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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 }

ktibuk February 12, 2009 at 12:18 pm

I am not misrepresenting Kinsella. This is the core argument of his position. He claims ideas can not be property because they are non scarce, and property rights are man made rule in order to resolve conflicts among them.l

“BTW, ideas cannot be property because they aren’t physical”

Why is that?

Let’s say I wrote a poem and it is only in my head. Can I do whatever is implied by the concept `owning` with that poem?

Daniel C February 12, 2009 at 2:36 pm

ktibuk, you equivocate on the word “non-scarce”, since you include “the act of copying” among “scarce things.” Acts aren’t things. So it is a misrepresentation (intentional or not).

And in your poetry example, that question doesn’t make sense to me. Can you spell out “doing whatever is implied by the concept ‘owning’ with that poem” in more concrete terms?

Marcelo February 12, 2009 at 4:14 pm

So IP Socialist, ktibuk, it is a thought crime to memorize a poem? Anything that enters my conscience is wholly mine and is not a copy of the original.

ktibuk February 12, 2009 at 4:18 pm

Ideas are non scarce.

Why?

Because they can be copied infinitely.

This means before any copying takes place they are in fact scarce.

Since ideas are man made and not nature given free goods, and since they are scarce before any copying takes place this means they can be, they should be property of the individual that homesteads, produces them.

If they are property before they become non scarce thanks to copying, any copying without the consent of the owner is aggression against property.

That is why saying ideas are non scarce thus they can not be property, is a logical fallacy.

By “owning” I am talking about all the rights associated by and comes with the concept of ownership. If there is such concept called ownership, it implies a certain set of rights regarding a property.

What is it that you can not do with an idea (a poem for example) that is in your head, that you can not do with any other tangible good that you own, regarding the rights that come with ownership?

Why do you need a distinction of tangible and intangible when it comes to the concept of ownership?

ktibuk February 12, 2009 at 4:21 pm

Yes Marcelo,

Just like the bread you stole and ate. It is now in your stomach and it is yours.

Great argument.

Mike February 12, 2009 at 4:22 pm

“Why do you need a distinction of tangible and intangible when it comes to the concept of ownership?”

lol

Sasha Radeta February 12, 2009 at 4:33 pm

A free market supporter could never argue against copyright, since the owner of a work of authorship has a right not to sell their works at the price of its rent. Owners can simply sell limited use of their property (works of authorship) — and they can legally protect their property against unauthorized use (trespass) by people who never entered any contract with them….

I covered it all here:
http://blog.mises.org/archives/009414.asp

and here:
http://blog.mises.org/archives/009365.asp

We’ll discuss trademarks next time…

Rebel Ally February 12, 2009 at 5:47 pm

Stephan,

Thanks for your response. I see your point about the terms of agreement. I agree that IP is illegitimate under libertarian (natural) law, but I just always assumed trademarks were an extension of contracts against fraud. I don’t think copyrights and patents were mentioned on the Articles of Confederation were they?

But as far as the justification against IP that “ideas are not scarce” goes, I’m not so sure about that. I mean, ideas come from the thoughts of a human mind, and the human mind is a ‘scarce’ thing. Thoughts are ‘scarce’ because humans are not immortal and thus cannot think forever. It takes time to hold an idea in ones mind (anyone person can hold only one thought at a time, and time is scarce so ideas cannot be unlimited in a mind per se).

Wouldn’t a better justification against IP be the fact that ideas have no “physical” properties (kind of like energy. No one owns energy, but the oil and electric companies own the means to deliver energy, big difference) and thus cannot actually be traded, bartered, restituted (you stole my idea without me asking! I demand that you erase my patented ideas from your memory, and compensate me double the ideas!), acquisitioned (Ideas aren’t laying around to be “picked up” in your mind) or really be “owned” in any meaningful sense (I own that line of thought, but where did I keep it?)? Isn’t it like trying to own someone else’s free will?

I know this makes it sound like IP is a form of thought crime, and thus a form of censorship (in a way, it actually is) but what I’m trying to get at is that, instead of arguing that “ideas are not scarce”, IMO it’s better to argue that as far as ideas go, there is nothing to really “own” in a physical sense, and thus cannot be subject to property rights.

Isn’t that a good idea?

Francisco Torres February 12, 2009 at 6:04 pm

Ktibuk,
Ideas are non scarce. Why? Because they can be copied infinitely.This means before any copying takes place they are in fact scarce.

Second statement is a non sequitur – Ideas are not non-scarce because they can be copied, they are non-scarce because anybody can think or figure out them.

Example: There were TWO scientists that came to the same conclusion as to how species evolve: Charles Darwin and Alfred Russell. It would not be possible for Russell to have the same idea as Darwin if in fact ideas are scarce BEFORE copyright or before ideas are known – either Darwin possessed the idea of Natural Selection or he did not. It is clear he did NOT, for it is logical to conclude that Alfred Russell had the exact same idea at the same time, before any of the two men communicated with each other. Ergo, Ideas are NON scarce even if not known publicly.

Francisco Torres February 12, 2009 at 6:11 pm

Rebel,
I mean, ideas come from the thoughts of a human mind, and the human mind is a ‘scarce’ thing.

This is a Fallacy of Composition. Just because ideas sprung from scarce human minds, it does not follow ideas are equally scarce. It is like saying that since Birgit Nilsson is dead, then the role of Brunhilde must be equally dead (which is wrong since any good singer can play that part).

Greego February 12, 2009 at 6:17 pm

@ktibuk:
“Why?

Because they can be copied infinitely.

This means before any copying takes place they are in fact scarce.”

While an idea is in your head, it is part of your body (and thus your property) until it’s ‘copied’ via publishing to some other tangible property – a book, hard drive, etc.. In order for acceptance, critique,= or enjoyment of your idea, it needs to be ‘copied’ to some one else’s property – their hard drive, their notebook, their brain. The moment someone else (legitimately or illegitimately) receives your idea, it’s no longer scarce, by definition.

waywardwayfarer February 12, 2009 at 6:26 pm

Regarding the scarcity/copying argument, the idea is “scarce” only so long as it’s kept within the originator’s mind. Once he shows it to anyone else, a copy has been made in that other person’s mind, and if a thought can be owned in any sense, the “copy” now belongs to that other person. Presumably, that second person did not psychically rip the thought from the unwilling mind of the originator, and assuming he didn’t physically torture him to make him divulge it either, he could only have gained it through voluntary gift or purchase. If one has a property right in the contents of one’s mind, I can’t see how the originator of the idea can prevent the second person from using the legitimately acquired “copy” as he sees fit without blatantly violating his rights.

And quite aside from the scarcity argument, there’s the fact that preventing someone from using an idea involves curtailing his rights to the use of his tangible property.

Daniel C February 12, 2009 at 6:34 pm

ktibuke, Francisco Torres (as usual) nails the problem with your argument.

Non scarce things can indeed be copied indefinitely, but that is not what makes the thing non scarce. My car can go up to about 140 miles an hour, but being able to go up to about 140 miles an hour is not what makes something a car.

Hence, it’s clear that you haven’t shown that ideas are non scarce before copying. Hence, your main objection against Kinsella’s argument doesn’t follow.

Daniel C February 12, 2009 at 6:37 pm

Sasha Redata, your version of copyright is fine as far as agreed, contracted parties are concerned. However, it is neither the current prevailing view of copyright, nor can it rope in innocent third parties. . .and so it fails on two accounts.

Marcelo February 12, 2009 at 7:30 pm

IP Socialist, ktibuk, if someone can copy my bread then who am I to deny them use of their property?

unger February 12, 2009 at 7:33 pm

waywardfarer:
“And quite aside from the scarcity argument, there’s the fact that preventing someone from using an idea involves curtailing his rights to the use of his tangible property.”

That’s the whole idea, you may be sure. It should tell anyone who’s paying attention who the real IP socialists are. It isn’t libertarians who impose restrictions on the use of other people’s property, and it isn’t libertarians who corrupt the language in order to sway people to their point of view. The argument for IP is just another clever argument why your physical goods should be another’s to control. It’s no different at all from the drug warriors’ insistence, at gunpoint, that you don’t grow certain plants.

Shane Terry February 12, 2009 at 8:37 pm

Benjamin Burkley:

I just had this thought. If I created a B. McDonalds, that looked exactly the same at a R. McDonalds
with the arches and everything. Then I messed up really bad, had terrible food, poisioned someone, and my restaraunt failed. Would that not be causing violence to the name or R. McDonalds,

No, you can’t commit violence against “names”.

even though it is not the same restaraunt. People would see it as the same because there would be no external difference. Meaning, R. McDonalds business may be damaged, through no fault of their own, due to someone using the same type of store.

There is no right to “not be damaged” in this way. R. McD’s may be “damaged” by Burger King opening a competing chain too. So what? You have a right to the physical integrity of your property, not to its value.

I am having difficulty trying to understand this Stephen. I have thought of Benjamin’s scenario before regarding IP and have tried to create an argument against Mcdonalds claim that the 2nd Mcdonalds is doing harm and violating property rights.

I understand that violence can not be perpretrated on a “name” but behind the spectrum of the “name” is also reputation(quality and service standards). Would this not cause customers to negatively view the initial Mcdonalds?This could potentially cause decreased profits for the 1st Mcdonalds by the 2nd Mcdonalds actions.

I don’t understand why you use Burger King as an example because this is cleary distinguishable to the consumer when deciding where to purchase their fast food.

I have not read your book yet but look forward to it. Thanks for creating some recent discussion on this subject.

ella February 12, 2009 at 9:31 pm

“Mises was wrong. However, his views on this matter were so close to anarchy to be almost indistinguishable. See Rothbard.”
Can we then put a stop to the charade and rename the institute as Rothbard Institute, and the blog as Rothbard Anarchist Blog?

waywardwayfarer February 12, 2009 at 10:18 pm

Why all the sniping about opinions that don’t conform exactly to those of Mises? It’s called the Ludwig von Mises Institute because it’s dedicated to thought in the tradition of the Austrian school, of which Mises was the most prominent thinker. That doesn’t mean it has to dogmatically adhere to his works only. For that matter, it hardly adheres unswervingly to Rothbard’s, either. I seem to recall from “Against Intellectual Property” that Kinsella himself differs with some of Rothbard’s theories on the subject.

alansmithee February 12, 2009 at 10:29 pm

http://tech.yahoo.com/blogs/null/121556

check this bad boy out. Text-to-Speech a violation of the copyright of held by the creators of books…? lol.

ella February 12, 2009 at 11:00 pm

“Why all the sniping about opinions that don’t conform exactly to those of Mises? It’s called the Ludwig von Mises Institute because it’s dedicated to thought in the tradition of the Austrian school, of which Mises was the most prominent thinker. That doesn’t mean it has to dogmatically adhere to his works only. For that matter, it hardly adheres unswervingly to Rothbard’s, either. I seem to recall from “Against Intellectual Property” that Kinsella himself differs with some of Rothbard’s theories on the subject.”

People are free to adopt Rothbard’s anarchist bent, but there isn’t anything Austrian or classical liberal about this.

A broad spectrum of opinions can still exist, even if we are to retain the main thrust of “minimal government and individual freedom”.

To pronounce all other views as wrong, as Kinsella did – e.g. just because others decide to work within a minarchist framework, instead of an “all state stuff is evil by default” anarchist framework – is terrible.

Oil Shock February 12, 2009 at 11:32 pm

Amazon Kindle faces IP issues

http://tech.yahoo.com/blogs/null/121556

Reason February 12, 2009 at 11:35 pm

We are not here to worship von Mises but to honor the Austrian school, of which Mises was the greatest 20th century contributor. Did Mises follow Menger and Bohm-Bawerk word for word like a Confucian scholar preserving the imperial bureaucracy? Not at all. Mises kept what he believed to be true, discarded fallacies, and discovered better theory- without ever leaving the Austrian umbrella.

Of course it is ok to say that government is a bad idea. Much supportive theory for anarcho-capitalism may be found in Mises’s insights- especially on calculation.

Trying to improve upon and expand Austrian theory does Mises a great honor and in no way diminishes his epic achievements.

ella February 13, 2009 at 12:05 am

i agree – but to subscribe to anarcho-capitalism is only an opinion, it is not embedded in austrian economics per se. likewise with anti-IP sentiments – which is a debatable point altogether.

like it or not though, the state is here to stay. if people choose to be organized as such by their own volition – well, not much can be done about it.

ktibuk February 13, 2009 at 2:18 am

@Torres,

“Second statement is a non sequitur – Ideas are not non-scarce because they can be copied, they are non-scarce because anybody can think or figure out them.”

Ideas are not non scarce because anybody can independently come up with it. All the scarcity issue is dependent on the ability to copy easily and cheaply.

Anyways, I don’t have a problem with independent discovery. I only claim that “copying without the owners consent is aggression”. If there is an independent discovery, which is possible but doesn’t make ideas non scarce free goods, then that issue is outside the sphere of this discussion or any ethics discussion.

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

If not why not?

ktibuk February 13, 2009 at 2:28 am

@Greego

“While an idea is in your head, it is part of your body (and thus your property) until it’s ‘copied’ via publishing to some other tangible property – a book, hard drive, etc.. In order for acceptance, critique,= or enjoyment of your idea, it needs to be ‘copied’ to some one else’s property – their hard drive, their notebook, their brain. The moment someone else (legitimately or illegitimately) receives your idea, it’s no longer scarce, by definition.”

Yes but this can happen one of two ways. Just like homesteaded property can change hands one of two ways.

Either this happens legitimately, by the consent of the owner, or illegitimately, without the consent of the owner.

We are not talking about the mechanics of trade or sharing, but legitimacy of it. This is an ethics discussion.

ktibuk February 13, 2009 at 2:34 am

“And quite aside from the scarcity argument, there’s the fact that preventing someone from using an idea involves curtailing his rights to the use of his tangible property.”

If you didn’t receive the property legitimately you can be stopped from using it, by force if necessary.

In order to claim you have right to whatever you want with a property first you need to show that you received it legitimately. There are only two legitimate ways to own a property. One is homesteading, producing it. The other is getting it from someone else with that persons consent.

And bear in mind you are not using just the tangible property that comes with IP. IP is ultimately embedded in that tangible property. Otherwise we wouldn’t have an issue.

ktibuk February 13, 2009 at 2:46 am

“Presumably, that second person did not psychically rip the thought from the unwilling mind of the originator, and assuming he didn’t physically torture him to make him divulge it either, he could only have gained it through voluntary gift or purchase.”

Do you really know what voluntary is?

A writer wants to associate with another individuals and sells his IP on certain conditions. He or she wants nothing to do with you. You somehow get a copy of it, without the consent of the owner and you assume that it is a gift?

Only if the loot of the robbers are gifts to them given by the victims.

You know why abolishing private property rights is IP socialism other than the obvious reason?

Because it forces association between individuals. Just as socialism suppose to do.

Metallica wants nothing to do with person A. He doesn’t want to associate with him. But once person A downloads, copies Metallica’s songs he is getting into association despite the wishes of Metallica. Metallica can not say “No leave me alone” according to the IP socialists. He is a slave to the others. Because supposedly others have a “right to copy” Metallica’s songs (which is not a right but an entitlement because someone else bears the cost of producing the original that is being copied) which means others have right to associate with Metallica without their consent.

Peter Surda February 13, 2009 at 4:41 am

It is sad that despite all that has been said, a lot of people still do not understand what IP actually is. They assume that it means any sort of right related to intangible goods, and the converse, that lack of IP means lack of any such rights.

IP deals with very specific rights, not just any rights. There are two main things you need to be aware of:
- IP consists of several completely unrelated things (i.e. it is an umbrella term just as Stephan Kinsella writes)
- IP only deals with rights that apply to people that are not a party to contract (i.e. third parties). They have no relevant effect on the ability to make contracts and prosecute violators thereof. They do not create this ability, other laws do.

This means that even without IP, “stealing” intangible property is still illegal, it just has a different meaning. Without IP, it refers to a breach of contract, with IP it also means unauthorised competition. Before we can argue whether this is a good or a bad thing, we first need to understand what we’re talking about.

Please people, before you make arguments, make yourselves knowledgeable about IP.

Peter Surda February 13, 2009 at 5:19 am

@ktibuk
> A writer wants to associate with another individuals and
> sells his IP on certain conditions. He or she wants
> nothing to do with you. You somehow get a copy of it,
> without the consent of the owner and you assume that it
> is a gift?
Let’s say I insult the writer in question without his consent, call him a liar, thief, plagiator, whatever. He doesn’t want anything to do with that. Was my assumption that while his reputation and honour are indeed his, he doesn’t have a monopoly on them, incorrect?

ktibuk February 13, 2009 at 6:18 am

Peter,

“It is sad that despite all that has been said, a lot of people still do not understand what IP actually is.”

I am afraid you are the one who doesn’t understand the issue. And you keep making the same mistake over over again.

When you say IP you mean, legislation that is made by the US congress.

“- IP consists of several completely unrelated things (i.e. it is an umbrella term just as Stephan Kinsella writes)”

No. IP means intellectual property. It is one thing. There may be different legislation that relates to different uses and different types protection of IP (some legitimate some illegitimate) but the issue is one.

“- IP only deals with rights that apply to people that are not a party to contract (i.e. third parties). They have no relevant effect on the ability to make contracts and prosecute violators thereof. They do not create this ability, other laws do.”

IP rights have nothing to do with contracts, second party or third party. Contracts may be used to increase the protection of IP and that is it.

IP is property and the only thing that matters when it comes to property is “if there is an aggression against property or not”. It is property that gives meaning to the concept of aggression, or initiation of violence. If there is no concept of property there can not be a concept of aggression.

Again, if your problem is with legislation that you think relates to IP then put it that way because I am sure everyone has problems with the legislation.

But the important aspect is the ethical aspect that causes people to have problems.

ktibuk February 13, 2009 at 6:26 am

Peter,

“Let’s say I insult the writer in question without his consent, call him a liar, thief, plagiator, whatever. He doesn’t want anything to do with that. Was my assumption that while his reputation and honour are indeed his, he doesn’t have a monopoly on them, incorrect?”

That is not what I am saying.

Reputation is “other peoples evaluation of one person”. Without others there wouldn’t be a reputation. So you can not own you reputation.

But an IP is something different. Without others there would still be IP. And you can own it because its existence is solely dependent on you.

Robinson Crusoe can not have a reputation on his island. But if he wrote a poem he can own it.

Peter Surda February 13, 2009 at 6:51 am

@ktibuk
> IP means intellectual property. It is one thing.
After all these weeks, you have not succeeded in defining what you think IP is. Until you do that, no meaningful discussion is possible.

It appears to me that you have your very own definition of IP, which is not shared by anyone else. That’s not the main problem though, rather the lack of the definition is. Sans the definition, I am unable to make a meaningful representation of your arguments, therefore cannot respond to them.

Drake February 13, 2009 at 6:52 am

@ktibuk

“You seem not to understand the issue. Please read the dialogue again and try to understand the issue.”

Your entire argument can be summed up in this quote:

“before ‘the act of copying’ the IP is indeed scarce, thus can be property.”

You are completely misunderstanding the function of scarcity in the determination of property rights. If a resource is subject to an INTRINSIC use-limit, demand beyond that limit will NECESSARILY be unmet. It is due to the inherent NATURE of the resource that exclusion becomes UNAVOIDABLE. Property rights arise when use DEPENDS on exclusion. Scarcity is NOT a necessity; it is a REALITY, and it is about time you learned the difference.

ktibuk February 13, 2009 at 7:09 am

Peter,

“After all these weeks, you have not succeeded in defining what you think IP is. Until you do that, no meaningful discussion is possible.”

I have Peter, but you seem to be stuck at a place and can not comprehend what I am saying.

Again, ideas are abstract reflections of reality around us that we gather with our senses. IP is man made, homesteaded abstract ideas.

When you pick a nature given good, say apple and homestead it, pick it off the tree, change its natural state to fulfill your need it becomes yours.

When you pick a nature given abstraction say the concept of apple and many other concepts and make it into a story about a girl and her witch of a jealous step mother you create something, that is not nature given.

This is homesteading as much as homesteading the physical apple by picking off the tree.

Similarly, sounds are nature given resources that we gather with our ears. But when one individual makes a pattern out of them, compose music, again, which is not nature given, that person homesteaded a nature given resource.

One of the main problems of people who are having trouble with the concept of IP, is they don’t have a concept of homesteading property. Or they don’t really think about it.

If you think about homesteading, how something nature given becomes someones property, one would realize that the core issue is the individual who homesteads. Without that individual there is nothing and concepts of scarcity has no meaning.

ktibuk February 13, 2009 at 7:29 am

@Drake

“You are completely misunderstanding the function of scarcity in the determination of property rights. If a resource is subject to an INTRINSIC use-limit, demand beyond that limit will NECESSARILY be unmet. It is due to the inherent NATURE of the resource that exclusion becomes UNAVOIDABLE. Property rights arise when use DEPENDS on exclusion. Scarcity is NOT a necessity; it is a REALITY, and it is about time you learned the difference.”

I am not misunderstanding anything, but you are making some assumptions that beg lots of questions.

Why would scarcity has to be function?

Why do you think “intrinsic use limit” (I assume this means natural scarcity as opposed to man made scarcity) has anything to do with property rights?

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?

You seem to be stuck on the wrong assumption that property rights are man made rights to resolve conflict.

Which is both wrong, and also state centric.

The original homesteader homesteads and makes something his property and he doesn’t think of any possible future conflicts. He just does it, and this is why property rights arise naturally. Without the need of a state or a planner.

And if some other person comes and aggress against his property he has a right to use violence against him because he homesteaded the natural resource and made it his.

Assuming property rights are about conflict resolution implies that many people gather together and some authority divide some loot among them by central planning.

The basic property right is self ownership. And every other right stems from that one right.

Also no conflict resolution meeting or possibility has shaped the right of self ownership. This right is a necessity of reality. Every individual necessarily is in ultimate control of his actions. Even if he is under threat and wouldn’t act certain way if he wasn’t. He is still making a conscious choice. And even if total mind and body control is possible in the future it would be aggression against the individual because he has already homesteaded his self.

Also about scarcity.

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

Do you think it is impossible to make tangible goods non scarce in the future?

If not why have tangible property now?

Peter Surda February 13, 2009 at 7:32 am

> Again, ideas are abstract reflections of reality around us
> that we gather with our senses. IP is man made,
> homesteaded abstract ideas.
This is not a definition. This is just some mumbo jumbo. A definition is supposed to increase, not decrease, specificity.

ktibuk February 13, 2009 at 7:37 am

Peter,

If you sincerely and honestly wanted to communicate you would ask specific questions about my use of terms.

Since you do not show any effort to understand I have to question your intellectual honesty and courage.

I am done with you.

Stephan Kinsella February 13, 2009 at 8:53 am

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

Are you even aware that patent law has nothing to do with copying? (See my post Copypats.) Are you saying now that you oppose patent law?

Drake February 13, 2009 at 8:53 am

@ktibuk

“I am not misunderstanding anything, but you are making some assumptions that beg lots of questions.”

Excellent, I’m all ears…

“Why would scarcity has to be function?”

Sorry, I don’t understand the question. Perhaps you could restate it.

“Why do you think ‘intrinsic use limit’ (I assume this means natural scarcity as opposed to man made scarcity) has anything to do with property rights?”

When the use of a resource is subject to a natural limit, use by latecomers INFRINGES upon use by first-comers. If you favor the first-comer’s right to uninfringed use, you must NECESARILLY favor the exclusion of latecomers.

HOWEVER, when the use of a resource is NOT subject to a natural limit, additional use by latecomers does NOT infringe upon use by first-comers. Therefore, exclusion is NOT necessary. It is NOT required due to the nature of reality, but is in fact a CHOICE. I see no ethical justification for this choice, however. The justification for exclusion is that it is NECESSITATED by use.

“The basic property right is self ownership.”

Your body is subject to natural usage limitations: you can’t be in two places at once; you can’t dance the salsa and the Jitter Bug at the same time. You were the first to use your body, and your continued use DEPENDS on the exclusion of others.

“You seem to think that ‘the possibility of non scarcity in the future’ is enough to make something non property.
Do you think it is impossible to make tangible goods non scarce in the future?
If not why have tangible property now?”

You are confusing an individual good with a class of goods. A single car can only be driven in ONE direction at any one time. The natural limits on its use will NEVER change, regardless of how many other cars are produced in the future.

ktibuk February 13, 2009 at 9:00 am

“Are you even aware that patent law has nothing to do with copying? (See my post Copypats.) Are you saying now that you oppose patent law?”

I have always been saying that. And you know it.

ktibuk February 13, 2009 at 9:07 am

Drake,

Why are you nitpicking from my questions and only answer the ones you want?

You keep making assertions and assumptions without putting forth an argument.

“When the use of a resource is subject to a natural limit, use by latecomers INFRINGES upon use by first-comers. If you favor the first-comer’s right to uninfringed use, you must NECESARILLY favor the exclusion of latecomers.”

Why does this has to be a natural limit? What if I limit the use of the property for the others? I wrote a novel and no matter how easy to copy and reproduce it naturally, since I own it I can put a limit to the reproduction to it. You are claiming that I can not because potentially the thing can be copied endlessly. Cant you really see how absurd that is?

ktibuk February 13, 2009 at 9:12 am

Drake,

“You are confusing an individual good with a class of goods. A single car can only be driven in ONE direction at any one time. The natural limits on its use will NEVER change, regardless of how many other cars are produced in the future.”

Why the distinction between and individual good and class of goods?

If cars are so abundant, why would there be any “conflict”, which seems to be the basis of your theory?

Isn’t air a free, non scarce good? Are all the air molecules that people breathe, without getting into conflict, identical?

Jarno February 13, 2009 at 9:43 am

I have two major issues with the argumentation in Kinsella’s book (“Against Intellectual Property”):

2. Scarcity as the basis for property: IMO all resources are scarce, thus scarcity can’t be the reason for the need of concept of property.

That is, here are only scarce owned resources. When whatever physical resource is homesteaded (originally “scarce” or not), there is a non-zero cost (e.g. effort) for its replacement. This seems to also apply to non-physical resources, such as private space.

This non-consideration of effort or transaction costs makes most of the examples in the book moot.

2. Contrary to Kinsella’s argument, copyright nor patent prevent anyone using their property as they see fit. It is the act of sale or allowing others to benefit from the products produced using the copyrighted work or the patent that is prohibited by the appropriate laws. You may use any patent for your private use as much as you see fit.

As an patent attorney Kinsella needs to know this, but still uses silly examples and clauses hiding this fact.

Should the ownership of resources include the right to use them to extract value out of information created by others?

Kinsella answers this himself (in a comment above): “So what? You have a right to the physical integrity of your property, not to its value.”

Drake February 13, 2009 at 9:48 am

@ktibuk

“Why does this has to be a natural limit?”

1. When the use of a resource is NOT subject to a natural limit, additional use by latecomers does NOT infringe upon use by first-comers.

2. Therefore, exclusion is NOT required due to the nature of reality, but is in fact a CHOICE.

3. I see no ethical justification for this choice, however. Exclusion is only justified when NECESSITATED by use. In other words, exclusion is a DERIVATIVE of the right to use, not a right unto itself.

Jarno February 13, 2009 at 9:49 am

Above the first “2.” should be “1.” :-)

ktibuk February 13, 2009 at 10:47 am

@ Drake

“1. When the use of a resource is NOT subject to a natural limit, additional use by latecomers does NOT infringe upon use by first-comers.”

Again why the natural limit? What if the additional use by latecomers do infringe upon the wishes, consent of the first owner. Why consent of the individual is not important, but natural limit is?

“2. Therefore, exclusion is NOT required due to the nature of reality, but is in fact a CHOICE.”

What requirement? Who decides on this requirement? The only requirement in ethics is that no one aggresses against others and their property.

And of course exclusion is a CHOICE. “CHOICE” is what defines property rights.

“3. I see no ethical justification for this choice, however. Exclusion is only justified when NECESSITATED by use. In other words, exclusion is a DERIVATIVE of the right to use, not a right unto itself.”

This choice comes with property rights either you see justification or not. Property rights means choice over the use of property.

As you can see you have nothing to do with the individual and his choices when it comes to your property theory. Can you understand why I call this position IP Socialism?

Drake February 13, 2009 at 11:20 am

@ktibuk

“Again why the natural limit?”

Exclusion is only justified when NECESSITATED by use. Exclusion is only NECESSITATED by use when there is a NATURAL LIMIT on use.

“What if the additional use by latecomers do infringe upon the wishes, consent of the first owner. Why consent of the individual is not important, but natural limit is?”

I am defining exclusion as a DERIVATIVE of the right to use, not a right unto itself. The reason I do this is because I see no inherent natural law NEED for exclusion. I only see a need for USE.

“What requirement? Who decides on this requirement?”

In order for me to wear my hat, you are REQUIRED not to. This is not determined by me. It is determined by the nature of my hat. Only one person can wear it at a time!

“And of course exclusion is a CHOICE.”

Whether or not exclusion is a choice depends on what is being used.

“Property rights means choice over the use of property.”

You are attempting to bundle the RIGHT TO USE resources together with the RIGHT TO EXCLUDE others from using resources. I am claiming that the RIGHT TO EXCLUDE can only be justified as a DERIVITIVE of the RIGHT TO USE. I do not think the RIGHT TO EXCLUDE can be justified on its own (without reference to USE), but I welcome you to try.

Drake February 13, 2009 at 11:42 am

“And of course exclusion is a CHOICE.”

Whether or not exclusion is a choice depends on what is being used. We cannot BOTH wear your hat at the same time: it is physically impossible.

After you have committed to wearing your hat, my exclusion from wearing it is NO LONGER a separate consideration and is not subject to your discretion, but follows AUTOMATICALLY from your original choice to wear it.

In other words, my exclusion is REQUIRED for and RESULTS from your use, and there is nothing either of us can do about it. Clearly, this is NOT the case with intellectual creations.

Sasha Radeta February 13, 2009 at 12:15 pm

Daniel C said:

“Sasha Redata, your version of copyright is fine as far as agreed, contracted parties are concerned. However, it is neither the current prevailing view of copyright, nor can it rope in innocent third parties. . .and so it fails on two accounts.”

That’s incorrect. Third parties do not have a right to use other person’s property without his permission (trespass)… and my definition of copyright is the only definition of copyright. Read it all here:

http://blog.mises.org/archives/009414.asp#comment-501228

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