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Source link: http://archive.mises.org/9301/does-innovation-require-property-in-ideas/

Does Innovation Require Property in Ideas?

January 24, 2009 by

[Live blog part 3, chapter 3]

Against Intellectual Monopoly dares step out front, on a topic very dear to our hearts, to prove that “the great role of patents in giving us modern software is unadulterated fantasy.” And they show this by reviewing the history of software innovation and its present workings. Neither Google nor Youtube nor any other driving force is using patents to retain competitive advantage, and those who do collect patents mostly do it in order to avoid patent trolls, e.g. those who would patent a technology already in use in order to possess and restrict its use.

The lesson, however, applies far more broadly. Wealth in the Western world has been rising for a thousand years, and innovation along with it, and patents have played virtually no role whatsoever. The authors, in chapter 3, go more fully into the history of the patent to show that they originated out of kingly privilege associated with mercantilism and that the legislation of the 17th and 18th centuries were forms of liberalization, despite first appearances. It wasn’t until the 19th century that the laws tightened again.

Comprehensive “intellectual property laws” as they are today didn’t make an appearance until the end of the 19th century and the beginning of the 20th century. Taking the long view here, we can see even with a superficial look that economic growth throughout the world has been in process for 1000 years, while patents are new and mostly very narrow until quite recently.

Why did patents enter the picture? The rise of modern IP is due to the lobbying of incumbent firms threatened with competition. It is a complete myth that patents give rise to innovation; the reverse has been true: innovation gives rise to patents. The authors offer this incredible challenge: “Can anyone mention even one single case of a new industry emerging as a result of the protection of exiting patent laws? We cannot… Strange coincidence, is it not?”

Examples. Services in the US were not covered by patent until the 1990s. In Italy, pharmaceutical products and processes were not covered until 1978. In Switzerland, it was 1954. Agricultural seeds and plans were not effectively patented until 1977 – but the greatest progress here occurred over the previous 100 years. Basic sciences like math and physics cannot be patented. The tendency in the biological and life sciences toward patents is a very grave sign for the future of these sectors.

The authors cite George Stigler in pointing out that patents did not assist “automobiles, frozen foods, various electrical appliances and equipment, petroleum refining, incandescent lamps, radio, and uranium mining.” Stigler further cites the mail order business, which revolutionized retailer, as a case of patent-free development.

Shall we go on? It helps to have the specifics that the authors provide. “Ray Kroc’s fastfood franchise (better known as McDonalds), the 24-hour convenience store, home delivery of pre-cooked food, the suburban shopping mall, franchise-everything (from coffee to hairdressing), the various steps that make up the delivery business of UPS, Federal Express, and DHL, and, obviously, online commerce. That is: pretty much each and every innovation which, during the last half century, has had any lasting impact in the retail and distribution sector was not spurred or protected by patents.”

How did the inventor of the cotton gin–Eli Whitney–become rich? Not through the cotton gin! He and his business partner took out a patent and spent their energies crushing competition. They were trying to charge farmers two-fifths of their profits, paid in the form of cotton. Farmers hated it, and started to pirate the machine, and many competitive companies sprung up. Litigation followed and last from 1794 to 1807. Nothing came of it but a expense of time and energy, not to mention lawyer fees. The growth of cotton ginning in the South ended up owing more to the pirates than Whitney.

So where did Whitney get his money? How did he die rich? In 1798, he invented a process to manufacture muskets by machine. This time he was smart: he sought no patent. He encouraged “piracy,” that is, imitation. The industry took off, and he remained the leader through innovation. What a blessed life to be rid of the stupid waste of using legal means to crush the competition and instead devote yourself to do good for others and making money at the same time!

Here is the section in which the authors tell the story of agriculture. Before 1930, there was no patent protection–the very period in which the US became so productive in agriculture that the entire population shifted in its main industrial focus. After 1930, law granted only patents for a narrow range of plants. It wasn’t until 1970 that the Plant Variety Protection Act extended protection to sexually produced plants, and not until the 1980s when protection was extended to biotechnology. So we have a test case, and the authors measure innovation using total factor productivity. They find no increase after patents, and even some disturbing data oscillations. In corn in particular, the astounding increase in yields occurred before patents and have nearly leveled off since patents.

Two splashing examples of amazing innovation are now introduced in the book. The area of Almeria, Spain was an unusable dessert from the beginning of time until 1963, when an unpatented greenhouse was introduced into the area. The greenhouse was copied and copied and spread all over the region. The results can be seen from space with color photos reproduced in the book. The entire region was transformed from desolate to rich in the course of two decades. The same process took place in Treviso, Italy, where the read-to-color sweater was introduced by the Benetton family, and the process was imitated and spread to change an entire region in the absence of patent.

Other examples: financial services (no patents), fashion (no patents), and advertising (not patents and copyrights are ineffective). These are the leading examples of innovation in the modern age. This section is so compelling that so far as I am concerned, the book could end here.

But if patents really are that irrelevant, why don’t the captains of industry realize it? It turns out that they do. Two surveys in modern times asked R&D heads what techniques are most effective in realizing gains from innovation. It turns out that they regard the patent as the least effective means. The authors conclude this mind-blowing chapter with a long discussion of patent pools: these are cases in which companies relinquish patents in order to establish sharing agreements. It is a way of stepping sideways toward what the market would give us anyway.

Companies live and breathe by innovation. Innovation and monopoly are not compatible. We are back to an old lesson that remains true: it is the market and all that comes with it–not laws granting exclusive privileges to produce–that gives rise to innovation.

I end with a statement from Mises himself: “The great monopoly problem mankind has to face today is not an outgrowth of the operation of the market economy. It is a product of purposive action on the part of governments. It is not one of the evils inherent in capitalism as the demagogues trumpet. It is, on the contrary, the fruit of policies hostile to capitalism and intent upon sabotaging and destroying its operation.”

Sometimes those most hostile to capitalism are the capitalists themselves!

{ 59 comments }

ktibuk January 24, 2009 at 12:13 pm

Sorry for multiple posts, But there are so many IP posts these days I dont want this to go to obscurity.

Straw man argument is exactly what IP socialists are doing.

Notice all the posts from Kinsella and Tucker. Also notice the examples given in the book they are promoting.

They are basicly against patent laws, which have problems beyond IP being a property or not.

They build a straw man equating patents with IP, and thus try to abolish private property.

They have no intellectual courage so they can not bring up pirates copying full movies and songs as examples but only examples that doesn’t really create any problems, like ‘humming a tune while walking” or “forgetting a book on the beach”. But when libertarians bring this copying thing, they change the argument to the scarcity issue.

Which is a non issue anyways because the act of copying without the consent of the owner is aggression. And aggression is an ethics issue, unlike scarcity which is an economics issue.

Just like fraud, or theft without confronting the owner.

You have to ask the question, in which circumstances would the owner let someone copy his work, unless he gives out it freely? The answer is clear. By the threat of aggression. So we may conclude that, copying something without the actual consent of the owner is aggression. Just like fraud is actually aggression, although no real threat is used.

Also IP socialist keep claiming that the owners of IP are actually trying to coerce the copyer. Which is both absurd and unbelievable. Of course they keep bringing up patents which are actually guilty of this to confuse.

There are two person. A wrote a novel, B copied it. Would there have been a book or am act copying if A hadnt wrote the book? No. So the situation must follow the following steps as far as logic goes.

A writes the book, B aggress against A by copying the book, without A’s consent. B initiated the aggression there fore any force A may use after the fact is in fact ethical.

IP socialists always confuse property with protection of property, and they also confuse property with value. Logically protection issue must come after the homesteading. Protection issue can not precede homesteading. To claim this is logically absurd. Property is having the right to do whatever one wants with something. Robinson Crusoe owns the fish he catches, he can do whatever he wants with it. He doesn’t have to wait for Friday to come to the island, to make the fish his property. If he did he would die.

Also somethings economic value, has nothing to do with property rights. Something maybe so abundant that it may in fact be free. But “free” is about value and valuations. It is not an ethical concept thus it is not directly related to the property issue.

Some IP may leak. It is hard to control IP. It may become a free good. But even this doesn’t change the fact that the IP is the producers. This may not mean anything as far as exchange economy, but it means a lot ethically.

Even the IP socialist subconsciously knows this. They may advocate mooching of the creator by being a parasite, but when it comes to giving due to the creator they seem to not be able to go that far and deny the creators part in all of this.

Yes, Rawling created Harry Potter. You may mooch of her but at least give her her due, right? Promise it wont cost you nothing. And when you are used to taking something for nothing, giving something that doesn’t cost anything couldn’t hurt, right?

There are so many fallacies in IP socialists claims that it is hard to expose all of them on comments sections on this blog.

But if you follow this blog enough you can see the IP socialists blogging here are actually the worst enemies of their positions.

Since they don’t have a comprehensive, contradiction-free theory, the more they post the more they expose themselves. They even use all the classical socialists arguments. They analyze IP as it relates to economics but they don’t dare bring up or respond to calculation arguments. Just repeating a bunch of memorized lines.

So keep at it boys. You may be bloating the blog with this IP thing and cause people to spend their scarce time on these instead of on stuff about the worst financial crises the world has ever seen, but IP is an important issue to.

Marcelo January 24, 2009 at 12:27 pm

I think it’s hilarious that you charge the author of straw man arguments when he brings up real life examples and then your argument is all a straw man argument.

Nate January 24, 2009 at 12:32 pm

“because the act of copying without the consent of the owner is aggression.”

Are you serious? So I suppose you would shoot a guy out of self defense if he was mimicking your version of the Hokie Pokie?

Mike January 24, 2009 at 12:35 pm

“because the act of copying without the consent of the owner is aggression.”

I responded to this in the other thread, but if you honestly still believe this, after all the discussion here, I’m not sure there’s any point in continuing this argument.

Marco January 24, 2009 at 12:39 pm

@Nate

Ya man, looks like that’s what it’s all about.

Sorry, it was stronger than me. ;-)

Pete January 24, 2009 at 12:43 pm

If anyone is putting up a straw man, ktibuk, it is you. IP is not about defending rights, it is about invading people’s right to use their own property. Example, I record a radio program. How am I violating anyone’s rights? The radio program is clearly not a scare commodity. My recording of it does not prevent anyone else from doing such, nor does it even prevent the radio business from selling copies of their program. Similarly with photocopying Harry Potter or other such books.

Strangely enough, despite LvMI hosting PDFs of all their books, many of us purchase the books. In fact, if it were not for them making available such fantastic content they wouldn’t likely sell near as many books.

Further, I work in an industry where my clients pay me for nothing but ideas. I do just fine with out any patent protection. Sure, clients have “stolen” my ideas without compensating me for them. But most find the product I produce, worthwhile enough to continue compensating me for it.

Your side of the debate is more interested in controlling how others use real property, their computers, electronics, photocopiers, and manufacturing equipment. That is hardly a defense of private property.

Mike Farmer January 24, 2009 at 2:57 pm

I saw a bumper sticker –
What if the hokie-pokie IS what it’s all about?

Andras January 24, 2009 at 3:32 pm

@ktibuk,
You are absolutely right. They always start with an abuse of the copyright or patent law and end up attacking the concept of IP without no logical reasoning. What is this if not a strawman?
This is the old socialist strategy used millions of time again property rights. They are pulling a Goebbels again and again.
Never mind they cannot even formulate what they want to abolish. Their excuse: it is non-existent.
And mises.org just keep loosing its credibility.

Bill R January 24, 2009 at 3:54 pm

“Strangely enough, despite LvMI hosting PDFs of all their books, many of us purchase the books.”

I’m curious of the impact of Kindle on this. Unfortunately I don’t own one but I wonder if the LvMI is willing to make it readily available via Kindle by reformatting the file to a Kindle applicable version AND advertising that fact widely. Here’s an example: http://www.freekindlebooks.org/

This could be a real deal breaker…but I think it’s the next step toward libertarian activism. I think if Kindle becomes a staple then libertarians would be able to distribute their full arguments to the public more easily and in a thorough manner.

Imagine distributing Rothbard’s For A New Liberty to everyone’s “doorstep” at little or no cost.

The only way I see LvMI raising money off this is the same way many copylefters suggest for musicians: Concerts….or in the case of LvMI seminars by renown scholars with a registration fee. And also more donations due to a larger audience.

I think it’s worth LvMI giving it a try especially since Kindle hasn’t been fully adopted yet. If proves to be too much of a revenue drain perhaps try it at a discounted cost.

Those are my thoughts anyway…

Hajdi January 24, 2009 at 5:01 pm

@ktibuk

Have you read “Against intellectual property” by Kinsella (http://mises.org/books/against.pdf)?

It provides answers to you questions. Please give your constructive criticism after reading it.

But if you have already read it and then I have to consider you a troll.

Hajdi January 24, 2009 at 5:01 pm

@ktibuk

Have you read “Against intellectual property” by Kinsella (http://mises.org/books/against.pdf)?

It provides answers to you questions. Please give your constructive criticism after reading it.

But if you have already read it and then I have to consider you a troll because you accusations are pure nonsens.

Brian Macker January 24, 2009 at 5:21 pm

“Strangely enough, despite LvMI hosting PDFs of all their books, many of us purchase the books.”

Printed documents and online documents are different goods. Any good economist knows that.

JJ January 24, 2009 at 6:06 pm

And mp3 songs are different goods than cd’s from the audio store – so I suppose you have no complaint there.

Peter Surda January 24, 2009 at 7:54 pm

Nice to see the debate going on and Andras and Ktibuk repeating the same lack of arguments (practical the first, theoretical the latter).

Ktibuk presents an idea of IP that is completely different from what we have now, and hasn’t even managed to explain what it actually is. He only managed to label others IP socialists.

@Andras:
> … end up attacking the concept of IP without no
> logical reasoning …
The one without logical reasoning is you. IP in the current understanding consists of several completely unrelated things. Just because we attack some of them does not mean we attack “IP”. Straw man alert!

> Never mind they cannot even formulate what they
> want to abolish.
Excuse me? The arguments are quite concrete and revolve around copyright and patent law. On the other hand, the only “argument” you brought up is the same as I heard elsewhere numerous times before: “You don’t understand anything about XY. Economic rules do not apply here. We need government protection, otherwise the whole world is doomed!”.

> Their excuse: it is non-existent.
You won’t find anything about “intellectual property” in the law. So from that point of view it’s correct. Maybe you should try to relax a bit and actually read what the other side is writing?

> And mises.org just keep loosing its credibility.
I have a theory. Attacking patents means to you attacking your belief system, and that’s why you stop arguing rationally.

Now to the others, to clean up misunderstandings of how IP works:

@Pete:
> Example, I record a radio program. How am I
> violating anyone’s rights?
You’re maybe in Ktibuk’s eyes, but the law doesn’t agree with him. Doing this is legal.

> Further, I work in an industry where my clients
> pay me for nothing but ideas. I do just fine with
> out any patent protection.
Thank you for bringing this up. Andras, are you reading this? If you fail without government interference it only means your business model was crap.

Cheers,
Peter

David C January 24, 2009 at 8:04 pm

@ktibuk

What the IP plantation masters seem to fail to understand is that we do recognize that you have a property right to control what you create. That category of right is typically called a privacy right, and possibly even a contract right. However, those kinds of rights are rarely what is intend by the pro “ip” crowd. No, what they want is to impose the massive (approaching infinity) cost of containing information in a large group (via those rights) onto third parties. They want to share information in their “private selected group” without bearing the huge infrastructure costs needed to keep that information private to that very group. They want to bind large groups of people by contact, without going thru the massive effort to negotiate agreement with individuals in that large group of people. They want to bind their agreements or privacy to 3rd parties, even if 3rd parties refuse to agree to their terms, or it means restricting the liberty of those 3rd parties.

I may have a right not to be seen naked too, but that does not mean I have a right run naked thru central park while the government forces every body to either turn their head or pay me 10 bucks. And it does not mean that if people refuse to pay and see me anyhow, that they are acting in aggression. Rather it would be I that was acting irrationally, and aggressively, immorally, and even fraudulently if I called that “right” a property. Well the same is true with those who impose copyright controls too.

“You have to ask the question, in which circumstances would the owner let someone copy his work, unless he gives out it freely? The answer is clear. ”

Yes it is, you are giving it out freely. Most likely under the immoral assumption that you have an inherent right to bind people to your terms without agreement, but that is irrelevant. Since you’re premise is false, everything else you said is useless as well.

Gil January 24, 2009 at 8:43 pm

Poor ktibuk! I.P. Socialism if rife! Isn’t amazing how some want I.P. to be non-existent yet expect the more tangible version to be sacrosanct? Two people transacting with physical property don’t have to contract with third parties to make their trade valid. A farmer who works his land to live off and not trade with anyone doesn’t have to write a contract with everyone else for his property to recognised. Just as people who produce goods in the tangible world that can be easily stolen without compensation will virtually stop producing so too will inventions and innovations that require a lot of money to bring to market yet can be copied for a fraction of that will cease to exist.

newson January 24, 2009 at 9:42 pm

gil says:
“just as people who produce goods in the tangible world that can be easily stolen without compensation will virtually stop producing so too will inventions and innovations that require a lot of money to bring to market yet can be copied for a fraction of that will cease to exist.”

the sky is falling! the sky is falling! chicken little’s only cry is to recriut more ip attorneys and stiffen enforcement.
without the benevolent and wise hand of government, all arts and sciences would wither on the vine. sure as eggs.

Brian Macker January 24, 2009 at 9:49 pm

“If anyone is putting up a straw man, ktibuk, it is you. IP is not about defending rights, it is about invading people’s right to use their own property.”

I created a mold for making an aquarium part. How can my prevention of you from using the mold to make a copy in any way invade your right to use your property?

You are absolutely free to do whatever you want with your property. You are only restricted from using my property to make a copy.

It’s my property. I get to decide what to do with it. You can’t just take it so that you can make a copy. That’s stealing.

Brian Macker January 24, 2009 at 9:56 pm

“Most likely under the immoral assumption that you have an inherent right to bind people to your terms without agreement, but that is irrelevant.”

I hate to break it to you but that is how physical property rights are established. Who ever agreed not to take the stuff you call yours?

Mike January 24, 2009 at 10:50 pm

“I created a mold for making an aquarium part. How can my prevention of you from using the mold to make a copy in any way invade your right to use your property?

You are absolutely free to do whatever you want with your property. You are only restricted from using my property to make a copy.

It’s my property. I get to decide what to do with it. You can’t just take it so that you can make a copy. That’s stealing.”

What? This is not at all what is being discussed. If there were some way to copy the mold without making use of your physical property, you would have no right to stop it from being done.

“I hate to break it to you but that is how physical property rights are established. Who ever agreed not to take the stuff you call yours?”

Property rights have actual, ethical justifications. They’re not just arbitrary rules somebody made up.

Gil January 24, 2009 at 11:09 pm

“. . . without the benevolent and wise hand of government . . .”

I’m sure most people would prefer some sort of government to help them defend themselves against larger gangs however technically people can defend themselves by themselves without government or private enforcers.

However I’m sure you argue it’d be an assualt on property rights if someone tried to self-enforce I.P. wouldn’t you? If Bill Gates’ hired enforcers burst into someone’s home and found the pirated Microsoft software they were looking for and the enforcers destroyed the equipment used to burn off copies and roughed up the person some, wouldn’t you argue private property comes first hence the enforcers are violent criminals (and Bill Gates by extension)?

David C January 24, 2009 at 11:23 pm

“I hate to break it to you but that is how physical property rights are established. Who ever agreed not to take the stuff you call yours?”

Thank you for pointing that out. Because when property isn’t defined by it’s physical nature, then any form of control can be rationalized as a property right.

Don’t take away Wal-Marts market share. You’re stealing!!!

newson January 25, 2009 at 2:42 am

to gil:
you can’t self-enforce ip! it’s a contradiction in terms. only the government can make it a crime. bill gates would have no recourse except to defaulting contractual parties, should his ideas enter the public domain. the onus is entirely on him to choose his contracting parties carefully, and draught secrecy agreements with information sharers.

home-invasion may be met legitimately with deadly force, particularly if the goons are wearing microsoft t-shirts.

ktibuk January 25, 2009 at 2:52 am

My post above may not cover all the IP socialist fallacies but it covers some of them. It is sad but not surprising that none of the fallacies I exposed got any response.

Only Mike responded to one point, but he didn’t defend his position, only stated we are thinking differently. Well yes we do.

There are couple more fallacies that I didn’t mention.above that have to mentioned.

One is trying to socialize cost of protecting property through state, and the lie that state is needed for private property to exist. This is actually a curious lie, because it usually comes from anarchists which, you think would know, that private property can be protected and of course contracts can be enforced in a free stateless society.

Let me state that IP exists. It is a legitimate property and like any property it can be protected by individuals in a free society. And of course the cost of protecting IP and enforcing law would bear on the owner of the property.

The only part that would have a problem would be patents which I guess would require a patent office, and the idea of patents are wrong as stated in the above post and many more places.

Patents are wrong because the concept gives judgment without trial that independent discovery is impossible, which is clearly absurd. Although copying is aggression and the IP that is the subject of patents in todays world may be indeed copied the accuser has the burden of proof that this aggression was committed against him. Which would be difficult in most cases. And algorithm and a novel is not the same thing.

This means patent laws should be abolished. Now please stop with this patent thing. You can easily dismiss patents but defend private property in ideas.

Also there are some people who are so deluded that they deny the existence of IP. They listen to songs, watch movies read books and somehow they deny their existence when it comes to argument.

This is a typical confusion, like the ones I mentioned above.

Confusing existence, with tangibility, confusing value with property, confusing aggression with scarcity, confusing the self defense with initial aggression and of course the mother of all, confusing ethics with economics.

Of course the most confused person about all this is Kinsella himself, and it is actually hilarious some uneducated folk keep reciting memorized lines from that confused essay and keep asking me to read it.

Any IP socialists that has intellectual courage are welcomed to respond to the fallacies I exposed.

Also I would like an answer to the utilitarian but important calculation issue.

But please stop the straw man arguments.

newson January 25, 2009 at 3:32 am

you too, ktibuk, have calculation problems to solve: the value of opportunity profits that you maintain are due the creator, and which are captured by the pirates. what percentage of those who avail themselves of a free product would still hand over money if enforcement were effective?

what is the positive value, to the originator, of the dissemination of the work performed by pirates? (fame/notoriety has potential commercial/ psychological value).

also please explain how to quantify the extent of originality of the innovation. is it completely novel, or a minor rearrangement of existing ideas? does degree count?

ktibuk January 25, 2009 at 4:24 am

Newson,

I take it that you are not familiar with the Misesian calculation argument, or economics in general.

There are no concept of “opportunity profits” in economics, only “opportunity cost”.

And this is the crux of the matter in economics theory.

If there is no private property, there can not be exchange.

Say you abolished private property when it comes to IP, effectively making the value of todays IP, “0″.

There will be no exchanges regarding to songs, movies, novels, etc. (giving away something, or taking it is not an exchange)

If there can be no exchanges, there can not be consumer good prices, and therefore there can not be prices for factors of production. Because prices form from top down. From consumer goods, to producer goods.

The main factor of production for IP is the time of the creator, which is scarce.

A composer devoid of the factor prices, meaning devoid of the price of his time dedicated to composing, could not know if he should compose or not or how may songs, let alone any incentive issues.

Today some exact amount of novels, movies, songs and software are being produced. This is being done because the prices of the end products give signals to producers.

And don’t confuse the producers of IP with the wholesalers of these goods. IP Socialists usually paint a picture of their IP-free world, where anyone can print any existing book, or song, or software, etc. But publishers, printers, or CD manufacturers would have nothing to produce if there is no IP, therefore for an economy of publishers there has to be a product to publish first.

If there is no private property, thus exchange, thus prices, there is no way for the market to allocate resources.

Only in a primitive society with no division of labor could be possible, and in this society IP is either created and used by the same people or given out as charity.

So according to Mises, if property is totally abolished there can not be a division of labor. This means if you abolish IP, there will be no writers, composers, poets, or software engineers specialized in production of these goods. There will only be butchers who write novels, lawyers who code software, and housewives who shoot home made movies.

Brian Macker January 25, 2009 at 8:17 am

Mike,

You: “Most likely under the immoral assumption that you have an inherent right to bind people to your terms without agreement, but that is irrelevant.”
Me: “Who ever agreed not to take the stuff you call yours?”
You:“Property rights have actual, ethical justifications. They’re not just arbitrary rules somebody made up.”

That’s exactly right. However, none of those justifications for property rights involves the requirement that there be an agreement with second or third parties. We don’t establish every person’s right to their property by signing contracts. Otherwise we would need 6 billion signatures every time someone created a new piece of physical property.

A contract is required in the case of copying rights because it’s an issue of joint ownership, which can happen with physical property also.

If I sold mineral rights to my property to someone else then the property rights don’t evaporate because of the agreement. Just because I let him on my property to explore around doesn’t mean every Tom, Dick and Harry can trespass.

With property rights joint ownership requires a contract, or agreement. That joint ownership can be homogeneous, each co-owner having the same rights, or heterogeneous, different owners having different rights. A mineral rights contract is a heterogeneous joint ownership contract.

The agreement of third parties is not required.

Likewise with a valid conception of copyright, agreement by third parties is not required. It works identically. That’s because valid copy right IS property rights. Patent rights are impossible to map to physical property and are therefore invalid.

Copying rights map onto property rights naturally if you understand that property rights are about who has the right to control an object, and that copying something is one aspect of control.

There are valid arguments against patents, and current copyright law, but only because they are formulated improperly, and not because copying rights don’t have “actual ethical justifications”. I am going to try to avoid that confusion by referring to the copyright that maps properly onto physical property rights as “copying rights” not “copyrights”.

When you try to undermine copying rights with appeals to utilitarianism, or claims that third parties didn’t sign contracts, or that it keeps you from doing what you want with your property, or that enforcing said rights is too expensive, etc., then you undermine all property rights Those are all invalid arguments.

Clearly if I own a piece of land and Pete (above) owns an all terrain vehicle then my ownership will interfere with the use of his property, the ATV, in that he cannot drive on my land. He can’t argue that I’m “invading people’s right to use their own property” when take him to court to keep his ATV off my property. He’s using my property in conjunction with his to trespass. Therefore he is violating my rights not vice versa. He committed some action upon my property using his property. I did nothing to his property. Only later is a restriction placed on his property, but that restriction was inherent in my ownership of my property.

Now it’s possible that I sold a “right of way” to someone else for them to get access to their property via mine. That doesn’t mean that you now have that right too just because you didn’t sign the contract.

You also claim that, “If there were some way to copy the mold without making use of your physical property, you would have no right to stop it from being done.”

So exactly how do you copy a book without using it? We are physical beings, and do not operate by magic. You either had authorized access to the book, and therefore were bound by the contract, or you didn’t.

Note that the copy right does NOT require a notice or contract. If I write a diary and keep it secret then no other person on the planet has a right to copy it, so long as I am alive to assert my ownership of the diary. Then if I do die whoever gets physical ownership of the diary will now own copying rights over it.

I would also like to point out that copying rights are not a broad as “copyright”. For example, the intention of a dress designs is to flaunt. This intentional revelation of the design forces viewers braisn to copy that design. This is not accidental and there is no attempt on the part of the owner of the property to hide the design. So if you use what was forced upon you then you are not stealing.

Now if dress designers do not reveal their designs, and take proper precautions to prevent others from seeing their designs then they can claim copying rights. For instance, by free association rights they could form dress designer associations. They could then allow critics from magazines to join, dress designers, investors and the like. They all could bind themselves to a copying right contract. Then they could have fashion shows that only allow people in who are members or buy tickets that bind them to the contract. The critics could then even publish the designs in magazines, which would have binding contracts on those who buy the magazines. Obviously they would not print a protected design on the cover and put it on the newsstand. They need to take reasonable care in concealing the designs, less they impose it on someone else.

At some point the dress designer will land a contract for production, and the dresses will start being sold. The minute they hit the streets any third party upon which the design was imposed will be free to copy it. Which means that parties not in contract with the dress design copyright association can do knock offs. This could be housewives or factories, doesn’t matter.

In court, the burden of proof that a copy was made using the physical item would be on the owner of the allegedly copied property. In some cases, this would be easy. For instance a book with thousands of words is literally impossible to copy without physical access. The odds of coming up with the same sequence of letters by chance are astronomical. This certainly meets the burden of proof. Of course, one would also have to show due diligence in labeling the object as copyrighted. There will be boundary conditions, such that violators of copy rights.

The way I’m coming up with these rules is not that I have some set of personal preferences and I’m just arguing my emotions. I’m taking various rights, property rights, rights to free association, rights to contract, etc. and expanding on them. I’m also taking into account things like the inability of courts to enforce what can’t be proven.

Clearly both sides of this argument have valid points. I think the main problem is that each side is not thinking clearly because of bad underlying philosophy. I for instance reject the idea that we have ownership over platonic ideals, or that they even exist. All forms are instantiated in physical objects, and even concepts themselves are instantiated either encoded on a physical object, or in a physical brain.

You can’t have ownership of an idea as a free floating platonic ideal, not because of any of the reasons that the anti-IP crowd give, but because no such thing exists. Ideas do not exist separate from the things that embody them. So they cannot be owned without owning those physical things, either by total or co-ownership. This is why patents are invalid. It is also an improper justification of copyright.

Likewise the anti-IP crowd should understand that sometimes my peanut butter gets into your chocolate by accident, or via crime. Making us both whole will require some sort of compensation in both directions if by accident. Crimes are another matter.

Brian Macker January 25, 2009 at 8:50 am

David C,

“Thank you for pointing that out. Because when property isn’t defined by it’s physical nature, then any form of control can be rationalized as a property right.

Don’t take away Wal-Marts market share. You’re stealing!!!”

You completely missed the context of the statement. The original claim I disputed was that one would have to have contracts with third parties in order for rights to exist. This is NOT how rights arise.

No one is arguing that anybody has a right to market share.

Were you aware that I can write a book and not even register it with the government and I already own the copyright? No contract involved.

I’ve already pointed out copying rights can be established via physical property rights. I have yet to hear a valid argument against that position.

ktibuk January 25, 2009 at 8:53 am

Peter said,

“Ktibuk presents an idea of IP that is completely different from what we have now, and hasn’t even managed to explain what it actually is. He only managed to label others IP socialists.”

And I missed this sorry. I will try to express myself better on this.

A property, is something that is a part of this universe which is altered by conscious human action in the hope of better his state of affairs and this action is called homesteading.

This thing can be something tangible like a plant, or something intangible like an idea.

Ideas are not free floating nature given goods, but the end result of homesteading. Just like an apple that has already been picked from a tree by someone..

So ideas can be homesteaded (or rather produced) and owned. Millions of people own millions of ideas. They may have homesteaded them by production, or they may have gotten them from someone else with their consent. Legitimately owning an idea implies that the person owning that idea can do whatever he pleases with it without someone else’s consent.

There are three ways of obtaining ideas. One is homesteading. The other is part of an economic exchange, which may be called by economics means. And the other is by theft, which is coercion. Which we may call the political means.

Economics means of obtaining ideas may come in many forms.. Some maybe given away for free for charitable reasons. Some may be given away because transaction costs would be too high for economic exhange.

And some ideas may in fact be part of an economics exchange. A teacher could ask for and receive something he values in exchange of the ideas he would give to a student. A writer may ask for compensation in exchange of letting the other party read his novel.

There is also another way of getting ideas. Which is copying without the consent of the owner. Which is coercion. Just like fraud is coercion.

Ideas, being intangible, are always embedded in tangible objects whether it be brain tissue, paper, digital media, film, etc. Thus the tangible goods that go with the idea can be used to control and protect property. Also contracts are tools that help control and protect property.

If the owners of the ideas wish, these tangible goods and contracts may be used to create artificial scarcity. Which would give the owner a chance, but not a guarantee, to exchange ideas for economic value. But bear in mind economic value is only an after effect of property rights, not the thing that justifies property.

You labor is yours. It may not be worth anything if no one else values it, but that doesn’t negate the fact that your labor is yours.

Similarly for ideas, property rights are established before any issue of scarcity, or economic value comes into play. Also scarcity doesn’t guarantee any economic value, or rivalry for that matter. If something, an idea, or a tangible good isn’t valued by more than one person there can not be any possibility of economic value or rivalry.

In short, my idea of IP is somewhat different than todays IP laws but todays laws by themselves don’t justify abolishing all private property in IP.

As stated many times todays patent laws for example claim that only one person can homestead an idea, and if someone else in fact homesteads a similar idea he is accused of copying, which is coercion.

So patent laws are against property rights theory. They should be abolished all together.

There should only be laws that state that copying is aggression, and every case should be handled in courts of law ( I hope I don’t need to remind that there would be courts in a free stateless society). Which are general property laws anyways.

Just as the law dictates, the burden of proof that an IP owner was coerced would fall on the IP owner. He would in court would have to prove that some person did in fact copy thus initiated aggression against him, in a court of law.

What would this mean? How would a libertarian society without any state be?

Many things, mainly simple ideas and algorithms and such, wouldn’t be owned by one person or corporation. Also when it comes to simple ideas, even copying, aggression, couldn’t be proved in court thus protected.

But many other things, like songs, books, movies, software and some complicated inventions could be. Artists and writers would justly own their work

Looking from a utilitarian point of view, since the ideas that could not be owned by just one person or company, are in fact rather simple ideas, there wouldn’t be any problems in the production of most of these ideas. There would be no stifling innovation, or lack of incentives for the creators. Everyone can homestead their own ideas, using their own time.

Others would need better protection against copying. Some resources would have to spent for this but cost of protection of IP falls on the owners. Just as Coca Cola spends money to keep its formula secret, may pharma companies would need to spend more on the protection of drugs. Maybe they would only sell drugs under doctor control, making sure pills are ingested, instead of putting them on shelves. Maybe they would devise many other ways.

And for other IP that is mostly under copyright law, the situation would be similar to today. Although there are some common flaws in the copyright laws. Expiration of rights are a travesty. There can not be any expiration of property rights. The heirs of the deceased would own the IP. If there is none to be found, the IP may become a free good. Like the works of Aristotle.

These works also needs to be protected but since it is easier to prove that copying did take place in a court of law, most of the protection costs could be transfered to the aggressor and this justice would also discourage the aggressors.

I hope my position is clearer now. Although it is hard to establish a unique position through these comment sections of these many posts.

Brian Macker January 25, 2009 at 8:56 am

Sorry to the other commenters. I failed to notice a missing “not” in my text.

My comment should have read:

“I hate to break it to you but that is not how physical property rights are established. Who ever agreed not to take the stuff you call yours?”

In other words, physical property is not established via contracts with second or third parties. Therefore it is not reasonable to argue that copying rights need to be established in that fashion.

Joe B January 25, 2009 at 9:13 am

ktibuk: “Property is having the right to do whatever one wants with something.”

I agree. And theft can be defined as preventing someone from doing whatever they want with something that they own.

In the case of physical property, this could take the form of physically removing the item from the owner’s hands, coercion such as the threat of violence, or making a fraudulent exchange – thus forcing the result of their trade to differ from the action they intended.

In the case of IP “theft”, the creator is not prevented from using his idea. He may lose an opportunity to profit exclusively from the idea, but the idea itself remains intact in his head, for him to use as he pleases.

If this counts as aggression, then any new competitor entering any established market could be said to be aggressing against the existing producers, because he is likewise reducing their opportunity for future profits. He is not preventing them from producing their goods or using their posessions.

ktibuk: “…they don’t dare bring up or respond to calculation arguments.”

Since you ignored my calculation argument, I’ll expand it here.

Economic action, by definition, describes the allocation of scarce goods. Once an idea has been introduced to the world, it is not scarce. It can be reproduced ad infinitum without being consumed.

Actors other than the creator may need to expend scarce resources in order to learn this idea, but these would be allocated according to the usual economic process, at their own expense. The idea is still a future good to these actors, and thus it is still scarce from their individual frames of reference.

There is calculation implied here, by which the original creator may initially be able to profit by teaching or implementing his idea. However, once the idea has proliferated this exclusive opportunity will diminish. This is the same process by which an entrepreneur profits from a new market but eventually loses exclusivity as new competitors act on the opportunity that he has revealed.

Calculation happens before the idea comes to fruition. A creator who chooses to expend scarce resources to develop an idea does so with an expectation that he will eventually profit from the application of this idea. With the exception of prosumption, this means that he expects others to pay him for having produced the idea.

So how does he calculate the amount of resources that are worth expending in this effort? He must consider the risk that his idea will proliferate once it is released, meaning that the opportunity to profit by applying it will diminish over time. Knowing this, he could choose to expend further resources to protect this idea as a trade secret. In certain cases, he could also manufacture a large stock of the physical good derived from his idea, which could give him an advantage in being first to market. He may also decide that this risk is too great and abandon the project, instead allocating his resources elsewhere.

In order to mitigate this risk, he could arrange a contract by which he will be paid upon having delivered this idea. This could take many forms, i.e. a commissioned work of art, or an agreed hourly development wage.

There is plenty of calculation happening here – you’re just confused in thinking that it would continue after the idea has proliferated. It would not continue – no further scarce resources will be allocated towards the development of this idea, so calculation no longer has any meaning.

Many modern business models are confused about this as well, and these are the ones that are failing. They are simply miscalculating the profit opportunities and thus misallocating their development resources.

In the case of blatant plagiarism that you’ve described, B may be committing fraud by claiming that he has conceived of the book that A actually wrote. However, he is not committing it against A, he is committing it against the people who paid him for the book because they thought they were getting something that came from B’s mind.

If buyers discover that A actually wrote the book, they could demand their money back from B citing fraud, but A has no claim to this money. Some sympathetic or appreciative buyers may send their returned money to A, but this is done voluntarily based on their own individual values. They have no obligation to pay A just as they had no obligation to buy the book from B in the first place. Caveat emptor. If you desire authenticity, do your homework before buying.

In order to avoid committing fraud, B could sell the book and state that A is the author. In this case, the buyers are getting exactly what they are paying for. The fact that B is profiting instead of A is unfortunate for A, but he should have calculated this risk prior to expending resources to write and publish the book. B has not prevented A from selling it. A could mount a campaign to assert that his is the authentic version, and buyers who value authenticity will purchase A’s version rather than B’s.

Kinsella makes a similar argument regarding trademarks (“Against Intellectual Property”, p. 58).

Scarcity, value, and property are all necessarily intertwined. They are economic concepts from which Libertarian ethics is derived. Value is dependent upon scarcity, and property is dependent upon value – if nobody valued physical goods, they would not claim them as property.

Property rights are defined to prevent conflicts over these valued scarce goods. Violation of these rights is considered ethically wrong because it distorts the voluntary process of human action by preventing actors from using their property according to their own values.

Kinsella also discusses the importance of homesteading for scarce resources as a means of preventing conflict over their allocation (p.30-32). Since ideas are not scarce, there can be no conflict over their allocation. My use does not exclude your use. Therefore there is no conflict for homesteading to prevent.

Scarcity is not a “non-issue” – it is literally the defining characteristic of economics. A system of ethics that is based on economics and personal liberty must seek to allow any action that doesn’t contradict the economic process. IP rights restrict individual liberties while contradicting physical property rights and economic calculation, since they force scarcity where none truly exists.

Note – I wrote this as a response to ktibuk’s comments on yesterday’s thread, which includes his first comment here. I haven’t had time to read the whole discussion here, so I apologize if I am repeating (or should I say plagiarizing) arguments that have already been made:

Stephan Kinsella January 25, 2009 at 9:14 am

ktibuk,

“the act of copying without the consent of the owner is aggression”

Well, any use of someone’s property without there consent may be viewed as a type of aggression.

But not all copying implies use of another’s property. If you have physical property that manifests or exhibits certain patterns, these patterns are just a fact *about* your property. It’s some kind of arrangement of your property. If others learn about your property without trespassing–that is, without handling or touching your property without your consent–then the “copying” does NOT imply aggression or trespass. In fact, “copying” just means using information to perform an action, where the information involves some pattern similar to the pattern associated with someone else’s property.

So for example if I’m walking thru virgin forest and see in the valley below a little village, with buildings and streets arranged in a certain way–very useful and unique; with a nice water well for pumping water; with two-story log cabins–all these things I had never heard of before, and the people in that village had “invented”–well, now I have additional information about how matter may be arranged and used to accomplish various common ends. So I might go back to my viillage and build a two-story house and construct a water well. I did this by copying what the others were doing–i.e., by *learning*. This copying violated no one’s property rights–even if the village idiots had a little patent office in their government office where they had first “registered” their designs.

We can see that IP imposes limits on the spread of learning and knowledge.

“in which circumstances would the owner let someone copy his work, unless he gives out it freely?”

To use “let” implies thre are property rights in information which is question-begging. In the example above the owners “let” this happen by not constructing a huge wall to keep others from seeing what they are doing. By engaging in actions in public they risk others learning from them. Deal.

“A wrote a novel, B copied it. Would there have been a book or am act copying if A hadnt wrote the book? No. So the situation must follow the following steps as far as logic goes.”

The fact that there would not be a book if A hadn’t written it is irrelevant–this is just a ‘but-for” condition. there are an infinite number of such conditions. There would not be the book if A’s mom hadn’t given birth to him. And so on.
“IP socialists”

Which are people like you–who want to undercut the Lockean homesteading principle and rip away property already owend and redistribute it to your favored class (pattern-authors who file the proper form with your state monopoly-granting department).

“Yes, Rawling created Harry Potter. You may mooch of her but at least give her her due, right?”

Didn’t she “mooch” off of others? Did she invent teh whole fantasy genre? The idea of witches and magic and spells, flying broomsticks, giants, and so on?

“So keep at it boys. You may be bloating the blog with this P thing and cause people to spend their scarce time on these instead of on stuff about the worst financial crises the world has ever seen, but IP is an important issue to.”

“instead of”? Mises Institute publishes more sound commentary on the crisis than anyone else. It’s not either-or. And as for bloat–I personally know that the work on IP around here, by Jeff, Boldrin/Levine, et al., is causing a host of libertarians to re-think their positions and change their minds. Thinking libertarians are sincere about this, and the more they think about IP the more they come around to the propertarian view.

Brian Macker January 25, 2009 at 9:21 am

Ktibuk,

I’d like to point out that because we used different world view, and rationals for arriving at our different conceptions of intellectual property rights that they are in fact different.

I don’t have the problem you have with simple vs. complex that you seem to have in your reasoning.

The only reason simple vs. complex comes into issue in my theory of copy rights is in the burden of proof in court that the owner must provide.

In my point of view, if the owner can establish that a burglary occurred, and a particular item was stolen, by a particular person then the burden is met even if the property is simple in form.

On the other hand, the very complexity of the property can be proof that the item was not independently created. The odds that someone would write a long book from scratch are so remote it is more valid even than genetic testing. Thus copying rights would be much stronger for books than for simple object as a practical matter in court and not on some conceptual level.

If we use your theory that there is “property in ideas” then why are simple ideas any different than complex ones? If we can own ideas then why not simple ones? We don’t reject other rights on the issue of their simplicity.

I can own property that is simple, and easy to acquire, and no one would argue my rights are weaker just because the property did not require as much labor to produce.

I find a simple round rock that I like. I claim ownership and use it as a grinding rock. One one would argue that ownership rights fail to apply due to simplicity.

Peter Surda January 25, 2009 at 9:26 am

@Ktibuk:
It is really funny how you continue to ignore everything that has been said.

1. You are proposing an IP system that is completely different from what we have now, and have not even defined what it is. This step is a prerequisite to having a rational debate, and you graciously skipped over it.
2. Currently, IP consists of several completely unrelated concepts. What is the overlap between the current status and your ideas you have not explained either (only vaguely).
3. Currently, IP is not defined as property. Again, what is the overlap between the current status and your ideas?
4. Currently, IP suffers from the typical issues of government regulation. I don’t think it’s fixable. How do you propose to fix it you have not explained either.
5. Your description about so called “copyright contracts” which you presented in another post does not explain anything, because it does not require special IP laws, or, redefinition of property. I fail to see why you think we somehow oppose it. In fact it looks remarkably like some examples from the history without IP laws, and like some proposed business models that are possible in a world without IP laws.
6. It looks like you haven’t read either of the two books recommended here. Please do.

In general I blame the term “intellectual property” on the confusion, because it is vague enough for people to understand completely different things under it. Especially counterproductive is the overlap between IP and real property. Just because something can be colloquially said to be IP does not automatically mean it isn’t a real property either.

Cheers,
Peter

ktibuk January 25, 2009 at 9:30 am

Kinsella,

“But not all copying implies use of another’s property.”

Without access to the original, which is property, there can not be any copying. This is a logical necessity as Brian put it very well.

You keep assuming your conclusion in most of your arguments.

“IP is not property, because it is not” is not a argument, no matter how many different ways you say it.

I say IP is property, and at least try to justify it just as do with tangible property.

“The fact that there would not be a book if A hadn’t written it is irrelevant-”

That is the most relevant thing that can be considered. We are talking about property, which essentially is about homesteading, which essentially is about altering the natural state of things in order to create a new thing,.

The only way you can say the apple in your hand is in fact yours is the thing you find irrelevant.

“Which are people like you–who want to undercut the Lockean homesteading principle and rip away property already owend and redistribute it to your favored class (pattern-authors who file the proper form with your state monopoly-granting department).”

Can you please write the Lockean homesteading principle here, and your homesteading principle so we can compare.

Lets see if they are similar. I know I will ask what you did with the individual who makes something his by mixing a part of him.

ktibuk January 25, 2009 at 9:35 am

Brian,

“If we use your theory that there is “property in ideas” then why are simple ideas any different than complex ones? If we can own ideas then why not simple ones? We don’t reject other rights on the issue of their simplicity.”

They are not different. Simple ideas or complex ideas. They are all owned.

The only difference is the technical issue of protecting, or proof of aggression in a court of law.

A simple idea may be homestead by many different people. Also a simple idea may be copied without consent, thus through aggression, but since it can be homesteaded by many it is very hard to prove there was aggression.

I hope I am clear on this. I don’t make any distinctions based on complexity when it comes to rights.

Stephan Kinsella January 25, 2009 at 9:41 am

ktibuk:

“”But not all copying implies use of another’s property.”

“Without access to the original, which is property, there can not be any copying. This is a logical necessity as Brian put it very well.”

1. This is false. In the example I gave there was no “access to” the village. It was just observed from afar.

2. Even if there is, or needs to be, access, this is irrelevant–at most, it would implicate only that person, not others who learned the information third-hand. To hold otherwise is to assume there are property rights in patterns, which is question-begging.

“”IP is not property, because it is not” is not a argument, no matter how many different ways you say it.

“I say IP is property, and at least try to justify it just as do with tangible property.”

No, you are sneaking it into your assumptions, which is question-begging.

the default state is that people can use their homesteaded property as they see fit. you seek to upset this balance and add a new property acquisition rule: normally the first user of an unowend resource is its owner; but if a new guy thinks of a way to use his property, this gives him control-rights (ownership rights) over the other guy’s already-owned property. You keep trying to justify this ridiculous, socialistic property rights redistribution with circular reasoning.

“”The fact that there would not be a book if A hadn’t written it is irrelevant-”

“That is the most relevant thing that can be considered. We are talking about property, which essentially is about homesteading, which essentially is about altering the natural state of things in order to create a new thing,.”

It’s not about “creating” a “new” thing at all. If I homestead an unowned resource, it already existed. It is not “new”.

The only way you can say the apple in your hand is in fact yours is the thing you find irrelevant.

“Can you please write the Lockean homesteading principle here, and your homesteading principle so we can compare.”

Locke says the first person to use (by “mixing labor with”) unowned resources is the owner–this is essentially my view too.

“Lets see if they are similar. I know I will ask what you did with the individual who makes something his by mixing a part of him.”

Locke said this: if there is a scarce resource, and there are multiple contestants to it, then the person who first appropriated it (demarked it as owned; by fencing it, embordering it, transforming it so that he has made it publicly clear to others that he claims it) is the owner. That is my view too, and it is incompatible with your socialist redistribution rule.

ktibuk January 25, 2009 at 9:41 am

Peter,

I answered all your questions. Please read my comments again. Especially the one I start by quoting you.

I clearly stated my theory of private property, which includes IP. I said which parts of common laws I don’t approve and why as far as I know current laws. And I even imagined a libertarian society and how things could be if private property rights are respected.

Also on these posts, I defend Ip both on ethical grounds, and utilitarian grounds separately.

I don’t know how else to respond.

Brian Macker January 25, 2009 at 9:43 am

Ktibuk,

I completely agree with Stephan Kinsella’s post of 9:14 am. Every sentence therein is completely consistent with my beliefs on the subject. That does not mean I agree with his other positions with regard to this area.

He is making valid arguments. How can you own an idea that you broadcast to the world? You need to take due care in keeping it secret.

Just because someone thought something first does not mean they own the “idea”.

If the operation of a particular machine is so obvious when you look at it then the co-owners must take the proper precautions to prevent others from being exposed to how it works. The mechanism must be hidden.

Where I would probably disagree with Kinsella is that once that wall is in place that if the idea gets exposed through no fault of the owner then I believe that people who accidentally learn of the designs in that way may be enjoined against copying them.

The burden still falls on the owner however. In his city example, a dome would need to be constructed, and all visitors would need to sign contracts saying they would not disclose the layout of the city, and their names would need to be recorded, and kept in a way the court could verify, and so on.

If a recorded visitor who signed an copy right contract that had non-disclosure on the layout then the owner of the city could only then preven that one person from copying the design. To prevent others from doing so the owner would have to repeat the process for them. He would have to prove either that they snuck into the city, or that they got the idea from someone bound by the contract.

If it were established that a third party received the design from a contracted party then other issues arise. Did the third party know about the contract? Did the third party learn by accident or by invading the privacy or stealing property from the contracted party. How much has that third party mixed his own property with the design that was copied? Etc.

Also I do not believe that property rights are inviolate. They can be violated with restrictions under emergency situations. Same goes with copying rights.

Peter Surda January 25, 2009 at 10:26 am

@Ktibuk:
Well, I don’t think you explained anything. You keep talking about intellectual property without explaining what it is, and IP socialists without explaining who they are. So allow me please to do some argumentation which will hopefully bring us further.

According to my understanding of your proposed idea about “copyright contracts”, these have actually nothing to do with copyright as we know it, and are in fact normal contracts, which do not require any special laws, or anyone recognising that IP is actual property. Do you agree?

Besides the copyright contracts, do you have any other proposals? Because if you don’t, then anything said further merely adds to confusion.

Cheers,
Peter

Brian Macker January 25, 2009 at 11:45 am

Ktibuk,

“But not all copying implies use of another’s property.”

Without access to the original, which is property, there can not be any copying. This is a logical necessity as Brian put it very well.

I believe that seeing something is a kind of use. That’s why reading counts as use of a property. What I disagree with is that all use is trespass.

When an owner forces use of his property on others it is quite clear that he has given consent.

For example, I can use a marker to identify a dangerous hole. Each time I pass and see the marker I am using that marker. If someone else moves the marker they are interfering with my use.

Similarly we use our ability to see the property of others in order to AVOID trespass. This use of other peoples property is not in fact a trespass.

It’s quite clear that this use of our property by others is authorized. They have to see our property in order to respect it.

I also believe that there are other reasons we can use other peoples properties that do not amount to the crime of trespass. Use in ways that no one would claim was non-use.

I can for instance use someone else’s car as a platform to stand on to save a baby being handed out a window without trespass. I’ve used the car and may owe damages but I have not violated property rights in a way that is criminal.

If Kinsella said, “Not all copying implies a violation of property rights” then I would agree with him. When the owner forces the use of his property, the viewing, on others then he can’t claim that that use was unauthorized.

I’ll give another example to make this clear. If a nude sunbather builds a high fence that prevents anyone from seeing them from the surrounding land then reasonable care has been taken to prevent the forcing of use on others. The person is not forcing others to view their nude body.

If a someone in a plane flies over and uses a camera to zoom in an take pictures this is a use of the persons body that they did not agree to. Publishing such pictures is even an even further intrusion because it is absolutely clear the nude sunbather did not intend that some guy on the internet be forcefully subjected to the use, the seeing of their nude body.

Brian Macker January 25, 2009 at 1:48 pm

“Well, I don’t think you explained anything. You keep talking about intellectual property without explaining what it is, and IP socialists without explaining who they are.”

I think this is unfair. You may disagree but I think he’s given enough to have an understanding of what he means by IP. Perhaps if you read Rothbard’s book Man, Economy, State Chapter 10—Monopoly and Competition Section 7. Patents and Copyrights it will become more clear to you.

He’s certainly clear on what an “IP socialist” is. That’s someone who uses arguments against intellectual property rights that are identical to those that are used against physical property rights.

The utilitarian arguments can be used against IP can and are used against physical property. Arguments about the difficulty in enforcing rights can also be used. I believe he listed these. He listed many others.

I think another argument that would fit is the argument made by Kinsella that one can “see” IP ownership by looking at an object. Which works as perfectly well (or badly) as an argument against physical property as it does against intellectual property.

I have just spent quite a bit of time deconstructing this mistake on another thread. Lukas asked me:

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?

I replied at length on this chapter showing why it is a flawed rebuttal to Rothbard’s position, and mine.

There’s no need to identify specific individuals with a definition, but I think it is clear he is calling Kinsella, and Tucker by this label.

It’s a polemic way to argue, but I see the same going the other way. Something I avoid because it tends to make opponents more ridged against a position, but I am sometimes guilty of this tactic myself. For example, I’ve called people who cannot understand the self organizing nature of economic systems by the label, economic creationists.

ktibuk January 25, 2009 at 1:56 pm

I wrote this many times but I guess it needs repeating.

Not keeping an IP secret doesn’t necessarily mean “you broadcast, or release it to publics use”.

I am tired of stupid examples like humming tunes while walking or villages in the jungle. This is a dishonest way of trying to confuse the argument.

Like the life boat scenarios. Two people are stranded at sea and see a life boat. One reaches the boat first. Can he let the other die, by not letting him in? Do property rights let him do this?

Rules can not be based on rarely seen exceptions.

And I am sick of reading real life patent stories while bashing all IP, but when it comes to IP and copying we see these idiotic irrelevant examples.

Ideas can be owned. They can also be given away for free, this doesn’t abolish any rights. They can be kept secret, or exchanged in a controlled manner. They can also leak while the owner can not do anything because he cant prove copying.

I dont know I how much more clear I can get on this point.

Brian said “Just because someone thought something first does not mean they own the “idea”.

Yes it does. It just doesn’t have to do with “doing it first” and this doesn’t implies anyone else can not also own it. But only if they homestead it themselves.

So being first when it comes to homesteading ideas are meaningless. This means patent laws are meaningless. They actually create a monopoly, this I agree with IP socialists. But not because ideas can not be property. But because anyone can homestead ideas.

Of course as you said, complicated stuff like novels can not be homesteaded by many different people and this means proving the aggression is easier. But that is a technical enforcement issue. ]

“Not all copying implies a violation of property rights”

In what context is this being said. If it is about access it is one thing. If it is about consent it is another.

Of course when the owner consent to copying the copying doesn’t constitute aggression. I already mentioned this. You may think of some rare instances where the owners consent might not be all clear. He may in fact broadcast it for free, but after it is known he may change his position and claim he didn’t. If you are talking about an exceptional case like this, we may say he gave away his property and he cant take it back.

But do you really think the finding out the owners’ consent is an issue where we see these problems, like pirated songs, movies, software, etc?

No. And these wont be mentioned in IP Socialists initial examples. No, you will see a lot of humming, forgetting books on the beach, or villages in the jungles. But you wont see songs, movies, novels, and software pirated over the internet.

Brian Macker January 25, 2009 at 2:54 pm

“I am tired of stupid examples like … ”
“And I am sick of reading …”

You complaining at me or to me? I’ve never made the arguments you are complaining about. You are not exactly winning my compassion here in either case. That’s something everyone has to put up with, and the only way to avoid it is to drop out of the argument.

ktibuk January 25, 2009 at 3:02 pm

Sorry Brian it is not for you. Mostly for Kinsella and like.

You can disagree but I think a little intellectual honesty can be asked for.

Person January 25, 2009 at 4:18 pm

Does innovation require property in ideas? Gee, I don’t know, does production require property in objects? I seem to remember some obscure crank ranting on and on about how it does, because otherwise you get this whole “economic calculation” problem. Trying to remember the name…

Oh, right, Mises.

Peter Surda January 25, 2009 at 8:19 pm

@Ktibuk
I must apologise because I missed the post where you try to explain things. I’ll try to amend it by analysing and replying.

First of all, I think you still haven’t defined what intellectual property, or even real property for that matter, is. You are describing some of its properties, but I think they are too vague. E.g.:

> A property, is something that is a part of this
> universe
This is a tautology, things that are not part of this universe do not exist (for the purposes of our discussion).

> which is altered by conscious human action
This describes a causal relationship between the owner and the changes in property. So far ok.

> in the hope of better his state of affairs
Also, from austrian point of view, a tautology. All human action is done in the hope to better one’s state of affairs.

> and this action is called homesteading.
No. There are plenty of cases where your action cause changes in “something” and isn’t homesteading. Especially in the immaterial realm.

> This thing can be something tangible like a plant,
> or something intangible like an idea.
You have not defined what “an idea” is. This is especially confusing because copyright (which you support) doesn’t protect ideas, but patents (which you reject) do.

So I’ll skip the parts where a definition of idea is required.

> A teacher could ask for and receive something he
> values in exchange of the ideas he would give to a
> student.
This is a bad example, it doesn’t have anything to do with ideas being a property or not. This could be a service contract.

> A writer may ask for compensation in exchange of
> letting the other party read his novel.
Same here.

> … copying without the consent of the owner …
You have not defined what “copying” is. Why are patent infringements not copying, but copyright infringements are? Is paraphrasing copying? Is translation copying? Is format change (e.g. between written and spoken text) copying? What if I do a pantomime of written text, is that copying?

> Ideas, being intangible, are always embedded in
> tangible objects whether it be brain tissue, paper,
> digital media, film, etc.
Ideas, being intangible, only exist in human mind. A CD, DVD, RAM or a book would merely be physical objects without the human to interpret them.

> If the owners of the ideas wish, these tangible
> goods and contracts may be used to create
> artificial scarcity. Which would give the owner a
> chance, but not a guarantee, to exchange ideas
> for economic value.
Again, none of this has anything to do with ideas being property or not.

> In short, my idea of IP is somewhat different than
> todays IP laws but todays laws by themselves
> don’t justify abolishing all private property in IP.
This is indeed correct. I think I already said that. I also said that I consider the deficiencies in the current “IP laws” unfixable and asked you to provide fixes for them if you disagree.

> As stated many times todays patent laws for
> example claim that only one person can
> homestead an idea, and if someone else in fact
> homesteads a similar idea he is accused of
> copying, which is coercion.
I think this is a good example of what I just said. What is the difference between being similar and being a copy? I have come to the conclusion that the difference is quantitative rather than qualitative. Which makes the definition of intellectual property as a natural right very dubious.

> So patent laws are against property rights theory.
Patent laws are at the very core same copyright, except copyright requires much more specificity. Therefore I reject your explanation.

> Also when it comes to simple ideas, even
> copying, aggression, couldn’t be proved in court
> thus protected.
Again, you have not defined what “copying” is. Why do you seem to think that using an algorithm developed by another person without their permission is ok, but humming a song without the authors permission is not?

> Artists and writers would justly own their work.
Distortion. In order for someone to “own their work”, IP laws are not necessary.

> Looking from a utilitarian point of view …
From a utilitarian point of view, IP laws create costs by the requirement to track IP. Due to the lack of scarcity, the costs grow exponentially. Obviously, it is more a problem for patents than copyrights, but still.

> Expiration of rights are a travesty.
At least here you’re trying to be consequent. However, this only adds to costs mentioned above. What then about fair use then, would you abolish it too?

> I hope my position is clearer now.
I would like to thank you for taking the time. However, my concusion is still that you haven’t thought it through.

How many bytes for example are necessary for a text to be property? For any number you say, I can create a program that can generate all possible combination of characters of that length, therefore making all future texts written by anyone my property (because any text shorter than this is not protected by copyright, and any text longer must contain what my program can also generate).

The same procedure can be applied to music (producing all possible note sequences).

I hope this demonstrates sufficiently that IP laws are arbitrary and unfixable.

> Although it is hard to establish a unique position
> through these comment sections of these many
> posts.
Indeed, I find it very hard to keep track of conversation too.

Cheers,
Peter

Peter Surda January 25, 2009 at 8:32 pm

@Person:
> Does innovation require property in ideas? Gee, I
> don’t know, does production require property in
> objects?
Confusion about different definitions of “property”. Trading “IP” on the market does not require IP laws. In fact IP laws are market regulation, they allow to shift the price above and supply below the equilibrium.

Cheers,
Peter

Silas Barta January 25, 2009 at 9:00 pm

@Peter_Surda: Trading “property” on the market does not require property laws. In fact property laws are market regulation, they allow to shift the price above and supply below the equilibrium.

Peter Surda January 25, 2009 at 10:50 pm

> Trading “property” on the market does not require
> property laws.
Again you are confused by the word “property” in the phrase “intellectual property”. You need to define it first. As I tried to explain before, in the colloquial use “intellectual property” is used for many unrelated concepts, some of which actually overlap with non-intellectual property.

So let’s get to the specific IP laws that I object to: copyrights and patents. Selling your writings does not require copyright, selling a drug recepture does not require patents. But selling material goods (let’s say a loaf of bread) and services (let’s say a haircut) requires property. Why? Because the consumption of the latter is rivalrous. In order to achieve possession, you need to exclude others from it using it. In the areas covered by copyright and patents, there is no necessity to exclude others from consumption in order to possess the goods. You can if you want, even without copyrights and patents, but it is not a prerequisite to trading them.

> In fact property laws are market regulation, they
> allow to shift the price above and supply below the
> equilibrium.
That is certainly completely untrue. Property rights in a market economy do not allow either decreasing of supply below or raising the price above equilibrium. For the simple reason that without them, either market or equilibrium have no meaning.

The market is a method to deal with scarcity, i.e. to attempt to solve the economic calculation problem. It requires scarcity, but does not require rivalry. IP laws (patents and copyrights) have no influence on scarcity, but they create rivalry. That makes them at best unnecessary.

Cheers,
Peter

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