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Source link: http://archive.mises.org/18210/ayn-rands-anti-dog-eat-dog-rule-and-intellectual-property/

Ayn Rand’s Anti Dog-Eat-Dog Rule and Intellectual Property

August 24, 2011 by

As noted in my post Intellectual Property Advocates Hate Competition, IP proponents support these monopoly privileges on explicitly anticompetitive grounds. Take this explicit opening passage in an article by an ardent IP advocate, Jerome H. Reichman, a law professor at Duke:

Governments adopt intellectual property laws in the belief that a privileged, monopolistic domain operating on the margins of the free-market economy promotes long-term cultural and technological progress better than a regime of unbridled competition.

… Intellectual property laws typically provide qualified creators with temporary grants of exclusive property rights that derogate from the norms of free competition in order to overcome the “public goods” problem inherent in the commercial exploitation of intangible creations. ((Reichman, “Charting the Collapse of the Patent-Copyright Dichotomy: Premises for a Restructured International Intellectual Property System,” Cardozo Arts & Ent. L.J. 13 (1995): 475; see also IP Rights as Monopolistic Grants to Overcome the Public Goods Problem.))

This opposition to “unbridled” competition sounds like something Ayn Rand might have mocked in Atlas Shrugged. Oh, wait. She did: the villains enact the “Anti Dog-eat-dog rule”. From Wikibooks:

Anti-dog-eat-dog Rule

The Anti-dog-eat-dog Rule is passed by the National Alliance of Railroads in section 145, allegedly to prevent “destructive competition” between railroads. The rule gives the Alliance the authority to forbid competition between railroads in certain parts of the country. It was crafted by Orren Boyle as a favor for James Taggart, with the purpose of driving the Phoenix-Durango out of Colorado.

Sad that Rand, who rightly mocked the hostility to “unbridled” market competition in Atlas with her “Anti Dog-eat-Dog” rule, found a way to endorse IP, the very purpose of which is to prevent a free market and its “unbridled competition.”

{ 198 comments }

John Donohue August 24, 2011 at 10:42 pm

Still up to the same old tricks, I see.

I won’t bother to post my entire criticism of the Kinsellian fantasy. I’ll just post my hinge point, which is sufficient.

There is no free market under anarchy and brutalism, brutalism meaning denial of property rights to the owners of brands, patents and copyrights. There is no competition other than that over which gang has the worse savagery, the most ruthless thugs. There is no capitalism.

You’re attempt to posit a “free market” and “competition” under anarchy/brutalism is a cynical theft of context on a grand scale and you’ve been getting away with it for far too long.

I’m calling you out that your massive gambit of putting all your energy on supposedly “proving” there is no such thing as a right to IP is merely a diversion for your real agenda: the promotion of anarchy, which means the savage end to civilization.

Daniel August 25, 2011 at 12:15 am

Are you an objectivist?

John Donohue August 25, 2011 at 12:19 am

Are you an anarchist?

Emil August 25, 2011 at 6:11 am

Troll!

Daniel August 25, 2011 at 7:16 am

I asked you first

I’m not trolling you or anything, I’m just asking because I’m curious. It’s not like you have to answer me or anything; you’re free to not do so.

John Donohue August 25, 2011 at 7:24 am

Yes, of course, I am an Objectivist.

Now you: why do you care and why do you ask?

Wildberry August 25, 2011 at 11:13 am

Daniel,

Fair’s fair. I think it’s your turn.

nate-m August 25, 2011 at 4:13 am

I’m calling you out that your massive gambit of putting all your energy on supposedly “proving” there is no such thing as a right to IP

Yes. We all have rights to pay the government to smash competition and keep certain businesses receiving the profits from other company’s creations and labor.

the promotion of anarchy, which means the savage end to civilization.

Yes. The current campaigns of world-wide war is what keeps our society together. Having roving bands of armed men operating on the behest of a few privileged men systematically terrorizing the population and throwing them in cages is what keeps us from each other’s throats.

The state, which is responsible for systematically murdering hundreds of millions of people in the past hundred years with a wide variety of techniques ranging from gassing, torture, mass burials, mass starvation, mass burning of cities all the way up to and including nuclear holocaust was the key to human progress. The human-built creation, the government institutions, that created these horrific acts for it’s own benefit is to be cherished and lauded as the mechanisms which keep us happy, productive, and free.

When we have 1 in 31 adults in our country either being locked away or being closely monitored by the state… how can we be anything but civilized?

There is no other way things could ever possibly be!

Junarchist August 25, 2011 at 2:26 pm

I dont know what you’re smoking…but I want some

Dan Lind September 19, 2011 at 6:16 pm

The hinge point has essentially nothing at all to do with the question of intellectual property rights.

The claim you support is that intellectual property rights are a subset of natural rights. Since, so goes the claim, government of some sort is a prerequiste for honoring natural rights, then government of some sort is requisite for honoring intellectual property rights. And since Block is an anarcho-capitalist he ipso facto has no business defending natural rights.

Sorry, not very convincing.

And not very convincing is the implicit claim that government tends to eliminate savagery, thuggishness and brutalism. Where have you been during the 20th century?

Bryan August 25, 2011 at 1:00 am

Intellectual property is the foundation of all property, including material.

Man has a right to the product of his mind and effort. If not, then what is the reason that he should have legal recognition of material goods??

http://aynrandlexicon.com/lexicon/patents_and_copyrights.html

nate-m August 25, 2011 at 4:19 am

Intellectual property is the foundation of all property, including material.

I’m afraid that man, and their private property, existed for a long time before patents and copyrights were created. It’s like saying that feather pillows are the founding principal for all chickens. Your statement is all ass-backwards.

Peter Surda August 25, 2011 at 7:55 am

Bryan,

Intellectual property is the foundation of all property, including material.

Intellectual property contradicts material property, since it merely reinterprets it. And even if you decide to mix them somehow, the material property must precede the intellectual property, since it is impossible to think without occupying space, or act without altering matter. Therefore your claim is erroneous.

Mushindo August 25, 2011 at 2:33 am

Bryan misses the point. Yes a man has the right to the product of his mind and his effort. His effort is his alone. But once any idea finds it’s way into the mind of any man, how do you propose he be forced to unlearn it. Torture? Brain surgery?. Those ideas are now his, just as much as they are owned by anyone else who has them in their minds. And it is monstrous to suggest that a man may not be permitted to use his knowledge in the pursuit of bettering his life. That belief puts you in the company of Stalin et al. Do you really think prometheus and his heirs in perpetuity must be paid a royalty every time a fire is lit?

Wildberry August 25, 2011 at 11:35 am

Mushindo,

We have been here before. IP laws do not restrict the proliferation of ideas, and specifically excludes them from its subject matter. In fact, furthering the goal of knowledge is one of the explicit policy goals of IP laws.

So your entire response to Bryan is based on a false premise. With that in mind, perhaps you can try again.

Peter Surda August 25, 2011 at 12:01 pm

Moronberry,

We have been here before.

Indeed.

IP laws do not restrict the proliferation of ideas, and specifically excludes them from its subject matter.

And since it is impossible to interact with ideas without interacting with something physical, you are presenting an empty set, add orwellian newspeak as a springboard to a logically erroneous conclusion.

Boring.

El Tonno August 25, 2011 at 2:43 am

It’s good to know that Moses must have lost the tablet saying “Thou shalt open a Patent Office and promote Copyright In All Things”

Tyrone Dell August 25, 2011 at 7:57 am

“Here I present thee 15″ — *drops tablet* — “10! 10 Commandments!”

G8R HED August 25, 2011 at 11:11 am

Tyrone Dell – I’d pay to see Marty Feldman do that one.

mushindo August 26, 2011 at 7:42 am
Jeff Olstad August 25, 2011 at 6:06 am

Is this site even endorsed by the Ludwig von Mises Institute? You couldn’t have a serious discussion about economics without property rights. The person writing this article has committed context dropping so many times it makes no sense. It would have to have a lot less context dropping before you could say it contradicted itself. Very Sloppy.

Emil August 25, 2011 at 6:21 am

Stephan Kinsella does not oppose property, he opposes the ownership of ideas. The reason I agree with him is this: while ownership of a property should be given to the person who created that property, it is not true that creating something automatically makes it property (e.g. you create your children but you don’t own them). The very reason we have property is not so that inventors can be granted monopolies. We have property to resolve conflicts about who does and does not get to use a scarce resource. There can never be a conflict between users of ideas, since ideas are indefinitely copyable. So there is no reason to limit the freedom of the individual when it comes to ideas.

John Donohue August 25, 2011 at 7:11 am

Shocking, isn’t it Jeff. This trend for the site bearing the proud name of Ludwig von Mises has become a platform for anarchism and destruction of IP.

Wildberry August 25, 2011 at 11:19 am

John and Jeff,

Yes it is shocking. It is a low-brow approach to the legacy Mises left us.

As for Peter, I have wasted countless hours “arguing” with him. Someone used the phrase recently, I think it was Schullman, “invincible ignorance”.

The anarcist agenda that is the undercurrent for every post here, it seems, is a good example.

Peter Surda August 25, 2011 at 11:58 am

Fraudberry,

yes, you have spent countless hours “arguing” with me, i.e. you did not actually argue, but used a wide range of fallacies, deceptive tactics and demagoguery to build the impression that you have something meaningful to say. After 8 months, you can’t even define your position! You used at least four different definitions of your position and randomly jump between them whenever you can’t deny the fallacies anymore, and then after a while you jump right back as if nothing had happened.

Stop boring me.

Peter Surda August 25, 2011 at 7:21 am

If you disagree with what is posted, you should provide an argument instead of an emotional rant.

Tyrone Dell August 25, 2011 at 7:59 am

>You couldn’t have a serious discussion about economics without property rights.

Where there is no scarcity there is no economizing, and therefore no discussion of economics. Welcome to the world of ideas, aka the “Internet.” You must be new here.

Puneeta Uchil August 25, 2011 at 6:47 am

How interestingly malevolent that you chose the railroad example. That was about competition within an industry, among people who used goverment help vs people who ran their businesses independently.

The actual example of intellectual property rights in Atlas Shrugged is when Hank Rearden is forced to give up his copyrights on Rearden Metal so that other people, including Orren Boyle could produce the metal which he worked so hard , for so many years to create.

He was forced to give it away. And we all know how that thread in the story panned out.

Intellectual property is the most basic right, because what can belong to you if not the product of your work?

Peter Surda August 25, 2011 at 7:19 am

The example with Rearden Metal actually refutes itself. You cannot be “forced to give up your patent”, because in order to get a patent, you need to publish the principle behind it. So Rearden’s competitors already would had known how to make Rearden Metal, it would merely had been illegal for them to make it without Rearden’s permission.

Stephan Kinsella August 25, 2011 at 10:23 am

How interestingly malevolent that you chose the railroad example.

Actually, Rand chose it, not me.

actual example of intellectual property rights in Atlas Shrugged is when Hank Rearden is forced to give up his copyrights on Rearden Metal so that other people, including Orren Boyle could produce the metal which he worked so hard , for so many years to create.

Rearden would not have copyright in Rearden Metal–it would have to be either patent or trade secret. If it’s trade secret, then the only way the state can “take it” from him is to coerce the secret recipe from him. That coercion would be using physical force against Rearden’s physical property rights (to his body or money). So you don’t need IP to explain what is wrong with the use of violent threats to extract secret information from people.

On the other hand, if Rearden had a patent on the Rearden metal (I can’t remember which it was in the actual plot) then he would have had to publicly disclose how to make the metal in his application for a state patent monopoly privilege. And if the state revokes the anti-competitive, protectionist monopoly privilege it had granted him, it is not “stealing” anything from him–it is just not helping him use force to stop competition.

Wildberry August 25, 2011 at 11:50 am

@Stephan Kinsella August 25, 2011 at 10:23 am

Rearden chose to keep the formula a secret. He engages in a discussion with others involved in the industry about various approaches to exploitation of his invention, including cartels, government enforced market monopoly, etc.

The fundamental principle being explored in the novel turns on whether he does or does not have the right to decide what he wishes to do with his private property. That is the principle at stake with IP discussions.

As to your trade secret response, you beg the question as to how and with what means Rearden would have available to defend himself against improper appropriation, whether by government action or private espionage. Anarchism’s PDA’s might have been available to Rearden, but they are not universally available to “citizens” (which also can’t exist in your world) who have not already prospered sufficiently to buy protection.

In your second response to patents, you neglect to mention that such disclosure was ON CONDITION of limited monopoly, and therefore cannot be fairly withdrawn after disclosure. You complain about others using such rhetorical words as “stealing” and “piracy”, yet you feel free to indulge yourself in the same practice you criticize in others.

If a bargain was made, and later breached, then Rearden would be a victim of wrongdoing, regardless of the context. In the context of IP, these rules of fairness operate equally well; no need to make an exception to support your conclusion: “We have IP because we have the State”.

Stephan Kinsella August 25, 2011 at 12:11 pm

As to your trade secret response, you beg the question as to how and with what means Rearden would have available to defend himself against improper appropriation, whether by government action or private espionage. Anarchism’s PDA’s might have been available to Rearden, but they are not universally available to “citizens” (which also can’t exist in your world) who have not already prospered sufficiently to buy protection.

not begging any question in opposing anti-competitive grants of privilege by a criminal gang.

In your second response to patents, you neglect to mention that such disclosure was ON CONDITION of limited monopoly, and therefore cannot be fairly withdrawn after disclosure.

The state has no RIGHT to penalize ME for some agreement it made with Rearden. I didn’t agree to this stupid bargain.

Wildberry August 25, 2011 at 12:40 pm

@Stephan Kinsella August 25, 2011 at 12:11 pm

not begging any question in opposing anti-competitive grants of privilege by a criminal gang.

Yes, no “I hate the State” emotional rhetoric here…

The state has no RIGHT to penalize ME for some agreement it made with Rearden. I didn’t agree to this stupid bargain.

Remember, the Crusoe device is a fantasy, not a superior lifestyle. Your “nobody has a right to tell me what I can’t do” is infantile, much less an acknowledgement of the economic consequences of the policies you advocate.

Taken literally, what you say here about your right to exempt yourself from any institution you specifically and personally did not agree to can only be understood that you have the right to individually and personally refuse to acknowledge the property rights of others. I am thankful that things don’t really work the way you would choose, if you have really thought them through at all.

I think you are a minister of chaos, somewhere on the backside of socialism and barbarism. Thank goodness you are insignificant in the larger scheme of things.

Stephan Kinsella August 25, 2011 at 1:16 pm
not begging any question in opposing anti-competitive grants of privilege by a criminal gang.

Yes, no “I hate the State” emotional rhetoric here…

What is your argument? It is not “emotional” to accurately identify the nature of the state or its legislature: they are criminals: meaning, they collude and collaborate to systematically invade the property rights of innocent people.

The state has no RIGHT to penalize ME for some agreement it made with Rearden. I didn’t agree to this stupid bargain.

Remember, the Crusoe device is a fantasy, not a superior lifestyle.

The fictional “social contract” is a fantasy. I did not agree to your socialist schemes.

Your “nobody has a right to tell me what I can’t do” is infantile

You are dishonest here, since I did not even imply the silly notion that there are NO limits on my actions. You are like other statists: dishonest or stupid. You use the analogy of “contract” to imply people are bound by things; when people point out that they did not agree, then you switch your tone to natural law type arguments .Well that does not support IP either. Prevaricator.

Taken literally, what you say here about your right to exempt yourself from any institution you specifically and personally did not agree to

I did not imply this; I only said someone is not bound to an agreement that htey did not agree to. Agreements derogate from background rights. We are bound to the background rights by their nature, not by any agreement. So whchi is it? is IP by agreement, or is it a natural right? You are prevaricator.

I think you are a minister of chaos, somewhere on the backside of socialism and barbarism. Thank goodness you are insignificant in the larger scheme of things.

What IS the “larger scheme of things,” o socialist asshole?

Wildberry August 25, 2011 at 2:45 pm

The “larger scheme of things” is a metaphor for social relevance.

You are relevant only as a negative example of a rabid ideologue.

nate-m August 25, 2011 at 12:24 pm

Rearden chose to keep the formula a secret.

You can’t choose to keep a patent a secret. Which is kinda what the point is behind the statement of “The example with Rearden Metal actually refutes itself.” and relates directly to what Stephan is talking about.

In order to gain access to the monopoly privileges that patents provide you must first register your idea with the government. When your patent is granted then the documentation surrounding the patent application, as well as the patent itself, becomes public domain.

So in the book the evil government guy forced Rearden to sign over his invention to the government and reveal it’s secrets.

In the real world either it would of either been:
1. The invention was already public domain and Rearden would of been signing away his right to sue his competitors for producing Rearden metal,
or
2. It would be a trade secret with no special rights or privileges to sign away. He would of merely surrendered some sort of documentation describing the invention. No signing necessary.

In the real world if the government wanted to ‘steal’ a patented invention they would intercept it at the patent application stage (prior to the documentation being public domain) and forbid you from using your invention in the name of ‘public defense’ or some other such nonsense.

Wildberry August 25, 2011 at 12:51 pm

@nate-m August 25, 2011 at 12:24 pm

I assume you meant “what is otherwise patentable”, since securing a patent on something REQUIRES disclosure. It is only where a patent is not secured that trade secret laws come into play. But hey, being the egalitarian you are, you oppose those too!

1. Also, being in the “public domain” implies that, since it cannot be owned by anyone, Rearden would not have the right to sue anyone for using it.

2. What he would be signing away is his right to maintain secrecy as a right of ownership; i.e. exclusive use and control against “improper means” used to acquire it.

In the real world, the eventual market value of every invention may not be obvious at the time of invention. The only plausible reason the “government” would want to steal an invention is to give a monopoly to someone else, likely a principle to its agency. If that was not the case, then the “government” could simply refuse to grant a patent.

You seem to imply that the “government” has some assumed purpose in keeping innovation off the market. Where does that fantasy come from, if not from mercantilism, which I think everyone here already abhors?

Other than that, your analysis is flawless.

John Donohue August 25, 2011 at 12:41 pm

@Wildberry,

Just a comment, take it or leave it: It can be helpful if you realize Mr. Kinsella’s position is not meant to apply to the real world. There can never be civilization/capitalism without IP. So he is just playing a parlor game with his upside-down constructs. You are arguing with reason based on respect for conforming to reality, his position is grounded in the void. Since he does not need to contend with reality, he can rationalize anything, including his thump thump thump thump formulations of absurdity (anti-competitive; protectionist; monopoly; privilege.)

I won’t speculate on his personal motives or agenda. However, it is fair for me to posit, as I did in the first post above, that this silly anti-IP game is just a smokescreen for the promotion of anarchy. Under anarchy, “IP” is a moot point. There are no rights and no property except under the primitive scope of gang protection, like the Mafia. In that world “IP” is a laughable fairy tale people once upon a time took seriously. Mr. Kinsella can back me down quite easily by declaring he is not an anarchist, if that be the case.

Wildberry August 25, 2011 at 12:57 pm

John,

I choose to take it.

Note that Kinsella would call himself a “Rothbardian Anarchocapitlist”, which he apparently believes is the only form of principled libertarian. I think that means that the rest of the world, which includes about 99.9% or more, have simply not seen the True light as yet.

I once called him an ideological extremist, and he took it as a complement. Enough said.

John Donohue August 25, 2011 at 1:17 pm

Anarcho-capitalism is a classic contradiction in terms, and moreover an excellect example of the fallacy of The Stollen Concept identified by Ayn Rand.

Stephan Kinsella August 25, 2011 at 1:27 pm

Compliment, not complement, you illiterate.

John Donohue August 25, 2011 at 1:57 pm

Mr. Kinsella once slammed me with insults for a typo after which I pointed out he had bungled my name several times. The silence, after that, was deafening. Lord, thank goodness he lives in a glass house.

Wildberry August 25, 2011 at 2:51 pm

@Stephan Kinsella August 25, 2011 at 1:27 pm

So, your wounding retort is that I spell badly?

At least I don’t nod off while trying to be relevant:

http://www.blogger.com/comment.g?blogID=12505562&postID=4760669244869537862

Peter Surda August 25, 2011 at 1:08 pm

John,

There can never be civilization/capitalism without IP.

Since IP is an incoherent and typically also self-contradictory construct, this sentence is equally meaningless.

Stephan Kinsella August 25, 2011 at 1:19 pm

I am so glad Objectivist statists like you do not use the term libertarian, and that an increasing number of libertarians realize your brand of Objectivism and libertariansim are incompatible. Your views are disgusting.

Just a comment, take it or leave it: It can be helpful if you realize Mr. Kinsella’s position is not meant to apply to the real world.

There was no real world prior to 1790? No creativity, no invention, no innovation, art, literature? Hunh.

There can never be civilization/capitalism without IP.

Good “argument”. Not.

this silly anti-IP game is just a smokescreen for the promotion of anarchy.

This is false. Minarchists also have good reason to oppose IP.

Under anarchy, “IP” is a moot point. There are no rights and no property except under the primitive scope of gang protection, like the Mafia.

Like all orthodox Objectivists, you are truly a mentally stunted idiot. These are groundless, anti-intellectual assertions.

John Donohue August 25, 2011 at 2:01 pm

Non-denial denial.

Chris Rhodes August 25, 2011 at 1:34 pm

There can never be civilization/capitalism without IP.

Yes, I can see why threatening violence against people who happen to use their property in the same manner that you use your property is the height of “civilization” and “capitalism”.

Peter Surda August 25, 2011 at 1:06 pm

Imaginary Berry,

Rearden chose to keep the formula a secret.

Let me quote:

“Yes, I suppose I should explain,” said Dr. Ferris, “that we wish to get your signature early in the day in order to announce the fact on a national news broadcast. Although the gift program has gone through quite smoothly, there are still a few stubborn individualists left, who have failed to sign— small fry, really, whose patents are of no crucial value, but we cannot let them remain unbound, as a matter of principle, you understand. They are, we believe, waiting to follow your lead. You have a great popular following, Mr.
Rearden, much greater than you suspected or knew how to use. Therefore, the announcement that you have signed will remove the last hopes of resistance and, by midnight, will bring in the last signatures, thus completing the program on schedule.”

Besides, let’s assume that it was indeed secret. He could have avoided disclosure by playing the Farnsworth card: “It came to me in a dream and I forgot it in another one.”

It’s fiction anyway.

Tyrone Dell August 25, 2011 at 7:56 am

Objectivism is just the labor theory of value interpreted with a “nice” set of ethics and morals that leads it down a path similar to Capitalism (instead of Marx’s path towards Socialism).

Too bad the labor theory of value was proved incorrect a century ago. Its like they’re right on most things but for all the wrong reasons. And when they’re wrong they’re spectacularly wrong like in the case of IP.

Chris Rhodes August 25, 2011 at 12:06 pm

When I think about Rand and her backwards beliefs on IP, one phrase from Atlas Shrugged comes to mind:

when you see that in order to produce, you need to obtain permission from men who produce nothing

Sounds quite a bit like today’s patent trolls, doesn’t it?

Michael A. Clem August 26, 2011 at 11:05 am

You know, I’m not fully convinced that a person shouldn’t have some type of protection for intellectual works or designs and such. But the arguments of the anti-IP crowd are compelling when discussing how IP interferes with actual, material property, and issues of non-scarcity and such.
On the other hand, pro-IP people seem to argue for some non-existing IP law that doesn’t actually exist, and given the status quo, may never exist, except in some fantasy of some just or Objectivist government.

So I feel like I’m being forced into a false dichotomy, either FOR the protection of intellectual works or AGAINST the protection of intellectual works, when I believe there are more amenable options that both sides might actually agree with, at least to some degree.
Now, you guys can choose to make constructive arguments, or you can keep engaging in silly namecalling.

Wildberry August 26, 2011 at 12:09 pm

I am reading a book by William Patry which I think takes the position you feel you are in.

It is called “Moral Panics and the Copyright Wars”.

The point is that it is not an either or situation, and casting it as such does in fact miss the point.

Copyright is a law, and as such it is designed to produce a desirable outcome with the least harm. The guiding principles upon which copyright laws specifically, and IP laws in general have been hijacked by mercantilist interests, but that does not mean the utilitarian principles upon which they are derived are not legitimate.

Making that distinction is impossible for ideologues on either side of this debate. What goes on here is captured in the title of the book, and nothing more. To actually address the issue rationally, one must be capable of distinguishing principle from rhetoric. That is much more difficult and exacting than simply making folk devils of the other side. It is beyond Kinsella’s reach I’m afraid.

Stephan Kinsella August 26, 2011 at 1:35 pm

Patry is confused, as you are (I discuss Patry’s confused and unprincipled views here). Still, Patry is better than most unthinking defenders of the status quo (no offense, you).

Copyright is a law, and as such it is designed to produce a desirable outcome with the least harm.

This is ridiculous. Just because something is “a law”–i.e., an enforced statute or legislation–does not mean it is “designed” to do good. What about the drug war, taxes, and the like? They are “laws” but they are not “designed” to produce good consequences.

The guiding principles upon which copyright laws specifically, and IP laws in general have been hijacked by mercantilist interests,

What a surprise! But it was not really hijacked–it originated in censorship and mercantalism and brutality.

but that does not mean the utilitarian principles upon which they are derived are not legitimate.

Nonetheless, they are not legitimate.

Wildberry August 26, 2011 at 4:27 pm

@Stephan Kinsella August 26, 2011 at 1:35 pm

Patry is confused, as you are (I discuss Patry’s confused and unprincipled views here). Still, Patry is better than most unthinking defenders of the status quo (no offense, you).

Yes, anyone who disagrees with you is confused. I’ll let Patry speak for himself:

What you [Stephan] really mean is that I don’t have the same view of copyright as you do. My views are clear and coherent, you just don’t like them. My view is that copyright in common law countries is entirely positive law and was created in order to further socially useful goals.

In other words, as I have been saying here for some time, ultimately IP legitimacy is fundamentally a utilitarian argument; that is, economic policy. All positive laws purport to serve socially useful goals, i.e. trespass and murder statutes are not “wrong” because they are embodied in positive law.

“Copyright is a law, and as such it is designed to produce a desirable outcome with the least harm.”

This is ridiculous. Just because something is “a law”–i.e., an enforced statute or legislation–does not mean it is “designed” to do good. What about the drug war, taxes, and the like? They are “laws” but they are not “designed” to produce good consequences.

There you go again with that broad brush approach. As I said earlier today, one measure of wisdom is the ability to distinguish one thing from another.

You apparently cannot distinguish “all laws” from “a specific aspect of a particular law”. They are not the same thing. Nonetheless, I agree, a law’s mere existence is not sufficient to prove the consequences of it are all good. And from this obvious truth we should conclude….what?

“The guiding principles upon which copyright laws specifically, and IP laws in general have been hijacked by mercantilist interests,”

What a surprise! But it was not really hijacked–it originated in censorship and mercantalism and brutality.

Your continued misuse of the historical record is just part of your ongoing attempt to hijack the facts to suit your conclusions.

Just for the record, “patent” originated from “open letter”, meaning that a wax seal was not broken in order to read its contents, and denoted a decree that was intended to be read “openly”, as contrasted to a confidential memorandum under seal. Patents and copyrights, seem to have originated in Venice; the Venetian Republic issued the first patent to a printer in 1469. Your recounting of the British copyright laws came nearly 100 years later, in 1556, and ended in 1694. The Statute of Anne, in 1710 was a RESPONSE to the censorship nature of the Stationers’ Company grants, and vested copy rights in the hands of authors, not printers. This statute is the foundation of American copyright laws, not the “censorship” you continually misstate it to be. But hey, accuracy is not your goal; I get that.

You are just wrong about the “origin” being in censorship. Censorship was an objective of the Crown that was met by hijacking the source of dissemination (printers); i.e. it was the use of state coercion powers to meet specific state objectives, which were later overturned by that same state apparatus under different leadership. (i.e. See Merges, Menell, Lemley, “Intellectual Property in the New Technological Age”)

Likewise, as with a number of areas in contemporary times, special interests have colluded with the legislature to create mercantilist privileges based upon an original statutory scheme that served a legitimate purpose. The best example in modern times for copyright is CTEA. But because the term was unreasonably extended by this act does not necessarily imply that the term should be rolled back to zero, either. It should not be.

Instead the preferential privileges of special interests which harm the general population should be eliminated, and IP should adhere more closely to the primary goal of protecting individuals from unreasonable interventions. The real issue is regarding what is reasonable, but you apparently cannot hold that thought.

“but that does not mean the utilitarian principles upon which they are derived are not legitimate.”

Nonetheless, they are not legitimate.

Are too. So there.

Stephan Kinsella August 26, 2011 at 4:58 pm

I’ll let Patry speak for himself:

What you [Stephan] really mean is that I don’t have the same view of copyright as you do. My views are clear and coherent, you just don’t like them. My view is that copyright in common law countries is entirely positive law and was created in order to further socially useful goals.

I have replied in detail already to Patry here: http://blog.mises.org/10607/moral-panics-and-the-copyright-wars/#comment-593774. In short: he is flat-out wrong, as you are.

In other words, as I have been saying here for some time, ultimately IP legitimacy is fundamentally a utilitarian argument; that is, economic policy.

“in other words”? this conclusion does not follow from Patry’s confused, unprincipled, utilitarian approach. So what if HE is utilitarian, or you are? That does not mean IP legitimacy comes down to utilitarianism. Not all of us are unprincipled.

All positive laws purport to serve socially useful goals,

How about laws saying Jews have to register with the state, and then be killled?

i.e. trespass and murder statutes are not “wrong” because they are embodied in positive law.

Right. To the contrary, the state coopts some legitimate laws and makes them part of the fabric of positive law, to lend state positive law and authority some legitimacy, so that when the state enacts other, illegitimate, laws, they seem legitimate too–and this tactic works, by fooling gullible naifs like you.

Just for the record, “patent” originated from “open letter”, meaning that a wax seal was not broken in order to read its contents, and denoted a decree that was intended to be read “openly”, as contrasted to a confidential memorandum under seal.

Right. and these patnets were used to grant monopolies e.g. to authorize Francis Drake to engage in open-seas piracy. What a great legacy for patents! The insane things you support. Or do you? Nobody knows. YOu guys are squirrelly.

The Statute of Anne, in 1710 was a RESPONSE to the censorship nature of the Stationers’ Company grants, and vested copy rights in the hands of authors, not printers. This statute is the foundation of American copyright laws, not the “censorship” you continually misstate it to be. But hey, accuracy is not your goal; I get that.

Its roots do lie in censorship and the democratization/institutionalization of these rights simply made authors and publishers the ones in bed with the state who could now enforce censorship-like power agains their victims–as has been recounted many times, e.g. the BANNING of the sequel to Catcher in the Rye by the courts.

You are just wrong about the “origin” being in censorship. Censorship was an objective of the Crown that was met by hijacking the source of dissemination (printers); i.e. it was the use of state coercion powers to meet specific state objectives, which were later overturned by that same state apparatus under different leadership. (i.e. See Merges, Menell, Lemley, “Intellectual Property in the New Technological Age”)

The origin of copyright lies in censorship; now the right is institutionalized and democratized, allowing private enforcers to use the state apparatus to censor thought. Trademark is used for this purpose too now. Sorry if this truth upsets you. It would bother me too, if I was so confused as to endorse anything like copyright law.

Instead the preferential privileges of special interests which harm the general population should be eliminated, and IP should adhere more closely to the primary goal of protecting individuals from unreasonable interventions. The real issue is regarding what is reasonable, but you apparently cannot hold that thought.

What is reasonable is for people to use their own property without molestation by others hiding behind the monopoly grant of copyright.

Wildberry August 27, 2011 at 1:36 pm

@Stephan Kinsella August 26, 2011 at 4:58 pm

I have replied in detail already to Patry In short: he is flat-out wrong, as you are.

You responded to his dust jacket by simply restating your ridiculous conclusions and simplistic reliance on ancap extremism. Ho hum.

“in other words”? this conclusion does not follow from Patry’s confused, unprincipled, utilitarian approach. So what if HE is utilitarian, or you are? That does not mean IP legitimacy comes down to utilitarianism. Not all of us are unprincipled.

You keep pretending you have “discovered” some magic “principles” that explain everything. Your principles explain “everything” by excluding anything that doesn’t fit. “Principled” positions based on slogans tend to be like that.

“All positive laws purport to serve socially useful goals,”

How about laws saying Jews have to register with the state, and then be killled?

I don’t believe even you think this is an argument of any kind. Like I have said, a measure of wisdom is the ability to distinguish one thing from another. Do you believe all laws are equivalent in their purpose? [insert Yiddish insult about lack of wisdom here]

To the contrary, the state coopts some legitimate laws and makes them part of the fabric of positive law, to lend state positive law and authority some legitimacy, so that when the state enacts other, illegitimate, laws, they seem legitimate too–and this tactic works, by fooling gullible naifs like you.

If wisdom is lacking in those who cannot tell one thing from another, we should certainly not take our direction from the unwise. Fortunately, the average 5th grader can tell the difference without your “help”.

Right. and these patnets were used to grant monopolies e.g. to authorize Francis Drake to engage in open-seas piracy. What a great legacy for patents! The insane things you support. Or do you? Nobody knows. YOu guys are squirrelly.

There is nothing here even intelligible to respond to. Since patents were a form or royal decree, then I guess you can pick any of those you don’t like, and then claim that all decrees are “dripping with evil” and we should all hate patent law because “we must hate the State”. I’m coming to realize you are mostly a sloganeer, much like P.T. Barnam.

“The Statute of Anne, in 1710 was a RESPONSE to the censorship nature of the Stationers’ Company grants, and vested copy rights in the hands of authors, not printers. This statute is the foundation of American copyright laws, not the “censorship” you continually misstate it to be. But hey, accuracy is not your goal; I get that.”

Its roots do lie in censorship and the democratization/institutionalization of these rights simply made authors and publishers the ones in bed with the state who could now enforce censorship-like power agains their victims–as has been recounted many times, e.g. the BANNING of the sequel to Catcher in the Rye by the courts.

Like I said, accuracy is not your shtick. Let’s just grant you the latitude with the facts so you can drive your truck through it, and say that it was, and that there is some nefarious reason behind Queen Anne’s true motives for her to deny the lobbying efforts of the printer’s guild to reinstate their monopoly privilege and opt for placing property rights in the hands of authors. First, if censorship was her plan all along, it apparently was very bad plan, given the results. Second, what if it was designed for censorship purposes? How is that relevant to the instant issue of whether such rights are legitimate now?
Nice try, but like much of your attempts to hijack the facts to suite your purposes, (all propagandists and sloganeers engage in this practice) you are simply wrong, which anyone can easily determine for themselves if they just make an effort.

When the Venetian State issued the first patent decree system in the 15th century, the recipients of the privilege were unknown. It was a reward announced in advance to anyone who presented an innovation that served a socially valuable purpose. The first mention of patents in writing seems to be in Aristotle’s Politics from the 4th century BC. Someone called Hippodamus, according to Aristotle, called for a system of rewards to those who discover things useful to the state, which Aristotle opposed. The methods of profiting from invention was controlled through the guild system during the Middle Ages, until the time that guilds were no longer prominent and governmental systems of patent rights emerged.

As to your interpretation of the Salinger case, you can characterize it the way you do only because you deny the very existence of copyrights at the outset. The facts are that given the existence of copyrights, the case reached a just outcome. You simply think it is wrong to prevent the publication of derivative works because you oppose copyrights in the first place. You know full well it has nothing to do with censorship. If Catcher was private property, then Salinger has a right to secure his rights to it, even if you do not agree with his decision (or his heirs, as facts would have it). You insistence that it was the rights of Colting that were violated is simply the infantile inversion of the rights analysis that Mises describes here: http://mises.org/libprop/lpsec5.asp

The socialists must admit there cannot be any freedom under a socialist system. But they try to obliterate the difference between the servile state and economic freedom by denying that there is any freedom in the mutual exchange of commodities and services on the market. Every market exchange is, in the words of a school of pro-socialist lawyers, “a coercion over other people’s liberty.” There is, in their eyes, no difference worth mentioning between a man’s paying a tax or a fine imposed by a magistrate, or his buying a newspaper or admission to a movie. In each of these cases the man is subject to governing power. He’s not free, for, as professor Hale says, a man’s freedom means “the absence of any obstacle to his use of material goods.”[6] This means: I am not free, because a woman who has knitted a sweater, perhaps as a birthday present for her husband, puts an obstacle to my using it. I myself am restricting all other people’s freedom because I object to their using my toothbrush. In doing this I am, according to this doctrine, exercising private governing power, which is analogous to public government power, the powers that the government exercises in imprisoning a man in Sing Sing.

And leads you to ridiculous statements such as this:

The origin of copyright lies in censorship; now the right is institutionalized and democratized, allowing private enforcers to use the state apparatus to censor thought. Trademark is used for this purpose too now. Sorry if this truth upsets you. It would bother me too, if I was so confused as to endorse anything like copyright law.

Let’s simply ignore the case law that holds that First Amendment rights of freedom of speech are one of the fundamental checks on the scope and terms of copyrights. That is, you might say, simply an inconvenient fact to your ultimate conclusion: “We have IP because we have the State.”

What is reasonable is for people to use their own property without molestation by others hiding behind the monopoly grant of copyright.

People can and do use their own property without molestation by others, and have the right to utilize the full force and power of government coercion to secure that right, a monopoly right secured to every owner of private property. Do you propose to change that fundamental principle, oh “principled” one?

Stephan Kinsella August 26, 2011 at 1:31 pm

Your approach is a rational one, Clem–but it helps to decide who the burden of argumentation is on. You can see that the IP laws now are prima facie violations of real property rights. And you see that the IP advocates are incoherent and unclear: they want to say they don’t favor existing IP law; yet they oppose its repeal. So it’s like they want to avoid appearing like they favor it, even though they effectively do favor it in their opposition to repeal. And when you ask them what IP system they do favor, they never give a straight answer. Given this state of affairs the only rational thing to do is to: oppose state IP law; and oppose any lofty IP proposals that are not adequately specified and defended. Until the IP advocates do this, we have to reject their claims.

Wildberry August 26, 2011 at 3:28 pm

@Stephan Kinsella August 26, 2011 at 1:31 pm

it helps to decide who the burden of argumentation is on.

As if you have no burden. My God, man, do you think the prosecution makes their case and the trial is over?

You can see that the IP laws now are prima facie violations of real property rights.

Perhaps Patry is right, that it is not about property rights at all. How ironic. In any case, you are walking on your hands and believe up is down. It is the content, and not the medium. This line that “your private property takes my liberty” is ludicrous.

And you see that the IP advocates are incoherent and unclear: they want to say they don’t favor existing IP law; yet they oppose its repeal.

The master of false dichotomy speaks! As if wholesale acceptance or outright repeal are the only possible options…

So it’s like they want to avoid appearing like they favor it, even though they effectively do favor it in their opposition to repeal.

If you aren’t with us, you are against us!!

And when you ask them what IP system they do favor, they never give a straight answer.

I favor a system in which the of IP rights are no more than needed to secure the rights to knowledge, learning and prosperity by individuals. Less is more.

That is just a little bit harder to grasp than “I hate the State!” Sorry.

Given this state of affairs the only rational thing to do is to: oppose state IP law; and oppose any lofty IP proposals that are not adequately specified and defended.

So you would support IP proposals that are adequately specified and defended? So seem to be weakening!

Until the IP advocates do this, we have to reject their claims.

Who is this “we”, Kimosabe?

Stephan Kinsella August 26, 2011 at 4:27 pm

“I favor a system in which the of IP rights are no more than needed to secure the rights to knowledge, learning and prosperity by individuals. Less is more.”

LOLwhut.

Michael A. Clem August 26, 2011 at 12:35 pm

and IP laws in general have been hijacked by mercantilist interests, but that does not mean the utilitarian principles upon which they are derived are not legitimate.
So all we have to do is reform IP law and we’re golden? Now it’s starting to sound like a minarchism vs anarchism argument. Why do you think any reasonable IP reform can be passed and not be prevented or hijacked by the corporate interests?

Stephan Kinsella August 26, 2011 at 1:36 pm

you’re starting to get it, to see through their nonsense. Good on ya.

Wildberry August 26, 2011 at 2:42 pm

Michael,

When you say “all we have to do” you seem to be trivializing the issue. It is like saying “all we have to do is reform the Fedeal Reserve System” etc.

In that regard, it is to some degree an anarchism/minarchism argument in that in the former there is no other possibility except complete anhilation of established laws because they are associated with the dreaded state, while in the latter, it is not necessary to reject entirely and absolutely. The former is a “blank paper” view, while the latter is a “rewrite” view.

So to some degree, I think you are correct.

Also, to assume that reform is impossible is a defeatist view. Liberty is daily won and defended, not some event that marks the “beginning” of liberty, and that lasts forever more. I think it is hard work, not a natural state that maintains itself.

Michael A. Clem August 26, 2011 at 3:49 pm

At least with the Federal Reserve, I don’t see anybody arguing that it is part of a system of rights protection. And it would be silly to think that government will disappear overnight. There’s going to be plenty of leftovers/carryover from the previous system for an anarchistic system to start from, so it would be far from a clean slate/reboot. For example, if we were to privatize the roads, the existing roads would not disappear, but would still exist. Only over time would a private anarchist system start to radically depart from the existing system, as the differences accumulate.

As for our topic, I seriously doubt it will be settled in the court system, but rather on the margins, where producers and consumers struggle with the issues of downloading and copying music, movies, books, computer programs, etc. Reforming the law may not be impossible, but it would really be a matter of treating the symptoms, and not the root cause of the problem.

Ideally, I’m beginning to think some form of private registration of creative works would be the best starting point. Sort of like the music associations ASCAP and BMI. Proper accreditation to the creator is the starting point of taking any justifiable legal remedies, even in anarchism. But the question remains: what remedies are, in fact, justifiable?

Wildberry August 26, 2011 at 6:25 pm

@Michael A. Clem August 26, 2011 at 3:49 pm

At least with the Federal Reserve, I don’t see anybody arguing that it is part of a system of rights protection. And it would be silly to think that government will disappear overnight.

With all due respect, it is silly to think that some form of central government will not exist at all, as long as we are a technologically advanced society in a global economy, if for no other purpose than to protect ourselves against conquest and invasion. The “vision” that somehow we are going to evolve ourselves into some form of Garden of Eden is laughably naive.

There’s going to be plenty of leftovers/carryover from the previous system for an anarchistic system to start from, so it would be far from a clean slate/reboot. For example, if we were to privatize the roads, the existing roads would not disappear, but would still exist. Only over time would a private anarchist system start to radically depart from the existing system, as the differences accumulate.

I get your vision that we gradually chip away at the status quo, and somewhere between “here” and “there” we reverse the trend of central government expansion and begin a process of reduction to something much less pervasive than what exists today. What I fail to see, however, is an end state where we are just a loose collection of individuals without unifying structure; (read anarchism). This “anarchist system” will be a system nonetheless, and once you acknowledge this fact, you are left with the central question; what system?

As for our topic, I seriously doubt it will be settled in the court system, but rather on the margins, where producers and consumers struggle with the issues of downloading and copying music, movies, books, computer programs, etc. Reforming the law may not be impossible, but it would really be a matter of treating the symptoms, and not the root cause of the problem.

Historically, the courts “caught up” with people, they did not get out in front and lead the way, so I agree with you if I catch your meaning. What you seem to imply as the “root cause” is not altogether clear to me.

Patry has a fresh take on this, in my view. He presumes that consumers are king, much like Mises argues. He distinguishes between the effort to “control” the choices that consumers have, and the effort to “serve” the wants of consumers through innovation of business models. He uses the example of the music industry and Napster as an illustration of where the industry tried to prevent how consumers wanted to consume, rather than adapting to a business model that accommodated their evolving desires.

Yet, he takes this position without denying the fundament principle that creators of “intellectual works” are entitled to some security of remuneration for their efforts. It is a distinction between mercantilism and free markets; subtle and sometimes elusive.

Ideally, I’m beginning to think some form of private registration of creative works would be the best starting point. Sort of like the music associations ASCAP and BMI. Proper accreditation to the creator is the starting point of taking any justifiable legal remedies, even in anarchism. But the question remains: what remedies are, in fact, justifiable?

Remedies follow the design of laws, which as Hayek said, is as much a question for economists as lawyers. Ultimately IP is a matter for utilitarian analysis, as is economic policy. So for me the answer to the question of appropriate remedies can only be answered by being clear as to the intended consequences of the economic policies upon which the laws are formulated.

I think this inquiry leads to the question of the fundamental guiding principles upon which IP laws depend; they are primarily aimed at the rights of individuals to obtain and utilize the products of creative work, and secondarily aimed at securing the rights of producers to internalize the benefits of their creations. This is essentially a cooperative arrangement, consistent with the fundamental nature of a division of labor society.

Stephan Kinsella August 26, 2011 at 7:18 pm

“With all due respect, it is silly to think that some form of central government will not exist at all, as long as we are a technologically advanced society in a global economy, if for no other purpose than to protect ourselves against conquest and invasion. ”

You statist types always do this. You equivocate between state and government. Just b/c we need law and defense does not mean we need a state. But you leap from “government” needed for defense and law–which are private law institutions–to justify the statist artificial legislation that undergirds IP. Pathetic.

John Donohue August 26, 2011 at 3:51 pm

rearranging the deck chairs; completely moot under anarchism.

Michael A. Clem August 26, 2011 at 6:09 pm

I know it’s hard for Objectivists to understand how a legal system could operate without a government, but give it a try, will you? Check out common law or Merchant Law for examples that might open your eyes.

Wildberry August 26, 2011 at 6:32 pm

Michael,

The common law depends upon a governmental structure of enforcement. Anarchism presumes this is unnecessary, yet recreates the identical function in the concept of PDAs. When you examine the nature and consequences of private enforcement of victim’s rights, you quickly realize that a system of coercion not based on neutrality and protection of the rights of both victim and accused has its own set of problems. I think an honest analysis of this problem will lead you back to some model that involves neutral enforcement of rules, which in turn is analogous to government.

Michael A. Clem August 26, 2011 at 6:43 pm

Common law originally occurred primarly because the king and barons weren’t interested in the problems of common people. But over time, they took more interest, and eventually governments adopted much of the results of common law (but not the process of common law). Check out Charles Rembar’s The Law of the Land (http://www.amazon.com/Law-Land-Evolution-Legal-System/dp/0671243225). And as far as I can tell, Rembar is no libertarian, so I’m not making a biased recommendation here.
PDA’s are one hypethotical construction and a convenient simplification of the anarchistic legal system–any actual legal system in anarchism will of course be more complex than that.
Government is far from being a neutral arbiter and enforcer of rules. Third party arbitration and mediation is necessary for unbiased dispute resolution, but the coercion of a governmental legal system undermines that neutrality.

Wildberry August 27, 2011 at 2:05 pm

Michael,

Your biases are overwhelming your your reasoning.

I don’t know this particular book, but I can’t tell if you mean to refer to the fact that the courts were, before the Kings courts of equity, run primarily by the Church. Inequities handed down there were appealed to the King’s court of equity.

In this way legal and equitable remedies co-evolved. This evolution, as recorded in the case histories, served as presidents upon which cases could be deciced based on the reasoning that prior courts employed to reach a legal or equitable conclusion under similar facts. This became what is now known as stare decises. The body of laws that emerged from this historical process is what we now refer to as common law, as distinguished from statutory law. Much statutory law is derived from common law; i.e. criminal statutes.

PDA’s, in my view, are just a hypothetical construction which approximates this evolution, and likely would arrive at a very similar system to the one we have now. As soon as a PDA pursued pursued victim’s rights, a counterforce PDA will advocate for the rights of the accused, and you quickly arrive at an adversarial system of justice much like we have now.

This is why I sometimes refer to Ancap as infantile. It is not well thought through.
Even the “father” of Ancap, Murray Rothbard, said that a code of laws would have to be worked out by future scholars.

I think we can presume that such a code would have some accommodation for rules of evidence and the like, which requires a neutral third party to adjudicate controversies associated with those rules, and presto, it looks like today’s court system.

Ancap is mostly an immature utopian fantasy that ultimately depends upon a “men are angles” presumption.

Michael A. Clem August 29, 2011 at 5:19 pm

The Church ran some courts, but they were not the whole of the system. And the King had little interest in legal affairs that didn’t directly involve him, until he started looking for more ways to bring the Barons under his power. More crimes were defined as “crimes against the king or kingdom”, so that he would have more power, not so that he could more effectively provide justice. And yes, as I said, governments adopted much of the common law results, but not the common law process, thus missing the point of how common law worked.

I think an anarchistic legal system would have a superficial similarity to today’s system–sure there would still be an adversarial system to some degree, and any court will have to have rules of evidence, i.e., what will be accepted as evidence–but none of this implies the necessity for a government. Nor am I supporting a utopian fantasy–if men WERE angels, there would be no need for dispute resolution at all. It seems to me that the utopian fantasy is that the best way to achieve peace is to give some group of people the legal right to initiate force against other people.

Wildberry August 30, 2011 at 10:50 am

@Michael A. Clem August 29, 2011 at 5:19 pm

More crimes were defined as “crimes against the king or kingdom”, so that he would have more power, not so that he could more effectively provide justice. And yes, as I said, governments adopted much of the common law results, but not the common law process, thus missing the point of how common law worked.

This statement characterizes the exchanges here on the subject; you take a very loose interpretation of history to make the conclusion you draw seem informed, while it is not. The common law process is operating vigorously today. Stare decisis is a doctrine still very much a part of the legal process. The fact that common law was encoded in statutory law does not change this fact. On the other hand, some laws, like IP laws for example, did not arise entirely through the common law process, neither did “Obama Care”. There is a distinction here you seem to miss. Positive law is derived both from common law and statutory law, and for the most part, their origins and history are still discernable today.

Since the King, in the periods you seem to be referring to, was the source of law and order in the kingdom, all crimes were eventually and ultimately crimes against the crown. Power, at least in this context, was what defined “justice”, even though you and I may object to the legitimacy of this or that law from the perspective of contemporary ethics. If you understand this, then you understand the point Donohue is making; it is part of the natural order to have a superior force emerge as the source of legal doctrine and enforcement. The question for civilization is, and has always been, what “government” shall prevail.

I think an anarchistic legal system would have a superficial similarity to today’s system–sure there would still be an adversarial system to some degree, and any court will have to have rules of evidence, i.e., what will be accepted as evidence–but none of this implies the necessity for a government.

I find this statement curious. By “adversarial system” and “rules of evidence”, aren’t you implying a common doctrine within some form of jurisdiction, such that everyone would comply with those systems and rules? If so, then the distinction between the concept of an “anarchistic legal system” and a form of self-government seem pretty similar. At what point do these similarities become an identity called “government”?

Nor am I supporting a utopian fantasy–if men WERE angels, there would be no need for dispute resolution at all. It seems to me that the utopian fantasy is that the best way to achieve peace is to give some group of people the legal right to initiate force against other people.

I respectfully disagree. Do you have difficulty with the concept of “neutral third-party” which adjudicates fairly with respect to BOTH victim and accused? I presume not, but where we apparently differ is that you seem to believe a monopoly on enforcement of this “fairness doctrine” can operate in a system where this monopoly somehow exists in private, for-profit institutions. This concept must presume the best of intentions and conduct from all involved in order to avoid the inevitable imbalances in the resources available to one side of the dispute. This imbalance will always result in a “might makes right” institutional bias, which you simply assume away. This is why I view your vision as utopian. It is entirely more rational to approach the problem by designing a system that has limitations on the potential for abuse of power, which is essentially, at least in principle, what we have.

Your assumption that such a system is inferior to one in which justice goes to those with the power to defend their vision of it, is no more civilized than the Kings you deride above.

John Donohue August 26, 2011 at 10:26 pm

“A legal system without a government” is a null set. Legal systems adjudicate the violations of a citizen’s life and property from coercive intrusion or damage by another. With no government to employ coercion to deter or restrain the criminal and/or rectify a violation, the imaginary ‘legal system’ is impotent and in fact does not actually exist.

That eminently simple lock down argument is even saying too much. Just discussing it in the modality of “in some possible world” is giving it too much respect. The much more fundamental truth is this:

There is no path to reach “no government.” None. You can’t get there from here, from anywhere, not even in the wake of some titanic catastrophe the destroys all vestige of proper government in an area; the first thing that will reemerge is government.

All anarchists must face the fact that a government is that agency which possesses and maintains control over coercion in any given area. By definition this implies a MONOPOLY on the use of force. It is a natural monopoly.

Peter Surda August 27, 2011 at 1:55 am

John,

“A legal system without a government” is a null set. Legal systems adjudicate the violations of a citizen’s life and property from coercive intrusion or damage by another.

However, since governments must also consists of citizens (or people in general), the argument refutes itself. Getting a uniform does not give anyone the ability or authority to provide services to other people.

With no government to employ coercion to deter or restrain the criminal and/or rectify a violation, the imaginary ‘legal system’ is impotent and in fact does not actually exist.

Governments have neither any magical power nor any magical authority to do things other people do not have. Again, this is a self-refuting argument. Either government violates other peoples’ rights, or it is incapable of providing additional benefits, thus being either in contradiction with the ethical system based on individual’s rights or redundant.

All anarchists must face the fact that a government is that agency which possesses and maintains control over coercion in any given area.

This is, again, a self-refuting argument. If government’s reason for existence is a violation of other people’s rights, then why should it not be objected to?

It is a natural monopoly.

This invalidates the debate itself then. If it is a natural monopoly, it is pointless to debate the ethical or economic merits of it.

John Donohue August 27, 2011 at 12:36 pm

Debating the ethical and economic behavior of government is completely on point. Debating what a nation would be like without a government, since that cannot happen, is pointless.

To put it another way: whenever human beings interact, government exists and has a natural intrinsic monopoly on the use of coercive force. Those citizens under it had better establish an objective way to identify the proper delimiters of its powers and methods of constraining it to those limits.

Peter Surda August 27, 2011 at 1:40 pm

John,

Debating the ethical and economic behavior of government is completely on point.

… because an inner conviction defeats logic, right?

Debating what a nation would be like without a government, since that cannot happen, is pointless.

The concept of nation became popular around 18-19th century through the ideology of nationalism and was accompanied by changes of state forms. After that, it was promoted by propaganda. Prior to that, the concept of nation was unrelated to the concept of state. See wikipedia for references.

whenever human beings interact, government exists

Government exists whenever someone arrogates to himself the authority to initiate force against others, i.e. it requires involuntary interaction.

and has a natural intrinsic monopoly on the use of coercive force.

This is a non-sequitur. Also, it is evidently wrong. Anybody can use coercive force should they decide to. However, only governments have managed to persuade large chunks of population that they way they do it is legitimate.

Those citizens under it had better establish an objective way to identify the proper delimiters of its powers and methods of constraining it to those limits.

So, if someone starts shooting at you, stealing from you or raping you, you’re supposed to start musing about what level of rape, theft and mutilation is permissible?

Michael A. Clem August 29, 2011 at 3:32 pm

You prove my point about not being able to conceive of laws without government. But just because you cannot conceive it does not mean it is impossible. You say that there must be government because there is a natural monopoly on the use of force. This is an absurd argument. Any criminal can and does use force, so obviously, even when governments exist, there is no “natural” monopoly on the use of force.

Our problem is more subtle–how to prevent or respond to the unjust use of force.
Why granting one group of people the legal right to initiate force is supposed to solve this problem is one that has never been satisfactorily answered by Rand or Objectivists. If governments did not initiate force, then they would not be governments, but just another business providing security protection. How do Objectivists reconcile this contradiction? Not with any valid arguments, but by complaining that a society without legal force-initiators is absurd!

Furthermore, anyone can use defensive force when attacked, or come to the aid of a person who is attacked–this should certainly not be considered criminal, because, as LEO’s have proven time and again, they cannot be everywhere or always respond quickly enough when force is initiated.

The only tricky part is the use of retaliatory force, or force to provide restitution to a victim after the fact. In this case, and only in this case, investigation and a public trial are desirable to determine who the criminal is, and what is an appropriate means of restitution. I fail to see why only a government can do this, or even why a government can do this better than private, third party arbitration and mediation. To say that only government can deter or restrain criminals is to give governments too much credit for power and incorruptibility in a world where a monopoly on the use of coercion is an illusion at best. The real answer lies in a better understanding of human nature, and assuring criminals that not submitting to a trial, for example, will result in worse consequences than submitting. This is the value of the public trial, so that knowledge of the criminal and his activities are made public.

nate-m August 29, 2011 at 4:12 pm

If governments did not initiate force, then they would not be governments, but just another business providing security protection.

Just to be precise here:

You are talking about _state_ government. Which is a specific form of government that once modernized and ‘perfected’ in Europe and Asia (seems like it anyways) rapidly spread throughout the world to become the dominate form of government in 19th and 20th centuries. This was accomplished through military conquest and with the aid of mechanization.

Prior to this most of the world existed in a mostly anarchistic state for most of human history.

There are forms of government besides ‘state government’.

The only tricky part is the use of retaliatory force, or force to provide restitution to a victim after the fact. In this case, and only in this case, investigation and a public trial are desirable to determine who the criminal is, and what is an appropriate means of restitution.

This, generally, does not happen. Our justice system is not interested in using force for restitution. It instead focuses almost entirely on using force as punishment and deterrent.

Think about this:

If a man, the bread winner for the family, gets into a argument at a bar and then is murdered in the parking lot the government will seek out it’s murderer; provided there is a likelihood of successful apprehension. If they catch the murderer then they will sentence him to prison.

Were is the restitution for the family? It is no were to be seen. The state will neither force the criminal to compensate the family, nor will the sate compensate the family for their financial loss.

(There is a chance that if the criminal is wealthy that a family can go after him in a civil lawsuit, but even if successful the government will not guarantee payment. In addition it will instead take the property to pay for any outstanding taxes, further punishment, or fines in preference for itself over the family’s well being.)

In addition to this if the family refuses to pay taxes to support the criminal’s (and other’s like him) imprisonment then they can face the violence from the state themselves. They can lose their property. In addition to this if they resist the loss of liberty and property strong enough, they will face armed men sent to apprehend them.

So there is not only is there no restitution involved the family (and surrounding community) is forced to pay the state to keep the criminal contained in a prison for the rest of his life.

When you take a truly objective view of state government you will see that it is truly fucking nuts. The state only exists for it’s own benefit, not society’s.

The same thing happens when you examine IP objectively, also. But there is always going to be a group of people that refuse to see things as they are.

Wildberry August 29, 2011 at 6:31 pm

@nate-m August 29, 2011 at 4:12 pm

Prior to this most of the world existed in a mostly anarchistic state for most of human history.

I guess if you mean over the 500,000 years of human evolution, yes I suppose you are right. But I have to wonder why you think the first 450,000 years are relevant to any discussion of modern human society. It seems a romantic notion of the Garden of Eden, when in reality it must have been the precise opposite.

Were is the restitution for the family? It is no were to be seen. The state will neither force the criminal to compensate the family, nor will the sate compensate the family for their financial loss.

Again, precisely wrong. As you may remember from the OJ Simpson trial, the criminal trial imposes sanctions on the perpetrator (left undone in this particular case), but monetary damages are accommodated by civil action, in courts that are, wait for it, a part of the governmental coercive framework, which you acknowledge.

if successful the government will not guarantee payment

Again, wrong. Enforcement of judgments is part of the enforcement/coercion mechanism of government.

In addition to this if the family refuses to pay taxes to support the criminal’s (and other’s like him) imprisonment then they can face the violence from the state themselves.

One could rationally argue that if the “family” is going to avail themselves of the court system, and the prison system, they are going to have to pay for it in some way. One could view taxes in support of the justice system as insurance in the event you are personally victimized. Anyway, whether you personally think this is good or bad is interesting but irrelevant, given your otherwise upside down analysis of the facts.

The state only exists for it’s own benefit, not society’s.

As if any government can exist without the ultimate consent of the governed. I am too lazy to look up references for you, but this is all be covered by Mises.

Other than that, your analysis is flawless.

Stephan Kinsella August 29, 2011 at 7:47 pm

“One could rationally argue that if the “family” is going to avail themselves of the court system, and the prison system, they are going to have to pay for it in some way. One could view taxes in support of the justice system as insurance in the event you are personally victimized. ”

Horrible. One could view rape as a little exciting sex, too. What you say here is disgusting. The state monopolizes the court system and gives the family no choice but to use its system (and pay for it with their taxes) if they want to pursue any kind of justice. and you then say that when you force them to use this monopolized system you can tax them for the privilege and analogize it to private insurance! What chutzpah!

Wildberry August 30, 2011 at 11:47 am

@Stephan Kinsella August 29, 2011 at 7:47 pm
“One could rationally argue that if the “family” is going to avail themselves of the court system, and the prison system, they are going to have to pay for it in some way. One could view taxes in support of the justice system as insurance in the event you are personally victimized. ”

Horrible. One could view rape as a little exciting sex, too.

Yes, Stephan, one could. The question is do we? Do you?

What you say here is disgusting. The state monopolizes the court system and gives the family no choice but to use its system (and pay for it with their taxes) if they want to pursue any kind of justice.

And you object to this, why? This monopoly is not one that is maintained by rule of force, correct? We here in the US have the power to deconstruct the system in any way we choose, isn’t that correct? Just because you want to whine about not having it your way, doesn’t mean that you could not have it the way you wanted, if you were willing to do what is necessary, i.e. find/create enough support to get it done. (Thank God you and those of your myopic persuasion are an insignificant gnat in the overall scheme of things!)

and you then say that when you force them to use this monopolized system you can tax them for the privilege and analogize it to private insurance! What chutzpah!

By “force them to use” you mean vigilantism is fine by you? Everyone should be free to assemble their own “enforcement” as they please? You seem to have unlimited confidence that you will be the one to raise up the more effective thugs when you get in trouble.

Under the current system, an accused does not pay the entire cost of the court infrastructure, as the value is one of “justice for all”, not “justice to the highest bidder”, which is what you ultimately advocate. In your misguided vision, contestants first must contest which party’s thugs will control the process, and who’s “rules” will prevail.

As is typical of your analysis of what your advocate, you simply assume away the difficulties associated with your assertions, as if there can be no counterforce to interfere with your plans. You are irresponsible and naïve, or worse.

John Donohue August 29, 2011 at 4:09 pm

My use of “natural monopoly” is being met with confusion. I withdraw the term, but not my intention; I will try again.

There is no such thing as “no government.”

No matter what, in any circumstance, human beings will deal with coercion either by defending themselves or conquering. To the winner goes the appellation “government.” I tried to provide a list of alternative names as examples to show that “a government by any other name is still a government.” I am positing the term “government” as the generic concept/name for the entity in control of the application of force in a given area.

The idea that suddenly human nature will change per anarchists wishes, and people will voluntarily never again aggress against another is void. The minute there is an incursion, either that criminal is not blocked and HE becomes the government, or the attacked person/persons retaliate with the use of force against the aggressor and THEY become government.

So Michael Clem, go ahead and conceive all the laws you wish to. Without a government to enforce rights, they are null.

In a galaxy far far away there may be a civilization where incursions are so rare that government might be seen to have ‘withered away.” I hope that day comes on this planet. Currently, however, we have the opposite problem: establishing and maintaining the proper government that cannot aggregate power to itself by ITSELF initiating force, and on the other hand making sure it acts with powerful, swift, just retaliation in force to deter and detain aggressors.

If you still believe that given the current state of enlightenment of mankind this can be done with “no government,” ask yourself this. If there is ‘no government’, who/what is going to order/command/deter a person or entity from establishing itself as “a/the government?”

Stephan Kinsella August 29, 2011 at 4:24 pm

The pro-state-libertarians (and Objectivists) are frequently ambiguous and equivocal in their use of “government.” You use it as a synonym for the state sometimes, and then when we object you shift and use it as a synonym for any institution that provides legal services. Equivocation alert.

This is why we tend to use the word state, which is clearer. IF by “government” you mean any instiuttion of law and justice, we anarchist-libertarians obviously favor it, but we do not favor states. We have the perspicacity and honesty and economic literacy to recognize that an agency that arrogates to itself the monopoly power of justice will end up corrupting and perverting it. Duh. All monopolies are bad–duh.

John Donohue August 29, 2011 at 6:37 pm

No.

Anarchists are so obsessed with the word “state” going back a hundred years that it is you with the problem. You have zero flexibility to conceptualize wider. Objectivists know how to widen the concept or narrow it within context.

With your rigidity you cannot hold a conversation without subsuming anything you want under “state” which is a priori evil to you. When you drop the hammer on “state” the collateral damage and thunderous noise is so heavy all that remains are fantasy substitutions for government to save your credibility.

Stephan Kinsella August 29, 2011 at 7:50 pm

“With your rigidity you cannot hold a conversation without subsuming anything you want under “state” which is a priori evil to you. ”

It’s aggression which is “apriori” evil to me–and to Ayn Rand: as she wrote (speaking thru Galt): “So long as men desire to live together, no man may initiate—do you hear me? No man may start—the use of physical force against others.”

So, Rand was against aggression simpliciter. No qualifications, no fancy “contextual” obfuscations you have to introduce later to evade the undeniable reality that the state is criminal. The state itself DOES aggress and MUSt aggress. As we libertarians and objectivists are against aggression, we have to be against the state. This is very simple. Nowhere does Rand explain how the state can exist wtihout committing aggression (outlawing other defense agencies is the initiation of force) nor that the aggression committed by the state is justified (Bastiat explained this before her; I guess she got that message). It’s pure evasion.

John Donohue August 29, 2011 at 11:56 pm

As I said before, you are obsessed with the word “state.” It renders you incoherent to the most absurd point possible: that the political system advocated by Ayn Rand condones the initiation of force.

In your parenthetical are you intimating that such a government (let’s call it RandGov) imitates force because it prosecutes and holds as criminal any person or agency, such as the Corleone family, when it practices extortion or murder? After all, Don Corleone considered his army an “other defense agency.”

What other examples of initiation of force are to be found, in your opinion, in RandGov?

P.S. I don’t know why you put a priori in quotes but if it is for usage or typo, OED says not apriori, but a priori.

P.P.S even if RandGov were to be convicted of advocating initiation of force (absurdity intended), this does not change my main point: the agency controlling force in an area is a state, government, fiefdom, kingdom, whatever. There cannot not be ‘one of these.’

Peter Surda August 30, 2011 at 1:22 am

John,

In your parenthetical are you intimating that such a government (let’s call it RandGov) imitates force because it prosecutes and holds as criminal any person or agency, such as the Corleone family, when it practices extortion or murder?

No John, that is not an initiation of force (neither an “imitation of force”). Neither are those defining characteristics of the state. If I had taken a gun and shot Corleone, I would not have become the state. You are the one obsessed with the word “state” without having a coherent position.

The state initiates force because it prevents people from choosing alternatives in the provision of services (such as courts and police, but with time this usually grows).

Maybe you should demonstrate some proper argument instead of “imitation of thinking”.

Stephan Kinsella August 30, 2011 at 8:02 am

As I said before, you are obsessed with the word “state.” It renders you incoherent to the most absurd point possible: that the political system advocated by Ayn Rand condones the initiation of force.

I should just stop “obsessing” about the word state–wow, what a great defense of statism! EVen though states exist and have always and do now necessarily aggress against Randian rights on a systematic basic–don’t worry, be happy!

Rand’s political system calls for a state to arise that outlaws competing justice providers. To do this requires the initiation of force. This is libertarianism 101.

In your parenthetical are you intimating that such a government (let’s call it RandGov) imitates force because it prosecutes and holds as criminal any person or agency, such as the Corleone family, when it practices extortion or murder? After all, Don Corleone considered his army an “other defense agency.”

No, we are talking other, pro-property, pro-rights respecting justice agencies. Not the mafia. RandGov would have to outlaw THEM.

Likewise, even if we had a world with 200 RandGovs, each of them would have to go to war against the others to create a unitary one-world RandGov, or persuade them to join together in one giant RandGov worldwide cartel.

Michael A. Clem August 29, 2011 at 4:58 pm

It sounds to me like you are defining “government” as any entity who is, in fact, initiating force in a particular area at a given time. Obviously, any criminal “becomes” a government until someone else comes along and overpowers the criminal. No, I think your first definition is closer to a proper definition, but not quite right. Government is the entity that has the legal authority to initiate force over a given area. In either case, it’s strange that an Objectivist should consider initiating force proper under any circumstances.

I also never said that human nature will change and that people will never ( or at least hardly ever) aggress against other people. Far from it. But without the corrupting influence of undue power and legitimacy, the incentives or circumstances that people act under will change, not human nature itself. I would expect Objectivists, more than most others, to understand the use of proper and limited context.

Surprisingly, it’s the Objectivists who seem to think that human nature will change if you grant some people the legal authority to initiate force against others and that they will never use or abuse this power or be corrupted by it.

John Donohue August 29, 2011 at 6:58 pm

“….if you grant some people the legal authority…”
That is the key. Just listen to your words. Now apply the converse. Here it is:

If citizens DON’T legitimize a governments’s use of force to retaliate and constrain it to only retaliating, then you allow any gang, group, dictator, boss etc. to grab a natural monopoly (since their is no uber-government to stop them) on the initiation of force against innocent people.

I can’t put it any simpler than that.
1) there is no such thing as no “force authority” since in the absence of a proper one, tyrants will appear and they are then the force authority.
2) failure to organize and delimit proper government results in uncontrolled tyranny and gang warfare.

Peter Surda August 30, 2011 at 5:57 am

John,

If citizens DON’T legitimize a governments’s use of force to retaliate and constrain it to only retaliating,

This is not a defining factor of a government. You can authorise anyone to retaliate. That does not make them a government. A government is when someone prevents competition in the provision of these services.

The concept of a government is dubious. If you object to certain activities (or in other words, want a service to be provisioned that prevents those activities), there is also no reason why granting someone a monopoly of any sort (even less of the very same activity) is a meaningful method of achieving your goals.

You clearly have no idea how to define government and instead present fallacious reasoning in support of this non-existing definition.

Also, you ignore empirical facts that blow right in your face. There are some two hundred governments and there is no “uber-government” above them, yet conflicts between citizens subject to the rule of these governments are nevertheless resolved. So your claim is not only not universal, it does not even apply now.

Peter Surda August 30, 2011 at 5:10 am

John,

The idea that suddenly human nature will change per anarchists wishes, and people will voluntarily never again aggress against another is void.

The conviction that human nature suddenly changes is the foundation of statism, not of anarchy. By becoming government, a person gains no magical abilities nor a unique ethical conviction (at least, not a positive one). The desire for a government is a weird mix of cultural an social influences. From this perspective, it’s like religion: its existence, symbols, myths and rituals cater for the same needs. The propaganda becomes more obvious if you are exposed to different cultures. As a westerner, you might look at some Chinese movies, for example.

John Donohue August 30, 2011 at 7:09 am

Ok, adressing any/all of you and putting aside other responses to my posts for the moment, I request clarification of confirmation on your beliefs as follows:

The difference between The State, which you denounce, and a proposed private or alternate law enforcement system which you champion, is that

“The state initiates force because it prevents people from choosing alternatives in the provision of services (such as courts and police …).”

Is that accurate?
Are there any other essential differences?

Tyrone Dell August 30, 2011 at 7:20 am

The state does not initiate force /because/ it prevents people from choosing alternatives. The state initiates force /so that/ it can prevent people from choosing alternatives.

P.S. — Brinks Home Security has done more to protect my home than the county and state police.

Peter Surda August 30, 2011 at 8:01 am

Tyrone,

I think you pointed out that my original sentence can be interpreted in more than one way. Let me reformulate that into a more formal form:

The act of preventing people from choosing the provision of services for themselves is an initiation of force.

Better?

Peter Surda August 30, 2011 at 8:05 am

John,

read the 2nd and 3rd paragraph of this article: http://www.lewrockwell.com/rothbard/rothbard133.html . Or just read the whole article to preempt further questions. I’m not nearly as eloquent as Rothbard.

Michael A. Clem August 30, 2011 at 9:01 am

Yep, Rothbard said it much better than I did. Good link!

Michael A. Clem August 30, 2011 at 8:53 am

The sad part about John’s view is that it seems to indicate that it is the natural order of things for people to initiate force against other people. Therefore, in his mind, better to create a protection racket, i.e. government, and grant it the authority to initiate force, so that it can take care of all others who would inititate force.

The natural order of things for most people is voluntary cooperation and exchange. Even capitalistic competition does not imply the initiation of force. The initiation of force is actually more limited, a subset of activities in all the activities of the sphere of human action. If initiating force were the predominant trend in human relationships, civilized society would simply not be possible.

Nevertheless, unlike animals, man can not only adapt to his circumstances, he can change his circumstances. One of our less impressive achievements is the creation of governments, or states, if you prefer, that are not only founded on the concept of initiating force, but are granted the legal authority to initiate force, all in the name of “protecting” its citizens against initiations of force. If the paradox of this concept is not apparent, you’re not reading carefully enough.

Living in society under these states has created a change in circumstances, and while these states attempt to perpetuate the myth that they exist to protect rights, their existence and operation actually does much to undermine this myth. While most people may believe these myths, and may want to believe these myths, we have a society that is increasingly in favor of acts of aggression, not only in obvious ways like involuntary taxation and imperial wars, but also in welfare, corporate subsidies, government education and healthcare, etc.

The key to changing this is to fully recognize the circumstances we currently operate under, and to realize how we can change those circumstances, so that we operate under a different set of incentives, incentives more proper for civilized, peaceful, and progressive society. There will still be some people who want to initiate force, but they will be more limited than today, as the “tipping point” of such a society will be against aggression and unencouraged by society in general.

As I see it, people are born and start out as neither basically ‘good’ nor basically ‘evil’. Rather morality is learned by individuals as they grow up. The circumstances that they grow up under thus forms their morality. People tend to be basically good because they learn the value and benefits of voluntary exchange. Obviously, people with bad parents will tend to have a morality that differs from the people with good parents. But we are all affected by the circumstances created by the government or state we live under, and as it is fundamentally based on aggression, with aggression as its purpose, this creates a tipping point or tendency towards aggression in society, as indicated above. Many people see nothing wrong with robbing Peter to pay Paul, if it’s for a “good cause”.

John Donohue August 30, 2011 at 9:29 am

I’ve read that before.

The position cannot challenge the Objectivist political philosophy because one of Rothbard’s necessities for “state” is also not sanctioned under Objectivism, namely coercive appropriation of money through taxes, leaving only the prohibition of “a coerced monopoly of the provision of defense service (police and courts) over a given territorial area” the Rothbard position on which is impossible.

I really hoped someone here had something better than this after all these years.

If I have time later today I’ll read down through that essay again searching for a ray of hope that Rothbard can explain how the absurdities of this idea could actually function. Contrary to his conclusion that it would “… be both viable and self-subsistent: that once adopted, it could work and continue indefinitely” and that it is only a matter of figuring out how to get there, just the opposite is obvious: it is impossible on its face.

Michael A. Clem August 30, 2011 at 9:38 am

Actually, Rothbard only says that one of these properties is necessary for his definition of a state, although he says that both properties usually occur at the same time.

Let me say from the beginning that I define the state as that institution which possesses one or both (almost always both) of the following properties: (1) it acquires its income by the physical coercion known as “taxation”; and (2) it asserts and usually obtains a coerced monopoly of the provision of defense service (police and courts) over a given territorial area.

Peter Surda August 30, 2011 at 10:27 am

John,

The position cannot challenge the Objectivist political philosophy…

The purpose of Rothbard’s argument is not to “challenge Objectivits political philosophy” but to provide a coherent explanation and justification of his position. If you object to this, you have, in general, two options: disagree with his definition and provide another definition, or agree with his definition and provide a different conclusion. It is not clear to me which of those you are attempting to do.

… one of Rothbard’s necessities for “state” is also not sanctioned under Objectivism, namely coercive appropriation of money through taxes …

Well, at least we agree on something.

… leaving only the prohibition of “a coerced monopoly of the provision of defense service (police and courts) over a given territorial area” the Rothbard position on which is impossible.

I am not sure I understand this. Are you claiming the definition is wrong, or the conclusion that state violates property rights is wrong? You need to pick at least one of them.

I really hoped someone here had something better than this after all these years.

Well, you have not been able to explain what the exact nature of your objection is. How do you expect us to fix that?

So, do you consider it legitimate for some people to use force against competition or not? If not, then you object to the state as defined by Rothbard, and are from this perspective an anarchist. If you do consider it legitimate, then you’re not against the initiation of force.

Stephan Kinsella August 30, 2011 at 1:59 pm

The position cannot challenge the Objectivist political philosophy because one of Rothbard’s necessities for “state” is also not sanctioned under Objectivism, namely coercive appropriation of money through taxes, leaving only the prohibition of “a coerced monopoly of the provision of defense service (police and courts) over a given territorial area” the Rothbard position on which is impossible.

Of course, every state that does or has existed taxes, so why Rand thinks it’s possible to have a state that does not tax is a mystery; her cobbled together notion of a “lottery” to pay for the state is ridiculous, as such a lottery could not compete with other free market lotteries. SHe had no theory of government finance at all. If the state has a monopoly on law and justice, it can charge a monopoly price to the hostage customers. And this is nothing more than to recognize that EITHER the power to tax OR the power to outlaw competition implies the other. If an organization has the power to tax, it can use this to subsidize its justice services and outcompete others on the market. If it has the power to outlaw competition, it can charge monopoly prices for its services, which is equivalent to a tax. And, of course, in reality, all states have asserted both powers independently which reinforce each other.

Wildberry August 30, 2011 at 4:24 pm

Stephan and John,
With regards to coercion and taxes, I think you are both wrong. Fortunately for me, I don’t need to argue from either Objectivism or Anarcocapitilsm, just common sense and the writings of Mises. See: http://mises.org/libprop/lpsec5.asp

There is no doubt that governments are coercive. That is their role in a modern, advanced society. Taxation is one way to fund such cost-centers. It may not be the only way.
This is what Bastiat said of his French society here:
http://bastiat.org/en/government.html

For ourselves, we consider that Government is and ought to be nothing whatever but the united power of the people, organized, not to be an instrument of oppression and mutual plunder among citizens; but, on the contrary, to secure to every one his own, and to cause justice and security to reign.

Which makes this:

And this is nothing more than to recognize that EITHER the power to tax OR the power to outlaw competition implies the other. If an organization has the power to tax, it can use this to subsidize its justice services and outcompete others on the market. If it has the power to outlaw competition, it can charge monopoly prices for its services, which is equivalent to a tax. And, of course, in reality, all states have asserted both powers independently which reinforce each other.

Absurd…

The power to tax is a citizen-given power. If we are too stupid or weak to oppose undesirable taxes, we have only ourselves to blame; we certainly have the constitutional power to change it.

The power to “outlaw competition”, if you are restricting yourself to the ultimate coercion to secure safety and private property, then certainly Mises and apparently Bastiat would consider this a feature, not a bug.
According to Mises:
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 anyone who visits here even occasionally understands that Rothbard/Kinsella trumps Mises and Bastiat. Go figure.

Michael A. Clem August 30, 2011 at 4:50 pm

So Mises and Bastiat were better economists than political philosophers. So what? Rand was against aggression, but still supported the paradox of legitimized aggression. If you took Mises’ economics writings, you’ll find plenty of arguments against government intervention in the economy. The logical conclusion of Mise’s economics is necessarily anarchistic, too, even if Mises didn’t quite see that.
Human knowledge tends to build upon past knowledge. Past thinkers tend to provide important ideas and knowledge that later thinkers can build upon. And even impressive systems-builders like MIses and Rand can miss a few things, in spite of how much useful knowledge they create. Adam Smith, too, had some great economic ideas, but was far from being a radical free-marketeer, in spite of the importance of his ideas in promoting free market economics.

Wildberry August 30, 2011 at 5:26 pm

@Michael A. Clem August 30, 2011 at 4:50 pm

So Mises and Bastiat were better economists than political philosophers. So what?

That is a value judgment of Mises and Bastiat that I don’t share. Mises gave his philosophy within a context of economics, and I find him brilliant in coherently weaving the two efficiently together. Mises gave his political philosophy through the context of his economic treatise, and Bastiat gave his through the context of law. In both cases, they made their philosophy clear and comprehensible; neither were Ancaps and both were at odds with the latecomer Rothbard in that regard.

Rand was against aggression, but still supported the paradox of legitimized aggression. If you took Mises’ economics writings, you’ll find plenty of arguments against government intervention in the economy. The logical conclusion of Mise’s economics is necessarily anarchistic, too, even if Mises didn’t quite see that.

I can’t tell what you mean by “legitimized aggression”; it sounds like an oxymoron.

I am always quite astounded at this sentiment from fellow amateurs, that Mises was “blind” to the glory of anarchism. I don’t really think he was blind to much. Mises makes a distinction that you seem unable to grasp; interventionism is not a legitimate function of government, while the essential function of government is. Around here, that distinction is lost in the slogan, “I hate the State!” The State intervenes, the government does not.

Human knowledge tends to build upon past knowledge. Past thinkers tend to provide important ideas and knowledge that later thinkers can build upon. And even impressive systems-builders like MIses and Rand can miss a few things, in spite of how much useful knowledge they create. Adam Smith, too, had some great economic ideas, but was far from being a radical free-marketeer, in spite of the importance of his ideas in promoting free market economics.

This is a fair point and potentially correct; the question remains however, right or wrong?

If you think Mises “missed a few things”, then I always wonder at how folks like you can dismiss what he does say, without even an attempt to show where or why he is wrong. You cannot discount him entirely, yet you wish to ignore his conclusions where they conflict with yours.

I believe Mises considered anarchy as a “natural state” of man, which he dismissed as brutish and impoverished compared to the possibilities and results of division of labor society. He was smart enough, apparently, to understand directly that men are not angels, that governments were in fact coercive and anti-liberty, yet at the same time the greatest of human inventions.

If you cannot reconcile those two thoughts, then you do not understand Mises or his political philosophy. I don’t think you can resolve that dilemma by simply assuming that Mises “missed the boat” in some way that Rothbard did not.

Michael A. Clem August 31, 2011 at 11:00 am

I’m far from being the only one who thinks that Mises is best known as an economist, not a political philosopher. Rothbard, while he was an economist, also did much in political philosophy, for which he is arguably better known.

Wildberry August 31, 2011 at 11:41 am

Michael,

Yes, I think you are right about both Mises and Rothbard. Very little of Rothbard’s legacy, at lease on this site, seems to be directly related to his economics per se.
As to a comparison of pubic awareness, I don’t think Rothbard can hold a candle to Mises or even Hayek.

Yet both Mises and Rothbard did speak directly about IP. That is the record. It seems reasonble to ask the question about what he wrote, “If you disagree, why?”

Stephan Kinsella August 31, 2011 at 1:47 pm

“Yet both Mises and Rothbard did speak directly about IP. That is the record. It seems reasonble to ask the question about what he wrote, “If you disagree, why?””

Uh, yes, and we have explained “why” umpteen times. It is pathetic that YOU are one of the “best” expositors of your pro-IP “argument.” What a joke. we are praised by faint damn.

Stephan Kinsella August 30, 2011 at 5:14 pm

You have no argument, just appeals to authority. And of course Rothbard trumps Kinsella. He came later, and was standing on the shoulder of the giant, so he managed to see a bit farther.

Wildberry August 30, 2011 at 5:43 pm

@Stephan Kinsella August 30, 2011 at 5:14 pm

You have no argument, just appeals to authority.

Says you. I disagree.

I have come to believe that Mises gave Rothbard a boost as a student of his, but he later went off the deep end. Rothbard will, I believe, merely show up as a footnote in history, while Mises is leading the way and gaining in popularity and notoriety. What he has written stands up to scrutiny and history, anarchism does not and cannot do either, and as goes anarchism, goes Rothbard.

Certainly Mises did not raise Rothbard up so that he could see what Mises himself was to dull to see for himself. I rather hold the view that Mises understood anarchism for what it was; an historical artifact of primitive man that is held up as some unrealistic romantic vision by the self-delusional.

And of course Rothbard trumps Kinsella. He came later, and was standing on the shoulder of the giant, so he managed to see a bit farther.

And you are too funny with your seeming deference to Rothbard. How about when he writes in support of copyrights? Oh, yea, except for that…that was just an “experiment”!

Rothbard was and is standing in the shadow of a giant. As soon as he tried to blaze his own trail, he ended up in the cul-de-sac called Ancap. That is his most enduring legacy.

Here’s a news flash for you; your Ancap utopia can only emerge, perhaps briefly, after a nuclear winter. It will be conquered by the first tribe that crosses its path, if it lasts that long.

Stephan Kinsella August 30, 2011 at 6:56 pm

Rothbard was great on IP–he made huge strides in seeing the problem wtih patent and copyright. And even Mises saw problems with patent and copyright.

nate-m August 30, 2011 at 8:18 pm

And you are too funny with your seeming deference to Rothbard. How about when he writes in support of copyrights? Oh, yea, except for that…that was just an “experiment”!

It was not obvious how horrific and damaging copyrights and patents have become until recent years. Before that the attitude was “Well, copyrights and patents could be bad things and there is a certain attractive logic to them, but we have more important things to discuss..”

It’s not until the Internet and software development and the rapid expansion of technology followed closely by the government destruction of progress through applied patents/copyrights it has become obvious that all of this IP nonsense is destructive to not only freedom, but the economy and technological advancement.

Now that we are able to see and understand things better it’s has become a vastly more important subject to discuss in order to break down the barriers of foolish logic that protect these outmoded mercantilist concepts.

Here’s a news flash for you; your Ancap utopia can only emerge, perhaps briefly, after a nuclear winter. It will be conquered by the first tribe that crosses its path, if it lasts that long.

So your saying the best bet for Ancap reality is let state government run it’s ultimate end-game… world-wide nuclear annihilation?

What a odd stance for a person religiously adhering a pro-government-intervention advocacy platform.

Kid Salami August 31, 2011 at 3:47 am

“It was not obvious how horrific and damaging copyrights and patents have become until recent years.”

The question “Do copyrights invade property or not” – Rothbard never thought about while writing a whole seciton in MES? He writes entire books on the NAP yet just never even considered this? I really am confused as to what the argument is here. And I don’t think I’m the only one.

Kid Salami August 31, 2011 at 7:03 am

nate – to elaborate,

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

Copyrights, in other words, have their basis in prosecution of implicit theft. The plaintiff must prove that the defendant stole the former’s crea¬tion by reproducing it and selling it himself in violation of his or someone else’s contract with the original seller. But if the de-fendant independently arrives at the same creation, the plaintiff has no copyright privilege that could prevent the defendant from using and selling his product….

…We have seen in chapter 2 that the acid test by which we judge whether or not a certain practice or law is or is not consonant with the free market is this: Is the outlawed practice implicit or explicit theft? If it is, then the free market would outlaw it; if not, then its outlawry is itself government interference in the free market. Let us consider copyright. A man writes a book or composes music. When he publishes the book or sheet of music, he imprints on the first page the word“copyright.” This indicates that any man who agrees to purchase this product also agrees as part of the exchange notto recopy or reproduce this work for sale. In other words, the author does not sell his property out¬right to the buyer; he sells it on condition that the buyer not reproduce it for sale. Since the buyer does not buy the property outright, but only on this condition, any infringement of the con¬tract by him or a subsequent buyer is implicit theft and would be treated accordingly on the free market. The copyright is there¬fore a logical device of property right on the free market.

Seriously. In your view, what – exactly and precisely – was it that Rothbard was misunderstanding about his own development of the NAP when he wrote these words? I genuinely don’t know the answer to this question.

If you say that the digital age means that the capacity for evil is using copyrights much greater, I may or may not agree that this is sufficient to abandon them. But to be clear, this would contradict the party line in that Kinsella has stated, clear as a bell, that this line of argument does not hold water.

Likewise, to my claim that the state and its aggression is unjustified, it is disingenuous and/or confused to reply, “anarchy won’t work” or is “impractical” or “unlikely to ever occur.”1 The view that the state is unjustified is a normative or ethical position. The fact that not enough people are willing to respect their neighbors’ rights to allow anarchy to emerge, i.e., the fact that enough people (erroneously) support the legitimacy of the state to permit it to exist, does not mean that the state, and its aggression, are justified.2

Nothing to stop you making the argument that copyrights “won’t work” now though, or something similar. Are you?

Peter Surda August 31, 2011 at 7:31 am

Kid Salami,

first of all, what you post indicates the danger of using metaphors. Some time ago, Kinsella posted several references to articles by Austrians where they addressed this problem.

Furthermore, the coming of the digital world was not easy to foresee. The effects it had would have been either considered from practical point of view irrelevant, or simply it did not occur to people in the past that they are making implicit assumptions that are not universally valid. The digital age makes these problems more apparent. Also, I remember I read somewhere how Rothbard complained about libertarians reading science fiction.

I know it’s a bit bold that I criticise Rothbard but so what? I’m a falsificationist. If I’m wrong, disprove me. He wrote like millions of pages. Surely we can’t dismiss the possibility that he erred occasionally.

Peter Surda August 31, 2011 at 7:39 am

Kid Salami,

just one example in the Rothbard quote. With respect to copyright, Rothbard makes the implicit assumption that there are two options how to obtain a “creation”: independent discovery or violation of contract. This is inadequate, since there are also causal relationships which are not a violation of a contract. You don’t even need to go digital to realise this.

Kid Salami August 31, 2011 at 8:03 am

“Surely we can’t dismiss the possibility that he erred occasionally.”

Of course not, I disagree with loads of what he wrote. Whether I agree with him or not is not relevant, I’m just trying to work out what the argument is against IP because I still don’t really know, and so as a different starting point I’m asking exactly what I asked – where, exactly, is he deviating from his own NAP theory?

“This is inadequate, since there are also causal relationships which are not a violation of a contract.”

Can you give a good pre-digital example of this?

Peter Surda August 31, 2011 at 10:12 am

Kid Salami,

Whether I agree with him or not is not relevant, I’m just trying to work out what the argument is against IP because I still don’t really know, and so as a different starting point I’m asking exactly what I asked – where, exactly, is he deviating from his own NAP theory?

He is not necessarily “deviating from his own NAP theory”. He is merely making unsubstantiated assumptions.

Can you give a good pre-digital example of this?

Out of the five senses you have, touch and taste do require use of the resource, while sight and hearing do not. Smell can be argued either way (depending on assumptions you’re making). To put this into a more understandable perspective, your actions determine what you lick and touch, but other people’s actions determine what you see and hear. Seeing or hearing something does not violate anyone’s property rights, nor does it require property rights in the source of the visual/audio signal. If I shine a lamp onto someone’s face, they are not violating my rights.

Also, thinking allows you to deduce the state of the objects without directing your senses towards them at all. One of the best examples of this is the price system. Indeed, the whole concept of praxeology is based on the assumption that people extract information from the processes occurring around them and use that to guide their action.

Wildberry August 31, 2011 at 10:59 am

@nate-m August 30, 2011 at 8:18 pm

It was not obvious how horrific and damaging copyrights and patents have become until recent years. Before that the attitude was “Well, copyrights and patents could be bad things and there is a certain attractive logic to them, but we have more important things to discuss.”

Pretty lose with the facts and history, my boy.

The first known written record of the concept of patents was from Aristotle, which he opposed. The first recorded patent law was in Venice, mid 15th century. Venice was the center of technical innovation for Europe during this time. IP did not become controversial only when Gore invented the internet.

Both Mises and Rothbard wrote on the subject, but as you know, neither were IP lawyers, so I am not surprised they did not give it a central role in their entire body of work. However, you are paraphrasing, as you do with me below, to suit your own purposes. If you want to characterize Rothbard’s attitude about something, at least provide some quotes or links to specific passages.

Truth is, the IP issues are not rocket science, and I think Mises and Rothbard both use them to illustrate their larger principles in economics and political philosophy.

Mises used IP, what he called “intellectual creations” to illustrate his explanation of externalities and external economies. He disposes of the subject in a few short paragraphs, not because he was too dull to understand the implications, but because he was that clear about the issues. All of this meandering debate here is really encapsulated in this short section of HA, which is fully integrated with the rest of his monumental economics treatise. That’s one vote for.
Rothbard, as has been pointed out several times now, explained how the operation of copyright was consistent with the balance of his views of political philosophy; another vote for.
There is a principle here that is not dependent upon technology; rather the application of technology has merely changed the opportunity to violate the principles in new ways and with greater scope. The fundamental issues have not changed; IP either should or should not be treated as a form of private property. Both Mises and Rothbard argued it should.
Now some here disagree. They think that Mises and Rothbard reached the wrong conclusions about IP, specifically copyrights. But it is not sufficient to just say, “Well, they are not perfect….who is?”

At least these two writers, Mises and Rothbard, took the trouble to commit in writing how they analyzed the problem, and how the problem of IP was integrated with all of the things that you apparently believe was right about what they wrote.

So, if for no other reason than for the benefit of those of us who seem to see the logic and consistency in those positions, it behooves those of you who think they are wrong to shine a guiding light on where, exactly, you think they went astray. If you are going to do any less, why bother to say anything at all?

It’s not until the Internet and software development and the rapid expansion of technology followed closely by the government destruction of progress through applied patents/copyrights it has become obvious that all of this IP nonsense is destructive to not only freedom, but the economy and technological advancement.

This is a big sentence with lots of room for controversy. I will grant you this: as with every area of legislated law, the potential exists for a legitimate principle to be hijacked by special interests to the cause of mercantilism. In fact, this has occurred to a large extent in nearly every area of government regulations which serve to intervene in the market.

In my view, this evil factor should be rolled back, cleansed, and through vigilance guarded constantly against future illegitimate expansions. But in order to make any sense of this, one must return and be guided by fundamental principles. One such principle that I hold sacred is the principle of private property and the private ownership of the means of production.

The question, as Kid Salami has restated again today, is IP consistent with this principle or not? This does not mean all of the horrors at the margin, or how IP law is being used to conduct IP wars, as William Pardy has described, but whether the fundamental principle is legitimate or not, and why?

So your saying the best bet for Ancap reality is let state government run it’s ultimate end-game… world-wide nuclear annihilation?
What a odd stance for a person religiously adhering a pro-government-intervention advocacy platform.

Sorry to be so blunt, but this is just stupid on at least two counts.

First, why would “state government run its ultimate end-game” of self annihilation, as if your anthropomorphism of “state government” was in any way accurate in the first place. Why would you assert that the goal of the state is to destroy itself and everything else in the process? Such displaced presumptions poison any reasoning that follows from this view.

Second, you might want to use my own words to attack me instead of making up your own version of what I have said. If you think I have taken a “religious, pro-government-intervention” position, show me. It will be revealing to see how you think you heard this from me.

nate-m August 31, 2011 at 11:24 am

[quote]First, why would “state government run its ultimate end-game” of self annihilation, as if your anthropomorphism of “state government” was in any way accurate in the first place.[/quote]

A person driving down country roads at 100mph drunk off their ass is more then likely going to kill themselves or kill somebody else. That’s not their ‘goal’ at driving so fast and recklessly, but it’s what is probably going to happen.

Nice try at putting words in my mouth, but it’s futile.

[quote] Why would you assert that the goal of the state is to destroy itself and everything else in the process? [/quote]

(part with the ‘goals’)

Very simple:
You end up with people in charge who think that it’s possible to win a nuclear war.

Peter Surda August 31, 2011 at 11:27 am

Wildberry,

Rothbard did not show how IP is consistent is with his theory. I clearly refuted that. His argument is erroneous.

Mises was not entirely wrong, he just lacked imagination about the possibilities of the digital (which, considering he wrote it over 60 years ago, one can hardly blame him for). You’re just repeating his lack of imagination as if it was an argument. Also, your interpretation of his words as supportive of IP is erroneous, as clearly demonstrated several times.

Some weird forms of IP have existed in the past, but their application only directly affected a handful of specialised crafts and to the large populace was quite irrelevant. The digital world made the self-contradiction of the “theories” behind these arrangements more apparent, and the formerly specialised racketeers now target everyone.

I know that you don’t consider logic and accuracy to be important and do not actually have a coherent argument. I guess it’s just a habit of mine of pointing out to errors in other people’s posts.

Wildberry August 31, 2011 at 11:48 am

To all who oppose IP and support Ancap:

Here is the critical point with which Rothbard contradicts Kinsella and his followers:

In other words, the author does not sell his property out¬right to the buyer; he sells it on condition that the buyer not reproduce it for sale.

Either this is a true statement, consistent with Rothbard’s theory of Ancap, or it is not.

In either case, it contradicts all the Kinsella/Surda/et. al repeated assertions that copyrights contradict the property rights of the copier, because the copier owns his own paper.

I would love to hear how this is reconcilled, while still remaining loyal to Rothbard’s other views.

Wildberry August 31, 2011 at 12:08 pm

@Peter Surda August 31, 2011 at 11:27 am

I clearly refuted that. His argument is erroneous.

Hilarious. You can’t make this stuff up.

Mises was not entirely wrong, he just lacked imagination

Ha! Why so generous all of a sudden? You usually take the position that people you disagree with are entirely wrong!

Peter Surda August 31, 2011 at 12:30 pm

Wildberry,

Either this is a true statement, consistent with Rothbard’s theory of Ancap, or it is not.

There is also a third option: the statement is correct, but does not accurately portray what is colloquially known as IP, in other words using this as a “proof” of IP is a non-sequitur.

n either case, it contradicts all the Kinsella/Surda/et. al repeated assertions that copyrights contradict the property rights of the copier, because the copier owns his own paper.

The conditional transfer which you refer to above has the ability to transfer property (e.g. money) of the buyer of the book to the author of the book. It does not have the ability to transfer the property of a third-party copier to the author. We have been over this again and again, and you ignore and ignore it.

I would love to hear how this is reconcilled, while still remaining loyal to Rothbard’s other views.

You would not “love to hear” anything. The errors in your claims have been explained many times, and you just ignore it. You want to talk and parade your faux “arguments”.

You can’t make this stuff up.

You can make it up of course, but it’s unnecessary because it accurately represents the facts.

You usually take the position that people you disagree with are entirely wrong!

On the contrary, I address very specific points of other people’s arguments.

Stephan Kinsella August 31, 2011 at 1:43 pm

“Whether I agree with him or not is not relevant, I’m just trying to work out what the argument is against IP because I still don’t really know, and so as a different starting point I’m asking exactly what I asked – where, exactly, is he deviating from his own NAP theory?”

how in the world can you “not know”? Our position is very clear, and we have explained many many times.

Stephan Kinsella August 31, 2011 at 1:45 pm

Wildberry:

In my view, this evil factor should be rolled back, cleansed, and through vigilance guarded constantly against future illegitimate expansions. But in order to make any sense of this, one must return and be guided by fundamental principles. One such principle that I hold sacred is the principle of private property and the private ownership of the means of production.

The question, as Kid Salami has restated again today, is IP consistent with this principle or not?

Obviously, it is not. This is beyond cavil.

Wildberry August 31, 2011 at 3:31 pm

@Stephan Kinsella August 31, 2011 at 1:45 pm

“The question, as Kid Salami has restated again today, is IP consistent with this principle or not?”

Obviously, it is not. This is beyond cavil.

If you would put 1/10 of the energy you have into discourse instead of developing your vocabulary skills for words not in common usage that can be leveled against someone you disagree with as a dismissive insult, you would be much more interesting than you are. As to the triviality of the question, you only claim it to be so. You cannot follow your own reasoning to your conclusions without contradicting an honest reading of what both Mises and Rothbard have said. That doesn’t seem trivial.

I have become more familiar with your positions than I ever wanted or intended to, so yes you are right, we have all heard it before. And obviously you are more interested in collecting scalps than you are in actual debate. We all know that about you too.

Your position on IP is inconsistent with both Rothbard and Mises. That is curious enough. And despite your declaration that you are here for the “lurkers” whom you assume just don’t know any better, you fail to address intelligibly any issue that I’ve raised.

If your position is consistent, then you should be able to triangulate on the same conclusion consistently, regardless of the starting point. Even when confronted with the words of someone you obviously admire in every other respect, you simply engage in personal attacks rather than actually address the contradiction that is so obvious to anyone who wants to pay attention.

If these writers were wrong, then it should be a trivial matter for someone of your personal brilliance to point out where the positions taken on copyrights and IP are inconsistent with the entire body of their work. They are not inconsistent.

Kid has asked repeatedly about how Rothbard’s position on copyrights squares with the principle of NAP. I have repeatedly challenged you for your interpretation of Mises analysis of IP and external economies. You have failed to address either.

That is a valuable data point for anyone still taking you seriously.

Peter Surda August 31, 2011 at 4:21 pm

Wildberry is like a zombie. You refute him, and he comes back haunting, unaffected and oblivious to what happened.

Wildberry August 31, 2011 at 5:01 pm

@ Peter Surda August 31, 2011 at 4:21 pm

Sorry to leave you out, Peter.

When you respond to what was put forward in the Rothbard quote:

In other words, the author does not sell his property out¬right to the buyer; he sells it on condition that the buyer not reproduce it for sale.

With this:

It does not have the ability to transfer the property of a third-party copier to the author.

What is it that you think Rotbard is saying here that leads to this statement of yours?

At what point, in the context of this quote, is “property” (what property, whose property, by what mechanisms of original acquisition and subsequent action) transfered from the copier to the author? This should be good.

Peter Surda September 1, 2011 at 1:44 am

Wildberry,

What is it that you think Rotbard is saying here that leads to this statement of yours?

Rothbard isn’t saying anything about this in the quoted reference, you are implying that he is (because that is what IP requires). That’s the whole point. You are engaging in a non-sequitur and deception.

At what point, in the context of this quote, is “property” (what property, whose property, by what mechanisms of original acquisition and subsequent action) transfered from the copier to the author?

The copy and/or the damages needs to be transferred from the copier to the author. Otherwise, the only effect of the conditional transfer would be that the copier needs to return the original to he author. The ownership of the copy would still be unaffected.

Again, I know that you don’t consider logic to be important but can’t you at least try to make your games interesting? You’re boring.

nate-m August 31, 2011 at 9:37 am

Seriously. In your view, what – exactly and precisely – was it that Rothbard was misunderstanding about his own development of the NAP when he wrote these words? I genuinely don’t know the answer to this question

It’s a extremely simplistic view of copyright and does not accurately illustrate how it works or it’s effect.

If a person agrees to abide by restrictions when purchasing a book or using software (or some such thing) then it’s perfectly moral thing and a valid expectation to be awarded damages to be awarded (etc. etc.) if they violate that agreement.

That is why people like Kinsella say that “IP either violates property rights or is redundant”. In the statement above copyright is completely unnecessary to prevent a purchaser or borrower of a book from legally copying it. Same thing with going to watch a movie in a theater or streaming a video online or whatever else. Contractual agreements are completely sufficient.

But copying a book you purchase or copying sheet music you originally agreed to not copy… this is not what copyright is and is not really how it works. It’s a very inaccurate (or at least inadequate) description. Restricting the discussion to a theoretical framework surrounding some bogus metaphysics surrounding copying written material is just ignoring reality and is completely missing the point behind why it’s all really bad.

If you say that the digital age means that the capacity for evil is using copyrights much greater, I may or may not agree that this is sufficient to abandon them. But to be clear, this would contradict the party line in that Kinsella has stated, clear as a bell, that this line of argument does not hold water.

Not entirely accurate. I am saying is that the digital age has made the evils of copyrights AND patents much more obvious. They are fundamentally flawed things and always have been. It’s just not as obvious until recent years.

Wildberry August 31, 2011 at 11:04 am

@nate-m August 31, 2011 at 9:37 am

But copying a book you purchase or copying sheet music you originally agreed to not copy… this is not what copyright is and is not really how it works. It’s a very inaccurate (or at least inadequate) description. Restricting the discussion to a theoretical framework surrounding some bogus metaphysics surrounding copying written material is just ignoring reality and is completely missing the point behind why it’s all really bad.

With all due respect, I don’t think you really have any clear notion of what copyright is and how it really works. What is “the point” behind why it all really bad?

nate-m August 31, 2011 at 11:17 am

Because it’s either completely unnecessary complication or it’s a violation of private property.

The copyright headaches surrounding software alone costs American businesses hundreds of millions of dollars a year. I’ve seen entirely well designed software had to be completely abandoned by people that wrote it because of some legal technicality with derivative works and other such nonsense.

However in the scheme of things copyright pales in comparison to patents.

Wildberry August 31, 2011 at 12:32 pm

@nate-m August 31, 2011 at 11:17 am

Because it’s either completely unnecessary complication or it’s a violation of private property

See that’s the interesting point that I’m sure you don’t want to address. I understand.

Rothbard, of all people, seemsto disagree with this position. Oddly, I agree with him on this.

If one begins with the principle that an author has a right to disclose his works only on the condition of retaining copyrights, then the observation that the contemporary implementation of this principle has led to abuses and other distructive conduct which should be prevented where possible, is not contradictory. This is not the same as saying that the fundamental principle behind IP is wrong, which is what you and others assert.

Either you are incapable of making such a distinction, or you are unable to so so while remaining consistent with the rest of your framework. I think it is certainly the latter, and may also be the former.

Peter Surda September 2, 2011 at 7:55 am

Zomberry,

Rothbard, of all people, seemsto disagree with this position.

Appeal to authority. I did not know zombies understood the concept of authority. Or maybe it’s just an instinct leftover from the time they were sheep.

an author has a right to disclose his works only on the condition of retaining copyrights

Then maybe you should shut up forever because I’ll never agree to refrain from refuting your stupidities.

Kid Salami August 31, 2011 at 4:14 pm

nate – might you address the words where Rothbard already answers your objection?

“have their basis in prosecution of implicit theft. The plaintiff must prove that the defendant stole the former’s crea¬tion by reproducing it and selling it himself in violation of his or someone else’s contract with the original seller…..any infringement of the con¬tract by him or a subsequent buyer is implicit theft and would be treated accordingly on the free market”

What is it – exactly – about Rothbard’s view here that you can restrict the receivers of goods in this way (because they received the good necessarily only because of a breach of contract somewhere along the line) that contradicts or otherwise conflicts with his other writings on the NAP? He disagrees with the line here and seems to think it can evolve in the free market and doesn’t require an evil state to maintain.

Peter Surda September 1, 2011 at 3:37 am

Kid Salami,

What is it – exactly – about Rothbard’s view here that you can restrict the receivers of goods in this way (because they received the good necessarily only because of a breach of contract somewhere along the line) that contradicts or otherwise conflicts with his other writings on the NAP?

As I tried to explain before, Rothbard omits the possibility of the copies being created in a way he did not address, i.e. without any of the following:

- violation of a contract using contractor’s material
- trespass (or a direct violation of property rights in general)

If none of those conditions are fulfilled, according to NAP, the author has no basis for a claim on the copy. Hypothetically, in the case of violating a contract using a third party material, the author can claim collusion and insist the copy be transferred to him. But this is still not automatic and actually require collusion. If the material was stolen as well, for example, the collusion claim has no foundation.

More importantly though, the logical jump required to conclude that if an action is a violation of property rights, actions causally related to that action are also a violation of property rights is simply erroneous. There is no logical basis for this, and I doubt you’ll find it in Rothbard’s writings either. If it was, a victim of a crime could claim that any reaction by anybody to the crime perpetrated on him be illegal as well. You could not report about crime. You could not react to crimes done to others by improving the protection of your property. You could not wear a helmet because Ungh the stone age robber smashed Grrh’s head with a stick, unless Grrh’s descendants approve. It’s a ridiculous concept and accentuates how IP proponents use metaphors and avoid formal claims.

Furthermore, as I pointed out to Wildberry back in April, this has nothing to do with “copying” or even property rights of the author. Such contractual restrictions can be placed on any action, by anybody, even completely unrelated to the property of the beneficiary. We two can arrange that one of us owes money to the other if the former copies Atlas Shrugged, or even a non-existent book. Again, from the formal point of view, the argument collapses into a fairy tale.

Michael A. Clem August 31, 2011 at 11:17 am

Now some here disagree. They think that Mises and Rothbard reached the wrong conclusions about IP, specifically copyrights. But it is not sufficient to just say, “Well, they are not perfect….who is?”

So, if for no other reason than for the benefit of those of us who seem to see the logic and consistency in those positions, it behooves those of you who think they are wrong to shine a guiding light on where, exactly, you think they went astray. If you are going to do any less, why bother to say anything at all?

Except you yourself merely invoked Mises and Basiat as authorities without invoking their actual arguments and asking us to refute them. As Kinsella already said, this was merely an appeal to authority on your part. Do you agree with them on their arguments for IP, or are you simply trying to distract us from your own arguments?

Wildberry August 31, 2011 at 12:00 pm

@ Michael A. Clem August 31, 2011 at 11:17 am

If you value honesty, this is not your finest moment.

I in fact gave links to both authors, and quoted relevant parts. I did not say they were right because they said it, I said they said it and I think they are right. Big difference, don’t you agree?

For the record, I agree with what both authors say here, which is why, I assume you know, I posted them.

Wildberry September 1, 2011 at 9:05 am

@Peter Surda September 1, 2011 at 1:44 am

Rothbard isn’t saying anything about this in the quoted reference, you are implying that he is (because that is what IP requires). That’s the whole point. You are engaging in a non-sequitur and deception.

Why not use what Rothbard IS saying instead of what he is not. He says that possession can only be gained under conditions imposed by the author, so copying is implied theft. Start there…

The copy and/or the damages needs to be transferred from the copier to the author. Otherwise, the only effect of the conditional transfer would be that the copier needs to return the original to he author. The ownership of the copy would still be unaffected.

Which is, of course, assuming something Rothbard didn’t say here. If there is an implied theft, as Rothbard says, then why is action taken against the copier a violation of NAP? He doesn’t seem to think it is.

Instead of just taking the positoin that others are wrong, why not tell us all what is right? Tell us what Rothbard should have thought about that you see that he didn’t.

Peter Surda September 1, 2011 at 10:11 am

Zomberry.

Why not use what Rothbard IS saying instead of what he is not.

You are implying that Rothbard’s statement addresses IP, not me. Maybe even he though he is addressing IP. But he is not. I clearly explained that. Rothbard is using the phrase “implicit theft” to denote causality, but neglects to address the situation where causality neither violates property rights nor a contract. The omitted case is IP. The two cases he mentions are not.

He says that possession can only be gained under conditions imposed by the author, so copying is implied theft.

Again, he jumps from causality to either a violation of a property right of the author or a triggering of a condition in a contract. To conclude from this that IP is legitimate is a logical error, a non-sequitur.

Which is, of course, assuming something Rothbard didn’t say here.

He indeed did not. He omitted it and that’s the error in his conclusion.

Or maybe he is not making the conclusion that IP is valid at all and you’re just misrepresenting him merely because he uses the word “copyright”. Let’s check out what else he says:

Since the buyer does not buy the property outright, but only on this condition, any infringement of the con­tract by him or a subsequent buyer is implicit theft and would be treated accordingly on the free market.

(emphasis added) This does not say anything about third parties or copies. It only addresses purchases of the original and the acts of copying by these purchasers.

If there is an implied theft, as Rothbard says, then why is action taken against the copier a violation of NAP?

Rothbard’s explanation does not address IP, only situations which are not IP.

Instead of just taking the positoin that others are wrong, why not tell us all what is right?

I’m a falsificationist. I refute, I do not tell others what assumptions they should be making.

Tell us what Rothbard should have thought about that you see that he didn’t.

In order for Rothbard to fix the gap in his argument, he would have had to address copies that are created:
- with the material belonging to someone who does not have a contract with the author
- by someone who does not have a contract with the author

But I explained this many, many times. Maybe that’s what’s causing your posts in the first place, a zombie longing for braaaaaaaainz.

Stephan Kinsella September 1, 2011 at 10:59 am

Peter, this may be the best concise explanation I’ve seen for exactly why Rothbard’s compressed comments on “free market copyrgiht” do NOT establish the case for libertarian IP/copyright. Nice:

“Rothbard is using the phrase “implicit theft” to denote causality, but neglects to address the situation where causality neither violates property rights nor a contract. The omitted case is IP. The two cases he mentions are not.”

Stephan Kinsella September 1, 2011 at 10:52 am

Why not use what Rothbard IS saying instead of what he is not. He says that possession can only be gained under conditions imposed by the author, so copying is implied theft.

He does not say this. You cannot “possess” an idea, anyway. And it is obvious there are many ways to LEARN without violating any contract or trespassing. If GE is selling millions of lightbulbs, then I know of the existence of lightbulbs and generally how they work. If I make my own to compete with GE I am not committing theft. I am using knowledge to guide my actions–information that GE revealed to me by its decision to sell its product!

Wildberry September 1, 2011 at 11:40 am

@Stephan Kinsella September 1, 2011 at 10:52 am

He does not say this.

We don’t have to argue about what he says or doesn’t say. It is there for all to see.

You cannot “possess” an idea, anyway.

Where does Rothbard mention “idea”? You are complaining because Rothbard doesn’t engage in the same equivocation that you do?

And it is obvious there are many ways to LEARN without violating any contract or trespassing.

I don’t suppose it is really necessary for me to point out that Rothbard did not mention learning either. He is addressing reproduction, as they pertain to the right of copy: i.e. COPYRIGHTS!

This seem like pretty clear English:

“The plaintiff must prove that the defendant stole the former’s creation by reproducing it and selling it himself in violation of his or someone else’s contract with the original seller.

These are the words and meaning that Rothbard, one may assume, intended. If we cannot assume he means what he says, then everything else he writes is also suspect; we can’t possibly know WHAT he means.

If GE is selling millions of lightbulbs, then I know of the existence of lightbulbs and generally how they work. If I make my own to compete with GE I am not committing theft. I am using knowledge to guide my actions–information that GE revealed to me by its decision to sell its product!

Nice try. We are not addressing patents here, nor what feature of GE bulbs might still be under patent. You know of the existence of books too, and likewise are free to write one. In fact, you can write one that competes with Rothbard, since you seem to be struggling to explain how he either did or didn’t say what he plainly did say, or that he somehow didn’t know what he was saying. You seem to admire Surda’s efforts in this regard. You can use “knowledge to guide your actions”, no one is going to stop you. Why should they?

What you need to address is the theory of implied contract, which Rothbard uses here. You need to explain how “reproduction” and “learning” or “creation” and “ideas” are equivalent. You need to show why “The copyright is there¬fore a logical device of property right on the free market.” is incorrect, using Rothbards own words, not what you think he did or didn’t say.

Other than that, your response was very helpful.

Stephan Kinsella September 1, 2011 at 12:02 pm

You are so stupid and dishonest, I wonder why I ever reply to you. Jesus. I cannot realy believe you are this stupid. Or that your mistakes are unintentional. I really have a hard time discoursing with insincere people.

Wildberry September 1, 2011 at 12:05 pm

Now that you got that rant out of the way, what is your problem, specifically?

Wildberry September 1, 2011 at 11:17 am

@Peter Surda September 1, 2011 at 10:11 am

You are implying that Rothbard’s statement addresses IP, not me.

Implying? The first line in the section Kid Salami posted is this:

Copyrights, in other words, have their basis in prosecution of implicit theft.

But just in case this is too obvious, you say:

Maybe even he though he is addressing IP. But he is not.

You mean Rothbard was so confused that he didn’t even know what he was addressing? What does this day about the rest of this works? Certainly we cannot rely on anything said by someone as confused as this. Is that your position?

I clearly explained that. Rothbard is using the phrase “implicit theft” to denote causality, but neglects to address the situation where causality neither violates property rights nor a contract. The omitted case is IP. The two cases he mentions are not.

Ha! You “clearly explained”?! Rothbard clearly explains that “implicit theft” means what he says it means, “the defendant stole the former’s creation by reproducing it and selling it himself in violation of his or someone else’s contract with the original seller.” Start with that, what he actually says, not what you think he does not say. Give us the “situation” you fail to describe.

Again, he jumps from causality to either a violation of a property right of the author or a triggering of a condition in a contract. To conclude from this that IP is legitimate is a logical error, a non-sequitur.

You mean that Rothbard is incapable of reasoning? Certainly you appear to be. This isn’t even intelligible. What do you mean he “jumps”?

He indeed did not. He omitted it and that’s the error in his conclusion.

OK, here is your chance to personally shine your brilliance on this little corner of the world. What did he omit, and if he includes “it”, how should he have reasoned? What must you assume by what he didn’t say, so that what he does say is erroneous? Teach us, Spock.

Or maybe he is not making the conclusion that IP is valid at all and you’re just misrepresenting him merely because he uses the word “copyright”. Let’s check out what else he says:

“Since the buyer does not buy the property outright, but only on this condition, any infringement of the con¬tract by him or a subsequent buyer is implicit theft and would be treated accordingly on the free market.”

(emphasis added) This does not say anything about third parties or copies. It only addresses purchases of the original and the acts of copying by these purchasers.

Your squirming is a riot. Here is some grammar for you:

His “the buyer” is referenced “by him”. The third party that he “does not say anything about” is a “subsequent buyer”. So according to him, a “subsequent buyer” (third party) violates a contract, even though it was originally entered by “the buyer”. Why?

I understand this to mean that by accepting a copy, any copy of the author’s work, any person acquiring it implicitly consents to the terms of the author’s condition of possession. There is no escape from the causality, as I’VE explained to YOU many times, of the acquisition of the work that the copier copies. No copy can be made without an original to copy from. That original is acquired only under the terms of contract imposed by the author. Taking possession is implied consent to those terms. Violation of those terms is theft.

This is why he concludes that “The copyright is therefore a logical device of property right on the free market.”

I asked: “If there is an implied theft, as Rothbard says, then why is action taken against the copier a violation of NAP?”

You said:

Rothbard’s explanation does not address IP, only situations which are not IP.

Are you saying that copyrights are not part of the IP scheme? That Rothbard misunderstood what copyrights are? That he wasn’t talking about the legitimacy of the author’s right to enforce his contract with all subsequent possessors of his work?

I’m a falsificationist. I refute, I do not tell others what assumptions they should be making.

I don’t know what you are. If you refute, refute Rothbard. Tell us what assumptions YOU make to interpret the meaning of this passage. Enlighten us for a change, rather than to try to raise yourself above the discussion, create the irrelevant context that you need to make something false, and then argue against your own creations. Let’s see if you can shine all of that “falsification” talent on yourself. As someone recently said, falsify yourself.

In order for Rothbard to fix the gap in his argument, he would have had to address copies that are created:
- with the material belonging to someone who does not have a contract with the author
- by someone who does not have a contract with the author

OK, if you want to be the Tin Man to my Straw Man, lay it out.

How ARE copies created with such “material”? Remember now, no magic tricks. You cannot create a copy of something unless you have access to that which you are copying. You cannot just start with a copy, because that would be independent creation. It has to be a copy of something, right? So start with that “something”, under the conditions that Rothbard lays out, and explain how this can happen. Stand on Rothbard’s shoulders and tell us all what you see.

And then you can explain how this copier gets a copy without having an implied contract with the author. Remember, the original is transferred only on condition of copyrights being retained by the author, which the copier needs to make a copy.

If you have explained it many times, then it shouldn’t be a problem for you to explain it right here and now. We can all watch you try to squirm away under some pretense of “falsification”. What a crock!

Kid Salami,

Thanks for pulling this passage from Rothbard. It has proven to be loads of fun!

Peter Surda September 1, 2011 at 12:01 pm

Darn, I let Zomberry divert the flow of debate again.

Implying?

Yes.

The first line in the section Kid Salami posted is this:

I replied Kid Salami separately. Now I’m addressing your illogic.

You mean Rothbard was so confused that he didn’t even know what he was addressing?

Yes.

What does this day [sic] about the rest of this works?

Absolutely nothing.

Certainly we cannot rely on anything said by someone as confused as this.

The wonderful thing about a scientific discourse is that you don’t need to rely on others.

the defendant stole the former’s creation by reproducing it and selling it himself in violation of his or someone else’s contract with the original seller

Untrue and a non-sequitur. It is untrue because it makes implicit assumptions, and it is a non-sequitur because it only affects the ownership of the original, rather than the copy.

Start with that

I already explained it several times.

You mean that Rothbard is incapable of reasoning?

No.

This isn’t even intelligible.

On the contrary, it is quite precisely formulated. What you on the other hand produce is incoherent delirium.

What do you mean he “jumps”?

The formal term for this “jump” is “non-sequitur”. The “jump” merely attempts to portray the error more vividly.

What did he omit, and if he includes “it”, how should he have reasoned?

I already explained it several times.

What must you assume by what he didn’t say, so that what he does say is erroneous?

I do not need to “assume” anything. I am merely pointing out he made implicit assumptions.

Your squirming is a riot.

I fail to see how you can make this statement in this context.

His “the buyer” is referenced “by him”. The third party that he “does not say anything about” is a “subsequent buyer”.

Third party is not a “subsequent buyer”.

So according to him, a “subsequent buyer” (third party) violates a contract, even though it was originally entered by “the buyer”.

I don’t know why Rothbard thinks a subsequent buyer violates a contract. But let’s just for simplicity assume that it’s indeed a valid assumption. This still does not explain why the author should have any control over the copies, or over actions perpetrated by third parties.

I understand this to mean that by accepting a copy, any copy of the author’s work, any person acquiring it implicitly consents to the terms of the author’s condition of possession.

(emphasis added) You are bringing new terms into the debate in order to confuse, and misrepresent Rothbard. Rothbard never addressed ownership of the copies. He stopped his argument halfway (actually, quarterway because there are two axes).

There is no escape from the causality, as I’VE explained to YOU many times, of the acquisition of the work that the copier copies.

(emphasis added) Apparently, for some there is also no escape from idiocy. Nevertheless, the only tool we have against it is a scientific discourse. Again, bringing up new words in order to confuse.

No copy can be made without an original to copy from.

Unscientific demagoguery. The sentence is missing a verb, allowing you to use it in two meanings. You have been told this already, not only by me but by Kinsella too.

That original is acquired only under the terms of contract imposed by the author.

Same unscientific deception.

Taking possession is implied consent to those terms.

Double non-sequitur. Being able to create a copy does not imply posession of the original. And even if it did, it does not imply that the author has gained property rights in the copy. It would only mean that the copier violated the author’s rights.

Violation of those terms is theft.

No.

This is why he concludes that “The copyright is therefore a logical device of property right on the free market.”

He concludes wrongly.

Are you saying that copyrights are not part of the IP scheme?

I’m saying that merely because Rothbard uses the word “copyright”, it does not necessarily mean that he is referring to prohibition of third-party copying. Certainly his elaborations do not address this scenario. There are two possible explanations:
- he was simply unaware of missing the effect on third parties and made a logical error (non-sequitur)
- he was unaware that copyright affects third parties and used the wrong term

I don’t know which of those reflect his position accurately. He’s dead so we can’t ask him. What it, however, clearly shows, is that you are wrong. And because you have been explained this already several times, you’re a zombie.

If you refute, refute Rothbard.

See above.

Tell us what assumptions YOU make to interpret the meaning of this passage.

I only make those assumptions that Rotbhard made as well. I eliminate assumptions rather than create new ones.

How ARE copies created with such “material”?

By using your eyes, ears and brain, for example. I can see however how that might pose an insurmountable obstacle for you.

If you have explained it many times, then it shouldn’t be a problem for you to explain it right here and now.

It’s not the broadcast that’s broken, it’s the receiver.

Boooooriiiiiiiiing.

Wildberry September 1, 2011 at 12:19 pm

You are so stupid and dishonest, I wonder why I ever reply to you. Jesus. I cannot realy believe you are this stupid. Or that your mistakes are unintentional. I really have a hard time discoursing with insincere people.

-SK

I couldn’t have said it better myself.

Stephan Kinsella September 1, 2011 at 12:51 pm

“Darn, I let Zomberry divert the flow of debate again.”

Yeah, I don’t think I can talk with that moron any more.

Wildberry September 1, 2011 at 1:08 pm

Well, you two enjoy your mutual admiration society. It is very touching.

nate-m September 1, 2011 at 5:56 pm

Rather I believe they finally learned the biblical wisdom behind the phrase “Give not that which is holy unto the dogs, neither cast ye your pearls before swine, lest they trample them under their feet, and turn again and rend you.”

The only point to engage in discussion with you is to illustrate the absurdity of your arguments to people that may stumble on this blog at a later date. I doubt either one of them could care one wit for your opinion on the subject.

Unfortunately any hope of a third party gleaming value from their further efforts are defeated by the torturous ramblings and the “walls of text” that get thrown up at every attempt at clarification. Anybody wanting to learn anything from the discussion will be forced to pick it apart piece by piece. This is impossible after 3 or 4 pages. It’s too dull and too obviously a waste of mental energy. Therefore there is no point in further discussion.

Wildberry September 1, 2011 at 6:13 pm

Yes, nagte-m, I think you are right.

People who stumble on this blog at a later date will see, among other things, the style of discourse adopted by the particpants.

It is a low road, indeed.

Kid Salami September 1, 2011 at 3:21 pm

Peter

“If none of those conditions are fulfilled, according to NAP, the author has no basis for a claim on the copy.”

So this term “implicit theft” that Rothbard uses is not correct because once you have a copy of the original drawing (or whatever), doing stuff with it is not a contract violation (as you have no contract with the author and seller of the original) nor a property violation (as its your paper an ink) and as “Seeing or hearing something does not violate anyone’s property rights” and all you did was “see” the original drawing, so then this is not a violation. It can’t possibly be anything else so its ok to do as you please with the copy. I understand you right? I agree this makes some sense and is at least arguable.

Sorry to intrude on the love-in, but I’ve pointed out before your difference with Stephan on his Causaion and Aggression paper – I’m not stirring, it is fundamental and i think you are wrong, that your argument as it is subtly but definitely contradicts what is in that paper, which as I’ve said before I think is good but not consistent with the “hardline NAP” stace in the rest of Stephan’s papers. It boils down, to oversimplify, to what Stephan calls the difference between behaviour and action.

I think your “framework” ignores this and so allows you to make arguments which seem airtight to a casual observer, but in fact unless you handle this distinction they are deficient. The driver of the getaway car, for example, in that paper. What are the principles in your framework that allow us to decide that he is guilty of anything? He is simply driving his own car. He gives his mates a lift – maybe they said stuff to him but, who cares, he isn’t responsible for what they say. Are you saying that once they say this he is still allowed to just offer them a lift home at a specific time, right after thr robbery? Or is he not – is he allowed to offer them a lift at any time except just after the robbery? Shouldn’t he be ab;e to offer whoever he likes a lift wherever he likes with his own time and own car, wouldn’t this be a violation of his rights? What? What exactly is his crime?

Wildberry September 1, 2011 at 5:27 pm

Kid Salami,

Another good find. I had not read this paper. As far as I know, we have not dealt withthe matter of intent here. It is a new avenue for analysis in some ways.

Speaking of finds, I came accross William Pardy, who wrote Copyright Wars. It is an interesting anti-mercantilism/pro copyrights position taken from someone who has been a lawyer in copyright law for nearly 30 years. Worth a look.

Stephan Kinsella September 1, 2011 at 5:48 pm
Wildberry September 1, 2011 at 6:02 pm

You are right, it is Patry. Thank you.

Yes, I read through your comments here and your two-parter on Patry’s old blog.

I found this comment from you particularly interesting:

You are right, I haven’t read it. But I saw enough red flags for grave concern.

I think I said this to you earlier in this thread:

You responded to his dust jacket by simply restating your ridiculous conclusions and simplistic reliance on ancap extremism. Ho hum.

Was that too harsh?

Anyway, Stephan, you would be a lot more fun if you would actually engage in discourse, instead of leveling both barrels at anyone who doesn’t buy your entire narrative, hook, line and sinker.

No one is absolutely and totally wrong all the time, even me. Try advancing the discussion for a change.

Wildberry September 1, 2011 at 5:49 pm

Correction:

I did read this paper. It was as a result of a discussion of proximate cause with Kinsella.

I recall I was trying to make a connection between the actions of the copier and the idea of the proximate cause of the duplicate copy (the existence of which is a violation of the terms of use imposed upon the original).

The legal doctrine of proximate cause makes the same distinction being raised in this paper: action v. behavior/intentional v. unintentional. Intent is a legal requirement for liability for some illegal volitional acts. This is the standard of proof for certain torts and crimes, compared to the lower standard for say, negligence.

Obviously, reproduction of a book is a volitional act, and assuming as Rothbard does, that the copier has notice of the author’s intent in releasing his work, to reproduce it anyway has to be an intentional act.

The lame analysis of Surda here neglects this entire step in the process, and begins to look at the situation only from a position where the copier already has, mysteriously, an original to copy from, ignores the intentional action of copying, and then tries to argue the copiers right of possession from the point where he is already in possession of the copy. Since he already “has” it, it is aggression to take it away. No acknowledgement is given to the fact that copy could not exist “but for” the original, which is the controlling factor in the rights discussion. This is consistent with the Rothbard section you quote. Well done.

Kid Salami September 1, 2011 at 6:11 pm

“..begins to look at the situation only from a position where the copier already has, mysteriously, an original to copy from, ignores the intentional action of copying, and then tries to argue the copiers right of possession from the point where he is already in possession of the copy”

Exactly. If we can ignore “the intentional action of copying” because its with his own paper and ink and he just “saw” the original, then how does ths work as a general principle – can I also just offer my mates a lift outside the bank because I have title to the car and i just “saw” them planning a robbery? Is stopping me offering them this lift aggression?

Stephan Kinsella September 1, 2011 at 7:28 pm

The getaway driver is responsible. See Causation and Aggression http://mises.org/journals/qjae/pdf/qjae7_4_7.pdf

Peter Surda September 2, 2011 at 1:24 am

Kid Salami,

If we can ignore “the intentional action of copying” because its with his own paper and ink and he just “saw” the original, then how does ths work as a general principle – can I also just offer my mates a lift outside the bank because I have title to the car and i just “saw” them planning a robbery?

As I said above, even if an act is a violation of property rights, it does not mean any of the following:
- the property of the violator (the tool assisting in the violation in particular) is transferred to the victim
- acts causally related to that violation (i.e. subsequent ones) are also a violation of property rights

Non-sequitur, Kid. I expected more of you.

Wildberry September 1, 2011 at 6:26 pm

Well, we seem to agree completely.

It is odd, though, that such an obvious point made by one of the great heroes around here, can be so thoroughly and cavalierly dismissed and denied. All I personally wanted to hear was something like, “Yes, Rothbard infers an implied contract by way of the copyright notice binding anyone who takes possession. I disagree because…” or whatever.

Instead it draws all of this other “stuff” and always from the same few, constant personalities who are last to leave the party. Anyway, it’s good to hear from you and glad to see your handle back on these pages.

Stephan Kinsella September 1, 2011 at 7:38 pm

So are you against unbridled competition, like IP proponents are? Or, would you oppose the anti-dog-eat-dog rule of Atlas? Which is it?

Wildberry September 1, 2011 at 11:15 pm

@ Stephan Kinsella September 1, 2011 at 7:38 pm

Excuse me while I suspect a false dichotomy.

I am for competition, but I don’t know what you mean by “unbridled”. If this means limited only by an enforceable system of private property rights, with little or no interventionism/mercantilism, then yes, I suspect I would be for it. Since the anti-dog-eat-dog rule is a manifestation of interventionism/mercantilism, then I suppose I would be against it.

Yet I hold the principle of IP as legitimate. I have a concept of “unfair competition” which is an integral part of private property rights, including trade secrets and trademarks, copyrights and patents.

Implemented within the free-market framework as Mises describes it, this is consistent with what I think is beneficial economic policy; i.e. private ownership of the means of production. In short, I favor capitalism over socialism.

I think our fundamental difference of opinion is that you apparently cannot triangulate the statements above with a consistent view of a libertarian, or perhaps classically liberal political philosophy. I believe it is your position that Ancap is the only truly consistent position of libertarianism. I would suggest to you that your adherence to the Ancap political philosophy impairs your ability to view these matters clearly and objectively.

As an illustration, even with Rothbard, who you otherwise hold out as the giant of political philosophy, standing on the shoulders of a giant I think is how you put it, you cannot interpret his plain language as being coherent, since it contradicts on its face your ultimate conclusion, that IP is inconsistent with Ancap. He argued that it was fully compatible with a free market economy. Even though you disagree, Rothbard seems to be saying that at least copyrights are not inconsistent with NAP, which contradicts one of your most essential tenets of the anti-IP view.

I suspect this is why you get snippy when someone asks reasonable questions about exactly where your view and those who disagree diverge. After all, in the end it is just questions, which shouldn’t be reason to get pissed off about them being asked. Others here follow your stylistic lead. If Mises.org is attempting to hold itself up as a beacon for liberty and freedom, I should think we would all want to take the higher road.

Peter Surda September 2, 2011 at 1:07 am

Zomberry,

Yet I hold the principle of IP as legitimate.

Yet you have not even explained what this “principle” is.

Stephan Kinsella September 2, 2011 at 6:32 am

I am for competition, but I don’t know what you mean by “unbridled”. If this means limited only by an enforceable system of private property rights, with little or no interventionism/mercantilism, then yes, I suspect I would be for it. Since the anti-dog-eat-dog rule is a manifestation of interventionism/mercantilism, then I suppose I would be against it.

Yet I hold the principle of IP as legitimate. I have a concept of “unfair competition” which is an integral part of private property rights, including trade secrets and trademarks, copyrights and patents.

haha. Well see the post above, quoting the pro-IP guy saying:
“Governments adopt intellectual property laws in the belief that a privileged, monopolistic domain operating on the margins of the free-market economy promotes long-term cultural and technological progress better than a regime of unbridled competition”

This “unfair competition’ is your weasel word that lets you oppose “unbridled competition” in the same way.

And that is why I asked you how you could oppose an anti-dog-eat-dog rule; you can’t.

I think our fundamental difference of opinion is that you apparently cannot triangulate the statements above with a consistent view of a libertarian, or perhaps classically liberal political philosophy.

Triangulate? You just cannot avoid vague talk and metaphors, can you?

I believe it is your position that Ancap is the only truly consistent position of libertarianism. I would suggest to you that your adherence to the Ancap political philosophy impairs your ability to view these matters clearly and objectively.

Ancappism is not what drove me to anti-IP. Many minarchists also oppose IP.

As an illustration, even with Rothbard, who you otherwise hold out as the giant of political philosophy, standing on the shoulders of a giant I think is how you put it, you cannot interpret his plain language as being coherent, since it contradicts on its face your ultimate conclusion, that IP is inconsistent with Ancap. He argued that it was fully compatible with a free market economy. Even though you disagree, Rothbard seems to be saying that at least copyrights are not inconsistent with NAP, which contradicts one of your most essential tenets of the anti-IP view.

He was talking about a narrow set of contract-based “free market” copyright, and was a bit vague and incomplete. But even if you are right: all that means is Rothbard was wrong here. So what?

Wildberry September 2, 2011 at 10:23 am

@Stephan Kinsella September 2, 2011 at 6:32 am

Governments adopt intellectual property laws in the belief that a privileged, monopolistic domain operating on the margins of the free-market economy promotes long-term cultural and technological progress better than a regime of unbridled competition.

… Intellectual property laws typically provide qualified creators with temporary grants of exclusive property rights that derogate from the norms of free competition in order to overcome the “public goods” problem inherent in the commercial exploitation of intangible creations.1

You mean this quote from Reichman? Never heard of him before now, but these are his words, not mine. Nonetheless, he says a good deal here that is open to interpretation.

As I suspected, you are trying to use the term “unbridled competition” to mean more that one can possibly infer from this passage. It appears that he is restricting his usage here to a distinction between a market that acknowledges IP and one that does not. It is unreasonable to go beyond that limited meaning and try to hold me accountable for your broad interpretation, out of context, of what he says here. You asked me a question and I responded, let’s stick with that.

To take your apparent point to the extreme, one could describe a “might-makes-right” society as favoring “unbridled competition”. Do you support that meaning? If not, then you would have to describe what it means to “bridle” competition. Does it mean there are ethical rules that are enforceable, rules of private property, for example? How about other rules, like NAP? Each assumption would “bridle” “unbridled” completion. At some point, our assumptions would clash. That is what is being debated here.

So when you say:

This “unfair competition’ is your weasel word that lets you oppose “unbridled competition” in the same way.

And that is why I asked you how you could oppose an anti-dog-eat-dog rule; you can’t.

You are simply ascribing your interpretation of your question to my answer, without addressing the issue I raised; whether a concept of “unfair competition” is reasonable and legitimate. For example, if you believe that the person with the bigger stick should be able to “capture” property, we might disagree as to whether that is “fair completion”. I told you my position, but you say I “can’t” hold it. Why?

To say I’m using a “weasel word” is wrong. I think you understand from past discussions that I believe there are limitations that are appropriate to the concept of “unbridled competition”; I don’t think you should compete with me by setting up a hotdog stand in my hotel lobby, for example. To extrapolate that to mean that I would be in favor of the dog-eat-dog rule is just dishonest, and you know it.

Triangulate? You just cannot avoid vague talk and metaphors, can you?

Are you German? Is it necessary that I only speak in literal terms for you to discern my intended meaning? Who are you trying to kid?

If don’t know what I mean by “triangulate” let me explain. It is a reference to navigation. Knowing one’s position relative to three known positions allows one to fix one’s physical position with some precision. I described my position as being in a “location” that can be “triangulated” by the holdings I offered. OK?

Now, did you really not understand that, or did you just want to criticize style over substance?

Ancappism is not what drove me to anti-IP. Many minarchists also oppose IP.

Perhaps you truly believe they are separate things, but from here it appears that you triangulate (OK now?) on being anti-IP and Ancap, and that you move smoothly between the two arguments. Wasn’t it you who said, “We have IP because we have the State”? That is one example.

As for minarchists, I suppose it is possible to be against IP and against Ancapism. In any case, that does not apply to either you or me. The issue I’m raising is not which position you adopted first, but that your anti-IP arguments are tightly bound up with your Ancapism, and that comes through quite often. If you want to keep them separate, that would be fine by me.

He was talking about a narrow set of contract-based “free market” copyright, and was a bit vague and incomplete. But even if you are right: all that means is Rothbard was wrong here. So what?

Maybe so, maybe not. That is the question being raised. But it seems that the anti-IP people here want to discuss everything BUT the questions that are raised. If this is your position, that Rothbard was wrong, then a simple explanation open to further inquiry is all that was called for.

And by the way, please call off your lap dog. Surda’s constant ankle-biting does nothing but bring down the decorum of the entire neighborhood.

Wildberry September 2, 2011 at 3:42 pm

First of all, Fido, I wasn’t asking you.

Second, you are confused between the concepts of “responding” and “answering”.

For example, lap dogs might respond to a sound at the door by barking and prancing nervously on their front paws, but that is not the same as the ability to answer the door.

FYI that is an analogy employed for the purpose of comparing similarities between dissimilar objects with common features or attributes which the speaker finds relevant. It is a successful analogy if the listener understands that relevance within the context of the conversation.
Because I know you are very literal, I will spell it out for you. I am drawing a comparison between the behavior of the lap dog, and your posts here. Because you respond, you erroneously think you are giving an answer; because you say something, you think you are saying something relevant. I am raising a distinction between a meaningful, relevant response, and a behavioral response which has no purpose or value, and is an annoying experience.

Just as the lap dog is compelled to bark and prance nervously at any sound, you are apparently compelled to respond with irrelevant meanderings without context, coupled with a need to be vulgar and rude.

I find your posts here useless and annoying. I think you need to chill, wipe the spittle from the corners of your mouth, and come back later with a new attitude. In the alternative, a rolled up newspaper might work.

Peter Surda September 3, 2011 at 1:29 am

Fraudberry,

I find your posts here useless and annoying.

In other words, you are unhappy about your fraud being exposed.

Peter Surda September 2, 2011 at 1:26 pm

Zomberry,

But it seems that the anti-IP people here want to discuss everything BUT the questions that are raised.

Hypocrite. It would be funny but it’s just dumb-dumb-dumb-dumb-dumb.

Wildberry September 2, 2011 at 2:15 pm

Are those your toenails clicking on the floor? Nothing more annoying than a yapping lap-dog!

Peter Surda September 2, 2011 at 2:59 pm

Hypocriteberry,

I challenge you to find a single question I did not answer.

Wildberry September 2, 2011 at 3:57 pm

This: Wildberry September 2, 2011 at 3:42 pm
was supposed to post here…

Wildberry September 2, 2011 at 5:31 pm

@ Peter Surda September 2, 2011 at 2:59 pm

I challenge you to find a single question I did not answer.

This one:

http://blog.mises.org/18210/ayn-rands-anti-dog-eat-dog-rule-and-intellectual-property/#comment-799560

Peter Surda September 3, 2011 at 12:55 am

Hypocriteberry,

the referenced question was posted after my challenge. You’re a fraud as usual. Then there’s an auxiliary problem that it was not posted by you but Kid Salami but it’s fine.

Dumb-dumb-dumb-dumb-dumb.

Peter Surda September 2, 2011 at 1:17 am

Zomberry

The legal doctrine of proximate cause ….

Has nothing to do with copying as such. Again you are equating causality (or in this case, “proximate cause”) with a violation of property rights. Also, it is a non-sequitur. The doctrine of proximate cause says that if there is a violation of rights, then someone causally related to this violation might be held accountable. This skips over the requirement to show that copying is a violation of rights in the first place.

The lame analysis of Surda here neglects this entire step in the process, and begins to look at the situation only from a position where the copier already has, mysteriously, an original to copy from, ignores the intentional action of copying,

Non-sequitur. Even if the action was for some reason a violation of the author’s rights, it does not mean that the ownership of the copy is transferred to the author, just like the ownership of a getaway car is not transferred from the driver to the bank, should the driver assist a robber.

and then tries to argue the copiers right of possession from the point where he is already in possession of the copy.

Well then next time you look at a book, I’ll tell the author to stab your eyes. Sounds fair.

Boooorriiiiiiiing. The zombie is back, oblivious to what occurred yesterday and impervious to logic as always.

Andras September 2, 2011 at 2:03 am

Man,
At the moment your master shows some civility and hope for productive discussion you jump in and stir the shit. Be a good sidekick, have a domesticated moment.
BTW, Boredom qualifies the bored not his subject: If you were in control of your choices, like a man aspiring for liberty would, you had two choices:
1) get interested by understanding or
2) drop him and find something interesting.

Peter Surda September 2, 2011 at 3:09 am

Andras,

since the only thing you do here is whine, maybe you should shut up.

Wildberry September 2, 2011 at 10:32 am

So much for the domesticated moment!

Kid Salami September 2, 2011 at 10:40 am

http://www.snpp.com/episodes/BABF07

Skinner: As for the school, we are exploring various options to raise the $200,000 we need.
Ned: I’ve got a motor home I never use; maybe we should raffle it off.
Homer: [eating food] Maybe you should shut up.

Peter Surda September 2, 2011 at 1:46 am

Kid Salami,

It can’t possibly be anything else so its ok to do as you please with the copy. I understand you right? I agree this makes some sense and is at least arguable.

Yes, the explanation is correct. There are other minor issues but this is the main point of the argument.

that your argument as it is subtly but definitely contradicts what is in that paper, which as I’ve said before I think is good but not consistent with the “hardline NAP” stace in the rest of Stephan’s papers.

I don’t think so, and am prepared to explain it.

What are the principles in your framework that allow us to decide that he is guilty of anything?

One of the necessary conditions is that the act causes a violation of property rights in the first place. I refuted that in the elaboration which you just summarised. If a robber is running away from a robbery, he is violating the victim’s rights. The fact that he’s running is actually irrelevant, what is relevant is that he’s holding stolen goods. If you’re driving him, you’re helping him violate the rights. Arguably, this is a violation of rights too (I don’t entirely agree with Stephan here).

But when you get a hold of a copy, or are copying a copy which does not belong to the author, you are not assisting anyone. It is the act of copying the original that might be a violation of rights, but the act of posessing the copy is not. Even current obfuscated law does not claim this. The fact that the copy is a result of a violation of rights has no legal effect on subsequent actions of the posessors of the copy. If it was, it would be illegal to look at a robbery taking place. It’s an absurd concept.

Then there are auxilliary problems, i.e. that even if the act was a violation of rights, it does not necessarily mean that the ownership of the copy is transferred to the author. In your analogy, you would have to explain how the ownership of the car is transferred from the driver to the bank. The bank might request the driver not to drive as long as the robber is inside, and maybe even damage it to the extent it’s incapable of driving. There is still no reason why they would take ownership of the car. The analogy is that an author might be legitimate to interfere with the action of copying (perpetrated with his property or by people who are in a contractual relationship with him) in progress, but once the copy is made, he has no basis for action. Just like a bank has no basis to request that the driver drives to the place where he was prior to the bank robbery, an author has no basis to request that the copy be unmade.

Are you saying that once they say this he is still allowed to just offer them a lift home at a specific time, right after thr robbery?

Even though I don’t agree with Stephan entirely, I can still agree with his necessary conditions and show how your analogy is wrong. The necessary condition is that the robbers are violating rights of the bank at the time the driver is driving. Once they get out, he might owe the bank damages, but there is no legal reason to do anything with the car. He can drive anywhere he wants. At best, the police (not the bank) confiscates his driver’s license. The analogy would be that the author can interfere with the act of copying in progress that occurs in either a violation of his property rights, or as a condition described in a contract he has with some of the perpetrators. Once the copy is made, its ownership is not transferred to the author.

Shouldn’t he be ab;e to offer whoever he likes a lift wherever he likes with his own time and own car, wouldn’t this be a violation of his rights?

I explained the error in this analogy.
- it assumes that acts subsequent to a violation of rights are a violation of rights
- it assumes the ownership of the tools used in a violation of rights is transferred to the victim.

Non-sequitur, Kid.

Stephan Kinsella September 2, 2011 at 6:40 am

Peter, what is your view of the causal role and responsibility of a co-conspirator to a crime? I did not pay close attention to the details of the getaway driver example he gave–I was assuming the classical situation where you have a criminal conspiracy to engage in joint action, some kind of crime. If A and B rob a bank, and they hop on a bus after to escape, the bus driver is not responsible, he is not a co-conspirator–he has no criminal intent, etc. But if A, B and C plan to rob the bank, each having different roles: A and B to do the stickup, C to wait outside for them, why would C not be jointly liable with A and B?

Peter Surda September 2, 2011 at 8:30 am

Hi Stephan,

Peter, what is your view of the causal role and responsibility of a co-conspirator to a crime?

I don’t have a sufficiently defined position on this. As I said, I am prepared to say that causing the crime is a necessary condition for responsibility, but that’s as far as I’m willing to go.

When conspiracy is there and help is given during the actual act of the crime (in the narrow sense, i.e. between robber taking out a gun at the bank clerk at the beginning and the capture of the robber and repossession of stolen goods at the end), then I lean towards responsibility. Also, as you explained, if you help while unaware that you are assisting a crime in progress, it might be a mitigating factor. You also addressed this in your Causation and Aggression article, I read it in the past, I recall the example with the mail bomb.

I have reservations about acts prior to that (even if they were done with the knowledge of the future crime). For example, gathering publicly available data on bank’s security and presenting a report to the future robber. Selling a gun to the robber knowing he wants to rob a bank. Finding out about the planned robbery and blackmailing the robber instead of telling the bank.

With regards to the acts after the robbery, I think it’s obvious. These acts cannot cause the robbery or the possession of stolen goods to occur. Causality does not work backwards. So there is no responsibility.

Kid Salami September 2, 2011 at 3:02 am

“One of the necessary conditions is that the act causes a violation of property rights in the first place. I refuted that in the elaboration which you just summarised. If a robber is running away from a robbery, he is violating the victim’s rights. The fact that he’s running is actually irrelevant, what is relevant is that he’s holding stolen goods. If you’re driving him, you’re helping him violate the rights. Arguably, this is a violation of rights too (I don’t entirely agree with Stephan here).”

I have no idea how this is supposed to answer my question – I still don’t know if you think driving getwaway cars makes you guilty of a crime in your framework or what principles of yours we might apply to a specific scenario to answer this question.

Then despite how quick you are to accuse others of obfuscating, you do what you and the others ALWAYS do and move away as quickly as possible from the tangible property scenario which is under discussion set up and inject copyrights into the mix to confuse. Whether or not this applies to copyright is a second discussion – but we can’t get to this until you clearly illustrate how your framework handles the first less controversial scenario.

Peter Surda September 2, 2011 at 3:56 am

Kid Salami,

I still don’t know if you think driving getwaway cars makes you guilty of a crime in your framework.

You have not explained why it is relevant.

you do what you and the others ALWAYS do and move away as quickly as possible from the tangible property scenario which is under discussion set up and inject copyrights into the mix to confuse.

I challenge the premises my opponents’ arguments are based on.

Let us then summarise.

If A perpertrates a crime, and B knowingly helps him perpetrate the crime, B might be liable to the victim. You could for simplification say that B perpetrates the crime too. Or if using causality, B causes the crime (posession of stolen goods by A) to occur. I don’t necessarily agree that this conclusion always follows, but let’s just assume that helping is a necessary (rather than a sufficient) condition. A person must cause a crime to be liable for it

If A perpetrates a crime, and B reacts to it (knowingly or not), but does not affect the progress of the crime, he cannot be liable for anything. Using causality, B did not cause the crime. If I see a getaway car or a stolen book, I can take as many pictures of them as I want. The pictures do not become property of the victim.

Hopefully, this is clear. Now let us address the second problem, the consequences of a crime. If B causes a crime and V is the victim, a legal system can define some sort of restitution. This restitution burdens B and benefits V. For example, return of the stolen property of V, repairs of damaged property of V, compensation for the enforcement costs and so on. There is no requirement that the tools of the crime be transferred to V after the crime is perpetrated. If anything, nowadays the police confiscates them. V gets no dibs. In some legal systems, you might get your hands cut off if you steal. I don’t think thought that the ownership of the cutoff hand is transferred to the victim.

In order for the illegality of copying to “propagate”, you would need to show how the ownership of the copy is always transferred from a criminal to the author. You have failed to show how is it transferred at all. We merely established (above), that it’s hypothetically possible, but far from being the norm. Also, you neglect to address the situation where the copy is owned by someone who is not a criminal.

So your analogy is double wrong. I already explained this. Read.

Stephan Kinsella September 2, 2011 at 6:48 am

Peter, I agree w/ you here on the inapplicability of the analogy; and I think I agree with your causal analysis. I agree that some B is not *always* necessarily a co-”cause” of A’s crime–I don’t think it’s some mechanical analyis.

Wildberry September 2, 2011 at 10:51 am

Analogies are fine if you guys use them? It would help if they were accurate:

If I see a getaway car or a stolen book, I can take as many pictures of them as I want. The pictures do not become property of the victim.

You are asserting that “photograph” is to “car” as “photograph” is to “book”.

This is an equivocation of two acts of “use”.

You cannot “drive” a photograph of a car, but you can “copy” a photograph of a book.

Unless of course you only meant a photograph of, say the cover of the book. If that is what you meant to imply, then your analogy is fine, because you can’t “use” either photograph in place of the object.

It is a rather important distinction, don’t you think?

Peter Surda September 2, 2011 at 1:22 pm

Zomberry,

You are asserting that “photograph” is to “car” as “photograph” is to “book”.

And you are asserting that it is not, for some unexplained reason.

This is an equivocation of two acts of “use”.

You fail to describe the difference.

You cannot “drive” a photograph of a car, but you can “copy” a photograph of a book.

You can put a photograph on fire, and you can put a car on a fire too. It’s the same use.

Unless of course you only meant a photograph of, say the cover of the book. If that is what you meant to imply, then your analogy is fine, because you can’t “use” either photograph in place of the object.

Sure you can. You can put both on fire, for example. Or rip them apart. Or spray them over. Or defecate on them.

It is a rather important distinction, don’t you think?

A random incoherent distinction. You can do that with almost any two objects (i.e. find something you can do with both).

Also, you can wipe your ass with a page from a book, but not with a kindle. So copying books onto kindle is, presumably, fine, in the fairy tale world of yours.

Dumb-dumb-dumb-dumb-dumb.

Kid Salami September 2, 2011 at 5:05 pm

It would be better if you answered the questions i asked and not the ones you hoped/thought/imagined.

I asked: Are you saying that once they say this he is still allowed to just offer them a lift home at a specific time, right after thr robbery?

Even though I don’t agree with Stephan entirely, I can still agree with his necessary conditions and show how your analogy is wrong. The necessary condition is that the robbers are violating rights of the bank at the time the driver is driving. Once they get out, he might owe the bank damages, but there is no legal reason to do anything with the car. He can drive anywhere he wants. At best, the police (not the bank) confiscates his driver’s license. The analogy would be that the author can interfere with the act of copying in progress that occurs in either a violation of his property rights, or as a condition described in a contract he has with some of the perpetrators. Once the copy is made, its ownership is not transferred to the author.

I don’t see an answer there.

If the bank owner shouts that the bank is being robbed, then he is no longer “allowed” to offer his mates the lift home, despite him owning the car and him not directly invading anyone’s property, as this would leave him liable in some way, right? So his behaviour has been restricted by something he saw/heard – or to put it another better way, offering them the lift home after hearing about the bank robbery means force can be used against him; without the shout of robbery or any other sensory information suggesting robbery, his offer of the lift can’t result in a legal use of force against him.

Do you agree that his behaviour is restricted (in the sense I just described) by what he saw/heard?

Peter Surda September 3, 2011 at 1:21 am

Kid Salami,

It would be better if you answered the questions i asked and not the ones you hoped/thought/imagined.

You made this up. Read.

Are you saying that once they say this he is still allowed to just offer them a lift home at a specific time, right after thr robbery?

As long as the robber holds the stolen goods, it is not “right after the robbery”. The violation of property rights by the robber is still in progress.

I don’t see an answer there.

Then read again.

If the bank owner shouts that the bank is being robbed, then he is no longer “allowed” to offer his mates the lift home, despite him owning the car and him not directly invading anyone’s property, as this would leave him liable in some way, right?

The stolen goods being in a possession of the robber is a violation of the bank’s property rights. Driving the robber while he is in a possession of the goods is causing the violation to continue. So, the necessary condition is fulfilled (the acts of the driver cause the violation). Whether this is a sufficient condition is another issue. It is not the yells that create liability or restrict actions.

A different matter would be driving someone away after an assassination. There the act of the assassin running does not violate anyone’s rights, so there is also no basis for a liability. Driving the assassin to the assassination, on the other hand, does cause the assassination to commence, so the basis is present.

So his behaviour has been restricted by something he saw/heard – or to put it another better way, offering them the lift home after hearing about the bank robbery means force can be used against him; without the shout of robbery or any other sensory information suggesting robbery, his offer of the lift can’t result in a legal use of force against him.

The fact that the bank owner acted (yelled “robbery”) is in general irrelevant. You can also deduce that a robbery occurred e.g. by seeing the robber running with a mask, even though you might not know whom he robbed or what he took. Furthermore, I don’t think knowledge of a violation of rights is a necessary condition of being liable, although it might affect the scope of liability.

The deciding factor is not driving the robber, but driving the stolen goods. If the robber drops the goods, the basis is eliminated.

without the shout of robbery or any other sensory information suggesting robbery, his offer of the lift can’t result in a legal use of force against him.

But the sensory information does not need to come from any bank employee or bank property. You can come to the same conclusion by observing a robber too. Heck, you might be able to conclude the robbery if you observe him prior to the robbery as well. So the whole analogy is flawed, because it shows you do not use the property of the victim to determine liability. You use causality. And in the case when you realise a robbery is going to happen soon, there’s even no causality but deduction (as the realisation that a robbery is about to occur is not the consequence of the robbery). This is something entirely new.

Do you agree that his behaviour is restricted (in the sense I just described) by what he saw/heard?

No. His behaviour is restricted by him causing a violation of property rights: transport of the stolen goods. Knowledge is not necessary.

Give it up Kid.

Kid Salami September 3, 2011 at 8:36 am

This response is a ludicrous mess, making irrelevant distinctions specific to this case like “while he is in a possession of the goods” but elsewhere pointing out how my specific example is not in the most general form??

But I don’t need to parse this in detail, I’ve made my point. You agree then that there are some acts that today (like some of those as an accessory or aiding and abetting where the causality that you insist upon is not there) that are not and would be crimes on Planet Surda. There are some acts which you have to regard as “behaviour” and thus unpunishable rather than the “action” (and therefore punishable) they are treated as in current law in order to maintain your house of cards.

Yet more a priori reasonging trumping hundreds of years of history. Don’t tell me, these are evil state laws. Or people relying on the existence of these just have the wrong business model.

Peter Surda September 3, 2011 at 9:32 am

Kid Salami,

This response is a ludicrous mess, making irrelevant distinctions specific to this case like “while he is in a possession of the goods” but elsewhere pointing out how my specific example is not in the most general form??

you have failed to make a coherent argument. The relevance of all the conditions you presented have been refuted, all the questions you posted have been answered.

You agree then that there are some acts that today (like some of those as an accessory or aiding and abetting where the causality that you insist upon is not there) that are not and would be crimes on Planet Surda.

I fail to understand the relevance of this. You are merely explaining that my stance leads to different conclusions that the current laws. Please clarify if you think there is an error in my argument.

There are some acts which you have to regard as “behaviour” and thus unpunishable rather than the “action” (and therefore punishable) they are treated as in current law in order to maintain your house of cards.

On the contrary. It is the current law that is a house of cards, making incoherent justification for punishing acts which do not violate anyone’s rights. It also makes it more difficult to determine whether an act is or is not legal. If it wasn’t for the propaganda and demagoguery, these laws would not be enforceable, because it would be evident that they violate property rights.

Yet more a priori reasonging trumping hundreds of years of history.

This is not an argument. Historically, status of all kinds of actions was changed from legal to illegal and vice versa.

Peter Surda September 3, 2011 at 9:57 am

Furthermore,

There are some acts which you have to regard as “behaviour” and thus unpunishable rather than the “action” (and therefore punishable)…

This is not my argument. My argument is that an act that does not cause a crime cannot be punished for this crime. Are you serious in claiming that knowingly providing services to criminals is a crime too? I already explained the absurdity of this to Dumberry some time ago. What about providing food to prisons? Is that a crime too?

Wildberry September 3, 2011 at 2:41 pm

@Peter Surda September 3, 2011 at 9:57 am

My argument is that an act that does not cause a crime cannot be punished for this crime. Are you serious in claiming that knowingly providing services to criminals is a crime too? I already explained the absurdity of this to Dumberry some time ago. What about providing food to prisons? Is that a crime too?

Duh…are your really so obtuse that you don’t understand the difference between feeding a prisioner and driving the getaway car during or after the comission of a crime?

Let me help you: one is done in furtherance of a crime, and the other is not. Knowledge of the actor as to which is which is the determining factor. Therefore, feeding a prisoner is not a crime, while even hiding a criminal from the police when you know they committed a crime, is. It is what the actor knows when he acts that makes the difference.

You are a prime example of why a priori reasoning is not sufficient to solve all problems, and why the wisdom of years and even centuries of common law doctrine is more intelligent that even you, o great logical wizzard, aka Fido, can ever be.

You think destroying context and fabricating irrelevant facts makes your response a “rubuttal”, that you have “falsified” something, while in fact your are merely showing the errors of your own creation. Your post here is more than adequate to demonstrate this.

Kid Salami led you by the nose to the edge of the cliff, and as you walk over the edge, you keep on talking as if you are making a brilliant point. Don’t look now, but you are about to meet the bottom. Reality bites.

Kid Salami September 3, 2011 at 7:53 pm

“…knowingly providing services to criminals is a crime…”

Man, I’d better go back and edit my post, I didn’t mean to say that! I really meant to use specific legal terms like “accessory” or “aiding and abetting” (terms which only an idiot would confuse with feeding prisoners in a prison). I must have in fact used this vocab instead, as obviously Peter wouldn’t have just pulled it from thin air and then rebutted it.

Peter Surda September 4, 2011 at 1:56 am

Kid Salami,

“accessory” or “aiding and abetting”

You omit the logical inconsistencies in your argument. You cannot be “accessory” or “aiding and abetting” when you did not cause the crime. That is logically impossible. Driving a robber to the bank did cause the crime. But driving him from bank (without stolen goods, e.g. the robbery failed) did not.

The case though is highly improbable to actually occur like this, because if the driver promised to the robber in advance he would drive him away, that creates causality already. So the driver couldn’t communicate about the drive with the robber prior to the robber dropping the goods (or in case the robbery failed to take the goods in the first place, before the robber left the bank’s premises). I find it difficult to imagine a combination of conditions like this, it’s merely hypothetically possible. Also, see IT Crowd S03E02.

only an idiot would confuse

You fail to provide the definition of the distinguishing factor. This reminds me back to Kerem who claimed that his four year old can differentiate between “natural reflection” and “copying”.

Really Kid, you should know better.

Peter Surda September 4, 2011 at 2:10 am

Dumberry,

one is done in furtherance of a crime, and the other is not

Driving a robber without stolen goods is not a furtherance of a crime.

Knowledge of the actor as to which is which is the determining factor.

This is wrong and I already refuted this. Knowledge alone is not a determining factor. The most you can claim is that the combination of furtherance and knowledge is a determining factor.

Therefore, feeding a prisoner is not a crime, while even hiding a criminal from the police when you know they committed a crime, is.

Why is hiding a criminal from the police a crime and feeding him in prison not? The crime does not end with the criminal being captured. He could have hidden the goods so well they have not been recollected even though he’s in prison. Feeding him can be furthering the crime too: maybe if you starved him a bit he would disclose the location of the goods. Also, what if the robber (without) stolen goods stops at a hot dog stand, is selling him the hot dog a crime or not?

Total fail, Dumberry. The logical aspect is absent. Rather you present an emotional outburst. How dare I advocate helping the criminal!

You are a prime example of why a priori reasoning is not sufficient to solve all problems…

You are a prime example why demagoguery has taken over the world. People fall for the nonsense like the one you produce because the demagogue makes it appear like he cares for them.

You think destroying context and fabricating irrelevant facts…

Lol, that is what you are doing! You are picking up arbitrary facts, putting them together in a random combination and derive random conclusions.

Don’t look now, but you are about to meet the bottom.

As a zombie you must know all about being one with the ground.

Wildberry September 2, 2011 at 6:59 pm

Mr. Kinsella,

After your recent attempt here to pigeonhole me as someone who supports the anti-dog-eat-dog rule in reference to the quote you pulled out from Jerome H. Reichman, I followed your link and read the paper. It was much more interesting than you seem to grant in your brief article here.

Since the only portion of the paper you shared was the very first line of the introduction, I am uncertain if you read the entire article. He is much more anti-IP than you imply from your comments. You might not be surprised that I am inclined to agree with what he puts forward here, but probably not for the reasons you imagine.

The paper attempts to accomplish a couple of things. One, which you identified, is to describe the fundamental logic behind the historical principles of IP, and how the world of IP is divided between patents, copyrights, and that subject matter that falls outside the scheme of either of these two, i.e. trademarks, trade secrets, unprotected literary and industrial works and innovations, the public domain, etc.

Second, he describes the examples that often appear in your “parade of horrors” as being a “hybrid” form of protectionism that undermines the principles of both patent and copyrights, is consistent with neither, generates numerous contradictions, and is born out of what I have described as mercantilism, and what he calls protectionism; software patents/copyrights is one obvious example, but he gives many others, and wrote a separate paper on these hybrid forms of IP.

He calls for massive reform of the existing international IP system, because he believes this growing body of hybrid protectionism is undermining the fundamental principles that have historically existed, and in addition, that the historical models are no longer adequate to modern technological society.

This is consistent, in many ways to the position that Patry takes on copyrights. Other than the fact that he does not advocate the complete abolition of IP along with the State, I think there is much in this paper that you might actually agree with. He is a harsh critic of the existing system, a conclusion that you did not emphasize. Here is his closing sentence:

Sooner or later, unless legislators combat these twin evils in the interests of a more rational and constructive approach that seeks to place both innovators and borrowers in a win-win position over time, an increasingly discredited intellectual property system risks collapsing of its own protectionist weight.

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