1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar
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 }

Kevin B. July 10, 2007 at 2:44 pm

I must second iceberg. Electromagnetic radiation is quite physical.

The argument that radio “frequencies” cannot be property is true, but I believe that Person meant the statement to mean radio waves, as iceberg answered, which are easily recognizable as private property.

Kevin B. July 10, 2007 at 2:54 pm

Apparently we were posting at the ssame time.

Person, you are correct that the properties of radiation in the general sense cannot be owned, just as I cannot own red, so I cannot own 92.5fm.

However, the bumping (interference) you refer to is forced alteration of another’s property. Therefore, if I am transmitting my radiation at a particular frequency, and you begin transmitting an interference, then who is violating who? I may not be able to claim ownership of the frequency per se, but I have already “filled the air” with my property of that frequency.

George Gaskell July 10, 2007 at 2:59 pm

If I homestead the materials for a radio transmitter and build one, does that entitle me to broadcast on any frequency, anywhere? Why not? Because radio frequencies can be property? But I thought those aren’t physical!

The use of a radio frequency by one transmitter is rivalrous with every other transmitter on that frequency.

(At least, it is rivalrous when using the 1920s-era technology under which the FCC forces transmitters to operate. Frequency-skipping technology, invented in the 1940s, but not implemented until the era of cell phones due to government interference in the broadcasting industry, reduces the rivalrous character of radio transmissions.)

Person July 10, 2007 at 3:06 pm

Kevin_B.: First, to clarify, I most certainly was referring to frequency ownership, as is everyone else who discusses property rights in the E/M spectrum. Second, I didn’t say that e.g. 92.5 fm can’t be owned; in fact, I think it (within a specific region) can be. This is exactly why I’m consistent on the issue. The capability of transmitting at 92.5 *is a resource*. It is scarce/rivalrous in that two people’s *values* conflict when they try to simultaneously broadcast along that frequency in the same time and place. Similarly, the capability of forming a set of wood and metal into a mousetrap *is a resource*. To the extent that one person may want a set of wood and metal to be so formed while another person does not want it to be so formed, it is *also* a scarce/rivalrous resource because of the conflict of values. Now, obviously this fact PLEASE PAY ATTENTION HERE DC does not suffice as a justifcation for preferring the claim of the person who doesn’t want the set to be formed. However, it does show that his claim cannot be denied on the grounds of non-scarcity, for the same reason it would be invalid on a radio frequency.

As for your second paragraph, Kevin_B., please specify exactly what the property right you are referring to and supporting, is. Is it the right to the air on that property? Nope, Stephan_Kinsella has already said that that was homesteaded, so obviously, you’re not allocating that right. So how would your articulate this right to broadcast at a particular frequency in a particular region?

Person July 10, 2007 at 3:09 pm

George_Gaskell: The use of a radio frequency by one transmitter is rivalrous with every other transmitter on that frequency.

Yeah, but it’s not physical! So it can’t be property, right? Why don’t you keep all of that back in your little intangible realm, and leave real, physical property to us non-socialists?[/Stephan_Kinsella's hard-headedness]

Reformed Republican July 10, 2007 at 3:09 pm

If I understand you correctly, the scarce good you refer to is “rights in scarce objects that use idea” not the idea itself. This implies that a person can somehow have rights to another person’s real, physical property. This is the very problem with IP–it gives one person control over how another person can use their property. How do you justify granting one person rights over another person’s property in this manner?

Person July 10, 2007 at 3:11 pm

Reformed_Republican:If I understand you correctly, the scarce good you refer to is “rights in scarce objects that use idea” not the idea itself. This implies that a person can somehow have rights to another person’s real, physical property.

No, it implies that the person has made a claim to scarce resources, and therefore cannot be dismissed on the grounds that “ideas aren’t scarce” or “IP isn’t scarce.” You know — the point I was trying to make all along.

Kevin B. July 10, 2007 at 3:12 pm

Also interesting is the fact that radio transmission is interference with surrounding others’ property other than radio receivers. Although the unrequesting receivers of the transmission cannot claim ownership of the frequency, they should be able to demand that the broadcaster cease forcing radiation onto their property.

Logically, the broadcasters should have to contract with affected property owners (all affected – not just those with radio receivers) in order to broadcast. I imagine common law could easily solve any disputes in this area, while upholding private property rights and ignoring phony frequency rights. (Hint hint..)

Reformed Republican July 10, 2007 at 3:14 pm

The person has made a claim to scarce resources owned by someone else, so it is not a valid claim.

Person July 10, 2007 at 3:19 pm

Reformed_Republican: That wasn’t the question. (In fact, I’m gonna imitate DC here and accuse you circularity.) The question was, can that claim be dismissed on the grounds of ideas/IP not being scarce? If you had bothered to do more than glance at my posts before responding, you would have noticed that I’m only establishing the invalidity of an argument against IP, not justifying IP. (In Stephan_Kinsella’s mind, you can make all the invalid arguments you want as long as you can bully others into ultimately agreeing with your conclusion, but he’s wrong in that respect.)

Kevin B. July 10, 2007 at 3:19 pm

Person,

I will try to be more clear. A photon may be property. A molecule of air may be property.

99Mhz cannot be property. 98 degrees F cannot be property.

Person July 10, 2007 at 3:22 pm

Kevin_B.: You’re not being clear enough. I asked you to articlate the right that you do support, related to radio transmission. Fill in the blank. “I support the right to/of _____.”

Kevin B. July 10, 2007 at 3:27 pm

Person,

Let me know if my best isn’t good enough.

I support the right to alter my own property, including the aleration of electrical energy to electromagnetic energy.

I do not support the right to alter another’s property without their permission, including the alteration of their property’s traits due to my transmission of electromagnetic energy.

Person July 10, 2007 at 3:30 pm

Kevin_B.: So you think you (and everyone) don’t have the right to emit any radio waves until you have the consent of every property owner whose property the waves propagate through.

Thanks, you can go now.

George Gaskell July 10, 2007 at 3:37 pm

Yeah, but it’s not physical! So it can’t be property, right?

Of course radio waves are physical. If they weren’t physical, they wouldn’t be rivalrous.

They are not physical on a level that human beings normally associate with tangibility. But special technology developed by many electrical scientists and engineers allows us to control this otherwise inaccessible aspect of the physical world in a way that defies normal, everyday experience for most people. But it’s still physical.

Sound waves are physical, too — they are merely pressure variations in the atmospheric medium. If I developed a device that could create anti-noise that could be aimed at a very specific spot, and I followed you around all day aiming it at your mouth, would you have a claim against me? Yes. Why? Because you may not have a general property claim to the air in front of your face at all times (which is normally non-rivalrous), but you DO have a property claim to that air as long as you are using it to speak (provided that you have the right to speak then and there in general). My anti-noise device becomes rivalrous with the air in front of your mouth while you are using that air to talk.

Kevin B. July 10, 2007 at 3:38 pm

Person: So you think you (and everyone) don’t have the right to emit any radio waves until you have the consent of every property owner whose property the waves propagate through.

Under a strict interpretation of property rights, it must be so.

In your inconsiderate dismissal, you ignore my earlier post:

Logically, the broadcasters should have to contract with affected property owners (all affected – not just those with radio receivers) in order to broadcast. I imagine common law could easily solve any disputes in this area, while upholding private property rights and ignoring phony frequency rights.

Person July 10, 2007 at 3:58 pm

George_Gaskell: Waves are not physical objects. The term “wave” refers to a *pattern* of movement, not just the referent of that pattern of movement. When I refer to a “sound wave”, I am referring to the event of matter moving back and forth at a frequency. (Look it up if you would.) In exactly the same way, IP rights are rights in particular *patterns* of use of physical objects. To say that you support the idea of property rights in frequencies is to say you support the right to prevent certain arrangements of (at least a broad set of) everyone else’s property. Think about it.

Kevin_B.: Yeah, I got that. I understand your position: no radio transmission until everyone whose property the wave enters, consents. It’s just that such a position is so asinine I’m not going to respond, and neither will anyone else.

George Gaskell July 10, 2007 at 4:48 pm

Waves are not physical objects. The term “wave” refers to a *pattern* of movement, not just the referent of that pattern of movement. When I refer to a “sound wave”, I am referring to the event of matter moving back and forth at a frequency. (Look it up if you would.) In exactly the same way, IP rights are rights in particular *patterns* of use of physical objects.

Yes, they are physical objects. You said it yourself — it is MATTER moving in a particular way.

This matter does not become property until it is excited into a particular wave pattern. The existence of this wave signifies its USE, and its USE is what makes it property. The mere fact that it is in a pattern does not make it property, which is why you cannot have a defensible claim to all such waves that follow that pattern, wherever they may be, whoever may be exciting them.

I realize that IP “rights” CLAIM to be a right to the exclusive use of a pattern, wherever it may be, whoever may be arranging it, but that is the very reason that IP fails as a defensible, true, natural right.

Person July 10, 2007 at 4:57 pm

George_Gaskell: I can just as well say of IP: “This matter does not become property until it is formed into a particular pattern. The existence of this pattern signifies its USE, and its USE is what makes it property.”

Now, try to differentiate that from radio frequencies again.

Kevin B. July 10, 2007 at 5:11 pm

You are saying that my argument is asinine?!

I am coming from a position of complete self-ownership and absolute property rights. Where are you coming from? It sounds as if you are arguing for ideas as property rights, and if other property rights are in the way – then we just sweep them under the rug. You are not arguing for rights but for privilege at rights’ expense.

Your words are empty.

Person July 10, 2007 at 5:14 pm

Kevin_B., I’ve been trying, for the past year, to explain to the drones here why the oft-repeated argument against IP is in error. Until people stop repeating it, I’m not going to be able to get to the more substantive issue of whether IP is ultimately justified.

Your position means that if even one person doesn’t consent to the radio waves, they can’t be transmitted. This means, for all intents and purposes, no one should ever be allowed to transmit radio waves. If you really don’t understand what’s wrong with that, there’s not much I can do to help.

Reformed Republican July 10, 2007 at 5:22 pm

Scarcity is not the only argument against IP, but it is definitely relevant. If ideas were scarce, there would not be so much debate among those who accept the idea of property rights. It is the fact the ideas are not scarce that causes those who do accept the idea of property rights to have so much disagreement on whether IP is justified.

Whenever anyone does try to move past that with you, and discuss the other points you raise, you change the subject back to scarcity, which you claim is irrelevant.

Kevin B. July 10, 2007 at 5:25 pm

Person: “Your position means that if even one person doesn’t consent to the radio waves, they can’t be transmitted… If you really don’t understand what’s wrong with that, there’s not much I can do to help.”

If one person doesn’t agree to fund a project that everyone else desires, must he be forced to fund it if his funds are necessary for the project to be had?

If you cannot see the blatant implications of your logic, then there is something I can do to help – point them out.

greg July 10, 2007 at 5:43 pm

Person> You cannot constently oppose all IP rights and support property rights in frequencies because they are both the rights to specific uses already-homesteaded scarce resources.

Or he could just have spectrum/resource argument problems on its own.

Kevin> However, the bumping (interference) you refer to is forced alteration of another’s property. Therefore, if I am transmitting my radiation at a particular frequency, and you begin transmitting an interference, then who is violating who?

I have not seen that property rights theory well-handles this question. There is some homesteading aspect that helps a little, but it isn’t really elegant at all. The characteristic that makes property rights function well in a certain domain, is that it depends upon stable physical location and/or stable physical form. When particulate moves, it does not do so with the consent of property owners it runs across, unlike the transport and/or title change of personal property.

George Gaskell> The use of a radio frequency by one transmitter is rivalrous with every other transmitter on that frequency.

Not precisely true. It is more that they “could potentially” and “sometimes do” rival each other. Primitive example: A 1 W transmitter on 916 MHz in California won’t interfere with a similar one in Utah. “Interference” is too complex a subject to handle in a general way, especially in a blog post.

George Gaskell> Frequency-skipping technology, invented in the 1940s, but not implemented until the era of cell phones due to government interference in the broadcasting industry, reduces the rivalrous character of radio transmissions.

Direct Sequence (code division multiplex) also “reduces” interference. Another way to say it is it makes more efficient use of the spectrum. However, “reducing” is most certainly not eliminating. Multiplexing methods can, in general, reduce interference. As you say, the FCC’s traditional multiplexing form was FDM. Frequency hopping is still FDM, it is just modified into a pseudo-random form, where collisions have lower probability.

Person> The capability of transmitting at 92.5 *is a resource*.

Huh? It is a power, an act — something someone can do. I see you are getting back to your “value scarcity” thing.

Kevin> I will try to be more clear. A photon may be property. A molecule of air may be property. 99Mhz cannot be property. 98 degrees F cannot be property.

wavelength = velocity_of_propagation/frequency

You’re talking two sides of the same coin. Either both (waves or frequency) are property or both aren’t. The “wave” has a “length.” Only in extremely broadbanded transmissions does the concept of a particular “wavelength” become a dubious concept itself. Instead, one might begin talking about spectral density, or similar.

Moreover, EM energy has the wave/particle duality, or as much justified, a frequency/particle duality. We typically use one or the other, depending upon which helps us solve the problem at hand. Since the concern here is with a physical mass, the particle nature is probably more suited.

However, the property right principle lends itself best to mass that tends to stay in one place (real property), and/or retain a relatively stable physical form (real and personal property). A photon at a given wavelength (frequency) does not tend to stay in one place (why else radiate it?). It is hard to see that it is real or personal property, as these terms are usually meant.

Kevin> Logically, the broadcasters should have to contract with affected property owners (all affected – not just those with radio receivers) in order to broadcast.

As it has a particle nature, property owners could perhaps reason that the photons were a pollution spraying onto their property. I haven’t seen a libertarian property rights argument persuasive in answering this question.

I have a thought question: Say an old pervert rancher owns a big hillside above a nice village, with happy homes and wholesome families. One day the old pervert rancher decides to cut the image of a giant penis and vagina on the hillside, and the villagers hate it because they think it upsets their children. The photon reflector is on the old pervert rancher’s property. But the photons are reflected onto the property of the happy village homes. Does the rancher have the property right to spray photons onto the villager’s property? Why or why not?

How are property rights in liquids, gases, or more generally moving particulate well handled by libertarian property rights theory?

Kevin B. July 10, 2007 at 6:14 pm

greg,

Your thoughtfulness is appreciated.

“You’re talking two sides of the same coin. Either both (waves or frequency) are property or both aren’t. The “wave” has a “length.” Only in extremely broadbanded transmissions does the concept of a particular “wavelength” become a dubious concept itself. Instead, one might begin talking about spectral density, or similar.”

I was merely pointing out that frequency is a measurement of a property of a resource, but not the resource. Speaking of coins, a typical coin has two sides – heads and tails. Whether the coin is showing heads or tails, I may own the coin, but I do not own heads or tails.

I enjoyed your old pervert scenario. It reminded me of a situation posed a while ago by another poster, Sasha I believe. I won’t get into that now.

The photon problem has a simple answer, for as I mentioned earlier: Photons may become property. When previously unowned property comes into your possession and you alter it, then it becomes yours. If you discard it onto someone else’s property, they may sue you or not.

Now, contrary to the limited imagination of some (ahem), people can work these unintentional trespasses out..trespasses, such as the constant barrage of light and sound from others’ homes can be reasonably dealt with in a contractual society. Note that unintentional trespasses such as these would be ignored, but there is a case based on property rights to be made against your old pervert rancher (any particular reason you chose a rancher?). He is dumping his garbage onto others property that they do not want. The case is easily judged by common law.

Kevin B. July 10, 2007 at 6:30 pm

I meant it may be easily handled by custom law and tort.

greg July 10, 2007 at 8:14 pm

Kevin> Whether the coin is showing heads or tails, I may own the coin, but I do not own heads or tails.

Maybe I wasn’t clear enough, or the “two sides” was just a poor choice of words. “Frequency” is another way of saying “wavelength.” It just means someone has a time reference to determine periodicity and thus wavelength, since the wave moves at a velocity. If one can “own” a radio wave, then what one is most often referring to is owning a frequency. Of course, one might also (and further) time division multiplex the idea and say “you own the wave at such-and-such time.” They might geographically multiplex it. They might spacially multiplex it (look at the new spatial MIMO schemes such as that used in 802.11n). There are many ways to agree on how to generate emissions while attempting to avoid collisions.

However, I sensed a bit of confusion on basic technical terms, so I wanted to make sure folks weren’t cavalier in oversimplification.

Kevin> Photons may become property.

I suppose in some cases that could be true, but we are talking about a particular case here: unwanted particulate not contained by the emitter (if it is universally wanted then who cares who “owns” it?) . An object is considered a particle when its dimensions are extremely small when compared to the system it is bounded by, and when the particle’s internal characteristics are unimportant to consideration of the problem. When we talk about a _radiated_ (radio) communication system, the system boundary is by its nature vaguely defined. This fact simply does not lend EM emissions well to a property rights regime when the vague radio system boundary is known to cross other better defined boundaries (like real property boundaries). If a person emitting contained the photons to within local consent region — based on more tangible property rights — then things would be at least agreeable and there is no problem.

I suspect that in a free system based on consent, and no innate and vague homesteader “right to radiate” or “ownership of wavelength,” then micro- and pico-cell systems would dominate, since the consent problem is naturally shrunk. In fact, this is exactly what has happened with the unlicensed bands. Less regulation seems to point to smaller cells in most cases. In point of fact, I think a consent regime means a granting of privilege to emitters by individuals and property holders within the vague system boundaries, where room for dispute would always be present to a degree. I would not call it “property.”

I find property rights theory application to particulate unpersuasive. Applying property rights to it seems to be ramming a square peg into a round hole.

“You can’t own it if you can’t pee on it” is not quite the same as saying “if it can be peed on, someone can own it.” The nature of property rights lends itself well to a great many physical objects, but that does not mean property rights are well-lent to *all* aspects of the physical world. That extreme case has not been made. When particles move and system boundaries are ill-defined, property rights has problems. Trying to solve the problem that way may have transaction costs people reject, even if they don’t consciously know that is what they are rejecting.

If a tree falls in the woods, and no one is there…. If I peed on a photon, would I know it?

George Gaskell July 10, 2007 at 10:37 pm

I can just as well say of IP: “This matter does not become property until it is formed into a particular pattern. The existence of this pattern signifies its USE, and its USE is what makes it property.”

Now, try to differentiate that from radio frequencies again.

IP extends its claim to ALL instances of ALL matter that are formed into that particular pattern, regardless of whether the claimant was the first to use that matter (and thus appropriate it as his property), and thus regardless of whether someone else has a superior property claim to that matter.

Non-IP (i.e., legitimate) property interests in radio transmissions do not extend nearly as far. The first person to use the matter in question acquires it as his property, but only to the extent that he needs it to accomplish his use. This is a basic feature of homesteading and its allocation of a single economic unit. In the case of radio (or any other form of EM signal), the unit is the range of spectrum needed to transmit a signal that is rivalrous with all other uses of that part of the spectrum. To the extent that one person’s use is not rivalrous with another person’s use, it cannot legitimately be claimed as property.

nick gray July 11, 2007 at 12:13 am

The current method of regulating radio waves is through licenses. The basis of this seems to be that ‘Government’ owns the wavelengths, and can issue licenses to use them, like issuing licenses to cars. Couldn’t it simply sell the rights to a spectrum, like a homestead system for frequencies? As for intrusion, you only notice radio waves if you have specialised equipment to detect them. It’s not like someone shouting rude things from a public road onto your property! I have no problem with a government claiming to have been the first owner of something like a wavelength spectrum, so long as I am allowed to buy a piece of it!

TLWP Sam July 11, 2007 at 12:51 am

Owning a photon? How do you do that unless it’s trapped in some loop? If it bounces off an object and goes into the sky, you can’t catch it, cause in one second it’s going to be some 300,000 km away from you. :P

averros July 11, 2007 at 3:55 am

Classical state (i.e. information about particle speed, momentum, and such) can be replicated indefinitely, and therefore cannot be property.

Quantum state (i.e. existence of a particle, its energy, and such) cannot be replicated due to non-cloning theorem and thus is scare and can be propety.

It follows that photons can be propety. 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:)

Anthony July 11, 2007 at 6:46 am

“I have no problem with a government claiming to have been the first owner of something like a wavelength spectrum, so long as I am allowed to buy a piece of it!”

Governments can homestead nothing. The resources with which they produce are taken from rightful property owners. For all purposes, their “property” is unowned and may be homesteaded at any point.

ktibuk July 11, 2007 at 7:48 am

Let’s say there is no law for IP, state is not enforcing it.

May people, using technology like DRM, prevent IP from being copied, or using different technology that destroys the IP after being used for once?

Is this against natural property rights law?

jeffrey July 11, 2007 at 8:03 am

There is nothing wrong with devising methods for restricting the uses of property, and DRM is one example. This is what takes place in the font market, for example. Fonts can’t be copyrighted in the US, so font makers have to decide how best to distribute them in a way that is profitable. In a free market, distribution methods would be subject to a market test, not state enforcement.

(By the way, the font market is a good illustration of how in the absence of copyright, there would not be some strange calamity in which everyone would be frozen into inaction.)

Person July 11, 2007 at 8:04 am

George_Gaskell: That’s still not a difference. A radio frequency right *also* “extends its claim to ALL instances of ALL matter that are formed into that particular pattern,” specifically, the pattern of radio transmitter that broadcasts at a given frequency. (Btw, no one I know of, including Stephan_Kinsella, predicates the homesteading principle on what amount of a new resource you “need” to use to accomplish something, so there you’re just off on your own little theory.)

You then claim that the scarce “unit is the range of spectrum needed to transmit a signal that is rivalrous with all other uses of that part of the spectrum”. However, like everyone else, you haven’t bothered to read anything I’ve written about the inconsistent use of the concept of rivalrousness. What do you mean that it’s rivalrous here? It is, after all, possible for two people to *emit radio waves* at the same frequency in the same region. It’s not like, you know, REAL PROPERTY, like apples, where e.g. one person eating one literally prevents another from eating it. Really, the only way such dual trasmission creates a conflict is that each transmitter doesn’t *like* that the other guy is doing it.

You know — like the conflict an IP claimant has with alleged infringers.

Person July 11, 2007 at 8:06 am

jeffrey: DRM is useless without IP laws. Would you tell people that property rights can be replicated through locks?

DC July 11, 2007 at 8:29 am

Person, you wrote:

Since I have shown that the *position* most certainly does claim scarce resources, this objection can no longer apply, no matter what my justification for that claim. Again, Stephan’s argument is intended to apply regardless of how the pro-IP advocate claims to justify that position; therefore, so does my explanation about how the pro-IP adovcate avoids this attack.

Your argument rests on the claim that Kinsella doesn’t recognize IP claims as being claims on scarce property.

If, on the other hand, it is the case that Kinsella recognizes IP claims as claims on scarce goods and rejects these claims on the grounds that they are dependent on idea-ownership claims — or otherwise baseless — then your counterargument doesn’t work.

Let’s at least let Kinsella’s paper define what he’s doing. He lays out very clearly on pages 20-21 the function of and criteria for a coherent system of assigning property rights:

The function of property rights is to prevent interpersonal conflict over scarce resources, by allocating exclusive ownership of resources to specified individuals (owners). To perform this function, property rights must be both visible and just.
. . .Property rights must be demonstrably just, as well as visible, because they cannot serve their function of preventing conflict unless they are acceptable as fair by those affected by the rules. If property rights are allocated unfairly, or simply grabbed by force, this is like having no property rights at all; it is merely might versus right again, i.e., the pre-property rights situation.

Later, on page 25, he outlines the pro-IP claim in a way that is, interestingly, identical to your objection:
Let us recall that IP rights give to pattern-creators partial rights of control — ownership — over the tangible property of everyone else. The pattern-creator has partial ownership of others’ property, by virtue of his IP right, because he can prohibit them from performing certain actions with their own property. Author X, for example, can prohibit a third party, Y, from inscribing a certain pattern of words on Y’s own blank pages with Y’s own ink.

This is precisely, according to Person, what should be causing Kinsella problems. So how does Kinsella deal with it?

That is, by merely authoring an original expression of ideas, by merely thinking of and recording some original pattern of information,
or by finding a new way to use his own property (recipe), the IP creator instantly, magically becomes a partial owner of others’ property. He has some say over how third parties can use their property. . . . It is this invasion and redistribution of property that must be justified in order for IP rights to be valid.

So it seems that unless there is a justification that does not reference idea-ownership, Kinsella’s scarcity objection will be relevant. This because his objection is to the justification of IP claims, not just a vague objection to their “position” as such (that is, a claim without justification). Kinsella clearly rejects such claims on pages 20-21.

I don’t think that you have a case unless you twist Kinsella’s argument. Does this seem to you like he’s not attacking the IP advocate’s justification for making IP claims?

(Note: I apologize for any bad line breaks in my quotes; the PDF file pasted with them, and I’m not 100% I got them all)

Person July 11, 2007 at 8:40 am

DC: “So it seems that unless there is a justification that does not reference idea-ownership,”

Yes, there is a justification that does not reference idea-ownership. Specifically, the one I gave. You’re still attached to the idea that because the IP advocate’s position *can be* (metaphorically) phrased as idea ownership, and a *literal* interpretation of the concept of idea ownership is flawed, then IP necessarily relies on a flawed concept.

I don’t know how you can adhere to such a position after everything I’ve explained to you. Your objection applies to *any* instance where someone rephrases *any* argument metaphorically. Like I tried to explain to you in the analogy you falsely rejected as a strawman, I could claim that owning giraffes relies on “owning biology”. I could do just like you and claim that the common thread across all instances of giraffe ownership claims are a claim on a part of the biological world. It wouldn’t be relevant to anything.

Incidentally, Stephan_Kinsella’s statements there are pure question-begging. He assumes that usage of the idea in other people’s possessions, is part of their property. Whatever argument he uses to justify ownership of radio frequencies, would show that this is not the case when applied here. He should have used more neutral, less-loaded terminology. But that presupposes intellectual honesty.

George Gaskell July 11, 2007 at 8:58 am

like everyone else, you haven’t bothered to read anything I’ve written about the inconsistent use of the concept of rivalrousness

That is correct — I have not bothered to read everything you have written on the subject. This is true for the following reasons:

1. You are not an authority on the subject;
2. You an anonymous nobody;
3. You are personally abrasive, and seemingly afflicted with an outrageously inflated sense of your own importance; and
4. You are incapable of constructing a coherent, succinct, persuasive argument; and consequently
5. You haven’t earned a sufficient level of my respect for your intellectual capability or personal character that I would care to expend the effort of seeking out your precious writings on this or any other subject.

What do you mean that it’s rivalrous here? It is, after all, possible for two people to *emit radio waves* at the same frequency in the same region. It’s not like, you know, REAL PROPERTY, like apples, where e.g. one person eating one literally prevents another from eating it. Really, the only way such dual trasmission creates a conflict is that each transmitter doesn’t *like* that the other guy is doing it. You know — like the conflict an IP claimant has with alleged infringers.

No, that is unlike IP. The rivalry among users of the earth’s EM field is, however, very much like the use of, for example, the earth, which as you may be aware is often used by multiple people simultaneously for the purpose of growing plants.

As long as any given patch of earth is being USED by one person for the purpose of growing something to eat, that patch cannot, at that moment, be USED by another person to grow something else. Using the soil for this purpose is not destructive of the soil the way that eating an apple is destructive of that apple, but one use interferes with other uses.

The EM field of the earth is somewhat different in the way it can be divided among users, inasmuch as a user does not occupy a discrete, two-dimensional territory, but rather, many contemporaneous users of this physical EM field can use it as long as their transmitting equipment is capable of modulating its frequencies and amplitudes.

Therefore, electronic transmissions are apparently unlike IP in every meaningful way.

Person July 11, 2007 at 9:16 am

George_Gaskell: That is correct — I have not bothered to read everything you have written on the subject. This is true for the following reasons: [...]

I was just referring the posts I made in *this* thread and others that *you* have posted on, not some writings on some website that I have to get your “respect” to read. It’s not asking much that you read my posts before responding to them. I have explained the inconsistency in the use of scarcity in places where you have seen and responded to it, several times. You have no excuse for not reading it before it before responding to it.

I am, after all, a Person. I don’t need to win your approval. I don’t need to establish credibility. If my arguments make sense, they make sense. If they don’t, they don’t. Who I am has nothing to do with that. If you believe Stephan because he’s Stephan, the cognitive bias is on your side. You may be content to live your life that way, but you’re still an intellectual coward.

If you’re not going to bother to read what others have to say before responding to them, you might as well just give up because you’re not contributing to the discussion.

No, that is unlike IP. The rivalry among users of the earth’s EM field is, however, very much like the use of, for example, the earth, which as you may be aware is often used by multiple people simultaneously for the purpose of growing plants. [...]

You still haven’t responded to my question. In what sense is the frequency rivalrous? I asked where the rivalry arises. 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. But certainly, you mean something more. Please rigorously define what you mean by rivalrous and then explain how a radio frequency is rivalrous in a way that IP is not. Or, concede that this topic is over your head.

George Gaskell July 11, 2007 at 9:37 am

In what sense is the frequency rivalrous? I asked where the rivalry arises.

I answered your question already, but I will repeat it and elaborate on it because you apparently failed to understand it.

Radio transmission is rivalrous in the same manner as the use of dirt is rivalrous for competing uses. User A cannot use a section of dirt to grow cabbage while User B attempts to use it to grow apples. Their respective uses, although each productive if performed independently, interferes with the other.

The EM field is, because of the nature of radio transmission and reception technology, divisible according to frequencies (although I believe it is also divisible according to amplitudes, as the existence of the AM band may demonstrate). Transmission in one frequency in one area is rivalrous with other simultaneous transmissions in the same frequency in the same area, in the sense that neither can accomplish their respective uses when they transmit simultaneously. (This example ignores more modern frequency-skipping technology that allows multiple users to use the same EM field without such rivalrous, mutual interference.)

DC July 11, 2007 at 9:41 am

Person, you write:

Yes, there is a justification that does not reference idea-ownership. Specifically, the one I gave.

(1) The ‘one that you gave’, as I recall, was explicitly not a justification, by your own argument. [Person: (And "position" means just that that -- the statement of what you believe and are trying to support, without the underlying arguments that support it)]. I’ve challenged you several times to provide a pro-IP argument without referencing idea-ownership. All we have seen so far was the rephrasing of an assertion, or “position”, as you say. Arguments involve premises and a conclusion.

(2) You have repeatedly argued that the justification doesn’t matter anyway, and that Kinsella’s objection wasn’t to the justification of the argument but to the “position” itself — are you now abandoning this claim?

Person writes:
You’re still attached to the idea that because the IP advocate’s position *can be* (metaphorically) phrased as idea ownership, and a *literal* interpretation of the concept of idea ownership is flawed, then IP necessarily relies on a flawed concept.

No, I’m claiming that the IP case rests necessarily on a flawed concept because that is the only coherent IP argument for claims on scarce goods, not because it “can be phrased metaphorically.” So far we haven’t seen any alternative IP argument that doesn’t rely on idea-ownership (again: care to provide one?)

Like I tried to explain to you in the analogy you falsely rejected as a strawman, I could claim that owning giraffes relies on “owning biology”. I could do just like you and claim that the common thread across all instances of giraffe ownership claims are a claim on a part of the biological world.

Your straw man was deficient for reasons that I highlighted above, especially in providing an alternate analogy.

Besides, suppose that a group of nut-cases did advocate owning giraffes, and that the only justification for their claims — aside from bald assertions — was an appeal to biology-ownership. Why isn’t it relevant to answer these claims by saying:

(1) Without a sound justification, the assertion “I own all giraffes to the extent that they are instances of ‘biology’” is no better than any other claim and has no merit in determining just ownership.
(2) The only justification provided, relying on homesteading of ‘biology’, is not a sound justification.
(3) Therefore, the claim shouldn’t be taken seriously in determining the ownership of giraffes.

Person July 11, 2007 at 10:22 am

George_Gaskell: I answered your question already,

No, you didn’t. The problem I posed requires a level of specificity you did not provide until now.

The EM field is, because of the nature of radio transmission and reception technology, divisible according to frequencies. … Transmission in one frequency in one area is rivalrous with other simultaneous transmissions in the same frequency in the same area, in the sense that neither can accomplish their respective uses when they transmit simultaneously.

Ah! The plot thickens! So, now your principle is, “if two people cannot accomplish their uses simultaneously with a resource, that resource is rivalrous.” However, that still isn’t specific enough. The two people most certainly did accomplish their uses — they *both* transmitted. (Unlike with land, where the cabbage plant cannot be put in the same place as the apple plant.) What I think you mean to say is that, even though both were transmitting, they didn’t *like* the output that existed when both transmit at the same time. Or maybe you mean that even though they were both transmitting, it didn’t accomplish their *intended* use for it. Or perhaps some other distinction entirely. Do tell!

DC: I said, “Yes, there is a justification that does not reference idea-ownership. Specifically, the one I gave.” To which you replied:

The ‘one that you gave’, as I recall, was explicitly not a justification, by your own argument. … All we have seen so far was the rephrasing of an assertion, or “position”, as you say. Arguments involve premises and a conclusion.

Don’t be dense. If the *position* can be transformed so as not to reference “idea ownership”, any part of the justification that does so can be similarly transformed/rephrased.

No, I’m claiming that the IP case rests necessarily on a flawed concept because that is the only coherent IP argument for claims on scarce goods

Really? Can I briefly skim over your individual refutation (as incoherent) of every pro-IP argument that has ever been presented?

not because it “can be phrased metaphorically.”

Sorry, about 60 times now, you’ve referenced the metaphorical phrasing of the pro-IP position (“idea ownership”) as if it had some rhetorical merit.

Your straw man was deficient for reasons that I highlighted above, especially in providing an alternate analogy.

No, below is the first time I’ve seen you explain why.

Besides, suppose that a group of nut-cases did advocate owning giraffes, and that the only justification for their claims — aside from bald assertions — was an appeal to biology-ownership.

No serious group of IP advocates supports there position with merely “bald assertions” and an appeal to idea ownership. To the extent that they reference “idea ownership” it’s as a metaphorical position statement, NOT the underlying justification (which would be something about the usefulness of respecting such rights, the wrongness of copying a creator’s intellectual labor, etc.). Any reference to “idea ownership” that appeared in the *justification* (if anyone actually does that) could, in any case, be trivially transformed to an equivalent expression that doesn’t involve it.

DC July 11, 2007 at 10:55 am

Person, you write:
If the *position* can be transformed so as not to reference “idea ownership”, any part of the justification that does so can be similarly transformed/rephrased.

Splendid, because the pro-IP arguments that I see reference ideas essentially. Can you transform the entire argument so that it no longer makes reference to ideas? (It’s nice that you keep saying that it’s possible, but I’d like to see it for myself).

Person writes:
To the extent that they reference “idea ownership” it’s as a metaphorical position statement, NOT the underlying justification (which would be something about the [1]usefulness of respecting such rights, [2]the wrongness of copying a creator’s intellectual labor, [3]etc.)

[1] Usefulness of respecting what rights? The right to own every object to the extent that it instantiates my (oh, sorry: an) idea? The IP position on this — even with your rephrasing — would still rely on connecting people to property through ideas that have been homesteaded.

OK, so they aren’t calling it “property”, but that is the substance of the claim. Otherwise I can claim to own every drum set insofar as it instantiates “drums”, and it’s as legitimate as any other person’s claim to anything. What makes the claims justified and particular to these goods and not others? What’s the connection between the author and that book in China?

[2] ‘The wrongness of copying a creator’s intellectual labor’ is some technical phrase that you haven’t defined. What is the thing in question being copied, and in what sense is it wrong? I’d be curious to see how this avoids talking about homesteaded ideas or appealing to a “first to think it gets certain rights” principle.

[3] ???

George Gaskell July 11, 2007 at 11:09 am

What I think you mean to say is that, even though both were transmitting, they didn’t *like* the output that existed when both transmit at the same time. Or maybe you mean that even though they were both transmitting, it didn’t accomplish their *intended* use for it. Or perhaps some other distinction entirely. Do tell!

You do understand the word “use,” yes?

You can plant an apple seed and a cabbage seed in almost exactly the same spot. However, only one can be counted on to successfully grow there, hence the rivalry of the plants becomes the rivalry of the planters. The farmers’ USES of the land consists of more than the mere act of planting their seeds in the ground.

Before the invention of the radio, no one was using the earth’s atmospheric EM field (not in a way that I am aware of, anyway), even though a portion of this EM field occupied airspace that we would normally consider to have been owned by someone else. But, as it turned out, there is an aspect of this physical space that was going unused, which another person could use without interfering with the use by the radio-less erstwhile owner of that space. There may be other unused aspects of the physical world in our otherwise-owned airspace that are as yet undiscovered.

But this is all so basic that I am rapidly losing interest. If you would like to stop playing games, such alternating between the roles as hall monitor of the Socratic inquisitor, and actually say, plainly and succinctly just what you think all of this has to do with scarcity, rivalry or use in the IP context that you are trying to say, I am willing to read it, for now. Please come to the point.

ktibuk July 11, 2007 at 11:25 am

“There is nothing wrong with devising methods for restricting the uses of property, and DRM is one example.”

Is a DRM restrıcted song scarce resoruce?

Person July 11, 2007 at 11:29 am

DC: Splendid, because the pro-IP arguments that I see reference ideas essentially.

Don’t be dense. The question was whether they reference idea *ownership*, not ideas.

Re: [1],[2],[3] I was simply showing the *kind* of justifications people use for IP, to refute your claim that IP advocates always invoke some appeal to idea-ownership *as their justification*. My examples establish that their justifications are not, as you seem to think, simply appeals to “idea ownership” which would in any case be a metaphorical representation of the substance of the position. (Since your attention span is a bit short, I’m going to remind of the greater context of that argument there: I claimed that your constant reference to “idea ownership” is just a way of saying “Another way of expressing the pro-IP position is stupid, so it’s invalid.” You then claimed that no, IP advocates really do based their position on the literal meaning of that phrasing, and the examples I just gave disrpoved that. I hope that keeps you from bringing up an irrelevant point this time.)

Person July 11, 2007 at 11:41 am

George_Gaskell: I’d love to jump straight to the point; it’s just that whenever I do that, it triggers people’s recitation of arguments of tenuous relevance. But I’ll give it a try anyway:

In specifying what exactly is meant by rivalry, you have conceded my point. What determines rivalry of a resource is, as you admit, its ability to simultaneously accomplish what the various actors *desire*, not merely the possibility of coincident physical manipulation (as happens when two people broadcast at the same frequency or plant crops in the same hole).[1]

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. It doesn’t matter that this idea can be simultaneously used, just as it doesn’t matter a frequency can be simultaneously broadcast along. What matters is that the substance of the two people’s *desires* cannot be simultaneously satisfied, just as it is not satisfied when people broadcast along the same frequency at the same time.

Now do you get it?

[1]Incidentally, I tried a while back to introduce the shorthand of “value scarcity” vs. “physical scarcity” in explaining this very same thing. I think we all remember how maturely you all responded.

DC July 11, 2007 at 11:44 am

Person, you write:
The question was whether they reference idea *ownership*, not ideas.

That’s fine: The arguments that I see need to reference idea ownership essentially. (They can also remain unjustified assertions, as I have elsewhere pointed out). I shortened it to “ideas” because referencing ideas when making ownership claims seems irrelevant unless there is some sense of ownership (or justification for ownership) implied.

Person writes:
Re: [1],[2],[3] I was simply showing the *kind* of justifications people use for IP, to refute your claim that IP advocates always invoke some appeal to idea-ownership *as their justification*.

The problem is that, as I argued, those justifications must invoke idea-homesteading or ownership in order to be coherent, or (at least) any more meritorious than my saying “I own all desks to the extent that they are instantiations of ‘work-table-topness’.” Your stating that they avoid needs to show how they do so.

In what way can the IP advocate avoid idea-homesteading or ownership? Can you write out one of those arguments so that it has premises and a conclusion to show how? If it’s so easy to do, given the alleged irrelevance of the scarcity objection, this shouldn’t be a problem.

Stephan Kinsella July 11, 2007 at 12:09 pm

Person, you state that IP is rivalrous. It is not. Even advocates of IP don’t maintain that it is. Rather, they justify IP on utilitarian grounds. You just don’t understand the economics. If I build a mousetrap similar to yours, it does not prevent you from using and having your mousetrap. We can both use the pattern or idea at the same time.

By contrast (though this thread is not about homesteading airwaves), we cannot both broadcast at a given wavelength (BTW, wavelength is just the inverse of frequency) in the EM spectrum in a given area. This is really not that complicated. It’s just that some people can’t bear to imagine a world without state granted monopolies, so they fight it tooth and nail.

Comments on this entry are closed.

Previous post:

Next post: