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Source link: http://archive.mises.org/5713/richard-epstein-on-the-structural-unity-of-real-and-intellectual-property/

Richard Epstein on “The Structural Unity of Real and Intellectual Property”

October 4, 2006 by

New from Law professor Richard Epstein: The Structural Unity of Real and Intellectual Property (video). Epstein argues that there are many similarities between physical property and “non-physical” property (i.e, intellectual property). Epstein identifies four principles that create a basic framework for understanding physical property law. He concluded in his speech that all four can be applied to intellectual property with the main difference being transfer of such property is only absolute in the case of physical property.

I think Epstein confuses positive law with justification. Of course IP “can” be enforced. But recognzing crucial role of scarcity in specifying property rights makes it clear that any enforcement of IP is always done in the physical realm–enFORCEment, get it? Enforcing IP in the physical realm in effect means a claim to IP is a claim to physical property. Property that is already owned. Property whose ownership is justified–in libertarian terms–by the first possession of that piece of property by the owner or an ancestor in title–the homesteader or someone who contracts with him. Granting a right to control that resource to an IP creator simply means transferring rights in an already-owned thing to a non-homesteader, non-contractor. We libertarians call this theft, trespass, confiscation, socialism, or redistribution of wealth. Showing that modern positivistic legal systems can “deal with” IP does not show it is justified.

{ 270 comments }

Sasha Radeta October 14, 2006 at 4:05 am

Just to correct my gas-station clerk example before Stephan starts to scream…

————————————————–
Stephan says: “there is NO ACTION being done by the “thief” on the due date that can be referred to as an action of stealing–he is just existing… how can he steal something done in the past, today? Moreover, the labor was performed voluntarily, was it not? If so, how can it be said to have been stolen?”
————————————————–

Imagine that you are paying $20 gasoline with a $100 bill. The clerk can steal your “voluntarily handed money” by “non-action” – when he is supposed to provide your change.
If he just takes the exact amount for gasoline – but refuses to act, he is stealing your gasoline. I had to clarify this in order to prevent any confusion and sidetracking of our discussion from the labor property issue to my errors in writing.

Sasha Radeta October 14, 2006 at 7:23 am

Without further ado, it is now time to completely debunk Stephan Kinsella’s []. I hope that this does not [].

STEPHAN SAID:: “there is NO ACTION being done by the “thief” on the due date that can be referred to as an action of stealing–he is just existing…”
===============================================================

Dear Mr. Kinsella,

* First of foremost, HUMANS CANNOT “NOT ACT – AND JUST EXIST” – but I guess they didn’t tech you that at Mises Institute. Even if you attempt to deny this basic axiom of praxeology, you will conduct an action – automatically confirming this action-axiom.

* Secondly, acting against the contract in order to gain possession of someone else’s property (refusing to complete the market transaction by doing something else) constitutes the theft par excellence. Theft is never constricted to a direct physical act. Theft is committed if a person “dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.” But I guess they didn’t teach you that at the law school

* Thirdly, from the axiom that “humans act” Rothbard derived the conclusion that even a person who did not originally conspire to break the contract – but after receiving advanced payment later changed his/her mind – is still committing a theft. You cannot call this person just “a contract breaker.” Quasibill didn’t understand Rothbard’s argument and how it relates to the “action-axiom.” A premeditated conspiracy before the contract is signed is not necessary to constitute a theft. Even after you lawfully receive the money for your property – you cannot say that you just “did not act” when you unlawfully gained control of someone else’s newly purchased. Ludwig von Mises brilliantly proved that human inaction (the absence of purposeful action) is impossible.

———————

So it comes down to this… Allow me to summarize the major arguments:

SASHA SAYS: Stephan, my arguments evolved, but yours didn’t. I say this: in market exchanges, refusal to deliver an already purchased labor is a theft. If you dishonestly withhold services belonging to another with the intention of permanently depriving the other of it – you are committing a theft. That is perfectly consistent with any definition of theft.

STEPHAN SAYS: Well, you cannot say that, since we don’t own our labor. Labor is just something we do.

SASHA SAYS: How do you conclude that? By denying physics? You say that we own our physical body – but how would you remove the ownership of our matter (stable form of energy) from labor (the product of our energy – with real physical properties)? Prove that your statement is more than a word-play and a denial of the physical reality in which human action takes place – without any evidence.

STEPHAN SAYS: To heck with physics and reality. I can prove that you can’t treat undelivered labor as a theft – therefore proving it is not treated as a property but as a “failure to fulfill a contract’s conditions”. The proof is this: if someone does not deliver his/her labor assigned by their contracts – the court cannot force them to deliver it. It is not alienable and that’s why it is not a property.

SASHA SAYS: First of all, any kind of theft in market exchanges (including durable goods) is a “failure to fulfill a contract’s conditions”. If you didn’t fail to fulfill those conditions there would be no theft. You don’t prove anything by using that phrase.
Secondly, labor/energy is tied to time and it is spent every second. Only close analogy must involve merchandise like a rare insect that dies and completely dissolves by the time the court can order its delivery. The owner will have to be compensated with money, but the trespassers will not be forced to work in order to fulfill their contractual obligations. If you use this analogy – you can see that labor is not treated any differently than extremely non-durable goods.
Finally, even in the cases of more durable goods, like food products, there is an proprietary analogy between undelivered goods and services. For example, the damaged customer can ask for money – or to act stupidly and request the court-ordered return of his/her decomposed food (different form of merchandise). Likewise, the damaged employer can ask for monetary compensation – or to act stupidly and ask for an apology (different form of labor.
Neither one of these different scenarios can deny scientific fact that if we own our physical body – we consequently own its energy/work.

STEPHAN SAYS: Like, hey, wow, man, do you, like, own your “aura” too? You are very confused, Sasha, aren’t you?

SASHA SAYS: Well, I am confused by the fact that you are:
- a lawyer who apparently does not know the definition of theft,
- an engineer who doesn’t know that our body’s energy is not an “aura” – but something that even builds our matter (physical body)
- an Austrian who is clueless about the “action axiom” on which the entire praxeology rests
- an “intellectual” who can’t think of an example if which you had in your property voluntarily to someone – but it gets stolen (a crook-clerk who refuses to give you a change for your $100).
Most of all, I am confused that you are [].

Stephan Kinsella October 14, 2006 at 9:25 am

Sasha: You have said almost nothing coherent and correct during this entire exchange, and you remain utterly confused–and what’s worse, you seem to take a bizarre pride and gleefulness in your stubborn, incoherent wrongheadedness. This shall be my last reply to you.

First of foremost, HUMANS CANNOT “NOT ACT – AND JUST EXIST” – but I guess they didn’t tech you that at Mises Institute. Even if you attempt to deny this basic axiom of praxeology, you will conduct an action – automatically confirming this action-axiom.

Of course. But simply being unable to pay is not an action. You cannot point to any action of the bankrupt debtor that is an act of theft.

BTW your examples above re the gasoline clerk etc. are just so confused it’s not worth setting you straight on. You obviously need to figure out what you believe.

Your constant appeals to pseudoscience and your dabbling with scientism, your changing ground, your disingenuousness, etc., make it clear you are not worth wasting further time with. TTFN.

Sasha Radeta October 14, 2006 at 10:21 am

Dear Mr. Kinsella,

Your statement that:

“there is NO ACTION being done by the “thief” on the due date that can be referred to as an action of stealing–he is just existing…”

…is simply wrong based on the basic human action axiom.

This fact is self-evident to any Austrian who is not blinded by conceit. Everyone can see what you said in your final example with “NO ACTION”… but even your clumsy explanation makes no sense – as proven by action axiom.

I am sorry that you still contend that scientific fact of physical existence in which human action takes place is “scientism.” I also regret that you didn’t recognize “my changing ground” as the attempt to test different ideas (I am not afraid to be wrong and correct myself – because we all learn as long as we live). After probing your argumentation, I am a little bit disappointed to find that it is mostly baseless. But I still thank you for your time (and energy :-).

Regards,

Sasha Radeta October 14, 2006 at 11:35 am

Since we are setting the record straight (not that it has anything to do with Mr. Kinsella’s neglect of basic principles of human action, science and logic – I just want to respond to some repeated observations about my disregard for those who are “not able” to pay.):

Generalized “non-ability to pay” principle when it pertains to unpaid debts smells too much like bolshevism. If someone had any evident reason to doubt whether he will able to complete the contract but that person took the debt anyway (based on his/her financial situation), that person was negligent and should be held responsible for that default. If a person is hungry, he should not seek debt but a mercy of his fellow citizens (there is no shame in asking – shame on those who steal). If we reward financial irresponsibility, we will in fact subsidize financial recklessness – and consequently see more of it. In cases of dire emergencies even regular transactions can be cancelled so that is really not an issue.

To repeat Murray Rothbard:

“In the pre-modern era, the defaulting debtor was generally treated as a thief and forced to pay as he acquired income. Doubtless the penalty of imprisonment went far beyond proportional punishment and hence was excessive, but at least the old legal ways placed responsibility where it belonged: on the debtor to fulfill his contractual obligations and to make the transfer of the property owed to the creditor-owner.”

Person October 16, 2006 at 4:29 pm

Most of all, I am confused that you [Stephan Kinsella] [].

Well, []

Sione Vatu October 17, 2006 at 12:27 am

Is it possible that TGGP and Person one and the same?

Sione

Person October 17, 2006 at 1:11 am

Is it possible that “Sione” and “the jerk who jumps into threads late without reading anything previous and makes clueless comments to other posters while lying that he read the discussion” are one and the same?

Sione Vatu October 17, 2006 at 7:17 am

Person

Answer the question.

Sione

Person October 17, 2006 at 8:09 am

Are you serious, Sione? I don’t even know what about my posts and TGGP’s are similar enough to even lead you to that accusation. If you read through the thread (for the first time in your life), you’ll see that TGGP and I argued over a point or two. No, I’m not TGPP, but yes, you did manage to reach a new low this time.

Fred Mann October 17, 2006 at 4:15 pm

Person,
Now that you’ve come up with a name for the concept that I already debunked – “value scarcity” – let me RE-refer you to the full debunking of this concept. As I wrote above in this very thread (please try reading my posts for once):

“Person, I already COMPLETELY debunked your definition of “scarcity” (i.e. conflict over usage) in this blog:
http://blog.mises.org/archives/005196.asp
… yet you are STILL using it.
Please reread my posts from the last half of that blog.”

It won’t take long. Just read the posts with my name on them … can’t be much more than a page. And you can rest assured that I have irrefutably debunked your “value-scarcity” concept, and that *ALL* of your arguments above are invalid (as are all of your arguments over the past several months).
I will gladly expand on why this is so, but you have to invest about 10 minutes of your time first. (actual times may vary)

… and no, Kinsella is not employing anything like “value scarcity” in his arguments. Not even close.

Person October 17, 2006 at 4:35 pm

Fred, do we have to go through this again? What exactly would you be debunking? If I recall from last time, all you did was say, “Oh yeah? Well then, the whole universe would be scarce!” So?

You’d still be making the same strawman argument I dismissed more times that I should have had to, above.

JUST BECAUSE I BELIEVE THERE IS SCARCITY IN A SITUATION DOES NOT MEAN I BELIEVE ANY ONE PARTY’S CLAIM SHOULD BE RESPECTED.

How many times do I have to say it?

When Bob wants to look at Bill, and Bill wants no one to look at him, there is scarcity because BOTH desires cannot simultaneously be satisfied. That doesn’t mean I think Bill’s desire is justifiable, just that it conflicts with Bob’s. Is it really that hard to understand?

That is value scarcity — the impossibility of simultaneous satisfaction of two desires. That occurrence forms the basis of Stephan’s property theory. So he certainly does reference it — only to change to physical scarcity when it comes to IP. Of course, we’ll never know because he refuses to say which kind of scarcity he means — he thinks referencing those really bright economists counts as “enough thinking” for this issue. So like with all cranks, we have to interpret their work the best we can.

Now, tell me what relevant claim of yours do you think I didn’t address several hundred times before?

Person October 17, 2006 at 4:45 pm

Btw, just a heads up: Stephan Kinsella has already conceded the argument I have made in this thread and every other IP one (about) since April: Please see his post at October 11, 2006 12:44 PM and my follow-up at 12:56 PM of the same day. I pointed out very specifically how in his response, he conceded my point. He has not dug himself out of that hole as of yet, despite a 2,000+ word exchange with Sasha. His only responses to me after that were to make trite little jokes. So, just a heads-up, guys: It’s kind of pointless right now to claim I’m wrong in what I’ve asserted. Big Boy himself has admitted it. I’ve already asked two neutral non-participating parties to save this thread on their computers in case Stephan decides to delete his concession.

Peter October 17, 2006 at 8:20 pm

Person-moron, please STFU and go away!

Fred Mann October 17, 2006 at 8:20 pm

“Fred, do we have to go through this again? What exactly would you be debunking? If I recall from last time, all you did was say, ‘Oh yeah? Well then, the whole universe would be scarce!’ So?”

Not what I said. Try reading my posts for once. It’s just like reading , … except it’s of my posts.
Anyway, what I said was that everything in the universe, both imaginary and real, both unique and infinite, would be … are you ready? … *EQUALLY* scarce. That is, using your definition, the Mona Lisa and an imaginary sphere would be equally scarce. Equally scarce. Equally scarce. Equally scarce.
Obviously, this is ridiculous on the face of it.
The word “scarce” is an adjective, and as such, modifies/qualifies/quantifies a noun. Yet in your “value-scarcity” concept, the word “scarce” does not provide one iota of modification. The “scarce” thing can not be differentiated in any way (not even theoretically) from the non-scarce thing. Does your use of “scarce” even qualify it as an adjective? Probably not – since nothing is “not scarce” or more or less scarce than anything else ever ever ever ever in any way imaginable. Can it have any ramifications in the real world or the world of economics? No.
Obviously, you are attempting to use your incorrect definition of scarcity to throw a wrench in Kinsella’s argument, but it’s just not going to work. One has to wonder why you chose to attach the name “scarcity” to your concept, since it clearly has no resemblance to the dictionary definition of “scarcity”. Answer — it is obviously a very lame attempt to confound the issue — invent a new (and useless) definition for a word, and then throw it around and mix it in with the ACTUAL definition of “scarcity”, using the two radically different definitions interchangeably, as if they mean the same thing — thereby appearing to cast doubt on Kinsella’s conclusion.
Cute though.

“JUST BECAUSE I BELIEVE THERE IS SCARCITY IN A SITUATION DOES NOT MEAN I BELIEVE ANY ONE PARTY’S CLAIM SHOULD BE RESPECTED.”

I also never said anything of the sort. Try actually reading my posts for once.

Stephan Kinsella October 17, 2006 at 9:28 pm

Fred: Superb point.

Person: do you concede he is right?

Fred Mann October 17, 2006 at 9:51 pm

“Fred: Superb point.”

I agree.

Person October 17, 2006 at 10:34 pm

Oh geez…

me:”Fred, do we have to go through this again? What exactly would you be debunking? If I recall from last time, all you did was say, ‘Oh yeah? Well then, the whole universe would be scarce!’ So?”

you:Not what I said. Try reading my posts for once. It’s just like reading , … except it’s of my posts.
Anyway, what I said was that everything in the universe, both imaginary and real, both unique and infinite, would be … are you ready? … *EQUALLY* scarce.
Emphasis added –P.

Um … right … you didn’t say what I claimed you did.

It’s a complete joke reading your posts when you screw up like that.

Obviously, this is ridiculous on the face of it.
The word “scarce” is an adjective, and as such, modifies/qualifies/quantifies a noun. Yet in your “value-scarcity” concept,

Why do people have such a problem with this? “Value scarcity” simply refers to the condition in which a good necessarily cannot satisfy two disputants. Obviously, this can happen. I’m not even sure if you know what you’re trying to accomplish by “debunking” it. I can easily make any argument I’ve made here without using the term; it would just be more verbose. I try to simplify things by putting labels on them, and … I get petty little attacks from showoffs who want to make a career out of “debunking” concepts that they obviously agree exist.

Can [Person's use of "scarce"] have any ramifications in the real world or the world of economics? No.

Of course it can, and I use it in exctly the same way Stephan “never admit when you’re wrong” Kinsella uses it: to highlight the cases where property rights need to be assigned.

Obviously, you are attempting to use your incorrect definition of scarcity to throw a wrench in Kinsella’s argument, but it’s just not going to work. One has to wonder why you chose to attach the name “scarcity” to your concept, since it clearly has no resemblance to the dictionary definition of “scarcity”. Answer — it is obviously a very lame attempt to confound the issue — invent a new (and useless) definition for a word, and then throw it around and mix it in with the ACTUAL definition of “scarcity”, using the two radically different definitions interchangeably, as if they mean the same thing — thereby appearing to cast doubt on Kinsella’s conclusion.

No. Stephan is the one who chose to use “scarce” carelessly. Under his exact terminology, ideas can be scarce: it’s possible for conflict to arise over how an idea is used. Bob wants idea X to be used in manner Y, Bill wants idea X to be used in manner “not Y”. Furthermore, all IP claims can be equivalently expressed as a claim on scarce goods. While you may be able to apply to other principles to refute such a claim “idea non-scarcity” wouldn’t be one of them.

me:”JUST BECAUSE I BELIEVE THERE IS SCARCITY IN A SITUATION DOES NOT MEAN I BELIEVE ANY ONE PARTY’S CLAIM SHOULD BE RESPECTED.”

I also never said anything of the sort.

Of course not! You did, however, feel the need (June 20, 2006 2:23 PM post) to point out that “Note that your view provides no way to tell who should be compensated (a key feature of owning and transferring property).” In other words, you completely missed the point of the argument I was brining up, which was NOT to justify any kind of property system, but to show that Stephan’s use of a specific argument to argue against one is in error — a point you still don’t seem to grasp.

Stephan:Person: do you concede he is right?

No, for the reasons above. Do you concede that I’m right? Oh wait, you already did.

Fred Mann October 17, 2006 at 11:55 pm

Person quoting me:

” ‘Anyway, what I said was that everything in the universe, both imaginary and real, both unique and infinite, would be … are you ready? … *EQUALLY* scarce.’ Emphasis added –P.”

I don’t know if my first experiment with italics and bold text will work, but regardless, your tag should read DE-emphasis added. Obviously the key word was *EQUALLY*, which is why I highlighted it. I then expanded on the meaning and importance of this distinction. All very clear. I would think a child could understand it at this point. But you ignored it. Very predictable at this point.
It is obvious that you don’t or won’t understand this not-so-subtle distinction, which is why your response lacks any substance. If you DID comprehend the distinction and its implications, it would be very clear to you why everything you have said is incorrect.
Allow me to preempt you…
You did NOT address this distinction hundreds of times or even once.
Another symptom of your inability to understand this is illustrated in the following comment:

“Under his exact terminology, ideas can be scarce: it’s possible for conflict to arise over how an idea is used.”

Here, you conflate the definitions of the terms “conflict” and “scarcity”. They are NOT the same thing. Does this need to be explained to you?
I’m sure it does …
First of all, the definitions are clearly different. Just check the dictionary. That should be your first clue.
Both of these conditions can exist independently of each other, so there is no logical connection between the two, as implied by your statement above.
An object can be scarce, yet not the object of conflict (i.e. some resource we have not yet discovered how to utilize).
There can also be conflict without scarcity. For example we can have a heated argument over the goodness of the color blue. There is no scarcity here, yet there is clearly a conflict.
Now, I gleaned from earlier blog posts that you disagree with this second statement. You think that conflict necessarily implies scarcity. But of course it does not. When you claim that there is ” ‘scarcity’ in the ability to simultaneously satisfy two conflicting desires”, you are simply using the term “scarcity” incorrectly, as I outlined above and in the blog post that I linked to above. Again, using the term “scarce” in this way is simply incorrect, and renders the term useless — it becomes a non-modifying adjective, if there can be such a thing. Literally, this usage of the term is nonsensical.

“I get petty little attacks from showoffs who want to make a career out of “debunking” concepts that they obviously agree exist.”

Clearly, I can agree that your nonsensical concepts exist without validating them, right? You are conflating (again) the definitions of two words/concepts — this time it’s aknowledgement and agreement. You need a dictionary.

“You did, however, feel the need (June 20, 2006 2:23 PM post) to point out that ‘Note that your view provides no way to tell who should be compensated (a key feature of owning and transferring property).’ In other words, you completely missed the point of the argument I was brining up, which was NOT to justify any kind of property system…”

Where in that sentence do I say what *you believe*? Nowhere. I’m simply pointing out that your concept is necessarily purely academic (aside from being nonsensical). Again, try actually reading my posts for once.

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