I do think it is helpful to accurately describe the legal nature of patent and copyright, and the ability of the holder of these rights to restrict how others’ use their property is very similar to the negative servitude. If you can show people that this is the case, then maybe they can see that IP is invalid since the servitude was never agreed to by the servient estate owner. But of course we can expect Wildberry and his ilk to disingenuously twist and distort whatever explanation we come up with.

I don’t understand why you bring up atoms and quarries. With respect to my argument, they are irrelevant. A necessary condition for being bound by a restriction (including servitudes) is entering into a contract. The details of that restriction are irrelevant to people who did not enter into a contract. If you enter into a contract and subsequently try to wiggle out of it (which is what your examples are), it still only affects you, rather than people who did not enter into the contract. Whether you (i.e. the person from the examples) succeed or end up in jail, that’s your problem and noone else cares.

To put this back into the topic, if an author wants to prevent everyone from copying as such, he needs to make sure that prior to having an opportunity to copy, one has to agree to a contract. Servitudes do not change this. However, having an opportunity to copy does not, per se, imply either a violation of property rights, or a contractual agreement. So the argument that copying necessarily violates servitudes (which is essentially what Wildberry’s saying) is false.

In other words, the whole debate is pointless with respect to IP. There might be a minuscule overlap between what is colloquially called IP and servitudes, just like there might be a minuscule overlap between non-disclosure agreements and IP, but that only means that IP is incoherent rather than “servitudes prove IP”.

This is why I am not a great fan of articles like the one about negative servitudes. It’s a distraction and instead of helping people understand, it confuses them.

This is not the copying I have in mind, and you know it.

Very odd, I could have sworn that I already explained this to you in the past. I hope Wildberry did not infect you with his stupidity.

You are – once again – essentially claiming that there is no definition of “copying”, that if I have some pieces of paper in my possession with words on them that there is no way to decide if the words were copied from “Harry Potter” or not. This is not a serious position.

You are misrepresenting my position. If you can restrict copying by contracts, it does not follow that such a restriction is a consequence of property rights of an arbitrary object that is referenced by such a restriction, or that it applies to people outside of the contract. If I, for example, contractually agree to abstain from copying a specific book, it does not mean that the ability of the other party to enforce such a restriction is the consequence of the property rights in that book. I explained this to Wildberry around the end of April.

You may as well argue that you can’t restrict someone from, say, commercial activity by servitude because you can say “I just happened to build a building, with a sign and a reception.

If he voluntarily agreed to a contract where he promises not to use the building for commercial purposes, then you can evaluate whether the terms of contract were violated or not. There is, of course, some level of uncertainty in it, but because both parties entered into a contract voluntarily, you know they assumed a common understanding of it. I already told you this quite some time ago. However, such a restriction has no effect on people who did not enter into the contract. Since they did not enter into a contract, you cannot assume that they had any common understanding regarding such a restriction.

I would say this argument for not being able to prevent commercial activity is not much more absurd than your argument that you copying can’t be outlawed because it is just “causality”.

You are mixing together two things: restrictions that follow from property rights as such, and restrictions that follow from contracts. If two people agree upon certain future behaviour, it does not follow that this has any effect on other people’s future behaviour.

You say – repeatedly – things like

“On the contrary, I explained it explicitly. The servitudes run with the original. They do not, per se, run with copies. They only run with copies in your fringe cases….. Now we’re back to you using causality to justify property rights….Each copy is causally related to the original. So, is causality a sufficient condition for a property right claim or not, Fraudberry?”

Kinsella has also said the same many times, for example this

“This is nothing more than the old argument that you can create IP by contract, and you are dressing it up by calling it an easement. Your argument here seems to be that if A sells an object to B, burdened by an easement, then third parties C, D, etc., are somehow bound by this easement. This may be true in the case of a resale of the particular object by B to C”

or this

“YOu appear to here be talking about an actual object originally owned by the author, and still subject to a servitude owned by that author (the “copy” of the manuscript–i.e. a physical book).”
It’s clear, now after some time, that you agree that restrictions can “run” with a “particular object” – with a particular collection of molecules. You should not assume what I say below are the only objections to this theory that I have. I in fact think this view – which you all seem so proud of and think is the clincher – is borderline insane.

But I might ask what you meant when here

http://blog.mises.org/16855/state-or-private-law-society/#comment-780243

you explained how land and movable property were basically the same because “From the point of view of a primitive society, there might be a difference, but when you have drills, dynamite and trucks there isn’t really much.” So, are you saying if the topsoil is replaced you extinguish the easement, because the physical atoms are gone? No? How deep to we have to go? I turn my land into a quarry – does this extinguish it?

To even have this discussion shows that you’re out to lunch. It has nothing to do with the particles of soil, and everything to do with the dominant estate being able PERFORM THE ACT that the original easement was designed to allow eg. access some location not otherwise reachable without the easement.

Just like, as I pointed out above on this thread, Kinsella told me there was no difference between moveable and immovable land from a homesteading perspective beause it suited his purpose but then contradicted himself later, you previously pulled out “when you have drills, dynamite and trucks there isn’t really much” difference argument when it suited you on that same thread. Are you now also going to come out with something different?

I could also say that as for your absolute 100% cast-iron certainty that there can be no restriction on any other property (eg. copies) that were not one of the “particular objects” subject to the original agreement – what about a negative servitude preventing use of the property for commercial purposes? I am not allowed – even if I make no adjustments to the land molecules at all – to use my property to sell stuff from it or use my phone to call yellow pages as per the scenario above? These weren’t a “particular object” involved in the original agreement, so why am I restricted?

Again, the particular act that the original servitude was designed to prevent – the commercial use – is what is important, not tracking individual molecules like a crazy person.

“The usage of three out of five senses (vision, hearing, smell) does not require possession of the object you are observing. Any time you use one of those, you are copying.”

This is not the copying I have in mind, and you know it. You are – once again – essentially claiming that there is no definition of “copying”, that if I have some pieces of paper in my possession with words on them that there is no way to decide if the words were copied from “Harry Potter” or not. This is not a serious position.

You may as well argue that you can’t restrict someone from, say, commercial activity by servitude because you can say “I just happened to build a building, with a sign and a reception. And if I want to place ads for this building in the yellow pages, that is my business. And, if when people see these ads and come to see me they decide to request I exchange the stuff I have lying around on shelves in my building for bits of metal or paper they have in their pocket, who are you to get in the way? What are you, a fascist?”.

I would say this argument for not being able to prevent commercial activity is not much more absurd than your argument that you copying can’t be outlawed because it is just “causality”.

very well quoted. According to Friedman, the reason why the switch from communal land ownership to private land ownership was due to a technological breakthrough: the domestication of dog. This sounds very plausible.

However, it is still unclear to me whether the dogs attacking third parties (“trespassers”) constitute a violation of property rights or not. The explanation merely shows that the new system supersedes the old one.

http://www.daviddfriedman.com/laws_order/index.shtml

He discusses your attack drones.

I would like to say that your posts are very unique and I mean that in the positive sense.

If I had to summarise my position with regards to your arguments is that there are two separate requirements for a legal system. First, a proponent of a specific legal system must provide a coherent set of rules. These rules, given facts regarding a situation, must evaluate to either true or false (i.e. whether the facts are in accordance or in violation of them). Most people can’t even pass this threshold, so this is what I usually end up debating about.

Second, the data that serves as an input for these rules should be as neutrally determinable as possible. You could say this is a normative requirement, I admit as much.

However, we know (and you seem to agree) that the reason why people attempt to construct legal systems in the first place is the scarcity of resources. So, in the final step, the use of scarce resources is the question that the legal system has to answer. I’m simply saying that the minimalist (Occam’s razor) approach is to both start and stop at the question of scarce resources.

The example with Indians also seems relatively simple, on the first look. However, if I understood you correctly, the example divides scarce goods into two types: those you can homestead, and those that you can’t (for example, due to technical difficulties or unprofitability). That is an unnecessary assumption, so due to Occam’s razor I recommend to eliminate it. It’s an empirical distinction, rather than a praxeological one.

Most people agree at least to some extent with the concept of homesteading, i.e. do not disregard the approach of scarce goods completely. However, most people have the urge to mix these with interpretations of those scarce resources. In my opinion, this is something that is outside of the scope of economics or even science, so I typically try to avoid it. Out of all possible interpretations of scarce resources, which ones should be relevant and which not? Who knows? I don’t think this is something scientists should be taking seriously.

for example, you say “the purpose of property rights is to determine which acts are permitted and which are not” – I agree. But why bother to phrase it like this if you really mean “aggression, and only aggression, is illegal”? As you won’t consider the idea of blackmail being illegal at all, because it isn’t aggression, then why use the first phrase at all? It is valid only if you can show that someone agreeing with one must agree with the other and vice versa – ie. they are identically equal. I don’t belive they are.

Here are some of the things you said:

“What I am saying is that the purpose of property rights is to determine which acts are permitted and which are not….He relinquished the possession of the mines/drones. Why should he be responsible for what happens afterwards?…The other problem is that it can lead to the demise of the Indians….The system you describe leads to demise. It might work in a hunter-gatherer society, but it prevents anything more complex, e.g. farming…..Now, you might claim that your system does that, but the counterexamples I provided challenge that. If egress is denied to you, are you allowed to break out? Should your pack have a 24/7 guard to watch if someone is trying to deny you egress? Are you responsible for the effects of objects you abandon?”

And

Me:“You seem to be advocating that property rights are the “efficient” solution rather than something derivable from fundamental givens like the ownership of your own body”.

Peter: “In a way, you are right, although I would not use the word “efficient”.

I agree that these are all good answers. I succeeded in my aim getting you to make arguments similar to ones I have made elsewhere – because my point is that these are not up for debate in the context of patents/copyrights/trademarks. Whenever anyone brings them up, the argument immediately reverts to “well, whatever, it doesn’t matter anyway because tangible objects can’t be property so go away. You’re a moron”. This isn’t debate, it’s just a dog and pony show (and I know that there is a resource crunch with scarce goods that is not present with any kind of intangible entity – the situations are not identical, but this is not, to me, the magic bullet everyone thinks it is).

Apologies for delay, I would like to respond to your points in detail but I don’t have time right now – and I don’t actually think I disagree with either of you that much actually.

The point of my question was to ask what reasons we have for rejecting the Indian system of property rights – not because I think that is the way we “should” live, but to get some reasons for rejecting ANY system of property rights (one that seemed to satisfy Kinsella’s initial requirements) in favour of the homesteading theory.

Kinsella didn’t provide them, his answer was in fact very surprising in that he just asserted the problem away by saying “If you can’t ever own land you can’t own anything else, even including your own body; and all civilized life would be impossible”. Whilst I of course don’t deny that this system makes “civilized” life impossible, Kinsella has also said:

“Libertarian opponents of anarchy are attacking a straw man. Their arguments are usually utilitarian in nature and amount to “but anarchy won’t work” or “we need the (things provided by the) state.” But these attacks are confused at best, if not disingenuous. To be an anarchist does not mean you think anarchy will “work” (whatever that means); nor that you predict it will or “can” be achieved.”

So in this quote, Kinsella is saying that he doesn’t care if anarchy “works” or not – the ONLY thing to consider is “is there any aggression”. He has said this innumerable other times also.

It is this I have a problem with. On the one hand, we need a system which allows for civilization which requires we agree on some methods of interaction that allow for this. On the other hand, his stance on aggression means that the approach to each and every problem, without exception, is and can only be: who owns what tangible good?

These two approaches conflict as they stand – if further elucidation reveals that they don’t then it should be easy to explain in step by step fashion why this is true. I don;t see any sufficiently systematic approach to this in this theory.

I would say i agree with every word in Frank Van Dun’s criticism of Walter Block here

http://mises.org/journals/jls/18_2/18_2_2.pdf

except for maybe one line, where he says “Orchestrating a smear campaign that is intended to drive him out of business does entitle him to compensation, to the extent that his business losses can be traced to the campaign’s lies and false accusations.” I think exactly what a “smear campaign” is would need to be clarified. Otherwise, Van Dun makes very similar (and no doubt clearer) charges to Walter Block and I’m not persuaded by Block’s response.

I’m not going to dignify this with a response.

You have been complaining for quite some time that homesteading does not cater for advanced division of labour. You presented a theory, which, in your own words, does not provide a better system for division of labour. When I point this out, you object.

Can you please explain what I am missing about the “concept of scarcity” as I genuinely have no idea.

I think I misunderstood you. Please ignore that part.

In my scenario there is no such thing as a previous occupant, only a current one.

This is limited inasmuch the previous occupant might alter the land in some way that interferes with the activities of the current one.

Hang on, maybe you have retracted these comments below, i’m not sure.

You are correct.

Killing is obviously still a “crime” in this society even if you do it remotely via a mine or attack clone and not face to face.

Although the activities of the white man would be causally related to the deaths, I don’t think you can, in your system, make the conclusion that he violated their rights. He relinquished the possession of the mines/drones. Why should he be responsible for what happens afterwards?

So, assume there are no deaths or bodily harm, let’s say it just means the land is unfit for use for someone who doesn’t know exactly where the mines are.

That’s not the only problem. The other problem is that it can lead to the demise of the Indians.

There is nothing different in principle here to a fence – in that you have simply added to the cost that it will take to step in and use/occupy the land for a while.

You neglect to notice that the fence divides the world into two parts. Without homesteading, the parts are equivalent. You can occupy one of them while enclosing another party in the other part. Like in my example, you can build a fence around the Indian’s teepees while they are asleep. Or make that a cage. You enclose them in it, although you don’t occupy it.

In the system of homesteading, this is prevented by making an agreement with the owner of the land to guarantee egress (see Walter’s Block’s papers). Without homesteading, such an agreement is impossible, because as soon as the current occupier leaves, the subsequent one can still deny you egress.

…if there is other land, someone will likely just go and use that instead as it’s easier.

But if you deny them egress, they are screwed.

I don’t think you’ve thought this through.

While it is certainly possible, I don’t think you have thought this through either. The system you describe leads to demise. It might work in a hunter-gatherer society, but it prevents anything more complex, e.g. farming.

You are saying that we must allow homesteading of land that is unguarded because if we don’t it will just happen anyway.

What I am saying is that the purpose of property rights is to determine which acts are permitted and which are not. Now, you might claim that your system does that, but the counterexamples I provided challenge that. If egress is denied to you, are you allowed to break out? Should your pack have a 24/7 guard to watch if someone is trying to deny you egress? Are you responsible for the effects of objects you abandon?

we will have de facto land homesteading system because people will erect barriers around portions of land that are secure enough to mean that the cost of penetrating the barrier is too great.

Well, I have not actually expressed my thoughts about this specific one, but my argument would be that people would be trying to make sure that conflicts can be foreseen, so that they can avoid them without too much effort. Erecting fences is one way of doing that.

You seem to be advocating that property rights are the “efficient” solution rather than something derivable from fundamental givens like the ownership of your own body.

In a way, you are right, although I would not use the word “efficient”.

This clearly makes no sense.

Well, both can be possessed (or occupied), and be left unattended. From the point of view of a primitive society, there might be a difference, but when you have drills, dynamite and trucks there isn’t really much.

I’m asking what we need to add to Kinsella’s request for a system which will “facilitate and support peaceful, conflict-free interaction between individuals” to allow us to also include land homesteading.

What I would add is the requirement that it must be foreseeable which actions would lead to conflict and which not. Occupancy/possession is insufficient, because actions aim at a specific future outcome. If you don’t know who the occupant/possessor at the time of the expected outcome will be, you cannot make rational decisions.

Or it might be because this “who owns what tangible good” as the approach, and the only approach, to each and every problem is one giant dog and pony show.

If property rights is the answer, who owns it is the only question. If you have another approach, tell us.

me:

“the Indians can just go around the property, as you’ve said, until the limited amount of land that is available (scarcity. Land isn’t infinite.) has been homesteaded and there is no more place for the Indians to go around.”

Kid salami
In don’t quite understand this. All the land is occupied. once all the land is occupied, then.. well..all the land is occupied. So what? Someone leaves it, someone else can step in if they want.

Occupied doesn’t mean owned, unless it means that to you. When someone can step into the owned land (not unoccupied, owned), he is trespassing, fence or no fence. Scarcity means that the land that is owned is out of play. It’s not simply tenant or no tenant. It’s available or unavailable.

What is it about this “scarcity” that means we have to change the rules from having to stay and guard the land to being allowed to erect a fence and leave it?

The rules are about ownership — how do you protect and define *your* property — not scarcity.

what is the general principle on which we should accept the homesteading version of property rights instead of the indian version, given that our super-objective is to “facilitate and support peaceful, conf lict-free interaction between individuals”. Can anyone who wants to reply to me please read this to stop me having to say it in every post.

We should accept the homesteading version of property rights because we want property rights. If the Indian method allowed for personal property rights (explain how it would be possible, please?) it would be acceptable in a libertarian format (in my opinion). If there is a viable alternative to establishing property rights that isn’t homesteading, define it.

If your view is the initial land grab decries the fundamentals of libertarianism, fine. What do you want to do about that?

How far back do we need to take this? Somebody is going to make someone mad in the initial land grab. It happens. If this land is sold/transfered/bartered to a new tenant, should the new owner of the land be liable for the initial land grab? Forever? Do we find out from whom the Indians appropriated their land?

Me: “Why have homesteading it at all?”
Peter: “If not for anything else, then at least because you have not provided an alternative.”

I’m not going to dignify this with a response.

“I simply don’t agree with this – this is just an assertion pulled from the air.”
“It is not, it is based on the concept of scarcity. If there was no scarcity, there would be nothing to debate about.”

Can you please explain what I am missing about the “concept of scarcity” as I genuinely have no idea.

“No. If you want to use either of them, you need to occupy them first. If there is a previous occupant…”

In my scenario there is no such thing as a previous occupant, only a current one.

Hang on, maybe you have retracted these comments below, i’m not sure.

This seems to be your answer to my question:

“Let’s say the absentee owner lays mines onto the land he previously occupied. Or even better, he leaves there automated attack drones. When the subsequent contestant appears, the mines/drones would conflict with his plans. Does that mean that if the previous owner does not remove the mines/drones at his expense, he is violating the new contestant’s rights? If not, then why does the presence/absence of mines/drones determine who has the right to use that resource? It does not? Well then you just concluded homesteading.”

Killing is obviously still a “crime” in this society even if you do it remotely via a mine or attack clone and not face to face. So, assume there are no deaths or bodily harm, let’s say it just means the land is unfit for use for someone who doesn’t know exactly where the mines are. There is nothing different in principle here to a fence – in that you have simply added to the cost that it will take to step in and use/occupy the land for a while. A huge barbed wire fence is the same as mines – if there is other land, someone will likely just go and use that instead as it’s easier. (obviously if these mines are set around the local water source, things get complicated but lets ignore that for now).

I don’t think you’ve thought this through. You are saying that we must allow homesteading of land that is unguarded because if we don’t it will just happen anyway. that is, we will have de facto land homesteading system because people will erect barriers around portions of land that are secure enough to mean that the cost of penetrating the barrier is too great. You seem to be advocating that property rights are the “efficient” solution rather than something derivable from fundamental givens like the ownership of your own body. Seems almost the kind of thing you might read from one of the Chicago School.

“They are not different. They are both scarce goods.”

This clearly makes no sense.

“This leads to impractical conclusions, and as we saw from history, war. It also prevents specialisation of labour, which seems to be your favourite.”

Yes, of course it does. That’s why no’one does it. I’m not saying we should live like this – I’m asking what we need to add to Kinsella’s request for a system which will “facilitate and support peaceful, conf lict-free interaction between individuals” to allow us to also include land homesteading. This is tiresome – I believe i’ve taken time to ask a very clear and question and in fact taken time to make it very specific and focused, and you are either not seeing this or dodging it. I believe I made myself clear and that people aren’t interested in actually answering my very simple request for clarification.

This might be because I’m a moron. Or it might be because this “who owns what tangible good” as the approach, and the only approach, to each and every problem is one giant dog and pony show.

“I think the point of homesteading land is equivalent to countries establishing borders. Your point is that ownership is related to property being on your person and the minute that you aren’t physically protecting your land (fence) or your car when it’s parked in the airport parking lot when you’re on vacation there is no conflict when someone takes that property is interesting….If you don’t believe land is ownable/claimable as property in the same manner as an apple, please explain your reasoning, because once I place a “permanent” structure on a piece of land, — and by what manner or authority should I be privy to do that if I do not own the ground on which I construct this permanent structure? — it should inherit the properties of ownership of the land on which it sits. This is the reason for homesteading. This is the reason that land ownership is the cornerstone of wealth building. If you cannot own land, you cannot build permanent assets, and your ability to create wealth is severely curtailed (again, see Haiti).”

I know what I think the “point” of homesteading is, you’re explaining it to me like i’m tarzan and this is my first day in a city. I’m not arguing that there is no justification for it – I’m not arguing that we should be living like these Indians.

What i am asking is very specific – I’ve written it at least twice. I’m saying this: these Indian property rights satisy Kinsella’s request in that they “facilitate and support peaceful, conf lict-free interaction between individuals” and i want to know why we should instead accept his statement that if we want this we should “prohibit (Rothbard/Kinsella) aggression”. I’m not saying we shouldn’t be able to homestead things – i’m asking what is the general principle on which we should accept the homesteading version of property rights instead of the indian version, given that our super-objective is to “facilitate and support peaceful, conf lict-free interaction between individuals”. Can anyone who wants to reply to me please read this to stop me having to say it in every post.

“the Indians can just go around the property, as you’ve said, until the limited amount of land that is available (scarcity. Land isn’t infinite.) has been homesteaded and there is no more place for the Indians to go around.”

In don’t quite understand this. All the land is occupied. once all the land is occupied, then.. well..all the land is occupied. So what? Someone leaves it, someone else can step in if they want. What is it about this “scarcity” that means we have to change the rules from having to stay and guard the land to being allowed to erect a fence and leave it?

“Because of that, *I* agree that ownership of water molecules and photons and ideas needs to be defined to some end, as it relates to here, and frankly I don’t have the answer…I don’t know what the libertarian response to water management is or should be, and how it applies when multiple states or municipalities or even multiple individuals sharing the same water source.”

Ok – not totally sure I have the answer either. But again, I point out that you seem to disagree with the party line around here, which is what I’m arguing against.

“Do I agree that “intangible” things are property? Why do you think I split the topic up? You tell me… 1,2,4 (Land, things, self)- yes …5/6 (ideas, art, music): I can say that a tangible expression of an artistic work or an idea can be owned, but the rest of it, I think is worth discussing.”

You said earlier

“That’s enough of a definition for me. First define what is owned as property, then determine what the rights are with respect to that property, then violations of those rights are considered aggression.”

Ok – but the party line around here is, in short, that there is no such thing as an “artistic work”, and one certainly can’t be “property”. All there are are for the purposes of establishing rights are bits of paper which have ink on them in various patterns – an “artistic work” basically doesn’t exist. So to Kinsella there is nothing to discuss.

I don’t understand – of course there is a rule.

I apologise, you are correct, I misinterpreted your claims. The problem however remains. If a good is not occupied at a specific time, it does not necessarily mean that, from the perspective of the previous occupant, it is unused.

land you are not on right now is not yours and the settler is free to put a fence on it if he wishes

This leads to impractical conclusions, and as we saw from history, war. It also prevents specialisation of labour, which seems to be your favourite.

There is no conflict.

So if my leftover attack drones kill your tribe, there is no conflict?