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?

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: 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.

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.

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

“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.

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?

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!

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.

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.

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.