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Source link: http://archive.mises.org/5196/rand-and-marx/

Rand and Marx

June 19, 2006 by

I wrote an Objectivist friend the other day, “No matter what your stance on IP, surely you must wince to read Rand write: “patents are the heart and core of property rights.” I mean… COME ON!”

Her reply: “Rand’s view is a variation of the Communist view that a worker owns what he worked on for having had some kind of productive contact with it.”

I had never thought of it this way; but he has a point. This helps explain why Rand focused on the necessity of IP as a way of ensuring that the innovator profits from his intellectual creativity. (I critique Rand’s IP views in Against Intellectual Property; see text at notes 45 and 51 for the quoted line above and a related quote.)

{ 64 comments }

Michael June 19, 2006 at 11:11 am

It’s times like these that I am glad I had the good sense never to read Rand. I’ll stick with Mises, thank you.

Jim Bradley June 19, 2006 at 11:18 am

Michael, Reisman doesn’t agree, and he’s a staunch Mises supporter. “theft of ideas” is just as bad as “theft of property”.

Michael June 19, 2006 at 11:29 am

Jim, What do you mean by theft of an idea? How does one steal an idea?

Michael Stuart Kelly June 19, 2006 at 12:00 pm

Stephan,

For the record, I am that Objectivist friend (and definitely not a “her”! //;-)

btw – I am not against intellectual property per se. It exists and great inventions and other creations should be remunerated on the market. I merely find that “property” is a big subject. Trying to pin it down to one principle only is like trying to pin man’s nature to one principle only.

This one-only-principle-ism is a real pain when you find people who do it vehemently and you are trying to find out what really exists.

(My thoughts are not too popular in hardcore Objectivist circles. I will probably tick some libertarians off too…)

Michael

Michael Stuart Kelly June 19, 2006 at 12:03 pm

Sorry for the strange formatting. It looked fine here with the preview function, but look what went up! (This reminds me of the behavior of some philosophical ideas.) Weird…
Michael

Jim B June 19, 2006 at 1:16 pm

Michael — I think copying Kinsella’s work and posting without permission would qualify, don’t you? Or taking research that doesn’t belong to you (not in public domain) and using it without permission, right?

Stephan Kinsella June 19, 2006 at 1:57 pm

Jim B:

copying a copyrighted work without permission may violate current positive law but it does not mean it is a violation of natural rights. If there were no IP law, then would copying my book be “stealing” it? No; I would still have my book.

What is it stealing, then? The opportunity-to-make-more-profit…? Since when was the right to make monopolistic profits a natural rihgt?

Person June 19, 2006 at 2:14 pm

Stephan_Kinsella: You seem to be invoking the scarcity principle of property that you used in your JLS article. I’ve never found that convincing. Whenever two people’s desires can’t simultaneously be satisfied, there is scarcity. If I desire that only those who pay me have a copy of my work, and you desire to have a copy of my work without paying me, there is scarcity. To say that I cannot have a natural right to e.g., instantiations of the informational content of my book because that informational content isn’t scarce would be an error. Maybe I don’t have a natural right to that. Buf if I didn’t, it wouldn’t be because the informational content isn’t scarce.

Okay, too many negatives in one sentence. The point is, there is a conflict of desires, so there is scarcity, so there is basis for establishing property rights in who may instantiate that informational content (i.e., create something significantly similar in content to a book I wrote).

quasibill June 19, 2006 at 2:32 pm

Person,

And I desire that only those who pay me get to look at me (let’s just pretend I’m extremely attractive), and there are many people who want to look at me for free.

So, in your definition, my physical appearance is scarce, and I should have the right to charge you when you walk down the street near me?

You are putting the cart before the horse. Property is about the relationship between at least two entities: a person and an object. Scarcity deals with the state of the object, not the relationship itself. If the object is scarce, i.e., one person’s possessing it precludes possession by another, then you are talking about a valid object for a property relationship under an Austrian framework.

You CAN force people to pay for your work by including copy prohibitions in your contracts of sale, and enforcing them against your customers. If you don’t like that option, you can be very careful about who you sell to, and charge high prices. Just like I could hide myself from the public and charge high prices for private screenings.

Your arguments about your desire to get profit from your effort are very similar to arguments Marx used in justifying the labor theory of value.

Stephan Kinsella June 19, 2006 at 2:48 pm

Person: “Stephan_Kinsella: You seem to be invoking the scarcity principle of property that you used in your JLS article. I’ve never found that convincing. Whenever two people’s desires can’t simultaneously be satisfied, there is scarcity. If I desire that only those who pay me have a copy of my work, and you desire to have a copy of my work without paying me, there is scarcity. To say that I cannot have a natural right to e.g., instantiations of the informational content of my book because that informational content isn’t scarce would be an error. Maybe I don’t have a natural right to that. Buf if I didn’t, it wouldn’t be because the informational content isn’t scarce…. point is, there is a conflict of desires, so there is scarcity, so there is basis for establishing property rights in who may instantiate that informational content (i.e., create something significantly similar in content to a book I wrote).”

Look. Surely you would agree with me that there *are* property rights in scarce (i.e., rivalrous) resources, right?

The point is, then, that where we differ is in the rule for assigning ownership in scarce things. For example, a piece of paper, or a machine. I happen to think that title should be assigned to the person having the best connection or claim to the thing. And I think that the person who appropriates an unowned resource out of the wilderness–or receives the thing from someone who did this–has a better claim than a latecomer or someone with a merely verbal claim over it.

The reason is that the very reason I am in favor of property rights is I value and prefer a system in which conflict may be avoided and people can use resources without having to struggle violently over them all the time. I assume this goal is not incompatible with anyone who favors property rights in scarce resources. Recognizing this, I recognize that you have to award title to the person with the best claim, and that this has to be some objective link–a merely verbal decree could be made by any number of people, thus putting us back in a pre-property rights situation.

I also recognize that to own is not merely to possess–it is to be secure in possession. This means that once I own it, if someone else comes along and tries to claim it–to take it–they are stealing it. This is exacalty what it means to be a latecomer. Latecomers have to have a worse claim to property than earlier possessors, if there is to be property. So that all means of course that as between two contestants for a given scarce resource, the one who has the earlier possession of it has abetter claim than a latecomer.

Now you apparently do not agree. You apparently believe that even if A already owns a given resource, like a car or machine, i.e. one that is no longer unowned, that B can gain partial ownershiph over that thing, by virtue of B’s dreaming up a way-to-use the thing. But of course, this is not an objective link; it is not possessing it; it is not possessing an *unowned* thing (the thing is alreayd owned); and it is done by a latecomer. Despite all these problems, you are willing to assign some property rights over that thing, in this person B, even though it was already owned by A.

This is just theft, in my view–wealth redistribution. Socialists favor it too: they think B can take some of A’s rights away if B has a greataer “need” for it; or if B is the state; criminals think B can take A’s property away if the criminal is B, merely because he wants it and has the power.

Thieves come in many stripes and have all sorts of creative ways to justify stealing others’ property. This is interesting, but not particularly inspiring or persuasive.

I believe those who advocate IP are just advocating another form of theft. I wish they would just be honest about it. Saying you are “mereley in favor of” rights in an additional type of thing sounds nice, but it is really necessarily at the expense of rights in real things, which you people never want to admit. Just come out and say it: “I am an IP-socialist, and proud of it!” Then the battle lines will at least be clearer.

We advocates of property rights in real things are not ashamed to say so. Why do our opponents hide in the shadows and cloak their advocacy of wealth-transfer in flowery terms of how great and noble the innovating mind is, etc.?

Jim June 19, 2006 at 2:49 pm

Stephen – You can make a monopolistic profit off of your personal labor, just as with your ideas — you sell them on your terms. People don’t have the right to your property because they stumble on them. Unfortunately, you confuse the sorry state of IP law with support for your your concrete theory of rights.

But the ownership of ideas are an essential component of self-ownership. And ideas command a positive price even in the absence of IP law.

Looks like you’re back to the dreaded utilitarian arguments again …

Stephan Kinsella June 19, 2006 at 3:02 pm

Jim:

“Stephen – You can make a monopolistic profit off of your personal labor, just as with your ideas — you sell them on your terms. People don’t have the right to your property because they stumble on them. Unfortunately, you confuse the sorry state of IP law with support for your your concrete theory of rights.”

Actually, no, I don’t. Where do you get the idea that I believe this? However, I do believe that in this age of digital commmunications, information, and services, many more examples of injustice wrought by IP law are becoming manifest, opening the eyes of more and more people–both for utilitaraian, and non-utilitarian, reasons.

“But the ownership of ideas are an essential component of self-ownership.”

I don’t see how. Sounds like something a Galambosian would say! :)

quasibill June 19, 2006 at 3:03 pm

“Stephen – You can make a monopolistic profit off of your personal labor, just as with your ideas — you sell them on your terms.”

Oops – you misspelled his name. Oughta be careful on that one, he can get a little touchy on the subject :)

And, no, you cannot make a monoplistic profit off of your personal labor. Buyers buy your labor on their terms. And if they can do it themselves for cheaper than you’re willing to do it, they will, and your terms become irrelevant to them. Or if they can find another person, etc.

Monopoly requires coercion.

Michael June 19, 2006 at 3:09 pm

I just cannot understand how otherwise reasonable and rational people can believe that individuals should be able to own (and therefore exclude others from) patterns of language, patterns of sound, or patterns of light.

Own an idea? I can’t wait until the government gets their hands on a way to stop people from thinking thoughts that belong to other people. I’m joining that enforcement agency when it springs up.

Jim June 19, 2006 at 4:18 pm

Quasibill – you have a monopoly on your own labor, not labor in general. That’s an essential consequence of self-ownership.

Michael – Straw man. Individuals own their own ideas. Those that have the same ideas both own them.

Stephan – How we go from “IP law has problems” to “rights are only concrete” is still impossible. Besides, human action stems from human thought, and property ownership cannot come from anything but human action AND human thought. The idea that only concrete ownership exists is foolish and nonsense. Example: I trade title to land. Is the title concrete, or is it an agreed system of abstract change of ownership? Do I have to take physical possession and defend the land? And what of rental agreements, etc. etc.

Michael June 19, 2006 at 4:53 pm

Jim, So your position is that all individuals can own the same ideas? Then why should any one of them be allowed to exclude any of the others from an idea by using the coercive force of government?

Stephan Kinsella June 19, 2006 at 4:59 pm

“Stephan – How we go from “IP law has problems” to “rights are only concrete” is still impossible.”

I am sorry, but as I noted to you privately, I am not sure whaat you mean by this. I think you must mean by “rightsare only concrete” that rights only apply to material objects.

I have set forth in detail a number of reasons that IP law is not and cannot be justified. To help open people’s eyes to the possibility that this is correct–because some of them are so used to the notion–I show them obvious cases of injustice. They tend to agree, and then they say, well, that’s not thetype of IP I want.When I ask them what type they do want, they don’t really konw.

“Besides, human action stems from human thought, and property ownership cannot come from anything but human action AND human thought. The idea that only concrete ownership exists is foolish and nonsense.”

It sounds, frankly, crankish to talk about “concrete ownership.” Is this some common law court term? You can assert all you want, but you need an argument.

The bottom line is that libertarians believe that for a *given* thing in dispute–i.e., a disputable thing–i.e., a scarce (rivalrous) resource–there should be an owner assigned; the owner should be the one with the best claim to or connection with the thing; and that the homesteader (first possessor/user) of the thing, or someone he sells it to, has a better claim to it (by virtue of these connections) than latecomers.

I fail to see how you can square any IP law with the above principles. Therefore, to favor IP law you have to reject at least one of these principles. CAn you tell me which you reject? A straight answer would be nice.

“Example: I trade title to land. Is the title concrete, or is it an agreed system of abstract change of ownership? Do I have to take physical possession and defend the land?”

No, of course. This is dangerously close to semantical sophistry. As I have explained in my article on Contract theory (http://www.StephanKinsella.com/publications), to sell something means for the owner to basically abandon the thing in favor of another person. What it means is the owner makes a contract with another person: say A sells his club to B. Before the sale, A had the best claim to it because he homesteaded it. This is always a ceteris paribus thing. B could not get the club because he would be a latecomer with respect to A–ceteris paribus.

But now, by virtue of the sale, B *does* have a better claim to it than A. As to the rest of the world: any third party C is still a latecomer with respect to A and B; B has a better claim to it than C by virtue of the consensual transfer from A, who had first ownership of it.

None of this is hard to understand or rocket science. None of it requires us to devolve into spooky meta-meta-rights issues that only pointy-headed philosophers natter about. Rights are a practical institution, after all.

If A sells his club to B, that is, he abandons his ownership of it in favor of B, could we make up a concept of “title” and label it that way, for conceptual convenience? Could we say A trasnferred his title to B–sure. But thisi s just shorthanad for what really went on. You could navel-gaze all day about the ontological status of the “title”–do we own title to things? Do we own our ownership of the title? And so on. I find it all a distraction, irrelevant. It does not justify anything.

It is just a distraction from what is really going on: fancy or euphemistic terms are used to disguise the fact that IP advocates want to give control over owners’ assets to third parties who did not appropriate or buy these assets.

Stephan Kinsella June 19, 2006 at 5:12 pm

Jim, in email you wrote:

“What’s the justification for “mixing labor with the land” and thus converting property in nature to one’s ownership? So by what theory do people “own” land except as an extension of their abstract rights?

“Unless you’ve a novel synthesis, it’s concretes-only or not. Don’t see any consistency to property rights traveling only in concrete things.”

I try to avoid speaking in imprecise, non-rigorous, touchy-feely metaphors, like “rights traveling in”. Just too prone to confusion and mis-use.

I have written extensively on these topics, if you are unaware– http://www.StephanKinsella.com/publications. See e.g. my estoppel arguments; “new rationalist directions”; contract theory; against intellectual property; defending argumentation ethics; etc.

Even your quesiton is worded funny. I don’t exactly maintain the views you seem to imply I do. I simply say that as between any two or more people who contest or claim ownership of a given scarce resource, that if you are in favor of peace, cooperation, harmony, and avoidance of violence, then you would have to favor assigning the right to control–ownership of–the thing to the individual who has the best claim to it; and this claim naturally has to be some universally recognizable type of objective link with the thing. A moment’s reflection shows that as between the claimants, the one who possessed it first of course has a better claim–a better, more objective, more natural link–to the thing–so he should be assigned ownership. To deny this is to not be in favor of a system that permits peace and cooperation, harmony and efficient use of resources. Not everyone is in favor of such a system–socialists, and private criminals, for example. Libertarians, however, claim to. If you are not a libertarian, that is your business.

jim June 19, 2006 at 5:42 pm

Michael – how a person gets the idea is the issue – if the idea is taken without consent then it is theft.

Stephan – Not defending IP law. Pointing out you improperly claim there are no incorporeal property rights and you do so by citing problems in IP law. But one doesn’t follow from the other.

Self-ownership includes the right to release one’s ideas under terms agreeable to the seller and the buyer. That doesn’t match “anyone that finds a book can copy it irrespective of the author’s wishes”.

You further assume that if the law was the way you promote, it would be much better — a position that is severely undersupported. Your position would create a different set of problems. In fact, I bet the problems would be severe enough to warrant a free-market solution: limited circulation – which is likely (ironically) a better state of affairs, but not one that I’ve heard you advocate.

IP is bad, but you’re not going to make it better arguing for zero incorporeal rights. You should also nix the straw-man tactic. I sure don’t support excluding other people from profiting from their ideas, as long as they are not stolen.

Stephan Kinsella June 19, 2006 at 5:49 pm

Jizzim:

“Michael – how a person gets the idea is the issue – if the idea is taken without consent then it is theft.”

If I write a new novel, “Kinsella’s Further Adventures of Han Solo,” did I “take” the idea? If so, from whom? When didI takae it? When I heard the story of Star Wars, or when I wrote teh book? Or when I published it?

“Self-ownership includes the right to release one’s ideas under terms agreeable to the seller and the buyer. That doesn’t match “anyone that finds a book can copy it irrespective of the author’s wishes”.”

Sure. The seller and buyer have an agrement but not the third party who finds it. Easy. Next!

“You further assume that if the law was the way you promote, it would be much better — a position that is severely undersupported. Your position would create a different set of problems. In fact, I bet the problems would be severe enough to warrant a free-market solution: limited circulation – which is likely (ironically) a better state of affairs, but not one that I’ve heard you advocate.”

Ummm… do you realize that not all of us are utilitarians..??

“IP is bad, but you’re not going to make it better arguing for zero incorporeal rights.”

Suppose this statement is true. How does it show that IP is justified?

” You should also nix the straw-man tactic. I sure don’t support excluding other people from profiting from their ideas, as long as they are not stolen.”

Whew, that’s a relief. Unless, of cousre, by “stolen,” you mean to endorse a system where someone gets to take partial ownership of others’ property merely by virtue of thinking of a way of manipulating it. Surely you don’t do that, do you? No sane person would, right?

Stephan Kinsella June 19, 2006 at 6:04 pm

Jizzim wrote:

“I’d rather be right than restrict the range. The idea exchange can be worked out over time.

“First possessor has problems. Adam (if still alive) wouldn’t own the earth. Rothbard’s words “For we have seen that title to an unowned resource (such as land) comes properly only from the expenditure of labor to transform that resource into use. Therefore, if any land has never been so transformed, no one can legitimately claim its ownership.”

“Note that labor is incorporeal – it has concrete effects but the “mixing” is clearly a transformation by the act of a will; and the will is not concrete. The nature of self-ownership is not just that one owns their own body, but also that one owns their own will and has a right to it.”

I mean the same by “first possessor”that you do by labor-mixing.

The point is to appropriate the resource in a sufficiently public/visible way so as to emborder it.

I have written on this elsewhere: Defending Argumentation Ethics; and the posts linked here.

Jim June 19, 2006 at 6:13 pm

Stephan — Addressing me as “Jizzim” is likely way out of line. Phonetically, that’s slang for sperm. I’m going to assume you didn’t intend that.

As far as the Han Solo adventure book – you don’t need to get your idea from somewhere any more than you need to get your labor from somewhere – but you do have the right to sell both – and you have the right to exclude third parties if you so wish. You can also exclude third parties who happen to “find” your property. It’s yours after all.

If they acquire their own property (or ideas) then it’s theirs.

Again, not justifying current IP laws. I’m saying your attack on IP doesn’t make your case. It will continue to fail irrespective of the numerous straw men or of your legal background. The two do not follow.

Stephan Kinsella June 19, 2006 at 6:18 pm

Jim–of course not. It’s just a fun thing I do a lot lately w/ my 3 year old–he’ll say, “Dizzaddy” and “Mizzommy,” etc. Yours is pronounced Juh-ZIM!

“As far as the Han Solo adventure book – you don’t need to get your idea from somewhere any more than you need to get your labor from somewhere – but you do have the right to sell both – and you have the right to exclude third parties if you so wish. You can also exclude third parties who happen to “find” your property. It’s yours after all.”

So I take it you would object to the “exclusive right to make derivative works” as part of the creator’s copyright bundle? What else would you carve out of IP law when inconveniently pointed out to you?

What version of copyright would you favor, exactly? I have to konw what to bash.

Jim June 19, 2006 at 6:38 pm

Focus like a lazer, Stephan: first, your case remains unsupported. Incorporeal rights are the essential presupposition to corporeal rights.

“Mixing labor with the land” demonstrates the first point. Labor is the expenditure of physical or mental effort from an act of will — which is incorporeal. Self-ownership necessarily demands that the products of labor belong to the laborer to be sold or kept as desired. The will, labor, self-ownership, and concrete property rights stand as a unit, not as disaggregated concepts.

Second, you are utilitarian. You point to the problems of current IP law and propose a solution – which of course would be pointless without believing your assertions would make things a happier state of affairs for you.

Stephan Kinsella June 19, 2006 at 6:57 pm

Juh-zim:

“Incorporeal rights are the essential presupposition to corporeal rights.”

How, again?

“”Mixing labor with the land” demonstrates the first point. Labor is the expenditure of physical or mental effort from an act of will — which is incorporeal.”

So?

“Self-ownership necessarily demands that the products of labor belong to the laborer to be sold or kept as desired. The will, labor, self-ownership, and concrete property rights stand as a unit, not as disaggregated concepts.”

Okay. whatever.

“Second, you are utilitarian. You point to the problems of current IP law and propose a solution ”

Pointing to injustice is utilitarian. Ummm yeah.

Person June 19, 2006 at 10:47 pm

quasibill: Whoa whoa whoa whoa whoa! Step back a second! I didn’t say that my desire for something to be used a certain way implies (by itself) that I have a right to restrict it to such. I certainly didn’t claim my efforts entitle me to profit! I was just refuting Kinsella’s claim (subargument of his JLS IP paper) that there is no relevant scarcity regarding disputes over intellectual work. In the section entitled “Property and scarcity” he argues that property rights are necessary to resolve conflicts over the use of scarce resrouces, and since information isn’t scarce, property rights can not be applied.

That specific argument (again, stepping away from the implications of the argument for a second) is in error. To the extent that I want objects to be used a certain way, there is conflict. There is scarcity. Whether your not you *resolve* that scarcity against the claimant of intellectual property is irrelevant; the fact is, there is scarcity. That was all I was establishing in that post.

Stephan_Kinsella: Your reply argued about your specific method of assigning property rights. It did not address my claim that intellectual works do have relevant scarcities that give rise to conflict and need for assignment of property rights. Do you agree that the part of your paper denying the existence of scarcity in “intellectual property” was in error?

Stephan Kinsella June 19, 2006 at 11:08 pm

P-dog:

“Stephan_Kinsella: Your reply argued about your specific method of assigning property rights. It did not address my claim that intellectual works do have relevant scarcities that give rise to conflict and need for assignment of property rights. Do you agree that the part of your paper denying the existence of scarcity in “intellectual property” was in error?”

Of course I deny it. As I have many times. The concept of “scarcity” equates to the economist’s concept “rivalrous”. Are you familiar with it? Do you realize that intellectual works–patterns, designs, recipes–are classic cases of non-rivalrous works?

I didn’t address your claim because you are evading the point that however you word it, what you are in favor of is restricting rights in already-owned things and giving rights to those who had nothing to do with the appropriation of these things.

It’s tiresome that you IP-socialists won’t lay your cards on the table. WE freedom advocates are not embarrassed to admit what we are for. Why are you? Why hide it in the dank, dark, dungeons of … whatever it is.

Albert Esplugas June 20, 2006 at 3:34 am

A thing is scarce when there is a conflict over its use, not when there is a conflict over the “desired result” of its use.

RonMck June 20, 2006 at 5:06 am

While my ideas remain in my head they are my property. If I do not want them stolen, I should keep them there.

Once I try to persuade other people to have the same ideas as me by publishing them in a book or a blog, then they cease to be my property. If someone takes them I should not complain, because that is what I wanted to happen.

Paul D June 20, 2006 at 6:31 am

‘Just come out and say it: “I am an IP-socialist, and proud of it!” Then the battle lines will at least be clearer.’

Insightful comment by Kinsella, and it would make the argument a whole lot clearer. After all, the idea that people who think of stuff “first” are owed arbitrary amounts of money by the public is a pretty good analog to the socialist ideal that the worker is “owed” some amount regardless of the actual market value of his work.

Why don’t proponents admit IP is a kind of socialism? Call a spade a spade so we can understand each others’ positions. IP is simply punishing people for their ability to be productive with pre-existing infinitely copyable (non-scarce) ideas. I’m reminded of the quote I read last night in Atlas Shrugged:

“You need the products of a man’s ability—yet you proclaim that productive ability is a selfish evil and you turn the degree of a man’s productiveness into the measure of his loss.”

IP abusers are unable to be productive with their own ideas, so they find they must punish whoever succeeds with those ideas and recover the “loss”.

Paul D June 20, 2006 at 6:33 am

Albert’s comment puts it in a nutshell!

Stephan Kinsella June 20, 2006 at 7:18 am

Paul: This is a beautiful (and innovative, as far as I know) way to turn the tables on the IP socialists, who always try to take the moral high ground by extolling the “innovator” or “creator”–you are right, ideas don’t do anything by themselves; it takes productive, acting man, using his own property, to implement ideas. Why he should be penalized by someone with some arbitrarily “better” connection to the ideas (as decreed by the state) is beyond me.

Albert: Fantastic formulation about conflict. THis mirrors Hoppe’s explanation that you can’t have a property right in value of resources, but only in the resources themselves–this is found in A Theory of Socialism and Capitalism, which is on his site http://www.HansHoppe.com.

Ronmck: good point, except I would not agree that pre-publication, ideas “in your head” are your property; I think ideas are never property.

Person June 20, 2006 at 8:09 am

Stephan_Kinsella:

Of course I deny [being in error in calling intellectual works non-scarce]. As I have many times. The concept of “scarcity” equates to the economist’s concept “rivalrous”. Are you familiar with it? Do you realize that intellectual works–patterns, designs, recipes–are classic cases of non-rivalrous works?

I’m familiar with the concept of a non-rivalrous good. And the point I was making (i.e., the one you missed) was that you’re defining it too narrowly. The information itself is non-scarce. Satisfaction of the desires about how the information is used is scarce. Both my desire to restrict the use of the informational content cannot be satisfied simultaneously with your desire to use it freely.

Let me put it another way. Say you and I have a contract. I agree not to perform X, and that if I do perform X, the title to the first $Y of my money transfers to you. (That even satisfies the title-transfer theory of contract you use!) Then let’s say I perform X, but refuse to transfer title. Would it be a valid defense that “performing X isn’t scarce — my performing X doesn’t take away from you performing X — so you have no right to restrict me from performing X with MY OWN PROPERTY” ? If no, you agree there is a conflict (scarcity) even though one aspect of the scenario (performing X) is non-scarce.

Peter June 20, 2006 at 10:02 am

Satisfaction of the desires about how the information is used is scarce

How is that any different from the guy who runs a grocery store in some neighborhood complaining that your new grocery store is taking his scarce customers away?

Say you and I have a contract.

The “defense” you posit doesn’t even make sense. The contract didn’t say you had to avoid performing X because Stephan wanted to perform X, etc. It has nothing to do with scarcity.

Anyway, it seems to me that your “contract” is just a promise — having a reputation for breaking promises might discourage people from having dealings with you, but it doesn’t give rise to any right to use force against you. There is no title transfer.

Person June 20, 2006 at 10:20 am

Peter:

How is that any different from the guy who runs a grocery store in some neighborhood complaining that your new grocery store is taking his scarce customers away?

It’s not. He doesn’t like my grocery store. I do. Our desires conflict. The property rights (that you and I advocate) specify that opening the grocery store *is* within my rights — my desire to have the grocery store takes precedence over his desire that I not have one. Remeber why I made that statement? I was pointing out why property rights are still relevant in the context of supposedly “non-scarce” information. Yeah, try to read my statements in context. Saves me from having to explain something over and over and over and over and over.

The “defense” you posit doesn’t even make sense.

Just as it doesn’t make sense to say that property rights in intellectual works can’t apply because “intellectual works aren’t scarce”. See what I was getting at?

The contract didn’t say you had to avoid performing X because Stephan wanted to perform X, etc.

Right. But Stephan did make the contract with me (in this hypothetical) because he *desired* that my range of actions excluded a type of behavior. That’s why he made the contract. That exclusion had some value to him. In the same way, many kinds of desires conflict, which is why we need property rights, which is why the non-scarcity of information is irrelevant.

It has nothing to do with scarcity.

Except that I can’t both satsify my desire to break the contract while keeping his money, and not break the contract at the same time.

Anyway, it seems to me that your “contract” is just a promise — having a reputation for breaking promises might discourage people from having dealings with you, but it doesn’t give rise to any right to use force against you. There is no title transfer.

First, yes it is a title transfer. I am transferring the first $Y of my money, conditional on later circumstances. If I “break the contract”, the title to that money transfers to Stephan, at which point he is justified in taking it, as it belongs to him. I recommend you read Stephan’s elaboration of title transfer in contracts here. Then maybe your analysis might have relevance rather than requiring me to repeat myself.

Stephan Kinsella June 20, 2006 at 10:33 am

Person:

>It’s not. He doesn’t like my grocery store. I do. Our desires conflict.< Desires can't conflict. You can desire one thing while I can desire another; or, we can both desire the same thing, at the same time. Waht's the conflict?

Conflict only arises when there is action between two or more people attempting to assert control over a rivalrous resource. When this happens, the question arises--among civilized people--which one of them should get it, and which one should back off?

To answer this question, we have to come up with some principles. The libertarian stance is that for a *given* scarce resource, as between multiple claimants, the one who possessed it first should be its owner (ceteris paribus).

Non-libertarians are all basically socialist since they do not recognize this rule for assigning title. This includes those who favor IP.

>Just as it doesn’t make sense to say that property rights in intellectual works can’t apply because “intellectual works aren’t scarce”. See what I was getting at?< property rights don't "apply" to intellectual works for the simple reason that property rights are already all exhausted by assigning ownership to scarce resources; to come in and add rights to intellectual works is a way of shifting around the pre-existing ownership assignment.

>Right. But Stephan did make the contract with me (in this hypothetical) because he *desired* that my range of actions excluded a type of behavior. That’s why he made the contract.< The purpose or reason I make a contract is not strictly relevant to what about it is enforceable or what rights there are or what the contract does.

>That exclusion had some value to him.< So? All actions employ means to achieve an end. THat does not mean that the "end" is always an ownable thing. I might visit Disney to have memories of it--my end is to acquire memories. Can you own a memory? I might smell a flower to enjoy the sensation of smelling its fragrance. Is my enjoyment--the end of my action--now an ownable thing, just because it was the goal of my action? Of course not. Absurd.

> In the same way, many kinds of desires conflict,
which is why we need property rights, which is why the non-scarcity of information is irrelevant.<

Desires cannot conflict. They are just descriptive states about human thoughts and actions and goals.

Person June 20, 2006 at 1:50 pm

Stephan_Kinsella:

Desires can’t conflict. You can desire one thing while I can desire another; or, we can both desire the same thing, at the same time. Waht’s the conflict?

I don’t know if you’re trying to be ridiculous. When (normal, well-adjusted) people talk about “desires coming into conflict”, everyone knows what that means. I means they can’t simultaneously be satisfied, i.e., exactly what I said above. At the end of your post, you reply again:

Desires cannot conflict. They are just descriptive states about human thoughts and actions and goals.

Completely as if you didn’t remember making the exact same point above. It’s almost as if your attention span does not last a whole post, let alone to my previous posts. I don’t bring this up to slight you; if I’m going to have to repeatedly remind you of what I said before, and correct your out-of-context quotations and replies, I might as well just not bother; nothing productive will happen. So, please try to improve in this respect.

You also said:

Conflict only arises when there is action between two or more people attempting to assert control over a rivalrous resource. When this happens, the question arises–among civilized people–which one of them should get it, and which one should back off?

To answer this question, we have to come up with some principles. The libertarian stance is that for a *given* scarce resource, as between multiple claimants, the one who possessed it first should be its owner (ceteris paribus).

This completely dodges my point. Yes, once a conflict has been identified, you need to draw from principles to assign property rights. But your position in “Against Intellectual Property” alleges that the good claimed through IP isn’t scarce! Quoting p. 22:

property rights can apply only to scarce resources. The problem with IP rights is that the ideal objects protected
by IP rights are not scarce;

This is false. The referent of my desire that you not perform X (which could be a subset of my claim to an IP right) is indeed scarce. Its satisfaction comes at a cost. Your claim — that specific claim — is therefore in error. This issue is independent of the merit of your proposed solution for how to handle these conflicting claims (first-use first own) and by extension, independent of whether I am a communist. Do you agree that on this specific claim — that the good desired by the IP claimer is non-scarce — is in error? For you to reply in terms of how good your method of assigning rights is, is to show you don’t understand the question.

Fred Mann June 20, 2006 at 2:23 pm

Person writes,
“Say you and I have a contract. I agree not to perform X, and that if I do perform X, the title to the first $Y of my money transfers to you.”
This is NOT a complete contract!!! A contract follows the form: “I give you X , and you give me Y” . Your “contract” only contains half of this equation. Referring to your “contract” above, if I perform X, then I pay you. But what happens if I **DON’T** perform X? Do you pay me for not performing X? If not, why would any reasonable person enter into this contract? If I agree not to do something with my property, I would expect to be compensated. An ACTUAL contract would look something like this:
“If you agree not to perform X, I will give you $Y. If you DO perform X, then you must give me $Z”.
You also write,

“Whenever two people’s desires can’t simultaneously be satisfied, there is scarcity. If I desire that only those who pay me have a copy of my work, and you desire to have a copy of my work without paying me, there is scarcity.”

This statement illustrates the same problem. Note that your view provides no way to tell who should be compensated (a key feature of owning and transferring property). In your example, we have two conflicting desires, yet somehow only one of them is worthy of compensation. Yet you provide no justification for this. Of course, if you did, it would be question begging — i.e. you would say that the holder of IP is to be compensated. But if there was actual scarcity here, the person who desired to make a copy of your work using his own physical resources would need to be compensated for not doing so.
Conflict is a necessary but not sufficient justification for property. You and I could disagree on whether or not the universe is infinite. But there is no scarcity here.
By the way, I answered your “coup de grace(s)” in the “Thoughts on Intellectual Property” thread, if you’d like to respond ( http://blog.mises.org/mt/comments?entry_id=5098 ).

Person June 20, 2006 at 2:55 pm

Fred_Mann:

This is NOT a complete contract!!!

So you say. If you look closely though, and read my full posts (i.e., if you try something new), you’ll see that I was framing that in the context of Kinsella’s own position on contracts. That conception (that of title transfer, elaborated in the essay I linked but you didn’t bother to read in order to be informed on this matter) does not require “I give you X, you give me Y.” It can just be “I give you X.” In the essay you didn’t read, you’ll see that giving something as a gift is a kind of contract. But if it makes you feel better, sure, go ahead and posit that he paid me to enter the contract. He values me agreeing to that contract over the money he paid me. He required the “pay if I break” clause so as to “soften the blow” in the case that I break it. Of course, such a provision is totally irrelevant to the discussion, which a moment of reflection would have revealed.

Note that your view provides no way to tell who should be compensated (a key feature of owning and transferring property).

DING DING DING DING DING! Give this man a medal! Brilliant! I… I didn’t say how to resolve the conflict of desire! Golly, gee, do you think that might have to do with how that WAS TOTALLY IRRELEVANT to the point I was making? All I was trying to establish is that intellectual property has scarcity. Of course I didn’t explain how to resolve the situation, genius. I was merely objecting to that one point in Kinsella’s work. Great job on bringing up the question begging bit: so let’s see, I don’t discuss topic X, so, if I were discussing it, which I’m not, I haven’t provided any arguments on topic X, so to assert a conclusion on the topic X, which I’m not, I would be begging the question.

Where do they even find people like you?

But if there was actual scarcity here, the person who desired to make a copy of your work using his own physical resources would need to be compensated for not doing so.

There is actual scarcity there, because their desires cannot simultaneously be satsifed.

By the way, I answered your “coup de grace(s)” in the “Thoughts on Intellectual Property” thread, if you’d like to respond

You know, I don’t mind if you don’t know the proper plural of coup de grace (coups de grace — blows of mercy), but if I give it for you, please try to follow my lead. I haven’t replied because my post frequency is limited, but as long as you’re here, in response to your question about my non-consequentialist objection’s to Kinsella’s work, see the point I have been making here about the scarcity in IP. Then again, you should have done that before speaking out of ignorance, right? Ist Englisch nicht deine Muttersprache? Sprichst du lieber auf Deutsch?

Fred Mann June 20, 2006 at 11:46 pm

Person,

All of your examples and descriptions follow the formula “I want X and you want not X, therefore there is scarcity in the ability to simultaneously satisfy both desires.” For example, you say, “Satisfaction of the desires about how the information is used *is* scarce. Both my desire to restrict the use of the informational content cannot be satisfied simultaneously with your desire to use it freely.”

In these examples, you are NOT describing “scarcity”, at least in the economic sense of the word. You are describing the null set!! The ability to simultaneously satisy two mutually-exclusive desires is NONEXISTANT (and cannot ever exist — i.e. we can never have both A and not A). But I think that you would concede that property rights are concerned with things that actually exist!!! Something that can’t exist can’t be owned.

Also note that your examples have nothing to do SPECIFICALLY with IP, and therefore do not serve, in any way, as a defense of IP. Rather, you are simply describing a condition that exists in conjunction with desires concerning intellectual AND physical property. For example, “I want your ’57 Chevy for free, and you want me to pay you for it.” This is the same thing, except now we are talking about a physically-existing thing. In fact, the condition you describe can exist without even involving a second party (a necessary condition for property rights theory). For example “I want to have my cake and eat it too. Therefore, there is scarcity.” Note again that the “scarcity” here (using your definition) refers not to the cake, but to the ability to *have and eat* the cake. Your attempt to defend IP by falsely conflating these two referents is ineffective.

I don’t have the time right now to get into your “gift” comment and how it relates to the real world. Maybe someone else would like to take the helm?

Person also writes:

“Where do they even find people like you?”

“Of course I didn’t explain how to resolve the situation, genius.”

“Then again, you should have done that before speaking out of ignorance, right? Ist Englisch nicht deine Muttersprache? Sprichst du lieber auf Deutsch?”

Whatever makes you feel good about yourself, Person.

By the way, when I referred you to the other thread (“Thoughts on Intellectual Property …”), I was obviously looking for a response to the objections I raised to your “consequentialst” views on IP, not the non-consequentialist views being discussed above … “which a moment of reflection would have revealed.”

Albert Esplugas June 21, 2006 at 5:53 am

Person, scarcity is about conflicts over the use of something, not over de “desired results” of this use. To say that an idea is scarce because I want to use it and at the time I want that nobody else uses it too is nonsense. This is not a conflict over the use of the idea, this is the expression of two desires (not uses) mutually excluding. There is a “conflict” between these desires, but it has nothing to do with the notion of sacarcity/non-rivalrous. Ideas are not scarce because my use of one idea doesn’t deprive you of the same idea. May be I deprive you of a profit opportunity I’ve seized, but you can use the idea anyhow emboding it in whatever material you have in whatever form you desire. If I create a new carburetor with resources of my own and then I make a bundle selleing it, you still can use your resources to make exactly the same carburetor. There is no conflict at all about the use of the idea (scarcity). You have lost the profit opportunity (wich only one can seize), your desired result, but not the hability to use the idea in the same way.

Consider this too: Imagine you have an idea about a building just near Niagara Falls. But there is only one Niagara Falls in the world, if someone else builds in the same place exactly the same building you won’t be able to materialize your idea. Likewise, if you build the building the other guy won’t be able to build it. ¿Is there a conflict over the use of the idea of this building? No, there is a conflict over the piece of land near Niagara Falls. The idea is not scarce (if there would be another Niagara Falls both would have been able to materialize the idea), it’s the piece of land the resource that is scarce. A property title over “the piece of land” it’s necessary, not over the idea.

Person June 21, 2006 at 8:29 am

Fred_Mann: I’m tired of explaining this over and over. I’m not trying to justify a pro- or anti-IP position on this thread! How many times must I explain that to you? I’m only trying to refute Kinsella’s argument from scarcity.

In fact, the condition you describe can exist without even involving a second party (a necessary condition for property rights theory). For example “I want to have my cake and eat it too. Therefore, there is scarcity.” Note again that the “scarcity” here (using your definition) refers not to the cake, but to the ability to *have and eat* the cake. Your attempt to defend IP by falsely conflating these two referents is ineffective.

I actually don’t have a problem with this kind of scarcity. If you can’t “keep a cake indefinitely” and also “eat it now”, one option comes at the expense of the other. So the cake’s scarce. Your point?

I don’t have the time right now to get into your “gift” comment and how it relates to the real world. Maybe someone else would like to take the helm?

What else is there? I was explaining to Kinsella a situation involving a contract. Because KINSELLA was the audience (rather than, e.g., ein Deutscher der Englisch nicht kann), I was using his theory of contract, and even linked to it. Under his theory of contract, reciprocity is not a requirement. So, what else do you have to add?

Whatever makes you feel good about yourself, Person.

In each of those cases, I was explaining to you something you should have already known. It was extremely frustrating — and I do want to know if English isn’t your Muttersprache.

By the way, when I referred you to the other thread (“Thoughts on Intellectual Property …”), I was obviously looking for a response to the objections I raised to your “consequentialst” views on IP, not the non-consequentialist views being discussed above … “which a moment of reflection would have revealed.”

On that thread, you were asking about my consequentialist *and* non-consequentialist concerns. Because you were *here*, I pointed you to an answer for one of those *here*. Verstanden?

Albert_Esplugas:

Person, scarcity is about conflicts over the use of something, not over de “desired results” of this use. To say that an idea is scarce because I want to use it and at the time I want that nobody else uses it too is nonsense. This is not a conflict over the use of the idea, this is the expression of two desires (not uses) mutually excluding.

Actually, that’s exactly my point. To say there’s no scarcity because *the idea itself* is non-scarce is irrelevant. In the (extremely important) sense that two people’s desires cannot be simultaneously satisfied in a circumstance (i.e., the focus of all economics and political philosophy) there is scarcity. Similarly:

The idea is not scarce (if there would be another Niagara Falls both would have been able to materialize the idea), it’s the piece of land the resource that is scarce.

My point is, this distinction is arbitrary. One person’s claim of IP conflict’s with anothers claim to use the property in a certain manner. They *both* agree that the (legal) property owner may many any number of uses of the property. They *do not agree* about whether one specific use (involving the idea) is acceptable. This is the same kind of scarcity problem that arises regarding “regular” property. The focus on a physical goods total- or non-ownership is too narrow. Scarcity occurs across all conflicting desires, not just over total use or non-use of a physical good.

quasibill June 21, 2006 at 12:46 pm

“Scarcity occurs across all conflicting desires, not just over total use or non-use of a physical good.”

Which once again leaves us with, by your definition of scarcity, my desire to charge you for looking at me. Since (in that world, at least) I spend a lot of time working out, money on cosmetic surgery, am careful about what I eat, and lots of money on cosmetics and haircuts, etc., why shouldn’t my visage become property under your definition of scarce? My desire conflicts with your desire. My desire is backed by my labor, and creates a product that people will pay for if I am given the power to enforce my desire. Clearly, people will in general make themselves more attractive in this environment. And in the absence of being able to force you to pay according to my desires, attractiveness will be underproduced, as it won’t be compensated enough.

Again, ‘scarce’ is a descriptor of the object, not of a relationship to the object, and definitely not of the subjective desire of a person. Scarce means that possession of the object by one person absolutely negates possession of the object by another in the same time frame. Expanding the definition of scarce in the way that you do allows for all sorts of silliness, as my example shows.

Person June 21, 2006 at 1:11 pm

quasibill: I already explained the difference between “there exists scarcity” and “the scarcity should be resolve in [so-and-so's] favor”. We can agree that there is scarcity in “looking-at-Person use rights” without agreeing “Person’s desire not to be looked at takes precedence over quasibill’s desire to look at him”. If you don’t understand this distinction, please, just say so rather than piling on accusations based on things I didn’t say.

Again, ‘scarce’ is a descriptor of the object, not of a relationship to the object, and definitely not of the subjective desire of a person. Scarce means that possession of the object by one person absolutely negates possession of the object by another in the same time frame.

No, this is an arbitrary distinction. People may not conflict over the total ownership of a resource. They may agree that e.g. Person should be allowed to perform Irish jigs, but then disagree over whether Person has the right to do a salsa dance. To claim that there only exists conflict — and thus necessity for property rights — over claims to 100% ownership of a resource is the true absurdity.

Fred Mann June 21, 2006 at 5:52 pm

Person,
By your definition of “scarcity”, anything and everything can be called scarce, even if it is in infinite supply. For you, something is “scarce” when two conflicting desires over its use exist. As noted (and agreed to by you), this condition can exist without the introduction of a second party. If I say, “I want to have THIS cake and eat it too,” no amount of identical cakes can alleviate this scarcity if I decide that I am talking about a specific cake at a specific time in a specific location, etc.. Of course, this means that anything and everything can be willed into the condition of scarcity. In fact,I think I’ll do that right now:

I hereby wish that everything that exists, ever has existed, or ever will exist, be both eaten by me, and stored in a refrigerator simultaneously. It is written, so it shall be done.

Okay, now everything actually IS scarce (by your definition). There is nothing you can EVER do to even change the degree of scarcity that I have willed into existence.
Is this what “scarcity” really means? Certainly no dictionary goes into this level of detail. However, since the adjective “scarce” now applies to every conceivable thing in the universe to the same degree, it no longer has any descriptive power. It is a useless word.
This is similar to arguing that “naturally-occurring” means everything and anything (as opposed to something not created by Man). One can say that Man is a part of nature, and therefore anything created by Man is “naturally occurring”. That may be technically accurate, but it removes the descriptive power, and hence the usability of the word (or phrase).

Here’s something that I would like to see. Instead of posting in thread after thread telling people what you’re NOT talking about, and how stupid they are, why don’t you write up a systematic defense of IP (which you *seem* to defend in the other thread) and post it here on this blog. You may want to start a new blog. You can submit one under “comment rules” on the main blog page, I think.
Remember to be specific and avoid the use of the word “scarce” (AND its synonyms) as you define it above. Remember that I just made everything equally “scarce”. You may want to use words/phrases like “finite”, “infinite”, “as measued by market prices”, etc..
Verstehen Sie?

Person June 21, 2006 at 7:28 pm

Fred_Mann:

I agree: my desires could ultimately make all of the universe scarce. And they do. So what? My point all along is that Kinsella’s argument about IP not being scarce is operationally meaningless. It totally misses the point of assigning property rights and fails on its own terms. He’s trying to say, in essence “Hahah! You can still use your ideas, even if I use them. They’re non-rivalrous! You have no standing!” To which I reply, “But I don’t care if I can still use them. I don’t want *you* to use them.” Then, our interests collide, and his argument from scarcity collapes. We have desires that conflict, just as surely as we were fighting over a rock.

So you want me to outline my full position on IP? Some day, sure. But I’m only posting in this specific thread to voice my objections to Kinsella’s argument from scarcity. Just that, itty-bitty specific point. Not about whether IP is just or not; just that, *if* it were unjust, it wouldn’t be because of that (flawed) reason. I’m not claiming that every desire automatically entitles you to the satisfaction of that desire (as you repeatedly assumed).

When I outline my full position on IP, wirst du der Erste zu wissen. Until then, you’ll have to rely on reading what I actually post.

quasibill June 21, 2006 at 9:20 pm

“We can agree that there is scarcity in “looking-at-Person use rights” without agreeing “Person’s desire not to be looked at takes precedence over quasibill’s desire to look at him”. If you don’t understand this distinction, please, just say so rather than piling on accusations based on things I didn’t say.

Oh, I understand. I understand that you have dodged, yet again, the question – would you support my property right as outlined? If not, on what principled reason? Or is it just all relative – as long as someone’s desires conflict, one of the two MUST have a property right, and it really doesn’t matter which one has it?

I really see no difference between my suggestion for property rights in my visage and your suggestion for rights in ideas, on principled grounds. If you’re merely arguing that it all depends, that’s fine, it’s logically consistent. But that doesn’t seem to be what you’re arguing.

“It totally misses the point of assigning property rights and fails on its own terms.”

On this, you are absolutely wrong. His position is consistent on its own terms. Your desires are irrelevant in his position. Property rights come BEFORE desires.

For your position to not fail on its own terms, yo u have to accpet that property rights in visages are within your position. If not, you’ll have to tell me how our conflicting desires are different from the conflicting desires that you posit create IP rights.

Person June 21, 2006 at 9:35 pm

I already explained the difference between “there exists scarcity” and “the scarcity should be resolve in [so-and-so's] favor”. We can agree that there is scarcity in “looking-at-Person use rights” without agreeing “Person’s desire not to be looked at takes precedence over quasibill’s desire to look at him”. If you don’t understand this distinction, please, just say so rather than piling on accusations based on things I didn’t say. My posts here are only to establish the invalidity of Kinsella’s IP scarcity position. To do that I’m under no obligation to outline anything else (such as how to establish visage rights). To ask for that again would be to reveal you don’t understand what I am arguing here.

Peter June 21, 2006 at 10:51 pm

My posts here are only to establish the invalidity of Kinsella’s IP scarcity position.

Well, you might want to start doing that, then. All you’ve done so far is make yourself look like an idiot. (In fact, I’d say you’ve strengthened Kinsella’s position, by making opposing arguments look foolish)

Fred Mann June 22, 2006 at 12:12 am

Person,
As I have shown (and you have not attempted to refute my argument), your definition of “scarcity” renders the entire concept useless. Using your terms, I have made everything in the Universe equally scarce. That is the condition that ACTUALLY exists right now and will continue to exist until I revoke it (again, under your definition where conflicting desires = scarcity).

Of course, this means that you have not established the invalidity of Kinsella’s IP scarcity position, because you are using the term “scarcity” in an entirely different way.
This is analagous to arguing over whether or not something is naturally-occurring, where you are defining “naturally-occurring” to mean “everything”, and Kinsella is defining it to mean “not man-made”.

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