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Source link: http://archive.mises.org/4992/objectivists-on-ip/

Objectivists on IP

May 3, 2006 by

As I noted in a recent post, Objectivist had written a critique of libertarian arguments against intellectual property. At the time the article was not available online, but it has since been posted: Don’t Steal This Article. I have not had time to reply in detail, but let’s just say, for now, I think the critique–while a decent attempt, about as good as you can do given some of Rand’s premises–is confused and utterly unpersuasive.

{ 95 comments }

Roy W. Wright May 3, 2006 at 5:56 pm

…about as good as you can do given some of Rand’s premises…

What a deliciously ironic thing to say.

Roy W. Wright May 3, 2006 at 6:56 pm

I’ve now read the article, which was easier than I expected due to its lack of actual substance. I found most of it to be empty, parroting, religious rhetoric, typical of Randists. There was one section worth responding to, though, as it seemed almost an honest attempt at debate:

The first thing to note is the plain fact that people are routinely prevented from using their material property when it would violate any right — so the protection of intellectual property rights would not be unique in so “controlling” other people in their use of their material property.

Ah, but IP is unique in stopping people from using their material property in nonaggressive and even entirely private ways.

Recall that intellectual property rights protect the manufacture of creations — objects which did not and would not otherwise exist. Before a novel has been written, absolutely nobody has the power to publish it, so its being authored cannot remove any liberty previously enjoyed by printers.

The way the article’s author breezes over the ugly realities of copyright law — the aspects of it to which libertarians most strongly object — is tantamount to a strawman. Most libertarians are concerned not so much with the rights of printers, but with the ability of ordinary people to use their own property as they see fit, to not constantly be spied upon as they must be under copyright law.

And before some better mousetrap is invented, nobody has the power to produce it — so its being invented cannot deny manufacturers any previously enjoyed freedom.

What profoundly faulty reasoning. We do not owe the existence of a given device to the first of possibly several persons to invent it. But under patent law, that first person has the power to forbid others from using their own property to assemble it.

Roy W. Wright May 3, 2006 at 7:10 pm

Since the Randist position seem to be, essentially, that any person who produces something useful has a right to be paid for it, let me also note something that has been said by others in that regard. An important side effect of making a great scientific discovery or inventing a device with the potential to improve the lives of others is that the discoverer or inventor gains a tremendous insight into future market conditions. Such an insight is fairly easily parlayed into profit.

There is also the matter of first-mover advantage, in many cases.

David C May 3, 2006 at 10:02 pm

A farmer who is the first to grow an orange grove in his country, doesn’t deserve a monopoly on orange growing and epsecially isn’t entitled to sell shares of that monopoly as a property right. I thihk the mistake here is the belief that property exists to create incentive and compensation, it doesn’t. It exists to allocate limited supply justly with respect to individual liberty – and that often has a consequence of incentive and compensation.

Getting rid of copyrights won’t change the drive for incentive and compensation, it will just make it so that information based services are used to create value rather than information based controlls. In fact the real issue is that the information age is forcing the service value of information to be more valuable than it’s content value which is creating trillions of dollars worth of pressure to kill the copyright system. As that pressure grows, copyrights and all the industries that center on them are pretty much pre-destined to die.

Franklin Harris May 3, 2006 at 10:12 pm

I am on the fence regarding IP, but I think Mr. Wright is being unfair to the Randian case. First, the Randians and not building a case that necessarily prohibits my making copies of IP for my personal use. My then selling it, however, is another matter, and certainly not a trivial one. Israel Kirzner is working along similar lines when he defends property rights in terms of “discovery,” which has always had an intuitive appeal to me, although, looking back at David Gordon’s review of Kirzner’s argument, I may be one of the few who feels that intuition.

Roy W. Wright May 3, 2006 at 10:55 pm

I am on the fence regarding IP…

IP is actually one of the least settled issues in my mind, believe it or not. Neither side is 100% satisfactory to me, but Kinsella’s writings are far, far more convincing than this article.

First, the Randians are not building a case that necessarily prohibits my making copies of IP for my personal use. My then selling it, however, is another matter, and certainly not a trivial one.

I agree on a visceral level, but logically I see no reason to distinguish the two acts. Can you give me one? Now obviously, passing someone else’s work off as your own is fraud, but what if you’re honest about the work’s authorship?

Vanmind May 4, 2006 at 12:22 am

IP on a daily basis…

averros May 4, 2006 at 1:05 am

“Intellectual Property” is newspeak.

The proper name for it is “Government-Issued Temporary Monopoly Rights”.

Does change one’s perception a bit, yeah?

And now this “IP” is being used as an offensive weapon against poorer countries trying to compete with the US.

Martin CLarke May 4, 2006 at 6:13 am

The thing I find interesting is the smugness of the Objectivists. Most of them have never studies the history of philosophy in any depth, but they have no qualms about denouncing ideas as “Platonic abstractions” and the like.

And of course they can’t do without the praise of Rand for her brilliant “economizing” article which focuses on “essentials.” That’s what we call short and superficial if it’s by anyone other than Rand.

Paul D May 4, 2006 at 7:18 am

“My then selling [information, thoughts, etc.], however, is another matter, and certainly not a trivial one.”

What do you find difficult about it, if I may ask? If you wish to share with me a song, story, or idea in exchange for some money, how can it possibly be a concern to anyone else, including the person who first thought of that idea? Our transaction is entirely private and non-violent.

“Since the Randist position seem to be, essentially, that any person who produces something useful has a right to be paid for it.”

So rather than having abusive copyright laws, simply giving welfare payments to “creators” might be more intellectually inconsistent (however stupid).

“IP” is not a right. It’s an anti-right, the very opposite of charity, designed to punish people who benefit from what you produce.

Paul D May 4, 2006 at 7:19 am

Sorry, the above phrase in my third paragraph should read “intellectually consistent”, not “inconsistent”.

lorenzo sleakes May 4, 2006 at 8:15 am

Every author has the right to sell a book with the contractual stipualtion that it wont be copied. The purchaser of the book has agreed to that. If the purchaser uploads the book contents to the internet and some other party who never agreed to the contract then downloads it and sells it as his own then he is marketing in stolen property because the purchaser of the book violated the contract by making the book contents public. My point is that IP can be justified as a practical matter of making private secrecy contracts enforceable.

Paul D May 4, 2006 at 8:57 am

You are right, Lorenzo. Something similar to copyright could come about from contracts negotiated between buyers and sellers. The possibilities of voluntary restrictions rarely go far enough for State Copyright proponents, though. For example:

1. An onerous, heavy-handed contract would probably fail in the marketplace (which is why copyright proponents prefer to enforce their own arbitrary terms with State power).

2. Contracts can be broken, and while there might be some financial penalty, the bookseller can’t use violence to punish his buyers if they break the contract.

3. If a buyer shares his book with others anyway, those recipients are bound by no contract. One copy in the wild is all it takes for digital media, so contracts are fairly ineffectual.

In a free market, I believe the following outcome is more likely:

1. Major publishers and retailers (of books, music, etc.) would form contractual associations and agree not to copy each others’ works within certain time-spans. The advantages of belonging to such an association would outweigh the advantages of copying any single work and being booted out. Additionally, the terms of the contract would be set by the market (i.e. be beneficial to all parties), as opposed to current arbitrary copyright terms.

2. Being first to publish would remain a major incentive for creativity, but publishers would no longer be able to rely on milking the same work for years, decades or centuries. Each new Harry Potter book makes boatloads of money its first *hour*. Who cares if someone else manages to make a copy of it a few weeks later?

3. Companies would find more creative ways to benefit from creative works. CDs would be sold with better liner notes and extras; computer games would include game guides, maps, and other entertaining materials in the box again (like they used to). Et cetera…

The truth is, we can only guess what forms the free market would take if we let it really be free. Who could have predicted automobiles, computers, and the Internet, after all?

Artisan May 4, 2006 at 10:21 am

I regularily see the desire of many libertarians to abolish copyright. Apart from the confusion between patent regulation and copyright, which seems too convenient to stimulate for argumentation sake (despite the major differences: mainly the question of functionality ), I would love to see more “praxeology” on the copyright opponents’ side and less passion too…

Paul D
Just because the State cares about it doesn’t mean its evil. That would make hell too crowded. To assume copyright has no viability without the enforcement on State level is an argument that has little to do with Mises’ great praxeology, and I’m not quite sure it is quite exact either as you mention:

“Contracts can be broken, and while there might be some financial penalty, the bookseller can’t use violence to punish his buyers if they break the contract.”

Do you really get thrown in jail for copyright infringement in the US? I know no European country where this happens right now. It is graded as “civil” law, not “penal” over here.

Roy W. Wright
” … Now obviously, passing someone else’s work off as your own is fraud, but what if you’re honest about the work’s authorship?” .

In terms of praxeology again this reasoning is contradictory. Either you recognize the existence of “intellectual PROPERTY” and therefore you recognize its exploitation lies by the owner of that property, or you say immaterial “property” being “not scarce”, it has no existence as property, which means, why not, you can print your own name on the cover of Hans-Hermann Hoppe’s last book, and sell it for your own profit.

lorenzo sleakes May 4, 2006 at 12:14 pm

Yes..IP such as copyright if done impropertly ..can be a real restriction on rights of freedom and liberty.
But there is no need to throw out the baby with the bathwater.
For the contractual secrecy agreement implicit in copyright to be legitimate it must cover some creation of such high specificity that it never would have been independenty created by someone other than the original author.
To deny one the freedom to write “Atlas Shrugged” is in the real world no restriction of freedom at all.

sp3tt May 4, 2006 at 12:57 pm

Artisan,

Printing one’s name on the cover of a book written by someone else is a clear case of fraud. However, I do not see why anyone would want to do that, given sufficent fame of the book to start with. Would you rather read Human Action by Ludwig von Mises, or Human Action by John Doe?

Stephan Kinsella May 4, 2006 at 2:31 pm

Roy Wright: “Now obviously, passing someone else’s work off as your own is fraud, but what if you’re honest about the work’s authorship?”

Why is it “fraud”? I think laymen are notoriously careless in throwing this term around without defining it. Does it just mean “lying”? To my mind, “fraud” is the act of deceiving the other party to a transaction about the nature of what you are giving him in exchange for what he is giving you. So it is a means of gaining the other party’s things by trick or deceit–that is, it is a type of theft, since you don’t have the owner’s “consent” to possess/use his property–since the “consent” is conditional on your not lying about the things you are using to pay for it.

So is putting my name on, say, a Shakespeare play “fraud”? Not necessarily; and in fact, it’s hard to imagine how it could be. If I sell a play called “The Tempest” with my name on it, who, exactly, have I defrauded? The buyer? I guess, perhaps, but you’d have to show exactly how I took his money without his (genuine) consent, to demonstrate that it was fraud.

Stephan Kinsella May 4, 2006 at 2:36 pm

Roy: “And before some better mousetrap is invented, nobody has the power to produce it — so its being invented cannot deny manufacturers any previously enjoyed freedom.

What profoundly faulty reasoning. We do not owe the existence of a given device to the first of possibly several persons to invent it. But under patent law, that first person has the power to forbid others from using their own property to assemble it.”

Yes, exactly. It is irrelevant that without the first originator of an idea you would not have been able to make it anyway. So what? The question is simply: am I entitled to manipulate and use my own property as I see fit–of course, it is guided by various technical information I am aware of–facts and ideas in my head. What does it matter what is the pedigree or origin or history of the various ideas, facts, concepts, knowledge that I have assimilated? This information, knowledge, facts, beliefs, views, etc. is simply technical knowledge that I use to manipulate things and act in the world.

lorenzo sleakes May 4, 2006 at 4:09 pm

Stephan…Does an inventor have a right to sell a better mouse trap idea with the stipulation that the non-obvious new idea must be kept secret and cannot be disclosed to any non-parties to the agreement? If you say yes, its meaningless because it cannot be enforced. Some big company will steal it and you can never prove that they stole it. Thats why inventors accept the game of first come first serve because at least they have a chance to win. The public also accepts it because they need inventors. So I accept that patents are legitimate. The question then becomes how long should a patent be for and I would say not very long – because in this age of global research and communications it is almost certain that any new invention would have eventually been invented by someone else in a short period of time.

Artisan May 4, 2006 at 5:01 pm

Although I find these later raised issues not really capital, let me please say something more about them.

sp3tt
Printing one’s name on the cover of a book written by someone else is a clear case of fraud. However, I do not see why anyone would want to do that, given sufficient fame of the book to start with.

Quite true, sp3tt, my example was not well chosen…
but let’s not talk about the rich and famous then…

How about me, fairly unknown writer, publishing a great guide on all good restaurants in town, and then the slightly bigger publisher next door, with a better distribution network, with better advertisement facilities also, puts his name on a cheaper reprint (that second publisher doesn’t have to carry all the expensive meal costs either). I’m asking you, why should this publisher put my name on that book reprint really, as it would only allow thus the potential buyer to look up his smaller publishing concurrence?

@Dr Kinsella
who, exactly, have I defrauded? The buyer? I guess, perhaps, but you’d have to show exactly how I took his money without his (genuine) consent, to demonstrate that it was fraud.
I’d say, the trouble with advertisement is that you cannot measure exactly its efficiency in monetary profit, yet you can bet there’s some, as you see big corporations spending billions on it.

How can this be no fraud though, when this publisher takes the glory from another man’s outstanding work, for his own publishing house as advertisement? It is defrauded quality advertisement for the seriousness of his publications. There’s no excuse for that…

Stephan Kinsella May 4, 2006 at 5:29 pm

Artison:

“‘@Dr Kinsella
who, exactly, have I defrauded? The buyer? I guess, perhaps, but you’d have to show exactly how I took his money without his (genuine) consent, to demonstrate that it was fraud.’

“…How can this be no fraud though, when this publisher takes the glory from another man’s outstanding work, for his own publishing house as advertisement? It is defrauded quality advertisement for the seriousness of his publications. There’s no excuse for that…”

AGain, this is a failure to carefully define what you mean by “fraud” and to identify who the victim of the fraud is and what exactly was the fraudulent action.

Artisan May 4, 2006 at 7:07 pm

As a lawyer defending the opposite opinion to mine Dr Kinsella, you may feel it is not carefully enough defined, and I’m sorry I can’t do much better, not being a professional lawyer myself… (this being said, your own description of property as a mere subordinate to “scarcity” fails to convince me as well).

Anyways, maybe another judge than you would see that the victim is the author of the book – as the example of the restaurant guide above should have shown. He invests in preparatory work and in advertisement which are both diverted for the profit of another.

Paul D May 5, 2006 at 8:17 am

“To assume copyright has no viability without the enforcement on State level is an argument that has little to do with Mises’ great praxeology”

I can imagine no copyright without the state. How someone else could gain the ability under the free market to control what I do with my own property and to control what information I share is beyond me. I do accept that there may be contracts for very limited situations.

“Do you really get thrown in jail for copyright infringement in the US?”

In the US, yes, you can. In fact, you can be jailed for watching your own DVD under Linux, since you’re using software that circumvents a copyright protection, a criminal offense by the DMCA. I believe California also has a law making it a criminal offense (with jail terms) to copy a movie with your camcorder. More such laws are on the way — a new one is proposed monthly, it seems. One proposes to make it criminal to sell equipment that records high-definition signals, or to tinker with your equipment to make doing such possible. Another proposes criminal punishments for selling DVRs that can record TV when a “broadcast flat” is present. Another proposes to outlaw podcasts and streaming radio that does not use DRM (i.e. special copyright encryption). A proposed law in France imposes criminal punishments (jail time) for *receiving* copyrighted information. Und so weiter…

Paul D May 5, 2006 at 8:23 am

I would also like to remind Artisan about Dmitry Sklyarov, the Russian cryptography researcher who was arrested and *jailed* in the US, not because he even violated any copyrights, but because he told people how they could remove the encryption from their Adobe ebooks (and thus make backup copies or whatever).

Russia had to issue a warning to their citizens about travelling in the US, since that country had apparently turned into some freaky gulag where you’re arrested for spreading the wrong information.

There is nothing good, nothing free, in any of this copyright nonsense. It’s pure state fascism and bullying.

Stephan Kinsella May 5, 2006 at 11:25 am

Lorenzo:

Stephan…Does an inventor have a right to sell a better mouse trap idea with the stipulation that the non-obvious new idea must be kept secret and cannot be disclosed to any non-parties to the agreement?

As you word your question: yes, as the owner of something, you have the right to sell it; and since there is free speech, you can “stipulate” anything you want. I can sell it with the “stipulation” that Jupiter explode tomorrow.

I think your question is: if I sell something with such a stipulation, should the stipulation be legally enforceable. I think what you really mean is: if A sells one device embodying his invention to B, and makes B agree not to divulge the secret, is this agreement enforceable? Can it be used to construct a type of patent or copyright regime? I answer this in detail in my article Against Intellectual Property, pp. 35-41.

If you say yes, its meaningless because it cannot be enforced. Some big company will steal it and you can never prove that they stole it. Thats why inventors accept the game of first come first serve because at least they have a chance to win.

“inventors accept the game”–this seems to be a wave-of-the-hand attempt to smuggle in the lame defense that we all are “presumed” to hypothetically “consent” contractually to some overarching legal system.

The public also accepts it because they need inventors. So I accept that patents are legitimate.

I don’t accept it. Now what do we do? Take a vote?

Artisan:

As a lawyer defending the opposite opinion to mine Dr Kinsella, you may feel it is not carefully enough defined, and I’m sorry I can’t do much better, not being a professional lawyer myself… (this being said, your own description of property as a mere subordinate to “scarcity” fails to convince me as well).

Yes, well, I never said, nor would I say, something as vague and ambiguous and metaphorical and non-rigorous as “property is a mere subordinate to scarcity”. I have no idea what such a sloppy sentence would mean.

Anyways, maybe another judge than you would see that the victim is the author of the book

Sure, the author is a victim–IF there is copyright or trademark rights. So this is a question-begging way of putting it. Anyway, you can argue that the author is a victim, but this does not necessarily implicate *fraud*, which you brought up with a wave of the hand as a way to justify IP rights.

- as the example of the restaurant guide above should have shown. He invests in preparatory work and in advertisement which are both diverted for the profit of another.

How does this show that there is *fraud*?

Paul D:

I can imagine no copyright without the state. How someone else could gain the ability under the free market to control what I do with my own property and to control what information I share is beyond me.

Right. I agree. Likewise, it’s impossible to imagine “private” antitrust law arising–or minimum wage law, Americans with Disabilities Act, etc. These things are purely creatures of statute: that is, decrees by an agency of the state; that is, decrees by the state. Without the state, no state-decrees are possible.

R.P. McCosker May 5, 2006 at 2:13 pm

As I understand it, an important thrust of Perkins’s (expanding on Rand’s) argument is that tangible property owners wouldn’t have access to certain intellectual creations of others without an enforced monopoly as an incentive to create them — so that, as a practical matter, pre-existing tangible property rights aren’t being subtracted from by charging for or denying use of those intellectual creations. Instead, Perkins suggests, tangible property owners are in the (presumably objectionable) position of free riders if they use those creations without the creators’ permission.

(I suppose this varies from the usual collectivist free rider argument insofar as, rather than being imposed in a blanket way, one need only pony up for IP when one opts to actually use it. Quite the opposite, in fact: The IP owner has the privilege of refusing altogether to sell the right to use an intellectual creation, whether to an individual party or across the board.)

I’m uncomfortable with this argument by Perkins, but it also seems to me that its opponents have yet to present a slam-dunk principled case against it. I see it being chipped away at it, pointing out how there’s no satisfactory way to draw the line between what’s an original creation and what isn’t, how capricious and influenced government is apt to be in drawing and enforcing those lines etc. One might even question how productive at least some intellectual creations are when they often involve peremptorily squeezing in on others’ anticipated uses of their tangible assets.

Of course, if we were the U.S. Supreme Court, we might cite against it the precedent of Roe v. Wade: Enforcing IP, like anti-abortion laws, necessarily entails invasions of privacy, and since the 9th Amendment (which the Court normally shrugs off, but for some unstated reason in Roe v. Wade was interpreted very broadly indeed) implicitly guarantees an individual right to privacy, all de facto enforcement of IP restrictions must be curtailed. ;-)

R.P. McCosker May 5, 2006 at 2:18 pm

That last paragraph should instead read as follows:

“Of course, if we were the U.S. Supreme Court, we might cite against it the precedent of Roe v. Wade: Since enforcing IP, like anti-abortion laws, necessarily entails invasions of privacy, and since the 9th Amendment (which the Court normally shrugs off, but for some unstated reason in Roe v. Wade was interpreted very broadly indeed) implicitly guarantees an individual right to privacy, all de facto enforcement of IP restrictions must be curtailed. ;-)

quasibill May 5, 2006 at 2:56 pm

R.P.,

It seems to me that there are two problems in the first paragraph:

1. “tangible property owners wouldn’t have access to certain intellectual creations of others without an enforced monopoly as an incentive to create them” – is unproved, and as unprovable as the opposite conclusion, empirically. We just can’t know what would’ve happened in the absence of what DID happen. What can say is that logically, intellectual creation will happen in the absence of IP law.

and

2. “tangible property owners are in the (presumably objectionable) position of free riders if they use those creations without the creators’ permission.”

The problem with the free-rider argument is that it can be used to justify anything. Do I benefit from the modernization of the Chinese infrastructure? I certainly do. Does that make me a free-rider?

Also, the question of “free-rider” is in itself a loaded question. “Free-riding” is in fact the strength of a market, in that everyone benefits collectively from everyone else benefitting individually. Further, it posits that I want a certain benefit no matter what – which is of course a false assumption. The backyard light is the best example I’ve ever seen – my neighbor is concerned, rightfully or wrongfully, about crime in the neighborhood, and so wants to put a super bright light in his backyard. Now, there is no way he can limit the “benefit” generated by this light to only his yard (we have narrow lots), so he wants the neighbors to chip in. I, however, don’t think crime is much of a threat in our neighborhood, and further, that this light won’t do much even if it was. Finally, this light would shine in my bedroom and keep me awake at night, so I don’t want it built at all! Unfortunately, the free-rider proponents will force me to pay for it no matter what…

R.P. McCosker May 5, 2006 at 5:01 pm

Well, quasibill, you put me in the unpleasant position of defending Perkins. I think he’s another creepy Randroid, and IP has is such an intellectually wobbly ediface that I’d rather forget about it.

But, to be honest, Perkins so far looks like he has a bit of a point here. Yes, with much IP — particularly patents — there’s no way to “prove” it wouldn’t be created during the life of its protection. So if it’s burden of proof you’re looking for, Perkins loses. But — in many if not most cases of copyright, mainly — it’s pretty persuasive that many creations wouldn’t've come into being without the singular contributions of the creators. *Moby Dick* wouldn’t be around without Herman Melville, *Huckleberry Finn* without Twain, *The Waste Land* without Eliot etc. Admittedly it’s hard to draw the line. Certainly some elements of fictional works could’ve come about through others. Without Doyle, someone else might’ve invented a character similar to Sherlock Holmes, though doubtless with some other name. It’s all intellectually sloppy in how IP gets applied — that’s one reason I’m so uneasy with it. But there’s some kind of truth in there.

To counter that truth with a contrasting principle, I’d think, one needs to convincingly argue that such acts of intellectual creation shouldn’t confer ownership over the resulting products. There are ways that could be attempted, but can any of them be made tight? There’s a challenge.

Now, as to free riders:

I noted before that the kind that come up in the context of IP are distinctive from others inasmuch as one is only called on to pay for them if one opts to purchase their use. This isn’t (as it is so often when “free riders” are discussed) a case of being forced to pay for a (presumably beneficial) externality whether one wants it or not. The IP holders can only charge those who want to pay for the IPs (if the IP holder are even willing to offer their IPs for sale in the first place).

In concluding, I oppose IP laws here and now because they’re necessarily very messy and arbitrary in their applications, and that’s an especially bad thing where the coercive agency of the State is concerned. But I’m agnostic, so to speak, as to the abstract principle that a person should be conferred monopoly privilege to an idea if that idea is truly unique and (almost certainly?) couldn’t be originated by any other person. I hope that further discussion here and elsewhere will help me to see my way better through this subject.

quasibill May 5, 2006 at 8:41 pm

“Well, quasibill, you put me in the unpleasant position of defending Perkins.”

Sorry, I didn’t make clear that I recognized you were making qualified statements – you did make that clear. With the clearing of the throat completed…

“Yes, with much IP — particularly patents — there’s no way to “prove” it wouldn’t be created during the life of its protection.”

Okay. I was mostly arguing patent, because, I’m not entirely sold that something very close to copyright couldn’t arise in ancapistan (well, not close to the current arcane system, but close to the core concept). But in the end, the only way to make a tight argument for applying the non-agression principle is to be absolutely consistent in its application. Which doesn’t mean you can’t have IP per se, but that you can’t base its propriety on an argument that it creates socially beneficial results – i.e. social engineering. You have to base the argument strictly on your concept of what creates property rights and what causes (or caused) society to recognize them as valid. In that vein, often the most important comparison to test whether you’re being consistent is to apply your argument for IP to air in the environment. If you’re willing to accept the consequences of your rationale when applied to air, you probably have a fairly consistent principle at play. Not perfect, but a good starting point.

“the abstract principle that a person should be conferred monopoly privilege to an idea if that idea is truly unique and (almost certainly?) couldn’t be originated by any other person.”

Well, that I’m against. What I can support is a contract based right against copying someone else’s intellectual product.

Peter May 5, 2006 at 11:25 pm

But, to be honest, Perkins so far looks like he has a bit of a point here. Yes, with much IP — particularly patents — there’s no way to “prove” it wouldn’t be created during the life of its protection. So if it’s burden of proof you’re looking for, Perkins loses. But — in many if not most cases of copyright, mainly — it’s pretty persuasive that many creations wouldn’t've come into being without the singular contributions of the creators. *Moby Dick* wouldn’t be around without Herman Melville, *Huckleberry Finn* without Twain, *The Waste Land* without Eliot etc.

You seem to be making two unwarranted assumptions here: one is that authors wouldn’t be able to make any money from their work in the absence of IP, the other is that nobody produces literature except for monetary gain. (On the contrary, the well-worn meme of the “starving artist” demonstrates that many artists produce not for money but for the love of the art: they would do so whether or not IP was an issue)

Yes, those works wouldn’t have come about without the work of those specific people, but there’s no reason to believe those people only did that work because they had “IP protection”. There was literature before IP was invented.

R.P. McCosker May 6, 2006 at 1:18 am

Peter wrote:

“You seem to be making two unwarranted assumptions here: one is that authors wouldn’t be able to make any money from their work in the absence of IP, the other is that nobody produces literature except for monetary gain. (On the contrary, the well-worn meme of the ‘starving artist’ demonstrates that many artists produce not for money but for the love of the art: they would do so whether or not IP was an issue)

“Yes, those works wouldn’t have come about without the work of those specific people, but there’s no reason to believe those people only did that work because they had ‘IP protection’. There was literature before IP was invented.”

I didn’t address those points. You’re reading too much into what I wrote. I know those are usual arguments for IP, but I didn’t make them.

Perkins does suggest those ideas, but, at least the way I read him, his main emphasis was around the idea that creators deserve to own their intellectual creations — deserve the opportunity to earn the full bounty possible from marketing those creations.

But since you raise this, I’ll comment. (For simplicity’s sake, I’ll focus on copyright matters.)

Yes, intellectual creators can make money from their creations in the absence of IP. Not nearly as much on average, I’d wager, judging from how eager so many such creators are to register and enforce their copyrights. But it certainly can be and has been done in many instances.

And yes, people produce literature for reasons other than monetary gain. Indeed, I’m confident that most of the very greatest literature has been produced for those reasons. But an awful lot of literature has been mercenary in its origin (much of it much treasured by consumers and more than a little of it containing considerable intrinsic merit). And an awful lot of “starving artists” eventually give up and call it quits. You aren’t denying that moneymaking can play an important role in artistic productivity, are you?

Heck, maybe the course of modern literary history would’ve gone better — in some sense that you or I would appreciate — in the absence of copyright law. Maybe published literature would’ve ended up pandering less to the lowest common denominator and cultivated more prospect for creative genius. I wouldn’t know.

In any case, your arguments have only limited application. I don’t get their point. You wouldn’t say: Don’t plug in the clock — it’ll still show the correct time twice a day.

Artisan May 6, 2006 at 5:30 am

Paul D.

I can imagine no copyright without the state. How someone else could gain the ability under the free market to control what I do with my own property and to control what information I share is beyond me.

In the case relative to subterranean resources, stated (here below ) by Rothbard, you have however another property right of the discoverer, which “cannot be enforced without the State (as mentioned by Paul D or Dr. Kinsella ?)”, yet that argument I think is pure speculation really… it’s just a matter of proof… I’m not talking about the criminal aspect of course. By the way, that Rothbard quote is interesting because its analogy to intellectual property is so obvious also…

If you don’t agree with Rothbard, I don’t understand what is yours and Dr. Kinsella’s position on those quotes following, in relation to intellectual property negation. (Please don’t just tell me the difference is simply artistic intellectual property simply doesn’t exist, because there’s a definition that is quite universal, call it artistic originality if you prefer)

(the Rothbard quotes, was taken not from the original but from http://mises.org/daily/1662)

If my neighbor drills for oil in his back yard and finds an untapped pool that extends under my land, I have no claim to the oil, so long as his drilling doesn’t disrupt my use of my property. If I tap into that same oil deposit, I am violating his property. But I can drill down into non-contiguous deposits next to his and they become my property even if they extend beneath his land.

The next Rothbard Statement clearly makes a distinction between property violation and trespass. The interesting part is the concept of compensation for property tresspass, justifying also to some extent I think, the retribution to the author of an original art work of which you sell copies.

If my neighbor builds a factory on his property, any pollution, noise, vibrations, etc. that affect my use of my property count as trespass and he has to either stop or compensate me, at my discretion, but the physical trespass is not sufficient to be property trespass; neither is physical trespass necessary: if my business depends on wind or sunshine, a new neighbor’s obstruction of those things will count as a violation of my property.

Paul D May 6, 2006 at 9:37 am

Artisan: I’ll admit I’m not 100% sold on Rothbard’s analysis of the oil scenario. Certainly any oil the neighbour pumps up is his, and any land he converts for the operation is also his, but the oil well itself might be considered like a river or lake; the whole thing being his alone only if he owns all routes of access to it.

I think the key here is that property, by definition, is a practical matter. It exists because physical objects are scarce and exclusive in use. Only one man (or co-op) can have full ownership and use of a corn field, and so all others must be excluded — not out of vindictiveness or a desire to manipulate the market, as both the case may be with copyright — but out of pure physical necessity. The same object can’t be in two places, used by two people, at the same time.

On to trespass: the reason trespass is generally a property violation is that it prevents one from fully using one’s own property. A corn field isn’t mine if I can’t keep people from trampling it; a car isn’t mine if I have to allow vagrants to sleep in the back seat; a book isn’t mine if other people can scribble on its pages. These examples of trespass keep me from having full use what should be my own property. (This is another connection to Rothbard’s oil story: pumping oil from beneath my corn field doesn’t keep me from being able to grow and harvest my corn on my land.)

There’s nothing in common with physical trespass and information copying. You may own a story or song or technique for baking pizza and fully indulge in all of them. My telling the same story, hearing the same song, or baking similar pizza in no way impedes your use of the same, any more than my producing an identical corn field to yours and then treading on it constitutes trespass of your corn field.

In fact, one is being disingenuous if one tries applying the term “trespass” to information, since one does not mean one’s ability to use is restricted, but rather that the market price for selling information goes down as other people find other ways of obtaining it, or similar alternatives. There’s nothing free about using coercion to restrict competition so you can sell your own stuff for more money. If the market won’t support it, find another business instead of complaining the market is broken.

R.P. McCosker May 6, 2006 at 1:23 pm

You know, I’ve always suspected Rand was so big on IP because she herself benefited so much from it. Its application made her quite rich, as it continues to do for her designated “intellectual” heir, Leonard Peikoff.

Because, it seems to me, IP is otherwise particularly antithetical to Rand’s ideas. Didn’t she regard one’s right to one’s own body and mind as primary values? If so, how could she deny one full use of the thoughts in one’s mind, even if those thoughts were learned from the ideas expressed by others? IP, in a Randian sort of way, calls for the crushing of thought and its expression by those unauthorized by the State.

Perhaps one way of looking at IP — I’m thinking aloud here — is that a distinction needs to be made between *stealing* and *learning*. Can the act of learning be considered stealing in some circumstances? That seems to be what the ethical proponents of IP would have us believe. But how can failing to learn from others be upheld as virtuous (so long as, say, no contracts or pre-existing property holdings are violated)?

If a reporter has secret information that Angelina Jolie — isn’t she supposed to be a vegetarian? — eats kippers for breakfast, shouldn’t he be entitled to publicize that information? Or would it be some sort of proprietary thing for Jolie?

By the same token, if I have information about a machine invented, or a poem written, by someone (again, setting aside any issues of agreements I may’ve made or private property I may’ve broken into to obtain this information), should I really be held dutybound to never apply that information?

I can appreciate people secreting information away, but by what ethical criteria may they call upon the State to demand that others act as though they had no knowledge of certain information?

I don’t see any easy answers here, but so far it looks to me like the burden of argument falls on those who would have the State act as enforcer here. The IP proponents are asking a lot of society and its myriad independently acting minds, so it’s reasonable to demand from the proponents a very powerful justification to quell everyone else’s minds and uses of their pre-existing assets.

speedwell May 6, 2006 at 1:50 pm

Hey teachers? (raises hand in class)

“Welfare” for IP providers exists; it’s “patronage,” and the patron owns the work. The engineers who design equipment at the company I work for are paid for the design and agree that the company owns it.

Isn’t the idea that the person who pays for the production of the IP is the owner? In the case of the solitary writer, the backyard inventor, and the garage musician, the person who paid for production is the artist. But in the case of the commissioned work, the studio movie, and the corporate patent, the payer is someone other than the artist.

How does that fit in?

speedwell May 6, 2006 at 2:04 pm

Hey teachers? (raises hand in class)

“Welfare” for IP providers exists; it’s “patronage,” and the patron owns the work. The engineers who design equipment at the company I work for are paid for the design and agree that the company owns it.

Isn’t the idea that the person who pays for the production of the IP is the owner? In the case of the solitary writer, the backyard inventor, and the garage musician, the person who paid for production is the artist. But in the case of the commissioned work, the studio movie, and the corporate patent, the payer is someone other than the artist.

How does that fit in? Is the man who creates a work for payment selling property that has no value? What exactly is being sold when the creator(s) of the work sell their work to the patron, and what exactly is being sold when the patron then sells the work (by itself or products based on it) to customers?

The Objectivist arguments seem geared toward the shining, solitary, comic book superhero figure using his sheer intellectual power to vanquish the ravening hordes (and I’m an admirer of Rand who says so). What about reality?

speedwell May 6, 2006 at 2:05 pm

Sorry for the double post; my wireless threw an error.

Roy W. Wright May 6, 2006 at 2:39 pm

“Welfare” for IP providers exists; it’s “patronage,” and the patron owns the work. The engineers who design equipment at the company I work for are paid for the design and agree that the company owns it.

Isn’t the idea that the person who pays for the production of the IP is the owner?

Fine; if the patron wants exclusive use of the “IP,” he can keep it to himself. But it’s wholly unreasonable to create a good that is extremely easy to reproduce, release it to the public, and then expect the public not to produce that good for themselves with their own resources.

Artisan May 7, 2006 at 3:13 am

@Paul D,

At least a clear statement:
You don’t agree on the property definition made by Rothbard.

Although obviously the oil well is a scarce resource, you’d allow anyone to tap it till it’s dry, making property claims over it impossible… (The question of ownership of all roads leading to a well are most theoretical of course, or should property be “strictly downward vertical”? Why may I not drill “around the corner” for instance? It’s somewhat arbitrary giving the fact that you cannot claim the same above your head).

Anyways, if a neighbour comes later with a huge pumping facility that dries up the well tomorrow, even though this later driller became aware of the oil only because of my research… you ‘d say that’s too bad, the “market” has spoken, let the oil be his. So this is yours and all IP opponents view of a just libertarian society defending property?

I don’t know why but I have the feeling Rothbard’s idea is a more consistent solution.

Paul D May 7, 2006 at 8:36 am

Artisan:

Rothbard could be right, my mind’s not completely made up. But the situation seems to me as I described. Likewise, if I start harvesting lumber from one side of a forest, unless I’ve homesteaded and protected the whole thing, how can I stop others from logging on the other side? And if I start using water from a lake, how can I stop people on the other side from also taking water, unless I possess all the surrounding land? (i.e. all “routes of access” as I put it with the oil well scenario)

Even if Rothbard is correct, however, any analogy with copyrights or patents is broken. The oil (or forest or lake) we’re discussing is presumably limited, and what one person takes into possession another person cannot; this is precisely why establishing ownership is useful. Ideas and information are another matter altogether, with no such exclusivity of use. Mr. Wright nailed it in the last sentence of his previous post.

Artisan May 7, 2006 at 3:59 pm

Paul D.

If one were to challenge the Rothbard solution of exploitation rights given to the “discoverer”, which you seem now a bit reluctant to do yourself, what would be the alternative? To yield in certain difficult cases the individual property to the “strongest” bull on the field? What’s the difference with ruling stealing ok then, because nobody could stop thieves outside one’s own land without the State anyways …?

The argument that a man could not secure his resources without the presence of the State I usually hear from people believing the State should stay, by the way.

This doesn’t seem to be a valid argument. Rothbard is right, and the scarcity problem is a false distinction, because you can argue a unique work of art as source (artistic inspiration) is the most scarce thing anyways. But think about other resources like air waves for instance… How is anyone going to secure a certain channel to air his radio show in a world where – like Roy Wright puts it it’s extremely easy and reasonable, using the available technology to steal or destroy anyone’s audience by emitting a stronger signal on the same wavelength ?

bourbon May 7, 2006 at 6:57 pm

“Fine; if the patron wants exclusive use of the “IP,” he can keep it to himself. But it’s wholly unreasonable to create a good that is extremely easy to reproduce, release it to the public, and then expect the public not to produce that good for themselves with their own resources.”

Why is it “unreasonable?” Are you saying I can keep a novel idea (thus I have a right to use it exclusively), but if I want to express it, it becomes common property – a public entitlement? Isn’t that a form of collectivism? Does the fact that I could have use for your car entitle me to use it? Or better, suppose you manufacture cars for resale. Does my need for a car entitle me to use your car? Yes, I would be depriving you of the value you derive from owning (or reselling)the car, but by using my novel idea, would you not also be depriving me of the value of inventing (or reselling)the idea? Does the fact that an idea is easily copied make a difference? Isn’t that saying an idea can be property, but one is not entitled to it if others can steal it easily: if I do not lock my car, others are entitled to use it?

Roy W. Wright May 7, 2006 at 8:55 pm

Are you saying I can keep a novel idea (thus I have a right to use it exclusively), but if I want to express it, it becomes common property – a public entitlement?

No, the point is that an idea can never be anyone’s property in the first place. You are trying to argue for intellectual property by assuming that ideas can be property — that’s begging the question.

Does my need for a car entitle me to use your car? Yes, I would be depriving you of the value you derive from owning (or reselling) the car, but by using my novel idea, would you not also be depriving me of the value of inventing (or reselling) the idea?

Quite possibly. Just as I might deprive you of future employment if I see you making good money in whatever field you’re in and decide to enter it myself.

You have as much right to intellectual protection money as you do to a job. None.

Does the fact that an idea is easily copied make a difference? Isn’t that saying an idea can be property, but one is not entitled to it if others can steal it easily: if I do not lock my car, others are entitled to use it?

Again, begging the question. The reason I mentioned the ease of copying is to emphasize the lack of scarcity of an intellectual work, which eliminates the basis for considering it property. Actually, the ease isn’t essential to my argument; it would be extremely difficult for me to build a Porsche look-alike in my garage with my own resources, but if I managed to do it, it wouldn’t be a theft against Porsche.

Peter May 7, 2006 at 8:56 pm

Stealing cars is different, not because it deprives the owner of “the value derived from owning the car”, but because it deprives him of the car. Making use of an idea doesn’t deprive the originator of the idea. It doesn’t make sense to talk about depriving him of “the value of the idea” (or of the car), because “value” is something that only exists in the heads of other people; unless you support the most extreme form of slavery – control over other people’s thoughts – that “value” is not something you ever had, and certainly not something you have any right to, and therefore not something you can be deprived of. It’s no different from saying that I can’t sell oranges in my shop, because you sell oranges in your shop, and I’d be “depriving you of value” by taking some of your customers. You don’t own the customers; they have the right to shop wherever they like.

bourbon May 8, 2006 at 12:38 am

Roy W. Wright
You see right through me, I am begging the point. Is your argument that novel ideas can not be property because once they are published they are no longer scarce? Is scarcity a necessary condition of property, or is it a description of the supply of property? At what point does the supply of a class of property render it no longer property?

Paul Edwards May 8, 2006 at 1:14 am

Boubon,

“Is scarcity a necessary condition of property…?”

Yes. Scarcity is the central crucial essence of property and it is what gives impulse to the institution of property. If you can imagine a world without scarcity, you can probably imagine that the concept of property in such a world would never arise. In today’s world for example, it will not occur to anyone to claim property in the air in the atmosphere. But why not; it is not because the air is not valuable. We do not apply the concept of property to air because it is not scarce.

The institution of property arises from the goal of making conflict over scarce resources avoidable. Having objective links between property and its human owner allows men the opportunity to avoid conflict. Conflict can arise when two humans want to use the same scarce resource for conflicting purposes. Property allows such conflict to be avoided.

Roy W. Wright May 8, 2006 at 1:38 am

Bourbon,

That’s a good question. I am using the concept of scarcity in sense somewhat different from the common usage. A good is scarce if its possession by one person might preclude its possession by another. An original Rembrandt is scarce; a digital copy of it is not (assuming such a copy exists). Obtaining a copy of the painting, or a copy of that copy, does not remove the painting from its owner. Now, it may change the value that people attach to the original painting, but that says nothing about the criminality of the copies.

The proper concept of property pertains to the possession and use of goods. That is why scarcity, as described above, is a necessary condition of property. The concept of property cannot pertain to the value of goods, because as we know, value is subjective and so a property concept with the aim of protecting value would necessarily lead to contradictions.

There are, of course, other means for making the value of a (physical or intellectual) good more secure, such as contracts.

Artisan May 8, 2006 at 2:51 am

Too bad, this blog chapter is already closing

If the idea of property were strictly subordinated to “material” scarcity (I don’t see what’s so sloppy about that sentence, in the context), nobody would have an own signature either…

If there’s no copyright on art, then you can make a second Rembrandt (copy), then put HIS name on it, and sell it. The amount of copies will ultimately decide the (decreasing) price on the market… depriving Rembrandt from his ressources: the original inspiration.

By the way, Rembrandt, this unique genius died very poor. Too bad isn’t it? (So did Renoir, so did Monet so did van Gogh… do you think life is too easy for an artist working without State support? Or you just don’t give a d*** about originality?)

Paul D May 8, 2006 at 3:43 am

‘If one were to challenge the Rothbard solution of exploitation rights given to the “discoverer”, which you seem now a bit reluctant to do yourself, what would be the alternative?’

I don’t acknowledge any “rights of the discoverer”, beyond his right to homestead what he discovers. I might discover a whole continent, but only the part I can homestead and protect is mine. I might discover a medicinal plant enzyme, but only those I am able to harvest or produce myself are mine.

“…nobody could stop thieves outside one’s own land without the State anyways …?”

Your comments are difficult to follow here. Naturally, it’s hard to stop what’s not yours from being used. That’s one reason why copyright is in practice limited to the state’s ability to intrude on everyone’s privacy.

“The argument that a man could not secure his resources without the presence of the State I usually hear from people believing the State should stay, by the way.”

I’m a libertarian, so I don’t believe any state (i.e. institution for monopolizing violence) is necessary for one to protect one’s actual property. Naturally, claiming something to be property that isn’t — like an idea or a song — is impossible without massive state intrusion.

“you can argue a unique work of art as source (artistic inspiration) is the most scarce thing anyways.”

You can argue it, but it’s an absurd argument because we’re talking about *copies* of ideas and whether you own not just an idea, but all the copies of it in the world. Since copies are not scarce, the argument is retarded.

“it’s extremely easy and reasonable, using the available technology to steal or destroy anyone’s audience by emitting a stronger signal on the same wavelength?”

Is an absurd situation where someone wastes heapfuls of money building overpowered transmitters on every available frequency the crux of your argument? Besides, there are plenty of means of communication (including radio techniques like ultra-wide band) that cannot be jammed as you describe.

“If there’s no copyright on art, then you can make a second Rembrandt (copy), then put HIS name on it, and sell it.”

Feel free, so long as you don’t propose to deceive your customers (a very different matter from copyright).

“By the way, Rembrandt, this unique genius died very poor.”

Lots of people die poor. That’s a poor argument for a violence-based welfare state, or for government intrusion in the market.

“Or you just don’t give a d*** about originality?”

Originality is worth whatever buyers in a free market are willing to pay for it. In some cases, it will be worth very little; any subjective opinion that the price of something “ought” to be high is meaningless.

You have demonstrated something worth noting: no matter how roundabout or twisted the reasoning behind copyrights and patents, it *always* comes down to the following argument, with plain fallacies at every step:
1. My idea or information is valuable (in an emotional sense) to me because I (probably) put effort into it.
2. Therefore, everyone else *ought* to attach a high economic value to my idea.
3. Therefore, people who obtain information the same or similar to my information must be punished.
3a. It is “unfair” (a highly subjective term) for people to benefit incidentally from my efforts, even though I benefit from the efforts of all many others.

Copyrights and patents are clearly not the outcomes of a free market or free society, nor are they fundamental or absolute in any way. If they were, a perfect copyright protection system would rely on the most perfect, authoritarian state ever created, capable of monitoring every single piece of information shared between its citizens. If you really believe the freedom to share ideas must be denied on economic grounds, the only perfect way to do this is the omnipotent state I describe. What a miserable world that would make.

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