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Source link: http://archive.mises.org/9280/what-is-your-attitude-toward-ip/

What is Your Attitude Toward IP?

January 22, 2009 by

As I think more about “intellectual property” in the form of patents and copyrights, it seems that the implications for social theory are profound. The behavior targeted and slaughtered by IP is one that provides a fuel for all social and economic development: imitation or emulation.

(Before I go on, I want to emphatically point to my personal debt to Michele Boldrin and David Levine’s Against Intellectual Monopoly, from which everything in this article is derived. I have planned to live blog the book chapter by chapter but I keep getting off on tangents, and this post is one.)

In the German speaking world of art in the 18th and 19th century, imitation by composers was considered to be the greatest tribute. When Bach would write an elaboration of Buxtehude, it was seen as a wonderful gift to Buxtehude’s legacy and memory. When Mahler would turn a phrase by Brahms, or re-orchestrate a Beethoven symphony, it was the tribute of one master to another. So it is in literature and economics.

Imitation in economic affairs is essential for development, since nothing is ever perfect right out of the box, and society is constantly changing. You need that imitative dynamism in order for technology to keep up with changing market conditions. This is what IP shuts down in the name of rewarding creators. How can creators make a buck in a world of fluid imitation? The same way they always have: by having the best product at the right price to the market first. When other imitate them, they have to hustle again and innovate some more. This is how societies and economies grow.

Think of the fashion world, in which IP doesn’t apply. It is fast moving, innovative, and remarkably profitable. Designers have their ideas imitated nearly as soon as they are seen on the runway. This imitative behavior widely regarded as a ratification of a good idea. It is something that people are socialized to look for as an indication of marketability. It is the same with generic drugs, fonts, perfume and other sectors in which there is no IP. Sadly, in sectors in which IP do apply, the opposite attitude applies. Authors, artists, and inventors sit and brood about the need to keep their wares to themselves, and hunt out anyone who would dare “steal” their idea. In the successful cases, they can end up rewarding themselves but at the expense of social development.

In the far more prevalent unsuccessful cases, the obsession with being ripped off leads to brooding, resentment, and disgruntlement that the world has failed to provide them a living. A sector consisting of nothing but people like this–with an attitude encouraged in law–is stagnant. By way of illustration, compare the imitation-oriented jazz and rock sectors with the IP-obsessed area of serious classical music!

Other sectors like advertising fall somewhere in between. Several years ago, Apple ran a commercial for the iPod that looked incredibly similar to one produced by Lugz shoes. Now, one might laugh and appreciate this–surely it will benefit both companies–or one can regard it as theft. Instead of celebrating a success, Lugz regarded it as a rip off, which Apple denied. Words flew between the companies, along with threats of litigation, along with cease and desist orders. Full story here and here.

This is really just pathetic and completely unnecessary.

It really all comes down to the attitude one takes toward one’s influence on others. The absence of IP creates a broad mindedness that seeks to make a difference in the world and looks for imitators as a sign that it is working. The presence of IP subsidizes a kind of inwardness and bitterness that sees the whole world as populated by potential thieves to keep at bay.

You see the two ways of looking at the world in the way kids interact with each other. I’m speaking of pre-teens and the way they deal with their emergent societies. Let’s say one kid has developed a certain phrase or gesture that is new to the social group. Another kid picks up on it and employs it.

Now, there are two ways to respond to this imitation. The innovator child can see others doing and saying what he did and said and realize that he has made a difference in the world, put a dent in this little universe. He has become a force for changing the world as he knows it. He has made his mark, and the evidence is how others are doing the same thing. He feels a sense of pride and joy and works to coming up with other unique ways of dressing, speaking, or behaving that others similarly imitate.

Or the child can have another response. He can accuse his imitators of stealing his words, ripping off his gestures, pilfering his personality, and plundering his special way. He sees others who imitate as threats, forces that are reducing the value of his unique personality. He treats it as the equivalent of cheating on a test. It is taking what is his. It is the first stages of a very destruction IP-style mentality.

Parents: be alert to signs of this among kids. Explain to children that it is a good thing when others are influenced by you. It means that you have made a difference in the world. It is not something to complain about at all. It is something to celebrate. It means that you are an entrepreneur on the cutting edge, someone who does things that succeed in society. That also comes with responsibilities to do good things and improve the look and feel of the world around them.

Which attitude do you take toward emulation? Before you answer, consider that emulation is unavoidable. There is no such thing as absolute originality. Everything in a growing and health society is an elaboration on something else that already exists. This applies to technology, literature, music, art, language–everything. A world in which the ethics of IP applied would be backward and stagnant, headed nowhere but backward.

Children’s movies cut both ways. The movie called Ratatouille strikes me as the ultimate IP-supporting propaganda. A rat with a gift for taste and smell is rescued from the gutter and put in a position to cook food at a fine restaurant. All his great. He has imitators all over the place but he alone remains the best. But then he begins to seethe with resentment that he alone is not given credit and accolades. Oddly, some people fear that customers will not like the idea that a rat is cooking all the food! The movie ends with his being discovered and he feels great pride, and we are supposed to be happy about this. The restaurant is destroyed, but the audience is supposed to figure that it is worth it.

A much better case is Horton Hears a Who. Throughout it, we see competitive pressure between the various animals to see which one will have the dominant influence over others. The Kangaroo tries to prevent Horton from influencing people but he does anyway, and eventually everyone comes around. We see it too in the lovely operation of Whoville, a place where emulation is king, and it is a vibrant and lovely society in which everyone is happy.

As web editor of Mises.org, hardly a week goes by when I don’t see imitators of our successful web presence. It can be images, articles, design, feel, structure–everything. Some years back I had the view that this had to be stopped. Fortunately, no one here had time to bother with it. Thank goodness. The whole reason we exist is to influence the world. Evidence of that is glorious, and it keeps the fire under our staff to keep doing a better job and stay on the cutting edge.

{ 101 comments }

theblob January 22, 2009 at 11:39 am

I totaly agree with you, jeffrey. Culture and knowledge accumulation is Imitation and emulation. And it makes no sense to introduce the concept of property to non-scare goods.
That doesn’t suggest that the market(people) won’t find a way to turn ideas into profit.

DavidNcl January 22, 2009 at 11:41 am

Suppose that we had IP in peer review science. I’d be able to stop you using results that I had published a decade ago or prevent another mathematician for using a proof technique which I had a patent on.

IP is insane, is a huge drag on both the economy, and human progress. It also gives rise to a coercive and oppresive state apparatus.

The idea that it somehow benefits inventors, authors and artistic creators is nothing but crude propaganda of the “chains make you free” sort.

andras January 22, 2009 at 12:04 pm

You are just keep ignoring the arguments for IP. All the “failure to calculate” and the “property rights” concerns have not made a dent.
My understanding is that the IP-socialists’ strategy is to pull a Goebbels on IP hoping that the pro-IP folks will give up eventually.

ps. Beethoven got his royalties from the beginning of his carrier to survive so that he could show his true genius later on.
We should praise IP for Beethoven and the other geniuses though this is only the utilitarian approach.

Fephisto January 22, 2009 at 12:19 pm

DavidNCL:

As a fellow wannabe mathematician, I agree.

Jeffrey Tucker January 22, 2009 at 12:40 pm

Umm, there was no copyright in Germany during Beethoven’s life, nor Bach, Brahms, Bruckner or even Mahler. That should tell you something.

Michael Smith January 22, 2009 at 12:51 pm

My attitude? My attitude is that the Mises Institute has hit rock bottom with this campaign against IP and this promotion of a book that declares that the only justification for property rights — the only reason you can claim any property rights — is if doing so generates a net benefit to the rest of society. Nothing is deadlier to the cause of freedom than the notion that an individual must “purchase” his rights by contributing to “the public good”.

In the comments under “The Book that Changes Everything”, I provided the principled pro-IP argument — but you have completely ignored it and have, apparently, simply decided to remove it and all the other pro-IP arguments from this website in the belief that if you pretend the arguments don’t exist, they will disappear.

How sad it is to see the name of Mises associated with such an assault on individual rights, which are the indispensable foundation of all political freedom.

Jeffrey Tucker January 22, 2009 at 12:55 pm

Michael, it is not necessary that authors be correct on everything to be right on many things. It is not wise to use infallibility as a test for whether you are willing to learn something.

Stephan Kinsella January 22, 2009 at 1:00 pm

As my friend Robert Wicks told me,

I think IP is a far more important issue than some people think. It warps culture, and the moral notions behind it make it all but impossible to believe in IP without also believing in an oppressive state. You really can’t object to busy bodying in general if you believe in IP.

I think maybe the idea of IP and its popular acceptance is largely responsible for the immensity of western states. I think the false association with IP and prosperity has caused people to lose touch with older notions of property. I’d like to see how IP laws and various state and social trends have changed over the years.

Mike January 22, 2009 at 1:09 pm

“Nothing is deadlier to the cause of freedom than the notion that an individual must “purchase” his rights…”

Couldn’t agree more. Glad you’ve come around.

Gustav January 22, 2009 at 1:10 pm

I’m somewhat surprised you’re taking a utilitarian approach to the argument against “IP,” as opposed to a moral one based on property rights.

“IP” isn’t PROPERTY, because there is no economic scarcity. Your use of my wheelbarrow deprives me of my use of my wheelbarrow, at least, while you are transporting said wheelbarrow to its place of employment and back, and while you are using it. Your use of my IDEA for a wheelbarrow, however, does not harm me economically in the slightest. I still have my wheelbarrow to use.

Now, someone may interject the harming of my potential for profit through renting my wheelbarrow or subletting the “design rights” to produce wheelbarrows, but these are legal fictions, and any potential is just that – “potential” – with no certainty.

Further, the enforcement of preventatives on “wheelbarrow designs” that are similar to mine constitute an infringement on your property rights. You have wood, iron, and rubber, what gives ME (or the “government”) the right to constrict your use of them as you see fit? “IP” laws would be used to prevent your use of a “wheelbarrow design” that was similar to mine, even if you never saw my design and came up with yours independently.

Stephen W. Carson January 22, 2009 at 1:10 pm

Jeffrey wrote: “consider that emulation is unavoidable. There is no such thing as absolute originality. Everything in a growing and health society is an elaboration on something else that already exists.”

JRR Tolkien made this very point with his notion of “sub-creation”. To put his point in my own words… Only God creates ex nihilo. We pay tribute to the Creator through our sub-creation which basically involves re-arranging the elements already given to us (through the Creation or from other human sub-creators).

He was at pains to fight against this exaggerated notion of originality (creation ex nihilo) that has become so dominant since the Romantic era especially, but also to encourage human sub-creation as a profound manifestation of being created in His image.

I gave a talk spelling out Tolkien’s views on this, which I’ll gladly get online somewhere if anyone expresses interest.

Mike January 22, 2009 at 1:13 pm

Gustav,

There’s nothing wrong with using utilitarian arguments to show the *extent* to which an unethical concept like IP has harmed us economically. Furthermore, when these sorts of discussions are taking place among people who already generally agree on the principles (I know this is not the case here) utilitarian arguments can help us determine which issues should take priority,

andras January 22, 2009 at 1:27 pm

Jeff: “Umm, there was no copyright in Germany during Beethoven’s life, nor Bach, Brahms, Bruckner or even Mahler. That should tell you something.”

It does not mean that there was no IP.
Beethoven was paid for every piece of his by his publisher(s). What he gave them was only the sheet music, the design of his ideas, a truly marketable product inspite of the fact that they were not materialized. The definition of IP.

No other publisher dared to publish it but the rightful owner. So IP worked. Whoever imitated from the artist’s universe stated so thus came the variations.

One thing is to base your work on general ideas (Hungarian folk music) and another is a unique idea (Bartok’s Concerto). The latter definitely would not have been concieved without IP. Again, this is only a utilitarian approach, not favored at Mises.org .

Regards,

Andras

I Hate Taxes January 22, 2009 at 1:44 pm

My attitude is that property can only be physical and not intellectual.

You should not be able to stop somebody else from doing what they want with their own property.

Even if that means that they will copy your ideas and embody them with their own computers and hardware.

At the moment you release and information, you no longer control how that information will be used.

We are in the 21st century and ideas are spread accross the globe anyways.

You cannot physically stop songs or copyrighted material from being copied and distributed.

Bob January 22, 2009 at 1:57 pm

I find this argument against IP has gone from serious study to utopian fantasy quite quickly. Here are my 2 cents:

1) The labor required to create IP is a scarce good, even if the resulting IP is not. If we are concerned only with IP created by those who wish to also consume the IP, there is no problem with their making it freely available to others. They work for the ability to consume IP itself, not the market’s valuation of the IP. This is the pure prosumption view. What about those who labor to fulfill the IP demands of others, through a market economy? There is economic harm to the advancement of IP if this labor has no means of being financially rewarded. This is the vast majority of IP. I, for example, write software that I don’t care at all about. But my employers do, so they pay me to write it. I like this arrangement. Elimination of IP law changes the market. Mass consumption IP would seriously decline while custom IP would rise. No more new video games, just mods to your old ones = NO FUN.

2) Not all IP is represented in a tangible form. For instance, it makes sense to consider patents for gasoline engines a harmful market restriction. IP laborers can get paid through the sale of related tangibles required to enjoy the IP. What about software, music, and literature, that only requires the same very general tangible good – a home computer? Would we rely on computer distributors to fund IP ventures to increase demand for their tangible goods. That doesn’t sound practical to me. It would economically be no different than IP consumers leaving voluntary tips to IP producers, which is surely not competitive with current models based upon sale at distribution.

3) The IP goods market is now extremely prone to “free riders”. I would agree with Austrian analysis that “free rider problems” are usually not problems at all; however, I believe this is different for IP. For instance, if I spend $100,000 on labor costs to produce a piece of software while I’m forced to sell any products at the same prices as my competitors who can freely distribute the resulting IP, my business is less profitable than the free riders.

Ultimately, without laws protecting the creators of IP, there is no market mechanism to guarantee payment by consumers to producers. All payments become either voluntary, attached to tangible goods (which is a fraction of the market), or rely on secondary goods (such as support service or advertisements) of which only a fraction will return to the IP producer. None of these models have shown to be as efficient as pay per copy which relies on exclusive distribution rights.

This being said, I do believe copyright and patents are obviously abused and in need of reform. Perhaps there is a workable system for the above problems. Until I learn of one I do not believe complete elimination of copyright and patents is a viable alternative.

Perhaps a better system would not rely on market restriction but instead forced royalties by alternative producers? For example, the copyright holder would not be entitled to a distribution monopoly; however, he would be legally entitled to X% of others’ sales that use/contain his copyrighted work. This percentage could decline gradually over time rather than remaining stationary, and expire much earlier than the 140 years currently given to copyright. The problem I see with this approach is the extremely subjective definition of “using/containing a copyrighted work”.

But for the love of God, can we please stop acting like eliminating IP laws would change the market ONLY for the better. A sizeable portion of IP laborers would no longer be able to eat. They don’t give a crap if people want to emulate them. Few are going to “flatter” them with a greater supply of tangible goods. A lot of this fantasizing sounds like “the new Socialist Man” is coming…

RWW January 22, 2009 at 1:58 pm

My attitude is simple:

You are free to own physical property. You are free to stipulate in a voluntary contract that some specified idea must not be disseminated, and you are free to stipulate, in that same contract, severe penalties. The possible ineffectiveness of your voluntary contracts does not entitle you to further rights.

happylee January 22, 2009 at 2:15 pm

You have a ways to go to convince me that IP is a greater challenge to life and liberty than the manmade global warming bugaboo, but you have come a long way. I was sold on Kinsella’s argument the first time I heard it. No Person could convince me otherwise. The importance of this issue is becoming more clear to me. Thank you.

RWW January 22, 2009 at 2:22 pm

You have a ways to go to convince me that IP is a greater challenge to life and liberty than the manmade global warming bugaboo…

Ah, this is another aspect of my “attitude” — despite my passion in arguing, I don’t think “IP” is a very important issue, compared to many others. It is unfortunate that so much time is spent debating it here, but it more or less comes with the nature of the blog, I think. Most of us agree on about 95% of the issues, so we’re naturally going to clash where we disagree. And we’re naturally going to disagree on the issues that aren’t important enough for everyone to already have gotten on-board with the principled position (whichever position that may be).

Mike January 22, 2009 at 2:28 pm

“Ah, this is another aspect of my “attitude” — despite my passion in arguing, I don’t think “IP” is a very important issue, compared to many others. It is unfortunate that so much time is spent debating it here, but it more or less comes with the nature of the blog, I think. Most of us agree on about 95% of the issues, so we’re naturally going to clash where we disagree. And we’re naturally going to disagree on the issues that aren’t important enough for everyone to already have gotten on-board with the principled position (whichever position that may be).”

I think it’s far more important than you give it credit for, mostly because the harmful effects are almost entirely unseen. Who knows just how much technological development has been restricted? In at least one field (medicine) we can say with some degree of certainty that IP has been incredibly harmful, and that without it we would all be much better off.

RWW January 22, 2009 at 2:32 pm

True, but I think the other forms of intrusive regulation in medicine have been far more damaging.

Mike January 22, 2009 at 2:35 pm

“True, but I think the other forms of intrusive regulation in medicine have been far more damaging.”

It’s tough to say. I suspect you’re pointing to licensing requirements, which I’d certainly agree with, but what is IP if not a huge, incredibly expensive licensing requirement?

Marcelo January 22, 2009 at 2:51 pm

andras
Beethoven was paid for every piece of his by his publisher(s). What he gave them was only the sheet music, the design of his ideas, a truly marketable product inspite of the fact that they were not materialized. The definition of IP.

So Beethoven sold a piece of scarce paper to a publisher and you take that as a definition for IP? Of course no one listens to your arguments. Your defense of IP is quite pathetic.

bob January 22, 2009 at 2:55 pm

I would like to add, after reading Michael Smith’s comments on the “A Book that Changes Everything” blog, I do not share his views, which seem to argue that information can be “owned”. I agree with Kinsella’s theoretical views, and while I have not read “Against Intellectual Monopoly” I am fairly sure it lays out a great practical/empirical case against the abuses of copyright and patents. I don’t care about theoretical ownership, or if it even makes sense in this argument; but whether or not IP laborers will be compensated more or less for their mass consumption information.

I do not believe that alternatives have really been thought through. What I want to know is how a market without any legal rights given to IP creators can coordinate the free exchange of IP labor with the consumer demand for such IP. This market mechanism is obvious in exclusive IP rights, allowing creators to charge upon distribution or in licensing its use to others. Without them, it becomes a vague jungle of gifts and connections to tangible property. This is great for prosumers…not so much for those that want to trade their labor for bread. Without a means to exclude consumers from consumption, there cannot be a market price. This isn’t necessarily a deal-breaker, but there needs to be a system that can gauge consumer interest and translate that into bread for the laborers.

Finally, IP cannot be treated purely as property. Consequentially, it is quite obvious that allowing copyright and patents to never expire is incredibly harmful for human progress. From an intent perspective, it is immoral to dictate what others can learn, reproduce, or create, without altering your life, liberty, or scarce tangible property, in order to enrich yourself, either beyond the time it took to create the information or beyond a reasonable multiple of the market value of similar labor (which I know seems subjective and not a good theory of value but it seems morally acceptable to most people).

bob January 22, 2009 at 3:12 pm

Consuming Beethoven’s works required massive amounts of tangible goods. First-to-market had incredible advantage. After producers paid Beethoven for information, they not only had to put hundreds of copies on paper, but assemble and pay the numerous laborers to perform the piece, as well as rent a theater to perform it in. On the consumption end, consumers required access to this assortment of tangible goods. Their only means to hear the symphony was to purchase a scarce seat in a theater/auditorium.

Furthermore, who had the entire score that would be willing to copy it and distribute it? Seems only those who commissioned Beethoven would. They would have no reason to do so. And even if others got the score (such as groups of the musicians), there would be little market demand for such; as consumers would have to expend labor to find many hundreds of other consumers who would collectively raise the money necessary to purchase the musicians’ labor and auditorium time to actually consume it. Finally, such could only be done after an initial run of performances, when consumer interest peaked. Such ventures would likely be unprofitable to producers or undesirably costly to consumer groups.

This is completely different for modern music, which can be enjoyed through endless varieties of low-cost, general-purpose, mass-market, tangible goods, not directly tied to music production. Of course, efforts to enforce IP law are failing…but the Beethoven example simply doesn’t apply.

newson January 22, 2009 at 5:15 pm

rww says:
“despite my passion in arguing, I don’t think “IP” is a very important issue, compared to many others.”

i beg to differ here. it’s one area where people have an emotional involvement; i don’t know anyone who hasn’t breached copyright at least once in life.

the argument is in some ways more immediate to the average person than monetary policy, or suchlike.

anything that shakes people out of their statist mindset is water to our mill.

i compliment kinsella on his dogged persistence, he convinced me.

andras January 22, 2009 at 5:49 pm

Marcelo: “So Beethoven sold a piece of scarce paper to a publisher and you take that as a definition for IP? Of course no one listens to your arguments. Your defense of IP is quite pathetic.”

I think Beethoven’s original sheet music is an example of IP. A definition by example.
Please give me a definition of IP.
I would like to know what you are fighting against.
Please do not send me a web page, a book title or cite the patent or copyright laws and their failures. Just a simple definition, after all you should know what you are up against!

Mike January 22, 2009 at 6:02 pm

“Please do not send me a web page, a book title or cite the patent or copyright laws and their failures. Just a simple definition, after all you should know what you are up against!”

The exclusive right to arrange physical material in a certain manner. Or, if you prefer, the right to use force to prevent others from arranging physical materials in a certain manner.

andras January 22, 2009 at 6:03 pm

@All those who think abolishing IP is important,

It can be important, very important. However at Mises.org you should be aware that its importance is not absolute. It is only a single issue in a list of priorities.
Unless you want to solve the following, in my view, much more important problems with IP, its priority should be much lower at this site.
Just think about the imminent financial collapse, Obama’s Newer Deal including gold confiscation, interventions, stimulations, total nationalization of Health Care, Finance, auto manufacturing, his green agenda, creating entire industries against “global warming”, his war plans, his education initiatives, etc.
Is IP still THAT important?

Michael Smith January 22, 2009 at 6:06 pm

Why does the physical creation of a man’s muscles belong to him — but the mental creation of his mind belong to any of you who wish to profit from it?

Mike January 22, 2009 at 6:06 pm

Some people can walk and chew gum at the same time, andras.

andras January 22, 2009 at 6:31 pm

Andras:”Please do not send me a web page, a book title or cite the patent or copyright laws and their failures. Just a simple definition (of IP), after all you should know what you are up against!”

Mike: “The exclusive right to arrange physical material in a certain manner. Or, if you prefer, the right to use force to prevent others from arranging physical materials in a certain manner.”

Andras: thank you Mike. Let’s keep discussing if this worth abolishing or not in an anti-IP vs. pro-IP discussion and not its imperfect applications.

As a side, I have a question though following this definition. Do I have an exclusive right to think and arrange my thought thus my brain in a certain matter? Or if you prefer, may I use force to prevent someone to arrange my brain in a certain matter (brainwash, indoctrinate).

Mike January 22, 2009 at 6:47 pm

That’s an extremely complicated question, one predicated on if and where you free will begins and ends. I’m not sure we have time to go into it here, nor am I sure it’s entirely pertinent to the discussion. Suffice it to say, I’m not sure anyone can “control” the thoughts in your head without using violent force, and your brain obviously belongs to you, so yes, you have the right to prevent someone from using violence to tamper with your body, but I don’t think you have the right to use force to prevent “indoctrination.”

andras January 22, 2009 at 7:13 pm

I intentionally selected this extreme as a test of your definition. The question whether IP is a right ultimately leads to your right to your mind, your brain and its products.
I think public education just does that: control thoughts without using violence. (Some are even happy to be indoctrinated.)
1) So should anyone have the right to refuse to go to public school and prevent tampering with his or his child’s brain? ….
2) If yes, is (s)he allowed to use violence to protect this right?

lukas January 22, 2009 at 7:37 pm

andras: Your example does not apply… Your brain belongs to you, my brain belongs to me. What does this have to do with IP? IP is all about preventing others to do with their property as they wish.

Mike January 22, 2009 at 7:43 pm

“1) So should anyone have the right to refuse to go to public school and prevent tampering with his or his child’s brain? ….”

Yes, of course, but it has nothing to do with the “tampering” being done, and more to do with the kidnapping.

“2) If yes, is (s)he allowed to use violence to protect this right?”

I’ll say my answer to this is a conditional “yes” and leave it at that.

Also, I have to agree with lukas, this is an entirely tangential discussion at this point.

Sean T. McBeth January 22, 2009 at 7:50 pm

“I think it’s far more important than you give it credit for, mostly because the harmful effects are almost entirely unseen. Who knows just how much technological development has been restricted? In at least one field (medicine) we can say with some degree of certainty that IP has been incredibly harmful, and that without it we would all be much better off.”

And yet the onus is on the IP supporters to quantify the utility of IP? Until you can quantify the harm of IP, this argument is a fallacious appeal to emotion.

I have a problem with discarding the concept of Intellectual Property, because I believe it is an important weapon for small producers to defend themselves against large corporations.

There are any number of shady companies out there that trawl amateur artist websites to steal as many hi-res images as they can to run off prints and never give the artist any compensation for the matter. The artist, being in a weakened position from the start, lacks the resources necessary to bring this infringement under control, and misses out on the fruits of his labor. It would be like setting up a factory but not being able to use it because squatters have over ran it.

Recently, embedded journalist Michael Yon sued yellow-jacket videographer Michael Moore over the misuse of one of Yon’s images (http://www.michaelyon-online.com/michael-moore-lawsuit-update.htm). Michael Moore took one of Michael Yon’s photos and presented it in a light that completely contradicted the original circumstances, to the detriment of the subject of the picture.

Apple Computers was successfully sued for infringing on a photographer’s copyright with an ad campaign they ran some years ago. This is actually a pretty common form for copyright infringement. Apple had published a “Spec” job for new advertising campaign ideas. “Spec” jobs are open-ended contracts: send in your stuff, if we like it and use it, we’ll pay you, if we don’t like it, you don’t get anything. Apple’s final commercial was pretty blatantly based on a photo the artist had sent in for the spec, but Apple failed to compensate him for it.

A similar controversy surrounded the original Baltimore Ravens logo (http://en.wikipedia.org/wiki/Baltimore_Ravens#Logo_controversy).

By eliminating the strong intellectual property laws that we have, we would eliminate the one weapon that small producers have to defend themselves against the crushing power of vulture mega-competitors. An IP-less system does not allow for the protection of small producers from large vultures. A strong-IP system *does* allow for “serving the common good” by releasing the fruits of your labors to the Commons. If you truly believe that it’s better to give your mental labor away, then you may do so under our current system, no one is stopping you. *There* is your rule-utilitarian argument for Intellectual Property.

But let’s not stop at utilitarianism. We could also consider Kantianism. People are not a means to an end, they are an ends unto themselves. We respect IP because to ruin the producer by creating a competing source of distribution for his own goods would be immoral.

Want to try some Social Contract Theory? We respect the IP because we wish other people to respect our IP. That good enough for you?

How about appeal to emotion? Wait, that’s not an ethical framework. I’ll leave that one to you guys.

The examples given of the wallpaper, the wall painting, and the grass mowing are ridiculous on their very face. When you paint some one’s wall or mow some one’s lawn, A) you aren’t creating a recognizable work of media, and B) even if you were the intent to reassign full rights to the land owner is implied. The example of taking down the painting prints in the office is equally ridiculous, photographing the man in his office with his prints would not have constituted a copyright violation, because the purpose of the photo was not to redistribute copies of those prints; ergo falling under what we call Fair Use.

Buying copyrighted material is engaging in contract. “I will sell you this copy if you agree to these terms of this contract. DON’T MAKE COPIES TO SELL TO OTHER PEOPLE.” Are we now denying the sanctity of contract? Copyright law is nothing but the codification of automatic, implied contract between producer and consumer.

I also reject the concept that the digital age has made copying free. This is incredibly naive and short-sighted thinking. The individual act of the copy may be relatively *cheap*, but it is not free, and when we factor in the variables that go into make copies available (running servers 24/7 burns a lot of electricity and uses up a lot of hard drives and RAM sticks), costs run up quite quickly. I’ve ran the numbers once before, a good rule of thumb is that it costs about $1 to make 1GB data available for download 24/7, assuming 100% bandwidth usage. The numbers get worse the less efficiently one uses their server bandwidth. 1GB is about one and one-third music CDs at full quality. That’s not “free” by any interpretation of the word. We don’t even have to *try* calculating the numbers on hardware depreciation, electricity costs, and bandwidth costs. Just go to any site for a free, open source, software project and look for the “donate now” link. The big projects make it very easy to find (here’s one: http://apache.org/foundation/sponsorship.html). Why do they need money, if they are producing the product for free and releasing and distributing the product for free? To cover operating costs for running servers so that users can download the software. What other costs are there to making copies than overhead? Making digital copies available for download is immensely expensive. The whole concept that making digital copies costs marginally $0 is a bald-faced lie. If Intellectual Property is not capital, then what happened to all the capital that went in to making it?

The concept that “ideas are not scarce, do not require rationing, are not diminished by their dissemination, and so cannot really be called property” shoots itself in the foot from the beginning. If ideas are so plentiful, then why does the IP right violator need *this particular* instance of an idea? If ideas are so pentiful, then why can’t they come up with a new, different idea? Look at the GNU General Public License (the GPL). The stipulations of the GPL are designed to deny the concept of Intellectual Property, and use modern copyright law to short-circuit projects into becoming “free and open”. In essence, the price of using a GPLed application is that you return changes to the community, code-for-code. But the GPL is designed to deny the existence of copyright because “ideas are inherently valueless.” So, if that is true, then how can code, an idea that is inherently valueless, require compensation on any level? And how can code, an idea that is inherently valueless, serve as compensation for anything? It’s a logical paradox.

The assault on IP is a socialist agenda. It is an attempt to wrest control of capital from the original producer “for the good of humanity.” Humanity is not a real entity, it’s nebulous concept that emerges from the interactions of real entities, but it is not itself a real entity. Protect the rights of the individuals, i.e. govern the interactions between entities, and “society” will be fine. That’s the entire point of libertarianism. We are supposed to be protecting the rights of individuals, and the “good of humanity” will take care of itself because of it.

Mike January 22, 2009 at 7:58 pm

“We respect IP because to ruin the producer by creating a competing source of distribution for his own goods would be immoral.”

Complete question-begging nonsense. Ideas are not a good, first of all, and creating competition is not immoral.

“Buying copyrighted material is engaging in contract. “I will sell you this copy if you agree to these terms of this contract. DON’T MAKE COPIES TO SELL TO OTHER PEOPLE.” Are we now denying the sanctity of contract? Copyright law is nothing but the codification of automatic, implied contract between producer and consumer.”

If you are really still asking this question, it implies to me you have not read this thread at all.

Mike January 22, 2009 at 8:03 pm

“But let’s not stop at utilitarianism. We could also consider Kantianism. People are not a means to an end, they are an ends unto themselves. We respect IP because to ruin the producer by creating a competing source of distribution for his own goods would be immoral.”

Total question-begging nonsense. Ideas are not goods, first of all, and creating competition is the basis of market trade.

“Buying copyrighted material is engaging in contract. “I will sell you this copy if you agree to these terms of this contract. DON’T MAKE COPIES TO SELL TO OTHER PEOPLE.” Are we now denying the sanctity of contract? Copyright law is nothing but the codification of automatic, implied contract between producer and consumer.”

This question has been addressed numerous times. Contracts between producer and consumer are just fine and dandy, but two people cannot contract to bind a third person.

“If Intellectual Property is not capital, then what happened to all the capital that went in to making it?”

Karl Marx called. He wants his reasoning back.

Mike January 22, 2009 at 8:04 pm

Your post was so great, I responded to it twice.

Sean T. McBeth January 22, 2009 at 8:24 pm

I’ve already demonstrated how producing copies of “ideas” requires capital, and that cost is significant. How is that any different than the capital needed to grow plants, which are “copies of God’s IP” encoded in the DNA of the plant’s seed. The acts are the same, just of different degree. Are you saying that there is a monetary cut-off that defines some copies as goods and some copies as not goods?

Who is this third party that is bound by the implied contract? If you do not wish to be bound by my contract, then you merely refrain from purchasing my goods. And if you do not buy my goods, you are no less damaged than if I had never produced the goods in the first place.

You’ve also failed to address how individuals will protect themselves from vultures, or the paradox of assigning value to ideas while simultaneously denying the value of those same ideas.

Mike January 22, 2009 at 8:41 pm

“Who is this third party that is bound by the implied contract? If you do not wish to be bound by my contract, then you merely refrain from purchasing my goods. And if you do not buy my goods, you are no less damaged than if I had never produced the goods in the first place.”

And people who download your software? Or purchase a “pirated” movie? They are free to reproduce the material as they see fit, you agree?

“You’ve also failed to address how individuals will protect themselves from vultures, or the paradox of assigning value to ideas while simultaneously denying the value of those same ideas.”

I don’t mean to sound callous, but it’s not my responsibility to design you a business model. Be an entrepreneur; figure it out.

andras January 22, 2009 at 8:43 pm

@Mike, Lukas,
Lukas:”andras: Your example does not apply… Your brain belongs to you, my brain belongs to me. What does this have to do with IP? IP is all about preventing others to do with their property as they wish.”
Mike’s definition of IP: “The exclusive right to arrange physical material in a certain manner. Or, if you prefer, the right to use force to prevent others from arranging physical materials in a certain manner.” did not mention property interconnection.
Lukas your definition is quite different. I would say contradicting to Mike’s. You anti-IP folks should come together and work out an accepted definition
I’ve just wanted to prove that Mike’s definition is wrong.
You can amend it, after all, I still want to know what you are fighting against.

Another question: Should I have rights to my trade secrets, inventions not public yet, irrelevant whether materialized or not? If yes, may I protect it with violent force?

andras January 22, 2009 at 8:48 pm

Mike: “Some people can walk and chew gum at the same time, andras.”

Wonderful! But could Mises.org afford to dedicate 40-100% of its daily articles to IP? What kind of message does it send? Again, under an unfolding financial and political catastrophy.

Mike January 22, 2009 at 8:58 pm

“#

@Mike, Lukas,
Lukas:”andras: Your example does not apply… Your brain belongs to you, my brain belongs to me. What does this have to do with IP? IP is all about preventing others to do with their property as they wish.”
Mike’s definition of IP: “The exclusive right to arrange physical material in a certain manner. Or, if you prefer, the right to use force to prevent others from arranging physical materials in a certain manner.” did not mention property interconnection.
Lukas your definition is quite different. I would say contradicting to Mike’s. You anti-IP folks should come together and work out an accepted definition
I’ve just wanted to prove that Mike’s definition is wrong.
You can amend it, after all, I still want to know what you are fighting against.”

I think you are misreading my definition. It does not conflict with Lukas’.

“Another question: Should I have rights to my trade secrets, inventions not public yet, irrelevant whether materialized or not? If yes, may I protect it with violent force?”"

This question is vague. It depends on the specifics of the circumstances, and the way in which you do so.

Mike January 22, 2009 at 9:01 pm

Maybe I should have been more specific in my definition, since “physical materials” could mean a few different things.

I should say that IP is the right to use force to prevent people from arranging *their own* physical materials in a certain manner.

newson January 22, 2009 at 9:42 pm

michael smith says:
“Why does the physical creation of a man’s muscles belong to him — but the mental creation of his mind belong to any of you who wish to profit from it?

manual labour doesn’t give entitlement to ownership, outside of marxism. only if the transformed resources belong to the worker is there a valid claim to ownership.

an unsolicited basquiat graffiti on my wall belongs to me, even if he used his spray can and labour.

lukas January 22, 2009 at 9:59 pm

Mike’s original definition is still valid. My right to use force to prevent others from arranging physical materials that are my property does not depend on IP, it’s covered by physical property rights. No one here disputes those.

Michael Smith January 22, 2009 at 10:29 pm

newson said:

manual labour doesn’t give entitlement to ownership, outside of marxism. only if the transformed resources belong to the worker is there a valid claim to ownership.

You confuse ownership with value. Labor does not determine the value of what a man produces or creates — only the market of those willing to trade their money for his product determines value. But when a man creates intellectual property — when he creates the content of a work of art, such as a book, or when he creates the design of an invention, or when he creates the formula for a new material, all of which is done with only resources he already owns — why does his creation belong to anyone other than him?

You have provided no answer to that question. So I repeat it for the anti-IP people here:

Why does the physical creation of a man’s muscles belong to him — but the mental creation of his mind belong to any of you who wish to profit from it? What justifies ruling IN one class of creations as property, while ruling OUT the other?

What have any of you done to earn the right to profit from the copying of another man’s creation? What gives any of you the same right to profit from the content of Atlas Shrugged as Ayn Rand, its creator?

By what moral principle does the copier — who adds nothing new to the creator’s mental output — acquire a right to profit from the output of the creator’s mind?

By what concept of morality is the man who has NOT created the content of a work of art nonetheless entitled to profit from that content — and do so at the expense of the man who DID create it?

By what concept of morality is the man who has NOT conceived of and created the design of an invention nonetheless entitled to profit from that design — and do so at the expense of the man who DID create it?

By what concept of morality is the man who has NOT created the formula for a new material nonetheless entitled to profit from that formula — and do so at the expense of the man who DID create it?

You have provided no answers to these questions — and you cannot, because to do so is to admit that your position rests on the obliteration of the concept of justice — it rests on the notion that the earned and the unearned are irrelevant to the concept of rights and irrelevant to the issue of who is entitled to economic rewards and who is not.

You seek to obliterate the distinction between the earned and the unearned; you seek to evade the distinction between the man who creates — and the man who simply seeks to cash in on the creative efforts of others. By doing so, you have come down squarely on the side of the Peter Keatings and the Orren Boyles of the world. And in doing so, you have proven Ayn Rand right once again: the alleged defenders of capitalism and economic freedom have done it far more harm than all its enemies combined.

Joe B January 22, 2009 at 10:56 pm

I generally lean towards anti-IP, although I’m still somewhat undecided. I’ve read Kinsella’s piece, but haven’t read this book yet.

As an engineer at a small company, I have seen enough stifling effects of patents to predispose me against them. Ideas that are used to produce tangible goods are rewarded in the sale of those goods. First to market gets the biggest prize, which benefits consumers and encourages new innovation. Without patent monopoly protection, there is still incentive to innovate inherent in the Austrian view of entrepreneurial profit – in order to make a profit you have to develop a new market.

So what happens if one producer “steals” and idea from another and gets it to market first? The consumers still benefit, but is this enough disincentive to prevent producers from innovating at all? I don’t think so, at least not on a global scale. Maybe producers would simply be willing to pay their innovators more in exchange for signing non-disclosure agreements. There’s your compensation for invention.

While the current business model for software would struggle without IP law, software developers could still be paid for their labor by developing custom products directly for consumers (or businesses). They could then use the resulting application to leverage themselves for similar projects with other customers – if I have developed an application, I know it inside and out and will have an advantage in customizing it for various needs.

Once open-source versions of every imaginable application are prolific, demand for this service would probably diminish, which means that would-be software developers could profit more in other fields – again, benefitting consumers. Just because you want to write software doesn’t mean you deserve to be paid for it – unless you can sell your services (not your ideas) more effectively than your competitors.

Copyright is where I struggle a bit. My wife works in the film industry so I may be biased – although I tend to think that she would happily find another job if the current film industry collapsed and forced her out of work.

It’s difficult to imagine films and other media being profitable once bittorrent and limewire have completely supplanted the classic distribution models, but this will inevitably happen in the near future. The consumers demand it. If you think this is ethically wrong, you’re free to continue donating to the film producers (and paying my wife’s salary!).

So what sort of model would the film industry take on without copyright? (This is probably discussed in the book, but I haven’t read it yet). There is ever-growing demand for content of all kinds, meaning that there must be a way for someone to profit from it. I think it would be a combination of donations and corporate sponsorship/product placement.

An important distinction needs to be made in what you are paying for when you donate to an artist or film producer. You’re not funding the movie you just saw, you’re funding the next one that you expect will be just as good.

There may be a market for managing fundraisers for specific new projects – if you want to see Spider-man 4 get made, kick in $10 and you’ll be the first to know when it’s available. Maybe you get a t-shirt. For $100 you get your name in the credits. For $10,000 you get a cameo with a few spoken lines. For $1,000,000 you get a love scene with the lead (in the name of art, of course).

While there would be some risk to the donator if the film goes over budget and doesn’t get released, this would provide a market mechanism for the producers that can most efficiently use the resources given. If they have been efficient enough, they might turn a profit. If the film doesn’t get released or the fans don’t like it, their donation for the next one will go to someone else.

Since budgets would probably be much lower under a voluntary system like this, there would be a greater market for low-cost production tools – and actors would certainly be paid less. The quality of the films produced as a result of this is necessarily subjective. Most likely the people who stick with it will be the ones who do it out of passion rather than to make a buck. Whether this is good or bad is up to each consumer to decide.

newson January 22, 2009 at 11:09 pm

to michael smith:
of course i don’t confuse ownership with value. look carefully at what you’ve claimed:

“Why does the physical creation of a man’s muscles belong to him…”

labour gives no entitlement to ownership, which is your contention. the rest of your argument seems based on this initial fallacy.

the artist must own the transformed substance to claim ownership.

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