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Source link: http://archive.mises.org/9424/trademark-versus-copyright-and-patent-or-is-all-ip-evil/

Trademark versus Copyright and Patent, or: Is All IP Evil?

February 11, 2009 by

I think we can all now agree that copyright and patent are evil and should be abolished (hey, if they can say we are all Keynsians now…).

But what about other forms of IP, such as trademark? One problem is that IP is not really property at all, and is just an umbrella term linking distinct, mostly artificial, positive rights created by the legislature out of thin air–”legally recognized rights arising from some type of intellectual creativity, or that are otherwise related to ideas.” (Against Intellectual Property, p. 9.)

Thus patent gives a monopoly to a way of using, or configuration of, practical, useful devices (inventions); while copyright gives a monopoly to certain uses of original creative patterns of information (works of authorship like novels or paintings). While trademark protects a set of rights clustered around one’s reputation (but then, so do defamation laws); and trade secret is more like a type of contractual right to keep people from revealing secret information.Bad Connections

From what I’ve seen, it is clear to most activist-opponents of IP that copyright and patent are terrible. But it is not so clear what is wrong with other types of IP, such as trade secret and trademark. What about these, and other rights, such as various other trademark-related rights (rights against “trademark dilution,” certain forms of cybersquatting, and various “unfair competition” claims); mask work protection available for semiconductor integrated circuit (IC) designs, boat hull designs, and (proposed) rights in databases, or collections of information? (See Against Intellectual Property, p. 13, summarizing various types of IP.)

The “intellectual” part of IP improperly lumps together conceptually distinct types of laws; and “propery” improperly begs the question. So these must be treated in turn. Mask work, boat hull, and database rights are very similar to copyright at least in what is problematic about them; so they, too, like patent and copyright, are obviously unjust.

As for trade secret–I deal with this in a short section (pp. 56-57) of Against Intellectual Property, as the bulk of the article deals with copyright and patent, and trade secret law is not nearly as problematic.

Trademark

So we come to trademark. I deal with this on pp. 58-59 of Against Intellectual Property, and also in some detail in Reply to Van Dun: Non-Aggression and Title Transfer (esp. pp. 59-63). In my view, the new-fangled extensions of trademark law–rights against “trademark dilution” and cybersquatting, etc.–are obviously invalid. Further, federal trademark law is problematic since it is not authorized in the Constitution (copyright and patent are, but not trademark; trademark relies on the Interstate Commerce Clause, and thus the federal trademark law only covers trademark connected to interstate commerce, and does not preempt state law, so that state trademark law still governs many intra-state situations).

But even if federal trademark law were abolished, as well as modern extensions such as rights against trademark dilution, even common law trademark is problematic, for three primary reasons. First, it is enforced by the state, which gets everything wrong. Second (see First), the test of “consumer confusion” is usually applied ridiculously, treating consumers like indiscriminating idiots. Third, and worst of all, the right at issue is the right of the defrauded consumer, not the competitor. Trademark law ought to be reformed by abolishing the right of trademark “owners” to sue “infringers” (except perhaps as proxy for customers, when consent can be presumed or proved), and treating this as a case of the customer’s right to sue a vendor who defrauds him as to the nature of the good purchased. Some might argue that this is only a minor change, but it is not: such a change would make it clear that “knockoffs” are usually not a violation of anyone’s rights: the buyer of a $10 “Rolex” is almost never defrauded–he knows what he’s getting. Yet by giving an enforceable trademark right to the user of a mark, he can sue knockoff companies even though their customers are not defrauded and in fact are perfectly happy to buy the knockoff products.

By the way, examples of trademark abuse are legion. It’s not only copyright and patent that give rise to outrageous examples of injustice. See, e.g., Chip Wood, A Bully-Boy Beer Brewer; Justin Levine, 9th Circuit Appeals Court Says Its Ok To Criticize Trademarks After All, Against Monopoly (09/26/2007); Kinsella, Trademarks and Free Speech, Mises Blog (Aug. 8, 2007); Kinsella, Beemer must be next… (BMW, Trademarks, and the letter “M”), Mises Blog (Mar. 20, 2007); Kinsella, Hypocritical Apple (Trademark), Mises Blog (Jan. 11, 2007); ECJ: “Parmesian” Infringes PDO for “Parmigiano Reggiano”, I/P Updates (Feb. 27, 2008); Engadget Mobile Threatened For Using T-Mobile’s Trademarked Magenta, Techdirt (Mar. 31, 2008).

Now IP proponents often assume trademark law is unproblematic, and then try to lump types of IP together, so that they stand or fall together. For example it could be argued that if you are for reputation, then you must be for trademark; and if you are for trademark, you must be for “intellectual property”; and thus, you cannot be opposed to IP in principle, so you cannot oppose copyright and patent. (See, e.g., the comments here, making this argument.)

Now one fallacy of this argument is that it relies on the positive law conceptual grouping of different areas of artificial, legislated law to make its point. But there is no reason one has to favor the validity of copyright or patent law, even if one supported trademark law, say. Each has different defects and a different nature.

The other fallacy is the view at work here that there is no such thing as reputation, or even identity, absent trademark law. But this is incorrect. Of course people and firms can have reputations even if trademark law is nonexistent. All that is required is that people be able to identify other people and firms, and communicate. Pro-trademark arguments often implicitly assume that this is not possible, absent state-enforced trademark law, which is ridiculous. For example, how can there be fraud (as in my theory), if the vendor is free to call himself whatever he wants? What if Joe Schmoe sets up a knockoff McDonald’s restaurant? Well, it is McDonald’s–that’s what it calls itself, and the “real” McDonald’s can’t stop it without trademark rights–so why is it fraud? Well, because the consumer is (per assumption) deceived as to the nature of the goods he is buying. As I argued in Reply to Van Dun (pp. 62-63),

“this response would be easy to overcome. It need only be possible for the customer to adequately identify what the condition is. Language is not infinitely malleable, and communication is (undeniably) possible. If pressed, the customer could specify that the purchase is conditioned on the current store he is in being owned by the same [McDonald's] company first started at such and such date and address, and so on. There is no reason it would be impossible to identify a given vendor without traditional trademark law, just as it is not impossible to identify fellow humans, despite the fact that we do not usually have trademarks on our names (in fact often have identical names, e.g. John Smith).

The other thing to realize is that consumers are not stupid. They can spot a knockoff easily. And the trademark frauds are usually going to be marginal low-life types, who could never compete with a legitimate business anyway–the kind of company that makes knockoff Rolexes, which doesn’t fool its customers.

Consider. You have a successful burger joint, let’s call it “Tommy’s.” Now, suppose they have no trademark, and other Tommy’s pop up. So if you want the original Tommy’s, where do you go? You go to the original Tommy’s. Which just calls itself The Original Tommy’s. (A similar phenomenon is in Twitter, where some well-known people and celebrities’ names are taken, like dvorak–so John Dvorak just goes by “THErealDVORAK“. End of problem. No anti-Twittersquatting law needed.)

If some other Tommy’s tries to deceive customers into thinking it’s owned by the same guy that owns the original Tommy’s, then they are eventually going to get sued. Or have only marginal customers as people figure out this new place is run by seedy liars.

The truth is that any legitimate businessman wants to use a unique name. Just like people manage to distinguish their identities, even when they have the same names.

{ 133 comments }

Daniel C February 13, 2009 at 1:28 pm

Sasha,

We’ve been over this before, and your scheme cannot rope in innocent third parties that did not agree to the contract. To see something is not to agress.

Furthermore, you’ve agreed before that your version of copyright is in essence ‘renting’ the thing in question from whomever created it. But current copyright law does not prevent a transfer of ownership; it is a conditional transfer of ownership—the ownership is still transfered. Yet, if I actually own the book on my bookshelf, then someone else who *sees* it commits no trespass against the original producer. Etc.

ktibuk February 13, 2009 at 2:18 pm

@Drake

You keep repeating the same things and I am afraid we are running around in circles.

Please answer all the questions I asked before.

For example, I will repeat some of them you havent answered.

“Or why do you assume possibility of conflict on a resource as the only defining aspect of property?

What does “owning” imply?

Can Robinson Crusoe, own anything since there is no other human being thus possibility of conflict between them?”

Daniel C February 13, 2009 at 2:42 pm

ktibuk, did I miss it, or did you not respond to my post?

Francisco Torres February 13, 2009 at 2:45 pm

Ktibuk,
Anyways, I don’t have a problem with independent discovery. I only claim that “copying without the owners consent is aggression”.

Sir, these statements are contradictory – if you accept independent discovery, then it follows that ideas cannot be owned. So how can you argue in favor of limiting the copying of ideas to the consent of the “owner”? Either ideas have owners, or they do not. I contend they do not, especially since ideas can be independently discovered or reasoned into existence.

If there is an independent discovery, which is possible but doesn’t make ideas non scarce free goods [...]

Ktibuk, the problem is that if there IS independent discovery, then ideas cannot be limited (that is, scarce). If they were, there would be a physical impossibility for two or more minds to produce the same idea. Ergo, ideas cannot be GOODS, or more to the point, cannot be scarce goods. Certainly, an inventor can sell his invention or a musician his composition to another person if they agree to it, but what the seller is selling is not the idea itself, but the physical manifestation of the idea (the invention) or the sheet of music. It is those things that are valued and not the ideas themselves.

Is copying without the consent of the owner aggression or not?

It is not unless the copier stole the original or first physical manifestation of the originator’s idea (i.e. drawings, writings, et cetera) that were not yet public.

If not why not?

Because ideas cannot be owned, as I have shown. If person A & B can hold the same idea in their minds, then there is no way for person A to put a fence around the idea or place it in storage, in the same way it would not be possible for B. Ergo, neither A or B can allege they have ownership of the idea.

ktibuk February 13, 2009 at 3:45 pm

Daniel’ I don’t know what post you are referring to. You said you agreed with Torres and I responded to him, which would cover your arguments.

ktibuk February 13, 2009 at 4:01 pm

Torres

“Sir, these statements are contradictory – if you accept independent discovery, then it follows that ideas cannot be owned.”

No it doesnt follow at all. It only follows that every party that homesteads an idea, independently discovers something, owns them. Why do you assume ownership requires exclusivity?

Ownership requires only homesteading, or receiving some good legitimately that was originally homesteaded.

“Ktibuk, the problem is that if there IS independent discovery, then ideas cannot be limited (that is, scarce).”

No. The thing that makes ideas non scarce is not independent discovery. It is the act of copying. How many original thinkers do you think that can come up with some original idea? It may not be only one but it certainly is not everyone, which would make ideas non scarce.

“Certainly, an inventor can sell his invention or a musician his composition to another person if they agree to it, but what the seller is selling is not the idea itself, but the physical manifestation of the idea (the invention) or the sheet of music.”

Who says? He is in fact selling some ideas on certain conditions. He may also sell all the rights, by giving up his rights and transferring them to the other party. The IP that is being sold might be embedded in some tangible property but that doesn’t change the fact that IP exists and the tangible property is only a vessel. Just like sound waves are vessels of transferring ideas.

`It is not unless the copier stole the original or first physical manifestation of the originator’s idea (i.e. drawings, writings, et cetera) that were not yet public.`

What do you mean bu “public”. Nothing is made public unless the owner wants it to be. If an IP is leaked without the consent of the owner,.this does not mean it is made public. You just assume it is, because copying is technically easy and sometimes it is hard to prove any copying took place.

“Because ideas cannot be owned, as I have shown. If person A & B can hold the same idea in their minds, then there is no way for person A to put a fence around the idea or place it in storage, in the same way it would not be possible for B. Ergo, neither A or B can allege they have ownership of the idea.”

They can both have, and own the idea if they have in fact homesteaded their own ideas. There is no aggression there. But if someone copies someone elses idea without their consent then there is aggression.

If I wrote a novel, for you to copy it without my consent is aggression. It doesn’t matter if you have chance of coming up with the novel all by yourself. If you can, go do it. But possibility of your independent discovery can not negate my right on the thing I created.

Drake February 13, 2009 at 10:31 pm

@ktibuk

“You keep repeating the same things and I am afraid we are running around in circles.

Please answer all the questions I asked before.”

I have answered MANY of your questions. TOO many, in fact. And I have answered some of them OVER and OVER again. If you keep asking the same questions, you will keep getting the same answers. It’s time for you RESPOND to the answers I have given.

“do you assume possibility of conflict on a resource as the only defining aspect of property?”

No. USE is the foundation of property.

“What does ‘owning’ imply?”

Ownership is the social recognition of USE.

“Can Robinson Crusoe, own anything since there is no other human being thus possibility of conflict between them?”

Ownership has no meaning outside a social context. Rights do not exist in nature – only laws.

ktibuk February 14, 2009 at 2:27 am

@Drake,

Two man are stranded in the sea. They see a life boat with a capacity of two, and one of the men swims and homesteads the boat first. They can both fit in the boat (there is no natural limit or natural conflict) but the one first at the boat doesnt let the other one in.

Does he have a right to this action?

Bill Gates has money that he can not possible spend all on himself. On the other hand there are other 100 or so people who are starving So there is no natural limit regarding fulfilling the needs of Bill Gates and the starving 100 Africans, no natural conflict other than the whims of Bill Gates. Does he have a right to say no, and keep his property?

You see, once you get rid of your contradictions the last station you are gonna visit is Socialismville.

Because you don’t have a libertarian homesteading, and property rights theory.

Drake February 14, 2009 at 2:51 am

@ktibuk

I appreciate your substantive response. Thanks.

“Two man are stranded in the sea. They see a life boat with a capacity of two, and one of the men swims and homesteads the boat first. They can both fit in the boat (there is no natural limit or natural conflict) but the one first at the boat doesnt let the other one in.

Does he have a right to this action?”

IF the first-comer has a right to the FULL use of the boat (as I suspect we agree), and IF the presence of a latecomer on the boat will LIMIT the first-comer’s use of the boat (as I suspect we also agree), THEN the first-comer has a DERIVATIVE right to exclude the latecomer from entering the boat and infringing upon his use of it.

“Bill Gates has money that he can not possible spend all on himself. On the other hand there are other 100 or so people who are starving So there is no natural limit regarding fulfilling the needs of Bill Gates and the starving 100 Africans, no natural conflict other than the whims of Bill Gates. Does he have a right to say no, and keep his property?”

If Bill Gates has the sole right to the use of his money, he has a DERIVATIVE right to exclude others from its use.

Sasha Radeta February 14, 2009 at 2:54 am

David C,

Look at any definition of copyright and you will see that copyright only applies to tangible forms of authorship and never to ideas or concepts.

To quote US copyright office:
“Only the actual expression of the author can be protected by copyright. The ideas, plans, methods, or systems described or embodied in a work are not protected by copyright. Thus, there is no way to secure copyright protection for the idea or principle behind a blank form or similar work or for any of the methods or systems involved in it.”

And why would such protection exist even in a free unhampered market. I already answered it:

- Authors have an unalienable right to sell only limited use of their works, thus limiting many things you can do with their works (including replications)
- Authors can sue for damages if a third party (a non-customer) ever picks their work and uses it in a way that causes economic injury to them.

Best regards!

Drake February 14, 2009 at 2:55 am

I misspoke. I would rewrite the last sentence as:

If Bill Gates has the right to use his money, he has a derivative right to exclude others from using his money, because their use of it would necessarily limit his.

ktibuk February 14, 2009 at 3:09 am

@Drake

“and IF the presence of a latecomer on the boat will LIMIT the first-comer’s use of the boat (as I suspect we also agree),”

This is the point. The late comer doesnt limit the owners use. The boat has a capacity of two people, hell lets say it has a capacity of 10 people.

This is where your (not only yours Kinsellas as well) property theory goes socialistic.

You base your property rights to possibility of conflict and conflict resolution, and conflict that arises only from need. Not the consent of the owner.

In libertarian property law, the consent of the owner is the only requirement. There are no other requirements, necessities, nothing.

In you property theory need is the requirement.. Logical conclusion of your theory is, everyone according to his need, everyone according to his ability

Drake February 14, 2009 at 3:33 am

@ktibuk

“The late comer doesnt limit the owners use. The boat has a capacity of two people, hell lets say it has a capacity of 10 people.”

Do I actually have to provide examples of how the latecomer limits the first-comer’s ability to use the boat? I bet you could come up with some on your own.

“In you property theory need is the requirement.. Logical conclusion of your theory is, everyone according to his need, everyone according to his ability”

Cute, but no. FIRST USE establishes the RIGHT TO USE.

Drake February 14, 2009 at 8:50 am

@ktibuk

“In libertarian property law, the consent of the owner is the only requirement.”

I am assuming that what you mean by CONSENT is that the owner has a RIGHT TO EXCLUDE. As I have already stated, I do not view exclusion as a SEPARATE right, but a DERIVATIVE of the RIGHT TO USE.

Since you are arguing that the right to exclude can be independently justified (without reference to use), please do so on natural law grounds.

Stephan Kinsella February 14, 2009 at 9:16 am

ktibuk: “If I wrote a novel, for you to copy it without my consent is aggression.”

Not necessarily. Depends on what you mean, and what ‘novel” means here–do you mean the pattern of words, or a physical thing you own that has the novel in it? IF you mean the latter, then you own this and people can only handle or use that item with your permission.

But this latter meaning doesn’t get you copyright since it only affects those you have a contract with. It cannot ensnare third parties.

To do this you need to be referring to the pattern when you say ‘novel”–but in this case, it’s question-begging to say you own it. Morever, it’s ridiculous and wrong to say that it’s aggression to copy it. If I have knowledge of the plot of Raiders of the Lost Ark, it is not aggression to “copy” this; if I am aware of a way to arrange my own property so as to make a bow and arrow, copying what the “inventor” of bow and arrow did is not “aggression.”

ktibuk February 15, 2009 at 5:02 am

@Drake,

You are contradicting yourself. First you said the only requirement for ownership (including the right to exclude others from using it) is natural limits which is the basis of possible conflict. You said there is no place for “choice” of the owner, and that you found this unethical.

Then when it came to other examples (the boat example above) I gave, where there wasnt a natural limit, or a possibility of conflict other than the conflict resulting from the choice of the owner, you claimed the opposite position.

You need to think through your position and what it implies. The natural necessity argument coupled with “conflict resolution” argument is the basis for socialism not libertarian property theory.

In libertarian homesteading/property theory the individual who homesteads a nature given resource owns it and owning means having total control over the property including exclusion of others based on choice even pure whim. One may even destroy the property if he wishes to do so which means exclusion of every possible human, if he owns it.

You made a distinction between individual goods and a class of goods when it came to scarcity but you didn’t give a reason for it when I asked.

Why make the distinction. Isn’t possibility of conflict (other than conflict based on choice) at the core of this scarcity issue.

You claim an apple can only be eaten by one and this is the only reason apples can be property.

But what if one person owns billions of apples more than anyone can eat. What kind of conflict is possible, other than his choice. And if choice is not an ethical requirement for exclusion, what is the logical conclusion of this position?

ktibuk February 15, 2009 at 5:08 am

“But this latter meaning doesn’t get you copyright since it only affects those you have a contract with. It cannot ensnare third parties.”

Who is talking about copyright? Ownership implies many rights including the right to let anyone copy or not but this right doesn’t define property. What defines property is the act of homesteading. Turning something nature given to something man made. You know the distinction right?

“To do this you need to be referring to the pattern when you say ‘novel”–but in this case, it’s question-begging to say you own it. Morever, it’s ridiculous and wrong to say that it’s aggression to copy it. If I have knowledge of the plot of Raiders of the Lost Ark, it is not aggression to “copy” this; if I am aware of a way to arrange my own property so as to make a bow and arrow, copying what the “inventor” of bow and arrow did is not “aggression.”"

Lots of assertions, no argument.

Your only argument is “the argument from scarcity” which has been demolished many times including on the comments sections of this very post.

Stephan Kinsella February 15, 2009 at 8:49 am

ktibuk:

“”But this latter meaning doesn’t get you copyright since it only affects those you have a contract with. It cannot ensnare third parties.”

“Who is talking about copyright?”

Hmm. Interesting. So…. now you are not in favor of copyright OR patent? Interesting pro-IP adversary you make.

“Ownership implies many rights including the right to let anyone copy or not but this right doesn’t define property. What defines property is the act of homesteading. Turning something nature given to something man made. You know the distinction right?”

Actually, no–the way you word this is vague and loosey-goosey. I would replace “something” with “unowned scarce resources” to make it clear. See?

“To do this you need to be referring to the pattern when you say ‘novel”–but in this case, it’s question-begging to say you own it. Morever, it’s ridiculous and wrong to say that it’s aggression to copy it. If I have knowledge of the plot of Raiders of the Lost Ark, it is not aggression to “copy” this; if I am aware of a way to arrange my own property so as to make a bow and arrow, copying what the “inventor” of bow and arrow did is not “aggression.”"

“Lots of assertions, no argument.”

So…. you think it IS “aggression” for me to … use my own property in a certain way. Interesting.

ktibuk February 15, 2009 at 9:19 am

“Hmm. Interesting. So…. now you are not in favor of copyright OR patent? Interesting pro-IP adversary you make.”

I will not let you trap the argument in legislation talk. I am talking about property rights, which is an ethics discussion and no matter how much you try current or past legislation does not represent property theory.

“Actually, no–the way you word this is vague and loosey-goosey. I would replace “something” with “unowned scarce resources” to make it clear. See?”

You have to give up the”scarcity” argument already. No matter how much you try to evade the issue this argument is demolished.

First “scarcity” is an economics term not an ethics term. It is about the value of a good.

Second as I already told Drake numerous times, this “conflict resolution because of scarcity” argument will eventually take you to full socialism if you follow the logical conclusions.

Why don’t you try to answer the boat questions?

Can someone homestead a boat with a capacity of 10, where there is no scarcity and no natural limit thus possibility of conflict arising from natural limits, and deny another the use of the boat and let him die?

If he can not what exactly do you mean by property rights, and who can own more wealth than he can consume?

Again, Ownership is about the consent, the choice of the owner and without it, the concept means nothing. Ownership is not about scarcity, conflict or natural limits of use.

“So…. you think it IS “aggression” for me to … use my own property in a certain way. Interesting.”

No. You can do whatever you want with your property. Just don’t copy mine. Because copying mine without my consent is aggression. What part of “leave me alone” don’t you understand? Why do you think you are entitled to associate with others property without their consent? Do you think people owe you? Or do you think you have a right to enslave them?

Stephan Kinsella February 15, 2009 at 10:07 am

ktibuk:

“”Hmm. Interesting. So…. now you are not in favor of copyright OR patent? Interesting pro-IP adversary you make.”

“I will not let you trap the argument in legislation talk. I am talking about property rights, which is an ethics discussion and no matter how much you try current or past legislation does not represent property theory.”

So you are NOT in favor of IP law, though you are against those of us who are against IP law. I see.

“You can do whatever you want with your property. Just don’t copy mine. Because copying mine without my consent is aggression. What part of “leave me alone” don’t you understand? Why do you think you are entitled to associate with others property without their consent? Do you think people owe you? Or do you think you have a right to enslave them?”

So… if I make a fire on my property to cook my food, I am “enslaving” the first guy who did something similar with his property. i see.

ktibuk February 15, 2009 at 10:47 am

“So you are NOT in favor of IP law, though you are against those of us who are against IP law. I see.”

I don’t know how many different ways I can say this but again.

IP means Intellectual Property, and consequently IP rights is a subset of property rights, which is an ethics issue.

Are you with me so far?

There have been, there is and there will be legislation all over the world regarding property. Some just, some unjust. These laws can only be evaluated from an ethical perspective. This doesn’t mean however, certain legislation represent a certain ethical position. And this doesn’t mean you can go backwards and first look at the legislation and keep the ethical discussion in legislative boundaries.

You are attacking IP legislation and from that you jump to the conclusion that IP can not be property, which is unwarranted and non sequitur. That is because you don’t have a coherent contradiction-free homesteading/property theory.

Homesteading is the foundation of private property theory. Without it there is nothing. Why don’t you go check all your writings about IP, including the essay, and search how many times the word homesteading appears. You may get a clue to where you are wrong.

“So… if I make a fire on my property to cook my food, I am “enslaving” the first guy who did something similar with his property. i see.”

Stop saying “I see” because you don’t see anything. You either can not comprehend what I am saying or knowingly being dishonest.

I repeteadly said over and over “doing something first” doesnt mean shit, and the only thing that matters is homesteading (making something property) and copying without consent (aggression against property) and you still have nerve to write about making fires and cooking.

Don’t you ever ask yourself why you are afraid to give meaningful examples like copying a digital version of the batman movie or copying microsoft windows?

Drake February 15, 2009 at 11:21 am

@ktibuk

Thanks for the response. I should point out, if it’s not already obvious, that I am not taking the standard libertarian position here. Normally, libertarians assume that homesteading establishes a “bundle” of rights. For the time being, I am not taking that position. However, you are welcome to point out why I should. I may be swayed by some sort of natural law argument, but not by blanket assertions that people “should” be able to do such and such or that a bundle of rights is ethical because it’s the “standard” position.

“You are contradicting yourself. First you said the only requirement for ownership (including the right to exclude others from using it) is natural limits which is the basis of possible conflict. You said there is no place for ‘choice’ of the owner, and that you found this unethical.”

No. What I said was that FIRST USE establishes the right to use. That is not at all the same as saying that SCARCITY establishes the right to use.

Again, the requirement for ownership is FIRST USE. Exclusion comes into play in order to SECURE the right to use. Whether or not exclusion is REQUIRED to secure the right to use depends on the NATURE of the resource being used. The right to use a non-scarce resource MAY be homesteaded, but others may not be excluded from using it if their use does not interfere with the use – ACTUAL or POTENTIAL – of the homesteader.

“Then when it came to other examples (the boat example above) I gave, where there wasnt a natural limit, or a possibility of conflict other than the conflict resulting from the choice of the owner, you claimed the opposite position.”

Not true. I asked if you needed me to provide you with examples of how the latecomer’s presence on the boat would limit the first-comer’s use of the boat. With a little imagination you could have come up with a few examples on your own, but I suppose I’ll have to do your thinking for you…

Possible Uses of a Boat – And How the Arrival of a Latecomer Would Interfere with Them:

1. Laying down in the boat to sleep: the latecomer might be in the way.

2. Using part of the boat to store fish: the latecomer might take up the area needed to store the fish.

3. Rowing the boat to the nearest island: the latecomer would add weight to the boat, making rowing more difficult and slowing the boat down (let’s assume there is only one oar).

Clearly, the presence of the latecomer limits the first-comer’s ability to use the boat. This is due, in part, to the fact that the space on any boat is finite, regardless of its size.

“You need to think through your position and what it implies. The natural necessity argument coupled with ‘conflict resolution’ argument is the basis for socialism not libertarian property theory.”

I don’t know what you mean by the “natural necessity argument” or the “conflict resolution argument”. As I have said a number of times already, FIRST USE establishes the RIGHT TO USE.

“In libertarian homesteading/property theory the individual who homesteads a nature given resource owns it and owning means having total control over the property including exclusion of others based on choice even pure whim.”

Yes, that is the standard position. The fact that it is the standard position is not an argument in and of itself, though.

“One may even destroy the property if he wishes to do so which means exclusion of every possible human, if he owns it.”

The form of things may be changed, but there is no way to increase or decrease the total amount of matter and energy in the universe. In other words, what you are referring to as “destruction” I would categorize as USE (which obviously includes physical manipulation). For example, if you bulldoze your house, you have clearly changed its form but have not caused the original materials to cease to exist.

“You made a distinction between individual goods and a class of goods when it came to scarcity but you didn’t give a reason for it when I asked. Why make the distinction.”

First of all, it is impossible to homestead a CLASS of goods. You can’t homestead every instance of something in the past, present, and future. But let’s look at your original post:

“You seem to think that ‘the possibility of non scarcity in the future’ is enough to make something non property.”

No. First use establishes the right to use. Scarcity is irrelevant in that regard. Scarcity only determines whether exclusion is necessary to secure the right established by first use.

“Isn’t possibility of conflict (other than conflict based on choice) at the core of this scarcity issue.”

USE is the core of the issue. If more use is demanded than is available, who should get the rights to what is available? One answer is to say that use goes to the strongest (might equals right). Another answer is to say that an “anointed” leader should decide (despotism). Yet another answer is to say that usage rights should be determined by vote (tyranny of the majority). Libertarians have come to the conclusion that none of the above positions are satisfactory and instead favor the homesteading rule (first come, first serve). Two noteworthy results of a consistent application of the homesteading rule are a reduction of conflict and an increase in cooperation.

“You claim an apple can only be eaten by one and this is the only reason apples can be property.”

Not true. My being the original appropriator of an apple establishes my right to eat it. In that respect it is my property. But if you and the rest of the world can somehow ALSO eat it – WITHOUT diminishing my ability to do so – your eating it does not violate my rights in the apple.

“But what if one person owns billions of apples more than anyone can eat. What kind of conflict is possible, other than his choice.”

I am defining ownership as the RIGHT to use. ACTUAL use is not required, except when homesteading (i.e. mixing one’s labor with a nature-given factor). Even if the owner of a billion apples has no intention of eating any of them, his RIGHT to eat them is secured by the exclusion of others.

“And if choice is not an ethical requirement for exclusion, what is the logical conclusion of this position?”

The owner DOES have choice – the choice to use (or not use) his property as he sees fit. As I said before, I do not see exclusion as a right unto itself, and I’ve twice invited you to explain why it should be. Perhaps you would do me the honor this time?

Gregory Cantor February 15, 2009 at 12:10 pm

Mr. Kinsella,

In my opinion, a trademark consisting of a symbol purported to represent a company is to be considered as a seal or signature. To use it while not acting in the name of the said company would be tantamount to counterfeiting a signature.
Don’t you think we have a right not to have our seals and signatures counterfeited? It seems to me that the non-existence of such a right would spell the doom of any fiduciary media whatsoever.
Do you think this analogy of mine is legitimate, or fallacious? This question is honest: I just want to know your thoughts on this.

Of course, there are trademarks which are not seals, but concepts designating a product or ideas, like “velcro”, “aspirin”, or even “The Politically Incorrect Guide”. These, I think, are not legitimately “monopolizable”.

Stephan Kinsella February 15, 2009 at 12:41 pm

Gregory Cantor:

“In my opinion, a trademark consisting of a symbol purported to represent a company is to be considered as a seal or signature. To use it while not acting in the name of the said company would be tantamount to counterfeiting a signature.”

Counterfeiting a signature is usually just a way of defrauding the person you pawn if off to–not the person whose signature you duplicate. In fact he is not usually harmed. If I write a fake check on A’s account and give it to you, then you will be unable to draw money from A’s account since he did not actualy sign it. So A is not harmed–you are. This is why I say that trademark victims are the defrauded customers.

Now it is true that in some cases you can use counterfeiting to steal. Suppose I pretned I am A and under this pretense I am able to convince A’s bank to give me A’s money. Well, this is just a way of stealing A’s money by trick.

Sasha Radeta February 16, 2009 at 2:43 am

Gregory Cantor,

You and Dr. Kinsella both correctly implied that trademark protection in itself is based on private property rights — it just has to apply to the real parties (victims) involved into an infringement.

What Dr. Kinsella is arguing against is the principle of “third party beneficiary.” In the law of contracts, is a person who may have the right to sue on a contract, despite not having originally been a party to the contract. This right arises where the third party is the intended beneficiary of the contract, as opposed to an incidental beneficiary.

This is basically the issue of proper scope of “privity” of free market contracts and not issue of “idea-ownership, pattern-ownership…” and all other nonsense.

Regards.

Gregory Cantor February 16, 2009 at 6:29 am

My question remains nonetheless unanswered:

As a matter of principle, does an individual have the right to prevent another party from using his seal or signature?

I am aware there is no “right to a reputation”, but I think here we have a confusion of concepts.
A seal or a signature is a fundamental instrument through which a person acts in the world. You may say:

- Oh, but a signature (or seal) is not scarce; therefore it cannot be owned! It is an ideal object.

But if I write a letter to Mr. Kinsella threatening his life, he will consider this illegitimate (if he has not changed his mind since he wrote the paper “Causation and Aggression”), but I can respond: “Oh, that’s just a bunch of letters assembled together! It doesn’t mean anything! Actually, my goal was to praise you!” What is wrong in this attitude?
Answer: I am implicitly saying that words do not objectively symbolize realities, and acting accordingly.

My signature (my seal) symbolizes the fact that “Gregory has had a part in this”, like the name “Stephan Kinsella” symbolizes a concrete person, like “apple” symbolizes an objective reality. In using your signature (or seal) I am just doing the same as I would be doing if I coerced you into assenting to a venture of mine. The intent is the same; it’s just the means that differ. I am doing this because I deem your contribution to have economic value.

A signature (or seal) symbolizes a contribution of some person. A personal contribution IS a scarce thing, and its counterfeited display proves it is subjectively perceived by the counterfeiter as having value. For all practical purposes, a counterfeited signature (or seal) is a forced contribution. If I complain, I show therefore that such use is harming me.

The possibility of such an act inflating or deflating a reputation is irrelevant. The fact remains that your approach implies the negation of the objective meaning of certain symbols, and hence, makes as much sense as saying that “f*** you!” is just a mere bunch of letters (or a mere assemblage of sounds) devoid of any conventional meaning.

The right to prevent anyone from using my seal or signature is, hence, the right not to be robbed, through counterfeiting, of the economic value of a scarce thing: my personal contribution. It is NOT a right over an “ideal” thing, nor a “right to a reputation”, nor even a right against fraud.

Sasha Radeta February 16, 2009 at 8:01 am

Gregory, your arguments are a flip side of Dr. Kinsella’s pertaining to IP (both equally missing the point of what IP really represents). You ask:
“As a matter of principle, does an individual have the right to prevent another party from using his seal or signature?”

It’s like asking whether a person has a “right” to prevent others from impersonating him, regardless of context (whether it’s a comical impersonation or one done by a con-artist designed to defraud someone and to create economic injury). It’s a rather silly question.

If you ask me whether you have right to prevent me from using signature identical to yours just to amuse people who know you – the answer is: NO! An individual does not have a “right” per se to coerce someone into not using his own hand in non-aggressive ways — including signing his name using the pattern identical to yours. Such coercion would represent an aggression against that person’s property (his own body and his own tools).

Nevertheless, if by signing his name in a pattern identical to yours this person intends to defraud people who intended to benefit you instead of this con-artist — then we can talk about real injury and liability arising from such action.

You are forgetting that the real issue with forgery is not “theft” of some symbols that “belong” to you. You cannot have an ownership right over a pattern, since your exclusive control over a pattern must assume aggression against another person’s property (how else you can control it). Instead, trademark and signature forgery is an issue of simple fraud and economic injuries that arise from such unlawful action.

Regards,

Stephan Kinsella February 16, 2009 at 8:56 am

Sasha:

“What Dr. Kinsella is arguing against is the principle of “third party beneficiary.” In the law of contracts, is a person who may have the right to sue on a contract, despite not having originally been a party to the contract. This right arises where the third party is the intended beneficiary of the contract, as opposed to an incidental beneficiary.

“This is basically the issue of proper scope of “privity” of free market contracts and not issue of “idea-ownership, pattern-ownership…” and all other nonsense.”

I don’t think this is quite right. There is no way to argue that if A defrauds his customer C by pretending to be B, that B is some third party beneficiary of the agreement between A and C.
Gregory Cantor:

“As a matter of principle, does an individual have the right to prevent another party from using his seal or signature?”

No, not as a general matter. It depends.
“But if I write a letter to Mr. Kinsella threatening his life, he will consider this illegitimate (if he has not changed his mind since he wrote the paper “Causation and Aggression”), but I can respond: “Oh, that’s just a bunch of letters assembled together! It doesn’t mean anything! Actually, my goal was to praise you!” What is wrong in this attitude?”

Because communication and language are possible.

“Answer: I am implicitly saying that words do not objectively symbolize realities, and acting accordingly.”

but you are wrong.

“My signature (my seal) symbolizes the fact that “Gregory has had a part in this”, like the name “Stephan Kinsella” symbolizes a concrete person, like “apple” symbolizes an objective reality. In using your signature (or seal) I am just doing the same as I would be doing if I coerced you into assenting to a venture of mine. The intent is the same; it’s just the means that differ. I am doing this because I deem your contribution to have economic value.”

In one case, you are lying. But lying is not necessarily a rights violation. Such a lie can be used to defraud your customer, of cousre.

In the other case, when you threaten someone, it’s not a lie, it’s a communication of intent to harm, and may be treated this way by the recipient. You are treating unalike things alike.
“The right to prevent anyone from using my seal or signature is, hence, the right not to be robbed, through counterfeiting, of the economic value of a scarce thing: my personal contribution. It is NOT a right over an “ideal” thing, nor a “right to a reputation”, nor even a right against fraud.”

there are no rights to the value of things.

Gregory Cantor February 16, 2009 at 2:50 pm

Mr. Radeta:

I am sorry but I assure you that you have not yet addressed my argument.

You go on to explain that signs and patterns are not ownable, which I have not denied.

Mr. Kinsella:

“Answer: I am implicitly saying that words do not objectively symbolize realities, and acting accordingly.”

but you are wrong.

Mr. Kinsella, my point was precisely that it is wrong to separate symbols from their conventional/accepted meaning, be they letters, words, sounds, seals, or signatures. It seems we agree on this particular issue.

“In the other case, when you threaten someone, it’s not a lie, it’s a communication of intent to harm, and may be treated this way by the recipient. You are treating unalike things alike.”

Not at all, Sir. The recourse to lies, or lack thereof, is irrelevant to my argument. Because the example of the threatening letter was only meant to demonstrate that you can aggress someone through the use of symbols, and that what matters in these circumstances is what the symbol means, not the symbol itself. Why is this precision important? To show that my argument does not depend on defending that patterns, or symbols, are ownable (I know they aren’t!).

“there are no rights to the value of things.”

With all due respect, I think this is an ad hoc assertion. Three examples:

1) If I am late in the payment of a debt to you, and there was no previous convention as to what sanction would apply for such default, are not you entitled to receive interest? What is this, if not a right to the value of things?

2) What’s wrong with inflation, if not (primarily) the fact that it robs people of the value of their money?

3) How could we justify the right to reparation for the destruction of a thing, if not by basing it on a right to the value of the said object? It cannot be based on the right of property over a thing that does not exist anymore. Rights “die” with their object.

Dale B. Halling June 26, 2009 at 6:00 pm

The “scarcity theory of property rights” is being advanced by a number of scholars at the Cato and Von Mises Institutes. Using this theory they suggest that there is no justification for intellectual property rights. The logical conclusion of their theory is intellectual labor is not deserving of pecuniary reward.

Are they correct that scarcity is the basis of property rights? See http://hallingblog.com/2009/06/22/scarcity-%e2%80%93-does-it-prove-intellectual-property-is-unjustified/

Is the conception of ideas and inventions subject to scarcity? See http://hallingblog.com/2009/06/25/scarcity-and-intellectual-property-empirical-evidence-for-inventions/

Is the distribution of ideas and invention (technology diffusion) subject to scarcity? See http://hallingblog.com/2009/06/25/scarcity-and-intellectual-property-empirical-evidence-of-adoptiondistribution-of-technology/

scott t June 26, 2009 at 9:02 pm

“The other thing to realize is that consumers are not stupid. They can spot a knockoff easily. And the trademark frauds are usually going to be marginal low-life type…..”

this is probobly true for the most part.

i recently purchased a ‘brand’ name article of apparel from ‘ebay’ – because of the attributes that described it at the ‘brand names official website’.
the product i received , while i cannot confirm if its authentic, it suits my needs (material, fit, it didnt fade in the wash, etc.).
to me, if the apparel is a ‘knock-off’ i am not to concerned because i like the apparel.
if there are other reasons why a market participant would seek proper identification and sourcing of trademarked or branded items – then to the degree that that is important they would take greater steps to ensure authenticity and i suppose ‘consumer advocacy’ would play a greater role.

“….not merely “dishonesty”, but deceiving the other side to a title-exchange so that the other party’s consent is vitiated, so that consummating the exchange is tantamount to use of property without consent–i.e. trespass.
But no, misleading the public with knockoff labeling is not fraud, because though it may be “dishonest,” it’s not a deception that is part of a trade that amounts to theft by trickery…..”

i guess it amounts to “unanticipated title-exchange via trickery”

Craig Ruuska January 9, 2010 at 8:05 pm

Mr. Cantor:

“With all due respect, I think this is an ad hoc assertion. Three examples:

1) If I am late in the payment of a debt to you, and there was no previous convention as to what sanction would apply for such default, are not you entitled to receive interest? What is this, if not a right to the value of things?”

No, if there is nothing in the contract about what happens when your payment is late, then nothing happens. This is why you make the contract specify what happens in the event of default.

“2) What’s wrong with inflation, if not (primarily) the fact that it robs people of the value of their money?”

What’s wrong with inflation in the present American context is that people are forced to accept Federal Reserve Notes as legal tender. In a world where people are free to use any money they want, and the producer of a paper money doesn’t enter into a contract saying he won’t inflate, there would be nothing wrong with inflation.

“3) How could we justify the right to reparation for the destruction of a thing, if not by basing it on a right to the value of the said object? It cannot be based on the right of property over a thing that does not exist anymore. Rights “die” with their object.”

The right to reparation over the destruction of one’s property isn’t based on its value, it’s based on the fact that one’s property was aggressed against. What form the reparation takes, such as the amount, is irrelevant to the reason why one is owed reparations. It is only relevant to whether the reparation is sufficient.

scott t January 9, 2010 at 10:22 pm

What’s wrong with inflation in the present American context is that people are forced to accept Federal Reserve Notes as legal tender.”
do you like the frns yourself?

have you benefited similar to “when prices are adjusted for inflation, Americans today spend ’40% less on clothes, 20% less on food, more than 50% less on appliances, about 25% less on owning and maintaining a car’than they did during the early 1970s.”
http://blog.mises.org/archives/010741.asp

would you have preferred to spend more on the above items?

“In a world where people are free to use any money they want, and the producer of a paper money doesn’t enter into a contract saying he won’t inflate, there would be nothing wrong with inflation.”

unless the inflation led to wrongs. has there been a historical free-money inflation that has led to what you would consider a ‘bad move’?

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