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Source link: http://archive.mises.org/18612/classifying-patent-and-copyright-law-as-property-so-what/

Classifying Patent and Copyright Law as “Property”: So What?

October 4, 2011 by

In recent papers, two pro-intellectual property libertarians, Richard Epstein and Objectivist Adam Mossoff, try to defend IP by arguing that it “can” be treated like property by a legal system.

In Epstein’s case, see his The Structural Unity of Real and Intellectual Property (video) (discussed here) and his The Disintegration of Intellectual Property? A Classical Liberal Response to a Premature Obituary. From the abstract of the latter piece:

The title of this paper plays off the title of Thomas Grey’s well known article, The Disintegration of Property, which argued in part that the ceaseless consensual fragmentation and recombination of property rights revealed some inner incoherence of private property institutions. I take the opposite position and treat this supposed disintegration as evidence of the robust nature of private property rights, not only for land but for all forms of intellectual property.

From the text of the former article:

My historical path influences the way I think about intellectual property. While others might look first to the statutes or the case law, I take a step back from these particulars. I first try to understand something about the general configuration of property rights as it works for various kinds of material objects. So armed, I then asked how intellectual property fits into the general framework. I did not start with the question of why intellectual property in its various forms is unique and distinct. To me the key question is how much of basic understanding about property rights carries over into intellectual property.

… The next question is how do these four elements [for treatment of physical resources]—exclusion, disposition, fragmentation and concentration—combine when the task is to examine the universe of intellectual property? And the answer is, it translates amazingly well.

Mossoff, in his draft chapter “Commercializing Property Rights in Inventions: Lessons for Modern Patent Theory from Classic Patent Doctrine,” ((George Mason Law & Economics Research Paper No. 11-27; forthcoming in Competition Policy and Patent Law Under Uncertainty: Regulating Innovation, Geoffrey A. Manne, Joshua D. Wright, eds., Cambridge University Press, 2011.)) argues (from Abstract):

At the start of the Industrial Revolution, patentees created many novel and complex transactions to commercialize their property: they maximized their profits through sophisticated agreements that imposed restrictions on manufacturing, sales, and other uses of their inventions. When these restrictions were challenged as invalid restraints on property, courts consistently upheld them. They did so by employing the same concepts and doctrines used by common law courts to validate the creation of lesser estates or restrictive covenants for real property. In sum, early American courts incorporated into patent law the same legal doctrines governing conveyances of real estate, even going so far as adopting the common law property concepts of “assignments” and “licenses.” Given widespread confusion today concerning patent conveyance doctrines, this chapter explains the structure and content of this now-forgotten doctrinal framework.

This analysis is descriptive (or positive, in economic parlance), but patent theorists today can draw at least two important lessons from it. First, it reveals how traditional property theory is determinative in patent law. Early American courts secured to patentees the same conveyance rights as owners of real estate because patents were “property.” Thus, by definition, patentees enjoyed the same rights as those of landowners – the exclusive rights of use, enjoyment and disposal. Courts applied to patentees the same legal rules for conveying estates, and thereby permitted patent-owners to sue downstream infringers if there was a properly created reversionary interest. Second, patents are now defined as securing only a right to exclude, and this has unhinged patent conveyance doctrines from their firm conceptual grounding in property law. When novel issues are presented to courts concerning complex conveyances of patent rights, the result is indeterminacy and confusion in both the Federal Circuit’s and the Supreme Court’s decisions. Perhaps it is time to rethink how the hoary concept of property was essential to the successful commercialization of property rights in inventions in the nineteenth century.

In other words, both authors are highlighting the fact that a modern property-rights-oriented legal system “can” treat IP rights under some of the same legal rules, as a property right. Well sure, I agree with them. But then so what? This is a fairly trivial observation, in terms of policy (as opposed to legal theory), unless it is supposed to imply that this somehow helps to legitimize–or maybe rehabilitate–IP law. But of course it does not. There is a distinction between positive law (and the legal rights corresponding to these laws), and what we libertarians sometimes call “natural law” or libertarian law (and the natural rights or libertarian rights corresponding thereto). ((See my post Logical and Legal Positivism.)) The criminal gang called the state, through its law-creating legislature, can create any number of arbitrary positive rights or laws that contravene libertarian rights and justice. ((See my “Legislation and Law in a Free Society.”)) The right to receive social security payments could be viewed as an annuity. Another human could be viewed as property, and bought and sold as such. So what?

Calling something property, or fitting it into the state’s property law legal framework, does not mean it is legitimate property. ((See my post Intellectual Properganda.)) To the contrary, just as the fed printing money dilutes the purchasing power of money, legislatively granting the status “property” to privileges granted by the state can only dilute the value of property itself. As Professor Tom Bell artices, in his witty Copyright Erodes Property℠, “Calling copyright property risks eroding that valuable service mark.” To quote at greater length, Bell argues:

Copyrights and patents differ from tangible property in fundamental ways. Economically speaking, copyrights and patents are not rivalrous in consumption; whereas all the world can sing the same beautiful song, for instance, only one person can swallow a cool gulp of iced tea. Legally speaking, copyrights and patents exist only thanks to the express terms of the U.S. Constitution and various statutory enactments. In contrast, we enjoy tangible property thanks to common law, customary practices, and nature itself. Even birds recognize property rights in nests. They do not, however, copyright their songs.

Those represent but some of the reasons I have argued that we should call copyright an intellectual privilege, reserving property for things that deserve the label. Another, related reason: Calling copyright property risks eroding that valuable service mark.

Property as a service mark, like FedEx or Hooters? Yes. Thanks to long use, property has come to represent a distinct set of legal relations, including hard and fast rules relating to exclusion, use, alienation, and so forth. Copyright embodies those characteristics imperfectly, if at all. To call it intellectual property risks confusing consumers of legal services—citizens, attorneys, academics, judges, and lawmakers—about the nature of copyright. Worse yet, it confuses them about the nature of property. The property service mark suffers not merely dilution from copyright’s infringing use, but tarnishment, too.

{ 34 comments }

J. Murray October 4, 2011 at 4:53 pm

You can also throw rocks at a wasp nest, but that doesn’t make it a good idea.

Max Power October 4, 2011 at 6:19 pm

The courts can treat children as property, as well. It doesn’t mean they should.

Wildberry October 6, 2011 at 11:58 am

J. and Max;

This is true. The question I wonder about is why don’t we? The fact is we don’t do these things. This leads me to suspect that there must be something about what we do that is tied to why we do it and what we expect from such rules of conduct?

Any chance you might consider this?

Max Power October 7, 2011 at 9:15 am

You seem to be implying that it is correct to treat ideas as property because scoiety generally supports the idea, while “children as property” is not, because society does not support that idea.

A logical extension of that line of reasoning is that it was correct for someone in the 1850s to treat certain humans as property, since society as well as the courts supported that principle.

Wildberry October 7, 2011 at 9:27 am

Max,

I am not implying anyting of the sort. I am saying directly that we are capable of distinguishing one thing from another, and we do.

Despite Kinsella protestations to the contrary, I do not make a claim that once a law is established as enforceable code, it is forevermore considered legitimate. Obviously laws are subject to review, revision and repeal. Slavery is a fine example.

Viewed from my, and generally “our” contemporary perspective, slavery was always wrong, even when it was legal. Why? There is some reasoning that allows us to distinguish one answer from another and formulate some perception of truth on the matter.

Why should the debate on IP be subject to less analysis? In fact, because the concept is much more esoteric than slavery, analysis should be even more exacting. Do you disagree?

Stephan Kinsella October 7, 2011 at 10:38 am

I am not implying anyting of the sort. I am saying directly that we are capable of distinguishing one thing from another, and we do.

Of course we can distinguish. But “so what”? We can distinguish blacks from whites so that a rule saying the latter can own the former as property comprehensible. so what?

Despite Kinsella protestations to the contrary, I do not make a claim that once a law is established as enforceable code, it is forevermore considered legitimate. Obviously laws are subject to review, revision and repeal. Slavery is a fine example.

Aww, how nice. If negroes are enslaved, “by law,” you respect that, but are generous enough to consider “reviewing” it as part of the “democratic” process. How humane.

Wildberry October 7, 2011 at 11:53 am

@ Stephan Kinsella October 7, 2011 at 10:38 am

Ridicule is a defense, not a weapon.

So what? Distinction is unimportant to you? Black from white is all there is? This explains your preference for strict liabilty rules; fewer facts to bother with.

As for the rest, it is the famous “Is not.” “Is too!” “Nah uh!” retort. Impressive.

Simun October 4, 2011 at 6:32 pm

The professor you’re quoting in your support mentions customary practice and common law as sources of legitimacy for property rights. Isn’t that the same argument authors you’re refuting are making?

Mashuri October 4, 2011 at 7:16 pm

He also cites nature as a source as well, which leads to common law, customary practice, etc. I see no issue with the professor’s quote in its current context.

Old Mexican October 4, 2011 at 10:57 pm

In recent papers, two pro-intellectual property libertarians, Richard Epstein and Objectivist Adam Mossoff, try to defend IP by arguing that it “can” be treated like property by a legal system.

Legal positivism – how quaint.

jim blackstock October 5, 2011 at 7:49 am

In other copyright news, It looks like Bob Dylan himself is in trouble for his paintings that are borrowed from famous photographs. As a photographer, it even bothers me that courts claim people don’t have a right to paint something I have photographed. I have no claim over works “inspired” by the things I do or create. The article here:
http://pdnpulse.com/2011/09/bob-dylan-looking-like-a-copyright-infringer-now-what.html

Jim

Thomas Christensen October 5, 2011 at 9:19 am

In Denmark we don’t officially use the term “intellectual property” – though IP-defenders never stop trying. We’re using the term “immaterial rights” which I find to be much better.

Phinn October 5, 2011 at 10:10 am

You can treat contractual rights and partnership interests as though they were property, too. But those types of rights clearly don’t share the same characteristics as the right of exclusive use that one can have in a toaster or a patch of dirt. Intangible property is only property by metaphor.

The reason that a promissory note, for example, can be treated as though it were property is not because someone owns a physical sheet of paper. After all, the right that a lender has in a promissory note is not in the physical document, but in the abstract right to compel the borrower to pay, or else he must submit to having an equivalent portion of his property taken from him by force. That right can be merely verbal, and not written down at all, and still be thought to exist.

The reason a promissory note is treated as though it were property is because, like the use of physical objects, the right to enforce a promissory note is rivalrous with everyone else’s right to enforce it. If the lender transfers the right to enforce the note to someone else (i.e., “sells” it), the lender necessarily loses whatever he sells. The buyer acquires exactly what the seller loses. The key here is that the buyer and seller cannot both enforce the note; the borrower only has to pay once.

But IP doesn’t purport to work that way. IP purports to make EVERYONE stop doing something, merely because someone, somewhere on planet earth, claims to have been the first one to do that TYPE of thing. The people who do this activity later in time may have no contact whatsoever with the first one, may not know him, and their activities may have no physical contact with each other in the slightest, but still IP proponents insist that forcibly stopping others from doing it is a right of property. It makes no sense.

Except, of course, IP makes sense when we realize that it’s not property but a form of monopoly. Monopoly “rights” purport to allow the holder to not only prevent someone from stealing a specific, actual bale of cotton, for example (and then using it or selling it), but somehow includes the right to stop anyone, anywhere, from selling ANY bales of cotton to anyone else. It’s a purported exclusivity of use not in some actual, particular thing, but exclusivity in engaging in a TYPE of market activity — in this case, selling cotton.

IP claims not to control the use of things, but to control people in their market activities.

Which is indefensible.

coturnix October 6, 2011 at 7:01 am

IP is nothing more nor less than a special case of ‘market ownership’; it is defended with the very same arguments both from theoretical and from applied p.o.v. and behave the same way. Person that support IP but defies tariffs and trade quotes is a bigot.

Wildberry October 6, 2011 at 12:12 pm

@Phinn October 5, 2011 at 10:10 am

You can treat contractual rights and partnership interests as though they were property, too.

Your first sentence reveals your misunderstanding of the differnece between property rights and contractual rights; property rights work against everyone and anyone who infringes upon them, while contractual rights only work against the parties to the contract.

So the rest of your analysis is flawed by this misunderstanding.

Second, your understanding of IP is flawed because no IP right operates to secure exclusive use of a “type” of thing. No one owns the concept of “book”. No one can prevent another from writing and publishing a book.

Further you fail to undertand that IP laws do operate on tangible, physical things that authors and inventors produce. The issue you are trying to address is servicability; this is the fundamental nature of IP that differs from other economic goods.

The issue of dealing with economic goods of infinate servicability is the economic problem Mises addresses in his short analysis of externalities, including external economies.

All of this hand-waving about whether somethig is “real” property or not is simply a disguised economic argument that posits that it is not necessary or desirable to secure property rights in intellectual creations. This argument fails to address the delimma between infinite servicability and external economies. The Kinsella argument simply presumes that the second issue does not exist. This is false.

Stephan Kinsella October 6, 2011 at 12:53 pm

You are an unfortunate combination of naif, moron, and dissembler.

Phinn October 6, 2011 at 7:28 pm

“So the rest of your analysis is flawed by this misunderstanding.”

Your first point is wholly incorrect. I have no misunderstanding whatsoever that property is generally and universally applicable, while contracts must be affirmatively created.

In fact, it is entirely possible to think of a contract as a partial waiver of one’s self-ownership, in the sense the party gives away the right to defend himself against the forcible extraction of some thing (e.g., money) that he has promised in the contract. No one can legitimately extract $100 from you, except when you have promised to give it under circumstances that have been met. The promissor to a contract essentially relinquishes some of his property.

So contracts are premised on property. They are promises to exchange rights in property.

Since you misunderstand me so thoroughly, I have lost interest in discussing the point further.

Phinn October 6, 2011 at 7:33 pm

“So the rest of your analysis is flawed by this misunderstanding.”

Your very first point is wholly incorrect. I have no misunderstanding whatsoever that property is generally and universally applicable, whereas contracts must be affirmatively created.

Contracts are promises of the exchange of property. In fact, it is entirely possible to think of a contract as a partial waiver of one’s self-ownership, in the sense the promissor gives away the right to defend himself against the forcible extraction of some thing (e.g., money) that he has promised in the contract. No one can legitimately extract $100 from you, except when you have promised to give it under circumstances that have been met. The promissor to a contract essentially relinquishes some of his property.

So contracts are premised on property. They are promises to exchange rights in property.

Since you misunderstand me so thoroughly, I have lost interest in discussing the point further.

Wildberry October 7, 2011 at 11:24 am

@ Phinn October 6, 2011 at 7:28 pm

Hey, don’t take it personally…I’m trying to help.

It is applicabilty that is being compared, not method of creation. All property is “created” in some way or antother, one of which is Kinsella’s beloved “homesteading”.

Property can be affirmatively created by contract. I’m referring to the operation of rights to goods. Contracts usually involve the transfer of goods and services between parties, and rights and liabilities extend only to those parties.

However, if those same two parties create a property interest, say an easement, once created, it operates on everyone, incuding successors to the property who did not sign a contract.

Same with laws. A law secures enforcabilty of a right to something, and that something is property, not a contract.

The promissor to a contract essentially relinquishes some of his property.

Yes, this is “consideration”, a requirement for an enforceable contract. The question is who is it enforcable against? In contract law, only the party to the contract who does not perform is liable. In property law, the right created is enforceable against everyone.

Your idea is interesting. I guess you could say that one way to think of property rights is that everyone in the world has effectively signed a contract with the rights holder.

The problem, of course is that the first problem in a contract dispute is to determine if there is a contract, and one element is mutual assent. What theory would you use to establish that a given property right is created by the implied consent of the rest of the world?

You would have to make a rule that people are forced to follow. I think that is the fundamental concept of “law” istn’t it? So I think you have to decide whether the concept of law is legitimate, for whithout it, there is no property right.

One law that does not require any form of state enforcement is “might makes right”. This is what Kinsella indrectly supports. According to him, you set up a property right by homesteading, and everyone agrees who owns what in advance, because it is a natural law which pre-exists the state, and is never, ever ambiguous. Then if there is a conflict, PDAs enforce these rights as “defense against aggression”. This is a strict liability rule for defending against aggression.

This is a sophisticated and indirect form of claiming a right, and then defending it, which in turn is just a rule of the jungle, where superior force prevails over inferior force.

I personally don’t see that as much of an improvement.

Peter Surda October 7, 2011 at 12:15 pm

Wildberry,

All property is “created” in some way or antother, one of which is Kinsella’s beloved “homesteading”.

No property is created. The objects of the property are given. They can only be unaffected, appropriated, transferred and abandoned, which is the result of a 2×2 matrix representing the existence of an owner prior and post an act. I’m too lazy to draw so I’ll just list it:

Unaffected: no owner -> no owner
Appropriated: no owner -> an onwer
Transferred: an onwer -> another owner
Abandoned: an owner -> no owner

There is no logically possible alternative.

Property can be affirmatively created by contract.

It cannot. If you disagree, then please provide an example. Also, the funny thing is, you actually agreed with me back in July that a contract cannot create a right that none of the parties to the contract has prior to the contract, so you’re contradicting yourself again.

Hold on a bit until I get my popcorn, I’m curious what method you’re going to use to wiggle out of this one. Please do not disappoint me with one of your old tricks, I want to see a new one.

Wildberry October 7, 2011 at 1:04 pm

@Peter Surda October 7, 2011 at 12:15 pm

No property is created. The objects of the property are given.

Ah, you are tiresome. “Created”. That doesn’t mean I CREATE the universe, but thanks for the physics lesson.

If I say “Property rights are appropriated to an owner” is that ok with you, or are we now going to debate the meaning of “owner”? We can debate the meaning of “appropriate”. That should be good for 1,000 words.

please provide an example.

Ah, how about an easement? Is that not a property interest created by contract? And once created, does it not operate as a property right? Amnesia? Wait, to make you happy I should say that the owner of the land appropriates some of his rights and transfers them to the other guy, who now has them under contract. But now that just a contract, not property. Oh yea, they are “co-owners” now…

If you want to claim a new connotation of a word, and then feed it back to me as a contradiction, you are going to need lots of popcorn; that can (and does) go on forever.

I’ll leave you to Kid Salami. He is much better at pointing out your foolishness than I am.

Peter Surda October 8, 2011 at 7:40 am

Wildberry,

in the referenced quote by you, while discussing easement, you confirmed that contracts do not create new rights. Now you switched your argument around, again, and claim that contracts do create rights, and present easements as an example.

Wildberry October 10, 2011 at 12:00 pm

create – 3 dictionary results
cre·ate   /kriˈeɪt/ Show Spelled
[kree-eyt] Show IPA
verb, -at·ed, -at·ing, adjective
–verb (used with object)
1. to cause to come into being, as something unique that would not naturally evolve or that is not made by ordinary processes.
2. to evolve from one’s own thought or imagination, as a work of art or an invention.
3. Theater . to perform (a role) for the first time or in the first production of a play.
4. to make by investing with new rank or by designating; constitute; appoint: to create a peer.
5. to be the cause or occasion of; give rise to: The announcement created confusion.
EXPAND
6. to cause to happen; bring about; arrange, as by intention or design: to create a revolution; to create an opportunity to ask for a raise.
COLLAPSE–verb (used without object)
7. to do something creative or constructive.
8. British . to make a fuss.
–adjective
9. Archaic . created.
Use create in a Sentence
See images of create
Search create on the Web

——————————————————————————–

Origin:
1350–1400; Middle English creat (past participle) < Latin creātus, equivalent to creā- (stem of creāre to make) + -tus past participle suffix

—Related forms
cre·at·a·ble, adjective
in·ter·cre·ate, verb (used with object), -at·ed, -at·ing.
self-cre·at·ed, adjective
self-cre·at·ing, adjective
un·cre·at·a·ble, adjective
EXPAND
un·cre·at·ed, adjective
COLLAPSE

—Synonyms
2. originate, invent.

Peter, wouldn't it be inconvenient for you if words could only be used like numbers? Then how would you "falsify" things?

Peter Surda October 10, 2011 at 12:24 pm

Wildberry,

you are avoiding a confrontation. No matter how you define “create”, it still cannot have simultaneously contradictory meanings. Assuming, of course, that you’re to be taken seriously.

Wildberry October 10, 2011 at 4:02 pm

If I were to take you seriously, I woud expect you to lay the contradictions you claim out, and explain why they are a contradiction, so everyone can see what you are talking about and so I might have chance to rebut your explanation.

Instead you just declare a contradiction and expect me to prove your assertion wrong.

This is why I find your posts a waste of time. You contribute nothing.

Peter Surda October 11, 2011 at 1:49 am

Wildberry,

If I were to take you seriously, I woud expect you to lay the contradictions you claim out, and explain why they are a contradiction, so everyone can see what you are talking about and so I might have chance to rebut your explanation.

I already did this several times: you simultaneously claim that contracts do, and don’t, create new rights.

Instead you just declare a contradiction and expect me to prove your assertion wrong.

I clearly explained the contradiction several times, as well as provided references to you making the contradictory claims.

This is why I find your posts a waste of time.

I regularly provide point by point refutations of your claims, which end up being ignored by you. This has been going on for about 10 months now. I find it peculiar how you can make the claim that this is a waste of time.

You contribute nothing.

What you mean is that I disturb your games and you find it annoying. Maybe you should consider playing somewhere else then.

Wildberry October 11, 2011 at 10:59 am

Surda,

I already did this several times: you simultaneously claim that contracts do, and don’t, create new rights.

As in “contracts create the universe” or “contracts give rise to alienable rights”?

Like I said, wouldn’t it be convenient for you and other robots if “create= 2″?

I regularly provide point by point refutations of your claims, which end up being ignored by you. This has been going on for about 10 months now. I find it peculiar how you can make the claim that this is a waste of time.

In your dreams. As I have said to you before but it bears repeating, you confuse response with reply. A mere response contributes nothing. You contribute nothing.

Maybe you should consider playing somewhere else then.

You wish. You are fundamentally a tyrant, like Kinsella, who would rather stifle discourse by rudeness, ridicule and unfounded claims of victory than actually engage in it. This is why it is impossible to take you seriously, as so many others here have ceased to do. Why, is obvious to everyone but you.

Peter Surda October 11, 2011 at 11:36 am

Indeed Wildberry. How dare I insist that you answer questions, how dare I point out the errors in your claims, how dare I call your bluffs, how dare I challenge your moral superiourity. That’s tyrrany. A proper human being, like you, ignores everyone and craps all around.

Phinn October 7, 2011 at 3:11 pm

You would have to make a rule that people are forced to follow. I think that is the fundamental concept of “law” istn’t it?

No, what you describe is a fundamental concept of “edict” or “command” or “legislation.” These things are merely expressions of someone’s preference as to what others do or not do.

Normative assertions do not qualify as principles of ethical behavior unless they can be justified rationally and universally. Otherwise, the assertion is merely a human device, as you might say — something that someone pulls out of his ass, which happens to sound sorta good to a certain set of people for a limited amount of time, and which he backs up with threats. Like “let’s all wear bellbottom jeans” or “Lady Gaga is the best evar!!!” or “Let’s call these people ‘police’ and give them funny costumes and guns and privileges to do what others can’t do.”

These are not universal ethical principles, but merely preferences.

It should be pretty obvious that the preferences of a mob are no more legitimate and authoritative than the preferences of anyone else.

(I am reminded of a passage from Balzac’s Pere Goiriot, which the author placed in the mouth of the sociopath M. Vautrin —

“There are no such things as principles; there are only events, and there are no laws but those of expediency: a man of talent accepts events and the circumstances in which he finds himself, and turns everything to his own ends. If laws and principles were fixed and invariable, nations would not change them as readily as we change our shirts.”

Preferences are often confused with principles of ethics. For example, let’s say the “rule” is “You shall pay the government 35% of your income.” That is not a law. That is an edict. If it were a law, or principle of ethics, then it could not also be true that it is ethically required for people to pay anything other than 35%, such as 20% or 85%. A rule cannot be considered an expression of ethics if it changes as readily as we change our shirts, as Balzac would say.

Sure, the mob can get together and hire goons to tear me to ribbons and spill my entrails for not complying with its edicts, but that still does not make its preferences a form of law. That’s not even “might makes right,” which is nonsense. That’s just “might makes you do what might wants you to do.”

By merely asserting that X is right and Y is wrong (as you often do), you are necessarily also asserting that a universal principle of ethics exists, and that you know what it is. You then contradict yourself, however, when you then claim that the “law” you stand on is also a “human device,” which is your pet phrase for edicts that that change according to whoever swings the biggest stick of the day. Like IP laws that get rewritten depending on how much Disney’s lobbyists have to spend on buying politicians.

But, my larger point is quite simple — by even uttering a single ethical precept, you are also necessarily asserting that a universal, timeless and eternal principle of ethics is out there, somewhere, for us to discern and follow, like we would a law of physics or mathematical reality.

Wildberry October 7, 2011 at 5:39 pm

@Phinn October 7, 2011 at 3:11 pm

“You would have to make a rule that people are forced to follow. I think that is the fundamental concept of “law” isn’t it?”

No, what you describe is a fundamental concept of “edict” or “command” or “legislation.” These things are merely expressions of someone’s preference as to what others do or not do.

I guess you are free to presume that it comes about that way, but I do not. Imagine it comes about is a way that even you believe is legitimate, say trespassing or murder or robbery. Do you have a problem against a “rule” that prohibits that conduct under threat of legal enforcement? What would you call such a rule? Give the word you will accept and we can refer to it that way from now on.

Whatever name you give it, I mean to presume that it is more than a “preference” since preferences are not enforceable. They are suggestions, not enforceable rules. I’m taking about rules of law. Presume whatever form of enforcement you wish, that is irrelevant.

These are not universal ethical principles, but merely preferences.

Yes, but you are the only one talking about preferences. I mean to imply a legitimate rule of law, however you assume it is legitimized. I agree that ethics must be in there somewhere, but principles of ethics are not automatically universal, although I think some principles are very commonly held to be true and self-evident. You might think some types of conduct is ethical, say blackmail, while I might not. Whether a rule of law prohibited blackmail exists or not, you would still have your opinion and preferences, but if one did exist, you would have the right to blackmail me, meaning if you did you might be subject to redress by whatever enforcement means “our” society has adopted. You might want to revise or abolish that law, but I would not. You could try, legally, and I could oppose you, legally. Eventually, our social institutions, if I may be so bold as to presume we have some, would decide. In today’s world of 2011, I think my side would win.

It should be pretty obvious that the preferences of a mob are no more legitimate and authoritative than the preferences of anyone else.

Such inflammatory rhetoric! Mob?

“You shall pay the government 35% of your income.” That is not a law. That is an edict.

Careful, Mr. Phinn, your assumptions are showing. “Shall pay” is a command, that would have to be backed up with force. You are presuming that 1) someone has the power to make his/her personal preferences law, and 2) can back it up with force and 3) can only be opposed with greater force. If you make those presumptions, you are assuming a dictatorship. You are implying that all taxes originate from such power. This is not necessarily true, is it?

If it were a law, or principle of ethics, then it could not also be true that it is ethically required for people to pay anything other than 35%, such as 20% or 85%. A rule cannot be considered an expression of ethics if it changes as readily as we change our shirts, as Balzac would say.

Sorry, I think you are confusing means with ends. An ethical principle for taxes may rest on a groups’ right to self organize and self-govern. Do you believe that free people have such a right, ethically speaking?

Unless you assume a scenario of conquest and occupation, common law takes quite some time and considerable effort to evolve to some state, and likewise it takes some considerable effort to change them once established.

Perhaps you are thinking of the ease by which something like Obamacare was passed; legislative law. I agree, he made it look like ramming through his preferences, but then let’s see what happens next. It looked easy because opposing forces had been asleep at the wheel and allowed the wolves in the henhouse, so to speak. If you let the chickens roam free and unsupervised, they are bound to be eaten by varmints. But even there, isn’t there at least a shred of ethical principle that could be rallied in support, say compassion for the health needs of our fellow humans? I case can be made for some ends that rest upon that principle, though we probably agree that Obamacare is far from the most appropriate means.

Most controversy about laws are like that. There are some ends that are rooted in an ethical principle that is widely accepted, and the means are proposed to achieve those ends. In a mercantilist state, to illustrate my point, a law imposing tariffs is not the best means to achieve the declared ends of fair competition. (lame example but I think you get my point)

Sure, the mob can get together and hire goons to tear me to ribbons and spill my entrails for not complying with its edicts,

Stephen King fan?

By merely asserting that X is right and Y is wrong (as you often do), you are necessarily also asserting that a universal principle of ethics exists, and that you know what it is.

That is a pretty uncharitable way describing me. I don’t think I do or have done what you say. But I do pick up the disdain.

Actually, Phinn, we probably agree on 95% of any ethical principles you care to describe, since we are both humans and probably have a pretty good sense of right and wrong, which is another way of describing ethics. Where we actually disagree is on the means. Because of that, you seem to want to make me out as someone who has no idea about right, wrong, good or bad. Does that seem reasonable to you? Is that the only possibility that could explain why I support means that differ from yours, even though I believe we have much in common concerning desirable ends?

You then contradict yourself, however, when you then claim that the “law” you stand on is also a “human device,” which is your pet phrase for edicts that that change according to whoever swings the biggest stick of the day.

You misunderstand me completely, but I’m not offended. Laws are a human device to the extent that they would not exist if it were not for the humans who create them. (I’m not talking about gravity and thermodynamics here. Those are natural laws, not the ones you call “natural law”, meaning they pre-exist human laws.) Neither IP or any other law is a natural law in the sense you probably mean. In my view, if they would naturally arise from a state of anarchism, they might be called “natural”. Even though you may classify this meaning of “natural law” from positive law, all laws eventually become positive law. Rights cannot exist without positive law. To restate it, rights cannot exist without a means to enforce them. Again, we may differ on the means of enforcement, but they must exist in some form, or no rights can be said to “exist”.

Like IP laws that get rewritten depending on how much Disney’s lobbyists have to spend on buying politicians.

See, we agree. Are you surprised? CTEA is a perfect example of what can be referred to as neo-mercantilism, a generalized form of trade-tariff mercantilism; collusion between private business interests and political means used to serve the ends of unfair competitive advantage. Before you say it, of course IP is a fair target for that criticism. The question is, is it the same or different? CTEA, and much of recent IP law changes support the argument that it is the same. The interesting point for me is, like your understanding of the need for ethical principles to underpin legitimate laws, is there a legitimate underpinning for IP laws in principle? I say yes.

But, my larger point is quite simple — by even uttering a single ethical precept, you are also necessarily asserting that a universal, timeless and eternal principle of ethics is out there, somewhere, for us to discern and follow, like we would a law of physics or mathematical reality.

Who disagrees with this? Knowledge is imperfect, ongoing, and cumulative. This seems to be true in every domain of human understanding. Don’t you agree?

Stephan Kinsella October 7, 2011 at 7:41 pm

“It should be pretty obvious that the preferences of a mob are no more legitimate and authoritative than the preferences of anyone else.”

Such inflammatory rhetoric! Mob?

Heavens to Betsy, no! Gasp!

“You shall pay the government 35% of your income.” That is not a law. That is an edict.

Careful, Mr. Phinn, your assumptions are showing. “Shall pay” is a command, that would have to be backed up with force. You are presuming that 1) someone has the power to make his/her personal preferences law, and 2) can back it up with force and 3) can only be opposed with greater force. If you make those presumptions, you are assuming a dictatorship. You are implying that all taxes originate from such power. This is not necessarily true, is it?

Yes, you idiot, it is.

Kid Salami October 7, 2011 at 12:22 pm

Imagine we’re in the pre-industrial revolution world, where factories or other entities that spew some kind of measureable pollutant don’t exist. Someone builds a factory making shoes that emits smoke that turns my washing black.

This idea of pollutants is entirely new – i speak to my PDA man and I’m told I can sue the factory owner for damages or apply to some local group that has agreed with the factory to act as an intermediary to reimburse people who are directly bothered by it or whatever. That is, other people in my area have some to some arrangement.

Surely I can argue that the requirement to do ANYTHING is “partial control” of time and property (ie. my paper and my ink to submit the documents)?

Why can’t I just demand (through whatever PDA or other legal mechanism that is in place) that this man be stopped under threat of force from emitting smoke and thereby “invading the borders of my property” (and so indirectly insist we all stick to bare feet so that I can have clean linen)? Surely ignoring my demand is “aggressing” against me.

Or, is there some “exception” that creeps into the rules to allow for the fact that people like shoes? If so, what is the criteria on which the validity of these “exceptions” might be discussed?

Peter Surda October 7, 2011 at 12:59 pm

Kid Salami,

Why can’t I just demand (through whatever PDA or other legal mechanism that is in place) that this man be stopped under threat of force from emitting smoke and thereby “invading the borders of my property” (and so indirectly insist we all stick to bare feet so that I can have clean linen)?

Sure, why not? Who’s claiming you can’t?

Kid Salami October 7, 2011 at 1:40 pm

No’one – just checking.

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