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Source link: http://archive.mises.org/18895/speaking-on-%e2%80%9cwhy-intellectual-property-is-not-genuine-property%e2%80%9d-at-adam-smith-forum-moscow/

Speaking on “Why Intellectual Property is not Genuine Property” at Adam Smith Forum, Moscow

October 30, 2011 by

Adam Smith Forum 3 - bannerThe 3rd Adam Smith Forum is being held Nov. 12, 2011 in Moscow. This is an impressive event, organized by the Center for the Philosophy of Freedom, the Libertarian Party of Russia, and others. The Chairman of the ASF Steering Committee is economist Pavel Usanov, head of the Hayek Institute for Economy and Law; Andrey Shalnev, head of the Center for the Philosophy of Freedom Moscow, is its co-chairman. I was invited to speak but cannot attend in person, so my speech “Why Intellectual Property is not Genuine Property” will be presented remotely, with Russian subtitles.

Other speakers at the upcoming ASF are expected to include: Spanish economist, Professor at Rey Juan Carlos University Jesús Huerta de Soto; economist Slavisa Tasic; Atlas Economic Research Foundation executive vice-president Tom G. Palmer; economist, 2009 Nobel laureate Elinor Ostrom; Hernando de Soto; José Piñera; Kakha Bendukidze; Walter Block; Raimondo Cubeddu, Andrei Illarionov, Alexander Nikonov, Alexander Auzan, Pavel Usanov, Vladimir Chetvernin, Konstantin Ksenofontov, Dmitry Balkovsky, Stepan Demura, Alexander Dolgin, Yaroslav Romanchuk, Sergei Zhavoronkov and others.

The Abstract of my speech is below:

Intellectual property rights, or IP—primarily patent and copyright—has long been viewed as a legitimate type of property right by libertarians and other defenders of capitalism and free markets. I argue that IP rights are not genuine property rights, and that these laws should be abolished. This issue is relevant to Russia and Adam Smith Forum members because of the pressure by the US on Russia and other countries to adopt western-style patent and copyright law. But the west has attempted to export many other laws and policies to other nations, many of which are not compatible with a free market, such as antitrust (competition), antibribery, tax, narcotics, and central banking laws and practices.

In this talk I provide an overview of the nature of patent and copyright, followed by a discussion of the nature and purpose of law and property rights in a world of scarcity. I argue that property rights apply to scarce resources only, to permit such resources to be used peacefully, productively, and cooperatively as a means of action. However, property rights make no sense are in fact perverse and undermine genuine property rights when the law attempt to apply them to information, ideas, and knowledge. Property rights must be granted in scarce resources and only in scarce resources if we are to have prosperity, freedom, and progress in science.

In fact, state IP rights are not genuine property rights, but are instead neo-mercantilist monopoly grants of privilege that protect favored recipients from competition. This enriches the patentees and copyright holders, and the state, but at the expense of consumers and competitors.

I also provide an overview of the history of opposition to IP law, identifying four key historical phases beginning around 1850.

I conclude the talk by observing that IP reform cannot work; the only solution is complete abolition of patent and copyright.

{ 35 comments }

Josep October 30, 2011 at 2:56 pm

Very interesting issue. Please, could you upload the presentation on youtube or similar site later? It would be so useful to have this presentation online, because this is a worlwide hot issue. Many Thanks!

Stephan Kinsella November 1, 2011 at 3:47 pm

I have my 47 minute video. If they don’t link it, not sure — how do I get a 47 minute video up, say on youtube

nate-m November 1, 2011 at 3:56 pm

Typically you need to have a ‘Youtube’ partner account. Youtube will lift limits for standard accounts if the accounts have been in good standing for a long time.

They originally had unlimited length uploads, but they found out that longer videos tended to be copyright violations and reduced the limit to 10-15 minutes to reduce liability.

Josep November 1, 2011 at 8:16 pm

Hello Stephan.
Another very good option is vimeo.com
They allow 500mb per week, no bandwidth or time limits for free accounts. Should be enough for a 47 minutes video.
Thanks on advance!

Edgaras October 30, 2011 at 4:01 pm

Indeed, it would be awesome, Stephan :)

seymourblogger October 30, 2011 at 7:24 pm

This is wonderful. At last. I would love to see a Foucauldian genealogy of property rights. someone could make a great career start doing this. As Foucault told a PHD student who did her dissertation on him, “Why are you spending time on me. Do genealogies.”

The meaning of it all becomes clear as the folds of the Dominating Discourse are exposed. Two of Foucault’s books, early ones:

The Order of Things
The Archeology of Knowledge

Jean Baudrillard takes your position on intellectual property rights.

Becky Hargrove October 30, 2011 at 7:48 pm

While I would enjoy it all, I would especially enjoy hearing Hernando de Soto and Elinor Ostrom. For some time I have worked on systems for lateral knowledge/skill use at the level of the individual, and have wanted to raise the value of such use in the way that de Soto has worked to increase the value of private property in the past. It appears his focus has shifted somewhat after 2008, understandably so. Can you give some idea of his lecture when you return.

Tim October 30, 2011 at 10:52 pm

I think you’re confusing Jesús Huerta de Soto with Hernando de Soto, two different people.

Stephan Kinsella October 31, 2011 at 12:34 am

She’s also apparently not reading what I wrote–I will not be there in person.

Becky Hargrove October 31, 2011 at 9:21 am

Hernando de Soto’s name appeared after Elinor Ostrom’s name. sorry.

Mark Humphrey November 1, 2011 at 2:08 pm

Kinsella should retitle his speech “Why I am not a Genuine Defender of Private Property”.

There is no fundamental philosophical distinction between intellectual and other forms of property. The IP label is applied to various kinds of property that can inexpensively be reproduced, including fraudulently by those without consent from the creator of the original.

All kinds of property involve the application of intelligence to physical reality. Patents and Copyrights–both of which were DEFENDED by von Mises–are imperfect statutory attempts to defend the right of property owners to restrict the terms of the sale of their creations. The restriction simply invokes their right to refuse to sell to those who would make unauthroized reproductions.

Peter Surda November 1, 2011 at 4:23 pm

Mark Humphrey,

There is no fundamental philosophical distinction between intellectual and other forms of property.

On the contrary. IP contradicts physical property. There is no way around this.

Kevin Brown November 16, 2011 at 10:53 am

“There is no fundamental philosophical distinction between intellectual and other forms of property.”
-Yes there is. Physical stuff is scarce and rivalrous making it necessary to assign an owner via property right rules while patterns and ideas are neither scare nor rivalrous excluding it from rules of property.

Mark Humphrey November 1, 2011 at 2:23 pm

New innovations in animal breeding technology make it possible to clone valuable animals. Jones spends and risks large amounts of money and work to breed, raise and train an outstanding dressage stallion that acquires a renowned reputation for athletic ability, tractibility, intelligence, beauty, etc. Other breeders are willing to pay large fees to Jones to breed their mares to this stallion. But Smith, who has been inspired by Mr. Kinsella’s “libertarianism”, decides that Jones’ right to restrict breeding is a “merchantilist grant of monopoly privilege”. Ordinarily Smith would simply steal Jones’ horse by cover of darkness–a risky way of overturning “monopoly privilege”. But with new cloning technology, Smith no longer requires the stallion to breed his mares; he can simply clip a sample of DNA from Jones’ stallion–again, under cover of darkness–and use the clippings to produce several or even many new foals–each a perfect clone of Jones’ valuable horse.

Marx and Engles had it right, according to Mr. Kinsella’s line of reasoning. Private property is simply a grant of exploitative privilege that amounts to theft. Therefore, “justice” is best served by overturning property in a mass free for all.

Stephan Kinsella November 1, 2011 at 3:40 pm

It’s Engels, not Engles, genius.

New innovations in animal breeding technology make it possible to clone valuable animals. Jones spends and risks large amounts of money and work to breed, raise and train an outstanding dressage stallion that acquires a renowned reputation for athletic ability, tractibility, intelligence, beauty, etc. Other breeders are willing to pay large fees to Jones to breed their mares to this stallion. But Smith, who has been inspired by Mr. Kinsella’s “libertarianism”, decides that Jones’ right to restrict breeding is a “merchantilist grant of monopoly privilege”.

mercantilist, genius

Ordinarily Smith would simply steal Jones’ horse by cover of darkness–a risky way of overturning “monopoly privilege”.

if you steal his horse he doesn’t have it any more. that is not the same with information.

But with new cloning technology, Smith no longer requires the stallion to breed his mares; he can simply clip a sample of DNA from Jones’ stallion–again, under cover of darkness

Doesn’t he have to commit trespass against physical property–the land and horse–to get the DNA sample?

–and use the clippings to produce several or even many new foals–each a perfect clone of Jones’ valuable horse.

how horrible! competition!

Marx and Engles had it right, according to Mr. Kinsella’s line of reasoning. Private property is simply a grant of exploitative privilege that amounts to theft. Therefore, “justice” is best served by overturning property in a mass free for all.

Property in scarce resources is good. Property in abstractions and universals undermines it.

Mark Humphrey November 1, 2011 at 6:01 pm

Kinsella seeths with resentment of reasoned criticism, as for example his sarcastic implication that I’m stupid. Now on to substantive refutation.
1)” if you steal his horse he doesn’t have it any more. that is not the same with information.”
But what if he steals “use” of the stallion, breeds his mares and then returns the stallion to its owner? This is the same as with information, because in both cases unauthorized knockoffs are made to the benefit of the thief–fraud artist, with the cost of this wrong doing to be borne by the proper owner. In the case of “information”, unauthorized reproductions involve fraud, because the copy from which knockoffs are illegitimately made was acquired with the contractual condition that knockoffs were NOT to be made. That’s what the copyright or patent enforces. However, the stallion is not patented or copyrighted, so the unauthorized knockoffs instead involve unauthorized trespass. There is no difference in principle between trespassing to steal information about the stallion inthe form of DNA clippings, and trespassing against the contractual rights of the owner of other kinds of “information” property.

Stephan Kinsella November 1, 2011 at 6:18 pm

Kinsella seeths with resentment of reasoned criticism,

It’s “seethes,” you illiterate.

as for example his sarcastic implication that I’m stupid.

Well it may be a coincidence that you are so wrong, and that you are (obviously) stupid. But I dunno, I’ve seen this correlation many times.

1)” if you steal his horse he doesn’t have it any more. that is not the same with information.”
But what if he steals “use” of the stallion, breeds his mares and then returns the stallion to its owner?

Then he didn’t have the use of the stallion while it was gone. There was a conflict. Sort of like if A rapes B while she is passed out after a drunken party, and the next morning B notices the telltale signs, even though she didn’t remember it–she was raped. Hellooooo.

This is the same as with information, because in both cases unauthorized knockoffs are made to the benefit of the thief–fraud artist, with the cost of this wrong doing to be borne by the proper owner.

In other words,you think the original artist is deprived of “benefits” he “owns” or is entilted to, namely profits he could obtain from selling things to customers under a condition of monopoly. I.e. he has a property right in the money in his prospective customers’ wallets. Intersting “theory,” that.

In the case of “information”, unauthorized reproductions involve fraud, because the copy from which knockoffs are illegitimately made was acquired with the contractual condition that knockoffs were NOT to be made.

Nonsens. If I sell you a copy I printed of Dickens’ Great Expectations or Obama’s latest kiddie book, that is not fraud–I am not misrepresenting what you are buying.

You are completely confused, Humphrey

Mark Humphrey November 1, 2011 at 6:11 pm

Kinsella comments, “how horrible! competition!”

But one can use this line of reasoning to attack private property in all of its variations. For example, Jones buys a large lot on a busy street and builds a tire shop on one end. Smith moves in without Jones’ permission and establishes a used car lot on the other end. When Jones angrily confronts Smith–who has been reading Kinsella–Smith points out that he is overturning Jones’ wrongful grant by the State of “mercantilist privilege” and providing badly needed “competition” by appropriating unused value.

Why limit theft to “information” products? All products–including Jones’ selection of a particular location–contain useful information. The distinction between “information” property and “non-information” property is spurious. All property involves the application of intelliogence to physical reality.

Stephan Kinsella November 1, 2011 at 7:38 pm

Kinsella comments, “how horrible! competition!”

But one can use this line of reasoning to attack private property in all of its variations.

Nonsense. Only a randroid can think this.

For example, Jones buys a large lot on a busy street and builds a tire shop on one end. Smith moves in without Jones’ permission and establishes a used car lot on the other end. When Jones angrily confronts Smith–who has been reading Kinsella–Smith points out that he is overturning Jones’ wrongful grant by the State of “mercantilist privilege” and providing badly needed “competition” by appropriating unused value.

Are you saying the libertarian should support the state outlawing Smith’s used car lot? If so, are you a fascist? If not, what is the relevance?

Why limit theft to “information” products?

Same reason Rand talked about initiation of PHYSICAL FORCE. HELLOOOOOOOOO

All products–including Jones’ selection of a particular location–contain useful information.

products “contain” information? Really. I did not konw this. Is there are property right in information that products “contain” this? Wow, this is so rigorous I don’t know how to respond.

The distinction between “information” property and “non-information” property is spurious. All property involves the application of intelliogence to physical reality.

All nonsense involves nonsense. now what.

Mark Humphrey November 1, 2011 at 6:21 pm

Kinsella comments, “Property in scarce resources is good. Property in abstractions and universals undermines it.”

“Information property”–the label preferred by Kinsella–is not “property in abstractions and universals.” It is physcial property created by the inventor or writer or artist or breeder. Thinking involves the use of abstractions; reasoning involves the use of universals. But reasoned thinking is necessary to the creation of every kind of property, with no exceptions.

The owner of an original painting or poem doesn’t own the abstract ideas that were used to create the original property. Ideas are the product of individual minds and cannot be owned by anyone. The creator owns the physical product made by applying a series of ideas and enacting them within physcial reality. The creator has the right to restrict sales to those who contractually agree not to make unauthorizede knockoffs of the creators production.

This right is upheld–perhaps imperfectly–by copyrights and patents.

Jim Bradley November 1, 2011 at 6:24 pm

What’s hilarious about this is that a large part of it derives from the entirely specious line of argument that “ideas are not scarce resources” which is demonstrably false. Ideas, creativity, etc. command a high market price (even when not IP!) when combined with crystallized knowledge … just look how well paid some managers are, and at least part of their pay is their ability to generate, manipulate, use, and implement ideas. The fact is that good ideas have a positive price which is prima fascie evidence that they are indeed scarce. I always get the feeling reading Stephen that he is downloading megabytes illegally and rationalizing it. Not that I entirely disagree with opening up IP – but I think the complexities of IP are a lot more nuanced than this.

Franklin November 1, 2011 at 7:09 pm

“…just look how well paid some managers are, and at least part of their pay is their ability to generate, manipulate, use, and implement ideas. The fact is that good ideas have a positive price which is prima fascie evidence that they are indeed scarce. ”

This is a non-sequitur.
Ideas are not scarce at all.
The ability to use them and implement them is a market skill that is rewarded in the marketplace. Some individuals are more effective than others via aptitude or maybe even circumstance.
And this is where Kinsella’s argument is strongest — deriving a profit from an idea does not deprive you of the idea. You’re still welcome to employ, invoke, and manufacture something based on that very same idea.

Jim Bradley November 1, 2011 at 10:49 pm

Franklin- think about this: there is a price of zero for a non-scarce good and there is a positive price for a scarce good. Many ideas command positive prices, even ideas that are in the public domain (!). Some ideas are economically scarce. That’s just a fact, like it or not.

Andrew from Russia November 2, 2011 at 4:05 am

Many ideas command positive prices, even ideas that are in the public domain (!). Some ideas are economically scarce.

Public-domain works are scarce because privately-owned media containing them is scarce. When the author’s copyright expires, no property becomes transferred to “the public” in general – only the owners of existing copies are relieved from restrictions on reproduction, while outsiders can’t break into a private library and demand their copy of a 19th century book. For that reason there’s always a price and there will be not a trace of communism / calculation problem absent IP.

BTW while in English the word “property” means both “ownership” and “feature”, enabling a rudimentary IP theory to be built on confusing the two, it is impossible to play this trick in Russian. We have different terms, “sobstvennost’” for “ownership” and “svoystvo” for “feature”, both derivatives of an old reflexive but different nonetheless. :)

Jim Bradley November 2, 2011 at 11:56 am

In my view, it’s just nonsense to say that the price given to some people for their ideas is because the “media is scarce”. In many cases, we’re talking six figures. Clearly research chemists, biologists, astronomers, etc. won’t agree that their ideas are non-scarce because it sure took a lot of labor and labor is scarce. The whole argument just falls down. I don’t like a lot of IP, as it is a grant of monopoly, but frankly this isn’t the way to approach the issues we have.

Stephan Kinsella November 2, 2011 at 12:52 pm

“Frankly,” Jim, you are talking like a total amateur. You have no idea what you are talking about. You have no argument at all except “duh duh labor is scarce and some people’s be gettin’ rich”. Nice political theory you got there.

Kevin Brown November 16, 2011 at 11:05 am

No, ideas are NOT scarce because ANYONE could think of the very same idea. A specific piece of matter however is forever scarce.

Stephan Kinsella November 2, 2011 at 7:45 am

By scarcity we mean rivalrous. Economists widely recognize ideas and information are not rivalrous (scarce). This cannot be denied. this is the reason they are in favor of IP: they are trying intentionally to impose scarcity where there was none.

It is not true that if something has a price it is a rivalrous (scarce) good. If I pay you $100 to teach me how to whistle, I value the knowledge you are imparting to me, which is why I am compensating you for htis knowledge. But the knowledge is not itself thereby rendered rivalrous, because a million people can possess and use this knoweldge at the same time without diminishing my ability to employ it as part of successful action.

Jim Bradley November 2, 2011 at 12:33 pm

Incorrect. Economists use the word “scarcity” to mean “non-free” and “limited”. Thus air is a non-scarce good, it is not in limited supply. Seawater (for those in boats, at least) is a non-scarce good. Ideas, as a class, are limited – some more than others – and thus they are scarce. Because two people can have the same idea does not imply that they are “non-scarce”.

Finally, the idea that boundaries of property *should* (this is a normative statement you are making) delineate the boundaries of enforceable legal action doesn’t follow from any cohesive theory. Clearly we should have limits on actions which do not cross “physical boundaries” (such as putting others at unreasonable risk) and we have limits on consent (such as the consent to be a slave). I really think Mises.org should stick with Mises.

Stephan Kinsella November 2, 2011 at 12:54 pm

And I “really think” you should stick with changing the oil at cars at Jiffy Lube. And…?

Jim Bradley November 2, 2011 at 2:52 pm

Ah yes, the essential, concise, and intellectually sound reply from Mr. Kinsella, who is proving to us that self-control is indeed a virtue by showing us how bad it looks otherwise. Here’s to intellectual quality (raising glass). Cheers.

Kevin Brown November 16, 2011 at 11:07 am

Then just replace scarcity with rivalrous and you have no objection.

Mark Humphrey November 1, 2011 at 6:33 pm

Anyone willing to think about these issues can see that Kinsella’s is choosing to ignore and talk around the violation of contractual rights of the “IP” owner by the knockoff artist.

Anyone willing to pause and reflect can easily see that Kinsella has not provided a valid fundamental distinction between what he calls “intellectual property” and other forms of property.

It is unfortunate that the Mises Institute has promoted Kinsella’s attack on private property in the name of Ludvig von Mises who defended private property, patents and copyrights. I consider this to be dishonest.

Edgaras November 2, 2011 at 9:11 am

And we consider you being uneducated on this issue. Read more Kinsella’s works, because your assertions are so old that were actually debunked many times in his blog by himself and other anarcho-libertarians. So there is no surprise that he is tired of this shit and responds more “aggressively” so to speak. In short, read more comment’s on other IP related articles. They are worth more than a book “Against IP” (but that’s my humble opinion”).

No need to appeal to Mises here. He wasn’t anarchist in pure modern sense.

Kevin Brown November 16, 2011 at 11:11 am

IP has nothing to do with contracts. Contracts only bind the specific parties that voluntarily agree to the terms have no hold whatsoever on third parties.

So for example if you author a story and contract with Joe that he can read a copy of the story given he does not share it or make a copy fine he is contractually obligated to honor this. But what happens when 3rd party Tom sees a copy of the story? He has not entered into any contract with you the author and is under no obligation to refrain from sharing the story or reproducing it on his own paper with his own ink.

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