights have much more to do about larger businesses controlling markets rather then making authors profitable.

Wildberry March 18, 2011 at 6:23 pm

@Daniel March 18, 2011 at 5:52 pm

Daniel. I’m sure I would find it provocative, so I’ll make you a deal.

I will buy and read your book if you will post how the dollars I spend on it find their way back to you and in what proportion (approximately), and where these allocations are currently subject to your rights in IP. I mean if I spend $20, and you get $1, what happens to the rest, and how would it have worked in the absense of IP.

I will be very interested in both that information and how you support your assessment of where “we would be without IP laws”. I’m willing to buy your book to find out the latter.

Deal?

sweatervest March 18, 2011 at 6:30 pm

Haha so in other words you won’t read it. Clever! Victory by default…

Scared to crack this book open!?

Andreas March 18, 2011 at 7:36 pm

Are you possibly looking for this?

http://levine.sscnet.ucla.edu/papers/imbookfinalall.pdf

Daniel March 18, 2011 at 8:30 pm

He is, and it’s not my book, I’m just putting it into epub to make it more (even more) ubiquitous

That is a reward unto itself :]

Adam March 22, 2011 at 10:03 am

Taking IP laws to the natural conclusion, is it morally permissible to be reading these comments, which are original ideas (if there is such a thing) from each of you, without first paying to do so?

The Kid Salami March 22, 2011 at 6:47 pm

Shut up.

Sione March 25, 2011 at 2:04 pm

Wildberry

I would like to clarify a few things. First, you support the notion that IP is property. Is that your position?

Sione

Wildberry March 25, 2011 at 3:10 pm

I support the principle of recognizing limited property rights in IP, as defined under the relevant statutes.

I say it that way because IP rights, like any other property right, operates within the legal framework of that subject matter. Real propertty operates under property law. IP operates under IP law, personal rights operate under tort law, etc. In general, however, IP rightrs operate as any other property right, especially with regard to exclusive use, or “property monopoly”.

Second, you have to accept the subject matter of say, copyrights, as it is defined in the statute. Otherwise, we have to argue about things like whether “ideas” are “IP”.

Is that sufficient for your purposes?

Sione March 25, 2011 at 9:17 pm

Wildberry

That’s interesting.

Are individual rights, such as the property right, derived from legal statute?

Shouldn’t the law be a written codification based upon individual rights?

Sione

Wildberry March 25, 2011 at 10:59 pm

Sione March 25, 2011 at 9:17 pm

Are individual rights, such as the property right, derived from legal statute?

Of course not. First comes ethics. IP rights are derived from the ethics of self-ownership and the private ownership of the means of production.

Then comes contracts. Cooperating humans can agree on arrangements which establish and define how certain property rights operate. Most here agree that IP rights in contracts are legitimate.

Then comes economics. Producers must be producers for an internal economy. Output equals income.

Next comes common law adjudication of disputes about the above. This forms precedents and these get integrated into social conventions.

Finally comes laws, which ideally encode the above and apply generally (no privity of contract required) as an operation of property rights.

Shouldn’t the law be a written codification based upon individual rights?

We seem to be in agreement about this.

So, rather than have to re-define IP, I find it convenient to just refer to the definitions in the law and debate the pros and cons while giving a fair reading of the existing laws and how they operate.

I have come to the opposite conclusion of Kinsella. I tend to alighn more consistently with Mises than Rothbard or Rand. I am a big fan of Kathleen Touchstone.

Peter Surda March 26, 2011 at 2:29 am

Wildberry,

IP rights are derived from the ethics of self-ownership and the private ownership of the means of production.

IP opponents (some of them at least), however, also claim that the rejection of IP is based on the concept of self-ownership and private property. How do you explain that?

Producers must be producers for an internal economy.

As I said before, without IP the amount of “internalisation” is not zero and with IP it is not 100%. So why is this an argument for IP?

Output equals income.

This is impossible to reach in any system, since causality extends to infinity. Furthermore, how do you measure output?

I find it convenient to just refer to the definitions in the law…

As I explained many times, the definitions provided by law do not match the theories provided by IP proponents.

debate the pros and cons while giving a fair reading of the existing laws and how they operate.

Very well then. What are the pros and con of existing IP laws?

Stephan Kinsella March 30, 2011 at 7:38 am

A note: some here keep referring to the distinction between tangible and intangible goods in connection with the IP argument. I did use this terminology in my AIP monograph. In his contribution to the Hoppe Festschrift, Hardy Bouillon, in “A Note on Intellectual Property and Externalities,” argues:

“Though some speak exclusively of tangible and non tangible goods, I prefer to talk of material and immaterial goods. See, for instance, Stephan Kinsella, “Against Intellectual Property,” Journal of Libertarian Studies 15, no. 2 (Spring 2001): 2. The point about material goods is not that they are tangible, for some are not. For instance, atoms and many other small material units are not tangible; they are identifiable only indirectly, though this does not prevent us from calling them material.”

I take his point and think it is not a bad one, and of late have tended to use the material/immaterial terms, but am not quite sure he is right that this is much more than a semantic nuance. In any case, it’s a good point worth considering. (Surda, what do you think?)

Wildberry March 30, 2011 at 9:26 am

@Stephan Kinsella March 30, 2011 at 7:38 am

“Though some speak exclusively of tangible and non tangible goods, I prefer to talk of material and immaterial goods. See, for instance, Stephan Kinsella, “Against Intellectual Property,” Journal of Libertarian Studies 15, no. 2 (Spring 2001): 2. The point about material goods is not that they are tangible, for some are not. For instance, atoms and many other small material units are not tangible; they are identifiable only indirectly, though this does not prevent us from calling them material.”

As you know, the significance of the terms is relative to the statutes and case law. Bouillon, and Surda for that matter, introduce this term to blur the distinction that is being made.
For example Matt470 is struggling with whether digital media is tangible or intangible. He thinks of them as intangible in relation to the copyrights, but By Bouillon’s standard, it would be “material”, even though we cannot observe them directly.

As you know, tangibility is defined in terms of whether the intangible is “fixed in a tangible medium”. As you also know, digital media is considered a tangible fixation because with a computer they are perceptible, and therefore tangible. This is why copyright law interprets copying digital media “copying” for infringement purposes.

Therefore, to be consistent with the argumentation, tangible/intangible should be used in the treatment of these concepts within the context of IP.

Peter Surda April 6, 2011 at 5:22 am

Kid Salami,

here you have it black on white: J. Neil Schulman does not think that IP contradicts physical property:
http://blog.mises.org/16319/the-origins-of-libertarian-ip-abolitionism/comment-page-1/#comment-770318

There goes your claim about him having a good argument.

Cheers.

Wildberry April 11, 2011 at 1:03 pm

@matt470 April 11, 2011 at 9:08 am

Matt, I’m posting here to defeat those reply indents…

It’s taken me a while to gather my patience to have another crack at this but for some reason that hit me while I was driving today, I thought I would…

I’m surprised you have not weighed in here: http://blog.mises.org/16319/the-origins-of-libertarian-ip-abolitionism/comment-page-1/#comments

IP proponents vehemently reject homesteading (prior vs later distincion) as the source of all property rights yet then dive straight into offering protection to creations precisely because they were the first in to get the work protected

I’m trying to cut to the chase here. I do not reject homesteading, which is one way to claim property rights. I reject the notion that this is the ONLY way to do so. Also, I believe, by your (and other’s) admission that the author has full property ownership rights in an original manuscript by virtue of the principles of self-ownership and the private ownership of the means of production, that this issue is therefore moot.

We are talking about the transfer of those rights, and whether it is a “lease or a sale”, in effect:

Opponents say that when they buy a book, they have acquired complete title to all property rights for everything printed on the pages.

Proponents say that rights are bundled and alienable, and they cannot be independently transferred without consent.

Because both the author and the “future copier” are claiming ownership rights to the same “work” to use my preferred term, or “information object” or logos, or “Media Carried Object”, or whatever you settle on as an acceptable term, that object is rivalrous. There is a conflict of ownership claims; a classic property problem.

Property rights being a human device, we could from this point, go in two directions; 1) we could agree with your position; once an author disclosed his work to the public (which is the goal of his action of writing it), it becomes property in the public domain, like ideas and air. This has certain benefits, like you and others describe; OR 2) we could establish property rights in the “work”, in which case the owner of the property could enforce exclusive use rights, which means his output (work) equals income (exchange for consideration). This has the standard benefits of all other property rights.

As Mises explained (if you insist, I’ll look up the exact quote), either approach has its own set of problems. If you go with 1) the author is producing for an external economy. In the absence of property rights, the transaction costs of internalizing this externality (contracting with each consumer, security, enforcement, etc.) are high and uncertain. If you go with 2), eventually title passes down forever, like land, and you end up with an endless accumulation of property rights that cover more and more “works”. This has a stifling effect on the “free” use of intellectual works over time.

The solution we have(i.e. copyrights) is intended to be a compromise between these competing goals; rules of private property, and protection of the “public domain”. Therefore, a scheme of limited property rights, and an extensive fair use doctrine was developed.

You cannot argue for 1) at the exclusion the issue with 2) and vice versa. There are reciprocal effects of IP rights.

Why not throw caution to the wind and try extricating yourself from the warm, reassuring smell of the herd and see whether voluntarism, civil society and free markets can allow creativity to flourish along with everything else in life under these conditions?

I am not timid, and have no problem going boldly where no man has gone before. But I am not a fool, either. (despite what you may have heard here, LOL!) I’m not prone to jump on board a train heading over the cliff. I have been at this debate for about a year or so. I have had to learn Kinsella’s argument and rely on my understanding of the black letter IP laws in order to become informed enough to engage here, and am now pretty much convinced that Kinsella’s argument only holds up if you equivocate the meaning and operation of the law, ignore the economic issues raised by Mises and Hayek, and are willing to bend your own principles to reach the conclusion you have decided is “right”. That is my opinion, for what’s it’s worth.

matt470 April 12, 2011 at 9:43 am

@Wildberry

Yeah I somehow unintentionally missed that other article and thread that you linked. Probably no great loss to those involved in it :-)

I think what you’ve said above sums up the arguments quite well and with reasonable fairness to the side you oppose.

I also think there is some truth in saying that I am determined to build my argument around the conclusion I have decided is “right” although I wouldn’t consider I’m achieving this through bending my own principles. I think there is a lot to be said for what just feels “right” and in my experience, it is these areas in life where the extra questions must be asked and new paradigms imagined/considered that may in fact result in one’s principles being in perfect alignment with this gut feeling. Of course it doesn’t always work this way, but it was this discovery that led me to Austrian economics and to libertarian philosophy… so much of it felt right and close examination of the principles involved showed that they are solid and not being bent for expediency.

I’m not going to argue with much of what you’ve said here, it’s the clearest I’ve seen you write and it boils it down to our few areas of disagreement that help form our conclusions but I’ll make a couple of points:

I think you conflate rivalrous goods with economic rivalry. A Mises quote you posted somewhere above highlights that he doesn’t consider IP as being a rivalrous good. The rivalry you refer to is analagous to perhaps the rivalry between the US industrial north vs the agrarian south prior to the civil war over tariffs and other protectionist measures. Sure there is rivalry regarding who gets the advantages or gets to keep more of the spoils because there are livelihoods at stake but this doesn’t make a tariff a rivalrous good. IP is not rivalrous in the sense (and this is one Mises is using if I read him correctly) that you explain below to Walt D….

If you give me your idea, you still have yours and now you have one, so thay are not scarce or rivalrous.

Now I can see you use the term “idea” in that statement and it makes sense in the context of what you’re explaining to Walt but I don’t think the principle of that statement changes if you substitute the words “original works” in place of “ideas”.

There is a conflict of ownership claims; a classic property problem.

Yes and no. The conflict over ownership claims is undeniable in our current system but had we not ever introduced the principle and laws of IP a bit over 200 years ago or so (and remembering the reasons for the introduction of the initial legislation were not the same as why you argue for IP today) I have my doubts that people would consider owning the immaterial separately from the material goods involved and therefore perhaps it really isn’t a classic property problem. Clearly I can never prove this and I guess I’m not 100% convinced with it but I dislike referring to it as a “classic property problem” when for many thousands of years IP certainly wasn’t considered property.

No argument with the rest. Cheers.

Wildberry April 12, 2011 at 11:00 am

@ matt470 April 12, 2011 at 9:43 am

I’m not going to argue with much of what you’ve said here, it’s the clearest I’ve seen you write and it boils it down to our few areas of disagreement that help form our conclusions but I’ll make a couple of points:

Practice makes perfect?

I think you conflate rivalrous goods with economic rivalry.

Well, this is a point of contention. If you wanted to provide an explaination, I would be happy to respond. I think one implies the other.

I don’t think the principle of that statement changes if you substitute the words “original works” in place of “ideas”.

I do. Ideas are not scarce (at least in principle) and “original works” are. Someone has to expend capital goods to produce them. They are only “free” when the original is produced. if it is indeed “original” then no copies can exist without this original existing first. Making copies makes it less scarce, yes, but then all production makes goods less scarce.

Regards,

Peter Surda April 12, 2011 at 12:59 pm

Wildberry,

Ideas are not scarce (at least in principle) and “original works” are. Someone has to expend capital goods to produce them.

Sure. And they are free to keep them, sell them, lend them under restrictive contracts or do anything else they want with them. “Problem” solved.

Wildberry April 12, 2011 at 3:25 pm

@ Peter Surda April 12, 2011 at 12:59 pm

Are you familiar with the Coase Theorem?

Therein lies the solution to the “problem”.

Walt D. April 11, 2011 at 1:27 pm

“Ideas are free?”
How can ideas be free – an idea implies human action. Surely you have to be alive to have an idea? Staying alive requires energy – probably around 4 million joules per day (~1000 food calories). Energy is not free. Food is not free. Whether it was Jonas Salk or Albert Einstein, their ideas were not free.

Wildberry April 11, 2011 at 3:17 pm

Walt D.

I think you missed the sarcasm.

“ideas are free” is Kinsella’s/Tucker’s argument, equivacating “idea” with “IP”. Ideas are free, because an idea cannot be owned. IP is not and it can. There is an important distinction.

Walt D. April 11, 2011 at 9:29 pm

So “ideas are free” does not mean that free in the sense that they can be acquired for zero cost or zero effort? Rather the sense that “ideas are free” meaning that they have inalienable rights? Nobody has the right to enslave an idea?

Wildberry April 11, 2011 at 11:25 pm

Walt D.

Sorry, you have missed a big issue in this debate, apparently.

“Ideas are free” is not my argument. That is the Kinsella special. It goes like this: Ideas are free. They cannot be owned by anyone because they are non-scarce and non-rivalrous. If you give me your idea, you still have yours and now you have one, so thay are not scarce or rivalrous. Therfore any law that tries to own ideas is wrong. IP laws are about owning ideas, so IP is wrong”

Here is the problem: Ideas are specifically and explicity excluded from IP law. They are excluded right in the language of the statute. It is unreasonable, and one could argue dishonest coming from an IP lawyer, to oppose something for doing what is specifically seeks to avoid.

So you can see, the “ideas are free” argument, while it makes good sense, is not an argument against IP because IP does not attempt to protect ideas in the first place. It is a fallacy of equivocation because “idea” does not equal “IP”.

Free as in “free to roam around and be used and enjoyed by anyone and everyone wthout being owned by anyone”, free.

See?

DixieFlatline April 12, 2011 at 10:36 am

Ideas are not free, that’s not the argument. The argument is that ideas are not property. You guys keep associating labor value with the argument, not recognizing how fallacious that position is. Just because you put energy into acquiring an idea, doesn’t make it property any more than someone spending a lot of time courting another individual OWNS THEIR LOVE.

Action CAN occur with property, but action cannot be property on its own. When you mix ideas with property, now you have a property right, but you only have that property right, because property is now involved.

Wildberry, I missed your response (if there was one) to my previous request for a debate in the Mises Community. You clearly have the time and interest to discuss this topic, and I fashion myself as being very competent at both discourse and this subject, so I will ask again.

Would you be willing to debate me in a 2 man discussion in the Mises Community?

Stephan Kinsella April 12, 2011 at 11:05 am

Right: the idea is that ideas are just information, and information, because it is useful but also nonscarce, is a “free good” (just meaning a nonscarce good — see http://mises.org/daily/4630/). The argument is not: ideas should be “free” in that no one should have to pay for them; but rather, that because they are nonscarce goods, they are not property. And that if they are not improperly shackled with property–if they do not have artificial scarcity imposed on them–they can be “freely used” by many people, instead of being artificially restricted.

Wildberry April 12, 2011 at 1:23 pm

@Stephan Kinsella April 12, 2011 at 11:05 am

Right: You agree it is an equivocation to equate “ideas” with “IP”, but not “information” and “IP”?

Because “it” is useful, you want to use “it”. Becasue you want to use “it” for free, you simply wave your hand and deny any rights to “it” by negating any recognition of how “it” came to be useful, and from whom “it” originally came?

I have never argued that a “work” is not easily copied. If you have a tool die, copies are pretty cheap marginally compared to the first prototype.

You argue that recieving a copy of a book made from the original entitles you to the “tool die” to make your own copies. The attribute of “property” in the original manuscript is not disputed by you, yet the normal operation of this property is denied by you simply because you believe you are entitled to it on account of the cost of copying being low.

Where in Rothbard’s work does he say that the ethical foundation property rights is derived by the low cost of duplication? Isn’t that what Tucker said; if it is easy to copy, it must not be scarce? I suspect he took his cue from you on this.

Wildberry April 12, 2011 at 1:00 pm

@ DixieFlatline April 12, 2011 at 10:36 am

I agree, it is not THE argument, it is ONE argument.

It is ironic that I spent weeks objecting to the equivocation and referring to the statute in my complaint that it is unreasonable to oppose a law for doing what it specifically seeks to avoid. Finally, Kinsella allows that OK, it is not ALL ideas, just some! Now you say it is beside the point?

If you cannot discriminate between a pick-up line and writing a book, I’m not sure where you are coming from.

I have never argued that “action” is property. Don’t attribute what someone else says to me. As for this:

When you mix ideas with property, now you have a property right, but you only have that property right, because property is now involved.

I don’t know what you are trying to say.

As to your debate, sorry I don’t know what you mean. The idea of a structured debate environment that is different than this blog forum is a good idea, although I don’t think is a matter just for you and I to settle. I have no idea what you intend, specifically, or how it would work. Why not write an article with your proposal, and that can start a new thread?

sweatervest April 12, 2011 at 10:43 am

I find it very ironic that you took that long to explain what IP is not trying to protect, and offered no insight what-so-ever to what it is trying to protect!

Oh I know, I just need to go read whatever statute you are talking about (don’t worry, it’s my responsibility to find that out too) and see how much sense IP really makes.

Saying IP does not try to protect ideas admits that it is a state-run scheme to steal peoples’ physical property (i.e. recording devices, manufacturing goods, etc.) using frivolous claims to ownership that contradict the homestead principle.

sweatervest April 12, 2011 at 10:56 am

If “IP” does not refer to ideas, then to what does it refer? The claim to ownership of patterns on physical objects because you created that same pattern on a physical object you own?

I don’t think such a conception is even worth debating. You said above that you don’t think homesteading is the only way to acquire property, which literally means homesteading is never a way to acquire property because it is possible than another person will make a better claim of ownership to it later. Ownership doesn’t mean you own it for a little bit, it means you own it until you decide to give it up.

Furthermore, you have left totally unanswered 1) why there is any reason to admit other ways of acquiring property than homesteading and 2) in precisely what cases a claim to ownership can beat a homesteading claim. This is what is so dangerous and tyrannical about these formulations of property rights. You leave out all the details that are crucial to deciding when and where a violation happened, so that the only option left is to ask you or some other “official” (like the statutory law) on a per-case basis who’s wrong.

As I say every time, you haven’t offered a theory of property rights that supports your case. In fact, you haven’t even criticized other property rights thoeries, you’ve just coldly stated that you disagree with them. We keep hearing about how we get stuff wrong, and there’s no insight into what’s right.

It’s easy to say “you’re wrong”. It’s hard to discover actual error. How in the world is IP not about owning ideas, and how is it not simply absurd to claim there is a way to acquire property other than homesteading?

Wildberry April 12, 2011 at 1:32 pm

@sweatervest April 12, 2011 at 10:56 am

The concept is “original work of authorship”. If you can’t understand that intuitively, I can think of a few ways to help you.

1) write a novel, a short one, say 150 pages. When you are finished, type it up and proofread it and rewrite it and correct all the errors, cut out what you don’t need, add what you left out, invent characters, convey a sense of beginning, middle and end, and when you are done, you will have a manuscript of your novel. That is “it”. Or…

2) Read about it in the law itself and understand the terms that are defined, and how they operate against real facts. Or…

3) keep asking people here to explain it to you, and remain puzzled when you get different interpretations of the subject matter, depending on who you read.

Beyond that, I don’ t know how I can help you.

Wildberry April 12, 2011 at 1:10 pm

@sweatervest April 12, 2011 at 10:43 am

Oh I know, I just need to go read whatever statute you are talking about (don’t worry, it’s my responsibility to find that out too) and see how much sense IP really makes.

Or, you can just proudly cling to your ignorance about the very thing you are so opposed to. I am just saying that when you create a straw man by attributing things to IP laws that don’t exist, it is reasonable for me to object and point you to a way to verify whether what I’m saying is true. It is not reasonable to doubt the veracity of what I’m saying, and to refuse to verify it. Do you want to learn about Austrian economics by asking a blogger here to explain it to you?

Saying IP does not try to protect ideas admits that it is a state-run scheme to steal peoples’ physical property (i.e. recording devices, manufacturing goods, etc.) using frivolous claims to ownership that contradict the homestead principle.

I have said or admitted no such thing. Your one sentence here contains at least 4 assumptions which are all, at the very least, debatable. Stating them as conclusions is not an argument for or against anything.

Walt D. April 11, 2011 at 9:41 pm

“I believe you’d find that we are at least a century behind technologically than we would be without IP laws.”
Hard to believe – if this were the case the USSR and China (who had no IP laws for most of the 20th Century) would be a century ahead of the US and Europe technologically.

Gil April 12, 2011 at 12:17 am

Zing!

DixieFlatline April 12, 2011 at 10:40 am

While the claim is a stretch, obviously the lack of any meaningful property rights are what has undone China and the USSR, not IP specifically. But that sort of makes the point for the against IP crowd. Arbitrary property rights regimes cannot calculate and create chaos. As Kinsella has pointed out many times, much of the US patent volume is based around companies trying to acquire leverage against one another rather than actually trying to innovate anything great in the marketplace.

The internet is a fantastic environment to see how less IP plays out. There is almost no meaningful enforcement online, and there is an explosion of ideas and expression from nearly every participant. This wouldn’t be possible under the tightly regulated regime that IP supporters endorse. One only has to look at the lack of creativity in the B&M world to see the difference.

sweatervest April 12, 2011 at 10:44 am

So, what, the only difference between the U.S. and China/USSR is intellectual property laws?

What’s hard to believe or even take seriously is the claim that illegalizing certain types of peaceful production leads to more production.

matt470 April 13, 2011 at 3:37 am

@Wildberry

I think you conflate rivalrous goods with economic rivalry.

Well, this is a point of contention. If you wanted to provide an explaination, I would be happy to respond. I think one implies the other.

See Mises again under his heading “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.

Mises says it is “because their serviceableness cannot be exhausted” which equates to their non-scarce and non-rivalrous nature (which he is saying is the critical attribute as opposed to the claim that it is due to their immaterial-ness). That is, my use of a certain intellectual good doesn’t prevent your use of it or any other party’s. This is clearly different from saying that my use of the intellectual good is rivalrous with it’s creator’s because the creator wants me to pay him a royalty and yet I don’t want to. The rivalry here IS NOT rivalry in the actual good but rivalry in the cash that he’s claiming he is owed by me (and I’m rejecting his claim). Hence why I made the distinction between rivalrous goods and economic rivalry. I also used a tariff example when I explained this so I did try to elaborate on what I meant by this distinction.

You say ideas are non scarce yet original works are scarce. So just how exactly is an original work’s serviceableness exhausted? Why does Mises state with absolute clarity that technical manuals and formulas (both protectable under current IP laws) are NOT scarce yet you claim original works are? Where are the differences in production costs between Mises’ tech manuals and formulas and your original works that make the prior goods not scarce and the latter good scarce?

I can’t imagine you’ll be able to adequately make this distinction but please, go ahead.

Wildberry April 13, 2011 at 10:43 am

@matt470 April 13, 2011 at 3:37 am

Why does Mises state with absolute clarity that technical manuals and formulas (both protectable under current IP laws) are NOT scarce yet you claim original works are? Where are the differences in production costs between Mises’ tech manuals and formulas and your original works that make the prior goods not scarce and the latter good scarce?

Here is the rest of that section:

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.
If there are neither copyrights nor patents, the inventors and authors are in the position of an entrepreneur. They have a temporary advantage as against other people. As they start sooner in utilizing their invention or their manuscript themselves or in making it available for use to other people (manufacturers or publishers), they have the chance to earn profits in the time interval until everybody can likewise utilize it. As soon as the invention or the content of the book are publicly known, they become “free goods” and the inventor or author has only his glory.
The problem involved has nothing to do with the activities of the creative genius. These pioneers and originators of things unheard of do not produce and work in the sense in which these terms are employed in dealing with the affairs of other people. They do not let themselves be influenced by the response their work meets on the part of their contemporaries. They do not wait for encouragement.[13]
It is different with the broad class of professional intellectuals whose services society cannot do without. We may disregard the problem of second-rate authors of poems, fiction, and plays and second-rate composers and need not inquire whether it would be a serious disadvantage for mankind to lack the products of their efforts. But it is obvious that handing down knowledge to the rising generation and [p. 662] familiarizing the acting individuals with the amount of knowledge they need for the realization of their plans require textbooks, manuals, handbooks, and other nonfiction works. It is unlikely that people would undertake the laborious task of writing such publications if everyone were free to reproduce them. This is still more manifest in the field of technological invention and discovery. The extensive experimentation necessary for such achievements is often very expensive. It is very probable that technological progress would be seriously retarded if, for the inventor and for those who defray the expenses incurred by his experimentation, the results obtained were nothing but external economies.
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. They are considered privileges, a vestige of the rudimentary period of their evolution when legal protection was accorded to authors and investors only by virtue of an exceptional privilege granted by the authorities. They are suspect, as they are lucrative only if they make it possible to sell at monopoly prices. [14]. Moreover, the fairness of patent laws is contested on the ground that they reward only those who put the finishing touch leading to practical utilization of achievements of many predecessors. these precursors go empty-handed although their main contribution to the final result was often much more weighty than that of the patentee.
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.

For me to go through this and address every point that I highlighted in this section is beyond what is practical here. However, there are two issues I will address: Scarcity and External Economies.

First, I do not dispute that both ideas and “works” inexhaustible in the service they render. However, I argue what is really a minor point; original works are scarce.

The “intellectual groundwork” Mises refers to is based upon the use of knowledge and ideas that exist in the public domain. In the case of a factory, this intellectual groundwork makes possible a product, whose property characteristics are not disputed, and which is clearly scarce by your thinking.

In the case of an author, the process of writing is this groundwork, the manuscript is the product. There is nothing scarce about the process of drawing ideas, facts, formulas, etc, from the non-scarce public domain. However no later replication is possible without the initial production of the original work. Its production and existence at that moment, before it has ever been copied is ultimately scarce, (there is only one in the universe). Because it is a tangible, material object, it could be transferred as with any other scarce good at that moment in time.

This explains why even Kinsella admits that the author owns the manuscript. I conclude therefore, that scarcity alone is not sufficient to determine whether property rights, a human device, are legitimate. If scarcity is your criteria, then the author is in possession of a scarce good, and as a property owner, has the right to transfer it under any conditions he wishes.

So, even using the concept of scarcity, it is reasonable to acknowledge that an original work is “property”. The more important question is, should we define it as property in the market? Do the rights in this property operate like all other property, that the rights of use are exclusive, and property represents a bundle of rights that can be alienated and limited under conditions of sale and/or license? How do we deal with the “economic rights” of this original product/property?

The rest of Mises’s writing here is about monopolies and external economies. Go to the section about monopolies footnoted here to understand what he says about equivocating the two connotations of “monopoly”.

He leaves the section, not by resolving the “drawbacks of this state of affairs”, but by pointing out that treating the work of authors and inventors as non-scarce “ideas” MEANS that producers of such goods will be producing for external economies. That is the drawback.

From here, I refer to the Coase Theorem, to understand what to do about the “public choice” problem of externalities. If you don’t want to read Coase, check out David Friedman’s book, Law’s Order, available online. He gives a great summary of the issues and how to look at the economics of law in relation to internalizing externalities.

The problem I have, when all is said and done, is that Kinsella advocates creating the externality, such that authors, by doing that very thing for this which the authors produced as the product of his privately owned means, namely offering it for sale and distribution, he merely finds that he is producing for “free-riders”.

By abolishing IP without acknowledging the consequences of the fact that humans will not act to produce for external economies, given a choice, he ignores the economic issues that result, namely that “that with the abolition of patents and copyrights authors and inventors would for the most part be producers of external economies.

Regards,

matt470 April 14, 2011 at 4:02 am

@Wildberry

Fair comments. I also agree with yourself and Kinsella that the original manuscript is scarce and this is where it gets interesting for both sides of this debate yet doens’t really help us move on. Let me try and explain why I say this..

If you don’t mind, I’ll return to JNS’s (assuming it was his) “bucket” analogy where the material manuscript is the bucket, the work fixed on it is the immaterial contents of the bucket.

We all seem to agree without an initial “bucket” there is nothing that is protectable or could be considered property. I raised a query before though for things like short poems or songs that are easily remembered and then are perhaps only ever shared verbally (i.e. without a fixation) – does the current law not seek to protect these things because of the inherent difficulty in determining the veracity of a claim of originality or authorship without them or could there be another reason? This question may seem a little obscure but I think it is still both interesting and relevant to the debate because we’re both trying to work back to the fundamental principles of IP.

It then comes down alienability of the bucket from what it carries. The anti IP folks say that these things cannot simultaneously have two seperate property titles (a title for the bucket and one for what it contains) because the new property title in the intellectual good will have redistributive effects on other existent property titles. We accept that the value offering of the combined good perhaps (and really in all likelihood) is predominantly a function of what is in the bucket and not the bucket but this fact in itself does not make it proper to alienate it into two separate and distinct property titles. It is for this reason that we are ok with contracts that recognise the value of the contents of the bucket separate from the bucket but not giving them a universal and far reaching property title.

At any rate, the consumer will pay a price for the bucket that closely resembles how they value what it holds not simply a price for the bucket regardless of its contents. This is why I think it is unfair for some IP proponents to suggest that IP opponents either:

a) don’t recognise the difference in value between an empty bucket and a bucket carrying an original work (I suggest this difference is similar to me selling my house in a decrepid state or painted with a beautifully manicured garden… property title is the same but value offering is different and accounted for in sale price)
b) think authors should be entitled to nothing and that anybody is welcome to steal from them (although clearly we have disagreements around this “steal” definition depending on how property rights are defined).
c) there would be virtually no noticeable effects on how creators could be rewarded for their external economies

However no later replication is possible without the initial production of the original work. Its production and existence at that moment, before it has ever been copied is ultimately scarce, (there is only one in the universe). Because it is a tangible, material object, it could be transferred as with any other scarce good at that moment in time.

I agree with this, even the first sentence of it. This also explains why an author does have the ability to at least make some income from their work, albeit perhaps (even quite likely) significantly less than in an IP protected environment.

I’ve run myself out of time for now but wrapping-up quickly I would say that I agree that without IP legislation there is a predicament with production for external economies but I don’t like the property title in intellectual creations solution. I do not see why that is the only possible solution to this issue.

Thanks for you suggestion of David Friedman’s book – I’ll endeavour to have a look at it.
Regards.

Wildberry April 15, 2011 at 1:53 pm

@matt470 April 14, 2011 at 4:02 am

…does the current law not seek to protect these things because of the inherent difficulty in determining the veracity of a claim of originality or authorship without them or could there be another reason? This question may seem a little obscure but I think it is still both interesting and relevant to the debate because we’re both trying to work back to the fundamental principles of IP.

I would say no, that is not the objective of the law. It is a two-part objective: 1) to internalize the benefits of authorship to the author (i.e. incentive) and 2) to protect the public domain of ideas, etc. and facilitate public disclosure.

The exclusion of ideas, short phrases, slogans, etc. is because they are in the public domain, and do not rise to the level of “original work requiring a creative endeavor” to warrant exclusion from the public domain. Being to generous with the public domain would lead to all of the horrors that IP proponents claim in the “ideas are free” line of reasoning. The law recognizes and acknowledges this problem, and is designed to achieve some reasonable balance between protecting too much (ideas) and too little (no protection for original works).

To understand how the law operates to achieve this balance, you would have to learn something about the law. Short of that, let’s say that the principle of balancing competing interests has some utility for both sides.

It then comes down alienability of the bucket from what it carries. The anti IP folks say that these things cannot simultaneously have two seperate property titles (a title for the bucket and one for what it contains) because the new property title in the intellectual good will have redistributive effects on other existent property titles.

But this is not really true, is it? Let’s say property ownership of land is absolute. What does that actually mean? One thing it means is that any and all economic rights of that land belong to the owner. These economic rights can be alienated and traded as separate things. For example, I can sell the land itself, while retaining mineral rights. The mineral rights are one of the economic rights bundled together in the concept of “property ownership”. This is a universal rule of property. I could sell you a watch on the condition that you would only read the time during business hours, while retaining the right to the rest of the day. That is not meaningful in the case of a watch, but there is no principle of property rights that would prevent us from making such an agreement.

The issue is, why should IP operate in a completely different way than other property? There is no justification for that, as far as I can see, unless you just “made the rule” in order to arrive at the conclusion you want to reach; i.e. IP is “special property” that doesn’t involve a bundling of economic rights.

But this in not true. JNS recently described a list of economic rights associated with copyrights: rights to print, to movies, to translations, to paper back, hardcover, ePub, etc. Each economic right is negotiated as a part of the deal, and the owner can transfer those rights individually, or retain them while transferring others. This is precisely how all property rights operate in the open market. However, in order to do this, you must own the property in the first place. Once that is settled, then the “bundle” ownership is also settled, and can be the subject of a voluntary trade agreement.

We accept that the value offering of the combined good perhaps (and really in all likelihood) is predominantly a function of what is in the bucket and not the bucket but this fact in itself does not make it proper to alienate it into two separate and distinct property titles. It is for this reason that we are ok with contracts that recognise the value of the contents of the bucket separate from the bucket but not giving them a universal and far reaching property title.

I think you are getting lost in your analogy. No one is suggesting (I don’t think) that the owner of a manuscript would negotiate to sell off the paper it is written on while retaining the work that is printed upon it. To sell the work without the paper (carrier) would amount to a sale of copyright. It is sufficient to recognize that the work is what is being traded as it appears on the paper, which paper has a nominal value on its own. It object that is generating the subjective value held by the traders is the work.

However, if you think in terms of economic rights, you can see that in a contract situation between two parties, the owner could bundle the work and the paper (carrier in JNS’s terminology) as a unit, while retaining certain economic rights in the work. I think both sides even agree to the legitimacy of that, as long as it is accomplished within the context of a party-to-party contract.

In the case that is cited on the anti-IP side, someone who is not a party to the contract doing something that was prohibited to the parties to the contract (i.e. copying and distributing, or publically performing, etc.) is not bound. That is the real point of divergence between the two views.

In attempting to make a rule about how that situation is handled, you would have to refer back to the transaction, and make a determination of whether the authors rights were going to be recognized as property, thus binding all parties even those outside the contract, or as a strict contract issue, in which case you would have to rely on another theory. Although convoluted and high cost, trade secret, or interference with contract could be utilized and arrive at the same outcome.

For example, if one of the parties released the contents of the work in violation of the contract, liability would be assessed against the person who improperly released it. The problem then becomes whether the injured party can actually be compensated adequately for the loss. If not, then likely an injunction would issue, in which case the “innocent” third party would be enjoined from further use. It is a very costly way to arrive at the same outcome. This why, ultimately, it is a problem of externalities, and why the Coase Theorem applies.

At any rate, the consumer will pay a price for the bucket that closely resembles how they value what it holds not simply a price for the bucket regardless of its contents. This is why I think it is unfair for some IP proponents to suggest that IP opponents either:
a) don’t recognize the difference in value between an empty bucket and a bucket carrying an original work (I suggest this difference is similar to me selling my house in a decrepid state or painted with a beautifully manicured garden… property title is the same but value offering is different and accounted for in sale price)

I think this is an analogy distinguishing a good story from a badly written one, and so makes a different point; all house for sale compete with all other houses for sale, and by analogy, all books compete with other books.

b) think authors should be entitled to nothing and that anybody is welcome to steal from them (although clearly we have disagreements around this “steal” definition depending on how property rights are defined).

Or to put it in more neutral terms, the author releases his work with the understanding that once he does, he is transferring the work into the public domain, and he no longer has any title to the economic rights from having once owned the manuscript.

c) there would be virtually no noticeable effects on how creators could be rewarded for their external economies

If b) were true, the possession of economic right of the private ownership of the manuscript would have to be recalculated, so that the author would need to make his economic calculations and develop his business plan based on this “new” reality. This is a matter of some considerable speculation.

It is not a difficult thought experiment, though, to place yourself in the shoes of such an author, and realize that if you are going to achieve anything close to the outcome you would have had under copyrights, it was going to come at a very high transaction cost. The higher the transaction cost and the lower the return form output, the less attractive the business plan becomes; economics 101.

However no later replication is possible without the initial production of the original work. Its production and existence at that moment, before it has ever been copied is ultimately scarce, (there is only one in the universe). Because it is a tangible, material object, it could be transferred as with any other scarce good at that moment in time.

I agree with this, even the first sentence of it. This also explains why an author does have the ability to at least make some income from their work, albeit perhaps (even quite likely) significantly less than in an IP protected environment.

I think there is little doubt about this, but like I said, it is a matter for speculation, since we can’t run a sociological experiment.

I’ve run myself out of time for now but wrapping-up quickly I would say that I agree that without IP legislation there is a predicament with production for external economies but I don’t like the property title in intellectual creations solution. I do not see why that is the only possible solution to this issue.

After thinking about what you have said here, I think you have a limited concept (no offense intended) of what property rights are and how they operate.

While much time and attention has been paid to the justification for recognizing property rights (or not), very little has been paid to the issues of the economic of law introduced by Coase. If you look at that issue, I think you will see that there is more than one way to get from point A to point B. You can accomplish much of the things with contracts that you can with property rights, and so you have to understand why one would be more efficient over the other in a particular set of circumstances.

Friedman’s book takes off exactly at this point.

Regards,

matt470 April 18, 2011 at 2:10 am

@ Wildberry

Your response smacks of elitism again. One does not need to be a lawyer to have an opinion on what constitutes just law. I’m not offended as it is simply an irrelevant critism that adds no value to our debate. It is a tactic that you use prolifically when you’re unable to clearly state your position (or clearly refute the position of others) on a fundamental principles level. Any law not based on underlying principles that are able to be discussed in plain language is clearly unjust and not worthy of discussion.

Your first paragraphs either knowingly or involuntarily completely ignores the point of my question. The crux of my question is to do with the need for fixation onto a tangible medium in order to be recognised as property under copyright law. According to Wildberry…

The exclusion of ideas, short phrases, slogans, etc. is because they are in the public domain, and do not rise to the level of “original work requiring a creative endeavor” to warrant exclusion from the public domain.

This explaination is incongruous with the requirment for fixation. Poems and song lyrics (as my original example pointed out and yet you ignored) are subject to copyright if fixed on a tangible medium but then not able to be copyrighted if they haven’t been fixed on a tangible medium (eg. transferred verbally). Yet your response infers that song lyrics become an “original work requiring a creative endeavor” by the process of fixation itself.

It seems you want to play games with this one. It would be far easier and more logical just to accept that the requirement for fixation is in the statute to verify the voracity of the originality and the true creator of the work.

Separating rights to mineral wealth from the land itself is quite different from separating “economic rights” in IP. The glaring difference is in the rivalrous nature of the material goods “land itself” and “mineral wealth” – we cannot both grow crops on the same piece of land or both mine the same mineral from the ground in the same location. With the intellectual work fixed on a book we can both use it at the same time (admittedly not with the original manuscript but once the good has been distributed beyond this). I can transfer the intellectual content from an original work I have access to into my possession (and at my cost) without having any effect on that original work (save any loss of special monopoly priveleges had they been granted). This sticking point has not changed for either of us in quite some time and seems unlikely to.

Wildberry April 18, 2011 at 12:29 pm

@matt470 April 18, 2011 at 2:10 am

Your response smacks of elitism again. One does not need to be a lawyer to have an opinion on what constitutes just law. I’m not offended as it is simply an irrelevant critism that adds no value to our debate. It is a tactic that you use prolifically when you’re unable to clearly state your position (or clearly refute the position of others) on a fundamental principles level. Any law not based on underlying principles that are able to be discussed in plain language is clearly unjust and not worthy of discussion.

I am offended a bit by your accusation of elitism. You feel I’m talking down to you? I didn’t say you needed to be a lawyer, but I think it is unreasonable of you to insist that I not make reference to something that exists to try to further your understanding of my meaning. Why do you feel entitled to dismiss something I say simply because I am referring to a particular way of defining things that is consistent with existing law?

My objective is not to appeal to authority, but to explain my position, and for you to offer your acceptance or objection to what I am intending to convey. That is the basis for communication.

However, this is not a perfect communication channel, and I suppose I am capable of misunderstanding what you are getting at. Feeling that what one is saying is not understood by those reading and responding to it here is a common experience.

This is what you asked:

…does the current law not seek to protect these things because of the inherent difficulty in determining the veracity of a claim of originality or authorship without them or could there be another reason?

If you want to not be misunderstood, try asking more clearly. It is unreasonable for you to assume your question was so clear that the only explanation for misunderstanding is my arrogance. If the shoe fits…

I am responding to the “another reason” part of your question.

If you are not asking about how a distinction can be made between “ideas” and “original works” but rather the requirement for fixation, then I think this is so obvious that I may have assumed this is not what you were really asking.

Anyway, my answer to that question is that we cannot deal with things we can’t know. By definition, a work without fixation is unknowable; i.e. intangible. The law uses the concept of rights in the “intangible work” in order to deal with different forms of fixation. As I understand Neil, he says that the fixation creates a tangible object with “identity”, and that once fixed, it is always fixed somewhere. Therefore he deals with it as a “material object”. In my view this is simply two ways of saying the same thing; that the work is protectable as property because at the point at which it is fixed, it clearly is a property object that is owned by the author. I arrive at the same conclusion using the principles of “self-ownership” and “private ownership of the means of production” principles. All roads lead to the same destination.

From that point on, we are no longer talking about the natural rights of property, since they have already arisen, and all sides acknowledge that the work is property, and can be dealt with through the mechanism of contract, but only to the extent that only the parties to the contract are bound. In my way of thinking, only things that are “owned” can be the subjects of a contract, and something that is owned is in fact property, in that it is an object for which the party has exclusive rights to use and/or possession.

One “property” of property, is that ownership of an object means ownership of all the bundles of rights that are contained in the ownership of that object. This is why in a contract we can release title to some part of the property (mineral rights) without also transferring other parts (the right to live on the land and exclude trespassers). This is a fundamental principle of property rights.

You and other opponents to IP insist that the device of property rights are unavailable to the author, and any transfer amounts to a complete transfer of the rights in the work. This is a decree by fiat. You simply define your theory of property in a way that says that IF an object is subject to low-cost replication and its service is inexhaustible, in the way that an idea ins inexhaustible in the service it renders, then ALL information must follow this principle and be exempt from economic and legal treatment as property.

I disagree.

By your logic, a book would remain property as long as it was never copied.
If we grant absolute rights of disclosure to the author, then likely, private libraries (i.e. the “church” or “information priesthoods”) would be the only way knowledge could be accessed. You solve the problem of disclosure by simply denying the right to public access. OK, that’s one way to go. OR…

You can grant unlimited property rights in the author, and over the centuries, all information and knowledge eventually becomes private property; there is no concept of the public domain. OR…

You can assign the right of disclosure to everyone, so disclosure is mandatory and information products always becomes part of the public domain. In this case the author would be producing, for the most part, for external economies. He may, of course, simply choose not to produce.

Each approach creates other problems. This is the public choice problem we must face.

That is where we are. To understand my argument, you must leave the discussion of natural rights, and switch to an economic analysis that involves economic rights, externalities, transaction costs and efficient outcomes.

It seems you want to play games with this one.

I think we can have a good discussion, but it is arrogant of you to assume something other than the difficulties of communication on such a difficult topic. How about you assume the best motives instead of the worst?

It would be far easier and more logical just to accept that the requirement for fixation is in the statute to verify the voracity of the originality and the true creator of the work.

I don’t really know what you are trying to say, especially the way you seem to be using the work “originality, but I suppose, if I properly assume your meaning, this is part of the purpose; tracing the origination of a work to an original author using principles of causation.

But it is also helpful in the enforcement of property rights in the work, because by dealing only with the fixations, you can rely on standard property theories in assigning ownership and liability rights. Laws can only deal with what it knows. The more it has to know and the more difficult it is to know it, the less effectively a law can do its intended job.

Separating rights to mineral wealth from the land itself is quite different from separating “economic rights” in IP. The glaring difference is in the rivalrous nature of the material goods “land itself” and “mineral wealth”

I get this, so it is not necessary to keep returning to an explanation. You are holding that the impossibility of simultaneous use is the single criteria that determines whether property rights are available to deal with economic issues. I view this as simply assuming a particular conclusion. I believe if you review the comments of Kid Salami, you will see that he understands the anti-IP position in the same way.

Mises understands this and presents the problem as an externality in a very few paragraphs. His first principles are these:

1)Property is a human device

2) Works of authorship (for convenience, as currently defined as the subject of copyrights) function in the same way as ideas (although there is clearly a meaningful distinction between the two), in the sense that once you possess them, you possess the “factory” to copy them at low cost. Their serviceability is inexhaustible.

3) Either of the two pathways you take from this point creates its own set of problems:

a) if you permit no property rights in the author and permit unlimited replication, then the author, for the most part, is producing for an external economy.

b) If you permit absolute property rights in the author, then the public domain eventually disappears, and the public exchange of knowledge is curtailed, for the most part.

Deciding what path to take are the economic policy problems of public choice, the Coase problem of externalities, and the principle of efficient outcomes. Friedman deals with this topic in contemporary terms that is very understandable and useful.

Unless you are willing to examine that type of analysis, then you are stuck at the point where you merely insist that works, because they can be copied as easily as ideas, are nothing more than ideas that belong in the public domain, and therefore any author that produces a work, and releases it, has by your definition released it into the public domain.

I believe that we have a right to choose how we want to handle our affairs, and have the right to self government, and the right to establish rules that protect property interests as a way to make public choice decisions.

You have a much more restricted view; that there a few rules that everyone must follow all the time in order to be “free”. From a philosophical vantage point, I see your world-view a being much more restricted in overall liberty than mine. I think you hold the opposite view, that you are serving the purpose of greater liberty.

If you really want to resolve that difference, we will have to face the actual problems of public choice, and deal with the facts as they are, and not has one might imagine them to be. I think this is particularly difficult for someone who holds the strong belief in advance that any solution that requires laws is excluded, because laws imply the state, and the state is the antithesis of liberty. To quote Kinsella, “We have IP because we have the state”.

If you simply insist that you have defined property in a way that ALWAYS excludes information products, then I agree, there is little left to discuss. You have excluded the principle of property from the realm of possible answers to the problem Mises defines. You have selected an ideology which you simply require the world to conform to.

matt470 April 19, 2011 at 9:54 am

@Wildberry

My apologies for the offense, perhaps I too quickly presumed your intentions were an appeal to authority as you say.

If you are not asking about how a distinction can be made between “ideas” and “original works” but rather the requirement for fixation, then I think this is so obvious that I may have assumed this is not what you were really asking.

Yes it was a question that I thought had an obvious answer but I wanted to get your take on it. I was not asking for reasons of distinguishing ideas from original work because I accept what you’ve previously argued on this; notwithstanding my opinion that difficulties will often arise in deciding where exactly to draw the line between the two. I’m not even sure exactly where I was going with that question in the first place but I guess I was more interested in whether from a legal point of view the tangible fixation is only relevant for evidentiary value. Let’s move on…

Mises understands this and presents the problem as an externality in a very few paragraphs. His first principles are these:

1)Property is a human device

2) Works of authorship (for convenience, as currently defined as the subject of copyrights) function in the same way as ideas (although there is clearly a meaningful distinction between the two), in the sense that once you possess them, you possess the “factory” to copy them at low cost. Their serviceability is inexhaustible.

3) Either of the two pathways you take from this point creates its own set of problems:

a) if you permit no property rights in the author and permit unlimited replication, then the author, for the most part, is producing for an external economy.

b) If you permit absolute property rights in the author, then the public domain eventually disappears, and the public exchange of knowledge is curtailed, for the most part.

My preference is for “a” and then see what solutions the market offers. Authors are free to engage in lawful activities that make duplication difficult and it is easy to see this potentially being far easier in a digital ebook age (but equally the possibility of it becoming accessible in an unauthorised manner and then replicated rapidly are also real). For some strange reason this fits well with my principles and feels more libertarian to me. I accept the result may not achieve a pareto improvement but then I don’t really rate such a thing. I haven’t had a chance to read Coase yet but I will have a look.

Wildberry April 19, 2011 at 10:52 am

@matt470 April 19, 2011 at 9:54 am

We’re good. This is a difficult format, so some benefit of the doubt is appropriate.

Yes, this is the standard Ancap position (without meaning to imply what you may believe).Since we cannot design social experiments, we have to speculate and rely on reason and analysis.

Coase provides a breakthrough in the analysis of externalities, and for this he won the Nobel prize. David Friedman wrote more recently on this and other related subjects. In order for the market to “come up with something” it must operate on the given rules, otherwise no calculation is possible.

No property rights in IP is such an assumption, so you would have to formulate a thought experiment and look at the issues. Mises starts us out by pointing out the existence of the externality problem. Most economists looked at the problem of simply imposing some regulation that internalizes the externality.

Coase showed that the issue of externalities was a function of transaction costs. If the transaction costs were low, (i.e. a contract between two parties with clear and compelling interests on both sides) then there is no need, or it doesn’t really matter how you assign rights as long as they are reciprocal. The Coase model is a train that throws sparks causing fires, and farmers adjoining the tracks who have their crops burned. We need trains and we need crops. If the transaction costs are high (not one farmer but 100′s of farmers), you run into other problems, like the public choice/holdout and free-rider problems.

In this case, the use of property rights produces the more efficient outcome. Fundamentally, this is the basis for the statement that property is a human device, and that in the case of a work or authorship, property rights is the preferred solution to the problem of public choice.

FYI, the pubic choice problem is that 2a) produces externalities for the author, and 2b) produces a limitation on the protection of the public domain and access to works.

This is a problem concerning the economics of law, and is the area of study that Coase was involved in. He was an economist that studied case law and made observations about what the common law had done and why. From this work he developed the Coase Theorem. It is an academic specialization, like economics or law by themselves, but attempts to look at the economic impacts of laws and tries to answer the question, “What is a good law?”.

Regards,

matt470 April 20, 2011 at 1:17 am

@ Wildberry

I accept what you say above and agree that there are problems with externalities in not allowing property rights in IP. I will need to read some of Coase (or Friedman’s take on it) in order to go any further in this debate – which I’ll hopefully undertake in the coming few days off (Easter).

Regards.

Wildberry April 20, 2011 at 8:28 am

Friedman is much easier to read.

Anyway, good luck.

Regards, Matt.

matt470 April 26, 2011 at 10:01 am

I read Friedman on Coase and I think it is good work. It is not until he ‘plays out’ some of the scenarios under the different ways of handling externalities that it becomes pretty clear and sensible that having well defined property rights does lead to more optimal solutions.

I’m not entirely sold on his point about cases where there are high transaction costs that regulation may prove the better solution because I think the “free-rider” problem can be over emphasised (I acknowledge of course that the problem exists – it’s the just the extent of it that I question). In fairness, having not read Coase himself, I wouldn’t stress this objection too strongly.

I can see why you’ve referred to Coase within our IP discussion but it doesn’t really solve our disagreement on a fundamental level. To decide to classify something as property in order to optimise a solution in dealing with its externalities does not necessarily make it a just classification. For example we could classify ideas as property in order to optimise solutions for their originator’s externalities and it would be hard to disagree with simply by referring to Coase (although the high transaction cost issue may be a bit of an out).

Anyway, you’ll be happy to note that I’ve changed my position somewhat. I think on a fundamental level it is perhaps reasonable to have some limited form of copyright but I would stress the word limited and then highlight it and perhaps then underline it for good measure. Yes it is a system that some would argue already is limited but I think it is ridiculously out of whack with its purpose.

I think that copyright is perhaps the best justification for IP and that other types of IP like patents are far more sinister. The industry I work in uses a vast array of patenting techniques to prolong protections and keep competitors out of highly profitable markets well past the point of R&D recovery costs and future incentivisation. In so many cases its like the goose that lays the golden egg. One such way is to patent a new product, then patent it’s use pattern and then pattern it’s manufacturing method and we end up with a maze of partially overlapping but seemingly ever extending patents.

In fairness to the IP opponents, I think many of their arguments are strong and well thought out and particularly around the issue of arbitrariness. I also don’t think having IP is a justification for the state (as in AJ Nock’s distinction between government and state). I am more a minarchist than anarchist but not because the arguments for ancap are weak (I like a lot of Rothbard’s and Hoppe’s work) but because I find them hard to reconcile with human nature in the way someone like Mencken so well describes (the warm reassuring smell of the herd…).

The eternal problem with limited government is the same as limited copyright or IP – who is responsible for the job of creating and policing the limits. Just have a look at how well the US is going at keeping within it’s constitution limits.

Regards.

Wildberry April 26, 2011 at 11:45 am

@matt470 April 26, 2011 at 10:01 am

I read Friedman on Coase and I think it is good work. It is not until he ‘plays out’ some of the scenarios under the different ways of handling externalities that it becomes pretty clear and sensible that having well defined property rights does lead to more optimal solutions.

Good. I look forward to reading about how this perspective affects your arguments. It will be refreshing for me, I think.

I’m not entirely sold on his point about cases where there are high transaction costs that regulation may prove the better solution because I think the “free-rider” problem can be over emphasised (I acknowledge of course that the problem exists – it’s the just the extent of it that I question). In fairness, having not read Coase himself, I wouldn’t stress this objection too strongly.

If you read Freidman , you probably don’t need to read Coase to get the idea. The free-rider problem is dependent on the facts of the controversy. It can be huge, or only a small factor, depending.

I can see why you’ve referred to Coase within our IP discussion but it doesn’t really solve our disagreement on a fundamental level. To decide to classify something as property in order to optimise a solution in dealing with its externalities does not necessarily make it a just classification. For example we could classify ideas as property in order to optimise solutions for their originator’s externalities and it would be hard to disagree with simply by referring to Coase (although the high transaction cost issue may be a bit of an out).

What is our disagreement on a fundamental level? On this other thread, which I hope you are following, ( http://blog.mises.org/16570/cordato-and-kirzner-on-intellectual-property/comment-page-1/#comment-774492 ) about all the opponents have agreed that an author who has never shared his manuscript, could recreate copyright statutes by contract, making the unauthorized disclosure to a third party a condition for payment of a performance bond.

Of course, the cost of that bond would have to be added to each transaction, in addition to the cost of reading and negotiating and executing what amounts to a “publisher’s contract” for every customer buying a book. Then there are the costs of enforcement under contract theory, where the problems would be large because of the incentives for fraud (the party to the contract “leaks” the contents in an indictable way, and there is no cause of action against the third party.) This cost also has to be figured into the price.

The net result is that there is no efficient solution available under contract law exclusively. The book cannot be transferred to the party who values it most (the public) in the absence of a property rights to the work. That is the lesson of Coase.

Interestingly, you could arrive at the same result by placing the right in either party (author or public) as long as the one with the right paid the other for their costs. So if you said that the public had a right to access, and the author had a right to disclosure on a consumer by consumer basis, then traders will arrive at the efficient solution (a price that both are willing to accept).

But also true, as you look at Friedman’s work, is that there are more than one way to approach the problem. The best solution is elegant and intelligent. (Have you seen the TED piece on restoring dry waterways posted by Tucker recently?)

Anyway, you’ll be happy to note that I’ve changed my position somewhat. I think on a fundamental level it is perhaps reasonable to have some limited form of copyright but I would stress the word limited and then highlight it and perhaps then underline it for good measure. Yes it is a system that some would argue already is limited but I think it is ridiculously out of whack with its purpose.

It is not necessary for me to argue that copyright is perfect, any more than it is necessary to argue that the US Federal Government is perfect in order to support a concept of a libertarian right to self-government; far from it.

But the fundamental question remains; is there a legitimate right of the author to what he produces? From that answer, as a first principle, you can debate endlessly what approach and the limits of those rights should take, as we should.

I think that copyright is perhaps the best justification for IP and that other types of IP like patents are far more sinister. The industry I work in uses a vast array of patenting techniques to prolong protections and keep competitors out of highly profitable markets well past the point of R&D recovery costs and future incentivisation. In so many cases its like the goose that lays the golden egg. One such way is to patent a new product, then patent it’s use pattern and then pattern it’s manufacturing method and we end up with a maze of partially overlapping but seemingly ever extending patents.

First, I agree with you about copyrights. That is why I have focused on that as the case to test the fundamental issues. Second, while I know much less about patents, I agree with you. We are not producing an efficient outcome. We can do better. What we are doing is wasteful. But mercantilism in general is wasteful. It is always wrong to intervene in the operation of the free market. However, it is a different matter to throw out the baby with the bathwater (even if you do so because you believe it is Rosemary’s baby), because we know that not EVERY baby is so cursed.

The ability to distinguish between one thing and another is a monumentally important aspect of having and keeping liberty.

In fairness to the IP opponents, I think many of their arguments are strong and well thought out and particularly around the issue of arbitrariness. I also don’t think having IP is a justification for the state (as in AJ Nock’s distinction between government and state). I am more a minarchist than anarchist but not because the arguments for ancap are weak (I like a lot of Rothbard’s and Hoppe’s work) but because I find them hard to reconcile with human nature in the way someone like Mencken so well describes (the warm reassuring smell of the herd…).

Arbitrariness is the main issue, and why this subject (as is all laws at the margins of those “fuzzy lines” that Friedman refers to) is so contentious. IP opponents have selected some strong arguments, but strong is not right. I have learned that what seems strong can become pretty weak when you dig deeper. That is what I have been doing here. I did not start out trying to prove my case one way or the other. I simply took the adversarial position in order to foster debate, and have reached a point where I have a pretty strong sense of where I stand and why.

As to the distinction between State and (self-) government, I agree completely. Cooperating humans will develop institutions of self-government. These institutions are subject to mercantilist attack. Lack of vigilance and a lack of clarity between one things and another is a tool of mercantilism. I am opposed to it in every instance. Political power should not be ceded to special interests of any kind. Being able to distinguish between a libertarian right to self government and mercantilism in any form, is a critical distinction, and making it (and explaining it) is not easy. I am trying to improve in this endeavor.

The eternal problem with limited government is the same as limited copyright or IP – who is responsible for the job of creating and policing the limits. Just have a look at how well the US is going at keeping within it’s constitution limits.

The answer is inconvenient and inescapable; we are. If we are pursuing an ideal of self-government, we can’t ignore the “self” part. Unjust laws should be opposed. We have the power to do so, but we are not well organized to wage the battle. That is the problem. It is a big one, and quite frankly, when I first started coming to this site, I had expectations of greater common ground that I’ve discovered. These debates about IP are simply a vehicle for exploring that situation.

I hope to see you more often on these pages.

Best regards,

Peter Surda April 26, 2011 at 11:18 pm

Wildberry,

The ability to distinguish between one thing and another is a monumentally important aspect of having and keeping liberty.

So stop confusing, stop using vague language and stop running away from debates.

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