No one said anything about this: “It’s amazing, people think there is unlimited labor “overseas” that can instantly and immediately steal everything and immediately and instantly sell it for less.”

The point is that non-protection of original, patentable, copyrighted material by law reduces the incentive of those who create to do so. Especially those creatives that are independent and not bank rolled by large investors and companies.

Yes, you are right in this sense. In a world of mediocrity and dishonesty there are men with no character who choose to steal to compensate for their lack of originality and genius. And we should encourage that kind of behavior. I don’t think so.

Oops, his intellectual property is no longer protected because of changes in the intellectual property laws and a much larger company worth $300,000,000 snatches up his idea, has it made overseas, in larger quantities and therefore cheaper and also spends $10,000,000 a year for advertising.

Guess who is going out of business. Guess who is not going reap the reward of his labor and intellectual capacity. Guess who will lose the motivation and incentive to innovate again because the work of his mind is not protected. You guessed it, poor Bob.

Think about it…

1) Exit thief
2) Enter alien with replicator

The Alien, using his superior replicator-technology, creates two clones, one of the cow and one of the bull. He then goes on to breed a herd and starts to sell meat and milk.

Would the farmer have any grounds for bringing the Alien to court?

On a more serious note, IP should be maintained for the commercial industry. For the individuals, however, it should be abolished. In effect, any idea can be sold to a company, but noone can put restrictions on personal use.

Why does T need permission to make copies? She has never entered into any contract with A that would bar her from doing this. Now you will say that the book was not T’s rightful property, and I’ll agree with you on that. But is ownership a precondition for copying? Unlike mating cattle to produce offspring, producing a copy of a book does not require actual physical control over the book: It only requires a certain state of mind.

Imagine the following: After having returned the book to A, T sits down at her desk, takes her pen, and reproduces it from memory. How do her pages become (co-)owned by A in this process? She has made him whole by giving back his book, so how can he have any claims on her?”

I think Brian was assuming that “copying” is a way of physically making use of an item, but this does not necessarily need to be the case.

Suppose B, having contractually agreed to A’s copyright, nonetheless prints the contents of the book on an enormous billboard for all the world to see. T passes by the billboard, and transcribes it’s contents into her notebook. What can now be said of A’s copyright? Certainly, B has violated his contract with A, but A has no claim over the contents of T’s notebook. The mere fact that B’s billboard rightfully belongs to A has no claim on the transcription in T’s notebook.

What’s the court suppose to do in that case? Well if A is to be believed then he is the full owner. So he gets his book back and T cannot make copies, and if he already did then he did so without permission and must make A whole.

(I’m going to make T female in the following. Makes it easier to write about this without having Ts and As all over the place.)

Why does T need permission to make copies? She has never entered into any contract with A that would bar her from doing this. Now you will say that the book was not T’s rightful property, and I’ll agree with you on that. But is ownership a precondition for copying? Unlike mating cattle to produce offspring, producing a copy of a book does not require actual physical control over the book: It only requires a certain state of mind.

Imagine the following: After having returned the book to A, T sits down at her desk, takes her pen, and reproduces it from memory. How do her pages become (co-)owned by A in this process? She has made him whole by giving back his book, so how can he have any claims on her?

don’t believe me, try it for yourself.

He proposes that the author A writes a book and makes two copies. He sells copy, BOOK 2, to a party, B1, wholly. He sells partial ownership in the second copy, BOOK 2, to party, B2, with a copying right contract.

In my view (and Rothbard’s) the contract is that A is co-owner of the book with B2, and is the only co-owner allowed to copy the book. B2 is allowed to use the book in any other way and is also allowed to destroy the book, and therefore dissolve the contract over that one physical piece of property. Since Kinsella is arguing against Rothbard, and to prevent his counter argument from being a straw man we must assume this definition even if Kinsella didn’t spell it out.

He then states: “The two books, BOOK1 and BOOK2, appear to third parties to be otherwise identical. Yet they are not: one is incomplete; the other somehow contains more mystical “rights-essence” within its covers.”

To which I respond (and Rothbard would also), “So what? This is true of any co-owned physical property”. The same can be said of a piece of land where mineral rights are owned by one party and other rights by another. There is no way by looking at it to tell who owns what. In fact, can’t look at any piece of property to tell who owns it without specific markings. There’s nothing mystical about it. There are no “essences” involved.

Not only that but he has made some other false assumptions here and the following text. 1) Abandonment. and 2) Indistinguishablility. The short replies to these are: 1) Just because I left my book on the park bench does not mean that I have abandoned ownership of it. 2) There may indeed be identifying marks in the book.

On assumption 1) Abandonment.

I used to be a bellhop and found a roll of a little over one hundred dollars on the floor in an elevator wrapped in a rubber band. I did not assume this was abandoned property because I took human nature into account. People lose things. When I got back to the desk I asked the other bellhops if they had lost anything. One guy with a pained look on his face said, “I lost my wad”. I said, “Describe it”, and he described it exactly. So I handed it over to him. He was quite surprised I did that because he thought most people were dishonest. I laughed and said, “Thanks for having such a high opinion of me”.

If I were to find a book on a park bench I would leave it there in the hopes that the owner would find it, or if I thought there were many dishonest people around, or it was going to rain, then I would take it and leave a note. I would not assume ownership until I had exhausted a reasonable amount of effort considering the value of the property. Likely I would just leave a cheap paperback.

Furthermore I might take other steps to establish ownership, such as dropping it off at a lost and found, or taking it to the police. Also, I would look on the outside edge of the book, and the first couple pages for anybodies name.

On assumption 2) Indistinguishablility he is also incorrect. There are many ways to establish the difference between the books.

a) By any reasonable means we already use to establish ownership of misplaced objects. Once we establish the owner then any relationship between that owner and the original author A is up to them. If we find BOOK2 and give it back to B2 then it’s clear that this was a book with co-ownership between A and B2.

b) It’s likely that book B2 will contain an explicit copyright notice. If the finder of the book sees this notice then he at least knows who one of the co-owners of the book is. He can return that book to A if he wants too, or he can homestead B2′s property rights in the book, which does not include the right to copy.

Thus most of Kinsella’s claims that the books were indistinguishable is moot in deciding if there can be co-ownership defined by a copying rights contract.
Let’s see if he can get further in his argument with even more assumptions.

Remember, he argues: “Suppose B1 and B2 leave these books on a park bench, where they are discovered by third party T.” and ” But think of the two books, BOOK1 and BOOK2. How could one tell the difference between them?”

He’s got a very narrow issue here, two identical books left on the same bench, and indistinguishable. Hardly a situation that is likely or something one would want to build ones rights theory on, but let’s address it.

Well there are all sorts of outs that could resolve the issue in Rothbard’s favor still. Both owners could come back. The owner of BOOK 1 could come back, etc.

The only situation that seems to cause problems is if the finder of the book T, was unable to find the owner, and the book had no copyright notice inside. But even then any reasonable actor would know that somebody wrote the book, and may have had such an agreement with the actual owner of the book. The book will likely have a title, and author, etc. What the person should then do is contact the author and see if this is the case. If this is a one-off contract with a particular individual B2 then the author could contact B2 and see if he frequented the park in question and lost the book. In which case, the owners are identified, and no homesteading is possible.

Note too, that the finder of property should not use that property. If I find a potentially abandoned car on my property then that does not give me the right to drive it. Likewise I have no right to read a discovered book up until I have discharged my duty to take reasonable care in finding the owner. So I don’t want any responses in this direction from my opponents. You’ll find the intellectual gate closed.

Let’s concede points Kinsella didn’t even make. Let’s assume against all odds that the books truly are indistinguishable, that the owners are impossible to find, that it is impossible to determine the author, or anyone he might have sold copying rights too. Well then it is perfectly acceptable for a the finder of the BOOK 2, Mr. T, to homestead full ownership of the book.

The only question that is left is what if BOOK 1 is found and author A is alive. Can T homestead BOOK 1, and make copies. Well theoretically yes he could have given that scenario. However there is an issue here of possible dispute between A and T, and what a court could reasonably determine. Mr. A could lie and say that he sold BOOK 1, with copyright with B, in which case the court would ask A to produce the contract. Or Mr. A could lie and say that he never sold the BOOK 1 at all.

What’s the court suppose to do in that case? Well if A is to be believed then he is the full owner. So he gets his book back and T cannot make copies, and if he already did then he did so without permission and must make A whole.

Courts and societies often settle on social conventions for the purpose of reducing transaction costs, preventing disputes, and the like. Often choosing what makes most sense based on the more common occurrences. The default assumption is often a matter of convention. The question in this case is what is the more reasonable default assumption A) That a book without a notice is copyrighted. or B) That a book without notice is not copyrighted. Sometimes it is quite unclear what the default social convention should be and yet we decide anyway.

Since people write things all the time and do so on their own paper, computers and the like it would be quite onerous to require them to print a copyright on each copy. Also items are stolen and misplaced with much more frequency than the extremely unlike scenario played out in Kinsella’s book. It seems much more reasonable to assume that for all works the author retains copying rights unless otherwise explicitly abandoned either in writing, or upon death by a lack of heirs. Books that are not covered by copying rights would have to explicitly state so within their pages, in a place determined by convention.

With that convention the author A would only need to establish his authorship of the book (or the current holder of the copying rights a contract with the author). So what of an ancient text dug up from some cave, like the Dead Sea Scrolls? Well, obviously the author is dead, and obviously there is no copyright holder who bought from the author. So the finder is free to homestead all rights to the text. He would need to advertise the discovery, and place his name on any copies.

Why should he put his name on his copies to establish his copyright? Because someone else may dig up a second copy, and homestead it, which would entail the right to make a hierarchy of additional copies. Heck, the second discoverer could then sell his copies without any copy right contract. This would in no way interfere with the first discoverers rights, although it would make them far less valuable.

Then, by accident all copies that the second discoverer had found or made may by accident be destroyed. In which case, the value of the first discoverers copying rights goes back up.

Also, from the point of view of the courts it may be harder for the first discoverer to prove that any third party copy was a violation, but it probably will not be impossible. The two discoveries may not be identical copies. If it is impossible to determine then it is tough luck on the second discoverer.

Likewise tough luck on you if someone steals your unpublished work and you can’t prove ownership. But that hardly proves that the underlying rights don’t exist. That’s an issue of the fact that courts are not all-knowing, not one of rights.

In summary, all the talk by Kinsella about magic, right’s tendrils, spooky, amorphous, invisible, mystical, spooky, are either nonsense which can be claimed of property rights or misunderstandings on his part.

Kinsella also quotes an argument by Palmer in which he asks, “Could one reserve the right, for example, to remember something?” This analogy is not a valid comparison. The parties to a contract must be able to execute on them. One can certainly live up to an agreement not to copy something. At this juncture it is impossible to live up to a promise to forget something. You can certainly promise not to disclose something, but how can we tell what’s going on in someone’s mind, and how can someone even control what they remember. Maybe in the future we will have technology that can erase specific memories and read minds. Until that point such contracts are impossible to meet the performance requirements of.

The short of it is that Kinsella has not made his case against Rothbard, or me, nor Palmer. They both have some failure of understanding of natural rights and the duties they entail.

I won’t repeat Stephan’s argument here, I’ll just refer you to it… in Against IP, pp. 47–55, he disputes the “bundle-of-rights” view of property that you seem to (do you?) espouse. Where do you disagree with him?

As a matter of fact, yes.

“Would the thief also return that to you?”

If he was caught and it was valuable to me then yes I would request compensation for it too.

would the thief also return that to you?

“The current legal situation, however, goes far beyond that…”

Correct. I disagree with current law.

“Even allowing for this, does this necessarily mean that the version that *you* created belongs to the original creator? “

The process is iterative. Say I own a prize cow and bull. Real expensive ones of a special breed. Say somebody else steals them both, mates them and makes copies this way. Of course he feeds them, cares for them in the meantime. Certainly he was responsible for initiating the copying in this example.

I think it is pretty clear that I own the calf.

Should he get caught then to fully compensate me I need the cow, the bull and the calf. Because if they hadn’t been stolen then I could have, if I valued it, made the copy myself.

Now, the thief did mix his labor with my property, but that doesn’t make it in any part his because it was mine to begin with and he had no such right. Nor was his action a mistake.

Plus he must compensate me for the effort of finding, catching, and prosecuting him. Plus pay me for the risk I ran that I would never get my goods back. Thus usually courts don’t bother weighing in the criminals contributions when returning lost goods and often add fines on top.

Now the same thing may have happened in a different way. He may of stole my cow and bull then sold them to someone else. That other person may then mate them, feed them and produce the calf. But it is still stolen goods. If this person is caught with my property then I should get my property back, the cow, the bull, the calf. However I should compensate him for the care and feeding.

Under this view the calf is mine, even if I do not have possession. The calf itself might then be mated with my bull to produce yet another calf. Heck an entire herd may be produced. But still that herd is mine, or at least partially mine, since it was produced with my stuff. Some portion of course being do to the mixing in of the other guys stuff.

So if the crime were discovered then what a judge should do is try to disentangle our contributions and try as best as possible to make both parties whole. We are in a sense forced co-owners of property because of a fraud caused by a thief.

Now I breed those animals to high quality over a lifetime or perhaps bought special animals that had been breed to high quality over hundreds of years. They represent a scarce and valuable good.

On the other hand the guy who copied them added little of value. Some straw, some water, some minimum wage labor, and a shed. When it comes time to disentangle the contributions I think it is clear that I should have the lions share of ownership.

Also to make me whole again it is clear that the genetic heritage of the animals should naturally be put back in my possession, and not the guy who benefited from a theft. I should get the herd and pay at most for the room and board of my animals to an innocent receiver of these stolen goods.

The same goes for copyrighted books. The paper used to make copies really isn’t that valuable. Even less valuable contribution is made by copying via a computer.

The copyright owner on a book really is a co-owner of the work. The buyer is really only renting the work with a right to proper disposal. I covered this in detail in one of the comments here on mises and don’t want to repeat myself again.

The contract about the book makes them co-owners with differing rights in the book. Just because some third party is not a party to the contract does NOT mean he can just steal the book and use it as he wants.

What about a lost book? Well if the book is clearly marked with a copyright notice then the finder can certainly locate the person who retains the ownership over the right to copy the book.

There are all sorts of other issues that arise that I can also justify. For example, what if the copyright owner dies without selling the copyright to anyone, and has no heirs. Well then we treat it like any abandoned property.

If you happen to find a book for which no one currently holds copyright then you should in fact be able to establish your own copyright for any physical copies of that book. Even if you are not the author.

For example, if you happened to find an original copy of say the bible that is older than any known copy then I see no reason why you could not establish a copyright contract which you use to sell copies of it.

Were someone else to find another original copy of it they could establish their own parallel copyright.

Again all based on physical property rights.

When the term “intellectual monopoly” is used instead of “intellectual property” it become clear why it is so odious. It’s not because it’s property of some inexhaustible resource. The real reason is that every monopoly on an activity is intrinsically invasive, incompatible with physical property and privacy. The division of physical property lets every person “mind their own business” while respecting other people’s right to do alike. So called “Intellectual property” makes this peaceful coexistence impossible; you never know whether your words, drawings, or your very thoughts are infringing on someone else’s “property”. That’s why so-called IP should be abolished even if its benefits were real.

But I don’t think they are. Let’s get into the more interesting issue of how arts and inventions would be promoted in an IP-free society.

First, let’s ignore the example of books and other physical incarnations and assume that all information is exchanged online.

Some artists’ lobbies claim there would be “no music/books at all” without IP, which is preposterous. Music, literature and other forms of art which can be cheaply produced by a single individual would go on even in the total absence of economic motivation. True artists simply can’t help to produce works of art, and they enjoy it, even if they have to do it in their spare time.

A different story is action/sci-fi movies, where numerous artists and non-artists must coordinate their efforts. While it’s also conceivable that all the people involved do it in their spare time for the fun of it, some form of funding seems highly desirable.

An obvious candidate is the “fund and release” strategy, also called “threshold pledge”. The artists gives some hints, maybe even samples, of the work he intends to produce (or has produced but keeps private) and he sets a price. Those interested in having the work released can make a money pledge. When the full price is reached, the work is released. If the artist decides not to release it, people get their money back. So this is not charity (pay and hope), it’s just a commercial transaction involving lots of buyers.

Another funding strategy is a generous prize policy. It has the advantage that the money is given after the relative merits of the work are seen .And who would pay for the prizes? Maybe it’s some manufacturing company looking for advertisement, Maybe it’s wealthy individuals who want to improve their image, maybe it’s art clubs supported by many enthusiasts, or maybe it’s someone who has something to gain from an increased public awareness of that kind of art; for instance, an association of art teachers. Or maybe the artists become art teachers and their works of art are their main form of advertisement.

This last possibility is also very interesting for academic research and as a subtitute for patents. So, technological advancement would flow from academia to industry, and university teachers would work hard to produce useful papers, to attract more students who pay for lessons. Students would pay for the lessons, either because they like to learn, or because they hope to become teachers themselves, or because they hope to be hired in some manufacturing company as the expert who decides which of the available technologies to implement and how. And so we come to the argument advanced in the book “Against Intellectual Monopoly”: manufacturing companies would pay handsomely to these experts, who would help them get to the market first and massively with new products. So, even if the physical process of spreading the idea is inexpensive (as in online publishing instead of printing press) the embodiment of patentable ideas in useful objects is an area where consumers would be wary of cheap imitators. What about software products, like office suits and photo-manipulation apps? they may start as internal software of a manufacturing (or service) company. Later on, as the company needs to cooperate with others, comunication protocols and file formats would naturally emerge. And those would be automatically open standards, which everyone seems to like even in these IP-loving days.

So why are we not seeing all this plethora of alternative funding schemes today? Why, because of the overwhelming competition of intellectual monopoly, which drains the market, attracting the best and the brightest with its promise of huge revenues, and leaving preciously few brilliant individuals to the open knowledge world. That’s why the very existence of “free software”/”open source” applications and operating systems is indeed remarkable, and its alleged shortcomings are not a sign of what to expect if intellectual monopoly were abolished.

Regards,