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Source link: http://archive.mises.org/7199/intellectual-property-why-jefferson-was-wrong/

Intellectual Property: Why Jefferson Was Wrong

September 21, 2007 by

Draft paper by G.E. Morton, Intellectual Property: Why Jefferson Was Wrong (RTF version). Wow, someone’s actually defending IP lately. Brave guy. Oh well, I guess it’s useful to keep a few of these around, if only for historical purposes. (He criticizes yours truly heavily.)

{ 125 comments }

Artisan September 25, 2007 at 4:47 pm

Dr. Kinsella:
I never said “material,” but rather “scarce” or “rivalrous,” and such resources do have a physical aspect, of course.
——————————————————

Sure, sun rays for instance, have “a physical aspect”. (Not any more than any original artistic pattern has: to have a physical aspect is the condition for copyright, you tend to forget)

But you doubt the fact though that imitating the unique art work pattern deprives the original author from any “physical” resource.

Ask yourself this: how am I depriving you of anything if I build next to you on my property for instance, another facility that casts a shadow on your solar panel say, for only one hour a day?

Traditional flawed “scarcity” argument used by IP opponents go like this to demonstrate I don’t “steal” anything:

Do you own the sun? Are there less sun rays when I remove that facility than there were before I cast that shadow? You can’t count the missing rays, because sun rays are not scarce! So nobody took nothing from you!

(Does that sound like familiar logic, Mr. Kinsella? Doesn’t sound like homesteading though.)

Other flawed arguments that can’t cope with homesteading are:

Do you own the material that A used to build the actual facility which temporarily blocks the sun rays from reaching B? No? Thus there is no property infringement!?

ktibuk September 25, 2007 at 6:06 pm

“If Owner and Freeloader both have a contrary use in mind for the theater building or a seat within it–Owner says “no entrance unless you pay”; Freeloader says, “I get in for free since it costs you nothing since it’s not ‘economically rivalrous’”–then we have to determine which of them, if either, has the better claim to that scarce resource. It happens to be the owner.”

What contrary use? They can use the theatre at the same time without a problem. Only that one of the guys wants to exclude the other.

And No. According to your theory we don’t need to determine anything yet, since there is no scarcity. No ones use stops some others use.

According to your theory:

We dont even have an owner established since we havent established who owns if anybody owns anything yet.

First there must be some resource that isn’t enough to satisfy everyones needs at the same time for the process of assigning poperty rights to begin. But in this case there is a resource that satisfies everyones needs, the 1000 seat capacity theatre.

One guy says

“Hey I built the damn thing. This thing isnt nature given or appeared magically one night. It has my blood and sweat in it. I can use it however I want.”

But you say

“Who cares if you built it or not. Property rights are only here to solve conflicts. Since there is no conflict, since everyone can satisfy their need at the same time without stepping on each others toes, this good is non rivalrous, non scarce, thus free.”

Cant you really see the absurdity here? Are you that stubborn to see that you have problem?

ktibuk September 25, 2007 at 6:13 pm

“I never said that paying more for a novel than a blank notebook is fraud.”

You implied it. Since there is no IP the two are infact the same. Thus paying more to one and less to anothe must be fraud.

“If you don’t believe me, then I have a bridge in Heaven to sell you.”

Even in this sentence you imply fraud. You imply that I am so naive that you can sell me something that doesnt exist, thus fraud me by taking advantage of my stupidity.

And actually you can sell me a story about a magical bridge to heaven. If it is a good story that is. Although I doubt you could be that creative. If you were able create IP you wouldnt be here saying that it doesnt exist.

Stephan Kinsella September 25, 2007 at 9:29 pm

kitbook:

“If Owner and Freeloader both have a contrary use in mind for the theater building or a seat within it–Owner says “no entrance unless you pay”; Freeloader says, “I get in for free since it costs you nothing since it’s not ‘economically rivalrous’”–then we have to determine which of them, if either, has the better claim to that scarce resource. It happens to be the owner.”

What contrary use? They can use the theatre at the same time without a problem. Only that one of the guys wants to exclude the other.

Boy, some people just have a poor imagination. To get into the theater, you have to walk through the “front door” past a “ticket puncher” guy. Owner does not want Freeloader using his entrance; Freeloader wants to use it. See the conflict, or do you need to get a new prescription?

And No. According to your theory we don’t need to determine anything yet, since there is no scarcity.

There’s a conflict.

No ones use stops some others use.

Sure it does. The owner wants to keep the seat open, unfilled. The freeloader wants to sit in it. that’s a conflict.

According to your theory:

We dont even have an owner established since we havent established who owns if anybody owns anything yet.

Are ye daft? Of course, the theater owner already owns it. He homesteaded the land and built the theater.

First there must be some resource that isn’t enough to satisfy everyones needs at the same time for the process of assigning poperty rights to begin.

Did you say “blah blah blah”? Because it sure sounded like it.

But in this case there is a resource that satisfies everyones needs, the 1000 seat capacity theatre.

No, it doesn’t, not if the owner doesn’t let them use the property. Duh!

ktibuk September 26, 2007 at 4:06 am

Kinsella,

Thanks to your last post I am now sure that you are not mentally capable of handling a theory like property rights. Of course users can decide on their own.

I am done.

RWW September 26, 2007 at 9:28 am

Yes, some of us have a hard time with the cognitive dissonance of “intellectual property.”

Kevin B September 26, 2007 at 1:20 pm

ktibuk,

There are physical differences between the book and the blank paper. Whatever IP is, it doesn’t cover that – and that is what I’m selling.

“You imply that I am so naive that you can sell me something that doesnt exist…”

The bridge in Heaven is abstract – just as your IP is.

ktibuk: All Ip, although abstract in original form,…

The bridge in Heaven is as real as your definition of IP. That’s my point. You say it would be fraud for me to take your money for the bridge. In that case, selling any IP in the purely abstract sense would count as fraud.

“…able create IP…”

IP cannot be created. Telling a story about a magical bridge won’t make it exist.

ktibuk September 26, 2007 at 2:07 pm

If

A Novels price = Blank notebook price + The price of ink

then

you are right.

But it isnt is it?

And if there is a difference in price, according to your logic it is paid for something that doesnt even exist.

Why cant you accept the obvious, that there is something there. It is created, valued, exchanged and not physical.

I am starting to think all of you are dellusional in different ways.

Some of you are stuck on scarcity needlesly as proven above, some of you deny the existence of IP outright and some of you are real socialists who thing people owe you these novels, songs and movies.

Stephan Kinsella September 26, 2007 at 2:19 pm

Kitbook wrote, “First there must be some resource that isn’t enough to satisfy everyones needs at the same time for the process of assigning poperty rights to begin.”

Actually, all you need is conflict over a given resource in order to need to assign a property right. Clearly, if Owner doesn’t want Freeloader entering the theater, and the Freeloader insists on it, there is a conflict over this resource. In fact, that’s why I define “scarcity” in terms of conflict. Anything you can conflict over is a scarce resource for purposes of property right. Your “economic scarcity” concepts are utterly irrelevant. Gotcha.

Kevin B September 26, 2007 at 2:27 pm

Holy cow, ktibuk.

If you use a certain amount of ink to draw the letter “A” on paper and use the same amount of ink to draw the letter “B” on another paper, that doesn’t make them the same.

Where are you sitting? There is a computer screen in front of you, right? Well, if take apart your monitor and arrange the parts in a different pattern, will it be worth the same amount of money?

A computer screen is physically different from a pile of parts. A novel is physically different from a pile of paper and ink.

A pile of parts + “IP” = a pile of parts

A pile of parts + labor = computer screen

Scott September 26, 2007 at 2:33 pm

ktibuk,

Put a photo of an expensive car or beautiful woman on the cover of that notebook. Won’t it most likely sell for more? Is that because of it’s IP-ness or because people subjectively value the presence of an image on their notebook?

People often subjectively value a notebook that contains letters arranged according to patterns that are meaningful to them more than a notebook with random letters. This realization does not help to advance a theory for why a particular arrangement of letters should be perceived as property. That many people subjectively value the item is demonstrable, but we cannot infer from that observation alone that the pattern itself is property.

Artisan September 26, 2007 at 3:20 pm

Don’t worry Ktibuk, you really don’t need to persuade Dr. Kinsella or others here so hard from the ethics of copyright.

The old guard is probably never going to amend its views.

Nevertheless, for good or bad reasons, copyright is now accepted and felt as being right to some extent, by the vast majority of people.

So if this blog doesn’t do a better job convincing even the well informed defenders of free market, how is it going to ever educate a whole population into “artistic socialism …er sorry, non-property” while promoting free market ?

Someone who reads Rothbard and other very prominent free market thinkers, eventually understands that copyright has a good justification in every human society. The opposite conclusion is very unlikely.

If nothing changes IP opponents will thus always just be bunch of eccentrics whose understanding of artistic matters, the philosophy of free will, and free market is relatively inconsistent…

ktibuk September 26, 2007 at 3:57 pm

“Actually, all you need is conflict over a given resource in order to need to assign a property right. Clearly, if Owner doesn’t want Freeloader [copying the movie], and the Freeloader insists on it, there is a conflict over this resource. In fact, that’s why I define “scarcity” in terms of conflict. Anything you can conflict over is a scarce resource for purposes of property right. Your “economic scarcity” concepts are utterly irrelevant. Gotcha.”

When people espectin IP say this, you claim the owner (or whatever you call it) ceates artificial scarcity arbitrarily by force and you deny the lgeitimacy of IP.

But when it comes to the theatre example all of a sudden that aspect is not important anymore.

You wote “In fact, that’s why I define “scarcity” in terms of conflict.”

If conflict defines scarcity then IP is scarce because clearly there is conflict between the creators and the copiers.

Theatre example is deliberatly given as an example where there is abundant, non scarce tangible resoruce and the resource can satisfy everyones need as a consumer.

But in this example you insist there is scarcity where there is none and concede there must be an owner.

Thus you contradict yourself.

Got me how?

ktibuk September 26, 2007 at 4:06 pm

Ok Kevin B,

So you can see the diffeence between random computer parts and the computer itself.

See that difference is called IP when it is deliberatly thought of by man.

It is valued, therefore created and exchanged (and sometimes stolen).

ktibuk September 26, 2007 at 4:13 pm

Artisan,

By now I know I can not persuade irrationally stubborn people I argue here.

But there is a unwarranted crusade, mainly by Kinsella, on this site.

As if this position is endorsed by Austrian Economics or Libetarianism.

No prominant Austrian economist or libertarian thinker endorses Kinsellas position but the illusion created by him is just the opposite.

Therefore I debate these once in a while.

It also sharpenes your thinking which is a good thing, no?

Curt Howland September 26, 2007 at 4:14 pm

Wow. Book with words is fraud. Get real, please. If the book with words is priced so that _you_ think it’s fraud, then don’t buy it.

I assure you, you’re not alone. I’ve seen lots of books that I do not believe are worth the price, and not once have I been forced to buy them, even in an environment of coercive IP. Without that coercive IP, there is even less chance of being forced to buy them, so the argument that over-priced books are fraud simply reinforces the arguments against coercive IP.

What surprises me is that casual violation of private property is being used by the _pro_IP argumentors while trying to say how IP enforces property rights. Sorry, you cannot have it both ways. If the movie maker “owns” the movie, then you must also admit that the theater owner “owns” the theater.

You also ignore the fact that performance is one of the ways even the _anti_IP folks have presented (ok, I presented it the last time) as a money-making venue regardless of coercive IP laws. So using a theater as an example undermines your argument still further.

As Kinsella points out, coercive IP tries to tell an individual what they may or may not do with their own property. That is the objection to coercive IP. Answer that objection, please, if you can.

Scott D September 26, 2007 at 5:03 pm

I wanted to address the movie theater problem. The argument goes something like this:

A theater owner builds a theater with 1000 seats in it in a town with only 500 people. Because there are more seats than there are people, the seats are not a naturally scarce resource. The only thing that makes them scarce is that the theater owner chooses to sell seats above the price that some moviegoers will pay. This proves that property rights can exist in non-scarce goods.

There are a number of problems with the implicit and explicit assumptions here, but I’ll go to the heart of the matter. The theater is the scarce resource, not the seats. The theater owner owns the theater, not seats in a theater. Viewing each seat as separate property and an economic good unto itself is distorting your thinking.

We might just as well note that a theater with only 200 seats has standing room for another 400 if we really cram them in there, but aren’t we just being silly at that point?

Stephan Kinsella September 26, 2007 at 5:18 pm

Artisan:

Don’t worry Ktibuk, you really don’t need to persuade Dr. Kinsella or others here so hard from the ethics of copyright.

The old guard is probably never going to amend its views.

Old guard? ha! The “old guard” is the conventional pro-patent view. Rand, etc.

Kitbook:

“Actually, all you need is conflict over a given resource in order to need to assign a property right. Clearly, if Owner doesn’t want Freeloader [copying the movie], and the Freeloader insists on it, there is a conflict over this resource. In fact, that’s why I define “scarcity” in terms of conflict. Anything you can conflict over is a scarce resource for purposes of property right. Your “economic scarcity” concepts are utterly irrelevant. Gotcha.”

When people espectin IP say this, you claim the owner (or whatever you call it) ceates artificial scarcity arbitrarily by force and you deny the lgeitimacy of IP.

What?

But when it comes to the theatre example all of a sudden that aspect is not important anymore.

The owner of the scarce resource of the theater is not creating artificial scarcity. He is not invading the property righs of the Freeloader. But if you assert an IP right then you do invade the property rights of others, b/c you assert a right to control their bodies and property.

You wote “In fact, that’s why I define “scarcity” in terms of conflict.”

If conflict defines scarcity then IP is scarce because clearly there is conflict between the creators and the copiers.

Sure: if an “innovator” or “creator” wants to control someone else’s body to “assert” his “IP rights,” sure, there is a conflict–over the other person’s body and property. So then the question is: how do we resolve the conflict? Who gets to control the other person’s body and property? I.e., who is the *owner* of the other persons’ body or property? Libertarians say it is that person himself. You want to say that it’s the innovator, who by thinking of a way to use his own property, now has an ownership claim on the bodies and property of others. This is socialism/theft.

Theatre example is deliberatly given as an example where there is abundant, non scarce tangible resoruce and the resource can satisfy everyones need as a consumer.

No, it can’t satisfy the “consumers” AND satisfy the owner, b/c the owner does NOT want them in there, and the freeloaders DO want in. So there’s a conflict–there’s scarcity. So, who wins this battle? The owner, dude.

Kevin B September 26, 2007 at 7:29 pm

ktibuk: So you can see the diffeence between random computer parts and the computer itself.

See that difference is called IP when it is deliberatly thought of by man.

A pattern cannot be called “IP”, but perhaps perhaps as much as “I”, since a pattern cannot be property. Let me explain:

What you call a pattern is a specific arrangement of physical property. Now think about it.. Without the property, the pattern is nothing, that is to say – it doesn’t exist Take away the physical property, and you have nothing. You have an idea of an arrangement of parts to make a computer in your mind. Take the physical aspect, the mind, out of the equation, and you are left with nothing. There is no more existence to it than the physical.

See? So how does this work:

I own computer parts. I then arrange them in a specific pattern. IP is created. Where? I don’t see it. I see the computer parts that I own. The pattern, you say? The pattern is the computer parts. I already owned the parts. Apart from the parts, how can I own anything more than nothing?

Kevin B September 26, 2007 at 7:41 pm

Replace the words “computer parts” with “brain cells” and you should be able to see how silly it is to say that there is anything more to an idea than the brain cells it takes to make it. As if something apart from the brain cells is created on arrangement. Hilarious.

Stephan Kinsella September 26, 2007 at 8:03 pm

kitbook:

By now I know I can not persuade irrationally stubborn people I argue here.
But there is a unwarranted crusade, mainly by Kinsella, on this site.
As if this position is endorsed by Austrian Economics or Libetarianism.
No prominant Austrian economist or libertarian thinker endorses Kinsellas position but the illusion created by him is just the opposite.

Uh, well, let’s see–Hoppe and Block both support my argument 100%, and I would say they are two of the most prominent Austrians around, and certainly two of the most prominent and faithful Rothbardians. I think if Rothbard were alive he’d agree too. My article on this won the (first) O.P. Alford award at the Mises Institute. So why do you lie and say no one endorses it?

Peter September 26, 2007 at 11:48 pm

And No. According to your theory we don’t need to determine anything yet, since there is no scarcity. No ones use stops some others use.

You’re mistaken – there is a conflict over the use of the property; the one person’s choice of how to use it prevents the other from using in his chosen way (i.e., the “freeloader” would prevent the “owner” from keeping it empty; the owner would prevent the freeloader from sitting in it). Therefore there is scarcity. And hence property.

In the counterargument, there is indeed no scarcity: the homeowner’s use of his DVD player doesn’t affect the movie-producer’s use of his DVD player in any way, nor vice versa.

One guy says

“Hey I built the damn thing. This thing isnt nature given or appeared magically one night. It has my blood and sweat in it. I can use it however I want.”

But you say

“Who cares if you built it or not. Property rights are only here to solve conflicts. Since there is no conflict, since everyone can satisfy their need at the same time without stepping on each others toes, this good is non rivalrous, non scarce, thus free.”

And indeed the argument you attribute to Stephan (though it is not even close to anything Stephan is actually saying here, AIUI; but I suspect you’re being deliberately obtuse) has some merit. It’s not “because it has [his] blood and sweat in it” that the theater belongs to the first fellow, but because he already owned it even before he built it: he owned the land on which it was built, the bricks and steel out of which it was built, and so on – and he didn’t own those things because he (God-like) created the land, or because he made the bricks and mined and smelted the steel, etc.; somebody else did things!

Artisan September 27, 2007 at 8:30 am

Kinsella:
Hoppe supports my argument 100%.
———————————–
Funny he never directly wrote a line about IP in that sense though, don’t you think? Perhaps you’re only confused, and he just likes you for other reason?

Kinsella:
I think if Rothbard were alive he’d agree too.
———————————————–
You must be joking? After you’ve been writing this: “He only had a couple of confused deviations, mainly his copyright idea, which was not well thought out.”

Your conception of the scarcity of resource, Mr Kinsella is incompatible with the broader free market concept of homesteading energy resources. Face it, … or don’t.

Stephan Kinsella September 27, 2007 at 10:06 am

Artisan:

Kinsella:
Hoppe supports my argument 100%.
———————————–
Funny he never directly wrote a line about IP in that sense though, don’t you think? Perhaps you’re only confused, and he just likes you for other reason?

Artisan, you are just ignorant. Why do people spout off on things they are obviously ignorant about? Hoppe himself named my paper and loved it. He was the one who nominated it for best libertarian article over the past 2 years. Block participated in this too and has recommended my piece dozens of times. And yes, I think that if the two foremost Rothbardians, Block and Hoppe, agree with my piece, Rothbard probably would have too.

Kevin B September 27, 2007 at 12:51 pm

Artisan:
Ask yourself this: how am I depriving you of anything if I build next to you on my property for instance, another facility that casts a shadow on your solar panel say, for only one hour a day?

…the broader free market concept of homesteading energy resources…

Every day new structures are built that capture sunlight that otherwise would have reached others’ properties.

Do we own every star in the universe that casts its light upon us?

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