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Source link: http://archive.mises.org/6823/on-the-ip-question/

On the IP Question

July 9, 2007 by

My article here elicited more correspondence than any in memory. Many people are just shocked at the idea that IP is contrary to market economics. The idea strikes people as obviously nuts and yet once people start thinking about it, wondering why precisely they support IP, it becomes more difficult because the rationales don’t actually hold up under scrutiny.

I’ve written the following note so many times that I thought I should just blog it: “I must tell you that I came to accept my present view very reluctantly. It took five years. The first time I heard the idea, I thought it was incorrect, even embarassingly naive. But technological advance and theoretical advance have convinced me in the meantime. In the Austrian lineage, the early Austrians didn’t talk much about it. Mises rejected patents but without much in the way of robust theory. Rothbard went further on the patent question but didn’t see the problem with copyright. Now in light of all the current controversies, Stephan Kinsella has made the best argument, in my view. I’ve probably read this article 10 times, and it took years to sink in. But I do encourage you to read it“.

{ 138 comments }

Reformed Republican July 11, 2007 at 12:35 pm

Person writes:
The problem, though, is that IP is rivalrous under this definition. Why? Because you cannot simultaneously satisfy Joe’s desire to listen to a composition, with Bob’s desire that no one listen to it without paying him.

With radio waves, two people cannot simultaneously use the same frequency in the same area to transmit a signal that will be received as intended. It is exclusive. An analogy is that Farmer Jim cannot grown corn on the same land that Farmer Bill is growing tomatoes.

This is not the same as Bob not wanting Joe to use his composisition. This is the same as if Farmer Jim grows corn, but does not want Farmer Bill growing corn on his own property because he does not want competition.

Person July 11, 2007 at 12:38 pm

Stephan_Kinsella: Please see my last response to George_Gaskell, where I addressed all that. If you’re not going to read what I post before responding to it, you might as well not post at all.

DC: I explained to you several times now how any statement referencing “idea ownership” can be rephrased with the same substance but without referencing that concept as such. You keep asking for a justification for IP, but it doesn’t matter whether there is or is not a case for IP. You fail to understand that the argument from scarcity is not dependent on which justification is used for IP, so all of your arguments here are an attempt to shift the burden.

All I have tried to prove is which trite universal dismissals of all IP arguments, are invalid. And I have done that with the scarcity argument. In the future, assist me in correcting others who try to use this argument.

Person July 11, 2007 at 12:40 pm

Reformed_Republican: With radio waves, two people cannot simultaneously use the same frequency in the same area to transmit a signal that will be received as intended. It is exclusive. An analogy is that Farmer Jim cannot grown corn on the same land that Farmer Bill is growing tomatoes. This is not the same as Bob not wanting Joe to use his composisition.

Yes, it is exactly the same. If Joe uses the composition without Bob’s authorization, that is not how Bob *intended* the use of his composition.

Reformed Republican July 11, 2007 at 12:51 pm

Person:Yes, it is exactly the same. If Joe uses the composition without Bob’s authorization, that is not how Bob *intended* the use of his composition.

And if I use the newest Harry Potter book to level my table, that is not how JK Rowling intended me to use her composition. What is your point? Should she be able to stop me from doing that?

Person July 11, 2007 at 12:58 pm

Reformed_Republican: No, she shouldn’t necessarily be able to stop you. (I’ve answered that question literally about 100 times on this blog.) My point is just to establish that that “intellectual property” is rivalrous in exactly the same sense that a radio frequency is, once you really think (*cough cough Stephan*) about what is meant by “rivalrous”.

Kevin B. July 11, 2007 at 1:13 pm

greg: “If I peed on a photon, would I know it?”

I agree that it is important in any issue of rights, for property to be in question and for the claims to be physically measurable. Since the effects of radio-band radiation is quite measurable, I do not see any problem with assigning ownership to the radiation. I also do not see any problem with the rancher owning the photons comprising the measurably large penis emitted from your rancher’s sign.

TLWP Sam,

Your pet may be difficult for you to control, but it’s still your pet when it makes a mess on my porch.

DC July 11, 2007 at 1:18 pm

Person, as I have shown above, Kinsella’s scarcity objection as written in his article deals with the justification for using IP as a claim on scarce property. If one accepts that claims on scarce property should be justified, then the IP advocate — whatever his justification — will be in trouble with respect to the scarcity objection.

Your attempt to evade this was to articulate the IP conclusion without referring to owning ideas and claim that justifying such a claim was unnecessary. As we have also seen in Kinsella’s paper, there are other reasons to reject that particular “argument” (not least because it is as irrational as any other bald assertion, as such).

But for those IP advocates who wish to make a coherent, justified claim on scarce goods, the scarcity objection will apply, because IP justification is essentially linked to idea-homesteading and ownership. You only need to provide one counterexample to disprove this, of course, but something tells me that, after 4-5 posts of asking for it, it won’t arrive.

If the best you can do is a re-worded “position” — which, as you have defined, is an assertion without reasons to believe its truth — it still leaves untouched Kinsella’s original argument, which was concerned with arguments and not fiat.

Person July 11, 2007 at 1:21 pm

DC: as I have shown above, Kinsella’s scarcity objection as written in his article deals with the justification for using IP as a claim on scarce property. If one accepts that claims on scarce property should be justified, then the IP advocate — whatever his justification — will be in trouble with respect to the scarcity objection.

No he won’t. Stephan says IP can’t be justified because it is a claim to non-scarce resources. I have shown how it most certainly is a claim to scarce resources. That’s really all there is to it. I don’t see why you have made this your hill-to-die-on.

George Gaskell July 11, 2007 at 1:22 pm

The problem, though, is that IP is rivalrous under this definition. Why? Because you cannot simultaneously satisfy Joe’s desire to listen to a composition, with Bob’s desire that no one listen to it without paying him.

Thank you for stating your position without further delay.

It is, however, completely wrong. Bob’s “desire” to force Joe to pay him does not make the composition rivalrous. The composition itself is intangible. To be used at all, it must be reduced to a written, tangible form (either in the form of analog air-pressure waves that someone could hear, or on electronic or digital recording, or transcribed onto a document using some sort of musical notation). One person’s use of one tangible instance of the composition (which is accomplished by playing it) does not in any way impede the same use of another instance of it by another person. These two people are, after all, often not in the same place, or even in the same town.

Also, the pattern that comprises the composition is not rivalrous because it can be replicated an unlimited number of times, and played by an unlimited number of people, and still the original tangible form of the composition can be used (i.e., played) without interference, destruction or alteration.

Furthermore, Bob’s “desire” to make Joe pay to listen to it is an illegitimate “use” of the composition because this “desire” implicitly and necessarily treats Joe as though he is a component of Bob’s “use” of the composition. But Joe does not belong to Bob; Joe is not Bob’s property. Bob’s desire that Joe pay him is delimited by Joe’s self-ownership. The only way that Bob would acquire a legitimate claim to compel Joe to behave in some way is if Joe agreed to contractually bind himself to do or refrain from doing something — e.g., making copies, playing the composition without payment, etc. Bob’s desire that Joe do something (or not do something), absent Joe’s consent, is not the basis for a legitimate claim against Joe.

For example, if I had the desire to “use” my 9mm handgun in a way that involved firing a slug into your abdomen, that desire would not make your abdomen my property. You already own it. Desires and intentions have inherent limits — invasion of other people’s property being the main one.

I readily concede that my desire to shoot you is “rivalrous” (in a very tortured and bizarre sense) with your desire not to be shot. Both cannot happen. But my desire to shoot you is illegitimate, and my use of my gun in this way is illegitimate, because it invades and impairs your property rights.

Person July 11, 2007 at 1:35 pm

George_Gaskell:

Thank you for stating your position without further delay.

It is, however, completely wrong. Bob’s “desire” to force Joe not to use that frequency does not make the composition rivalrous. The radio frequency itself is intangible. To be used at all, it must be reduced to a tangible form. One person’s use of one tangible instance of the frequency (which is accomplished by transmitting along it) does not in any way impede the same use of another instance of it by another person. These two people are, after all, often not in the same place, or even in the same town.

Also, the pattern that comprises the frequency is not rivalrous because it can be replicated an unlimited number of times, and transmitted by an unlimited number of people, and still the original tangible form of the frequency can be used without interference, destruction or alteration of his transmitting device.

Furthermore, Bob’s “desire” to make Joe pay him to stop transmitting along it is an illegitimate “use” of the frequency because this “desire” implicitly and necessarily treats Joe’s use of his transmitter as though it is a component of Bob’s “use” of the frquency. But Joe does not belong to Bob; Joe is not Bob’s property. Bob’s desire that Joe pay him is delimited by Joe’s self-ownership. The only way that Bob would acquire a legitimate claim to compel Joe to behave in some way is if Joe agreed to contractually bind himself to do or refrain from doing something — e.g., transmitting along that frequency. Bob’s desire that Joe do something (or not do something), absent Joe’s consent, is not the basis for a legitimate claim against Joe.

For example, if I had the desire to “use” my 9mm handgun in a way that involved firing a slug into your abdomen, that desire would not make your abdomen my property. You already own it. Desires and intentions have inherent limits — invasion of other people’s property being the main one.

I readily concede that my desire to shoot you is “rivalrous” (in a very tortured and bizarre sense) with your desire not to be shot. Both cannot happen. But my desire to shoot you is illegitimate, and my use of my gun in this way is illegitimate, because it invades and impairs your property rights.

Tu quoque: Forcing people to actually think about what they say, since before the fall of Rome.

George Gaskell July 11, 2007 at 1:56 pm

One person’s use of one tangible instance of the frequency (which is accomplished by transmitting along it) does not in any way impede the same use of another instance of it by another person.

False. They DO impede each other. To the extent they do not impede each other, then they are not rivalrous anyway. This is so obvious that I would not have believed, until now, that someone who is capable of turning on a computer would not understand it.

Also, the pattern that comprises the frequency is not rivalrous because it can be replicated an unlimited number of times, and transmitted by an unlimited number of people, and still the original tangible form of the frequency can be used without interference, destruction or alteration of his transmitting device.

I obviously wasn’t talking about alteration of the musical device, and I have to believe that even you know this. Yours is a grotesque, and patently dishonest, manipulation of my original statement. In my comment, the interference, destruction and alteration had NOTHING to do with the interference, destruction or alteration of the DEVICE used to play it. I was clearly referring to interference, destruction or alteration of the original composition, not the playing device.

As you well know, the transmission of two sets of radio waves along the same frequency in the same place at the same time causes interference. This is the actual term that electrical engineers have used since the first days of radio.

You are a liar and a fool if you think that you can sneak your little dishonest amendment of my comments into this site, and think that doing so will in any way rebut my assertions.

I should have realized, as others have, that you are not worth the time it has taken to discuss this matter. Go congratulate yourself a few more times. Go tell yourself in the mirror how many arguments you think you have won, how many fallacies you think you have corrected. Your desperate need to cheerlead for yourself by repeatedly proclaiming your own supposed debating victory, and what you think you have proved or disproved, speaks volumes about the weakness of your arguments, your intellect, and your character.

This conversation is over.

DC July 11, 2007 at 2:03 pm

Person writes:
No he won’t. Stephan says IP can’t be justified because it is a claim to non-scarce resources.

To the exclusion of scarce goods? See my post that deals with the text of Kinsella’s argument in order to see why this is off-base.

Jesse July 11, 2007 at 2:42 pm

George Gaskell: “I readily concede that my desire to shoot you is “rivalrous” (in a very tortured and bizarre sense) with your desire not to be shot. Both cannot happen. But my desire to shoot you is illegitimate, and my use of my gun in this way is illegitimate, because it invades and impairs your property rights.”

To build on what George was saying, actions can be rivalrous; desires never are. You can desire not to be shot, and I can desire to shoot you, but there is no conflict so long as I do not act on that desire.

At any given time, for any property, there are a number of ways that the property could be transformed, each of which corresponds to a different final state of the property and all of which serve different ends. The role of the property owner is to choose which of these transformations is to take place. By shooting you I would be overriding your choice as the property owner; that makes it aggression.

“IP” of any sort can be “used” (in the common sense) to achieve a goal, but not “used up” or transformed. As an abstract concept any instance of “IP” is static, immutable. As it is impossible to transform “IP”, there is no need for anyone to own it. Even if such a nominal owner were designated there would still be no possibility of trespass or theft of “IP”; neither the “owner” nor anyone else can transform an abstract concept, so no one can interfere with the owner’s “use”.

Really, is anyone still claiming that “IP” is real property? If “IP” were property then it would have to follow the same ownership rules as regular property; for example, property rights do not arbitrarily expire after a set number of years, and abandoned property is subject to homesteading. An argument for the status quo is not an argument for “IP” as real property. The status quo in “IP” — a limited monopoly for a set time, followed by the passage of the “IP” into the public domain — is purely utilitarian, and is not based on property ownership or natural rights, and is in fact contradictory to them just like all other artificial monopolies. (“Artificial”, as in “not based on property rights”; enforcement of the monopoly is coercion but not a proportional response to trespass against a property right, and thus is aggression by definition.)

Person July 11, 2007 at 2:58 pm

George_Gaskell: Calm down. There was a reason I made that substitution. Specifically, that your distinction of when uses conflict was just as arbitrary as the claim that unauthorized copying conflicts with the use of IP. Yes, it was wrong to focus so narrowly on interference with the radio transmitter itself. But it was also wrong of YOU to focus so narrowly on interference with the performance of the work itself.

Why is an “unclear transmission” an impedence of my use of a frequency, while “arbitrarily increasing the instantiations of my composition” is not an impedence of the use of my idea? (The idea, after all, is less useful to me if it can be copied without my authorization, just as the radio signal is less useful if it can be transmitted along as the same time as me.)

You can’t avoid the conclusion that what constitutes a conflict, ultimately depends on the *values* of various parties — exactly the basis for intellectual property conflict.

DC: To the extent that Stephan turns around and claims that IP does claim scarce resources he is being inconsistent. Scarce resources can be owned. IP claims assert claims to scarce resources. Ergo, IP can be owned — it just wouldn’t be full ownership of a physical object. But this is no problem — people subdivide use-rights all the time, such as in rental contracts.

Jesse: Radio frequencies aren’t used up either.

greg July 11, 2007 at 4:16 pm

averros> It follows that photons can be property. In fact, any physical object such as a chair includes a lot of photons which carry electromagnetic force between atomic nuclei and electrons. So all of us do own some photons:)

The point isn’t whether photons can be owned in some special way, the question is can be said generally (universally) about them. The chair (the “system” we call a “chair”) has boundaries that are pretty well defined in practical terms (which why we don’t bother talking about a chair at the particulate/atom/molecule level — the macroscopic view serves all our needs in defining the property boundaries). The particles/atoms/molecules are bounded in the chair. The same is not nearly as easily said about a moving and amorphous particulate. Radio communication systems, for example, are not nearly as well bounded and defined as a chair. Moreover, and unlike a chair, that particulate propagates onto other property boundaries. So EM photons hardly lend themselves to a property rights regime in a clear manner.

Person> It is, after all, possible for two people to *emit radio waves* at the same frequency in the same region.

Emitting itself isn’t the communications question. A viable total link is — reception is the other half. Just saying “can transmit” is meaningless.

Sure, things like CDMA do mean there can be a similar frequency spectral energy density in some given space and (generated by separate transmitters) and have viable communications. That most assuredly does not mean that these similar systems can be added ad infinitum without affecting other systems. They can’t. Scarcity exists. Google something like “jamming margin” and “CDMA.” The fact that a jamming margin exists tells you this is not some sort of non-rivalrous domain.

Person> Remember, two people can certainly emit radio waves at the same frequency in the same region. In that sense they’re both “using” the frequency and it’s not rivalrous.

Right and wrong. They can — under certain conditions — both use “it.” They cannot both use it without constraints of some kind adhered to by each. It is rivalrous as it is not constraint free. Others may have problems on technical issues, but it doesn’t matter, since you too are wrong, and ultimately your analogy is false.

The frequency division allocation method promoted by the FCC is just one perspective in the radio system resource allocation issue. Hyper focus on that particular method is probably not a good idea. Signals can be multiplexed in time and code way too, for example. There is no such thing as a free lunch. Each method has its constraints when talking about multiple users, which is another way of saying rivalrous.

In short, the EM/Radio to IP analogy is a poor one. There is most certainly a fundamental physical scarcity issue with EM use in communications. It is only that EM itself lends itself poorly to a property rights regime. That should not be a cause for confusion with intellectual “property.”

Kevin B. July 11, 2007 at 5:31 pm

Person: “Radio frequencies aren’t used up either.”

And radio frequencies aren’t real property.

Seriously, it’s time to move past this.

Fred Mann July 11, 2007 at 11:30 pm

Person’s definitions of “scarce” and “rivalrous” (when used in his “value scarcity” concept) are based solely on the will of the individual. That is, one can unilaterally make something more or less scarce by claiming that a desire is or is not fulfilled. In other words, there is no tie to the external world. Of course, if we could will away the conditions of scarcity, we would not need property rights to begin with…
As always, Person is employing two entirely different definitions of “scarce” interchangeably. This is a no-no in the world of language and communication. Does this even need to be explained?
I have already completely destroyed Person’s concept of “value scarcity”. See here, for example: http://blog.mises.org/archives/005713.asp . You can just read the last few posts.

Fred Mann July 12, 2007 at 12:23 am

Person writes:

Why is an “unclear transmission” an impedence of my use of a frequency, while “arbitrarily increasing the instantiations of my composition” is not an impedence of the use of my idea? (The idea, after all, is less useful to me if it can be copied without my authorization, just as the radio signal is less useful if it can be transmitted along as the same time as me.)

Actually, your use of the idea is NOT impeded if I use it as well. That’s the whole point. You can still print your copies, sing your songs, or perform your dance moves, AD INFINITUM, even if I am doing the same thing at the same time. This is not the case with the TRULY SCARCE things in the external (non-imaginary) world – like radio signals. The signal is literally destroyed. I’m SURE you can tell the difference.
Now, the PROFITABILITY of the idea may decline, but this another issue entirely.

nick gray July 12, 2007 at 1:33 am

Here is a solution- turn local governments into share-member democracies that happen to own things like roads. Such public companies could ‘licence’ radio stations to emit into their spaces. Individuals wouldn’t normally notice this intrusion of waves (how often do you think about the electromagnetic fog within which city-dwellers live and move and have their being?). This would not be pure anarcho-capitalism, but it would come close. You could then have ‘Public Copyright’, meaning that the local government would only use the copyrighted product in its’ own libraries, without infringing on the habits of others. Perhaps only Coca-Cola could advertise that name on public spaces, but others could use it privately.

ktibuk July 12, 2007 at 1:39 pm

IP can be made scarce artificially, by man, without using force. It is being done today with technologies like DRM and soon technology will prevent more IP like books to be copied.

There is nothing wrong with this. In fact IP is the only property that can be protected without the use or threat of violance.

Kinsella mentions artificial scarcity through Bouckaer but that’s it he just mentions. No justification on why artificial scarcity is bad, or unjustified. There is a quote that says it and that is it.

Here, DRMs are artifical scarcity technologies. Do we need to justify them? Or are you going to force the creators to give them away unrestricted since he doesnt lose it?

Also I don’t think Bill Gates would miss 100 dollars. And according to the law of diminishing marginal utility the value of 100 dollars for Bill Gates is almost nothing. It is almost as not losing the IP when giving it away. Should it be ok to steal 100 dollars from Gates?

Also for the physical books. Every anti IP person thinks of a transfer of property when it comes to books. Why is that?

Can’t it be that “buying” boks are a long term lease, where transfer of ownership of the paper and ink isn’t being transfered at all? So no you can not use Harry Potter to balance a table if the person who actually rented you the book for a lifetime doesnt want it so.

Today all patent and some copyright laws are indeed stupid and it is shameful to keep using these idotic laws to further a stupid agenda of socialist anti IP position.

Look at every post here, mostly from Kinsella, every one of them are an example of a patent law which not one real libertarian IP advocate really supports. No one is giving examples of stealing music and movies and books and profiting from them by copying.

Also Kinsella, just to prove there is no IP, turns the homesteading rule on his head and kicks labor out and replaces it with occupancy without realizing the consequances for the tangible property. If you only use occupant one person either can own everywhere he first takes a walk in (like Crusoe owning the whole island) or loses the property right when he leaves the property and not occupy it anymore.

Do you thing Locke and Rothbard couldnt think of using occupancy? Are you the qenuieses that corrected them?

Also when Kinsella says

“The libertarian view is that conflicts should be avoided in things that can be conflicted over (namely, scarce or rivalrous goods) by assigning property rights in accordance with just, fair, objective rules, namely, the Lockean homesteading rule whereby the first user of a previously unowned scarce resource owns it.”

He is totally wrong. Property rights arent assigned by some know it all. It is naturally there. Conflict may or may not arise but property rights are property rights, they are not created to accomplish some socialistic harmony. Also he should use the name of Locke ase explained above.

ktibuk July 12, 2007 at 1:44 pm

Correction

`Also he should not use the name of Locke ase explained above.`

Kevin B. July 12, 2007 at 6:59 pm

ktibuk: “IP can be made scarce artificially, by man, without using force. It is being done today with technologies like DRM and soon technology will prevent more IP like books to be copied.”

Actually, DRM is part of a physical program, not some imaginary construct. “IP” may only be as scarce as it can be real property. A computer program, as far as electrons go, is real property, not IP. Basically, DRM affects the physical operations of the CPU, affecting the placement of electrical charges here and there. (Gross oversimplification, I know.)

If I have one less song on my computer, then that is less data. Data (real property) is held on all sorts of storage devices – none made of ether.

Kevin B. July 12, 2007 at 7:09 pm

ktibuk,

What you are suggesting is that by arranging another’s electrons into a certain pattern, you gain a right to those electrons at the former owner’s expense, even without agreement.

Taking from another without permission is theft, in fact it’s downright rude.

ktibuk July 13, 2007 at 8:45 am

Kevin B.

I dont really care about the electrons and particles and stuff.

What anti IP advocates suggest that, since I can copy a song without lessening the original then it is not scarce and not a property.

I am saying that every IP can be made scarce, with anti copying technology.

We dont need to waste any time on abstract concepts like owning ideas and stuff.

The real world cares about music, books, videos inventions and trade marks.

“What you are suggesting is that by arranging another’s electrons into a certain pattern, you gain a right to those electrons at the former owner’s expense, even without agreement. ”

And when you say anothers, what makes you so sure that it is infact anothers. What if the record company rents you the song on certain conditions like itunes does, like you cant play it on another mp3 player than ipods and you cant copy it somewhere else?

I also mentioned books. An old technology.

What if you are not buying the books but leasing it for a lifetime under certain conditions.

Why do you automatically suppose property rights are being transfered including paper and ink.

What if the publisher keeps the property rights of the paper and ink on the book?

The problem with IP is that the prıducers couldnt control the copying process in the past.

Now in the digital age they have some control and in the future they will have the total control.

This doesnt mean there wont be an freebees out there, also it doesnt mean music industry will not give up making money from recorded media but it is their choice as the owners of property not anyone elses.

Jesse July 13, 2007 at 10:06 am

ktibuk, I hate to break it to you, but DRM doesn’t work. There are economic issues as well as technical ones; adding DRM reduces the value of the product in proportion to the effectiveness of the DRM; more importantly, to remain effective DRM relies on a decryption key remaining private when that key must reside in physical property in the presence of the person accessing the media. Even a remote authentication scheme relies ultimately on the security of a key in the client’s decryption hardware.

Sure, you can place access to that key beyond the technical capabilities of the average person, but it only takes one smart kid with a few decent tools to categorically defeat any given DRM scheme. This happens routinely even under the threat of aggression against anyone found circumventing DRM; without the aggression it would be even more commonplace. The cost of developing new, “unbreakable” DRM schemes is far greater than the cost of breaking them, and there’s no sign that that will ever change. Your assertion that publishers will have “total control” over content in the future is unfounded.

ktibuk: “What if the record company rents you the song on certain conditions . . . What if you are not buying the books but leasing it for a lifetime under certain conditions . . . What if the publisher keeps the property rights of the paper and ink on the book?”

It wouldn’t make any difference, even if people were willing to accept mere rental in place of ownership. None of those things would make it morally or ethically wrong to distribute copies of the media; only the contractees would have any liability (voluntarily assumed under the contract), and you’d probably never figure out who first leaked the media to the public, even if it was intentional — and they’d have plausible deniability, since the kinds of precautions necessary to avoid unintentional leaks would be prohibitively expensive. The model doesn’t work because it only takes one leaked copy for everyone to have access, and there’s nothing you’d be able to do about it.

Kevin B. July 13, 2007 at 1:09 pm

ktibuk: “And when you say anothers, what makes you so sure that it is infact anothers. What if the record company rents you the song on certain conditions like itunes does, like you cant play it on another mp3 player than ipods and you cant copy it somewhere else?”

That is why I noted “even without agreement.” With a prior use agreement the situation changes. If you agree to upload the song to my computer on the condition that I will not copy it, then I cannot copy it.

I agree that it would be wrong to break the contract, but Jesse is right in that finding the right person to sue in the case of a leak would be quite costly – the model doesn’t work. In a contractual society, I would suggest considering other options.

ktibuk July 14, 2007 at 3:00 pm

Jesse,

Please lets not use utilitarian arguments, like how costly it might be to use anti copying technology. That is not the problem.

On theory, it is possible to implement anticopying technology for the digital media. It is being done today albeit not perfectly.

This is called creating artificial scarcity.

Which in turn demolishes the claim that IP is not property at all because it is not scarce.

On the question of hacking or breaking DRM, I know it is being done.

But theft of tangible property is being done ona daily basis too.

Car alarms, and locks dont work for pro car thiefs either.

Problem is not whether or not theft can take place or the cost of security but if it is ok, lawfull or not.

If you concede DRM is moral and legal then you must concede breaking or hacking the DRM is illegal.

And that is where the debate stops.

Because when you define property and theft you don’t take account the practical difficulties of making unbreakable locks or deterrents.

Maybe you can not find the first leaker, maybe you can not punish every thief (IP aside states are historys biggest thiefs and you can not punish most of government beuracrats and politicians either). This does not mean there is no crime or there isnt any property right.

Peter July 15, 2007 at 12:26 am

If you concede DRM is moral and legal then you must concede breaking or hacking the DRM is illegal.

That’s what we call a “non-sequitur”, Latin for “it doesn’t follow” – the morality/legality of applying DRM (i.e., of encrypting your content) doesn’t in any way imply the immorality/illegality of decrypting that content without permission (i.e., “hacking the DRM”). Quite the contrary: on the basis of your argument, DRM suffices to make “artificial scarcity”, making something property (in your misunderstanding of Kinsella’s argument); thus it follows that breaking the DRM is sufficient to prove it not-property, and therefore no theft and no illegality is involved.

ktibuk July 15, 2007 at 8:05 am

DRM is the integral part of the product. Everybody knows it is there to create scarcity.

Breaking the DRM is not covered by seemingly naive and cute examples of “absent minded people leaving a book on the beach” which you anti IP people love to give trying to show contracts between two people can not be enforced on a third party.

Here with the DRM, theft is exposed since the people trying to hack the DRM are intentionally trying to alter the integrity of the digital product.

So yes it does follow.

When I lease a DVD movie for life time with a contract that explicity states that you can only view it at home and when this DVD has DRM then persons (you or a third party) hacking the DRM is damaging the property. It is an agression on property.

So yes artificial scaricty can be created.

And yes once you do this, IP becomes real property.

And after it becomes real property and aggression towards it, is a crime.

The best part is you dont even have to use defensive violance or the threat of it to enforce it most of the time.

Since sophisticated thieves (much more sophisticated than say car thieves) are required.

And guess what gives people the chance to create artificial scarcity for IP?

The “intellectual” part of the thing.

Stranger July 15, 2007 at 9:03 am

DRM does not create artificial scarcity. It lessens scarcity by giving producers more control over their product. That way they will be able to increase the revenue they earn from their product, and will invest more capital in production.

scott July 15, 2007 at 10:53 am

“”What if the record company rents you the song on certain conditions like itunes does, like you cant play it on another mp3 player than ipods and you cant copy it somewhere else?”"

something still doesnt seem right here.

if i rent a car…well…i guess could rearrange it into a convertible by cutting of the top and putting it into the trunk. the rental car company then has to pay to get a new car or reassemble and weld the top back onto the car.
they have incurred a loss (unless the new choptop rents better than the ‘old’ car.)

but making a copy (rearrangement) of a ‘rented’ song doesn’t create a loss for anyone.

ktibuk July 15, 2007 at 11:25 am

“but making a copy (rearrangement) of a ‘rented’ song doesn’t create a loss for anyone.”

A “loss” is a subjective valuation just like a gain. You might think I havent lost but I might think otherwise, you might even think I gained but still I might think I have lost.

Some people actually defend IP theft by claiming freely roaming IP promotes the product so it is actually a good thing but that is up to the owners to decide and this has nothing to do with property rights discussions. Tangible property also is being given away by the owners for promotion reasons but this doesnt mean there is no property rights whats so ever.

The term “Digital Rights Management” actually implies that you are not buying the good (song, movie or a digital book) but merely renting it for a life time (unless it destroys itself after sometime which is also possible). If there was a transfer of property title then the producer would stop managing the rights after the transfer.

nick gray July 16, 2007 at 2:32 am

Ktibuk- if loses are subjective, so what? I am not an objectivist, but subjective arguments are like moral arguments- personal. If we let subjectivism in as a guide, then we go right back to rule by whim, a feeling (for example) that Einstein’s theory of relativity violates subjective common sense and therefore shouldn’t be true! Here in Australia, land rights for Aborigines are held back because they want to use subjective feelings (a mystical ‘attraction’ to a landscape) as a guide to land claims. The rest of us Australians are starting to feel that all land claims are just land grabs, even for nontraditional lands that might ‘belong’ to another tribe.
Let’s just stick to external, objective, provable facts, losses and gains.

ktibuk July 16, 2007 at 3:48 am

“Ktibuk- if loses are subjective, so what? I am not an objectivist, but subjective arguments are like moral arguments- personal. If we let subjectivism in as a guide, then we go right back to rule by whim, a feeling (for example) that Einstein’s theory of relativity violates subjective common sense and therefore shouldn’t be true! Here in Australia, land rights for Aborigines are held back because they want to use subjective feelings (a mystical ‘attraction’ to a landscape) as a guide to land claims. The rest of us Australians are starting to feel that all land claims are just land grabs, even for nontraditional lands that might ‘belong’ to another tribe.
Let’s just stick to external, objective, provable facts, losses and gains.”

We are not talking about morality here but talking about economic value, or loss and profit.

There is an exchange and exchange happens only when there is reverse valuations of the parties.

And one party can not force his valuation on others.

I own the IP I rented out. I dont want its integrity (its DRM) to be agressed against.

You cant hack the drm but claim “hey nothing happened”.

If scarcity creates property and DRM creates scarcity untill it is hacked,

then

DRM protected IP is property before it is hacked.

Hacking is an “agression against property”, hence the only definition of crime.

IP is not nature given but produced by man. So please stop confusing IP with nature given abundant things and get a perspective.

Jesse July 16, 2007 at 1:44 pm

ktibuk: “Please lets not use utilitarian arguments, like how costly it might be to use anti copying technology. That is not the problem.”

That was not a utilitarian argument, it was an argument against the profitability of the copyright-contract business model. Cost of enforcement is a legitimate factor in determining the practicality of contractual arrangements, including copyright-by-contract.

ktibuk: “On theory, it is possible to implement anticopying technology for the digital media. It is being done today albeit not perfectly. . . . This is called creating artificial scarcity.”

True on all counts, unless you intended to imply that such anticopying technology could be perfectly implemented. That you would need to prove.

ktibuk: “Which in turn demolishes the claim that IP is not property at all because it is not scarce.”

False. For something to be property requires more than just scarcity (in the common sense which includes artificial scarcity). Property boundaries only exist where they must exist; this is where rivalry comes into play. In economics scarcity means natural scarcity, which in term is equivalent to rivalry; you’ve been using different definitions, which explains your confusion. Just because something can be made scarce does not make it property. (If it did there would be no distinction between aggressive and non-aggressive actions, since one could just declare one’s actions to be in defence of their preferences relabeled as property rights; “that wasn’t murder, it was just defense of my property right in my peace of mind”, etc.)

ktibuk: “On the question of hacking or breaking DRM, . . . . Problem is not whether or not theft can take place or the cost of security but if it is ok, lawfull or not.”

First, if it is theft then it’s obviously not OK or lawful. Second, you still haven’t proved that IP is property. Otherwise I agree.

ktibuk: “If you concede DRM is moral and legal then you must concede breaking or hacking the DRM is illegal.”

Peter was right, this is a non sequitur. You’re creating a circular argument: (a) DRM creates artificial scarcity, mainly due to it being illegal to break; (b) IP is property because it is scarce; (c) breaking DRM is wrong because IP is property. Besides the fact that both (a) and (b) are faulty, as I have previously stated, the illegality of DRM depends on its effectiveness at creating scarcity and its effectiveness depends the illegality of breaking it. You appear to be attempting to prove your assumption: that IP is property.

ktibuk: “. . . when you define property and theft you don’t take account the practical difficulties of making unbreakable locks or deterrents.”

True, but that’s exactly what you’re doing — your claim that IP is property is based on the existance of effective DRM to create artificial scarcity. If IP is property it is such with or without DRM. You haven’t raised any argument for IP as property in the absence of DRM.

ktibuk: “Maybe you can not find the first leaker, maybe you can not punish every thief . . . . This does not mean there is no crime or there isnt any property right.”

True, but irrelevant. That entire argument over the cost of enforcement was made with the assumption that IP isn’t property; thus the attempt to enforce copyright through contracts.

ktibuk July 18, 2007 at 4:46 am

Jesse: “That was not a utilitarian argument, it was an argument against the profitability of the copyright-contract business model. ”

If you are basing your argument on profitability then it is an utilitarian argument. I might profit more from investing you savings and you might just throw it away but that doesnt give me the right to steal your money.

Jesse: “False. For something to be property requires more than just scarcity (in the common sense which includes artificial scarcity). Property boundaries only exist where they must exist; this is where rivalry comes into play. In economics scarcity means natural scarcity”

Ok so you say natural scarcity is ok but artificial scarcity is not? Now you need to set forth an argument about this instead of keep repeating it.

Jesse: “True on all counts, unless you intended to imply that such anticopying technology could be perfectly implemented.”

So you are saying without a perfect safe or a perfect door lock against thieves there is no justification for any property. Are you kidding me? ,

Jesse: “Peter was right, this is a non sequitur. You’re creating a circular argument: (a) DRM creates artificial scarcity, mainly due to it being illegal to break; (b) IP is property because it is scarce; (c) breaking DRM is wrong because IP is property.”

Where is the circularity here? OI thouth circular means ending where it started. I started from somewhere and ended somewhere else.

Again.

DRM creates scarcity. According to your definition scarcity creates property. So DRM propertected IP is scarce thus property. HAcking is an aggression against property. Eventhough IP ceases to be property after it is hacked you should concede that hacking is an attack on property.

Unless you can prove artifical scarcity is illegali that I dont have a right to put DRM on IP, or I have an obligation to share IP with everyone you can not condone artifical scarcity since I am not agressing against anyones property by putting DRM. Thre agressor is the hacker.

Jesse: “You haven’t raised any argument for IP as property in the absence of DRM.”

Why should I? You are saying there cant be property rights without scarcity but ask for a property right argument in the absence of scarcity. Again, are you kidding me?

Jesse July 18, 2007 at 11:46 am

ktibuk: “If you are basing your argument on profitability then it is an utilitarian argument. I might profit more from investing you savings and you might just throw it away but that doesnt give me the right to steal your money.”

It was not a utilitarian argument because I was not asserting that IP is or is not property on the basis of whether making it property increases or decreases utility. Clear enough?

ktibuk: “Ok so you say natural scarcity is ok but artificial scarcity is not? Now you need to set forth an argument about this instead of keep repeating it.”

You’re the one asserting the positive, that IP can be property. Why should I have to disprove your assertion?

Since you’re rejecting my definitions, which ones would you prefer? What are property rights, why do they exist, and how do you tell valid assertions of property rights from invalid ones (and thus defense from aggression)?

For reference, my answers were as follows. A property right is the right to exercise ultimate decision-making with regards to how a resource (something that can be employed in service of one or more ends) will be transformed from one state to another. They exist because only one person can exercise such decision-making at a time with regard to a particular resource; divergent transformations are naturally rivalrous (interfere with each other). Valid property rights begin with the Lockean homesteading principle and are passed from one person to another through contractual title-transfer. Coercion is the usurpation of the owner’s right to decide how the resource will be transformed. Aggression is initiation of coercion, coercion which is not a proportional response to prior aggression. Defense is coercion which is a proportional response to prior aggression.

ktibuk: “So you are saying without a perfect safe or a perfect door lock against thieves there is no justification for any property. Are you kidding me?”

That’s my line. What I said was that you have not demonstrated that perfect DRM can exist, and I did not concede any implication to that effect. Nothing to do with mandating perfect locks as a precondition for the existance of property.

ktibuk: “DRM creates scarcity. According to your definition scarcity creates property. So DRM propertected IP is scarce thus property.”

First, you misrepresent my definitions. I specifically stated that scarcity (in the common sense which you’re using here) does not make something potential property, much less property. Homesteading creates property out of land (unowned potential property). On the contrary, by my definitions there is no point in holding property rights in IP because they are untransformable by nature; it is impossible to aggress against any property right in IP, and thus such rights would be empty, having no effect.

Second, DRM doesn’t make IP scarce, it makes physical instanciations (copies) of IP scarce. If anything, it would be an argument for ownership of the copies, but since they are already rivalrous (being physical objects) there is no need for such an argument. That the copies can be owned does not mean there is anything wrong with making new copies, any more than the fact that one can own a car makes it somehow wrong to build new cars, even in the likeness of the original.

ktibuk: “Unless you can prove artifical scarcity is illegali that I dont have a right to put DRM on IP, or I have an obligation to share IP with everyone you can not condone artifical scarcity since I am not agressing against anyones property by putting DRM.”

I think you meant “condemn”, not “condone”. And I didn’t argue that to begin with. You have every right to add DRM to your property (the copies you already own), but it doesn’t give you a property right in the patten itself (the right to prevent others from making copies). It merely makes it difficult for others to make copies, a practical deterrent but not an ethical/moral one.

ktibuk: “Why should I [argue for IP absent DRM]? You are saying there cant be property rights without scarcity but ask for a property right argument in the absence of scarcity.”

I don’t expect you to be able to make such an argument (thus my anti-IP stance), but you were the one that said that whether or not something is property does not depend on the existance of perfect locks. What difference does it make whether the DRM is weak or simply nonexistant? My property is my property whether or not I put a ten-foot barbed-wire fence around it; simply marking the boundaries is sufficient, and even that is probably unnecessary so long as my claim remains clear. If IP is property then it is such whether or not you employ DRM. Conversely, if it is not property then the addition of DRM will not make it property.

Kevin B. July 18, 2007 at 1:27 pm

ktibuk,

You seem confused. DRM increases scarcity of property, true, but it increases scarcity of physical property – not IP (Imaginary Property).

If you are resting your argument for IP on scarcity, then you fail here because it is physical property that is made more scarce due to DRM software.

“I dont really care about the electrons and particles and stuff.”

When it comes to arguing about electronics, you don’t care about the electrons? No wonder you think your example supports IP. You’re ascribing the results of all the physical operations to magic.

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