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Source link: http://archive.mises.org/17750/without-ip-would-there-be-a-world-of-clones/

Without IP, Would There Be a World of Clones?

July 18, 2011 by

A worry one variously hears about getting rid of the idea of intellectual property is that in such a world most of the world will consist entirely in copies of the really successful thing and therefore there would be no real reward for doing something amazing. All incentive to innovate is lost.

I’ve never really understood this line of thinking because in a world of copies, the unique thing is actually valued more, not less. A system that constantly rewards the unique thing – and it can be anything – while marginalizing mere copies is one we should hope for, and this is called the the free market. Of course the unique thing can be copied too, which means that innovators cannot rest on their laurels but must constantly refine, innovate, work hard, progress, compete to win.

Such a market exists in the world of comedy, where jokes cannot be copyrighted by anyone. Every joke can be told by anyone, anywhere. Some people have tried to sue for joke stealing (and actually one can sue anyone for any reason at all!) but the truth is that jokes circulate freely and enter the public domain as soon as they are heard.

This is precisely what has led to such an interesting world of comedy we have today in which personality, delivery, stamina, vocal quality, and other unique traits, are the most valued thing. The text alone is a small part of what goes into the great acts. Every comedian has the strong incentive to become a unique and even non-copyable act, and this is itself the very basis of stardom.

In the wonderful video below, Conan O’Brien describes how this works. Johnny Carson tried to copy Jack Benny, but eventually bailed out and became his own person. This was when his career took off. David Letterman did the same thing with regard to Carson, but eventually failed at trying to copy and instead did something new. So it was with Conan, who tried to copy Letterman but failed. This failure was the beginning of a new career, a reinvention of self that led to a form of success he never expected.

There are lessons here for understanding the capitalist competitive order. Yes, there is the freedom to copy, but the copy is not where the real market value is to be found. Without the freedom to copy, the learning process gets interrupted. And yet this will not lead to homogeneity but rather the reverse: a relentless process to offer the special thing that no one else offers.

As you watch, see how all his best lines seem to be specially crafted to match his personae and personality alone.

{ 383 comments }

Linux Is King July 18, 2011 at 3:01 pm

It would be a world of fast paced change, progress and evolution where originals would arrive rapidly with no fluff and sell for premium prices, then copies would be made for less than premium prices, then other copies would be made for very cheap prices at which point the copycat would have very low profit margins and it would not longer be worthwhile to copy it so new originals would come into place.

A world where you can focus on originality and productivity instead of litigation and infringement.

N July 19, 2011 at 11:11 am

Linux is not king, even if it does not restrict the freedom to copy it restricts the freedom to innovate over existing material. You can call it king when it is in the public domain(or something alike), before that it is just a piece of code hiding behind a tyranical license that forces itself uppon innovators.

El Tonno July 19, 2011 at 5:13 pm

>>code hiding behind a tyranical license that forces itself uppon innovators.

What? Been hitting the bong? Hell, I have yet to see a license that molests you out of the blue while you were quietly sitting a corner sipping a “latté”

Learn2GPL: http://www.opensource.org/licenses/GPL-2.0

Mark July 18, 2011 at 3:03 pm

I thought that limiting competition to a few corporations is what led to copycat products and stifled innovation.

Linux Is King July 18, 2011 at 3:05 pm

“Some people have tried to sue for joke stealing”

Oh my gosh, how can the judge not laugh at this farce.

Daniel July 18, 2011 at 3:23 pm

Nobody’s laughing at Carlos Mencia

I don’t believe in IP, so I don’t care that all he does is rips off other people’s jokes, but he seriously goddamn sucks

J. Murray July 19, 2011 at 10:20 am

Everyone is laughing at Carlos Mencia, just not at his jokes. When you get the South Park treatment, your career is finished. That’s one of those mechanisms in place that doesn’t need IP.

Adam July 18, 2011 at 5:22 pm

This question is an honest one, so please take it seriously:

If I write a book and anyone can go to the store the day it comes out, copy it as many times as they like and sell it, how does the argument above apply?

Along these same lines: I lived in Syria for two years, and, like many poorer/statist countries, it is difficult to find an authorized copy of any movie, regardless of origin. They rarely sell for over $1 – $1.50. If the same situation existed in the West (U.S., Canada, Europe, etc…), what kind of movies would we end up with?

I’ll anxiously await honest replies/answers. Thanks.

Linux Is King July 18, 2011 at 5:49 pm

Honest Reply,

The industry would go broke because it could not make money off it’s movies, people would freely copy it and kill profitability of the industry.

Adam July 18, 2011 at 6:01 pm

So, then am I to conclude that IP is a good thing for all of us, since, as a result, we are all blessed with an abundance of available movies, music and books?

Wildberry July 19, 2011 at 11:14 am

Adam,

Yes, we are blessed. Because economies that do have copyright protection can afford to pay in money amounts that are relevant to development and production costs, they can make money, and the distribution of pirate copies for a fraction of the actual costs can be tolerated in places like Syria without destroying the movie industry.

It is still wrong, but not every wrong can or should be corrected. Sometimes it is not worth the trouble. There is no escape, 100%, from externalities. But when the benefits (profit of movie business) outweigh the costs of external economoies (pirate copies), it is still worthwhile.

Because it is still worthwile to make movies overall, in large part due to the control of pirating within the internal economies within which movie makers operate, low cost copies are available and tolerated in external economies, like Syria. Win Win.

Are there any movie studios in Syria exporting movies to the West? This is probably a large contributing reason the answer is no. Syrians, perhaps, do not have the disposable income to support a movie industry with ticket and DVD sales that are meaningful returns relative to the cost of production. That is why you must import titles from the west. Lucky for Syrian movie buffs, the western movie business exists.

sweatervest July 19, 2011 at 2:29 pm

You still haven’t proven or supported your claim that without IP movie producers would not be paid.

They would not be paid by consumers for copies. They would be paid by producers of the physical goods necessary to enjoy those copies, which are paid for by the consumer.

So, in other words, they will be paid by consumers to produce something for consumption. All that changes is the mechanism.

You have never supported your claim that the abundance of creative material is due to intellectual property and not despite intellectual property.

Del Lindley July 19, 2011 at 3:12 pm

This strikes me as a retrograde solution. Are you suggesting that when I buy a DVD player or computer (for the case of movie streaming) I need to pay a surcharge that reflects the capitalized value of all the media production that I will consume from it? If so this approach would be less free market oriented (and more prone to intervention) than the current IP regime in that at least under the current scheme I can make a clear choice as to whether to accept the embedded IP cost or not. Trying to capitalize the present value of future media consumption, most of which having not yet been created, would be completely nonsensical.

Wildberry July 19, 2011 at 4:16 pm

Del,
Are you suggesting that when you pop in a DVD from Netflix, you are not paying for all the capital costs both for the production of the actual content, but for the distribution channel to get it to your player?

It seems like a pretty efficient economic system based on pay as you go. If you only watch one, you pay for one. If you watch 2/day, you are a major contributor to the entertainment industry, which, from consumers like you, recoup their capital investments plus profit. Producers who offer entertaining products make it, and others don’t.

Like Mises says, the consumer is king.

Del Lindley July 19, 2011 at 5:06 pm

Wildberry,

Whether the price I pay for a good covers the producer’s (past) unit cost is neither here nor there; this only impacts the producer’s profitability and as such it probably will not influence my decision to buy. The only point I am making is that it is impossible to impute a present capital value component to a durable good based on the uncertain future consumption of a complementary good.

Taking the IP element out of the problem, it would be like having golf ball manufacturers compensated by golf club makers based on the number and quality of golf balls those clubs are expected to consume over their lifetime.

Wildberry July 19, 2011 at 5:26 pm

this only impacts the producer’s profitability and as such it probably will not influence my decision to buy.

Of course, nor should it. It is not the consumer’s concern if the price he is willing to pay turns a profit for the producer.

Yet is is a paramount concern to the producer, which was my point. In the absence of IP, producers woud be producing, for the most part, for external economies.

Do you really think that fact would have little or no consequences on the calculations of the producer?

Golf club manufacturers make golf clubs for the purpose that consumers buy golf clubs.

Razor manufacturers “give away” handles so they can sell razor blades.

What is your point, here?

Wildberry July 19, 2011 at 5:36 pm

@sweatervest July 19, 2011 at 2:29 pm

They would not be paid by consumers for copies. They would be paid by producers of the physical goods necessary to enjoy those copies, which are paid for by the consumer.

This is your theory. It is an alternative market theory. Maybe you are right, maybe not. How do you know?

You are suggesting that producers of movies will sell their product to CD player manufacturers, who will give away movies in order to sell players, like the razor blade business.

Can you explain how the consumer is king, in your world view. How does the consumer reward the maker of good movies, and withold from the makers of bad movies, both of which are free and come with the cost of a CD player, say $200.

That sounds like a socialist or communist vision of utopia, where the benevolent manufacturer “provides” movies that consumers want. Hmmm. Why hasn’t that idea taken off?

Del Lindley July 19, 2011 at 6:03 pm

Wildberry,

I have made my point clear enough. I think you need to explore how the meanings of the words “complementary” and “complimentary” differ.

sweatervest July 20, 2011 at 6:12 pm

Del,

The equilibirum price of hardware is not affected by what I am suggesting. Hardware would not sell for more, it would just result in less profit for its producers. That would slow down the hardware market as it reorganizes itself to take on financing of creative material, but that is just a temporary thing and due to the transition off of IP laws. Even then, the removal of patent laws will free hardware companies from expensive lawsuits and licensing and dramatically lower the cost of hardware production. Overall consumers will pay less for creative material because resources are not being wasted in old-fashioned distribution and production of anti-copying technology.

Also, however risky it may be for those hardware companies to fund creative projects, it is equally risky for record companies and studios to do the same now.

“but for the distribution channel to get it to your player?”

Yeah, distribution that could have been done for free over the internet! It’s like paying for breathable air!!

“It seems like a pretty efficient economic system based on pay as you go”

Haha yes. Doing something for millions of dollars that costs basically nothing over P2P networks seems pretty efficient to you, doesn’t it?

“Producers who offer entertaining products make it, and others don’t”

Producers who offer products that entertain the lowest common demoninator make it, while all others don’t because they’re pushed out of the market by IP. That’s why Hollywood movies and big-label music is all hollow, generic pop music that caters only to the most widely held tastes.

“Like Mises says, the consumer is king.”

Apparently not, since you are principally concerned with the woes of the creative producer.

“In the absence of IP, producers woud be producing, for the most part, for external economies. ”

And how many times do I have to say this doesn’t matter? So what? Production for external economies happens all the time.

“This is your theory. It is an alternative market theory.”

Alternative market theory? What does that mean? Alternative to what? It is Austrian economics. It is keeping track of the incentives and identifying those who would serve to profit. You are presenting a public goods theory whether you want to admit it or not, which has been refuted by Austrians plenty of times.

“Maybe you are right, maybe not. How do you know?”

This is a bunch of sophistry. I could say the same thing about everything you have ever said. Maybe you are right, maybe not. How do you know. You don’t, so it’s all moot, argumentation is a waste of time and I just don’t know why you would come onto a public forum to debate that there is no point in debating.

“You are suggesting that producers of movies will sell their product to CD player manufacturers, who will give away movies in order to sell players, like the razor blade business.”

I don’t know what that has to do with the razor blade business, but I am simply recognizing a fact that affects incentives. CD players are worthless without CDs. MP3 players are worthless without MP3s. If someone is trying to make money selling MP3 players and there are no MP3s, then he must produce or someone get someone else to produce MP3s. If this won’t happen on its own he’ll have to pay for it. Otherwise he’ll go bankrupt. Do you deny that or not? Is that insight wrong or not? Can a person expect to sell MP3 players in a world of no MP3s or not? It’s a very simple question. If you answer no, then you admit my point that MP3 player producers simply have to produce MP3s to make their business worthwhile.

“Can you explain how the consumer is king, in your world view. How does the consumer reward the maker of good movies, and withold from the makers of bad movies, both of which are free and come with the cost of a CD player, say $200.”

Consumer is king because consumer has the money. The consumers buy hardware, and the hardware producers start funding creative material. If the producers fund creative material no one likes then no one will continue to buy more hardware and the producers’ sales will drop. If there is other good creative material out there the hardware company will increase their profits by giving more funding to those creators and less to the bad ones in order to produce more good creative material and thus increase the value of their hardware. If you are asking how they can find out what creators people like and what creators people do not like, there are plenty of ways to do this. Ask consumers to allow reports to be sent on what they watch, take online surveys or watch review sites, etc. That same problem is faced with cable providers now and they have a way of dealing with it.

The consumer is king because money comes from him. You are not directly selecting directors now anymore than you would in my scenario. When you go to a theater the theater gets your money. When you buy a DVD the retail store gets your money. Then they go through the studios, and finally to the directors. The path is different in my scenario but no less indirect. In fact it may be more direct by cutting out the distributor.

“That sounds like a socialist or communist vision of utopia, where the benevolent manufacturer “provides” movies that consumers want.”

Are you kidding me? And movie studios don’t “provide” movies that consumers want now? It isn’t movie studio execs that are making decisions on what movies to produce and what not to produce? You aren’t deciding what kind of food is going to be at the grocery store either. What a socialist dystopia that you don’t go to the grocery store ahead of time, write down what you want them to have, and then they go tell the farmers to grow those specific crops. No, the farmers decide for themselves what to grow, and the grocers themselves decide what to buy and shelve. Apparently farmers and grocers are dictating what all of us eat in a socialist fashion!

That is a terrible argument. The only solution to this “problem” is complete and total self-sufficiency where everyone produces only for themselves. Yes, producers have to guess ahead of time what people want to consume. It has never been any different. That’s not exactly what socialism is.

“Hmmm. Why hasn’t that idea taken off?”

Hmmm, maybe because IP laws exist and are enforced? That’s like asking why farms that use wage labor don’t exist next to farms with slave labor.

Del Lindley July 21, 2011 at 1:22 am

Sweatervest,

Are you serious? Referencing “equilibrium prices” and an aggregate “hardware market” smells like old Keynesian dishwater. Just exactly who in the grand and static “hardware market” is going to have to shoulder the content financing responsibility? Sony? Nikon? Hitachi? Samsung? Intel? TI? SanDisk? Western Digital? Cisco? Juniper Networks? So how would rising stars in the electronics industry, not yet showing any profit, be incorporated into your scheme? Oh, I forgot, there wouldn’t be any of these because we are in the nirvana of equilibrium.

The obvious problem for you (beyond my prior capitalization argument which still stands) is that there are so many hardware companies that intersect the entertainment industry either fully or partially in so many complex and fluid ways that no practical allocation of “creative financing responsibility” could be calculated in a free market since there could be no pricing for it, as it would be a “good” that none of the hardware providers would want. A simple division of labor argument makes this conclusion inescapable.

As of now I am an IP agnostic since I have not spent much time studying the particulars of this issue. I suspect however that if the “new” IP laws were jettisoned from the entertainment industry then the “old” IP laws would come back into play: viz, in-demand performers would only do live performances before well-heeled audiences with no recording devices allowed.

sweatervest July 21, 2011 at 11:23 am

“Are you serious? Referencing “equilibrium prices” and an aggregate “hardware market” smells like old Keynesian dishwater.”

Um, are you serious? My claim about the equilibrium price was wrong, it would move, but what does that have to do with Keynesians? And who said anything about “aggregrate”? It’s Keynsian to mention a market? What in the world are you talking about?

“Just exactly who in the grand and static “hardware market” is going to have to shoulder the content financing responsibility? Sony? Nikon? Hitachi? Samsung? Intel? TI? SanDisk? Western Digital? Cisco? Juniper Networks? So how would rising stars in the electronics industry, not yet showing any profit, be incorporated into your scheme?”

Oh, so that’s the problem of economics? To determine which producer shall take on what production tasks? No, I’m not advocating socialism. I’m not spelling out a central plan. I don’t know who would do it, if not all of them. Why should I? If we abolished social healthcare what private companies would take on healthcare production? I don’t know and it doesn’t matter. What bearing does this question hold on the analysis? Who cares which company does it? What matters is the production happens.

“Oh, I forgot, there wouldn’t be any of these because we are in the nirvana of equilibrium.”

Okay you obviously have no idea what you are talking about. Equilibrium prices are a part of economic analysis. What are you suggesting, that all prices are just arbitrary whimsical decisions that say nothing meaningful at all? This is a very stupid mischaracterization of what I said. I never even suggested that real prices are equal to equilibrium prices, I just said the equilibrium price wouldn’t move (which is wrong, it could move but it would most likely move down)

“The obvious problem for you (beyond my prior capitalization argument which still stands)”

No your prior capitalization argument never stood. All investmest is a guess as to what people will want. You can never know ahead of time what investments are worthwhile. If that is a critical problem for producing creative goods then it is a critical problem for all production and production wouldn’t happen.

“is that there are so many hardware companies that intersect the entertainment industry either fully or partially in so many complex and fluid ways that no practical allocation of “creative financing responsibility” could be calculated in a free market since there could be no pricing for it, as it would be a “good” that none of the hardware providers would want. A simple division of labor argument makes this conclusion inescapable.”

Haha that is a terrible argument! Again, farmers only sell to grocers. They do not sell to consumers. According to your logic, grocers don’t want food, so they would never pay farmers to grow food. What are you talking about? Indirect exchange is impossible? All production has to happen in a single step with no roundabout structure and no intermediate steps?

What does division of labor have to do with anything? What I am saying has no effect on division of labor, it has an effect on how production is organized under firms. Division of labor is about different individuals working different jobs, not working for different companies.

And what do you mean no practical allocation? Do you have any idea how integrated, “fluid” or whatever other vague terms you used every market is? In what market are participants not intersecting in complex and fluid ways? And most importantly, how are studios, distributors, content providers, directors, writers, actors, etc. not equally or more intersected as the market functions now?

“As of now I am an IP agnostic since I have not spent much time studying the particulars of this issue. I suspect however that if the “new” IP laws were jettisoned from the entertainment industry then the “old” IP laws would come back into play”

Dude, what new IP laws? What I am describing is a mechanism (not the only one) for creative people to be paid where there are *no* IP laws? You think I am suggesting an alternative set of IP laws? How could you produce such a blatant misunderstanding?

“viz, in-demand performers would only do live performances before well-heeled audiences with no recording devices allowed.”

Okay, so you’re telling me that if there was no recorded music and clearly a demand for recorded music that could be listened to in one’s home, car or on an iPod, then all those producing or thinking about producing home stereos, car stereos and iPods would just let their businesses disappear and they’ll go bankrupt, or they would be unable to poll the tastes of people to fund projects accordingly.

How in the world does the cable industry function? How can cable providers know which channels are popular or not? Even worse, how can the channels know what shows are popular or not?

Last time I checked, you don’t pay only the producers of those shows you watch. You don’t even pay the studios or channels that play lots of shows you like. All you do is pay your cable provider who, unless you signed up for it, cannot even know what you are watching. He has no indication of what shows you want verses what ones you don’t want. According to your concerns it is impossible to accurately price shows, one can only expect the quality of shows to be terrible and customers to be consistently unsatisfied, and the only viable alternative is for each customer to buy each show, or perhaps each episode of each show, individually. Only then will a market be able to function.

If you accept that there exists a functioning cable/satellite TV industry then you concede your whole point.

coturnix19 July 19, 2011 at 7:08 pm

Movies released for theaters are safe anyway. Screeners are generally of such a bad quality, that they even distributed over widely internet would not deter payable customers from going to movies (unless the film really sucks, like for example armageddon(1998)). As for direct-to-video films – they’d probably disappear with disappearance of copyright. Btw, absence of copyright not only parts original producers with profits, it also parts copycats. Same logic as with drug prohibition.

Matthew Swaringen July 18, 2011 at 6:29 pm

Linux is King eh? Why exactly do you think that what works for Linux can’t work for movies? Most of Linux development is done by corporately sponsored programmers even though the companies know they will not profit from the sale of Linux-based operating systems.

Linux Is King July 19, 2011 at 12:36 pm

Because Linux was developped by a large team of programmers scattered world-wide and investing their free-time to code, update Linux with no compensation.

Do you really think that it would be possible to make blockbuster movies with flashy special effects that way ?

Do you really think that a million people will tithe their money worldwide and provide talent, provide some of their time to act in front of a camera, provide their voice etc. to make a movie for free ?

The more I hear about IP, the more I think libertarianism is a load of crap.

Do you think the movie “The King’s Speech” could have been made that way. One scene it’s a guy from NY playing the king, the next scene it’s a guy from Bahrein, then Lionel is played by a guy in Mexico, then by a guy in Calcutta etc.

This would be horrible.

sweatervest July 19, 2011 at 2:45 pm

“update Linux with no compensation”

No compensation? That’s like saying when a large company programs its network it gets no compensation because no one is paying them to write SQL scripts. They are compensated by having a working network! In the case of Linux, the programmers are compensated by having a more functional free operating system.

“Do you really think that it would be possible to make blockbuster movies with flashy special effects that way ?”

Um, yes? Do you think programming an operating system is less work than making a flashy Hollywood movie?

“Do you really think that a million people will tithe their money worldwide and provide talent, provide some of their time to act in front of a camera, provide their voice etc. to make a movie for free ?”

And what do you mean “make a movie for free”? Since you are in the middle of debating IP I can only assume you really mean “make a movie that will be distributed for free”. Why would the actors care how the movie is distributed? They just care about getting a paycheck. You seem to be assuming that charging for distribution (a service which now is almost costless) is the only way to finance a movie. Can you defend this assumption?

“Do you think the movie “The King’s Speech” could have been made that way. One scene it’s a guy from NY playing the king, the next scene it’s a guy from Bahrein, then Lionel is played by a guy in Mexico, then by a guy in Calcutta etc.”

That is a strange comparison. Movies *are* made be people scattered all over the world. Why does that force them to abandon using one actor for one character? Yeah, the actors may be scattered over the world, but make this one this character and this other one this other character. What’s the problem? All you have proven is that a really stupid way to make a movie is in fact a really stupid way to make a movie.

Seattle July 18, 2011 at 6:44 pm

Good. If an industry can’t survive without state protection then it shouldn’t exist.

Adam July 18, 2011 at 6:59 pm

Seattle (btw, I’m also in Seattle),

As a libertarian I’m quite partial to your line of thinking. That being said, couldn’t someone just as easily say that the state is preserving “property rights”? I’m sure this is an ‘old argument’, sorry for forcing you to rehash it.

Matthew Swaringen July 18, 2011 at 7:31 pm

Well, if anything I’d say the state is the greatest threat to property rights. Some might say they preserve them through the police, but how many people are really looking to invade your house? Perhaps in some areas this might be quite high, but I’d argue that the reasons for that are likely in other government interventions (minimum wage laws leading to vagrancy, drug laws promoting gangs, etc.)

Adam July 18, 2011 at 7:41 pm

Again, I’d generally agree with your (and Seattle’s) reasoning. But, don’t we also consider protecting property rights to be one of the very few valid purpose for government? If so, examples of invasive intervention aside (the examples you gave were good ones) wouldn’t protecting the public from theft of all kinds would be a valid purpose? I’m not saying that our current patent process is the only option.

Matthew Swaringen July 18, 2011 at 8:11 pm

Well… I would argue (as an voluntarist/anarchist) that there really is no valid purpose for government. If government were more limited, that would be better, but I think it does a pretty bad job even here. I know this is an annoying answer as a former minarchist, but it’s certainly there.

But I think when you start asking this question of “protecting the public from theft” you really have to ask what that entails. When it comes to physical property if someone wants to protect themselves from theft they may have security guards or a system of some kind, cameras, etc. to make sure no one gets in and takes anything.

And if someone does get in to steal they will leave behind evidence that can be used to find them or at least determine likely candidates for the crime.

But when it comes to IP, to defend it in the modern era requires spying on transactions between individuals freely engaged in trading amongst themselves who have never interacted with the “owner” of the property. If their transactions are encrypted, this is difficult, and their identities are obscured. Even though you may be able to obtain an IP address, the ISP cannot verify anymore than who pays for that account. There is no way to know if they might have been hacked, have an open wifi connection, had someone else over for the evening/etc. who may have been the actual “thief.”

All this means that the amount of false accusations and bad evidence are very high, and even obtaining this information requires being much more invasive. The ISPs have to be forced to give up the information of their users against their will and there is nothing close to the level of a evidence required to get a warrant.

And even this isn’t good enough for those companies dependent on IP, because they just can’t catch enough “thieves” this way. So they are lobbying for laws that are much more invasive and require ISPs and others to do things that are openly bad for their business.

Wildberry July 19, 2011 at 11:20 am

Mises said this about that here: http://mises.org/libprop/lpsec5.asp

“If we take into account the fact that, as human nature is, there can neither be civilization nor peace without the functioning of the government apparatus of violent action, we may call government the most beneficial human institution. But the fact remains that government is repression not freedom. Freedom is to be found only in the sphere in which government does not interfere. Liberty is always freedom from the government. It is the restriction of the government’s interference. It prevails only in the fields in which the citizens have the opportunity to choose the way in which they want to proceed. Civil rights are the statutes that precisely circumscribe the sphere in which the men conducting the affairs of state are permitted to restrict the individuals’ freedom to act.”

sweatervest July 19, 2011 at 3:15 pm

Mises was wrong. He committed the same logical fallacy of all statists (Mises was no statist, but slipped into their territory briefly in this comment): he jumped from the necessity of society to the necessity of the state.

Society needs government, i.e. a territorial monopoly on jurisdiction with the implied power to tax? Property protection necessitates property violation (to be clear, taking back a stolen good is not violating the property of the thief)? One must become defenseless and utterly insecure against one’s defender and provider of security? Certainly not.

Government presupposes society. That is the biggest error the statist commits when claiming the state is necessary for society. The state is a *product* of society. It is the result of peaceful cooperation amongst its organizers. Sure, they are wielding violence against their subjects, but only as permitted by the wealth that was produced peacefully. One cannot decree property rights into recognition. They must be widely recognized already before anyone could possibly organize themselves and their property into a security/defense firm.

So it is clear that property rights are not “enforced” anymore than the rules of language are “enforced”. They are recognized and followed by all of those who can understand the benefit of recognizing and following them. The state cannot produce recognition of property rights because it relies on the recognition of property rights to exist at all. The state is a social institution. It does not generate wealth and thus cannot exist on its own. The state must produce security and defense with taxes, which presupposes a tax base, which is a collection of wealth. If prior to taxation everyone was defenseless and completely unable to secure their property then there would be no property and nothing to tax in order to fund defense and security.

Peaceful cooperation and the resulting production of wealth is a prerequisite to any organized social structure, be it a private business or a state/government. To claim that society needs a government is like saying a host needs a parasite. It is quite the opposite: the parasite needs the host, who would do much better without the parasite.

Matthew Swaringen July 19, 2011 at 3:18 pm

“If we take into account the fact that, as human nature is, there can neither be civilization nor peace without the functioning of the government apparatus of violent action”
I think this is an unwarranted assumption, and stated as such, for the statement is a conclusion without an argument, other than “human nature” which would to me make obvious a question on why the apparatus of violent action is somehow able to operate beneficially when people cannot function as such without it. It would seem to me incredibly unlikely for such a condition to last for any great period of time, and historically this seems to be true as well.

For if you look at the US how long did it take for the Alien and Sedition act to pass? How long did it take us to go from the decentralized Articles of Confederation to the ridiculous US Constitution, not for the purpose of protecting individual rights but rather to allow state governments easier routes to put down rebellions against extremely high levels of taxation.

Wildberry July 19, 2011 at 4:19 pm

@ sweatervest July 19, 2011 at 3:15 pm

Mises was wrong.

I think history has shown that Mises was a pretty smart guy. I know you are smarter, though, so I look forward to your next treatise on economics, the one that is going to systematically prove Mises to be wrong, about anything.

Wildberry July 19, 2011 at 4:30 pm

@ Matthew Swaringen July 19, 2011 at 3:18 pm

Well… I would argue (as an voluntarist/anarchist) that there really is no valid purpose for government.

I understand this is your fundamental ideological position. I also understand that it is indefensible in light of Mise’s analysis and argumentation on the subject. You do not agree, but ideological clap trap is not pursuasive.

Furthermore, your vision is one where justice truly is a function of the means to pay for it. It is not the liberty of the cooperative adn respectful that is at issue, but the ability of the free to maintain their freedom in the face of superior force.

When it comes to IP, you make your own argument; this “spying” you describe in the context of IP is what in the context of trespass? Evidence, right?

This is the problem with ideologues; they apply one argument in one context, and then can contradict themselves in a similar context in order to reach the conclusion the have decided is “right”.

As I said to Peter Surda recently, don’t be too quick to dismiss the master, Mises has already thought this through.

Matthew Swaringen July 19, 2011 at 5:41 pm

“You do not agree, but ideological clap trap is not pursuasive.”
I noticed you didn’t even try to defend the quote with logic but ad hominem instead.

“Furthermore, your vision is one where justice truly is a function of the means to pay for it.”
Another conclusion with no argument

“It is not the liberty of the cooperative adn respectful that is at issue, but the ability of the free to maintain their freedom in the face of superior force.”
And the state somehow maintains freedom from superior forces and isn’t the superior force that destroys freedom? Remind me again why you are against a big state? It sounds like you should be for them, for surely the bigger the state the more it can maintain your freedom.

“When it comes to IP, you make your own argument; this “spying” you describe in the context of IP is what in the context of trespass? Evidence, right?”
I mean actual spying, I mean attempting to hack and ascertain info on transactions between individuals where they have not agreed to share that information with you. When you go to court and ask ISPs for info on an IP address and the court demands that it be given up what right do they have to do this? How is an IP address sufficient evidence for anything?

“This is the problem with ideologues; they apply one argument in one context, and then can contradict themselves in a similar context in order to reach the conclusion the have decided is “right”.”
This should be easy enough to demonstrate, tell me where I’ve done that? If you can’t, then you are really getting into blatant dishonesty which is much worse than your simple attacks thus far.

“As I said to Peter Surda recently, don’t be too quick to dismiss the master, Mises has already thought this through.”
I don’t dismiss Mises, but I’ve not seen his argument for the state that was actually persuasive. I started here as a jaded neo-conservative limited government type only a year and a half ago. I was not even a libertarian, much less an anarchist. I’ll admit I’ve been opposed to IP long before I was here, however.

sweatervest July 20, 2011 at 6:25 pm

“I think history has shown that Mises was a pretty smart guy. I know you are smarter, though, so I look forward to your next treatise on economics, the one that is going to systematically prove Mises to be wrong, about anything.”

Haha wow Wildberry, you never fail to amaze me. Mises was a smart guy, therefore he is right about everything and even attempting to question him means you are being an ego maniac, and only those who could write a better economic treatise than Human Action have any place to criticize him. I suppose all I can say is have fun making Mises your personal Jesus.

I love it, because you cannot separate ideas from people. It seems to you there are only egos battling for supremacy here. We are only interested in the truth to the extent it improves the reputation of he who speaks the truth. As I have said before, it is customary for intellectual lightweights to gossip about the arguers instead of debate the actual arguments. I am not saying you are an intellectual lightweight, but you if consider yourself to not be one, then you can stop acting like one any day now. We’re all waiting.

I also love what a hypocrisy this is. A few threads back Wildberry responded to me referencing Hoppe by saying that I think Hoppe has the final say and is automatically right about everything, as though that is a problem. And then when someone does exactly what he did (criticizes a cited source) he exclaims that Mises is the final authority.

How bout this Wildberry: you have criticized Rothbard and Hoppe for using the Crusoe device in their development of economics theories. Rothbard was an internationally renowned intellectual, father of modern libertarianism, coiner of the term anarcho-capitalism, and wrote a treatise not only on economics but on ethics. Hoppe is another internationally renowned intellectual who is prestigous enough to have an entire class devoted to his own theories at the Mises Institute.

You are one hell of an ego-maniac going up against those two. I look forward to your economics and ethics treatise, since by contesting Rothbard and Hoppe surely you must be an even more achieved intellectual yourself.

sweatervest July 20, 2011 at 7:02 pm

Wildberry does not care what I wrote. He merely cares that it was I who wrote it.

Apparently the truthfulness of a proposition does not depend on the content of that proposition, it depends on who uttered the proposition.

And don’t worry, nothing I am saying here has any bearing, because it is I who says it!

Mickey July 20, 2011 at 10:06 pm

Wildberry,

Do you actually believe that a “really smart” person will never be wrong, or have a blind-spot that might be seen by someone down the road a bit? Was Aristotle stupid because he taught that everything revolved around Earth and Galileo was really smart because he found that Earth revolves around the Sun? Of course not, neither does saying that a really smart man made a logical error imply that I, or anybody else who disagrees with him is necessarily smarter, or that he’s stupid. We’re just able to see further because of what he said and did. Don’t turn Mises into an infallible prophet, he was a man just like the rest of us.

Wildberry July 21, 2011 at 11:26 am

@sweatervest July 20, 2011 at 6:25 pm

Two quick points:

It is not necessary for me to prove that Mises was right about everything. I am merely saying that I think he was right about this. If you disagree, a general objection that I am “appealing to authority” is not much of an argument. If I cannot defer to Mises as an authority, then authority does not exist.

If you think you have an argument for WHY Mises is wrong, let’s hear it. Nothing else is relevant.

On the Crusoe device, I have given my reasons why it leads to positions of “hyper-individualism”, which Wendy seems to favor, and is a central tenet of ancap ideology.

The best analysis I know of is Kathleen Touchstone. So again, if you want to argue about it, make your case.

But remember, in both cases, you are going to have to do a little homework. You cannot make a persuasive argument unless you study the positions offered, and refute them in some coherent way.

All of this posturing, rhetoric, and other flailing around is not relevant, and frankly it is not all that amusing anymore.

Wildberry July 21, 2011 at 11:55 am

@Mickey July 20, 2011 at 10:06 pm

Why play stupid? If you think Mises is wrong about something here, explain why. Is that such a difficult concept?

Instead you would rather raise this ridiculous idea that I think Mises can never be wrong about anything? Maybe he is wrong and maybe not. I don’t think so. If you do, go for it.

Some men are more fallable than others. He was pretty good, in my opinion. But hey, take your best shot!

sweatervest July 21, 2011 at 12:34 pm

“It is not necessary for me to prove that Mises was right about everything. I am merely saying that I think he was right about this.”

Okay, then I’m saying I think he’s wrong. Whatever objection you have to me saying that is equally an objection to you saying what you said.

“If you disagree, a general objection that I am “appealing to authority” is not much of an argument. If I cannot defer to Mises as an authority, then authority does not exist.”

I explained my disagreement and then you replied with, “wow you think Mises was wrong”, which is an appeal to authority, which is an argumentative fallacy. The fallacy is not starting with something Mises said as an argument, it is responding to a critique of that something by changing the topic of the conversation from the correctness of Mises’ statement to my capacity to criticize Mises’ statement. It is an ad hominem. You are dealing with arguers, not arguments. You end every one of our debates that way. Every single time we go head to head you eventually cop out and resort to this ad hominem strategy. You change the topic from IP to sweatervest.

“If you think you have an argument for WHY Mises is wrong, let’s hear it. Nothing else is relevant.”

Dude, go back and read my first post! It wasn’t “Mises was wrong” and then nothing, it was “Mises was wrong” plus several paragraphs. You cut the paragraphs out when you quoted me and pretended it wasn’t there.

“On the Crusoe device, I have given my reasons why it leads to positions of “hyper-individualism”, which Wendy seems to favor, and is a central tenet of ancap ideology.”

What does hyper-individualism mean? I highly suspect you are straw manning an-cap again. Let me remind you that An-caps are the people who approve of and cherish *all* voluntary interactions between people. They are the ones who condemn any and all acts of forcefully stopping voluntary exchanges. They are the ones who want to see people working together in ways never before imagined, producing things never before imagined. Their ideal is one of complete and utter reliance on each other to enjoy the fruits of civilization, which is exactly what capitalism, to whatever extent it exists, is. It is a world where someone makes your clothes for you, builds your house for you, builds your car for you, runs your electricity for you, etc. and why do they do these things? Because you do the same for other people.

So what hyper-individualism are you talking about?

“The best analysis I know of is Kathleen Touchstone. So again, if you want to argue about it, make your case.”

I believe I just did. Where is this analysis by Touchstone? Also your objections to the Crusoe Device were answered when I explained that Mises uses impossible constructions in his Human Action, the evenly rotating economy, and physics uses impossible constructions whenever it uses coordinate systems.

“But remember, in both cases, you are going to have to do a little homework. You cannot make a persuasive argument unless you study the positions offered, and refute them in some coherent way.”

Oh and what would you call my first post? I know you saw it. The only explanation is that you are lying. You have been called out for lying plenty of times.

“All of this posturing”

Posturing? You mean making arguments? And you seem to think that if you reference an argument it becomes better than just posturing? What would be accomplished by a citation battle? You are desparately trying to avoid answering any of my arguments. You always come up with an excuse to avoid moving the argument forward.

“rhetoric, and other flailing around is not relevant”

Wait, who are you describing? Me or you?

Wildberry July 21, 2011 at 12:49 pm

sweatervest July 21, 2011 at 12:34 pm

Did you open the Mises link I provided? Did you read the section I referenced? It’s a pretty strong argument.

Here is a link to Touchstone: http://mises.org/resources/5794/Rand-Rothbard-and-Rights-Reconsidered

Matthew Swaringen July 18, 2011 at 6:25 pm

1) There ability to copy it doesn’t necessitate their ability to sell it. Through various means you could potentially devise, they would only get “official” copies from you, and many people would value those more because of this status. People still buy brand named drugs long after generics come out, and in the realm of art where many people are fans there is no reason to believe that such a reason for paying for originals wouldn’t be even higher.
2) The ability to copy exists now despite law, if it was so utterly horrible then why wouldn’t it be just as pervasive in the US as Syria? Isn’t it likely that Syria’s lower standard of living means that they have very little available to spend on luxuries like movies? If so, it would certainly explain the lack of willingness to spend full price for official copies of things.
3) Crowd sourcing and various other techniques for financing larger products like movies could be employed. In the short term (if say copyright were to be revoked tomorrow) you might see a lack of movies due to a lack of interest from people in financing this way but as the incentives were normalized this would increase. You would see a lot of very wealthy people (who have a lot of spare money) who would want to see movies and they would likely contribute large amounts.

Adam July 18, 2011 at 6:55 pm

Matthew,

Thank you for the post (and Linux as well). I found 1 and 2 to be thought provoking. I’ll respond to each in the order you used:

1. I agree, there would still be a market for an original copy. However, the analogy between meds ( and a number of other examples for that matter, pretty much any chemical patent that comes to mind, e.g. pesticides) and movies is an imperfect one. Any company with a chemical formulation patent will, as noted numerous times on this blog, will be forced to continue to innovate to enhance it’s value to customers as the patent runs out. While working in the fertilizer industry I observed this on an annual basis. Monsanto’s “Roundup” was the first example I thought of. However, with movies, how is this done?

2. You’re correct again concerning the standard of living argument. However, are you assuming you wouldn’t see a similar outcome here? I’m not sure that is a safe assumptions.

3. Would the “large amounts” contributed by wealthy folks allow the rest of us to view the same movies? How?

Matthew Swaringen July 18, 2011 at 7:28 pm

1) I think your argument here actually tends towards showing why media is even better off without protection than chemical formulations. You may want to keep using the same pain relieving medication over and over again because it works, but the marginal utility of watching the same movie or listening to the same song over and over again is less.

Additionally, you are perhaps thinking of the disadvantage of having others copy for free what is otherwise restricted but the more people who are copying the more people are aware of what you have made and have a potential interest in your product and additionally in what you will make in the future. Also, this low cost of copying makes it very easy for you to distribute your product while something that is harder to reproduce costs a lot more to sell.

2) There is even more ability to copy here than in Syria. I would argue that we are actually copying more, but even despite this we still have tremendously more to spend. Id point out that even amongst the myriad of “pirates” out there that people find bootlegs to be far less desirable than free copies. I’m a fan of anime and I buy a lot of it but I also watch a lot of fansubbed anime and I can tell you among that crowd that bootleggers aren’t particularly well thought of. I would argue that the bootleggers aren’t doing anything wrong (they are using their own property and providing a service some people like), but even so I don’t think there is anything wrong with people believing in original copies or authentic things.

I think many people sell very short the desire of people for content. If they realize that never buying anything will mean they don’t get content, you’ll see them spend more on it, particularly if they don’t have a lot of things they absolutely must have.

3) Sure, why not? Even if the rich were to try and keep it to themselves it would get leaked, and why would they do that? Most of the rich want to be seen positively by others. They are already hated a great deal in some areas just for being wealthy. Many of the great classical composers of prior centuries were funded by the wealthy, and we still have their music. The only reason the people at the time didn’t have it is because copying was much more expensive back then.

Roacho July 19, 2011 at 8:19 am

http://www.youtube.com/watch?v=D3CHxaP7IxM

“I just wanted to see the film.”

Wildberry July 19, 2011 at 11:27 am

@Matthew Swaringen July 18, 2011 at 6:25 pm

You are describing a situation that would be a reversion to the market mechanisms of Shakespeare and Mozart, where patrons financed production, and reproduction technologies did not exist.

This is why your insistence that you are promoting liberty is a fallacy. You are promoting serfdom, because the position that the products of intellectual producers are “free goods” is a socialist view; “to each according to his need”. Since when is the need, or even desire to have something a basis for private property rights; only according to the socialist world view.

Matthew Swaringen July 19, 2011 at 3:28 pm

“You are describing a situation that would be a reversion to the market mechanisms of Shakespeare and Mozart, where patrons financed production, and reproduction technologies did not exist.” – And this is problem because?

“This is why your insistence that you are promoting liberty is a fallacy. ” – Non-sequitur. This statement is entirely unrelated logically to your previous. It’s definitely a leap…

“You are promoting serfdom, because the position that the products of intellectual producers are “free goods” is a socialist view” – It’s not a good at all, for it is not necessary to economize ideas (or collections of many ideas in the form of books/media/etc.)

“Since when is the need, or even desire to have something a basis for private property rights” – Give me an example of where private property exists in something no one desires or needs?

Wildberry July 19, 2011 at 4:56 pm

Matthew,

It is a problem because 1) free markets do not depend on “patrons” to provide for production, they depend on capital and profit, and 2) technology of reproduction does exist. If they didn’t exist, as with land, then “copyrights” would not be necessary; there is no reason or need to protect something against the impossible.

Therefore, the system of that era is not feasible today. You would have to roll time back, or alternatively, explain how such a system of “patronage”, where an author, say, can only sell his labor for a fee, woud work in a modern technological society.

It is not sufficient just to say “it worked for Shakespear” and call it a day. That time was the 1500′s, I believe.

Second, it is not a non-sequitur to what follows, which supports my assertion.

Mises describes this here: http://mises.org/libprop/lpsec5.asp

and I raise it in a recent discussion here: http://blog.mises.org/17702/the-great-ip-debate-of-1983/comment-page-1/#comment-793005

for it is not necessary to economize ideas (or collections of many ideas in the form of books/media/etc.)

You simply ignore the other part of the problem; producing for external economies, by equivocating “ideas” with “IP”. This is Kinsella’s most coveted equivocation.

Furthermore, what makes a good “economic” is the scarce means required to produce it. Do you reject the assertion that an individual is a scarce means of production, or that it(himself) is privately owned?

Give me an example of where private property exists in something no one desires or needs?

Of course! If IP was something that no one desires or needs, then the debate about copying would be moot. Who would copy something worthless?

But the desire to use or possess something of value does not settle the economic question of how shall it be provided. Socialists follow a certain set of principles, and capitalists/free marketeers follow another.

I hold your ideology to be first cousin to socialism, because you believe that “economic goods” should be treated as “free goods” that are provided by “somone else”.

Matthew Swaringen July 19, 2011 at 6:02 pm

“free markets do not depend on “patrons” to provide for production, they depend on capital and profit”
Free markets depend on whatever people want them to depend on, voluntarily. “Patrons” need not be nobles who did not earn their money. There can certainly be patrons who have made their wealth in other businesses and there can be capital that is made available from many people through crowd sourcing.

The free market has never been against this, in fact financing systems such as the corporation were developed for this very reason.

“technology of reproduction does exist. If they didn’t exist, as with land, then “copyrights” would not be necessary; there is no reason or need to protect something against the impossible.”
If technology of reproduction didn’t exist we wouldn’t have their music now or the plays of Shakespeare now. What you mean to say is that copying is vastly cheaper than it was then, for it was certainly not impossible then. However, this cheapness of copying doesn’t only “hurt” the Shakespeare’s of the modern era. Hardly so. For the distribution Shakespeare was able to achieve pales in comparison to how far reaching a song or movie/etc. can get now. There are far more potential “patrons” as it were.

” You would have to roll time back, or alternatively, explain how such a system of “patronage”, where an author, say, can only sell his labor for a fee, woud work in a modern technological society.”
I’ve somewhat done that, but I don’t “have” to do anything. It is by no means necessary that I know everything about how voluntary society could function or how the market can provide for things without government interference. If the government made shoes for years we would likely hear the same argument if there was a call to privatize the production of shoes as you have just made here.

“It is not sufficient just to say “it worked for Shakespear” and call it a day. That time was the 1500′s, I believe.”
It’s not sufficient to advocate IP even on a utilitarian basis merely because you don’t know how a market could work absent government intervention, unless you can make a reasonably conclusive empirical case. You haven’t even tried.

“You simply ignore the other part of the problem; producing for external economies, by equivocating “ideas” with “IP”.”
You can’t even sufficiently explain what IP is. So when you do that I’ll make an argument to that point.

“Furthermore, what makes a good “economic” is the scarce means required to produce it. Do you reject the assertion that an individual is a scarce means of production, or that it(himself) is privately owned?”
I don’t agree with your definition. I don’t think scarce means is sufficient criteria. That makes our discussion axiomatic at best, which leaves your argument unconvincing except to someone who already agrees with it.

“Of course!”
Can you read your original statement because it sounds like you are contradicting yourself here to me?

“I hold your ideology to be first cousin to socialism, because you believe that “economic goods” should be treated as “free goods” that are provided by “somone else”.”
An ignorant assertion. Much of my job is spent creating the so called “free goods” that you assert I believe someone else should make. But the reason that this is valuable where I work is because I have more knowledge of the needs to appropriately design the systems and an understanding of the departments and functions where they are needed. I am not being paid for the software itself, nor the knowledge that I possess, but the service I provide in using that knowledge.

DensityDuck July 19, 2011 at 6:30 pm

“Much of my job is spent creating the so called “free goods” that you assert I believe someone else should make. But the reason that this is valuable where I work is because I have more knowledge of the needs to appropriately design the systems and an understanding of the departments and functions where they are needed. I am not being paid for the software itself, nor the knowledge that I possess, but the service I provide in using that knowledge.”

So what you’re saying here is “I don’t create anything, and therefore nobody should be paid for creating anything”.

Matthew Swaringen July 19, 2011 at 7:31 pm

Much of my job is spent creating the so called “free goods”

So how exactly did you derive the paraphrase below?

So what you’re saying here is “I don’t create anything,”

It was a huge misstatement of my position anyway, because clearly “anything” would include physical property, which I do believe in. I just don’t think you own something because of causality.

coturnix19 July 19, 2011 at 8:57 pm

by equivocating “ideas” with “IP”

Patents _are_ ideas (of a certain kind), copyrights are not. So, do you agree that patents need to be abolished?

Wildberry July 20, 2011 at 11:06 am

@Matthew Swaringen July 19, 2011 at 7:31 pm

I just don’t think you own something because of causality.

What does this mean and why are you saying it?

If a person owns the means of production, then he owns the products he produces from those means. Are you saying that this “causality”, (is that what you mean) is not sufficient for establishing property rights to the products of privately owned means? Yet you agree that private means=private property?

Peter Surda July 20, 2011 at 5:07 pm

Wildberry,

Are you saying that this “causality”, (is that what you mean) is not sufficient for establishing property rights to the products of privately owned means?

Are you saying that it is sufficient?

Peter Surda July 20, 2011 at 6:02 pm

Wildberry,

You are promoting serfdom, because the position that the products of intellectual producers are “free goods” is a socialist view; “to each according to his need”.

You have failed to provide an example of such a “free good” in a world without IP. Although this was one of my very first challenges to your position. Where is it, Wildberry?

Wildberry July 21, 2011 at 10:55 am

Gee, I’ve missed your haunting presence.

This is your argument.

If an author cannot or does not keep his novel a secret, either by hoarding or by contract, and discloses it, he looses any rights to control the use of it, according to you. It may be freely reproduced without compensation to the author, because the copier may use his own resources to create the copy, and to tell the copier what he cannot do with his own resources is aggression.

Since all economic goods require scarce means of production, and private property rights require that the products from private means are also owned by the owner of those means, either the novel was not produced from scarce means (author), or there is some other reason to dissolve private property rights upon disclosure, that is, to consider it a “free good.”

If the author does not own the novel, he does not have exclusive rights to its use, includnig reproduction. Becasue he cannot control reproduction, it may be used freely. Therefore it is a free good, owned by no one, like ideas and letters of the alphabet.

This is my argument:

There is no libertarian theory of property that I’m aware of that claims that free goods come from privately owned, scarce means of production. The only theory that I’m aware of that woud support such a conclusion, that the author does not own what he produces, is socialism, where the means are always publicly owned (i.e. government owned). It is not that the means are not scarce, but that they are not privately owned.

Since the theory of publicly owned means of production, socialism, is what Hayek described as the road to serfdom, anti IP positions promote the road to serfdom because it promotes the public ownershp of the means of production if the product is an intellectual good, like a novel.

Anti IP proponents require, therfore, that an author produce, from his own privately owned means of production (himself) for external economies. It is not clear to me at all how this is accomplished while remainnig consistent with libertarian threories of private property.

As I have said elsewhere, this is a good definition of slavery; being forced to produce for external economies. Of course you do not claim to force the author to write books, so given free choice, he will not choose to produce for external economies, and will deploy his scarce resources to other endeavers, where they are respected as and remain his own private property.

sweatervest July 21, 2011 at 1:24 pm

“Since all economic goods require scarce means of production, and private property rights require that the products from private means are also owned by the owner of those means, either the novel was not produced from scarce means (author), or there is some other reason to dissolve private property rights upon disclosure, that is, to consider it a “free good.””

What, *exactly*, is the novel? You could mean one of two things. You could mean the physical medium on which this particular instance of the novel is fixed. Or you could mean the general class of all instances of the novel, which could also be called the idea of the novel itself, independent of any physical medium. That is, you either mean this copy of the novel right here, or you mean all conceivable copies, now, in the past and in the future, of the novel.

If you mean the one copy right here, then it is never the case that the novel is a free good, because that particular book is always a scarce good and the anti-IP case does not involve denying that.

If you mean the class of all copies, then there is no value or even price to speak of of such a thing. It would be meaningless to claim that the entire class of conceivable copies of a book is a “free good”. That would be like asking if the entire class of all the gold you can ever think of would be a “free good”. One cannot employ such a class as the means to an end, so it is not an economic good and not subject to the analysis of “value”. Value is always attached to the marginal unit. This is what highlights the error in your analysis. One can only speak of the value of a particular marginal unit of a good (i.e. never the value of gold per se but only the value of this piece of gold right here and now). There is only the value of the instance of a novel, like a book or a computer screen attached to a hard drive that contains a pdf of the novel. Each of those has a marginal utility. There is no utility of the novel as an abstract concept, or as the set of all possible instances of the novel.

The criticism that the novel becomes a “free good” is thus actually the outcome of an expected explosion in the supply of creative goods. The value of a novel, which can only mean the marginal utility of this particular copy right here, obeys the law of diminishing marginal utility just like any other good. As its supply approaches abundance its marginal utility will approach zero.

The IP abolitionist does not “decree” that the novel become a free good. He merely wishes to *allow* it to become a nearly free good by way of its supply exploding into abundance. If we are to take consumer sovereingty seriously, then we must be concerned about how the only “problem” that IP supporters present for the consumer is a lack of supply of creative goods, as caused by the lack of incentives to be creative. But here lies the crucial problem, for the incentives to be creative disappear by way of the marginal utility of the creation going to zero only *because* the supply of those goods is in abundance! It is only because there is an abundance of creative goods that the marginal utility of creativity would be so close to zero. If there was only an abundance of low-quality creative goods that means high-quality creative goods are scarce and their marginal utility is still high, providing the incentives to produce them (the charge that investment must proceed the final product is obviously unwarranted as that is always how production works).

There really is no question about the value of the novel per se, any more than there is a question of the ownership of the novel per se. That is what my point in the property rights theories has always been. Ideas or “creative works” refer to entire classes of potential scarce goods (like with novels) or uses of scarce goods (like with recipes). Both property rights and economic value arise out of conflict of use of means to ends. But these classes themselves are not means to ends. Their members may be, but the classes themselves are not. Just like with marginal utility, property is marginal. One only has ownership claims to marginal units of property, not entire classes of property.

IP abolitionists assert that IP claims of ownership are not marginal and therefore invalid. One can never, by any action, claim ownership over an entire class of conceivable goods. Every action involves only a marginal unit of a good. No action can involve the use of an entire class of conceivable goods. Thus a claim to intellectual property is only an unwarranted claim to ownership of scarce goods that have never been used.

Limitations on property uses exist only to the extent that some property uses contradict themselves. For example, the use of property to destroy the property of others is self-contradicting in the sense that it is impossible for it to continue, as eventually all property will be destroyed and there will no property to use. But no limitations established by IP are of this form. If everyone were allowed to copy creative works freely that could go on indefinitely, for one’s ability to copy freely does not undermine another’s ability to copy freely. There is nothing self-contradicting about that. Everyone can copy each other’s inventions, novels, etc. without destroying their very means to copy inventions, novels, etc. Thus IP can also not be conceived of as a limitation of justifiable uses of property as necessary for any uses to be possible.

IP cannot be the result of use, nor can it be a limitation as necessary for uses to be possible, and so it is not part of any property rights. It always amounts to a violent confiscation that is not in response to any previous trespass or confiscation.

Wildberry July 21, 2011 at 2:22 pm

As much as I enjoy debating this topic, I don’t think I can debate it with you, Seatervest. I will just second Kid Salami’s responses to you. I have no interest in simply trying to respond to your knee-jerk “transmissions” when you don’t even seem to try to make an effort to grasp the point of what has been said up to this point.

You seem to think you are a self-contained source of truth on these matters that need not reference the contributions of others.

Anyway, I’ll leave it up to Surda to respond if he chooses. I won’t try to drink from the fire-hose called Sweatervest right now.

Wildberry July 21, 2011 at 6:13 pm

@sweatervest July 21, 2011 at 1:24 pm
“Since all economic goods require scarce means of production, and private property rights require that the products from private means are also owned by the owner of those means, either the novel was not produced from scarce means (author), or there is some other reason to dissolve private property rights upon disclosure, that is, to consider it a “free good.”

What, *exactly*, is the novel? You could mean one of two things. You could mean the physical medium on which this particular instance of the novel is fixed. Or you could mean the general class of all instances of the novel, which could also be called the idea of the novel itself, independent of any physical medium. That is, you either mean this copy of the novel right here, or you mean all conceivable copies, now, in the past and in the future, of the novel.

OK, I admit I couldn’t resist. I want to respond to this one paragraph, because Kinsella raised a similar objection, which is where I assume you got it.

First, you present a false dichotomy, and then argue against your own straw-man constructions. Let’s unpack your smuggled assumptions.

The word I used with Kinsela was “original manuscript”, to which there is no dispute of ownership. According to him, the author must either a) keep it a secret in some way, including contracts; or b) accept that when he discloses it, it becomes a “free good”. If it is ever disclosed to a party not in privity with the author, it automatically becomes a free good.

Here I used “novel”, but that means a literary work that is fixed upon a tangible medium (paper, etc.); i.e. a manuscript for which there exists only one, unique original object. At this point, it is undisputed the author has produced it with his own private means. Therefore, he owns it. Ownership means exclusive right to use and possession.

You say this manuscript is either “the physical medium” or “the class of all instances of the novel”. The second, “class” is equivalent to the “idea of the novel itself”. I reject this on at least two grounds; first “ideas” cannot be owned. Second, unless these copies exist, they are not tangible fixations, and cannot be the same thing as “the novel/manuscript”. The original is a tangible object, the second is an intangible idea, or mental construct of a “class”. I have no interest in this abstraction, and it is not relevant.

The first, “the physical medium” is not the object in question. A novel is not “paper”. It is paper encoded with information that is an expression. So you must come to grips with the distinctions between “idea”, “expression” and “medium”. The novel is actually “expression” plus “fixation” plus “tangible medium”. That is the tangible object. Like land which has trees and minerals, it is a bundle of “things”, which are at the same time “inseparable” yet “alienable”.

If you can’t get your head around this, there is no point in going on.

Regardless of what a novel “is”, it can be copied. A copy has the same utility (as a book) as does the original, even though it is fixed on different physical paper. So the paper is not sufficient to describe the novel, which is a unique and original “expression” fixed on paper. If the author copied his own book, he would still have two instances of a manuscript, on different pieces of paper, and each would have identical serviceability. This serviceability is inexhaustible. Both would be indisputably be owned by the author.

Whether one copy is the result of an original can be proven beyond a reasonable doubt by direct extrinsic or circumstantial evidence. There is any number of ways to demonstrate this.

The most straightforward way to demonstrate this is through probability analysis. The more complex the pattern, the less probable it is that an author could reproduce it exactly without actually using the original to copy from. For example, if my math is correct, the chance of “guessing” a random three letter sequence is 17,576 to 1. The probability of randomly recreating the 3000 or so words written here so far is 26^3000; with punctuation, slightly more. The larger the size of the expression, the greater is the improbability of independent creation. This is one empirical method that can be used to “prove” if copying has occurred.

So the question presents itself; if the medium upon which the novel is fixed is immaterial to the utility of the object, and a copy of the object cannot be independently created, what is the “object” subject to an assignment of property rights?

Why would one be interested in assigning property rights to it on the basis of the medium? What purpose for avoiding conflict could that possibly serve? What would be the utility of allowing only complete and total title transfer of the object, based solely on the transfer of the medium?
This is the equivalent of Schulman’s independent derivation of property rights in MCP.
His is only one of many approaches to the connection between the private means of the individual and private property rights. This subject has an ancient history. Property is a human device.

But this is also Mises’s dilemma: What are the consequences of assigning property rights solely on the “serviceability” of a good, versus on the basis of the ownership of the scarce means of production? What happens in the extreme case, where serviceability is inexhaustible, but the means of production are scarce?

For all goods except for IP, the serviceability and the means of production and reproduction are separate goods. For IP, the original means to produce the original manuscript are scarce, but the subsequent means to reproduce the manuscript are nearly non-scarce. What are separate goods for all other products, become common and inseparable goods for IP. IP opponents simply wave away this dilemma. The false dichotomy you present does the same.

Unless you can address this dilemma with a coherent theory of property rights, you simply assume your conclusion that treating IP as an “idea” is preferable to treating the means of production as private property. To choose the former and reject the latter is to promote the preference for treating private means as public means.

An ideology based on public ownership of the means of production is socialism. Producing for external economies is slavery, and will not be freely chosen. To promote slavery and liberty in the same breath is a fatal contradiction. This is the anti-IP argument.

sweatervest July 22, 2011 at 2:42 am

Wildberry,

Your first post is a pointless ad hominem. I won’t dignify it with a further response.

“OK, I admit I couldn’t resist. I want to respond to this one paragraph, because Kinsella raised a similar objection, which is where I assume you got it.”

No I got it by doing something to you are apparently hostile, which is use my own brain to try and solve problems.

“First, you present a false dichotomy, and then argue against your own straw-man constructions.”

In the course of your lengthy obtuse post you never establish that I present a false dichotomy and never demonstrate that my argument is against a straw man.

“Let’s unpack your smuggled assumptions.”

I’m ready when you are.

“The word I used with Kinsela was “original manuscript”, to which there is no dispute of ownership.”

I agree.

“According to him, the author must either a) keep it a secret in some way, including contracts; or b) accept that when he discloses it, it becomes a “free good”. If it is ever disclosed to a party not in privity with the author, it automatically becomes a free good.”

No, this is wrong as I tried to explain. The argument is not that the book becomes a free good by being disclosed. The argument is that it approaches a free good as a result of being copied into abundance. It is merely an example of the law of diminishing marginal utility. It is no different than any other case where the marginal utility of a good is close to zero when the good exists in abundance.

“Here I used “novel”, but that means a literary work that is fixed upon a tangible medium (paper, etc.); i.e. a manuscript for which there exists only one, unique original object. At this point, it is undisputed the author has produced it with his own private means. Therefore, he owns it. Ownership means exclusive right to use and possession.”

So you use my first definition. So far you have not established that my argument is a false dichotomy.

“You say this manuscript is either “the physical medium” or “the class of all instances of the novel”. The second, “class” is equivalent to the “idea of the novel itself”.”

That equivalence is really irrelevant to the rest of the argument.

“I reject this on at least two grounds; first “ideas” cannot be owned.”

I never said they could. You are not rejecting what I said by pointing this out. This is not in conflict with the statement that “novel” can refer only to either a particular physical copy of the novel or the whole class of conceivable copies of the novel.

“Second, unless these copies exist, they are not tangible fixations, and cannot be the same thing as “the novel/manuscript”.”

I am not speaking of the set of existing copies, I am speaking of the set of conceivable copies, which includes all existing copies as a subset. Besides, this is again not in conflict with what I said. It remains that “novel” only means one of the two things I said.

“The original is a tangible object, the second is an intangible idea, or mental construct of a “class”.”

As are all things that are ever spoken of. We need not be distracted by a debate about ontology, for that is not my point. Yes, the whole point is that the second is an intangible idea. That is precisely the thing you wish to protect with IP.

“I have no interest in this abstraction, and it is not relevant.”

I believe you contradict this later in this very post.

“The first, “the physical medium” is not the object in question. A novel is not “paper”. It is paper encoded with information that is an expression.”

This does not conflict with what I said, but is exactly in line with it. I never said “novel” could mean the physical medium itself. I said it could mean the one physical copy that is necessarily on some medium right here and now.

“So you must come to grips with the distinctions between “idea”, “expression” and “medium”.”

You have confused my argument and are now knocking down a straw man. None of what I said relies on an equivocation of “idea”, “expression” or “medium”.

“The novel is actually “expression” plus “fixation” plus “tangible medium”. That is the tangible object. Like land which has trees and minerals, it is a bundle of “things”, which are at the same time “inseparable” yet “alienable”.”

You dodge the problem at hand, which is that the “novel” is either *this* expression plus *this* fixation plus *this* tanglible medium, or the “novel” is *every* expression plus *every* fixation plus *every* tangible medium. You seem to be misunderstanding me. I do not contest that a book is distinguishable from a stack of empty paper. I merely stress that the only “value” to speak of is the marginal utility of that a particular instance of all the things you mentioned.

“If you can’t get your head around this, there is no point in going on.”

But I had my head around this the whole time. You misunderstand me if you think I don’t. I never suggested that a novel is the same thing as an empty book. But you keep speaking of the “novel” as something distinct from this physical copy of the book right here. A wheel is only a wheel because of its shape, but that doesn’t make a wheel anything other than the physical material that makes it up. If you mold that material into something else it ceases to be a wheel. Similarly, if you destroy the pattern of words on the pages the good ceases to be a novel (and loses the value it has only due to it being a novel), but that does not change the fact that the novel is never anything more than the physical manifestation of the novel. The only other possible thing you could mean by “novel” is the abstract idea, the class of all instances of the novel. If there is a third choice of what the “novel” is then what it is?

“Regardless of what a novel “is”, it can be copied. A copy has the same utility (as a book) as does the original, even though it is fixed on different physical paper.”

How do you figure that. This is in conflict with the law of diminishing marginal utility. As in the case of any good, the next marginal unit is always worth less than the current marginal unit.

“So the paper is not sufficient to describe the novel, which is a unique and original “expression” fixed on paper.”

Your entire objection to me is a straw man, which is ironic in that you called my argument a straw man. I never made the case that paper is sufficient to describe a novel. I never suggested that an empty piece of paper and a piece of paper with writing on it are the same good. Of course they are not. A lump of clay is just a lump of clay, but one molded into the right shape is a wheel. That doesn’t change the fact that the wheel is the clay. The clay ceases to be a wheel if it is molded differently, but the wheel is never anything other than the clay.

“If the author copied his own book, he would still have two instances of a manuscript, on different pieces of paper, and each would have identical serviceability. This serviceability is inexhaustible. Both would be indisputably be owned by the author.”

I’m not sure I follow what you are saying here, other than if an author copies his manuscript then he owns the copy. No quarrel there.

“Whether one copy is the result of an original can be proven beyond a reasonable doubt by direct extrinsic or circumstantial evidence. There is any number of ways to demonstrate this.”

This is only relevant if it has been established that copying is punishable, and it seems as though the whole debate is over that. All of your explanations of how to prove that copying happened is really of no concern, as those problems face any enforcement of any law. The real question is that once you have proven that copying happened, what then? Is copying unjustifiable? Everything I say is to the effect of arguing that no, copying is not unjustifiable.

“The most straightforward way to demonstrate this is through probability analysis. The more complex the pattern, the less probable it is that an author could reproduce it exactly without actually using the original to copy from. For example, if my math is correct, the chance of “guessing” a random three letter sequence is 17,576 to 1. The probability of randomly recreating the 3000 or so words written here so far is 26^3000; with punctuation, slightly more. The larger the size of the expression, the greater is the improbability of independent creation. This is one empirical method that can be used to “prove” if copying has occurred.”

I maintain that this is irrelevant if we are still debating if copying is unjustifiable, but being the math nerd I am I have to nitpick. This is a gross misunderstanding of probability, and reaches an absurd conclusion: that if you do something really really unlikely, but you do it yourself, these numbers “prove” that you *really* copied? No, that is absurd. Even if the interpretation of the probabilities here is correct, you could only ever prove that someone’s independent creation was very unlikely. You seem to be relying on the gambler’s fallacy, i.e. that unlikely outcomes never occur (that may not be the actual gamber’s fallacy, but is related to it).

But even then the interpretation of the probability is wrong. There is no probability that can be attached to human action. Any kind of numerical probability is a frequentist probability, defined as the frequency of a particular outcome in the limit as the number of trials approaches infinity. Such probabilities rely critically on regularity of the outcome being studied which, by definition, does not exist in the realm of human action. Thus any talk about numerical probabilities of certain actions is erroneous.

See, those probabilities you speak of rely on the concept of “random”, which is itself a probabilistic concept. In particular random means that any string of letters is as equally likely to be selected. But that is not how humans work. One could never establish the equal probabilities of guessing each different string of letters. These probabilities apply to computers that generate “random” sequences of letters, not humans that intelligently put them together.

Also, as Schulman seems to be confused about and what I explained last time this stuff about entropy and probability came up, this fails to establish an objective division between an original creation and a copy. Even if one could reduce the whole distinction down to a number (this is impossible as I explained, entropy and probability don’t help to decide whether a person considers one novel distinct from another novel… one could paraphrase the whole thing, making the sequence of letters completely unrelated, and yet it would tell the same story), one still has to arbitrarily pick the numerical value that makes the division.

“So the question presents itself; if the medium upon which the novel is fixed is immaterial to the utility of the object”

You say this as though it is something unique to books or creative works. A wheel is useful as a wheel no matter what it is made of (so long as it is something solid and sturdy enough). A wheel made of clay and a wheel made of stone are both wheels. Their value as a wheel is independent of their material. What bearing does this have on the topic? And when did I contest that?

“and a copy of the object cannot be independently created, what is the “object” subject to an assignment of property rights?”

You like asking these questions and give me a hard time whenever I answer them. I already answered this, you objected to my answer, and you’re now back to asking the question again. What’s your answer!? My answer is that you either mean the one specific copy or you mean all conceivable copies. What else could you ever mean other than one of these two?

“Why would one be interested in assigning property rights to it on the basis of the medium? What purpose for avoiding conflict could that possibly serve? What would be the utility of allowing only complete and total title transfer of the object, based solely on the transfer of the medium?”

Who said property rights are assigned based on the medium? I never said that. You are straw manning me like crazy right now. No one is saying “only complete and total title transfers” can happen. As you yourself pointed out, the author can release his original copy through contract and forbid copying. The point is that if an unauthorized copy gets out (we do not quarrel that the person who creates the first unauthorized copy is guilty of something) can uninvolved third parties copy it further?

Putting your creative work in a position where other people can justifiably use their property to copy it is not “giving it away” or transfering the entire title or anything. It is just people using their property. When you step outside of your house into plain view I can take your picture. That is not an interaction between the two of us. That is me and my property. You do not transfer the title of your photo to me or anything else. It’s just me using my camera. Likewise, if your novel is in plain view, then I can use my computer to copy it. This is not a trade of property at all. It is not a transfer of any complete title. It is only me using my property in a way that does not destroy or trespass on the property of others (that is the assumption contained in the “plain view” part, i.e. I need not trespass on you to see the copy).

“This is the equivalent of Schulman’s independent derivation of property rights in MCP.
His is only one of many approaches to the connection between the private means of the individual and private property rights.”

You are again attacking a straw man. You keep speaking of scarce means turning into free goods or being used to make free goods. That is never the argument. I cannot critique Schulman because I have not seen his derivation.

“This subject has an ancient history. Property is a human device.”

You say that till your face turns blue like it proves your case. I don’t know how you are seeing a connection between “property is a human device” and “IP is a legitimate property right”. When did I say property is not a human device? Your strategy here seems to be “well, you’re wrong when you say certain things cannot be property because property is whatever people agree that it is, and that means that IP must be property”. Seriously? What if everyone agrees that IP is not property? More importantly, what if there is no agreement at all? Even more importantly, what criteria must be met so that any agreement could ever be reached? (I’ll give you a hint. It’s private property rights sans IP!)

“But this is also Mises’s dilemma: What are the consequences of assigning property rights solely on the “serviceability” of a good, versus on the basis of the ownership of the scarce means of production? What happens in the extreme case, where serviceability is inexhaustible, but the means of production are scarce?”

The consequences are that different people make different property assignments and therefore it causes more conflicts instead of solving more conflicts. Serviceability is subjective. Who’s opinion of serviceability should matter?

“For all goods except for IP, the serviceability and the means of production and reproduction are separate goods. For IP, the original means to produce the original manuscript are scarce, but the subsequent means to reproduce the manuscript are nearly non-scarce. What are separate goods for all other products, become common and inseparable goods for IP. IP opponents simply wave away this dilemma.”

No they don’t. They just say so what, as they should. So what if they are inseparable? How does that lead you to conclude that there exist property rights in the intellectual?

“The false dichotomy you present does the same.”

You never supported your case that it was a false dichotomy, and everything you said about my argument is a straw man. If “novel” does not mean one of the two things I stated, then what third option do you have? You admitted in your explanations that you use one of the two definitions I supplied.

“Unless you can address this dilemma with a coherent theory of property rights”

What dilemma? A dilemma is a “this is true or this is true” scenario. Where is your “or” statement? Pointing out that things are separable in one case but inseparable in another case is not a dilemma.

“you simply assume your conclusion that treating IP as an “idea” is preferable to treating the means of production as private property.”

That is not my conclusion! And also, how is it impossible to both treat IP as ideas and treat means of production as private property. You begin with this vacuous claim, don’t care to support, and move on with it to establish that I am a socialist. You are deeply confused if you think any IP abolitionist here argues against private ownership of productive means. You seem to think that when someone posts their novel in plain view and someone else copies it that the copier is exercising collective ownership over the author? That is ridiculous. Your metaphors are so obtuse they are almost double-talk and can be used to conclude anything.

“To choose the former and reject the latter is to promote the preference for treating private means as public means.”

You have not shown that to choose the former requires rejecting the latter, nor have you shown that I in fact chose the former or in fact reject the latter.

“An ideology based on public ownership of the means of production is socialism.”

Yes I know. How is that relevant? How about instead of wagging your finger about something we all know here, you actually try to show how my ideology involves public ownership. Public ownership of what? Your claim that people being able to copy a novel in plain view equals public ownership of whoever wrote the novel is insane, especially as you are in the middle of advocating why every novel writer ever should have partial ownership over everyone’s body.

“Producing for external economies is slavery, and will not be freely chosen.”

Wow, your density concerning external economies is incredible. Because you wear deodorant and the people who smell it don’t pay you, you are a slave. Apparently this was not freely chosen but imposed on all of us by our socialist masters. I mean, I have explained so many times why your charge that production for external economies is so bad I don’t know what else to say. Maybe you should stop being such a dishonest masquerading charlatan and *answer* my arguments, rather than rehash the same ridiculously stupid point over and over and over, to be refuted over and over and over.

“To promote slavery and liberty in the same breath is a fatal contradiction. This is the anti-IP argument.”

No it is not. This is one of the most dishonest things you have ever said. Your solution to this “problem” is to make it so when anyone writes a melody, no one else is able to sing that melody. If someone draws a pretty picture, no one can try to draw it again themselves. If you mold your clay into a new, innovative shape that makes the clay more useful, then no one else is allowed to do the same with their clay.

And you say we advocate slavery? Are you kidding me? You think people should be dictated on how to use their very bodies by creative producers, and you tell us we are socialists and slavery supporters?

Let me remind you that you are the one describing a situation in which a centralized agency dicates the use of everyone’s bodies.

Wildberry July 22, 2011 at 2:42 pm
Peter Surda July 25, 2011 at 10:22 am

Wildberry,

If an author cannot or does not keep his novel a secret, either by hoarding or by contract, and discloses it, he looses any rights to control the use of it, according to you.

Have I not told you several times already that this is not my argument?

It may be freely reproduced without compensation to the author, because the copier may use his own resources to create the copy, and to tell the copier what he cannot do with his own resources is aggression.

Are you denying that the act of creation of a copy, in order to be in accordance with property rights, must involve the copier having the permission of the owner of the material? Are you denying that other than adding the author to the list of people who must agree to the modification of the material, IP has no other effect on property? Are you denying that this addition does not, in fact, create new rights, but redistributes existing ones?

private property rights require that the products from private means are also owned by the owner of those means

You did not, in fact, make this up to plug up the immense hole in your argument? What is “products from private means” and how do you distinguish it from causality?

or there is some other reason to dissolve private property rights upon disclosure, that is, to consider it a “free good.”

Where is this “free good” Wildberry? Are you hiding it under your bed? Aren’t all the examples you have so far shown merely an example of private property?

If the author does not own the novel, he does not have exclusive rights to its use, includnig reproduction.

Isn’t it true that for practical purposes, it is impossible to have exclusive rights to “use”, IP or no IP? Aren’t you just trying to smuggle a quantitative difference (for which you even fail to provide a normative scale) as a qualitative one?

Becasue he cannot control reproduction, it may be used freely.

If it may be used “freely”, does it mean that the act of copying, in the absence of IP, does not use scarce resources? Aren’t you just trying to falsely present an assignment of private property rights that you dislike as public property?

Therefore it is a free good, owned by no one, like ideas and letters of the alphabet.

Why are ideas and letters free goods? In order to benefit from them, do you not need to consume scarce resources? Isn’t it more accurate to say that rather than them being free goods, the benefits derived from them are assigned based on criteria other than the causal connections of the “uses” of ideas and letters themselves?

There is no libertarian theory of property that I’m aware of that claims that free goods come from privately owned, scarce means of production.

Which libertarian theory claims some goods “come from” other goods? Why is this relevant?

The only theory that I’m aware of that woud support such a conclusion, that the author does not own what he produces, is socialism, where the means are always publicly owned (i.e. government owned). It is not that the means are not scarce, but that they are not privately owned.

What do the terms “come from”, or “author does not own what he produces” mean and why are they relevant?

Since the theory of publicly owned means of production, socialism, is what Hayek described as the road to serfdom, anti IP positions promote the road to serfdom because it promotes the public ownershp of the means of production if the product is an intellectual good, like a novel.

Where is this public good you refer to?

Anti IP proponents require, therfore, that an author produce, from his own privately owned means of production (himself) for external economies.

Isn’t it true that from practical point of view, external economies are unavoidable, IP or no IP? Furthermore, didn’t Mises say that it is invalid to derive from the existence of external economies that there is something “wrong”?

It is not clear to me at all how this is accomplished while remainnig consistent with libertarian threories of private property.

Why is the existence of externalities in a world without IP in any way relevant to the debate? Isn’t it true that the externalities exist with or without IP, and that other producers (which are not covered by IP) are also affected by externalities?

As I have said elsewhere, this is a good definition of slavery; being forced to produce for external economies.

If externalities are unavoidable, does it mean that we are slaves no matter what system we choose?

Of course you do not claim to force the author to write books, so given free choice, he will not choose to produce for external economies, and will deploy his scarce resources to other endeavers, where they are respected as and remain his own private property.

And other authors, which will find business models that do not require protectionist measures, are unable to produce? Why is the unprofitability of a specific business model relevant in any way whatsoever? Furthermore, why is the existence of externalities a justification for some protectionist measures, but not for others?

Old Mexican July 18, 2011 at 9:16 pm

Re: Adam,

If I write a book and anyone can go to the store the day it comes out, copy it as many times as they like and sell it, how does the argument above apply?

If people really liked the book (which would be the logical conclusion, otherwise why copy it?) wouldn’t your new found fans want a SIGNED ORIGINAL?

Adam July 18, 2011 at 10:27 pm

OM,

Yes, we’re assuming people liked my book, but whether or not someone wants a signed original is besides (my) point.

DensityDuck July 19, 2011 at 6:31 pm

Dude…seriously? You honestly think that a SIGNED ORIGINAL is a good so desirable that a creator will be able to make a living from creation?

Matthew Swaringen July 19, 2011 at 7:39 pm

Dude… seriously? You honestly think that people buy things only because of copyright laws despite the fact that they are obviously extraordinarily ineffective at preventing sharing?

coturnix19 July 19, 2011 at 9:01 pm

Reading from paper is immensely more convenient than from a screen, and printing book at home is usually more expensive than buying a copy from a store, even with royalties included (especially pulp fiction stuff, pro/sci stuff is expensive), because of an economies of scale.

But that may change in the future (it will certainly change). What then?

J. Murray July 19, 2011 at 10:28 am

To take a quote from the RIAA (paraphrased) – “It’s unfair that all the file sharers focus on distributing the popular songs.” This means that the song is already a major financial success.

Yes, anyone can copy the book, but what indication is there when you first release it that it’s worth the time, labor, and material to copy and sell it? They emulate after seeing if your book is a best seller or not. The only thing you’re “losing” is at the end of life margin to a market segment that’s only interested in the work becuase the copyer is providing it at a price below what you’re offering, thus you really lose nothing as those customers would never read the work at the price you were asking.

There is also the additional quality consideration. Why did Harry Potter just break the single weekend record in ticket sales? It’s easily and readily downloadable in full, but people still shelled out their $14/ticket (or more if they did 3D). Two things – the theater is still a social experience and attempting to watch a movie from a shakey cam from the back of the theater sucks.

People can do whatever they want with their own property, which includes copying yours. If you don’t want anyone to copy your hypothetical novel, don’t show it to anyone. Once it’s out in the wild, it’s fair game.

DensityDuck July 19, 2011 at 6:32 pm

“Why did Harry Potter just break the single weekend record in ticket sales?”

Because not everyone has broadband yet?

J. Murray July 19, 2011 at 7:33 pm

There are around 5 times more people with broadband than bought a ticket to the most watched film in history, Gone With the Wind. Every single person that bought a ticket has a statistically high likelihood of having broadband service. There are more people with broadband that have no interest in Deathly Hallows Part 2 than will ever watch the film in the history of man.

So, no, that’s not the explanation for the $168 million opening US weekend.

Matthew Swaringen July 19, 2011 at 7:40 pm

I’d venture that most people interested in the film do have it.

coturnix19 July 19, 2011 at 7:48 pm

And why is that? Because of government intervention into home internet access market! Libertarianism sucks, go mercantilism!

Virginia Llorca July 18, 2011 at 8:24 pm

Did you see the viral vid of the 3D copy machine? Made a working wrench. Scary, man.

Oh, google for the link. I don’t have it. Maybe it was on Mises.

Sione July 19, 2011 at 1:22 am

I own several 3D printers. So far there are some serious limitations to additive engineering but the technology is improving and the capabilities continue to be upgraded. Already it is possible to manufacture components that can’t be manufactured by conventional means. My personal favourite is selective laser sintering, but there are other alternatives. At the moment the technololgy is useful for prototypes, one offs and short runs of, say, 20 items or so. It is getting better, but I’m happy with this (for now) since it already allows me to get ultra cheap tooling for transfer lines and scale manufacturing processes. Basically this is going to go a long way towards wiping out notions of IP and copyright- no doubt about that- and it’ll wipe out whichever society of fools chooses to try and restrict its widespread adoption with restrictive IP regulation, artificial scarcity and the like.

Sorry folks, Ayn Rand was wrong on the wrong side of this one.

Sione

Virginia Llorca July 20, 2011 at 5:36 pm

I so appreciate your reply. The film was almost surrealistic in its presentation. I wish I got the part about transfer lines and the scale manufacturing process. Maybe you could put a simple explanation on my blog as this is probably not the correct venue. I have to keep reminding myself that the future is already here. But I am glad to see you reiterate that the ‘philosophical’ or ‘abstract’ idea of Intellectual Property cannot hold up in the light of such technology.

RTB July 18, 2011 at 8:26 pm

“which means that innovators cannot rest on their laurels but must constantly refine, innovate, work hard, progress, compete to win. ”

IP laws may be a bad thing, but this is no argument. It’s like saying that since you steal my money that means I “cannot rest on my laurels but must constantly refine, innovate, work hard, progress, compete” to get more.

Since the guy next door stole my TV that means I “cannot rest on my laurels but must constantly refine, innovate, work hard, progress, compete” to get another one.

Since the government stole my property that means I “cannot rest on my laurels but must constantly refine, innovate, work hard, progress, compete” to get more.

BioTube July 18, 2011 at 9:08 pm

You’re assuming copyright is a valid form of property; opponents assert it’s not. This post might as well read “ERAEGE!!!111!!!” for all the good it does your position.

Wildberry July 19, 2011 at 12:01 pm

RTB,

Don’t dispair. That is a good analogy. It is amazing how strong the reaction is when you reduce the phrase to absurdum by suppling facts which everyone accepts. Yet somehow we should all agree that there is no relationship between the two statements.

If there is a difference, then what is it? It must be more than “but TVs are proeprty and IP is not.” The difference betwen a Royal Decree and that statement is…ZERO.

coturnix19 July 19, 2011 at 7:56 pm

That statement is a circular logic because it assumes that IP is property, and then states that it is property. Doesn’t work that way.

coturnix19 July 19, 2011 at 7:54 pm

Since the non-union taxi driver stole my lawful customers that means I “cannot rest on my laurels but must constantly refine, innovate, work hard, progress, compete” (read: chase the non-unionized taxi driver, beat the crap out of him with a wrench) to get more.

As noted above, the real question is “what is property”.

RTB July 19, 2011 at 10:09 pm

Truly amazing. I’m assuming nothing. I’m open to the discussion. You’ll note my preface: “IP laws may be a bad thing”. You’re assuming too much. My comment wasn’t pro IP, only against the argument used. The argument is purely utilitarian and I simply pointed that out. Whether it’s true or not, whether IP laws are proper or not, is irrelevant. If you can’t even deal with that then you have bigger problems than IP laws.

Mickey July 18, 2011 at 9:18 pm

RTB, That has to be the most asinine comment I’ve had the misfortune to read. It’s ridiculous to conflate an idea that has no physical existence with a physical object that is, by nature, scarce. Taking something physical that belongs to someone else can be called stealing because they no longer can benefit from its use, whereas some incorporeal idea, or set of words, pictures or sounds strung together in a particular order cannot be stolen because there’s nothing to steal and the “owner” can continue to enjoy the original even if it’s been copied a million times. A CD/DVD, Book or any other physical object can be stolen but copying it and returning it to the owner is not theft; it may be inconsiderate and rude, but it should never be considered a crime.

Additionally, to say that it allows the creator to be paid for his/her work is to say that they, because their work results in an idea that can be sold or rented, should be paid in perpetuity for work they performed, perhaps, decades before, it fosters laziness and a sense of entitlement, much like welfare…

Adam July 18, 2011 at 10:39 pm

Herman,

I understand where you’re coming from, however, that’s the first time I’ve heard the “benefits of use” argument. Where did this originate?

The “sense of entitlement” argument seems (like Old Mexican) to be besides the point. Either someone has the rights to protect their idea or they don’t.

Your first argument is interesting though. Please enlighten me.

Linux Is King July 19, 2011 at 2:18 pm

Borrowing without consent is theft and robbery even if you intend on giving back the physical object you borrowed. You are to be condemned to restitution and additional compensatory and punitive damages could be claimed in addition to having borrowed the said CD/DVD which was not your property.

Furthermore, given that the CD/DVD was not your property, any unauthorized usage you made of it is considered theft of property, including copying.

Furthermore, from a libertarian perspective, the owner of a movie theater is the owner of the theather’s premises and has the right to set a rule of no cell phones, no video cameras and no recording devices and any unauthorized activities performed on the private property of the theater owner can be considered trespassing, theft, vandalism and is a crime subject to restitution and punitive and compensatory damages.

Also, if a movie or music shops sells you the DVD/CD, it can state a contract where, in order to be allowed to purchase said media you must agree to not make unauthorized copies of it. It’s an enforceable contract according to the libertarian principle.

In that case, any copies you would make is a breach of the contract and you are exposed to compensatory and punitive damages.

Given that fact that all ideas are communicated with a physical media, any unauthorized use of the physical media is what constitutes the theft of property.

If you find a loop hole in the process where you would say record a movie with a zoom camera from a distance at a drive-in movie park and then copy and distribute it, that would be the fault of the drive-in park for not putting fences high enough to prevent this and it would be the drive-in park that would be in breach of contract with the movie distributor.

But in that case, the damage would be done and there would be no legal recourse to stop the copying.

Same thing for you seeing somebody with a tractor and deciding to look at it, draw it and make your own version of it. Provided you were not on the inventor’s property when you did this.

It’s a crime to steal a CD/DVD, copy it and giving it back. It’s called theft. Just because you give it back does not make it less of a theft. You did deprive him of his CD/DVD and you were not authorized to use it. Your copy would be illegal.

Matthew Swaringen July 19, 2011 at 3:47 pm
DensityDuck July 19, 2011 at 6:34 pm

“Borrowing without consent is theft and robbery even if you intend on giving back the physical object you borrowed.”

Why? What if I borrow in such a way that the object isn’t damaged, and I return it before you plan to use it again? Why is that wrong?

J. Murray July 19, 2011 at 7:35 pm

Because the owner is deprived use of the property during the time you borrowed it. You can return everything to perfection, but you can never return the lost time.

DensityDuck July 20, 2011 at 3:43 pm

“Because the owner is deprived use of the property during the time you borrowed it.”

Except not, because I returned the car before you needed it. You weren’t “deprived” of anything. (Set aside the question of whether or not this is possible; we’re in philosophical fantasyland, here. It’s a meaningless derail.)

Linux Is King July 19, 2011 at 7:41 pm

Suppose you have a lot of money in your bank account and I hack into the bank and “borrow” $10,000 from your account without you knowing it and a month later I give back that $10,000 without you knowing it. Would you be okay with that ?

DensityDuck July 20, 2011 at 3:42 pm

The obvious rejoinder is to ask if I needed the $10,000 in the interval. If not, then…where’s the harm?

And, frankly, you’re just doing what banks do all the time. Do you honestly think that there’s a giant money vault in the back full of dollar bills and gold coins?

Wildberry July 20, 2011 at 4:45 pm

DD,

Isn’t it obvious to you that you are bending over backwards to try to prove that stealing is not stealing?

Theft (larceny) is taking and carrying away the property of another without consent or privilege.

It is not “unless you can prove that, although it is not yours, the owner wasnt’ using it at the moment you took it!”

You are out on a limb and have sawed it off under your feet!

sweatervest July 20, 2011 at 6:32 pm

“Isn’t it obvious to you that you are bending over backwards to try to prove that stealing is not stealing? ”

Isn’t it obvious that this is not an argument and just assumes your conclusion which is that copying is stealing?

Isn’t it painfully obvious that stealing means taking and copying is not taking, and the only reason why stealing is stealing is because the person stolen from *loses* something. The above nitpicks only point out that theft is necessary to make the first unauthorized copy. That does not turn everyone who copies the unauthorized copies into thieves themselves, because the original owner certainly loses nothing by having the unauthorized copy further copied.

“Theft (larceny) is taking and carrying away the property of another without consent or privilege.”

Yeah, so copying isn’t theft. If the unauthorized copy is already out there I need not touch your property in the slightest to get ahold of a copy myself. I did not steal from anyone in that process.

DensityDuck August 3, 2011 at 9:53 pm

You’ve already left the thread, but I’m trying to get Linux et al to admit that property rights exist even in the absence of harm. Taking money and putting it back is theft even if the person you took it from never finds out.

Hexman July 18, 2011 at 10:08 pm

First this is one area where I completely depart from most folks on mises.org, including my son.

I’ll bet that 99% of you have never invented a new product, good or service. You’ve never labored year after year, praying and hoping that you’ve read the marketing “tea leaves” correctly. I’d also bet none of you have ever put everything you’ve ever worked for and own on the line to bring a product to market. With out IP and being 52 with four kids to put through college, I’d stop risking and rolling the dice.

After starting 4 companies from scratch, inventing hundreds of products, there would have been many of them that I would never have tried to bring to market if there was not IP rights. It would not have been worth the risk.

Today your product can be knocked off and brought to market by a “Larger Corp.” who can function on lower margins of profit, due to the size and scale of their business. i.e. WalMart. When you only have a single SKU to sell, all of your cost have to be carried by that one item. Yes, yours might be the original, but most Retail Dealers and consumers really don’t care, they both would rather buy a good knock off that they can make a larger margin on, or pay less for. Be Honest with your self, if it was just as good or even better than the original, but cheaper, you’d buy it! There are very few products that ever reach the allure or status of a product like a Harley Davidson.

BTW and not to destroy my own argument, with the cost of lawsuits and patent infringements suits & cases, the small guys pretty much can not afford to sue for protection anyway. But the Threat of a costly lawsuit and bad PR keeps many large companies at bay until the product has a chance to reach critical mass in the market place. Most often, without IP, the product would not have time to reach critical mass in the market place, would be knocked off over and over and you would not even know who the original inventory was! The baby would be still born at birth! A new company that has the potential to bring a new product to market dies and so does the chance to bring other innovative products to market! Most inventors get one or two, maybe three chances in life to bring a product to market. If their first attempt bankrupts them, how long do you think they have to work to make enough money to try again?

Anyway, most of you are truly clueless, ignorant and are only speaking theoretically. Please don’t take that statement wrong. You’ve never lived it or loved it! or died by being a small business person or inventor. You’ve never given birth to a product or had to defend it in the market place or had your “baby” stolen. Even with your Brand Name, Trademark and patent, you will still have tremendous competition from other innovators trying to solve the same problem or service, but with a different solution, concept, design or design theory.

For those of you who have, my apology.

Most folks believe that “imitation is a sincere form of flattery”, to most inventors, it is just a legal form or robbery!

Seattle July 18, 2011 at 11:19 pm

First of all, let me give the reminder businessmen are not economists, and being a good businessman is neither necessary nor sufficient to be a good economist. That we speak from a theoretical position is not a charge against studiers of economic theory because there simply is no practical position upon which to stand within the subject. Humans cannot learn how markets function on a deep level through simple participation: We’re far too inefficient processors of information for that.

Secondly, allow me to expand on an earlier point: You are not entitled to your potential profits. If another company is able to produce superior versions of your products at a lower price, then you should go out of business. That you put lots of hard work into your failed business venture does not entitle you to a consolation prize. If your business can’t survive without the state protecting you from your competition then it shouldn’t be sitting around wasting scarce resources.

Oklahoma Libertarian July 18, 2011 at 11:52 pm

“Yes, yours might be the original, but most Retail Dealers and consumers really don’t care, they both would rather buy a good knock off that they can make a larger margin on, or pay less for. Be Honest with your self, if it was just as good or even better than the original, but cheaper, you’d buy it!”

Your argument being that you’re entitled to higher profits despite consumers’ odious desire to pay less for near-perfect substitutes?

coturnix19 July 19, 2011 at 9:19 pm

In the case of digital goods, nobody would pay for anything. Limitless copying takes profits from copycats just as it does so from the original creator.

Oklahoma Libertarian July 19, 2011 at 10:52 pm

Great.

Linux Is King July 19, 2011 at 2:26 pm

Seattle,

What if you’re an employee in a large firm and come up with a great idea and work on this idea and another employee, a suck-up, learns about your idea, spys on you and develops it ahead of you and then claim it was his all the time and gets the promotion etc.

And then, when you object, he answers that you are not entitled to your credit that if the company has lax computer security and so your computer was not protected from snooping it’s not his fault and that you should lose your job.

What you are saying is basically the same thing. I now despise libertarianism for this IP robbery.

Libertarianism Is Bullshit:
http://martybeckerman.com/libertarianism-is-bullshit/

coturnix19 July 19, 2011 at 8:06 pm

learns about your idea, spys on you and develops it ahead of you and then claim it was his all the time and gets the promotion etc.
—-

That would be lying. In a company where such thing happened, that kind of employee might say good bye to his promotion, if not fired at once. or may be he would be put into ‘commercial espionage’ division. Either way he is not the kind of person one could trust nor is he productive.

coturnix19 July 19, 2011 at 8:09 pm

Not all libertarians are IP – abolitionists.

sweatervest July 20, 2011 at 6:37 pm

I started reading your article and it is, from the get-go, so filled up with childish foot stampings and name-callings I concluded there is no substantial analysis in it anywhere and it is not worth my time.

Also your post presented a scenario that would only piss off someone who believes IP is just. So congrats. You just used IP to justify IP. That is a popular thing to do.

If you’re so paranoid about that happening to you then don’t hang out with any other employees. Wall yourself off, isolate yourself and make sure no one ever learns anything from you.

sweatervest July 20, 2011 at 6:39 pm

Also, that you plastered Glenn Back on your article only goes to show how ignorant and misinformed you really are about libertarianism.

Oklahoma Libertarian July 18, 2011 at 11:47 pm

“I’ll bet that 99% of you have never invented a new product, good or service. You’ve never labored year after year, praying and hoping that you’ve read the marketing “tea leaves” correctly. I’d also bet none of you have ever put everything you’ve ever worked for and own on the line to bring a product to market. With out IP and being 52 with four kids to put through college, I’d stop risking and rolling the dice.”

…Your point being that because IP laws helped you personally, they are just, defensible, and economically beneficial in general?

Some people spend their entire lives trying to attain certain political offices, and that’s no defense of their actions. Some people work long hard hours to land defense contracts, but that too is as irrelevant as how IP affected your life personally.

I’m sure you’re glad for your sake that the previously-existing ideas, technology, and processes you employed to develop your inventions were not so rigidly monopolized by IP laws.

Sione July 19, 2011 at 1:33 am

Hexman, as an innovator, researcher, inventor and entrepreneur I say this to you, you are full of bull- just a load of stinking horse manure.

In over thirty years of experience in the business of innovation etc it is clear to me that there is no right to customers and no right to a market- not even for you, not even when you lust for it to be so. Get off your arse and learn to compete fat boy. Do not cry about how you want IP regulation to protect your position. That sort of thing is nothing more than a rent-seeking whinge- demanding everyone else yield to your interest so you have a free reign to get wealth. Piss off! You have no entitlement to a market, to customers, to profit,….

Learn to earn.

Sione

iawai July 19, 2011 at 7:28 am

Crudely said, but right.

How many more small business owners would be able to compete if they were able to take the best products from the large retailers and refine them for a local market, or experiment with different, cheaper production models to out compete those lumbering giants burdened with long term supplier contracts?

And why can’t you, as innovator and inventor, sell directly to “the big guy” and reap your profits without trying to be both innovator and business owner? They are two different skill sets, and to try to focus on both virtually guarantees failure in each. If you make a better mouse trap that can boost someone’s profit margin by a certain amount, wouldn’t you be better off selling it directly to them, than trying to produce it yourself?

Josh S July 19, 2011 at 8:06 am

Here’s what happens if any of the “big guys” runs into that situation, i.e., a “little guy” has a great idea and no patent. If he shows it trying to sell his plans, the “big guy” gets enough detail from the negotiations to be able to replicate it. Once they get enough detail, they tell the small company or entrepreneur to take a hike and start mass-producing his idea.

Another neat trick big companies do is refuse to pay the small-time supplier after the sale is final. They hem, haw, drag their feet, insist that some fine print of the contract wasn’t followed exactly, and calculate that the “little guy” will go bankrupt long before he’s able to litigate and get his money.

In the theoretical world of anarcho-capitalists, the big business’ reputation would eventually get so bad that no small-timer would work with them. But in the real world, you can operate a business with a certain amount of “churn.” It’s like the education industry–they treat adjuncts like garbage, but they can afford to because if you don’t want the position, there’s some bright-eyed, bushy-tailed, fresh PhD who will work for almost free under the illusion that it might lead to a tenured position. Similarly, there’s always a fresh entrpreneur or little start-up who wants to make a fortune selling something to a big corporation. And if they are dumb enough to not patent or copyright their work, so much the worse for them.

Colin Phillips July 19, 2011 at 9:18 am

Josh S,

Do you really think you’re the only skeptic there is? That everyone else is “bright-eyed, bushy-tailed, fresh” and only you can see the truth? Get over yourself.

If you are an entrepreneur that willingly shares your trade secret with people/companies you do not have a contract with, then whining that your secret is not as secret as it was after the fact is stupid and childish. If you take even the smallest of protective measures, then your entire nightmare scenario crumbles.

As an aside, it is completely invalid to imagine that the education industry and the litigation process would be anywhere near as inefficient, bureaucratic and inherently unfair as it is today with all the states’ fetters, so your comparison is false.

Josh S July 19, 2011 at 10:15 am

I like how you referred to something that happen quite often in the real world as a “nightmarish scenario,” while your imaginy world is unquestioned reality. It is *not* easy to protect yourself from a big company if you refuse to copyright or patent your work. It’s easy to get snookered, even if you think you’re clever.

Futher, who’s to say that without a State, there would be no intellectual property? Technological enforcement of intellectual property is *much* more effective than legal enforcement, since the vast majority of consumers can’t be bothered to try and mod their Xboxes or install cracked versions of Steam. And perhaps there would be trade associations for the enforcement of IP–steal someone else’s idea, and get ostracized from the trade entirely, much like what happened to Italian merchants who didn’t fulfill their contracts in the Renaissance era. Whatever mechanism you imagine for enforcing property rights and litigation in your anarchist utopia could very well be applied to intellectual property.

Colin Phillips July 19, 2011 at 12:10 pm

Josh S,

These types of unscrupulous actions which, you’re right, happen quite often (I’ve fallen victim to one myself), only happen in cases where adequate protection was not taken. I could have (and should have) found a standard contract off the internet before I revealed anything. That’s what contracts are for.

Ad you’re right, too, that in the absence of a state, there’s nothing to stop people from still holding to something which achieves the same aims as IP aims to achieve – personally I have no problem with people who want to set up a modern equivalent of a guild, where members agree to a certain set of restrictions voluntarily, and breaking those restrictions gets you ostracised from the group. As long as membership of the group is not imposed by force, it’s fine by me. Depending on the business conditions, I might even join such a group, if it appears to be to my benefit, which, I concede, is possible, although I have a distaste for cartels for personal reasons.

But if this “churn” problem, where big business can screw over x% of the naive inventors that present their big idea without any form of contract, and still maintain a reputation for trustworthiness, really exists (and I think it does), why do you think the bureaucrats running the IP courts, and the big businesses with thousands of lawyers devoted to doing exactly that with the current system are any better?

Please don’t imply that my scenario is “unquestioned reality” or a “utopia”, I did not claim or imply that at all. I understand that there will always be unscrupulous practices (like submarine patents, or getting the police to raid your competitor’s “counterfeit” store), but if you’re going to point out that there could be corruption in business in one scenario, you should concede that there is at least at much corruption in the current situation.

DensityDuck July 19, 2011 at 6:38 pm

“These types of unscrupulous actions…only happen in cases where adequate protection was not taken. I could have…found a standard contract off the internet before I revealed anything. That’s what contracts are for.”

Ah-heh. Contracts are a form of intellectual property. If you think that IP isn’t enforceable, then why should a contract be?

J. Murray July 19, 2011 at 7:44 pm

The funny thing is this is a two way street. The “little guy” can just as easily copy the “big guy’s” product and sell it for a lower cost due to the absence of bureaucratic overhead.that forms in all large companies. Big companies get crushed by upstart small fries all the time. Pan-Am was wiped out by Southwest. Netflix took Blockbuster to the cleaners. A small company called Wal-Mart destroyed Woolworths and made Sears irrelevant. Amazon put Borders out of business.

Large corporations are just as vulnerable, if not more so, to being destroyed as the small competitors are. Smaller competitors are more nimble than Tue big boys and can better service a market than a major player, and even eventually take over until the cycle continues itself and a new entrepreneur takes the lead.

The only big companies that last 50+ years are those protected by government. Without that protection, thy always lose to the little guys you’re so worried about.

Josh S July 20, 2011 at 9:27 am

Colin, I never defended the current system of IP laws in the USA, which IMO is broken and stupid. The topic of this article, however, is the absurdity of IP as a concept in itself, and posits that it is entirely the creation of the State. I posit that it is neither.

One of the things I notice is that Rothbard frequently goes to great pains to show that commonly cherished aspects of rule of law could be established in a stateless society, i.e., anarchy is not the same as anomy. One could read much of his arguments as advancing the claim that states are less efficient at promoting the rule of law. He argues that many of the widely supported laws we have–laws against selling poison as medicine, laws against breach of contract, laws against theft, laws against physical assault, etc, all would emerge in one way or another in a stateless society, as they are all essential extentions of the basic notion of property rights and peaceful trade.

I would argue that intellectual property is just as essential, pointing to the fact that means of protecting it arise completely independent of the government as evidence. Further, many desirable consumer products exist today that simply wouldn’t work without some notion of IP, such as just about any recorded entertainment product that requires a significant capital investment to produce. The consumer desire is there (as evidenced by profits), but if unauthorized copying cannot somehow be prevented, it’s as impossible to make as it is impossible to manufacture if your rival is permitted to come into your factory and switch off the machines.

Colin Phillips July 20, 2011 at 10:17 am

Density Duck,

Contracts are not a form of intellectual property, they are a form of voluntary mutual agreement. The difference being that contracts apply to those who voluntarily agree to them, and IP applies to everyone, regardless of agreement or not.

Colin Phillips July 20, 2011 at 10:29 am

Josh S,

I take your point – if the current way in which IP is handled is “broken and stupid”, that does not, in and of itself, mean that every possible implementation of such a concept is equally broken and stupid.

However, it is still important, when making comparisons, to ensure that the comparison is on a fair and unbiased fundament. If we are comparing the flaws in my proposal (use contracts to obtain some security, although there are no guarantees) to the flaws in yours (Have something that achieves the stated aims of IP, without being “broken and stupid”) then we have defined away the possibility of fair comparison – by definition your proposal is that we use something that has no flaws.

What I was trying to point out is that 1) the flaws in my proposal can be partially overcome, and 2) nothing is without flaws. If your criticism of my proposal is that there will still be some room for unscrupulous behaviour, then you should really try to explain how that particular problem can be solved in your proposal _without_ introducing the problems we are both trying to avoid, namely those of the current “broken and stupid” system.

Just trying to make sure we’re comparing apples with apples.

RTB July 19, 2011 at 10:16 pm

“And why can’t you, as innovator and inventor, sell directly to “the big guy” and reap your profits ”

Isn’t that what IP laws are really for? Just asking.

Wildberry July 20, 2011 at 11:17 am

Exactly!

Why would a “big guy” buy something from you which you cannot own and neither can she? What profits?

In the non-IP scenario, the ony benefit is the distribution channel. Content has no value and generates no return.

Peter Surda July 20, 2011 at 5:05 pm

Wildberry,

In the non-IP scenario, the ony benefit is the distribution channel. Content has no value and generates no return.

So, you’re worried that noone will listen to you anymore if you are exposed to competition? That actually has some appeal. Down with IP so Wildberry goes bankrupt and can’t afford internet access anymore!

sweatervest July 20, 2011 at 6:41 pm

“In the non-IP scenario, the ony benefit is the distribution channel. Content has no value and generates no return”

No, that is completely wrong. ONLY with IP are the benefits through the distribution channel. The whole reason IP is important is because distribution is now costless and that is the basis for profits under IP laws: selling copies, that is profitting from distribution.

Content has no value? Well then what’s the problem? People shouldn’t be producing things of no value anyways.

Linux Is King July 19, 2011 at 2:34 pm

@Sione,

Then again, you have no right to my ideas.

Suppose I am developing extremely valuable energy and propulsion technologies. In light of all this protest against intellectual property and seeing that you would not value my ideas.

I could simply decide to give them to North Korean authorities who are going to appreciate them for their full value and I will not sell them to the rest of this selfish and greedy hypocritical and condescending world.

You don’t value the service, the work of finding better ways to do things. You think that this is not worth being paid for ? Fine, I’m sure North Korea will think differently.

Isn’t it you who are the rent seeker who would want the benefits of ideas for free without paying for the service of having found and discovered it ?

What would you have to say to that ?

Sione July 19, 2011 at 4:23 pm

Linux

“Would would you have to say to that?”

I’d say you’re yet another tub full of shit!

Seriously! Your entire approach here is purile, infantile bunk.

D’ya really expect any sane person to follow this idiotic ego-driven fairy tale you’ve self-generated and then take it seriously and then apply it to restrict the freedoms and property of others?

Are you on drugs, man? I mean, you are seriously expecting people to uncritically accept the notion that you are so great that you are supposedly going to be the only person in the whole darn world who is going to develop a new energy source and propulsion technology? The only one? Just you and not any other fellow. And that there will be no alternatives? Further, are people supposed to believe that no-one else is going to have an inkling of just how you did it and what principles were involved? Further, that none of what you supposedly invent relies on any way shape or form on previously developed knowledge- knowledge won from reality by someone other than you? Further, that no-one will be able to repeat the feat or attain something broadly similar.

By the way, I especially liked your imaginary characterisation of the North Korean authorities as opposed to the rest of the planet. What outstanding nonsense! What a busy little imagination you have. Tell us, are you on amphetamines, cocaine, LSD or what? Come on now, is it mushrooms?

It is stunning that ANYONE would argue by fairy tale like what you are trying. Shit-oh-dear, I once met a chappie who reckoned that God would speak to him on a routione basis. From that he developed a whole religious system of rules and “moral” edicts etc. What you are doing is reminiscent of exactly that lunacy.

Look, here is the deal. Develop whatever you can. Sell it if you can. Whatever. That’s your business. Just don’t be trying to use a hideous fairy tale story to steal liberty and property from other people. It is objectionable and totally unjustifyable.

Final issue. You write, “Then again, you have no right to my ideas.”

Consider. You have no right to own the content of another person’s mind. The content of the mind of another is not yours- even ideas what you told that person.

Thanks for providing the morning’s rough entertainment.

Sione

Linux Is King July 19, 2011 at 7:46 pm

When it comes to intellectual property, it’s on a first come first serve basis. It’s a question of timing. It’s like homesteading.

And I bet North Korea would like to be the first to have such technologies and they would not waste second. I can show you who’s the owner of my ideas by giving them to who I want.

But I don’t think that calling me insane, on drugs, puerile you know “ad hominems” is a serious way to discuss or to refute my position.

Your angry approach signifies that I am hitting one of your sensitive chords, that the truth hurts and angers so I must have touched the truth somewhere and that mabe it’s you who are the puerile guy for resorting to name calling.

El Tonno July 19, 2011 at 7:53 pm

“When it comes to intellectual property, it’s on a first come first serve basis. It’s a question of timing. It’s like homesteading.”

facepalm.jpg

There is not even a _space_ that you can homestead.

I think your actual name should be “Bill Gate’s IP protection homeboy”

Sione July 20, 2011 at 4:18 pm

Linux

The reason I consider you such a mad fool is because you are not presenting any rational argument. What you are doing is making up a childish fairy tale wherein you are the greatest inventor of the epoch who is going to develop some world changing technology (all alone, completely independently of anyone else). Then you present a characterisation of your imaginary North Korean authorities as appreciative of your mighty contribution of outstanding technical genius, assuming all the while that no-one else on the planet is supposedly able to realise the fantastic value of what they are forgoing. Worse, is the assumption that no-one else on the entire planet is able to provide a similar or alternative development to your miracle. This is all crazy ego driven mumbo-jumbo.

Now even assuming that anyone was silly enough to accept your delusion, there is still the issue of your expectation that a delusional fairy tale is a valid justification of the notion of denying other people their liberty and their own property and the use thereof. Again, not rational what you are presenting.

In summary, you are engaging in an attempt to rent seek by presenting of a silly fairy tale and then expecting such nonsense to be taken seriously. Your “position” is refuted by its nature as being based on nonsense, on mumbo-jumbo, on delusional illogic. Of course I chastised you for it. It is so base that one stuggles to accept the sanity of the source- perhaps drug abuse is the reason for the generation of such silliness…

As far as anger is concerned- naaaaah. It is an expression of contempt for the sheer fuckwittery you presented on this occasion. Seriously, you need to do better.

Sione

sweatervest July 20, 2011 at 6:43 pm

“When it comes to intellectual property, it’s on a first come first serve basis. It’s a question of timing. It’s like homesteading.”

You weren’t the first person to think of typing on a computer, using a language, thinking problems out, or acting purposefully. Now draw the arbitrary line to explain why it makes sense to own some ideas but not others.

Peter Surda July 20, 2011 at 4:39 pm

Hexman,

you’re a big fan of the labour theory of value, right?

Josh S July 19, 2011 at 7:55 am

That explains why the software industry is driven by innovation in China and Russia, where copyrights and patents are scoffed at.

Wildberry July 19, 2011 at 12:08 pm

Precisely. And why the indipendent film industry is thriving in Syria.

Colin Phillips July 19, 2011 at 12:42 pm

Actually, the reason there’s not much independent film in Syria is because of Nollywood – the Nigerian independent film industry is so well established that producing independent film there, for audiences throughout Africa, is cheapest.

There was a time when the big names in Nollywood also thought that IP was a problem, until they realised something, the “pirates” were specialists in video compression and massive distribution logistics – nowadays, to be successful, a producer expects not to make money on his first few films – if he’s good enough, the big names in “piracy” will approach him to buy his movie, so that they get a longer lead time to mass produce and distribute the films before other pirate organisations can start.

Wildberry July 19, 2011 at 1:21 pm

@Colin Phillips July 19, 2011 at 12:42 pm

You do not refute my point, but introduce another factor. OK, let’s go with your point, assuming you have the facts right.

Without IP, why would the big name “pirates” approach the producer at all? They can simply make a copy and distribute it with their superior distribution channels.

Why buy the cow when you can have the milk for free?

Colin Phillips July 19, 2011 at 2:36 pm

Wildberry,

I was not my intention to refute your point, I have no insight into independent Syrian film.

I actually may not have the facts right at all in this case, there are so many producers of Nollywood films that there are probably many different strategies being tried. But yes, assuming I have the facts roughly straight for at least a portion of the Nollywood market, the “pirates” do not have either the milk or the cow.

Until the producer sells the first copy of his movie, that film reel (or dvd, probably, nowadays) belongs to him. Essentially he has a trade secret. So, he can choose to sell it to whomever he likes. It makes perfect sense for him to sell it to the person/people or group/s who will pay highest for it. If I were in that position, I would sell a copy to the highest bidder with a contract stating that I would not sell any other copies to any other distributor. That guarantees the distributor a window period in which they can write the movie onto as many dvd’s as they think they can sell, ship those dvd’s to stores, markets, and street corners, and begin selling, all before their competitor distributors have even seen the movie.

But, if I understand the situation correctly, if they underestimate how well the dvd will sell, a small competitor with their ear closer to the ground can copy the dvd enough times to make up the shortfall. For this reason, the big distributors use their extensive network to make a big “splash” when the movie is first released to the markets, and immediately go into production of the next, and are always looking for the next producer whose movies will gain a viral-level popularity.

So, in answer to your question, if you buy the cow, you get the milk fresh. If you wait for your free milk, you’re going to get the sour leftovers.

Wildberry July 19, 2011 at 3:53 pm

@Colin Phillips July 19, 2011 at 2:36 pm

Whatever may be the case on the facts, you are making an economic argument, about how the “market” would proceed under one set of circumstances over another.

The process you are describing is the tendency of a product to be priced at the marginal cost of production. What is that marginal cost?

If it is merely the cost of reproduction, let’s call that R.

What is the cost to produce the first copy? That is the production costs, P.

The pirate’s cost is R+I (profit say $1), or $2.

The producer’s cost is R+P+I.

Let’s say that P = 1,000,000 times R, where R is $1.

Capital cost for pirate is $2. Marginal cost is $1

Capital cost for producer is $1,000,002. Marginal cost is $1.

Both may sell for around $2, since market price wil approach marginal costs.

OK, you might say, the producer can make it up in volume, by making 500,000 available at once, and making sure that all copies are released at the same moment, like a new Harry Potter book. Add to that the advertising and distribution costs necessary to pull that off. OK, make it 1,000,000 copies. That is a capital cost of $2,000,000, let’s say. If he sells every copy, he breaks even.

Of course, according to you, the first few films should be funded by the director, because he is an unknown. If he can’t get the screenwriter to kick in, he has to write the screenplay himself. etc. etc. In this case he may actually ENCOURAGE piracy in order to build demand for his “brand”.

Someday, after a life of poverty, he may strike it big. More likely, he will fold after the first attempt and spend his time doing other things, like digging ditches where he is sure to get paid.

OR, we could operate under something like copyrights, and create a little time for a new artist to become known while recouping some of his production costs. He could sell limited distrubution rights to a distributor, etc. He could cut a screenwriter in for a piece of the action. If he did make it big, or even turned a small profit, he could plow that capital into the next project, getting better with each film he made.

Which system sounds like a beter arrangement for encouraging a movie industry?

Colin Phillips July 20, 2011 at 3:12 am

Wildberry,

If you’re arguing that copyrights would lead to a more optimal number of Nollywood films, how are you determining that optimal number?

If, in a free market, the prospects for “digging ditches” are better than the prospects for making films, why is this a problem? More exactly, if a Nigerian film industry should be encouraged, why not also encourage the Nigerian ditch-digging industry to the same degree? We could make it a crime for anyone not in a ditch-digger guild/cartel to dig. That would be a very good arrangement for encouraging a very profitable ditch-digging industry. The problem, is, of course, that you’re promoting the interests of the industry at the cost of the interests of the consumer, and you’re doing so by removing the freedom of people to do what they like with their bodies and property.

The fact remains that a Nigerian film industry is thriving without copyright enforcement. That the distributors might be able to make more money off fewer films if only the state would punish their competition is not a good enough argument for copyrights, in my opinion.

By the way, not that this changes your argument, I understand, but you are wrong about the relative costs of production and distribution. Nollywood films typically cost less than US$25000 to produce, and distribution costs (which would be the same for both a “licensed” distributor and a pirate) are huge, due to the state of African roads (poor).

Wildberry July 20, 2011 at 11:47 am

@Colin Phillips July 20, 2011 at 3:12 am

If you’re arguing that copyrights would lead to a more optimal number of Nollywood films, how are you determining that optimal number?

Isn’t the idea that in a free market with private property rights, consumers allocate resources with their purchasing decisions? Why would I need to determine an “optimal number”? That is a function claimed by the central planner, which I obviously oppose.

If, in a free market, the prospects for “digging ditches” are better than the prospects for making films, why is this a problem?

It is only a problem if you want movies more than ditches, but can’t get them because there is no way for a producer of movies to make a living at it. If you want movies, you have to agree to respect property rights in them once produced, otherwise, you are killing the golden goose.

The fact remains that a Nigerian film industry is thriving without copyright enforcement.

I must accept the facts as you present them, as I have no counter evidence. But if that is the case, is it also true that Nollywood movies are preferred over Hollywood? And how is it that they accomplish this?

That the distributors might be able to make more money off fewer films if only the state would punish their competition is not a good enough argument for copyrights, in my opinion.

I agree. Who made this ridiculous argument?

By the way, not that this changes your argument, I understand, but you are wrong about the relative costs of production and distribution. Nollywood films typically cost less than US$25000 to produce, and distribution costs (which would be the same for both a “licensed” distributor and a pirate) are huge, due to the state of African roads (poor).

If they are so great and so cheap to make, why haven’t they taken over the US markets? Is it because of import duties imposed by the State?

Peter Surda July 20, 2011 at 4:30 pm

Wildberry,

Let’s say that P = 1,000,000 times R, where R is $1.

do you realise that this approach is exactly the one Mises rejected in the chapter about externalities that you like to refer to that often? Furthermore, do you realise that justifying income based on costs is the labour theory of value?

sweatervest July 20, 2011 at 4:32 pm

“Of course, according to you, the first few films should be funded by the director, because he is an unknown.”

How else would this happen? IP doesn’t change that. IP doesn’t give the director capital to make his first few films. If he is unknown his copies won’t sell and he still won’t have any money. And that would be after blowing some capital to pay for manufacturing the copies to be sold, which is a complete waste of scarce resources in a day when distribution can be done for free.

“If he can’t get the screenwriter to kick in, he has to write the screenplay himself. etc. etc.”

Again, how would IP change that?

“In this case he may actually ENCOURAGE piracy in order to build demand for his “brand”.”

Yes, because when you say piracy what you actually mean is free advertisement. People usually pay the holders of the media channels to advertise their names and work. It would not be unlikely that some “pirates”, or more correctly people who take on the task of distribution, would be paid by authors to distribute their work for them. That’s how it works in every other case of advertisement. It may seem like there is a fundamental difference, where in only this case the advertisement is the product itself. But that is not true. The product is the creative talent. That is what is being advertised. That is what a creative author is trying to sell. He is trying to get people to pay him to be creative, not to experience what he has already created. Why should a one-hit wonder get exceedingly rich for one night’s work? Why would you want to pay a director for a movie he already made? The only reason would be because he is likey to make *another* movie that is as good or better. You are paying him for his talent, not for what he has already done with that talent. You seem to be suggesting that IP is needed to get people to pay a person to be creative. Why? Why do you need IP to make the decision to help out your favorite director by donating some money to him for next movie?

If people don’t want to donate, then why should this director get to make another movie? Why does he need to get rich from the movie he already made? If you suggest that you are replacing consumer sovereignty with producer sovereignty.

“Someday, after a life of poverty, he may strike it big. More likely, he will fold after the first attempt and spend his time doing other things”

Which goes to prove that you are not a director. No, people who dream of making movies typically don’t give up after one failed attempt. You seem to be stubbornly ignoring the fact that creative people create out of a need to create, not a need for money. The argument always goes that they simply cannot create without money, so they need to be paid to be creative. That is of course not true, they can and usually do get other jobs and create on the side. By they don’t do it as a scheme to get rich. They do it because they have a burning desire in them to create something.

But that is all more or less irrelevant because so what if they do give up? Sobs stories about failing creative people are pretty out of place for you, as I have explained over and over that IP only allows a few creative people to enjoy huge success while forcing the vast majority of creative people out of the market entirely, destroying any hopes of making any money for their creativity. A few of the most popular directors will become exceedingly rich, making millions of dollars, but there simply isn’t enough money in the world for lots of directors to make millions of dollars. It is IP that destroys all those directors’ dreams so the few directors that win the popularity lottery get to be multi-millionaires.

“like digging ditches where he is sure to get paid.”

The uncertainty of being paid for one’s creativity does not go away with IP. It is always an extremely risky endeavor to invest in creative projects. Keeping up with what is popular without being too derivative is very difficult, again no matter what IP laws exist.

“OR, we could operate under something like copyrights, and create a little time for a new artist to become known while recouping some of his production costs.”

Yeah, or we could even tax people more and create a fund available to potential creative people to make their first creative product. That would make it easier for producers, right? In fact, why not tax people and give tax breaks to every producer? That would incentivize all production right? In fact, how about we skip the middle man and just have the state handle all production with tax money? It will excuse producers from the fiery competition of the market and make their lives easier. Wouldn’t that be great?

No, because these schemes always help certain producers by hurting other producers. In this case, making it more likely to get a fully return on a creative investment only happens by making it far less likely to get any return on a creative investment. That money has to come from somewhere, and to the extent peoples’ desire for creative material remains constant, they will only spend a certain amount of money on creative production. If one person gets more of it, then other people must get less of it. As I have explained many times, IP only favors *certain* producers at the expense of *other* producers, and does not incentivize production. It also wastes scarce resources that are tied up in production of anti-piracy products.

“He could sell limited distrubution rights to a distributor, etc.”

A distributor would only buy limited rights if he expected to get a solid return and profit from such a purchase. If the author is this well-known and capable of profiting then the author would expect to get paid, perhaps directly by his fans or by movie theaters or by home theater manufacturers, to make his next movie. You present a certain way to make money and gloss over all the other possible ways to make money.

“He could cut a screenwriter in for a piece of the action. If he did make it big, or even turned a small profit, he could plow that capital into the next project, getting better with each film he made.”

That requires profits, not IP. The refuted argument you stubbornly present over and over is that profits imply IP. You refuse to acknowledge that there are tons of ways for creative people to make money without IP, and also that IP interferes with them getting their names out and makes it *harder* for them to become well-known and capable of making a lot of money.

The simple fact is that as long as peoples’ preferences towards creative goods/inventions stays constant they will spend a certain amount of money on those creative goods/inventions. This amount cannot be changed by IP unless you suggest that IP laws actually make people want creative goods/inventions more (that would be an absurd claim). The amount of money that goes into creative production is what it is, and IP does not alter that. All IP can do is redistribute that money. Since each individual author/inventor serves to make money of that money by selling copies that means there must be fewer of those authors/inventors that make money at all. This is obviously because those paying authors/inventors must pay more for each creation/invention and, because the total amount of money they want to spend on creative goods stays constant, they will buy fewer creations/inventions and fewer creators/inventors will derive income this way. Because people are already spending most or all of the money they wish to spend on creations/inventions this way they will have little or none left to donate to other creators/inventors to fund their next projects, and those creators/inventors are pushed out of the market entirely.

“Which system sounds like a beter arrangement for encouraging a movie industry?”

The one where directors/writers/actors get their names out the most and that is not wasting huge amounts of resources on anti-copying technology and piracy huntdowns and that allows room for more directors and the satisfaction of more than the most mainstream “pop” tastes and doesn’t have the looming threat of accidentally recreating another copyrighted idea over every director’s head.

In other words, the one without IP, the one that would exist in a society that recognizes actual, well-defined intersubjectively ascertainable property rights and not fleeting subjective value-based property boundaries that serve only to cause more conflicts rather than solve them.

Peter Surda July 20, 2011 at 4:56 pm

Wildberry,

Why would I need to determine an “optimal number”?

So, as usually, you contradict yourself by simultaneously claiming that the reason for IP is, and is not, the achievement of an optimal output. Which is it then? Does the presence or absence of IP lead to the optimal production of Harry Potters?

It is only a problem if you want movies more than ditches, but can’t get them because there is no way for a producer of movies to make a living at it.

Just like Mises said, the correct conclusion in such a case would be not to make the movie, since it would be a waste of scarce resources, and if the movie is still made, the producer should suffer the loss. Furthermore, you are arbitrarily and counter to empirical evidence assuming that this inability to produce without IP is actually somehow a systematic issue, as opposed to being just a result of stupid business models.

Colin Phillips July 21, 2011 at 2:11 am

Wildberry,

1) Arguing that more movies and fewer ditches than the free market would choose to create is a net benefit *is* arguing for a market distortion. Arguing that markets should be distorted to fit in with one person or group’s idea of what should be produced *is* arguing for a central planner. For example, the length of copyright terms is currently set by: fiat decree. Is that not a central plan?

2) I realise that you don’t know anything about Nollywood, so please don’t take offence, but asking why Nollywood hasn’t taken over Hollywood’s US market is very very funny. Americans would not like Nollywood films, they cater to an African audience, focusing on a niche that Hollywood doesn’t dare to enter. Nollywood films are like morality plays for the african situation – strange things where the next thing out of a character’s mouth might equally be: an offer to purchase his brother’s wife; a claim that a particular goat is actually a shapeshifting witchdoctor come to curse someone (I’m serious); or a complaint about the high cost of AIDS medication. That question is like asking why, if the koran has better storylines than the bible, the koran hasn’t taken over the vatican book store. The two products are catering to two markets which are only very superficially similar.

Wildberry July 21, 2011 at 12:05 pm

@Colin Phillips July 21, 2011 at 2:11 am

1) Is that not a central plan?

It is a merchantilist plan. The Sony Bono Act is called the “Mickey Mouse Extension Act” for good reasons.

2) they cater to an African audience,

I think this is my point. They succeed because they satisfy consumer’s demands in some way, not because IP does not exist for them or whatever. I do not understand anthing about the Nollywood busienss plan, but I suspect it is rational and understandable. Business tends to be like that.

Virginia Llorca July 22, 2011 at 2:01 pm

If no body buys the cow, she still produces milk. You guys love to drag the last possible abstract iota out of every single argument and you need to own that. What is the point if there is no practical solution to an abstract argument. Get a hobby.

Linux Is King July 19, 2011 at 2:42 pm

Wildberry,

Ha ha ha ha !!! Very well put about Syria.

Libertarianism think that civilization can thrive on absolute selfishness and individualism. It cannot.

sweatervest July 20, 2011 at 3:24 pm

There is no choice to not be selfish or individualist. Every time you act you act towards your own ends, even if those ends are an improvement, *as judged by you*, in the lives of other people. Every action is selfish in this way. There is no choice to act towards your own ends or not. One acts towards one’s own ends by definition.

If, by “selfish”, you mean being an asshole or inconsiderate or not caring about screwing other people over then you are knocking down a straw man. Libertarians constantly cite charity as an example of selfish behavior. You are misrepresenting them if you are claiming they want everyone to be “selfish” in the colloquial sense of being okay with hurting others. What they mean is that people cooperate to further their own personal ends. It cannot be and has never been any other way. There is only deep confusion about this feature of purposeful action.

There is no choice to not be an individual. No matter how you cooperate or associate with other individuals you do not become anything different. Status as the member of some identifiable group does not contradict this. Individualism is the recognition that individuals are the source of action, and hence civilization. They are the actors. Groups of actors do not act. Only their members do.

If, by “individualism”, you mean isolation and self-sufficiency then you are obviously straw-manning libertarianism, which is centrally concerned with cooperation and division of labor. You are misrepresenting them if you are claiming they want everyone to be “individualists” in the sense that they do not work together. What it means is that the ends come from individuals only. A group of people does not desire. It does not decide. It does not profit or lose. Only its members can do those things. A group of people does not have ends. Civilization is the cooperative achievement of the ends of individuals.

Hexman July 19, 2011 at 10:06 am

Some of you have made good points and others once again show their ignorance of the “Real World” economics and you make my point.

Thou the personal attacks are something I expect from someone on the ignorant liberal lunatic fringe, not from a prestigious website full of highly intelligent students of economics, business and politics. I knew what I stated would bring a wrath of different opinions and standard mises.org positions.

Theoretical study is necessary to try and interpret the world around us, but so are stereotypes, but it does not always interpret the real world, i.e. Global Warming. And theories are always being refined and adjusted as we gain greater understand or new information. I’ve studied both “Real World” economics and Theoretical Economics and Politics my whole life.

Seattle’s quote: “Humans cannot learn how markets function on a deep level through simple participation: We’re far too inefficient processors of information for that.” If we mere mortals were so inefficient, then our market places would not work and we would need the “Gods of Economy” to run them. Hows that working for us right now? Please don’t take this wrong, most small business owners I know have a better grasp of economics than the professors I had in college and Grad School. That said my bases of economic understand comes both from theoretical and real world and I have great appreciation for those professors that pointed the way for me.

Josh S, you know of what you speak.

Sione, I’ve competited my ass off my whole life, and there is no “Fat” left! I neither lust for wealth, nor stated that I have a “Right to customers”. What I ask for is the Right to my Brand, my Trade Dress and New Invention, my God given IP and creativity. Without that protection you would not have thousands of products now on the market.

Where is this lack of competition due to patents that you speak of? and lack of innovation? Even with patent protection, you will see competitors create and design their own variation or version of a “Patented product”. i.e. Herman Miller Aeron chairs. A patent protects the cost and investment of R&D and forces the competition to do their own R&D. By protecting the original designs you actually get more innovation and creativity in the market place! Not less! and you get greater variety of innovation. Sometimes being forced to innovate around a patent you get a better mouse trap sometime not. And then the market place gets a chance to voice their opinion and vote with their dollars. You can buy the original Aeron® Chair or a knock offs.

Go out into the Real World and go see how many variants of Mesh Backed office chairs there are now in the Market Place. So please tell me again how the IP, Patents, Trademarks, © copyrights on the Herman Miller Aeron Chair prevent more innovations and competition?

Josh S July 19, 2011 at 10:20 am

I love the “if you don’t agree with me, then you’re evil and stupid” attitude of some of these people. Reminds me of Paul Krugman.

Wildberry July 19, 2011 at 12:10 pm

It is disguisting and common. Since the only real restraint is self restraint, not likely to change anytime soon. But at least intelligent posters like yourself are not completely unwilling to come forward. For that, I am appreciative.

sweatervest July 20, 2011 at 6:46 pm

I love how you pat yourself on the back in front of all of us. Makes me wonder who you’re trying to convince.

Also, the theory verses reality argument is a bunch of sophomoric nonsense. Theories are descriptions of reality. What else would they be? A theory that does not describe reality is wrong. It is useless.

Your example of global warming illustrates my point. To the extent that global warming does not describe reality, it is a wrong theory that needs to be thrown out in favor of a correct theory.

Sione July 19, 2011 at 2:18 pm

Hexman

“What I ask for is the Right to my Brand, my Trade Dress and New Invention, my God given IP and creativity.”

What you actually are demanding here is a right to customers and their money. That is, you are involved in rent seeking (a behaviour mode for which I have contempt). You want to force people to make purchase of particular product from you, at your set price, and prohibit them from choosing to take their patronage for that particular product elsewhere. Indeed alternatives to you & your stuff at your set price are what you seek to ban. Make no mistake about it, that is what your “God given IP” notion demands. There is no justification.

“Without that protection you would not have thousands of products now on the market.”

That is an arbitrary and baseless assertion. It’s simple nonsense.

Sione

Wildberry July 19, 2011 at 2:51 pm

@Sione July 19, 2011 at 2:18 pm

“Without that protection you would not have thousands of products now on the market.”

That is an arbitrary and baseless assertion. It’s simple nonsense.

You have no argument or any other basis to support taht assertion other than you ideological position. But, like all ideologues, you would never admit it.

Sione July 19, 2011 at 4:36 pm

Wildberry

Your are a liar.

I’ve addressed your claims and assertions on previous occasions and refuted them. I’ve even explained to you that the challenge you face, as a promoter of IP, is to prove IP is properly treated as property. You have demonstrated on more than one occasion that you are not capable of achieving that. Indeed, you’ve consistently sought to evade even making the attempt by employing purile concept substitution, self-contradictory rationalisations and dopey excuses. You have demonstrated that, as always, you have nothing substantive or serious to contribute.

It’d be nice to say you are full of shit. Unfortunately, you are more like a fart- loud and malodorous but ultimately of nothing solid, just vapour.

Sione

Wildberry July 19, 2011 at 5:23 pm

As if you needed to work any harder to make my point.

When you result to bathroom insults to make your argument, I should take you seriously?

Sione July 20, 2011 at 3:01 pm

Wildberry

I have no idea what self-abusive atrocities you commit in your bathrom. On the other hand your approach to discussions regarding the subject of “IP” are clearly available to view. The reference to your loud and malodorous presence is an accurate descriptor of your nature- noticeable momentarily but ultimately without solidity, mere unpleasant vapour.

The “insult” remains in your projection of dishonesty, your lack of substance and your refusal to seriously consider the specific points addressed to you by other contributors. In all the thousands and thousands and thousands of those empty wasted words you’ve posted, all the tooting and rasping you’ve done over months and months and months, you’ve failed to present and defend a logical, coherent case. Each of your assertions and each of the position statements you’ve generated has been refuted and thoroughly debunked- repeatedly. Yet on you go, evading, dissembling, disingenuous fibbing, smearing, twisting and turning, insisting, meanwhile ignoring salient information when it suits your fellings, pretending that somehow you’ll get away with it and that no-one will notice the fundamental problems with you- your lack of intellectual substance. Well, you’ve failed with your deceptions. The problem for you is that you don’t have a valid point to make. Meanwhile you still face the challenge of proof that was pointed out to you long, long ago.

The recommendation remains as previously. STFU and desist from the thousands of words of worthless position statements, smearing, lies and the like. Your position is already well known and has already been examined and dismissed. Time to start learning from what others contribute.

Sione

PS By the way, if you didn’t take what I challenged you with seriously, then you wouldn’t have bothered responding. Yet, as per usual, you contradict yourself.

sweatervest July 20, 2011 at 3:07 pm

“You have no argument or any other basis to support taht assertion other than you ideological position. But, like all ideologues, you would never admit it.”

You, then, are an ideologue too. For you have no argument or any other basis to support your original assertion. I suppose you would be consistent with your own statement if you never admit this.

Peter Surda July 20, 2011 at 4:25 pm

Wildberry,

You have no argument or any other basis to support taht assertion other than you ideological position. But, like all ideologues, you would never admit it.

This is a strange remark coming from someone who for months is unable to provide any coherent explanation of his position, or show any sign of being able to participate in a debate.

Linux Is King July 19, 2011 at 2:59 pm

Sione,

But don’t ideas have value and deserve compensation ?

Isn’t it ironic that the world we live in, with all it’s physical embodiments of ideas we call property, come from ideas which don’t have an embodiment and which are not considered property by libertarians and which cannot be of any value until they are actually fabricated and marketed into successful products or serivices.

At that point, the original idea did change the world for the better but nobody would be willing to pay for that idea, calling them a rent seeker fat ass etc.

Ideas are what’s the most valuable yet libertarians place no value on them whatsoever.

Sione July 19, 2011 at 4:39 pm

Linux

Actions.

Real property.

Think on it.

Sione

DensityDuck July 19, 2011 at 6:45 pm

“I can’t pick it up or touch it or smell it or taste it therefore IT DOESN’T EXIST. Also, when I put a blanket over my head, the entire world stops existing.”

Matthew Swaringen July 19, 2011 at 7:44 pm

Another dishonest and childish paraphrase.

Linux Is King July 19, 2011 at 7:50 pm

Okay then,

I will not share my ideas and development with you, I will give them to North Korea and they will have an advantage over you for quite some time and you can figure out how to out pace them all by yourself, I bet you can’t.

You don’t value my ideas ? I know that North Koreans will !

coturnix19 July 19, 2011 at 8:43 pm

Why do you hate north koreans? Do you really think they can make something out of great invention? Their inability to make good stuff if of different nature, having nothing to do with inventors.

RTB July 19, 2011 at 10:24 pm

It’s kinda sad that a website named after one of the greatest thinkers in the history of the world dismisses the mind so easily.

Perhaps this site should be renamed rothbard.org?

Kid Salami July 20, 2011 at 3:35 pm

Sorry to change the subject from our earlier exchanges, but i think you’re wrong – it should be …actually, i’ve had second thoughts about saying what it should be called.

I agree with everything Rothbard says here

http://mises.org/rothbard/mes/chap10e.asp

Apparently though, retard that he was, he – along with Mises – totally dropped the ball on this one. Lucky all those in the circle jerk on this page are here to put these idiots right.

Wildberry July 20, 2011 at 4:29 pm

Kid Salami:

This line for Rothbard seems to be particularly appropriate to PS…

“but we must never let reality be falsified in order to fit the nice­ties of mathematics. ”

I will remember that one…thanks for the reference.

sweatervest July 20, 2011 at 6:48 pm

So easily? Why do you assume it was a hasty conclusion that Mises was wrong about certain things? How do you know those here who believe that did not carefully think it out? I know I did.

You guys are hero worshippers. Just cause 99% of what Mises said was right doesn’t mean the other 1% was right. And just because this site is called mises.org doesn’t mean we have to consider his word the gospel truth.

Kid Salami July 21, 2011 at 3:40 am

Again with the hysteria sweatervest. When do you see me relying on authority around here? I’m not saying anyone was right or wrong or doing anything other than rely on my own arguments.

Regardless, Kinsella and friends call people names – totalitarian, socialist, etc. – for arguing for things that Rothbard, for example, clearly argues for himself in that link above. This is a simple fact. Does this not strike you as odd, that maybe there is something wrong here? Not that Rothbard must be right – let’s assume he’s not – but about the tone and quality of the debate?

Kid Salami July 21, 2011 at 3:59 am

And while I’ve got your attention sweatervest, would you like to chime in on the outcome of the easements/servitudes debate on the Stallman thread? It was established quite clearly that some notion of co-ownership (kinsella’s word) was required for the concept of easements/servitudes to be consistent with kinsella’s libertarian framework.

http://blog.mises.org/17345/stallman-an-internet-connectivity-tax-to-compensate-artists-and-authors/#comment-792210

Peter was less keen on this word, but was clear that you can homestead a “use” of an object or piece of land and retain this interest while someone else can then move in an homestead other uses that you have abandoned rights to.

Would you like to take this opportunity to make your position on the debate on this thread known, as at the time your hysteria got in the way of the bothersome task of reading what people were writing and so you didn’t really get it, maybe you can reread it now and let us all know.

Peter Surda July 21, 2011 at 5:10 am

Kid Salami,

maybe I wasn’t clear enough. It is not necessary that one can homestead “uses” of goods. You can also interpret the same situation as homesteading the whole good, and then making an implicit contract with others that want to use some aspects of it that you’re not interested in. Furthermore, you have neglected to answer my question why is dealing with subsets of property a problem, and, indeed, if the converse (inability to perform a partial sale) is a meaningful alternative. Also you have not been successful in explaining why this is relevant for the debate, since IP clearly is not about subsets of property, but about extending rights of some while sacrificing rights of others.

Kid Salami July 21, 2011 at 5:28 am

“maybe I wasn’t clear enough. It is not necessary that one can homestead “uses” of goods. You can also interpret the same situation as homesteading the whole good, and then making an implicit contract with others that want to use some aspects of it that you’re not interested in.”

If we wanted to abandon the word “use” then ok, but that’s basically what I thought I said and it is I think consistent with Kinsella’s use of the word “use” in this context that i’ve quoted many times. But ok I will use these words from now on to quote your position.

“Furthermore, you have neglected to answer my question why is dealing with subsets of property a problem, and, indeed, if the converse (inability to perform a partial sale) is a meaningful alternative.”

I answered already, I don’t have a problem with it per se, it depends on the framework it is in. The question is whether this “homesteading uses of things” argument is consistent with the kinsella homesteading/NAP framework.

“Also you have not been successful in explaining why this is relevant for the debate, since IP clearly is not about subsets of property, but about extending rights of some while sacrificing rights of others.”

It is you and sweatervest and kinsella who can’t stop yourselves complicating thigns by injecting IP directly into practically every single exchange. Unless and until we can agree on the situation for tangible property, there is no point in adding IP to the mix. I think that this idea of “homesteading uses” has a serious problem, but I want to make sure I understand it first.

Peter Surda July 21, 2011 at 6:08 am

Kid Salami,

The question is whether this “homesteading uses of things” argument is consistent with the kinsella homesteading/NAP framework.

I thought I demonstrated that “homesteading uses of things” is not a necessary component of the framework.

I asked you some questions previously using the socratic method to clarify what is the exact nature of your objection, however you left them unanswered.

Kid Salami July 21, 2011 at 6:34 am

“I thought I demonstrated that “homesteading uses of things” is not a necessary component of the framework.”

Just now do you mean? Kinsella used that word. You phrased it differently – I said ok, but said I consider them basically the same. If you’re objecting to me using shorthand in quotes “homesteading uses of things” to summarise the position of both you and Kinsella that I just said I consider basically the same, then ok very sorry. This hardly seems bothering about though really, my post was perfectly clear.

“I asked you some questions previously using the socratic method to clarify what is the exact nature of your objection, however you left them unanswered.”

You mean these? I didn’t answer them because I find they are just begging the question and/or I’ve already answered them.

“if you homestead something, can you sell parts of it to different people?”

Can I chop an apple into four quaters and sell them to 4 different people? Yes of course.

“Can you still do that by separating the parts by the time aspect rather than space (i.e. selling different timeslots)?”

You mean, can I “sell” a car parking space to someone else, where I own it at night and they at day? This just depends what you mean by “sell” – this is just the same question of “what is co-ownership” in different clothes. I repeat I have no problem per se with co-ownership.

“Can you still do that by separating the parts by an arbitrary abstract description (i.e. “uses”)? ”

Can I for example retain possession of a property but sell the mineral rights? YEs, I have no problem with this. I don’t know why you think I do. If you’re telling me that you have no problem with it either then great, we agree.

sweatervest July 21, 2011 at 11:40 am

“Again with the hysteria sweatervest. When do you see me relying on authority around here? I’m not saying anyone was right or wrong or doing anything other than rely on my own arguments.”

When you say “retard as he was” you are obviously making a joke that we dare claim Rothbard was wrong about something. You were making an argument from authority. Please explain what the argument actually was if it was not one from authority. Also that was directed mostly towards Wildberry.

“Regardless, Kinsella and friends call people names – totalitarian, socialist, etc.”

Everyone calls people names. Gee, I’m pretty sure you just called us a “circle jerk”. At least we’re not hypocrites. We don’t call people names and then turn around and complain that people call us names. How many times have I been called a socialist or an ego-maniac here? Don’t act so innocent Salami. Every one of your posts is permeated with a smug, “these guys are so stupid” attitude.

“for arguing for things that Rothbard, for example, clearly argues for himself in that link above. This is a simple fact.”

It is a fact you are twisting and turning into something completely different. As I have said, people call us names. You have no grounds to complain about name-calling when you refer to us as a “circle-jerk”.

“Does this not strike you as odd, that maybe there is something wrong here? Not that Rothbard must be right – let’s assume he’s not – but about the tone and quality of the debate?”

Yes. There is something wrong with calling your adversaries socialists because you don’t grasp their arguments, calling me an ego-maniac because I think there exists an identifiable reality that can be understood, calling libertarianism “bullshit” a dozen times in the same thread, etc. Do you seriously think all of that comes from the anti-IP side and the other side is just the hapless victim of uncalled-for rudeness?

No, after you just got done calling us a “circle-jerk” I can say that it is quite a hypocrisy to complain about name-calling.

sweatervest July 21, 2011 at 11:49 am

“And while I’ve got your attention sweatervest, would you like to chime in on the outcome of the easements/servitudes debate on the Stallman thread? It was established quite clearly that some notion of co-ownership (kinsella’s word) was required for the concept of easements/servitudes to be consistent with kinsella’s libertarian framework.”

No it wasn’t. As I explained several times, easements play no role in stopping uninvolved third parties. If someone fraudulently sells land with an easement that forbids building a factory on that land, then not only does the recipient not have the right to build a factory, he also does not have the right to do *anything* on that land. If the easement is only about building a factory, and he also can’t farm on this land (because he never bought it at all) then explain how the easement stops him from farming.

It DOESN’T. Nor does it stop him from building a factory. Regardless of what contracts exist concerning a piece of property, if you have no claim to it then you can’t use it for *anything*, and that has nothing to do with what contracts exist concerning that property.

There was no establishment of co-ownership. The problem has no bearing on intellectual property. It is only an example of enforcing property rights. I have explained several times how easements have nothing to do with forbidding an uninvolved third party from using the land.

“Peter was less keen on this word, but was clear that you can homestead a “use” of an object or piece of land and retain this interest while someone else can then move in an homestead other uses that you have abandoned rights to.”

Homesteading a use makes no sense. Homesteading means turning a resource into a good that has the mark of purposeful action on it. It is metaphorical stretching to speak of homestead of a use. Either a physical good has been permanently changed by use, making it homesteaded by that user, or it is not permanently changed by that use, meaning it returns to a state of being unowned after being used. Homesteading a use doesn’t mean anything. There is no way to leave a mark of action of the use of something.

“Would you like to take this opportunity to make your position on the debate on this thread known”

My position is already known. Peter knows what it is. I don’t think you are interested in comprehending me.

“as at the time your hysteria got in the way of the bothersome task of reading what people were writing and so you didn’t really get it”

And this is why I think that. I’m sorry I’m too “hysterical” for you, but I felt like I grasped that thread perfectly fine and made the points the needed to be made. You have a bad history of twisting my posts to the point they mean something completely different. I’m not surprised you are continuing to do that. You keep accusing me of purposefully misunderstanding you as if you are immune from doing that yourself.

“maybe you can reread it now and let us all know.”

My position is already known because I already stated it in that thread. I am still confused as to how you think that easements establish that contracts bind uninvolved third parties. My position, as I stated it, is that contracts never bind third parties in any case and easements are no exception to that. I explained multiple times in detail why easements play no role in the exlcusion of third parties from any use of property.

Kid Salami July 21, 2011 at 12:51 pm

sweatervest

“Regardless, Kinsella and friends call people names – totalitarian, socialist, etc.”

“for arguing for things that Rothbard, for example, clearly argues for himself in that link above. This is a simple fact.”

“Does this not strike you as odd, that maybe there is something wrong here? Not that Rothbard must be right – let’s assume he’s not – but about the tone and quality of the debate?”

All of this was in a single paragraph for a reason. It was one single coherent point. I did not complain about name-calling in and of itself, I simply stated a fact – that people are called socialist and totalitarian for arguing what Rothbard argued. If you’d just read what i said and digested it, you might have seen this. I have no problem with name calling – and to prove it, I could call you one now. But I won’t. You can insult or call me names though, i don’t care.

Ah, you already did. “Every one of your posts is permeated with a smug, “these guys are so stupid” attitude.” That is true, they are when directed at you.

Anyway, hopefully you’re giong to say something productive now.

“There is something wrong with calling your adversaries socialists because you don’t grasp their arguments, calling me an ego-maniac because I think there exists an identifiable reality that can be understood, calling libertarianism “bullshit” a dozen times in the same thread, etc. Do you seriously think all of that comes from the anti-IP side and the other side is just the hapless victim of uncalled-for rudeness? No, after you just got done calling us a “circle-jerk” I can say that it is quite a hypocrisy to complain about name-calling.”

No, no sign of any understanding or actual answer of my point there, just a sight of the phrase “name calling” and then an emotional reaction to my recounting of a series of facts about this discourse, none of which you appear to dispute at all.

sweatervest July 21, 2011 at 11:49 am

“No it wasn’t. As I explained several times,…”

What a surprise, you go into “transmit” mode immediately. You are STILL, after posts and posts, missing the point. Did you see I provided a link? I asked Peter a very clear question and he answered, and i asked you if you’d do so.

http://blog.mises.org/17345/stallman-an-internet-connectivity-tax-to-compensate-artists-and-authors/#comment-791970

You might try going to the link and answering the question like Peter did – this will suffice.

“There was no establishment of co-ownership. The problem has no bearing on intellectual property. It is only an example of enforcing property rights. I have explained several times how easements have nothing to do with forbidding an uninvolved third party from using the land.”

You are still missing the core of the whole discussion that took place.

“Homesteading a use makes no sense. Homesteading means turning a resource into a good that has the mark of purposeful action on it. ”

You are not following this discussion at all. Then you disagree with kinsella who here said

http://blog.mises.org/10433/why-airwaves-electromagnetic-spectra-are-arguably-property/

“Say people routinely walk over a path from point A (their village) to point B (watering hole). You can say they have homesteaded at least that use of the propety.”

I am questioning the consequences of this idea of “homesteading uses of things” – if you disagree with him, then ok.

“It is metaphorical stretching to speak of homestead of a use. Either a physical good has been permanently changed by use, making it homesteaded by that user, or it is not permanently changed by that use, meaning it returns to a state of being unowned after being used. Homesteading a use doesn’t mean anything. There is no way to leave a mark of action of the use of something.”

This is more like the meaning that homestead has had in the past – it seems to have changed now though to something else, and i think this is a fudge. On this we seem to agree.

“I am still confused as to how you think that easements establish that contracts bind uninvolved third parties. My position, as I stated it, is that contracts never bind third parties in any case and easements are no exception to that. I explained multiple times in detail why easements play no role in the exlcusion of third parties from any use of property.”

I didn’t say “contracts bind uninvolved third parties”, you are missing the point. Take a deep breath – EASEMENTS ARE NOT CONTRACTS. Can you read? There is a difference which you have not grasped and which my scenario illustrates – please read the link and answer if you want to understand, or just don’t read it and rant back at me if you do.

Peter Surda July 21, 2011 at 4:15 pm

Kid Salami,

I really have trouble understanding the nature of your objection.

I said that partial homesteading can be re-interpreted as full homesteading plus partial sale. You said the re-interpretation is fine. You presumably do not have a problem with full homesteading. You also said you do not have a problem with partial sale. So what exactly are you unhappy about?

Wildberry July 21, 2011 at 4:48 pm

@Peter Surda July 21, 2011 at 5:10 am

since IP clearly is not about subsets of property, but about extending rights of some while sacrificing rights of others.

This statement is loaded with assumptions I would love to see you unpack. Kid S. is correct to ask you to clarify your theory of property rights before engaging in a discussion of what is or is not happening in the case of IP. It appears you leave yourself open to “fudge” the property rights principles to fit the anti IP argument.

I restated the party line argument against IP here: http://blog.mises.org/17750/without-ip-would-there-be-a-world-of-clones/comment-page-1/#comment-794141 , and have given a synopsis of my argument directly underneath.

If you are capable of sticking with a single point and articulating your position, please do. Make it plain, so a 5th grader can understand it. I’ll stand on a chair and try to not let it go over my head.

sweatervest July 22, 2011 at 3:56 am

Kid, as usual you are quick to point out what you weren’t trying to say, and are strangely silent on what you were trying to say. I can only assume from this that you aren’t really saying anything and, as you youself put it, are “simply stating facts”.

“All of this was in a single paragraph for a reason. It was one single coherent point. I did not complain about name-calling in and of itself, I simply stated a fact”

So, what, then it’s irrelevant? If it’s just some fact you stated then why did you state it here?

“that people are called socialist and totalitarian for arguing what Rothbard argued. If you’d just read what i said and digested it, you might have seen this.”

I did see this. What you fail to digest from me is that the name-calling is a reaction to past name-calling. I am explaining why people are being called socialist or totalitarians, regardless of whether it is for arguing Rothbard or not. What makes you think I missed this point?

“I have no problem with name calling – and to prove it, I could call you one now. But I won’t. You can insult or call me names though, i don’t care.”

Yeah, I know have no problem with name calling. It’s also irrelevant. I explained why people are called socialists/totalitarians for arguing Rothbard. What else do you expect in a response?

“Ah, you already did. “Every one of your posts is permeated with a smug, “these guys are so stupid” attitude.” That is true, they are when directed at you.”

That was an insult? Seriously, what would you like me to say in response to your original complaint about the circle jerk? What do you imagine is an appropriate response?

“Anyway, hopefully you’re giong to say something productive now.”

Yes, hopefully we can stop talking about stupid stuff like “Apparently though…to put these idiots right”. I was responding to your complaint about how we disagree with Mises and Rothbard.

“No, no sign of any understanding or actual answer of my point there, just a sight of the phrase “name calling” and then an emotional reaction to my recounting of a series of facts about this discourse, none of which you appear to dispute at all.”

What emotional reaction? It’s not an emotional reaction to conjour up several examples supporting why complaint is a hypocrisy. And if I so completely don’t get what you are saying, then please try to explain again. Tell me what you are trying to say with your rant that the circle jerk thinks Mises and Rothbard are “retards” and “idiots”. What is the point of the hyperbole, where disagreeing with anything a person says means you consider that person a retard and an idiot? Please elaborate on what I am supposed to get out of this. What does this contribute to the argument?

Also, “Not that Rothbard must be right – let’s assume he’s not – but about the tone and quality of the debate?”

So, what, your problem is with the tone and quality of the debate? Which means it’s about the name-calling? I’m sorry, but yes I am having trouble understanding you. Is that your fault, my fault, both?

“What a surprise, you go into “transmit” mode immediately.”

Yes, what a surprise you drag up old threads, you add nothing new so I don’t add anything new either!

“You are STILL, after posts and posts, missing the point.”

Am I now? Cause you are so eager to say what the point is not, so quiet on what the point is. I am starting to doubt that there is a point at all. You always miss the point that’s not there.

“Did you see I provided a link? I asked Peter a very clear question and he answered, and i asked you if you’d do so.”

You asked me to provide my position on the debate. I did that. I didn’t read through that thread again because what you asked me to do involve that. You just asked me to make my position known, so I did that. That is my position.

“You might try going to the link and answering the question like Peter did – this will suffice.”

In short my response to that is that those “easements” are unjustifiable creations of a state and are not more justifiable than IP. The ultimate effect of such easements is that A cannot actually sell his property unconditionally to C. He is forbidden from selling the absolute rights to the land he supposedly absolulely owns. This is a trespass on his property right.

“You are still missing the core of the whole discussion that took place.”

Which would be…

“Homesteading a use makes no sense. Homesteading means turning a resource into a good that has the mark of purposeful action on it. ”

“You are not following this discussion at all.”

Really? You know it’s very easy to say things like that.

“Then you disagree with kinsella who here said I am questioning the consequences of this idea of “homesteading uses of things” – if you disagree with him, then ok.”

I question them as well and disagree with him.

“I am still confused as to how you think that easements establish that contracts bind uninvolved third parties. My position, as I stated it, is that contracts never bind third parties in any case and easements are no exception to that. I explained multiple times in detail why easements play no role in the exlcusion of third parties from any use of property.”

“I didn’t say “contracts bind uninvolved third parties”, you are missing the point. Take a deep breath – EASEMENTS ARE NOT CONTRACTS.”

You never said that earlier. If you are talking about state-created easements then what could you prove from such a discussion? You would be using a state injustice to justify another state injustice.

“Can you read?”

Only what has been written. Perhaps I was too implicit in my dealing with easements only as contracts but I think you were implicit in your dealing with easements as state creations and I think I gave you the benefit of the doubt that you weren’t talking about state-created easements because what would the existence of such things tell us about the justifiability of anything?

“There is a difference which you have not grasped and which my scenario illustrates – please read the link and answer if you want to understand, or just don’t read it and rant back at me if you do.”

What makes my responses “rants”? Their length? Their content? What?

The state-created easement involved in that link trespasses on A by forbidding him to do something that is otherwise contained is his ownership of his property. What about the case that A bought the property with the easement already in place? The question always comes back to how did the easement get established. Specifically, who got to establish the easement and who has the authority to dispel it? If the answer is always that an agreement between the owner and the person crossing the land is the only thing that can establish or dispel an easement then an easement is just a type of contract. The contract can forbid A from selling his land without first getting the new owner to sign into the easement contract, but this is a contract A chooses to enter. But what if the contract does not have such a restriction, and an agreement is made to establish an easement that will be voided if A sells the land? This is allowable by property rights, and any case where easements automatically carry over, that is whenever they cannot be conceived of as a contract, is a trespass on property rights by whatever body enforces the easement.

Kid Salami July 22, 2011 at 7:22 am

An answer.

“The state-created easement involved in that link trespasses on A by forbidding him to do something that is otherwise contained is his ownership of his property. What about the case that A bought the property with the easement already in place? The question always comes back to how did the easement get established. Specifically, who got to establish the easement and who has the authority to dispel it? If the answer is always that an agreement between the owner and the person crossing the land is the only thing that can establish or dispel an easement then an easement is just a type of contract. The contract can forbid A from selling his land without first getting the new owner to sign into the easement contract, but this is a contract A chooses to enter. But what if the contract does not have such a restriction, and an agreement is made to establish an easement that will be voided if A sells the land? This is allowable by property rights, and any case where easements automatically carry over, that is whenever they cannot be conceived of as a contract, is a trespass on property rights by whatever body enforces the easement.”

In that question to Peter, I asked the same question 3 times, and in fact quite clearly stated:

I’m only trying to establish one thing and one thing only. The question was:

“do you agree that in the first case B (if he wants to pass over the land) has a breach action against A, whereas that in the second case A and his whereabouts are irrelevant and B can “force” C to allow him to pass?”

An answer of yes, no or I can’t decide until you tell me XYZ would have sufficed.

Instead, you go into transmit mode and tell me a big load of things i’ve heard already a hundred times and which my question was specifically designed to cut through. There is no point to this discussion i’m afraid while you miss the core of the issue.

Kid Salami July 22, 2011 at 7:34 am

Actually sweatervest, i will allow for the fact that maybe I’m wrong and that you did answer and your answer was that the easement is “state created” and so therefore is not worth unpacking. This would be an answer and would mean then you agree with the comment with which i opened this entire discussion, where I asked someone to square the anti-IP/ancap position with easements.

ie. you say that easements are not compatible with ancap. Is this what you think?

sweatervest July 22, 2011 at 3:20 pm

“Actually sweatervest, i will allow for the fact that maybe I’m wrong and that you did answer and your answer was that the easement is “state created” and so therefore is not worth unpacking”

Good. I think you are too hasty to dismiss my arguments as irrelevant.

“An answer of yes, no or I can’t decide until you tell me XYZ would have sufficed.”

My answer to that is, yes, that is the way it works. It is correct that a state-enforced easement would allow B to force C to allow passage, regardless of what A is doing. But that does not help us to determine whether or not such an easement is justifiable or not. Sure, that is how it works. And IP laws exist and are enforced. The question is *should* they exist and be enforced?

My answer to *that* is, well I don’t know. I am leaning towards no based on the premise that one can be punished for breaching a contract but one is still allowed to breach the contract (thus A is always allowed to end the easement, pay restitution to B for doing so, and sell the land to C, he is not forbidden from breaching the contract even though he would be punished for doing so). But that is a questionable premise and as I will explain in a bit it won’t shed light on the IP problem.

“ie. you say that easements are not compatible with ancap. Is this what you think?”

It depends on whether or not that easement can be established by contract alone. It may even be that contracts can establish a situation where B can force C to allow passage. That is my operating principle: that if these things are not contracts they are unjustifiable. But to bring this back to the relevant topic, this is very different than the case of intellectual property.

With easements there is only the question of rights involving one piece of property: the land with the right of passage. When third parties get involved there are only questions concerning how this one piece of land can be justifiably used. But with copyrights the question becomes about all property that becomes unauthorized copies of the original copy. If A sells a copy to B under contract forbidding copying, and B copies and created an unauthorized copy, which he gives to C who makes his own unauthorized copy, then the question is no longer just about what can be done with the original copy. I think everyone agrees that A can take his original copy back from B and seek damages. But what can be done with the unauthorized copies? Does A have the right to destroy or confiscate B’s unauthorized copy? What about C’s unauthorized copy? This is very different from the easement problem because in that case there is only the question of what can be done with that one piece of land. It never becomes a question about all potential pieces of land, while the copyright problem *does* become a question about all potential copies.

This is problem is, I think, the same as the problem of what happens if I steal your wrench and use it on my car to replace a part in my car. You find out and I have to return your wrench and pay you for the damages caused. But are you allowed to undo the replacement I made in my car? Certainly not. The car does not become your property because I used your property unjustifiably on it to modify the car. The modification could only be done because I trespassed on you and used your wrench unjustifiably, but it was modification of my property and it remains as such.

This is no different than making an unauthorized copy, which is using a piece of property unjustifiably to modify one’s own property. The modified property remains yours, and the fact that it was modified using the original author’s property does not give the original author a claim of ownership to it.

The easement problem is about whether or not third parties can make use of a particular piece of property that is already partially claimed by two other parties. The IP problem is about whether or not third parties can transform their own property using a piece of property that was transformed through an unjustified use of a particular piece of property.

That is why they are different and why easements may be justifiable (what I think you mean by “compatible with ancap”, keeping in mind that property violations happen in any society) but IP is definitely not.

Wildberry July 22, 2011 at 6:02 pm

@sweatervest July 22, 2011 at 3:20 pm

This is problem is, I think, the same as the problem of what happens if I steal your wrench and use it on my car to replace a part in my car.

Is it? I think this analogy breaks down if you remain consistent with your definition of the “novel” we discussed earlier. Your analogy is; “CAR” is to “COPY” as “NOVEL” is to “WRENCH”

You use the WRENCH to modify the CAR, but return the WRENCH unchanged, keeping the car. There is still only one wrench and one car; two separate material objects from two different sources of origin.

You use the NOVEL to modify the COPY, and then return the NOVEL unchanged, keeping the COPY. There is now one novel and one copy; two separate material objects from one source of origin.
The wrench and the car are different economic goods with different utilities.
The novel and the copy are the same economic good with the same utility.

Because the meaning of MODIFY is NOT equivalent, the analogy IS invalid.

To make the analogy valid, you would have to say that you used car A to make a copy, car B, and then returned car A. This is the anti IP argument; owner of car A still has his car. You draw this conclusion below.

The question remains, how do you get Car A and how do you make a copy B? Even if you have A legally, it is impossible to copy because Car A is not the means of producing Car B. You need a car factory for that.

Yet NOVEL is the means of making COPY. Because the analogy is not comparing material similarities, it is invalid.

This is no different than making an unauthorized copy, which is using a piece of property unjustifiably to modify one’s own property. The modified property remains yours, and the fact that it was modified using the original author’s property does not give the original author a claim of ownership to it.

I think you can now see why this analogy doesn’t work. You are equivocating on the meaning of “modify” and comparing objects of a different nature.

That is why they are different and why easements may be justifiable (what I think you mean by “compatible with ancap”, keeping in mind that property violations happen in any society) but IP is definitely not.

To come to this conclusion, I think you need a different analogy.

Kid Salami July 22, 2011 at 6:48 pm

“It depends on whether or not that easement can be established by contract alone.”

To quote from the paper i referenced:

“The difference between a license and easement is this: a license is a right in contract only, while an easement is not only a right in contract but also an interest in real property.”

In my scenario, B would be aggressing C if the original agreement were not an easement but a contract – this is the one crucial difference that you have been missing.

“It may even be that contracts can establish a situation where B can force C to allow passage.”

Well, of course B and C CAN contract with each other – i’m talking about if they don’t, which is perfectly reasonable.

“But to bring this back to the relevant topic, this is very different than the case of intellectual property.”

Until and unless we agree on the rules for tangible property, there is no point in moving onto IP.

“That is my operating principle: that if these things are not contracts they are unjustifiable.”

In that case then, you regard B (or his representatives) using force against C to pass over the land as invalid and so that the current operation of easements is an act of aggression in ancap world?

Peter Surda July 25, 2011 at 9:23 am

Wildberry,

You use the WRENCH to modify the CAR, but return the WRENCH unchanged, keeping the car.

The act of using the wrench alters it, be it its integrity or location, even if you subsequently return it.

You use the NOVEL to modify the COPY, and then return the NOVEL unchanged, keeping the COPY.

The act of using the novel to modify the copy does not necessarily alter the original’s integrity or location.

The wrench and the car are different economic goods with different utilities. The novel and the copy are the same economic good with the same utility.

Utility is subjective, Wildberry, and only determinable after the act. Shouldn’t the boundaries of property rights be determinable before acting?

Even if you have A legally, it is impossible to copy because Car A is not the means of producing Car B. You need a car factory for that.

This is a quantitative difference rather than a qualitative one. In the future, replicators might become just as common as computers. Copying is just a combination of decoding, transmitting and encoding. At the moment, it works quite well for visuals, audio and some virtual data, because we found usable standards for the encoding and transmission of these. However, this changes with the level of technological progress. Then your “distinction” will evaporate. What will you do then? Alter the property rights again so that the horse buggy producers don’t go bankrupt?

Yet NOVEL is the means of making COPY.

The existence of the novel is a necessary condition for the creation of the copy, you admitted this yourself in the past. However, apart from this causal relationship, there is no other requirement for the creation of the copy with respect to the original. What you need is the material and a method of decoding, transmitting and encoding the contents of the novel. These are the means of production, rather than the original. So, which of those four (causality, decoding, transmission, encoding) are relevant from the point of view of property rights? Logically, at least some sort of combination needs to be, otherwise you cannot claim that the act of copying is covered by the property rights in the original, right?

You are equivocating on the meaning of “modify” and comparing objects of a different nature.

What is this “different nature” you talk about? Could it be that it’s the plug whose only purpose is to prevent the dam of incoherence bursting?

Peter Surda July 25, 2011 at 9:29 am

Wildberry,

This statement is loaded with assumptions I would love to see you unpack.

Are you denying that the only change in the delineation of property rights caused by IP is that some use of private property (the copy material) is made subject to restrictions imposed by the author? You many times alleged that there is some sort of “public property” in the absence of IP. Where is it, Wildberry?

Kid S. is correct to ask you to clarify your theory of property rights before engaging in a discussion of what is or is not happening in the case of IP.

What does “my theory of property rights” (if such a thing existed) have to do with logical errors you commit?

Make it plain, so a 5th grader can understand it.

Are you a 5th grader, Wildberry? Because that would explain a lot.

Wildberry July 25, 2011 at 10:34 am

@ Peter Surda July 25, 2011 at 9:23 am

The existence of the novel is a necessary condition for the creation of the copy, you admitted this yourself in the past.

I didn’t “admit it”, I asserted it. It is a simple fact of causality. It is a necessary condition.

However, apart from this causal relationship, there is no other requirement for the creation of the copy with respect to the original.

That is not enough?

What you need is the material and a method of decoding, transmitting and encoding the contents of the novel. These are the means of production, rather than the original. So, which of those four (causality, decoding, transmission, encoding) are relevant from the point of view of property rights? Logically, at least some sort of combination needs to be, otherwise you cannot claim that the act of copying is covered by the property rights in the original, right?

You need causality, otherwise it wouldn’t be copy. you need not decode it, or transmit it to make a copy. If you mean by “encoding” fixing the same pattern of words, punctuation, etc. then you need that.

The process of making a copy is a use of the original. That is what is controlled, because that is the object of the property rights. If you want to claim you don’t get that, then that makes you stupid or dishonest. Either way, I don’t really care anymore.

Peter Surda July 25, 2011 at 11:26 am

Wildberry,

I didn’t “admit it”, I asserted it. It is a simple fact of causality. It is a necessary condition.

However, is it a sufficient condition too? You have refused to answer that question so far.

That is not enough?

Here you appear to allege that it is a sufficient condition. Correct?

You need causality, otherwise it wouldn’t be copy.

We both appear to agree that causality is a necessary condition. What you however leave unanswered is whether this is a sufficient condition as well. Care to address that?

you need not decode it, or transmit it to make a copy

You do not? How else, pray tell, do you then make the copy? Cast a spell? Prod the original with a stick? Threaten the poor original with a gun until it sprouts out the copy?

The process of making a copy is a use of the original.

Are all uses of the original subject to property rights of the owner of the original then? You appear to disagree. How then do you distinguish between them?

That is what is controlled, because that is the object of the property rights.

Yet, you have not coherently explained either why this is relevant, nor how to actually distinguish between the acts that are covered by the property rights in the original and which are not. Don’t you think that it is kind of important to explain your position before trying to argue why such a position has merit?

If you want to claim you don’t get that, then that makes you stupid or dishonest.

Didn’t I, in fact, ask you already in the past if all uses of private property are covered by property rights, and did you not, in fact, left that question unanswered? Isn’t it you then who is dishonest?

Either way, I don’t really care anymore.

You do not care if you are able to argumentatively defend a position you maintain?

Wildberry July 25, 2011 at 12:19 pm

@Peter Surda July 25, 2011 at 11:26 am

However, is it a sufficient condition too? You have refused to answer that question so far.

The existence of the original is a necessary condition for the existence of a copy of the original. The existence of a copy of is sufficient to infer the existence of an original, because a copy of something cannot exist from any other causality than an original, otherwise it would not be a copy.

If you are trying to beg the question of independent creation, forget it. We can assume that the chance of creating an exact copy of a novel independent of an original are, from a probability standpoint, impossible. Even Rothbard acknowledges this point, yet you insist on contesting it? This is just another “butterfly wings in Brazil” argument. Get real.

You happy now? Can you answer this simple question, Perry Socrates? Does that answer meet your standards?

“you need not decode it, or transmit it to make a copy”

You do not? How else, pray tell, do you then make the copy? Cast a spell? Prod the original with a stick? Threaten the poor original with a gun until it sprouts out the copy?

Another completely idiotic set of questions. Do you have to read a book to make a Xerox copy? If you mean “read=encode” then no, it is not necessary. If you mean “the machine must interpret the boundaries between white and black in order to duplicate the pattern being copied”, then yes, encoding is necessary to make a Xerox copy. Can an illiterate person copy a passage without understand what he is copying? Yes. Can he do the same without eye/hand coordination? No. What is you point? Do you actually have one? Don’t answer, I don’t care.

“The process of making a copy is a use of the original.”

Are all uses of the original subject to property rights of the owner of the original then? You appear to disagree. How then do you distinguish between them?

No. You figure it out. I’ve given you all you need to understand. You either don’t want to, or are too stupid to try. Good bye. Don’t call me, I’ll call you.

Peter Surda July 26, 2011 at 3:33 am

Wildberry,

The existence of the original is a necessary condition for the existence of a copy of the original. The existence of a copy of is sufficient to infer the existence of an original, because a copy of something cannot exist from any other causality than an original, otherwise it would not be a copy.

Splendid, we seem to agree on something. Now, please explain to me why is either of this relevant?

If you are trying to beg the question of independent creation, forget it. We can assume that the chance of creating an exact copy of a novel independent of an original are, from a probability standpoint, impossible. Even Rothbard acknowledges this point, yet you insist on contesting it? This is just another “butterfly wings in Brazil” argument. Get real.

What sort of relation does this have to anything that I said? I never said that a copy is not causally related to the original. I have rather asked if causality is a sufficient condition for a claim that the copy is subject to authors’ property rights. Is it?

You happy now? Can you answer this simple question, Perry Socrates? Does that answer meet your standards?

So you did now not, in fact, completely avoid the question and attempt to distract me by making statements that are related by context, but not by the flow of the argument?

Are you not making the argument that the author has a claim on the copy because he produced the original? Well then, is this causal relationship a suffucient condition or not? If yes, then why do you selectively apply it only to copying but not to other types of causality? If not, then what is the necessary condition?

Do you have to read a book to make a Xerox copy?

Do you know what encoding and decoding means, Wildberry?

If you mean “read=encode” then no, it is not necessary.

Where did you get this from? Imagining things again are we? Did I in fact not ask you in the past if the use of a machine to create a copy is covered by different rights than doing it manually (which was, what you at that time seemed to imply)? Did you not in fact leave that question, like many others, unanswered?

f you mean “the machine must interpret the boundaries between white and black in order to duplicate the pattern being copied”, then yes, encoding is necessary to make a Xerox copy.

Ah, so you do seem to grasp the essence of my argument. I find it regrettable that you, however, avoid to address it.

Can an illiterate person copy a passage without understand what he is copying? Yes. Can he do the same without eye/hand coordination? No. What is you point? Do you actually have one? Don’t answer, I don’t care.

You said that you do not need decoding or transmission to create a copy. Now you show two examples which do require both: the xerox machine requires the the ability to distinguish darkness from brightness, and light as transmission medium. The scribbler requires the ability to interpret the curves the characters consist of (albeit not necessarily understand them) and he needs the brain to repeat the shape of the curves on a new paper. My point is the same as always: you contradict yourself. But that is no surprise.

Are you not bothered by contradicting yourself, Wildberry? Doesn’t it sound like something you should address before making more complex statements?

No. You figure it out. I’ve given you all you need to understand. You either don’t want to, or are too stupid to try. Good bye. Don’t call me, I’ll call you.

My my my, cognitive dissonance kicking in again? If you’ve given me all I need to understand, where are the answers then? Do you disagree that if you have trouble understanding your opponent, asking questions is the best way to clarify it? Where is the clarification?

sweatervest July 20, 2011 at 5:09 pm

“But don’t ideas have value and deserve compensation”

This is not and has never been about what anybody “deserves”. I’m sure we all have our opinions on what people deserve. That is beside the point. Does a person born into poverty deserve that? If not, what do you suggest? Taxing the rich to give to the poor? That is where concerns about what people “deserve” will get you.

Furthermore, as I have explained more times than I can count, property rights cannot be defined by values because, as anyone claiming to be an Austrian should have at the heart of every one of his analyses, value is subjective! If value was involved in defining property rights then property rights become a matter of opinion, it becomes a matter of opinion whether or not something is a violation of property rights are not, and that is equivalent to no property rights existing at all because people are simply doing whatever they want.

If your neighbor messes up his yard and drags down the value of your property in the process he has not violated your property rights. There are no property rights in the values of things.

Besides, ideas do *not* have value. That is a metaphorical stretch of the concept of value. Does love have “value”? No, it cannot. Not having value does not mean it is useless in the colloquial sense. Value is a concept of economics, particularly one concerning action which involves the employment of scarce means. An object used in an action has value derived from the value of the end attained by that action. Ideas guide one’s use of a scarce means, and hence having ideas is necessary to those means having value, but that does not mean the ideas themselves have value. An idea by itself really is useless. Only when an idea is a guide to an available scarce means does it become useful at all.

Wildberry tries to see a distinction between these ideas and the ideas that fill up pages in a book. Sure, the ideas in the book are not guides to the use of that book, but they were a guide to the production of the book. The ideas that make up a storyline are the guide to the action of writing out the book to be read by others. The thing that has value is the physical book, whose possession and use can produce the enjoyment of the reading experience. The physical book is only as valuable as it is because of what is written in it, but that doesn’t change the fact that the physical book is what has value, not the pattern of words on it. If the pattern of words were not attached to some physical medium they could not be read and enjoyed and would be useless. It is only scarce physical goods that have value, as only they are the means to action. The action of reading a book employs the book as a means to the end, not the intangible pattern of words. The book is a means to the end of an enjoyable reading experience only because it has the pattern, but that does not change the fact that it is the book, not the pattern, that is the means used in action and therefore the thing that has value. It is the physical fixation of the pattern that permits the enjoyment of that pattern and what has value.

“Isn’t it ironic that the world we live in, with all it’s physical embodiments of ideas we call property, come from ideas”

How does the world come from ideas? The world is understood by ideas, not created by them.

“which cannot be of any value until they are actually fabricated and marketed into successful products or serivices”

Ironic as it may be, that’s how it works. Recognizing the irony of the situation (I fail to see any) does not mean it is not the way it works and the only way it could ever work. Ideas are not useless but they don’t have value. Value is a concept of economics that comes from praxeological insights involving ends, means and scarcity. Breathable air has no value. That does not mean it is useless (but it does mean it is never the subject of a decision. Decisions always and only concern the employment of scarce means).

“At that point, the original idea did change the world for the better but nobody would be willing to pay for that idea”

WHY!? Where did people get this notion that if you don’t have to pay for the copy of an idea that already exists, you would never ever pay for the production of the next idea?

DensityDuck July 19, 2011 at 6:47 pm

Are you honestly saying that everyone who produces anything is a rent-seeking thief who deserves nothing but contempt?

How are you even allowed to *post* here with an attitude like that?

Andras July 19, 2011 at 10:31 am

@Hexman,
Don’t worry, you are the real marginal inventor. Since this article is about you your word counts more than any “fringe theories” about how someone somehow will jump in and save innovation.

Oklahoma Libertarian July 19, 2011 at 10:56 pm

“Since this article is about you your word counts more than any ‘fringe theories’”

No it doesn’t. Economics is economics.

Hexman July 19, 2011 at 1:52 pm

Andras,
Thanks for the kind words. Innovations happen when there is a perceived need by the inventor, or when the inventor see the need for a product or service before the market place does.

One thing I must do is thank publicly the writers and professors of mises.org for truly inspiring the next generation of young folks, like my 22 year old, to have a greater understand of economics. I only wish my professors had had a better understand of economics and given us the alternative view points of Austrian economics while I was in college and Grad School.

What is also truly funny, I only read what Jeffery Tucker wrote and did not watched the YouTube of Conan O’Brien. Maybe I should now? But knowing the anti IP sentiment of mises.org followers, I knew what type of hornets nest I was stirring up and assumed many of the following comments that I would receive from a theoretical world view.

So get out into the Real World and go create some new Wealth and Capital with your God Given intelligence and Gifts! God knows we need more of you out there taking that risk.

Dagnytg July 19, 2011 at 2:23 pm

I think many IP proponents take a very singular outlook as if business ideas, products or services are somehow insular and unique but they’re not. They’re derived from previous ideas. In essence, what right does anyone have to claim a patent in the first place?

Linux Is King July 19, 2011 at 3:05 pm

Then what right do you have to claim that this is your original post ?

What right does Jeffrey Tucker have to claim that his post is original ? Instead of writing “by Jeffrey Tucker”, to be fully honest he would have to write “by all those before me”.

Complete nonesense. Originality exists. You guys are just twisting words and are full of bullshit.

Matthew Swaringen July 19, 2011 at 3:39 pm

He doesn’t claim it’s his post. He only claims that he wrote it. The former is a matter of property, the latter only a recognition of history.

I don’t think Dagnytg is saying there is no such thing as originality, but that originality is only possible due to the ability to derive and copy from that which already is. Without that which is, those who make new things would have less to be original about.

This may seem counter-intuitive due to the normal assumption that human beings can create an infinite number of random and different ideas without exposure to others. But this is empirically a crazy notion. You’d have to be an utter fool who was blind the the advancement that has occurred within the last centuries to believe such a thing.

The urbanization of people, the printing press lead to vastly improved abilities to share information made only better by modern information technology, etc. Sharing information is the essence of what allows us to create new and better ideas, and this doesn’t just apply to technology but to art and literature/etc.

Wildberry July 19, 2011 at 5:01 pm

The printing press did do what you said, and it was also the basis for the monopoly on printing that was disrupted permanently by the Queen Ann Act that Kinsella likes to remind us of when he says that the origin of copyrights was censorship.

Fortunately for we decendants of such times, history has a habit of correcting wrongs, and now copyrights are in the service of individual property rights, not the propety rights of State granted guild privileges. That is an improvement.

sweatervest July 20, 2011 at 6:50 pm

No they don’t. There are no property rights being protected by IP. Only property rights being violated. You have never presented a theory of property that says differently.

Linux Is King July 19, 2011 at 7:55 pm

“He doesn’t claim it’s his post. He only claims that he wrote it.”

Wow, what a total load of bullshit. Playing rhetoric games. I suggest you guys take the word “originality” off your dictionary. You guys make me sick that you would refuse people the right to claim to be an inventor, an author, a creator.

Heck, everything is made of matter so nobody is an inventor.
This is full of bullshit. Libertarianism sucks !

You guys frown uppon innovation, inventors, thinkers, pioneers. You give libertarianism a bad name. You are against recognition.

Even Jeffrey Tucker has linked an article about Giligan’s Island which frowns uppon authority coming from knowledge. And that the hero is the idiotic buffoon.

I cannot agree with this contempt of intellectuals.

sweatervest July 20, 2011 at 6:53 pm

Oh, contempt of intellectuals cries the guy who makes responses like “what a total load of bullshit” and “you guys make me sick” and “this is full of bullshit. Libertarianism sucks”.

Yes, please school us in what being an intellectual is Mr. “shit” “sick” “sucks”.

There is nothing more to be said about this. You are obviously doing nothing more than expressing your value judgment that libertarians make you sick. You’re not arguing, just stamping your feet. Good luck with that.

RTB July 19, 2011 at 10:31 pm

“He doesn’t claim it’s his post. He only claims that he wrote it.”

Oh my God, what does that even mean? If he wrote it and attached his name to it isn’t it his post? WTF?!?!

“I think many IP proponents take a very singular outlook as if business ideas, products or services are somehow insular and unique but they’re not. ”

I guess we’re all mindless and unoriginal.

Dagnytg July 20, 2011 at 3:25 pm

RTB,

People are not mindless or unoriginal, but what some wish to claim as original is really a synthesis, remix, or new arrangement of existing ideas.

There is no way to get around this because we have senses (sight, touch, smell, etc.) and memory.

I understand the denial of this observation from a psychological, ego driven standpoint but it remains to be true. It’s a given. It’s absolute. In fact, if it were not true… we would still be living in caves and wouldn’t be having this discussion. We might even be extinct as a species.

Therefore, in very crude terms, our success as a species requires that we steal other people’s ideas and modify them. In most cases, we don’t steal them outright our memory does and is revealed to us consciously and subconsciously.

Note:
In reference to Matthew’s use of the words post and quote in his comment:

He clearly defines his use of these terms in the third sentence. Where I came from, we call that a context clue. Therefore, it is easy to attain an inference (conclusion) as to the meaning of his first paragraph.

We must be careful when we focus solely on semantics instead of inference.

Dagnytg July 19, 2011 at 4:14 pm

First, neither I nor Mr. Tucker is claiming copyright. The only thing original about my post is the use and arrangement of words but the ideas are not original. My comment is a restatement of a core anti-IP premise.

I see nothing wrong with people getting credit in name for their effort or eloquence in this case but to sue for damages claiming an idea is completely original is ridiculous.

Regardless, if we take IP to its logical conclusion you end up in a world where people have to ask permission and pay fees (many times over) to develop any thought or idea. I don’t see how that’s a very free world. Do you?

Note:
I find it peculiar that someone with the name Linux is King to be so pro IP. Isn’t Linux open source?

Linux Is King July 19, 2011 at 7:56 pm

So shut up then if you have nothing original to say ! LOL :-D

Dagnytg July 20, 2011 at 5:12 pm

You probably have a point… (Though I assume your comment was made in jest.)

…but I believe I have a responsibility to deconstruct and synthesize the ideas of others so as to inspire people, like yourself, to think deeper with hope that through contemplation and introspection will reveal a different understanding than you currently have.

On the topic of IP, you may find it interesting that most of us were once IP proponents including, I believe, Jeffrey Tucker .

sweatervest July 20, 2011 at 6:54 pm

You didn’t conceive of IP, nothing you said here has not been said a thousand times before, so take a page out of Linux Is King’s book (oh whoops do I have your permission to do this?), please shut up.

sweatervest July 20, 2011 at 5:20 pm

“What right does Jeffrey Tucker have to claim that his post is original ? Instead of writing “by Jeffrey Tucker”, to be fully honest he would have to write “by all those before me”.”

No, the “by” means “written out by”. It doesn’t suggest that the article is “original” or that any of the ideas are new. It just means the person who sat behind the typewriter and put together the words was Jeffrey Tucker. He was as honest as he could have been. You are just misinterpreting “by”.

“Complete nonesense. Originality exists. You guys are just twisting words and are full of bullshit”

Stamp your feet all you want, that’s not an argument. Is a piece of music original if it differs from a previous piece only by one note? What if it differs by a whole melodic line? What if the melody is the same but the chords are different? Are sampling D.J.s who cut up and splice together little pieces of other recordings making original music or not?

There’s nothing wrong with speaking of “originality” as a value judgment on whether you think a piece of art stands out enough, but using it as a basis for legal procedures is disastrous.

Besides, are you seriously denying what Dagnytg said? Are inventions not innovations of a previous invention? What else could they be?

Linux Is King July 19, 2011 at 7:57 pm

This debate is getting so ridiculous it’s hilarious, LOL :-D

Debating about arrangement of words and building upon previous notions. As if new ideas cannot exist, as if modifications were not in themselves original and did not deserve recognition.

As if everything is a cog in the process of creativity.

It looks like it’s libertarians who want to seek rent and obtain other people’s intellectual efforts for free.

Ideas that change the world and bring prosperity are worth a fortune. The problem is you cannot pay upfront for an idea without first knowing it and trying it with success. But then you no longer can claim ownership of the idea once it has been communicated and tried with success.

That’s why we have the patent system.

coturnix19 July 19, 2011 at 8:25 pm

This debate is getting so ridiculous it’s hilarious, LOL

Because of nice trolling on your part ;-) You sound like a 15 y.o. schoolgirl. No offense, it is just an observation. Things like that are pretty noticeable, I wonder if anybody told you this before. Either way, whether i am wrong i right about that, less emotions would make less of an impression.

RTB July 19, 2011 at 10:37 pm

Just curious, why is disagreeing with the prevailing viewpoint on this website considered trolling?

I merely questioned one particular argument (see above) and was degraded and referred to as asinine.

What gives?

coturnix19 July 19, 2011 at 10:53 pm

It is not _what_ he thinks/writes, but _how_ he puts it. You may consider this a kind of paranoia on my part.

nate-m July 19, 2011 at 10:59 pm

I don’t know for a fact why he was called a troll.

The guess that I am willing to hazard is that “Linux is King” appears to have not done even a minimal amount of analysis into what the arguments are. It is tough to have a thoughtful discussion with somebody who does not want to put any thought into it.

The two obvious possible reasons for this is:
1. The guy is intentionally clueless and doesn’t want to do anything other then regurgitate dangerously naive and uninformed platitudes that have been repeated ad nauseum.
2. He is trolling and is acting like this on purpose and is trying to attract the ire of other readers.

Calling him a troll is almost giving him a benefit of the doubt.

J. Murray July 20, 2011 at 5:51 am

The repeated use of this phrase comes to mind:

“This is full of bullshit. Libertarianism sucks !”

Best to ignore this one.

DensityDuck July 20, 2011 at 3:49 pm

“Why is disagreeing with the prevailing viewpoint on this website considered trolling?”

Because the people who post on this site think that the Internet didn’t exist before they started reading it. And they heard the word “troll” used to describe an argumentative, disagreeable post, so they decided that “troll” means “argumentative poster with whom I disagree”.

sweatervest July 20, 2011 at 5:44 pm

No, trolling is telling people what their inner thoughts are right in front of them. I “think that the internet didn’t exist before [I] started reading it”? Keep telling yourself that. And keep telling yourself what my definition of troll is.

sweatervest July 20, 2011 at 5:42 pm

The line “This debate is getting so ridiculous it’s hilarious, LOL” is trolling. Perhaps you can shed light on what such a statement is meant to achieve other than to rile up other forum posters?

“I merely questioned one particular argument (see above) and was degraded and referred to as asinine.”

Did you present an asinine argument? So what, fair argumentation means when people think you present a bad, faulty argument they shouldn’t share that? I looked above and failed to find what you are talking about. Perhaps you’re over-personalizing it?

Mickey July 20, 2011 at 9:22 pm

RTB,

You were not degraded as asinine, your comment was, and has been superseded by, likely, all of those written by the fascist Linux “lover” who seems to hate creative liberty. Your comment assumes that “intellectual property” is identical in validity with physical property, rather than being, simply, an abstraction that limits the development of technologies or other intellectually based media to the original inventor, artist, writer, etc… and those to whom he/she grants permission, when the author of the present article and those with whom you are debating do not recognize it as such. Thus, your examples of physical property did not fit with what was being said by Mr. Tucker or those of us who support his view.

sweatervest July 20, 2011 at 5:36 pm

“This debate is getting so ridiculous it’s hilarious, LOL”

Uh oh, you’re running out of patience and arguments it sounds. I’m sorry to hear that.

“Debating about arrangement of words and building upon previous notions. As if new ideas cannot exist, as if modifications were not in themselves original and did not deserve recognition”

Oh, so in other words you disagree with patents, because they make illegal modifications of other patented ideas which ought to be recognized in and of themselves. Which is actually the whole point of bringing up originality. Now you are twisting our words into BS. The point is that all ideas, however original you may think they are, are modifications of previous ideas and therefore even the first patent holder has no claim to take a patent out and require that people who modify his idea pay him for it even though he did not pay those whose ideas he modified.

“As if everything is a cog in the process of creativity.”

It is. What alternative do you imagine?

“It looks like it’s libertarians who want to seek rent and obtain other people’s intellectual efforts for free.”

No, it looks like you want to put something out on the internet where I can download it for free, and then instruct me that I cannot download it off the internet for free. Sorry, but you don’t own my computer or internet connection just cause you wrote a song.

Also, it looks like you want to claim ownership over my factory because you unveiled a clever invention, I saw it, and now I know how to make my own. Sorry, but you don’t own everyone’s factory just cause you thought of how to build something first.

“Ideas that change the world and bring prosperity are worth a fortune.”

No, the things produced by those ideas bring in properity and and are worth a fortune. Ideas do not change the world and never can and never will. Actions change the world. They are guided by ideas, but ideas alone do nothing.

“The problem is you cannot pay upfront for an idea without first knowing it and trying it with success”

How does one pay for idea? That’s quite a metaphor. I think what you really mean is pay someone to transfer or otherwise make use of a scarce good whose possession or use can convey an idea. That’s not paying for the idea. It’s paying for the good or service required to learn the idea. Ideas are not part of a trade. It makes no sense to trade an idea away, to have it stolen, to have it borrowed, etc.

“But then you no longer can claim ownership of the idea once it has been communicated and tried with success.”

You can *never* meaningfully claim ownership over an idea. What would such a claim mean? It would be equivalent to a claim to ownership over scarce physical goods, particularly a claim that is in conflict with already existing claims established by physical property rights. Hence Peter’s often stated point that IP and physical property cannot coexist. One overrides the other.

“That’s why we have the patent system”

What’s why? You think people need to be able to claim ownership over ideas, and that’s why we have patents? That’s not a very good reason.

You begin outright with the assumption that property rights in intellectual efforts are justifiable or even possibly exist at all. That is, you have dodged the entire argument and planted yourself in your own conclusion in order to reach that very conclusion.

Hexman July 21, 2011 at 7:28 pm

I’ll let this speak for it’s self.

Entire Apple stores being faked in China

By LOUISE WATT – Associated Press | AP – 10 hrs ago

BEIJING (AP) — At first, it looks like a sleek Apple store. Sales assistants in blue T-shirts with the company’s logo chat to customers. Signs advertising the iPad 2 hang from the white walls. Outside, the famous logo sits next to the words “Apple Store.” And that’s the clue it’s fake.
China, long known for producing counterfeit consumer gadgets, software and brand name clothing, has reached a new piracy milestone — fake Apple stores.

Wildberry July 22, 2011 at 2:39 pm

@sweatervest July 22, 2011 at 2:42 am
“The word I used with Kinsela was “original manuscript”, to which there is no dispute of ownership.”

I agree.

Good.

The argument is that it approaches a free good as a result of being copied into abundance.

This is not an argument, this is a restatement of the principle of diminishing marginal utility. Your problem is squaring this principle with your principles of private property.

“Here I used “novel”, but that means a literary work that is fixed upon a tangible medium (paper, etc.); i.e. a manuscript for which there exists only one, unique original object. At this point, it is undisputed the author has produced it with his own private means. Therefore, he owns it. Ownership means exclusive right to use and possession.”

So you use my first definition. So far you have not established that my argument is a false dichotomy.

You said “physical medium”. That is paper and ink and light.

“You say this manuscript is either “the physical medium” or “the class of all instances of the novel”. The second, “class” is equivalent to the “idea of the novel itself”.”

That equivalence is really irrelevant to the rest of the argument.

So you agree that the equivalence is valid, you say ideas cannot be owned, yet you say the novel is owned by the author. Excuse me for being confused about what you mean to say.

I never said they could. You are not rejecting what I said by pointing this out. This is not in conflict with the statement that “novel” can refer only to either a particular physical copy of the novel or the whole class of conceivable copies of the novel.

OK, I think I understand what you mean. You are granting the assumption that the original, and any copy that is ever made, must by definition have been derived from the original. We are establishing that as an assumption upon which we agree.

It remains that “novel” only means one of the two things I said.

What you said was “physical medium”. What you meant, apparently was “tangible object called ‘novel’, right? And you are conceding, for the purpose of this discussion, that all copies that will ever exist, originate from the original novel. OK?

This puts you at odds with Kinsella, Surda and others who have claimed that when the author disclosed a novel, he must transfer the title entirely, and retains no title to any part of it. This is what permits them to claim that if someone uses their own medium to make a copy that copy belongs to the copier, not the author. You seem to still be on the fence with this, and want to have it both ways. I think you claim that the original copier has done something wrong, but subsequent copiers haven’t, because they have no contract with the author. Is that correct?

This position has now been modified by Kinsella in the “easement/servitude” discussion so that now something called “co-ownership” is allowed. Kid Salami is doing a great job of tracking this development, and I will defer to him on this subject, which you and he have been discussing.

It seems you agree that co-ownership is possible, yet deny that this can operate as an “easement”, but only as a contract. Again, this puts you at odds with the boys.

“The original is a tangible object, the second is an intangible idea, or mental construct of a “class”.”

Yes, the whole point is that the second is an intangible idea. That is precisely the thing you wish to protect with IP.

You seem to be contradicting yourself here. We have agreed that the novel is a tangible object, composed of an expression and media, both of which are tangible. We have also agreed that the “class” of “copies” are all derived from the original object.

“I have no interest in this abstraction, and it is not relevant.”

I believe you contradict this later in this very post.

I

I believe we have cleared this up now. You agree that the novel and all copies are identical and derived from the original. All of these objects, the original and all copies, are tangible objects. Correct?

“The first, “the physical medium” is not the object in question. A novel is not “paper”. It is paper encoded with information that is an expression.”

This does not conflict with what I said, but is exactly in line with it. I never said “novel” could mean the physical medium itself. I said it could mean the one physical copy that is necessarily on some medium right here and now.

OK. Good.
“So you must come to grips with the distinctions between “idea”, “expression” and “medium”.”

You have confused my argument and are now knocking down a straw man. None of what I said relies on an equivocation of “idea”, “expression” or “medium”.

OK, I’ll hold you to that.

“The novel is actually “expression” plus “fixation” plus “tangible medium”. That is the tangible object. Like land which has trees and minerals, it is a bundle of “things”, which are at the same time “inseparable” yet “alienable”.”

You dodge the problem at hand, which is that the “novel” is either *this* expression plus *this* fixation plus *this* tanglible medium, or the “novel” is *every* expression plus *every* fixation plus *every* tangible medium. You seem to be misunderstanding me. I do not contest that a book is distinguishable from a stack of empty paper. I merely stress that the only “value” to speak of is the marginal utility of that a particular instance of all the things you mentioned.

OK, this confirms our understanding and agreement. We can ignore what you call the problem at hand, because you agree that for the purpose of this discussion, “this” novel and “every” copy are equivalent, except for the medium (i.e. they are distinct objects but identical and all copies are derived from the original). Right?

“Regardless of what a novel “is”, it can be copied. A copy has the same utility (as a book) as does the original, even though it is fixed on different physical paper.”

I How do you figure that. This is in conflict with the law of diminishing marginal utility. As in the case of any good, the next marginal unit is always worth less than the current marginal unit.

I don’t think you really mean what you are saying here, so let me see if I can translate.

If you have one of something, it is worth X. If you have two of that same something, it is worth X/2, and so forth until the marginal utility of X/∞. This is a theory of pricing.

Yet utility also means “use”. A novel is used to read. The original and the last copy have equal utility in this sense, while the unit price of the first and last might be different.

The question at hand is the following: As you follow the abundance curve to infinity, imagine that each copy is sold for a price, even though the price, as you correctly point out, may not be equal for each transaction. The economic question, and therefore the property question, implies a principle of private property. If the author “owns” each copy, then each transaction is “his” income. If he does not own each copy, then the income is not “his” and therefore at some point and to some degree, he has produced a novel for an external economy. To the extent the income is not “his”, he is producing for an external economy. How we define that extent depends upon a theory of property.

In order to say where that point is and why it exists, you must square the theory of marginal utility with a property rights theory, and that theory must operate according to principles of catallactics which are part of a coherent theory of economics.

Here, we are assuming a private property framework called “libertarianism” and an economic framework called AET. So our issue here is to square things up.

“If the author copied his own book, he would still have two instances of a manuscript, on different pieces of paper, and each would have identical serviceability. This serviceability is inexhaustible. Both would be indisputably owned by the author.”

I’m not sure I follow what you are saying here, other than if an author copies his manuscript then he owns the copy. No quarrel there.

Good. Apply this agreement to the marginal utility as discussed above and we’re in business.

“Whether one copy is the result of an original can be proven beyond a reasonable doubt by direct extrinsic or circumstantial evidence. There is any number of ways to demonstrate this.”

This is only relevant if it has been established that copying is punishable, and it seems as though the whole debate is over that.

Of course! We are debating whether an author who indisputably owns his own novel and any copies that he creates himself, looses that ownership by disclosing it to parties with whom he has no contract.

If he does, then those copies must fall within a theory of property rights. If he does not, then he is left with a choice of either a) nondisclosure/contract or b) disclosure as a free good. Neither option acknowledges a property interest in the novel that can operate outside the context of a contract.

This is a unique principle of property that appears to be applied by IP opponents only to the realm of IP, and in no other aspect of tangible property rights. They seem to grant an exception to the fundamental principle of libertarian property rights, which states that all economic goods are derived from scarce means of production, and that those means are privately owned. Those goods are the private property of the producer from private means.

All of your explanations of how to prove that copying happened is really of no concern, as those problems face any enforcement of any law.

That is correct. You grant the assumption that this “proof” is not required in our discussion.

The real question is that once you have proven that copying happened, what then? Is copying unjustifiable? Everything I say is to the effect of arguing that no, copying is not unjustifiable.

You have not argued that point yet. You have merely stated your conclusion. You don’t state how that conclusion squares with the rest of the principles you hold to be true. Don’t feel bad, though, because Kinsella, Surda, and the rest of the IP opponents here haven’t done it either.

You, like others, have simply tried to link the statements “ideas are free” and “IP cannot be owned”, and ignore the economic problems of property rights that this conclusion creates. Mises, in his succinct style, has summed up this dilemma in two paragraphs.

Kinsella has built his anti-IP career around a justification for choosing option A (ideas are free because their serviceability is inexhaustible) and ignoring option B (without securing private property rights, producers produce for external economies). This is a dilemma, not an either or decision. As Mises points out eloquently, either option has its own set of problems. It is, not surprising, an economic argument consistent with the entire body of his work in AET. Therefore, IMHO, it warrants a more respectful treatment than “Mises was wrong”, or “Rothbard was wrong” about the relationship between IP (or copyrights specificly) and property rights.

“The most straightforward way to demonstrate this is through probability analysis.”

I maintain that this is irrelevant if we are still debating if copying is unjustifiable,

I agree. You have conceded it is unnecessary to prove that the original and copies are identical.

“So the question presents itself; if the medium upon which the novel is fixed is immaterial to the utility of the object”

And when did I contest that?<

It doesn’t matter if you do not contest it now.

“and a copy of the object cannot be independently created, what is the “object” subject to an assignment of property rights?”

My answer is that you either mean the one specific copy or you mean all conceivable copies. What else could you ever mean other than one of these two?

Again, you said “physical medium”, but we agree now. To restate the assumption, the economic good (novel) is the utility of the novel, despite the medium upon which it is fixed. The original and the copies have the same utility (although not necessarily the same “price”).

No one is saying “only complete and total title transfers” can happen. As you yourself pointed out, the author can release his original copy through contract and forbid copying. The point is that if an unauthorized copy gets out (we do not quarrel that the person who creates the first unauthorized copy is guilty of something) can uninvolved third parties copy it further?

Yes, this is the point of departure. You claim that unauthorized copying can operate as a covenant (through contracts) but not as a property right.

If I grant your assumption, that only non-disclosure or contracts are available as a device to prevent copying, then I agree with you, any copier that finds himself not bound by a contract is merely copying a “free good”, owned by no one except those who own the medium upon which it is fixed. This is the logic you use to make the following conclusion:

Putting your creative work in a position where other people can justifiably use their property to copy it is not “giving it away” or transfering the entire title or anything. It is just people using their property.

By this I think you mean if what is being copied is a free good, then the copier is merely using his property (paper and ink) to make a copy; no harm no foul. From here, all this “fair use of information” argumentation is unnecessary. The conclusion that property rights are “unavailable” has already been assumed. Yet it has not been argued based on a logical progression from any principles of property rights or economic theory that embraces externalities, or embraces a coherent theory of property rights, despite claims to the contrary.

“This subject has an ancient history. Property is a human device.”

You say that till your face turns blue like it proves your case. I don’t know how you are seeing a connection between “property is a human device” and “IP is a legitimate property right”. When did I say property is not a human device?

OK, then I would like to know what you think the implications of this is for your argument against the principle of IP?

Your strategy here seems to be “well, you’re wrong when you say certain things cannot be property because property is whatever people agree that it is, and that means that IP must be property”. Seriously? What if everyone agrees that IP is not property? More importantly, what if there is no agreement at all? Even more importantly, what criteria must be met so that any agreement could ever be reached? (I’ll give you a hint. It’s private property rights sans IP!)

Well, this is certainly not a coherent explanation. You seem to deny that people can create a system of property rights to serve some purpose. Do you?

What is that purpose? Does it matter? I am simply saying that that purpose must be understood and articulated, and integrated with a body of principles which can be referred to as a “property rights theory” or an “economic theory” that is coherent.

“But this is also Mises’s dilemma: What are the consequences of assigning property rights solely on the “serviceability” of a good, versus on the basis of the ownership of the scarce means of production? What happens in the extreme case, where serviceability is inexhaustible, but the means of production are scarce?”

The consequences are that different people make different property assignments and therefore it causes more conflicts instead of solving more conflicts. Serviceability is subjective. Who’s opinion of serviceability should matter?

Good question. Within AET, isn’t the answer, “The consumers of economic goods”?

“For all goods except for IP, the serviceability and the means of production and reproduction are separate goods. For IP, the original means to produce the original manuscript are scarce, but the subsequent means to reproduce the manuscript are nearly non-scarce. What are separate goods for all other products, become common and inseparable goods for IP. IP opponents simply wave away this dilemma.”

No they don’t. They just say so what, as they should. So what if they are inseparable? How does that lead you to conclude that there exist property rights in the intellectual?

Well, you have to ask what the relationship is between scarce means of production, economic goods and property rights. However you answer that, whatever framework you build around those concepts, must be applied consistently to IP and all other economic goods. That is all I am trying to get at. In my opinion, IP opponents are inconsistent in their application of their own principles. I have gone to considerable effort to try to understand that. I think I do.

“The false dichotomy you present does the same.”

You never supported your case that it was a false dichotomy, and everything you said about my argument is a straw man. If “novel” does not mean one of the two things I stated, then what third option do you have? You admitted in your explanations that you use one of the two definitions I supplied.

You presented a dichotomy between “physical media” and “the idea of a novel”, and asserted that I must mean by “novel” one of the other. I think you have now clarified that a novel is an economic good in every respect, but unlike other economic goods, IP is not subject to a theory of property rights. IP can only exist outside this framework, and the operation of catallactics can only function within the framework of contracts.

“Unless you can address this dilemma with a coherent theory of property rights”

What dilemma? A dilemma is a “this is true or this is true” scenario. Where is your “or” statement? Pointing out that things are separable in one case but inseparable in another case is not a dilemma.

The dilemma I am referring to is the one that Mises raised. “ideas are free” v. “producing for external economies”.

“you simply assume your conclusion that treating IP as an “idea” is preferable to treating “the means of production” as private property.”

That is not my conclusion!

Are you sure? If you treat the means as private, the product of those means is private. If the product is the economic good, the “utility” of a novel, then you cannot hold that both are true unless you take a position that there is a trade-off. That trade-off must be consistent with some utilitarian argument supported by the AET framework. What is that argument?

My argument is in fact that a balance is required because adopting an absolute position on either point creates economic problems, which Mises describes, and which IP laws embrace.

And also, how is it impossible to both treat IP as ideas and treat means of production as private property.

Well if you think it is possible, try to explain it. I think it is impossible to do and yet remain consistent with AET and private property theory.

You begin with this vacuous claim, don’t care to support, and move on with it to establish that I am a socialist.

I do not really know or understand what your ideology is, because you have not reconciled your position with other principles which you claim to hold. If you believe, as to most IP opponents, that authors and other producers of intellectual products should be willing to produce for external economies, then that is consistent with socialism for the reasons I’ve stated. If you don’t hold that position, then what position do you hold?

You are deeply confused if you think any IP abolitionist here argues against private ownership of productive means. You seem to think that when someone posts their novel in plain view and someone else copies it that the copier is exercising collective ownership over the author? That is ridiculous. Your metaphors are so obtuse they are almost double-talk and can be used to conclude anything.

If I own land, I do not have to build a tall fence to keep out trespassers, and I don’t need a contract with every person on earth, either. Since I own it, I have exclusive rights to use and possession. Is trespassing a “use”? Is photographing my land a “use”. Yes, they are both uses, but one is prohibited and the other is not. Is reading my book a “use”. Is copying my novel a “use”? Yes, and one is prohibited and the other not. Why?

The analogy is, “photographing” is to “reading” as “trespass” is to “copying”. This is Rothbard’s own argument. If you think this analogy is confused, using principles of libertarian property rights and AE theories to explain, what is being confused?

“To choose the former and reject the latter is to promote the preference for treating private means as public means.”

You have not shown that to choose the former requires rejecting the latter, nor have you shown that I in fact chose the former or in fact reject the latter.

Read these two paragraphs from Mises in context here: http://mises.org/humanaction/chap23sec6.asp , and explain how you address the dilemma he presents. What is the solution?

The extreme case of external economies is shown in the “production” of the intellectual groundwork of every kind of processing and constructing. The characteristic mark of formulas, i.e., the mental devices directing the technological procedures, is the inexhaustibility of the services they render. These services are consequently not scarce, and there is no need to economize their employment. Those considerations that resulted in the establishment of the institution of private ownership of economic goods did not refer to them. They remained outside the sphere of private property not because they are immaterial, intangible, and impalpable, but because their serviceableness cannot be exhausted.
People began to realize only later that this state of affairs has its drawbacks too. It places the producers of such formulas–especially the inventors of technological procedures and authors and composers–in a peculiar position. They are burdened with the cost of production, while the services of the product they have created can be gratuitously enjoyed by everybody. What they produce is for them entirely or almost entirely external economies.

“An ideology based on public ownership of the means of production is socialism.”

Public ownership of what?

Public ownership of the products of private means of production. To claim that the products are not the private property of the owner of the means violates AET and libertarian principles of private property rights. Both Mises and Rothbard have said this very thing. Yet you hold that Mises and Rothbard are wrong about this. Why?

Your claim that people being able to copy a novel in plain view equals public ownership of whoever wrote the novel is insane, especially as you are in the middle of advocating why every novel writer ever should have partial ownership over everyone’s body.

You see, this is why it is difficult to follow you. This is non sequitur. How do you connect the “partial ownership over everyone’s body” part? Have I said that anywhere, or are you trying to paraphrase what you claim I said? I have never made this claim.

“Producing for external economies is slavery, and will not be freely chosen.”

Wow, your density concerning external economies is incredible.

If you are going to engage in ad hominem, don’t complain about it from others. If you are going to dish it out, be prepared to take it.

Maybe you should stop being such a dishonest masquerading charlatan and *answer* my arguments, rather than rehash the same ridiculously stupid point over and over and over, to be refuted over and over and over.

Eat me.

Because you wear deodorant and the people who smell it don’t pay you, you are a slave. Apparently this was not freely chosen but imposed on all of us by our socialist masters. I mean, I have explained so many times why your charge that production for external economies is so bad I don’t know what else to say.

This is not a refutation of externalities. Externalities can never be 100% eliminated. The actor makes a calculation of predominant costs and benefits. Mises discusses this extensively in the cited section above. This is why he uses the words “for the most part”. I have found Mises to be very skillful and particular with his use of words.

“To promote slavery and liberty in the same breath is a fatal contradiction. This is the anti-IP argument.”

Your solution to this “problem” is to make it so when anyone writes a melody, no one else is able to sing that melody.

See my response above where I given the analogy to photographing and trespass. Why is one OK and the other not? There must be a meaningful distinction between the two. Singing a melody is not a prohibited use of the songwriter’s property rights, even if you acknowledge they exist.

And you say we advocate slavery? Are you kidding me? You think people should be dictated on how to use their very bodies by creative producers, and you tell us we are socialists and slavery supporters?
Let me remind you that you are the one describing a situation in which a centralized agency dic[t]ates the use of everyone’s bodies.

This is complete non sequitur. I drew the connection between producing for external economies and slavery. I said that the public ownership of the means of production (and the product thereby produced) is equivalent to socialism.

I realize you do not think of yourself as either an advocate for slavery or socialism. That is my point. Yet I am asserting that the inconsistency in your arguments for IP in relationship to the other principles you seem to hold, leads inevitably to these conclusion, if your arguments are followed to their logical conclusions.

I have challenged Kinsella, Surda and now you, to explain how this is incorrect. I have provided a well established framework by the namesake of this site as the basis for my position. If you disagree with me, then you disagree with Mises. All I am asking is for you (or anyone else) to show where that is wrong, without just saying it as a foregone conclusion. At least, take the time and effort that I have put into this response to try to take it on rationally. Or not, it’s up to you. So far Kinsella has declined, too, so you’re in good company.

sweatervest July 22, 2011 at 11:50 pm

“This is not an argument, this is a restatement of the principle of diminishing marginal utility. Your problem is squaring this principle with your principles of private property.”

Indeed it is a restatement of the principle of diminishing marginal utility. There is no problem of establish why creative works are a free good because no one said they are a free good. That was a response to your complaint that the IP abolitionist derives a free good from scarce means of production. I am saying they do no such thing, as the creative never become a free good it merely approaches being a free good by virtue of being in abundance.

“Here I used “novel”, but that means a literary work that is fixed upon a tangible medium (paper, etc.); i.e. a manuscript for which there exists only one, unique original object. At this point, it is undisputed the author has produced it with his own private means. Therefore, he owns it. Ownership means exclusive right to use and possession.”

So you use my first definition. So far you have not established that my argument is a false dichotomy.

“You said “physical medium”. That is paper and ink and light.”

Yes, that is what the book is. Likewise, a wheel is the clay that makes the wheel up. It wouldn’t be a wheel if the clay were in another shape. Likewise, the book would not be a book if it didn’t have the right pattern of words on it. But the book is the paper and the ink. You are seeing a conflict where there is none. I agree that a book is distinct from any paper and ink, just how a wheel is different from any mold of clay.

“So you agree that the equivalence is valid, you say ideas cannot be owned, yet you say the novel is owned by the author. Excuse me for being confused about what you mean to say.”

How did you gather that? Allow me to restate my argument briefly: “novel” can refer to either the one copy of the novel right here right now, or it can refer to all conceivable copies of the novel, which is what the abstract idea of the novel is. I have said in other places that ideas cannot be owned because they are not the scarce means employed towards ends. When I say the novel is owned by the author, I use my first definition of “novel”, which is a scarce means employed toward an end. When I say ideas cannot be owned I refer to the second definition of “novel”, which is not a means to any end. What’s the problem?

“OK, I think I understand what you mean. You are granting the assumption that the original, and any copy that is ever made, must by definition have been derived from the original. We are establishing that as an assumption upon which we agree.”

Well I will agree with that but my point was about what one means by the creative work, not whether one copy is derived from another.

It remains that “novel” only means one of the two things I said.

“What you said was “physical medium”. What you meant, apparently was “tangible object called ‘novel’, right? And you are conceding, for the purpose of this discussion, that all copies that will ever exist, originate from the original novel. OK?”

Wait, how does my argument about the meaning of “novel” have anything to do with where copies originate? I never said anything about where they originate. Perhaps I’m making this too complicated, for it is a simple point: novel either means this copy of the novel right here, or it means all conceivable copies. I’m not making or relying on any claims concerning their origin.

“This puts you at odds with Kinsella, Surda and others who have claimed that when the author disclosed a novel, he must transfer the title entirely, and retains no title to any part of it.”

To the extent I can speak for other people, I am almost certain that is not what Kinseall or Surda were trying to say. It seems to me that the common point we see is that there is no title to be transfered at all. When the novel is in plain view, I can see it and make a copy of it. This turns a piece of my property into a copy of the novel. This is not a transfer of any property what-so-ever. The author and I never interacted, directly or through our property. When you disclose the novel other people are capable of making copies of it without trespassing on any property. You seem to be suggesting that the author is “forced” to disclose something entirely by putting it in plain view. There is no forcing. That’s like saying when you walk around in public you are “forced” to disclose your image entirely because people can take your picture.

“This is what permits them to claim that if someone uses their own medium to make a copy that copy belongs to the copier, not the author. You seem to still be on the fence with this, and want to have it both ways. I think you claim that the original copier has done something wrong, but subsequent copiers haven’t, because they have no contract with the author. Is that correct?”

Well, yes, but how am I on the fence and how do I want it both ways? I have stated that the original copier may have breached a contract by copying, and like any contract breach he can be punished for that. The contract may state that any of B’s property that becomes unauthorized copies may become the property of A, the author. But if C uses B’s unauthorized copy to make a copy out of C’s property then the contract does not state anything about this copy, and no enforceable contract could because A and B cannot contract with C’s property.

“This position has now been modified by Kinsella in the “easement/servitude” discussion so that now something called “co-ownership” is allowed. Kid Salami is doing a great job of tracking this development, and I will defer to him on this subject, which you and he have been discussing.”

I’ll have to wait to see what Kid Salami thinks but I think I have identified why the easement/servitude discussion will not shed light on the IP discussion. The fundamental difference between the two is that easements and servitudes concern marginal units of property, i.e. this particular piece of land, while IP concerns entire classes of property, i.e. every conceivable copy of a novel. I maintain that easements and servitudes are only justifiable when they can be established with contracts, but in the case of IP it is much more clearly outside the scope of any contract to create IP, and it must rather (as you seem to agree) become a problem of what property rights themselves are, not what things can be done with the property rights that one has.

“It seems you agree that co-ownership is possible, yet deny that this can operate as an “easement”, but only as a contract. Again, this puts you at odds with the boys.”

Perhaps it does. I am not very familiar with easements and maybe the boys can get me on their side (they are often convincing to me), but I fail to see how easements can be an issue of anything other than contracting, because the only kind of ownership is total ownership and only contracts can conditionally redistribute rights to use, and thus any easement that cannot be established by contract is a violation by the enforcer of the easement.

“You seem to be contradicting yourself here. We have agreed that the novel is a tangible object, composed of an expression and media, both of which are tangible. We have also agreed that the “class” of “copies” are all derived from the original object.”

Well, see, I think you’re flip flopping between those two definitions. If you have only ever meant by “novel” this particular copy of the novel right here and now then all of your arguments in favor of IP are nullified by the simple fact that this novel is not the same as that novel. I think you mention something about this later so I will continue this momentarily.

“I believe we have cleared this up now. You agree that the novel and all copies are identical and derived from the original. All of these objects, the original and all copies, are tangible objects. Correct?”

Well I’m still confused as to how you think I was making a statement of where any copies originate or derive from. I agree with you that they derive from the original though, for what it’s worth.

“OK, this confirms our understanding and agreement. We can ignore what you call the problem at hand, because you agree that for the purpose of this discussion, “this” novel and “every” copy are equivalent, except for the medium (i.e. they are distinct objects but identical and all copies are derived from the original). Right?”

No, certainly not! “This” novel is definitely not the same thing as “every” novel. Those are two different concepts. They are not the same thing. This wheel right here and that wheel right there are both wheels, but they are different goods. This novel is not the same as that novel. I think I understand what you are trying to say: these two different things are instances of the same category. They both belong to the class of all copies of this novel. They are the “same” novel in the sense that they both belong to this same class. But they are still distinct instances of that class. They are different goods, different means to be used in action.

I How do you figure that. This is in conflict with the law of diminishing marginal utility. As in the case of any good, the next marginal unit is always worth less than the current marginal unit.

“Yet utility also means “use”. A novel is used to read. The original and the last copy have equal utility in this sense, while the unit price of the first and last might be different.”

You seem to be confusing the fact that the law of diminshing marginal utility concerns interchangable units of a good and that it’s not this particular unit that is worth less than that particular unit, but the n+1th unit that is worth less than the nth unit. Either way, it is true of all goods that as their supply increases, then with everything else held constant the per-unit price decreases.

“The question at hand is the following: As you follow the abundance curve to infinity, imagine that each copy is sold for a price, even though the price, as you correctly point out, may not be equal for each transaction. The economic question, and therefore the property question, implies a principle of private property. If the author “owns” each copy, then each transaction is “his” income.”

But he doesn’t. He does not own unauthorized copies made by third parties. How could he?

“If he does not own each copy, then the income is not “his” and therefore at some point and to some degree, he has produced a novel for an external economy. To the extent the income is not “his”, he is producing for an external economy.”

Yes, he is producing for an external economy just like advertisers. But just like advertisers, it’s not the particular advertisement that is the source of value and the thing being financed, it is the ability to make good ads. It is the talent, the creativity. And as you seem to agree, that is always scarce and no one can copy a person’s creativity.

“How we define that extent depends upon a theory of property.”

Indeed.

“In order to say where that point is and why it exists, you must square the theory of marginal utility with a property rights theory, and that theory must operate according to principles of catallactics which are part of a coherent theory of economics.”

Well, how about this: marginal utility is squared with a marginal property theory. Just how value applies only to the marginal unit, property titles also extend over the marginal unit. That means there are no property claims that can extend to every conceivable copy of a creative work, they can only extend over a marginal unit, that is a certain definite set of copies. No ownership claim can be made over unauthorized copies in general.

“Here, we are assuming a private property framework called “libertarianism” and an economic framework called AET. So our issue here is to square things up.”

Just like there is never a question of the value of a good per se, but only this unit of a good right here and now, there is also never a question of the ownership of a good per se, but only this unit of a good right here and now.

“Good. Apply this agreement to the marginal utility as discussed above and we’re in business.”

Wait what would that do? How does that concern the situation when someone other than the author makes a copy?

“Of course! We are debating whether an author who indisputably owns his own novel and any copies that he creates himself, looses that ownership by disclosing it to parties with whom he has no contract.”

What a convenient way to word that! Why, there is no loss of ownership where there is no ownership to begin with. So we are not debating whether or not an author loses something, which you seem to be very confused about. An author is not “forced” to disclose anything any more than you are “forced” to disclose your image by walking around in public. We are debating whether or not the author can claim such ownership at all, not whether or not he loses it.

You seem to be using very vague metaphors to conclude that I am claiming ownership over your copy of your novel when you put it in plain view of me and I start copying it with my property onto my property. That’s seriously a claim of ownership? And you forbidding me from using my pen and paper in such a fashion would not be a claim of ownership itself? I.e. is it not the author who is making wild claims of ownership over everyone’s property, not everyone making wild claims of ownership over the author’s property?

“If he does, then those copies must fall within a theory of property rights. If he does not, then he is left with a choice of either a) nondisclosure/contract or b) disclosure as a free good. Neither option acknowledges a property interest in the novel that can operate outside the context of a contract.”

I’m not sure what “acknowledgement of a property interest” could mean. Property interest? And what do you mean by operate outside the context of a contract?

“This is a unique principle of property that appears to be applied by IP opponents only to the realm of IP, and in no other aspect of tangible property rights. They seem to grant an exception to the fundamental principle of libertarian property rights, which states that all economic goods are derived from scarce means of production, and that those means are privately owned.”

No there is no exception. All economic goods are not derived from scarce means of production, they can also be provided by nature and in fact must ultimately be, for the scarce means of production are also goods and must come from somewhere.

There is no exception to the claim that all means of production should be privately owned. You are misunderstanding the IP abolitionist by claiming he wants public ownership of anything. I think I have sufficiently explained this already. You are really stretching the concept of “force” and “transfer” to conclude that a novel becomes a free public good because it is in plain view and people can use their property to make copies of it. That is an absurd claim. As I have argued by “novel” you either mean a particular copy or the class of all copies. If you are using the first definition, then you are claiming that the original copy becomes a free good because people can make copies but that is plainly not true. That one copy remains that one copy and it remains completely the property of the author. If you mean the second definition then you are dealing with something that is not a good at all and has no value because it is not the means used in any action.

“Those goods are the private property of the producer from private means.”

There is no quarrel here. There is no exception to private ownership of all property. There is nothing in IP abolitionism about collective ownership of anything.

“You have not argued that point yet. You have merely stated your conclusion. You don’t state how that conclusion squares with the rest of the principles you hold to be true. Don’t feel bad, though, because Kinsella, Surda, and the rest of the IP opponents here haven’t done it either.”

No, I have. Maybe you have found an error in my argument but that is not the same as me not presenting an argument. My argument for why copying is not unjustifiable is because one copies by modifying one’s own property, and if one gets ahold of a copy and is able to transform his own property into a copy then it does not cease to be his property. That has always been my argument. I own my computer, tape recorder and vocal chords. That has been my central claim from the get-go.

“You, like others, have simply tried to link the statements “ideas are free” and “IP cannot be owned”,”

I never said ideas are free!! I said ideas are non-rivalrous/non-scarce and thus not subject to property rights. This is not saying they are “free”. Now I am saying ideas are not means at all. They are not the things employed in action. They are what guide the ways things are employed in action. The things that can be owned are the things for which there exists conflict of use. So I begin perhaps with “ideas cannot be owned”. But I also use other things to conclude that IP is unjustifiable, particularly that ownership can never extend over an entire class of goods.

“and ignore the economic problems of property rights that this conclusion creates. Mises, in his succinct style, has summed up this dilemma in two paragraphs.”

Well we don’t actually say ideas are free or that any creative good is or should be free. Perhaps this is the big misunderstanding. The “economic problems” you speak of is the “problem” of things being produced into abundance until their marginal utility is nearly zero. That’s only a problem for someone who wants to continue producing something that already exists in abundance and get paid for it. From the perspective of a consumer it is hardly a problem that goods exist in such abundance they are nearly free.

I submit that creative works already exist in abundance. If you spent the rest of your life, every waking second, reading books, watching shows/movies, or listening to music, you couldn’t put a dent in any one of those. I’ll bet there are enough of each of those things that you could spend the rest of your life consuming not only any of those things but good quality books/shows/movies/songs, all of which you love. In a world like that does anyone need to be paid any more money to continue making more of those things? People always see “we need new novels, plays, music, etc”. Don’t get me wrong, I love the idea of those things, but seriously, there are already enough novels, plays and music that you could never hope to view anywhere close to a significant chunk of them. Same with video games. There are enough video games in the world I could easily play 10 new ones a day for the rest of my life.

I know what you’re thinking: that abundance exist because of IP. But that cannot be true, because IP is a scheme to prevent the abundance of creative works. This abundance must exist despite IP.

“Kinsella has built his anti-IP career around a justification for choosing option A (ideas are free because their serviceability is inexhaustible) and ignoring option B (without securing private property rights, producers produce for external economies).”

Wildberry, no one is ignoring that they produce for external economies haha. Perhaps Austrians just don’t spend too much time rehashing the refutation of public goods theories when a general refutation already exists. Hoppe’s first chapter in “Economics and Ethics of Private Property” is all about external economies.

“This is a dilemma, not an either or decision. As Mises points out eloquently, either option has its own set of problems. It is, not surprising, an economic argument consistent with the entire body of his work in AET.”

But Mises’ comments on IP involved his monopoly price theory which contradicted the rest of his praxeological arguments, a correction Rothbard made. You seem to be assuming that Mises’ entire system of AET as expressed in Human Action is entirely self-consistent. I don’t think it managed to be *that* well crafted. That would be a hell of a lot to ask of the guy who established economics as praxeology! To get it all right in the first attempt!?

“Therefore, IMHO, it warrants a more respectful treatment than “Mises was wrong”, or “Rothbard was wrong” about the relationship between IP (or copyrights specificly) and property rights.”

What is disrespectful about saying someone was wrong!? I can imagine Rothbard being here right now urging people to not take that attitude towards his writings. One of the many many things Rothbard *did* get right was the fallacy of great thinkers.

“I agree. You have conceded it is unnecessary to prove that the original and copies are identical.”

Not that it would be unnecessary, just that we need to concern ourselves here with the forensic process. We are only concerned with what facts warrant punishment, not how to get all the facts.

“Again, you said “physical medium”, but we agree now. To restate the assumption, the economic good (novel) is the utility of the novel, despite the medium upon which it is fixed.”

Wait, so now an economic good is the utility? I suspect you mean that the economic good is the novel, independent of the medium. Likewise, that a good counts as “a wheel” and has the value of being such is independent of the material used to make the wheel. It seems as though your reasoning leads to the conclusion that if someone crafts their clay into a wheel they become the owner of any other material that is crafted into a wheel.

“The original and the copies have the same utility (although not necessarily the same “price”).”

Again, you are confusing that the law of diminishing utility concerns interchangeable units. You can interchange the original and the copy, it doesn’t matter which one is ordered 1st and which 2nd. But the 2nd one (the one used last) has less utility than the 1st one.

“Yes, this is the point of departure. You claim that unauthorized copying can operate as a covenant (through contracts) but not as a property right.”

By claiming they are a property right you are claiming that an action can establish ownership over and entire class of goods which is absurd. You are saying when you craft a wheel you can confiscate any other material that is crafted into a wheel. Of course there is no such property right.

“If I grant your assumption, that only non-disclosure or contracts are available as a device to prevent copying, then I agree with you, any copier that finds himself not bound by a contract is merely copying a “free good”, owned by no one except those who own the medium upon which it is fixed.”

Really? I thought you held the position that copyrights are property rights, not the result of contracts.

“Putting your creative work in a position where other people can justifiably use their property to copy it is not “giving it away” or transfering the entire title or anything. It is just people using their property.”

Exactly.

“By this I think you mean if what is being copied is a free good”

No, there is no free good in question. What would it be? The “novel” is either that copy right there or all copies. That copy right there remains the property of the author. The class of all copies is not an economic good and has no value (that does not mean it is is free, it means value is meaningless with respect to it).

“then the copier is merely using his property (paper and ink) to make a copy; no harm no foul. From here, all this “fair use of information” argumentation is unnecessary.”

Well sure. “Fair use” is something that has to be tacked onto copyrights to prevent them from otherwise stifling all creativity.

“The conclusion that property rights are “unavailable” has already been assumed.”

No that has not been assumed, the fact is that ownership means use, and when you are staring at someone’s novel in plain view copying it you are not using the novel. That is the simple fact of the situation. I am not using your novel when you place it in plain view. I use *my* property to create a copy. Me viewing your novel in plain view is not a use of that novel. I am not taking possession of it. I am not using it.

Preventing me from using my property to copy your novel *is* a use of my property. So it is you, the IP proponent who wishes to enforce copyrights, who advocates trespass on the copier. When I copy, I don’t use the novel. But when you prevent me from copying, you use my property (to prevent me from using it).

“Yet it has not been argued based on a logical progression from any principles of property rights or economic theory that embraces externalities, or embraces a coherent theory of property rights, despite claims to the contrary.”

How does a theory embrace something? Furthermore, you are the only one who sees a problem with external economies. Advertisement is a giant external economy. You have still not presented any property rights theory, consistent or not.

“OK, then I would like to know what you think the implications of this is for your argument against the principle of IP?”

None! Everything we use is a human device. Math is a human device. Logic is a human device. They are each specific devices with specific functions. What is relevant is what formulations of those produce functional devices as opposed to non-functional devices. Simply pointing out that they are devices devised by humans has no implication on the specific form those devices must take to be functional.

“Well, this is certainly not a coherent explanation. You seem to deny that people can create a system of property rights to serve some purpose. Do you?”

Of course not. And yet you seem to deny that there is any structure of reality that constrains successful actions. That something is a human device does not imply it is a matter of agreement. Especially when we are considering precisely the device whose functioning is necessary for agreement to be possible!

See, when property rights are not respected there can be no agreement. There is no arguing, only fighting. Only force, only violence. Asking “what do we agree property rights are?” is literally asking “what do we agree are the things that allow us to make agreements?”

Also, you have also not shed light on how property rights being a human device, something that people can agree upon, makes IP justifiable. Perhaps you are ignoring my arguments that IP results in *less* creative production!

“What is that purpose? Does it matter? I am simply saying that that purpose must be understood and articulated, and integrated with a body of principles which can be referred to as a “property rights theory” or an “economic theory” that is coherent.”

The purpose of property rights is to provide a means to resolve conflicts. IP obviously fails miserably to do this. Are you saying it resolve conflicts to have a nation whose borders of authority are well-defined to have to enforce their own laws globally? Copyrights are pointless until they are globally enforced.

“Good question. Within AET, isn’t the answer, “The consumers of economic goods”?”

That works when it comes to production. That is, who should produce what? Let the consumers decide. This works because if A and B disagree on what they want to consume, then A can consume what he wants while B can consume what he wants. A can drink coke and B can drink Pepsi.

But there can only be one system of property rights. I can’t decide to follow my own property rights system while someone else decides to follow theirs. You following yours conflicts with my system and me following mine conflicts with my system.

“Well, you have to ask what the relationship is between scarce means of production, economic goods and property rights. However you answer that, whatever framework you build around those concepts, must be applied consistently to IP and all other economic goods. That is all I am trying to get at. In my opinion, IP opponents are inconsistent in their application of their own principles. I have gone to considerable effort to try to understand that. I think I do.”

Well I think you see the inconsistency because you claim IP abolitionist claim creative works are “free goods” or become them under certain circumstances. The point is that the scarce good in question always comes in marginal units, and both economic value and property rights are assigned only to the marginal unit, not the good per se.

“The false dichotomy you present does the same.”

You never supported your case that it was a false dichotomy, and everything you said about my argument is a straw man. If “novel” does not mean one of the two things I stated, then what third option do you have? You admitted in your explanations that you use one of the two definitions I supplied.

“You presented a dichotomy between “physical media” and “the idea of a novel”, and asserted that I must mean by “novel” one of the other. I think you have now clarified that a novel is an economic good in every respect, but unlike other economic goods, IP is not subject to a theory of property rights.”

No you are flip flopping between those two definitions. Only using the first definition is the novel an economic good and can be owned, and this does not imply IP. To imply IP one must argue that using the second definition the novel can be owned. It is not unlike other economic goods. IP rights concern entire classes of goods, never the marginal units. I am consistently applying the principle that ownership titles extend only over the marginal unit of property.

“The dilemma I am referring to is the one that Mises raised. “ideas are free” v. “producing for external economies”.”

It is not impossible that both ideas are free and authors produce for external economies. To be clear, I am not saying ideas are free, but even if I said they are, and I certainly do say creative authors produce for external economies. I’m still not sure I see the dilemma that arise from these two things.

“Are you sure? If you treat the means as private, the product of those means is private.”

This is very obtuse, very metaphorical. Are you saying when privately owned means are transformed into new products, that they remain privately owned? Of course. Who denies that?

“If the product is the economic good, the “utility” of a novel”

This is meaningless. How can “utility” be a good? The usefuless of something is not the means employed in action. It is the thing itself that is the means employed in action.

“then you cannot hold that both are true unless you take a position that there is a trade-off.”

But the *only* economic good one can speak of when talking about a novel is this particular copy of this novel right here and now. The abstract idea of the novel itself is never an economic good and never the subject of a property title. Why? Because the abstract idea of the novel itself, which is all you could ever mean by “novel” other than a specific copy, is not a means employed in action.

“That trade-off must be consistent with some utilitarian argument supported by the AET framework. What is that argument?”

There is no trade-off. I always maintain that the only economic good is the marginal unit, i.e. that particular novel right here and now. The utility of something is certainly not an economic good. It is not a means employed in action.

“My argument is in fact that a balance is required because adopting an absolute position on either point creates economic problems, which Mises describes, and which IP laws embrace.”

What economic problems are caused by a complete lack of IP? Please, please do not say that it requires production for external economies, because I have already addressed this. Advertisers produce for external economies too. Where are the economic problems? If you are suggesting that lack of IP interferes with the wealth creation process then I would be interested to know how you claim it does such a thing.

“And also, how is it impossible to both treat IP as ideas and treat means of production as private property.”

I don’t see how. To realize that IP is, and must be, trying to protect abstract ideas, i.e. entire classes of conceivable instances of economic goods, is not in conflict with the fact that means of production are private property. I suspect this claim depends on your argument that by me copying a novel in plain view I am making use of and exerting an ownership claim over the original copy of the novel. I have already addressed this. No one is arguing anything that involves public ownership of anything. To point out that IP attempts to establish claims over entire classes of goods, that is the abstract idea those types of goods, is unreleated to all property, be it means of production or not, being privately owned. To be as clear as possible: there is no public ownership in either of our scenarios.

“I do not really know or understand what your ideology is, because you have not reconciled your position with other principles which you claim to hold.”

I believe I have. My principles are that property titles are marginal, they extend only over definite units of property, that ownership of a marginal unit of property is established only by homesteading that property or having it traded to you, that conditional use of property one does not own can only be established through contracting as implied by having property rights, and that IP necessarily concerns claims of ownership over entire classes of goods that necessarily conflict with marginal claims of ownership based on homesteading and trading.

“If you believe, as to most IP opponents, that authors and other producers of intellectual products should be willing to produce for external economies”

No, no one has suggested what anyone should be willing to produce. No we’re not telling authors what they need to do. We’re telling them that being creative doesn’t give them a right to everyone else’s recording devices. We leave it up to them to decide whether or not creative production is a worthwhile endeavor.

“then that is consistent with socialism for the reasons I’ve stated. If you don’t hold that position, then what position do you hold?”

No it is not consistent with socialism at all. Please tell me what people getting to copy a novel in plain view has to do with a centrally planned economy? And tell me how you ever hope to establish what can be copyrighted and what cannot be without a centralized committee deciding on such things. You are the one advocating centralization. You have entirely failed to demonstrate that IP abolitionism involves public ownership of anything. Your IP system requires a central body to decide what can be copyrighted or not, what is patented and what is not, etc. It is you advocating central planning, not me.

“If I own land, I do not have to build a tall fence to keep out trespassers, and I don’t need a contract with every person on earth, either.”

That does not help your case. I think what you mean is that you don’t need a fence to establish that trespassers are in fact trespassing. It might be a good idea to build the fence to actually stop them though.

“Since I own it, I have exclusive rights to use and possession. Is trespassing a “use”?”

Yes.

“Is photographing my land a “use”.”

No! Are you kidding!?

“Yes, they are both uses, but one is prohibited and the other is not. Is reading my book a “use”. Is copying my novel a “use”? Yes, and one is prohibited and the other not. Why?”

That is an absurd argument. Photographing land is not using that land. It does not involve the land at all. That is ridiculous. Someone is using your body when they take your picture? No, that is plainly not true. They are not using it. I am not using your body by looking at you. That is such a metaphorical stretching of “use” the word loses all meaning.

“The analogy is, “photographing” is to “reading” as “trespass” is to “copying”. This is Rothbard’s own argument. If you think this analogy is confused, using principles of libertarian property rights and AE theories to explain, what is being confused?”

Did Rothbard really think that photographing land is a use of that land? But that is a pretty ridiculous analogy, especially considering that photographing is just a certain type of copying (copying the image of the property). What if you memorize the novel word-for-word? Is that storing a copy in your brain? Is that unjustifiable while just reading and forgetting it is not? See, this is getting out of hand. And it’s all based on the absurd idea that photographing or copying is a use of the land or novel.

“People began to realize only later that this state of affairs has its drawbacks too. It places the producers of such formulas–especially the inventors of technological procedures and authors and composers–in a peculiar position. They are burdened with the cost of production, while the services of the product they have created can be gratuitously enjoyed by everybody. What they produce is for them entirely or almost entirely external economies.”

Mises is presenting a public goods argument. It is obviously a poor argument. Advertisers are in this terrible position. Security producers are in this position. Deodorant wearers are in that position. Anyone who maintains a yard and has neighbors is in that position. Anyone who acts nice and doesn’t get paid for it is in that position.

It is surprising that Mises was so quick to do what he surely knew was such a mistake, which is to deny the facts of reality and arrogantly try to supercede them. I dare say Mises is suggesting that it is desirable for states to undo the fact of reality that ideas are inexhaustible. He knew so well how socialists try to “legislate” the laws of economics out of existence, as arrogantly silly as someone trying to legislate away the laws of physics. It seems as he committed this error himself here. It is a fact of nature that recipes, for example, are inexhaustible, and yet Mises claims there is something undesirable about this? Perhaps, but there it is. Fighting against reality is the siren song of a central planner.

Also, his charge that those producers must carry the cost of production themselves is wrong. There is nothing stopping other people from financing creative production. I don’t understand why it is so hard to imagine that creative people can be paid for their creativity, not copies of their past creations.

“Public ownership of the products of private means of production. To claim that the products are not the private property of the owner of the means violates AET and libertarian principles of private property rights.”

Who said they don’t? I have thoroughly debunked this charge that I am advocating public ownership of anything.

“Both Mises and Rothbard have said this very thing. Yet you hold that Mises and Rothbard are wrong about this. Why?”

No I do not! You are putting some strange words in my mouth now! Perhaps I should remind you that I am spelling out the details of a private property society. IP abolitionism has nothing to do with public ownership of anything.

Your claim that people being able to copy a novel in plain view equals public ownership of whoever wrote the novel is insane, especially as you are in the middle of advocating why every novel writer ever should have partial ownership over everyone’s body.

“You see, this is why it is difficult to follow you. This is non sequitur. How do you connect the “partial ownership over everyone’s body” part? Have I said that anywhere, or are you trying to paraphrase what you claim I said? I have never made this claim.”

You are in the middle of explaining why it is wrong for people to copy a novel in plain view without permission, which can only mean that it is right for the author to forcefully stop people for doing such copying. Copying is not a use of any of the author’s property (contrary to your claim, which is quite an absurd one) and therefore cannot be a use that is forbidden in order to maintain the property rights of others. Therefore stopping people from copying is taking ownership of what they use to copy, which includes their bodies. You are making that claim. You are claiming that when an author writes a novel he has ownership over every piece of property that could ever become a copy of that novel.

“If you are going to engage in ad hominem, don’t complain about it from others. If you are going to dish it out, be prepared to take it.”

You don’t know what an ad hominem is. I might have said something about you the arguer but I did not use it in my arguments. You very often make statements about me and suggest that implies something about the arguments at hand. I merely made the remark that you stubbornly push this external economy argument while completely ignoring my responses to it. That did not become the basis of my argument. Ad hominems are logical fallacies. That you use them doesn’t just mean you are obnoxious, it means you are *wrong*, which is the part I care about.

“Eat me.”

It is very dishonest to pretend like I have not addressed your external economy argument. You are unreasonable for acting that way and not expecting these sorts of responses. If you expect to do things like ignore the responses to your claims and continue to make those claims as if they have not already been challenged then you have nothing to expect to be called out for dishonest argumentative tactics. Dude, you’re not gonna fool us. We read these threads. We see what is said. We see you use dishonest tactics over and over. Kinsella calls you out for it, Peter calls you out for it, nate-m calls you out for it, Sione calls you out for it, and others probably have too. I would be more willing to accept that it is my problem if so many other people weren’t making the exact same accusation towards you.

“This is not a refutation of externalities.”

What does refutation of externalities mean? I am demonstrating that production for external economies happens.

“Externalities can never be 100% eliminated. The actor makes a calculation of predominant costs and benefits. Mises discusses this extensively in the cited section above. This is why he uses the words “for the most part”. I have found Mises to be very skillful and particular with his use of words.”

I never said they could, and how could you possibly think I was. It is painfully obvious that I am not trying to say externalities don’t exist. I literally stated, verbatin, dozens of time, “production for external economies happens”.

Your solution to this “problem” is to make it so when anyone writes a melody, no one else is able to sing that melody.

“See my response above where I given the analogy to photographing and trespass. Why is one OK and the other not? There must be a meaningful distinction between the two.”

Yeah, there is. Trespassing is using, photographing is not. It is ridiculous to suggest that photographing land is using that land.

“Singing a melody is not a prohibited use of the songwriter’s property rights, even if you acknowledge they exist.”

It is in existing copyright legislature. A woman was forbidden from singing a song on American Idol. And, as the question always is, why not? Why can a person copy a song in his brain and replay it with his vocal chords, but not do the same with a tape recorder and speaker?

“This is complete non sequitur. I drew the connection between producing for external economies and slavery.”

And what a ridiculous connection to draw. As I already said, apparently when I wear deodorant I am a slave to everyone that benefits from me wearing it and not paying me. I am a slave to all my friends for being nice to them and not getting paid for it.

“I said that the public ownership of the means of production (and the product thereby produced) is equivalent to socialism.”

Which is pointless to say because I never, ever advocated public ownership of anything and your way to claim I did involves the ridiculous assertion that copying a novel in plain view involves taking making ownership claims over the original copy.

“I realize you do not think of yourself as either an advocate for slavery or socialism. That is my point. Yet I am asserting that the inconsistency in your arguments for IP in relationship to the other principles you seem to hold, leads inevitably to these conclusion, if your arguments are followed to their logical conclusions.”

I’m sure you don’t think I am a socialist, but it is absurd to claim I am, inadvertently as it may be, advocating socialism. I don’t need to say IP is wrong to say that rejecting IP is not socialism. Give me a break. IP requires a central body to grant patents and establish what can be copyrighted and not. That is closer to socialism than no IP.

“I have challenged Kinsella, Surda and now you, to explain how this is incorrect. I have provided a well established framework by the namesake of this site as the basis for my position. If you disagree with me, then you disagree with Mises. All I am asking is for you (or anyone else) to show where that is wrong, without just saying it as a foregone conclusion. At least, take the time and effort that I have put into this response to try to take it on rationally. Or not, it’s up to you. So far Kinsella has declined, too, so you’re in good company.”

I feel like I have conclusively debunked the charge that IP abolitionism involves public ownership of anything. It was clear through your presentation of our position that you fundamentally misunderstand it, a misunderstanding born out of your tendency to flip flop between the two definitions of a creative work from its marginal unit to the abstract idea itself. There is no decree that any economic good must be free. If you refer to the marginal unit, that is never free and no one ever claims it is. If you refer to the entire category, there is no question of value for the category is not a means employed in action.

Wildberry July 23, 2011 at 3:08 pm

@sweatervest July 22, 2011 at 11:50 pm

Indeed it is a restatement of the principle of diminishing marginal utility. There is no problem of establish why creative works are a free good because no one said they are a free good. That was a response to your complaint that the IP abolitionist derives a free good from scarce means of production. I am saying they do no such thing, as the creative never become a free good it merely approaches being a free good by virtue of being in abundance.

You are nitpicking here. Refer to my comments on external economies. I am not making a claim that it is a free good because its utility diminishes with the abundance curve. I am asking who “owns” the copies, as measured by to whose income do transactions accrue. If the are not the original owner, who did not intend to give his products away for free, then the good is a “free good”. To square with AET, free goods can only be derived from non-scarce means of production. That is the dilemma with IP that you must solve and still remain consistent with AET and property theory.

“OK, I think I understand what you mean. You are granting the assumption that the original, and any copy that is ever made, must by definition have been derived from the original. We are establishing that as an assumption upon which we agree.”

Well I will agree with that but my point was about what one means by the creative work, not whether one copy is derived from another.

“What you said was “physical medium”. What you meant, apparently was “tangible object called ‘novel’, right? And you are conceding, for the purpose of this discussion, that all copies that will ever exist, originate from the original novel. OK?”

Wait, how does my argument about the meaning of “novel” have anything to do with where copies originate? I never said anything about where they originate. Perhaps I’m making this too complicated, for it is a simple point: novel either means this copy of the novel right here, or it means all conceivable copies. I’m not making or relying on any claims concerning their origin.

How can we talk about property rights in the novel if you do not agree, at least argumentum, that copies are derived from an original. If not, how can they be called copies. I am asking you to make this assumption so we can dispense with arguing over whether any of the copies are not derived from the original. We can assume that. I thought you agreed. If not, what is a copy?

“This puts you at odds with Kinsella, Surda and others who have claimed that when the author disclosed a novel, he must transfer the title entirely, and retains no title to any part of it.”

It seems to me that the common point we see is that there is no title to be transfered at all. When the novel is in plain view, I can see it and make a copy of it.

You are confusing issues here. When I sell you a copy of my novel, it is also in plain view. That is not the necessary condition. You are smuggling the contracts issue in at this point. Your assumption is that the person who views it does so legally. I agree. What we do not agree on is whether the “viewer” is making a copy or not.

I say not. There is no problem with reading a book, whether you bought it, borrowed it or pick it up abandoned from a bench. Reading is not the use called “copying”. It is only when the reader makes an exact copy indistinguishable from the original that copying has taken place, and that we can say that the reader has made a copy. After making a copy, a new tangible copy of the novel now exists.

This turns a piece of my property into a copy of the novel. This is not a transfer of any property what-so-ever. The author and I never interacted, directly or through our property. When you disclose the novel other people are capable of making copies of it without trespassing on any property. You seem to be suggesting that the author is “forced” to disclose something entirely by putting it in plain view. There is no forcing. That’s like saying when you walk around in public you are “forced” to disclose your image entirely because people can take your picture.

This is where you make an error in your logic. You cannot turn a piece of your property into a copy of the novel without an original to copy from. Do you dispute this?

Do you dispute that both reading and copying are uses of the novel?

Do you dispute that one use of someone’s property may be permissible, while others are not?

Do you dispute that the rules governing those allowed and prohibited uses are a function of property rules?

Like my analysis of your car/wrench analogy, you have to be honest about what is possible in reality. The truth of nature is that you cannot make a copy of a car with a wrench, so your theory of property rules cannot make such an assumption and still be valid.

“This is what permits them to claim that if someone uses their own medium to make a copy that copy belongs to the copier, not the author. You seem to still be on the fence with this, and want to have it both ways. I think you claim that the original copier has done something wrong, but subsequent copiers haven’t, because they have no contract with the author. Is that correct?”

Well, yes, but how am I on the fence and how do I want it both ways?

You are assuming that reading a book, and subsequently making an exact copy from memory is not copying. First, it is impossible, at least when talking about a novel of some length. Second, why would it matter? A copy of a novel is still a copy, and is the same use as copying directly with a Xerox machine. A copy is a copy.

It is not reading that creates the copy in the reader’s mind. That is a trick of logic. It is the fixation of the novel on new medium. The fact that that new medium starts out as the reader’s paper and ink is really irrelevant. You must insist it is the only relevant thing to avoid the reality that a copy was made, and such a route to the copy somehow changes the reality of the situation. It does not.

I have stated that the original copier may have breached a contract by copying, and like any contract breach he can be punished for that. The contract may state that any of B’s property that becomes unauthorized copies may become the property of A, the author. But if C uses B’s unauthorized copy to make a copy out of C’s property then the contract does not state anything about this copy, and no enforceable contract could because A and B cannot contract with C’s property.

You are stuck here, as Kid Salami has already pointed out to you. You do not grasp the difference between the operation of contracts and the operation of property rules.

As another way to illustrate the point, try to state a theory of trespass that only relies on contracts. It cannot be done unless you assume that you can negotiate a contract with every potential trespasser in the world before they trespass. With each new baby born, you would have to negotiate a new contract. Is that your theory of property rights?

“This position has now been modified by Kinsella in the “easement/servitude” discussion so that now something called “co-ownership” is allowed. Kid Salami is doing a great job of tracking this development, and I will defer to him on this subject, which you and he have been discussing.”

I’ll have to wait to see what Kid Salami thinks but I think I have identified why the easement/servitude discussion will not shed light on the IP discussion. The fundamental difference between the two is that easements and servitudes concern marginal units of property, i.e. this particular piece of land, while IP concerns entire classes of property, i.e. every conceivable copy of a novel. I maintain that easements and servitudes are only justifiable when they can be established with contracts, but in the case of IP it is much more clearly outside the scope of any contract to create IP, and it must rather (as you seem to agree) become a problem of what property rights themselves are, not what things can be done with the property rights that one has.

With all due respect, and I think you are conducting yourself here very respectably, you do not get this idea. It is not surprising, because it is a rather esoteric concept of property. It is a theory of property rights which states that property interests can be created by contract, and forever after operate as a property interest, not a contract obligation. That, in essence is the doctrine of easements. Kid has been trying to explain this to you. You are going to have to look into it or you will always be stuck here within your misunderstanding of the doctrine of easements.

“It seems you agree that co-ownership is possible, yet deny that this can operate as an “easement”, but only as a contract. Again, this puts you at odds with the boys.”

because the only kind of ownership is total ownership and only contracts can conditionally redistribute rights to use, and thus any easement that cannot be established by contract is a violation by the enforcer of the easement.

Do you dispute that a “total owner” of land can retain the land, but sell the mineral rights? What kind of ownership is that; it must be less than “total”?

“You seem to be contradicting yourself here. We have agreed that the novel is a tangible object, composed of an expression and media, both of which are tangible. We have also agreed that the “class” of “copies” are all derived from the original object.”

Well, see, I think you’re flip flopping between those two definitions. If you have only ever meant by “novel” this particular copy of the novel right here and now then all of your arguments in favor of IP are nullified by the simple fact that this novel is not the same as that novel. I think you mention something about this later so I will continue this momentarily.

This novel is the same as that copy precisely because it is an exact copy. However, it is also true that now, after copying, there are twice as many pieces of paper. Are they the same or different, and how do you justify your answer. This is rather critical.

If you say they are different, you mean that it is the paper that is the necessary condition for a copy. If you say they are the same, then the “expression” is the necessary condition. The expression may be intangible in is fundamental nature, but that is irrelevant. We only need pay attention to it when it is fixed upon some media that makes it understandable, precisely because it is now tangible. This is what I mean when I say that the expression and the medium are both tangible.

“I believe we have cleared this up now. You agree that the novel and all copies are identical and derived from the original. All of these objects, the original and all copies, are tangible objects. Correct?”

Well I’m still confused as to how you think I was making a statement of where any copies originate or derive from. I agree with you that they derive from the original though, for what it’s worth.

OK. Don’t lose sight of this later. We are assuming that all copies are exact copies of the original novel. We are not going to smuggle in any other assumptions about that.

“OK, this confirms our understanding and agreement. We can ignore what you call the problem at hand, because you agree that for the purpose of this discussion, “this” novel and “every” copy are equivalent, except for the medium (i.e. they are distinct objects but identical and all copies are derived from the original). Right?”

No, certainly not! “This” novel is definitely not the same thing as “every” novel. Those are two different concepts. They are not the same thing. This wheel right here and that wheel right there are both wheels, but they are different goods. This novel is not the same as that novel. I think I understand what you are trying to say: these two different things are instances of the same category. They both belong to the class of all copies of this novel. They are the “same” novel in the sense that they both belong to this same class. But they are still distinct instances of that class. They are different goods, different means to be used in action.

Yes, copies are all part of the class of “original + copies”. All copies are exact duplicates, which must mean two physical objects. Physical objects are what operate within property rights. OK?

But then you seem to misunderstand what is meant by “means” when you say:

They are different goods, different means to be used in action.

We are talking about means of production. A car factory is the means of producing cars. The original novel is the means of producing all copies. That is what I am trying to establish with you.

You must be very clear about what this means in relation to “means of production”, “products” and “economic goods” v. “free goods”. This is right out of Mises and AET. If you are not clear on these distinctions, you cannot properly analyze what is meant by “private ownership of the means of production”.

“Yet utility also means “use”. A novel is used to read. The original and the last copy have equal utility in this sense, while the unit price of the first and last might be different.”

You seem to be confusing the fact that the law of diminshing marginal utility concerns interchangable units of a good and that it’s not this particular unit that is worth less than that particular unit, but the n+1th unit that is worth less than the nth unit. Either way, it is true of all goods that as their supply increases, then with everything else held constant the per-unit price decreases.

This is what I understood you to mean, and I agree.

“The question at hand is the following: As you follow the abundance curve to infinity, imagine that each copy is sold for a price, even though the price, as you correctly point out, may not be equal for each transaction. The economic question, and therefore the property question, implies a principle of private property. If the author “owns” each copy, then each transaction is “his” income.”

But he doesn’t. He does not own unauthorized copies made by third parties. How could he?

Well, this is the central question. How could he? What we can say at this point is that if no one can receive the income from the sale of any copy, then the author owns what is being copied. If someone else receives the income (say from the sale of a copy), then he doesn’t. You cannot say that the author owns something, but does not benefit from its sales. That is a contradiction. If a person produces a product from his own private means, and yet does not receive the benefit of the income from its sale, he is producing for an external economy. Is that clear? That is what I said in the next quote.

“If he does not own each copy, then the income is not “his” and therefore at some point and to some degree, he has produced a novel for an external economy. To the extent the income is not “his”, he is producing for an external economy.”

Yes, he is producing for an external economy just like advertisers. But just like advertisers, it’s not the particular advertisement that is the source of value and the thing being financed, it is the ability to make good ads. It is the talent, the creativity. And as you seem to agree, that is always scarce and no one can copy a person’s creativity.

I can’t follow this at all. If a person’s creativity is his own private means of creation, and he uses resources that are not owned by anyone else, then why wouldn’t he own the products of those means? That is the fundamental doctrine of private property that is consistent with AET, and libertarianism. Yet you want to violate that doctrine for reasons that cannot and have not been squared up with those principles.

“How we define that extent depends upon a theory of property.”

Indeed.

OK, then what is the theory of property that reaches this conclusion that doesn’t otherwise conflict with that very theory; i.e. the products of the private means of production DO NOT remain the private property of the producer? That is the central issue that has never been explained, by Kinsella or anyone else.

“In order to say where that point is and why it exists, you must square the theory of marginal utility with a property rights theory, and that theory must operate according to principles of catallactics which are part of a coherent theory of economics.”

Well, how about this: marginal utility is squared with a marginal property theory. Just how value applies only to the marginal unit, property titles also extend over the marginal unit. That means there are no property claims that can extend to every conceivable copy of a creative work, they can only extend over a marginal unit, that is a certain definite set of copies. No ownership claim can be made over unauthorized copies in general.

Perhaps there is something meaningful here, but I don’t see it. What is a “marginal property theory”. When I produce cans of soup, I don’t lose my claim of ownership after production a certain number. Even if I produce to market saturation, such that the marginal unit has no value/price, I still own them. I know that because I still own the means of producing them; the soup factory.

“Here, we are assuming a private property framework called “libertarianism” and an economic framework called AET. So our issue here is to square things up.”

Just like there is never a question of the value of a good per se, but only this unit of a good right here and now, there is also never a question of the ownership of a good per se, but only this unit of a good right here and now.

Sorry, I don’t catch your meaning. All economic goods are owned by someone. The way to determine who “this” good belongs to you start with who has it, and follow any transactions for acquiring it right back to the means of producing it. We always know that the owner of the means owns the product, and so any subsequent legal ownership must be based on a legal transaction to possess it.

“Good. Apply this agreement to the marginal utility as discussed above and we’re in business.”

Wait what would that do? How does that concern the situation when someone other than the author makes a copy?

Because an original is a necessary means of producing the copy. So if you have a copy, what use did you make of the means? What that use allowed or prohibited by a rule of property rights? It leads you back to the central question of property rules.

“Of course! We are debating whether an author who indisputably owns his own novel and any copies that he creates himself, looses that ownership by disclosing it to parties with whom he has no contract.”

What a convenient way to word that! Why, there is no loss of ownership where there is no ownership to begin with. So we are not debating whether or not an author loses something, which you seem to be very confused about. An author is not “forced” to disclose anything any more than you are “forced” to disclose your image by walking around in public. We are debating whether or not the author can claim such ownership at all, not whether or not he loses it.

Sweatervest, you cannot lose ownership unless you have it first. If a novel is an economic good, and the author makes 100 copies of it himself, then he owns 101 copies of this novel. It is true that he is not “forced” to disclose it, but he cannot sell it unless he does. And if he does, he also releases the means of reproduction. So by claiming that his disclosure is voluntary, you are simply saying that no one has placed the noose around his neck, he did that himself.

An economic good that cannot enter the market is not an economic good. That is one way to solve the ownership problem; don’t disclose it, don’t introduce it into the market, and he can keep his property without dispute. But as soon as he introduces it into the market, he loosed control of his property. That is the central dilemma. There is no way around it.

You seem to be using very vague metaphors to conclude that I am claiming ownership over your copy of your novel when you put it in plain view of me and I start copying it with my property onto my property. That’s seriously a claim of ownership? And you forbidding me from using my pen and paper in such a fashion would not be a claim of ownership itself? I.e. is it not the author who is making wild claims of ownership over everyone’s property, not everyone making wild claims of ownership over the author’s property?

It is not vague. If you “start copying it”, you are using it, and use is the excusive right of the owner. You have to show how you acquired that right of use. The author did not consent to it. You are assuming that he can’t stop you. That is because you are assuming he has not ownership rights to it. You claim you do. How did you gain those rights? How is your answer consistent with any principle of property rights that is not uniquely created to exclude the novel? Property rights do not operate one way with one good, and then contradict that same principle with another good. The good is irrelevant.

“If he does, then those copies must fall within a theory of property rights. If he does not, then he is left with a choice of either a) nondisclosure/contract or b) disclosure as a free good. Neither option acknowledges a property interest in the novel that can operate outside the context of a contract.”

I’m not sure what “acknowledgement of a property interest” could mean. Property interest? And what do you mean by operate outside the context of a contract?

I can’t explain this to you with any more clarity than I already have. You have to try to understand the difference between property and contracts. Property operates outside the framework of contracts. Property rights do not require privity of contract.

“This is a unique principle of property that appears to be applied by IP opponents only to the realm of IP, and in no other aspect of tangible property rights. They seem to grant an exception to the fundamental principle of libertarian property rights, which states that all economic goods are derived from scarce means of production, and that those means are privately owned.”

No there is no exception. All economic goods are not derived from scarce means of production, they can also be provided by nature and in fact must ultimately be, for the scarce means of production are also goods and must come from somewhere.

Yes, natural resources are scarce. What is the means of production for a novel? Isn’t it the novelist? Isn’t he the means? Doesn’t the novelist own those means? Aren’t those means a natural resource?

There is no exception to the claim that all means of production should be privately owned. You are misunderstanding the IP abolitionist by claiming he wants public ownership of anything. I think I have sufficiently explained this already. You are really stretching the concept of “force” and “transfer” to conclude that a novel becomes a free public good because it is in plain view and people can use their property to make copies of it.

You have not explained how this can be true and yet not a real “copy”. Somehow you think that this process of copying does not create a copy. I don’t think you can really explain that.

That is an absurd claim. As I have argued by “novel” you either mean a particular copy or the class of all copies. If you are using the first definition, then you are claiming that the original copy becomes a free good because people can make copies but that is plainly not true. That one copy remains that one copy and it remains completely the property of the author. If you mean the second definition then you are dealing with something that is not a good at all and has no value because it is not the means used in any action.

This is confused. Check you meaning of “means”.

“Those goods are the private property of the producer from private means.”

There is no quarrel here. There is no exception to private ownership of all property. There is nothing in IP abolitionism about collective ownership of anything.

Yet you claim there is a way to have a copy without using the author’s means. Yet no copy can exist that does not depend on an original as a means of making a copy. Isn’t the contradiction obvious here?

“You have not argued that point yet. You have merely stated your conclusion. You don’t state how that conclusion squares with the rest of the principles you hold to be true. Don’t feel bad, though, because Kinsella, Surda, and the rest of the IP opponents here haven’t done it either.”

No, I have. Maybe you have found an error in my argument but that is not the same as me not presenting an argument. My argument for why copying is not unjustifiable is because one copies by modifying one’s own property, and if one gets ahold of a copy and is able to transform his own property into a copy then it does not cease to be his property. That has always been my argument. I own my computer, tape recorder and vocal chords. That has been my central claim from the get-go.

The argument I’m referring to is how and why you say “and if one gets ahold of a copy and is able to transform his own property into a copy then it does not cease to be his property.”

You are referring to the paper, owned by the copier, as being the reason the copy is the copier’s property. This contradicts with the entire earlier agreement that the novel and all copies are part of the same set of goods, which are all derived from a common means, and that these means are owned by the author. You are contradicting yourself.

“You, like others, have simply tried to link the statements “ideas are free” and “IP cannot be owned”,”

I never said ideas are free!! I said ideas are non-rivalrous/non-scarce and thus not subject to property rights. This is not saying they are “free”. Now I am saying ideas are not means at all. They are not the things employed in action. They are what guide the ways things are employed in action. The things that can be owned are the things for which there exists conflict of use. So I begin perhaps with “ideas cannot be owned”. But I also use other things to conclude that IP is unjustifiable, particularly that ownership can never extend over an entire class of goods.

Sorry, perhaps you missed the fact that I use “ideas are free” to summarize the anti-IP argument that because ideas ARE free, then IP cannot be owned. It is an argument based on equivocation.

Yet I agree that ideas are not the means being examined here. The author is the means of producing the novel, which is the means for producing all copies of it. Certainly you would agree that the author is a scarce resource in every sense implied by the homesteading principle.

“and ignore the economic problems of property rights that this conclusion creates. Mises, in his succinct style, has summed up this dilemma in two paragraphs.”

Well we don’t actually say ideas are free or that any creative good is or should be free. Perhaps this is the big misunderstanding. The “economic problems” you speak of is the “problem” of things being produced into abundance until their marginal utility is nearly zero. That’s only a problem for someone who wants to continue producing something that already exists in abundance and get paid for it. From the perspective of a consumer it is hardly a problem that goods exist in such abundance they are nearly free.

See my “soup” example. Abundance in relation to demand has no relevance to property rights. I may write a novel that not a single person demands, yet I still own it.

I submit that creative works already exist in abundance. If you spent the rest of your life, every waking second, reading books, watching shows/movies, or listening to music, you couldn’t put a dent in any one of those. I’ll bet there are enough of each of those things that you could spend the rest of your life consuming not only any of those things but good quality books/shows/movies/songs, all of which you love. In a world like that does anyone need to be paid any more money to continue making more of those things? People always see “we need new novels, plays, music, etc”. Don’t get me wrong, I love the idea of those things, but seriously, there are already enough novels, plays and music that you could never hope to view anywhere close to a significant chunk of them. Same with video games. There are enough video games in the world I could easily play 10 new ones a day for the rest of my life.

I know what you’re thinking: that abundance exist because of IP. But that cannot be true, because IP is a scheme to prevent the abundance of creative works. This abundance must exist despite IP.

These two paragraphs reveal your ideology, not a logical conclusion.

Before you get insulted, let me explain. You are attached to the ideas that you describe here, but you cannot reach these conclusions by following this discussion and the principles that you also hold along the way.

There is nothing wrong with this. It is a philosophical dilemma. It is what makes life interesting.

However, an ideologue is someone who ignores the truth in order to hold onto the conclusion they are attached to, because the “know” it is right. I am not saying you are an ideologue, I am saying you are faced with an ideological dilemma. This dilemma is the only reason why I can stay interested in this debate. It is interesting to try to discover exactly where the paths to different conclusions diverge.

Your conclusion is; “IP is a scheme to prevent the abundance of creative works. This abundance must exist despite IP.”

I do not think you can reach this conclusion by being consistent with the fundamental principles that precede this conclusion.

What we can say is that abundance exists, and IP exists.

What we can’t say is whether that abundance would exist without IP. What we also cannot say is that IP has prevented some abundance but what we have somehow “sneaked past” the limiting effects of IP.

If we agree on the framework of AET to try to understand how the economy operates, then we can logically reason what factors would weigh on the outcomes of abundance, shortage, etc. That is what this discussion is really about.

“Kinsella has built his anti-IP career around a justification for choosing option A (ideas are free because their serviceability is inexhaustible) and ignoring option B (without securing private property rights, producers produce for external economies).”

Wildberry, no one is ignoring that they produce for external economies haha. Perhaps Austrians just don’t spend too much time rehashing the refutation of public goods theories when a general refutation already exists. Hoppe’s first chapter in “Economics and Ethics of Private Property” is all about external economies.

OK. Let’s agree that they are. Authors produce for external economies when they cannot secure the economic benefits of their production. What impact do you think this might have on the calculation of that same author with respect to the allocation of his scarce resources? There is no way to skip over this question.

“This is a dilemma, not an either or decision. As Mises points out eloquently, either option has its own set of problems. It is, not surprising, an economic argument consistent with the entire body of his work in AET.”

But Mises’ comments on IP involved his monopoly price theory which contradicted the rest of his praxeological arguments, a correction Rothbard made. You seem to be assuming that Mises’ entire system of AET as expressed in Human Action is entirely self-consistent. I don’t think it managed to be *that* well crafted. That would be a hell of a lot to ask of the guy who established economics as praxeology! To get it all right in the first attempt!?

In HA Mises makes an important distinction between monopoly pricing and monopoly of the means of production, i.e. private property. He warned about confusion concerning the two connotations of that concept.

Rothbard’s “refinement” as I understand it, was to show that monopoly pricing was a near impossibility, where Mises seemed to allow that it was possible.

But this discussion has to do with the second connotation; the monopoly of private ownership of the means of production. If you follow his discussion of that section, you will see that his treatment of IP was what he called an “extreme example” of the earlier point he made regarding external costs being distinguishable from external economies.

Therefore, your objection about monopoly pricing has no relevance. Likewise, the assertion that IP creates artificial pricing monopoly is false. IP creates property monopoly, which any and all property rights create.

“Therefore, IMHO, it warrants a more respectful treatment than “Mises was wrong”, or “Rothbard was wrong” about the relationship between IP (or copyrights specificly) and property rights.”

What is disrespectful about saying someone was wrong!? I can imagine Rothbard being here right now urging people to not take that attitude towards his writings. One of the many many things Rothbard *did* get right was the fallacy of great thinkers.

It is disrespectful not to show exactly WHY it is wrong. I think you would agree that whatever Mises writes, especially in his opus, is pretty well thought out. It is dismissive to just say he is wrong about something without putting considerable effort to reveal the error. You have not done that.

“I agree. You have conceded it is unnecessary to prove that the original and copies are identical.”

Not that it would be unnecessary, just that we need to concern ourselves here with the forensic process. We are only concerned with what facts warrant punishment, not how to get all the facts.

Yes. We could dispute, given a certain set of facts, that something is actually a copy. But we have no need to include that now. We are assuming that for any copy, an original exists and is the means of making that copy.

“Again, you said “physical medium”, but we agree now. To restate the assumption, the economic good (novel) is the utility of the novel, despite the medium upon which it is fixed.”

Wait, so now an economic good is the utility? I suspect you mean that the economic good is the novel, independent of the medium. Likewise, that a good counts as “a wheel” and has the value of being such is independent of the material used to make the wheel. It seems as though your reasoning leads to the conclusion that if someone crafts their clay into a wheel they become the owner of any other material that is crafted into a wheel.

If an economic good has no utility, it generates no demand, and conflicts over ownership will not arise. It is the desire to avail oneself of the benefits of possession of an object that creates demand for an economic good. Here, yes, the economic good is the novel. Its utility is derived from the act of reading it. That is what creates demand for it.

But demand can be created for free goods, i.e. goods which do not depend upon scarce means for producing them. For example, we all use the alphabet, and I have a demand for the alphabet, but the means of producing letters are not scarce. Therefore they are a free good. There is no rivalry for the possession of letters. There is rivalry to a novel, or copies of it.

“The original and the copies have the same utility (although not necessarily the same “price”).”

Again, you are confusing that the law of diminishing utility concerns interchangeable units. You can interchange the original and the copy, it doesn’t matter which one is ordered 1st and which 2nd. But the 2nd one (the one used last) has less utility than the 1st one.

This is true, but misses the point. You are talking about the relationship between supply and demand as it affects pricing. I am talking about the use of an economic good. In the case of a novel that use is “reading”. That is its utility, to convey something useful from the act of reading it.

“Yes, this is the point of departure. You claim that unauthorized copying can operate as a covenant (through contracts) but not as a property right.”

By claiming they are a property right you are claiming that an action can establish ownership over and entire class of goods which is absurd. You are saying when you craft a wheel you can confiscate any other material that is crafted into a wheel. Of course there is no such property right.

Is it? If I own a soup factory, is it absurd for me to claim ownership no only of the cans of soup I have already produced, but for any cans that I produce from my own private means, the soup factory? If I own the factory, then I own any and all soup produced from those means. That is all I am saying.

I am also going to remind you that you cannot take a can of soup, and “copy it”. You need a soup factory to do that. You do not acquire the means of copying the soup by acquiring a can of soup. You DO acquire the means of copying my novel if you acquire any identical copy of the original. This is a key distinction.

“If I grant your assumption, that only non-disclosure or contracts are available as a device to prevent copying, then I agree with you, any copier that finds himself not bound by a contract is merely copying a “free good”, owned by no one except those who own the medium upon which it is fixed.”

Really? I thought you held the position that copyrights are property rights, not the result of contracts.

Please read more carefully. I said “IF”. I reject that these are the only two legitimate options. I hold that property rights may be legitimately secured in the products of the authors’ s private means of production, and that those property rights can operate by the mechanism of easement, which is a property function. No government role comes up for this to be legitimate under principles which are wholly consistent with the libertarian framework of property rights.

“Putting your creative work in a position where other people can justifiably use their property to copy it is not “giving it away” or transfering the entire title or anything. It is just people using their property.”

Exactly.

These are your words not mine, so I am not surprised you agree with yourself. I object to your use of “justifiably”. It is not justifiable at all, and you have not shown why is should be. You insist it is a not a free good, yet you claim that copying it is justifiable. How do you reach that conclusion?

Look, I can’t spend any more time on this right now, and there are several pages left if I was going to make it to the end. I need to stop here. Perhaps I can get to the rest another time, but I think I have give you enough of a response to ponder on.

Well done. Thank you for dumping all the posturing. I will maintain this tone if you will.

Respectfully,

Peter Surda July 25, 2011 at 5:09 am

Wildberry,

I am asking who “owns” the copies, as measured by to whose income do transactions accrue.

A very unique method of “measuring ownership” indeed. Care to quote some references? Other than Marx, if you would be so kind.

If the are not the original owner, who did not intend to give his products away for free, then the good is a “free good”.

It is not a free good, because it requires ownership of the material the copy consists of, and an action that alters the material to become a copy.

Reading is not the use called “copying”. It is only when the reader makes an exact copy indistinguishable from the original that copying has taken place, and that we can say that the reader has made a copy.

If someone makes a copy that is indistinguishable from the original, how do you then know that it exists? By definition, it’s indistinguishable. Could it be that you are using vague terms again?

You cannot turn a piece of your property into a copy of the novel without an original to copy from.

You are missing a verb in your claim, which underscores the smoke and mirrors. Without an original what? Existing? Knowing about? Altering? We’re back to the start now.

Do you dispute that one use of someone’s property may be permissible, while others are not?

Isn’t it true that you are actually basing your argument on this assumption, but fail to explain how to distinguish between the two? Reading does not require permission, but writing down what you read does? Really?

A copy is a copy.

So, what is a copy and why is it relevant from the point of view of property rights?

If you “start copying it”, you are using it, and use is the excusive right of the owner.

Didn’t you just above say that some “uses” are permissible but others are not? How do you distinguish between the two then?

This contradicts with the entire earlier agreement that the novel and all copies are part of the same set of goods, which are all derived from a common means, and that these means are owned by the author.

What does “derived from a common means” mean, how do you distinguish it from causality or externalities which you do not consider to be a justification for a property rights claim?

It is a philosophical dilemma.

No, it’s not. It’s you making logically invalid and/or incoherent claims.

Authors produce for external economies when they cannot secure the economic benefits of their production.

The first part is valid with or without IP. The second part of the sentence is redundant.

If I own the factory, then I own any and all soup produced from those means.

You are making an equivocation by substituting causality for physical matter, i.e. you are using “produced from those means” in two different meanings.

Boooooriiiiiiing.

Peter Surda July 25, 2011 at 8:36 am

Wildberry,

This puts you at odds with Kinsella, Surda and others who have claimed that when the author disclosed a novel, he must transfer the title entirely, and retains no title to any part of it.

This interpretation is erroneous and I already pointed it out several times. Repeating an erroneous claim does not make it true, it makes it boring.

I have challenged Kinsella, Surda and now you, to explain how this is incorrect.

And I have several times responded that it’s incorrect because externalities are omnipresent and not a valid justification for a specific property rights system, and you have not successfully explained why IP should be an exception.

You know, in case you actually have a problem with attention span or memory (as opposed to intentionally avoiding confrontation), I’m sure there is medicine that can help.

Wildberry July 25, 2011 at 10:26 am

Peter,

What are you doing and why are you doing it?

I am taking about making bread, selling it, and collecting the money myself (internal economy) versus having the money from my bread going to someone else(external economy).

You are talking about the fact that someone can smell my bread means I can’t collect money from the sale because I can’t stop someone from smelling my bread. What is that?

Mises (not Marx) is the explanation I am pointing to. You dont’ grasp the concepts of external costs/benefits v. external economies. Too bad. That makes your posts utter nonesense.

Peter Surda July 25, 2011 at 11:39 am

Wildberry,

What are you doing and why are you doing it?

I am trying to get you to present a coherent version of your theory. So far, I have not been successful. What are you doing then, besides attempting to obfuscate everything by smoke and mirrors?

I am taking about making bread, selling it, and collecting the money myself (internal economy) versus having the money from my bread going to someone else(external economy).

The beneficial effects of the bread reach far beyond the act of selling individual loaves by the baker, just like the beneficial effects of a work of art or an invention reach far beyond the act of selling individual units sold by the creator. Why is it then that in the former case, you see no justification for the baker to be able to claim those benefits beyond the scope of the sale and contracts he engages in, but in the case of the inventor or creator, you do?

You are talking about the fact that someone can smell my bread means I can’t collect money from the sale because I can’t stop someone from smelling my bread. What is that?

My my my, aren’t you creating tons of new erroneous analogies? Isn’t it true that without the agrarian sector, there would be no industry, services or the information sector? Isn’t it also true that the absence of IP does not prevent you from selling your “creations” after disclosure, but rather than the market price might be lower? Isn’t it also true that the lowering of price is in general considered beneficial by pro-market economists? Why then such derision? Afraid of the competition?

Mises (not Marx) is the explanation I am pointing to.

And does not Mises, in fact, reject the claim that the existence of externalities is a valid reason that there is something “wrong”?

You dont’ grasp the concepts of external costs/benefits v. external economies.

Pray tell, what specifically do I not grasp?

That makes your posts utter nonesense.

Isn’t it true that you try at all costs to answer anything of importance and that you try to avoid clarifying the vagueness in your claims?

Kid Salami July 23, 2011 at 12:43 pm

I’ll have to wait to see what Kid Salami thinks but I think I have identified why the easement/servitude discussion will not shed light on the IP discussion. The fundamental difference between the two is that easements and servitudes concern marginal units of property, i.e. this particular piece of land, while IP concerns entire classes of property, i.e. every conceivable copy of a novel. I maintain that easements and servitudes are only justifiable when they can be established with contracts, but in the case of IP it is much more clearly outside the scope of any contract to create IP, and it must rather (as you seem to agree) become a problem of what property rights themselves are, not what things can be done with the property rights that one has.

Well sweatervest, thanks for confirming your “flailing around” status to anyone bored enough to be reading these exchanges.

You didn’t answer my very clear question above

http://blog.mises.org/17750/without-ip-would-there-be-a-world-of-clones/#comment-794411

because you’ve been completely winging it and have found yourself in a corner from which you can’t escape – you now have to admit that some of your earlier statements were simply false or say that easements are illegitimate in ancap heaven, neither of which you want to do.

So instead you slide in this “rebuttal” by imagining and then writing down some argument you wished i were making then refuting it. My reasons for this line of questioning have nothing to do with all that nonsense.

Perhaps it does. I am not very familiar with easements and maybe the boys can get me on their side (they are often convincing to me), but I fail to see how easements can be an issue of anything other than contracting, because the only kind of ownership is total ownership and only contracts can conditionally redistribute rights to use, and thus any easement that cannot be established by contract is a violation by the enforcer of the easement.

You’ve been arguing about this for three weeks at least and now you slip in “I am not very familiar with easements”. Next time you might want to do a bit more homework before saying 10+ times how you’ve already “explained” the answer to me.

Wildberry July 23, 2011 at 3:13 pm

Kid Salami,

I envy your talent for succinct pithiness. I can’t seem to get my thoughts into less than a tome.

Even I, I’m afraid, have reached the point of saturation. See you down the road.

Kid Salami July 23, 2011 at 3:54 pm

It’s more laziness really. I can’t really be bothered right now either. It’s nuts really – Kinsella’s writing is generally very good, but there is just a step at the end where he overreaches and I think this is now one giant mess.

If you want some “snacks for thought”, as Tony Soprano might say, go through the logic of how “lateral and subjacent support” would work in ancap heaven (I’ll give you a clue, it doesn’t).

Wildberry July 28, 2011 at 1:01 pm

Kid,
I just came accross this article on David Friedman’s blog. Check it out.

http://www.daviddfriedman.com/Academic/Property/Property.html

Kid Salami August 2, 2011 at 3:23 am

Did you arrive at that via a link on one of the other threads on here last week to a thread on Friedman’s blog about Rothbard? I did that, and I’d already read that article over the weekend – the invisible communication he talks about is a great point. In changing the mechanism of interaction between the elements in a complex system, even in a small way, it is often simply impossible to anticipate the effect it will have on these communication lines and thereby on the system as a whole. Luckily for Kinsella, he “doesn’t care” whether his version of ancap “works” or not so he’s in the clear here.

He also has a section on his site with some of his lectures/talks on, I listened to a couple over the weekend on a car journey (luckily, I was alone in the car) – he’s very good, his arguments are, well, arguments (as opposed to assertions).

Peter Surda August 2, 2011 at 4:04 am

Kid Salami,

I’m wondering, do you think that a logically contradictory theory can “work”? Because if not, then why do you keep defending people that propose them? Could it be that arguing logically correctly is boring you and you want to make the debate more lively?

Kid Salami August 2, 2011 at 5:14 am

Friedman is an anarchocapitalist and advocates for the abolition of patents and copyrights. I think all the arguments he puts forward for this position are good ones. I don’t think all the arguments you and kinsella put forward for ancap and the abolition of p/c are good ones, only some of them. I’m not sure which logically contradictory position you say I’m defending.

Peter Surda August 2, 2011 at 6:01 am

Kid Salami,

I’m not sure which logically contradictory position you say I’m defending.

I was not talking about Friedman, I was talking about you taking sides with Wildberry. I did not actually claim that you are defending a logically contradictory position, I just don’t understand why Friedman’s arguments vindicate Wildberry. Merely because some people arrive at similar conclusions does not mean that if one of them provides logically correct argumentation, so does the other one.

I don’t think all the arguments you and kinsella put forward for ancap and the abolition of p/c are good ones, only some of them.

Well, I try to separate positive and normative statements. On the positive level, I do not “advocate” anything, just demand that people present logically coherent arguments. While it is possible to combine a logically coherent argument with empiricism (like Friedman, presumably (since I have not read the link you provide, but am in general familiar with his approach), does), that is not what the IP proponents here (e.g. Wildberry) are doing.

If your point is merely that there are other approaches, which can lead to rejection or affirmation of IP, I agree. But this does not mean that people can make logically fallacious arguments, and randomly jump between approaches and claim that they mutually prove each other. Wildberry has failed to provide a coherent formulation of his argument within the period of eight months. Why are you taking him seriously?

By the way, I asked you about two weeks ago what your actual problem with my position is, but you have not answered it.

Kid Salami August 2, 2011 at 7:18 am

“I was talking about you taking sides with Wildberry.”

You can call it taking sides if you want. I think the hardline NAP-based position you and Kinsella and sweatervest and friends hold is untenable and, frankly, ridiculous. So does Wildberry – on this I think we agree.

I think a productive discussion is about how we can apply economic theory and existing legal principles and common law mechanisms to the IP/copyright/trademark scenario and see how it turns out – with Wildberry, I can have this discussion, even though we disagree and he would go much further than I. I think, for example, that patents should not exist. However, I also think that the consideration of transaction costs (as per Coase, Demsetz etc.) means that trademarks are entirely sensible and are consistent with other common law mechanisms and methods of communication, and don’t buy the “solution” to this that you and kinsella propose.

And as one might argue that there is not really much difference between a trademark and a copyright, I am still able to go either way on this – a good discussion would in fact be determining this line exactly. But this is impossible with you – “patterns can’t be property” or “this means you have partial ownership over everyone’s pen and paper now” or some other similar simplistic notion is the answer from you or Kinsella or whoever.

“I just don’t understand why Friedman’s arguments vindicate Wildberry.”

?? I think Friedman makes real arguments and Wildberry appears to agree with me and I was exchanging information with him about this. Is this allowed?

“demand that people present logically coherent arguments.”

I don’t think this new form of homesteading that has appeared out of the clear blue sky is logically coherent. I’m giving sweatervest a hard time, but he has correctly applied the definition of homesteading that has been in use by Kinsella and his cheerleaders all along and concluded (but won’t say it outright) that my easement example would not be valid in that framework. I agree, it’s not – which is the point with which I opened the whole discussion with in the first place, for exactly this reason. You and Kinsella have other interpretations that I don’t think make sense.

“randomly jump between approaches and claim that they mutually prove each other.”

Kinsella does this all the time. All the time.

“By the way, I asked you about two weeks ago what your actual problem with my position is, but you have not answered it.”

I know. Like I say, I don’t thnk Kinsella’s “homesteading uses” of things and “co-ownership” argument makes sense, nor do I think your implicit partial sales etc. one does either – they have fundamental logical problems. I guess I’ll get round to expanding on why at some point, but have some stuff on at the moment.

Peter Surda August 2, 2011 at 7:49 am

Kid Salami,

I think the hardline NAP-based position you and Kinsella and sweatervest and friends hold is untenable and, frankly, ridiculous. So does Wildberry – on this I think we agree.
Thinking that an argument is ridiculous is not a refutation. The question a proper debate should be addressing is whether the conclusions logically follow from the premises. Now matter how you look at it, for Wildberry’s posts this is not the case. I don’t have, per se, a problem with using a completely different set of assumptions (obviously, since I’m a falsificationist), but I insist on using logic correctly.

I also think that the consideration of transaction costs (as per Coase, Demsetz etc.) means that trademarks are entirely sensible and are consistent with other common law mechanisms and methods of communication, and don’t buy the “solution” to this that you and kinsella propose.

Can you provide any support why this is a problem and if it was, why the same problem does not occur with commodities (for example, someone trying to sell a rock while referring to it as apple)? Isn’t the real problem lying within the conduct of business, rather than the rights of the producer? Furthermore, why should it be the trademark holder, rather than the buyer, who has a claim?

But this is impossible with you – “patterns can’t be property” or “this means you have partial ownership over everyone’s pen and paper now” or some other similar simplistic notion is the answer from you or Kinsella or whoever.

Based on your previous posts, you do realise the fundamental logical problem in using two definitions of rights that should be valid simultaneously. Which one should take precedent when and why? This is a question your approach creates and requires an answer, which is nowhere to be found. Furthermore, there’s the Occam’s razor: if we have two, why not five or a million? Would that not cause the opposite of what rights are supposed to do, clarify which actions are in accordance and which in violation of them?

Is this allowed?

Of course, you can do whatever you want. But I know you as an intelligent person, so I don’t understand why are you interested in what Wildberry’s talking about.

I don’t think this new form of homesteading that has appeared out of the clear blue sky is logically coherent.

But it is possible to interpret this differently and eliminate the need for a new form of homesteading. Then there’s the problem of human action: if someone does not want to perform full homesteading, what do you do? Do you force him to homestead the good fully? Isn’t it the opposite that is logically incoherent?

I agree, it’s not – which is the point with which I opened the whole discussion with in the first place, for exactly this reason.

Why is this so important to you? I don’t care if easements are valid or not. I said right in the beginning that the whole topic only confuses rather than clarifies.

Kinsella does this all the time. All the time.

While I agree that he presents various approaches, I don’t think he’s randomly jumping between them or using them to prove each other.

Kid Salami August 2, 2011 at 8:32 am

I don;t have time now really. Nor the inclination frankly – I don’t see how the discussion can progress from here.

http://www.justice.gov.uk/lawcommission/areas/easement-covenants-and-profits-a-pendre.htm

“An easement is a right enjoyed by one landowner over the land of another. A positive easement (such as a right of way) involves a landowner going onto or making use of something in or on a neighbour’s land. A negative easement is essentially a right to receive something (such as light or support) from the land of another without obstruction or interference. Easements and covenants are of practical importance to a large number of landowners. Recent Land Registry figures suggest that at least 65% of freehold titles are subject to one or more easements and 79% are subject to one or more restrictive covenants. The rights can be fundamental to the enjoyment of property. Their effective operation is also crucial to the successful development of land for housing. ”

That’s a lot of people using easements. I could agree with this statement, they could well be “fundamental” and “crucial”, in some sense.

You “don’t care” though – people relying on easements just have the wrong “business model”, we can just throw them out?

You remind me of the engineers who step into a complex machine or a code base and start ripping things out because they seem pointless, only to find later, after hours or days or investigation into a weird problem, that they were there for a very good reason. As Wildberry said to sweatervest above, this approach (that what can’t be demonstrated only with deductive logic is ignored) is fundamentally limited and only works when arguing on blogs, it doesn;t work in the complex system which is real life.

Kid Salami August 2, 2011 at 8:59 am

And Peter we’ve had this discussion before.

http://blog.mises.org/15105/the-faults-of-fractional-reserve-banking/comment-page-1/?replytocom=746882#comment-747470

where I quoted de Soto

“The traditional, universal legal principles we dealt with in the last section in relation to the irregular deposit contract have not emerged in a vacuum, nor are they the result of a priori knowledge. The concept of law as a series of rules and institutions to which people constantly, perpetually and customarily adapt their behavior has been developed and refined”

Peter Surda August 2, 2011 at 9:10 am

Kid Salami,

That’s a lot of people using easements. I could agree with this statement, they could well be “fundamental” and “crucial”, in some sense. You “don’t care” though – people relying on easements just have the wrong “business model”, we can just throw them out?

First of all, I said that easements are an arbitrary subset of more general concepts, partially overlapping the NAP, partially not. By concentrating on the specifics of easements the whole debate is muddled.

Furthermore, I thought that your problems with NAP handling of easements is not partial sale, but partial homesteading. So the examples you brought up do not match the objection, because the land affected is already homesteaded prior to the easement.

I don’t mind seeing things as being complex. What I mind is self-contradictory theories explaining how they work.

I’m sorry but I don’t understand what you have a problem with.

Wildberry August 2, 2011 at 10:52 am

Kid Salami:

Yes, that is exactly how I found it. His take on Rothbard was interesting, and oddly I had not picked up on the relation to Milten. Figures.

Yes, I agree he argues and makes some valuable observations. Again missing the obvious, I had not really connected his position on Ancap to his arguments on property and externalities. What I like about him is what I like about Touchstone.

He has argued persuasively that much of the convergence between the ethical, legal and economic systems is for logical and common-sense reasons which do not depend upon “government grants of privilege”. Regardless of where one is on the issue of self-government, (or no government), you cannot get around the basic social context within which humans operate. Mises agrees in his arguments that man is born into a social context, and that cooperation is the corollary of division-of-labor.

This is why I have come to support the PRINCIPLE of IP; it makes sense and is consistent with a general theory of private property BEFORE you ever arrive at the issue of how those property rights are to be enforced. All enforcement of rights requires coercion regardless of the method or system employed.

Friedman’s contribution to my thinking is his way of demonstrating that cooperating humans behave in ways which are consistent with the social institutions that have evolved around those fundamental conditions of the human experience; cooperation and specialization.

This is why such rights can and have been successfully defended over time; they are fundamental to cooperation and form “Shelling points” of agreement that create strong moral imperatives.

Virginia Llorca July 23, 2011 at 4:37 pm

You are once again arguing to see your work in ink on a page. You are completely ignoring such principles as accountibility, the lack of which has resulted in the endless arguments in re this very subject in the courts of the world. It is not going to be answered. Remember the Telex? Then faxing? The 3D copier is one step away from Star Trek and beaming you up. They are beaming up solid objects. Pay attention. Put the wrench in the machine in New York and take one out of the machine in Korea. Sue the person who put it in the machine? Made the machine? Took the copy out of the machine? Sold the copies? Blah. Blah. Blah. I would once again say, “Get a hobby.” But I just realized this is your hobby. And probably the very reason I am reading it and commenting.

Wildberry July 25, 2011 at 7:23 pm

@sweatervest July 22, 2011 at 11:50 pm

Round 2

“By this I think you mean if what is being copied is a free good”

No, there is no free good in question. What would it be? The “novel” is either that copy right there or all copies. That copy right there remains the property of the author. The class of all copies is not an economic good and has no value (that does not mean it is is free, it means value is meaningless with respect to it).

A copy of a novel is an economic good, because the production of that copy came from the same scarce resources as the novel, i.e. the author. You can show not “chain of custody” that does not originate with the original that the copy was made from. Copies that do not exist yet are not economic goods, because they do not exist yet. You cannot sell something that does not exist, (forgetting for the moment and executory interest). Once the copies exist, they have the same serviceability as the original; i.e. the same utility, the same benefit from use.

“then the copier is merely using his property (paper and ink) to make a copy; no harm no foul. From here, all this “fair use of information” argumentation is unnecessary.”

Well sure. “Fair use” is something that has to be tacked onto copyrights to prevent them from otherwise stifling all creativity.

Fair use is a doctrine of compromise. Just as with going 100% with “ideas are free”, going 100% for private property has problems, when the serviceability of an economic good is inexhaustible. So you have to make a rule about what is a “fair use” and what is a “prohibited use”. What I am saying, (and what copyright laws say, for the same reason) is that the tradeoff is to GRANT the benefit of utility (reading, understanding, knowledge, etc) while also GRANTING the property rights to the product by prohibiting a very specific set of uses; i.e. copying and commercial distribution of copies. That is the tradeoff compromise solution to the dilemma Mises raises.

“The conclusion that property rights are “unavailable” has already been assumed.”

No that has not been assumed, the fact is that ownership means use, and when you are staring at someone’s novel in plain view copying it you are not using the novel. That is the simple fact of the situation. I am not using your novel when you place it in plain view. I use *my* property to create a copy. Me viewing your novel in plain view is not a use of that novel. I am not taking possession of it. I am not using it.

Excuse me? If you are “staring at someone’s novel in plain view” that is a use. By the way it is a fair use, and it not prohibited. Otherwise it would be illegal to borrow books from the library, which it is not. If you are “copying it” you are using it. You do not only “use your property” to create a copy, you MUST use the novel, otherwise you cannot call it a copy. There may be many things you can do with your own property, but using them to copy a novel is a use of the novel. There is no way around that.

Preventing me from using my property to copy your novel *is* a use of my property. So it is you, the IP proponent who wishes to enforce copyrights, who advocates trespass on the copier. When I copy, I don’t use the novel. But when you prevent me from copying, you use my property (to prevent me from using it).

I have been over this a thousand times. I’m too busy to look up the links for you. There are millions of limitations on the actions you may take with your own property. Exactly how many and what actions are determined by the rights of others. This is the universal principle of Non-Aggression. If you want to read an interesting treatment of your argument by Mises, follow the link I provided earlier to Liberty and Property. It is here:

http://mises.org/libprop/lpsec5.asp

“Yet it has not been argued based on a logical progression from any principles of property rights or economic theory that embraces externalities, or embraces a coherent theory of property rights, despite claims to the contrary.”

How does a theory embrace something? Furthermore, you are the only one who sees a problem with external economies. Advertisement is a giant external economy. You have still not presented any property rights theory, consistent or not.

You are hiding in a familiar corner. A theory embraces something by integrating it consistently and coherently. Relativity embraces Newtonian physics by demonstrating that they are an accurate approximation for phenomena with masses and velocities within the scope of human experience.

Mises’s treatment of catallactics and praxeology embrace private property theory, including monopoly, external costs/benefits, and external economies. You know way too little about property theory to make the claim that I haven’t been consistent with such a theory. Also, it is not my theory. It is the predominant theory of property that currently operates in our time, and one which has a very long history and tradition. You got caught on your arguments against easements when you later admitted you didn’t know that much about them. You are making the same mistake here and now.

“OK, then I would like to know what you think the implications of this is for your argument against the principle of IP?”

None! Everything we use is a human device. Math is a human device. Logic is a human device. They are each specific devices with specific functions. What is relevant is what formulations of those produce functional devices as opposed to non-functional devices. Simply pointing out that they are devices devised by humans has no implication on the specific form those devices must take to be functional.

OK, you can say that (although we could debate if it is universally true; i.e. the “planets” are not a human device, so there are possible exceptions). All I am saying is Property is more like math or “homesteading” than it is like gravity or a planet. It is a set of rules made by humans to serve human purposes. That is what “property rights” are. Nothing more, nothing less.

“Well, this is certainly not a coherent explanation. You seem to deny that people can create a system of property rights to serve some purpose. Do you?”

Of course not. And yet you seem to deny that there is any structure of reality that constrains successful actions. That something is a human device does not imply it is a matter of agreement. Especially when we are considering precisely the device whose functioning is necessary for agreement to be possible!

Are you sure? Is math a matter of agreement? I would argue it is. The fact that it can be “proven” is the reason it can be universally adopted. “proven” simply means that we can count on the principles of math operating consistently in every application. Property rules are no different. Their purpose is to establish a rule that cooperating humans can count on to operate consistently and uniformly. That certainty facilitates cooperation and trade, and reduces somewhat potential sources of conflict. I doubt you disagree with much of what I am saying here.

See, when property rights are not respected there can be no agreement. There is no arguing, only fighting. Only force, only violence. Asking “what do we agree property rights are?” is literally asking “what do we agree are the things that allow us to make agreements?”

OK. That works for me. My way of saying it is this. A society will accept property rights that are successfully asserted, and then defended. At the level of barbarism, that defense is might. AT the level of civilized society, that defense is moral and ethical. We agree that the defense of the asserted rights are valid and legitimate, and we agree to help defend them. That is the way society builds itself up over time.

Also, you have also not shed light on how property rights being a human device, something that people can agree upon, makes IP justifiable. Perhaps you are ignoring my arguments that IP results in *less* creative production!

I am not ignoring, I disagree with you and agree with Mises. Humans do not continue to allocate resources to endeavors that are unprofitable. Producing for external economies is always unprofitable. That is the simple reason why the anti-IP position that “ideas/IP are free” will result in fewer quantity and lessor quality of intellectual production; it wouldn’t pay. This is not rocket science.

“What is that purpose? Does it matter? I am simply saying that that purpose must be understood and articulated, and integrated with a body of principles which can be referred to as a “property rights theory” or an “economic theory” that is coherent.”

The purpose of property rights is to provide a means to resolve conflicts. IP obviously fails miserably to do this. Are you saying it resolve conflicts to have a nation whose borders of authority are well-defined to have to enforce their own laws globally? Copyrights are pointless until they are globally enforced.

Do you deny that if I write a book and sell copies of it, and you come along and buy a copy and start printing them and selling them, that there would be a conflict? Why wouldn’t there be? Only if you can do it without me knowing, this would make you a thief in the night. If you did it in the open, there would be a fight. Why isn’t that conflict?

“Good question. Within AET, isn’t the answer, “The consumers of economic goods”?”

That works when it comes to production. That is, who should produce what? Let the consumers decide. This works because if A and B disagree on what they want to consume, then A can consume what he wants while B can consume what he wants. A can drink coke and B can drink Pepsi.

Yes, or they can both drink tea. Just because I write a book doesn’t mean anyone is interested in buying it, or even reading it. In that regard, the consumer is king. If I can’t write books that consumers want to read and buy, with or without IP, I go broke as an author. That is the subtle distinction made by Mises between the concept of “pricing monopoly” and “property monopoly”. Just because you don’t want to buy my book doesn’t mean you can demand it for free. If it’s mine, that is up to me. It is my offer to make, and your offer to accept. That is the freedom of trade.

But there can only be one system of property rights. I can’t decide to follow my own property rights system while someone else decides to follow theirs. You following yours conflicts with my system and me following mine conflicts with my system.

This is not really true, because your statement does not take into consideration the context of how institutions is society get established. History is full of instances where a person promoted a new idea, and somehow it got adopted by his society and became the rule that every followed and defended. That is how property rules become institutions, which eventually become laws.

“Well, you have to ask what the relationship is between scarce means of production, economic goods and property rights. However you answer that, whatever framework you build around those concepts, must be applied consistently to IP and all other economic goods. That is all I am trying to get at. In my opinion, IP opponents are inconsistent in their application of their own principles. I have gone to considerable effort to try to understand that. I think I do.”

Well I think you see the inconsistency because you claim IP abolitionist claim creative works are “free goods” or become them under certain circumstances. The point is that the scarce good in question always comes in marginal units, and both economic value and property rights are assigned only to the marginal unit, not the good per se.

You remain stuck on the idea of a “scarce good” and fail to recognize the importance of “scarce means”. Scarce means produce scarce goods. Before I was born, there was no novel. When I wrote it, there was. I am the producer of the novel. I am the scarce means of production of that novel. No one can claim better title to it than me. It is the source and origin of all copies of it. Each copy has equal utility to the original. Therefore, it is reasonable to treat that novel and all copies of it as a private property. To treat it any other way is to make the products of scarce means of production, a non-economic good; i.e. a free good.

“The false dichotomy you present does the same.”

You never supported your case that it was a false dichotomy, and everything you said about my argument is a straw man. If “novel” does not mean one of the two things I stated, then what third option do you have? You admitted in your explanations that you use one of the two definitions I supplied.

Well, perhaps we are going to have to just agree to disagree. Maybe this will take you some time. You seem to be hung up on the idea that the second category, the set of all copies that “could” ever be, is taking a property interest in something that doesn’t exist. The property interest does not arise until the copy exists. It cannot exist unless it is a copy, i.e. it has been copied form an original. All copies that have been copied are real and tangible. There are no “phantom” copies to worry about.

“You presented a dichotomy between “physical media” and “the idea of a novel”, and asserted that I must mean by “novel” one of the other. I think you have now clarified that a novel is an economic good in every respect, but unlike other economic goods, IP is not subject to a theory of property rights.”

No you are flip flopping between those two definitions. Only using the first definition is the novel an economic good and can be owned, and this does not imply IP. To imply IP one must argue that using the second definition the novel can be owned. It is not unlike other economic goods. IP rights concern entire classes of goods, never the marginal units. I am consistently applying the principle that ownership titles extend only over the marginal unit of property.

Maybe I don’t understand what you intend to say. IP implies a property right. Tangible copies of the original novel can be owned. Copies that have not been made yet cannot be owned. Is that OK with you?

“The dilemma I am referring to is the one that Mises raised. “ideas are free” v. “producing for external economies”.”

It is not impossible that both ideas are free and authors produce for external economies. To be clear, I am not saying ideas are free, but even if I said they are, and I certainly do say creative authors produce for external economies. I’m still not sure I see the dilemma that arise from these two things.

You need to study the Mises passage, and read backwards to see how he comes to that particular passage. I don’t think you do, or perhaps you don’t understand what the first paragraph means concerning the “inexhaustibility of serviceability”. I am short-handing this paragraph by using the phrase “ideas are free”. To treat “intellectual creations” only in terms of their “inexhaustibility of serviceability” is to ignore the other problem that arises from this lack of property rights; i.e. “producing [for] external economies”.

“Are you sure? If you treat the means as private, the product of those means is private.”

This is very obtuse, very metaphorical. Are you saying when privately owned means are transformed into new products, that they remain privately owned? Of course. Who denies that?

That is all I am saying. You just need to apply that concept to the production of intellectual products, what Mises calls “intellectual creations”. If the author is the private means, then what he produces are also private property. Simple.

“If the product is the economic good, the “utility” of a novel”

This is meaningless. How can “utility” be a good? The usefuless of something is not the means employed in action. It is the thing itself that is the means employed in action.

Try to be more careful with words. I said the utility OF the good. You keep using “means employed in action”. That is not the same thing as “means of production”.

“then you cannot hold that both are true unless you take a position that there is a trade-off.”

But the *only* economic good one can speak of when talking about a novel is this particular copy of this novel right here and now. The abstract idea of the novel itself is never an economic good and never the subject of a property title. Why? Because the abstract idea of the novel itself, which is all you could ever mean by “novel” other than a specific copy, is not a means employed in action.

This is a tangent. Forget about abstract ideas. Nobody can say for sure what that is, anyway. But we can say what a copy of a novel is. That is what we are talking about, nothing more.

“That trade-off must be consistent with some utilitarian argument supported by the AET framework. What is that argument?”

There is no trade-off. I always maintain that the only economic good is the marginal unit, i.e. that particular novel right here and now. The utility of something is certainly not an economic good. It is not a means employed in action.

You are lost. You need to backtrack.

“My argument is in fact that a balance is required because adopting an absolute position on either point creates economic problems, which Mises describes, and which IP laws embrace.”

What economic problems are caused by a complete lack of IP? Please, please do not say that it requires production for external economies, because I have already addressed this. Advertisers produce for external economies too. Where are the economic problems? If you are suggesting that lack of IP interferes with the wealth creation process then I would be interested to know how you claim it does such a thing.

No you haven’t. I don’t get your advertisers example, so that makes me think you don’t understand the problem. The economic problem arises from the same source as problems for a free market that does not have private property rules, or has it for some classes and not others. There is nothing unique here in that regard. Whenever you fail to secure private property rights in the scarce means of production, it causes the problems of socialism. That is the Mises argument that he made his entire career.

“And also, how is it impossible to both treat IP as ideas and treat means of production as private property.”

I don’t see how.

Exactly. Stick with that thought.

To realize that IP is, and must be, trying to protect abstract ideas, i.e. entire classes of conceivable instances of economic goods, is not in conflict with the fact that means of production are private property. I suspect this claim depends on your argument that by me copying a novel in plain view I am making use of and exerting an ownership claim over the original copy of the novel. I have already addressed this. No one is arguing anything that involves public ownership of anything. To point out that IP attempts to establish claims over entire classes of goods, that is the abstract idea those types of goods, is unreleated to all property, be it means of production or not, being privately owned. To be as clear as possible: there is no public ownership in either of our scenarios.

You are wrong about this. If you extend “ideas are free” to “intellectual creations”, or IP, then you have what is in effect public ownership of scarce means. I say effect, because it produces the same outcome as if an author worked for the state, and denied him ownership of his production. The result is precisely the same.

“I do not really know or understand what your ideology is, because you have not reconciled your position with other principles which you claim to hold.”

I believe I have. My principles are that property titles are marginal, they extend only over definite units of property, that ownership of a marginal unit of property is established only by homesteading that property or having it traded to you, that conditional use of property one does not own can only be established through contracting as implied by having property rights, and that IP necessarily concerns claims of ownership over entire classes of goods that necessarily conflict with marginal claims of ownership based on homesteading and trading.

This is such a confused statement that I can’t possibly sort it out. Why not throw in the kitchen sink?

“If you believe, as to most IP opponents, that authors and other producers of intellectual products should be willing to produce for external economies”

No, no one has suggested what anyone should be willing to produce. No we’re not telling authors what they need to do. We’re telling them that being creative doesn’t give them a right to everyone else’s recording devices. We leave it up to them to decide whether or not creative production is a worthwhile endeavor.

Oh, but you are. You are setting up a rule that denies private property rights in a particular field of production. If you make a rule that said that anyone that grows corn must be willing to allow people to come into his field and eat it without compensation, do you think you would get more corn and more corn farmers? It is nonsense to say so.

“then that is consistent with socialism for the reasons I’ve stated. If you don’t hold that position, then what position do you hold?”

No it is not consistent with socialism at all. Please tell me what people getting to copy a novel in plain view has to do with a centrally planned economy? And tell me how you ever hope to establish what can be copyrighted and what cannot be without a centralized committee deciding on such things. You are the one advocating centralization. You have entirely failed to demonstrate that IP abolitionism involves public ownership of anything. Your IP system requires a central body to decide what can be copyrighted or not, what is patented and what is not, etc. It is you advocating central planning, not me.

Central planning is a consequence, not a cause. First comes public ownership of the means of production, then comes the need for central planning, which cannot possibly succeed, for all the reasons that Mises and Hayek are famous for articulating.

“If I own land, I do not have to build a tall fence to keep out trespassers, and I don’t need a contract with every person on earth, either.”

That does not help your case. I think what you mean is that you don’t need a fence to establish that trespassers are in fact trespassing. It might be a good idea to build the fence to actually stop them though.

Of course it does. Regardless of the means that are employed to enforce property rights, they either exist or they do not. Whether I have a fence or a police dog, there is no question that I have a right to a defense. When you deny property rights, you deny the right to defense. This is what IP opponents advocate, and why the claim that IP is aggression. If a person is trying to defend rights that he doesn’t have, that is aggression.

“Since I own it, I have exclusive rights to use and possession. Is trespassing a “use”?”

Yes.
“Is photographing my land a “use”.”
No! Are you kidding!?
“Yes, they are both uses, but one is prohibited and the other is not. Is reading my book a “use”. Is copying my novel a “use”? Yes, and one is prohibited and the other not. Why?”

That is an absurd argument. Photographing land is not using that land. It does not involve the land at all. That is ridiculous. Someone is using your body when they take your picture? No, that is plainly not true. They are not using it. I am not using your body by looking at you. That is such a metaphorical stretching of “use” the word loses all meaning.

I’m sorry but you are wrong. The photons being captured originate from the land, otherwise you could not capture an image of the land. It is a use of both the land and your own capacities of perception and camera operation. But it is permissible use that does not amount to trespass. It is a “fair use.”

“The analogy is, “photographing” is to “reading” as “trespass” is to “copying”. This is Rothbard’s own argument. If you think this analogy is confused, using principles of libertarian property rights and AE theories to explain, what is being confused?”

Did Rothbard really think that photographing land is a use of that land? But that is a pretty ridiculous analogy, especially considering that photographing is just a certain type of copying (copying the image of the property). What if you memorize the novel word-for-word? Is that storing a copy in your brain? Is that unjustifiable while just reading and forgetting it is not? See, this is getting out of hand. And it’s all based on the absurd idea that photographing or copying is a use of the land or novel.

I don’t know of any specific writing about photographing, but Kid Salami referred to a passage from Rothbard that confirms his belief that “independent creation” of a book is impossible. Photographing is a way of capturing a pattern; so is reading to the extent you retain the experience. Coping deals with use. If you captured it on film and locked it in a vault, it would likely be a permissible use. Even if it wasn’t, there could only be nominal damages since it wasn’t distributed.

Can you memorize a novel word for word? If you could, and typed out the novel word for word, you would have an exact copy. You think this excuses the act of copying. Why would it? It does not matter whether you use a Xerox machine or your perfect photographic memory. It is indisputable in both cases that the means to the copy was the original, which is privately owned by someone other than you.

“People began to realize only later that this state of affairs has its drawbacks too. It places the producers of such formulas–especially the inventors of technological procedures and authors and composers–in a peculiar position. They are burdened with the cost of production, while the services of the product they have created can be gratuitously enjoyed by everybody. What they produce is for them entirely or almost entirely external economies.”

Mises is presenting a public goods argument. It is obviously a poor argument. Advertisers are in this terrible position. Security producers are in this position. Deodorant wearers are in that position. Anyone who maintains a yard and has neighbors is in that position. Anyone who acts nice and doesn’t get paid for it is in that position.

You are grasping at straws. If the clients of advertisers did not benefit in measurable ways from advertising, they wouldn’t pay for it. If the deodorant wearer didn’t benefit from smelling good, he wouldn’t wear it. If the yard owner didn’t benefit from a nice yard, he wouldn’t take the trouble. People act nice because they feel a benefit. That is the foundation of human action.

It is surprising that Mises was so quick to do what he surely knew was such a mistake, which is to deny the facts of reality and arrogantly try to supercede them. I dare say Mises is suggesting that it is desirable for states to undo the fact of reality that ideas are inexhaustible. He knew so well how socialists try to “legislate” the laws of economics out of existence, as arrogantly silly as someone trying to legislate away the laws of physics. It seems as he committed this error himself here. It is a fact of nature that recipes, for example, are inexhaustible, and yet Mises claims there is something undesirable about this? Perhaps, but there it is. Fighting against reality is the siren song of a central planner.

You do not understand. You need to accept that possibility, because otherwise you put yourself in the position that you must believe Mises was a fool. Mises is not superseding reality, he is describing it!

Also, his charge that those producers must carry the cost of production themselves is wrong. There is nothing stopping other people from financing creative production. I don’t understand why it is so hard to imagine that creative people can be paid for their creativity, not copies of their past creations.

Now you are being silly. People are not going to finance something they cannot profit from, and you cannot profit from something you do not have a property interest in. You are trying to imagine a new economic system that is based on patrons paying for the labor of creative people, like a cross between Shakespear’s time and that video game where you build a city from scratch (what was that called?). It is a fantasy.

“Public ownership of the products of private means of production. To claim that the products are not the private property of the owner of the means violates AET and libertarian principles of private property rights.”

Who said they don’t? I have thoroughly debunked this charge that I am advocating public ownership of anything.

I will have to disagree with you about that. Sorry.

“Both Mises and Rothbard have said this very thing. Yet you hold that Mises and Rothbard are wrong about this. Why?”

No I do not! You are putting some strange words in my mouth now! Perhaps I should remind you that I am spelling out the details of a private property society. IP abolitionism has nothing to do with public ownership of anything.

If I had more time to waste, I would look up the quote where you said “Misis is wrong”.

I responded to it. Do you remember?

Your claim that people being able to copy a novel in plain view equals public ownership of whoever wrote the novel is insane, especially as you are in the middle of advocating why every novel writer ever should have partial ownership over everyone’s body.

You are drifting away into lala land.

“You see, this is why it is difficult to follow you. This is non sequitur. How do you connect the “partial ownership over everyone’s body” part? Have I said that anywhere, or are you trying to paraphrase what you claim I said? I have never made this claim.”

You are in the middle of explaining why it is wrong for people to copy a novel in plain view without permission, which can only mean that it is right for the author to forcefully stop people for doing such copying. Copying is not a use of any of the author’s property (contrary to your claim, which is quite an absurd one) and therefore cannot be a use that is forbidden in order to maintain the property rights of others. Therefore stopping people from copying is taking ownership of what they use to copy, which includes their bodies. You are making that claim. You are claiming that when an author writes a novel he has ownership over every piece of property that could ever become a copy of that novel.

Look up this thread. I covered this already. See my comments on aggression and property rights.

“If you are going to engage in ad hominem, don’t complain about it from others. If you are going to dish it out, be prepared to take it.”

You don’t know what an ad hominem is. I might have said something about you the arguer but I did not use it in my arguments. You very often make statements about me and suggest that implies something about the arguments at hand. I merely made the remark that you stubbornly push this external economy argument while completely ignoring my responses to it. That did not become the basis of my argument. Ad hominems are logical fallacies. That you use them doesn’t just mean you are obnoxious, it means you are *wrong*, which is the part I care about.

It means attack the person, not the argument.

It is very dishonest to pretend like I have not addressed your external economy argument. You are unreasonable for acting that way and not expecting these sorts of responses. If you expect to do things like ignore the responses to your claims and continue to make those claims as if they have not already been challenged then you have nothing to expect to be called out for dishonest argumentative tactics. Dude, you’re not gonna fool us. We read these threads. We see what is said. We see you use dishonest tactics over and over. Kinsella calls you out for it, Peter calls you out for it, nate-m calls you out for it, Sione calls you out for it, and others probably have too. I would be more willing to accept that it is my problem if so many other people weren’t making the exact same accusation towards you.

I have been indulging you like a kind uncle. I don’t understand my own motivations here. I really can’t spare the time, yet I indulge you anyway. I need to have my head examined. You share the same ideological blindness with the people you named. I come here because it is more fun to address people who disagree with you than those who are already in the choir. Have you heard, “birds of a feather flock together”? Do you believe in folk wisdom?

“This is not a refutation of externalities.”

What does refutation of externalities mean? I am demonstrating that production for external economies happens.

OK.

“Externalities can never be 100% eliminated. The actor makes a calculation of predominant costs and benefits. Mises discusses this extensively in the cited section above. This is why he uses the words “for the most part”. I have found Mises to be very skillful and particular with his use of words.”

I never said they could, and how could you possibly think I was. It is painfully obvious that I am not trying to say externalities don’t exist. I literally stated, verbatin, dozens of time, “production for external economies happens”.

Good. Now, what can you do with that insight?

Your solution to this “problem” is to make it so when anyone writes a melody, no one else is able to sing that melody.

B.S. That is not part of any IP argument.

“See my response above where I given the analogy to photographing and trespass. Why is one OK and the other not? There must be a meaningful distinction between the two.”

Yeah, there is. Trespassing is using, photographing is not. It is ridiculous to suggest that photographing land is using that land.

Just for an exercise, why don’t you try to explain why what you say is true, that photographing is not a use? That should be interesting.

“Singing a melody is not a prohibited use of the songwriter’s property rights, even if you acknowledge they exist.”

It is in existing copyright legislature. A woman was forbidden from singing a song on American Idol. And, as the question always is, why not? Why can a person copy a song in his brain and replay it with his vocal chords, but not do the same with a tape recorder and speaker?

Like with so many things, my young adversary, you are wrong. Pubic performance is what you are inadvertently referring to, not copying.

“This is complete non sequitur. I drew the connection between producing for external economies and slavery.”

And what a ridiculous connection to draw. As I already said, apparently when I wear deodorant I am a slave to everyone that benefits from me wearing it and not paying me. I am a slave to all my friends for being nice to them and not getting paid for it.

You don’t get it. Sorry.

“I said that the public ownership of the means of production (and the product thereby produced) is equivalent to socialism.”

Which is pointless to say because I never, ever advocated public ownership of anything and your way to claim I did involves the ridiculous assertion that copying a novel in plain view involves taking making ownership claims over the original copy.

You don’t advocate it because you insist in being blind to what you inadvertently advocate.

“I realize you do not think of yourself as either an advocate for slavery or socialism. That is my point. Yet I am asserting that the inconsistency in your arguments for IP in relationship to the other principles you seem to hold, leads inevitably to these conclusion, if your arguments are followed to their logical conclusions.”

I’m sure you don’t think I am a socialist, but it is absurd to claim I am, inadvertently as it may be, advocating socialism. I don’t need to say IP is wrong to say that rejecting IP is not socialism. Give me a break. IP requires a central body to grant patents and establish what can be copyrighted and not. That is closer to socialism than no IP.

You are the one raising “central body”. I haven’t relied on that at all.

“I have challenged Kinsella, Surda and now you, to explain how this is incorrect. I have provided a well established framework by the namesake of this site as the basis for my position. If you disagree with me, then you disagree with Mises. All I am asking is for you (or anyone else) to show where that is wrong, without just saying it as a foregone conclusion. At least, take the time and effort that I have put into this response to try to take it on rationally. Or not, it’s up to you. So far Kinsella has declined, too, so you’re in good company.”

I feel like I have conclusively debunked the charge that IP abolitionism involves public ownership of anything. It was clear through your presentation of our position that you fundamentally misunderstand it, a misunderstanding born out of your tendency to flip flop between the two definitions of a creative work from its marginal unit to the abstract idea itself. There is no decree that any economic good must be free. If you refer to the marginal unit, that is never free and no one ever claims it is. If you refer to the entire category, there is no question of value for the category is not a means employed in action.

Like many people, you think where there is smoke there must be heat. I say you are all heat and no light. Nothing personal.

Whew! I made it all the way through your rant. I have no idea why I did it! I’m not likely to make that mistake again though. Nothing personal.

Peter Surda July 26, 2011 at 6:50 am

Wildberry,

A copy of a novel is an economic good, because the production of that copy came from the same scarce resources as the novel, i.e. the author.

But for other situations, which do not involve IP, we’ll magically ignore the causal relationships as relevant for a property rights claim, right? Because economics is based on magic. Not logic. Screw logic. It’s annoying with its constant insistence on consistency and answering those pesky questions.

Do you deny that if I write a book and sell copies of it, and you come along and buy a copy and start printing them and selling them, that there would be a conflict? Why wouldn’t there be? Only if you can do it without me knowing, this would make you a thief in the night. If you did it in the open, there would be a fight. Why isn’t that conflict?

The conflict is in the material the copies consist of. The material cannot be simultaneously in states that satisfy the author and the “pirate”. The original, however, remains exactly the same throughout the whole process of copying. You have failed to provide an explanation why the conflict, nevertheless, should be interpreted as a conflict over the original and why such an interpretation would be relevant. Other than, of course, you need it to plug a hole in your theory. I challenged you many times to provide this missing element that you allege exists. At first you denied that this is relevant, and then you just continue implying that it exists, yet never showing an example. Where is it, Wildberry? Are you hiding it in fear someone would copy it?

DensityDuck July 27, 2011 at 12:30 pm

“The original, however, remains exactly the same throughout the whole process of copying.”

But since copyright applies to the act of copying, it doesn’t matter what happens to the original.

If I cut through someone’s yard when they aren’t home, and I don’t cause any measurable change to their property, and I’m off their land before they return, I’m still guilty of tresspassing and they can sue me for it. Do you agree? If so, why do you think the same concept–”property rights are valid regardless of the specifics of infringement”–doesn’t apply to creative works?

Wildberry July 27, 2011 at 12:46 pm

Your comment is a matter of common sense.

It would be nonsensical to assert, in your example of trespass, that to try to enforce trespassing rules on a person who causes no harm to your property is aggression against the trespasser; i.e. the right to trespass belongs to the person who owns his feet.

Here, Peter tries to assert that because no “change” is inflicted on the original, the copy belongs to the person who owns the paper upon which it is copied.

What he cannot show is how the copier did not use the original as the means to make the copy. It is that use which is the subject matter of copyright law, just as the use of the private land is the subject matter of trespass.

This is not rocket science, as you so succinctly illustrate.

Peter Surda July 27, 2011 at 1:33 pm

Wildberry,

It would be nonsensical to assert, in your example of trespass, that to try to enforce trespassing rules on a person who causes no harm to your property is aggression against the trespasser; i.e. the right to trespass belongs to the person who owns his feet.

Typically for your smoke and mirrors, you invent a new term, “no harm”, and try to smuggle that into the debate as something relevant.

Here, Peter tries to assert that because no “change” is inflicted on the original, the copy belongs to the person who owns the paper upon which it is copied.

This is inaccurate. My point is that the absence of IP does not create public property (as many IP proponents, including you, claim, and therefore IP results in contradictory rights), and that you fail to provide a coherent explanation of your position, i.e. how to determine which acts violate property rights and which do not.

What he cannot show is how the copier did not use the original as the means to make the copy.

I have challenged you many times to reformulate this into a coherent, formal claim, and you stubbornly refuse to do it. Is causality a sufficient condition for a rights claim or not? If not, then the sentence you just provided is logically irrelevant for the topic. If yes, then why do you selectively apply this argument only to IP but not for all other types of causality? The argument you are attempting to present is at best logically erroneous, and at worst outright demagoguery.

This is not rocket science, as you so succinctly illustrate.

It’s pure logic, Wildberry. The errors in your claims do not even have anything to do with economics, ethics or law. Do you know what logic is?

DensityDuck July 29, 2011 at 5:49 pm

I don’t know why you’re accusing Wildberry of “introducing a new term” when I’m the one who introduced the “tresspassing” hypothetical.

“My point is that…you fail to provide a coherent explanation of your position, i.e. how to determine which acts violate property rights and which do not.”

That’s the intent of my hypothetical–to establish whether you believe that unauthorized but unobserved and consequence-free traverse of private property is still considered to be tresspassing.

Wildberry July 30, 2011 at 11:05 am

DD,

I think you are wsting your time with Peter. He doesn’t know what he believes.

He is fascinated with standing in judgment over the process or reasoning, but cannot use that process himself to reach a conclusion.

Peter Surda July 31, 2011 at 12:48 pm

Wildberry,

why are you so bothered by what I believe? Shouldn’t you concentrate on what you believe and your inability to coherently formulate it?

sweatervest July 30, 2011 at 2:43 pm

“Your comment is a matter of common sense.”

That you felt it necessary to type this out is only an indication that it is *not* common sense. After all, we don’t need you to tell us what is common sense and what is not. That’s what makes it common.

“It would be nonsensical to assert, in your example of trespass, that to try to enforce trespassing rules on a person who causes no harm to your property is aggression against the trespasser”

To “Enforce trespassing rules on a person who causes no harm to your property” is to kick that person off your property, not sue him and confiscate his property after he has left and is no longer trespassing. Justice is served as soon as the trespasser leaves and does not come back.

“i.e. the right to trespass belongs to the person who owns his feet.”

No one has suggested that, but you are suggesting that if someone trespasses and causes no damage then leaves, he has *lost* ownership of his feet which now belong to the owner of the property on which he trespassed. That is pretty nonsensical.

“Here, Peter tries to assert that because no “change” is inflicted on the original, the copy belongs to the person who owns the paper upon which it is copied.”

Yes, Peter is asserting that if you trespass on someone’s property, cause no damage and leave, then you do not lose ownership of your body. Your body remains yours and the person you trespassed on only has the right to force you off of his property. He does not gain a property right in your property because you trespassed on him.

That is what you are trying to say with copying: that if someone uses the original copy to make a new copy and leaves the original copy undamaged, then the owner of the original copy can now confiscate the new copy because, apparently, when you trespass on property and cause no damage you lose your own property to the victim of trespass.

You cannot avoid the fact that the second copy is a transformation of the *copier’s* property, not a transformation of the author’s property. You are suggesting that such a transformation transfers ownership of the copier’s property to the author, which is nonsense.

“What he cannot show is how the copier did not use the original as the means to make the copy.”

Why would he need to show that? Everyone is admitting that the copier used the original copy, i.e. he trespassed on its owner. I have addressed this already. Your reasoning leads to the absurd conclusion that if I steal my neighbor’s wrench to fix my car, then not only does the wrench owner reserve the right to take his wrench back and make me pay for any damages I caused to the wrench, he can also re-break my car because I used his stolen wrench to fix it.

“It is that use which is the subject matter of copyright law, just as the use of the private land is the subject matter of trespass.”

No, that is totally wrong. It is not that use that is the subject of copyright law. The subject of copyright law is the use of the copies made from the use of the original copy, not the use of the original copy itself. Likewise, use of a piece of private land is the subject matter of trespass, not the use of land you could only get to by trespassing on someone else’s land first.

“This is not rocket science, as you so succinctly illustrate.”

Oh so you think your arguments about “rights bundles”, “subjective calculus” and other sophomoric nonsense is simpler than my position about how you own property by using it first? Give me a break. Your position is far more convoluted and difficult to follow than mine is. You have admitted many times that you think my position is *too* simple and does not account for all the complex subtleties of the real world. If anyone thinks this is rocket science it is you. My objection to IP is very simple and elegant: copying is not stealing. When you steal someone loses something. When you copy no one loses anything. Stealing is taking. Copying is not (at least when the thing being copied is in plain view). You cannot lose something you don’t already have. You’re right. No rocket science.

DensityDuck August 1, 2011 at 12:11 pm

“To “Enforce trespassing rules on a person who causes no harm to your property” is to kick that person off your property, not sue him and confiscate his property after he has left and is no longer trespassing.”

Nope; that’s not how tresspass law works. Tresspassing is a tort, which means that restitution is made through a lawsuit. You can’t “kick someone off your land” unless you’re in imminent danger. You can declare that the area is private property and request that they leave, and you can call the cops if they don’t, but even the cops can only arrest the person if they don’t do what the cops say. The cops can’t arrest someone just for being on your lawn. (Indeed, this is why things like PROTECT-IP exist; it’s trying to make copyright infringement be a criminal act, so that they could do the copyright-enforcement equivalent of arresting someone for being on your lawn.)

“The subject of copyright law is the use of the copies made from the use of the original copy…”

No; the subject of copyright law is the act of copying. Or, rather, “the use of an original work in the act of producing a copy”, if you must describe it in terms of “use”.

“Your reasoning leads to the absurd conclusion that if I steal my neighbor’s wrench to fix my car, then not only does the wrench owner reserve the right to take his wrench back and make me pay for any damages I caused to the wrench, he can also re-break my car because I used his stolen wrench to fix it.”

Congratulations, you’ve invented the lien. If you’re not familiar with the term, you should probably look it up before you keep talking about this.

Peter Surda July 27, 2011 at 1:21 pm

DensityDuck,

But since copyright applies to the act of copying, it doesn’t matter what happens to the original.

That’s precisely the source of the problem. First of all, this creates a self-contradictory system, and second, why should the act of copying specifically selected out of all other acts as being relevant?

If I cut through someone’s yard when they aren’t home, and I don’t cause any measurable change to their property

Of course you do. That’s what physical interaction is: the alteration of the objects interacting.

If so, why do you think the same concept–”property rights are valid regardless of the specifics of infringement”–doesn’t apply to creative works?

First of all, I disagree, and second of all, as I said above, if you insist that physical interaction is not a necessary condition for a rights violation, then you’re begging the question.

DensityDuck July 29, 2011 at 5:46 pm

“If I cut through someone’s yard when they aren’t home, and I don’t cause any measurable change to their property…”
“Of course you do.”

No, I don’t. No, I don’t. That’s the point of this hypothetical. And if you aren’t familiar with the concept of the hypothetical in legal discussion, then you need to be. And before you say “well I refuse to accept that nonrealistic hypotheticals can have any use in discussion!”, I refer you to elementary physics classes where massless ropes and frictionless pulleys interact in perfect vacuums with no gravity.

Jay Lakner August 2, 2011 at 8:44 am

DD,

It is impossible to trespass without making some measurable change.

The friction of your feet on the ground, the displacement of the air, the heat your body transferred to the surroundings, the photons of light travelling over the land that you obstructed, the scent you left in the area, the earthworms which were attracted to the surface from the vibrations of your footsteps etc, etc, etc are all measurable changes.

Furthermore, the temporary occupation of “space” on that land might very well have interfered with their use of the property. For example, for all you knew they were running radiowave experiments over the land and your presence destroyed the results.
Maybe your travelling over the land leads other dumb humans to the conclusion that it’s ok to also travel over the land? (human see, human do). Maybe that’s exactly what the owners don’t want? It could very well be a security issue – an open empty patch of land around a house is much safer than one in which hundreds of people walk through every hour. Your mere presence is, in this case, affecting their use of the land – you’re attracting other dumb animals to congregate in an area that’s supposed to be empty for security reasons.

If it in fact was possible to temporarily occupy another’s land without in any way interfering with their use of the land, then such an occupation should not be categorised as a “trespass”.

Wildberry July 27, 2011 at 4:24 pm

@DensityDuck July 27, 2011 at 12:30 pm

Upon further reflection, allow me to elaborate.

By “no harm” I meant any change whatsoever. By my use of the terms “no harm” I was relying on early common law trespass, where the purpose of many trespass suites was the declarative relief which established the legal property lines. They were brought by the mutual consent of the landed lords, and resulted in “nominal damages” of 1 pence. The real purpose was the court ordered setting of the legal property lines.
In those cases, the measure of damage was “even one blade of grass, if bent under the weight of the trespasser” was considered harm, a required element of the suit.

I suppose we could also say “transformed” or “changed” without changing the result, so an objection to the use of the term “harm” is a distinction without a difference, and amounts to what Kinsella likes to call “pettifogging”.

Some people stubbornly refuse to acknowledge that the issue is “use”. It is use that is the entitlement of ownership, and it is use that is the source of violations of the rights of property owners.

In the case of trespass, it is the use of someone’s property to get to point A from point B, say, without consent of the owner that constitutes the “prohibited use”. Photographing someone’s property from outside its boundaries is not a “prohibited use”. As to why, the answer is that they are rules which are aimed at securing property rights to the owner without impairing the rights of others. As new fact patterns emerge as the source of conflict, we modify the rules to accommodate the exceptions needed to strike that balance. In the extreme example, homicide is a prohibited act, but there are many exceptions to that rule, i.e. self defense, etc.

To ask therefore if causality is sufficient to establish ownership reveals an ignorance of the issue or property rights, or denial of the ambiguity in such an open-ended question. Certainly the owner’s right to exclusive use of his land is the cause of prohibitions against the “use” of trespassing.

Likewise, the exclusive rights of an author to exclusively control the use of his production are the cause of the prohibition against copying. It is the “use” of the original to make a copy that is prohibited, as you say.

If you wonder why some uses can be prohibited and others not, one need only ask what “exclusive use” means, and where lines should be drawn to balance the rights of private property ownership and the rights of individual liberty. Like most things in life, there cannot be an absolute bright line that holds true for every circumstance.

Every legal doctrine, including such ancient and well understood doctrines as trespass, is full of these distinctions. The fact that they are arbitrary to some degree does not make them “magic” or “contradictory”. We seem to be able to tell the difference between a public park and someone’s front yard without much difficulty. When airplanes were invented, the doctrine of trespass was modified to draw an arbitrary line in the sky. Lawsuits between adjacent landowners sometimes involve mere inches either way.

If we can say “using another’s land without consent” is trespass and a prohibited use of land, even if you use your own property (feet) to do it, then we can likewise say that “using an original novel to make a copy” is a prohibited use of the novel, even if we use your own paper or your own Xerox machine to do it.

It is meaningless to try to apply a general concept of causality to all possible interactions. Likewise, this does not mean that causality is meaningless. It is a well understood doctrine in the determination of legal liability for an ac, to ask after actual and proximate causes of that act.

For a given prohibited act, did the act cause the action to occur, (entering the land) and was the actor (the person who entered the land on his own volition) the cause of the act? In trespass, the question might be, “Did the car enter the property of another without consent?”, and “Did the driver X direct the car into the other’s property?” If both are affirmative, the driver X is liable for the prohibited act.

In copyrights, the question might be “Was a copy produced?” and “Did person X direct the copy to be made?” If so, then person X is liable for the prohibited act.

The only criteria for defining a prohibited act is that it be defined in such a way that it can factually be proven to have occurred, who specifically caused to have occurred, and that the prohibition itself is defensible as legitimate.

In both trespass and copyrights, the legitimate defense of the prohibited act is derived from the doctrine of private property rights.

As I said, this is not rocket science.

Peter Surda July 28, 2011 at 7:01 am

Another typical Wildberrish post.

First you say that “use” is the relevant factor for property rights, but then continue that use is divided into “prohibited” and “permitted”, thus making the first part of the sentence irrelevant. You have been repeating this pattern for quite some time, first implying property rights from causality, and then backpedaling from the question whether causality is a sufficient condition. You can’t expect people to take this argument seriously. It’s just a poor rhetorical trick.

The core of the rest of your post is that this distinction (between permitted and prohibited) is based on historical evolution rather than deductive reasoning. But that does not prevent you from using this distinction in allegedly deductive reasoning with regards to ethics and economics. You can’t have it both ways. Either the distinction between permitted and prohibited actions is praxeological, and then you can use it in economic discourse. Or it is empirical, and then you cannot.

What you’re presenting is just a magic show. We’re supposed to be distracted by pretty colours and sounds, while you, with all seriousness, attempt to persuade us that it’s real.

Wildberry July 30, 2011 at 11:16 am

If deductive reasoning was all that was ever required in life, I might agree with you.

It is sad to see someone flail aroud trying to limit themselves to deductive reasoning to explain the world around them. They do not seem to appreciate the possibility of the limitations being imposed by the unknowable factors that are the fundamental conditions of subsequent reasoning. What is unknowable is the subjective calculus of the individual actor. This initial condition that proceeds all action is a fundamental condition necessary for such action. An ethical principle that is sufficiently accepted and durable over time becomes the “Shelling point” that becomes the defensible position.

David Friedman was writen brilliantly on the subject here: http://www.daviddfriedman.com/Academic/Property/Property.html

There is such a thing as prohibited uses, and these uses which are prohibited coincide with ethical, legal and economic institutions of the society we exist within.

sweatervest July 30, 2011 at 1:43 pm

“If deductive reasoning was all that was ever required in life, I might agree with you.”

You just conceded your case as best you possibly could.

The only way to justify anything is with deductive reasoning. Whatever you think you are doing here, it is deductive reasoning. Therefore your argument, “yeah, that is what deductive reasoning establishes, but so what?” is self-contradicting because whatever you would argue would be an application, sound or unsound, of deductive reasoning. At the very least one would need to respond to this with, “yeah, you deduced that deduction doesn’t matter, but so what?” What other process do you think you have invoked?

“It is sad to see someone flail aroud trying to limit themselves to deductive reasoning to explain the world around them.”

As though you have some other means of “explaining” the world. What else could an explanation possibly be? An explanation is a series of propositions tied together with logical connectives. There is no alternative. Whatever you think you have contributed here that is not deductive reasoning, it still is deductive reasoning, regardless of how sound or unsound it may be.

Think about what you are doing: using your premise that restricting one’s self to deduction is bad, and using that to deduce your conclusion!

“They do not seem to appreciate the possibility of the limitations being imposed by the unknowable factors that are the fundamental conditions of subsequent reasoning.”

That is a straw man and you know it. Obviously the use of deductive reasoning is the only means by which one can establish knowledge of one’s limitation of knowledge. The fact that one’s knowledge has limitations and what those limitations are is itself a piece of knowledge and must be deduced. It is precisely and only deductive reasoning that allows one to arrive at the conclusion, “there are certain things no one can know”.

“What is unknowable is the subjective calculus of the individual actor.”

Subjective calculus? I don’t even know what that could mean. I cannot pinpoint the meaning of this statement.

“This initial condition that proceeds all action is a fundamental condition necessary for such action.”

I can’t really comment, seeing that I fail to grasp this initial condition. I’m not sure where you are going with this either, though I am extremely suspect seeing that you began this post with an argument that deducing something from true premises is not sufficient to prove that something, which makes me wonder what other form a proof could ever take. If you are suggested proof is generally impossible, then you concede your own point, being unable to prove it.

“An ethical principle that is sufficiently accepted and durable over time becomes the “Shelling point” that becomes the defensible position.”

And the whole point that I think you refuse to see is that in order for people to “accept”, or more-so “agree” on anything they must adopt behavioral norms that are necessary for cooperation and agreement to be possible. The necessary conditions for such cooperation are private property rights established by homesteading and transferred through voluntary trade. Same goes for durability. Any ethic other than this private property ethic leads to its own demise.

That you use agreement as a starting point for ethics gets you nowhere, for the simple fact that there is no agreement. Your theory is at least usable in a situation where such an agreement exists (everyone agrees? 90% agrees? 80%? This is as bad as the idea of the “scientific consensus” which is the biggest mockery of science ever conceived, but I will brush this off for now). Your theory is utterly useless for any situation in which there is a persisting disagreement, which is otherwise called the real world. I find it ironic that you accuse me of living in my unrealistic land of ideals, and criticize Rothbard for using Crusoe economics, and meanwhile you present a theory that will never, ever apply to the actual reality in which we live. There is no agreement (we are, after all, debating and therefore disagreeing!) and so your theory simply does not apply here any more than a theory of fluid mechanics applies to the motion of a solid object.

Your theory gives no insight into what is to be concluded when no agreement can be reached. What happens when 51% of people agree that homesteading resources is justified, and 49% agree that unused resources are “public goods”? You theory gives no answer. It tells us that if 100% agreed with homesteading then homesteading is justified, and it tells that if 100% agreed with the public goods view then homesteading is unjustified. It tells us nothing about every other case, which are the only cases that will ever actually exist.

Additionally, that gives no insight into IP as it forces one to retreat from *any* argument for or against IP, and instead refer to the prevailing opinion at the time. You have done no attempt to pin down this prevailing opinion (i.e. whether any significant amount of people agree on IP right now) or demonstrate how such an ethical standard is in fact durable. Even if you did demonstrate that the prevailing opinion is pro-IP it would fail to establish the only thing you would want to establish, which is that IP will continue to be justified. You would have to continue re-polling popular opinion over and over, and be prepared to adjust your position accordingly.

You obviously do not even accept your claim that property rights are defined by agreement due to the fact that you are here presenting logical arguments in favor of a particular ethical position. That you have come here to defend IP and have not cited statistical studies about what people believe and instead present what at least attempts to be logical arguments that lead to the logical conclusion that IP is justified means that you actually believe and act according to the belief that ethics is a rational endeavor that can be accomplished by logical arguments, i.e. deductive reasoning alone and that the existence or even dominance of a different position certainly does not invalidate your own position.

But to return this to the reason I responded here, to claim that deductive reasoning is not the only way to produce knowledge is the best thing I could hope to hear from you. Once the other side admits that the side I am on has succeeded in deducing their conclusions from sound premises then the argument is over as far as I am concerned. The agreement has been reached: one can deduce the anti-IP position from true premises. There is no further burden of proof, nor is there any other form of proof conceivable.

sweatervest July 30, 2011 at 1:52 pm

“There is such a thing as prohibited uses, and these uses which are prohibited coincide with ethical, legal and economic institutions of the society we exist within.”

In other words, we have rules and are compelled to follow them. And that supports your position how?

I just don’t know what you think you have learned with this face-value outlook on things. This doesn’t even count as a theory. It’s just a description of facts. It’s just saying what is happening. That is not critical analysis.

Nobody is confused about what laws exist and what people do. It is no intellectual accomplishment to recite historical facts.

In perfect line with your rejection of deductive reasoning as the only way to establish any knowledge ever, I submit that your whole case here is an attack on critical analysis and that you are merely insisting that there is no such thing as understanding, only history. I cannot help but think you are trying to tell us we are simply unable to comment on what happens, only to observe and note what happens. IP exists, and that’s all there is to say about it. I know you yourself don’t even believe this, seeing that you make attempts to defend IP (it would need no defense if you took your face-value approach seriously enough), but you invoke it all the time.

Your theory of property rights seems to be “people do certain things”.

Peter Surda July 31, 2011 at 12:42 pm

Wildberry,

sweatervest already pointed out the error in your claim: it’s the denial of elementary logic. I recommend that instead of reading about economics, you read about logic, for example by Hazlitt, or even better David Gordon.

I’ll just summarise what you’ve done so far. You have, at occasions, presented different justifications for IP:
- it decreases externalities
- it promotes dissemination of works
- it is the outcome of historical developments
- it is the consequence of property rights

I’ll ignore now that there is no reason why these should be even compatible with each other, there is also the problem that they are fundamentally different and you use them to justify each other. Just like recently, when I pushed you to show why IP decreases externalities (1), you eventually said that because it is the outcome of historical developments (3). This is not a valid retort.

What you produce is a horrible mess.

Kid Salami August 1, 2011 at 5:24 am

sweatervest

And the whole point that I think you refuse to see is that in order for people to “accept”, or more-so “agree” on anything they must adopt behavioral norms that are necessary for cooperation and agreement to be possible. The necessary conditions for such cooperation are private property rights established by homesteading and transferred through voluntary trade.

I know you were talking to Wildberry, but is certainly not something that I “refuse to see”. What you are referring to is grundnorms which kinsella discusses here

http://mises.org/daily/3660

and here

http://blog.mises.org/9839/the-division-of-labor-as-the-source-of-grundnorms-and-rights/comment-page-1/?replytocom=535468

Are you absolutely sure there is no circularity here, that the homesteading process and voluntary exchange mechanisms you describe are not in any way circular? That is, are you sure you don’t have to assume any of your conclusions for this to work? I’m not. (I’m much more sure that once you introduce “co-ownership” that serious logical problems arise in this area, but as you are not feeding this particular rabbit then there is no need for you to consider this).

But anyway, are you going to clearly answer my earlier question? Is the current operation of the type of easement I described in my example compatible with your version of ancap, as you describe above, that is with “private property rights established by homesteading and transferred through voluntary trade”? And where you use this definition:

It is metaphorical stretching to speak of homestead of a use. Either a physical good has been permanently changed by use, making it homesteaded by that user, or it is not permanently changed by that use, meaning it returns to a state of being unowned after being used. Homesteading a use doesn’t mean anything. There is no way to leave a mark of action of the use of something.

I believe not.

Wildberry August 1, 2011 at 11:37 am

“Your theory of property rights seems to be “people do certain things”.”

They do them for a certain reason. That reason is cooperation, the corollary to division of labor. They act for a reason. One such action is to establish rules of conduct. David Friedman referres to these agreements as “Shelling points”.

I have said earlier that rights, all rights, are first asserted and then defended. Cooperating humans are capable of forming a common defense of something. One of those things is property rights that follow certain rules. These rules evolve over time. The fact that a rule exists is a clue that it has been successfuly defended against many attacks. A given rule is durable if it continues to “prove” its value as a tool for cooperation, and is therefroe worthy of continued defense.

In this regard, the fact that a given rule of property has long history is relevant to its durability. Durable rules tend to coincide with the ethics, morals, economic theories and legal rules of the society within which they appear.

Jay Lakner August 1, 2011 at 12:28 pm

Sweatervest (talking to Wildberry) wrote:

Your theory of property rights seems to be “people do certain things”.

TKO!

Peter Surda August 2, 2011 at 3:58 am

Wildberry,

They do them for a certain reason. That reason is cooperation, the corollary to division of labor.

So now you provide a fifth distinct justification of IP: they are supposed to encourage cooperation.

It is evident that whether you actually do have a coherent theory, you are in no rush in expressing it. Yet you are simultaneously adamant that it’s the others that are wrong. I already told you what my response is: it’s boring.

There is no point in just endlessly batting the same ball back and forth, because my feeling is that you do nothing with the input, just like Surda.

If you feel that your efforts are underappreciated, then why do you avoid engaging in a genuine debate? Why all the smoke and mirrors? Why don’t you dazzle us with brilliance rather than bore us with cheap rhetorical tricks?

sweatervest July 30, 2011 at 2:06 pm

“I’m still guilty of tresspassing and they can sue me for it”

What could they sue you for? As you explained, you caused no measurable change and therefore there are no damages to speak of. What possible restitution could be established by a court case? You are off the property, caused no change while you were on it, and so as far as the owners are concerned your trespass never happened. They would only care about the possibility of you doing something like that again, and they reserve the right to stop you from doing that.

If a person is trespassing then the rightful owner can justifiably force the trespasser off his property. If the trespasser leaves voluntarily before the owner applies such force then the owner cannot justifiably chase the trespasser and take some of his property just for trespassing. That someone trespassed on you does not give you the right to confiscate from him.

DensityDuck August 1, 2011 at 12:30 pm

“I’m still guilty of tresspassing and they can sue me for it”
“What could they sue you for? As you explained, you caused no measurable change and therefore there are no damages to speak of. What possible restitution could be established by a court case?”

Do you not see how you’re arguing against the notion of property rights?

If you’re arguing that unauthorized use of property, physical property, is acceptable as long as no change is made…then why can’t I then argue that it should be okay so long as I don’t make a permanent change? Or so long as I fairly compensate the owner afterwards?

sweatervest July 31, 2011 at 11:14 pm

“A copy of a novel is an economic good, because the production of that copy came from the same scarce resources as the novel, i.e. the author.”

That something “comes from scarce resources”, which is very vague anyways, is not the condition for something being an economic good. Nature provides economic goods as well. They do not “come from” anyone’s body.

“You can show not “chain of custody” that does not originate with the original that the copy was made from. Copies that do not exist yet are not economic goods, because they do not exist yet.”

Indeed, which is why it is absurd to make ownership claims over every conceivable copy of something both now and in the future, which is what you are doing.

“You cannot sell something that does not exist”

And yet you can make ownership claims over it? If we agree the future copies do not exist yet then surely nothing you say or do now can establish your future ownership of those future copies.

“Once the copies exist, they have the same serviceability as the original; i.e. the same utility, the same benefit from use.”

No they do not and you are clearly confused about the law of diminishing marginal utility. That law depends critically on the various units of a good being identical and completely interchangeable. Each unit is, for the actor, a different instance of the same good, and that is precisely how one reaches the conclusion that the marginal utility of next unit is smaller than that of the current unit. To follow your example I will refer you to Human Action for more on that.

They do not provide the same benefit from use because once you use one copy the next copy cannot be used for the same thing. It must be put to some other less urgent use.

My point about marginal utility is quite simple: all other things held constant the price of a good decreases as its available supply increases. Do you deny that or not?

“Fair use is a doctrine of compromise.”

A compromise amongst lawmakers about the property rights of everyone else. It’s like A and B reaching a compromise on how to rob C.

“Just as with going 100% with “ideas are free”,”

Who is doing that? What does it even mean to say ideas are free? Care to clarify?

“going 100% for private property has problems”

That depends on who you are asking. It is not objectively good that more creative goods are produced at the expense of other goods.

“when the serviceability of an economic good is inexhaustible.”

This is the only thing anyone has ever meant by saying “ideas are free” so you contradict yourself within two sentences.

“So you have to make a rule about what is a “fair use” and what is a “prohibited use”.”

We “have” to? Why, because you cited a complaint about the other possibilities? An aspiring dictator would be extremely unhappy in a world with well-enforced private property. Shall we compromise with him to make him happy? Do we “have” to make a rule that takes his needs into account?

“What I am saying, (and what copyright laws say, for the same reason) is that the tradeoff is to GRANT the benefit of utility”

Well that’s typical statist arrogance, to think that one can legislate up the utility of something.

“while also GRANTING the property rights to the product by prohibiting a very specific set of uses”

First of all it is equally arrogant to think that any human institution “grants” rights to any humans. No, my rights are not gifted to me by the powers that be. From where would the granters of rights receive the right to grant or revoke rights? This theory fails.

Second of all prohibiting uses does transfers property rights to the prohibitor, which means, as I have always said, that you are suggesting that authors have ownership claims to everyone else’s property. You cannot help but speak of a phantom, vague concept of “the novel” and it leads to very confused claims of who owns what.

“i.e. copying and commercial distribution of copies. That is the tradeoff compromise solution to the dilemma Mises raises.”

According to whom? Who decides that things work best under this scenario? Are you saying anyone who would prefer a different scenario is objectively wrong in doing so?

“Excuse me? If you are “staring at someone’s novel in plain view” that is a use.”

Excuse me, but no it is not. Use does not mean you are affected by something. According to you I am using your body by looking at it or even by hearing your foot steps. The definition of “use” is not “to be affected by something” it means “to employ something as a means in one of your actions”.

“By the way it is a fair use, and it not prohibited.”

Haha of course, obviously! And how again did you make this decision? I would love for you to share how you decide what things are “fair use” and what is not, and if you tell me you look up the statutory wall, then answer me how they decide what is fair use and not.

“Otherwise it would be illegal to borrow books from the library, which it is not.”

Should it be? How could one answer such a question?

“If you are “copying it” you are using it.”

No you are not, any more than you are using another person by looking at him.

“You do not only “use your property” to create a copy, you MUST use the novel, otherwise you cannot call it a copy.”

No you must be affected by the novel. That is not use. I will explain in more detail later why your definition of “use” is, well, useless.

“There may be many things you can do with your own property, but using them to copy a novel is a use of the novel. There is no way around that.”

No, when light reflects off something and then enters your eyes you do not make use of the thing off which the light reflected. You don’t even need to touch it. Observation and use are two different things. That is why one speaks of “passive observation”, i.e. you look but don’t use.

“I have been over this a thousand times. I’m too busy to look up the links for you. There are millions of limitations on the actions you may take with your own property. Exactly how many and what actions are determined by the rights of others. This is the universal principle of Non-Aggression. If you want to read an interesting treatment of your argument by Mises, follow the link I provided earlier to Liberty and Property. It is here:”

I have been over a thousand times why copying cannot be a legitimate restricted use because uses are restricted when they are self-conflicting, i.e. if A can use his property in manner X that inhibits or prevents B from using his property in manner X. That A can copy B’s ideas onto A’s property does not at all conflict with B’s ability to copy A’s ideas onto B’s property. Therefore the non-aggression axiom cannot establish copying as an unjustifiable use. The only unjustifiable uses of property are those that destroy the property or prevent the use of the property of others. Copying does not destroy property or prevent use of such property.

“You are hiding in a familiar corner. A theory embraces something by integrating it consistently and coherently.”

That is even more nonsense! How does a theory “integrate” something!? Are you trying to say in a really convoluted way that a certain claim is a part of or implication of some theory?

“Relativity embraces Newtonian physics by demonstrating that they are an accurate approximation for phenomena with masses and velocities within the scope of human experience.”

I don’t know what that is supposed to mean. Relativity reduces to classical physics in the limit of low velocities. What does that have to do with “embracing”. I swear it would be much easier to follow you if you just said what you are trying to say instead of trying to dress it up and make it poetic.

“Mises’s treatment of catallactics and praxeology embrace private property theory, including monopoly, external costs/benefits, and external economies.”

In other words, I think, private property is a part of Mises’s economics. Either way I have already explained where Mises’ theory of monopoly prices was refuted. Man, Economy & State by Rothbard.

“You know way too little about property theory to make the claim that I haven’t been consistent with such a theory.”

First, that is irrelevant, either what I say is wrong and can be corrected or it is right and no correction is needed. Second, you have no means to critique my knowledge of Mises. Third, every time you mention anything about Rothbard or Hoppe’s property theories you grossly misrepresent them.

“Also, it is not my theory. It is the predominant theory of property that currently operates in our time, and one which has a very long history and tradition.”

Uh oh, is that an appeal to convention and popularity!? Thinking the earth is flat has a long history and tradition too.

“You got caught on your arguments against easements when you later admitted you didn’t know that much about them.”

Yes I admitted that. How is that me getting “caught”? It wasn’t something someone else said that prompted me to point out my own ignorance, it was me re-reading my own posts and thinking I was debating something different from everyone else. Strange you say this and don’t point out how my argument was wrong. I still stand by my conclusion about easements: they are legitimate if and only if they can be established with contracts. Otherwise they are unjustifiable.

“You are making the same mistake here and now.”

Whatever ignorance I have is beside the point. If I say something wrong then correct it. Even someone intimately familiar with a subject can err in his analysis, and even the most ignorant newcomer can correct a well-read veteran. Quit meta-arguing and actually argue. Stop just telling me I am wrong and instead demonstrate your claim. Find the error and correct it rather than just speaking to the existence of an error.

“OK, you can say that (although we could debate if it is universally true; i.e. the “planets” are not a human device, so there are possible exceptions).”

Yes, planets are a human device. Planets are a way to organize one’s sensory experiences and understand them. A “planet” is something conceived of by a human and used to categorize what he sees when he looks in the sky. It is just as much a human construction as anything else. You seem to be confusing “human device” with “fiction”.

“All I am saying is Property is more like math or “homesteading” than it is like gravity or a planet. It is a set of rules made by humans to serve human purposes.”

So, what, you think deriving math theorems is a matter of agreement, or it’s like writing a fictional story? What is you big point here? Are you really trying to tell me you think math is fiction? If not then your point is moot, because you admit there is something beyond what humans agree on that guides the construction of these things, and your whole point about property is conceded.

“That is what “property rights” are. Nothing more, nothing less.”

So what?

“Are you sure? Is math a matter of agreement? I would argue it is.”

You would argue that? Okay, then do it, and see the big roadblock for yourself. I would love to see this argument. If math is a matter of agreement, then it is nothing short of an amazing coincidence that every system of math has been almost entirely the same. People just happen to agree on the same rules every time! How strange!!

As usual, your theories may be interesting but they fail to do the one thing that any theory is supposed to do, which is explain reality. Everything is just a big fat mystery the way you look at things.

“The fact that it can be “proven” is the reason it can be universally adopted. “proven” simply means that we can count on the principles of math operating consistently in every application.”

And so you admit that math is not agreed upon but proven. I can’t keep up with these contradictions!

“Property rules are no different.”

Right. Property rules can be proven. Mine can be proven right and I have submitted attempts of such. Yours can be proven wrong and I have submitted attempts at that as well.

“Their purpose is to establish a rule that cooperating humans can count on to operate consistently and uniformly. That certainty facilitates cooperation and trade, and reduces somewhat potential sources of conflict. I doubt you disagree with much of what I am saying here.”

Right. IP cannot be counted on consistently or uniformly, which is why you have to make exceptions to it through fair use. It does not facilitate cooperation and trade, seeing that it is intent on restricting the supply of certain goods and therefore violently stopping the cooperation and trade that would otherwise result in an abundance of those goods. It exacerbates conflicts as the myriad of patent lawsuits and international conflicts caused by copyright law illustrates.

“A society will accept property rights that are successfully asserted, and then defended.”

Why? Are you actually suggesting that once you soundly assert and defend something everyone will listen to you? If only…

“At the level of barbarism, that defense is might.”

No, might is not a defense. Again you are being too metaphorical and vague with your terms. A defense is an argument. You defend your property with weapons and barriers. You defend your right to your property, which is nothing more than a proposition, with an argument. The only way to defend a claim is with an argument.

“AT the level of civilized society, that defense is moral and ethical.”

This is circular. That something can be defended is what it means to be moral and ethical.

“We agree that the defense of the asserted rights are valid and legitimate, and we agree to help defend them. That is the way society builds itself up over time.”

You are, again, confused about what people are agreeing on. People never agreed that two plus two is four. They agree to act according to two plus two being four, and succeed, or they don’t and fail. Reality is not created by humans, it does not exist in our own heads, and it doesn’t just work however we agree it shall (if it did why not agree to do away with scarcity, conflict, pain and everything that is bad and live in the Garden of Eden?).

People are either convinced of a correct property rights theory or they are not. If they are then their interactions will be successful and a wealthy civilization will be the product of such cooperation. If they are not then their interactions will be violent rather than cooperative and no civilization or a very rudimentary one is all that could come about.

As Peter has said, perhaps you should read less economics and read some philosophy and logic first. If you conceive of math as a type of fiction then there is much more at stake than your conception of economics. My quarrels with you are usually ontological and pertain to your vague and inconsistent use of terms (i.e. use means to be affected by something) and your strange conviction that the structure of reality is agreed upon, which I know you don’t take seriously because you took it back a couple statements later when you said math can be proven.

“I am not ignoring, I disagree with you and agree with Mises.”

Disagreement is not an argument. You do that several times in your response here: respond with “I disagree” as if that is a critique of what I said.

“Humans do not continue to allocate resources to endeavors that are unprofitable.”

They do if they are mistaken, but that is irrelevant to what we are debating.

“Producing for external economies is always unprofitable.”

No it is not! Please show me where you got this from! That other people profit freely from your efforts does not imply that you do not profit from them as well! When I wear deodorant I also profit, as you yourself admitted, because I get treated better when I smell nice. So what if other people get free rides? I still profit. Producing for external economies is profitable plenty of times. Your claim has been falsified as much as any claim ever could be.

“That is the simple reason why the anti-IP position that “ideas/IP are free” will result in fewer quantity and lessor quality of intellectual production”

If this is true then the larger quantity and greater quality of creative goods with IP comes at the opportunity cost of all the goods that could have been otherwise produced. Who are you to say “society” is better off with the creative goods instead of the other goods?

“it wouldn’t pay. This is not rocket science.”

Apparently it is for you. It is clearly confusing you as much as rocket science confuses the layman that I produce for external economies every time I brush my teeth or act nice to people, and yet I do it anyways, and you literally just said people do not produce in unprofitable ways for long. Your claim is nonsense. However much if it all others profit from my actions does not conflict with me profiting personally from those actions. Your arguments concerning externalities are absurd, and if you misunderstand Rothbard and Hoppe so completely I will not assume that you actually understand Mises.

“Do you deny that if I write a book and sell copies of it, and you come along and buy a copy and start printing them and selling them, that there would be a conflict? Why wouldn’t there be?”

Because there is no interaction. A conflict is not when A is pissed off at B for doing something, it is when A and B both try to do things that cannot both happen. For example, if A and B both want to eat this whole piece of bread that is a conflict. There at least has to be an interaction for there to be a conflict. All you are describing is how you would get pissed off and *start* a conflict with me over my property because you erroneously think you have a property right in “the novel” that means anything beyond your claim to a specific copy here and now of the novel.

A perfect example of how misunderstanding property rights leads to the creation of more conflicts. I’m not saying no one will be pissed off at each other, but you being mad at me is not a conflict. It’s just a potential reason for you to create a conflict.

“Only if you can do it without me knowing, this would make you a thief in the night. If you did it in the open, there would be a fight. Why isn’t that conflict?”

It’s only a conflict after you throw the punch. I don’t start the conflict by copying, you start it by responding to this upsetting you by starting a fight with me over it.

“Yes, or they can both drink tea. Just because I write a book doesn’t mean anyone is interested in buying it, or even reading it. In that regard, the consumer is king.”

Unless of course you are the consumer of electronic goods and think when you buy a computer and an internet connection you can actually use them to the extent you don’t trespass on the property of others (and no, downloading something that has been uploaded to the Pirate Bay, a site that welcomes me to download whatever I want, is not trespassing on anyone’s property).

“Just because you don’t want to buy my book doesn’t mean you can demand it for free.”

I don’t need to demand it for free. It’s already on the Pirate Bay for me to download for free. There is no demand being made at all, except when you demand that I erase the copy I downloaded for free. You are demanding, not me.

“If it’s mine, that is up to me. It is my offer to make, and your offer to accept. That is the freedom of trade.”

*What* is yours? Your whole case is just an abuse of pronouns. The “it” is either the copy of the novel right here and right now, and no one has ever denied that is yours, or “it” is the intangible idea of the novel, the class of all copies of the novel, which is not an economic good and it is meaningless to ascribe value or ownership to such a thing.

“This is not really true, because your statement does not take into consideration the context of how institutions is society get established. History is full of instances where a person promoted a new idea, and somehow it got adopted by his society and became the rule that every followed and defended. That is how property rules become institutions, which eventually become laws.”

You don’t understand the difference between theory and history. Perhaps, since you are so keen on redirecting me to Mises, you should read the book he wrote *called* “Theory and History”.

You just described the history of how laws came to be recognized. That is entirely irrelevant to a theory of what those laws are and why they exist.

“You remain stuck on the idea of a “scarce good” and fail to recognize the importance of “scarce means”.”

A scarce means and a scarce good are the same thing. A good is a good because it is employed as a means in action.

“Scarce means produce scarce goods. Before I was born, there was no novel. When I wrote it, there was. I am the producer of the novel. I am the scarce means of production of that novel. No one can claim better title to it than me.”

And once again there is that dastardly “it”. If by “it” you mean the one original copy of the novel right here and now, the only thing you actually produced, then everyone already agrees with you. You are the owner of that copy of the novel. If by “it” you are including any copies that are made by other people, then it is *not* your body that is the scarce means that produced those copies but it was *their* bodies that are the scarce means. By your own argument they, being the producers of those copies with their scarce bodies, have the best claim to ownership.

“It is the source and origin of all copies of it.”

Oh, that’s a bit of a stretch. You did not work to produce the copies. The copiers did that. It is their bodies that worked to make the copies. But they couldn’t make those copies if you didn’t make the original copy first. Indeed. Could you have written the original copy if you had not first read some others novels, gotten some inspiration, and learned some of the common knowledge about what goes into a novel (a plot, a setting, characters, a climax). You simply could not have written your original copy if it were not for the many authors before you, who all helped solidify the modern concept of a novel and, more importantly, whose specific novels gave you specific inspiration for your characters, plot elements, etc. So if you are in a position to claim you own the copies then those who inspired you can equally claim they own your original copy and hence all the copies. This is the “originality” argument Kinsella and others have presented. To be clear I am not saying you nearly copied another novel and it is up for debate whether or not it is really “original”. I am saying even if we all agree it is a new, unique and original novel, you could never have written a new original novel without taking inspiration for other authors.

The copiers use their bodies as the scarce means to produce copies. Your only argument for tying those copies back to you, the author, is causality. But causality ties your original copy back to the novels that inspired you, and them to the novels that inspired their authors, etc. A reduction to the absurd.

“Each copy has equal utility to the original.”

I already addressed this. To be fair, Block and Hoppe have had some pretty heated debates over the “interchangeability” of marginal units with respect to diminishing utility. I will admit this is a subtle problem to understand, though I stand by my (and Hoppe’s) understanding of it. Not to discourage you from elaborating more on why you think diminishing utility would not apply to copies of novels just as much as it applies to identical units of any good.

“Therefore, it is reasonable to treat that novel and all copies of it as a private property.”

That is precisely what I am doing. This debate is not over private verses public property. You are not advocating public ownership, nor am I. What matters is *who* is the private owner of what. You claim the author owns all copies, I claim the owner of the goods turned into a copy is the owner of the copy.

“To treat it any other way is to make the products of scarce means of production, a non-economic good; i.e. a free good.”

But I am not doing that. You refuse to accept that there are only two working definitions of “novel”, for example, and that we do not quarrel that one can own the “novel” as the copy right here and now, but if you mean anything else when you say “novel” than this copy right here than you are speaking of something that is not an economic good at all and thus there is no question of value or ownership.

“Well, perhaps we are going to have to just agree to disagree. Maybe this will take you some time.”

Well, that’s what we do at the end of any of our posts. For one I think it’s rather boring to simply state our disagreement. Come on, let’s butt heads over this. It makes for some pretty interesting blogs, you must admit.

“You seem to be hung up on the idea that the second category, the set of all copies that “could” ever be, is taking a property interest in something that doesn’t exist. The property interest does not arise until the copy exists.”

You are correct that I insist the second definition of “novel” must include not only copies that exist but any copies that ever could exist, but this is really beside the point. I will ignore my insistence for the sake of this argument and say that I am hung up on taking a property interest in something that is not something that is ever actually employed as a means in action. Even if you take a property interest in the class of all *existing* copies of the novel, it remains that the class itself is not a means in action. It is only the members of this class that are means. One can own the members, but not the class itself, and so ownership can only ever be a claim to a particular instance right there and then.

“It cannot exist unless it is a copy, i.e. it has been copied form an original. All copies that have been copied are real and tangible. There are no “phantom” copies to worry about.”

I maintain that one does need to worry about the phantom copies, for is not the crucial question about whether or not tomorrow after I turn my property into a new copy of your novel you own that novel? Can you say today whether or not you would own that yet-to-exist copy tomorrow? Sure, you can only own it once it comes into existence. But can you preemptively make that claim today? Can you tell me if I make another copy tomorrow it will become your property as well?

But, to reiterate, I can brush that aside for the sake of argument and still raise my objection that the class of existing copies is not itself a good and there is no question of value or ownership any more than there is a question of the value of “gold” as a good per se rather than the value of this piece of gold right here and now.

“Maybe I don’t understand what you intend to say. IP implies a property right. Tangible copies of the original novel can be owned. Copies that have not been made yet cannot be owned. Is that OK with you?”

I already addressed the not-yet-existing copies question, but let me ask you this. When you say you own the novel do you mean all copies that exist right now? That is the problem I see. There is never a legitimate claim of ownership over a whole class of goods.

“Of course it does. Regardless of the means that are employed to enforce property rights, they either exist or they do not.”

Hey you’re starting to sound like me! I know what you are trying to say, which is why IP is an issue of what property rights are and not how they can be transferred (contracts).

“Whether I have a fence or a police dog, there is no question that I have a right to a defense. When you deny property rights, you deny the right to defense. This is what IP opponents advocate, and why the claim that IP is aggression. If a person is trying to defend rights that he doesn’t have, that is aggression.”

Sure, which is why, as I’m sure we are all realizing, it is of crucial importance to define property rights. To say “I advocate property” says nothing until you clarify what property is. With different definitions of property rights one persons’s defense becomes another’s aggression. One’s theory of property guides one’s conception of these things. That is why we, two libertarians who are both property proponents, can disagree basically as strongly as a socialist and a capitalist (maybe why that nasty “s” word keeps getting thrown around here).

“You need to study the Mises passage, and read backwards to see how he comes to that particular passage. I don’t think you do, or perhaps you don’t understand what the first paragraph means concerning the “inexhaustibility of serviceability”. I am short-handing this paragraph by using the phrase “ideas are free”. To treat “intellectual creations” only in terms of their “inexhaustibility of serviceability” is to ignore the other problem that arises from this lack of property rights; i.e. “producing [for] external economies”.”

Well as I’m sure you now know I am not at all convinced that production for an external economy is a problem. If I disagree with Mises, then so be it. But it *may* be remotely possible that you have misinterpreted Mises. I mean, Human Action is some dense stuff. I often have to re-read passages a few times to really get them, and I’m not sure I get them yet. I get the feeling from his section on monopoly prices that he reverted back to older, less rigorous theories instead of pushing his own praxeology boldly into this new area, which is what I think Rothbard actually did. Also, I think in general the *only* error Mises made in his writings was succumbing to the public goods theory for just a few goods: security/justice (the night-watchman state) and creative goods, the only two times I recall him saying monopolies can be good for consumers. Rothbard carried praxeology home by establishing the superiority of competitive production for *all* goods.

“That is all I am saying. You just need to apply that concept to the production of intellectual products, what Mises calls “intellectual creations”. If the author is the private means, then what he produces are also private property. Simple.”

But as I said I don’t deny that. To be clear, an author can only produce copies of a novel, including the original copy. He does not produce anything else. If someone else produces a copy with his scarce means, well then your argument implies the copier owns the copy!

“Try to be more careful with words. I said the utility OF the good.”

I know. My complaint is that the product is not the utility, it is the good itself. Goods are the product of production, not the utility of those goods.

“You keep using “means employed in action”. That is not the same thing as “means of production”.”

Sure they are, just a specific type. Means of production are means you employ in a specific way that counts as production.

“But we can say what a copy of a novel is. That is what we are talking about, nothing more.”

Okay well you made the original copy and own it, and I made another copy and own that. What’s the problem?

“No you haven’t. I don’t get your advertisers example, so that makes me think you don’t understand the problem.”

Well that means to me you don’t understand the problem. An externality is a benefit or loss for someone not involved in the production of something, including its financing. You get to look at ads for free when you drive down the street, and they tell you something useful that you benefit from. That is a positive externality. Advertisements are thus produced for an external market. The people who benefit from advertisements do not pay for those ads. The fact they benefit in turn results in the sellers of the advertised products benefiting, which is why they pay advertisers. That is a perfect example of how production for external economies *is* profitable, even with monetary profits.

“The economic problem arises from the same source as problems for a free market that does not have private property rules, or has it for some classes and not others. There is nothing unique here in that regard.”

That is not true. Externalities are not the problems that interfere with production in the absence of property rights. Say I have a farm in a place where no one respects property rights. The reason why my farm will fail is not because other people gain something from my farm being there without paying me (i.e. they take my crops and eat them). It is because other people must take something away from me in order to gain that something. It is because I have my crops taken, and no longer have crops, and cannot continue to farm. That other people benefit from me farming without paying me is irrelevant. It is only relevant that I am having my own property taken away from me. Even if I grew poisonous crops and it caused negative externalities to the surrounding population it would still undermine my farm to have the crops taken.

“Whenever you fail to secure private property rights in the scarce means of production, it causes the problems of socialism. That is the Mises argument that he made his entire career.”

Indeed. That would be relevant for someone arguing against private ownership of the means of production.

Nothing about IP abolitionism implies an impossibility of factor prices in creative goods. It would just shift the focus from the copies of creative goods and their prices to the creative people themselves and their “prices”, i.e. the wages they offer and can reasonably expect to achieve for their creative work.

“You are wrong about this.”

No I am not. I am not advocating public ownership of anything. Without IP authors remain the exclusive owners of their bodies and the things they produce with their bodies. You jump from production with scarce means to causality tying one production to another production. Copiers employ their scarce means, their bodies, to make copies. They don’t make use of the author’s body to make copies. That is what you are trying to say and it is absurd.

“If you extend “ideas are free” to “intellectual creations”, or IP”

As you yourself admitted, “ideas are free” is a just a short-hand for the “inexhaustibility of the usefulness of ideas”. No one is “extending anything”. A novel (the abstract idea) is inexhaustible in its usefulness (the one physical copy *is* exhaustible), plain and simple.

“then you have what is in effect public ownership of scarce means. I say effect, because it produces the same outcome as if an author worked for the state, and denied him ownership of his production. The result is precisely the same.”

No it is not. Socialism is not externalities, it is trespassing, which are two completely different things. That you use the phrase “in effect” is, as far as I can tell, a partial admission that you are barking up an absurd tree. It is not public ownership, even if the outcome resembles public ownership which I still fail to see how it would. I am not denying the author ownership of his production, you are denying the copier ownership of his production and citing a causality argument that would equally disqualify your claim to your original copy.

“This is such a confused statement that I can’t possibly sort it out. Why not throw in the kitchen sink?”

Translation: “This is such a bulletproof statement that I cannot possibly critique it.”

Allow me to try again: to own something you must be its user or have it given to you by its user. You can only use a definite unit of a good. You never use an entire class of goods or a good per se. Thus ownership is a claim only over a unit of property. IP claims cannot be over specific units of property but entire classes and are therefore invalid because one is claiming ownership over something he never used and was not given to him by the user.

“Oh, but you are. You are setting up a rule that denies private property rights in a particular field of production.”

No I am not. I have never denied that any copy of a novel is privately owned by *someone*. You claim they are all owned by the author. I claim they are owned by the owner of whatever property was transformed into the copy.

“If you make a rule that said that anyone that grows corn must be willing to allow people to come into his field and eat it without compensation”

There is no analogy. When I copy your novel *you still have your copy*!!! I don’t confiscate your copy and run off into the night. *That* is what happens when people take my corn. The only reason this is a problem is because I am out of corn myself. The problem is not that people get corn for free, it’s that I get my corn *taken* away from me and no longer have it. What could this have to do with copying?

“do you think you would get more corn and more corn farmers? It is nonsense to say so.”

And so you conclude that I’m actually telling creative people what to do? Well, okay but I’m still not. I have never given advice to any creative person. Perhaps you should remember that I am a creative person and am well aware of what is involved in producing creative works. I’m certainly not insisting that I myself stop producing or produce less. If people get less money then that’s tough, but it still doesn’t amount to me instructing them on what to do. That is quite a stretch, as your uses of terms typically are.

“Central planning is a consequence, not a cause. First comes public ownership of the means of production, then comes the need for central planning, which cannot possibly succeed, for all the reasons that Mises and Hayek are famous for articulating.”

So you admit that central planning is a necessary part of your scheme and continue to call me the socialist!? Strange, but either way central planning is neither a cause nor a consequence of my position. I’m impressed you got the message from Mises and Hayek. I got it too, and it’s why I’m not a socialist. Your argument that I am involves diluting terms until they basically mean anything you need them to and inconsistently applying causality as a criterion for ownership claims. A copier uses his own scarce means to make a copy, not the author’s scarce means. Your public ownership charge is borderline double-talk.

“I’m sorry but you are wrong. The photons being captured originate from the land”

Ah, so photons “originate” there. Hmmm, well in all my studies of quantum physics I’ve never heard of people speak of photons originating anywhere. Either way the light captured by a photo of land is not coming from the land. The land is not glowing. There must be a light source, like the sun, to bounce photons off of the land. What this has to do with “use” I haven’t the slightest.

“otherwise you could not capture an image of the land.”

So? Since when is that part of the definition of “use”?

“It is a use of both the land and your own capacities of perception and camera operation.”

No it’s not. You use something by employing it as a means in action. Your reasoning leads to the conclusion that if I hear your footsteps then I am using your body.

“But it is permissible use that does not amount to trespass. It is a “fair use.””

Ah yes, according to this phantom procedure of evaluating “fair use” you have yet to illuminate in the slightest. How you, or perhaps the legislators you reference, manage to conclude what is “fair use” and not still amazes me.

“I don’t know of any specific writing about photographing, but Kid Salami referred to a passage from Rothbard that confirms his belief that “independent creation” of a book is impossible.”

It is not impossible, it would just be extremely surprising.

“Photographing is a way of capturing a pattern; so is reading to the extent you retain the experience. Coping deals with use.”

No it does not, it deals with being affected by the property of others and choosing to act based on how one has been affected. Being affected by something is not using that something.

“If you captured it on film and locked it in a vault, it would likely be a permissible use.”

Haha why? Why likely? Again, you have this phantom procedure of evaluating these things and don’t care to share with us in the slightest what that procedure is.

“Even if it wasn’t, there could only be nominal damages since it wasn’t distributed.”

Why? What would you say to an author that demanded full compensation regardless?

“Can you memorize a novel word for word? If you could, and typed out the novel word for word, you would have an exact copy.”

And so IP implies I cannot use my own body in a way that does not damage the property of others. Hence my problem with it.

“You think this excuses the act of copying. Why would it?”

No, I have no reason to believe that copying is wrong to begin with. Copying is not something that needs to be excused. Explain to me what it would be.

“It does not matter whether you use a Xerox machine or your perfect photographic memory. It is indisputable in both cases that the means to the copy was the original, which is privately owned by someone other than you.”

Yes, the original copy is owned by someone other than you. The copy you make with your property is owned by you!! And so you admit that use of photographic memory can be prohibited. You cannot even use your own mind justifiably. It doesn’t get much worse than that.

“You are grasping at straws. If the clients of advertisers did not benefit in measurable ways from advertising, they wouldn’t pay for it. If the deodorant wearer didn’t benefit from smelling good, he wouldn’t wear it. If the yard owner didn’t benefit from a nice yard, he wouldn’t take the trouble. People act nice because they feel a benefit. That is the foundation of human action.”

Yeah, exactly, which illustrates how positive externalities are *irrelevant* to how much *you* profit from *your* actions, which implies that production for external economies *can* be profitable and *does* happen and so your whole argument is falsified over and over by everyday experiences all around us. What more proof do you want?

Grasping at straws!? You literally just explained away your own argument! I’m glad you at least are able to see what is wrong with your external economies argument. You just literally explained how one profits from production for an external economy.

“You do not understand. You need to accept that possibility, because otherwise you put yourself in the position that you must believe Mises was a fool.”

Oh wow. Look, you obviously don’t understand, because you disagree with Mises.

Well, you disagree with Rothbard, who wrote far more than Mises and was more rigorous in his writings (not that Mises wasn’t quite rigorous himself). You think Rothbard was a fool. You must, then, accept the possibility that you do not understand.

I could mention that this is a fallacious appeal to authority but you don’t seem very interested in that fact, and will continue to cite this fallacious appeal no matter how many times I identify it as such.

Yes, Mises was wrong. Rothbard said so. Disagree with Rothbard? How arrogant!!

“Mises is not superseding reality, he is describing it!”

He described it and then explained why one should supersede it. He said ideas are inexhaustible and therefore must be produced for external economies. You cannot undo the fact that ideas are inexhaustible, no matter how hard IP schemes try to do so.

“Now you are being silly. People are not going to finance something they cannot profit from”

And you’re not gonna profit from financing creative work you like? So you’re telling me that people do not pay artists ahead of time to make art? Even though Marillion financed several of their albums exactly that way, and that people pay for tickets to see an artist *before* he actually sees that artist?

How many pages of counterexamples to your claim that people would never pay artists ahead of time for their art will it take to get you to let go of this externalities nonsense?

“and you cannot profit from something you do not have a property interest in. You are trying to imagine a new economic system that is based on patrons paying for the labor of creative people”

Yeah, it’s pretty easy to imagine. In fact all investment everywhere involves financing something before knowing how profitable or useful it is going to actually be. Once again, Marillion, a modern sort-of-popular progressive rock band financed at least one of their albums this way. You claim is falsified. Plain and simple. It happens, so it must be possible. Are you telling me things that happen are impossible?

“like a cross between Shakespear’s time and that video game where you build a city from scratch (what was that called?). It is a fantasy.”

Well you filled up a paragraph without even starting to explain *why* it is a fantasy. Obviously people would only pay for movies *after* they saw them and knew they were good! Wait…

“If I had more time to waste, I would look up the quote where you said “Misis is wrong”.

I responded to it. Do you remember?”

Yes, I remember that it was nothing but a fallacious appeal to authority and I pinpointed it as such. Shall I find the quote where you said “Rothbard was wrong”?

“You are drifting away into lala land.”

I’m happy to hear that’s all you can muster up against what I say.

“It means attack the person, not the argument.”

No it doesn’t and you would know that if you ever cracked open a book about logic. An ad hominem is using an attack on an arguer as a premise in a counterargument. The categorical form is “A says P, A is stupid/ignorant/whatever, therefore not P”. I said the “A is stupid/ignorant/whatever” part. I did not follow it by saying your argument is disproven. You do that all the time. You attack me and then act as though that refutes my argument. *That* is the ad hominem. I followed my little comment with my argument, which did not involve the comment.

“I have been indulging you like a kind uncle.”

Wildberry, why don’t you admit that you and I are debating because we find what the other says to be at least worthwhile enough to warrant a response?

“I don’t understand my own motivations here. I really can’t spare the time, yet I indulge you anyway. I need to have my head examined.”

Yeah, you and everyone else who spends this much time blogging about esoteric property rights problems. I’ll see you in the waiting room.

“You share the same ideological blindness with the people you named.”

Ideological blindness is sophomoric jargon you use as a more sophisticated way to say, “I don’t like it”. This statement doesn’t mean anything. It’s just an empty complaint. You have not criticized any of us at all with this. It’s just a foot-stamping value judgment.

“I come here because it is more fun to address people who disagree with you than those who are already in the choir.”

You mean when you respond with things like, “your post is common sense and right on point”? Oh, and that’s not akin to ideologues or choirs at all to give people high fives just for agreeing with you.

“Have you heard, “birds of a feather flock together”? Do you believe in folk wisdom?”

Have you heard of the difference between truth and beauty? Are you aware that cute and clever one-liners or references to sayings aren’t arguments and don’t state anything?

Yes, I am aware you think I am parroting other people, even though I have explained to you several times, and you have ignored it *EVERY TIME*, that I reached my position before I ever heard the name Kinsella. According to you the effect precedes the cause!

Yes, whenever people agree on things they must be colluding in the background and supporting each other for the sake of supporting each other. I can’t wait to hear you start telling me about that “cult” of mathematicians who are all equally convinced that addition is commutative and associative, and when they offer proofs to you you just wave your hand and speak to their ideological blindness.

Sorry about that, but seriously the “you guys are a cult” line could work any time in any place. You could use that against anyone. I suppose I should start using it against you. You are part of a cult that worships statutory law and epistemological nihilism, and you only adhere to these positions because they are the sacred cows of our time, the modernist view of science. You are part of a Mises cult that just blindly assumes everything that ever came out of Mises’ mouth is automatically true and you accuse people simply for disagreeing with Mises. I mean, is there any irony richer than you condemning me for possibly thinking “Mises was a fool” (I don’t, I think he’s one of the smartest people in the last century) and then, in the very same post, calling your adversaries a cult and ideologues?

“Good. Now, what can you do with that insight?”

Falsify your entire position. Perhaps you forgot your own argument, so let me remind you that it is that production for external economies is unprofitable and never happens, even though you have admitted in this very post that production for economies can be profitable and does happen.

“B.S. That is not part of any IP argument.”

Except for when an American Idol contestant was stopped from singing a song because she did not have the IP rights to do so, or the many many times when cover artists are forbidden from singing a song they don’t have rights to.

So something that tons of people have been stopped from doing through existing IP laws is not part of any IP argument? Very strange.

“Just for an exercise, why don’t you try to explain why what you say is true, that photographing is not a use? That should be interesting.”

It would be equally interesting for you to try to explain why what you say is true, that you use something whenever you are affected by it in any way. According to you, simply being aware of something’s existence is “using” it because such knowledge is causally tied to the thing in question. Therefore according to you everyone is using everything they are ever aware exists all the time. Brilliant. Everyone is being trespassed on by everyone else all the time.

My explanation is that “use” is defined as employing something as a means to action. That is all “use” has ever meant. At least I have given a definition for “use”. You haven’t even done that.

From Merriam-Webster.com. Use: the act or practice of *employing* something (emphasis my own).

So, I have a reductio ad absurdum against your definition and a dictionary-supported definition of my own? What do you have?

“Like with so many things, my young adversary, you are wrong.”

Ah, so now you are going to make fallacious appeals to old age. How do you even know how young I am?

“Pubic performance is what you are inadvertently referring to, not copying.”

If the performer is not the original author then he must have a copy from which to perform. So I am referring to copying. To perform something requires knowing how to perform it, and that requires making a copy. So, what I refer to is public performance, which has copying as a necessary precondition.

“You don’t get it. Sorry.”

You can’t respond to my claim because it obviously destroys your position. You have been arguing this whole time that production for external economies is a type of slavery. People don’t pay me even though they benefit from me being nice. My production of niceness is therefore production for an external economy, and so according to your reasoning I am a slave because I am nice to my friends. You can brush this off and not respond to it all you want, but it’s there. I have reduced your argument to the absurd.

“You don’t advocate it because you insist in being blind to what you inadvertently advocate.”

No, you have not demonstrated that I inadvertently advocate socialism. Your public ownership argument is borderline double-talk, involving a stretch of the word “use” to the point that basically everyone is always using everything and jump back and forth between production from one’s scarce means as a criterion for ownership and being causally tied to production from scarce means as criterion (the two contradict each other). I suppose I merely insist that if you claim I am advocating socialism you not descend into a spiral of language abuse and self-contradicting nonsense to get to that conclusion.

“You are the one raising “central body”. I haven’t relied on that at all.”

Ah yes, I am the one who mentioned it so there. Well, you admitted a few paragraphs up that what you are advocating requires a central body, so in fact you do rely on that, even if you remain silent about it until someone else points it out to you.

“Like many people, you think where there is smoke there must be heat. I say you are all heat and no light. Nothing personal.”

Like many people, you think truth and beauty are the same thing. You think when you can be very poetic with lots of cool imagery and clever metaphors you succeed in saying something about how the world works, or at least refute an argument I presented. Don’t worry, I don’t take that personally, though I was looking forward to something to which I can actually respond.

“Whew! I made it all the way through your rant. I have no idea why I did it! I’m not likely to make that mistake again though. Nothing personal.”

Oh please, Wildberry, you’ve said this like five times now. It’s always the last time!

Though this may surprise you I appreciate your input and it is why I respond. Perhaps I have not articulated this well enough, but just because I think you say crazy things does not mean I think you are crazy. Everyone says absolutely insane things every now and then and it would be silly to expect oneself to never say such things. It is, as you put it, nothing personal.

Come on Wildberry. Admit that you would find this place boring if it weren’t for people like me and Peter. I’m more than ready to admit I’d get bored with it if people like you weren’t here challenging me constantly. Neither of us wants to preach to a choir, and I know that’s why we always focus on each other’s posts.

sweatervest July 31, 2011 at 11:17 pm

Dear lord this is probably a length record for me. Sorry about that Wildberry.

sweatervest August 1, 2011 at 12:04 am

“Hmmm, well in all my studies of quantum physics I’ve never heard of people speak of photons originating anywhere”

This is wrong, you could call emissions of photons “originating” although I think it is a bit of an oversimplification to say they are originating when you shine light on something and bounce it off of it to record an image of it. In fact, I would agree with you that shining light on a person’s house, regardless of if it is to have its picture taken, would be an uninvited use of that house. But if light is being shined on it by the sun, and you happen to be there to collect it after it bounces off the house, that is not a use of the house, but a use of sunlight.

spiritsplice August 2, 2011 at 1:49 pm

sweatervest, do you have a website? if not I would like to exchange ideas with you in email if wouldnt mind.

sweatervest August 3, 2011 at 1:38 pm

I don’t have a website but my email is dcoleman0711@gmail.com. Thanks for reading!

Wildberry August 1, 2011 at 11:26 am

Sweatervest,

Like I said, I’m not likely to indulge again in a line-for-line response, especially to a tome of this magnitude.

I do agree that it is more interesting to challenge people who you think has it wrong, but it becomes a waste of time at the point when the debate is not advanced by the discussion.

In your case, your initial positions were worthy of challenge because you gave me an opportunity to try to articulate what I believe I have been learning. You, on the other hand, do not advance your position. You just react with the same rhetoric and party lines, and don’t really take up the real challenge to expand your horizons by reconciling the issues you raise with the comments given to you in response.

So, unfortunately much like Surda, I have run my course with you. There is no point in just endlessly batting the same ball back and forth, because my feeling is that you do nothing with the input, just like Surda. It gets old, eventually.

My advice to you, though you have no reason or inclination to take it, is to stop, take a breath, and reason your way through one single issue, like the one Kid Salami has recently challenged you with. That is plenty to keep you busy. I’m sure you will be more interesting to talk to down the road if you do take the trouble. Otherwise, you are simply an echo whacking the same bell over and over. I think you will find it useful to actually learn something about the subject, say property rules, before you just regurgitate what you already think you know.

Take care and regards,

spiritsplice August 2, 2011 at 1:45 pm

In other words, you lost. Sweatervest has provided the most thoroughly entertaining education concerning this debate that I could have hoped to read. I hope he has a website to read further. Ilove the utterly rational Vulcan approach provided. anever before have I seen such cleqr and orecise answers without appealing to evasions. What a politician sweatervest would make. I would pay to see the debates.

sweatervest August 3, 2011 at 1:39 pm

Thank you, I appreciate that!

spiritsplice July 30, 2011 at 2:31 pm

sweatervest, please tell me you have a website.

Jay Lakner August 2, 2011 at 9:48 am

Wow Sweatervest. You really ripped Wildberry apart.
:)

Kid Salami August 3, 2011 at 7:19 am

Dear sweatervest fans – apologies if I’m not similarly enamoured with his response, as I regard it as one giant assumption of his conclusion. Allow me to demonstrate.

Peter said

Furthermore, I thought that your problems with NAP handling of easements is not partial sale, but partial homesteading. So the examples you brought up do not match the objection, because the land affected is already homesteaded prior to the easement.

Sweatervest said

First of all it is equally arrogant to think that any human institution “grants” rights to any humans. No, my rights are not gifted to me by the powers that be. From where would the granters of rights receive the right to grant or revoke rights? This theory fails.

Allow me to try again: to own something you must be its user or have it given to you by its user. You can only use a definite unit of a good. You never use an entire class of goods or a good per se. Thus ownership is a claim only over a unit of property. IP claims cannot be over specific units of property but entire classes and are therefore invalid because one is claiming ownership over something he never used and was not given to him by the user.

I’ll keep this as brief as possible. There is a common law concept called “lateral and subjacent” support – there are other complexities but lets just focus on subsidence.

I homestead some land, an isolated section. I am at this point using the land, I am its owner, and I am allowed to dig a hole on my land if I so wish, regardless of whether the surrounding land collapses or not. Correct yes?

Someone comes along and wants to homestead the plot of land next door. Firstly, can he do this? I am using this land to prop up my land.

Sweatervest, you say there is no homesteading of uses, nor co-ownership here – so, am I using this land next door and therefore am I owning it or not?

If we decide I don’t own it, then why? And so if the guy can therefore homestead it and become the owner, what happens next? Can I still dig holes on my land (meaning his land will subside into mine)? If not, why/how have I lost this right?

If we decide I do own this land next door, because I’m using it to prop up my land, then what then? How can anyone homestead any land around mine without breaking this infinite series of ownership?

Peter – you don’t have to decide on one of those, as you could point out who partially homesteaded/transferred what here instead and track my right to dig holes on my land and the right of the subsequent to do the same, and if/when the right transferred etc. Can you do this in a way that ends up with the rights/responsibilities regarding subsidence being symmetrical for me and the new homesteader?

Peter Surda August 3, 2011 at 8:30 am

Kid Salami,

I homestead some land, an isolated section. I am at this point using the land, I am its owner, and I am allowed to dig a hole on my land if I so wish, regardless of whether the surrounding land collapses or not. Correct yes?

If the surrounding land collapses, that in my opinion counts as homesteading of that surrounding land (assuming it’s not homesteaded yet).

Someone comes along and wants to homestead the plot of land next door. Firstly, can he do this? I am using this land to prop up my land.

He can homestead land that has not been homesteaded yet.

Can I still dig holes on my land (meaning his land will subside into mine)? If not, why/how have I lost this right?

You can still dig your land as long as you don’t damage the land belonging to others.

Can you do this in a way that ends up with the rights/responsibilities regarding subsidence being symmetrical for me and the new homesteader?

You seem to be making the assumption that your rights are based on whether your actions hypothetically could affect other people’s property, as opposed to whether they actually do affect their property. You do not have a right to dig holes in a way that causes collapses of other people’s land, unless they agree or the land was unhomesteaded before the collapse, in which case the collapse homesteads it by you.

There is no problem to address. The whole thing is just a confusion produced by the introduction of a new word, “easements”. Please do not mention easements or homesteading of “uses” or anything like that anymore.

Kid Salami August 3, 2011 at 8:32 am

I didn’t use the word “easement” in this scenario. And kinseall talked of homesteading “uses” not me, complain to him. And you’ve missed the point here – I can’t be bothered explaining why.

Peter Surda August 3, 2011 at 8:58 am

Kid Salami,

I didn’t use the word “easement” in this scenario.

You did not, but you implied that rights are based on hypothetical uses. That’s not even an easement, that’s just completely made up.

And kinseall talked of homesteading “uses” not me, complain to him.

I already did. It’s a confusing topic, and you are interpreting it literally instead of metaphorically.

And you’ve missed the point here – I can’t be bothered explaining why.

Well, isn’t the whole issue caused by you not being able to explain your position in a way that I understand? Didn’t I in fact ask you several times about the specifics? To your credit, you tried to explain it, but I still don’t get it. Care to take a different approach?

Wildberry August 3, 2011 at 11:42 am

@Kid Salami August 3, 2011 at 7:19 am

First, thanks for your comments to the fan club. I am simply too exhausted with the exercise to continue. Part of the problem is the one you encounter from Peter below. Because the concepts of easement and lateral support are unfamiliar, they don’t understand their own arguments, and think it is your obligation to explain it all to them from scratch.

Second, the arguments surrounding easements, subsidence, etc. are rather esoteric lines of reasoning that show that homesteading alone is not sufficient to handle property rights in all their manifestations.

This is intuitively obvious, and why Mises begins with the premise that property is a human device that is designed in the service of cooperation/division of labor. Even if you start with two homesteaded parcels of land, you still encounter the issues you raise with the boundaries of rights, which have to be decided, and those decisions become part of the property rights system. If homesteading cannot continue to support these refinements except within a context of contracts and covenants, then all of the issues beyond simple acquisition become impossible to handle through a theory of property rights. What I really appreciate about Friedman is his ability to show how even very complex property rights agreements can be reached without relying on the State as the source of the agreements. This is key, and ultimately leads to a theory that legitimizes the principles of IP, even if the exact implementation is not without fault and error.

If someone wants to believe the earth is flat, you cannot “show” them the absence of an edge to fall over. They will simply say you have not gone far enough to find it. At some point, the support is so overwhelming and the arguments against it so faith-driven, it becomes futile to continue to debate. That’s about where I am now. I will talk to you all day about this, but I have no more gas to continue to run around the track with the likes of SV and PS. Enough already! I hung in there as long as I could, but I can no longer muster the interest.

I will continue to follow your posts closely and contribute when I can.
Regards,

PS Are you in the UK?

sweatervest August 3, 2011 at 4:32 pm

First, thanks for your comments to the fan club. I am simply too exhausted with the exercise to continue.”

Then surely we must be giving you quite an exercise!

“Part of the problem is the one you encounter from Peter below. Because the concepts of easement and lateral support are unfamiliar, they don’t understand their own arguments, and think it is your obligation to explain it all to them from scratch.”

When did I ask anyone to clarify anything about easements? And who are you to tell me I don’t understand my own arguments? I may have been unfamiliar with easements when that debate started, but I am familiar now. That is, of course, irrelevant since this is a thread about IP not easements.

“Second, the arguments surrounding easements, subsidence, etc. are rather esoteric lines of reasoning that show that homesteading alone is not sufficient to handle property rights in all their manifestations”

They show no such thing. You act as though I didn’t solve that problem. Homesteading takes care of all of it.

“This is intuitively obvious, and why Mises begins with the premise that property is a human device that is designed in the service of cooperation/division of labor.”

That property is a human device doesn’t contradict that it must take a specific form. You literally said it yourself. It is designed in the service of cooperation. Therefore property that fails to service cooperation is faulty property. There is only one system of property that services cooperation, and it is physical private property acquired by homesteading.

“Even if you start with two homesteaded parcels of land, you still encounter the issues you raise with the boundaries of rights, which have to be decided, and those decisions become part of the property rights system.”

No, the boundaries of property titles are the boundaries of your homesteading. When you homestead something you don’t homestead everything, you transform a certain piece of something into something else. You become the owner of that something and no more. If you farm on a piece of land you homestead that part of the land and nothing else. The boundary is the boundary of your transformation through use.

Wildberry, I know you understand why property cannot be a matter of agreement. You yourself have said several times that you do not need to enter an agreement with your robber in order to justifiably kick him out of your house.

“If homesteading cannot continue to support these refinements except within a context of contracts and covenants, then all of the issues beyond simple acquisition become impossible to handle through a theory of property rights.”

This is entirely moot because homesteading does not have the problem you seem to think it has. Homesteading establishes boundaries of ownership just fine. That people are capable of agreeing to parcel property out a certain way presupposes that they are capable of agreeing on anything, i.e. it presupposes property rights and the right to homestead.

The problem with claims beyond homesteading is that they necessarily interfere with someone else’s ability to homestead that thing. The only reason why homesteading is the only way to acquire new property is because any other way undermines homesteading. To claim ownership of something without homesteading is literally tantamount to preventing anyone else from homesteading that something or overriding one’s claim to it through homesteading. This undermines the very essence of ownership: that when you own something, you own it for good until you voluntarily transfer those rights away. Ownership evaporates into meaninglessness when people can lose their property rights by no action of their own, and especially by the actions of others. The whole point of property is that when something comes into your name it stays in your name until you decide otherwise (assuming you don’t destroy the property of others). Anything that undermines homesteading will destroy the very essence of property, which is that when something comes into your hands that wasn’t forced out of someone else’s hands, it stays in your hands until you hand it to someone else. That is to say that forcing something out of someone’s hands, which is the necessary implication of undermining homesteading, is exactly what property rights seek to avoid.

“What I really appreciate about Friedman is his ability to show how even very complex property rights agreements can be reached without relying on the State as the source of the agreements.”

How can any agreements be reached when there are no property rights? You keep putting the cart before the horse. Property rights come first, *then* there are agreements.

“This is key, and ultimately leads to a theory that legitimizes the principles of IP, even if the exact implementation is not without fault and error.”

And how is that? How is the insight that agreements can be reached imply that IP is legitimate? A and B can agree to rob C (which, by the way, requires that A and B recognize each other’s rights). Is that legitimate?

“If someone wants to believe the earth is flat, you cannot “show” them the absence of an edge to fall over. They will simply say you have not gone far enough to find it. At some point, the support is so overwhelming and the arguments against it so faith-driven, it becomes futile to continue to debate. That’s about where I am now. I will talk to you all day about this, but I have no more gas to continue to run around the track with the likes of SV and PS. Enough already! I hung in there as long as I could, but I can no longer muster the interest.”

Oh, so the support is overwhelming is it? And all the arguments are faith-drive, right? And do you have an support of this? Of course not! Is this claim driven by faith? I don’t know, but if it’s not driven by support then what else is there to drive it?

You are ridiculous Wildberry. You are the one that digs your heels and just repeats phrases like “property is a human device” and “no IP means production for external economies” over and over and over. Every single you say those things I post paragraphs against them, and each time while the over-arching theme may be the same my specific criticisms change every time. You show up later with the same thing you started with: property is a human device and no IP means production for external economies. It is hard to believe your hypocrisy is not a joke. What else to do than laugh when someone continuously acts in a certain way and then accuses you of acting that way?

So you’re gonna run an argument in circles and accuse the other side of following you around that circle? Very clever. It is in fact true that if you argue in circles the counterargument against you will run in circles too. Whose fault is that?

You’re just unwilling to admit defeat. You have nothing else to say. You claim to be “tired” when I know that’s your name for being out of material. Your arguments have been refuted and your position defeated. As you put it, “I hung in there as long as I could”. You cannot hold on any longer because you are defending a position that cannot be defended. The standard way of admitting defeat in an argument but not coming out and saying it is to say something like, “you guys are ridiculous, I’m not gonna argue about this anymore”.

To end an argument is to lose an argument. It is he who ends the discussion that is not willing to discuss, and instead rely on faith. Saying “you are faith-driven” and then refusing to continue defending your position is pretty ironic.

Wildberry August 4, 2011 at 3:38 pm

Sweatervest,

You have a way of being honest, whcih despite all my critcisms, I do respect.

This is the most honest statement of the problem I have seen:

The only reason why homesteading is the only way to acquire new property is because any other way undermines homesteading.

That kind of circuclar reasoning says it all. Congratulations.

Peter Surda August 5, 2011 at 4:18 am

Wildberry,

yet again you demonstrate ignorance of elementary logic. Sweatervest’s argument is not circular because it’s positive, rather than normative. It’s an implication: if a legal system accepts the concept of homesteading, then the legal status of all actions is determinable (i.e. all actions are either in accordance or in violation with respect to the system).

If the argument was circular, it would be possible to show a situation where this implication is false, i.e. exactly what I have challenging you to provide since the beginning, and which you have been avoiding up to the point where you deny the foundations of logic. However, most of your claims are based on the assumption that the implication is indeed false, so absent an address they can be dismissed outright.

You’re the one producing circular arguments, as I have demonstrated many times. Maybe you should address these allegations first.

Also, stop boring me with repetitive cheap rhetorical tricks. Find a new one.

Kid Salami August 5, 2011 at 5:35 am

Wildberry

“The only reason why homesteading is the only way to acquire new property is because any other way undermines homesteading.”

Self-referential statements like this might be causing some of your exhaustion.

“Mises begins with the premise that property is a human device that is designed in the service of cooperation/division of labor.”

Kinsella has spoken of this in a post I linked to above – I think his reasoning is circular and that of Mises isn’t (because Mises isn’t attached like a rabid dog to the NAP and homesteading).

“Are you in the UK?”

Yes, I really ought to be working towards accumulating more gold and silver to prepare for the fast approaching acceleration of the collapse of my resourceless overpopulated shitheap of a country into god knows what. Why I spend time on here arguing is a mystery I’m yet to solve – you do learn lots though.

sweatervest August 3, 2011 at 2:32 pm

“I homestead some land, an isolated section. I am at this point using the land, I am its owner, and I am allowed to dig a hole on my land if I so wish, regardless of whether the surrounding land collapses or not. Correct yes?”

I agree with Peter that this either homesteads the surrounding land when that land is unowned and it is a violation of the rights of the owners when that land is owned. It is always the case that use of property to damage the property of others is unjustifiable.

“Someone comes along and wants to homestead the plot of land next door. Firstly, can he do this? I am using this land to prop up my land.

Sweatervest, you say there is no homesteading of uses, nor co-ownership here – so, am I using this land next door and therefore am I owning it or not?”

Well it matters whether or not you have homesteaded the land by using it to prop up your land, i.e. whether or not you have permanently transformed the land into a product of human action. If you are simply relying on the land being there to prop yours up and have not changed it in any way then you have not homesteaded it, but if you have to do something that permanently changes the land then you do homestead it.

I can see the problem you are raising though: if you don’t homestead that land and are thus not its owner, then how could you tell someone else who tries to homestead it that he can’t dig a hole in his own land?

The same way you don’t have to own someone else’s gun to tell him he cannot shoot you with it. Ownership never implies the right to use property to destroy the property of others. You are not homesteading a use of this land but simply making it unavoidable to use that land in a certain way without trespassing on and destroying your own property.

This is unfortunately irrelevant to IP. Unauthorized copying (including using a patented idea in production) does not necessarily damage the property of others unless you accept that someone can own more than just certain physical copies of creative goods. An IP abolitionist insists that the author/inventor owns the one physical copy of his idea only. Using that premise copying something in plain view is a use of one’s own property in a way that does not trespass on the property of anyone else and so there is no violation at all. It’s the difference between digging a hole in your land which makes your neighbor’s land collapse and digging in your land to make it look exactly like your neighbor’s land. One damages your neighbor’s land, the other does not.

Kid Salami August 5, 2011 at 5:37 am

sweatervest

“That is, of course, irrelevant since this is a thread about IP not easements.”

It only seems “irrelevant” because I’m afraid Wildberry is right that you don’t really understand your own argument.

“When you homestead something you don’t homestead everything, you transform a certain piece of something into something else. You become the owner of that something and no more. If you farm on a piece of land you homestead that part of the land and nothing else. The boundary is the boundary of your transformation through use……. homesteading does not have the problem you seem to think it has. Homesteading establishes boundaries of ownership just fine. That people are capable of agreeing to parcel property out a certain way presupposes that they are capable of agreeing on anything, i.e. it presupposes property rights and the right to homestead.”

Noted. Also note that this shows you are not quite getting the problem.

“The problem with claims beyond homesteading is that they….”

Come on, do you really think this argument is new and/or going to convince anyone of anything?

“Well it matters whether or not you have homesteaded the land by using it to prop up your land”

Yes it does. Kinsella says you can homestead “uses”, Peter says you can’t. Where are you?

“If you are simply relying on the land being there to prop yours up and have not changed it in any way then you have not homesteaded it, but if you have to do something that permanently changes the land then you do homestead it. “

Ok – you are consistent on this point.

“I can see the problem you are raising though: if you don’t homestead that land and are thus not its owner, then how could you tell someone else who tries to homestead it that he can’t dig a hole in his own land? The same way you don’t have to own someone else’s gun to tell him he cannot shoot you with it. Ownership never implies the right to use property to destroy the property of others. You are not homesteading a use of this land but simply making it unavoidable to use that land in a certain way without trespassing on and destroying your own property.”

You’re focusing on the wrong aspect of this. There is nothing new for me to say really, it’s all there in my example, but how about instead looking at

http://en.wikipedia.org/wiki/Solar_Easement

and answering these questions, as this might more clearer identify the issue.

I homestead some land, an isolated section. I am “the owner of that something and no more. If you farm on a piece of land you homestead that part of the land and nothing else. The boundary is the boundary of your transformation through use”. So I am the owner of this land and “nothing more”, and I am allowed to use the sun to grow crops if I so wish. Correct yes?

Someone comes along and wants to homestead the plot of land next door and build a skyscraper. I “have not changed it in any way then you have not homesteaded it, but if you have to do something that permanently changes the land then you do homestead it”. So I have no claims of any kind on this land next door – I am not “using” it in any way and therefore don’t own it and have never owned any of it.

Can I claim he is not allowed to build a skyscraper on his land? Why/why not?

If I build a skyscraper on my land sometime after he arrives, can he stop me because he says he is growing crops? Why/why not?

Peter Surda August 5, 2011 at 6:53 am

Kid Salami,

Yes it does. Kinsella says you can homestead “uses”, Peter says you can’t. Where are you?

This is a slight misrepresentation of what I’m saying. I’m not saying that you can or can’t homestead uses. I’m merely investigating the logical relationship between individual claims. You can object all you want that my position results in impractical conclusions, but noone, including you, has presented an alternative that is less absurd.

As for your objections on the theoretical level, I do not understand them, and those that I understood I believe to have refuted. Furthermore, the IP proponents here have not been successful in resolving the logical errors in their claims.

Here is another example:

Can I claim he is not allowed to build a skyscraper on his land? Why/why not?

Let’s now take a step back and view this from a more abstract level.

The actions (you enjoying the sunlight and the other guy building a skyscraper) are in conflict: they are mutually exclusive. If you two voluntarily come to some sort of arrangement that satisfies both of you, then there is no conflict and also no problem. How you describe such a situation is irrelevant. If however you cannot, then the conflict manifests itself.

Let’s assume that “having your land affected by sunlight” is indivisible (like Rothbard’s relevant technological unit). In any coherent system of property rights, there are three theoretical possibilities:
- being affected by sun is a property right resulting from the homesteading of the land. Then the building of the skyscraper is violating your rights.
- being affected by sun is an externality, and therefore someone else’s homesteading might internalise this externality to your detriment. Then the building of the skyscraper does not violate your rights.
- being affected by sun is some sort of special case and someone else’s opinion is relevant while your both opinions are ignored.

The third option does not look libertarian, so we’ll ignore it.

It is evident that the outcome is determined by the definition of property rights. It is also evident that unless the definition is clear in advance, both you and the skyscraper builder have it difficult to predict whether their actions are legal or not, and the system of property rights will fail to serve its purpose.

Let’s go back to the mutual agreement. Let’s say that you agree that you offer the guy 10 Bitcoins and in return he builds it from glass. In this situation, the question of property rights in “having your land affected by sunlight” is irrelevant, since there is no conflict. If you want, you can call the photons, after entering the skyscraper, being “co-owned” by the two of you.

As you see, the dislike that you have for “homesteading of uses” is meaningless, because whenever there is an actual conflict and the question of property rights has to be invoked, the source of the conflict can be backtracked into the first homesteader.

sweatervest August 5, 2011 at 1:40 pm

“but noone, including you, has presented an alternative that is less absurd.”

Exactly. So easy to condemn, so hard to create.

sweatervest August 5, 2011 at 12:17 pm

“It only seems “irrelevant” because I’m afraid Wildberry is right that you don’t really understand your own argument.”

Haha yes, this is so much more likely than you and Wildberry not understanding my argument. How far up your ass must your head be to start telling people they don’t understand their own points they are trying to make? You really are immune from poor comprehension aren’t you?

You know, Kid, you are so quick to complain about how other people don’t explain themselves or don’t understand themselves, and every time someone else points out how confusing and off-topic every one of your posts are you blame it on them for not trying to comprehend you.

I understand the point I am trying to make. If that point is lost on you then I can try again, but please don’t be so arrogant as to tell me I don’t know what I am trying to say. As far as I can tell you don’t even have anything to say, which is why you always come back with “you don’t get it”. Indeed, I certainly won’t get it when there is no “it” to get.

“Noted. Also note that this shows you are not quite getting the problem.”

You know how easy it is to type out, “you don’t get it”? Why, I just did it! You offer no insight and don’t even start to mention what the problem is actually about, so I will take this for what it is: meaningless hot air.

Allow me to remind you that you drag every IP discussion into one about easements. You are either entirely unable or unwilling to discuss the relevant topic (you know, what the post we’re blogging in response to is about). Apparently you don’t get the problem, because you change the problem into an entirely different one and refuse to discuss the actual problem. It’s an often-used sophistical strategy called “dodging the argument”.

“Come on, do you really think this argument is new and/or going to convince anyone of anything?”

Do you think a “come on” sentence is going to convince me or anyone of anything? I did a better job than you did here. At least I, you know, have an argument.

“You’re focusing on the wrong aspect of this. There is nothing new for me to say really, it’s all there in my example, but how about instead looking at

http://en.wikipedia.org/wiki/Solar_Easement

and answering these questions, as this might more clearer identify the issue.”

No. I am no longer chasing you down your off-topic rabbit holes. Start arguing about IP or go find a thread about easements. I am not interested in debating about easements. If you are not interesting in debating about IP, which does not require any discussion of easements, then there’s the door.

“Can I claim he is not allowed to build a skyscraper on his land? Why/why not?”

I have an answer for this but I’m not sharing it because that’s not what we are debating here.

Kid, look at the damn name of this thread. Why don’t we start arguing about string theory verses loop quantum gravity while we’re at it.

I’m not cooperating with your attempt to distract and diverge this debate into something it does not concern anymore, and I would ask Peter to do the same. I will gladly engage you in things that concern intellectual property but these are not examples of such.

Allow me to recap how this argument has gone over the past few months, at least when it involves you: IP abolitionists have been on the defensive, explaining their theories of property rights and addressing supposed contradictions in that theory. IP supporters have been on the offensive, attacking these property rights and trying to find contradictions. Now it’s time for me to go on the offensive.

Kid, explain your property rights theory to me. Instead of “just asking questions” (who are you, Glenn Beck?) all the time, how about you join us and give some answers. You are so quick to find what you think are problems with ancap NAP property rights, so tell me what your better theory is. Tell me what your solution to IP (I don’t care about easements, go find a thread about that if you want to discuss it… to be clear, I am not revoking my position which you have not refuted) is, and how it fits within a larger framework of property rights.

I don’t know what you think you have proven with your easements distraction. I explain every time I comment that it is irrelevant to IP, and let me explain *once again* why no conclusion about easements what-so-ever will have any impact on IP. Easements, including your example of blocking sunlight, involve potential physical destruction of people’s property and concern who may be legally responsible for such destruction. Issues of IP, including unauthorized copying and producing without a license, do *not* involve the physical destruction of any property what-so-ever and so conclusions about who is responsible for physical destruction are *irrelevant*. Even if one is guilty of blocking the sunlight going to your farm, that has no effect what-so-ever on IP because IP does *not* involve any potential physical destruction of anything.

This is a debate over whether or not you can copy things, not when and where you are responsible for physical destruction of someone else’s property. They are unrelated and I am no longer wasting forum space here talking about something the forum does not concern. Even if I was entirely mistaken about easements and all my arguments concerning them are entirely unsound, that has no effect on IP what-so-ever. Stay on topic.

Kid Salami August 12, 2011 at 5:37 am

“Allow me to remind you that you drag every IP discussion into one about easements.”

Allow me to remind you that you drag every easements discussion into one about IP.

“Start arguing about IP or go find a thread about easements. I am not interested in debating about easements.”

Fine. I’m not particularly interested in debating them with you either – largely because, after arguing with me about it for weeks, you eventually agreed with me ie. that their operation is incompatible with your NAP-ancap framework. I’ve told you this several times. This makes your statement:

“Tell me what your solution to IP (I don’t care about easements, go find a thread about that if you want to discuss it… to be clear, I am not revoking my position which you have not refuted) is, and how it fits within a larger framework of property rights.”

somewhat bewildering. I’m not asking you to revoke it, I agree with you. It really would be better for all if you kept up and actually read what people said instead of just transmitting all the time.

My “solution to IP” is to start from the fundamentals of property rights and to follow the logic through and see what happens – I’m not “pro-IP”, I’m only “pro- solid arguments”. Your “soltuion” is to assume your conclusion, as you take it as read that there can be no rights in property except as per the NAP. I’m sorry you can’t see why easements come into this, maybe you should, you know, read a bit and learn about what they are and how they come about, then you might understand.

“This is a debate over whether or not you can copy things, not when and where you are responsible for physical destruction of someone else’s property.”

You want it to be framed in this manner as this makes it easier to assume your conclusion. Some other things have to be cleared up first. Sorry you’re not willing to do this.

“Even if I was entirely mistaken about easements and all my arguments concerning them are entirely unsound, that has no effect on IP what-so-ever. Stay on topic.”

That you were “entirely mistaken” for some time is indeed unfortunate for you, so I can understand why you don’t want to dsicuss them any more.

Peter Surda August 12, 2011 at 6:39 am

Kid Salami,

just out of curiousity. Let’s assume that it would be possible to obtain rights if others tolerated you for too long (let’s call them forced easements for simplicity). Is there any way this is related to IP and if yes, what?

From what I can see, this could only mean that the subsequent owners of the original would be prevented from copying it, and maybe even that the ownership of the copies they created out of their material would be transferred to the author. But it still would not make copies made out of material of third parties transferred to the author. The third parties did not tolerate the author or permit him to use their material. So the whole foundation for the claim (i.e. ambiguous contract) is absent.

As I said already, the restrictions would only work if if the author had a right not to have his property copied in the first place. But this would make the analogy with easements redundant.

Wildberry August 12, 2011 at 11:05 am

Mr. Salami;

I have given up. Peter’s last post is hopelessly confused. For example, his bringing “connivance” into the discussion just demonstrates how confused he is. He doesn’t realize that, at least in the US, this is called the “doctrine of unclean hands” and deals with a situation like two crooks hold up a bank and then one refuses to split the money the way they agreed, and the other tries to sue under contract. The case will be thrown out under “unclean hands”. This has nothing to do with the issue at hand here.

He thinks resolving a property problem with contracts “solves” the issue. He thinks there are property interests only through homesteading, and contracts. That way, he can later claim that IP only works in contracts, because “ideas are free” and can’t be homesteaded. Yada, yada, yada.

Also, notice the turn of phrase when discussing the rights issue with copying? He assumes that the copier “owns” the copy, and then, after the fact, is being forced to “give up” his rights. That is like saying that the issue with trespass is that once the trespass has occurred, the trespasser has to “give up” his rights to continue to trespass!! It completely ignores the central issue; whether the trespasser had the right to trespass in the first place. The thinking here is a mess.

So to try to discuss the finer points of easement, much less the general concept of adverse possession (relating to easement by prescription) is hopeless.

Also, I find it odd to the maximum that these two yahoos would forget about Kinsella’s article on IP/easements.

Kinsella is the only anti-IP proponent who is actually equipped to enter into this type of discussion, but you recall from the easement thread that he is much like these two, although perhaps a little more clever; they will all walk right up to the issue, and then turn for the hills. That, in my view, substantiates the claim that this is about ideology over truth. They just “know” that Ancap is the answer to all that ails us.

Unless one is so committed to one’s conclusion that one must reject contrary cases, one would welcome such a discussion to “see where it leads”. Obviously it leads to a conclusion which is unacceptable, so feigning “victory” is the only recourse.

I am slowly coming to the conclusion that this site, with the exception of the literature library and the occasional great article from Bob Murphy on, wait for it, ECONOMICS, is becoming merely an outlet for Ancap hacks. Perhaps an alternative is called for?

In any case, I enjoy your posts and hope you continue to contribute. I just can’t do it anymore with these two.

Peter Surda August 12, 2011 at 12:20 pm

Wildberry,

He doesn’t realize that, at least in the US, this is called the “doctrine of unclean hands” and deals with a situation like two crooks hold up a bank and then one refuses to split the money the way they agreed, and the other tries to sue under contract.

Connivance might not be the exact word, that is why I specifically said ” I believe the technical term is…”. I could not find a proper English translation. The term in the German law is “Duldung”: http://de.wikipedia.org/wiki/Duldung .

He thinks there are property interests only through homesteading, and contracts.

Again, you misrepresent my claims although I complained about this several times. My claim is not that there are only property interests through homesteading and contracts, but that a system build upon those makes the legal status of all actions determined, and that my opponents have not presented an alternative.

He assumes that the copier “owns” the copy, and then, after the fact, is being forced to “give up” his rights.

Again a misrepresentation of my claims. I formulated my claim as an if-then construct which clearly proves that with respect to IP, easements either do not allow IP or are redundant.

That is like saying that the issue with trespass is that once the trespass has occurred, the trespasser has to “give up” his rights to continue to trespass!

Stop lying. I phrased my argument as an if-then construct that refutes your claims (or at least those parts that are somewhat intelligible).

It completely ignores the central issue; whether the trespasser had the right to trespass in the first place.

How can my argument ignore it, when I specifically explain the variables which determine whether the right is present or not? You’re raping logic again.

That, in my view, substantiates the claim that this is about ideology over truth.

You have presented no evidence whatsoever that your pathetic posts have anything to do with a search for truth.

In the latest post, again, once it became clear that you’re wrong and you can’t evade anymore, you just pretend that you won. It’s boring.

Wildberry August 12, 2011 at 1:14 pm

@Peter Surda August 12, 2011 at 12:20 pm

Apparently I am helpless in the face of this kind of stupidity.

Connivance might not be the exact word, that is why I specifically said ” I believe the technical term is…”. I could not find a proper English translation. The term in the German law is “Duldung”: http://de.wikipedia.org/wiki/Duldung .

This is not a translation problem. You try to opine about things you don’t understand. That is the problem. But let’s both pretend your brilliance is being lost in translation.

My claim is not that there are only property interests through homesteading and contracts, but that a system build upon those makes the legal status of all actions determined, and that my opponents have not presented an alternative.

Translation: “There is homesteading (it doesn’t really matter how this is defined), and there are contracts (everything else). Since this covers all possibilities, anything that is not one or the other is an “empty set”. My opponents have not presented any alternative.”

Duh! (Translation: schwachkopf)

I formulated my claim as an if-then construct which clearly proves that with respect to IP, easements either do not allow IP or are redundant.

Translation: “If the author has the right to not have his work copied, then the copier would be forced to give up his rights to his own private property. If the author does not have this right, then the copier doesn’t have to give it up unless he agrees to do so, and forcing him to do so is aggression. Therefore, IP is an act of aggression perpetrated by the State. Easements are not required to explain this.”

Stop lying. I phrased my argument as an if-then construct that refutes your claims (or at least those parts that are somewhat intelligible).

Translation: “Liar, liar, pants on fire!! I win!!!!”

How can my argument ignore it, when I specifically explain the variables which determine whether the right is present or not? You’re raping logic again.

Translation: “Liar, liar, pants on fire!! I win!!!!”

You have presented no evidence whatsoever that your pathetic posts have anything to do with a search for truth.

Translation: “Liar, liar, pants on fire!! I win!!!!”

In the latest post, again, once it became clear that you’re wrong and you can’t evade anymore, you just pretend that you won. It’s boring.

Translation: “Liar, liar, pants on fire!! I win!!!!”

Are we communicating?

Peter Surda August 12, 2011 at 3:08 pm

Stop boring me Wildberry.

You try to opine about things you don’t understand.

You presented no evidence whatsoever that you actually have a coherent argument, and that this argument somehow can be brought into connection (e.g. refutation of) with my position.

There is homesteading (it doesn’t really matter how this is defined), and there are contracts (everything else). Since this covers all possibilities, anything that is not one or the other is an “empty set”. My opponents have not presented any alternative.”

This is wrong. There is a distinction between homesteading and contracts other than one is the complement of the other. Homesteading is obtaining rights which were previously unassigned. Contracts are a transfer of those rights among consenting actors.

If the author has the right to not have his work copied, then the copier would be forced to give up his rights to his own private property.

Wrong again. The copier would not be forced to “give up” any rights. If he was, then the system would be inconsistent.

As usual, denial of elementary logic, straw-manning your opponent and metaarguing.

Yawn.

Kid Salami August 3, 2011 at 7:22 am

Let’s remind ourselves that on this topic of easements, there are two positions:

1) Sweatervest says easements that “run with the land” are illegitimate in his ancap framework and that co-ownership makes no sense.
2) Kinsella and Peter say easements that “run with the land” are legitimate (in at least some circumstances) but are just combinations of other more fundamental rules.

Sorry to break up the party, but this seems like a fairly fundamental disagreement. sweatervest, can you please stop saying “we” all the time now.

sv said:

Yes I admitted that. How is that me getting “caught”? It wasn’t something someone else said that prompted me to point out my own ignorance, it was me re-reading my own posts and thinking I was debating something different from everyone else. Strange you say this and don’t point out how my argument was wrong. I still stand by my conclusion about easements: they are legitimate if and only if they can be established with contracts. Otherwise they are unjustifiable.

Firstly, when you say this, you do realise that the conclusion you “stand by” is what I agree with and what I was saying from the start, that easements that “run with the land” are not compatible with hardcore NAP ancap?

Peter and Kinsella disagree and have introduced new concepts which I don’t think make sense, though I haven’t demonstrated this yet, but I commend you on having the courage of your convictions and following the logic. It is unfortunate that this puts you at odds with the daily actions of millions, if not billions, of people and hundreds of years of history, but fortunately for you, you (like Peter) regard this as irrelevant and “an appeal to convention and popularity!? Thinking the earth is flat has a long history and tradition too” so its ok.

A debate about whether a tradition has evolved because of state aggression or not is a legitimate one – but discarding all traditions, customs and norms because they are not deductive conclusions makes no sense at all.

Peter Surda August 3, 2011 at 8:44 am

Kid Salami,

I have not introduced new concepts. Stephan did and I am not very happy about it. I just tried to analyse whether easements have some aspects that can fit into the Kinstella/Hoppe/Rothbard/Evers theory of rights. My conclusions is that some aspects are and some are not and explained how it works, and why it has no effect on IP. I see no reason to spend more time on it. You on on the other hand have failed to explain what the exact problem, in your opinion, is.

I have not followed sweatervest’s posts closely, but from the brief glimpses my impression is that rather than rejecting easements, he’s rejecting their relevance for IP (i.e. exactly what I did).

Kid Salami, kindly explain what your problem is. Is it that:
- you can partially homestead (which I explained is not a necessary component of the “easement framework”)
- you can partially sell (you confirmed however that you don’t consider this a problem)
- that one of the above has some effect on IP (which it, as I explained, does not, since that would require that an author has a right to not have his property copied in the first place, thereby creating a circular argument. Without this, even assuming partial sales/homesteading were ok, it is logically impossible to perform a partial sale/homesteading without the ability to copy. If I’m not mistaken, Stephan actually said something like this already in the original article.)

Since you’re an intelligent guy, I’m going to give you the benefit of the doubt that you actually do have an argument, but just have not explained it to me in a way that I can understand.

Kid Salami August 3, 2011 at 8:58 am

Again with the “IP”? Why this is or isn’t relevant for IP is another step, which we have to avoid until this one is complete lest we trip over ourselves. If you don’t want to answer me then don’t – but it’s hard to see how I can make this obvious point any clearer – would you like me to hire a billboard in Times Square?

You said:

“It is not necessary that one can homestead “uses” of goods. You can also interpret the same situation as homesteading the whole good, and then making an implicit contract with others that want to use some aspects of it that you’re not interested in. Furthermore, you have neglected to answer my question why is dealing with subsets of property a problem, and, indeed, if the converse (inability to perform a partial sale) is a meaningful alternative. Also you have not been successful in explaining why this is relevant for the debate, since IP clearly is not about subsets of property, but about extending rights of some while sacrificing rights of others.”

The exact mechanism of “partially homestead”, “partially sell”, “implicit” transfers fo rights and so on I asked you to elaborate on in the scenario above – because I don’t think you can stay consistent under close examination . You didn’t elaborate though. No problem.

Peter Surda August 3, 2011 at 10:56 am

Kid Salami,

so, do I understand that while you do think there is a connection between easements and IP, that is, at the moment, not you argument, right? Which brings me back to the question: what is?

The exact mechanism of “partially homestead”, “partially sell”, “implicit” transfers fo rights and so on I asked you to elaborate on in the scenario above – because I don’t think you can stay consistent under close examination . You didn’t elaborate though. No problem.

First of all, I’m not sure I understand your question and I already said that. Second of all, I addressed the example: as far as I see, it does not contain partial homesteading, partial sale or implicit transfer of rights.

Kid Salami August 3, 2011 at 1:25 pm

Well, isn’t the whole issue caused by you not being able to explain your position in a way that I understand?

Excuse me if I disagree with this – personally, I would say that when you have in the past, on more than one occasion, resorted to debating whether or not photons are owned or not and the exact mechanism by which this might occur in order to stick to you “who owns what tangible good” framework, it might be prudent to allow for the possibility that it is your framework causing the problem here.

You call this a non-problem without actually really taking any time to understand it or answer the questions. Here

You seem to be making the assumption that your rights are based on whether your actions hypothetically could affect other people’s property, as opposed to whether they actually do affect their property. You do not have a right to dig holes in a way that causes collapses of other people’s land, unless they agree or the land was unhomesteaded before the collapse, in which case the collapse homesteads it by you.

you’re just hurdling the problem without so much as a glance down.

I wanted to leave easements out of this and do the subsidence first but ok, let’s stick to easements then. You want to ban the word “easement”. Ok, no problem. Here

http://blog.mises.org/17345/stallman-an-internet-connectivity-tax-to-compensate-artists-and-authors/#comment-791970

I think we agreed that

I think this is the answer, and that you agree that in the first case yes the buyer C has no obligation towards B and so B cannot “force” him to allow him to use the land, and in the second case then – regardless of how we characterise it, a partial sale or what – B has a claim against C because of his real property interest in the land.

Ok – so I think we can agree that the claim that servitudes are irrelevant (in that they are just a combination of other already existing more fundamental rights and mechanisms) is fine so long as we can characterise this joint real property interest in a way consistent with the Kinsella/Hoppe/Rothbard theory of property and the NAP. This is all i wanted.

After some time, you finally agreed that if B forces C to let him pass legitimately, then there needs to be – if we banish “easement” – a “joint real property interest”, that is B needs to have a property interest in the land (a contract won’t do it, as this is with A). I’m not trying to put words in your mouth. Is this what you think?

You could do as sweatervest says and say that B can NEVER use force for this, and so then there is no need for a property interest. But I think that you are not, you are saying that the operations of easements can be replicated by other existing mechanisms? That is, a combo of existing mechanims can allow B to force C and it won’t be aggression. Yes?

Great. What are these mechanisms?

It is not necessary that one can homestead “uses” of goods. You can also interpret the same situation as homesteading the whole good, and then making an implicit contract with others that want to use some aspects of it that you’re not interested in. Furthermore, you have neglected to answer my question why is dealing with subsets of property a problem, and, indeed, if the converse (inability to perform a partial sale) is a meaningful alternative. Also you have not been successful in explaining why this is relevant for the debate, since IP clearly is not about subsets of property, but about extending rights of some while sacrificing rights of others.

Ok, fine. But what are these mechanisms and words and vocabulary? so I can check they make sense.

If A homesteads (and I personally don’t want to use this word as i no longer know what it means, but we can come back to this) some isolated land L1 and the starts using the land plot L2 next door to get water from the river, and then B comes along and wants to use L2 for farming or something, I’m asking you to tell me the status at each “state change” of the land ownership, remembering that A needs to establish, by homesteading, and then retain some “joint real property interest” in L2 for this to work; and B needs to acquire a “joint real property interest” in L2 by homesteading and without ever aggressing against A.

What are the steps towards the equilibrium where B has his farm on L2, A is still on L1 and A uses L2 to get to the water.

Step 1 – A “homesteads” L1, B is nowhere, A is not at this point using L2 at all.
A has RELATIONSHIP (r) r1 with L1 and r2 with L2

Step 2 – A “homesteads” L1, B is nowhere, A starts using L2 to go to the river.
A has RELATIONSHIP (r) r3 with L1 and r4 with L2

Step 3 – B wants to build on L2 but is on some other land, L3
Does he have to ask A? What rights does A relinquish to B? Is this explicit, implicit, by contract, what? What if A is away? Can B still homestead the land? What?

Step 4 – B is now on L2
A has RELATIONSHIP r5 with L1 and r6 with L2
A has RELATIONSHIP r5 with L1 and r6 with L2

So, what are the words for ri where i = 1 to 6

What is the process of step 2?

Is that clear enough for you?

Kid Salami August 3, 2011 at 1:31 pm

Cant edit but that should be

Step 4 – B is now on L2
A has RELATIONSHIP r5 with L1 and r6 with L2
B has RELATIONSHIP r7 with L1 and r8 with L2

So, what are the words for ri where i = 1 to 8

Peter Surda August 3, 2011 at 1:58 pm

Kid Salami,

instead of complaining, you should formulate like you do now.

Step 2: A homesteads L2
Step 3: B therefore needs A’s permission to use L2
Step 4: depends on what arrangement A and B made.

Words:
r1: ownership
r2: no ownership
r3: ownership
r4: ownership
r5-r8 depends on what A and B arranged, but for simplicity we can assume:
r5: ownership
r6: shared ownership together with B.
r7: no ownership
r8: shared ownership together with A.

I explained it already in a less formal way but probably you did not get it.

Clear?

sweatervest August 3, 2011 at 3:35 pm

“Sorry to break up the party, but this seems like a fairly fundamental disagreement. sweatervest, can you please stop saying “we” all the time now.”

I use “we” in response to other people’s claims about “us”. I have never bought the “cult” stuff Wildberry brings up, and remind him often that those of us who are more or less united on IP differ on other things. Whatever “party” you think there was I’ve never spoken of it and criticized Wildberry many times for mentioning it. I will however admit I should not use “we” as often as I do and will take your advice. I can’t stand it when others slip that pronoun in to make it seem like they are speaking for more than themselves.

Yes I admitted that. How is that me getting “caught”? It wasn’t something someone else said that prompted me to point out my own ignorance, it was me re-reading my own posts and thinking I was debating something different from everyone else. Strange you say this and don’t point out how my argument was wrong. I still stand by my conclusion about easements: they are legitimate if and only if they can be established with contracts. Otherwise they are unjustifiable.

“Firstly, when you say this, you do realise that the conclusion you “stand by” is what I agree with and what I was saying from the start, that easements that “run with the land” are not compatible with hardcore NAP ancap?”

Yes, that was a quote from a response to Wildberry, who seemed to be suggesting (by referencing my admission of ignorance) that my conclusion concerning easements is wrong. I was saying to him that I stand by what I said.

“It is unfortunate that this puts you at odds with the daily actions of millions, if not billions, of people and hundreds of years of history”

No, actually it doesn’t. The vast majority of human interactions are perfectly in line with the kinds of property rights I described. The actions of billions of people in history have not been dominated by enforcement of easements that run with the land or intellectual property. They have been dominated with mutual respect of peoples’ right to use their property in a way that does not damage their own property. The actions of the state, while historically significant, are statistically insignificant as far as past human actions go.

Ancaps do not deny what has worked in history. Rather, they correctly separate out the part of history that functioned from the part of history that undermined that functionality. They understand *what* past actions led to success, distinguishing them from what other past actions thwarted or almost thwarted success.

Imagine, if you will, a world where easements running with land did dominate human actions. It would be a world where free immigration poses a constant problem of invasion to property owners. No, that wouldn’t work very well. Try imagining a world that actually enforces copyrights and see an even bigger disaster.

“but fortunately for you, you (like Peter) regard this as irrelevant and “an appeal to convention and popularity!? Thinking the earth is flat has a long history and tradition too” so its ok.”

You do not explain why it was the existence of some convention that caused past actions to be successful. You simply point to a correlation and present it as proof of causation. If you did explain you would not be relying on the popularity of an idea to justify that idea (which is a fallacious appeal to convention/authority) but would instead be relying on the justifiability of an idea to explain what it contributed to history. That seems to be what you are trying to do: suggesting that past society was successful because ideas ancap was unpopular. But to prove that you need more than a correlation of the unpopularity of ancap and successful actions, you need an a priori justification of that connection between historical facts. History gives the facts, not the connections between them. Theory provides the connections.

Ancap is not incompatible with the historical facts. That an idea is popular (i.e. that it is the expressed opinion of many people) does not imply it is the guide to most actions. A very unpopular idea may be the guide to most actions, because people who claim to believe otherwise do not realize that their actions are guided by these ideas. In those cases they fall back on their subconcious/instinctual beliefs (for example, if you are unaware that pool is a geometry problem that may be solved by measuring angles, you can still fall back on your “gut” feeling of where to shoot). Anarchist private property (i.e. private property with only uninstitutionalized violations), while usually unpopular in history, is obviously the main theme of all interactions in history. Society is the result of the dominance of peaceful, non-arbitrated cooperation.

So, in short, yes intellectual affairs cannot be advanced through a popularity contest.

“A debate about whether a tradition has evolved because of state aggression or not is a legitimate one – but discarding all traditions, customs and norms because they are not deductive conclusions makes no sense at all.”

No one has done that. Treating a tradition, custom or norm as conclusive proof of its content doesn’t make any sense either. You seem to be suggesting that I am rejecting something simply because it is a tradition, custom or norm. If so then you misunderstand me. That something is a tradition/custom/norm doesn’t automatically mean it is wrong. But it doesn’t mean it is automatically right either, which is what you seem to be suggesting. I have a reason to be going against popular notions: I think they are wrong. It happens sometimes. I don’t go against popular notions for the sake of going against popular notions. There are plenty of popular notions (i.e. that private property is justifiable and worthy of defending) I agree with.

sweatervest August 5, 2011 at 11:45 am

“Rothbardians are trying to reinvent the wheel”

You want the wheel to be patented which would force us to do that anyways!

Wildberry August 5, 2011 at 12:44 pm

Funny!

Wildberry August 4, 2011 at 3:24 pm

Kid Salami:

I respect your ability to remain focused on this one issue, and bringing it into the clear and unequivocal light. It is indeed a settled issue; either the homesteading principle has to be expanded to incorporate these standard property issues, or we must conceive of rules of cooperation where only limited property rights are available, and everything that doesn’t fit has to be hashed out between individuals using only contracts theory.

This is part of the problem Rothbard left when he said that a new code of law would have to be worked out by future scholars. It is becoming obvious that when the “new” code is stretched to apply to existing issues if property rights conflicts, it doesn’t stretch, and we return to the possibility that existing positive laws of property rights are there for a reason. That reason is that conflicts have already occurred many times over the history of human society, and the resolutions have resulted in the systems, like easements, that accommodate the fuzzy nature of property rights boundaries.

Rothbardians are trying to reinvent the wheel, and at the margins encounter the same problems that positive law already addresses. It is only ignorance of the issues and rules of those laws that permit people in the “choir” to claim these rules are “wrong”, when in fact they have not taken the trouble to understand what is right about them.

In general, this is the complaint I have with many key spokespersons on this site; they are too willing to throw existing doctrine, whether it’s positive law or Mises, under the bus because they have a fundamental ideology that requires that they defend a particular, simplistic conclusion: homesteading = property rights. You have demonstrated this brilliantly.

As an aside, I have now seen Surda do this to several people by now, (including me). When he is led painfully kicking and screaming up to the precipice of his own fallacies, he resorts to this sentiment:

“Then why don’t you answer my questions? You’re slowly turning into the other whiners who avoid confrontation and just complain.”

It is predictable but ironic; a falsificationist who cannot bring himself to admit his own falsifications. It only gets more bizarre from here.

Isn’t it also odd that Kinsella just dropped out of the discussion? Since he is the primary spokesperson around here that connects homesteading and IP, I thought he would have come up with something by now. The fact that he hasn’t chimed in is telling.

Peter Surda August 5, 2011 at 4:20 am

Wildberry,

your attempt to present your own inability to provide coherent formulations as flaws of others is pathetic. Now it looks like you even infected Kid Salami.

sweatervest August 5, 2011 at 12:26 pm

“It is predictable but ironic; a falsificationist who cannot bring himself to admit his own falsifications”

Almost as predictable of you engaging in standard sophistry: simply speaking of the errors in others’ arguments instead of actually pointing them out. The only reason to that is because you’re making the errors up.

“Isn’t it also odd that Kinsella just dropped out of the discussion?”

Does he need to participate? Has anything you or Kid said not been addressed by Peter or myself?

Wildberry August 5, 2011 at 12:45 pm

You win! The earth IS flat!!

sweatervest August 5, 2011 at 12:57 pm

Typical. No argument, just a metaphor.

Kid Salami August 4, 2011 at 2:43 am

Peter

I explained it already in a less formal way but probably you did not get it.

Well excuse me if I disagree again. Writing posts like that takes more time – the problem here is not me but is the incoherence of your explanations. I already gave you a hint when I said

http://blog.mises.org/17750/without-ip-would-there-be-a-world-of-clones/#comment-794175

This is more like the meaning that homestead has had in the past – it seems to have changed now though to something else, and i think this is a fudge. On this we seem to agree.

and

There is no “fence” equivalent here. It is just more ad-hoc nonsense.

http://blog.mises.org/17345/stallman-an-internet-connectivity-tax-to-compensate-artists-and-authors/#comment-792353

Maybe my explanations are bad? Or maybe I’m just a step ahead of you? Let’s let the reader decide.

The whole rigmarole above was to get you to clearly say:

A homesteads L2

Thank you. Because this is nonsense. The term “mix labour” and the concept of the fence are useful only insofar as they are not casual use, which is what walking over L2 on occasion to get the river is. The discussions of how you homestead land are not clear or settled, except on one thing – casually walking over it does not constitute homesteading. Try

http://en.wikipedia.org/wiki/Homestead_principle#Fencing_vs_mixing_labor

Or what does Walter Block say?

http://libertarianpapers.org/articles/2010/lp-2-4.pdf

Suppose that Mr. B fully intends to homestead the entire area, A+B….What are the size limitations on B (+A)? this issue is not unrelated to the one concerning how intensive or extensive must the homesteading be, in order to count as a justification of ownership. According to Rothbard (), this depends upon the culture, the common practices, the history of the area, and can legitimately vary depending upon these considerations. For example, the land is better watered, on average, and more fertile, east of the Mississippi, than west of it. Therefore, the tradition is likely to be a requirement of more intensive homesteading and farming east of this river than west of it.

Not for you though. Walking over it from your own farm is enough?

What about Kinsella in The Bible, “Against IP” – what does he have to say?

…by allocating exclusive ownership of resources to specified individuals (owners). To perform this function, property rights must be both visible and just. Clearly, in order for individuals to avoid using property owned by others, property borders and property rights must be objective (intersubjectively ascertainable); they must be visible. For this reason, property rights must be objective and unambiguous. In other words, “good fences make good neighbors.” Property rights must be demonstrably just, as well as visible, because they cannot serve their function of preventing conflict unless they are acceptable as fair by those affected by the rules.

And I can’t find links but you yourself (and the choir) have argued that the property lines must be visible to be of any use.

So this latest twist of the word homesteading by you is nothing but a transparent ruse – it is pretty clear. You’ll get your wish, I won’t complain any more – I don’t have to, because I consider this matter finally closed – that is, am clear that you can’t do what I asked and break down the process of an “easement” into other more fundamental blocks. Your claim then is simply false.

Kinsella’s co-ownership is the different but logically equivalent to your answer and therefore would suffer the same problem.

Sweatervest was more honest – he sticks to his original defitions and agrees with me, easements are not legitimate in the NPA-ancap world and so my disagreement with him is about whether this is feasible ie. whether this is the way that people actually want to live, without easements. I think it is not but that is admittedly a different debate.

None of the rest of the choir had much to say about it.

Peter Surda August 4, 2011 at 4:00 am

Kid Salami,

I already gave you a hint when I said [2 quotes]

The argument from the first quote, as I said before, only makes sense if there is a right in not having your property copied in the first place, thereby making it circular. Easements do not change this, and even Stephan explains this.

The argument from the second quote I do not actually see any, and I already said that.

Maybe my explanations are bad?

Your explanations do not appear coherent to me, instead they look like you’re random complaints. I have asked you several times to explain your arguments already.

Because this is nonsense.

Then why don’t you answer my questions? You’re slowly turning into the other whiners who avoid confrontation and just complain.

The term “mix labour” and the concept of the fence …

This term seems to have been abandoned lately (e.g. Block, Kinsella) and is best viewed as metaphor.

Not for you though. Walking over it from your own farm is enough?

You appear to miss the context and purpose of property rights. All the conditions and questions are only relevant inasmuch there is an actual conflict. If A and B from your example are not in a conflict (whether it is due to an agreement or mutually acceptable understanding without explicit agreement), the details of this are undeterminable (and irrelevant) for a third party. We can only make educated guesses based on A’s and B’s behaviour, and it has no effect on us anyway. If there is a conflict, however, it logically means that one of them must have performed homesteading of the resource in question before the other, and if they cannot come to an agreement themselves and want to avoid violence, they need to ask a third party (C) to make the ruling. This is where the cultural context becomes relevant: in the implicit assumptions of the A and B, and in the likelyhood of C ruling in favour of A or B.

Furthermore, it now becomes a bit more clear where your core of your confusion is: in the example, you are asking if B needs to ask A if he wants to use L2. With respect to what I said above, it logically follows that the question of property rights only arises if their actions are in a conflict. Merely using the label L2 to refer to land does not unambiguously determine that. Rothbard uses the term “relevant technological unit”. While I would not necessarily say that I agree with this, it explains that the core of the problem is scarcity and conflict, rather than the labels people use.

And I can’t find links but you yourself (and the choir) have argued that the property lines must be visible to be of any use.

You are putting the cart before the horse. This is only relevant if there is a conflict, in which case one of the actors must have homesteaded the good before the other. If there is no conflict, there is nothing to solve and the question is irrelevant. This explanation encompasses all possible situations.

So this latest twist of the word homesteading by you is nothing but a transparent ruse – it is pretty clear.

I have for a long time claimed that property rights can only exist due to scarcity, because scarcity can create conflict. My approach is a bit more abstract than those of the references you quoted.

am clear that you can’t do what I asked and break down the process of an “easement” into other more fundamental blocks

You are making too many assumptions regarding my claims, you are mixing them with more specific definitions.

Kinsella’s co-ownership is the different but logically equivalent to your answer and therefore would suffer the same problem.

You have not explained sufficiently clear what “the problem” is, other than you don’t like my argument.

easements are not legitimate in the NPA

Easements are a confusing concept which do not have a clear 1-1 mapping to NAP. I want to avoid referring to them an instead provided what I think is a more abstract, and logically coherent, approach.

sweatervest August 5, 2011 at 12:52 pm

“Sweatervest was more honest – he sticks to his original defitions and agrees with me, easements are not legitimate in the NPA-ancap world and so my disagreement with him is about whether this is feasible ie. whether this is the way that people actually want to live, without easements. I think it is not but that is admittedly a different debate.”

That is a different debate, but unlike easements it actually has an impact on IP.

No ancap has ever suggested that a private property society would make everyone happy. I personally know many people who think private property is evil and selfish and want to live in a commune. Is the ancap advocate telling those people tough luck, you gotta go get a wage-paid job and own property anyways?

No they’re not. Communes can exist within a larger private property system (the commune head is the private owner and simply grants the commune members the right to use his property communally), and there can also exist closed communities that adopt whatever rules of conduct they like. These can include a right to cross land that “runs with the land” and even respect for copyrights and the banning of unauthorized copies.

No part of private property rights prevents people from forming institutions and laying down sets of rules to be a part of those institutions. In fact, it is precisely private property that allows people to make rules to begin with. A nudist colony can adopt the rule that only nudists may join them and be a part of their community. They can kick out anyone who breaks this rule. It is not a violation of property rights to wear clothes, it’s just a violation of the nudist colony’s rules. The crucial difference is that people outside of the colony, who never agreed to be nudists, are not bound by the rules of a club they never joined and can wear whatever clothes they want. Same goes for easements that “run with the land”, all forms of intellectual property, and even communal use of productive means.

A closed community may adopt the rule that unauthorized copying of creative material is prohibited and even that use of unauthorized copies is prohibited. Anyone caught doing these things may be thrown out of the community, as one agreed to follow those rules upon entry to the community. Within this community there may, then, be a very strict policy of respecting copyrights and authors who produce creative works within that community can have complete control over what copies *in that community* exist and how they are used. The crucial point is that no one outside of this community, that has never entered or signed any agreements to enter this community, are not bound by the rules of that community, and if an unauthorized copy gets beyond the community and into the hands of other people, the community cannot begin terrorizing the general public to enforce it’s own private rules.

This is exactly what copyrights today are: a private club imposing their rules on non-members. Even if one buys the (absurd) notion that the U.S. government represents the U.S. citizenry, it still certainly does not represent the entire world population and yet people in Sweden are supposedly bound by the terms of the Millenium Copyright Act.

So to answer your concern, I am not spelling out a situation where such easements, or IP or even communal use of productive means is outlawed. That a society is a pure private property system only means that people cannot force others to adopt and obey those schemes. The members of a community that allows free passage over any land within the community cannot force people outside the community to allow free passage over their land. The members of a community that allow communal use of productive means cannot force all owners of productive means to allow communal use of their property. The members of a community that allow authors to control the production and use of copies of their works by other community members cannot control how copies are produced and used by people outside of that community.

That is all that private property means. It doesn’t stop people from being able to make rules with each other about how to behave. In fact, it is the *only* means by which people can make rules.

Perhaps you have straw-manned anarchy, as it often is, as a “no rules” scenario. It is the great irony of that whole debate that the only way to have a “no rules” scenario is to violently stop everyone from making and following rules as they do of their own volition, which requires an unchecked and essentially ominpotent dictator. The only way to have no rules is to abolish them all, and that is authoritarian statism in its most extreme. It is the antithesis of anarchy.

Anarchy is not “no rules”. It is “no rulers” which is, despite the intentionally confusing closeness of the language, quite the opposite of “no rules”. Anarchy means “no power”, which would result in a flourishing of rules. They would just be rules that people agree to follow because they recognize them as useful codes of conduct, not rules that are imposed on people against their wills because someone else thinks they are useful and cannot convince others of their usefulness.

sweatervest August 5, 2011 at 1:00 pm

“The crucial point is that no one outside of this community, that has never entered or signed any agreements to enter this community, are not bound by the rules of that community”

Whoops that’s too many negatives, let me try again:

No one outside of this community, that has never entered or signed any agreements to enter this community, are bound by the rules of that community. More simply, if you’re not part of the community you are not bound by their rules.

Kid Salami August 6, 2011 at 11:41 am

Peter

Your explanations do not appear coherent to me, instead they look like you’re random complaints. I have asked you several times to explain your arguments already…Then why don’t you answer my questions? You’re slowly turning into the other whiners who avoid confrontation and just complain.

Well, apologies for this metamorphasis – the growth of my ear hair has been accelerating recently, it’s possible I’m turning into something – a werewolf maybe. However, notwithstanding this, I think you’ll find that my complaints are far from “random” and are in fact, on the contrary, remarkably specific, thanks to my careful elucidation of your position. As for your many complaints that you don’t understand me, I suggest again that the reason for this is your own confusion and the fact that you either still do not really understand what is going on or you are just blind to seeing the facts that prove that you are in a corner.

You could have agreed with sweatervest and said that the easement scenario I described was incompatible with NAP-ancap. Or you could have agreed with Kinsella, who said

http://blog.mises.org/10433/why-airwaves-electromagnetic-spectra-are-arguably-property/

“One type of property right is an easement (servitude, in the civil law). Say people routinely walk over a path from point A (their village) to point B (watering hole). You can say they have homesteaded at least that use of the propety. If someone else builds a home there, they have to let the easement continue.”

The conflict of interest here is the one Kinsella alludes to and corresponds in my scenario here to B homesteading L2 and A using force against B so he can continue using L2 to get to the river. This is fairly uncontroversial – Kinsella says this is consistent with Libertarian principles and introduced co-ownership to describe this scenario – A in some sense “co-owns” L2.

However, you took neither of these two positions. Instead, you said:

Easements are a confusing concept which do not have a clear 1-1 mapping to NAP. I want to avoid referring to them an instead provided what I think is a more abstract, and logically coherent, approach.

I said that easements are an arbitrary subset of more general concepts, partially overlapping the NAP, partially not. By concentrating on the specifics of easements the whole debate is muddled.

amongst other similar claims. So, your claim is that: the word easement is unnecessary as it is a “subset of more general concepts”.

I asked what these “concepts” are. And to avoid confusion, I asked in the context of a specific example here

http://blog.mises.org/17750/without-ip-would-there-be-a-world-of-clones/comment-page-1/#comment-795715

And in your response you said:

instead of complaining, you should formulate like you do now.

before answering. As you said it was clear, which it was, let’s go back to a “known state” of clarity so you can’t keep claiming things aren’t clear any more. I emphasised the requirement for A to be able to acquire the “real property interest” in L2 that you agree has to exist and your claim is that this can arise from the already existing “concepts”.

The scenario is perfectly clear but I can see you won’t voluntarily go to the root, because this shows you are wrong. You choose the wrong conflict to focus on – the conflict has always been the one where A uses force on B because B wants to stop A from going to the river (exactly like the earlier scenario from the Stallman thread). A’s right being an “easement” allows him to do this without it being aggression. You say this can come about with other more general “concepts” and that as a consequence the word “easement” is in some way confusing (I’m not confused by it but I will concede that they confuse you).

I ask what this process is (in the question you agreed was very clear). I basically put a ring in your nose and led you to say, clearly, exactly what I wanted you to say and knew you’d say. You said “A homesteads L2″ – but of course, the whole scenario is premised on A NOT having “homesteaded” L2. This is the root which you are missing entirely. Of course it is POSSIBLE that he could homestead it and then relinquish all his rights except the one allowing him to walk to the river (creation by “reservation” is the term for this). Of course this is possible, no’one said it isn’t.

The problem arises where he specifically has not done this – duh. As Kinsella said “You can say they have homesteaded at least that use of the propety.” – as this statement of Kinsella, and my earlier scenario on the Stallman thread to which I was referring, only make sense if you assume that he didn’t homestead ALL L2 (and so did not become its one and clear owner), then when you say I’m not being clear you’re just either confused or grasping for air, I genuinely don’t know which.
I pointed this out saying this was “nonsense” (which it is) and you said

Then why don’t you answer my questions? You’re slowly turning into the other whiners who avoid confrontation and just complain.

Which is a non-sequitur and a dodge of the issue. Ignoring the other deflections and questions for now (which may or may not have merit but I’ve only ignored the ones that are not relevant to resolving this particular issue), I’ve looked for the other related comments or possible explanations from your posts.

If there is a conflict, however, it logically means that one of them must have performed homesteading of the resource in question before the other, and if they cannot come to an agreement themselves and want to avoid violence, they need to ask a third party (C) to make the ruling. This is where the cultural context becomes relevant: in the implicit assumptions of the A and B, and in the likelyhood of C ruling in favour of A or B..

The first sentence is assuming that which is under debate. Then the rest, you say there’s no problem because we can just ask C if there’s a disagreement? Seriously? I’ll assume this is just comic relief as an answer to this is even less worthy of my time than usual.

Furthermore, it now becomes a bit more clear where your core of your confusion is: in the example, you are asking if B needs to ask A if he wants to use L2. With respect to what I said above, it logically follows that the question of property rights only arises if their actions are in a conflict. Merely using the label L2 to refer to land does not unambiguously determine that. Rothbard uses the term “relevant technological unit”. While I would not necessarily say that I agree with this, it explains that the core of the problem is scarcity and conflict, rather than the labels people use.

I don’t really understand this. There is potential for conflict – “you are asking if B needs to ask A if he wants to use L2″, this is one possible source of conflict yes, A has some status over L2 and I’m asking you to explain what it is without the word easement. The other source is B stopping A as above. This paragraph adds nothing.

You also said:

It is evident that the outcome is determined by the definition of property rights. It is also evident that unless the definition is clear in advance, both you and the skyscraper builder have it difficult to predict whether their actions are legal or not, and the system of property rights will fail to serve its purpose. .

Let’s go back to the mutual agreement. Let’s say that you agree that you offer the guy 10 Bitcoins and in return he builds it from glass. In this situation, the question of property rights in “having your land affected by sunlight” is irrelevant, since there is no conflict. If you want, you can call the photons, after entering the skyscraper, being “co-owned” by the two of you.

As you see, the dislike that you have for “homesteading of uses” is meaningless, because whenever there is an actual conflict and the question of property rights has to be invoked, the source of the conflict can be backtracked into the first homesteader.

The first statement “It is evident that the outcome is determined by the definition of property rights. It is also evident that unless the definition is clear in advance, both you and the skyscraper builder have it difficult to predict whether their actions are legal or not, and the system of property rights will fail to serve its purpose.” seems to be a true statement without a logical function or place in the paragraph.

And no’one saying mutual agreement isn’t possible, we all know it’s possible, but in the event of conflict, we obviously need principles. And your last statement “the source of the conflict can be backtracked into the first homesteader” again just assumes that which is under discussion.

And I don;t have a “dislike”, I have a request. Please prove I’m wrong, go back to my question that you agree was clear. A has to end up being able to use force on B to allow him to get to the river, as per the operation of this “easement”. If we abandon the word easement as per your request, what are the steps and state changes, as per my very clear question, for A to acquire the “real property interest” in L2 that allows him to use force on B to get to the river?

Peter Surda August 7, 2011 at 10:15 am

Kid Salami,

The conflict of interest here is the one Kinsella alludes to and corresponds in my scenario here to B homesteading L2 and A using force against B so he can continue using L2 to get to the river. This is fairly uncontroversial – Kinsella says this is consistent with Libertarian principles and introduced co-ownership to describe this scenario – A in some sense “co-owns” L2.

You are mixing again two separate questions.

I asked what these “concepts” are.

Homesteading, trades and conditional transfer of title.

the conflict has always been the one where A uses force on B because B wants to stop A from going to the river

The conflict is not in A using force, but in A going to river and A not going to river being mutually exclusive.

I ask what this process is (in the question you agreed was very clear). I basically put a ring in your nose and led you to say, clearly, exactly what I wanted you to say and knew you’d say. You said “A homesteads L2″ – but of course, the whole scenario is premised on A NOT having “homesteaded” L2.

Why should it be based on such a premise? That’s what you made up. I never made the claim that such a thing can occur. On the contrary, I maintained that all conflicts are possible to backtrack to the first homesteader.

This is the root which you are missing entirely.

No, this is something you made up. Where did I claim that you can have a right of any sort in a good that noone homesteaded?

Of course it is POSSIBLE that he could homestead it and then relinquish all his rights except the one allowing him to walk to the river (creation by “reservation” is the term for this). Of course this is possible, no’one said it isn’t.

Then you mistakenly assign to me a position which I do not have.

As Kinsella said “You can say they have homesteaded at least that use of the propety.” – as this statement of Kinsella, and my earlier scenario on the Stallman thread to which I was referring, only make sense if you assume that he didn’t homestead ALL L2 (and so did not become its one and clear owner), then when you say I’m not being clear you’re just either confused or grasping for air, I genuinely don’t know which.

If we define “homesteading uses” as “homesteading full and relinquishing partial” then there is no logical issue. Which is what I have been saying since the beginning.

Which is a non-sequitur and a dodge of the issue.

On the contrary, as I have said above, I have addressed this point already several times but for some reason you don’t get it.

Then the rest, you say there’s no problem because we can just ask C if there’s a disagreement? Seriously? I’ll assume this is just comic relief as an answer to this is even less worthy of my time than usual.

Stop twisting my words and read what I write. I am merely describing all possible options. I am not judging these options.

A has some status over L2 and I’m asking you to explain what it is without the word easement.

And I answered gazillion times. Stop wasting my time.

seems to be a true statement without a logical function or place in the paragraph

The purpose was to explain that I am ignoring normative issues and merely analysing the logical relationships of claims, categorising options and making sure that I cover all of them.

Kid Salami August 7, 2011 at 12:34 pm

“If we define “homesteading uses” as “homesteading full and relinquishing partial” then there is no logical issue.”

Thanks for the clarification, because now we just bounce back to my earlier point – this requires a totally different definition of homesteading to the one used here. I provided some quotes already, you avoided this problem and all you said was “mixing labour” is now “abandoned”.

Ok – what else does Kinsella have to say? I’ll pick recent ones so you can’t claim they’ve been superceded. In both of these he makes exactly my point:

http://mises.org/daily/3660

Unlike human bodies, however, external objects are not parts of one’s identity, are not directly controlled by one’s will, and — significantly — they are initially unowned.[18] Here, the libertarian realizes that the relevant objective link is appropriation — the transformation or embordering of a previously unowned resource, Lockean homesteading, the first use or possession of the thing.[19] Under this approach, the first (prior) user of a previously unowned thing has a prima facie better claim than a second (later) claimant, solely by virtue of his being earlier.…. As can be seen from the considerations presented above, the link is the physical transformation or embordering of the original homesteader, or a chain of title traceable by contract back to him.

http://www.stephankinsella.com/2009/08/kinsella-speech-intellectual-property-and-libertarianism/

But what is relevant for our purposes here is the libertarian position, not the incoherence of competing views. In sum, the libertarian position on property rights in external objects is that, in any dispute or contest over any particular scarce resource, the original homesteader — the person who appropriated the resource from its unowned status, by embordering or transforming it[24] (or his contractual transferee) — has a better claim than latecomers, those who did not appropriate the scarce resource.

Can you read that – ” the transformation or embordering of a previously unowned resource”. Walking over ground to go between places is not satisfying Kinsella’s definition of homesteading, no matter how much you’d like it to be or pretend it is.

Given homesteading is a rather crucial word, this is somewhat problematic. Shall we go back to all your posts and exchanges where you used the word “homestead” and see if your brand new personal, made-up definition still fits?

I accused you of introducing new concepts, and your statement

Peter Surda August 3, 2011 at 8:44 am
Kid Salami,
I have not introduced new concepts.

now appears to be, erm, wrong. Sorry.

Peter Surda August 7, 2011 at 2:59 pm

Kid Salami,

Thanks for the clarification, because now we just bounce back to my earlier point – this requires a totally different definition of homesteading to the one used here.

What does this mean? I did not provide a definition of homesteading, on the contrary, my argument does not require a specific definition of homesteading. I merely implied that from the perspective of Kinsella/Hoppe/etc, physical change is a necessary condition for homesteading.

Walking over ground to go between places is not satisfying Kinsella’s definition of homesteading, no matter how much you’d like it to be or pretend it is.

I don’t care what Kinsella’s definition of homesteading is. I’m attempting to avoid normative issues. We can discuss them after we have agreed on the logical relationships between claims.

Given homesteading is a rather crucial word, this is somewhat problematic.

You are mixing positive and normative claims.

I accused you of introducing new concepts, and your statement [cut]now appears to be, erm, wrong. Sorry.

I did not introduce any new concept and you have consistently failed to demonstrate the converse. On the contrary, you are pushing me to express myself about “easements”, which I repeatedly stated are a confusing and vague concept. I based all my answers to you on three concepts only: homesteading, trade and conditional transfer of title (and maybe in the latest one, abandonment, but that’s because you introduced “relinquish all rights except”).

You said that you do not have a problem with partial sales/transfers (presumably, you do not have a problem with partial relinquishing either). I then demonstrated that all the options can be represented as a combination of the above three prototypes and partial sales/transfers (and in the last case, relinquishing). Which leaves your complaint referring to an empty set.

If you nevertheless believe that your argument does not, in fact, refer to an empty set, then please specify the features of the objects in that set.

Kid Salami August 10, 2011 at 3:05 am

I’ll populate your “empty” set, and in fact I’ll do it with the example which I explicitly put to you a gazillion posts ago and which you seemingly still don’t understand or are pretending I didn’t say or something. But I’m going to add to it so as to preemptively kill off possible magical production of a rabbit.

Here when discussing easement by prescription, you get this example problem:

http://nsulaw.nova.edu/faculty/documents/prog%20text%20servitudes%203d%20ed1.pdf

1. A and B are neighbors. For as long as anyone can remember, A has driven across B’s land to reach the public highway although there is nothing in writing which gives A the right to do so. There are other routes. B has never objected to A’s conduct. Does A have an easement by prescription in a jurisdiction which follows the Lost Grant Theory?

Answer: Probably. If this use, which appears to be open, notorious, and continuous, has continued for the required amount of time, then A will prevail if the last requirement, acquiescence, has been met. Has B acquiesced? If B has acted as if A had the right to cross B’s land and there was really nothing which B could do about it then the answer is yes, B has acquiesced. However, if B gave A permission, then B has not acquiesced; and A would fail in an attempt to establish this easement. Only the one who has the right to deny access could decide to give permission. By giving permission, B acted as if she had the right to refuse access to A because A had no right to cross B’s land.

Here is the scenario I started with.

Kid Salami July 9, 2011 at 9:17 am
In the first case, the two people agree contract: B is to pay A £X per year and then A is to allow B to pass over his land and if A sells the land he “promises” in the contract to include this agreement about the pathway in any sales pitch and so allow B to come to an agreement with the new owner before title is transferred from A to the new buyer (B is limited to asking for, say, the current rate per year being charged paid to A). If A does not do this, there are damages due to B detailed in the contract.

In the second case, the “arrangement” between is an easement between A and B, one that is allowing B to do something on land he doesn’t own and so it is a positive easement, where B is the benefitting and hence dominant estate and A has the burden and hence is the servient estate. And it is an appurtenant easement, which is one that benefits the dominant estate and “runs with the land”.

The problem comes when A sells the land without telling the buyer of the arrangement, whichever it is. Then, do you agree that in the first case B (if he wants to pass over the land) has a breach action against A, whereas that in the second case A and his whereabouts are irrelevant and B can “force” C to allow him to pass?

You equivocated last time when you said

Although I am still not 100% sure to which of the prototypes match the situations, probably, in the fist case, the arrangement is not a partial sale, but a conditional transfer of title (from A to B). The result of a violation of the condition is then A having to pay money (“damages”) to B. The arrangement does not obligate anyone else (e.g. C) to anything. In the second case, the arrangement is probably a partial sale (of land, from A to B). The result of a violation of the condition is a trespass (or theft, if you will), and therefore can apply to anyone.

which isn’t very clear is it, but I let it pass.

Let me add to this here for extra clarity that when I say “an easement between A and B” I mean as per the example problem above. That is, there exists an easement for which A and B (who are switched the two scenarios) are the dominant and servient estate, and it is not in writing or in the deed or anything but “open, notorious, and continuous, has continued for the required amount of time”. A sells the land to C. C tries to stop B from using the land as B was before.

We have a conflict – and the result, as per this example, is that B can use force on C (as per the outcome of the example problem).

Please demonstrate to me clearly the sequence of events that – using only homesteading and contracts (ie. Some combination of your “Homesteading, trades and conditional transfer of title”) – replicate the scenario in the second case, that allows B to use force on C (and it not be aggression).

Peter Surda August 10, 2011 at 6:47 am

Kid Salami,

Here when discussing easement by prescription, you get this example problem:

The example presented does not provide sufficient data to make a conclusion. We’ll assume for simplicity that there was no previous owner prior to A or B.

For as long as anyone can remember, A has driven across B’s land to reach the public highway although there is nothing in writing which gives A the right to do so.

The main missing fact here is whether A has been doing this before B started using the land.

B has never objected to A’s conduct.

Lack of objection is, in my opinion, not a sufficient criterion for a transfer of rights, but let’s just for simplicity assume that for A it is, and for B it isn’t (because this is closer to the concept of easements). Of course, we can debate the alternatives if you are dissatisfied by these assumptions.

This gives us the following options:
(1) A’s use of the path counts as homesteading, it occurred prior to B’s using the land. Then A and B co-own the land and the outcome roughly corresponds to easements.
(2) A’s use of the path counts as homesteading and it occurred after B using the land.
Then B owns the land (because A cannot homestead something that is already homesteaded by B). While B is tolerating A (you can interpret this as rent if you want), since the land is B’s, at any time B or subsequent owners can deny A access.
(3) A’s use of the path does not count as homesteading and occurred prior to B’s use of the land. B owns the land. Same comments as in (2).
(4) A’s use of the path does not count as homesteading and occurred after B’s use of the land. Same as (3).

In my opinion, this encompasses all option. If you think it doesn’t, please specify.

which isn’t very clear is it, but I let it pass.

What specifically isn’t clear?

Let me add to this here for extra clarity that when I say “an easement between A and B” I mean as per the example problem above.

Yes but you omit the values of the variables which influence the outcome. While you describe the agreement somewhat, the description is insufficient to conclude whether it’s a conditional transfer of title (of damages) or a partial sale (of land). This is the missing link that decides whether there is an “easement” or not.

Please demonstrate to me clearly the sequence of events that – using only homesteading and contracts (ie. Some combination of your “Homesteading, trades and conditional transfer of title”) – replicate the scenario in the second case, that allows B to use force on C (and it not be aggression).

If A partially sold the land to B, then they have co-ownership (or “easement”, if you want). If C does know about this co-ownership, and buys A’s “share”, then we can hopefully agree that he agrees to B’s passage. Now, opinions differ here what the result of C not knowing of the co-ownership would be. I claim that this would make the sale invalidate from the beginning and C would simply be a trespasser. Wildberry claims that this allows C to get a discount from A or something like that. I think the latter leaves the question open, but I mentioned it in order to cover all options.

If A merely tolerated B and promised to pay damages, this is a conditional transfer of title (of the damages, not the land). Since in this case B does not own or co-own the land, he has no recourse against C.

I hope it is clearer now, if not please explain why not.

Kid Salami August 10, 2011 at 2:20 pm

Peter – your options 2 has some issues. In fact, it is, erm, gibberish.

“(2) A’s use of the path counts as homesteading and it occurred after B using the land. Then B owns the land (because A cannot homestead something that is already homesteaded by B).”

this “counts as homesteading” although “A cannot homestead” it. Another interesting perspective.

“While B is tolerating A (you can interpret this as rent if you want), since the land is B’s, at any time B or subsequent owners can deny A access.”

Thank you for so clearly showing that you don’t understand. What are you talking about? The whole point of this utter waste of time is the circumstances in which A can use force to maintain access. You just issued some Surdal Decree saying he can’t when in fact (sometimes) he can and that’s what want you to explain. You are totally lost.

“(2) A’s use of the path counts as homesteading and it occurred after B using the land.
Then B owns the land (because A cannot homestead something that is already homesteaded by B). While B is tolerating A (you can interpret this as rent if you want), since the land is B’s, at any time B or subsequent owners can deny A access.”

Peter Surda August 11, 2011 at 3:48 am

Kid Salami,

Peter – your options 2 has some issues. In fact, it is, erm, gibberish.

While I see how it can be misinterpreted, I think that this can only happen intentionally, because I described the problem as a decision matrix (so we are always evaluating the same variable). I don’t think you are not interested in resolving the issue, you’re interested, just like Wildberry, in distractions. Let me rephrase that.

A’s use of the path would have counted as homesteading if it did not belong to B already. However because it is already homesteaded, this action requires A’s consent to be legitimate (i.e. A’s consent determines if there is a contract or trespass).

The whole point of this utter waste of time is the circumstances in which A can use force to maintain access.

And I listed the variables which determine that (the scope of homesteading and the contents of the contract A and B have with each other). You claim that there is some sort of an error in my argument, but fail to explain what exactly.

You are totally lost.

On the contrary, you are totally lost. To my best knowledge, my arguments are consistent and the logical relationships in them are correct.

Peter Surda August 11, 2011 at 4:42 am

My my, so many typos.

I don’t think you are not interested in resolving the issue, you’re interested, just like Wildberry, in distractions.

Should be:
I don’t think you are interested in resolving the issue, you’re interested, just like Wildberry, in distractions.

However because it is already homesteaded, this action requires A’s consent to be legitimate (i.e. A’s consent determines if there is a contract or trespass).

Should be:
However because it is already homesteaded, this action requires B’s consent to be legitimate (i.e. B’s consent determines if there is a contract or trespass).

Kid Salami August 11, 2011 at 8:18 am

You said originally

While B is tolerating A (you can interpret this as rent if you want), since the land is B’s, at any time B or subsequent owners can deny A access.

which is conspicuously missing from your rephrasing of it. What a coincidence! Or is it absent because it is an unambiguously false statement? Yet you suggest that your rephrasing is because I’m intentionally misunderstanding? Good one.

A’s use of the path would have counted as homesteading if it did not belong to B already. However because it is already homesteaded, this action requires [B]’s consent to be legitimate (i.e. [B]’s consent determines if there is a contract or trespass).

I have stuff to do and I’m not interested in conversations that could be drawn from the therapy scenes in “One flew over the cuckoo’s nest” at the best of times, why I’m responding to this Turing Test level drivel is a complete mystery to me.

Property rights are not contracts. You are describing a contract to use some property in a “non-possessory” manner. From Wikipedia (though I’ve given you this info in at least 1 other form already, maybe 2)

http://en.wikipedia.org/wiki/Easement#Creation

Easements distinguished from licenses

Licenses to use property in a non-possessory manner are very similar to easements and are, under certain circumstances, transformed into easements by the court, but some general differences do exist:
• A license is often revocable and is typically limited in duration
• A license is often uninsurable
• A license is often not recorded

Easements are regarded as a more powerful type of license, and a license that has any of the properties of an easement may be bound by the higher standards for termination granted by an easement.

Please explain the difference then, using your vocab, between the licence and the easement and how your words and framework (whcih you tell me are complete) handles both. In particular, explain how your terminology and vocab makes the “higher standards for termination granted by an easement” distinction.

Kid Salami August 11, 2011 at 8:47 am

To elaborate, from Kinsella’s Lib Theory of Contract

https://mises.org/journals/jls/17_2/17_2_2.pdf

Contractual obligations may be classified as obligations to do or to
give. An obligation to give may be viewed as a transfer of title to prop-
erty, as it is an obligation to give ownership of the thing to another. An
obligation to do is an obligation to perform a specific action, such as
an obligation to sing at a wedding or paint someone’s house. It is sig-
nificant for our purposes that courts usually will not order specific per-
formance (forcing the breaching or unwilling party to perform the con-
tract), on the grounds that the plaintiff can usually be adequately compen-
sated with money damages.

Further, money damages do not impose
a heavy burden on the court to supervise performance, while specific
performance would. Specific performance would often be counter-
productive. Consider a singer who refuses to perform a promised con-
tract, for example. If ordered to perform, the signer might well give
a shabby performance. Therefore, in such cases, the singer would be
ordered to pay monetary damages to the other party.

Even an agreement to sell a piece of property, such as a barrel of
apples or a car, will usually not be enforced with specific performance;
instead, the court would order the promisor to pay the promisee a sum
of money. Specific performance is typically granted only in the case
of unique property, such as a particular portrait, or in the case of real
estate, because each parcel of land is unique. Even in these cases, spe-
cific performance results in the transfer of title to the unique property
from the owner to the other party.

Thus, in modern law, breach of contract results in a transfer of
property—sometimes unique goods such as real property, but usually
money—from the breaching party to the promisee. Thus, contracts are
enforced today not by forcing a party to perform the promised action
but by threatening to transfer some of the promisor’s property to the
promisee if the promisor does not perform. For an agreement to be
enforceable under modern legal systems means that some of one party’s
property (whether money or some other owned good) can be forcibly
transferred to the other party.

If I just promise via contract to let someone use my car and then refuse, I have to pay him damages – he can’t force me to let him use the car.

However, if I promise via contract to let someone use my land to get to the river, and this process satisfies certain conditions, he can in fact force me to let him use my land to get to the river.

You need to explain how your framework deals with this distinction.

Peter Surda August 11, 2011 at 10:13 am

Kid Salami,

the distinction between easements and licenses from positive law corresponds roughly to the distinction between a partial sale (of the property) and, to use the Kinsella references, “promise to do”. If it helps in visualising, you can also think of the latter as a rent.

Hopefully, you would agree with me that if you want to move to a house, it makes significant difference whether the contract you are entering into with the previous owner is a rent or a purchase. You probably do not wonder why in one case, you cannot be kicked out of the house by the previous owner or anybody else, while in the other case you can.

We now allow for the sale of the house to be partial (which, you stated before, does not pose a problem with you). For simplicity, we can call this co-ownership. So unlike in the full sale, the previous owner retains some rights with respect to the house. However, unlike rent, there is no promise to reneg on, because some rights have been transferred (or shared, if you must). This situation is just a combination of methods I described previously

I hope this satisfactorily explains to you how this distinction fits into the framework I use.

Kid Salami August 12, 2011 at 4:52 am

I should repeat what I said earlier, that it is true that I have no issues with co-ownership and partial sales per se, but they have to fit into whatever framework is in play – and I can see some potential issues. The differences between possessory and non-possessory items is an example of where things are not obvious, but I don’t think these impact the discussion here.

I hope this satisfactorily explains to you how this distinction fits into the framework I use.

Sorry no it doesn’t. You’re still missing the key fundamental step in the list of steps I’m requesting. I didn’t say “if i promise via contract to transfer property to you”. Who said anything about a transfer of property rights? The contract, if there is one at all, was allowing someone to walk to the river.

We now allow for the sale of the house to be partial (which, you stated before, does not pose a problem with you). For simplicity, we can call this co-ownership. So unlike in the full sale, the previous owner retains some rights with respect to the house. However, unlike rent, there is no promise to reneg on, because some rights have been transferred (or shared, if you must). This situation is just a combination of methods I described previously

This misses the fact that B can be forced to “partially sell” his land against his will despite never having explicitly agreed to do so. Your solution “works” if the two people agree explicitly up front that this is an easement(=partial transfer of rights, like selling mineral rights) – they could agree that they are now “co-owners” or whatever term they want to use for this by contract or whatever, this is not I think where we differ.

But the grant of easement I’m asking you to explain here does not work like this. B allows A to walk over his land to get to the river. That’s it. No promises or contracts to transfer anything or do anything in the future or whatever need be agreed. Then, 20 years later B (or one of his successors who may have never have met A) is told that he must partially transfer rights to his property to A, under threat of force.

You seem to think that because the allowing of the easement can be described as a “partial transfer of rights” or whatever then this is explanatory. It is not – it is almost a tautology. Attaining a “real property interest” means some rights were transferred, yes – there is no information there at all.

What needs to be explained is how B is FORCED to transfer these rights. What are the steps such that A can use force on B to secure his path to the river? You have given no reason at all, at any point in this entire discussion, why in your NAP-ancap framework that B should be FORCED to make this transfer. He didn’t agree to any such thing – he agreed to let A walk to the river. What property violation did B commit to allow someone to force him to give away rights to his property?

It’s not like I haven’t been clear on this. I finished my post restating the question with

And I don;t have a “dislike”, I have a request. Please prove I’m wrong, go back to my question that you agree was clear. A has to end up being able to use force on B to allow him to get to the river, as per the operation of this “easement”. If we abandon the word easement as per your request, what are the steps and state changes, as per my very clear question, for A to acquire the “real property interest” in L2 that allows him to use force on B to get to the river?

This is what I’ve been asking all along and which you STILL have not answered.

This is because I suggest there is another concept required – one orthogonal to the concepts you are using – to explain this. It doesn’t matter what it is exactly or what we call it, but unless you can explain what NAP-ancap violation B committed so that A can use force on B, we need another concept.

You seem to be thinking that “well, when he was letting him walk over the field, he knew that in 20 years he’d have to give up some rights, so he agreed to it” – that just begs the question of AGREED TO WHAT? What is it he agreed to – and whatever it is, please explain it using only terms from your NAP-ancap framework and explain what the rights violation of B’s is such that the use of force on him is justified?

Peter Surda August 12, 2011 at 6:14 am

Kid Salami,

The contract, if there is one at all, was allowing someone to walk to the river.

This is still inadequate to unambiguously (for me) determine whether the contract is a partial sale or “obligation to do”.

This misses the fact that B can be forced to “partially sell” his land against his will despite never having explicitly agreed to do so.

It is hypothetically thinkable that an agreement can be implicit, although I agree with you that implicit transfers are problematic. I lean towards outright rejection of interpreting implicit agreements as transfers.

Your solution “works” if the two people agree explicitly up front that this is an easement(=partial transfer of rights, like selling mineral rights) – they could agree that they are now “co-owners” or whatever term they want to use for this by contract or whatever, this is not I think where we differ.

Yes, here we appear to agree.

But the grant of easement I’m asking you to explain here does not work like this. B allows A to walk over his land to get to the river. That’s it. No promises or contracts to transfer anything or do anything in the future or whatever need be agreed.

This obfuscates the problem, because “B allows A to walk over his land to get to the river” nevertheless contains an element of communication and is prone to misinterpretation.

Then, 20 years later B (or one of his successors who may have never have met A) is told that he must partially transfer rights to his property to A, under threat of force.

They would need to demonstrate the existence of an agreement that transfers the right. I personally would not interpret “allowing to walk” as a transfer of rights, but I am aware that positive law sometimes does not handle it this way. But even I considered such an interpretation valid, then presumably B was aware of this and can ask A to sign a document which declares that there is no transfer of rights. If A declines, B can still go to a notary and have him confirm his unilateral declaration that there is no transfer. Or he can call a journalist and exert social pressure on A. As I said, it’s primarily a communication issue rather than a rights issue.

What needs to be explained is how B is FORCED to transfer these rights.

That’s easy: he cannot. However, sometimes his actions might be interpreted as agreement to transfer the rights (or the legal system might set standards that influence this). But as I said, it’s a communication issue. If the system is known in advance, B can still take action to ensure his actions are not interpreted as a transfer.

What are the steps such that A can use force on B to secure his path to the river?

A needs to convince others that there is a contract that partially transfers rights. B needs to convince others that there is no such contract. Both have 20 years to think about how to best do that.

You have given no reason at all, at any point in this entire discussion, why in your NAP-ancap framework that B should be FORCED to make this transfer.

Correct.

He didn’t agree to any such thing – he agreed to let A walk to the river.

As I said, this is ambiguous. A and B need to make it apparent to others what the contents of the contract is, otherwise they risk that their intent is misinterpreted.

This is what I’ve been asking all along and which you STILL have not answered.

So, you are basically saying that in my framework, apart from homesteading and transfer of rights, there is a third way of obtaining rights because if you tolerate others too much, it might give them a claim on your property. I think you are trying to see too much in my claims. There is no such way. However it is hypothetically possible that due to ambiguity, some actions are misinterpreted as a transfer of rights. I believe the technical term is http://en.wikipedia.org/wiki/Connivance . But ambiguity can be prevented.

unless you can explain what NAP-ancap violation B committed so that A can use force on B, we need another concept.

B did not violate any rights. He merely did not make it clear what his relationship to A is. In the absence of this clarity, the judge needs to use other criteria to determine the status of the contract (or if one is present), for example customary law, and might end up deciding to B’s detriment. B can protect himself against this by making it clear what the contents of the contract are, for example, as I described above, by having it written and either signed by A or by a notary. I almost certainly would not decide against B, but would reprimand both A and B. A is also responsible for the ambiguity and can protect himself in advance as well. Obviously, A has it more difficult to achieve his goal because he needs B’s consent if there is to be a rights transfer.

You seem to be thinking that “well, when he was letting him walk over the field, he knew that in 20 years he’d have to give up some rights, so he agreed to it” – that just begs the question of AGREED TO WHAT?

Exactly. The facts that are presented are ambiguous. The ambiguity is foreseeable and preventable by both A and B. If they nevertheless decide to leave it at that for 20 years and have then trouble convincing others they are right, it’s their own fault if the rights are misinterpreted.

What is it he agreed to…

That’s the question I’m asking.

I hope this clarifies my position a bit more.

Kid Salami August 13, 2011 at 2:13 pm

I hope this clarifies my position a bit more.

Once again, sorry no. These deflections and distractions amount to a clear Chewbacca defence.

What needs to be explained is how B is FORCED to transfer these rights.

That’s easy: he cannot.

Noted, although I really am confused now.

If the system is known in advance, B can still take action to ensure his actions are not interpreted as a transfer.

Agreed but see my comment below about this alleged “communication” problem.

A needs to convince others that there is a contract that partially transfers rights. B needs to convince others that there is no such contract.

I’m losing the will to live. Property rights aren’t contracts.

you are basically saying that in my framework, apart from homesteading and transfer of rights, there is a third way of obtaining rights because if you tolerate others too much, it might give them a claim on your property. I think you are trying to see too much in my claims. There is no such way.

You are getting closer, though it’s not about your “claims” and there being “no such way” in them – it’s about replicating the operation of the positive law using your NAP-ancap framework.

To say “if you tolerate others too much, it might give them a claim on your property” is to look through the telescope from the wide end. No’one would consider it an advantage to have laws such that tolerant and helpful people lose their property.

However, people using a pathway for 20 years means lots might depend on it, a whole generation could have grown up using that pathway, business could have made calculations based upon it without ever knowing the legal situation etc. – whether you or I agree or not with it, it is not unreasonable for the law to say that after 20 years (+ open, notorious etc.) it is set in stone.

Let’s boil this down further. A and B are friends and say B tells A that he can use this path for the next so many years no problem by contract or maybe he just tells him he can or just doesn’t object when A does so.

(It doesn’t matter which, so please stop with the communication waffle as this is more wookie stuff – it is circular. You say

B did not violate any rights. He merely did not make it clear what his relationship to A is.

B could of course “ask A to sign a document which declares that there is no transfer of rights” which would at the very least complicate the matter. But this “communication” that B isn’t intending to transfer his property rights only has any meaning at all in the context of an actual law by which this could happen.

I’m saying the law exists in the positive scenario and not in the NAP-ancap scenario – A, by your own words, can only obtain rights by “homesteading, trade or conditional transfer” and it is clear that permission to simply use the path while B remains the possessor is none of these.

So B would only have to make it clear that he is not transferring rights if you prove there is such a rule that flows from “homesteading, trade or conditional transfer” that would mean B must “make it clear”. So communication problem drivel subtly but clearly assumes that which is under debate. It might be quicker for me to point out the things you say that aren’t circular.)

So, back to the root of the problem, A and B are friends and say B tells A that he can use this path for the next so many years no problem by contract or maybe he just tells him he can or just doesn’t object when A does so.

We’re in the positive law scenario – the use in open, notorious etc. and 20 years is the cut off. Say after 19 years, B finds out that A has slept with his wife and says “right, you can’t use the path any more”. What can A do? He can sue for breach of contract and get damages, or if there was no contract he can claim there was an implied one or whatever. But one thing he can’t force is performance – he hasn’t reached the cut off, it hasn’t yet become a property interest. He needs to find another route.

If in the same scenario 21 years have passed, he is deemed to have acquired a property interest in the event of this coming before a judge, and therefore he can continue to use the path. That B could avoid it if he wanted is utterly irrelevant.

In the NAP-ancap scenario, there is no cut off and in both cases, all A can do is what he can do in the 19 year scenario of the positive law. There is no way that a rule that introduces a cut off of 20 years can be introduced without aggressing B, as in fact you admit when you say

That’s easy: he cannot.

So, it is clear that this cut-off cannot exist in NAP-ancap world without a consequence being aggression towards B, that any advantage gained from stabilty, or whatever, that comes from easements cannot be replicated by your NAP-ancap holy trinity of actions. You appear to admit this now and if you are clinging to that circular communication or missing facts nonsense then please stop now and stop wasting our time, as you really are scraping the barrel and in the words of Vic Mackie “I’m not going to do this dance after every question”.

Else, tell me how A could continue using the path against B’s will in this situation using only “homesteading, trade or conditional transfer”.

Peter Surda August 13, 2011 at 3:24 pm

Kid Salami,

Once again, sorry no. These deflections and distractions amount to a clear Chewbacca defence.

You’re the one deflecting. You claim that there is something wrong with my position, but again and again fail to explain what. All the alternatives presented by me you reject for some reason, but do not explain what’s missing.

Let me make it abundantly clear: the only way A can obtain the right to walk on the path is if:
- he homesteaded the path before someone else attempted to homestead L2
- B voluntarily transfers the right to A

In your case, the facts given by you indicate that there is some sort of relationship between A and B, but they, for whatever reason, decide to keep it ambiguous for 20 years. If A considers it so important that he and his descendants can use the path, then he should attempt to clarify it. If B objects to A’s ancestors walking over the path, he should attempt to clarify it too. It is pointless to accuse me of not being able to resolve this ambiguity.

So stop avoiding and face it: you have no argument. You presented an ambiguous relationship and want me to explain it. I cannot. A and B have to explain what it means, not me.

How about A moves into an apartment, lives there for 20 years, but does not clarify it with B (the owner) whether he is renting or paying annuity for the purchase. Then, 20 years later, A and B start arguing. You present this to me and want me to resolve it. Is it a sale or not? You can’t decide? Gotcha! Your framework is flawed!

Kid Salami August 14, 2011 at 4:16 pm

Although I think my argument for the last 3-4 posts would be correct if the scenario I’m describing were correct, actually it seems it is not and that I have bizarrely overlooked the definitions despite actually taking the trouble to read it.

In most jurisdictions, a way to avoid a presription easement is to explicitly give permission eg. in writing. So the scenario I moved onto for the last few posts in nonsense, we’d have to go back a bit to one of the other scenarios.

Wildberry August 15, 2011 at 9:19 am

@Kid Salami August 14, 2011 at 4:16 pm

Don’t be too quick, here. I notice that and was curious to note the subtle difference, perhaps between UK and American law, although American property law was clearly decended from the British law.

Here, ther is a subtle differnece betwen adverse possession and easement by prescription. For example, while AP statutory period is 21 years, easement by presecription, which is a derivative of AP, can be accomlished in as little as 7 years. Also, the purpose of AP is to challenge ownership. In the case of concent, possession cannot be open and hostile. If conset is given, it means that the owner is in possession.
It is possible to continue to push out the marginal case by adding or adjusting the facts.

This is why I simply suggested that communication be eliminated. It take all of this, and contracts, out of the equation.

I think you have made your point; homesteading only covers very limited situations, and the rest has to be handled by contracts. I think another way to look at this is that Ancap property theory rolls back property doctrine a few hundred years, when homesteading was a regular occurance, and title changed hands by conquest. I think the ancaps figure we can pick up from there.

With such a limited and restricted framework of property rights, IP can only exist as a contract. The reason that Kinsella says that you cannot recreate IP by contract is exactly the difference bewtween the operation of contracts and the operation of property. Since they deny the operation of property for easements, or at lease cannot or will not try to explain it with their own homesteading theory, they are free to claim that IP is not property, and (in condradiction even to this) therefore the only option is secrecy (including contracts/trade secret) and non-disclosure, or free goods. They will not argue the free good issue on economic terms.

Peter Surda August 15, 2011 at 10:31 am

Wildberry,

I think you have made your point; homesteading only covers very limited situations, and the rest has to be handled by contracts.

now you just ignore the whole logical aspect. Homesteading does not “only cover very limited situations”. It covers all situations where previously unassigned rights are assigned. On this level of definitions, it does not matter how you establish the boundaries, or whether you decide to include IP or not. That’s a different question. Contracts, on the other hand, cover voluntary transfers of these rights among people who already have them. What we are left with is involuntary transfers of rights.

If you consider “homesteading + contracts” as inadequate, it means that you are either contradicting yourself, or argue for the use of force to redistribute rights. You may attempt to fraudulently present this as a new economic theory, but it’s not. It’s just a call to deny logic and promote violence.

This is why I simply suggested that communication be eliminated. It take all of this, and contracts, out of the equation.

Here we can see the problem in plain sight: if we eliminate communication and contracts, we are left with violence. That’s the logical conclusion, and the essence of your demagoguery.

With such a limited and restricted framework of property rights, IP can only exist as a contract.

You again ignore the logical aspect of the issue. Typically for many Kinsella’s opponents, you portray his argument as if he did not consider IP worthy of being a right. It has been explained to you where the error is, yet you continue to be completely oblivious to it, and just repeat it.

Boring.

Peter Surda August 15, 2011 at 10:35 am

Kid Salami,

I understand that current law sometimes transfers rights by the use of force, and that the proponents thereof argue that this is better for one reason or another. The question that I have is: what does this have to do with the criticism of my framework?

Kid Salami August 6, 2011 at 12:05 pm

Hey Wildberry – you reading this stuff?

Peter said

You can object all you want that my position results in impractical conclusions, but noone, including you, has presented an alternative that is less absurd.

and sweatervest said

Exactly. So easy to condemn, so hard to create.

So the complaint is that no’one has presented an alternative to the imaginary never existed NAP-ancap heaven scenario? None? Not even the, erm, ACTUALLY EXISTING laws that have functioned for hundreds of years?

http://nsulaw.nova.edu/faculty/documents/prog%20text%20servitudes%203d%20ed1.pdf

Section E

E. METHODS OF CREATION
1. Express
a). grant
b). Reservation
1.) The Concept
2). Grant and Regrant
2. Implied
a). In Fact
1). Necessity
2). Quasi Easements
B). In law
3. Prescription
a). Lost Grant Theory
B). Adverse Possession
C). The Theories Compared

laws that – lest we forget – Kinsella himself agrees are (substantially at least) consitent with Libertarian principles. ROFLMAO – you can’t make this shit up.

sweatervest August 6, 2011 at 1:55 pm

“Not even the, erm, ACTUALLY EXISTING laws that have functioned for hundreds of years?”

Laws don’t justify themselves. You haven’t done that.

sweatervest August 6, 2011 at 1:59 pm

“ROFLMAO – you can’t make this shit up.”

Typical hot air from someone who doesn’t have an argument.

Peter Surda August 7, 2011 at 9:26 am

Kid Salami,

I am at a complete loss what the purpose of your arguments is. Our exchange was like this:

KS: your argument is logically erroneous
PS: it is not. By eliminating claims that we both agree on, we are left with an empty set, so there is nothing left for you to object to
KS: but I don’t like it anyway and your position is absurd
PS: even if it might appear absurd, all the alternatives presented here are self-contradictory and are accompanied by at least equally absurd claims
KS: but there are laws created following from those those self-contradictions and absurdities

Kid Salami, you should immediately stop reading whatever Wildberry says. You have turned to the same denial of logic and jumping from one approach to other in order to justify your positions.

Wake up please. This is not the Kid Salami I know.

Kid Salami August 7, 2011 at 10:22 am

“the purpose of your arguments”

What has the “purpose” got to do with whether your claim is true or not – nice try though. And anyway, I’m aware you might not see the point or purpose of this argument – that’s because people rarely do see the flaws in their reasoning.

“Wake up”

Ha ha, more comic relief?

Ok then, let’s just be clear again. The “clear” question that you answered no problem previously and, seemingly, eagerly because of its clarity, with a statement that unfortunately contradicted one of the premises is now going to remain unanswered?

Might I suggest that this is because this is impossible, that there is no answer because your claim is false. You’ve spent plenty of time on these boards Peter, are you suddenly pressed for time? Why not just answer and prove me wrong? Just tell me the sequence of small steps of existing “concepts” that results in the same outcome as we get when we use the word easement.

Peter Surda August 7, 2011 at 12:14 pm

Kid Salami,

I answered your question clearly several times, and refuted your argument by eliminating the claims that we agree on and arriving at an empty set and challenged you to show where the error is. You ignored it. Instead you allege, similarly as Wildberry, that there is something beyond the empty set which proves your point.

You have degenerated to Wildberry’s level where you deny logic and randomly jump between arguments pretending that this proves your position, and if I object to it, you start metaarguing.

I don’t know why you claim that I did not answer your question.

Kid Salami August 9, 2011 at 6:57 am

Appolgies, I thought this was an answer to my main point above. You’re calling this an “argument” when it was in fact comic relief, directed (with a name) at someone that is not you. My “argument” is contained in the other post, directed at you – no need to have you assuming your conclusion in two places, one is sufficient. I’m busy but will answer your post when I get the time.

Wildberry August 8, 2011 at 1:09 pm

I have been following this exchange with amusement.
Anybody notice it got kinda quiet in here?

You have degenerated to Wildberry’s level where you deny logic and randomly jump between arguments pretending that this proves your position, and if I object to it, you start metaarguing.

I guess I could say, “If the shoe fits…”. (Kid, sorry if I’ve been infectious-LOL)

Not that anyone but us is still reading this thread, but if they were, it would be obvious where we now stand.

Kid Salami has set the table and put all the dishes before Peter and asked him to simply help himself to the meal.

Peter seems to be saying “What meal? What table? Who’s hungry?”

I was assured by the best and brightest Ancaps here, perhaps on earth, that homesteading is sufficient and superior for dealing with any and all issues of conflict over scarce resources, including the one KS describes. So what’s the problem? Though Peter has banned a few very useful words that he admittedly doesn’t understand, (i.e. easements) this doesn’t seem to make the problem any easier for him.

Peter can’t seem to use his system of property rights to explain the operation of this simple property problem using the concepts of homesteading. Instead, he must resort to a contract theory, meaning that beyond the fundamental issue of acquisition, homesteading is useless. In addition, it cannot be used to determine where the line is drawn between an act of “homesteading” a resource, and any other use that does not result in homesteading. If homesteading does not cover the issue, he falls back to contracts, which is not a property rule, it is a, what is the word…CONTRACT!!!

Homesteading reduces all property problems to acquisition by possession, and everything else must exist outside of property rules. Ironically, in Peter’s terms, this means that any use of property that cannot be explained by simple homesteading is simply not property; i.e. it is an “empty set”. This might explain why it is so easy to say that IP is simply not property, since only things that you can actually trip over on the way to the river can possibly by property!

Under this view, there is where I live and park my ass, and everything else, which must be dealt with by contracts. On planet Surda, parties must voluntarily negotiate over every social transaction beyond trespass. From this primitive beginning, human kind is supposed to reinvent the World According to Garp (i.e. Ancap Heaven) where conflict need not exist. Problem solved.

As Rothbard apparently said, the problem of working out the details will be left to future scholars of Ancap. At last, the future has arrived! Very sophisticated and well thought out! Where do I sign up?

sweatervest August 8, 2011 at 5:10 pm

“Anybody notice it got kinda quiet in here?”

I’m sorry I had other things to do.

“Not that anyone but us is still reading this thread, but if they were, it would be obvious where we now stand.”

Would it now?

“Kid Salami has set the table and put all the dishes before Peter and asked him to simply help himself to the meal.”

What, another metaphor from Wildberry that is supposed to take the place of a real argument, or even claim?

I mean, I could guess what you might mean by this, or maybe you could just say what you are trying to say.

“I was assured by the best and brightest Ancaps here, perhaps on earth, that homesteading is sufficient and superior for dealing with any and all issues of conflict over scarce resources, including the one KS describes”

I’m saying it’s the only way to deal with conflicts. Do you really think that telling someone, “listen some guys got together, had a meeting, and decided that they have sovereignty over your property and according to them you have to do this”, is a way to resolve a conflict? That sounds to me like a great way to start a conflict. To tell someone that everyone else agrees things should be done this way, so you just have to deal with that. Why, that is an excellent way to start all sorts of conflicts with everyone who doesn’t already agree! It is only a way to cause more conflicts and can only count as a way to “resolve” a conflict when there is simply no conflict to begin with!

I have yet to hear of a way to resolve conflicts other than ancap-NAP. Agreements are not ways to resolve conflicts! Agreements are tantamount to there being no conflict!

“So what’s the problem? Though Peter has banned a few very useful words that he admittedly doesn’t understand, (i.e. easements) this doesn’t seem to make the problem any easier for him.”

Wow, Peter can ban words? He must be an admit to this forum or something. Oh wait, you just mean that Peter (and I) have reminded you guys that we are debating IP, not easements, and I have demonstrated several times that the two are entirely unrelated. So that is what you actually mean. Of course I cannot count on you to be literal but to rather dress your claims up in poetry to make them sound more sensible than they really are.

“Peter can’t seem to use his system of property rights to explain the operation of this simple property problem using the concepts of homesteading.”

That “simple property problem” *was* addressed with homesteading (Peter gave an answer, one I disagree with but so what, he gave you an answer, what else does he need to do?). This is a plain lie.

“Instead, he must resort to a contract theory, meaning that beyond the fundamental issue of acquisition, homesteading is useless”

Um, yeah? Of course? Homesteading is a means of aquistition. What would it even mean for homesteading to apply to anything other than aquisition? This is complete nonsense.

“In addition, it cannot be used to determine where the line is drawn between an act of “homesteading” a resource, and any other use that does not result in homesteading”

Except it does as I have already explained. Now you are straw manning. I already addressed your claim that homesteading does not establish boundaries. It does. Homesteading involves the transformation of a good, not a transformation of all goods. The boundary is the one that separates what was transformed from what was not transformed.

Dear lord Wildberry. It’s like I’m arguing with a computer program stuck in an infinite loop.

“If homesteading does not cover the issue, he falls back to contracts, which is not a property rule, it is a, what is the word…CONTRACT!!!”

What!? Is this supposed to mean something!? Are you arguing that contracts are contracts? Are you saying Peter argued that? Are you trying to say contracts are a “property rule”? I don’t know, but contracts are implied by ownership. It is not an extra “agreement” that people can contract with their property. If you are the owner, he may exclude use, then you may exclude use however you want, including allowing someone else conditional use of your property. Contracting is a part of ownership.

“Homesteading reduces all property problems to acquisition by possession”

No it reduces all aquisition to being the first user. You are so far off. I cannot believe you have the nerve to respond to my otherwise respectful response to you by instructing me to go “read more about the topic”. You have no understanding of ancap-NAP property theory at all. It is amazing how completely off the mark you are *every* time you try to describe this property rights theory. Go read “Ethics of Liberty” or “Economics and Ethics of Private Property”. Before that you should really read something about logic, though.

“and everything else must exist outside of property rules”

This is nonsense. Homesteading is how property titles are acquired or created (that is, how an unowned good is transformed into an owned good). Contracting, trading and all the subleties there-in are contained within ownership no matter how ownership is first established. That one can trade and contract with his property is an implication only of ownership, and has nothing to do with how ownership can be established in the first place.

“Ironically, in Peter’s terms, this means that any use of property that cannot be explained by simple homesteading is simply not property; i.e. it is an “empty set”.”

No, completely wrong. Homesteading concerns turning unowned goods into owned goods, not what can be done with goods once they are owned. Once again completely off the mark.

“This might explain why it is so easy to say that IP is simply not property, since only things that you can actually trip over on the way to the river can possibly by property!”

Who said anything about tripping over anything? Oh wait, that must be a metaphor or something, I know you like using those. Anyways, you haven’t explained anything but only straw manned ancap-NAP again and exposed your total ignorance about the subject.

NAP property rights exclude IP because it is a claim of ownership to already owned property that is not agreed upon by the current owner. It destroys the very core of ownership, particularly that once you acquire ownership of something you continue to own it until *you* decide to give that ownership up. Ownership never justifies using one’s property to make uninvited uses of others’ property, but this is irrelevant to IP because unauthorized copying/production is only use of one’s own property and not of others (at least in general).

“Under this view”

Who cares, no one has this view. You are knocking down a straw man.

“On planet Surda, parties must voluntarily negotiate over every social transaction beyond trespass”

Oh my god what a travesty! Beyond protecting your property from invasion you may only interact with people voluntarily, instead of forcing them to do things. What a hellhole!

And now to point out the hypocrisy: on planet Wildberry, parties must voluntarily negociate every social transaction *including* trespass because only voluntary agreements can even establish what “trespassing” is to begin with. Remember, property is a human device and therefore a set of voluntary agreements.

“From this primitive beginning, human kind is supposed to reinvent the World According to Garp (i.e. Ancap Heaven) where conflict need not exist. Problem solved.”

Wow, an even bigger straw man than before. Ancap theorists are trying to create a “heaven” where no conflict exists? Why, it’s almost as though you’ve read NOTHING by ancap theorists, or have grossly misunderstood what you have read.

“As Rothbard apparently said, the problem of working out the details will be left to future scholars of Ancap”

And this is new to Rothbard? What are you suggesting, that if you cannot completely work out a theory yourself then don’t bother even starting? Newton said that about his theory of physics too. Stupid Newtonian physics!

“At last, the future has arrived! Very sophisticated and well thought out! Where do I sign up?”

Yeah, you should be mocking me for trying to solve problems and advance human knowledge. That is worthy of being mocked. No one should do that. Except for Mises.

Peter Surda August 9, 2011 at 3:32 am

Wildberry,

I’m just analysing the logical relationships between claims. Merely because you do not consider logic to be important and are not interested in an genuine debate does not magically make your position superiour. It makes it, like I said before, degenerate.

… though Peter has banned a few very useful words …

By insisting that my opponents use clear definitions, I ban words?

Peter can’t seem to use his system of property rights to explain the operation of this simple property problem using the concepts of homesteading.

Neither Kid Salami nor you or anyone else has presented an example of a situation I cannot explain. You merely imply that it exists, but all your attempts to define it as anything else than empty sets fail.

Instead, he must resort to a contract theory, meaning that beyond the fundamental issue of acquisition, homesteading is useless.

Unless you can show a right that is unobtainable by homesteading, your objection is referring to an empty set.

In addition, it cannot be used to determine where the line is drawn between an act of “homesteading” a resource, and any other use that does not result in homesteading.
Since you have not defined “use”, or explained why is it relevant, or, as I said above, shown a right that is unobtainable by homesteading, your objection is meaningless.

If homesteading does not cover the issue, he falls back to contracts, which is not a property rule, it is a, what is the word…CONTRACT!!!

You agreed previously that contracts do not create rights, but transfer them. I have said several times that all rights can be backtracked to homesteading, so your objection, again, is illogical.

Homesteading reduces all property problems to acquisition by possession, and everything else must exist outside of property rules.

You fraudulently introduce a new term, “possession”, and ascribe it to my position.

Ironically, in Peter’s terms, this means that any use of property that cannot be explained by simple homesteading is simply not property; i.e. it is an “empty set”.

Your statement is misleading. All rights can be backtracked to homesteading, so they are “property”. They are just not assigned to the people you want them to be assigned to. You fraudulently misrepresent a different distribution of rights as absence of rights.

This might explain why it is so easy to say that IP is simply not property, since only things that you can actually trip over on the way to the river can possibly by property!

I did not say that IP is not property. I said that the explanations of IP proponents are self-contradictory and/or vague.

On planet Surda, parties must voluntarily negotiate over every social transaction beyond trespass.

And on planet Wildberry, people must follow the imagination and confused blabbering of arrogant fanatics who are under the false impression that the understand how things really work.

You’re boring me, Wildberry.

Wildberry August 9, 2011 at 6:57 pm

@Peter Surda August 9, 2011 at 3:32 am

First you say this:

By insisting that my opponents use clear definitions, I ban words?

Yet you say this here: http://blog.mises.org/17750/without-ip-would-there-be-a-world-of-clones/comment-page-1/#comment-796084

I did not provide a definition of homesteading, on the contrary, my argument does not require a specific definition of homesteading.

And then later in the same post you say this:

I based all my answers to you on three concepts only: homesteading, trade and conditional transfer of title (and maybe in the latest one, abandonment, but that’s because you introduced “relinquish all rights except”).

And this:

I then demonstrated that all the options can be represented as a combination of the above three prototypes and partial sales/transfers (and in the last case, relinquishing). Which leaves your complaint referring to an empty set.

And finally:

Neither Kid Salami nor you or anyone else has presented an example of a situation I cannot explain. You merely imply that it exists, but all your attempts to define it as anything else than empty sets fail.

Excuse me if I don’t take your “incoherent” complaint seriously. Tell me what you mean, coherently by “empty set”. You seem to be saying that property rights are not needed because there is not conflict. Yet Kid Salami set up exactly the conflict he asked you do solve. You solve it by simply waving your hand and making it vanish by “agreement” between A, who owns L2 through a homesteading act, and B, who has nothing to bargain with that you’ve identified.

Way back in July I summarized the IP arguments here: http://blog.mises.org/17750/without-ip-would-there-be-a-world-of-clones/comment-page-1/#comment-794141

To which you replied as follows:

Have I not told you several times already that this is not my argument?

http://blog.mises.org/17750/without-ip-would-there-be-a-world-of-clones/comment-page-1/#comment-794679

Yet you accuse your “opponents” that they do not present a coherent response to your “questions”?

I am simply amazed that you would insist on having the last word in every post, yet actually say nothing. Kid Salami has presented you with a very simple problem, and instead of demonstrating your uber-command of logic and argumentation, you offer nothing but whining and deflection, as if it is others who have failed to offer you anything coherent to address.

If you are not a phony through and through, take up the challenge and lead us through your impeccable logic.

Wildberry August 9, 2011 at 10:26 am

Sweatervest,

I don’t have time to play with you today. I just want to leave you with this thought; in contrast to what you seem to believe, I don’t think you already know everything you need to know to make a contribution to this discussion. You might want to make an effort to fill in some gaps. I would start wtih David Friedman. He makes a very good summary of some of the issues being discussed here. Otherwise, you are just ranting over and over about how you already solved this problem. You seem to miss about 90% of what is being said, and so your responses are just emotional restating of the problem. You are obviously a smart guy, so put that intelligence to some use and do a little research. It does a body good.

Wildberry August 9, 2011 at 6:53 pm

@Peter Surda August 9, 2011 at 3:32 am

First you say this:

By insisting that my opponents use clear definitions, I ban words?

Yet you say this here: http://blog.mises.org/17750/without-ip-would-there-be-a-world-of-clones/comment-page-1/#comment-796084

I did not provide a definition of homesteading, on the contrary, my argument does not require a specific definition of homesteading.

And then later in the same post you say this:

I based all my answers to you on three concepts only: homesteading, trade and conditional transfer of title (and maybe in the latest one, abandonment, but that’s because you introduced “relinquish all rights except”).

And this:

I then demonstrated that all the options can be represented as a combination of the above three prototypes and partial sales/transfers (and in the last case, relinquishing). Which leaves your complaint referring to an empty set.

And finally:

Neither Kid Salami nor you or anyone else has presented an example of a situation I cannot explain. You merely imply that it exists, but all your attempts to define it as anything else than empty sets fail.

Excuse me if I don’t take your “incoherent” complaint seriously. Tell me what you mean, coherently, by “empty set”. You seem to be saying that property rights are not needed because there is no conflict. Yet Kid Salami set up exactly the conflict he asked you do solve. You solve it by simply waving your hand and making it vanish by “agreement” between A, who owns L2 through a homesteading act, and B, who has nothing to bargain with that you’ve identified. You simply assume your conclusion that no property rules are required because you have used magic to resolve the conflict!

Way back in July I summarized the IP arguments here:

http://blog.mises.org/17750/without-ip-would-there-be-a-world-of-clones/comment-page-1/#comment-794141

To which you replied as follows:

Have I not told you several times already that this is not my argument?

http://blog.mises.org/17750/without-ip-would-there-be-a-world-of-clones/comment-page-1/#comment-794679

Yet you say nothing about what your argument is or where you differ.

Yet you accuse your “opponents” of not presenting a coherent response to your “questions”?

I am simply amazed that you would insist on having the last word in every post, yet actually say nothing. Kid Salami has presented you with a very simple problem, and instead of demonstrating your uber-command of logic and argumentation, you offer nothing but whining and deflection, as if it is others who have failed to offer you anything coherent to address.

If you are not a phony through and through, take up the challenge and lead us through your impeccable logic.

Peter Surda August 10, 2011 at 5:53 am

Wildberry,

Tell me what you mean, coherently, by “empty set”.

You (and Kid Salami) allege that there are situations which are not addressed by my framework, but fail to specify what they are. I addressed all the criteria that you mention as descriptive of that hypothetical situations. What is therefore left is a situation which does not have any criteria: an empty set.

You seem to be saying that property rights are not needed because there is no conflict.

If this was phrased as a proper argument (“if … then …” construct), then I would agree. If there is no conflict, property rights are not only not necessary, they are meaningless as they logically cannot have any effect.

Yet Kid Salami set up exactly the conflict he asked you do solve.

And, for the situations which did contain a conflict, I explained how a resolution of such a conflict is done in the Kinsella/Hoppe/ … framework.

You solve it by simply waving your hand and making it vanish by “agreement” between A, who owns L2 through a homesteading act, and B, who has nothing to bargain with that you’ve identified.

This is misleading. For the situation as explained by Kid Salami, I provided possible conclusions depending on the state of the variables which Kid Salami did not mention (e.g. the scope of homesteading, A and B’s plans and arrangements that they have with each other). This creates a decision table, or if you want, a 2×2 matrix, which encompasses all possibilities. Columns are whether A homesteaded L2 or not, and rows are whether A and B’s plans are voluntarily agreed upon an a conflict-free manner. I explained what all four elements of the matrix are. In order to prove me wrong, you either need to show how the elements represent an incorrect conclusion, or show a variable that I omitted and that influences the outcome.

You simply assume your conclusion that no property rules are required because you have used magic to resolve the conflict!

I did not such thing. I merely mentioned this as one subset of the whole problem. This was necessary to make sure I have covered all possibilities.

Yet you say nothing about what your argument is or where you differ.

I already explained several times where your claim about my position is wrong. Since in the past, whenever you asked me to refresh your memory, you just ignored the answer anyway, I don’t see the need to repeat myself again. If you have a memory problem, or cannot use a search engine then maybe you should spend your time with other activities.

Yet you accuse your “opponents” of not presenting a coherent response to your “questions”?

You are attempting to portray your poor memory, laziness to use a search engine and/or outright disinterest for a genuine debate as my fault.

I am simply amazed that you would insist on having the last word in every post, yet actually say nothing.

I have actually made very few arguments. The rest of my posts is an attempt to get my opponents, such as you, to coherently formulate their position and/or address objections. You on the other hand make voluminous points whose only outcome is distraction.

Kid Salami has presented you with a very simple problem, and instead of demonstrating your uber-command of logic and argumentation, you offer nothing but whining and deflection, as if it is others who have failed to offer you anything coherent to address.

I addressed Kid Salami’s question as thoroughly as I could. I tried to identify all the relevant criteria and variables and show how Kinsella/Hoppe/… framework would address them. By elimination process I arrived at an empty set. I challenged Kid Salami to explain what part of my argument is wrong, and this has not happened. If you lack the interest or capability of understanding this, it’s your problem.

If you are not a phony through and through, take up the challenge and lead us through your impeccable logic.

You have failed to provide a single example of an error in my argument and showed no effort to explain your position.

Wildberry August 10, 2011 at 10:27 am

@ Peter Surda August 10, 2011 at 5:53 am

It seems futile to try to dialogue with someone who can say this:

I have actually made very few arguments.

and this:

I challenged Kid Salami to explain what part of my argument is wrong, and this has not happened.

in the very same post.

It is not surprising that you use a “decision” table that could be labled:

Homestead: yes/no
Conflict: yes/no

And then say that everything that is needed is in the table. You pick Yes/No and think you can pat yourself on the back and call it a vicotry?!!

My God, man! How do you make a living in the software business? This is not even rational. Isn’t it the software business that coined the phrase, “Garbage in, garbage out?” Fitting.

Peter Surda August 10, 2011 at 12:08 pm

Wildberry,

It seems futile to try to dialogue with someone who can say this: [cut] and this: [cut] in the very same post.

you fail to provide explanation why the combination of these two claims is something that should cause as great an alarm as you portray it.

And then say that everything that is needed is in the table.

Exactly. The table encompasses all criteria combinations that were presented as an objection and thereby proves that your objections are an empty set and therefore the objection is pointless.

This is not even rational.

On the contrary. By reformulating your incoherent rambling into formal claims, then breaking them up into all possible combinations and addressing them individually, I leave no room for unclarity. By eliminating the impossible, we are left with the possible, even if for you unbelievable: your claims are erroneous.

Wildberry August 6, 2011 at 1:20 pm

@Kid Salami August 6, 2011 at 12:05 pm

Oh yea. These are the kinds of scholars and scientists that fudge the data to reach the conclusion they “know” is right.

But I have to admit, this is a new low-water mark. “I agree what I’m saying is absurd, but no one has ever, ever shown up with something less absurd, so I win.”

How have prior humans ever managed to get along without brilliance like this?

I can’t seem to think of an example that is funny enough, (this is where British dry wit is called for), but it’s something like saying “No one has ever written an interesting book, and that’s why I never read them!”

These guys are arguing against something they don’t understand, don’t want to understand, and do it with the utmost confidence that they know what’s what better than hundreds of years of accumulated knowledge and experience with the subject. You just can’t manufacture arrogance like that.

sweatervest August 6, 2011 at 2:08 pm

“Oh yea. These are the kinds of scholars and scientists that fudge the data to reach the conclusion they “know” is right.”

You’re the kind of intellectual lightweight that high-fives himself in front of everyone as a desperate attempt to distract readers from your complete lack of argumentative skills.

“But I have to admit, this is a new low-water mark. “I agree what I’m saying is absurd, but no one has ever, ever shown up with something less absurd, so I win.””

That is not my argument. Congrats, you and Kid can straw man people and reconstruct a ridiculous argument that no one made and defeat it. That’s about as far as our argumentative skills can take you.

I said it’s time for me to go on the offensive. I never said my position is absurd, and you have not supported that. My position is not absurd. I love every time you try to reconstruct the categorical form of my argument and get it so far off every time. You expose your terrible understanding of analytical thinking every time. As Kid said: ROFLMAO.

“How have prior humans ever managed to get along without brilliance like this?”

Says the man who dares not disagree with Mises.

“These guys are arguing against something they don’t understand, don’t want to understand, and do it with the utmost confidence that they know what’s what better than hundreds of years of accumulated knowledge and experience with the subject. You just can’t manufacture arrogance like that.”

Wildberry, you just looked in the mirror. You are arguing against the use of deductive reasoning (literally, ask me to dig the quote up and I will), something you obviously don’t understand, don’t want to understand.

The rest of your sophistry is a fallacious appeal to convention which only supports my claim that you are so seriously ignorant of logic you repeatedly and consistently employ logical fallacies like irrelevant appeals to authority (look it up) even as people repeatedly and consistently point that out to you.

sweatervest August 6, 2011 at 2:12 pm

Kid and Wildberry have obviously lost this debate and are clutching at the last straws of any failing side. They say “that’s not the way it has worked” as if history, being only a collection of facts, can establish theoretical claims about the connections between facts. This is as absurd as saying gravity doesn’t exist because leaves float around in the wind.

Then they argue against the arguers, not the arguments. So much about me, my arrogance, etc. and not much at all about my arguments.

Both Kid’s and Wildberry’s latest emotion spurts filled up several paragraphs while saying nothing beyond, “Nuh huh”. As usual, the real arguments have been dodged, my request for them to defend their own positions, assuming they even have positions, was evaded, my own position has not been addressed, and childish eye-rolling and name-calling has become the main tool of persuasion. Nothing but a bunch of sophistical rhetorical distractions from real logical analysis.

Kid Salami August 6, 2011 at 7:23 pm

sweatervest

“Laws don’t justify themselves. You haven’t done that.”

Lest you forget, it is Kinsella you should be debating this with really, he’s the one who is both a NAP-ancap advocate and who says easements are consistent with this, therefore disagreeing with you. I actually agree with you – the current operation of easements is not consistent with hardline NAP-ancap and therefore, in your NAP-ancap framework they can’t be justified. Please try to keep up.

“Typical hot air from someone who doesn’t have an argument.”

Yawn.

“Kid and Wildberry have obviously lost this debate and are clutching at the last straws of any failing side.”

To clarify here, maybe you could point out “this debate” that I’ve lost – that is, the specific claim I made and the refutation. Thanks.

“They say “that’s not the way it has worked” as if history, being only a collection of facts, can establish theoretical claims about the connections between facts. This is as absurd as saying gravity doesn’t exist because leaves float around in the wind.”

I’ve written plenty of words on this thread – isn’t it a little odd that you find that you have to put quotes around something I didn’t actually say and then refute it? And you’re wrong anyway. I like this quote from de Soto:

“The traditional, universal legal principles we dealt with in the last section in relation to the irregular deposit contract have not emerged in a vacuum, nor are they the result of a priori knowledge. The concept of law as a series of rules and institutions to which people constantly, perpetually and customarily adapt their behavior has been developed and refined”

“…not much at all about my arguments”

Bigger yawn.

“Both Kid’s and Wildberry’s latest emotion spurts filled up several paragraphs while saying nothing beyond, “Nuh huh”. As usual, the real arguments have been dodged, my request for them to defend their own positions, assuming they even have positions, was evaded, my own position has not been addressed, and childish eye-rolling and name-calling has become the main tool of persuasion. Nothing but a bunch of sophistical rhetorical distractions from real logical analysis.”

Remember when Kinsella chimed in to reply to Wildberry for the benefit of any “lurkers” – the implication being that he thinks they are too dimwitted to decide for themselves? Well, I’m not going to do that. Your statement here is just embarrassing in light of these discussions and I’m happy to let my previous words speak for themself – any lurkers can read my statements and your delusional gibberish and come to their own conclusion.

However, if you have a question you really think I can’t answer, reply to this with it or copy and paste if I missed it, and i promise I’ll answer. Forgive me though if I’m not exactly scared.

sweatervest August 8, 2011 at 4:27 pm

“Lest you forget, it is Kinsella you should be debating this with really, he’s the one who is both a NAP-ancap advocate and who says easements are consistent with this”

This is not a debate about easements. It has nothing to do with easements. You still cannot stay on topic. Do you have nothing to say about intellectual property?

Who said Kinsella and I have to agree on everything? You and Wildberry invented this “cult” or “choir” or “fan club” or whatever out of thin air and now you’re surprising yourself to find it’s not there.

Kinsella and I have no business arguing about easements here any more than we would debating over the merits of loop quantum gravity verses string theory.

“I actually agree with you – the current operation of easements is not consistent with hardline NAP-ancap and therefore, in your NAP-ancap framework they can’t be justified. Please try to keep up.”

I am well aware of that, because you already said it and I read it. You should keep up by re-reading my response to you saying this earlier. Are you seriously telling me to keep up because you didn’t read my responses? I replied to you saying that we agree about this, and so the disagreement is about whether or not NAP-ancap is desirable.

“To clarify here, maybe you could point out “this debate” that I’ve lost – that is, the specific claim I made and the refutation. Thanks”

So you don’t even know what you are debating? Shall I take this as an open admission that you have not been saying anything at all, much less staying on topic?

The debate is about intellectual property. Is it justifiable and what effect does its adoption have on the economy?

“I’ve written plenty of words on this thread – isn’t it a little odd that you find that you have to put quotes around something I didn’t actually say and then refute it?”

From Salami’s earlier post:

“So the complaint is that no’one has presented an alternative to the imaginary never existed NAP-ancap heaven scenario? None? Not even the, erm, ACTUALLY EXISTING laws that have functioned for hundreds of years? ”

And there it is. How shall I interpret this other than, “that’s not the way it has worked”? If that is not your point than what is it? You said “functioned for hundreds of years”. And you’re not trying to say, “this is how it has worked, not what you are saying”? Or is this just another Kid Salami “just stating a fact” that I should ignore because you’re not really trying to say anything?

You didn’t even explain what actually existing laws to which you refer, seeing that at most times there are multiple contradicting systems of law in existence. Are you proposing Nazi Germany’s law code, or the U.S. in the early 20th century, or the law codes of native jungle populations?

“The traditional, universal legal principles we dealt with in the last section in relation to the irregular deposit contract have not emerged in a vacuum, nor are they the result of a priori knowledge.”

They’re not? I agree they do not emerge in a vacuum, but how are they not the result of a priori knowledge? If it were not the result of a priori knowledge, then it must be the result of knowledge gained only after law codes were adopted and used for some time, which means that the choice of which law codes to adopt and see how they work is completely arbitrary. Civilization did not develop by blindly poking around in the dark. This fails to explain how the theory of how a free market economy would function *preceded* the adoption of laisezz-faire policies and the resulting explosion of wealth. The ideas were developed and justified first, and it was that justification that encouraged their widespread adoption. This of course does not mean only justifiable ideas are adopted, nor does it even mean that justifiable ideas dominate unjustifiable ones. It only means that most people *think* (perhaps erroneously) that those ideas are justifiable. Bad ideas are sometimes adopted widely, such as when doctors bled patients using leeches.

That is always how it works. People have to not only imagine how a way of organizing society will work before they construct that society but they must already have a reason to want to construct such a society. The justification for systems of law precede their adoption. They are justified a priori. Marxism was developed and defended before Marxist societies were created, as another example of what I am saying.

“The concept of law as a series of rules and institutions to which people constantly, perpetually and customarily adapt their behavior has been developed and refined”

Except when it’s not, like when it’s illegal in Virginia to have sex with the lights on, or when it’s illegal in some town (can’t remember which) to kill butterflies. You can look up lists of ridiculous laws all over the place on the internet. Even ignoring the esoteric local laws, do you really think the modern law code is justifiable? That it is illegal to blackmail, you get punished more for killing someone whose skin color is different from your own, that it is illegal to possess certain goods (like drugs), that it is illegal to operate a business that is too successful (anti-trust laws) or without getting the right license first? It is possible for humankind to retrogress as well as progress, and for such development and refinement to reverse.

Also, even if the notion of law as rules and institutions has become more and more popular, developed or refined in time that certainly does not mean it is a good or accurate notion to begin with, and in fact it is not. In order to have rules and institutions at all there must be a set of rights that can potentially be defended, and it is not up to anyone to decide what these rights are. It is a fact of nature that the existence of institutions that can adopt rules of behavior for its participants relies on the recognition of the property rights of all those members. Where property rights are not recognized there can be no institutions or rules at all.

I say this every time and you ignore it every time, so why not address it? You keep putting the cart before the horse (as does Wildberry). Law is not an institution or set of rules adopted by an institution, it is the set of conditions that must exist in order for institutions or rules to be possible at all. How can anyone adopt rules or form institutions when their property rights are disregarded?

“Remember when Kinsella chimed in to reply to Wildberry for the benefit of any “lurkers” – the implication being that he thinks they are too dimwitted to decide for themselves?”

You really got that implication? Kid, I know the name of your game. I think you seek out the most ludicrious way to possibly interpret something and then rail against that interpretation (that is, you knock down straw men). No, I don’t think Kinsella implied by responding that lurkers are too dimwitted to decide for themselves. He was giving them something to decide over.

“Well, I’m not going to do that. Your statement here is just embarrassing in light of these discussions and I’m happy to let my previous words speak for themself”

Except not, since you are saying this. I am not embarrassed at all. You completely dodged my request to present your own position (pointing at the past doesn’t tell me what you are advocating, if anything) and are desparately trying to keep yourself on the offensive and me on the defensive. I have no problem defending my viewpoint but it is more than appropriate now to point out that you have not defended anything and seem to be relying completely on keeping me on the defensive, which is a very strong suggestion that what you have to say cannot be defended. You seem to have literally admitted (“what, I was debating something?”) that you have no position at all. If so, then it hardly matters if you find holes in the ancap theory (no that you have) because you have no means to patch them. All you will have establshed is that ancap theorists have not finished their jobs yet (duh, when is a theory ever final?). But please keep in mind you *have not done that*. There are no holes, just conclusions you don’t like (which you literally said, you admitted that ancap is self-consistent, but undesirable, which you can only possibly assess using your own value judgments).

“any lurkers can read my statements and your delusional gibberish and come to their own conclusion.”

Which is why you need to call it delusional gibberish, right? To do to you what you did to Kinsella, it seems like you weren’t terribly confident that they would reach this on their own, rather you need to spoonfeed it to them.

As though the opinions of other forum-goers matter anyways. What really matters is that you have said *ABSOLUTELY NOTHING* about intellectual property in this whole thread. There are literally pages of wasted forum space thanks to you about the apparently pressing issue of easements and their justifiability. Do you have anything relevant to say? Are you contributing to this problem at all or just pushing nihilism/skepticism and mocking the very attempt to understand any problem?

“However, if you have a question you really think I can’t answer, reply to this with it or copy and paste if I missed it, and i promise I’ll answer. Forgive me though if I’m not exactly scared.”

Since when is a debate a series of questions? Either way, I have already asked you a question that you have yet to answer:

What is your position? What are you here to defend, or support? Enough about what positions are wrong. I’d like to hear which one is right. If you insist on staying off topic, then why are easements that run with the land justifiable (or not, I have no idea which one you believe)? Why is IP justifiable or not? In what circumstances, and why those circumstances and not others.

To be clear, saying you advocate what exists is an evasion of my question. Are you telling me that you advocate the millions and millions of people downloading unauthorized copies off the internet, and the fact that you could download pretty much anything you could want for free right now and never get caught for it? If so, then we have no quarrel! And to carry that point home, copyrights are completely disregarded and yet society has not fallen apart at the seams, and people still get insanely rich off creating popular entertainment. By your own reasoning would you not have to admit that a lack of enforced copyright is perfectly acceptable and workable?

Kid, I would love for you to start answering those questions so I can start setting up elaborate scenarios designed specifically to put your positions to the toughest tests possible. To be clear, I am very glad you have done this with ancap. You have given me some things to think about (the sunlight/digging problems are hard problems, to be sure, though that doesn’t mean ancap-NAP does not have a solution), but perhaps you wouldn’t be so quick to “ROFLMAO” when you find that whatever position you hold can be challenged with difficult scenarios as well.

It would be great if you would start off by answering this question: when and where is IP justifiable? You don’t even need to address the why yet. Just clarify your stance on IP and I’ll have something to argue with.

sweatervest August 8, 2011 at 5:24 pm

Wildberry’s position establishes nothing. He claims that property rights are a human device, therefore a matter of agreement, and that laws can be justified by the fact they are followed by lots of people.

Okay, well all the people who download/upload stuff for free have agreed to ignore IP. No level of internet monitoring will discover anywhere close to all of them and they will continue to do what they do, and no one will be able to stop them. Peer-to-peer networks are now international, transcending all national borders, have millions of participants, and cannot feasibly be shut down because it they are uncentralized. Those people are justifying their ignoring of IP laws by the simple fact that they are doing it and getting away with it. The costs of stopping them will become higher and higher until it becomes a complete waste and people give up.

Therefore, ignoring IP is completely justified. Why? Because property is a human device, it is up to humans to agree on what rights to respect, and millions and millions of people have agreed that IP rights will not be respected. The unofficial, not-written-down law code is that copyrights can be violated at will. Problem solved.

Of course Wildberry’s position would not help him any more even if copyrights were well-enforced. The second that people stop obeying them and get away with it, they justify their actions by the very fact they agree with each other to act that way and get away with it. Wildberry’s theory breaks down into nothingness, for it states that everything that happens is justified. So no matter what people do, they will be justified in doing it. Even if people weren’t overwhelmingly ignoring IP today, they would be justified as soon as they begin doing it, simply by virtue of the fact that they began doing it.

Kid Salami August 10, 2011 at 3:08 am

Peter

Apologies, by the “the one used here” I meant on “here” on mises.org, this was a typo and was not clear.

Your argument is so obviously circular and empty that I fail to see how adding to my post above and pointing this out is worthy of the considerable time it takes to demonstrate exactly why, but hey ho, I’m here now, so just for kicks. You say:

If we define “homesteading uses” as “homesteading full and relinquishing partial” then there is no logical issue. Which is what I have been saying since the beginning.

If someone is the “full owner” of some property then they can sell it, give it away, relinquish rights, whatever they like. So if they did a “homesteading full” they have this right. I think we can agree on this.

You think this is important. It isn’t. This isn’t the issue here, so let’s stop banging on about it.

Where did I claim that you can have a right of any sort in a good that noone homesteaded?

You got a bit hung on one idea – there is no need to worry specifically about land that “no’one” has homesteaded, there is no relevant difference here. The grant of easement by “prescription” applies to use of other land which is owned fully by someone else and so from the point of view of the dominant estate is the same.

The only difference appears to be that you are saying because it is unowned then acquiring any right at all means you are the “full” owner and so therefore there is no need to define the act of “homesteading”. I don’t understand this at all, it makes no sense. When I inquired about this, you say

I don’t care what Kinsella’s definition of homesteading is….I did not provide a definition of homesteading, on the contrary, my argument does not require a specific definition of homesteading. I merely implied that from the perspective of Kinsella/Hoppe/etc, physical change is a necessary condition for homesteading.

But not from your perspective? To you, it doesn’t matter how we define homestead – the “specific” definition is unimportant? Transformation, embordering, walking over, looking at while twitching your nose, pointing a magic wand at it while saying a Hail Mary? These are all good, just so long as we agree in advance? This ludicrous and imbecilic “perspective“ can only come about because you are assuming your conclusion.

I asked what the “concepts” which can be combined to make an easement are and you said:

Homesteading, trades and conditional transfer of title.

and also said

I based all my answers to you on three concepts only: homesteading, trade and conditional transfer of title (and maybe in the latest one, abandonment, but that’s because you introduced “relinquish all rights except”)… I then demonstrated that all the options can be represented as a combination of the above three prototypes and partial sales/transfers (and in the last case, relinquishing).

This set you talk of is empty to you because your argument is simply to define “homesteading” as having occurred when someone acquires a property interest in land that wasn’t via contractual exchange (ie. trade and conditional transfer of title), which always applies to unowned land. You essentially define homesteading as all acquisitions of property rights that aren’t contractual exchange then tell me that there can be no ways to acquire a property interest outside of trade except via homesteading. If you can’t see this is circular and assuming your conclusion, I don’t know what to tell you.

Again, to you “homesteading” is securing property rights in any way other than by contractual exchange of previously homesteaded goods – the very question under debate is whether or not there is some way to obtain a “real property interest” other than “homestead” and whether the concept of “easement”, under the common law existing today, does this or not.

If you nevertheless believe that your argument does not, in fact, refer to an empty set, then please specify the features of the objects in that set

.

We got a bit bogged down with “unhomesteaded” land. There is no relevant difference really and my earlier scenario is enough to populate your “empty” set, but how might we establish a member of this “set” you speak of with regard to “unhomesteaded” land?

- I show you a set of events during which someone, via an “easement by prescription” (essentially continual usage for some period of time without ever possessing the land), secures a real property interest in some land
- we define “homestead”
- we see whether or these events fall into the category of homesteading

If they do, I lose. If they don’t, you lose. It’s really quite simple – I’m sorry you can’t see this.

However, your version is:
- I show you a set of events during which someone, via an “easement by prescription” (essentially continual usage for some period of time without ever possessing the land), secures a real property interest in some land
- we don’t bother defining “homestead” because there are only three ways to acquire property ” Homesteading, trades and conditional transfer of title” and it isn’t the last two, so it must be homesteading, whatever it is.

This is circular and nonsense.

Peter Surda August 10, 2011 at 7:16 am

Kid Salami,

I think we can agree on this.

Great.

The grant of easement by “prescription” applies to use of other land which is owned fully by someone else and so from the point of view of the dominant estate is the same.

If this is the the situation you want me to address, then the only possible way to implement this within Kinsella et al framework is if the “easor” transfers some rights to “easee” (as opposed to merely tolerating him).

The only difference appears to be that you are saying because it is unowned then acquiring any right at all means you are the “full” owner and so therefore there is no need to define the act of “homesteading”. I don’t understand this at all, it makes no sense.

Of course, the question of homesteading is irrelevant if the “easee” started his activities after the land was homesteaded already.

To you, it doesn’t matter how we define homestead – the “specific” definition is unimportant?

It is important on the empirical level, but we are debating the logical consistency of positions, aren’t we? You object that my position is circular, why should then the scope of homesteading be relevant?

These are all good, just so long as we agree in advance?

This is an empirical question. We are not debating this now.

This ludicrous and imbecilic “perspective“ can only come about because you are assuming your conclusion.

Now you are trying to present an empirical refutation of a logical construct. It’s not a valid argument.

You essentially define homesteading as all acquisitions of property rights that aren’t contractual exchange then tell me that there can be no ways to acquire a property interest outside of trade except via homesteading. If you can’t see this is circular and assuming your conclusion, I don’t know what to tell you.

This is not circular because it’s the definition of the terms I’m operating with, rather than a conclusion. If you disagree, then you need to show that my definition does not fit into my framework. Or if you do not really disagree but just dislike it, you can describe a different system which includes at least three methods of obtaining rights, how to differentiate them and how to make them into disjunct sets.

You’re basically objecting that my framework does not contain enough sets, rather that there is something wrong with the logic of the system (e.g. the sets are not disjunct or that they do not contain all the elements). What kind of argument is this?

Again, to you “homesteading” is securing property rights in any way other than by contractual exchange of previously homesteaded goods – the very question under debate is whether or not there is some way to obtain a “real property interest” other than “homestead” and whether the concept of “easement”, under the common law existing today, does this or not.

But this does not invalidate my position. It just explains that you dislike it, and that it’s, theoretically, possible to construct a different framework that is also consistent. Duh, of course it is! I already said this in the past! Just the typical IP proponent is too stupid to come up with one.

This is circular and nonsense.

No, your objection is nonsense. You claim that empirical phenomena refute logical constructs.

I was worried about Wildberry’s influence on you but it looks like at least you were able to formulate your objection in a manner that is understandable for me. I hope I managed to explain why it is, in my opinion, not a refutation of my position, merely a claim that you dislike it and that alternative positions are, hypothetically, possible.

Kid Salami August 10, 2011 at 1:55 pm

Peter – you are lost here, and I’ve got a strange feeling, where i’m getting exponentially bored of your misunderstanding while simultaneously laughing at the responses. I’ll check back in to this abbatoir when i have some time.

Wildberry – please feel free to continue, if you have the stomach for it. I like the comment about “B having nothing to bargain with” by the way. I’d be very interested to hear how B is meant to know A owns this land and then find him before building his house. Even with the internet, asking everyone in the world whether they’ve ever walked over this path would be a stretch. If only there were some way to let someone know the land was yours, I’m sure there’s something….

Wildberry August 10, 2011 at 4:21 pm

Sir Kid Salami:
Sorry to say, but at some point, I have to realize it is not nice to challenge the handicapped. I’m beginning to feel guilty as well as nauseous and exhausted.

This thread is getting way too long anyway; it doesn’t even always load properly. Think I’ll take a break. That way Peter can have the last word and claim that I don’t answer his questions. It is, by now, a familiar refrain.

See you down the road.

Peter Surda August 11, 2011 at 3:55 am

Wildberry,

another example of your dishonesty: you compliment people who attack me regardless of the validity of the arguments they are presenting. You did the same when Schulman was avoiding answers.

Peter Surda August 11, 2011 at 3:50 am

Kid Salami,

maybe you should spend more time trying to formulate a coherent objection rather than complaining that I don’t understand. You have not even explained the form of your objection: if it is that my implications are false, or that there is a hidden variable I did not consider, or that there is a combination of variable values that I did not consider, or that you don’t like the options, or something else.

Peter Surda August 11, 2011 at 3:52 am

One more thing Kid Salami,

I’d be very interested to hear how B is meant to know A owns this land and then find him before building his house.

This is an empirical question. We can only deal with this after we have agreed upon which theory will be used to evaluate this.

Wildberry August 10, 2011 at 12:24 pm

@Peter Surda August 10, 2011 at 7:16 am

I was worried about Wildberry’s influence on you but it looks like at least you were able to formulate your objection in a manner that is understandable for me. I hope I managed to explain why it is, in my opinion, not a refutation of my position, merely a claim that you dislike it and that alternative positions are, hypothetically, possible.

Let me see if I can talk to Peter in his own language:

Let H = Homesteading
Let A = The acts of A
Let B = The acts of B
Let N = NAP
Let L1 = Parcel 1
Let L2 = Parcel 2
A +L1 = H
A +L2H not equal H
B +L2= H
B + L1 not equal H
A = N
B not equal N

A + B are defined by Kid’s scenario (with one twist to eliminate the variables “contract” and “transfer”)

A walks from L1 over L2 to river
B takes no action against A for a “long” time
B suddenly one day attacks A while walking across L2 and uses violence to keep him off L2.
A and B cannot communicate.

Please define the other terms such that they are consistent with this logical framework.

Peter Surda August 10, 2011 at 1:33 pm

Wildberry,

A walks from L1 over L2 to river
B takes no action against A for a “long” time
B suddenly one day attacks A while walking across L2 and uses violence to keep him off L2.
A and B cannot communicate.

I presume there is a hidden question here regarding the legitimacy of B’s actions.

A + B are defined by Kid’s scenario (with one twist to eliminate the variables “contract” and “transfer”)

The variable representing the type of arrangement existing between A and B determines the outcome. The description “B takes no action against A for a long time” is insufficient to unambiguously establish the value of this variable. Without knowing the value, it is impossible to make conclusions whether B’s actions are legitimate or not.

Please define the other terms such that they are consistent with this logical framework.

What other terms?

You’re basically saying: if I try to interpret ambiguous facts within a framework and cannot arrive at a satisfactory conclusion, that invalidates the framework. I can only repeat my wonder about the source of such methodology.

Peter Surda August 10, 2011 at 1:46 pm

Just as a background, the ability to come to a common understanding is one of the fundamental features of communication as a method of avoiding conflicts. If A and B do not use this wonderful tool and prefer instead to live in ignorance of each others intents, and later found out that there is no common understanding, they only have themselves to blame. This is, for example, why people sometimes like to make written contracts: it not only allows third parties to understand their relationship better, but it also give the two parties involved the ability to formulate the arrangement in a more formal fashion.

Communication, or reluctance of people to engage in it has nothing to do with the system of rights.

Wildberry August 10, 2011 at 4:15 pm

A system or rights specifically does no require people to communicate about them. They are established and part of the context in which humans operate. This is why I said taht A and B cannot communicate. This makes it a rights problem, not a “contract” problem. See?

Are you really this obtuse?

Peter Surda August 11, 2011 at 4:10 am

Wildberry,

A system or rights specifically does no require people to communicate about them.

It does not require communication to be determined, but it requires communication for the relationships to be understood. Building, digging or plowing, for example, not only alter the land, but also communicate to others that there was someone there before them. Fencing (assuming it is a valid form of homesteading) also does that, it also provides some sort of protection. The communication does not create the rights, it merely allows the participants to understand their assignments.

You are mixing theoretical with empirical problems (again).

This is why I said taht A and B cannot communicate.

Tolerating is also a way of communicating, although one prone to misinterpretation. There are even certain cases in the positive law which allow contracts to be formed this way: http://en.wikipedia.org/wiki/Implied-in-fact_contract

This makes it a rights problem, not a “contract” problem.

It would be a rights problem if it was unambiguously clear that there is no contract between A and B. Based on the data you provided, it is not clear whether there is or is not a contract.

Are you really this obtuse?

Trying to project your own inadequacies onto others again?

Wildberry August 10, 2011 at 4:12 pm

“A AND B CANNOT CUMMUNICATE”

Do you communicate in advance with everyone who is ever going to trespass on your land??

How can there be an “ARRANGEMENT”???

“LONG TIME” = NOT IN THE PRESENT; I.E. SOME ARBITRARILY LONG TIME HAS ELAPSED BEFORE B TOOK ANY ACTION AGAINST A, AND THEN HE DID, IN THE PRESENT. WHETHER THIS IS 5 DAYS OR 20 YEARS IS NOT RELEVANT, UNLESS YOU PREASSIGN SOME VALUE THAT DEFINES THE THRESHOLD. GO AHEAD! ASSUME WHATEVER YOU WANT OR IGNOR IT. IT SIMPLY MEANS, SOME CONSIDERABLE TIME HAS PASSED WITHOUT CONFLICT, AND ONE DAY THERE WAS A CONFLICT. CONFLICT IS NOT INHERENT IN THE EXISTENCE OF A, B, L1 OR L2.

YOU CAN DEFINE HOMESTEADING ANY WAY YOU WANT TO ARRIVE AT THIS OUTCOME, OR YOU CAN CLAIM THAT THERE IS NO DEFINITION OF HOMESTEADING THAT SUPPORTS THIS OUTCOME. TAKE YOUR PICK. THAT IS THE QUESTION BEING ASKED. STOP TRYING TO WEASEL OUT!

Peter Surda August 11, 2011 at 4:39 am

Wildberry,

Do you communicate in advance with everyone who is ever going to trespass on your land??

You are misrepresenting my claims again. The communication does not, per se, determine rights. I only explains them. In the absence of communication, rights have a higher chance of being understood incorrectly. If you own land, fencing it might be sufficient to communicate to others unambiguously that it is not unowned and going behind the fence is trespass. But not fencing it does not necessarily mean that you do not own it. It just makes it less obvious to potential trespassers that crossing over would be trespassing. These are two different issues.

THAT IS THE QUESTION BEING ASKED. STOP TRYING TO WEASEL OUT!

The question being asked is to make a conclusion with missing data. This is not possible. The missing data determines whether there is a contract between A and B and what the contents of the contract are. If A and B are too stupid to foresee the risk in the ambiguity of their relationship and can’t be bothered to communicate apart from tolerating each other’s actions, it’s their problem.

From practical point of view, the problem is not really who is right if violence erupts. The problem is that this results in calling upon a third party (e.g. judge or police) to resolve the issue (e.g. to stop the attack or trespass). The third party will most likely start asking exactly the same questions I do. If A and B insisted that they tolerated each other for a very long time but did not bother to communicate otherwise, then the mediator would probably just call them stupid and ask them to start communicating now, in his presence, to clarify for the future whether there is a contract and what its contents are. If they cannot come to an agreement, then obviously there is no contract, A would be trespassing on L2 and needs to go back to L1. The mediator, not necessarily being an adherent to Kinsella/Hoppe/etc. framework, might obviously decide otherwise.

Stop boring me. I see you got a new shipment of smoke and mirrors, but it’s just more of the same. Yawn.

Wildberry August 11, 2011 at 10:42 am

Honestly Peter, this is getting pathetic. Are you an observer from another planet, or a participant?

From practical point of view, the problem is not really who is right if violence erupts. The problem is that this results in calling upon a third party (e.g. judge or police) to resolve the issue (e.g. to stop the attack or trespass). The third party will most likely start asking exactly the same questions I do.

Yes, the PROBLEM IS EXACTLY WHO IS RIGHT AND WHO IS WRONG UNDER THE FACTS GIVEN!

In this case, YOU ARE THE THIRD PARTY WHO IS BEING ASKED TO RESOLVE THE CONFLICt WITH YOUR RULES OF PROPERTY RIGHTS!

You asked the question, and I answered it at least twice: THERE IS NO CONTRACT! A AND B CANNOT COMMUNICATE. You have sufficient facts to apply property rules. You cannot do it.

Do you really think a system of property rights that requires that every party in conflict has to negotiate to re-establish from scratch property rules is a “system” of property rights?

If I was trying to argue with you about a theorem in calculus with only knowledge of basic arithmetic, would you try to teach me calculus by arguing with me about all of my misunderstandings and ignorance of the basic principles of calculus?

Yet that is what you are engaged in here. You do not understand the problem, or the mechanism for solving it, yet you claim that your “system” is complete!

It is odd to me that I even feel enough motivation to write a response to you. I need to have my head examined.

Peter Surda August 11, 2011 at 11:43 am

Wildberry,

Honestly Peter, this is getting pathetic. Are you an observer from another planet, or a participant?

Well well well, logic is frustrating you?

Yes, the PROBLEM IS EXACTLY WHO IS RIGHT AND WHO IS WRONG UNDER THE FACTS GIVEN!

You did not “give facts”. You omitted them. The facts which are necessary to conclude the problem are unknown.

In this case, YOU ARE THE THIRD PARTY WHO IS BEING ASKED TO RESOLVE THE CONFLICt WITH YOUR RULES OF PROPERTY RIGHTS!

In that case that’s easy. I would spank them both for being stupid and tell them to clarify if they have a contract and if yes, what its contents are, write it down and sign it. If they refuse to do that, I would send them both home, tell A to not go onto L2 and tell B to at least yell at A if he crosses onto L2. Afterwards, I would post this on the website of the moderation business and label it as “stupid people: do not do this at home”.

You asked the question, and I answered it at least twice: THERE IS NO CONTRACT!

That’s not what you said. You said that “B takes no action against A for a long time”, but does not otherwise communicate with him. That does not necessarily mean that there is no contract.

A AND B CANNOT COMMUNICATE.

Are they retarded or what? They see each other for a long time, but it does not occur to them to yell at each other, or lay obstacles into each other’s path? They deserve the outcome of the ambiguity then.

You have sufficient facts to apply property rules.

You have continuously denied to specify the facts and to resolve the ambiguity.

You cannot do it.

On the contrary, I have clearly specified all possibilities of if … then … combinations.

Do you really think a system of property rights that requires that every party in conflict has to negotiate to re-establish from scratch property rules is a “system” of property rights?

I have no idea where you get this from. You are just imagining stuff again. I said clearly that property rights do not require communication to be determined. They merely require communication to improve understanding. This problem of communication of rights assignment and intent is present in any system and does not, per se, have anything to do with the topic (easements and IP).

Ownership is a necessary condition for avoiding conflicts, but it’s not a sufficient one. If rights are defined but not communicated in an understandable manner, this does not avoid conflicts at all. Even animals understand that claims need to be communicated to be useful. They use scent-markings or roaring, for example. But the two retards in our example don’t care. It does not occur to B to build a fence or raise a sign “Private property, trespassing will be prosecuted”. Maybe he can’t write and he’s too stupid to paint a red circle with a sticky figure crossed in it. Maybe he has no legs and arms and is mute, but the legs and arms will magically grow back again when he decides to attack A!

You do not understand the problem, or the mechanism for solving it, yet you claim that your “system” is complete!

I have clearly demonstrated solutions to all problems that were presented to me, and in case a conclusion was impossible, I specificed which variables were missing. You have not even been able to explain your own position, yet alone defend it.

I need to have my head examined.

You should have done this back last year before you started posting here.

Wildberry August 11, 2011 at 4:14 pm

@Peter Surda August 11, 2011 at 11:43 am

I said clearly that property rights do not require communication to be determined.

Then why do you keep resorting to the parties to work out the conflict? Since communication is not required, why does “THEY CANNOT COMMUNICATE” cause you any problem???

They merely require communication to improve understanding.

“improve understanding”???? That wasn’t one of the three “criteria” you said you needed to explain this. Now there are four? Before property rights can be established, the parties in conflict must first “improve” their “understanding”? You mean like being shot? That would clearly “improve” my understanding that someone was out to kill me. Unfortunately it doesn’t have much to do with whether or not he had the RIGHT to do so.

This problem of communication of rights assignment and intent is present in any system and does not, per se, have anything to do with the topic (easements and IP).

I eliminated the variable of “communication”, which you got all excited about, asking if they were “retards”, and now you say it has nothing to do with the topic? If that’s the case, why are you bringing it up?

Have you heard the expression, “When you find yourself in a hole, stop digging!”? Can you see how that might apply to both of us in this situation?

I need to find a good shrink and take a long rest. Surely you must know one or two by now?

I hereby grant you the last word. Congratulations, you outlasted me. You win. You are a genius!

Peter Surda August 12, 2011 at 4:11 am

Wildberry,

Then why do you keep resorting to the parties to work out the conflict? Since communication is not required, why does “THEY CANNOT COMMUNICATE” cause you any problem???

Merely because something is determined does not mean that you know what the value is. These are two different issues. If I see a car (obviously not a natural resource) or a fenced land that does not belong to me, I know that it’s owned by someone else and I better not open the car/cross over to the land, even if I still don’t know who the owner is.

In the case of A and B, the presence or contents of the contract determine whether the attack of B to A is a violation of rights or not. The facts provided by you do not unambiguously establish whether the contract is present or not or what its contents are.

Before property rights can be established, the parties in conflict must first “improve” their “understanding”?

Stop making up stuff. I clearly said that they do not require communication to be determined (or established, if you want). But merely because we know that a value of a variable is determined, it does not necessarily follow that we know what the value is.

You mean like being shot? That would clearly “improve” my understanding that someone was out to kill me. Unfortunately it doesn’t have much to do with whether or not he had the RIGHT to do so.

Exactly what I said. The shooting does not, per se, determine whether he had a right or not. However, in some cases it might improve our understanding of whether the right was present or not.

I eliminated the variable of “communication”…

You attempted to eliminate it, but instead you just obfuscated it. If there was no communication whatsoever, then A and B must not have known of each other’s activities. This is from practical point of view difficult to imagine (no fence, no sign of the land being altered prior to entering, no barking dogs, no visual contact, no spotting of foreign footprints and so on).

… which you got all excited about, asking if they were “retards”, and now you say it has nothing to do with the topic? If that’s the case, why are you bringing it up?

As I said, a situation where there is a total absence of communication is unrealistic and your example does include hints that there was communication present. This might alter the conclusion, that is why I explained what facts are missing. Assuming the hypothetical case of a total absence of communication, there could be no contract, obviously.

You are a genius!

And you’re a moron.

That concludes our debate.

SirThinkALot August 10, 2011 at 1:58 pm

I’d never thought about the comedy thing. That might explain why there are so many libertarian/libertarian-leaning comedains/humorists: Dave Barry(retired now), Dennis Miller(more conservitive than libertarain but still),Penn and Teller, Drew Carry, Scott Adams, George Carlin(sadly deceased)…

Kid Salami August 11, 2011 at 3:20 am

Peter

This gives us the following options:
(1) A’s use of the path counts as homesteading, it occurred prior to B’s using the land. Then A and B co-own the land and the outcome roughly corresponds to easements.
(2) A’s use of the path counts as homesteading and it occurred after B using the land.
Then B owns the land (because A cannot homestead something that is already homesteaded by B). While B is tolerating A (you can interpret this as rent if you want), since the land is B’s, at any time B or subsequent owners can deny A access.
(3) A’s use of the path does not count as homesteading and occurred prior to B’s use of the land. B owns the land. Same comments as in (2).
(4) A’s use of the path does not count as homesteading and occurred after B’s use of the land. Same as (3).

In my opinion, this encompasses all option. If you think it doesn’t, please specify.

Apart from that Mrs Onassis, how was Dallas? I’ll specify. This is, like I said above, total gibberish

http://blog.mises.org/17750/without-ip-would-there-be-a-world-of-clones/#comment-796535

as it explains all scenarios except, erm, the one I’ve been explaining to you from the start. I’m done with this.

Peter Surda August 11, 2011 at 6:34 am

Kid Salami,

This is, like I said above, total gibberish.

You have failed to coherently explain any part of your objection whatsoever. My position, however, has been explained. I think your misinterpretation was deliberate, because the context makes it obvious what I meant. You’re not stupid, you should be able to deduce the meaning from the context. You continue to imply that there is something wrong, but never manage to explain what.

as it explains all scenarios except, erm, the one I’ve been explaining to you from the start

Since the explanation logically covers all possible combinations of the values of the variables, there is nothing left for you to object to. I listed several other assumptions as potential other variables, however you have not picked any of them, nor you have presented a new one.

Kid Salami, you’re an intelligent guy. Surely, it can’t be that difficult to formulate your objection coherently? You could save yourself a lot of time that you otherwise spend on complaining.

Wildberry August 15, 2011 at 11:47 am

@Peter Surda August 15, 2011 at 10:31 am

Not that I think there is any chance of an intelligible response, but you said a couple of interesting things:

It covers all situations where previously unassigned rights are assigned. On this level of definitions, it does not matter how you establish the boundaries, or whether you decide to include IP or not.

Really? Homesteading is a “claim” to a right, not a determination by a third party. Only when a specific claim is disputed by a competing party does the property rights issue arise. In this exercise, we are placing ourselves “outside” of the Crusoe device and asking how homesteading works in relation to specific claims. Therefore, the issue of how boundaries are established is precisely the issue, not some side matter. As Kid Salami has already told you, it makes no sense to address the IP issue until you make your position clear of the operation of easements under NAP/Ancap property rules. These rules can then be applied to IP, they cannot be derived from IP.

The fact that you cannot respond to this problem without resorting to contracts proves that homesteading is an inadequate system of property rights. This gap does not exist in positive law. You say there is no gap, but then must abandon homesteading to make it “work”. Hmmm.

Contracts, on the other hand, cover voluntary transfers of these rights among people who already have them. What we are left with is involuntary transfers of rights.

OK, let’s use your “framework”. Contracts are voluntary, and everything else is “involuntary” transfer. Rights are not voluntary except by the owner of them, and even some of those (i.e. Rothbard’s “inalienability of will”) are involuntary.

Rights that are not “conceded” by their owner cannot be voluntarily alienated (transferred). The dispute here is not whether there was a “consent”; it is where the boundaries of ownership are drawn, and how you arrive at that conclusion with the principles of NAP. You have, in every single exchange, run from that specific challenge. You cannot do it. That is why the rest of your post is simple non-sequitur.

For example:

If you consider “homesteading + contracts” as inadequate,

I do…

it means that you are either contradicting yourself, or argue for the use of force to redistribute rights.

Ah, you reveal yourself! The word “redistribute” implies that ownership is a settled issue, and that they are changed from one known state to another. You are simply assuming the conclusion so you can start your analysis from some a priori knowledge of where the boundaries of ownership are. You haven’t explained that yet, remember?

Here we can see the problem in plain sight: if we eliminate communication and contracts, we are left with violence. That’s the logical conclusion, and the essence of your demagoguery.

And you are claiming logic is in your corner? If we eliminate communication and contracts, we are left with property rights. That is the point. Property rights exist without either communication or contracts. Get it? I doubt it.

As a complete aside, I am very curious about this statement:

you portray his argument as if he did not consider IP worthy of being a right.

Are you saying that Kinsella does consider IP “worthy of being a right”? I admit, this is my understanding, he does not. And you say you explained already why I am wrong? Please give me a hint or a link, or something. That would be interesting.

Peter Surda August 15, 2011 at 12:37 pm

Wildberry,

Only when a specific claim is disputed by a competing party does the property rights issue arise.

However, it is logically impossible to have a dispute over unassigned rights (i.e. prior to homesteading).

Therefore, the issue of how boundaries are established is precisely the issue, not some side matter.

The issue of boundaries determines which of the mutually exclusive actions in question is homesteading. Regardless of how exactly you do it, they cannot be simultaneously homesteading.

The fact that you cannot respond to this problem without resorting to contracts proves that homesteading is an inadequate system of property rights.

The fact that you resort to illogic and rhetorical tricks is a strong hint that there is actually no coherent meaning behind your blabbering.

This gap does not exist in positive law.

There is no gap in my position. Your attempts to define it lead to contradictions, nor you have shown an example of such a gap.

The word “redistribute” implies that ownership is a settled issue, and that they are changed from one known state to another.

You are ignoring the logical error in your claim and try to derail the argument into an empirical one.

You are simply assuming the conclusion so you can start your analysis from some a priori knowledge of where the boundaries of ownership are.

I have consistently shown the conclusions of all possible variable combinations. To insist that I am “assuming my conclusion” can only be explained by a mental deficiency or deliberate fraud.

If we eliminate communication and contracts, we are left with property rights.

You now twist the word “eliminate” into a different meaning and attempt another rhetorical trick. The presence of a conflict in your example necessitates that there are already rights prior to the conflict (assuming a legal system is logically correct). Furthermore, they can only be transferred voluntarily or by force. There is no other logical alternative. Since you eliminated the voluntary aspect, the only two actions possible to do is to violate the rights of the homesteader, or adhere to them. Yet again, you degenerate into dadaism, denial of logic and demagoguery.

Property rights exist without either communication or contracts.

You previously agreed with me that contracts do not create rights, they only redistribute rights that the parties involved already have. In this example, you claim that B did not transfer rights to A. Then logically we need to fall back to who had the rights prior to the interaction between A and B. That means homesteading. The right belongs to the person who had it before A and B interacted. Another attempt to confuse, I presume.

Are you saying that Kinsella does consider IP “worthy of being a right”? I admit, this is my understanding, he does not.

Kinsella made it clear that the position of IP proponents is self-contradictory. The issue of worthiness never comes to question, since ethics does not refute logic. I see it even more neutrally, I try to eliminate the question of ethics altogether in my claims.

It might be advantageous in order to avoid presenting oneself as an idiot if one actually informs himself about the arguments of the opponents he is debating, especially if the opponent wrote a book presenting his position.

Wildberry August 16, 2011 at 3:29 pm

@Peter Surda August 15, 2011 at 12:37 pm

However, it is logically impossible to have a dispute over unassigned rights (i.e. prior to homesteading).

Like I said, I had low expectations.

It is quite possible to have a dispute over “unassigned rights”, and whether those rights are or not “assigned” (how and by whom?) and whether an act of homesteading has or has not occurred. Obviously, to the mind of anyone paying the least amount of attention, that is, eh, THE ISSUE!! Honestly!

Let’s see, blah, blah, blah. Then this:

There is no gap in my position. Your attempts to define it lead to contradictions, nor you have shown an example of such a gap.

This entire blog is an example. You are unable to explain the operation of your property rules in a simple case of easement dispute. You make empty statements like “it leads to contradiction” or “they are mutually exclusive”, but all this just amounts to you saying “Move along, folks. Nothing to see here.”

You are ignoring the logical error in your claim and try to derail the argument into an empirical one.

This is a conclusory statement with no logical support. You keep insisting I have a bug in my software. You know what they say; to a hammer, the world is a nail.
In a language that calls “ham” “pig flesh”, it must be a challenge to catch the meaning of such metaphorical, non-literal language. Try your best.

I have consistently shown the conclusions of all possible variable combinations. To insist that I am “assuming my conclusion” can only be explained by a mental deficiency or deliberate fraud.

You are confusing consistency with intelligibility. You have been consistently unintelligible.

If we eliminate communication and contracts, we are left with property rights.

You now twist the word “eliminate” into a different meaning and attempt another rhetorical trick. The presence of a conflict in your example necessitates that there are already rights prior to the conflict (assuming a legal system is logically correct). Furthermore, they can only be transferred voluntarily or by force. There is no other logical alternative. Since you eliminated the voluntary aspect, the only two actions possible to do is to violate the rights of the homesteader, or adhere to them. Yet again, you degenerate into dadaism, denial of logic and demagoguery.

You said:

Contracts, on the other hand, cover voluntary transfers of these rights among people who already have them. What we are left with is involuntary transfers of rights.

Yes, you said contracts cover voluntary transfers of [pre-existing] rights. Property rights are rules that are applied to facts. People don’t need to get together and discuss what rules they want to create, especially if they already exist. You are saying that the only way to assign these rights consistently is to deploy a theory of homesteading or a theory of contracts, and between the two, you cover every possibility.

The existence of a conflict over property rights necessitates mutually exclusive claims to the same property. I agree if the rules for resolving a given conflict already exist, the parties or a third party can simply apply the rules and resolve the conflict such that the rules are coherent and consistent with the way other conflicts would be resolved. All anyone is asking you to do is apply the facts to YOUR property rules and tell us how you get from here to there. The parties don’t need to talk it over, because they only need to follow the rules. WHAT ARE THE RULES? APPLY YOUR PROPERTY RULES TO THE SITUATION Kid and I have presented. That’s all. You just can’t do it.

You previously agreed with me that contracts do not create rights, they only redistribute rights that the parties involved already have. In this example, you claim that B did not transfer rights to A. Then logically we need to fall back to who had the rights prior to the interaction between A and B. That means homesteading. The right belongs to the person who had it before A and B interacted. Another attempt to confuse, I presume.

I think you need to check your wiring. I smell smoke.

My claim is that given a set of facts, you should be able to apply your property rules to determine how to resolve the conflict between A and B, who are both making claims of ownership to a path to the ocean. I did not say, nor did Kid, that B did or did not transfer rights to A. THAT IS THE QUESTION!!! Are you leaking oil? I smell smoke!

So yes, please tell me who has the rights prior to the “interaction” between A and B. Remember the “interaction” is B’s refusal to let A pass, and A’s enforcement of his asserted right to pass. Since both cannot satisfy the same rule, in your language they are mutually exclusive; someone has to be “right”. Tell me who it is and why you say it. You must rely on property rules. It is not fair or germane to resort to a negotiation between A and B. That’s cheating, because (do I really have to say it, again??) that is using a, (shudder) CONTRACT theory, not property theory. Homesteading is a property theory. Use homesteading/NAP to explain your reasoning. You cannot do it, but can’t or won’t either admit it or do it. Those are your choices. See?

Are you saying that Kinsella does consider IP “worthy of being a right”? I admit, this is my understanding, he does not.

Kinsella made it clear that the position of IP proponents is self-contradictory. The issue of worthiness never comes to question, since ethics does not refute logic. I see it even more neutrally, I try to eliminate the question of ethics altogether in my claims.

Huh? You said:

you portray his argument as if he did not consider IP worthy of being a right.

Then I said:

Are you saying that Kinsella does consider IP “worthy of being a right”? I admit, this is my understanding, he does not.

And then you say:

The issue of worthiness never comes to question, since ethics does not refute logic.

You are the one who brought “worthiness” in. What does that have to do with what you say or his position on contradictions? Did you check the batteries in your Google translator?

It might be advantageous in order to avoid presenting oneself as an idiot if one actually informs himself about the arguments of the opponents he is debating, especially if the opponent wrote a book presenting his position.

Kinsella wrote a book? You wrote a book?

Well, ok that settles it. I haven’t written a book, so I must be wrong. But, then that makes you wrong too. Oddly, I have read a good deal of Kinsella. When he once chastised me for not knowing what I was talking about, and I took him seriously. He was right. Now he’s wrong. And so are you. Horribly, terribly wrong.

Peter Surda August 17, 2011 at 3:08 am

Wildberry,

I addressed both the logical errors as well es methodological flaws in your arguments, over and over and over. Your reaction is to ignore, ignore and ignore.

You’re like the continuum transfunctioner: your stupidity is only exceeded by your fraud.

Stop making stuff up, stop deceiving and distracting and address the points that I made