1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar
Source link: http://archive.mises.org/16319/the-origins-of-libertarian-ip-abolitionism/

The Origins of Libertarian IP Abolitionism

April 1, 2011 by

David Gordon has a great article up today on LewRockwell.com, Sam Konkin and Libertarian Theory, which devotes a good deal of space to discussing Konkin’s role in the anti-IP movement. David is absolutely correct here:

Konkin’s work on IP deserves at least equal recognition as his better-known defense of counter-economics and agorism; and, to the extent that anti-IP views come to prevail among libertarians, I predict that Sam Konkin will be a name we shall often hear.

It was great to see Konkin’s amazingly clear and perceptive thoughts on this issue, way back in 1986 before it seemed that relevant. I learned about Konkin’s views on IP a few months ago–from Lew Rockwell’s post Remembering Samuel Edward Konkin III, I think, where Lew wrote:

This weekend, … I was going over [Konkin's] Wikipedia articles, and realized I had never read what turned out to be a pioneer article mentioned there, Copywrongs, which I published today on LRC.

I noted this piece in my C4SIF blog post, Copywrongs. What’s ironic is that one of the strongest libertarian defenders of (a variation of) IP is J. Neil Schulman, ((See Schulman: Kinsella is “the foremost enemy of property rights” ; Query for Schulman on Patents and Logorights; Kinsella v. Schulman on Logorights and IP.)), who was a big fan of Konkin–he included an afterword to Schulman’s classic libertarian sci-fi novel Alongside Night. Schulman thinks it significant that the anti-IP Konkin “never successfully challenged” Schulman’s Rand-inspired, confused defense of IP, but this seems to me to be an odd negative appeal to authority.

Gordon is right to credit earlier libertarians such as Wendy McElroy, Murray Rothbard, and even Benjamin Tucker for their rejection of the basis of IP. I mention these, and other significant influence in my own thinking, including Tom Palmer, in notes 37-38 and accompanying text of my Against Intellectual Property (first published 2000). Leonard Read was also an early hero and pioneer on this topic (Leonard Read, “On Plagiarism” (1972), reprinted in Kinsella, “Leonard Read on Copyright and the Role of Ideas“). I myself did not firmly come out against IP in print until about 1995 (Roderick Long, too, who is also great on IP–and, in fact, is debating Schulman on IP in New Hampshire at PorcFest 2011 June 20-26 2011–wrote his first piece against IP, The Libertarian Case Against Intellectual Property Rights, in the Autumn 1995 issue of formulations). These and others are also linked on the C4SIF Resources page, including Rothbard’s key anti-IP contributions, Knowledge, True and False and Man, Economy, and State and Power and Market, Scholars Edition, pp. liv, 745-54, 1133-38, 1181-86.

Earlier libertarians, like Tucker, basically had the right approach (though Tucker was weak on land); but to have a sound, coherent approach to IP you must be informed by libertarian and really Austrian insights.  (Spooner was out of his gourd on IP (I discuss him briefly in Against Intellectual Property, text at notes 32 and 48), as were Rand and Galambos; as was even Proudhon, who otherwise railed against “property” as “theft.”)) The austro-libertarian opposition to IP is already implied in Mises, Rothbard, and Hoppe’s political and economic writings. It is implied in Mises’s recognition that ideas and recipes are infinitely replicable, and in his understanding of the role of ideas and knowledge in action: that it is a guide to action, but not a scarce means of action. It is of course also present in both Rothbard’s rejection of state patent and copryight, and Hoppe’s views of property rights and scarcity. The anti-IP aspects of their ideas lay somewhat dormant or unappreciated  until the full brunt of the IP system started to be felt with force in the mid-90s as a result of the rise of digital copying and information, the Internet, file sharing, and so on. Tucker, Read, Mises, Rothbard, Konkin, Palmer, McElroy, et al.–they are true anti-IP pioneers. We should all be grateful to them for their intellectual leadership, which helps to clarify our understanding of yet another facet of the criminal state. [Update: for more on McElroy's role in developing the anti-IP case, see my article “The Great IP Debate of 1983,” Mises Daily (July 18, 2011).]

Update:

For a followup post, see The Four Historical Phases of IP Abolitionism.

{ 482 comments }

J. Neil Schulman April 10, 2011 at 3:49 pm

I see a utility in ceasing to use the term “IP” and beginning to use the term Media-Carried Property — MCP.

This should make it clear that driving your car onto someone else’s ferry doesn’t give the ferry owner title to your car.

Stephan Kinsella April 10, 2011 at 3:55 pm

MCP. Wow. Now there are rights in the “properties” of things. There is no end to where this is heading, as things have lots of properties!

Neil envisions a real thing as a bucket that holds a substance–information. The information is of course immateral but he thinks it is ownable since when a thing “carries” this information then the owner of the thing values the thing more. This is simply does not follow at all.

J. Neil Schulman April 10, 2011 at 4:03 pm

Stephan Kinsella wrote, “MCP. Wow. Now there are rights in the ‘properties’ of things. There is no end to where this is heading, as things have lots of properties!”

A true statement, for once, and one I made three decades ago in my article Informational Property: Logorights.

“Neil envisions a real thing as a bucket that holds a substance–information.”

Back to normal, you misstate my position.

Corrected to: “Neil envisions a real thing as a bucket that holds another real thing: a logos.”

Peter Surda April 11, 2011 at 12:45 am

Dear J. Neil Schulman,

Media-Carried Property

And since all media is already covered by physical property rights, MCP needs to either contradict it or be irrelevant.

Confront it.

Kid Salami April 11, 2011 at 2:24 am

A book that is transmitted via em waves to a reciever and then immediately deleted on the sender’s hard drive exists nowhere but in the signal until it hits the receiving antenna. Is the signal covered by property rights? Or does the book “not exist” for a while, not until such time as it is imprinted on a dvd?

Peter Surda April 11, 2011 at 3:35 am

Kid Salami,

if I remember correctly, EM radiation has dual characteristics (particle + wave). As particles, they are potentially owned by someone anyway, regardless of whether you interpret it is data encoded and sent at a specific frequency. Furthermore, it still does not follow that ownership of frequencies gives the owner any right to what the owners of receivers do. It would only mean that some EM interference might be illegal, not that the reception is illegal.

And last but not least, the arguments Neil is making are so far removed from your nitpicking that I have to wonder again why are you making them. I get it that it is possible to make coherent arguments for IP. But it is for the IP proponents to make them. Obviously, they don’t want to. It is the sacrifices that follow from a coherent IP theory that they are unwilling to make. Let them confront the contradictions first. You’re only confusing them. It almost sounds like you don’t want Neil to confront his contradictions.

Kid Salami April 11, 2011 at 4:53 am

All I did was ask you a question. I am once again accused of nitpicking or arguing for the sake of it or whatever? You don’t have to answer.

“if I remember correctly, EM radiation has dual characteristics (particle + wave). As particles, they are potentially owned by someone”

Ok, that’s all I wanted.

Peter Surda April 11, 2011 at 5:59 am

Kid Salami,

you’re a smart chap. Surely you must have been able to make an educated guess what I was going to answer before I even answered. So why ask?

Kid Salami April 11, 2011 at 6:59 am

Well sometimes you just can’t win. I think (in fact am sure) there is circularity in a theory where you assume that photons can be “owned”. I ask to make sure I’m not missing something or misrepresenting your position – apparently then I’m nitpicking. If I don’t ask and “guess” what you mean, then I’ll most certainly be accused of erecting a strawman.

Peter Surda April 11, 2011 at 7:15 am

Kid Salami,

I don’t get your point. You know I’m a falsificationist, so why are you asking me whether something exists?

Kid Salami April 11, 2011 at 7:24 am

YOu said

“And since all media is already covered by physical property rights”

I believe the signal to be one of these “media”. And I’m trying to determine whether you think EM waves are covered by “physical property rights”, or whether this is not, in your view, a “medium” as used by you in the quote above. One if these must be true mustn’t it?

Peter Surda April 11, 2011 at 7:54 am

Kid Salami,

And I’m trying to determine whether you think EM waves are covered by “physical property rights”, or whether this is not, in your view, a “medium” as used by you in the quote above. One if these must be true mustn’t it?

There are multiple ways to cover EM waves through property rights that do not require IP. I don’t really have a solid opinion which of those should be preferred. However, I tend towards the approach where the ownership of the receiver is the decisive factor from the perspective of property rights. Whether the EM waves as such are ownable is kind of a useless question, since without a receiver we have no way of knowing what is happening with them anyway. On the other hand, that does not answer your question if the book exists while being in transmit only.

I don’t know what else to tell you about this topic.

Kid Salami April 12, 2011 at 6:47 am

“Whether the EM waves as such are ownable is kind of a useless question”

Well, I agree – but I’m not the one saying, repeatedly, “all media is already covered by physical property rights”.

You can certainly save yourself from having to consider this “useless” question by declaring that an em signal is NOT one of these “media”. Then your statement above about all the “all media is already covered by physical property rights” can remain true. Or you can say that photons are “ownable” and so subject to property rights, as you suggested may be possible in some circumstances – I think this is absurd but it’s up to you. I don’t see a third alternative.

Peter Surda April 12, 2011 at 7:38 am

Kid Salami,

ok, I get your point. The thing is however, it’s not really up to me. If someone thinks that there should be rights in data in transit (which is already unclear, since Neil said that looking at things is not violating any rights, which of course begs the question why copying based on visual stimuli is, but that’s not important now), then I can retort that all media (including subatomic particles) are potentially owned. I’m not the one making the assumptions.

If my hypothetical opponent thinks that there should be rights in data in transit, then replying that all media including particles are potentially covered by property rights in the physical matter is appropriate and equally absurd (or not). It does not even need to be owned by the same person for the whole duration of the transit, it can also change ownership depending on who’s premises it’s passing (which I think is the simplest and most obvious solution). It’s like the question about homesteading dynamic processes, e.g. a river. The simplest solution is that you only have a claim on the water molecules while they are on your premises. You don’t have a claim against people who own the land down- or upstream. Maybe (I’m hesitant) you might have an easement claim against someone who’s upstream. But that is completely different from IP, because that is a claim against someone who’s “downstream”.

I think I have to apologise, I should be more aware that you’re also a curious soul in search of answers.

Kid Salami April 11, 2011 at 5:20 am

“ownership of frequencies”

Although I have no idea what you mean by this.

Peter Surda April 11, 2011 at 6:00 am

Kid Salami,

that is a hypothetical alternative right. It does not matter what exactly it means. My point is that it’s an alternative rather than amendment.

Kid Salami April 11, 2011 at 7:00 am

Then it’s not something you are suggesting is sensible yourself? Ok.

Peter Surda April 11, 2011 at 7:26 am

Kid Salami,

the question is irrelevant to me at this stage. It only becomes relevant when you can show how it fits into a context of other theories. There is no such thing as an assumption “as such”. That’s nonsense. Assumptions can only be evaluated in relation to other assumptions. I don’t care if a book “exists” while it’s being transmitted. What does it even mean? It’s just mumbo jumbo with no effect on the questions I’m asking.

Stephan Kinsella April 11, 2011 at 9:41 am

Frequency is the inverse of wavelength. He’s talking about spectrum ownership–airwaves. Just like you can have easements in airways or shipping lanes etc. See David Kelley and Roger Donway, Laissez Parler.

Stephan Kinsella April 11, 2011 at 9:39 am

Hmm. I wonder if a light particle is ownable. It’s always traveling, cant be captured.

I would think ownership of a given EM spectrum itself makes sense–the right to use a given waveband in a given geographic area for data communication purposes.

But note that Neil says the EM waves themselves are the medium (and see my other post just now about storage media and data signals in a “carrier wave”). This is odd b/c normally we think of waves as themselves perturbations of some medium. For light, that’s the ether, which most physicists now reject, following Einstein’s special theory of relativity. If that is the case, there is no medium, really, and it seems odd to think of the waves and particles as a medium. When you encode information by EM what you do is modulate it somehow. So you are just sending out an EM wave.

BTW I lean to Beckmann’s view that there is in fact an ether–the gravitational field itself is the ether (see Bethell here http://www.lewrockwell.com/orig6/bethell4.1.1.html). So there is an ether, and the Em waves travel in the gravitational field ether. Or so Beckmann argues (persuasively IMO).

sweatervest April 12, 2011 at 5:16 pm

Beckmann’s book (Einstein Plus Two) is the most fascinating piece of physics literature I have read in my entire time being an undergrad physicist. All of a sudden modern physics wasn’t a jumble of confusing mysticism.

Totally off-topic I know, but that books totally changed my life as a physicist.

J. Neil Schulman April 11, 2011 at 6:43 am

Kid Salami,

EM waves are a medium that can carry information objects — what I’m now tagging Media Carried Property — MCP. The carrier signal can transmit and receive MCP that can be used even without being recorded at the receiving end.

Examples of that are programs broadcast on television or radio to broadcast receivers, or sent from satellites to satellite dishes.

information objects sent through fiber optic cable can also be MCP.

nate-m April 11, 2011 at 7:19 am

that can be used even without being recorded at the receiving end.

Nitpick:

They still must be copied. They must be received, recorded, duplicated, modified, amplified, etc etc. in order to be viewed by anybody. In the case of old analog televisions and radios this happens rather quickly using relatively primitive technology, but it still occurs.

With digital media it’s much more deliberate since your dealing with mathematical representation of information that must be stored in computer memory and processed several times before it becomes human readable.

Stephan Kinsella April 11, 2011 at 8:33 am

Kid, this is an interesting question. Actually in patent law we have tried to deal with similar weird issues. In the 1990s there were series of court decisions and PTO rules grappling with whether and how computer-implemented inventions could be patentable, and how to claim them (see e.g. Examination Guidelines for Computer-Related Inventions; MPEP sec. 2106, on “Patent Subject Matter Eligibility”). For example if I come up with a mathematical algorithm this is not patentable, since it’s a law of nature but if I implement it in a computer, and tie it to some useful or “tangible” or “concrete” result more than an abstract number that represents some physical thing in the world, maybe it is patentable. All these weird little rules. Sometimes it’s like arguing about angels on the head of a pin, but you can’t blame the courts–they are trying to interpret an incoherent statute that is not compatible with justice. So they just have to guess or make up interstitial rules sometimes.

Another thing is what is statutory subject matter–the statute says (sec. 101) you can get a patent on “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof”. A machine is a thing–an apparatus. Like a computer. A process is a method. The others are for things like chemical compositions.

The point is: if you have a useful way of doing something in a computer, you want to cover all your bases–you want to cover as many potential infringers and infringing uses as possible. You also want a spectrum of claims in case some of the others are held later to be unpatentable, e.g. if the court changes the rules about what types of computer claims are patentable. So in the 1990s some of us were trying out various types of claims for these and other strategical reasons.

So take, for example, this patent, 5,938,773, “Sideband signaling with parity bit schemes, which I did for Intel and which issued in the 1990s (some of the others I prosecuted can be found here). Here we used a variety of independent claims.

Claim was is just a method (process) claim (“1. A method for transmitting data, the method comprising the steps of: …”), and claim 8 is an apparatus (machine) claim (“8. An apparatus for transmitting data, comprising:…”).

Claim 12 is to a “storage medium”–”A storage medium having stored thereon a plurality of instructions for transmitting data, wherein the plurality of instructions, when executed by a processor, cause the processor to perform the steps of:…”. Imagine a CD having a program on it. Then you have other claims directed to the encoder side (e.g. the seller of software) and the receiver side.

Anyway your question about the book being transmitted by EM waves reminded me of the last type of claim here: “40. A computer data signal embodied in a carrier wave, the computer data signal comprising a plurality of instructions, wherein the plurality of instructions, when received and executed by a processor, cause the processor to perform the steps of:….”

So the claim here is actually to a data signal itself, embodied in some carrier wave.

Ah, the bizarre metaphysics of IP law. And you can see how Neil’s own IP theory also causes mental contortions.

J. Neil Schulman April 11, 2011 at 6:23 am

Peter Surda wrote, “And since all media is already covered by physical property rights, MCP needs to either contradict it or be irrelevant. Confront it.”

Please point to a physical property right. I’ve never seen any right before and I’d very much like to see one.

Peter Surda April 11, 2011 at 6:36 am

Dear J. Neil Schulman,

Please point to a physical property right. I’ve never seen any right before and I’d very much like to see one.

Obviously I meant that the right refers to physical material (i.e. material addressed by IP-less rights), rather than the right is somehow physical.

Kindly stop avoiding and answer. Where is the example of IP or MCP or logorights that neither contradicts rights in already owned material nor is redundant with respect to them?

I’ve been asking you the same simple question for six days. You have not shown a single attempt at answering it. If you’re correct, what are you afraid of? Are you afraid of contradictions? It’s like in the joke where Reagan calls Gorbachov and ask him how much farmers earn in Soviet Union, and Gorbachov retorts “But you oppress the black!”.

Stephan Kinsella April 11, 2011 at 9:47 am

Neil, the property right is the relation between an actor and a scarce resource–it just means he is the owner of that scarce thing–that he is the one who gets to permit, or deny, others’ use of that thing.

The problem with your theory is that it would assign to B a partial property right in a scarce resource that A has previously homesteaded: it gives B a veto right over how A might use his property. THus before IP or logorights, A owned the scarce resource–he had full property rights in it. After logorights, A and B are co-owners. By the magic of B inventing something with his own property, your logorights sytsem has assigned some of A’s property rights to B. This is redistribution of wealth, or theft, however you want to call it.

Wildberry April 11, 2011 at 10:42 am

@ Stephan Kinsella April 11, 2011 at 9:47 am

Neil, the property right is the relation between an actor and a scarce resource–it just means he is the owner of that scarce thing–that he is the one who gets to permit, or deny, others’ use of that thing.

This sounds suspiciously like an admission that property is a human device, as “he is the one who gets to permit, or deny, others’ use of that thing.” How does he get to do that? It is ordained from the heavens?

Also, your description is incomplete, because property rights also define the relationship between a property owner and other property owners. This is true of all rights, yet you want to make some kind of exception for IP rights.

The problem with your theory is that it would assign to B a partial property right in a scarce resource that A has previously homesteaded: it gives B a veto right over how A might use his property.

IP “theory”, does not assign property rights in A to B’s property. IP makes no claim on the property of others. This is misdirection, much like your “ideas are free” line of reasoning.

As you have previously said, conflicting rights create limitations of use; ALL RIGHTS. So unless you are arguing against all rights, you must accept that the presence of rights in A imposes limitations in the rights of B. Remove the rights in A, and B’s limitation s also vanish.

I think it is abundantly clear at this point, that you are arguing that you want to be free to use the property of others simply by denying their right to own it. You are demonstrating that in fact, rights and property are human devices which arise by consent of those who wish to cooperate with others. You wish to define them in a way that you get what you want for free.

You continue to insist that IP rights make a claim of ownership of other’s property, yet you don’t make the same claim for rights in other property. That appears to be a contradiction, to borrow Peter’s favorite phrase.

Speaking of which, Kid has, by one innocent question, falsified Peter’s claim with his own words and methodology, that “physical property is 100% owned” by getting him to admit that he thinks “particles” are also owned. Obviously there are particles that are not owned, so property cannot be 100% already covered by property rights.

I may be an amateur, but I can read the writing on the wall. All I can say is thank God you and your followers are merely a gnat on the ass of the real world. Thankfully, there is little to no chance that will ever change.

To borrow from Neil on this point; you are simply a member of the entitlement gang, with a case of the “gimmies”.

Stephan Kinsella April 11, 2011 at 1:37 pm

The replies of the IP socialists are so predictable by now.

If you object to the fact that IP gives a third party property rights in your already owned property, they say “well all rights have limits duuhhhh what’s the big deal?”

But by such reasoning you can jusify any crime. If A rapes B, and we object, saying this violates B’s rights to her body, well, you just say, “Well what’s the big deal? No rights are absolute!”

Or they say that there are always gray areas between adjoining property tracts. But in the standard case of Blackacre and Greenacre near each other, we already all recognize that there is a resource owned by B and one owned by G; that the tracts abut each other at a physical boundary that is of necessity gray, does not mean there is not Blackacre and Greenachre. I.e., the issue of transitions or continuums or gray areas only comes up when we know there are two definite areas and then a transition between them. If a dessert is next to a forest, they both still exist even if there is some transitino therebetween.

Likewise, if we KNEW that we MUST HAVE a finite, nonzero patent term–that it HAS TO BE between zero and infinity, then perhaps we could not blame the Schulmans and other IP socialists from arbitrarily picking some number like 20 yeras–after all it is between zero and infinity, and “might be” close to the ideal peak of the Guassian Laffer Innovation Curve that only God can see.

But they do not know that it cannot be zero, or infinity. Tey do not know that it is a bell curve. And even if it is a bell curve, what if the optimal term is 1.3 years? IN that case a zero year term is closer than 20 year term. And they do not even know it is a Bell Curve. It could be a monotonically increasing, or decreasing, curve, so that the more IP term/protection, the better (meaning a perpetual term is ideal), or it could be that it’s monotonically decreasing so that the more protection, the worse (meaning that a zero term is ideal). they have no arguments WHATSOEVER about these issues. They just assume, like central planning socialists always do.

Peter Surda April 11, 2011 at 3:08 pm

Lieberry,

Speaking of which, Kid has, by one innocent question, falsified Peter’s claim with his own words and methodology, that “physical property is 100% owned” by getting him to admit that he thinks “particles” are also owned. Obviously there are particles that are not owned, so property cannot be 100% already covered by property rights.

Stop misrepresenting my claims. I did not say that particles are owned. I said that they are potentially owned. Just like, for example, the rocks on Pluto’s surface are potentially owned, just noone managed to get a hold of them yet so they don’t have an owner at the moment. If you are capable of receiving a particle, then the most straight explanation (albeit evidently not the only one possible) is that since the moment of reception it is yours. If noone is able to receive a particle, then the question of ownership is moot.

Furthermore, whether there is ownership in particles or waves or any other approaches (like transmitters or receivers) is irrelevant. What is relevant is that the rights are defined in a non-contradictory manner. Whichever you or Neil or Kid Salami pick I don’t care. Stephan and I for example disagree in how ownership of EM radiation should work. So what? That does not fix the self contradiction in Neil’s claims, nor does it prove any of the convoluted demagoguery you produce.

Stop lying and evading. I’m not going to rephrase my arguments yet again so that you can ignore them yet again. I’ve done this enough times already. You have had plenty of opportunities to ask for clarification. But you can’t do that can you Lieberry? Because that would require you to approach the problem with genuine interest and you don’t want that. You just want others to recognise your nonexistent greatness.

J. Neil Schulman April 11, 2011 at 2:38 pm

Stephen Kinsella wrote,

“Neil, the property right is the relation between an actor and a scarce resource–it just means he is the owner of that scarce thing–that he is the one who gets to permit, or deny, others’ use of that thing.”

Correct.

“The problem with your theory is that it would assign to B a partial property right in a scarce resource that A has previously homesteaded: it gives B a veto right over how A might use his property.”

A, as the original creator, is the original “homesteader,” if we must use the Lockean language. A licensed to B a specific use of A’s property. A retains all rights not licensed. Any C’s, D’s, E’s, etc have no right to use any rights that A retains, and only to use “B”‘s rights that A has not specifically made non-transferable.

“Thus before IP or logorights, A owned the scarce resource–he had full property rights in it. After logorights, A and B are co-owners.”

Not quite. B has licensed a specific and delimited usage of A’s property. A retains all unlicensed rights. To say that a license for usage is the same as ownership confuses the transaction.

“By the magic of B inventing something with his own property, your logorights sytsem has assigned some of A’s property rights to B.”

You just reversed the roles of A and B. B has invented nothing; A is the inventor.

“This is redistribution of wealth, or theft, however you want to call it.”

Every sale or other property transaction is a redistribution of wealth. Libertarians and propertarians only object to forced redistributions of wealth, not consentual ones.

I have no idea what you mean by theft in this context since your discussion is of a consentual arrangement between A and B, and the usual plea for the rights of C to take what is not his is not even addressed.

Stephan Kinsella April 11, 2011 at 3:31 pm

A homesteads a scarce resource. Then he uses it in a certain way. It turns out this way is similar to how B has used his own property. There is no contract between B and A. What are you talking about?

J. Neil Schulman April 11, 2011 at 4:14 pm

Stephan Kinsella wrote: “A homesteads a scarce resource. Then he uses it in a certain way. It turns out this way is similar to how B has used his own property. There is no contract between B and A. What are you talking about?”

What are you talking about?

I write Alongside Night and own what I wrote. I don’t care whether you call me A or B. No one else has any property rights in it and because it’s already owned it’s not available for homesteading. Someone else writing and owning something else of their own has nothing whatsoever to do with this discussion.

Stephan Kinsella April 11, 2011 at 4:37 pm

NEil:

“A homesteads a scarce resource. Then he uses it in a certain way. It turns out this way is similar to how B has used his own property. There is no contract between B and A. What are you talking about?”

What are you talking about?

I write Alongside Night and own what I wrote.

No you don’t. Information is not ownable. At the least, this is question-begging.

I don’t care whether you call me A or B. No one else has any property rights in it and because it’s already owned it’s not available for homesteading.

Neil, I don’t need to homestead “it” or own “it” to do things with my own property. Let’s take an invention. Stephan has property. Neil has property. Neil invents a new mousetrap. He starts selling it. Stephan learns about a new way of making mousetraps since this information is now widely known, because Neil advertised it this way. Stephan makes mousetraps using his own property. He does not need to “own information” to do this. Neil tries to stop Stephan. This is natural since people do not like competition. Tough.

Wildberry April 11, 2011 at 3:13 pm

@Stephan Kinsella April 11, 2011 at 1:37 pm

The replies of the IP socialists are so predictable by now.

To quote BtM, “OK. We’re in agreement then.” You are talking about yourself, right?

If you object to the fact that IP gives a third party property rights in your already owned property, they say “well all rights have limits duuhhhh what’s the big deal?”

But by such reasoning you can jusify any crime. If A rapes B, and we object, saying this violates B’s rights to her body, well, you just say, “Well what’s the big deal? No rights are absolute!”

What a crock. The fact that no rights are absolute and yet we seem to be able to distinguish rape from other acts implies just the opposite. Precisely because such distinctions are necessary and evident, we define rights and protect them.

You are advocating that we abolish existing rights in IP, I am not. It is you who is advocating that we abolish the distinctions we currently hold as legitimate rights, so by analogy it is you who is justifying crime by ignoring the victim’s rights.

Or they say that there are always gray areas between adjoining property tracts. But in the standard case of Blackacre and Greenacre near each other, we already all recognize that there is a resource owned by B and one owned by G; that the tracts abut each other at a physical boundary that is of necessity gray, does not mean there is not Blackacre and Greenachre.

Yet at the same time you acknowledged this obvious fact, you deny the exact same relationship in IP by simply making the presumption that “we DO NOT already all recognize that there is a resource owned…”. The boundary is grey in both cases in exactly the same way, as it is grey at the boundaries of ALL rights. Since all rights are capable of conflict, we establish rules, which become laws. Good laws benefit both parties, bad laws harm both. Your proposal for outright IP abolition harms both producers and consumers of intellectual products, and you actually understand why. Where does that leave you, ethically?

I.e., the issue of transitions or continuums or gray areas only comes up when we know there are two definite areas and then a transition between them. If a dessert is next to a forest, they both still exist even if there is some transitino therebetween.

A poetic truism. By your analogy, then, all boundaries between abutting property rights have some grey zones, which implies what? That we must DISTINGUISH how to allocate those rights and limitations? OF COURSE!

Likewise, if we KNEW that we MUST HAVE a finite, nonzero patent term–that it HAS TO BE between zero and infinity, then perhaps we could not blame the Schulmans and other IP socialists from arbitrarily picking some number like 20 yeras–after all it is between zero and infinity, and “might be” close to the ideal peak of the Guassian Laffer Innovation Curve that only God can see.

What a zero. According to your reasoning, everything is arbitrary, and one thing cannot possibly be discerned from another. How does anyone see in all this fog? Your support of zero is well known. All opposition to your absolutism implies non-zero. That makes the score, Kinsella (and a very few entitlement hogs) zero, the rest of the civilized world, non-zero.

Since the issue you raise is actually an economics-of-law problem, I know you don’t mind if a few economists weigh in besides Rothbard, right? How about Mises and Hayek to name a couple? I for one do not favor an economic system that requires producers to produce for external economies. How about you?

They just assume, like central planning socialists always do.

Why, at this point in the discussion, are you so concerned about term, all of a sudden? Since you insist no rights can exist, what do you care how long the non-zero term is?

For those who see the logic of property rights in production, even where the product is an intellectual work, the issue of term is indeed a grey zone. As a result, it is a difficult problem, like all problems of the economics of law. Coase started us out and David Friedman has written a very interesting book on the subject. But for you, Stephan, don’t bother. No need to worry, since all rights in IP are illegitimate in the first place.

Save your time for more blogging. That’s what’s really important.

J. Neil Schulman April 10, 2011 at 3:57 pm

Stephan Kinsella wrote, “You have a right to use knowledge and information you have, regardless of who created it.”

That is a perfect statement of the communist ethic.

Anti-IP Libertarian April 10, 2011 at 9:40 pm

So were EXACTLY is the difference in practice between your “logoright” and what Ayn Rand thought about “IP”?

Please answer HERE as correctly and specifically as possible!

Peter Surda April 11, 2011 at 12:42 am

Dear, J. Neil Schulman,

That is a perfect statement of the communist ethic.

Since all the actions are already covered by physical property rights, what is it that you’re referring to as communist? There is nothing left. You’re using metaphysical nonsense to mask your contradiction. Confront it.

J. Neil Schulman April 10, 2011 at 4:17 pm

Every logos is an object made out of information.

Not all information is an information object.

Stephan Kinsella April 10, 2011 at 4:33 pm

So some information is ownable. Some is not. What is the difference?

Anti-IP Libertarian April 10, 2011 at 9:46 pm

So someone orders the particles existing in this universe and is hereby changing information and therefore owns that changed information (=”logoright”)?

You think that your “logoright” is the only source of homesteading, don’t you?

There are millions of questions arising from that. A few:

1) Who decides what amount of information change (=pattern “creation”) is sufficient for homesteading?
2) As property is the right to exclude: How do you exclude people from using “logorighted” objects eg in their imagination?

ESV April 11, 2011 at 10:00 am

Given sufficient resolution, all information can be represented digitally, so there must be a minimum number of bits that are subject to IP. Though I might be wrong, I’d intuitively say that 1 bit is not enough. Nor 2, nor 3. It seems like *any* minimum number is arbitrary. Even if it were not, you could 0-pad your way to intellectual property.

Matthew Swaringen April 12, 2011 at 1:12 pm
J. Neil Schulman April 10, 2011 at 4:25 pm

So let me see if I have this right.

The anti-MCP advocates in this forum see nothing wrong with going into a Barnes and Noble store with their iPADs, going up to the children’s section, taking off the shelf a copy of The Berenstain Bears Get the Gimmes, using the iPAD’s camera to copy every page in the book, then shooting it out with Barnes and Noble’s security guards when they attempt to confiscate the iPAD.

Stephan Kinsella April 10, 2011 at 4:36 pm

this ignores context, contracts, rules set by the owner of the (real, no offense) property. But right–there is nothing wrong per se with using non-scarce information. Information is not ownable. It’s not communist to say this.

Your position is transparently incompatible with libertarian property rights. It is incompatible with property rights in scarce means and with Lockean homesteading. YOu seek to supplant these libertarian fundamentals with your mystical weird theory about “material identity” and “logos” etc. Neil, it just makes no sense whatsoever, and almost everyone can see this. You are completely confused on this point.

J. Neil Schulman April 10, 2011 at 4:52 pm

It ignores nothing.

Are you arguing that without prior notice — without a security guard requiring you to check your iPAD or leave it in your car — you have consented for Barnes and Noble to take ownership of your iPAD? That merely by bringing your property into their property they now own it?

How about the clothes you’re wearing and the money in your wallet? Do you grant a property right to Barnes and Noble the moment you walk into their store?

Or, is it possible for your sphere of ownership of your own things to remain yours even as you enter into someone else’s property?

No, you want it both ways. Your iPad remains yours yet you may use it as a burglar tool without consequence. You have the ethic of the Jolly Roger: what’s mine is mine and what’s yours is mine, too.

When I first created Alongside Night there was only one manuscript. It was a scarce object. All its bundle of rights due me from creating it were owned by me. That bundle of rights attached not only to the paper it was typed on but also to the thing which I created: the novel. I did not make the paper; I made the novel. The novel — not the paper — is the real, objective, discernible, observable, readable thing that I made. That bundle of rights included the human action of making copies, which I as the owner owned and still own.

Yet, in your Jolly Roger ethic, you can steal the thing of value — the novel — and because you’ve left me the paper you claim to have violated no property rights.

This is the argument of a buccaneer, a scoundrel, a grifter. Your quoting Locke on property rights in land doesn’t change that.

And anyone who isn’t blinded by having a Case of the Gimmes sees that.

Stephan Kinsella April 10, 2011 at 5:10 pm

Are you arguing that without prior notice — without a security guard requiring you to check your iPAD or leave it in your car — you have consented for Barnes and Noble to take ownership of your iPAD? That merely by bringing your property into their property they now own it?

no, of course not. I said it depends on context.

but the IP case does not rest on such contractual restrictions. Your IP rights theory–and your theory is a type of IP whethery ou admit it or not (and is very Randian)–is not contractual or in personam; it is in rem. Just like copyright and patent today are.

Or, is it possible for your sphere of ownership of your own things to remain yours even as you enter into someone else’s property?

Depends on what you agree to.

No, you want it both ways. Your iPad remains yours yet you may use it as a burglar tool

More question-begging. Burglar is a synonmym for thief; it implies stealing; but theft presupposes there is some owned thing that was taken. That however is the question: are your “information objects” ownable? Of course, they are not.

Your theory is utterly unlibertarian, Neil. It’s sad.

without consequence. You have the ethic of the Jolly Roger: what’s mine is mine and what’s yours is mine, too.

This is incoherent.

When I first created Alongside Night there was only one manuscript. It was a scarce object.

Equivocation on what “it” refers to.

All its bundle of rights due me from creating it were owned by me.

Nonsense.

That bundle of rights attached not only to the paper it was typed on but also to the thing which I created: the novel. I did not make the paper; I made the novel.

You made something unownable.

The novel — not the paper — is the real, objective, discernible, observable, readable thing that I made.

Lots of synonyms, there.

That bundle of rights included the human action of making copies, which I as the owner owned and still own.

Nonsense. People live by right not by permission. I can do whatever the hell I want with my own property and don’t need your g*ddamned permission.

Anti-IP Libertarian April 10, 2011 at 9:59 pm

So YOU see nothing wrong with going through the streets and LOOKING at all the property you can see there and hereby (after YOUR THEORY) stealing and pirating all day long?

What about those poor house/garden/car owners who you rob with your eyes and your brain? Did you pay them? Why not? How could you!

I rather guess you even look at many monuments and process this information in your brain and EVEN speak about them. Did you ever draw a painting of something you saw? Shame on you.

PS: Did you even pay the royalties for using the Internet to the guy who invented it?
http://en.wikipedia.org/wiki/Tim_Berners-Lee

J. Neil Schulman April 11, 2011 at 6:08 am

Anti-IP Libertarian wrote, “So YOU see nothing wrong with going through the streets and LOOKING at all the property you can see there and hereby (after YOUR THEORY) stealing and pirating all day long?”

You know, you could at least pretend some familiarity with what I’ve actually written instead of making a fool of yourself by always attacking absurdities that are no part of my arguments and aren’t implied by them, or derivable from them, in the slightest.

Peter Surda April 11, 2011 at 6:53 am

Dear J. Neil Schulman,

so, if I see something, remember it and then talk or write about it, does it violate other people’s rights or not? If it does, then Anti-IP Libertarian is right. If not, then you need to abandon IP.

Stop running away and confront the arguments.

Peter Surda April 11, 2011 at 12:40 am

Dear J. Neil Schulman,

The anti-MCP advocates in this forum see nothing wrong with going into a Barnes and Noble store with their iPADs, going up to the children’s section, taking off the shelf a copy of The Berenstain Bears Get the Gimmes, using the iPAD’s camera to copy every page in the book, then shooting it out with Barnes and Noble’s security guards when they attempt to confiscate the iPAD.

Well, since all your examples do contain the use of B&N’s physical property, your argument it a non-sequitur.

I kindly ask you again, confront the contradiction and the non-sequiturs in your arguments. I also noticed that my question on your article you refer to made it through moderation, but you left it unanswered.

Beefcake the Mighty April 11, 2011 at 8:05 am

The fact that you feel the need to invoke such ludicrous scenarios suggests that you’re aware of how weak your position is. Peter and Stephan are showing you far more respect than you deserve.

J. Neil Schulman April 11, 2011 at 8:12 am

Yes, I must at all costs satisfy myself that I’ve lived up to the standards of someone self-identified as “Beefcake the Mighty.”

Beefcake the Mighty April 11, 2011 at 8:38 am

OK, good, we’re in agreement then.

Stephan Kinsella April 11, 2011 at 11:04 am

Beware, Neil, or Lord Buzungulus, Bringer of the Purple Light will be on your case next! :)

J. Neil Schulman April 10, 2011 at 4:40 pm

Stephan Kinsella wrote: “So some information is ownable. Some is not. What is the difference?”

See The Libertarian Case for IP at http://jneilschulman.rationalreview.com/2011/03/the-libertarian-case-for-ip/

DixieFlatline April 10, 2011 at 5:28 pm

Stephan Kinsella wrote, “You have a right to use knowledge and information you have, regardless of who created it.”

That is a perfect statement of the communist ethic.

It’s funny and a little sad you can’t see how ridiculous your calling such an obvious thing, “communist ethic”.

You’re arguing that you could have knowledge in your mind you have no right to use. You’re arguing that you do not have the right to use your mind freely, and you have the stones to call others communist. Your lack of self-awareness is fascinating.

J. Neil Schulman April 11, 2011 at 5:57 am

The argument that “you can have knowledge in your mind that you have no right to use” has never been any part of my logorights theory, which is not about claiming property rights in what’s in other people’s minds but rights in Media-Carried Property (MCP). Of course people sign Non-Disclosure Agreements all the time wherein they can have knowledge that they have no right to use. But, again, that has nothing whatsoever to do with the MCP rights.

Peter Surda April 11, 2011 at 6:40 am

Dear J. Neil Schulman,

But, again, that has nothing whatsoever to do with the MCP rights.

Exactly. Because the only thing MCP can do is to redistribute media (i.e. theft) or be redundant. Can you show me example where it doesn’t? You can’t. But you need it because otherwise your theory falls apart. Thus you continue to contradict yourself.

J. Neil Schulman April 10, 2011 at 7:05 pm

Stephan Kinsella wrote, “You’re arguing that you could have knowledge in your mind you have no right to use.”

But that’s not what you wrote before. You previously wrote, “You have a right to use knowledge and information you have, regardless of who created it.”

You just added the words “in your mind” which were not in your previous statement.

You can have and use whatever knowledge you want “in your mind.” That is not the issue, and you repeatedly resort to this straw man to avoid addressing the property rights in externally existing and observable things.

Stephan Kinsella April 10, 2011 at 8:04 pm

Stephan Kinsella wrote, “You’re arguing that you could have knowledge in your mind you have no right to use.”

But that’s not what you wrote before. You previously wrote, “You have a right to use knowledge and information you have, regardless of who created it.”

You just added the words “in your mind” which were not in your previous statement.

Well, this is redundant; how can you have knowledge that is not in your mind?

You can have and use whatever knowledge you want “in your mind.” That is not the issue, and you repeatedly resort to this straw man to avoid addressing the property rights in externally existing and observable things.

I cannot figure out why you focus on “observable” as some salient property of things that makes them ownable.

And how can you use knowledge that is not in your mind…. this is inconceivable.

J. Neil Schulman April 11, 2011 at 5:50 am

Stephan Kinsella wrote, “Well, this is redundant; how can you have knowledge that is not in your mind?”

The knowledge could be on a computer screen in front of your eyes, or in a book, just to give two examples.

“I cannot figure out why you focus on ‘observable’ as some salient property of things that makes them ownable.”

Because something being observable by more than one observer is one test of objective reality of a thing. Not necessarily the definitive test, or the only test. But it implies the real.

Peter Surda April 11, 2011 at 6:02 am

Dear J. Neil Schulman,

The knowledge could be on a computer screen in front of your eyes, or in a book, just to give two examples.

However, both examples are already covered by physical property rights, therefore IP needs to expropriate them or be redundant (if you are already the owner of the screen or the paper).

It would be really really great if you finally stopped running and answered the question.

Anti-IP Libertarian April 10, 2011 at 9:51 pm

If you are arguing for a CONSISTENT theory of “IP” (aka “logoright”) then you have to go all the way:

There can be no exceptions for certain types of information processing just because you want that this way without creating inconsistencies (it’s the same with the statutory “fair use”-clauses).

Either you state that EVERY information processing against the will of an owner of “logorighted” property is infringement, or none.

Your “theory” sounds like: It is only forbidden to steal something if you are going to sell it.

J. Neil Schulman April 11, 2011 at 6:04 am

All property rights are subject to rational boundaries and questions of what is and is not an infringement. If I put my foot on your car bumper to tie my shoe, is that a property rights violation as egregious as stealing your car? Is sticking a pizza card on your doorknob the same sort of invasion as breaking and entering?

Your all-or-nothing argument reduces to absurdity when applied to any property rights dispute.

Peter Surda April 11, 2011 at 6:49 am

Dear J. Neil Schulman,

All property rights are subject to rational boundaries and questions of what is and is not an infringement.

However, if there is no case where a right does not overlap with other rights, then the right is either contradictory to them or redundant. Just like, for example, right to a job, right to healthcare and IP.

Face the contradiction.

J. Neil Schulman April 10, 2011 at 7:08 pm

Zorg (the villain from The Fifth Element? — there’s some psychological visibility!) wrote, “It actually argues against your case since you MUST sell the story when you sell the carrier (since that’s the only way it exists for any of us) – UNLESS, of course, you have a contract with the buyer that says otherwise.”

So unless you have en explicit contract stating otherwise, when you set foot on someone else’s property you’ve sold yourself into slavery. Got it.

Zorg April 11, 2011 at 12:28 am

“Zorg (the villain from The Fifth Element? — there’s some psychological visibility!)”

Haha. No, just a happy coincidence. : )

“So unless you have en explicit contract stating otherwise, when you set foot on someone else’s property you’ve sold yourself into slavery. Got it.”

I have no idea how that relates to what I said. I have tried to stay away from using analogies to argue this. You should too since you’re not very good at it.

I was saying that in the absence of a contract, when you sell the book you are selling the story along with it. You cannot help but do this. It’s why people buy the book. It’s what gives the book value. To claim that you didn’t sell the story is just false. You keep selling it over and over again, and indeed expect to have a monopoly on the selling. The story is a necessary part of the book. It is the book. You can’t sell something and then claim you didn’t.

If you want to retain ownership, don’t sell. Selling means that you relinquish ownership of one thing in exchange for ownership of another (money). The blank media by itself is not what fetches a decent price for a book. You know that you are selling people the story. It’s no big mystery.

If there is confusion over the issue and you want to insist that you continue to have a right to control what happens after the sale, then by all means have people sign an agreement with you. That eliminates confusion, thereby solving the problem of disagreements concerning the rights involved. Shouldn’t this be considered as the most rational approach to the issue? Why refuse to spell out your rights and those of the buyer in clear English? Do you want an honest trade with the buyer or not? Do you want them to respect what you think is your right? Put it in writing, then they can choose to agree or not. Full disclosure. Tell them, “I am licensing this copy to you. You may not reproduce it. Agreed?” And you’re done.

J. Neil Schulman April 11, 2011 at 5:43 am

Zorg wrote, “If you want to retain ownership, don’t sell.”

When I make my created works available for use am very clear about not including the right to make copies without my permission. I retain all rights not specifically sold or licensed, and so state in all released versions of the work, clearly demarcating my property rights.

Peter Surda April 11, 2011 at 6:05 am

Dear J. Neil Schulman,

clearly demarcating my property rights

Your “demarcation” logically encroaches upon other people’s property, therefore is always theft or redundant.

J. Neil Schulman April 11, 2011 at 6:11 am

Peter Surda wrote, “Your “demarcation” logically encroaches upon other people’s property, therefore is always theft or redundant.”

Absurd as usual, AbSurda.

Peter Surda April 11, 2011 at 6:27 am

Dear J. Neil Schulman,

Absurd as usual, AbSurda.

As usual, you avoid to answer because by answering you would prove that you contradict yourself.

Zorg April 11, 2011 at 7:32 pm

“I retain all rights not specifically sold or licensed, and so state in all released versions of the work, clearly demarcating my property rights.”

I was talking about using a contract as a way to protect the rights you say you have and want to retain. Your position forces you to assert some sort of natural right, so you want to express it to readers in a copyright notice. That’s fine as far as it goes. But others don’t agree that you can sell something and not sell it at the same time – unless you have a contract which specifies what is being sold and what isn’t. (I know, it sounds crazy, doesn’t it?)

So if you say you are licensing the story to the reader but not actually selling it, why not have a licensing agreement? Isn’t this a reasonable way to resolve the issue? Under the rubric of contract, you can bind buyers of your book to an agreement not to copy or make available for copying, or whatever you can get agreement on. What’s wrong with that? It would go a long way toward binding the conscience of the buyers, which is what you want.
You want them to help you protect the work.

This actually addresses the problem as you see it. But in this case you are relying on your indisputable right as a sovereign individual to make agreements with those you do business with, rather than calling upon a dubious natural right to own the contents of the book even after selling it.

No one who is against IP can quarrel with this approach. A contract is for the purpose of spelling out the relationship between the two parties. In a contract, the parties are actually making their own law. To me this is more libertarian than trying to bind everyone in the world to your declaration that you retain ownership of that which you sell. Many people simply don’t see it that way, but get them to sign an agreement at the point of sale and at the very least you have put your stamp on their conscience.

Fresno Bob April 10, 2011 at 9:20 pm

One thing that has to be noted here is Kinsella’s continued, principled acknowledgment of Palmer’s good work on the anti-IP front. Apart from his work on this issue, Palmer is a true fiend who would never reciprocate the compliment and in fact regularly engages in smears against the Mises Institute (that is, when he’s not engaging in anal sex).

Anthony April 11, 2011 at 9:24 pm

I don’t know that that last bit is relevant… it certainly helps to bring down the standards here, though.

Peter Surda April 11, 2011 at 12:54 am

Dear J. Neil Schulman,

If a car drives from land onto a ferry, it is separated from the land, but it doesn’t cease to be a car.

But it also does not change the ownership of the ferry. It can only be on the ferry with the ferry owner’s permission, otherwise the car driver is trespassing. Since you’re claiming that it’s the copier rather than the book author that is trespassing when a copy is created, you have produced just another non-sequitur.

The only case where your objection might have real-world application would be if someone memorized a logos and at some future point reconstituted it onto an objectively perceivable medium.

That would invalidate practically all patents. Furthermore, what if I used manual labour to copy a book, such as rewriting it by hand? That matches your description, yet I doubt you would be so lenient in permitting it.

Face it, instead if confronting the contradiction, you make up more and more nonsense.

All IP (or “logorights”) is either theft or irrelevant. I’ll repeat this as long as you keep avoiding this.

J. Neil Schulman April 11, 2011 at 5:45 am

One of these days you’ll actually read The Libertarian Case for IP and won’t have to repeat asking questions I’ve already answered in full long before you got around to asking them.

Peter Surda April 11, 2011 at 6:11 am

Dear J. Neil Schulman,

I read it. It deals with the justification of IP, not with the logical incoherence thereof. Even if I agreed with everything you say there, you’d still be contradicting yourself.

Now, where is the answer? Nowhere. You don’t have it. You think that your ethics protects you from self-contradiction. It doesn’t. That’s just religious fanaticism.

Come on, stop hiding and face me.

J. Neil Schulman April 11, 2011 at 6:29 am

More clownish posturing by Peter abSurda.

Peter Surda April 11, 2011 at 7:13 am

And it would not be complete without more avoidance from J. Neil Schulman. I have reservations against calling people cowards unless they really earn it, so instead I’ll just say “told you so”.

J. Neil Schulman April 11, 2011 at 6:54 am

The implications of this debate inevitably extend not to the narrow discussion of “IP” but to all property. This will happen because at some point technology will more than likely enable Star Trek like transporters in which matter is disassembled then reassembled elsewhere and “material identity” will be the defining feature of all property; or because human beings will enter into virtual realities where, once again, no property has a physical presence other than “material identity.”

In fact, any truly advanced technological civilization, if it has property rights at all, will regard an original “sample” as the only property worth having, since everything else will be replicable.

So, now’s the time to stake out the defining propertarian position for the rest of economic destiny. If the Stephan Kinsellas do manage to wipe out what they call IP and I’ll now be calling MCP, the future will eventually be one with no property rights at all.

ESV April 11, 2011 at 10:13 am

J. Neil Schulman wrote, “If the Stephan Kinsellas do manage to wipe out what they call IP and I’ll now be calling MCP, the future will eventually be one with no property rights at all.”

The transporter/replicator machine itself is subject to property rights regarding physical objects that we all agree on. So to is the matter/material/feedstock that these machines use to assemble copies. The assembled object is, too. The operator/programmer/owner of the machine would assert property rights over their own body.

How does it follow that, in the world we are imagining here, no IP/MCP means no property rights?

Stephan Kinsella April 11, 2011 at 10:55 am

Because Neil is so imbued with the mistakes of Rand and others–the IP mindset, the weird labor theory of value idea that you own your labor and you own the value of things you create, the idea that hates when people learn things from others and use it in their own plans and actions–that to him, the idea of a world of replicators, where people could creates real physical goods at will–clothes, food, shelter, toys, games, equipment, homes, cars–instead of rejoicing at this huge step towards utopia, he is bothered that A might make a car that looks like one B designed; ther’es all this copying and emulating going on! Horrors! We would rejoice; he panics. It’s like Mencken’s description of the Puritanism as “the haunting fear that someone, somewhere, may be happy.” IP is the haunting fear that someone, somewhere, may be doing something similar to you with their own property.

Stephan Kinsella April 11, 2011 at 10:49 am

Neil:

The implications of this debate inevitably extend not to the narrow discussion of “IP” but to all property. This will happen because at some point technology will more than likely enable Star Trek like transporters in which matter is disassembled then reassembled elsewhere and “material identity” will be the defining feature of all property; or because human beings will enter into virtual realities where, once again, no property has a physical presence other than “material identity.”

Exactly, and if you have your way your IP rights will then be used to attack people’s use of 3D printers, and so on — see http://c4sif.org/2011/03/white-paper-on-3d-printing-and-the-law-the-coming-copyfight/

What happened is this, Neil. The state and church used their power to censor speech when the printing press started threatening their scribe-controlling monopoly on ideas. This morphed into copyright law due to bad economics and rent-seeking by publishers etc. The state also granted monopolies to gain loyalty and reward sycophants; this morphed into patents due to bad economics and confusion about property rights.

Patent and copyright harm human life, but esp. for copyright the effects were not too great until 1990s when the Internet arose. Before then a book was always on a physical medium, so copyright law’s effect was fairly muted and int the background. With the liberation of information from physical media the effects of copyright started to be multipled. People started taking notice. It is more obviulsy evil now and that is why we are winning and you are losing.

And your side will surely push to stifle 3D printers and replicators if they ever become practical, in the name of IP. And thus gradually your belief in property rights in scarce goods will be gradually supplanted by your worship of property rights in ideal objects, gradually crowding out all property rights and killing the human race.

In fact, any truly advanced technological civilization, if it has property rights at all, will regard an original “sample” as the only property worth having, since everything else will be replicable.

This is ridiculous. It would be a boon to civilization if people could push a button on their 3D printer and have it create a car or mansion or food or clothes. Who cares if it resembles yours? I imagine in a real libertarian society there would be competition to be the most-imitated. People would brag, “yeah, I designed this table, and I have gotten 75 million ‘hits’ on facebook’s 3d printer sharing section. oh yeah, baby, people see how good I am.”

So, now’s the time to stake out the defining propertarian position for the rest of economic destiny. If the Stephan Kinsellas do manage to wipe out what they call IP and I’ll now be calling MCP, the future will eventually be one with no property rights at all.

In a world where we live in some hybrid internet space and have replicators and 3d printers etc., the proliferation of information and the sharability of computer programs will be a boon to society. Your system would do all it could to restrict the flow of information and the use of ideas.

Now you have morphed to MCP. Obviously you, like every other libertarian IP advocate I have encountered, don’t have a coherent system worked out. You say you oppose state IP law. Yet you don’t want to abolish it. when we ask what will replace it, you don’t know. At least you are working on it. Let me konw when you finally figure out the contours of this anti-Lockean system you want to foist on humanity.

Stephan Kinsella April 11, 2011 at 2:39 pm

See Neil Gershenfeld: The beckoning promise of personal fabrication — enough to make an IP monomaniac run screaming for the hills.

J. Neil Schulman April 11, 2011 at 2:55 pm

“Exactly, and if you have your way your IP rights will then be used to attack people’s use of 3D printers, and so on.”

Just like with a 2D printer, you have the right to use your 3D printer to make or make copies of things you own or have licensed.

Stephan Kinsella April 11, 2011 at 3:34 pm

Exactly–you view us as living by permission, not by right. We have to get permission for every thing we do with our property. Horrible. Totalitarian.

I don’t need to “own” something to copy it. If I have heard of the idea of an airplane and can construct one with my own materials, I only need own them, not “the idea of an airplane”. Where do you get this? This is insane.

J. Neil Schulman April 11, 2011 at 5:05 pm

Stephan Kinsella wrote, “Exactly–you view us as living by permission, not by right. We have to get permission for every thing we do with our property. Horrible. Totalitarian. I don’t need to “own” something to copy it. If I have heard of the idea of an airplane and can construct one with my own materials, I only need own them, not “the idea of an airplane”. Where do you get this? This is insane.”

You have the right to live using your own property. You need permission to use someone else’s. That’s libertarianism, not totalitarianism.

My argument is and has always been a defense of owning things, not ideas. You have an original idea for how to fly, fly. But just because you can look into a candy store window doesn’t transfer title of the candy to you. You want to use what someone else has created then buy the right from them or live within the means of your own innate genius. Your needs are not a claim on the property of others. That is totalitarianism. That is communism. That is not libertarian no matter how many infantile tantrums you throw.

nate-m April 11, 2011 at 5:18 pm

But just because you can look into a candy store window doesn’t transfer title of the candy to you.

If you buy that piece of candy and then examine how it was created or you learn from a third party how it was created then you can make as much candy as you want.

According to your view of property this would be a horrific violence against the confectioner.

ESV April 11, 2011 at 5:31 pm

Imagine that I walk by the candy store and see, in the window, peppermint swirl candies (e.g., Brach’s Star Brites) on display for sale. I’ve never seen these before, but, because I know a little about making confections, I can guess, discern, or mentally “reverse engineer” how to make a peppermint swirl.

Could the maker of those candies claim a logoright on the design or construction of the candies?

If I go home and make peppermint swirls myself, using ingredients that I own, for my own private consumption, am I doing something wrong?

If I make them exactly as above and then sell them (thereby competing with the original seller), am I doing something wrong? Even if I use my own name, brand markings, etc.?

I realize that this is a very simple case. The complexity of a peppermint swirl is tiny compared to a novel. However, it seems like there must be some lower limit to the complexity that IP/MCP protects, lest we end up in the “Ug the First” situation. If a peppermint swirl is too low, could you explain what the lower limit of MCP complexity is, and give an example?

nate-m April 11, 2011 at 5:39 pm

Could the maker of those candies claim a logoright on the design or construction of the candies?

Yes. They if they the creator of the idea of the peppermint swirl then you would be violating their rights by making your own.

If I go home and make peppermint swirls myself, using ingredients that I own, for my own private consumption, am I doing something wrong?

Your engaging in violent theft if you do that.

At least according to Neil. If you were not a communist you would first have to go and get permission from the cook in order to sell copies of his candies.

Wildberry April 11, 2011 at 7:21 pm

@ESV April 11, 2011 at 5:31 pm

People seem to get pissed around here when I refer to the law as the basis to establish some principle or other. Are you one of those? You don’t object if I refer to the dictionary to define a term, do you?

Assuming not, in the case of copyrights there is a lower limit; for example ideas, facts, formulas, short slogans and phrases are not protectable. They are and remain in the public domain, meaning no one and everyone owns them equally. Also in that domain are works that may have been protectable, but have expired; once in the public domain, always there. This is how public domain information accumulates over time, and why Shakespeare’s plays are in the public domain, even if they were written today, they could be copyrighted. This is below the threshold of “protected works”.

In the specific case of a literary work, unless an author meets the threshold of “original work of authorship”, the work is not protectable and remains below the threshold. Copy right requires, much as I understand the theory of logos to require, some actual intellectual endeavor on the part of the author, including some measure of creativity. A list of names in a phonebook is not protectable, because it lacks the creative element associated with authorship. A literary work is above the threshold. If you’ve ever read a book, then you know what I mean when I say that a literary work is like pornography; it is hard to describe, but you know it when you see it. Beyond a certain level of complexity, I don’t think any rational person would have difficulty understanding that it is above some threshold that makes it “an original work of authorship”.

You are specifically referring to a recipe, which is not protectable as a copyright, but might be under trade secret. But trade secrets can be reverse-engineered with no problem, so in your example, buying candy and reverse engineering it and making your own and opening a shop next door is not an issue for IP.

Think of the economics of a recipe. It turns out it is harder than most people think to make candy, and most people will just buy candy when they want it and buy it from somewhere that makes what they like. Everyone CAN make candy, but it is not trivial to make it come out exactly like that in the store. This creates a high threshold of “pain” in the make/buy decision, and so most people will buy it, and use their time elsewhere.

Likewise, a book is much easier to read than it is to write. It is easier to copy than to read. Although a book can be easily copied with currently available, cheap technology, copyrights prohibit that, except for certain uses, while this is not the case for a recipe, where copying is not prohibited. What is the difference between a book and a recipe?

Tucker wrote a daily about how “ideas are free” based on this very concept, the inexhaustibility of ideas and recipes. He came up with a “magic bagel” that could be copied magically. He concludes that if it is easy to copy, then it must be free, like his magic bagel. But of course in our world, there is no magic bagel. You have to actually mix dough, roll them and bake them in an oven. Actual work is involved. As a consumer of bagels, you make or buy, you can’t just copy.

Here is the way I look at it. In economic terms candy is a consumer product. The producer goods for candy is a kitchen, oven, and ingredients, and a recipe. Two people who have the same recipe and attempt to make an exact copy of the candy in the window, may be able to come close, in a very controlled and similar kitchen and oven, and with the same levels of skill as the original confectioner.

The original confectioner has an advantage if he has kept his recipe secret. If you want it, you have to reverse-engineer his process. That set of facts makes trade secret laws adequate to prevent the confectioner from being forced to produce for external markets. It is not that easy to copy his results, and if you do, you compete on other grounds not related to the candy, like location, presentation, etc. There is no “candy tools and die” that allows you to skip the “making candy part”, and go right to the “having candy part”. Just like in farming, you can’t skip the plowing and planting and skip right to the harvest.

Keeping with the production analogy, the author must first create an original manuscript. The production effort and resources that go into that effort is his capital costs of tooling and producing the first prototype. That original manuscript is in fact also a producer good, much like a tool die, which makes the marginal cost of additional copies very low, once you have the original manuscript “producer good” to make it from. Each copy that is produced as a consumer good is also a producer good, because it can serve as the “die” to make additional copies, without having to duplicate the effort and expense that the author expended to produce the original manuscript.

If you assert that when you buy a book, you are buying a producer good and not a consumer good, then you are asserting by analogy that when you buy candy, you are also own the kitchen and the recipe. In reality, you buy candy, which you consume. If you want to MAKE candy, you have to be prepared to invest in the candy-making enterprise. That is likely to be quite a bit more expensive that the nickel you pay for the candy.

Under copyright, the author licenses the consumer good, but not the producer good. Sale of a book is a limited license to consume the product, not to own the book “kitchen”.

If you assert that you DO own the “kitchen”, then you create a conflict, a rivalry between yourself and the author, and both will attempt to defend their rights. The pro-IP argument is that you bought the candy, not the kitchen. The anti-IP argument is that when you sell me candy, you sell me the kitchen.

J. Neil Schulman April 11, 2011 at 9:11 pm

Nate-M wrote, “If you buy that piece of candy and then examine how it was created or you learn from a third party how it was created then you can make as much candy as you want. According to your view of property this would be a horrific violence against the confectioner. ”

Wrong. I’ve never made such a claim regarding candy or candy recipes.

But if you examine Alongside Night or learn from a third party how it was created, that doesn’t make you its author or entitled you to his rights of authorship.

J. Neil Schulman April 11, 2011 at 9:13 pm

ESV,

Sell copies of Alongside Night as your own and tell people you “reverse engineered” it. I dare you. I double dare you.

Stephan Kinsella April 11, 2011 at 9:29 pm

Neil:

Just like with a 2D printer, you have the right to use your 3D printer to make or make copies of things you own or have licensed.

Why do I need to “own” something to copy it, Neil?

I only need to own something–or have permission of the owner–to USE it. For example I cannot kiss you or drive your car without your permission. These are uses of things you own.

But if I see you drive a car, I am free to make a replica with my own property. How is this a “use” of your car, Neil? For this is what you are implying.

Stephan Kinsella wrote, “Exactly–you view us as living by permission, not by right. We have to get permission for every thing we do with our property. Horrible. Totalitarian. I don’t need to “own” something to copy it. If I have heard of the idea of an airplane and can construct one with my own materials, I only need own them, not “the idea of an airplane”. Where do you get this? This is insane.”

You have the right to live using your own property. You need permission to use someone else’s. That’s libertarianism, not totalitarianism.

Using information and knowledge to decide how to use my own property is not using your property, Neil.

“My argument is and has always been a defense of owning things, not ideas. You have an original idea for how to fly, fly. But just because you can look into a candy store window doesn’t transfer title of the candy to you.”

Correct but I don’t need title to the candy to go home and make my own, using information I learned from seeing your candy in the store window. Capice?

You want to use what someone else has created then buy the right from them or live within the means of your own innate genius. Your needs are not a claim on the property of others.

When I duplicate some feature of your property in my own, I am not using your property. That’s why I don’t need your permission. How can you fail to grasp this? there is no way to distinguish what you want to prohibit from learning in general.

nate-m April 12, 2011 at 12:39 am

Wrong. I’ve never made such a claim regarding candy or candy recipes.

So your concept of IP only extends to literary work? Cooks and engineers do not have any of the same ‘rights’ that authors and comedians enjoy, apparently.

But if you examine Alongside Night or learn from a third party how it was created, that doesn’t make you its author or entitled you to his rights of authorship

Obviously it doesn’t make you the original author. Not anymore then following a recipe for food makes me the guy that created the recipe.

There does not seem to be any point here.

J. Neil Schulman April 11, 2011 at 3:23 pm

The question of what replaces statist law and regulation applies to every aspect of libertarian theory, not just replacing statist copyright and patent laws with natural-rights implementation of MCP.

I’ve already said that for now I’d be happy if libertarians abide by property rights in MCP of authors and inventors whose works they find valuable, with no enforcement other than social preferencing.

And yes — to preclude your having to search through messages where I refer to using guns to enforce my property rights — I’m using extreme and overblown language to give my arguments rhetorical impact. I’m both a dramatist and a comedy writer; it comes with the turf.

Zorg April 11, 2011 at 7:51 pm

“I’ve already said that for now I’d be happy if libertarians abide by property rights in MCP of authors and inventors whose works they find valuable, with no enforcement other than social preferencing.”

That’s great, but it weakens your argument. You want us to believe that your rights are being violated and your property is being stolen, but you’re fine with abandoning enforcement?

It doesn’t jibe.

Peter Surda April 11, 2011 at 7:33 am

Dear J. Neil Schulman,

This will happen because at some point technology will more than likely enable Star Trek like transporters in which matter is disassembled then reassembled elsewhere and “material identity” will be the defining feature of all property; or because human beings will enter into virtual realities where, once again, no property has a physical presence other than “material identity.”

You forget that in Star Trek there were not only transporters but replicators as well. They even were based on the same principles. They just made up some technobabble to explain why you can’t replicate living creatures. But even that was not entirely correct, there was an episode where a transporter accident created two Will Rikers. According your self-contradictory theory, that would actually only be one Will Riker with two bodies.

Who’s absurd now?

J. Neil Schulman April 11, 2011 at 3:08 pm

One of the defects of this form of discussion is that volume tends to win, irrespective of whether a response is new, on point, makes sense, and so forth.

One of the tactics of those who participate is always to claim victory, always to claim that their nonsensical challenges have never been answered, and to taunt anyone who fails to respond to even a single one of their comments.

This is a strategy not of argument but of filibuster.

Peter Surda, you have asked no real or understandable questions that I have not fully and adequately answered. I don’t know whether your thinking process is too compromised by nonsense to understand the answers, or whether content plays no part in your participation here and you get satisfaction merely by seeing your name on the screen.

Either way, let me state for the record that I do not consider you a serious participant in this discussion. My bona fides are well known; I know nothing about you that leads me to believe you have any intellectual authority on this topic. Your infantile taunts, added to your incomprehensibility of reason and writing, give a strong indication that you don’t.

There’s an old saw about rolling around in the mud with pigs. It gets you dirty and the pig enjoys it.

Enjoy the mudbath. You’re unworthy of my time and I’m ignoring your tactic of filibustering nonsense from now on.

Peter Surda April 12, 2011 at 12:24 am

Dear J. Neil Schulman,

Either way, let me state for the record that I do not consider you a serious participant in this discussion.

The feeling is mutual, but unlike you I’m not making up excuses to run away.

Your infantile taunts, added to your incomprehensibility of reason and writing, give a strong indication that you don’t.

You’re a religious fanatic who thinks that emotions beat logic. Your choice, not my problem.

Beefcake the Mighty April 12, 2011 at 12:30 pm

I’ll say it again, Peter: you and Stephan have shown this fool far, far more respect than he deserves.

sweatervest April 12, 2011 at 5:33 pm

Agreed. Schulmann’s latest response to Peter is the kind of childish ad hominem I expect from a die-hard liberal (yes I know that is itself a kind of ad hominem, I hope you all call appreciate the humor!).

I see this very often where I dare to bring libertarian ideas to people who want nothing to do with them. Instead of debating what I say, they start giving me therapy sessions where they’re gonna “figure out” why I would think the ridiculous things I think.

Peter Surda April 12, 2011 at 12:49 pm

Dear J. Neil Schulman,

I just realised what you said:

you have asked no real or understandable questions that I have not fully and adequately answered.

If your approach was genuine, you would have asked for a clarification upon not understanding a question. I do that all the time. However, you did not ask, you just made up an excuse for not answering it. Obviously, you are not interested in a debate.

Let me ask you this: if you claim to have the moral upper ground, are you permitted to contradict yourself?

Sione April 11, 2011 at 4:58 pm

Neil

You are such a comedian! Not a very good one though. Then again, filth is not really very funny.

Sione

Zorg April 11, 2011 at 8:33 pm

Wildberry wrote:

“If you assert that when you buy a book, you are buying a producer good and not a consumer good, then you are asserting by analogy that when you buy candy, you are also own the kitchen and the recipe.”

No. The author sells the story when he sells the book. When I buy the book, all I have is the story. The medium of paper and ink is irrelevant. I can show that it is irrelevant by copying the words of the book onto a digital medium and then burning the book. The story survives. It’s the substance of what I bought. I bought Casablanca – which consists of what, paper and ink? No, it consists of the entire pattern of words therein which *are* Casablanca.

If authors wish to bind buyers of books to a licensing agreement where rights and duties are spelled out in clear language, then they ought to do that. The fact that they don’t do this is telling.

Authors and inventors are merely capitalizing upon an old system of privilege in the law. They are not relying upon normal business practices such as contracts which spell out the rights of each party. That much is clear.

“Under copyright, the author licenses the consumer good, but not the producer good. Sale of a book is a limited license to consume the product, not to own the book “kitchen”.”

Where is the licensing agreement?

“If you assert that you DO own the “kitchen”, then you create a conflict, a rivalry between yourself and the author”

Great. Let’s go to court:

1) The author sold it to me for cash.

2) It is in my sole possession.

3) I can freely use, alter or destroy it.

4) There is no contract whatsoever that says otherwise.

“But, but, but…..”

Wildberry April 11, 2011 at 11:05 pm

@Zorg April 11, 2011 at 8:33 pm

The medium of paper and ink is irrelevant. I can show that it is irrelevant by copying the words of the book onto a digital medium and then burning the book. The story survives. It’s the substance of what I bought. I bought Casablanca – which consists of what, paper and ink? No, it consists of the entire pattern of words therein which *are* Casablanca.

OK this part I like. You are admitting at least, that there is a “work” there.

If authors wish to bind buyers of books to a licensing agreement where rights and duties are spelled out in clear language, then they ought to do that. The fact that they don’t do this is telling.

This puzzles me. There is no alternative to copyrights currently operating in the market, so I would presume the author transferred under the conditions of existing copyright law, in which case no such additional agreement is necessary. If you are assuming that it is transferred in an absence of copyrights, then maybe the author would make a special contract, and maybe books would $1000, and maybe lots of stuff. You cannot assume availability under copyrights, and then blame the author for acting as if there is no such thing…right?

Authors and inventors are merely capitalizing upon an old system of privilege in the law.

ou mean, authors and inventors are engaging in market operation under the rules in existence affecting that trade. If you are going to assume some other condition, you are going to have to speculate about how books find their way into your hands as a consumer. I don’t know what that might be (and neither do you) but it certainly would operate differently that it does today. I think you would have to spell that out.

Where is the licensing agreement?

It is called copyrights. If you are hypothesizing about a world without copyrights, tell me how the author suddenly no longer cares about enforcing his rights to his own property?

1) The author sold it to me for cash.

OK what is it and what were the conditions of the sale? I see you bought some candy. What makes you think you own the kitchen?

2) It is in my sole possession.

Fine. Eat the candy and read the book. That is what your possess, a book that you can read.

3) I can freely use, alter or destroy it.

You can read it, mark it up, or destroy it. You cannot copy and distribute it. That is a limitation on your right to use it how you wish. Otherwise, you are good to go.

If you buy candy from me, you can eat it, fondle it, or stick it up your nose. You cannot come into my kitchen and make some more whenever you feel like it. That’s mine.

4) There is no contract whatsoever that says otherwise.

No, there is copyright law. Also, there is no contract required to keep you out of my kitchen, even if you buy some candy. That is the way property rights work; you don’ t need a contract to enforce them.

Zorg April 11, 2011 at 11:39 pm

I asked you where the licensing agreement was because you said the author licenses the story to the buyer, and you respond with, “It’s called copyrights.” Thanks for clearing that up, because I almost got confused and thought that there was no licensing agreement.

Your responses all refer to and are based on existing copyright law. We are not discussing copyright law, so you leave me with nothing relevant to respond to. You simply dodged the questions.

Wildberry April 12, 2011 at 7:37 am

@Zorg April 11, 2011 at 11:39 pm

What do you mean, where is it? You created a hypothetical situation in which you assume you receive a book without a contract limiting use.

If you assume copyrights exist, why would you want to find one? If you assume it does not exist, what would prevent the author for making you sign one as an alternative to copyrights?

No matter what you think might happen that gets you the right to copy an author’s work, it is most likely that an author will either find a way to protect his property, or forego writing it in the first place.

I don’ t know there is a response. What other alternative do you think exists?

Zorg April 12, 2011 at 11:47 am

I am asking you: Is there is a licensing agreement between author and buyer?

I did not create any hypotheticals. You said authors license buyers. So I asked you where the licensing agreement was.

Wildberry April 12, 2011 at 1:36 pm

@ Zorg April 12, 2011 at 11:47 am

How do I know? You invented the hypothetical.

“license” is a concept of transfering a right to limited use. It MAY be done by contract, or it may be done by operation of law. It makes no difference. What is your point?

J. Neil Schulman April 11, 2011 at 9:26 pm

Neil wrote: “I wrote Alongside Night and own what I wrote.”

Stephan Kinsella replied, “No you don’t. Information is not ownable.”

There is it, about as bald a communist anti-propertarian, anti-individual rights, and anti-libertarian claim as has ever been made.

With this statement Stephan Kinsella has definitively proved himself not a libertarian.

Redguy April 11, 2011 at 9:52 pm

Schulman: Information is not property, not a scarce good. Copying it does not destroy the original, does not take away from the seller of the book the seller’s property. IP law however does arbitrarily infringe upon the buyer’s use of his own property. If someone were to copy a novel and represent it as their own writing I would believe that to be punishable as fraud but nothing else.
Property as understood by libertarian thinking does not include non-scarce goods.

J. Neil Schulman April 11, 2011 at 10:39 pm

Gee, I’ve never thought of that before! You’ve convinced me! *snort*

Steve Reed April 12, 2011 at 4:10 am

You quote a single line and say Kinsella has “proved himself not a libertarian.” Kinsella has, by that line, “proved” nothing. You have “proved” nothing.

Citing a single line like this is not an argument, but an informal fallacy I call a “trap door.” When someone says it, that person is evicted from the realm of the argument, and is not to be taken seriously, as if he’s suddenly vanished from the rhetorical stage upon pulling a lever.

That is not rational discussion, Neil, with adducing of arguments and evidence, it’s an attempt to create a substitute for it. It belongs in the realm of propaganda and emotionally driven persuasion, not in that of argument.

Randians (though rarely Rand herself) have been fond of this for decades, back at least to Barbara Branden saying about the poor, “If you want to help them, you will not be stopped.” Bon mots can rivet attention and win over a crowd. They neither disqualify an opponent nor constitute — let alone win — an argument.

I’m tired of trap doors being activated. As this and a hundred other IP discussions (closer than, say, Facebook to genuine venues for argument) show, this issue is highly intricate. Kinsella is adducing issues and implications of homesteading and the nature of property that deserve proper attention, with respect for his libertarian framework, and not mere dismissal in a few aphorisms (or “snort”s) from EasyChairman Neil.

J. Neil Schulman April 12, 2011 at 1:55 pm

Steve, is the defendant’s statement “Yes I killed her” enough for a conviction in a murder trial?

Stephan Kinsella’s statement, “No you don’t” to my statement that I own Alongside Night is sufficient to identity him as an opponent of my property right in the unique thing I made, and not a libertarian, which is always in all cases a proponent of individual property rights.

Stephan Kinsella April 12, 2011 at 2:30 pm

“unique thingness” is now enough for ownability. Hunh?

So here are people who are enemies of property rights, commies, unlibertarian, in addition to moi: Rothbard, Benjamin Tucker, Wendy McElroy, Tom Palmer, Roderick Long, Sheldon Richman, Jeff Tucker, Hans-Hermann Hoppe, and a most other libertarians!

He acts as if we just made up this scarcity thing. IT’s old! E.g.:

Benjamin Tucker, 1890s (see McElroy’s “Contra Copyright, Again”)

J. Neil Schulman April 12, 2011 at 8:34 pm

“But the answer here that I prefer to give is: if this logos is so damned unlimited as not to be an economic object — then why do you want to reproduce mine? The limits on this kind of good are not drawn by its infinite ability to replicate itself, which is a way in which the logos is not limited. However, just as property rights in the radio spectrum are not limited by area but by amplitude and frequency, the limits on logoright are not to be found in its ability to be infinitely reproduced, but in the finite identity to be exploited for its qualities and traits that distinguish any given logos from any other logos. In terms used by economists, when defining the scarcity of a logos we must look to limits of horizontal competition between different kinds of goods, rather than to the limits of vertical competition within a kind of good.”
–The Libertarian Case for IP

Peter Surda April 13, 2011 at 2:03 am

Dear J. Neil Schulman,

even though it sounds repetitive, I have to say that your claim is a non-sequitur. The metaphysical justification of IP, even if true, does not fix the logical errors in the property rights theory that you build upon it. Then there is also of course the other problem I’ve been mentioning, the incoherence: you have not been able to define logos in a coherent manner. Some logos are relevant for property rights, some are not. Sometimes they are not relevant, sometimes they are. Looking at things is ok, but photographing them not. Copying them for educational and comedic purposes is, but without it isn’t. What if I earn money by teaching or am a stand up comedian? You provide no answer.

Make up your mind. Either you prefer emotions and then don’t pretend to argue, or you prefer logic and then stop running away.

sweatervest April 12, 2011 at 5:44 pm

“There is it, about as bald a communist anti-propertarian, anti-individual rights, and anti-libertarian claim as has ever been made.”

There it is. Your comprehension skills are either so shot you actually think an attempt to reconsider and refine the boundary between ownable and not ownable means we are throwing out the concept of ownable entirely, or you are well-trained in sophistry and are constructing a straw man to make you feel better about your own ill-conceived creation-based approach to property.

Either way, your schoolyard debating tactics won’t work on people here, and that’s why I like this institute. Take your tantrum-throwing up to Washington D.C. I promise you’ll have more of an effect on those people than anyone here.

This “communist” charge is one of the dumbest things I have ever heard, and Tom Woods needs to add it to the list of “zombie words”. Apparently you would be running around calling all the abolitionists during the 19th Century “communists” because they were suggesting that no one can own another persons’s body. And of course by claiming other peoples’ bodies can never be property, those people are rejecting private property all together and might as well have joined up with the Bolshevists.

How bout I just call you a fascist dictator for thinking that because you wrote some book and I stumble across a copy of it on the internet, I need to run and ask you if I’m allowed to download it onto my computer.

For the record, I am musician and have been my entire life. I compose and produce and have plenty of material by this point. As a fellow author, I can vouch for how tyrannical and insane it is that you think as soon as you put together some piece of art you become the sole decider on how everyone else is to enjoy that art. It was being forced to think about this in terms of the music I write that first made me abandon all this nonsense.

And I am well aware that letting go of these bizarre insistences will only make it far easier for me to make a career out of making music. You’re shooting yourself in the foot. I’ll definitely never read your book because I have to pay for it, but I might have read it if I could get it for free. That goes for lots of other people, some of whom may be interested in paying you to write more stuff to be turned into plays and shown at theaters to make theater owners money. Go ahead and stamp your foot and say you own your book. You’re dooming it to obscurity and a couple hundred years for now you can be sure no one is even aware of your book, thanks to your insistence to make people pay to see it.

Enough with the “communist” crap. Grow the f*ck up or go hang out in a elementary school playground where you can argue with people on your own level.

Matthew Swaringen April 12, 2011 at 6:00 pm

You can get the book for free from the website: http://www.alongsidenight.com/

Peter Surda April 12, 2011 at 4:29 am

“Reason is not automatic. Those who deny it cannot be conquered by it.”

Ayn Rand

J. Neil Schulman April 12, 2011 at 5:46 am

Nate-M wrote, “Obviously it doesn’t make you the original author.”

Okay, boychick. If not me, who is the author of Alongside Night?

DixieFlatline April 12, 2011 at 10:18 am

JNS,

You have repeatedly insulted many people here but you haven’t defended your logic at all. What purpose does calling someone “boychick” provide? You’re able to be condescending. Big deal. If you really wanted to impress us, defend your arguments. Name calling without substance is just cheap tricks.

I don’t see how you’re a victim to volume, because if you had substantively answered one or two of the early queries about the logic behind your position, this discussion might already be over.

J. Neil Schulman April 12, 2011 at 2:35 pm

Count up the number of messages I’ve posted in this forum, alone, added to three decades of writing on this topic. You demand a full argument? Read The Libertarian Case for IP at http://jneilschulman.rationalreview.com/2011/03/the-libertarian-case-for-ip/ and MCP at
http://jneilschulman.rationalreview.com/2011/04/mcp/

“I don’t see how you’re a victim to volume, because if you had substantively answered one or two of the early queries about the logic behind your position, this discussion might already be over.”

This thread was started on April 1; my first comment is April 2.

Early enough for you, boychick?

DixieFlatline April 12, 2011 at 6:34 pm

JNS,

First, calling me boychick merely reinforces my argument and undermines your reputation. I’ll address that in more detail later.

Second, I never questioned how much material you have generated. By all accounts, you are a prolific writer. I and others are questioning the quality of your argument.

Third, you may have responded early to this thread, but you have for dozens of posts now, dodged answering any specific questions about your position, specifically those that refer to contradictions or logical issues.

You continue to link to your material, yet you have also continued to avoid addressing very polite and plain questions. I won’t assume motive, but we can certainly judge action. When confronted by this, you resort to petty name calling and more avoidance, which serves to make your position look indefensible as I don’t think it actually hurts anyone’s feelings, which is what I guess you were trying to achieve by being so personal when challenged.

Perhaps that is a consequence of your esteem, some hangup which prevents you from engaging in introspection and critical analysis of your position on IP. It’s a shame. I haven’t read your novel, but by all accounts you were at one time an important libertarian hero. Now you seem to be just another bitter guy on blogs, striking out personally at anyone who questions your opinion.

Why write or respond if you’re not going to be responsive to the discourse? There are other sites and mediums if your goal is to treat people badly and avoid any serious discussion. At least for your sake, do it under a pseudonym, so your previous work and reputation aren’t tarnished by this bizarre mode of internet self-immolation.

sweatervest April 12, 2011 at 5:47 pm

This has nothing to do with authorship. If you are claiming that it should be illegal for me to announce that I wrote something, then congrats. You’ve entered the realm of denying free speech.

Making copies has absolutely nothing to do with who anyone thinks the actual author was. This is entirely off-topic from an IP discussion and belongs in a discussion about the legitimacy of laws that curtail free speech, like libel and slander. Plagiarism has absolutely nothing to do with IP.

Nick Wernicke April 12, 2011 at 7:39 am

Even if we choose not to believe something that is objectively true does not mean that we won’t end up altering our lives and business to deal with it. Perhaps the surest sign of the ‘true reality’ is the observation of how people are adapting to it. I might not believe in things I cannot directly see, for example, UV rays from the sun. But I can observe that I get an undesirable sunburn if I don’t use sunscreen.

I cite the changes observed over the last decade in various industries, like the video game industry, the music industry, the movie industry, television (or broadcasting generally), and others, as evidence that the true nature of the ownership of physical property rights is different than what we believed when intellectual property was more strongly tied to some physical medium.

Video games have shifted away from trying to compete with the raw distribution capability of piracy networks to offering gaming content on a much more epic scale a la MMORPG’s and providing services where gamers can interact with each other, rather than simply consume the content written on a data cd.

The music industry has discovered that the time it takes to search for a quality pirated version of a song is clearly worth more to many people that the 99 cents it takes to get that song instantly on I-Tunes. Also, for those who are to cheap and lazy for I-Tunes or piracy (me), Grooveshark is free to use on your computer. Apparently it still generates enough money to keep the servers on, and the record companies happy.

The movie and broadcast industries are changing too.

It seems we are undergoing a transition from a decades long system (1950-200?) where IP producers could reap enormous and long lasting rewards from a relatively short period of work (thanks to artificial scarcity imposed by IP law), to a system where IP producers must produce constantly (like their blue collar brethren) in order to stay relevant. (I don’t mean to sound too populist there- I don’t think this is a communist vs capitalist argument).

It doesn’t surprise me that music artists who produced their greatest records in the 1980′s are fighting bitterly to maintain millions of dollars per year in royalties. What does surprise me is that companies known for constantly innovating amazing new things would get into multi-million dollar battles over who invented the ‘swipe’ feature on a freaking cell phone!

Zorg April 12, 2011 at 2:51 pm

Wildberry wrote:

“How do I know? You invented the hypothetical. “license” is a concept of transfering a right to limited use. It MAY be done by contract, or it may be done by operation of law. It makes no difference. What is your point?”

What hypothetical did I invent? You either have an agreement with someone or you don’t.
You are now actually saying that a state law is an agreement between two people? You can say that an author licenses a story to a reader because the state says so? Then why are you here arguing? What’s to argue? Whatever the state says is all you ever need to know about anything. If they say blacks are slaves, then blacks have obviously agreed to be licensed to slave masters. If anyone asks where the agreement is, you point to state law that says blacks are property.
Because no one needs agreements in order to protect their property, right?

Stop with the ridiculous question-begging and just defend your position with logic. You remind me of the attorney in Miracle on 34th Street who proves that the defendant is Santa Claus because the USPS delivers mail to him addressed to Santa! : )

Wildberry April 12, 2011 at 5:25 pm

No offense intended…

Wildberry April 12, 2011 at 4:26 pm

@Zorg April 12, 2011 at 2:51 pm

Look, dufus, you said this, right?

So if you say you are licensing the story to the reader but not actually selling it, why not have a licensing agreement?

If limited right to use is specified under the copyright law that was a condition of the transfer, why would I ALSO need a separate contract redundant to those rights already established?

If you are HYPOTHSIZING that copyrights do not exist, then there is NO REASON that a contract could NOT be used to establish these limited use rights as a condition of transfer. It might not be efficient (see Coase Theorem) because of the high transaction cost associated with negotiating a contract with every potential customer, but hey, it is POSSIBLE.

You are now actually saying that a state law is an agreement between two people?

Yes, I am actually saying that laws operate by establishing rights and consequences for violating those rights. That is why NO CONTRACT IS REQUIRED TO ENFORCE PROPERTY RIGHTS, get it? OR…. You can establish property rights, or modify them, through contract. Your point is????

As for the rest, it is just a confused mess that I won’t bother trying to straighten out for you. If you have a question, what is it?

Zorg April 12, 2011 at 6:14 pm

I said, “You are now actually saying that a state law is an agreement between two people?”

You say: “Yes, I am actually saying that laws operate by establishing rights and consequences for violating those rights. That is why NO CONTRACT IS REQUIRED TO ENFORCE PROPERTY RIGHTS, get it?”

Fine. You’re a legal positivist then. The law establishes rights. Any state decree that forces people to interact in a certain way is an “agreement” between them, and that’s why an author is “licensing” the reader when he sells a book to him. That’s great. So why are you arguing with us then? We’re here talking about the legitimacy of those laws and the basis for claimed rights. All you can do is refer to the law and continually beg the question. I wonder if you even know what that means – to beg the question.

Well, I’m done with you now that you’ve started in with the name calling. Google “ad hominem” and “begging the question.” Z ya!

Wildberry April 12, 2011 at 6:45 pm

@Zorg April 12, 2011 at 6:14 pm

Don’t be so sensitive, Dufus is a term of endearment!

No, you don’t get it. Laws can reflect social norms and agreements about ethical codes.

In any case, if a law is not unjust and doesn’t need to be overturned for ethical or economic reasons, it establishes the basis for a mutual understanding rights between parties, such that an independent contract is not required IN ADDITION to establish these rights.

This is the case where two parties enter an exchange under the framework of rights that are codified in existing law. This is the context in which copyrights operates, today, in the real world.

You apparently take issue with something here, but I can’t figure out what it is. Would you like to explain what it is?

You want to re-open the discussion of whether these property rights are ligitimate, starting from the beginning?

Why not add something, or present something or ask somethnig or challenge somthing instead of spending your time trying to categorize me in some particular way by putting words in my mouth?

sweatervest April 12, 2011 at 7:05 pm

“Laws can reflect social norms and agreements about ethical codes”

They sure can, and enforcing those laws on anyone who is not part of the agreement is totally unjustifiable.

We’re not talking about making a community where one of the rules for entry is that you can’t make copies of other peoples’ creative works (and no, this does not produce IP, because no one outside the community is bound to any of their communal agreements).

But the people outside the community still cannot trespass on the community’s physical property, regardless of what agreements have been made.

Ethics obviously has nothing to do with reaching agreement. If everyone reaches agreement, then there is no conflict and no need to even bring up ethics! Ethics is a set of logicall deductible theorems that separate performatively self-consistent action from performatively self-contradicting action. No agreement can ever make murder justifiable, because murder is incompatible with argumentation. Again, see Hoppe.

sweatervest April 12, 2011 at 7:01 pm

From what I can tell, Schulmann’s logos argument makes a very glaring equivocation of a universal form and a particular instance of that form.

Nobody would deny that if you design a logo or right a story of a manuscript or whatever, that you own that *instance* of that “logo”, which would include the pattern of ink on the paper, for example.

But then you all of a sudden jump from ownership of a particular instance of a logo to ownership of the universal category of that logo, which in turn implies ownership of every particular instance of that logo.

This is where I see the absurdity. Sure when you design a logo on a physical object you own that physical object and the *instance* of that logo, but you certainly do not own the universal category of that logo. If I build a factory of a certain design I own that particular factory, not every instance of a factory that belongs to some universal category, be it the category of factories, the category of factories using this design, or any other category (the utter arbitrariness of what categories to use permeates every pro-IP argument).

When you design a logo, you own the instance of that logo, not every instance of that logo. Thus “logorights” is nothing more than a particular interpretation of some physical property rights. Every “logoright” in this sense is already a part of physical property rights acquired only by homesteading.

If “logorights” implies that ownership of an instance of a category can lead to ownership of every instance of that category then it conflicts with physical property to the point that people could not even act. Whatever claim to ownership over your own body you have is potentially a claim of ownership to every body ever.

For all you’ve said about “identity” Schulmann, it should be clear to you that the process of identification separates different copies of a creative work (or or different instances of a logo) and can only lead you to the conclusion that your claim to ownership stops precisely where the boundary of identification is drawn. You own the object that is a singular “thing”, an identifiable means to and end. You don’t by doing so all of a sudden own a set of identifiable objects which, as we can all agree, are always distiguishable by the mere fact that they are different instances.

Stephan Kinsella April 13, 2011 at 12:40 am

Roderick Long makes this argument about universals in his paper from 1995
http://c4sif.org/2011/04/roderick-longs-classic-demolition-of-intellectual-property/

Wildberry April 13, 2011 at 2:44 pm

@ Stephan Kinsella April 13, 2011 at 12:40 am

I can see why this guy is your man, although I have to admit he made your argument in far fewer words that you have. I can do better:

IP has an unsavory past.
We have IP because we have the State.
Ideas are free.
Externalities don’t matter.
Monopolies are bad.
Technology makes property rights obsolete.
PR campaigns to boycot competitors are more efficient than those pesky property rights.

Finito!

Zorg April 12, 2011 at 8:40 pm

This little excerpt from the link Stephan posted says it all, I think.

http://www.stephankinsella.com/2010/08/arnold-plant-the-economic-theory-concerning-patents-for-inventions/

“It is a peculiarity of property rights in patents (and copyrights) that they do not arise out of the scarcity of the objects which become appropriated. They are not a consequence of scarcity. They are the deliberate creation of statute law; and, whereas in general the institution of private property makes for the preservation of scarce goods, tending (as we might somewhat loosely say) to lead us “to make the most of them,” property rights in patents and copyright make possible the creation of a scarcity of the products appropriated which could not otherwise be maintained. Whereas we might expect that public action concerning private property would normally be directed at the prevention of the raising of prices, in these cases the object of the legislation is to confer the power of raising prices by enabling the creation of scarcity. The beneficiary is made the owner of the entire supply of a product for which there may be no easily obtainable substitute. It is the intention of the legislators that he shall be placed in a position to secure an income from the monopoly conferred upon him by restricting the supply in order to raise the price.” – Arnold Plant

Wildberry April 12, 2011 at 11:38 pm

@Zorg April 12, 2011 at 8:40 pm

Yes, this says it all. It can be summarized this way: “Ideas/IP are free, all monopolies are equally bad, and we have IP because we have the state, .”

He assumes the conclusion that an original work is non-scarce by the principle that they could be infinately replicated, yet ignores the necessity of the private production of the original, scarce work. Ease of replication is not that which establishes whether something is ownable, although ideas are free.

He equivocates the connotations of monopoly, as Mises clearly explains as the misunderstanding of the nature of economic monopoly v. property monopoly. Product monopolies do not do what he claims, property monopolies are everywhere in a free market.

Finally, he treats the economic issue of externalities and public choice as simply mercantilism. Without the state, we would be free from state coercion.

Other than that, it is a fine statement.

Edgaras April 13, 2011 at 7:26 am

it is not ignoring it. You can produce scarce “ideas” in your head all the time and keep them “locked” (in your head). But when someone happens to know them too (by accident, individual revelation or by learning from you), it no longer is “scarce” and any force used to prevent other person from using what he learned is illegitimate (unless it was covered by contract).

(comment doesn’t show up, sorry for duplication).

ESV April 13, 2011 at 11:03 am

This disagreement about the meaning of the word “scarce” accounts for a substantial chunk of the debate, in my opinion. With respect to IP:

Some people say “scarce” and mean difficulty of propagation or duplication. E.g., it’s easy to copy an MP3 file.

Some people say “scarce” and mean difficulty of design. E.g., it’s difficult to write a popular novel.

Technology pushes propagation and duplication toward triviality, but has not substantially diminished the essential difficulties of design.

Wildberry April 13, 2011 at 12:51 pm

ESV,
Well said.

Zorg April 13, 2011 at 12:26 pm

“He assumes the conclusion that an original work is non-scarce”

Not assumed, observed. It is non-scarce as soon as it is published. What the author wants and gets as a monopolist is to control the production and price of that non-scarce good in order to make a market. This does not come about through natural law or contract, but by statute.

“yet ignores the necessity of the private production of the original, scarce work.”

Everything must be privately produced. And referring to the original as scarce is irrelevant since it only becomes an economic good when it is published and marketed. It remains scarce in the sense that it is a particular story and not another, but that fact is irrelevant to the monopoly on production of that particular good. The natural market therefore is that Story A1 compete with Story B2 through Z10000000, which it always does. But the market on production is what the statute of privilege aims at. This enables production of Story A to be monopolized in order to fix its price in relation to the prices of other monopolized stories.

Competition breaks this cartel-of-individual-monopolies (is there a term for that?) structure and drives down price to the actual market price, which in the digital realm is eventually going to approach zero, reflecting its non-scarcity in full. Paper & ink books though will likely always have a production cost relative to other such books and therefore still bring in a profit provided there is a demand for this type scarce incarnation of the work.

Wildberry April 13, 2011 at 1:09 pm

@Zorg April 13, 2011 at 12:26 pm

It is non-scarce as soon as it is published

Yes, and scarce before it was published, and owned by an individual. What “rights” does this original owner have, if any?

And referring to the original as scarce is irrelevant since it only becomes an economic good when it is published and marketed.

Yes, and as an economic good, we should apply economic analysis to the issue of property rights, and how they operate in a free market. See Mises/Coase on externalities.

It remains scarce in the sense that it is a particular story and not another, but that fact is irrelevant to the monopoly on production of that particular good.

This is the nature of product monopoly, which is everywhere, and is not equivalent to economic monopoly. It is not that bad books cost $5 and great ones cost $5,000. It is that “books” complete, just like hotels compete. You cannot, however, open a hot dog stand in the lobby of my hotel.

But the market on production is what the statute of privilege aims at. This enables production of Story A to be monopolized in order to fix its price in relation to the prices of other monopolized stories.

How is this statement any different for any other property? Are you simply restating the operation of private property in the economy? My hotel is “monopolized”, but I compete with your hotel. Right?

There is no “cartel of individual monopolies” although making that concept up is helpful to your erroneous conclusion that an author of a book is part of any larger cartel. All books compete with all other books. As a consumer, you decide which to consume. Good books attract more consumers. What theory of property justifies the acquistion of property without compensation to the owner? You are simply making this statement because know that you can replicate the original work cheaply. The relative low cost of replication is why books cost $5 and not more. In the 1300′s, books were very, very expensive compared to other goods. You are simply saying that technology makes things ceaper to produce.

The relvant production cost is the cost of producing the original manuscript, not the production of copies. When you introduce a new model car, the cost of replication is not the only cost. There is a capital cost that has to be accounted for. In your theory, you dismiss the capital cost and expect the cost should be limited to the cost of replication. Sorry, things don’t get produced that way, do they?

When you want a new car, do you just borrow your neibor’s and copy it? Why can you make this leap of dismissing property rights just because replication is cheap?

DixieFlatline April 13, 2011 at 2:05 am

He assumes the conclusion that an original work is non-scarce by the principle that they could be infinately replicated, yet ignores the necessity of the private production of the original, scarce work.

Finally someone owns up to the labour fallacy.

Wildberry April 13, 2011 at 8:57 am

@ DixieFlatline April 13, 2011 at 2:05 am

Sorry, but thanks for playing.

Do you dispute that an author owns his original manuscript before any copies are made or it is distributed to anyone? If so, why is that?

DixieFlatline April 13, 2011 at 1:31 pm

Sorry, but thanks for playing.

Que?

Do you dispute that an author owns his original manuscript before any copies are made or it is distributed to anyone?

He owns it before and after. Copies don’t change ownership. He still “owns” the original assuming he still has the original in his possession. Everyone who has made a copy (if they have made a copy) own their copy and not his original.

Property rights are great. Everyone understands who owns what, so that we can avoid and resolve conflicts simply and cheaply.

Wildberry April 13, 2011 at 2:16 pm

@ DixieFlatline April 13, 2011 at 1:31 pm

Since agree on that point, no need to debate the labor theory of property, or any other theory of natural property rights, since we arrive at the same conclusion. Right?

So, here I am, owning an original manuscript. As such, I have a claim to the economics rights to its use and distribution.

And there you are, wanting to acquire a copy if what is “in” the manuscript (say a novel), and you calim the economic right to the use and distribution of that copy.

These are conflicting claims of rights. Each must defend their positions. What methodolgoy do you recommend for deciding what we should do?

DixieFlatline April 13, 2011 at 6:11 pm

I think you mean the labour theory of value. You and JNS and most IP proponents including Randians are all appealing to a form of the LTV when you insist creation is a property right.

So, here I am, owning an original manuscript. As such, I have a claim to the economics rights to its use and distribution.

I don’t know what economic rights are, but so far it sounds reasonable.

And there you are, wanting to acquire a copy if what is “in” the manuscript (say a novel), and you calim the economic right to the use and distribution of that copy.

I don’t follow this.

These are conflicting claims of rights.

How so?

Each must defend their positions.

Must they?

What methodolgoy do you recommend for deciding what we should do?

There are two pieces of property if there is a copy. Who owns which? Does someone else own all of the goods you have which are copies or based on a template/pattern? Does Chrysler own [sic] your car, and KitchenAid [sic] your blender, and Samsung [sic] your TV?

Lay out a chain of reasoning here. How does the second party get a copy of the manuscript? That’s the devil in the details.

Wildberry April 13, 2011 at 7:58 pm

@DixieFlatline April 13, 2011 at 6:11 pm

I think you mean the labour theory of value. You and JNS and most IP proponents including Randians are all appealing to a form of the LTV when you insist creation is a property right.

I actually meant to say “a property theory based on the labor theory of value”. Sorry for the shorthand gibberish. Actually, I don’t hold that view. My view is very libertarian.
Property rights are asserted and defended. They are a human device. Basic property rights, and certainly the right of an author to his original manuscript, derive from the principles of self ownership and the private ownership of the means of production. But if you agree that an author owns his original manuscript, we don’t need to argue about that, right? We can start from that common ground.

So, here I am, owning an original manuscript. As such, I have a claim to the economics rights to its use and distribution.

I don’t know what economic rights are, but so far it sounds reasonable.

Economic rights: the right to sell, gift or destroy property that one owns. It is an exclusive right of property ownership, and is a bundle of rights that enable a given right to be alienated from the sum total of rights that comprise private ownership. For example, it would be an exercise of the economic rights of a landlord to grant the right of possession but not the right of sale to a tenant. I can sell my land but retain mineral rights, etc.

And there you are, wanting to acquire a copy if what is “in” the manuscript (say a novel), and you claim the economic right to the use and distribution of that copy.

I don’t follow this.

I am setting up a scenario where I have a manuscript, which I own, and you have money, and want to possess what I’ve written. You think it will be useful to you in some way. You are approaching the deal with the position that if I sell you a copy, you own it outright; you can sell it, gift it, or destroy it. I no longer would have any rights in the copy. That is the starting position of our impending transaction.

These are conflicting claims of rights.

How so?

Again with the shorthand. My claim is that if I sell or give you a copy of my manuscript, I only pass you the right to possess and read a copy. Your claim is that if I sell or give you a copy, there are no restrictions, just like if I sold you a car. No part of that car is mine.

Each must defend their positions.

Must they?

Rights must be asserted and then defended. I would attempt to defend my right to decide the terms of releasing my property to you. You would attempt to defend your right to take it only under conditions of clear title, thus relinquishing any rights I might still claim to have after I transfer a copy to you. We need to take the next step.

What methodology do you recommend for deciding what we should do?

There are two pieces of property if there is a copy. Who owns which

I own them both, the original and the copy. You want the copy. You don’t own anything yet. Play along.

Does someone else own all of the goods you have which are copies or based on a template/pattern? Does Chrysler own [sic] your car, and KitchenAid [sic] your blender, and Samsung [sic] your TV?

No. If I make something with my own means of production, I stand before the market trying to make a deal. I take into consideration everything I know. I know that cars and appliances and TVs are hard to copy. The average consumer isn’t going to try, and even if they did, they would not likely compete on price. That is the situation with the items you mentioned. You need a factory to compete in making copies. That requires capital. You are not likely to invest the required capital just to get one copy. These are the facts surrounding the transactions you describe.

This is not the situation with an intellectual product. Once it is released, every copy is also a factory. This is a rather unique situation. That presents a market problem that is not handled well by the standard rules of property, where the cost of making copies is high (cars) or infinite (land).

Here is the scenario:

I have a manuscript, which I own. You want a copy. I have to decide what I will do, and you have to decide what you will do. That is the nature of the economic calculations that comprise the catallactics of economic trade and pricing theory, and the praxeology of human action.

I am leading you up to a moment where we face each other under these conditions. Do you have any issues with the way I’ve laid it out? Have I violated any ethical principles of property, etc. that you would like to object to? Can we start from here without having to go back and argue anything that has led up to this moment?

Lay out a chain of reasoning here. How does the second party get a copy of the manuscript? That’s the devil in the details.

Well, it is a market problem. I am a property owner. I have produced a product which you demand. From my point of view, I want to internalize the benefits of my production process. You want to pay what it is worth to you. I have produced a manuscript, and for whatever reason, you believe it would be useful to possess it. Let’s negotiate.

What I know is this. If I sell it to you with no strings attached, you will be able to “publish it” freely because of the low marginal cost of making copies. It is analogous to the following: I own a hotel. Each time I rent out a room, I sell an equal share of my hotel to the tenant. Now he can rent out rooms too. After a few weeks, everyone who has stayed in my hotel is renting out rooms in what is my hotel, and I no longer have a valuable economic interest it. I can’t sell it, because it already has 100’s of partners, all renting out rooms. Where is the return for the investment in buying the hotel? How would such an arrangement make it worthwhile to try to own and operate any hotel?

How should I solve this market problem?

This is the scenario I am posing. Do you accept the premises of this example? Do you have a problem going forward, or do you want to argue about something I’ve said so far?

DixieFlatline April 13, 2011 at 9:55 pm

Wildberry, I will have to keep it short, because you wrote a long essay and I could spend hours picking it apart.

First of all, I only skimmed it looking for relevance.

This

Basic property rights, and certainly the right of an author to his original manuscript, derive from the principles of self ownership and the private ownership of the means of production.

makes absolutely no sense. What are the “principles of self ownership”?

Economic rights: the right to sell, gift or destroy property that one owns.

I have never heard of economic rights. The right to dispose of your property as you choose is just a part of basic property rights. There is no specifically economic rights component to property rights.

I am setting up a scenario where I have a manuscript, which I own, and you have money, and want to possess what I’ve written. You think it will be useful to you in some way. You are approaching the deal with the position that if I sell you a copy, you own it outright; you can sell it, gift it, or destroy it. I no longer would have any rights in the copy. That is the starting position of our impending transaction.

And we either agree on terms or we don’t. Pretty basic exchange theory.

My claim is that if I sell or give you a copy of my manuscript, I only pass you the right to possess and read a copy.

That’s fine, you can stipulate that contractually. It has nothing to do with property rights, and everything to do with conditions of exchange.

Rights must be asserted and then defended.

They do not have to be. They could be. No one is compelled to defend his rights.

I know that cars and appliances and TVs are hard to copy.

You didn’t answer my question. Who owns your car, you or Chrysler? Who owns your TV, you or Samsung? There can only be ONE owner, in order to avoid conflict (a purpose of property rights). Who is that owner?

This is the scenario I am posing. Do you accept the premises of this example? Do you have a problem going forward, or do you want to argue about something I’ve said so far?

Honestly, you lost me. I don’t understand the need to set up some long and arbitrary example to make a point. We can deduce the correct answer by applying sound first principles. What are the principles you are promoting?

Also, this is why I keep petitioning you to debate with me in the community. Forum comment threads are not good for discussion. Your longer comments are almost post worthy on their own, but they get lost in these discussions, which frankly is a disincentive for me to spend a lot of time breaking down and replying to your argument precisely.

Wildberry April 14, 2011 at 2:04 am

@ DixieFlatline April 13, 2011 at 9:55 pm

I agree this format is a problem in keeping any form of continuity.

Fundamentally, there is the first principle of property ownership. Personally I think that is settled. No one has an argument that the author doesn’t own his own manuscript.

Do you agree? Yes or no?

If yes, then the issue is an economics of law question from there. That issue is too complex, probably, to have as a side discussion to any one of the many threads Kinsella creates with his posts.

Can you be specific about what you have in mind?

DixieFlatline April 14, 2011 at 11:57 am

Fundamentally, there is the first principle of property ownership.

I am still unsure what you mean by a first principle of property ownership.

No one has an argument that the author doesn’t own his own manuscript.

I think we do have an argument though. The author owns the manuscript as written on his paper, he doesn’t own the manuscript if he wrote it on my paper. JNS can’t come over to my house, write passages from Alongside Night on my walls or table, and then claim he owns them. Or can he?

You still have not answered my question about the car and the television. Who owns them?

Thanks.

Wildberry April 14, 2011 at 12:23 pm

@DixieFlatline April 14, 2011 at 11:57 am

I was writing to you when this posted and didn’t see it before.

I said self-ownership, and private means. Your walls are not within JNS’s means. He doesn’t own your walls in any case I can imagine.

Also, you have some kind of misunderstanding about what the “infringement” of IP means. It does not mean I own, or claim to own your property. Either you owe me damages under contract or tort theory, or you are liable criminally. Those are the choices. IP laws are civil laws, except in extreme cases of willful acts.

There is no real theory, despite what is so often repeated here, that me having rights to IP means I own your property. That is a complete fabrication.

Wildberry April 14, 2011 at 12:56 pm

@ DixieFlatline April 14, 2011 at 11:57 am

Assume that the manuscript is written on my paper. Do I own it?

By the way, if JNS wrote a passage on your wall without your consent, he woud be liable for damages, but you would not “own” what he wrote on your wall if he already owns it.

Two separate issues, right?

DixieFlatline April 14, 2011 at 1:28 pm

What are means? Do you mean private property or something different?

I haven’t articulated an argument about infringement at all. Did you mean to reply to someone else?

I am trying to methodically work through your rights system for property so I can better understand your argument.

You have still not answered my question about the car or the television, I believe this is the 3rd time I have reminded you. Surely it is a question you can answer very easily, unless you are genuinely unsure of what you do and do now own. Would you please answer me this time?

DixieFlatline April 14, 2011 at 1:33 pm

Assume that the manuscript is written on my paper. Do I own it?

If you own the paper, you own whatever is written upon it.

By the way, if JNS wrote a passage on your wall without your consent, he woud be liable for damages

What if he wrote on my wall with my consent? Would he own my wall or not?

but you would not “own” what he wrote on your wall if he already owns it.

You’re assuming the conclusion. You claim he owns something, without explaining how he owns it. That’s pretty convenient. If he owned what he writes, then he would own my wall by writing on it. Either that or I would own it because as you claimed, it is my wall, and I can do with it what I want.

Do you see an issue with this? Please be very specific.

Two separate issues, right?

It is the same issue. You assume JNS has some ownership of non-property that conflicts with my ownership of my property. Property rights do not create conflicts. They are applied to resolve and prevent conflicts.

Wildberry April 14, 2011 at 2:35 pm

@DixieFlatline April 14, 2011 at 1:28 pm

What are means? Do you mean private property or something different?”

Privately owned means of production. Are you not familiar with this term? If I own the iron and furnace, transform those into a sword, I own the sword because I have employed my privately owned means of production. Mises use this term extensively, especially in this writings criticizing socialism, which holds that the state owns the means of production.

I haven’t articulated an argument about infringement at all. Did you mean to reply to someone else?

No, I was talking to you. By infringement, I mean my claim that you have violated my rights in my property. That claim is not a claim on your property, unlike many, including Kinsella claim. It is a claim of liability for harm under a theory of tort law or damages under contract law. In neither case does that liability result in me claiming any kind of ownership in your property. That is a fabricated claim. Such a violation of my rights to my property is simply called an “infringement” in the context of IP.

I am trying to methodically work through your rights system for property so I can better understand your argument.

I am trying to figure out what you don’t understand, so we can agree that the author owns his manuscript and move on.

You have still not answered my question about the car or the television, I believe this is the 3rd time I have reminded you. Surely it is a question you can answer very easily, unless you are genuinely unsure of what you do and do now own. Would you please answer me this time?

I thought I did when I said that if you sell me chattel, like cars, trains and automobiles, or TVs or Appliances, I own them. I also said that when I buy a TV I don’t own the TV factory, just a single TV. It is an easy answer for these types of consumer goods. OK?

Wildberry April 14, 2011 at 3:32 pm

@ DixieFlatline April 14, 2011 at 1:33 pm

If you own the paper, you own whatever is written upon it.

OK, fine, we agree then. If I own the paper, and I used only what is my property, or something from the public domain (like letters of the alphabet, ideas, grammar rules, air to breath, etc.), and produce a manuscript, I own it. It is my property and no one has a better title to it than me. OK?

What if he wrote on my wall with my consent? Would he own my wall or not?

Of course not. Are you really confused about this or do you think I am?

You’re assuming the conclusion.</blockquote.

I am stating my conclusion. I am saying that IF he already owned what he wrote, and he did not intend to transfer ownership to you by the act of writing on your wall with your consent, then you cannot assume that he transferred it to you. Since he owns it, it is up to him to decide if he wants to give it up, no you.

You claim he owns something, without explaining how he owns it. That’s pretty convenient. If he owned what he writes, then he would own my wall by writing on it. Either that or I would own it because as you claimed, it is my wall, and I can do with it what I want.

It is not that I don’t understand your position. There are two issue here. Let’s separate them.

First, does he own what he writes or do you? There is no escaping the fact that this is a property problem.

If I assume the existence of copyright law at the time of the writing, the answer is clear; you own your wall and what is written on it, but your use of that writing is limited by the terms of use specified by copyright law, which says, that transfer of the copyright itself is not transferred without explicit written evidence of intent to transfer by the owner, very similar to the rules (statute of fraud) for transferring title to land.

If I assume the absence of copyright law, then we cannot assume that he would write it, even with your permission, for if he understood at the time that buy such an act, he would be conveying something of value (to him) without negotiating some exchange from you, he would not do it. A rational person who is aware of this fact would not write on your wall in the first place.

This is the assumption that is often depended upon here to make the anti-IP case for copying; that the copy is available in the absence of copyrights, under the exact same conditions that would exist in the presence of copyright laws. This is a huge assumption because it leads to the wrong conclusion.

If I own a manuscript, and there is no copyright laws, I understand then that as soon as I disclose it, I willable transferring all economic rights to it. Anyone and everyone who has a copy of it would have equal rights to its use without limitations. Under those conditions, I would be very careful how I disclosed it, and you would have to pay dearly to get a copy.

I earlier used the analogy of a hotel to illustrate this. If every time I rented a room, the renter could assume that he bought the hotel, I would be very careful about the contract and my right to enforce it before I rented a room, or even more important, before I invested in owning a hotel in the first place. This is the problem of economic externalities.

The second issue of what happens to your property, after it is written upon.

It is your wall under any assumption. With or without copyrights, unless you transfer your wall to him, it remains yours. The only issue is about what is written.

It is a fabricated claim to insist that the concept of IP is that my rights in IP somehow stakes a claim on your property. This is false. It creates a tort claim, or a contract claim, or both. Nothing in IP law operates as a confiscation of your property.

If you want me to elaborate, tell me your issue with this.

You assume JNS has some ownership of non-property that conflicts with my ownership of my property. Property rights do not create conflicts. They are applied to resolve and prevent conflicts.

To be clear, I do not assume nor do I argue for what you say. Where is the conflict? It is not over your property. You own the wall. If he had tacked a $100 bill to your wall, would he own your wall?

Of course not; if I pee on your tree, that doesn’t prove I own it, right? Because the tree is yours, you have liability rights against people who pee on your tree without your consent.

A property rights problem does arises, however, if you claimed the $100 and he disagreed with your claim. You would have to defend your asserted right to the $100. How would this be resolved? We would look to the intent of the original owner. We start with who owned the$100 before it was tacked to your wall. If the owner intended to give you the $100, then it has been transferred by his act of nailing it to your wall, a constructive transfer. If he did not intend to transfer it, then all you could do is demand that he remove it from your wall.

You could not claim ownership of it simply based on the fact that it is nailed to our wall.

So, the issue comes down to this: Did he own the $100 before he nailed it to your wall?

Wildberry April 14, 2011 at 3:33 pm

Sorry, the editing function here is not working, for some reason, so I couldn’t correct the formatting. If it is too difficult to read, I can repost.

Wildberry April 14, 2011 at 12:14 pm

@ DixieFlatline April 13, 2011 at 9:55 pm

Let me try to be brief for once.

We own our selves. What we produce with our own means and with our own personal capabilities, belongs to us. This is pure libertarian principles of private property rights.

Economic rights: see my response to Peter Surda April 14, 2011 at 2:27 am

What we agree to and how we enforce that agreement is precisely the issue.

It has everything to do with property rights. The subject of any contract is the exchange of property. How can I contract for something which I do not own, or have the rights to trade?

If asserted rights are not defended (in the face of a confrontation) they are not rights. Therefore rights must be defensible. However, you are correct, they can be abandoned, perhaps to avoid confrontation. At that point, they cease to be rights, at least for that individual at that time.

If you transfer title to chattel to me, I own it, provided I have paid you for it. What I have paid in exchange for possession is precisely the issue I am raising.

I am promoting the principles of private property and free trade, as they apply to the exchange of intellectual works. I am attempting to see if we can proceed from a basis of agreement without debating how we get there.

That basis is that we agree that the author owns his manuscript. Do you agree?

Wildberry April 14, 2011 at 12:26 pm

I meant:

“If you transfer title to chattel to me, I own it, provided I have paid you for it. What I have received in exchange for what I’ve paid is precisely the issue I am raising.”

Peter Surda April 14, 2011 at 2:03 am

Wildberry,

Economic rights: the right to sell, gift or destroy property that one owns.

And you still have that with or without IP. What you don’t have without IP is the ability to sell, gift or destroy other people’s property: the copies.

Wildberry April 14, 2011 at 2:05 am

@Peter Surda April 14, 2011 at 2:03 am

No conclusions assumed in that comment, right?

Peter Surda April 14, 2011 at 2:29 am

Wildberry,

of course there is a conclusion: IP contradicts other rights. Making up newspeak such as “economic rights” does not fix it.

Peter Surda April 14, 2011 at 2:27 am

Wildberry,

I am leading you up to a moment where we face each other under these conditions.

But that is precisely what IP is not about. IP is about applying restrictions to people you have no contractual relationship with. If you lease (let’s use that term for simplification) someone a book with restrictive permissions, that has nothing to do with IP. That’s just a conditional transfer of title (of the money from the lessee to the lessor).

IP is about restricting the behaviour of third parties who get a hold of the information without either being in contract with the IP owner or altering the property of the IP owner. So, the IP theoreticians need to extend the definition of trespass from “alteration of one’s property” to “being causally affected by one’s property”. That is of course problematic for the same reasons I’ve been repeating for quite some time now, it contradicts other rights and is incoherent.

But who am I talking to.

Wildberry April 14, 2011 at 12:58 pm

Yourself.

J. Neil Schulman April 13, 2011 at 8:58 pm

DixieFlatline wrote, “I think you mean the labour theory of value. You and JNS and most IP proponents including Randians are all appealing to a form of the LTV when you insist creation is a property right.”

I’ve noted Wildberry’s answer; let me speak for myself.

The property theory I’ve put forward does not derive from nor depend on “labor theory of value.” At no point in my argumentation have I ever suggested that work creates value.

What human action creates is a new thing — a thing with new and distinct properties that give it a new identity and new properties that can be exploited.

Whether anyone chooses to act with respect to this new thing — to find value in it to be exploited or traded — is a secondary question.

The anti-IP position conflates the two — purposively to confuse the issue, in my opinion.

There is a stark difference between a thing being made and what people choose to do with it after it is made. Just because someone works to make something doesn’t mean anyone else desires it, which is the source of it having value.

But, conversely, if someone else desires it that does act to demonstrate there is some real THING to desire that would not have existed with its creators human action.

Human action — work, if you will — does make a new thing, and that is a proof of existence and utility, not a proof of value.

Subjective value theory is unaffected by this property-rights position.

DixieFlatline April 13, 2011 at 11:46 pm

What human action creates is a new thing — a thing with new and distinct properties that give it a new identity and new properties that can be exploited.

Every single creation is unique, no two creations or creators are identical. No two moments in time are equal. No two valuations are equal.

As to the rest, I think we agree on STV. But you’re still not explaining how creation has anything to do with property.

Peter Surda April 14, 2011 at 2:09 am

Dear J. Neil Schulman,

The property theory I’ve put forward does not derive from nor depend on “labor theory of value.”

So why do you then repeatedly refer to it? Such as this:

If you say the logos doesn’t have value, then why does imposing a logos on two dollars worth of computer diskettes make them several-dollars worth of software?

And if a logos has no value as a separate property from that object which it is imposed upon, why would you be upset it you brought home the book you thought was ATLAS SHRUGGED and found that the first sentence was not, “Who is John Galt?”

So you don’t even know what you’re talking about. In addition to that, we don’t claim that the immaterial aspects of things don’t have value.

Also, you say:

If a logos has no value in itself, then removing it from the objects on which it is found should make no difference in the values found in those objects.

Unless you can show how to do this without altering the object’s physical attributes, IP is contradictory (or redundant) with respect to it.

J. Neil Schulman April 14, 2011 at 2:28 am

Peter Surda wrote in a clear and understandable question:

“The property theory I’ve put forward does not derive from nor depend on “labor theory of value. So why do you then repeatedly refer to it? Such as this:”

“‘If you say the logos doesn’t have value, then why does imposing a logos on two dollars worth of computer diskettes make them several-dollars worth of software? And if a logos has no value as a separate property from that object which it is imposed upon, why would you be upset it you brought home the book you thought was ATLAS SHRUGGED and found that the first sentence was not, “Who is John Galt?’”

Answered in my reply to DixieFlatline at http://blog.mises.org/16319/the-origins-of-libertarian-ip-abolitionism/comment-page-2/#comment-772292:

There is a stark difference between a thing being made and what people choose to do with it after it is made. Just because someone works to make something doesn’t mean anyone else desires it, which is the source of it having value.

But, conversely, if someone else desires it that does act to demonstrate there is some real THING to desire that would not have existed with its creator’s human action.

“Also, you say:

‘If a logos has no value in itself, then removing it from the objects on which it is found should make no difference in the values found in those objects.’

“Unless you can show how to do this without altering the object’s physical attributes, IP is contradictory (or redundant) with respect to it.”

It can’t be removed without altering any of the object’s physical attributes. It can be removed without altering any of the object’s OTHER physical attributes, therefore creating a difference between the two entities — one with the logos, one without.

The properties and utility of the object of one (with) is now different from the other (without), and humans can make a subjective value judgment based on the difference between one and the other.

DixieFlatline April 14, 2011 at 10:03 am

JNS,

There is a stark difference between a thing being made and what people choose to do with it after it is made.

I don’t think Peter or I are contesting that. We’re asking you to substantiate the relevance of it.

The properties and utility of the object of one (with) is now different from the other (without), and humans can make a subjective value judgment based on the difference between one and the other.

The properties may be different, but only individual actors can make claims about utility. You can’t make objective claims about utility without rejecting subjective value theory. This is what I have been pointing out.

Human can make a subjective value judgment between two (seemingly) identical cans of coke because as I indicated above, there are no two perfectly identical objects. Any sense of commonality is probably more likely due to the limitation of our senses and ability to perceive, not some fact of material existence. As I have indicated, perfect copies are impossible in our scarce reality.

This sort of thing is why the position of pro-IP folk have to tend towards the labor theory.

IP Abolitionists rightly understand that all action is creation, and all human action is the product of emulation. Emulation is the foundation for creation.

Peter Surda April 14, 2011 at 2:02 am

Wildberry,

These are conflicting claims of rights.

Yet you complain when I say that IP and rights in physical goods contradict each other. Who knows what’s going on in your head.

Wildberry April 14, 2011 at 10:50 am

@Peter Surda April 14, 2011 at 2:02 am

Maybe you could learn to ask better questions, or offer something that is conprehensive and contributes to mutual understanding.

Wildberry April 14, 2011 at 10:51 am

That is, “comprehensible”.

J. Neil Schulman April 13, 2011 at 3:24 pm

How many copies of Atlas Shrugged exist? Millions. How many Atlas Shrugged’s are there? One. Atlas Shrugged is just as scarce a commodity as the day Ayn Rand finished the manuscript. It was one Atlas Shrugged then and one Atlas Shrugged now. Atlas Shrugged is a unique thing. Only the number of carriers of that singular and scarce object varies.

Zorg April 13, 2011 at 5:27 pm

“How many copies of Atlas Shrugged exist? Millions. How many Atlas Shrugged’s are there? One. Atlas Shrugged is just as scarce a commodity as the day Ayn Rand finished the manuscript.”

That’s a distinction without a difference, Neil. My copy of Atlas is the same as yours, is the same as Rand’s. Atlas is NOT a scarce commodity. Calling it a unique thing as opposed to its “carriers” doesn’t change anything. It always exists on carriers. It’s a carrier mediated thing. We all have it on carriers, therefore we all have the story. The pattern of the words is in the possession of every person owning a copy of the book. Rand didn’t keep parts of it locked away. She released the whole thing that she called Atlas Shrugged, causing it to be published to the world. The “unique thing” is not in any danger of disappearing, and you can’t remove it from the millions of “copies.”

Stephan Kinsella April 13, 2011 at 7:30 pm

Actually there are at least two now–the novel, and the movie. surely they are not identical. Same with Lord of the Rings. Oh, and there are translations. Etc.

Matthew Swaringen April 13, 2011 at 8:25 pm

Atlas Shrugged has no meaning except in the human mind. Each human has a slightly different interpretation and provides a different valuation to any book. There are as many different variations and interpretations created from reading Atlas Shrugged as there are people who have read the book. And it is not as though Atlas Shrugged was created in some box called the human mind by itself. Everyone who has made anything has experienced life, reading the books of others, talking and learning from others…

J. Neil Schulman April 13, 2011 at 8:49 pm

Would the solipsists please leave this universe and stick to their own bubble? People are talking to each other in this one.

ESV April 13, 2011 at 10:31 pm

I don’t think this is solipsism. I think this is a clue to the root point, with respect to your logorights formulation, that many of your opponents diverge. In your logorights description, you ask:

Are two separately existing Entities,
sharing the exact same Identity, (A) identical in themselves (that
is, metaphysically the same Entity, though observably not the
same Existent, since each exists apart from the other), or (B) not
identical in themselves but identical only to the consciousness
that perceives them.

(This is somewhat technical language, easy to misinterpret it unless you’ve read through the definitions up to that point in my opinion.)

Although you (Neil) answer [a], I have a sneaking feeling that Stephan Kinsella would answer [b]. This is the earliest (i.e., most fundamental) point at which I can see a divergence.

In answer to your earlier question: Platonist, Nominalist, or Randian/neo-Aristotelian/Objectivist, my guess that Kinsella’s and Swaringen’s answer would not be the last. Though this is just my speculation, I surmise they’d pick a forth option that would lead to [b], Conceptualist.

Anti-IP Libertarian April 13, 2011 at 11:18 pm

@J Neil Schulman:

Your whole theory is flawed because it is not consistent and based on the illusionary fundament of true identity in spacetime: On what grounds do you tell if something is IDENTICAL? What is the basis for that? Physics? Have fun with molecules, particles and quantum physics. Have fun with different content mediums.

Philosophical grounds? Metaphysics? You believe in recognizing the “Ding an sich”? Really? You believe in essences? Really?

What makes a story unique? The words? The content? The form? Some metaphysical essence?

What makes a work derivative? What ISN’T derivative?

What is it that does EXACTLY define your “logorights”? You can’t give an answer to that because there isn’t one.

J. Neil Schulman April 14, 2011 at 12:58 am

From The Libertarian Case for Ip at http://jneilschulman.rationalreview.com/2011/03/the-libertarian-case-for-ip/

When it comes to questions of identity, the copy IS the original; an entity is an entity: A is A.

One may wish, at this point, to expand the discussion to entities which are similar but not exactly identical, and put forward the position that each copy is a different entity as well as a different existent.

The discussion would then have to continue to take in boundary effects and threshhold limits of which attributes define an entity and which do not, but the principle would remain intact. Such boundary problems and threshhold effects relate to all questions of ownership and property–otherwise shining a flashlight onto someone’s lawn could be considered, on the face of it, photon invasion of that property. Obviously whether damage is or is not done to the lawn has to be asked at some point: this is what I mean by boundary limits and threshhold effects.

It strikes me that the clearest illustration I can give that property rights are dependent on a thing’s identity, not merely on its material existence, is the following question: have I violated your property rights if I pulverize your car, but leave you in possession of every microgram of dust?

Answering no defeats one’s argument by reducing to absurdity.

But if one answers yes, then what one is claiming ownership of was a thing — an entity — and one must claim that by removing the identity of that thing I have violated one’s property rights.

This concedes that property rights are bound to the identity, as well as the mere existence, of a property, and if this is so, then does it not follow that the ownership of that property’s identity is as exclusive to its owner as everything else about it?

Thus, to a propertarian, my logoright case is proved by the Law of Identity alone …

Matthew Swaringen April 15, 2011 at 6:40 pm

No one here is going to disagree with “identity” to the extent you mean “form.” Of course anyone recognizes it as a violation of property to sit in your car, slash your tires or blow up your car regardless of whether you still have the pieces.

But by making this argument it occurs to me that you somehow see this destruction as somehow similar to copying.

If someone uses their replication device to beam a copy of my car to their house and I never see them do this or meet them my entire life or hear of this I am none the wiser. There was no aggression, and I have not been injured. I can still eat, go to work/etc. just like before. The car manufacturer was not harmed, he still has just as many cars to sell as he had before. The car designer is still out there designing new cars. But there is now a guy with a car he wouldn’t otherwise have had.

Who should this bother? Why? How can this be compared to destruction? This guy now has a car he didn’t have, and I still have mine. I suppose you may say that he might have had to purchase one instead, but so what? What if he used walked instead of used a car? It’s still a loss of money to the manufacturer either way. And by the logic that we should be trying to keep prices up we should all try to be lazy and unproductive so as to raise the value of things produced. We should dump factories and make things by hand.

Wildberry April 15, 2011 at 7:51 pm

@Matthew Swaringen April 15, 2011 at 6:40 pm

I suppose if we lived in a world where this was actually possible, we would have to figure out how to handle it. Since the problem of getting a new car would be solved as long as there was one to copy from at zero cost, then as JNS pointed out earlier, we would have arrived at the Star Trek stage of manufacturing. All we have to worry about is how to get new car designs. Otherwise, we will be stuck with whatever we have the day such devices are invented and available.

In one respect, if replication of cars like you say is potentially possible at some future time, then that time has arrived in the era of digital publishing. Once you have an original to copy from, you can make a zillion copies for next to nothing.

If you were in the new car design and prototype development business, how would you propose dealing the externality issues associated with the low cost of replication once your new/improved model is released, in a world where low cost “magic” replication of cars is possible?

Replicating cars without a mass production factory is not economically possible today, but if all you did need was the original to copy from, we would be set, as long as we are satisfied with the cars we now have available to copy. And when they get old and rusty and not worth copying, what then? Original replicas are made my hand so we can copy them for free?

In the case of a book, each copy is a factory of mass production. How do you propose new books get written? Take something other than a work of fiction; a history book or an dictionary, or some highly technical manual. We freeze development where we are today and everybody has free access to everything old but nothing new?

Anti-IP Libertarian April 13, 2011 at 11:10 pm

Neil, be honest: Who is to decide WHICH information pattern should be treated as IP (=logoright) and WHICH NOT?

A novel? Yes? A garden design? No? A hairdo? No? A “special move”? No? A gesture? No? A business method? No? Yes? Maybe?

And who is to decide WHICH ACTION regarding an IP (=logoright) is deemed infringement? You? On what ground?

You and all the other IP-proponents have not brought forward ANY KIND of consistent IP theory.

J. Neil Schulman April 14, 2011 at 1:21 am

Anti-IP Libertarian wrote, “Neil, be honest: Who is to decide WHICH information pattern should be treated as IP (=logoright) and WHICH NOT?

A novel? Yes? A garden design? No? A hairdo? No? A “special move”? No? A gesture? No? A business method? No? Yes? Maybe?

“And who is to decide WHICH ACTION regarding an IP (=logoright) is deemed infringement? You? On what ground?

“You and all the other IP-proponents have not brought forward ANY KIND of consistent IP theory.”

There’s two parts to this question. How can you tell what qualifies to be an ownable thing, and who decides?

The second question is simple. In a statist society the state decides; in a libertarian society property rights disputes will be settled either violently — if one party is aggressive and refuses peaceful dispute settlement — or non-violently, if mediation or binding arbitration can be agreed on. I lean toward the General Submission for Arbitration that can be found on the website of the C4SS at http://c4ss.org/gsa/.

The first question is a threshold boundary question. All property rights disputes are subject to threshold and boundary questions, as well as identification procedures. Anticipating this land is surveyed, posted, and property boundaries registered; auto manufacturers print VIN’s on cars before shipping them to dealers; Elvis commemorative plates come with numbered certificates of authenticity.

The specific threshold you’re asking for is part science and part human art. A computer can mathematically compare one file with another to detect whether it’s the same file, or a similar file, or a completely different file. A reader can read a book and make a determination whether it’s the same story and characters as another book, or a different one.

The answers you’re looking for are market decisions, established by agreed-upon standards and precedents in dispute resolution. Free market case law will be not unsimilar to case law in statist civil courts. Arbitors will look to professional and commercial standards to determine what’s a unique property and what is common coin.

You want better than that, ask Rip Van Winkle for a report from the future.

Peter Surda April 14, 2011 at 3:45 am

Dear J. Neil Schulman,

there are still fundamental questions which you did not address:
- how does the method of copying influence whether a violation occurred (e.g. looking vs. photographing vs xeroxing)
- how does the intent of the copier influence whether a violation occurred (e.g. educational or comedical purpose)
- how does the type of derivation influence whether a violation occurred (e.g. referencing, paraphrasing, translating, encoding)

Mind you, unlike the complexity of the logos, which may be with a bit of leeway expressed in bits and be compared to e.g. distance with regards to rights in physical goods, these are heterogeneous variables with no obvious connection to anything other than imagination. Why should the method, purpose or the amount of a violation determine whether a violation occurred or not? That’s neither libertarian nor principled.

Wildberry April 14, 2011 at 11:09 am

@Peter Surda April 14, 2011 at 2:02 am

You are, inadvertently, describing the operation of economic rights to a thing, i.e property.

If I own a car, I can transfer any of the multitude of economic rights that are bundled in the ownership of the car. I can transfer it to you provided you don’t drive it. I can forbid you from sublease agreements. I can limit the range of your use privilege. I can list only those things you are permitted to do, so that anything not on the list is forbidden.

My ability to do these things derives from my ownership of the car, my property. You will either pay me for what I think they are worth, or we will not make a deal. If you just want to sit in my car for an hour, that is a different price than buying it outright. If you take it, you get punished criminally under principles of property rights. If you simply violate the terms of our agreement, you pay me damages under contract/tort liability rights.

There are a number of things that can be done with a book. I am interested, as the owner, in controlling those uses, because it is in my interest to insure the benefits of having produced a book accrue to me, and not you, unless you pay me what I think they are worth.

Put in economic terms, I am interested in internalizing externalities at a low transaction cost. See Coase, or more modernly, David Friedman.

J. Neil Schulman April 14, 2011 at 1:10 pm

Peter Surda asked,

“- how does the method of copying influence whether a violation occurred (e.g. looking vs. photographing vs xeroxing)”

How does looking at a house differ from moving in?

“- how does the intent of the copier influence whether a violation occurred (e.g. educational or comedical purpose)”

That’s a question to be directed to a statist since your question refers to current statist law.

“- how does the type of derivation influence whether a violation occurred (e.g. referencing, paraphrasing, translating, encoding)”

Some uses are below the threshold for damages or deprivation of the fruits of ownership and others aren’t. For example, a cool breeze from your property to mine brings me the pleasant smell of your orange grove. I may breathe in that scent without damaging you. Climbing your fence, grabbing and eating one of the oranges, raises the threshold, but possible not enough to be a violaton. Harvesting your orange crop and selling it at the farmer’s market without your permission is definitely a violation.

Sleazy P Martini April 13, 2011 at 9:28 pm

J Neil Schulman is the intellectual equivalent of a Hairy Musket.

Anti-IP Libertarian April 13, 2011 at 11:34 pm

@J Neil Schulman

You claim your “logoright” theory is based on identity. Let’s discuss a short example:

Under your “logoright” thingy someone could have the “logoright” to a statement, eg “Blablabla Blablabla Blablabla Blablabla Blablabla Blablabla Blablabla”.

Please answer the following questions as exactly and specifically as possible:

1) How long does a statement (story etc.) have to be to be “logorighted”?
2) When does another statement (story etc.) become an identical entity of your “logorighted” one? Which percentage of the information pattern has to be identical?
What about other languages? What about indirect citations? What about altering the positions of the words? What about paraphrasing? Have the words to be identical? Has the word pattern to be identical?
Why and why not?
3) What actions regarding this “logorighted” statement (story etc.) do you consider an infringement?

Another thing: What about patents?

J. Neil Schulman April 14, 2011 at 1:41 am

Anti-IP Libertarian wrote,

“You claim your “logoright” theory is based on identity. Let’s discuss a short example:

“Under your “logoright” thingy someone could have the “logoright” to a statement, eg “Blablabla Blablabla Blablabla Blablabla Blablabla Blablabla Blablabla”.

“Please answer the following questions as exactly and specifically as possible:

1) How long does a statement (story etc.) have to be to be “logorighted”?

Long enough to be identifiable as a unique thing.

Alongside Night is around 70,000 words. A short story can be a few thousand words. A poem can be very terse. It doesn’t take a lot of words to be something unique. There used to be a game show called “Name That Tune” in which songs could be identified by playing only a few bars.

How long does it take to identify the name and author of the following poem as something unique?

“Half a league, half a league, half a league onward.”

I just Googled that, hit “I feel lucky,” and came up with the following page: http://www.sparknotes.com/poetry/tennyson/section9.rhtml — which tells me these three words, repeated three times, then a fourth word, is Alfred Lord Tennyson’s poem “The Charge of the Light Brigade.”

Google’s software algorithm did not require a human brain to give a mathematically precise ID to this piece of MCP.

“2) When does another statement (story etc.) become an identical entity of your “logorighted” one? Which percentage of the information pattern has to be identical?”

Enough to be apparent that one could not exist if the other did not. That’s a judgment to be made in a dispute resolution process.

“What about other languages? What about indirect citations? What about altering the positions of the words? What about paraphrasing? Have the words to be identical? Has the word pattern to be identical? Why and why not?”

There are translation programs that could correlate translations of the same composition. Some of them are pretty bad; others are more accurate.

Again, like all property rights disputes, these can be solved when one party claims infringement and another party denies it. Let the arbiter decide.

3) What actions regarding this “logorighted” statement (story etc.) do you consider an infringement?

Provable damage or deprivation of the fruits of ownership, same as with any other property rights infringement

“Another thing: What about patents?”

I’m not defending statist laws. But the principles are the same for invention of any other type of authorship: the production of something identifiably unique.

sweatervest April 14, 2011 at 9:56 am

“Long enough to be identifiable as a unique thing.”

And what happens when different people disagree on what this length is?

“in which songs could be identified by playing only a few bars.”

Indeed. So this implies that whistling a little bit of a tune you heard is violation of peoples’ “logorights”. That is to say that anyone that ever writes a piece of a melody owns everybody’s vocal chords.

““Half a league, half a league, half a league onward.””

You just violated the author’s copyright and I’m going to turn you in for it.

Also, you are blindly assuming that Google was right. How do you know that someone didn’t use this exact line in poem before this one? How do you know this author did not “steal” that line from another author? Why are you assuming that whoever gets the IP claim of creation actually was the “creator”?

And what you are saying is incredibly absurd. Can I copyright the following poem: “Life sucks”? If you say no because you or Google can’t identify it, I say screw that I know damn well I wrote it and if you guys can’t identify it as my poem that’s your problem. I can identify it! Next time I hear someone say life sucks they’ll see me in court!

“Enough to be apparent that one could not exist if the other did not. That’s a judgment to be made in a dispute resolution process.”

In other words, by taking influence from other creative works, as every creative author must do, you are risking violating the “logorights” of your influences and have no way of determining before-hand whether or not you are breaking the law. This is a huge incentive to not produce any creative works at all. You will only know after you’re sitting in court with a conviction that you did something wrong. Why even bother trying to be creative?

“Again, like all property rights disputes, these can be solved when one party claims infringement and another party denies it. Let the arbiter decide.”

You are confusing the practical problem of enforcing the law with the theoretical problem of determining what the law should be. Of course in a libertarian society it is highly unlikely that any actual justice system will be ideal and conform perfectly to justifiable behavior, but that has no impact on what is justifiable behavior and what is not. Regardless of the imperfections of a market-based justice system, a justice system that rewards murder or recognizes IP or “logorights” is a flawed justice system. That is the issue here.

“Provable damage or deprivation of the fruits of ownership, same as with any other property rights infringement”

Deprivation of the “fruits of ownership”!? And now we have illegalized competition. After all, the “fruits of ownership” of a productive firm will be diminished as a result of other competitors. But it doesn’t stop there. The actual market price of your property will go down if your neighbor keeps a cluttered, unkempt yard and so by this reasoning your neighbor has violated your property rights and owes you compensation.

“I’m not defending statist laws. But the principles are the same for invention of any other type of authorship: the production of something identifiably unique.”

And the problem you fail to see is that “uniquely identifiable” defeats your whole case. Different copies of even the exact same story are uniquely identifiable and so your ownership of one would not imply the ownership of the other. Different copies of the same story are still different identifiable objects. If identity is the basis, then any form of IP, including “logorights”, is immediately compromised because they all involve an extrapolation of ownership from one identifiable object to a whole category of them.

This whole post glossed over the critical point being raised. Can I copyright an 8-note melody? Why or why not? What about 7, or 6 notes? What about a single note? What about the very use of the 12-note chromatic scale in a rhythmically steady fashion? When did I copy a song? By copying every note? What about just the chord progression? What if I just borrowed from the chorus?

Your answer to all of these, as is always the answer provided by IP supporters, is “there are answers”. If there are, then tell me the number right now. 7 notes or 8 notes? Which one is it? If you can’t decide before-hand, then your theory is not an objective well-defined system of property rights but the defense of a dictatorial setting where some judge’s opinion becomes what is justifiable and what is not, and no one is capable of even beginning to guess what his decisions will be before they happen. Such a society would be a disaster of perpetual conflict and consume itself in no time.

Wildberry April 14, 2011 at 11:56 am

@sweatervest April 14, 2011 at 9:56 am

I just want to focus on one thing you said:

In other words, by taking influence from other creative works, as every creative author must do, you are risking violating the “logorights” of your influences and have no way of determining before-hand whether or not you are breaking the law. This is a huge incentive to not produce any creative works at all. You will only know after you’re sitting in court with a conviction that you did something wrong. Why even bother trying to be creative?

If this were true, many of the normal activities of humans would have to cease. But they have not ceased, and we have IP laws. Why is this?
Humans have a very well-developed ability to detect patterns. Popular songs can be recognized with as few as three notes. Google can recognize a pattern that associates a few words to an entire work.
Rules of law (pardon my use of something that exists) can be divided into “bright line” rules and rules which are highly dependent on the specific facts. I have explained this previously by using homicide, which is a bright line rule, and self-defense, which is a finding that can only be reached if we know much more than whether there was a “killing of a human by another human”.
If I wrote as the first line of my book “It was the best of times, and the worst of times”, would you recognized it? If Dickens brought infringement suit against my use, and that was the only similarity between his work and mine, who would win?
Regardless of whether we actually went to court over this, I, in writing my book, know whether I made this up out of thin air, or whether I simply copied it from Dickens. If he could prove I had access, (which would be trivial) then it would be incredible for me to claim that I came up with it on my own. If I used the words,
“…it was the spring of hope, it was the winter of despair; we had everything before us, we had nothing before us; we were all going directly to Heaven, we were all going the other way.”, would you still know it was Dickens?
Is it credible for me to claim that I came up with this exact pattern of expression completely independently of Dickens? Maybe, but it is unlikely.
Although I think you may have earlier stated that you don’t care what the law says, I just want to make it clear to you that if you did care enough to read a summary of how the copyright laws operate around this issue, you would find that it has a coherent system for resolving this issue, and that in all but the most fantastic situations, it is entirely consistent with the intuition you already have.

As a result, just knowing that if I actually infringe on someone’s copyrights I will suffer some negative consequence, I will strive to avoid it. I will not copy a clearly recognizable phrase. I don’t need to. I can say, “These were the best times of our lives, but also the worst.” That would make it less likely to be infringing, yet still expresses the meaning I intend.

As an added bonus, I suspect that the work of Dickens is by now in the public domain. By the time something gets that popular, it is no longer copyrighted. Why wouldn’t I copy it then? Because most readers would recognize that I was simply taking Dickens’s words and claiming them as my own. I would lose credibility as a creative artist. So I would try to be original. That originality is part of the standard for works protected by copyrights.

In summary, you are acting like it is a total and complete minefield, when in fact it is all rather easily navigated. If in fact you start from scratch and write a novel, and avoid copying directly those things that you know were made popular by others, you will avoid almost all potential problems. If it ain’t broke, why fix it?

sweatervest April 14, 2011 at 2:47 pm

“If this were true, many of the normal activities of humans would have to cease. But they have not ceased, and we have IP laws. Why is this?”

Because the state, despite all of its efforts and claims, can’t be everywhere all the time.

I fail to understand how you disagree that any creative process draws from the creations you have seen in the past. No matter how original you think you are being, you are drawing influence from the things you have experienced already.

“Humans have a very well-developed ability to detect patterns. Popular songs can be recognized with as few as three notes. Google can recognize a pattern that associates a few words to an entire work.”

This has nothing to do with what I said. You are still implying that if you want to safely make music without potentially being a criminal, you need to listen to every copyrighted melody ever made and memorize them all before starting.

“Rules of law (pardon my use of something that exists)”

I’m sorry, I thought we were debating what should be, not what is. Thank you for reminding me that statutory laws exist. I’m an anarchist so you should probably also remind me that states exist. Also, since I care about ethics, you should just point out that crime exists.

“can be divided into “bright line” rules and rules which are highly dependent on the specific facts. I have explained this previously by using homicide, which is a bright line rule, and self-defense, which is a finding that can only be reached if we know much more than whether there was a “killing of a human by another human”.”

That doesn’t change the fact that self-defense is a precisely defined concept. It may be difficult or impossible to determine in a specific case whether or not an act of violence actually was self-defense, but in order for the question, “Was this self-defense” to even be meaningful there must exist a sharp conceptual division between what is self-defense and what is not. If there is no sharp line then the question, “Was this self-defense” has no well-defined answer and putting together facts to try and answer it is a waste of time. That such a process is not a waste of time is tantamount to the fact that self-defense is a well-defined concept.

The whole purpose of theories of ethics (including property rights) is to work out the conceptual problems. If you haven’t worked out the sharply defined conceptual problems you will hopelessly lost in trying to solve real-world cases. It’s like trying to solve a physics problem before you even know how to solve algebraic equations.

“If I wrote as the first line of my book “It was the best of times, and the worst of times”, would you recognized it? If Dickens brought infringement suit against my use, and that was the only similarity between his work and mine, who would win?”

As an IP proponent it is your job to answer that question! That you are asking me only convinces me further that IP is a vacuous theory. My whole point is that if the theorists cannot answer all those questions then their theory is empty. It is a non-sequitur to jump from this to pointing out that real world cases about physical property have details that need to be worked out on a per-case basis. Physical property theory always gives answers to those questions, even if determining the answer involves collecting facts that would be impractical or impossible to collect. At least it gives an answer! IP theories do not give answers to any questions regarding the division between legitimate IP claims and illegitimate IP claims (i.e. 7 notes or 8 notes).

“Although I think you may have earlier stated that you don’t care what the law says, I just want to make it clear to you that if you did care enough to read a summary of how the copyright laws operate around this issue, you would find that it has a coherent system for resolving this issue, and that in all but the most fantastic situations, it is entirely consistent with the intuition you already have.”

It absolutely is not. Under the current copyright law a person can copyright an 8-note melody, and that is not at all in line with my intuition. It is patently absurd to me on every level that there would be property rights in any amount of music. No, every single court case over IP has been utterly absurd to me. I know why you are saying this. It’s because you think I care that the law is “coherent” and claim it is not.

I don’t care if a law is “coherent” and it is absurd to think I should. A law that says everyone has to drink 5 bottles of Everclear every Sunday is perfectly coherent and answers all the questions regarding whether a person is guilty of breaking it or not. Are you suggesting that is sufficient to justify this law?

Yes, you can draw arbitrary lines in the sand. It doesn’t change the fact that they are arbitrary and it is thus tyrannical to exercise violence based on where you draw those lines.

I think you still conceive of ethics as a “Let’s get together and agree on how society will work” sort of situation. As I have pointed out before, this is nonsense because if everyone came to agreement there would be no conflicts and no need for any sort of ethic. Ethics is not about people making agreements on how to do things. It is about determining how to act when there is *disagreement*.

Suggesting that agreement yields justifiability is a more sophisticated way of saying “might is right”, which is no more and no less than a flat rejection of any ethics.

“As a result, just knowing that if I actually infringe on someone’s copyrights I will suffer some negative consequence, I will strive to avoid it. I will not copy a clearly recognizable phrase. I don’t need to. I can say, “These were the best times of our lives, but also the worst.” That would make it less likely to be infringing, yet still expresses the meaning I intend.”

This has nothing to do with “intention”, and I think you miss my point. My point is not that a person may “accidentally” copy a melody. My point is that whenever a person writes a melody he thinks about the melodies he has heard other people write and no matter how hard he tries, no matter what his intention is, he is making use of those structures he has heard. I do it all the time. I discovered from listening to other music that I love certain chord progressions, and melodic elements, and I use them all the time. I use them because I heard them in other pieces and want to try using them myself. Is that breaking the law or not? It has nothing to do with intention.

A lame musician may simply recreate a song because he has no inspiration and can’t come up with anything original. Is he guilty of breaking copyright? Shall we punish him for not being creative enough?

Keep in mind you said “less likely to be infringing”, not “not infringing”. You’re still not sure, there is still a chance you are infringing, so why bother? Why not spend your time doing something that won’t potentially land you in court?

“As an added bonus, I suspect that the work of Dickens is by now in the public domain. By the time something gets that popular, it is no longer copyrighted. Why wouldn’t I copy it then? Because most readers would recognize that I was simply taking Dickens’s words and claiming them as my own. I would lose credibility as a creative artist. So I would try to be original. That originality is part of the standard for works protected by copyrights.”

Why yes! It’s almost as though there is no need for copyrights and suggesting that something bad would happen if they weren’t around is silly! After all, people don’t need a gun pointed at their heads to not want to recreate other peoples’ work. Of course copyright extends far beyond that, to those who just want to listen and not tweak. Unfortunately, there is no way to isolate the latter cases from the former in a non-arbitrary way. By making it illegal to listen to music in some ways, you cannot help but make it illegal to write music in some ways.

“In summary, you are acting like it is a total and complete minefield, when in fact it is all rather easily navigated.”

You seem to think that just because you can navigate it means it’s okay. Yes, and you could navigate my “drink 5 bottles of Everclear every Sunday” with far less effort that this! It doesn’t change the fact that I pulled “5″, “Everclear” and “Sunday” out of my ass and there is no logical explanation for the choice. The same goes for how many notes make a copyrightable melody or whatever limits are placed on what can be patented. Citing an example (statutory law) of arbitrary lines drawn in the sand doesn’t conflict with this, it only reassures me that one is in fact capable of drawing arbitrary lines.

“If in fact you start from scratch and write a novel, and avoid copying directly those things that you know were made popular by others, you will avoid almost all potential problems.”

Assuming of course that everyone everywhere is completely reasonable and no creative author would dare attempt to abuse his legal privileges to extort helpless up-and-coming creative people out of money! Also, you used a vague term: “directly”. We come full circle back to the concepts being inherently vague and thus failing to establish concretely who is guilty and when. Also, “made popular” is far more vague. How many people have to care, and how much, before something is “popular”?

If I did this with music I would discard potential ideas to use until I’m left with nothing and congrats, no music for anybody.

“If it ain’t broke, why fix it?”

Indeed. Physical property rights deals with all these issues just fine. Confounding the issue with suspicious, vague claims to property that were clearly not homesteaded or traded towards the claimant, seems at best pointless and at worst dangerous. IP will not lead to more creative authorship or technological innovation but less. IP clearly does not lead to more peace but causes huge international problems in which people in Sweden are supposedly bound by laws passed in the United States (I am citing a real world example, but what possible formulation of IP could avoid that issue?) and plenty of college students have been slapped with fines so huge they’ll never make a solid living. Issues inherent to enforcing IP have obviously led to far more problems than they could ever solve, assuming there are any “problem” to be solved at all.

Physical property rights provide plenty of avenues, in fact more than any alternative including IP rights, to make a living from being creative or innovative, and protect authors’ rights to refrain from publishing. If it ain’t broke, why fix it?

Wildberry April 14, 2011 at 4:55 pm

@sweatervest April 14, 2011 at 2:47 pm

Because the state, despite all of its efforts and claims, can’t be everywhere all the time.

I suppose “Big brother is not quite big enough”, is one possible explanation. However I think you overlook that fact that the state is not a party to a dispute. Infringement is a cause of action brought by the rights holder, not by the state. The state is the plaintiff only in criminal cases. IP is a civil cause of action, not criminal. Therefore, you explanation is not reasonable. The state has no motive; damages go to the plaintiff, not the state.

I fail to understand how you disagree that any creative process draws from the creations you have seen in the past. No matter how original you think you are being, you are drawing influence from the things you have experienced already.

You fail to understand it because I have not said otherwise. Of course you are correct. It is merely the act of copying that is prohibited. That leaves a wide swath of human knowledge, information and experience that is fair game.

This has nothing to do with what I said. You are still implying that if you want to safely make music without potentially being a criminal, you need to listen to every copyrighted melody ever made and memorize them all before starting.

I said no such thing. If you are a musician, and you compose a song that starts with the first five bars of “Love me Tender”, do you think, as a composer, you will not notice, or that no one else will.

It is true that there are rare cases where a famous musician is sued by an obscure artist over the similarity between tunes or lyrics. In these cases, it is the burden of the plaintiff to prove the elements of infringement. The more obscure, the more difficult to prove access. It is not really much of a real problem, in reality. However if you are a musician, you have to decide whether listening to music from other composers is a help or a hindrance as far as originality goes. It is inescapable that if your song is similar to another that you have heard, you will notice.

I’m sorry, I thought we were debating what should be, not what is. Thank you for reminding me that statutory laws exist. I’m an anarchist so you should probably also remind me that states exist. Also, since I care about ethics, you should just point out that crime exists.

I fail to understand your sensitivity to this. If we were trying to establish the meaning or usage of a word, would you object to referencing a dictionary? Ignoring the dictionary, the law, or the state does not make them disappear, and I don’t expect that I have write my own dictionary to talk to you. Lighten up.

That doesn’t change the fact that self-defense is a precisely defined concept. It may be difficult or impossible to determine in a specific case whether or not an act of violence actually was self-defense, but in order for the question, “Was this self-defense” to even be meaningful there must exist a sharp conceptual division between what is self-defense and what is not. If there is no sharp line then the question, “Was this self-defense” has no well-defined answer and putting together facts to try and answer it is a waste of time. That such a process is not a waste of time is tantamount to the fact that self-defense is a well-defined concept.

I think all you did here is demonstrate my point; the general rule is easy to understand, but not so easy to apply given the vast range of possible facts. Therefore, it is also a “fuzzy” rule.

The whole purpose of theories of ethics (including property rights) is to work out the conceptual problems. If you haven’t worked out the sharply defined conceptual problems you will hopelessly lost in trying to solve real-world cases. It’s like trying to solve a physics problem before you even know how to solve algebraic equations.

On the other hand, you cannot solve complex orbital problems with simple algebra, especially on the scale of interstellar space. In my view, there is too much emphasis here on the alchemy of the origin of property rights. It is equally legitimate to acknowledge that they exist, that they operate according to certain rules, and there are different scales and scopes of analysis. At some point, this becomes a philosophical rat hole that goes on forever. Isn’t the longevity of these blogs reasonable evidence of that? Are we really all that stupid that we just can’t see the truth? Or is this a philosophical question that has no definitive proof that can be universally held? I think the latter. All I’m interested in, frankly, is to get a consensus that an author owns his own manuscript, and we can move on from there. It ultimately doesn’t matter how you reach that conclusion as long as we can accept that premise as a first principle.

“If I wrote as the first line of my book “It was the best of times, and the worst of times”, would you recognized it? If Dickens brought infringement suit against my use, and that was the only similarity between his work and mine, who would win?”

As an IP proponent it is your job to answer that question!

With all due respect, the answer is already crystal clear. It is only because you object to my answer, and reject anything that is not re-written here in this blog, that the debate rages on. It is not the case that there is no answer, it is that you don’t like the answer, and object when I try to explain by pointing to what already exists for resolving this question. You are saying in effect, “explain algebra to me, but don’t use numbers.”; kinda difficult.

That you are asking me only convinces me further that IP is a vacuous theory.

Do you really not get that it was a rhetorical question? I am not asking you to tell me the answer! I am asking you to think about what is involved in answering the question.

My whole point is that if the theorists cannot answer all those questions then their theory is empty. It is a non-sequitur to jump from this to pointing out that real world cases about physical property have details that need to be worked out on a per-case basis. Physical property theory always gives answers to those questions, even if determining the answer involves collecting facts that would be impractical or impossible to collect. At least it gives an answer! IP theories do not give answers to any questions regarding the division between legitimate IP claims and illegitimate IP claims (i.e. 7 notes or 8 notes).

If this was the case, we would not longer need criminal trials. We would just have an accusation, look up the rule, and pass out sentence. Property theory does not give precise answers. It gives general rules and assigns rights according to those rules, against which facts can be interpreted. Live is not software code, unless you are in the Matrix!

It absolutely is not. Under the current copyright law a person can copyright an 8-note melody, and that is not at all in line with my intuition.

Do you know this for a fact? I think you might be wrong. Now what?

It is patently absurd to me on every level that there would be property rights in any amount of music. No, every single court case over IP has been utterly absurd to me. I know why you are saying this. It’s because you think I care that the law is “coherent” and claim it is not.

Whatever. What am I supposed to do with this?

I don’t care if a law is “coherent” and it is absurd to think I should. A law that says everyone has to drink 5 bottles of Everclear every Sunday is perfectly coherent and answers all the questions regarding whether a person is guilty of breaking it or not. Are you suggesting that is sufficient to justify this law?

Yes, you can draw arbitrary lines in the sand. It doesn’t change the fact that they are arbitrary and it is thus tyrannical to exercise violence based on where you draw those lines.

This is hysterical. It sounds like you need to back off the 5 Hour!

I think you still conceive of ethics as a “Let’s get together and agree on how society will work” sort of situation. As I have pointed out before, this is nonsense because if everyone came to agreement there would be no conflicts and no need for any sort of ethic. Ethics is not about people making agreements on how to do things. It is about determining how to act when there is *disagreement*.

Agreements define disagreement. If it is not one of the other, it hasn’t come up yet.

Suggesting that agreement yields justifiability is a more sophisticated way of saying “might is right”, which is no more and no less than a flat rejection of any ethics.

You are certainly covering a lot of territory. “Might makes right” is the first line of defense of an asserted right. It comes with a high transaction cost. Ethics is an agreement to act morally according to certain ethical principles. That lowers the transaction costs.

This has nothing to do with “intention”, and I think you miss my point. My point is not that a person may “accidentally” copy a melody. My point is that whenever a person writes a melody he thinks about the melodies he has heard other people write and no matter how hard he tries, no matter what his intention is, he is making use of those structures he has heard. I do it all the time. I discovered from listening to other music that I love certain chord progressions, and melodic elements, and I use them all the time. I use them because I heard them in other pieces and want to try using them myself. Is that breaking the law or not? It has nothing to do with intention.

You say all of this as if it is the objective of copyrights law to stifle the creation of music. Yet we have copyright laws and we have lots of music. Is it just that ineffective? If so, why are you so adamantly against it? Have you been sued? Are you being sniffled or victimized?

A lame musician may simply recreate a song because he has no inspiration and can’t come up with anything original. Is he guilty of breaking copyright? Shall we punish him for not being creative enough?

The world is filled with cover-bands. I have never seen the Gestapo at a dive bar with a live band. What’s up?

Keep in mind you said “less likely to be infringing”, not “not infringing”. You’re still not sure, there is still a chance you are infringing, so why bother? Why not spend your time doing something that won’t potentially land you in court?

If you are really concerned about being hit by a bus, you can stay in your house. Otherwise, it might be a reasonable risk to live a little. You act like you don’t have any musical room to move (credit to John Mayall).

After all, people don’t need a gun pointed at their heads to not want to recreate other peoples’ work.

Unfortunately, some people do. If men were angles, etc. If you are not one, then what are you worried about?

Of course copyright extends far beyond that, to those who just want to listen and not tweak. Unfortunately, there is no way to isolate the latter cases from the former in a non-arbitrary way. By making it illegal to listen to music in some ways, you cannot help but make it illegal to write music in some ways.

Hyperbole.

You seem to think that just because you can navigate it means it’s okay. Yes, and you could navigate my “drink 5 bottles of Everclear every Sunday” with far less effort that this! It doesn’t change the fact that I pulled “5″, “Everclear” and “Sunday” out of my ass and there is no logical explanation for the choice. The same goes for how many notes make a copyrightable melody or whatever limits are placed on what can be patented. Citing an example (statutory law) of arbitrary lines drawn in the sand doesn’t conflict with this, it only reassures me that one is in fact capable of drawing arbitrary lines.

“Arbitrary” has such a bad rep! Remember my earlier comment about bright lines? Well the “fuzzy’ thing is somewhat arbitrary, meaning exactly where you draw the line is not mathematically precise. It is “arbitrary, not as in “no rhyme nor reason; random” but “we have to draw it somewhere, at some point in the infinite boundary conditions of uncertainty”.

Assuming of course that everyone everywhere is completely reasonable and no creative author would dare attempt to abuse his legal privileges to extort helpless up-and-coming creative people out of money!

Well, isn’t this why we have laws, (and PDA’s in your utopian vision)?

Also, you used a vague term: “directly”. We come full circle back to the concepts being inherently vague and thus failing to establish concretely who is guilty and when. Also, “made popular” is far more vague. How many people have to care, and how much, before something is “popular”?

Like so many who write here, you say these things as if we all are a bunch of idiots who can’t tell our ass from a hole in the ground. How about assuming intelligence instead of stupidity, and apply a little common sense, and ask if what I said could possibly be said and understood by a reasonable person? Life is not precise, but we generally have an idea where we are when we wake up in the morning. That is about all that is required to overcome your hyperbolic objection.

If I did this with music I would discard potential ideas to use until I’m left with nothing and congrats, no music for anybody.

This may be a problem for you, but I seem to have heard that the music industry is worth billions per year. How in the heck could that happen, given the oppressive land of copyrights and State coercion and terror tactics?

Indeed. Physical property rights deals with all these issues just fine.

I’m always fascinated when I hear people describe their fantasies as if they were a part of the real world. Last time I checked we live in a world that includes copyrights (yep, just checked again, and sure enough!) How the hell do you know with such certainly that your theories of “physical property rights deals with these issues just fine”? You have a theory, an untested theory. You haven’t even graduated to the real issues of how property and liability rights operate, and the difficulty of externalities that have to be addressed under your theory of “physical property rights”. How is it that you feel justified in speaking with such authority?

IP will not lead to more creative authorship or technological innovation but less.

You make it sound like we live in a world without it, and you are responding to the threat of bringing it about! Don’t you have things backwards?

nate-m April 14, 2011 at 5:40 pm

> The state is the plaintiff only in criminal cases. IP is a civil cause of action, not criminal. Therefore, you explanation is not reasonable. The state has no motive; damages go to the plaintiff, not the state.

Haha. You keep telling yourself that. It’s pretty obvious that this is not the case and the state has a distinct and obvious motivation in IP law. Oh and there is absolutely criminal levels of copyright violation. For a guy who goes on and on about defending copyrights and IP law you sure have a lousy understanding of it.

Copyright infringement is a crime if the defendant acted willfully and
e i the r ( 1 ) for comme rc ia l advantage or private financial gain, ( 2 ) by reproducing or distributing infringing copies of works with a total retail
value of over $1,000 over a 180-day period, or (3) by distributing a “work
being prepared for commercial distribution” by making it available on a
publicly-accessible computer network. 17 U.S.C. § 506(a)(1). Copyright
infringement is a felony only if the infringement involved reproduction or
distribution of at least 10 copies of copyrighted works worth more than
$2,500 in a 180-day period, or involved distribution of a “work being
prepared for commercial distribution” over a publicly-accessible computer
network. See id.; 18 U.S.C. § 2319.

Sharing a music file over the internet is a criminal act. The IP fascists still haven’t gotten around criminalizing patent violations, but there are certainly big advocates of IP working on it.

Of course you are correct. It is merely the act of copying that is prohibited.

Except, of course, your wrong. Much of IP law focuses on actions that have nothing to do with copying. There are plenty of ways to run foul of patents without any copying occurring _at_all_. It _happens_constantly_. Case after case after case. Lawsuits after lawsuits after lawsuits successfully prosecuted that have not one wit of anything to do with copying.

In my view, there is too much emphasis here on the alchemy of the origin of property rights.

Were this comes from is the plain obvious fact that IP law has no real relation to property rights. Dejure property rights is a extension of defacto property rights that are universal in nature and occur spontaneously in any human society. Property rights not only exist because they are desirable, they exist because they are required. What can be debated is the specific applications and nature of property rights.

There is no such thing that happens with anything related to IP Law. There is no such thing as ‘owning a idea’ or ‘owning a concept’. It’s physically impossible.

The ONLY reasonable defense for IP law is based on a argument of expediency. That human society is wealthier, better off, with IP law then without it. That supporting IP law will invariably end up with the ‘Greatest Good for the Greatest Number’ type thing. Yet this is something that so-called Pro-IP libertarians seem to steadfastly refuse to debate about. Because, you know, something like that requires actual evidence and careful consideration.

Going the intellectually lazy route and continue to equate IP law with property rights.. then get all hand-wavy, diversionary, and pseudo-spiritual is all that IP fascists have a seem to have when their logical fallacies are challenged.

sweatervest April 14, 2011 at 6:31 pm

“However I think you overlook that fact that the state is not a party to a dispute. Infringement is a cause of action brought by the rights holder, not by the state. The state is the plaintiff only in criminal cases. IP is a civil cause of action, not criminal. Therefore, you explanation is not reasonable. The state has no motive; damages go to the plaintiff, not the state.”

Okay I think I see what you are saying here, but if I do it only suggests to me that most people don’t take IP claims that seriously. I still think the error you make you and other places in this post is in assuming that “IP discourages innovation” is incompatible with “IP and innovation coexist”. These are not incompatible. All the first statement means is that in the absence of IP, *with all other things constant*, there would be more innovation than there is now with IP.

So I don’t think any observation of the existence of IP and the creative process contradicts the charge that IP interferes with the creative process. What matters is I have yet to hear or come up with a theory of IP that does not make all of these things people always do illegal according to it. That is more or less my point in bringing it up. I intend to demonstrate that if IP were to be upheld perfectly it would result in a dystopia of no innovation or creation.

This is distinct from physical property rights. They are not, and never will be, perfectly upheld, but if they were it would lead to a utopia (to be clear, I am not a utilitarian and admit that “utopia” must be subjective. A person who wants nothing other than to violate others would consider this to be a dystopia. But either way, it would be wealthy and full of innovation and creation). Of course such a scenario is either impossible or highly unlikely, but this is how these things are approached. Every physics problem ever done is an impossible idealization of reality. And yet physics gave us modern technology.

“You fail to understand it because I have not said otherwise. Of course you are correct. It is merely the act of copying that is prohibited. That leaves a wide swath of human knowledge, information and experience that is fair game.”

Okay I did misunderstand, but I think you also misunderstand me! What I am arguing here is that the “wide swath” of which you speak is synthesized by referencing the part of knowledge/information/experience that is already expressed. Sure, physically speaking, all the patterns already exist. Everything Shakespeare wrote existed at least conceptually before he actually put it all together, but what he wrote was guided by what had already been written. So I say if you actually close yourself off to already existing creative works you remove the only way to actually synthesize any of the rest of the patterns/experiences that are already out there but not yet expressed.

What I am arguing is that if you could have access to all the relevant details, you would find that every single “great” or even “popular” creative work has at least one quote from an earlier piece that the author previously experienced. That may sound crazy, but maybe some of the greatest lines of poetry were uttered by unknown people and overheard by their “authors” as they walked down the street. But I don’t see this as problematic. Authorship is, as far as I can tell, taking pieces of other works and finding new and interesting ways to put those elements together.

I’ll admit while this is technically a problem IP would have to face, there is no need to get so far off the central points, which are about copying other peoples’ recordings and even selling them. There’s plenty of juicy controversy over that (i.e. I don’t think there’s anything wrong with it).

“I fail to understand your sensitivity to this. If we were trying to establish the meaning or usage of a word, would you object to referencing a dictionary? Ignoring the dictionary, the law, or the state does not make them disappear, and I don’t expect that I have write my own dictionary to talk to you. Lighten up.”

Haha I didn’t get mad I was just being sarcastic because, to be honest, I think it’s a silly thing to bring up. Obviously if statutory law played at all into how I am thinking about this I would reach the same conclusion you do. It reminded of the many times non-libertarians have “reminded” me that states have existed constantly throughout western history as I try to explain why they *shouldn’t* exist.

“I think all you did here is demonstrate my point; the general rule is easy to understand, but not so easy to apply given the vast range of possible facts. Therefore, it is also a “fuzzy” rule.”

But with IP even the general rule can’t be understood! That is what I am trying to say.

“On the other hand, you cannot solve complex orbital problems with simple algebra, especially on the scale of interstellar space.”

Yes, you have to solve them with more complicated algebra or differential equations. Every physics problem involves modeling a real system as an ideal abstraction that can be described precisely with mathematical equations. I think you are getting too caught up on the modeling step. You always lose accuracy in this step, and what you end up studying is not exactly what you are trying to know more about. But you can’t know anything unless you study the idealization. The only way to gain any sort of solution, accurate or not, is to model complex orbital systems in interstellar space. For one, we certainly don’t know all the subtle variations in radius and reflectivity on different parts of the surfaces of planets. They are treated as point particles. An absurd assumption, right!? Sure, but accounting for the details can only change the answer so much, so we narrow the solution down to something that tells us more than enough to accurately predict telescope observations.

“In my view, there is too much emphasis here on the alchemy of the origin of property rights.”

Well, to me this is like saying solving physics problems relies too much on the “alchemy” of Newton’s Laws of Motion. They are pretty mysterious right? Especially if you take them for granted and don’t try to understand where they come from. But if you don’t have Newton’s Laws, you have nothing. You can throw out physics claims left and right like “heavier objects fall faster” which is almost always true (because of air friction) but you won’t gain any insight into understanding reality, and you will never predict things before you see them. To do that, you need the “alchemy” of Newton’s Laws.

The “alchemy” is the basis of the theory. Of course I don’t think it is alchemy. I think you should focus your critique on what you think is the alchemy. We’re getting too distracted by this stuff about Platonic forms.

“Are we really all that stupid that we just can’t see the truth? Or is this a philosophical question that has no definitive proof that can be universally held? I think the latter.”

We are going down a rat hole here! Because what I would say in response is that what you are putting forth is a “definitive proof” that an answer to this particular question has no definitive proof. So it must not be that you are adverse to definitive proofs (if you were you couldn’t argue anything!) It must just be that you think this particular thing has no definitive proof. But if you are to convince me, you must show me your definitive proof of this claim!

“All I’m interested in, frankly, is to get a consensus that an author owns his own manuscript, and we can move on from there. It ultimately doesn’t matter how you reach that conclusion as long as we can accept that premise as a first principle.”

This may surprise you but I think we are all in agreement about this! The author owns his manuscript. I agree with that. He decides what to do with it. If he wants to not publish it, someone would have to violate his *physical* property rights to get his hands on it, for copying or anything else. If he does want to publish it, he can have the publisher sign a contract to only make copies on the author’s consent. Then the publisher can require everyone who buys the book to sign a contract first saying they won’t copy it (EULAs are not valid contracts, but this is just a problem with how things are done now). This is all in line with physical property rights.

But what if someone violates the contract? Then a copy gets out that people can acquire without entering contracts. The original copier is guilty of breaching copyright and can be punished for this, but none of the people who copy the first illegal copy are guilty of anything. The work is now in the public domain and the author has no legal avenue to compel people to buy his work from the publisher and not obtain an unlicensed copy.

Furthermore, what if someone comes over to my house, I bought a copy of the book, and while I’m in the kitchen he photocopies every page? Now, technically, he trespassed on my property by doing that without my permission, but if he doesn’t damage the physical book I can’t really hold him for any restitution. Then he goes out and shares this copy and people start copying it. Then the copy got out and there were no contract violations (unless the contract said you violate it even if you accidentally leave it out somewhere to be copied).

So I think we are in agreement until someone breaks the contract or accidentally allows someone to copy the book.

“With all due respect, the answer is already crystal clear. It is only because you object to my answer, and reject anything that is not re-written here in this blog, that the debate rages on. It is not the case that there is no answer, it is that you don’t like the answer, and object when I try to explain by pointing to what already exists for resolving this question. You are saying in effect, “explain algebra to me, but don’t use numbers.”; kinda difficult.”

No, it’s like asking you to explain algebra to me instead of just presenting its results and expecting me to just believe they are logical results. Explaining algebra is quite a task. It would involve a head-first dive into axiomatic set theory. Presenting its results to be memorized is quite easy. Sure you know how to add, subtract, multiple and divide but do you know why it works?

You keep wanting me to look up copyright laws, and I already have. They didn’t give me the information I have requested. I think you are mistaken on what information I am looking for, and I think you misunderstand the nature of my objection to drawing arbitrary lines in the sand.

“If this was the case, we would not longer need criminal trials. We would just have an accusation, look up the rule, and pass out sentence. Property theory does not give precise answers. It gives general rules and assigns rights according to those rules, against which facts can be interpreted. Live is not software code, unless you are in the Matrix!”

I never said we will ever have a perfectly sound and irrefutable property rights theory. Knowledge is always in an incomplete state and people will debate over what the right theory is. I am not trying to discourage you from criticizing my property rights theory. I want you to actually criticize it instead of jumping to this issue about theory verses practice. Perhaps I’ve pushed by Kantian idealism too hard here, because that’s really not the issue. I think you misunderstand me greatly (probably my fault) when you suggest I am looking at life as a software program. I know exactly what you are talking about. I am actually strongly opposed to the idea that humans are just complicated computers (I’m a dualist like Mises).

Rather, let me make another analogy to physics. The way people figured out Newton’s laws, particularly that an object in motion remains in motion, is that they thought well if it didn’t remain in motion it would have to stop, but where? Why stop here, instead of there? There’s no answer to that question, so it must be that objects in motion remain in motion (unless something intervenes of course, in which case when and where is not arbitrary, but the when and where of the intervention). You could easily say “I have a physics theory that says things stop after 10 feet of motion”. Sure, that resolves the question, but in a completely arbitrary way. Why 10 feet and not 20 feet? Etc. etc.

I would suspect that you are about to tell me that ethics is not physics. Ethics is about people acting together, physics is about deterministic reality. This is where we disagree. To me (thank you Hoppe) ethics is just like math or physics: a set of statements that can be argumentatively justified, that is claimed “true”.

“Do you know this for a fact? I think you might be wrong. Now what?”

One of my professors mentioned that a few years back, it may be wrong. But I still think you misunderstand the nature of my objection. There is no number that, if I saw it in the statutory law, would make me think “oh well that makes sense”. It is the very fact that a number is being assigned that I am claiming is absurd.

“Whatever. What am I supposed to do with this?”

This is a response to you making claims about my intuition. I figured you would be interested in hearing what my actual intuition is, that’s all.

“Agreements define disagreement. If it is not one of the other, it hasn’t come up yet.”

I know what you mean, that we would be agreeing that a disagreement took place, but this dodges my point. A and B disagree on how to use a good. Of course they are agreeing to disagree. But agreeing to disagree doesn’t exactly solve the problem. They don’t say, “Okay, so we agree that disagree on how to use this good” and then walk away. There is still a problem, and ethics is the solution. What I am saying is that people have to disagree (and, yes agree to do disagree) for there to be any problem for ethics to solve. If they instead agreed that they did not disagree on how to use anything, they would just walk away (or do whatever they’re gonna do) and there is no problem for ethics to even talk about.

“This is hysterical. It sounds like you need to back off the 5 Hour!”

I’m calling you out on this one. This was the best point I brought up in that post. It is a conclusive disproof of the claim that coherency of a law speaks at all to its legitimacy. Call it names all you want, but that’s dodging the argument!

“Last time I checked we live in a world that includes copyrights (yep, just checked again, and sure enough!)”

This is why I get sarcastic. Crime exists too, so why are you even pretending that ethics matters for anything. People kill each other, so you can’t have anything to say about it.

Most of the rest of what you said I already covered. That IP and innovation coexist does not rule out IP working against innovation. You highly misunderstand what you call my “utopian fantasies” or whatever, which may be my fault, but I find it pretty silly that people make such nonsense charges against an attempt to use rational analysis to better understand things. All you seem to want to say is “the world has uncertainties so who knows”. At least I’m theorizing! At least I keep bringing stuff to the table to be debated!

Wildberry April 14, 2011 at 6:38 pm

@nate-m April 14, 2011 at 5:40 pm

Haha. You keep telling yourself that. It’s pretty obvious that this is not the case and the state has a distinct and obvious motivation in IP law.

OK, explain the motive to me.

Oh and there is absolutely criminal levels of copyright violation. For a guy who goes on and on about defending copyrights and IP law you sure have a lousy understanding of it.

Instead of this; The state is the plaintiff only in criminal cases. IP is a civil cause of action, not criminal.

I should have said this: The state is the plaintiff only in criminal cases. IP is most often </bL a civil cause of action, not criminal.
Nice catch.

In such circumstances as qualify under criminal statutes BOTH civil and criminal causes of action would stand. So, the state would be a party to the criminal action, but the civil action would still stand for the plaintiff, the copyright holder. Remember OJ Simpson? The main point is this: In a civil action, damages go to the plaintiff, in a criminal action, the fines go to the state and the perp goes to jail, potentially. The state pays for jails. So tell me, what is your theory for why the state is motivated by IP laws?

Much of IP law focuses on actions that have nothing to do with copying.

I was referring to copyright. Do you have anything of substance to say, other than you think I’m stupid and ignorant?

Were this comes from is the plain obvious fact that IP law has no real relation to property rights.Dejure property rights is a extension of defacto property rights that are universal in nature and occur spontaneously in any human society.

You are misinformed. They are not universal, but are suited to their particular purpose. They arise when the need arises. The history of property rights emerging in the beaver trapping indigenous Indians of north east America is a fascinating case history, for example.

Property rights not only exist because they are desirable, they exist because they are required. What can be debated is the specific applications and nature of property rights.

On this I agree, if I understand your meaning.

There is no such thing that happens with anything related to IP Law. There is no such thing as ‘owning a idea’ or ‘owning a concept’. It’s physically impossible.

For someone who criticizes others for not knowing IP law, you are certainly full of it here. Copyright law specifically excludes ideas from the subject matter of copyrights. It is not rational to oppose something for doing what it specifically seeks to avoid.

The ONLY reasonable defense for IP law is based on a argument of expediency. That human society is wealthier, better off, with IP law then without it. That supporting IP law will invariably end up with the ‘Greatest Good for the Greatest Number’ type thing. Yet this is something that so-called Pro-IP libertarians seem to steadfastly refuse to debate about. Because, you know, something like that requires actual evidence and careful consideration.

Well, I certainly gratified that you cleared this all up for me. At least we have reduced the problem to the ONLY reasonable defense. That should simplify things.

Going the intellectually lazy route and continue to equate IP law with property rights.. then get all hand-wavy, diversionary, and pseudo-spiritual is all that IP fascists have a seem to have when their logical fallacies are challenged.

This is brilliant. Do you mind if I quote you on this?

Wildberry April 14, 2011 at 6:40 pm

Crap! That’s twice.

What happened to the “click to edit” function?

Wildberry April 14, 2011 at 6:43 pm

Slightly easier to read:

@nate-m April 14, 2011 at 5:40 pm

Haha. You keep telling yourself that. It’s pretty obvious that this is not the case and the state has a distinct and obvious motivation in IP law.

OK, explain the motive to me.

Oh and there is absolutely criminal levels of copyright violation. For a guy who goes on and on about defending copyrights and IP law you sure have a lousy understanding of it.

Instead of this; The state is the plaintiff only in criminal cases. IP is a civil cause of action, not criminal.

I should have said this: The state is the plaintiff only in criminal cases. IP is most often a civil cause of action, not criminal.
Nice catch.

In such circumstances as qualify under criminal statutes BOTH civil and criminal causes of action would stand. So, the state would be a party to the criminal action, but the civil action would still stand for the plaintiff, the copyright holder. Remember OJ Simpson? The main point is this: In a civil action, damages go to the plaintiff, in a criminal action, the fines go to the state and the perp goes to jail, potentially. The state pays for jails. So tell me, what is your theory for why the state is motivated by IP laws?

Much of IP law focuses on actions that have nothing to do with copying.

I was referring to copyright. Do you have anything of substance to say, other than you think I’m stupid and ignorant?

Were this comes from is the plain obvious fact that IP law has no real relation to property rights.Dejure property rights is a extension of defacto property rights that are universal in nature and occur spontaneously in any human society.

You are misinformed. They are not universal, but are suited to their particular purpose. They arise when the need arises. The history of property rights emerging in the beaver trapping indigenous Indians of north east America is a fascinating case history, for example.

Property rights not only exist because they are desirable, they exist because they are required. What can be debated is the specific applications and nature of property rights.

On this I agree, if I understand your meaning.

There is no such thing that happens with anything related to IP Law. There is no such thing as ‘owning a idea’ or ‘owning a concept’. It’s physically impossible.

For someone who criticizes others for not knowing IP law, you are certainly full of it here. Copyright law specifically excludes ideas from the subject matter of copyrights. It is not rational to oppose something for doing what it specifically seeks to avoid.

The ONLY reasonable defense for IP law is based on a argument of expediency. That human society is wealthier, better off, with IP law then without it. That supporting IP law will invariably end up with the ‘Greatest Good for the Greatest Number’ type thing. Yet this is something that so-called Pro-IP libertarians seem to steadfastly refuse to debate about. Because, you know, something like that requires actual evidence and careful consideration.

Well, I certainly gratified that you cleared this all up for me. At least we have reduced the problem to the ONLY reasonable defense. That should simplify things.

Going the intellectually lazy route and continue to equate IP law with property rights.. then get all hand-wavy, diversionary, and pseudo-spiritual is all that IP fascists have a seem to have when their logical fallacies are challenged.

This is brilliant. Do you mind if I quote you on this?

nate-m April 14, 2011 at 7:46 pm

So tell me, what is your theory for why the state is motivated by IP laws?

Patent fees provide direct profit motivation. The patent office is the only profitable branch of government.

During the cold war the patent system provided a means in which the USA government could intercept inventions that may have strategic value and prevent them from going public.

It’s also useful in ‘political rent seeking’. Large corporations use the patent system as a weapon to prevent competition from new enterprises. As a result politicians that support patent monopolies are provided financial contributions, employment after ‘public service’ and other kick-backs. Also it provides opportunities to profit from fraud and corruption through the manipulating the bureaucratic process in the patent office.

Copyrights were established as a mechanism for censorship. They have perpetuated as a mechanism for manipulating the market in favor of large publishing companies. As a result statist government has enjoyed considerable political support from these media companies in more ways then one. The majority of popular/traditional media outlets, through mechanisms like the FCC, and ran and controlled by a few major corporations. These corporations have significant interest in movies, music, and television industries.

In return for acts like the DCMA, expanding copyright terms, expanding enforcement resources, pushing international treaties, and other such legal activities that can heavily impact the profitability of these large media conglomerates politicians enjoy significant political support. The politicians exploit this for their own political goals… such as running for reelection.

Campaign finance reform plays into this in a fairly obvious way. I can explain it to you if you want.

[quote]For someone who criticizes others for not knowing IP law, you are certainly full of it here. Copyright law specifically excludes ideas from the subject matter of copyrights. [/quote]

Then you freely admit that copyright law has nothing to do with protecting property?

[quote]It is not rational to oppose something for doing what it specifically seeks to avoid.[/quote]

A drunk ‘seeks to avoid’ running over small children on the sidewalk when they are driving. However, quit often, they do end up driving up into the sidewalk by mistake and if there was children there they would of been killed. Happens quite a bit. It’s not a valid defense of a drunk driver to say he is trying to avoid what he did actually do.

Well, I certainly gratified that you cleared this all up for me. At least we have reduced the problem to the ONLY reasonable defense. That should simplify things.

It actually does.

It would allow people here to discuss the merits of IP law and whether or not the violations of private property are worth it. Rather then being continuously sidetracked with a bunch of ‘copyrights/patents are property rights and thus are libertarian’ mumbo-jumbo.

Wildberry April 15, 2011 at 2:51 pm

@nate-m April 14, 2011 at 7:46 pm

Patent fees provide direct profit motivation. The patent office is the only profitable branch of government.

From the USPTO website:

Results of Operations
The USPTO generated a net income of $94.7 million for the year ended September 30, 2010, an increase of $149.5 million over FY 2009 net cost of $54.8 million. This variation is the result of a few factors, explained in more detail in the Statement of Net Cost discussion.

So, your theory is that Fed is motivated by $94.7M of revenue over costs (governments don’t work on a profit motive, since it is a government agency. Think DMV) out of a total budget of something like $3.5 Trillion? Hmmm. Also, the discussion mentions deferred costs of getting fees before the application is processed, when all costs have been accounted for, as one explanation for why 2010 was in the black, and 2009 was not.

During the cold war the patent system provided a means in which the USA government could intercept inventions that may have strategic value and prevent them from going public.

Is this a bad thing? You WANTED to speak German or Japanese?

It’s also useful in ‘political rent seeking’. Large corporations use the patent system as a weapon to prevent competition from new enterprises. As a result politicians that support patent monopolies are provided financial contributions, employment after ‘public service’ and other kick-backs. Also it provides opportunities to profit from fraud and corruption through the manipulating the bureaucratic process in the patent office.

I don’t doubt this. I agree that mercantilism is always bad. This is not unique to patents or copyrights, though, right?

Copyrights were established as a mechanism for censorship. They have perpetuated as a mechanism for manipulating the market in favor of large publishing companies. As a result statist government has enjoyed considerable political support from these media companies in more ways then one. The majority of popular/traditional media outlets, through mechanisms like the FCC, and ran and controlled by a few major corporations. These corporations have significant interest in movies, music, and television industries.

Mercantilism is bad. That has nothing to do with the legitimacy of the principles of IP, just like our current government proves nothing about the fundamental principles of self-government. Things can, do and have gotten out of whack. To borrow from Kinsella (who stole the idea from Tucker apparently) you want to throw out the baby with the bathwater because you think it is Rosemary’s baby?

In return for acts like the DCMA, expanding copyright terms, expanding enforcement resources, pushing international treaties, and other such legal activities that can heavily impact the profitability of these large media conglomerates politicians enjoy significant political support. The politicians exploit this for their own political goals… such as running for reelection.

Which of these two do you think is more harmful overall, the Federal Reserve and global central banking, or patents and copyrights?

Campaign finance reform plays into this in a fairly obvious way. I can explain it to you if you want.

No need. I probably agree the political system that is based on collusion between business and government is a common enemy.


For someone who criticizes others for not knowing IP law, you are certainly full of it here. Copyright law specifically excludes ideas from the subject matter of copyrights.

Then you freely admit that copyright law has nothing to do with protecting property?

What? Copyright law enforces property rights in original works of authorship AND specifically excludes ideas from the subject matter of copyrights. What do you make of that datapoint?

It is not rational to oppose something for doing what it specifically seeks to avoid

A drunk ‘seeks to avoid’ running over small children on the sidewalk when they are driving. However, quit often, they do end up driving up into the sidewalk by mistake and if there was children there they would of been killed. Happens quite a bit. It’s not a valid defense of a drunk driver to say he is trying to avoid what he did actually do.

Good point. Let’s look it over. As an ex ante principle of law, driving drunk is illegal precisely because it increases the probability that drunks will not be able to avoid running over children even if they try, while the ex post principle provides for additional punishment if the drunk fails.

The purpose of a law against drunk driving is to incentivize the driver not to drive drunk, and to insure unpleasant and costly consequences if he does, AND injures someone. In this way, it would be reasonable to say that the law seeks to avoid squished children, but does not always succeed.

You have given an example of when the purpose of the DUI law fails. Do you have an example where the purpose of copyright fails because it actually has protected an “idea” which it specifically seeks to avoid doing?

It actually does.
It would allow people here to discuss the merits of IP law and whether or not the violations of private property are worth it. Rather then being continuously sidetracked with a bunch of ‘copyrights/patents are property rights and thus are libertarian’ mumbo-jumbo.

Despite my earlier sarcasm, I actually agree with you that there are other issues. This is why I have been saying lately that IF we can agree that the author owns his original manuscript, provided he produced it with his own means of production, then we can get onto the economics of law issue that you allude to.

This is the more significant issue, I agree.

sweatervest April 14, 2011 at 2:58 pm

“I, in writing my book, know whether I made this up out of thin air, or whether I simply copied it from Dickens”

The first one is not an option. There is no such thing as making something up “out of thin air”, unless you’ve been existing in a vacuum up until that point. You have to draw influence from somewhere, and there is no way to decide in a non-arbitrary fashion what amount of influence from a single work is “too much”.

Wildberry April 14, 2011 at 3:44 pm

@ sweatervest April 14, 2011 at 2:58 pm

OK, but that is a bit of a nitpick.

What I mean specifically is, without any access to the/a protected work. Everything else, which is considerable as you point out, is fair game.

To be even more precise, the issue is:

1) Are the two works “substantially similar”, AND

2) a) is there direct evidence of copying; b) is there circumstantial evidence of access AND substantial similarity between the works; or c) is there such striking similarity between the two works that there is no other reasonable explanation other than copying.

Wildberry April 14, 2011 at 10:48 am

Neil,

Your responses, IMHO, are very solid. I have yet to see you struggle with a single inquiery.

It is ironic/predictable that your theory comports with the principles of “statist laws”. The results you obtain are essentially the same results from the operation of existing law, in general.

I realize that is not relevant to our argument, but it is an interesting data point.

Regards,

Stephan Kinsella April 15, 2011 at 3:05 pm

FYI, Wildberry’s contributions are so scattered and incoherent, I have largely stopped reading them.

Beefcake the Mighty April 15, 2011 at 3:12 pm

Wildberry is the intellectual equivalent of a Cleveland steamer.

Wildberry April 15, 2011 at 4:41 pm

The only thing worse than passive aggression is gross passive aggression.

BTM, win.

Matthew Swaringen April 15, 2011 at 8:40 pm

Too many question begging assertions. I keep hearing why IP exists over and over but not any proof that it is actually helpful. When internal contradictions between IP and physical property are pointed out the assumption is physical property should cede, yet no good reasons as to why. Schulman seems to say this has to do with some kind of superior metaphysical notion called “identity” that has greater importance to existence than existence.

It’s just bizarre.

Zorg April 15, 2011 at 8:42 pm

The Ever-Present Wildberry wrote:

“Copyright law enforces property rights in original works of authorship AND specifically excludes ideas from the subject matter of copyrights. What do you make of that datapoint?”

I’m wondering how a story is not an idea. It’s an idea that was fleshed out and put down on paper. Seems like another distinction without a difference to me, like the fact that a story is a “thing” with a unique identity which makes it different from other things with identities (no kidding?). Patents also obviously refer to ideas. Strip away the semantic question-begging tricks referencing property away from IP arguments and what’s left? It’s just an effort to commodify and monopolize information flow. All of the verbiage of the construct of property is lifted out from the economic world of scarce resources and rivalrous goods, and then superimposed onto the non-economic world of information (ideas, utterances, patterns). It sorta reminds me of how Rand superimposed economic language onto interpersonal relationships. It certainly sounds just as creepy and leads to the same type of confusion. You just can’t take one rubric and apply it to everything. This is how a lot of weird philosophies get traction. Some true insight is taken from one area of life and brought to others where it simply doesn’t belong and doesn’t work.

Instead of IP proponents trying to argue that ideas are property by analogy, what they really need to do in order to test themselves is to first develop a consistent non-contradictory theory of property which would naturally include IP. I certainly don’t see that being done here. I’m reading here just one analogy after another. But analogies are only helpful to illustrate something; they don’t establish anything. The analog is always taken for granted and that’s why an analogy works to convince, but when people skip the foundational logic of the very thing they want to establish, the analogies become mere rhetoric. As if a car driving from land onto a ferry establishes that a story is property! Give me a break, guys.

Wildberry April 16, 2011 at 8:10 pm

@Zorg April 16, 2011 at 1:15 am

OK, this is hilarious. Seriously funny.

Tell me, O Wise One, does an Originator own the raw material of his creation? He uses SOMETHING to create with. What is it? Is it ideas? Possibly, eh? What else is there? So either he owns ideas which he uses as raw material to create a story he then owns, or he does not own the ideas – if ideas can’t be owned. If the latter is the case, then how can he claim to own something he made which doesn’t consist of elements that he previously owned – and more importantly, still doesn’t? I think someone actually brought this up before.

Listen, Grasshopper; if I use air to forge a sword, when I am finished, is the question of owning the sword merely one of whether or not I owned the air?

The transformation in question requires a forge and other capital equipment, raw materials, labor, and a production plan; when all brought together in exactly the proper order, the results are a finished good: a sword.

This transformation also requires things from the public domain: air, and the idea that a sword is better for hacking other people than a lump of raw materials, and the knowledge that when you are finished making it, someone will want it. In this case, it is clear who owns the sword, is it not? Even though making it does not require that everything that went into the production is owned as property at the outset.

The principle here then, is that tracking ownership of property depends on tracking those things that are NOT in the public domain. Something you own (capital goods, raw materials, self) PLUS something in the public domain (ideas, air, process knowledge, personal skills, and knowledge of the sword market). If something is in the public domain, no one owns it, but you don’t lose your ownership of other things because you use them, right? We track the things others don’t own to figure out ownership claims.

The exact same situation is the case with authorship; ideas, letters of the alphabet, facts, formulas, the English language, rules of grammar, and the knowledge of a common understanding of words and expressions of language among people who can read, are all things that exist in the public domain, like air. No one owns them, and you would have just as much right to use these things however you see fit; you don’t need to own air to breath it, you just need to know that no one else claims to own it.

What I do own is myself, and all the capabilities of expression that is unique to me. I own the pen and paper I use to capture my expressions. I don’t own the letters of the alphabet, but because I use them, it means that I own nothing?

This is how one arrives at the conclusion that an author owns the original manuscript that he creates. It is a scarce good, as it is unique in the universe. It is comprised of ideas, words, language and taken all together, constitutes something I will call an original expression. No one on earth, as long as I keep it to myself, has a better claim to it than I.

Do you disagree with this conclusion? I really want to know. Please answer.

Star Trek would still be Star Trek without IP laws.

How can you be so sure about this? The fact is that ST was created in a world in which copyrights existed. Surly then, you would agree that whether it would or not exist without copyrights is a matter of pure speculation. That is one difference between our arguments. I can point to facts, you can only point to your speculations.

that is before you get into the whole thing where they own it forever and can prosecute people for looking at what they originally broadcast for free.

Just a clarification of some facts; copyright term is not forever (despite the fact that it is too long in my opinion) and you cannot prosecute people for what you claim. There is something called a fair use doctrine, and one of the key cases having to do with this issue dealt with the home recording of TV. You can’t get prosecuted for doing that.

It’s funny that you would get all uppity

Really? “Uppity”? Like buying Playboy for the articles, I only watched ST for the philosophy.

Now, I guess we must protect the right of some XYZ corporation which owns the rights to license Spock dolls or whatever.

Your theory of private property is wavering. Private property is OK as long as it isn’t owned by a nasty, evil Corporation?

TV programming that was made to sell dish soap and bubble gum 40 years ago has become a monster franchise for a select few to milk forever.

Roddenberry died in 1991, so only until 2061. And under principles of a free market, libertarians try to not dictate how people use their property, even if it is to sell bubble gum.

Have you ever watched a Star Trek clip which was illegally posted on YouTube (as everything else in the world is)? Did it make you feel dirty? Did you have to avert your eyes when you thought of the FBI Warning on your old Star Trek VCR tapes?

Funny. Ethics and morality are different things; that’s why there are two words instead of one. We may all do things that we know are wrong. We are talking about the principles, not the conduct.

YouTube is an interesting situation. Isn’t it interesting that if YouTube posted music files or copyrighted books, it would get busted, but not video clips? This seems inconsistent with the treatment of Napster, doesn’t it?

Ok, now get busy Mr Thief and write the Widow Roddenberry a nice fat check for depriving the franchise of its property by your lying eyes and evil intent! XYZ/Paramount has mouths to feed, you know. Or, better yet, call the FBI and turn yourself in. They’re always looking for people to roll. : )

Every day I walk past beggars and don’t give them any money. And they ask me for it every day, even though I never fork it over. Does that make me a bad person?

That was fun.

Peter Surda April 18, 2011 at 11:55 am

Wildberry,

I’m posting at the end, since apparently your post was lost in the recent site updates.

Just because you keep making the same ignorant point over and over doesn’t mean you are saying anything relevant or correct.

Just because you keep ignoring the flow of conversation and diverge it does not mean what you are saying is either relevant or correct.

Contracts assign liability rights and require privity of the parties. Property assigns ownership rights, and does not require a contract, and therefore privity is irrelevant.

Therefore, you should not conflate the ability to restrict someone contractually with a property right. It’s a non-sequitur. Make up your mind, either the fact that you can restrict a potential customer contractually does not imply there is property involved, or you cannot apply such a restriction to third parties. Either way, it’s irrelevant with regards to IP so kindly stop referring to it.

This, on the other hand, is idiotic. You’ve actually outdone yourself.

If anything is idiotic, it is certainly not me. I try to formulate coherent arguments. What you produce is a waste of time. Your attempts to crawl up Schulman’s ass, how you commended him for answering all the questions, although any flow of arguments he engages in clearly ends in him contradicting himself, further support my former claim that your purpose for the debates here is to earn recognition for your nonexistent talents rather than intellectual curiosity.

Wildberry April 18, 2011 at 12:47 pm

Eat me Surda.

Only you would equate my statements of support for Neil with something vulgar.

Peter Surda April 18, 2011 at 12:04 pm

Dear J. Neil Schulman,

since it looks like my post was scrapped with the site updates too, I repost it here:

How does looking at a house differ from moving in?

Looking at a house or taking a picture of it does not alter the integrity of the house. Both however result in a copy. Xeroxing a picture does alter integrity, but xeroxing a copy does not. So how do you formulate coherent rules to decide what is legal and what not?

That’s a question to be directed to a statist since your question refers to current statist law.

In your logorights article as well as a former reply to me, you write that you do support fair use. Now you deny it. So which is it? Can you make up your mind?

Some uses are below the threshold for damages or deprivation of the fruits of ownership and others aren’t.

Apart from not explaining how to differentiate it, you neglect that it is the type of action rather than hypothetical value of it that is the question. In fact you create a new question and bring back the value of the good into light, although you earlier denied that you talk about value. So, whether copying is permitted or not depends on value? Does that also apply to physical goods? Can I steal something that is cheap?

For example, a cool breeze from your property to mine brings me the pleasant smell of your orange grove. I may breathe in that scent without damaging you. Climbing your fence, grabbing and eating one of the oranges, raises the threshold, but possible not enough to be a violaton. Harvesting your orange crop and selling it at the farmer’s market without your permission is definitely a violation.

As I said above, the distinction that “we” (loosely used to refer to IP opponents here) make is that the first one does not involve anyone altering the integrity of the property, whereas the next two do. The value of each action is irrelevant.

The scent is just some pollen and other microscopic parts of the tree that the air currents moved. Purely hypothetically, the original owner might claim he wants them back, but a reasonable judge would probably tell him that it’s a foreseeable naturally occurring phenomenon and if that was not his intention he should have kept the tree in an airtight seal. Just like, for example, when someone takes a picture of the tree, that are just the photons from the sun reflected by the tree that the camera captures and can be prevented by keeping the tree behind an opaque case. If photographing is a property rights violation, then so is smelling of pollen, whistling at girls with short skirts, not having to breathe in the sweat of co-travellers in a train compartment because they use deodorant, and other phenomena commonly known as externalities.

You have yet to provide any coherent claim. It all seems to come back to the value (which you deny). Nevertheless, the first chapter of “Building Blocks For Liberty” by Walter Block at al. explains why approaches other than physical integrity fail both logically and praxeologically.

Comments on this entry are closed.

Previous post:

Next post: