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Source link: http://archive.mises.org/5098/thoughts-on-intellectual-property-scarcity-labor-ownership-metaphors-and-lockean-homesteading/

Thoughts on Intellectual Property, Scarcity, Labor-ownership, Metaphors, and Lockean Homesteading

May 26, 2006 by

The following edited comments are excerpted from a recent email discussion with Walter Block and one of his correspondents, a Philosophy Professor (designated [PhilProf] below):

Walter, [PhilProf] — Thanks for your email. Only time for a few comments now.

[PhilProf]: “I find it difficult to accept the following possibility, namely, that when, say, I publish a hardcover book with [Publisher], it would be just for someone else to reproduce the contents in a paper version and sell it at a very cheap rate, thereby undercutting my hardcover sales and destroying my paperback sales.”

[PhilProf], I fully understand this intuition and emotion, but I’m not sure how it’s an argument. I would rather put the burden the other way around: the default position is that each person is entitled to do as he wishes with his own property–by which I mean his body and other homesteaded scarce resources he owns–so long as he does not violate the physical integrity — invade — others’ property.

BTW I think perhaps it may have been better had I used the economists’ term “rivalrous” to characterize what I call “scarce” resources. By “scarcity” I do not just mean the relative plentifulness of similar types of goods; I mean a particular quality of a particular resource itself, whether it is the only one of its kind or whether there are millions of others. My Timex watch is scarce–rivalrous–simply because you and I cannot both control it/possess it at the same time–even if there are 100,000 other identical ones out there.


[PhilProf]: “1. Kinsella doesn’t mean “scarcity” but finiteness, where distribution is a zero-sum state of affairs. Scarcity is I take it a relative notion. Even if land is not scarce, as among the early colonists, it was finite and property ownership was still crucial.”

Every particular plot of land is scarce (rivalrous), even if there is pleny more to go around. The point is that 2 people could both want to use it at the same time, whcih would give rise to the possibility of conflict. Property rules allocate the right to control the resource to one person, so that it can be used without conflict.

[PhilProf]: “So, when we come to putative intellectual property, we should think of its legitimacy in terms of finiteness and not scarcity.”

IMO, this argument falls away when you realize the type of scarcity we mean is rivalrousness, which ideas clearly are not.

[PhilProf]: “Finite what, you ask? Well, if someone else gets the money for selling a knockoff of my book, then I do not get that money.”

Sure; you could use a similar argument against free competition. If you are the first barber shop in town then someone else comes along and puts up another, you now don’t get some of the money you would have gotten from customers who now go to your competitor. so what.

[PhilProf]: “2. I grant you that there is a fine line between discovery of ideas (like discovering a literary pattern in a play) and creation. But no one doubts that my book on Plato, say, is my creation,”

Maybe; but as I tried to point out in my piece, creation is neither necessary nor sufficient for ownership.

[PhilProf]: “One flaw in Kinsella’a reasoning is a common one, namely, that where there is no absolutely clear division there is no difference.”

Well; my argument does not rest on this. It is merely an additional nail in the coffin. Even if you could rigorously, objectively distinguish between discovery and invention, still, both are merely ideas, or recipes, or knowledge ,or information–and in either case, not the ontological type of thing that can be property. “Running” exists but it cannot be owned. Lots of “things” exist–or are they merely our way of organizing our percepts into concepts we can understand? I don’t know and don’t think it matters–but not all “things” are “ownable things”. This is one problem with saying that you own something if you create it: it avoids the first step of asking whether the thing is an ownable thing; in fact, it presupposes that all things whatsoever are in principle ownable–memories, facts, things-that-happen, time, love, emotions, feelings, tendencies, smells, centuries, poems, letters, fonts, shades, giddiness, etc etc. etc ad infinitum. Funny however, all the advocates who want to “expand” the concept of property beyond the realm of the physical or tangible–scarce (rivalrous) resources–always want to enforce–en*force*–those rights wiht real, physical, force. If these ghostly, nontangible things are “real”, “as real as” well, real things, then why not use some kind of ghostly, nontangible “force” to enforce them? Why sully your hands by dipping into the “real” world of force to enforce these proliferating imaginary rights? In short, you reveal that you really know that the only “real” things–re rights–are those that connect to and are part of the real, physical, world of scarce resources, whenver you advocate using real force against real objects, as the way to enforce rights in these imaginary, conceptual “things”. It’s having your cake and eating it too. Or is it, rather, having your cake while you deny that only substantial things can be eaten.

Stephan

***

[PhilProf]: “As an author of lots of philosophy books, I know perfectly well the difference between “imaginary conceptual things” and a book (not the physical book, but the composition).”

But I mean to refer to a “book” as “imaginary”–to distinguish it from a tangible item.

My point is that unless you come up with some criteria for distinguishing ownable from non-ownable things, then any type of “thing” you can think of–basically, any concept–becomes property. Which shrinks more and more the domain of property in real things.

My criteria is the very thing that gives rise to the need for property rules in the first place: scarcity. Others apparently have no criteria, but seem to assume that so long as you think of some “thing” and can come up with a concept and name for it, voila, it’s ownable–and who should the owner be but, of course, the “creator”. What could be more natural? Except that this way of looking at it just presupposes that any”thing” is ownable.

[PhilProf]: “I’d say that the distinction between the creative product and random sequences is pretty clear to everyone, and even more significant than the difference bertween tangible and intangible property.”

Well, I still do not agree that there is a clearcut difference between creation (innovation) and discovery, but even if there is, and if there is a distinction between “things” you “create” and other “things,” still, you need to show why “creating” the thing makes it a type of thing that is ownable! Otherwise you are still begging the question.

That is, the first question is NOT, “Who owns this Thing?” Rahter, you only reach that question IF the thing is ownable in the first place. so the first question is: is this the type of Thing that is ownable? Does it fall in the class of Ownable Things? Or not? If it does, THEN we ask,–WHO owns it. Now, for all Ownable Things I am aware of, the owner is simply the first possessor or his descendant in title. If we say that poems, patterns, etc, are now ownable, then I suppose you could argue the creator has the best claim to own it. But in my view, we never reach this question.

I mean if you ask, “Who owns discus-throwing,” I might have to say, well, all Greeks. But I would say, I reject the premise of the question: no one owns discuss-throwing, because it’s not an Ownable Thing.

[PhilProf]: “On your view, the following is just fine. I sweat over my book for two years, and I contract with Oxford to publish it, to copy edit it, to promote it, etc. Someone (say a guy whose day job is bootlegging CDs) buys the first copy, runs off to reproduce it exactly and, since he has little overhead and doesn’t have to pay royalties sells it for 1/4 the price that Oxford sets. My university bookstore is happy to buy the bootleg version because they think that by doubling the wholesale price (rather than the usual 30% markup), they can sell more copies and make more money than otherwise. What part of this story is just?”

I never said that was “fine”; and who knows what institutions would arise to thwart this, much like software publsihers now have a variety of ways to capture rents from sale of software in a piracy-laden world.

I would again simply ask you: for you to stop the “Unjustness” you allude to, you would have to use state force against some third party who never contracted with you or your buyer. Why is that “just”? Prima facie, it’s aggression.

[PhilProf]: “By the way, I didn’t mention patents on drugs because the consideration here is also obviously utilitarian. ”

Right. This is all old hat. We are not all utilitarians.

[PhilProf]: “Just to put this in some perspective, by the way, my last royalty check from [Publisher] was, I think for [dollar sum].”

Congrats–I also make money from some books, but try to be principled enough not to let that make me utter words i do not believe.

[PhilProf]: “I hope very much that we can continue this discussion. We can pick it up when you have time. I’m just sitting here producing another piece of intellectual property.”

Yes–and without monetary pay. Imagine that.

***

[PhilProf]:

I was thinking this morning about where our problem is exactly. It seems to me that you want to insist that property is exclusively the raw material that is possessed or inhabited. It remains property when it is worked out into something else only because of this. The “form” itself adds nothing to the “matter” insofar as property is concerned. This is certainly a bit paradoxical on a Lockean approach to property, since it is the mixing of one’s labor that makes the raw material, the land, one’s own.

Ok, so let’s say we reject the Lockean approach. But then how do I possess the land? I can only literally stand on one tiny bit of land. To possess it is to homestead it, do something productive with it. If that is the case, why can we not analogize to artistic production? The only difference is that in the case of artistic production, we did not already own the raw materials. A third case would be, say, finding a piece of gold in the wild. I don’t have to do anything with it to own it. How does the gold differ from the land? Well. I guess I would say that they differ in that there is no way to say what land I own unless I work it, whereas there is a very clear way to say that I own this piece of gold.

So, gold we can just own and do nothng with; land we have to work somehow. If property is made in these two different ways, I don’t see why artistic products don’t constitute a third sort of property, since it isn’t just possession that does it in the case of land.

My reply:

Okay, briefly (I have addressed this in smatters here and there)–

I not only reject the Lockean proviso, I also reject the notion that “creation” is the way we come to own things. I think creation is neither necessary (if I homestead land I don’t create it; if I chip a statue into a chunk of marble that I already own, I own the statue that results not because I created it, but because I already owned the underlying marble) nor sufficient (if I chip a statue out of your marble, without your permission, I don’t own it).

Moreover, I reject the confused, over-metaphorical idea that you own your labor and “therefore” you own things you mix your labor with. Again, as with creation, I think ownership-of-labor is neither necessary (I own land I homestead because I am *first*, and have the best claim to it, not because I own my labor) nor sufficient (even if we did own our labor it does not show that we own things we mix it with–maybe we lose ownership of the labor by mixing it with things, much like you lose ownership of spit when you spit in the ocean).

I don’t start out by asking what we should insist what property is. Rather, as a civilized person who has voluntarily decided to accept the civilized way of doing things and related civilized norms–that cooperation is good, that violent interaction is not preferred, ceteris paribus, etc.–as does anyone would discuss such matters with me, as you are doing now–I simply ask, when there is a possibility of conflict over a given thing (which is necessarily, therefore, a “scarce” things, otherwise conflict over it would not be possible), which of the claimants for the thing should be able to control it; that is, I simply ask, when there is a dispute over a rivalrous thing, which contestant has the *better claim* to it. Obviously, someone with a more objective link to the property and someone whose connection or claim to it is such that recognizing their ownership is the way that would be seen universally (by those searching for justice and fairness–i.e., by those who choose to be civilized–i.e. by those who choose to discourse peacefully about such things) to be the best way to permit that resource, and others, to be used in a conflict-free (civilized) way; and obviously, ceteris paribus, the *earlier user* of the thing has a better claim than latecomers. If prior users didn’t have better claims than latecomers, there could be no property, no ownership; there would only be the (uncivilized) rule of the jungle, bare possession, and tooth and nail conflict over resource, which contradicts the presupposition of civilized discoursants that a conflict-free system of interaction is preferred. By the way, the significance of the prior-later user distinction is explained very well by Hans-Hermann Hoppe in his “argumentation ethics”; see www.HansHoppe.com; see also my discussion of Hoppe’s views on mere verbal decrees and the prior-later distinction in Defending Argumentation Ethics.

Now none of this requires me to say that the form of property “adds nothing” to it. J. Neil Schulman, in his logorights piece, argues that the identity of a created intellectual thing is primarily determined by its pattern (logos) not its material substrate, and “therefore” the creator owns it. To me, this is just sleight of hand. It begs the question by presupposing that all types of things in general are ownable. It opens the door to ontological chaos, since there can be an unending proliferation of types of things that can be owned–and each of these things, if they are non-scarce resources, chokes back the domain of objective property rules that apply to the actual, real, tangible, scarce resources that really need such rules since real, violent, physical conflict over them is really possible.

It is similar to the phenomenon of artificial positive welfare and other rights enforced by the state diluting and infringing upon and invading natural, real, negative rights. Liberals think you can just add more positive rights to the roster without realizing–or minding–that this necessarily reduces the space of negative rights. Likewise, those who advocate any rights whatsoever in any non-scarce thing (like a novel-pattern, or method-of-doing-something) necessarily advocate reducing the space of rights that pertain to and protect the conflict-free use of scarce things. This is why I point out, for example, that assigning IP rights is a way of stealing property: if A owns a car and all of a sudden B gets exclusive right of a way-to-tune-car-engines because he thought of it first, then B becomes a partial co-owner of the car with A, since A’s right to control over it is shared with B (in a particular way). The transfer of rights in the car from A to B is commonly called wealth redistribution, or, by principled libertarians who do not mince words, outright theft, or socialism. This is but one example of how recognizing rights in IP reduces rights in real things.

As for your question of how much land you homestead: I do not see that the problem is different if you look at it my way as opposed to the standard Lockean way. In both cases, there needs to be a decision made as to “how much” land you “mixed your labor with” (Locke) or “possessed” (in my case). In fact I would say that “mixing your labor” is a way of determining how much land you did use or possess–but it simply does not require one to say that you “own” your labor. It is confused to say this. You don’t own your labor any more than you own your memories or love or emotions or knowledge or actions.

I simply do not see that this kind of reasoning can be applied to “artistic creations,” for all the reasons specified above. As for a piece of gold you find it in the wild, if you appropriate it, then you have an objectively better claim to it than any possible contestant.

(Other related resources and posts:

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{ 98 comments }

Curt Howland May 28, 2006 at 2:33 pm

David C., “I don’t know what will lead to better results in a copyright free world.”

That may be one of the most frustrating parts of espousing Liberty. The proponents of Coercion demand to know what exactly and specifically will be the method and scope of improvement.

It’s easy for the proponents of Coercion to specify what the coercion will be, they just point to the laws themselves and the theoretical policies those laws are supposed to accomplish.

It’s also easy to say, “Gee, people are doing well right now, repeal will only cause problems. Can you specify exactly how Liberty will beneficial to everyone? Can you guarantee that no one will go out of business, eliminating jobs, lives and livelyhoods for your so-called “liberty”? Those unemployed will hardly be benefited so, ip-so fac-to, Liberty is a step backward into barbarity.”

Coercion is applied to groups, Liberty is individual. Arguments for and against each are fundamentally different, and it takes tomes such as _Human Action_ to logically prove that what is good for the individual is in fact good for the group as a whole as well.

That is, I believe, why it is impossible to argue with one such as “Person”. Unless one is ready to write such a tome every time a “Person” shows up, tailored to that “Person”‘s peculiar chosen subjet _and_ somehow convincing them to read it, they are already convinced that individual Liberty and group success are antithetical. Any argument we can write which opposes this preconception is easily dismissed out of hand because it cannot be a _complete_ argument.

Mr. Kinsella pointed this out to me once, when I was disagreeing with him on a point of “reputation”, by his asking how I could not have read the various tomes written on the subject which he believed already answered my objection.

Person May 28, 2006 at 7:08 pm

Curt_Howland: I did make that statement. It does not support the meaning you invented for it. Some background in math: for any real number m there exists a real number n such that n is greater than m. You can cite for me trillions of software packages (m), to your heart’s content, and that would in no way contradict my statement. (again, the statement I made, not the one you for whatever reason imagined) This is because it says nothing about what additional software (n greater than m) could have been written.

Assume for a moment it became trivially easy to steal someone’s food. You could do it with a thought. At that point, (it seems) there would be no way to profit making food. Whatever you made, someone would just take, as they can do it at no cost or consequence.

As I see it, such a situation would be bad. Very, very bad. Yet in such a situation, where profit from food production is impossible, you could make a number of claims. “people can’t profit from food, but they still make it!” “people can still profit from products that support food use, like antacids, napkins, silverware, toilet paper, pipes, and so on” “look at all the high quality food that still gets produced!” Yet that would miss the point. A world in which one cannot sell food would mean significantly less investment in food, and less efficiency in the production. You would have to either make your own food, or convince someone to produce it for you (and hopefully consume it before it was stolen).

Would you agree that not being able to profit from food production would be a problem in this context? Even though it’s possible to cite lots of examples of people making good food? Then you agree my statement is not contradicted by the examples you gave.

In the future, please stop inventing meanings for what I say. Make this fifth time your last.

David_C:

Point taken about all property, but I was willing to make them anyhow where I wouldn’t with physical property because I knew they would hold under scrutiny.

They would hold up *as well* under scrutiny.

I think that’s the meat of the issue there, but it’s also like a loaded question. How do we know that kids will get better results without public schools? How do we know that the elderly will get better results without social security? How can we get better results without prohibition?…

That’s a good point, but with IP there is a sharp difference. With public schools, we may not know if privatization is a better option, but we can at least conceive of how someone would sell educational services. We may not know if abolishing SS will have better results, but we can at least conceive of funds being transfered to the elderly without it. Without IP, how could one derive any significant income from the production of an intellectual work? Perhaps we don’t care that all intellectual works will have to be acts of charity, but I suspect you and Curt_Howland would not take such a dismissive attitude to the non-possibility of markets for other goods. (Curt: in response to the stupid argument and false attribution you’re about to make, yes, I agree a market in genocide would be bad, but that’s not a good. Nice try though.)

andy May 29, 2006 at 2:26 pm

Person, Microsoft CAN easily make their software hard to copy. No impossible – but hard enough, so that many people won’t bother doing it. Why do you think they don’t do it? I tend to think that if IP laws didn’t exist, it wouldn’t be such a problem devising some other business model that wouldn’t rely on tax money to enforce compliance of most customers….

Person May 29, 2006 at 3:51 pm

andy:

Microsoft CAN easily make their software hard to copy. No impossible – but hard enough, so that many people won’t bother doing it. Why do you think they don’t do it?

They can’t make it that hard. If the software is good enough, it will be worth breaking the protection. (As a general rule, it’s easier to bypass a barrier than create it. Think about locks, walls, bars, and so forth.) In places like India, with no IP enforcement, all the copy protection is a joke. Once it’s broken once, it’s out of the bag.

I tend to think that if IP laws didn’t exist, it wouldn’t be such a problem devising some other business model that wouldn’t rely on tax money to enforce compliance of most customers….

Enforcement of IP laws doesn’t necessarily require tax money, any more than enforcement of (tangible) property rights. You would just have to charge rights violators an amount that would cover enforcement costs. And if you think it wouldn’t be hard to come up with a business model, I invite you to describe one that would require no intellectual property rights whatsoever, i.e., if someone can copy your work, it’s 100% legal for them to distribute it.

Curt Howland May 29, 2006 at 8:42 pm

Person, “the statement I made, not the one you for whatever reason imagined”

You sayd “problem”. You have admitted you said “problem”.

The reason your statement is wrong is that it is not even a problem now, much less in some mythical future without restrictive copyright and patent regulations.

Why do you put such effort into defending a position that has already been demonstrated as false?

Person May 29, 2006 at 10:59 pm

Curt_Howland: The position has not been demonstrated false, for the reasons you ignored in my last post. Again, some software will be produced, irrespective of the possibility of making any money on it. I have never denied this, nor would I. Some software, however, wouldn’t. Many people today are willing to pay for closed-source, proprietary solutions, even where your beloved FOSS solutions exist. Maybe they’re idiots. You probably reserve a special place in your heart for hatred for such unwashed masses. “WHY WON’T THEY JUST USE LINUX????”

But those are their decisions, and if profiting from creating software (not supporting it, but writing it) were impossible, these unwashed masses wouldn’t have the options they have today. They would be worse off in their opinions. That is a problem.

Again, it’s great that people write free software. But it in no way contradicts anything I have said. (Again, what I said, not what you imagined me saying.)

scineram May 30, 2006 at 6:01 am

The sad thing is that we really don’t care about the problems of these people any more than we care about the welfare of the bankers who would suck under 100% gold reserve.

andy May 30, 2006 at 6:03 am

They can’t make it that hard. If the software is good enough, it will be worth breaking the protection. (As a general rule, it’s easier to bypass a barrier than create it. Think about locks, walls, bars, and so forth.) In places like India, with no IP enforcement, all the copy protection is a joke. Once it’s broken once, it’s out of the bag.
They CAN. Encryption on the chip-level, per chip encryption keys etc. Garmin does this with some of their maps – you can probably find a way how to copy them, but I don’t know anyone, who is successful (and I know a lot of people, who wouldn’t hesitate to do it).

I invite you to describe one that would require no intellectual property rights whatsoever, i.e., if someone can copy your work, it’s 100% legal for them to distribute it.

Closed systems. Not releasing HW specification is more then enough to stop cloning your system for years. Make a deal with Intel, they will design a special chip which will run only your OS and you have several years before anyone catches up. The people might not like it – but hey, if they prefer free software, then there is no point in producing the proprietary one.

Peter May 30, 2006 at 9:11 am

Curt_Howland: The position has not been demonstrated false, for the reasons you ignored in my last post. Again, some software will be produced, irrespective of the possibility of making any money on it. I have never denied this, nor would I. Some software, however, wouldn’t. Many people today are willing to pay for closed-source, proprietary solutions, even where your beloved FOSS solutions exist.

So what? Do you think nobody would pay for software in the absence of “IP” laws? They pay because it solves a problem for them. They’d still have the same problem without “IP” laws, so they’d still pay for the solutions. And the people who paid for it wouldn’t have a lot of incentive to give it away once they had it, so lack of “IP” laws wouldn’t likely even harm the sale of already-written software much. (FYI, John Gilmore started a company to build development software around the GNU compiler suite, which they sold not-cheap. It was GPLed. I never heard of anyone selling cheap CDs with it, or putting it on the web, though of course anyone who had a copy was perfectly free to do so)

Andy: encryption only works if you don’t have the key. If the chip can decrypt it, it must know the key – and the “bad guy” has unrestricted physical access to the chip, so he can get it too. This kind of encryption is just an exercise in obfuscation. It’s also bound to be used for evil.

Curt Howland May 30, 2006 at 9:51 am

Peter, “Do you [Person] think nobody would pay for software in the absence of “IP” laws?”

Unfortunately, Person will simply reply that he never said that. He used the word “if”. Thus your trying to nail him down to what he actually believes will be dismissed by him as putting words in his mouth.

Person, “You probably reserve a special place in your heart for hatred for such unwashed masses.”

For someone so fond of decrying how others cannot understand you and constantly put words in your mouth, you have an astounding habit of ascribing to others really awful thoughts and false motivations.

You go right ahead and keep using the word “if”, since doing so make it possible for you to make absurd and demonstrably false statements while hiding behind “but you didn’t read what I wrote!”

If gravity vanished, we’d all float off the planet and that would be a problem. Yep, terrible problem. How awful it would be for all these people that used to depend on gravity to be floating off into space. How evil of you Libertarians with your pie-in-the-sky principles to not deal with all that hardship! People would die! Oh no, I didn’t say gravity was going to vanish, READ WHAT I WROTE!

Person May 30, 2006 at 8:35 pm

andy: See Peter’s response. You will always be able to recover the informational content. Even if not, many if not most intellectual works *require* you to reveal everything necessary to reproduce it, like books.

Peter:

So what? Do you think nobody would pay for software in the absence of “IP” laws?

Of course they’d pay. Someone would have to buy the first copy before copying it and selling the bootleg. After that, people would still pay, it would just be to a bootleg distributor, would be the marginal rather than the average cost of the software, and the author wouldn’t see another cent except what he could charge for additional services. (or the solution would be tailored to one narrow purpose, the provision of which was never in doubt to begin with because the benefits are concentrated enough — see below).

They pay because it solves a problem for them. They’d still have the same problem without “IP” laws, so they’d still pay for the solutions.

The presence or lack of IP in these areas isn’t very relevant. If the goal is to provide a packaged tailored to one specific business, the benefits are concentrated enough that few others would want it. If however, you wrote the software so that any other business could adapt it by following some wizard, that would be a tremendous boon and without IP, it would just be copied rampantly, with the creator seeing little if any of the value resulting. People will of course still write them out of the goodness of their hearts, but in nowhere near the optimal quantities prevailing when they can license, and the returns from “teaching people how to use it” will be but a sliver of this.

(FYI, John Gilmore started a company to build development software around the GNU compiler suite, which they sold not-cheap. It was GPLed. I never heard of anyone selling cheap CDs with it, or putting it on the web, though of course anyone who had a copy was perfectly free to do so)

I really doubt this, but if true, it’s mainly because the demand for it without the support service is extremely low. However, if having the software itself really is that valuable, anyone who doesn’t try to distribute it is essentially performing an act of sympathy/charity for the producer and (like the above examples) doesn’t constitute a model of a profit-driven software-writing model.

Curt_Howland: I wanted to first thank you for improving your posts. In the past, you attributed statements to me that I never said, don’t believe, aren’t true, and directly contradict my position. Now, you’re diluting that with the practice of ignoring the relevant content from my posts. I’d prefer, of course, that you didn’t ignore important parts of my posts *or* falsely attribute ridiculous positiions to me, but I’d much rather be ignored than libeled. So, thanks. I guess.

Unfortunately, Person will simply reply that he never said that. He used the word “if”.

Yeah, how dare I, how DARE I have a nuanced position. Everyone knows that the way intellectual discourse works is that one person is supposed to make an exceptionless argument, and people are supposed to respond by bravely citing one exception.

Thus your trying to nail him down to what he actually believes will be dismissed by him as putting words in his mouth.

You weren’t trying to nail me down; you outright asserted I believed something I plainly did not say, and indeed, is the diametric opposite of what I believed. Let me step back and go over what I do believe (listed in above posts you have ignored) so you can stop pigeonholing me, and feel free to state which one of my ignorant, ridiculous, uninformed positions you disagree with.

-Yes, *some* people would write *some* software even if all monetary incentives were removed, just as *some* people would still grow food if all profits from selling food were taxed.

-Yes, it is possible to profit from providing support service for a piece of software, but that is a return from providing *that specific service*, not from writing software.

-No matter how strong the moral case against intellectual property rights is, if I can’t imagine wanting to live with the consequences of such a world, the debate isn’t over. Political philosophy partly aims to make a better world, and it’s necessary that I be convinced that I would want to live the world resulting from the political philosophy I advocate. If that makes me a rank utilitarian, so be it.

-Perhaps the software (and other intellectual works) produced in a world without IP would be “good”; that says nothing about whether they are better that we have a market in such goods, and libertarians aren’t so dismissive about the needs for markets in other areas. For example, if one day most people stopped respecting farmers’ property rights and stole their food reguarly, most libertarians would recognize this deterioration of property rights in food as bad; citing examples of “free food” markets and the possiblity of growing one’s own food would hardly be re-assuring.

There are no examples (that I’m aware of) of purely for-profit software writing that don’t rely on intellectual property law. All attempts at such ignore the residual impacts of IP enforcement, involve heavy private subsidies (making them essentially charities rather than businesses), or result from providing a separate service.

Fred Mann May 30, 2006 at 10:14 pm

Person,
Even if you take a utilitarian approach, you still may want to reconsider your position.
The actual consequences of intellectual property laws may be much more harmful than you think. I have a friend that works at Red Hat developing software. He tells me that EVERY software release is promptly met with a COPYRIGHT suit from Microsoft (if you doubt this, contact a Red Hat employee at random). Obviously, Microsoft does not take the time to review each software release before making the suit. Instead, it uses the system to keep its competitors down. As the expression goes, “you can beat the rap, but you can’t beat the ride”. IP laws can be used by larger businesses to impose severe legal costs on smaller businesses. This possibility, I believe, would even exist in a truly free market where IP is acknowledged. This is because “intellectual property” is a very vague type of property, as compared to physically-existing property (this is why your food example is unconvincing to me). This allows every lawsuit to seem initailly plausible — i.e. “did they steal this property or not?” Is George Harrison’s “My Sweet Lord” actually a ripoff of “He’s So Fine”? (The courts said it was!!) There are, of course, many more problems with intellectual property — this is just one.
Also, if we protect intellectual property, we necessarily cripple innovation in the encryption industry. Why protect something with encryption when it is already protected by IP laws? Without IP laws, we would probably already have truly effective (and “futuristic”) encryption technologies.

Peter May 31, 2006 at 2:17 am

*some* people would write *some* software even if all monetary incentives were removed

Person: nobody but you is talking about “removing all monetary incentives”. “IP” law does not equate with monetary incentives, except in your imagination.

quasibill May 31, 2006 at 7:43 am

“but in nowhere near the optimal quantities”

This is the telling comment buried in all of Person’s posts. Everything he says makes sense now – he’s a central planning socialist. He believes that Mises was wrong, that he CAN calculate the optimal quantity of a certain product on the market, and without IP laws, he KNOWS the quantity will be less than the optimum he has calculated.

To Person, there MUST be a certain amount of mass produced software on the market. Anything less than this amount is a “market failure” and requires the assistance of SuperKeynes or AquaPigou to save us.

“Is George Harrison’s “My Sweet Lord” actually a ripoff of “He’s So Fine”? (The courts said it was!!) ”

Actually, my memory is that the court said that he “unknowingly lifted” the progression from He’s So Fine. Think about that for a moment – but only a moment, lest your head explode.

Curt Howland May 31, 2006 at 10:29 am

Person, “without IP, it would just be copied rampantly, with the creator seeing little if any of the value resulting.”

This is demonstrably false. One example: “WhiteBox Linux” is a direct copy of “RedHat Enterprise Linux” which is sold at about $300/copy.

If your assertion were correct, no one would be buying RedHat, they would already be out of business. But they are not.

Your “straw man” that only a single example has been presented is also false. Many thousands of share-ware programs also prove you wrong over over, with decades of experience.

Do you wish to assert that this isn’t what you meant to say?

Person May 31, 2006 at 11:12 am

Fred_Mann:

Even if you take a utilitarian approach, you still may want to reconsider your position.

Some clarification is in order. I think a more accurate description of my concerns would probably “consequentialist” (a superset of utilitarian), since they don’t rely on tabulating a “greatest good for the greatest number” concept.

The actual consequences of intellectual property laws may be much more harmful than you think. …

The examples you gave appear to be misuse of IP rights. I don’t think they call into question the good of, e.g., protecting authors’ legal rights to their works any more than court-endorsed expropriations call into question property rights in physical goods. The rich can potentially manipulate justice; this concern is not limited to IP, nor are IP-related injustices the worst offenders.

Also, if we protect intellectual property, we necessarily cripple innovation in the encryption industry. Why protect something with encryption when it is already protected by IP laws? Without IP laws, we would probably already have truly effective (and “futuristic”) encryption technologies.

??? What if I said: “Also, if we protect property in physical goods, we necessarily cripple innovation in the security industry. Why protect property with locks, fences, and guards, when it is already protected by property laws? Without property laws, we would probably already have truly effective (and “futuristic”) security technologies.”

Peter:

Person: nobody but you is talking about “removing all monetary incentives”.

I know. If you had read that statement in context, without prejudice, without pigeonholing me, without trying to strawman my position (i.e., like Curt_Howland seems to be incapable of), you’d see that the point of that was to establish that money is note the sole motivator of people; it was a refutation of allegations that I was claiming “no monetary incentive = no software writing”. I agree software would continue to be written without IP, but would have effects at the margin, i.e., like every other economic phenomenon. Regardless, no one has yet shown how someone could make money from writing the software itself. See below:

“IP” law does not equate with monetary incentives, except in your imagination.

IP law allows the vast capital investment and entrepreneurial activity that you (presumably) recognize as being so vital in other parts of the economy to the production of software, due to its creation of the *possibilty* of profiting therefrom. And I’ve shown here how no one knows how you could make money from producing intellectual works without IP. (Since you probably ignore my posts, I’ll repeat again that the examples given implicitly rely on IP, are a different service, or amount to charity.)

quasibill:

me:”but in nowhere near the optimal quantities” you: This is the telling comment buried in all of Person’s posts. Everything he says makes sense now – he’s a central planning socialist. He believes that Mises was wrong, …

Please. Grow up. No, seriously, grow up. I’m not a socialist or central planner; my assessment of optimality is based on a Paretian, not Keynesian or Piguovian analysis. IP laws — as I see it — allow for the possibility of Pareto improvements that can’t happen without them. They allow people to make a better living by writing software and the software users to have better lives by having such software, rather than relying on some charity open source solution. You don’t have to be a socialist to recognize that as good.

Curt_Howland:

me: “without IP, it would just be copied rampantly, with the creator seeing little if any of the value resulting.” you: This is demonstrably false. One example: “WhiteBox Linux” is a direct copy of “RedHat Enterprise Linux” which is sold at about $300/copy.

Not a demonstration. IF the software really is identical in all relevant respects, and you are not lying to me by hiding that the $300 really buys some support contract (that’ll be the day) or regular upgrades or a nice friendly person to teach you the software or actually finding the people to use it since they don’t know about the alternative, then each and every person who pays that $300 is doing so as charity or sympathy payment; it would not represent a for-profit business model.

Your “straw man” that only a single example has been presented is also false.

My non-straw-man argument, with nuances you’d prefer to ignore, is that ZERO proper examples have been given, whether you were trying to prove the amazing insight of “people would still write software without IP” (which I never contested and don’t disagree with) or “people can profit from writing broad-use software without IP” (which no one has given a proper example of).

Many thousands of share-ware programs also prove you wrong over over, with decades of experience.

Prove what? The point I never contested and don’t believe, that people would still write software without IP? People would write that shareware, with or without IP. What wouldn’t be happen are the thousands more quality software packages that were written by entrepreneur-driven organizations for the public, and the possibility of consumers acquiring these at any price.

Do you wish to assert that this isn’t what you meant to say?

What I wish is that for once in my life you read an entire post of mine and not attribute meaning that isn’t there. I can dream.

Curt Howland May 31, 2006 at 11:46 am

Person, “ZERO proper examples have been given”

Way back when, I wrote that if all you are saying is that people would have to adjust to the change in laws, then I agree.

Unfortunately, since you get to decide what you really mean as you go on, and you get to decide what is (or in this discussion what is not) a proper counter example, it is exceptionally difficult to find any common ground to agree with you at all.

I don’t give a flying %^&* about “utilitarian” or “greatest good for the greatest number” or all that other poop. If the individual is restrained by law from peaceful action, then that law must be repealed or utilized only in its most restrictive sense.

The abuses of copyright and patent that are going on far exceed any possible outcome of their repeal. Yes, even to the point that “if, maybe, could be, somewhat, marginal, add lots of nuance here” less software is written.

What you fail to consider is that where there is a demand, that demand will be met. There is a demand for high quality software to do specific tasks, and someone will write it because someone will pay for it to be written.

I have in front of me a new book by Homer, _The Iliad_. I also have on the shelf a copy of Shakespeare’s works. Somehow, since both of these works are in the public domain, I have to decide whether your position is that they cannot exist because they cost me money, or that they cannot exist because the author didn’t get paid for them.

quasibill May 31, 2006 at 12:40 pm

“Please. Grow up. No, seriously, grow up.”

Coming from this source, I can only take this as a compliment.

“I’m not a socialist or central planner; my assessment of optimality is based on a Paretian, not Keynesian or Piguovian analysis.”

And yet, once again, you sidestep the point (notice the pattern yet?). You claim you can know that there is an optimal amount, and that in the absence of your laws, there will be less than your optimal amount. That IS socialist central planning.

If people were simply allowed to sell what they were willing to sell, and buy what they were willing to buy, people’s needs are met. People will pay to have their problems solved, and people will offer their services, for pay, to solve them. If someone else benefits from this transaction – so what?

Your mistake, as has been pointed out repeatedly by many other posters, is assuming that the world needs mass produced software in a certain amount. You’re now equivocating that you don’t know that amount, just that you know that the free market won’t provide it. You still have never even come close to supporting that assertion.

Perhaps, just perhaps, we have too much mass-produced software right now. Perhaps in the free market, there would more specialization, and focused problem solving. Or perhaps there would be essentially no difference, as most enterprise level programs, heck, even most consumer level programs, require extensive customization and optimization – usually done by paid consultants, who write pages and page of additional code for their customers (another issue you side-stepped).

So, yes, you do believe in socialist central planning. You do so because you believe that you know for a fact that a free market will not provide the “optimal” level of a product that you value. Therefore, you wish to enact a universal law that will subsidize people to create more of the product. Sounds socialist to me.

Not that there is necessarily anything wrong with that – it just is necessary to be clear where you are coming from. The greatest danger to the cause of liberty comes from the wolf in sheep’s clothing.

Curt Howland May 31, 2006 at 1:28 pm

Quasibill, “People will pay to have their problems solved, and people will offer their services, for pay, to solve them. If someone else benefits from this transaction – so what?”

That may be the one really defining point of so-called “free” software: Positive Externalities.

Indeed, software will be written regardless of “Person”‘s possible objections to the maybe contrary nuance perhaps. Another excellent example is the KDE desktop and office suite. General purpose software written without direct remuneration. The argument (maybe, nuance, perhaps, if) that (could be) only little specific-use tools might be written hasn’t been reflexive of reality since before GCC.

The simple fact of open software existing benefits everyone regardless of IP law. Exactly the way architecture is studied by seeing how things have been done before, the way law is studied by seeing how briefs and laws were written before. By loosening the death-grip that copyrighted and patented software has on source code, that code goes on to enrich the world even if only as a bad example. :^)

In case I might be attributed this thing I did not say, I do not believe that all software will instantly be “open source” upon the repeal of the artificial monopoly grants “copyright” and “patent”. Just as it is perfectly OK for me to give or sell someone a binary now, it will remain so if those laws are repealed. Gee, you aught to see the flack I get for suggesting in “Open Source” forums that it’s just as wrong to legally require software to be “open source” as it is to require software to be “closed source”.

Curt Howland May 31, 2006 at 1:35 pm

Person,

Since you seem to completely certain that, maybe, something, possibly, might be so unmarginal that it wouldn’t get written without IP law, could you give me an example?

What fits your criteria of something that maybe wouldn’t get written without the stranglehold of absurd IP law?

Peter May 31, 2006 at 6:54 pm

I know. If you had read that statement in context, without prejudice, without pigeonholing me, without trying to strawman my position (i.e., like Curt_Howland seems to be incapable of), you’d see that the point of that was to establish that money is note the sole motivator of people; it was a refutation of allegations that I was claiming “no monetary incentive = no software writing”. I agree software would continue to be written without IP, but would have effects at the margin, i.e., like every other economic phenomenon.

I don’t understand the relevance of the above. Did you misunderstand what I said? I didn’t say that you said “no money = no software”, and that that was wrong; I said that you said “no IP = no money”, and that that was wrong.

What wouldn’t be happen are the thousands more quality software packages that were written by entrepreneur-driven organizations for the public

Ha. Name one quality software package written for the public!

Curt Howland May 31, 2006 at 7:54 pm

“Name one quality software package written for the public!”

I know, Microsoft BOB! From which we have that glorious character, Clippy the paperclip!

Person May 31, 2006 at 11:27 pm

Curt_Howland: I’m really not sure why I keep answering your posts, since in doing so I’m basically repeating what I said previously, and then you ignore what I say and then make snide remarks. Now, there’s nothing wrong with snide remarks, but maybe a hybrid snide remark *plus* actually reading my posts would be more constructive, eh?

Unfortunately, since you get to decide what you really mean as you go on, and you get to decide what is (or in this discussion what is not) a proper counter example,

Wrong. Here’s how it works. I have a philosophy. I draw from that philosophy and make posts. What I believe has remained constant throughout this thread. At no point have I changed meaning. Ever. If you can find a case, feel free to cite it and I will agree with you. And again, that’s from a statement I actually made, not from inferences and suppositions you make about my position.

I don’t give a flying %^&* about “utilitarian” or “greatest good for the greatest number” Good. I don’t either. That’s why I clarified that my concern was more consequentialist than utilitarian here. And if you claim to lend absolutely no weight to consequentialist concerns, I would submit such a claim is a lie. Of course you care about what would result from the actual implications of your ideas. If you support one system as ideal, but would prefer living in a different one, you are being inconsistent.

The abuses of copyright and patent that are going on far exceed any possible outcome of their repeal. Yes, even to the point that “if, maybe, could be, somewhat, marginal, add lots of nuance here” less software is written.

Rank assertion on your part here. And your scorn for marginalism and non-simplistic reasoning is duly noted.

What you fail to consider is that where there is a demand, that demand will be met. There is a demand for high quality software to do specific tasks, and someone will write it because someone will pay for it to be written.

No, not necessarily, and that’s the precise problem here. It’s possible (actually, likely) that without IP rights, there will be numerous, significant cases where the value of having the software vastly exceeds its cost of producing it because the producer of the software cannot capture anywhere near this total value. Now, I (30th time) agree that some, nay, many people will bite this bullet and write this software out of the goodness of their hearts as an act of charity. You are correct that the open source movement is an example of exactly this. The problem is that it is unwise to rely on this a matter of course, for the same reason that it would be a bad idea to tax all the profits of industry X, even if you could show me that, hey, man, we can make that stuff communally at *no profit*. Rad! (Note: since your attention span as evidenced in this thread is extremely short, and your comtempt for any nuance so great, I feel obligated to remind you here that I did not, say again, not just claim that not having IP rights is the moral equivalent of taxation. Read it one more time.)

have in front of me a new book by Homer, _The Iliad_. I also have on the shelf a copy of Shakespeare’s works. Somehow, since both of these works are in the public domain, I have to decide whether your position is that they cannot exist because they cost me money, or that they cannot exist because the author didn’t get paid for them.

They exist because both of these publishers paid the same for the informational content of the books and compete in other areas (price, presentation, etc.) It is not a case where the non-producer of the informational content bears significantly lower overhead than the the producer. And both authors received compensation for their work.

quasibill:

And yet, once again, you sidestep the point (notice the pattern yet?). You claim you can know that there is an optimal amount, …

I used it in the exact same sense that you did below when you said:

If people were simply allowed to sell what they were willing to sell, and buy what they were willing to buy, people’s needs are met. People will pay to have their problems solved, and people will offer their services, for pay, to solve them.

You are describing the process of Pareto improvements, the precise process I was claiming would be severely hindered by not having and respecting IP rights. So do you now not accept that impeding Pareto improvements somehow is optimal?

Your mistake, as has been pointed out repeatedly by many other posters, is assuming that the world needs mass produced software in a certain amount. You’re now equivocating that you don’t know that amount, just that you know that the free market won’t provide it. You still have never even come close to supporting that assertion. I never equivocated, ever, and I fully supported the assertion. I explained how there would be people willing to pay and people will to write the software but in any case where there is valuable software, piracy kills the profits and sidesteps this important process. With or without IP, the open source stuff will be produced. With IP, you allow the possibility of Pareto-improving transactions. You will allow the possibility of software that people want (as evidenced by their willingness to pay for it) and would not otherwise be produced. Where the socialism enters, I don’t know. I also don’t know why I’m explaining this again.

usually done by paid consultants, who write pages and page of additional code for their customers (another issue you side-stepped).

No, I said several times before that this is income from a specific service, not from writing general use software. (which by the way you have some sort of massive disdain for)

Curt_Howand, part deux:

Since you seem to completely certain that, maybe, something, possibly, might be so unmarginal that it wouldn’t get written without IP law, could you give me an example?

Sure, after you give me an example of a physical good that would not be produced in the absence of respect for property rights.

Peter:

I don’t understand the relevance of the above. Did you misunderstand what I said?

No, _you_ misunderstood what _I_ said. I was trying to establish an extreme case in which no money whatsoever could be made at any stage, anywhere, in software. It doesn’t matter that no one agreed with the possibility of the extreme case. Again (I just *love* repeating myself) I was just making clear I agreed with the possibility of charity shareware and related not-for-profit software. That establishes that IP rights don’t form the sine qua non of software production. And yes, Curt_Howland actually did attribute that position to me (IP rights being necessary for any software production — see his first few posts, for which he still has not apologized). Take it up with him, and maybe I can outsource some of my banging my head on my keyboard to you.

Ha. Name one quality software package written for the public!

Microsoft Office. Again, you can heap on your scorn for the unwashed masses for using such a horrible product. The fact is, they *choose* to use it over the free alternatives. And how long would they have had to wait to use that kind of software before an equally good free alternative were available? By the way, it won’t help you to whine “but they just don’t know how great OpenOffice is!” OpenOffice is great, but an integral part of the production of any good is *getting it to a consumer*. If you’re not bringing it *to* them, letting them know about it, showing them its value, you might as well not have produced it. See: anything by Walter Block on advertising. I recommend the chapter on the advertiser in _Defending the Undefendable_ or “Henry Simons is not a defender of free enterprise” in the JLS.

Stephan Not Kinsella May 31, 2006 at 11:32 pm

Person, I’ve been struggling with this one, too, for much the same reason. Ethically, morally, maybe even utilitarianally (is that even a word?) IP is flat out wrong.

But I couldn’t get over the thought that knock-offs and generics would make drug research totally unprofitable, and new developments would drop off. (Yes, I’m familiar with Kealey’s Economic Laws of Scientific Research and it answers much of the rest, but breakthrough science is left as mostly foundation funded. Gift economy, as you suggested elsewhere.)

I don’t even pretend to be able to come up with novel business plans, but I have to think that somewhere out there, someone has a better idea than denying treatments to people just to keep an artificial monopoly in place which may or may not stimulate research. I’ve heard some semi-plausible options, but all seem to have the weakness of some manufacturers reverse engineering or even free riding on other manufacturers.

After long consideration (I’m rather ashamed to say it took a long time) it occurred to me that in a minarchy, or even in a stateless society, even if none of the best and brightest entrepreneurial minds out there can come up with something better, we can always fall back on what we have now, the option to use force. Just as our current system is backed up by threat of violence for those who don’t play by the rules, it may well be that research institutions will resort to threat of violence or actual violence in order to get those who won’t pay royalties to be team players. Eventually, even the dimmest of businessmen will come to realize TANSTAAFL.

Think of international trade, for example. It doesn’t really matter to the end user if the price is $5 higher because there was a $3 tariff and $2 transportation costs, or if there was a $5 transportation cost and no tariff. In a similar fashion, it doesn’t really matter whether your ED treatment reflects a $2 royalty or $2 (pro-rated) higher insurance on your plant because “accidents happen” to people who don’t pay their royalties.

No, it wouldn’t be my preferred method. I’d much rather the honor system were a viable option, but I don’t have the faith that so many other posters here seem to have that voluntary contributions will cover it. And I don’t have the delusion that just because the state no longer exists, or is scaled back to the point of impotence, everyone will agree to settle their differences peacefully and rationally.

Of course a libertarian world would still have violence. But the libertarian would ask, “Why would I want solve one externality by creating an even larger externality?”

Peter June 1, 2006 at 5:30 am

I said “a quality software product”. Why would I say anything about how great OpenOffice is? OpenOffice is about the same as MS Office. Both are junk. If a real engineer built anything as badly as “software engineers” build software, he’d be jailed for life! (That’s my point: there are no “quality software products written for the public”. There are a very few quality products written for specialized applications. There were a few quality (for the time) products written in the 60s and 70s, but of course that was largely before the days of modern closed-off software – Stallman started GNU in the early ’80s precisely because software was becoming too closed off – and not “for the public”, since the public didn’t have computers)

quasibill June 1, 2006 at 6:57 am

Person,

Once again you are completely sidestepping the point. Either you are incapable of examining your assumptions, or you are doing it intentionally.

Once again:

“You are describing the process of Pareto improvements”

No, I am giving a praxelogical statement. It requires no outside interference – in a free market, people will pay to have their problems solved, whatever they are. And people will offer their services for pay. If people can’t make enough money selling mass produced software, the market will adjust as people offer direct services that they can be remunerated. The problems will still be solved, just by a different method. Once again, you have said NOTHING to disprove this truth. You just assert that this will be un-optimal. And this is the central planning aspect of your argument (which you ignored from the previous post) – you claim to know that the market cannot provide the optimal amount of a resource absent your grant of monopoly privileges to certain actors. That is exactly the argument of Keynes or Pigou, just dressed up with different lipstick.

“(which by the way you have some sort of massive disdain for)”

Talk about putting words into someone’s mouth – go ahead, find somewhere where I actually gave any such indication. All I’ve said is that you have an unneccessary attachment to it. Mass produced software is not necessary. In certain cases, it will be the appropriate solution to a problem, and people will make money off of it, one way or another. But for other problems, it isn’t. I have no animus towards it – I just recognize, unlike central planner types, that the market will innovate to find ways around problems. We don’t need a state to subsidize certain market activities.

“You will allow the possibility of software that people want (as evidenced by their willingness to pay for it) and would not otherwise be produced.”

Once again, wrong. It is amazing how often you can ignore the point that everyone keeps making, so I’ll put in caps this time – IT WILL BE MADE, JUST NOT NECESSARILY MASS PRODUCED.

Person June 1, 2006 at 8:29 am

Stephan_Not_Kinsella: I’m glad someone finally sees where I’m coming from.

Peter:

I said “a quality software product”. Why would I say anything about how great OpenOffice is? OpenOffice is about the same as MS Office. Both are junk. If a real engineer built anything as badly as “software engineers” build software, he’d be jailed for life!

No argument from me there. Being a real engineer, I’ve often criticized software “engineers” for the level of incompetence tolerated in their field. However, I don’t think that matter is relevant. The fact is, real people actually do consider these tools better than their absence. In that sense, they regard them as “quality” and would be that much worse off were they not available. And if you think open source software is higher quality … in some cases yes, in most, no.

quasibill:

No, I am giving a praxelogical statement. It requires no outside interference – in a free market …

You’re making my point for me, the same one I made last time. In a free market, people engage in trasactions that are Pareto improvements. (even if you don’t describe them as such) But are intellectual property rights a *part* of the free market, or not? Your assumption of an answer just begs the question.

Talk about putting words into someone’s mouth – go ahead, find somewhere where I actually gave any such indication. All I’ve said is that you have an unneccessary attachment to it. Mass produced software is not necessary. In certain cases, it will be the appropriate solution to a problem, and people will make money off of it, one way or another. But for other problems, it isn’t.

I have no “attachment” to it. The fact is, with or without IP (and today’s status meets one of those), people *can* hire an individual, specific solution writers. They *choose* not to. Were the “mass-produced” (go, Marxist commoditization-bashing!) software not available, they would choose an option lower on the preference scale. That means they would be worse off! That too is a “praxeological statement”. Your “position” is that I would be better off if, instead of being able to buy MS Office, I had to hire a software “engineer” to write me a custom-tailored solution. And as long as we’re going to sling names at each other, I should note the resemblance between you saying this, and the 18th century guilds saying “Society doesn’t really need this mass-produced fabric. They can just use our guild’s higher quality custom-tailored fabric!”

We don’t need a state to subsidize certain market activities.

State recognition and enforement of IP rights is no more or less a “subsidy” than state recognition and enforcement of other property rights. And if you honestly can’t tell the difference between a state subsidy and a recognition of property rights, you really need to correct that before continuing.

Curt Howland June 1, 2006 at 1:02 pm

Person, “Rank assertion on your part here.”

Good sir, you have made your entire position one of rank assertion. I even asked you for just one example of what you are trying to describe, and your only response has been insult.

Your assertion that some “quality” software might not get written without IP law is, of course, undeniable because you have carefully used such words as “if, maybe, might”. Yet you are incapable of providing any example of this “quality” you assert, and when given any counter example of software written without direct remuneration you deride it as not being the “quality” you were talking about.

I’ll even say it without any “fuzzy logic” words: Some otherwise commercial software will not be written, because people will adjust both their production and consumption to profit under the change in IP laws. What you have not done is convince anyone that that would be a bad thing.

“No, not necessarily, and that’s the precise problem here. It’s possible (actually, likely) that without IP rights, there will be numerous, significant cases where the value of having the software vastly exceeds its cost of producing it because the producer of the software cannot capture anywhere near this total value.”

Can you grasp how your use of the words “not necessarily”, “possible”, “likely”, “anywhere near” is making it impossible to discuss this issue with you? You have specifically stated that “quality” of the software written is your defining factor, and have used that definition to rebuke counter examples, yet you refuse to provide either a definition or example of that “quality”.

My example of _The Iliad_ was of publicly and widely available code (the text) being packaged and sold for a profit. It is irrelevant if the physical book is copyrighted, because you yourself have over and over said that it is the fact of free availability that is (maybe, possibly, could be) the source of your “problem”. Of course the $300 RedHat package comes with RedHad perks and benefits that the raw software WhiteHat doesn’t come with, but again it was the freely available nature itself that you said would make commercial profits impossible.

Oh, sorry, I misquote. If, maybe, possibly impossible. There is a good reason those terms are called weasel words.

Stephan Kinsella June 1, 2006 at 4:37 pm

A correspondent, let’s call him “Lloyd,” wrote me:

Let’s take three examples: the integrated circuit, my Plato book, and the movie Poseidon.

My claim is that in each case there is an invention or creative product that is exclusively owned by the producer or by whomever he has transfered property rights to. You want to say that the enforcement of these property rights necessarily involves the owner in partial property rights over someone else’s material, in these cases, over someone’s silicon, metal, paper, celluloid. I leave out words because we both agree that nobody owns words as types, though we can of course own words as tokens, that is the specific marks I make on a page, for example.

I reply to your objection that of course A’s property rights in x necessarily involves a restriction on B’s potential property rights in x. My owning a gun does not permit me to eliminate the dog that you own. So, there is a limitation on my use of my property, that is, my gun, owing to the existence of your property. Presumably, if no one owned the dog, I could exercise my property rights over it in the above manner. Similarly, your property rights over your bits of silicon, metal, etc., are restricted by others’ property, in the present cases, others’ ownership of the integrated circuit, the Plato book, and the movie.

As for ownership of desires, etc., if you exclude these, you’re going to have a hard time in explaining self-ownership, which I am assuming you, as do I, think is a rock-bottom libertarian principle. Here is why. What makes a self-owner is not having a body or a living body or even a living body with desires. If that were sufficient, then animals would be self-owners. What makes a self-owner (or a moral agent, as I would put it) is that we have first and second-order desires. for example, I desire to eat, sleep, etc., byt I am also capable of regulating these desires, satisfying them in various ways depending on other desires, and even resisting these desires when I think appropriate. I can (second-order) desire that my first-order desire be effective, that is, lead to action, or that it disappear. This is what being a human agent is all about. When I say I own my (first-order) desires, what I mean is that I decide whether they will initiate actions or not and what actions will be initiated. To be a moral agent is to be sovereign over one’s first-order desires. That’s why in a just society you cannot tell me what to do, unless it is to desist from interfering with your first-order desires and their fruition. The reason I don’t say that I own my second-order desires, is that they, by definition, do not initiate action. If you want to say that you don’t own your first-order desires, then how can you object to someone else interfering with them, say, as a means to satisfying their own first-order desires?

My reply is below:

Lloyd, these are nice points and questions. Let me try to explain why I think I disagree and why your views all rest on some presumptions I think are justified, or why you are using reasoning or concepts that I just don’t think are very coherent or clear or rigorous.

“My claim is that in each case there is an invention or creative product that is exclusively owned by the producer or by whomever he has transfered property rights to. You want to say that the enforcement of these property rights necessarily involves the owner in partial property rights over someone else’s material, in these cases, over someone’s silicon, metal, paper, celluloid.”

Yes, and I think you would agree with this, up to this point.

“I leave out words because we both agree that nobody owns words as types, though we can of course own words as tokens, that is the specific marks I make on a page, for example.”

I confess I have no idea what this kind of language really precisely means–saying words are “tokens” or why this is somehow relevant. In fact I believe that if you stray from the mooring of scarce resources as the touchstone of property and extend property to so-called “ideal objects,” there is no reason in principle one could not own “words”. As a matter of fact, one type of IP, namely trademark, does, in fact, in a sense give some people ownership of certain words–like Coca-Cola or Elvis.

“I reply to your objection that of course A’s property rights in x necessarily involves a restriction on B’s potential property rights in x. My owning a gun does not permit me to eliminate the dog that you own. So, there is a limitation on my use of my property, that is, my gun, owing to the existence of your property.”

It is not a “restriction” or “limitation” that I have a problem with. No one ever said that your ownership of your body or property means you can do “whatever you want” with it, because you are not permitted to use it as part of any aggressive action. To own does not mean you “can do whatever you want with no prohibitations.” It simply means you are the one who has the exclusive right to control *your* property–that is, YOU, not others, are the one who has the right to decide how to use or who can use your property. In fact, having ownership of something therefore means you presuppose similar rights of others in their own property, which of course implies you may NOT use your property to invade others’ property. That is, it is not that owning property always has “limitations” and “therefore” why should we complain about the “limitations” IP imposes. Rather, it is that owning property presupposes the owner has the right to control his property and therefore that other owners have the right to control their property too, which implies that you of course are not permitted to control others’ property. So recognizing property, by its nature, of course implies that the property right for a given owner does not give him authority to invade others’ property. Therefore, to recognize this is NOT a “limitation” on property rights. So I reject the analogy to the real limitation that IP does give.

Consider it this way. Whether or not you own anything, or whatever you do own, no matter what it is, you are not entitled to murder someone. This moral fact of course implies that you don’t have the right to use your properyt to invade others’ property rights. This is not a limitation on property rights; it is implied by property rights. It is not a weakness of deficiency of property rights; it is its strength and moral virtue and purpose.

The sole question is always WHO owns property–who should title to a given scarce resource be assigned to? Who is its “legitimate” owner? EVERY legal or moral system has to answer these questions–from commie to libertarian. The commies have one answer; libertarians another. The libertarian answer is determined by the simple principle: the first possessor of unowned resources has a better claim than latecomers, ceteris paribus. This implies that as between the first user and a thief, the first user wins. It also implies that as between the first user and someone he sells it to, the buyer wins, since the ceteris paribus condition does not obtain–once you sell it to a buyer, the buyer now by virtue of the act of sale has better title.

Now, if I say that A owns property because he was its first owner or acuqired it from the first owner, and B owns property because he acquired it first. That means A has the right to control his proprty and B has th right to control his. This of course implies that A is not permitted to invade the boundaries of B’s property, simply because B has the right to decide who uses B’s property. A has no right to invade B’s property, whether A uses his own property or not. It has nothing to do with A’s property.

So I don’t see it as a limitation on A’s property rights that he is not permitted to use B’s property without B’s permission. But B’s ownership of B’s property does not therefor give B any kind of co-ownership rights in A’s property. Only A can consent to others’ use of A’s property; and A’s consent *alone* is sufficient for A to use his property, as a general matter.

But in the case of IP, let’s say B thinks of a way to use B’s property: let’s say B owns land and trees; and cuts down the trees to build a log cabin–up till now everyone has lived in caves. B has “invented” the idea of a built-home. By your principlies B is the “creator” of this “invention” and “therefore” he can veto A’s use of A’s logs and land to make his own log cabin. Clearly B is now a co-owner with A of A’s property. The only way you can get around this, which is what you are trying to do, is to say that A’s building a log cabin on his own land violates B’s rights, much like murder does, and that “therefore” it’s not a limitation on A’s property rights any more than the prohibition of murder is.

This is obviously–to my mind–quite a stretch and in fact somewhat ridiculous. Moreover, it is question begging, because it has to assume that B does have rights in this invention to say that it shoudl be a limitation on A’s exercise of his own property rights. But finally, it confuses things. The prohibition on murder (and other crimes) is not simply some externally imposed limtiation on property rights; it is merely a *consequence of* property rights–specifically, the libertarian rule that the first-user has better claim to property than latecomers. Saying murder-is-prohibited is just another way of saying that someone with a better connection to a given resource should hae title to it. Saying A has no right to invade the borders of B’s property (because B is its owner because B homesteaded it, say) is just another way of saying that the homesteader of a given scarce resource has better title to it than non-homesteaders and latecomers.

By contrast, if you give B-the-inventor the veto right over A’s property, it is nothing but a transfer of title from A to B, when B is not the first user of the resource (A is) nor a contractual transferee. To give B rights in A’s resources requires you ABANDON the rule “the first user has better title than non-users/latecomers”. But this is the very rule that underlies opposition to theft: the REASON a thief is a thief is because he is a latecomer with respect to the current owner. If you abandon the rule “the first user of a given resource has better title” then you abandon any principled opposition to theft, murder, socialism, genocide, what have you.

And you have indeed abandoned the rule, if you are in favor of IP, because your new rule is, “the guy who thinks of ways to use *any resource* has better title to *all resources* (in this respect) than anyone else, including someone who first possessed the resource.” You have to say this, or the IP owner does not get to prevent the homesteader of the resource from using it in a certain way. But from the libertarian perspective, this exception to the “first possession = better title” principle is simply arbitrary assertion, ad hoc, and unprincipled; to be blunt, to us it is all noise: the claim is no different in principle than the implicit or explicit claims and justifications given by private and public criminals of various types–brigands, burglars, rapists, serial killers, taxmen, democrats, socialists, communists, totalitarians. Whatever. They all have some mealy-mouthed reason why it’s okay for them to assert jurisdiction over property that others already own. To me, they are all just variations on the same theme: “Yeah, you had this resource before me, but you need to give it to me for such-and-such reason, and I’ll use force to get it.”

“As for ownership of desires, etc., if you exclude these, you’re going to have a hard time in explaining self-ownership, which I am assuming you, as do I, think is a rock-bottom libertarian principle.”

Well, I think “self-ownership” simply describes the situation that each person, ceteris paribus, has a better claim to the scarce resource of his own body than others do, for a variety of reasons, including the fact that the person himself is sort of the “homesteader” of the body-resource; with respect any other claimant (like a rapist or murderer) the person himself has a better claim to the body. To me this is a consquence of the libertarian principle that the person with the best connection to a resource has better title, rather than a starting point.

“Here is why. What makes a self-owner is not having a body or a living body or even a living body with desires. If that were sufficient, then animals would be self-owners. What makes a self-owner (or a moral agent, as I would put it) is that we have first and second-order desires. for example, I desire to eat, sleep, etc., byt I am also capable of regulating these desires, satisfying them in various ways depending on other desires, and even resisting these desires when I think appropriate. I can (second-order) desire that my first-order desire be effective, that is, lead to action, or that it disappear. This is what being a human agent is all about. When I say I own my (first-order) desires, what I mean is that I decide whether they will initiate actions or not and what actions will be initiated.”

Yes; but such talk is overly metaphorical; and you don’t need to confuse the issue by saying you “own” “desires”. This is verging on incoherent, or poetical. To be precise, desires are attributes of yourself, or things you do; not ownable scarce resources.

“If you want to say that you don’t own your first-order desires, then how can you object to someone else interfering with them, say, as a means to satisfying their own first-order desires?”

I have never said it’s a rights violation for others to “interfere with my first order desires”. I have no idea what this means. It is a rights violation to invade the borders of my property–to use it without my consent. If you refrain from physically maniuplating my body and property without my consent then it is my job to try to use my property to carry my desires into effect. Or as the Declaration put it, men have rights not to happiness but to the pursuit of happiness. Or as Rothbard explained, we don’t really have a right to free speech; there is only a right to property. If you have property then you can do what you want on it, speak or not speak; or let others speak on it or prevent them. But you can’t speak on their property without their consent. So there is no right to free speech; speech is just one thing we can do with our property; having property rights implies all the free speech rights you need. Likewise, if I am secure in my property rights then I have all I can reasonably expect and need to pursue my “first order desires,” whatever those are.

Fred Mann June 2, 2006 at 2:01 am

Person,
You may want to read Stephan Kinsella’s piece on intellectual property here:
mises.org/journals/jls/15_2/15_2_1.pdf
I just finished reading it, and I think it will clear up a lot of these issues.
If you STILL believe that IP is a legitimate form of property after reading this paper, then please post your objections here.

quasibill June 2, 2006 at 10:16 am

“But are intellectual property rights a *part* of the free market, or not? ”

Obviously not, as it requires a state to create and enforce them on people who do not consent. Physical property rights can be enforced non-coercively – if you try to take my property, I can defend myself and it. Your act in ‘defending’ IP is inherently coercive – you initiate aggression against me to stop me from using my property in a non-aggressive way.

“They *choose* not to”

Just like I choose to use many services that are subsidized by the state. Doesn’t mean that it is the most efficient use, absent coercion.

“Were the “mass-produced” (go, Marxist commoditization-bashing!)”

Let me quote a well-known child -

“Grow up.”

“That means they would be worse off!”

Not necessarily. But regardless, welfare recipients will be worse off if we eliminate welfare – because they currently choose to use it. In fact, many people will be better off, because producers will stop gravitating to the artificially subsidized form of production, and instead create what people are willing to pay for.

“State recognition and enforement of IP rights is no more or less a “subsidy” than state recognition and enforcement of other property rights.”

Yes it is, as I have noted, and Kinsella thoroughly shows in his post. IP rights are an artificial limit on my property rights imposed by the state. An example:

You patent some invention on Monday. On tuesday, I independently create the same invention with my own property. I am kept from using my property in a non-coercive way to allow you to reap monopoly profits – my property rights have been stolen to subsidize your IP rights.

Person June 2, 2006 at 6:21 pm

I’m not sure I have much else to say here. I don’t see how anyone can keep responding like the three of you have, as if you don’t read my posts and use mockery as a substitute for addressing my point. If anyone has been lurking this thread, and you think I’m being unfair by refusing to dignify further posts, please state what point I haven’t already addressed several times.

Curt Howland June 2, 2006 at 7:44 pm

Person, “I’m not sure I have much else to say here.”

Yes, you do. You could give an example of 1) some piece of software you consider of such quality as will not be made without IP regulations, and 2) one piece of software which you believe would not have been produced.

These are things which you have not already addressed several times.

N. Kinsella June 8, 2006 at 3:05 pm

Lloyd replied to my most recent reply by email as follows:

The type/token distinction, which is common philosophical talk just means the difference between a word, say, “circuit” and a particular use of that word which is what I just did. Nobody owns the type; everyone owns tokens if they own the ink, paper, etc.

The best case for my position is the creative work of art; the best case for your position is the new technique for building a house. It seems to me fairly obvious that a creative work is a new piece of property, and someone else’s ownership of word tokens does not give him the right to copy out that creative work for sale. Surely when Oxford sells my book, they can (and of course do) stipulate that the sale is conditional on their retaining rights of reprint. They are not selling those rights. If you don’t like that deal, don’t buy the book. The issue between us seems to be that you think that because you own word tokens, you have a right tod whatever you like with these, including putting them together into an order that just happens to be an exact duplicate of my book. But if you do this you are doing more than asserting a right over your word tokens; you are asserting a right to benefit from my property against my will.

As for your case, I grant you there is something intuitively wrong with the following scenario: I build on my summer property a house that accidentally employs the famous patented Walter Block technique for house building. You come along and ask me if I have a license for doing this. I say, “no” for the simple reason that I hzve never even heard of the patented Block technique. You say then that I have to pay a license fee ex post facto or tear down my house. I agree that this is wrong. But I disagree with you on why it is wrong. I think it is wrong because I was neither trying to profit from your invention nor was I avoiding paying a licensing fee. You think it is wrong because the one who invents the Block technique does not have a right to restrict others in the use of their property. I say the inventor does not have a right to restrict others in the use of their property, too. But I think the inventor has a right to restrict others in the use of the inventor’s property, namely, the invention. It is for a court to decide on whether my builing my house according to the Kinsella technique was just the innocent use of my own property (because I wasn’t aware of the technique) or whether I was trying to rip off the inventor. When I was in my basement messing around with my chemistry set, did I just hit upon the formula for Viagra or did I in fact (just out of curiosity, say) reverse engineer Pfizer’s product and then use the information to mix up my own batch. With drugs, it is not entirely far fetched that I could hit upon a formula independently for some life saving drug. But there is a matter of fact here to be determined and whichever way it goes it does not turn on the principle of property.

The reason for speaking about ownership of desires (and this is not poetic or metaphorical) is that self-ownership requires a self, not just a body. If this were not so, then animals would be self-owners, which I am assuming you would agree they’re not. Being a self means having desires you control and are authoritative over. Granted this is not like land or chattel, but my desires sure are scarce, since they can logically only belong to me!

My reply to him is here:

“The type/token distinction, which is common philosophical talk just means the difference between a word, say, “circuit” and a particular use of that word which is what I just did. Nobody owns the type; everyone owns tokens if they own the ink, paper, etc.”

Okay.

“The best case for my position is the creative work of art; the best case for your position is the new technique for building a house. It seems to me fairly obvious that a creative work is a new piece of property, and someone else’s ownership of word tokens does not give him the right to copy out that creative work for sale.”

My argument is not that “nothing is really a creative work and therefore not property”. I would argue that the new technique for building a house is a creative work just as a painting or novel is. If the latter are property so is the house-technique.

“Surely when Oxford sells my book, they can (and of course do) stipulate that the sale is conditional on their retaining rights of reprint.”

Do they? Where is this “stipulation”?

“They are not selling those rights.”

this is question begging; the question is should they have those rights to reserve in the first place.

“If you don’t like that deal, don’t buy the book.”

You might be able to ensnare customers this way, contractually. The problem is you want this contract between seller and buyer to somehow bind third parties who were never a party to it. If I write a novel using Darth Vader and Luke Skywalker as characters, just b/c I am in general aware of the characters and plot of star wars, I could have this knowledge without ever having seen the movie or made any contract. What contract did I ever enter into that prevents me from writing “Kinsella’s New Adventures of Luke Skywalker”?

“The issue between us seems to be that you think that because you own word tokens,”

again, I have no idea what this means. I was not aware that I thought we owned word tokens. Rather I think we own scarce resources. My right to print words on pages of paper I own does not presuppose I own any “word tokens”. It only presupposes I own my body and the paper and the ink I use. That is all. for you to presuppose that I am prespposing ownership of word tokens is a way of begging the question, for it presupposes that I need permission–word tokens–to put words on a page. This is like saying, you only have the right to worship satan in your house if you can prove you have a “right-to-worship-satan”–unlessy ou have permission it is denied. This is the rule of commie states. I say, no, I have th right to do whatever I want in my house simply because I own it; and “therefore” I have the (practical) ability to worship Satan (or not) if I so choose. There is no fundamental “right to worship Satan”–there is the right to do what you want on your property.

“you have a right to do whatever you like with these, including putting them together into an order that just happens to be an exact duplicate of my book. But if you do this you are doing more than asserting a right over your word tokens; you are asserting a right to benefit from my property against my will.”

Again, question-begging: you are presupposing it is your property. You are simply not giving an argument but just repeatedly sneaking in your presumption in an attempt to prove it. this is circular.

“As for your case, I grant you there is something intuitively wrong with the following scenario: I build on my summer property a house that accidentally employs the famous patented Walter Block technique for house building. You come along and ask me if I have a license for doing this. I say, “no” for the simple reason that I hzve never even heard of the patented Block technique. You say then that I have to pay a license fee ex post facto or tear down my house. I agree that this is wrong. But I disagree with you on why it is wrong. I think it is wrong because I was neither trying to profit from your invention nor was I avoiding paying a licensing fee. You think it is wrong because the one who invents the Block technique does not have a right to restrict others in the use of their property. I say the inventor does not have a right to restrict others in the use of their property, too. But I think the inventor has a right to restrict others in the use of the inventor’s property, namely, the invention. It is for a court to decide on whether my builing my house according to the Kinsella technique was just the innocent use of my own property (because I wasn’t aware of the technique) or whether I was trying to rip off the inventor.”

You seem unaware that if you provide an independent invention defense–a so-called prior-user right–which is what you seem to want to do, it would radically eviscerate patent law (which would be fine with me). And more than that: the logic of it would imply that patent laws–rights in inventions–are very very difficult ot justify at all. Because if you say that someone who independently invents something is not infringing the patent of someone else (which by the way IS a defense in copyight law–since itp rotects only copying, but not independent creation; it’s just that it’s virtually impossible toindepdently come up with the same artwork as someone else; the same is NOT true of patents which is EXACTLY WHY patent systems have to give inventors rights *even over* other independent inventors!) — then this impiles there is also an unfairness if some third party *would have* invented it on their own say a couple of years after the patent, but now hears of the patent and so is prevented from independently thinking of it. At the least you would have to have very very short patent terms, say a year or two, to make sure that the patent is not limiting the freedom of those who would have probably invented it on their own later anyway. etc.

“When I was in my basement messing around with my chemistry set, did I just hit upon the formula for Viagra or did I in fact (just out of curiosity, say) reverse engineer Pfizer’s product and then use the information to mix up my own batch. With drugs, it is not entirely far fetched that I could hit upon a formula independently for some life saving drug. But there is a matter of fact here to be determined and whichever way it goes it does not turn on the principle of property.”

Sure. But again, you seem not to realize why patent law does not have an independent inventor (or prior user right) defense. You seem to assume that any just patent system would have such an exception. This is just not the type of system you are defending. There is a reason patent systems let patentees sue even people who thought of it first (in private) or independently developed it or who might/would have independently developed it. It is part of the logic of protecting rights in inventions. You want to carve out the iniquity but you don’t realize you leave nothing but a tiny shell of patent rights if you do this–and they would not really do much to protect inventions either. You are trying to have it both ways but you cannot.

“The reason for speaking about ownership of desires (and this is not poetic or metaphorical) is that self-ownership requires a self, not just a body. If this were not so, then animals would be self-owners, which I am assuming you would agree they’re not.”

I don’t tend to think the reasons animals don’t have rights is because they are lacking a “self”, but then I guess if you define “self” in such a way…

“Being a self means having desires you control and are authoritative over. Granted this is not like land or chattel, but my desires sure are scarce, since they can logically only belong to me!”

Again… I would say that the first question about your desires is not who they belong to–if they belong to anyone, surely, they belong to you–but whether they are “belongable” in the first place. You can’t just say that your desires belong to you therefore they are ownable. If they are not ownable, then they do not technically belong to you.

Fred Mann June 10, 2006 at 1:14 am

Thanks for the update, Stephan! Keep ‘em comin’.
Also, I’m looking forward to reading your “New Adventures of Luke Skywalker”.
With respect to copyright laws on books, works of art, etc., the defender of IP laws is really only interested in protecting the VALUE of this “property”, and not the “property” itself. If I manage to legally procure a copy of an unreleased book (perhaps the author accidentally posts it on a non-secure website), I do not harm the author if I make copies of the book and put my name on it (or leave his name on, for that matter). However, I do “harm” him if I sell these copies, because I am cutting into “his” market share. Of course, we can NOT claim a right to a share of any market. An Indian restaurant owner cannot prevent another Indian restaurant from opening across the street. He doesn’t OWN a share of the Indian-food-eating public. We can not own the VALUE of something either. As Rothbard, you, and many others have shown, “value” is the product of the subjective valuations of customers/potential customers, which can not be controlled by the “owner”, and thus can not be owned in any sense.
I know you covered this to some degree, but I think it really needs to be highlighted and expanded upon, since there seems to be an intuitive plausibility for protecting these types of IP. I could say much more about this, but I’m not sure if anyone is still checking this thread. We’ll see …

Stephan Kinsella June 13, 2006 at 4:53 pm

Lloyd wrote me:

1. I define “right” as follows: S has a right to x if and only if to deprive S of x would be unjust. So justice is prior to rights. And I define “justice” as a state in which persons (moral agents) exercise their self-ownership without violating the self-ownership of others. So, justice concerns property and property only.

2. I think your third party objection is based upon YOUR assumption that works of art are not property. You say that desires, etc. are what you do with your property and tha they are not property itself. Presumably, you think that intellectual creations are like this. If the only violations are property violations, and what you do with your property is not property, then presumably you must maintain the following: I put a piece of sculpture on my lawn and invite my neighbors to see it and even to touch it (thereby inviting them on my property. Someone comes and disassembles the sculpture, leaving the pieces intact in the same place. According to you, he hasn’t violated my property. But I think he has violated my property because my property is not just the pieces but the work of art as a work of art. This is why I talk of ownership rather than just property becuse ownership is a broader notion, though it is rooted in moral agency (i.e., self-ownership).

3. I am not familiar with the US patent laws as are you. I’m not defending those laws. I would think that under a just system, someone would have a hard time proving independent invention when the invention appeared, i.e., was patented. But it is not impossible. Say the independent inventor had lab notes about all the steps that he was taking and the succession of false leads, which would, in the opinion of a judge, have led him to the right solution to the problem. If he gets there after the inventor of the patented invention, there may be an opportunity for negotiations. But in general if he gets there after, it is like you coming after me when I first discovered the diamonds. Too bad for you. I would be opposed to a law that said that I could not use my own silicon and metal to make my own integrated circuit for my own purposes, other than selling it on the open market.

4. I don’t see what is wrong with patents or copyrights in perpetuity IF intellectual creations are property. I say they are; you say they aren’t. So, we have to return to the idea of what makes something property. In an earlier note you said that you reject the Lockean proviso, but you did not say why physical poossession was sufficient for property ownership. Remeber you can only stand on a couple square feet of land at any one time. Don’t you have to do something with the land to own it? And if so, why doesn’t what you do with your own materials also constitute ownership?

My reply:

“1. I define “right” as follows: S has a right to x if and only if to deprive S of x would be unjust. So justice is prior to rights. And I define “justice” as a state in which persons (moral agents) exercise their self-ownership without violating the self-ownership of others. So, justice concerns property and property only.”

Well. I think the definition is maybe too vague, but I’ll go with it here. Of course justice is “prior” to rights. That’s kind of my point: rights is just a description of an underlying normative relationship. so you can’t just assert there are property rights in ideas. The question is, is it just to use force to stop someone from using “your” ideas to manipulate his own material property.

“2. I think your third party objection is based upon YOUR assumption that works of art are not property. You say that desires, etc. are what you do with your property and tha they are not property itself. Presumably, you think that intellectual creations are like this. If the only violations are property violations, and what you do with your property is not property, then presumably you must maintain the following: I put a piece of sculpture on my lawn and invite my neighbors to see it and even to touch it (thereby inviting them on my property. Someone comes and disassembles the sculpture, leaving the pieces intact in the same place. According to you, he hasn’t violated my property.”

Of course he has: he has used your property in a way you did not consent to. That is the essence of trespass: it is use of property without the owner’s consent. Consent can be limited, defined, temporary, and partial. No? A girl can consent to being kissed; does that mean she necessarily consents to being screwed too?

“But I think he has violated my property because my property is not just the pieces but the work of art as a work of art. This is why I talk of ownership rather than just property becuse ownership is a broader notion, though it is rooted in moral agency (i.e., self-ownership).”

You can see that you don’t need to get into the property-in-art to defend the right stop someone from destroying your property.

“3. I am not familiar with the US patent laws as are you. I’m not defending those laws. I would think that under a just system, someone would have a hard time proving independent invention when the invention appeared, i.e., was patented. But it is not impossible. Say the independent inventor had lab notes about all the steps that he was taking and the succession of false leads, which would, in the opinion of a judge, have led him to the right solution to the problem. If he gets there after the inventor of the patented invention, there may be an opportunity for negotiations. But in general if he gets there after, it is like you coming after me when I first discovered the diamonds. Too bad for you. I would be opposed to a law that said that I could not use my own silicon and metal to make my own integrated circuit for my own purposes, other than selling it on the open market.”

In any event, you are indeed supporting a system in which at least as a practical matter many people who independently invent something, or *woudl have*, are going to be prohibited from using this on their own property. Why you think that selling is different than private use is beyond me: Austrians realize value is subjective and profit is psychic. There is nothing special about dollars and “open markets”.

“4. I don’t see what is wrong with patents or copyrights in perpetuity IF intellectual creations are property. I say they are; you say they aren’t. So, we have to return to the idea of what makes something property. In an earlier note you said that you reject the Lockean proviso, but you did not say why physical poossession was sufficient for property ownership.”

Because that is what the latecomer wants! he wants to physically take it from you, to physically control it! So someoene with first possession obviously has a better claim of possession and continuing possession, than someone who comes later! If the latecomer maintains that latecomers have better right to possess a thing than an earlier possessor, then the latecomer would not be secure in his posession etiher–the first owner could jsut take it right back, and there would be eternal tussle-NOT any solution to the problem of conflict!

“Remeber you can only stand on a couple square feet of land at any one time. Don’t you have to do something with the land to own it?”

Sure. Use is doing something; “possession” to me is just shorthand term for appropriation. It’s up to teh community’s practical sense of justice as to what actions count for possession;a nd remember, the point of this is to establihs borders, to emborder, so as to provide public signs people can avoid. So possession has to be “notorious” in some way, wheter it be erecting a fence, transforming it, marking or branding it, etc.

” And if so, why doesn’t what you do with your own materials also constitute ownership?”

You already own them. What else is there to own? What you want, in effect, is for me to (a) own some material thing by appropriating it; and then (b) by manipulating or using this thing in a particular way, by that action, I come to own a piece of everyone else’s property! Wow, magic!

Person June 13, 2006 at 5:11 pm

Well, as long as this keeps gets getting bumped up, I might as well deliver some more coups de grace to people who won’t read my posts the first time I make them.

Fred_Mann: I’ve read that already. Several times. You’ve again missed the entire point of why I’m posting here. You could make a 100% percent solid case that IP is not “a legitimiate form of property.” That would not be enough for me. The consequences I expect to result from zero IP rights are still so stark that I can’t dismiss them as I would other gray consequentialist concerns.

The Kinsella paper “clarifies” NOTHING AT ALL; he explicitly ignores any and all consequences stemming from non-existence of recognized IP rights as “requiring interpersonal utility comparisons”. (They don’t, but whatever.) For you to think that linking that paper, even if I hadn’t read it, addressed a single concern I have brought up here is conclusive proof you have not actually read any of my posts in full.

Then again, it’s not like I can even expect a real attorney to comprehend the simplest statements of mine, since Kinsella on this very thread believed I claimed “no IP = no innovation at all” when I never said or implied any such thing.

Curt_Howland: I did answer that. Several times. On this very thread, you can find someone asking me for examples of good proprietary software that would not exist without IP rights. I gave examples of Windows and MS Office. Anticipating your anti-intellectualism and simultaneous elitism, I pointed out that real human beings pay their own money to use this software (even while “wonderful” [!] open source solutions exist) and the software was produced with the chief intent of profiting. Go find those posts and re-read them. No — ALL of them. Not the first sentence, like you usually do. The WHOLE THING. All the context. All the caveats. Can you handle it?

Paul Edwards June 13, 2006 at 6:30 pm

Person,

“You could make a 100% percent solid case that IP is not “a legitimiate form of property.” That would not be enough for me. The consequences I expect to result from zero IP rights are still so stark that I can’t dismiss them as I would other gray consequentialist concerns.”

I interpret you to be saying that merely showing IP to be unjustifiable is inadequate to show that IP is not justified. That beyond IP being unjustifiable, the consequences of ruling out IP must be acceptable to truly view IP as not justified. Does that correctly reflect your position?

If it does, there is not much opportunity for your position and Kinsella’s to ever meet. His argument very strictly takes into account only what can be justified through argumentation. Your argument puts one’s potentially subjective assessment of the consequences of acting according to a certain conclusion ahead of this.

The two approaches are fundamentally incompatible and cannot in general be expected to lead to consistent conclusions. This is because one’s view of the consequences of IP, for instance, can be different from someone else’s.

On the other hand, there is only one correct and logical line of reasoning that can attempt to justify IP through argumentation; it depends on the libertarian premise of the institution of private property in scarce resources based on the homesteading principle, for the purpose of allowing for conflict avoidance. This line of reasoning necessarily shows IP to be unjustifiable.

Person June 13, 2006 at 6:46 pm

Good point, Paul_Edwards. Consequences don’t matter at all. I hadn’t thought about that.

Paul Edwards June 13, 2006 at 8:10 pm

My feeling is that it always seems to turn out that if a system is consistent with and non-contradictory to libertarian ethics and the revelations of praxeology that the practical results always seem to be optimal. In contrast, it seems all arguments that propose putting aside consistency with libertarian ethics in preference to other considerations, in the end, seem always to turn out to be erroneous and detrimental to human prosperity if acted on.

This is why i prefer conclusions that can be shown ethically justifiable through praxeological methods over conclusions that require some degree of speculation.

N. Kinsella June 16, 2006 at 3:21 pm

Further to my debate w/ Lloyd G. (LG):

Lloyd:

NSK: Well. I think the definition is maybe too vague, but I’ll go with it here. Of course justice is “prior” to rights. That’s kind of my point: rights is just a description of an underlying normative relationship. so you can’t just assert there are property rights in ideas. The question is, is it just to use force to stop someone from using “your” ideas to manipulate his own material property.

LG: I don’t think it is right to use force to stop someone from using my ideas, if you mean by “ideas” just the propositions I believe or have entertained. But an artistic creation is different, as is an invention.

Your reply, it seems to me, is a combination of evasion and question-begging. By advocating IP you do want the “artistic creation” and “inventor” “creators” to be able to physically stop others from doing what they want with their (material) property. Why not just admit it? I don’t see how you can have it both ways. If you want to advocate IP you have to advocate some kind of modification of rights in regular property. You can’t have both. And by asserting that it’s “different,” it’s just an assertion. So what?

LG: “2. I think your third party objection is based upon YOUR assumption that works of art are not property. You say that desires, etc. are what you do with your property and tha they are not property itself. Presumably, you think that intellectual creations are like this. If the only violations are property violations, and what you do with your property is not property, then presumably you must maintain the following: I put a piece of sculpture on my lawn and invite my neighbors to see it and even to touch it (thereby inviting them on my property. Someone comes and disassembles the sculpture, leaving the pieces intact in the same place. According to you, he hasn’t violated my property.”

NSK: Of course he has: he has used your property in a way you did not consent to. That is the essence of trespass: it is use of property without the owner’s consent. Consent can be limited, defined, temporary, and partial. No? A girl can consent to being kissed; does that mean she necessarily consents to being screwed too?

LG: So, too, one who copies my book and sells it has done so without my permission.

Again, this is question-begging. My example of the girl and the kiss was meant to illustrate that the owner of property has a range of ways he or she can consent to others using their property. It was meant to show why you sculpture example was wrong. I was explaining that if the owner of a sculpture lets others look at it or touch it, he is not consenting to them destroying it; so if they do, they have used his property without consent, just as a date-rapist does who is permitted to kiss the girl but no more, but who nevertheless goes further with her. In both cases we would both agree that the body or sculpture is property of a given person.

In the case of a “book” we do not agree yet. So your trying to sneak it into a category we already agree about is a type of question-begging.

NSK: In any event, you are indeed supporting a system in which at least as a practical matter many people who independently invent something, or *woudl have*, are going to be prohibited from using this on their own property. Why you think that selling is different than private use is beyond me: Austrians realize value is subjective and profit is psychic. There is nothing special about dollars and “open markets”.

LG: I don’t get the qualification “would have”. I would have invented the integrated circuit if I had had a little more time (say 1,000 years). I completely agree about the subjecivity of value.

What I mean here is say you have two companies, both full of bright engineers and scientists working on related technology and problems. It is often quite likely that A and B would come up w/ similar solutions, within a couple of years of each other. Now, my previous point I made to you was that even if you make some exception for prior or independent invention (which as I noted, would totally eviscerate patent law, which you don’t seem to mind; despite the fact that now there is no real protection for inventions) — then still left trapped by patent law are the people in the A-B case above: say A’s guys invent it first and then very soon they file a patent and an article about it; so now B’s guys hear of A’s solution. A solution they in time — very soon, not 1000 years — “would have” come across. The publication of A’s technique prevents them from inventing the solution now–one they “would have” come up with, very probably–so it prevents them from taking advantage of the indepenent invention exception. So to have a complete exception, you would have to try to protect such people, those who would have invented the protected invention but who now can’t b/c of the first guy getting a notorious patent on it. One way to do this is to radically shorten patent terms, say, to 2-5 years, to minimize the harm done to such “would have” inventors.

Is my point not clear?

LG: “4. I don’t see what is wrong with patents or copyrights in perpetuity IF intellectual creations are property. I say they are; you say they aren’t. So, we have to return to the idea of what makes something property. In an earlier note you said that you reject the Lockean proviso, but you did not say why physical poossession was sufficient for property ownership.”

NSK: Because that is what the latecomer wants! he wants to physically take it from you, to physically control it! So someoene with first possession obviously has a better claim of possession and continuing possession, than someone who comes later! If the latecomer maintains that latecomers have better right to possess a thing than an earlier possessor, then the latecomer would not be secure in his posession etiher–the first owner could jsut take it right back, and there would be eternal tussle-NOT any solution to the problem of conflict!

LG: Don’t I have first possession of my work of art? Who else has a better claim to benefit from it than I?

No, you do not have “possession” of a work of art — if by owning a work of art this means having the right to control the physical property of other people–you do not have “possession” of others’ cars, or bodies, or paper, or ink; this is exactly why IP law establish artificial rights, because it grants rights in things you never did have possession of.

As for your latter question about who has the better claim to benefit from your work of art– this is so chock-full of ambiguities and false assumptions and attempts at question-begging I won’t attempt to analyze it. Let me just say that you don’t have a better claim to use the property of someone else who possessed it first.

NSK: Sure. Use is doing something; “possession” to me is just shorthand term for appropriation. It’s up to teh community’s practical sense of justice as to what actions count for possession;a nd remember, the point of this is to establihs borders, to emborder, so as to provide public signs people can avoid. So possession has to be “notorious” in some way, wheter it be erecting a fence, transforming it, marking or branding it, etc.

LG: If it is up to the community’s practical sense of justice as to what actions count for possession, I think you would have to admit that almost everyone would say that working two years on a book gives me right of possession as property.

I was explaining why borders are important in a society in which people are by and large interested in justice and in property rules that faily allocate title to property that could be disputed. This explains why such people would favor someone with a better claim to a *given resource* over someone with a worse claim; and it explains why earlier possession will always be favored, ceteris paribus, over claims of latecomers. This is what it *means* to have property rights: that the owner is secure in them and someon cannot just by force take them away.

It is utterly irrelevant that most people today are socialistic and thus they are *not* the type of people who steadfastly and consistently are searching for rules that help to avoid disputes. The fact that some people don’t have dispute-avoidance as a touchstone principle is as irrelevant as the fact that there are and will always be some criminals.

LG: “And if so, why doesn’t what you do with your own materials also constitute ownership?”

NSK: You already own them. What else is there to own? What you want, in effect, is for me to (a) own some material thing by appropriating it; and then (b) by manipulating or using this thing in a particular way, by that action, I come to own a piece of everyone else’s property! Wow, magic!

LG: I don’t see how by manipulating wods and producing a work of art I own a piece of your property.

Um, I don’t either. You are the one in favor of it, not me.

Or do you mean that you do not see why this is the case? Have I not given innumerable examples of how this occurs? Under an IP regime–with copyright and patent–IP owners can actually physically stop other people from using *their own bodies and property* in certain ways. For example, I might be able to stop a dancer from moving their body in a given way if the sequence of motion is too similar to one I wrote down first and registered with the government; or stop you from singing a song, with your lovely voice; or stop you from selling a book that is based on characters I put in a book of mine first; or adjusting your carbeurator of your car in your driveway to get better gas mileage because I thought of that adjustment-method first.

I can see arguments for such wealth-transfers, for transfers of control of property from material property owers to innovators–but how can you deny that it does, in fact, give them such control?

LG: I am willing to share my royalties with you if you can on your own (no peeking) duplicate my book. If you can’t,you can buy mine. You can lend it to anyone you want.

Not if copyright advocates have their way. They have always disliked the “first-sale doctrine.”

LG: You can use it as an inspiration to write something else.

I don’t think you understand very well the nature of the beast you think you are in favor of. Copyright is not merely the right-to-reproduce. It is a bundle of related rights: it includes the right to reproduce, but also the right “To prepare derivative works based upon the work”, to distribute it, to perform it publicly (for some types of works), to display the work publicly (for some types of works), etc. See http://www.copyright.gov/circs/circ1.html#wci

I guess you are not aware that “using it as an inspiration to write something else” would be covered as a derivative work.

I notice every time I come up with an example that shows an obviously unjust/unlibertarian result, you just weasel out of it by saying, well, I don’t support THAT in the type of IP I favor. I suspect you would say something similar about the extra rights in the copyright bundle.

But far from shrinking, the bundle of rights continues to expand, as is naturally to be expected. See, e.g., this report on the latest attempt to add a webcast or broadcast right to the copyright bundle: http://news.ft.com/cms/s/fa07af4a-fadc-11da-b4d0-0000779e2340.html

It’s funny, whenever I call this to the attention of IP advocates of IP, they always say, well, I don’t advocate THAT system. I ask them, okay, well, then what DO you advocate? And they’ll say, well, I’m not an IP expert. So I’m wondering, why do these people even have an opinion? I mean, they think they are in favor of the given IP system, but obviously are kind of clueless about what the system really is; when I point out obvious defects, they crawfish away from endorsing that, and keep agreeing to exceptions that are so huge that they promise to eviscerate the system they said they favored (exceptions that real IP advocates would never be in favor of for just this reason); and when I ask them to tell me what kind of IP right they are in favor of, they say, “I don’t know!”

LG: “If you want to reproduce it to sell it, who has prior claim to the possession that is the work of art, not the particular physical book? I say I do.”

Again, you are question begging by in effect assuming that just because you can conceptually or verbally identify some “thing”–in this case, the “it” that someone wants to reproduce or sell, it must be an ownable thing. It is almost mere semantical wordplay. It is akin to making this argument: “You cannot write about my life because it is *my* life, after all! If anyone can write about “my” life, who is in a better position to own the right to write about “my” life than *me*?”

So in conclusion, let me say that I do not think it is the height of libertarian philosophy to resolve question of ownership based on conventional uses of possessive pronouns.

Paul Edwards June 16, 2006 at 6:43 pm

Great thread, with some pretty funny stuff too.

Person June 16, 2006 at 8:56 pm

I agree. My favorite part was quasibill’s (or whoever’s) “they already openly collaborate on private message boards!” And then we got Curt_Howland’s rejection of marginal analysis and contempt for the unwashed masses who choose proprietary solutions over Linux, not to mention his delusions that I said “no one would ever write any software whatsoever unless there are IP rights”. It’s a riot.

Fred Mann June 17, 2006 at 10:31 pm

Person,
You write:

“Fred_Mann: I’ve read that already. Several times. You’ve again missed the entire point of why I’m posting here. You could make a 100% percent solid case that IP is not ‘a legitimiate form of property.’ That would not be enough for me. The consequences I expect to result from zero IP rights are still so stark that I can’t dismiss them as I would other gray consequentialist concerns.”

I posted that link to Kinsella’s paper because I was not sure if you were of the opinion that IP was a legitimate form of property or not. You never really took a firm stand on that issue, as far as I can remember. Anyway, I will assume that your position is purely “consequentialist”.
The problem with the consequentialist view is that it requires a crystal ball to defend it with any certainty. For example, you claim that certain types of software would not be invented. However, we don’t KNOW that this would be the case. As some have pointed out above (and I am NOT a software expert, by the way), software could be written/developed and improved in very small increments using the freely available underlying source code (freely available in a non-IP regime, that is). In this case, software of many varying levels of complexity would exist, having been written by multiple authors (possibly even thousands of authors). The contribution of any given author may be minimal (and hence, low cost in terms of time invested). It is certainly conceivable that a system far superior to Windows could be developed under this regime.
But what if someone had patented the very concept of software itself, back in the early days of computing?? This could have hindered the development of computers to such a degree that we would still be getting excited over hand-held calculators.
Fortunately, this did not happen. But it certainly could have happened under an IP system. One has to wonder what technologies HAVE been stifled by IP.
As a final example, I would draw your attention to these blogs. If someone were to read all of the blog posts on this site, one would probably have a very firm grasp of all the relevant topics. Yet every post (even the LONG and SYSTEMATIC posts) was written for free. I would argue that this makes a decent case for the elimination of IP (in this case, on copyrights for books, etc.), from a consequentialist perspective.

Person June 17, 2006 at 10:58 pm

Fred_Mann:

I posted that link to Kinsella’s paper because I was not sure if you were of the opinion that IP was a legitimate form of property or not. You never really took a firm stand on that issue, as far as I can remember. Anyway, I will assume that your position is purely “consequentialist”. …

You will not. I have consequential concerns *and* property legitimacy concerns. New concept, right. Normally, the consquential concerns (like you say below) are fuzzy. In that case, I can safely say, “to hell with the consequences”. However, on this particular issue, the shift in policy is truly monumental — like the difference between having physical property rights and not having them. It’s so bad that people don’t even consider the implications of such a shift. They fantasize that existing software writers who make money despite piracy in any way are a model of how to profit, ignoring that their profits come from being able to threaten potential users with legal penalties, drawing them toward legit purchases. Or they act like laws against fraud would somehow apply here, even though the person selling the bootleg copy in no way lies about what it is. People argue on this issue with literally *no idea* about its impacts.

As some have pointed out above (and I am NOT a software expert, by the way), software could be written/developed and improved in very small increments using the freely available underlying source code (freely available in a non-IP regime, that is). In this case, software of many varying levels of complexity would exist, having been written by multiple authors (possibly even thousands of authors). The contribution of any given author may be minimal (and hence, low cost in terms of time invested). It is certainly conceivable that a system far superior to Windows could be developed under this regime.

Like I said to the others above, yes, open source is great as an option. But it can exist with or without IP laws. What cannot exist is possibility of profitably selling any kind of useful, general use software. If there are no legal prohibitions whatsoever, there are no remaining methods of profit. Any opponents of IP laws have had the opportunity to do so and prove it. Maybe markets don’t matter. Maybe everything can be made in a gift economy. But it’s rather inconsistent for a libertarian to claim this.

You don’t need a crystal ball to know that eliminating these Pareto-optimal transactions makes people worse off without making others better off.

But what if someone had patented the very concept of software itself, back in the early days of computing?? This could have hindered the development of computers to such a degree that we would still be getting excited over hand-held calculators.

Again, the shoddy application of IP law is no more an idictment of IP law than court-endorsed expropriations are of property law. Yes, people abuse laws. Yes, some courts are corrupt. So what?

As a final example, I would draw your attention to these blogs. If someone were to read all of the blog posts on this site, one would probably have a very firm grasp of all the relevant topics. Yet every post (even the LONG and SYSTEMATIC posts) was written for free. I would argue that this makes a decent case for the elimination of IP (in this case, on copyrights for books, etc.), from a consequentialist perspective.

Wow, I totally didn’t realize that some intellectual works are not produced for money!!!!!!! Thanks for being the thirtieth person to tell me that! Now, you can be the thirtieth person for me to reply: “Yes, I know that. Much, however, would not be produced if there is no money to be made, just like the communally grown food is no argument for abolition of property rights in food.” Now, read my posts again, and this time, finish them first.

Has anyone here read a full post of mine on this thread? Anyone?

Fred Mann June 18, 2006 at 1:18 am

Me:
“But what if someone had patented the very concept of software itself, back in the early days of computing?? This could have hindered the development of computers to such a degree that we would still be getting excited over hand-held calculators.”

You:
“Again, the shoddy application of IP law is no more an idictment of IP law than court-endorsed expropriations are of property law. Yes, people abuse laws. Yes, some courts are corrupt. So what?”

Person, you must know that the scenario I outlined above does NOT describe a shoddy application or abuse of IP laws. At the time of its invention, “software” was a very specific technique with unknown potential. Of course, we NOW know that granting IP in this area would have been disasterous. But nobody could have known that at the time. At that time, it was perfectly patentable.
I suppose you could have a very specific definition of IP that would not allow for the patenting of “software” at the time of its invention. If so, please outline specifically your concept of IP — what should be protected and what shouldn’t.

“What cannot exist [without IP] is possibility of profitably selling any kind of useful, general use software.”

This is certainly not necessarily true. Hidden in this statement is an assumption about the costs of writing software — i.e. that they are always “too high”. Why must this be so? Why can’t one make an acceptable profit selling a few units of something? Does writing general-use software have to take a long time and/or be more expensive than its selling price (even if one only sells a few units)?
And of course, you must realize that the costs of writing software will fall when the authors have full and free access to the currently-existing pool of source code — as they would under a no-IP regime.
Obviously, IP changes the WAY that software is written. It favors the writing of software in large chunks by a small number of authors, as opposed to software being written in small chunks by a very large number of authors (as outlined in my previous post). But this in no way means that the result under IP will be superior.
This mises.org blog does make a good analogy. Both in terms of quantity and quality, the material in these blogs gives any and all books on these subjects a run for their money. It employs the same principle – many many authors making small contributions.

“Maybe everything can be made in a gift economy.”

Clearly, I’m not advocating a gift economy. I’m just defending ACTUAL property. However, IP does give a “gift” of sorts to the late-comer, as outlined in the Kinsella paper that I linked. Which leads me to my last question …
You say, “I have consequential concerns *and* property legitimacy concerns.” What, specifically, are the property legitimacy concerns that you have? i.e. what non-consequential defenses can you offer in favor of IP. Or, where do you disagree with the property-legitimacy-related arguments in the Kinsella paper that I linked?

Intellectual property owner November 26, 2006 at 7:22 am

I’ve got some experience in causal PC and MAC games – I can tell you you get the most money when you develop the game and then sell it to a publisher who supports it. So you have money to develop another and another and so on.

banker November 26, 2006 at 8:34 am

What about the private contract between the software user and the software publisher? This is the license where you have to click, “Yes, I agree to the terms of this license.” This is not IP, but just private contracts.

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