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Source link: http://archive.mises.org/4393/for-blackberry-users-out-there/

For Blackberry Users out there …

December 1, 2005 by

who support patent law: I don’t feel sorry for you: patent law is about to shut down the Blackberry service and ruin a great company. But I do feel sorry for RIM, the owners of Blackberry.
Update: See my former partner, IT lawyer Eric Sinrod’s discussion of the Blackberry lawsuit, I Want My BlackBerry; and this report, RIM stock hits five-week low.

{ 112 comments }

Roy W. Wright December 10, 2005 at 4:00 pm

Roy — Your analysis rests on the assumption “There is no such thing as intangible aggression which can violate a person’s rights”.

No, you could obviously violate a contract by doing something “intangible.”

Your analysis also rests on the theory that there can be no ownership of an idea. But why not? All people that have ideas “own” them (just as they own their bodies). The problem is the “right to exclude” … but is there a practical solution to protecting the right of people to sell their ideas yet still allow independent discovery?

No, my “analysis” simply depends on fewer assumptions than yours. You can certainly possess an idea, but the supposed “right to exclude,” or “right to sell ideas” are assumptions which you have made without any justification other than, basically, “I want people like Stephen King to be able to make lots of money.”

Jim Bradley December 11, 2005 at 7:53 am

Jesse – It is illegitimate to play the game of “restriction of range” refusing to consider anything else but the arguments in one’s own definitional universe. We share a universe, and it is subject to the laws of her creator, not of Stephan.

Stephan has also attempted to generate a theory by which other people are fair game for “proportional punishment” depending on the definition of libertarianism. Stephan’s other answers went far beyond “curt”. It is supposed to be an exchange of ideas by argumentation, not an outlet for hostility.

We can agree that legalized thievery (welfare) violates the rights of those aggressed upon, so does socialized medicine, socialized education, etc. But many other cases are not so clear-cut. Libertarianism is far more inconsistent that it sounds, and much of it is impossible in practice.

What is possible is the reduction of government infringement of rights by one group over another by dispersal of centralized power and voluntary joining or secession from geographic areas — as well as the commitment to minimizing violence by government and people.

Requiring testimony in a death penalty case certainly IS “minimizing violence” and it is necessary but in violation of property rights (the right to one’s own knowledge). Consider the practical implications of your basic “right” to a fair trial. That is impossible without implying a duty by others. After all, what’s the possibility of having a just society if even acquiring the data cannot be enforced? Can the state authorities supina records?

Roy — It seems libertarians have an almost desperate need to remain “consistent” to a univariate system even if it arguably violates the rights of people to protect their work.

IP has big problems. Perhaps it should be scrapped. But no argument here has really made an argument outside the libertarian definition universe — instead relying on definitions of “scarcity” etc. that are frankly half-arbitrary.

The bottom line is whether it is just to allow a person that gains illegitimate access (not having developed or bought the intangible product himself or herself) use or distribute or sell it. You’ve no right, having stumbled upon Stephen King’s work to copy and distribute it. That is theft. Ideas are scarce by the economic definition (a positive price), although there is no conflict between people independently developing ideas (a serious problem with the current system). As soon as Stephen King’s book is distributed free of the included license, the book becomes “public domain” and there’s no ability to prosecute the illicit distributors that have aggressed on Stephen King’s right to produce and sell “intangible things” like his book (or an e-book). How is that better?

The shortcomings of the libertarian system are not discussed as they are by definition not to be considered. I understand the reasoning (consideration of consquences are less important than consideration of rights). The problem is that some libertarians promote without room for argument (because of the restraint above) that their form of libertarianism is right.

Jim Bradley December 11, 2005 at 11:42 am

Stephan — certainly comments like “Deep, man or accusations of ‘obsession’” etc. go beyond bluntness.

The point of our discussion is the existence of general moral laws: which I trust if they are given by a creator, they will become clear in time to those open to following them, and resisted by those that do not want to “give up their wrong ways”.

You favor non-aggression as codified in a system of private property. That is a moral position. I would make the broader claim you favor minimization of government violence, even at the cost of (what looks like) “increasing individual violence” (calling yourself anarchist) — and you do so with the belief that such a society is better. So adopt a libertarian utilitarianism (which can be praxeologically argued, by the way).

For me, practical (i.e. possible) minimization of long-run violence is the goal.

That’s why I believe it is better to adopt a non-violent method of emasculating the state. For example: I read about “abolishing the Federal Reserve immediately”. But what a disaster inviting worldwide depression, war, and destruction. Why not advocate abolishment of capital gains laws so holding alternative private currencies becomes possible: and abolishing legal tender laws so that dollars are only tax credits and private contracts can stipulate any private currency for payment? That’s a (more) non-violent method of freeing people from the state. (In fact that IS being done in offshore accounts).

The emerging freedom makes the call for “one world government” all the more nefarious.

The criticisms of building a “definitional universe” are trenchant (a term Rothbard was fond of using) … I make the claim it would be better if libertarians respected the fact that (so far as we know) there isn’t a “one viewpoint” road to truth — instead attempt to show all roads point back to libertarianism using multiple methods. Reality IS moral, meaning a proper morality yields a society that is better and libertarian society is better by multiple criteria.

There is likely nothing as intellectually powerful as taking someone else’s system and using their rules to demonstrate libertarianism works, rather than “creating one’s own universe”.

In terms of IP: I think equal weight needs to be given to the problems that might arise with a libertarian “solution”. The only person posting on the solutions to that criticism was David Heinrich (thanks David).

Anyway, don’t want this to sound all bad. Thanks for participating, Stephan. Enjoyed this a lot.

Manuel Lora December 11, 2005 at 12:25 pm

If IP were real property, then why would we even have laws that would regulate expiration on patents and copyrights? If I have a house (assuming IP can be treated like normal physical scarce property), then why would it be “better” to have that house “expire” and become public domain? Who determines when the value of the house becomes low enough to allow it to become unowned (“public domain”). Should it not be, at best, the owner of the house to determine what value he gets from the house?

An expiration date on IP would seem to be theft, regardless of whether it’s 3 years, 10 or 60.

Jim Bradley December 11, 2005 at 12:43 pm

Jesse — The first responses were accusations “you haven’t done your homework” etc. etc. That’s simply an assumption. I’ve been a libertarian for 10 years reading volumes of material. I don’t concur with a lot of blanket statements made by libertarian theorists who seem to have lost sight of practical implementation, difficult legal tradeoffs, and are wedded to a certain “viewpoint universe”. The better theorists (Hoppe) end up coming far closer to practical implementation, and in fact ending up perilously close to “what we have” (or should have in constitutionally limited government).

While I’ve noted the severe problems with current IP law, most libertarian viewpoints haven’t done the same for the libertarian system. Criticism by noting the “bad effects” seems to go only one way – even so far as making the claim “rights trump consequences”.

But if reality is consonant with truth, there’s a serious contradiction: results will comport with reality, so it’s fair game to consider consequences. This avoidance tactic has been that way through the entire string.

If it is an affront to conscience to say that there is no “right” to the product (including sale) of one’s work (noting that other people also have that right), then good reasons why that cost is “worth it” are necessary. The basic strategy here is “scrap all IP”, which might be valid, but the argument so far is too restricted in range to be comprehensive.

Jim Bradley December 13, 2005 at 1:33 pm

Too bad we lost the last of Stephan’s comments.

Here’s a Lysander Spooner excerpt: “But what must settle, absolutely and forever, this question of the right of property in incorporeal things, is this- that the right of property itself is an incorporeality. The right of property is a mere incorporeal right of dominion, or control, over a thing. It is neither tangible by the hand, nor visible by the eye. It is a mere abstraction, existing only in contemplation of the mind. Yet this incorporeal right of dominion or control over a thing, is itself a subject of property- of ownership; one that is continually bought and sold in the market, independently of possession of the thing to which it relates.”

Fully in contrast to the no IP views here are Lysander’s:

http://www.lysanderspooner.org/intellect/ch2s1-s5.html

Stephan Kinsella December 13, 2005 at 2:03 pm

Jimbo, you quoted Spooner:

But what must settle, absolutely and forever, this question of the right of property in incorporeal things, is this- that the right of property itself is an incorporeality. The right of property is a mere incorporeal right of dominion, or control, over a thing. It is neither tangible by the hand, nor visible by the eye. It is a mere abstraction, existing only in contemplation of the mind. Yet this incorporeal right of dominion or control over a thing, is itself a subject of property- of ownership; one that is continually bought and sold in the market, independently of possession of the thing to which it relates.

A lot of the older writers were more metaphorical and flowery in their writings, and even more mystical. Here is an example of that, combined with semantical word games. It is frankly a ridiculous argument. What he is saying is that the “right to property” is itself incorporeal, “therefore” there must be property rights in incorporeal things. Ridiculous.

The question is who owns a given scarce resource; this question arises when 2 people contest or both want to use a thing that of its nature has to have exclusive use; that is, use by one person excludes the other. This is why a dispute arises, and the need to assign a property right in the thing, to one person. You cannot then say, “Aha, but ‘property rights’ is an incorporeal abstraction, therefore the things that are subject to property rights must aslo be incorporeal.” This is simply a confusing non-sequitur; a mere assertion. If a glass can hold liquid, it must be made of liquid, right?

Look, “property rights” is also a “societal mechanism used to promote harmony and avoid conflict.” So by the reasoning above, “mechanisms used to avoid conflict” would be ownable. That is, the *very notion of property rights*, would be ownable. This makes absolutely no sense whatsoever.

The point is we assign an owner to a given scarce resource. We label this assignment as an instance of a regime of property rights. So what? If I sell you a thing I own, I have not transferred an “incorporeal right” to you–I have made you the owner of the thing. The object in discussion is not incorporeal.

Jim Bradley December 14, 2005 at 11:04 am

Stephan — But you make a straw man argument by choosing ideas that are already in the “public domain” and are not ownable, acting as if they could now be. Clearly we both agree in a perfect world (contrary to IP law) that people having their own ideas should be able to fully act on them. That’s not a valid criticism of current IP law unless it is possible to have an alternate system that is more just.

And certainly your right to your own labor is intangible as “labor” is itself not a tangible thing, but instead is the manipulation of tangible things by your body which is by your will, which is also intangible. A “contract” is intangible (the agreement itself is represented by ideas as written by a piece of paper and the ideas are not tangible). “Ownership” is intangible, as you have a right to control something but that “right” is not something that is tangible (only the evidence of the intangible right is traded by paper titles), etc. The tangible / intangible dichotomy is an artificial division as ALL action has both components, Stephan — (that is the nature of conceptual humans interacting with matter) including those acts which libertarians defend (for instance, the right to the product of one’s labor in homesteaded property). Lysander’s critique is very devastating. I believe the theory of no-IP rights fails on many grounds. If IP rights are property rights, IP suffers from the least protection of all property rights.

In any case, his complete critique is here:
http://www.lysanderspooner.org/intellect/contents.htm which you may enjoy.

I think the broader point is, many things libertarians assert as objective non-conflicting rights theory are not — hence my vigorous disagreement about Rothbard’s views being the “accepted” libertarian view on Mises.org. I think Mises was more restrained. I also think it is clear that praxeology cannot be used to make the jump to morality and that a shared morality is critically necessary to a functioning society — as there are necessarily (in any functioning society) duties of men to others in any practical formation of laws. The question is the minimization of violence and conflict — which must critically include the “nature of man’s corruptibility” both in power and without the restraints of power.

Frankly, the more I study our system of jurisprudence in history, the more respectful I am of it. I never had respect for politicians, but I hoped for more from intelligent libertarians.

Stephan Kinsella December 14, 2005 at 1:32 pm

Jim:

Stephan — But you make a straw man argument by choosing ideas that are already in the “public domain” and are not ownable, acting as if they could now be. Clearly we both agree in a perfect world (contrary to IP law) that people having their own ideas should be able to fully act on them.

Actually, I am not so sure exactly what that latter formulation means, so not sure I would endorse it. It might be my own idea to kill you, for example.

That’s not a valid criticism of current IP law unless it is possible to have an alternate system that is more just.

We don’t think about this the same way. You cannot seem to accept that not everyone is a strategist or utilitarian. Look: I oppose any law that is unjust. Period. I don’t support even apparently unjust laws, unless I can find a “more just” one. I have no idea why you seem to endorse such an approach–unless you presuppose that the situation faced by innovators in the absence of IP laws is also unjust–whcih is question begging.

And certainly your right to your own labor is intangible as “labor” is itself not a tangible thing, but instead is the manipulation of tangible things by your body which is by your will, which is also intangible.

Which is why it seems to me that labor is not technicalaly an ownable thing. It’s just actions you perform.

A “contract” is intangible (the agreement itself is represented by ideas as written by a piece of paper and the ideas are not tangible).

the fact-that-you-exist is intangible. The tendency of my dog to bark is intangible. Squareness is intanagible. So what. A contract is just a means-of-assigning-title-to-property.

“Ownership” is intangible, as you have a right to control something but that “right” is not something that is tangible (only the evidence of the intangible right is traded by paper titles), etc. The tangible / intangible dichotomy is an artificial division as ALL action has both components, Stephan — (that is the nature of conceptual humans interacting with matter) including those acts which libertarians defend (for instance, the right to the product of one’s labor in homesteaded property). Lysander’s critique is very devastating. I believe the theory of no-IP rights fails on many grounds. If IP rights are property rights, IP suffers from the least protection of all property rights.

We disagree. I think this is utter confusion and nonsense, to be honest–imprecise and unrigorous and overuse of metaphor that masks the underlying confusion.

I also think it is clear that praxeology cannot be used to make the jump to morality

I would tend to disagree–see Hoppe’s argumentation ethics–e.g, as summarized in my Defending Argumentation Ethics.

The question is the minimization of violence and conflict

This is really just a technical question, a question of enforcement of rights etc. The question for libertarians is the identification of what is just and unjust, not how to minimize injustice.

Frankly, the more I study our system of jurisprudence in history, the more respectful I am of it. I never had respect for politicians, but I hoped for more from intelligent libertarians.

Irrelevant.

Jim Bradley December 14, 2005 at 2:28 pm

Stephan — Okay — our approaches are different. To prevail, you must necessarily show why your approach is better (i.e. validly supercedes mine). Hence my assertion that you must adopt a utilitarian view, or not argue at all. If utility is valid, then Hoppe’s ethical apriori assertions are also in peril.

Tangibility: The will implies self-ownership which implies ownership of one’s labor, and labor is intangible like the will. So intangibles are in fact critical to the support of libertarian theory.

Lysander basically made the following argument (started earlier in this string): If one’s labor, being intangible, is not ownable, then how can property be ownable? Intangibility applies both to labor and ownership of property — ownership is “rightful control” which is an idea not a tangible quality.

If we argue on the grounds of theoretics only (as opposed to practical application): then it is clear that every person has the absolute perpetual right to their property, tangible and intangible, including their own ideas with rights of exclusion on any other person as they see fit (by restraining to share, or by forbidding the resharing of their ideas), and all other persons have that same right as well.

One has no right to exclude others from developing their own ideas which may be the same, but one has every right to prevent the usurpation (stealing) of his ideas without consent — the same as the rule for labor: one has no right to prevent others from independently developing skills and selling their own labor, but one has the right to refuse to perform labor except on terms agreeable to him and therefore at his consent.

And finally, if the ownership of tangible property is argued on the grounds of ownership of intangible property (the will), how can one argue against intangible property?

Stephan Kinsella December 18, 2005 at 4:54 pm

JIm:

Stephan — Okay — our approaches are different.

Well, to say they are different is to presume we both have an approach. Mine is pretty explicitly stated. I confess I have no idea what your “approach” is, in general, nor even if you have one. If you do, care to specify?

To prevail, you must necessarily show why your approach is better (i.e. validly supercedes mine).

Yeah, funny, I just don’t look at it this way.

Tangibility: The will implies self-ownership which implies ownership of one’s labor, and labor is intangible like the will.

Again, I would avoid the imprecision of metaphorical statements like one own’s one’s will or labor.

Lysander basically made the following argument (started earlier in this string): If one’s labor, being intangible, is not ownable, then how can property be ownable?

Because as between two people contesting a given resource, the one who acquired it first has a better claim than the late-comer. This argument does not rest on any weird notion that one “owns” one’s “labor”. See my post here on this.

Intangibility applies both to labor and ownership of property — ownership is “rightful control” which is an idea not a tangible quality.

If we argue on the grounds of theoretics only (as opposed to practical application)

I really don’t think in this way. If you say “we ought to argue on the grounds of practical application” this rests on a certain theory.

then it is clear that every person has the absolute perpetual right to their property, tangible and intangible

NOt sure what an “absolute” right is. And it does not follow, at least re intangible. It is question begging to assume intangible is property.

One has no right to exclude others from developing their own ideas which may be the same, but one has every right to prevent the usurpation (stealing) of his ideas without consent

Lots of pure assertions and question-begging here. IT’s only stealing if it is property, which is what you are trying to show.

And finally, if the ownership of tangible property is argued on the grounds of ownership of intangible property (the will)

But it need not be. See above.

Listen, I don’t seek to establish my case here. BUt only that there is another approach than yours (whatever it is). What I find annoying is this way you keep blithely assuming everyone must be making your own assumptions. Surely you are aware *that* other libertarians don’t all agree with this? If so, why pretend they do?

David C March 4, 2006 at 1:09 am

After reading much of this thread, I wanted to make some comments.

First off, property rights exist to allocate and deal with limited resources in a way that is just, not to provide incentive, not to provide compensation, not even to provide a reward for labor. Now granted, just allocation of limited resources often have these side effects, but still they are effects and not causes.

Second off, the argument against patents and copyrights is extremely practical. A quick read of the essay proved that, but even not so – a look at the marketplace will confirm … the x86 architecture vs the Motorolla one, Ethernet vs Token-ring, integrated PC’s vs PCI-compatible ones, and today Linux and open source software. The least proprietary technology always takes the lead in the markets and in share when given the chance to do so.

Third off, the copyright and patent debate is very relevant today. As the US enters the information age, the copyright issue is going to be one of THE issues. And, when pharmaceuticals sued African nations in the world court for trying to infringe patents on AIDS medication – it could be argued that a million people died early because of that. But the patent debate is also central at home as millions of elderly retire and rely on patented medicines that are over expensive and have lots of chemical side effects – this is directly related to the patent problem. Also, when an issue is related to the effective murder and suffering of millions, it is not appropriate to say “well this is irrelevant vs issue x”

Fourth off, those who wish to impose patents or copyrights are the ones who wish to impose these massive and huge restrictions on what people can copy and imitate. The real burden of proof is on them to justify such impositions, not on everyone else because it’s the “status quo”.

Fifth off, you can use government to choke the natural supply in any market and there will exist some commerce and business that will benefit from that and others that won’t. How will people make money without patents and copyrights limiting how others can copy and use invention? …. I don’t know and I don’t care anymore than I care how plantation masters will make money without slaves on the plantation. ( which BTW, was also a phony property right/incentive that was supposedly pro-business ).

If someone is smart enough to create and invent, then I’m sure they are smart enough to figure out how to make some dough on it without a personal government coerced monopoly. If their only response boils down to “well, what’s in it for me? (or my industry)”, then I would respond, “how is that attitude different than any other welfare queen?”

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