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Source link: http://archive.mises.org/9499/there-are-no-good-arguments-for-intellectual-property/

There are No Good Arguments for Intellectual Property

February 24, 2009 by

There are some decent arguments out there that argue in favor of a state, welfare rights, war, democracy, drug laws, and so on. They are all flawed, since libertarianism is right, but there are coherent, honest arguments that we libertarians have to grapple with.

But it is striking that there are no decent arguments for IP–as Manuel Lora remarked to me, “You know, I haven’t seen a good pro IP article ever.” This is true. One sees the same incoherent or insincere claims made over and over, such as:

  1. It’s in the constitution (argument from authority; legal positivism)
  2. Intellectual property is called property! (argument by definition?)
  3. No movies would be made and kids would die without medicine (artworks and medicine have been produced for ages without IP law; and where’s the evidence?)
  4. If you “create” something you own it (despite all the exceptions, and despite the fact that creation is neither necessary nor sufficient for ownership; despite the fact that you either limit these rights in scope or time arbitrarily, or you extent them to infinity, choking off rights in real things and forcing life and commerce to a screeching halt)
  5. It generates net wealth–more value than its cost (no evidence, ever, for this contention–just assumptions; not to mention the problem of utilitarian summing of values)
  6. IP infringement is “theft” (even though the owner still has his property and ideas, and even though IP infringement is just learning and emulating)
  7. People “could” create variants of IP via private contracts… therefore artifical patent granting bureaucracies legislated by a criminal state are … justified?)

There are other arguments, I suppose, but they are so incoherent as to defy description. They often involve crankish initial caps, like Property and Rights, the Internet equivalent of crayons.

I have truly never seen a coherent, good argument for IP. The advocates are either utilitarian, with all the problems that accompany that (not to mention they never have any evidence for their claims); or the advocate a more “principled”, rights-based type of IP that, if taken seriously, would completely undermine all real property rights and make life on earth impossible, so they retreat from this and impose arbitrary, senseless limits on it. What a kluge.

In a recent discussion, What’s Wrong With Theft?, one of the IP advocates, when pushed into a corner, ended up arguing that rights to own property include the right to control all “access to” and “interactions with” one’s property–and that “interactions” include observing or knowing about or learning facts about the things owned by someone, and that when you use this knowledge you are “interacting with” the property, and thus “stealing” it (even though the owner still has it). So here we have it: IP means “interaction rights.” Wow. This is how kooky all IP arguments ultimately are.

{ 165 comments }

Stephan Kinsella December 15, 2010 at 3:02 pm

See this post: An Argument for Intellectual Property. Many problems with his reasoning.

Imagine that we are 1,000 years in the future. Technology has advanced enormously. In particular we have cheap and abundant energy available to all, and the ability to home-manufacture anything we want (think Star Trek replicators) provided you can provide a specification. In short: physical scarcity no longer exists.

In that world, almost all property is intellectual (excepting maybe land and spectrum).

Question begging–this assumes IP is a type of property. It’s not; it’s just state granted monopoly labeled property for propaganda purposes. see http://blog.mises.org/14914/intellectual-properganda/

If I want a cup, I don’t need to purchase the labour of others to design, manufacture and distribute cups. I simply need my replicator to have the design available and push a button. I pay the minor costs of the energy need to create it and voilà, a cup.

Let us say that the cup designer has designed the best cup ever. That this cup took the designer 30 years to refine. It is the greatest innovation in liquid holding technology since the invention of humorous screen printing. The designer sells me the design — not a cup, a design for a cup. I give it to all my friends, who in turn give it to all their friends, ad infinitum and we all use it to make ourselves a mega-cup. The designer has been paid once. I should have paid him millions of pounds, since his design has been used millions of times, but I didn’t. He can’t, practically, wait for everyone who might want a cup to pledge to the mega-cup design fund; and besides how would the demand for the mega-cup ever appear?

This is not an argument for IP. It is a question. How does you having a question wondering how designers would figure out ways to profit from recipe designs, translate into an argument showing that the state should grant pattern monopolies to suppress competition?

Clearly, that world needs intellectual property laws.

“needs”? Tha’ts your argument? you ask a question, then you just assert there is a need? It’s not clear at all.

Without them, there is no incentive to think, and that world is a socialist one, not a libertarian one.

So…. the purpose of the law is not justice, not respecting property rights, but to put in place incentives to make sure people do enough thinking? What?

Progress would halt.

Assertion.
You just need more imagination. Or rather, entrepreneurs have to be creative and find ways to profit, in a wordl where information spreads easily and where people can emulate, learn, and compete.

He also argues that ideas are not scarce. I say they are. Let’s do another thought experiment … the infinite coal mine. In the infinite coal mine, the coal never runs out. Therefore it is impossible to steal coal from the infinite coal mine, since it can be easily replaced. Obvious nonsense, the coal had to be extracted. Why then is stealing ideas from the infinite idea mine any different? You are not stealing the idea, you are stealing the effort that went into creating the idea.

This is the problem with reasoning in metaphors. I am not stealing effort. And I am not stealing anything: you still have your idea. What you want to argue is I am stealing your idea’s “value”; but we do not have property rights in the value of things, since that is just how others regard it. You want to ague it’s stealing the money you could have made–but you don’t have a property right to the money in potential customers’ pockets–that’s what competition is all about.

Here is my final argument for Mr Kinsella: do you place everything you write into the public domain? If not, then you have recognised the value of intellectual property. If so, then who pays you to produce public domain works? Who pays them?

This is another question, not an argument. And no, I don’t, since it’s impossible to “place” things in the public domain. Your copyright laws make this impossible.

But, whenever I can, I release it under CC-BY, the least restrictive license available. I publish some things with large publishers who insist on the old model–a model that exists solely because of the copyright system that you support. It’s your fault some of my writings are protected by copyright, not mine.

Onus Probandy December 15, 2010 at 4:23 pm

I have no clue how you managed to find my tiny little blog in the vast Internet. You must have spies everywhere ;-) I’m delighted that you have responded.

Question begging–this assumes IP is a type of property. It’s not; it’s just state granted monopoly labeled property for propaganda purposes. see http://blog.mises.org/14914/intellectual-properganda/

Isn’t this response equally question begging? “assumed IP is a type of property”; well you’ve assumed it isn’t. That’s kind of the argument isn’t it? You’ve assumed your premise — that intellectual property isn’t property.

This is not an argument for IP. It is a question. How does you having a question wondering how designers would figure out ways to profit from recipe designs, translate into an argument showing that the state should grant pattern monopolies to suppress competition?

The last sentence was a question, there was a little more to the paragraph than that though.

Given that in an non-IP world the designer can only gain reward for the very first sale (since every other sale will not exist, since it will simply be copied), that first sale must supply the return for all the effort put in to the design. It’s not inconceivable that that could happen, but my question is how would demand ever be created for that first sale? There is no word of mouth, and the price is so high that no one but the most ardent cup-user could ever afford to pay for that expensive first sale.

I said nothing about the suppression of competition. In fact, given that this is a zero-cost of production world, competition of that form wouldn’t even exist in my thought experiment. Instead competition would have to be in ideas — non-tangible. With no IP protection, it is not competition that has been suppressed but the actual creation of ideas — what is any designers motivation to design, let alone compete?

So…. the purpose of the law is not justice, not respecting property rights, but to put in place incentives to make sure people do enough thinking? What?

I feel you’re being purposely obtuse here. The purpose of criminal law is moral justice. The purpose of IP law would be for economic justice: if effort is valued, then that effort should be rewarded by those who take value from that effort. I’m not arguing that people should do “enough thinking”, I am arguing that if they think of something that another would value, then the law should provide them away of receiving money for that value. Just as the law protects a man who spends a year growing potatoes from having them all stolen when the crop is harvested. Which leads us onto stealing…

This is the problem with reasoning in metaphors. I am not stealing effort. And I am not stealing anything: you still have your idea.

I’m not reasoning in metaphor. I’m reasoning by analogy.

I appreciate that the core of your argument is that “stealing” property deprives the victim of the property but copying an idea does not. As I say it is the effort of creating that idea that was stolen. Not the idea. You don’t refute that you simply say “I am not stealing effort”. I’m afraid you are. If I spend 10 years of effort, and you spend 10 seconds of CPU time copying, then you have stolen ten years from me. I do not force you to value my idea at 10 years, you are free not to use it; why then do you force me to value my idea at 10 seconds?

What you want to argue is I am stealing your idea’s “value”; but we do not have property rights in the value of things, since that is just how others regard it.

“We do not have property right in the value of things”? You state this as if it’s a universal, unchallengeable fact, but surely this is what we are debating? I’m not saying we have property rights in the value of “things”. I’m saying that we should allow intellectual property to exist (and since it is entirely intangible, it can only be a definition in law) so that the “value” in the effort of creation can be recognised and hence rewarded (at the discretion of the purchasers).

You want to ague it’s stealing the money you could have made–but you don’t have a property right to the money in potential customers’ pockets–that’s what competition is all about.

You’re right I’m arguing that it’s stealing the money I could have made. However, I’m certainly not saying that I have a right to money in my customers pockets though — they are free to choose to trade, just as in all trade for mutual benefit. It is you who would deny them that choice.

What competition can you possibly refer to? When the cost of copying the idea is negligible relative to the cost of creating the idea, what competition is there? If you wish to come up with a better idea — fine, compete away, but taking my idea and putting it in a shinier box is not competition. In that world, all we will end up with is old ideas in ever shinier boxes.

This is another question, not an argument. And no, I don’t, since it’s impossible to “place” things in the public domain. Your copyright laws make this impossible.

It was a rhetorical question, which I’m sure you recognised. I knew the answer. You need to brush up on your copyright law, it is perfectly possible to put things in the public domain. You simply put something like “This work is dedicated to the public domain where you would normally put a copyright”. If you really believe that intellectual property is wrong, why do you not do this? (Note: I am not requesting that you do, I would rather you were rewarded for your intellectual efforts).

It’s your fault some of my writings are protected by copyright, not mine.

Firstly, there is no “fault”, I do not blame you; I do not require that you gift me your intellectual works. I would not attack you for copyrighting your works — that is your side of this argument, you’ll recall. Secondly: nonsense; at what point have I stood over you and prevented you from writing “this is public domain” on anything you have written? Thirdly: “copyright system I support”, I said no such thing. I said I support the concept of intellectual property, I was quite clear that I do not think the current implementations of it are optimal though. If anything, I believe that current patent and copyright laws reduce innovation and creativity.

I ask about your works merely to point out the contradiction between your stated position and your actions. These “large publishers” who insist on the “old model”, presumably paid you (or if not, they would want recompense for the cost of publishing the work)? It is copyright that makes that payment and publishing worthwhile.

I do not know anything of your personal circumstances. Let me imagine though that you are a full time writer and thinker. If I could click my fingers and remove copyright law from the statue books tomorrow, how then would you make your living? If that avenue was cut off to you (and as you would rightly point out, there is no moral code which requires that writers exist and are paid in this way) would you not have to spend that time on alternative pursuits, thus denying the world those ideas that you currently supply?

Unlike you, I have recognised that my job only exists because intellectual property law exists. If it didn’t I would be out of a job — so what, I am not owed that job, I would find another. But equally, the productive work that I currently do would not be done. The things I create now would go uncreated — so what again, I am hardly changing the world. But that argument applies to every product ever made. Everything a human being has ever created, physical or otherwise, started as an idea somewhere; for a massive proportion of them, somebody was paying the thinker, and they were paying in the hope of recouping their investment.

My main reason for beginning this was to object to your overly sweeping statement “there are no good arguments for intellectual property”. I am certainly no philosopher, and I am sure I will not persuade you, but your logic is unsound, being that one can’t prove non-existence. Perhaps you mean “I have heard no good arguments for intellectual property” or “I am unconvinced by every argument for intellectual property I have been given”?

Stephan Kinsella December 15, 2010 at 4:55 pm

Onus,

“I have no clue how you managed to find my tiny little blog in the vast Internet. You must have spies everywhere ;-) I’m delighted that you have responded.”

spy is called google alerts.

“Isn’t this response equally question begging? “assumed IP is a type of property”; well you’ve assumed it isn’t.”

No. I’m assuming we all already agree that scarce things are property. The question then is: why is this other kind of thing also property.
“Given that in an non-IP world the designer can only gain reward for the very first sale (since every other sale will not exist, since it will simply be copied)”

this is not certain.You konw, I put Libertarian Papers on the web for free, but people still pay $.99 for individual articles on Amazon kindle. Why is that? They could just copy it and eamil it to their kindle.

“my question is how would demand ever be created for that first sale?”

NOt to be rude, but who cares waht your question is? I mean that is not an argument. But see http://c4sif.org/2010/12/funding-for-creation-and-innovation-in-an-ip-free-world/

“I said nothing about the suppression of competition.”

That is what IP explicitly does.
see this post http://c4sif.org/2010/12/ip-rights-as-monopolistic-grants-to-overcome-the-public-goods-problem/

“‘ So…. the purpose of the law is not justice, not respecting property rights, but to put in place incentives to make sure people do enough thinking? What?’

“I feel you’re being purposely obtuse here. The purpose of criminal law is moral justice. The purpose of IP law would be for economic justice:”

how about social justice next?

” if effort is valued,”

value is only demonstrated in action. If someone shows they value it by acting to achieve it, then they value it. If not, not.

” then that effort should be rewarded”

the state needs to make sure you get rewarded for your labor? Hmm, sounds marxoid.

” by those who take value from that effort.”

those who “take value” (whaever that means) from it are free to reward it.

“”As I say it is the effort of creating that idea that was stolen.”

…Effort it … stolen? what?

” Not the idea. You don’t refute that you simply say “I am not stealing effort”. I’m afraid you are. If I spend 10 years of effort, and you spend 10 seconds of CPU time copying, then you have stolen ten years from me.”

Where did I put it?

“You’re right I’m arguing that it’s stealing the money I could have made. However, I’m certainly not saying that I have a right to money in my customers pockets though — they are free to choose to trade, just as in all trade for mutual benefit. It is you who would deny them that choice.”

No, IP deprives them of the choice by letting you outlaw competitors.

Take a listen to my speech here, see what you think:
http://blog.mises.org/15019/intellectual-freedom-and-learning-versus-patent-and-copyright/

“You need to brush up on your copyright law, it is perfectly possible to put things in the public domain. You simply put something like “This work is dedicated to the public domain where you would normally put a copyright”.”

That doesn’t put it in the public domain. You still have a copyright.

a/nd you don’t “normally” “put” a “copyright” anywhere. Notice is not needed. Registration is not needed. It’s automatic. It is literally impossible to “put it in the public domain.” Sometihing is in the public domain only after its term has expired. Period. What you are thinknig of is a universal copyright waiver–but this is not possible the law does not recognize this. This copyright is inalienable. See my post copyright is very sticky

“I would not attack you for copyrighting your works”

the governent copyrights it. not me. I have nothing to do with it. I don’t register it. It’s not required.

Onus Probandy December 16, 2010 at 6:48 am
I have no clue how you managed to find my tiny little blog in the vast Internet. You must have spies everywhere ;-) I’m delighted that you have responded.

spy is called google alerts.

Well thank you; you have introduced me to a service I did not know that Google provided.

No. I’m assuming we all already agree that scarce things are property. The question then is: why is this other kind of thing also property.

This may well be the core of our disagreement, many of your points about competition flow from this.

You say ideas are not scare, and I say they are. You want to treat the fact that a single idea can be duplicated as meaning it is not scarce. I want to treat a single idea as just that: a single idea, no matter how many times it is duplicated. I have chosen that definition because a single idea must be “farmed”, it does not come free of effort. The extraction of a single piece of coal is not free of effort. My reasoning is that a single idea is conceptually identical to a single piece of coal.

Competition between different ideas is fine. Competition over who can implement someone else’s idea the most efficiently completely bypasses the creation of the idea in the first place.

this is not certain.You know, I put Libertarian Papers on the web for free, but people still pay $.99 for individual articles on Amazon kindle. Why is that? They could just copy it and email it to their kindle.

I accept that my generalisation was not universally true, just generally true. However, yours is an unfair example, your customers are a self-selecting group. The sort of person who would read articles that you write, and would be willing to pay for them, regardless of whether they could get them for free, is a probably libertarian who believes that there should be no intellectual property. Would the same thing happen with a design for a new form of turbo charger for a combustion engine?

I would also point out that in a world of no copyright you would be receiving your $.99 at Amazon’s grace. There would be nothing to stop them taking the money from the people who want to read your article and not giving any to you. You would naturally then stop giving the articles to Amazon; but of course in the world of no copyright, they can simply take them from your website and publish them anyway. Your only resort would be not to publish, and then probably not to write.

What is to stop me from copy and pasting your articles, right now, putting my name on them and selling them for $.98 each? If I make anything more than zero on that scheme then it is profitable for me, because it cost me nothing to create, I am simply a parasite on your back.

Not to be rude, but who cares what your question is? I mean that is not an argument. But see http://c4sif.org/2010/12/funding-for-creation-and-innovation-in-an-ip-free-world/

I might just as rudely ask “who cares what your opinion is?” Why did you write this article in the first place — you aren’t a legislator? (As these seem to be a problem for you: the previous are rhetorical questions). I asked it as a question only for you, since it’s you I’m debating, and you answered it. So: “who cares?” … you obviously do. You seem to have taken my question to have “and being that it was mighty I who asked it, an answer is required”. It did not. It was only a question: answer, don’t answer at your option. As you chose to answer, your rude response seems a little foolish.

I don’t really want to expand to debating another article, but from the link you gave:

The case against IP is not hard to make; patent and copyright (say) are artificial state-granted monopoly privileges that undercut and invade property rights.

Erm.. all property rights are artificial state-granted monopoly privileges. There’s nothing inherently wrong with a monopoly privilege — I have that on every piece of property I own. Without the state, what prevents me from turning up on your doorstep and booting you out of your house? To which, I note, you have monopoly privileges. A world where it is who has the greater force determines “ownership” is doomed. As to the infringement of your property rights with my copyright: no problem, simply remove the part I own from your property and there is no infringement. How is this any different from arguing that if you leave your coat in my car, then your coat becomes mine?

“Kickstarter is powered by a unique all-or-nothing funding method where projects must be fully-funded or no money changes hands.” This confirms the observation I made earlier that no-IP would require all of the money to be made in the first sale. I ask again the question that you dismissed: how would demand be created to establish full funding for an unknown product? Before CDs existed, most people would have said “vinyl is fine”, why then would they fund the invention of CDs? Products create their own demand only when they exist. Not every product goes from zero sales to it’s maximum sales on day one. What’s more, the people who make pledges to this kickstart scheme are doing so in a world that has IP law — that gives them security that their money isn’t just being thrown away. That is not evidence that they would do the same in a non-IP world.

Now: I agree that it is not impossible to create projects that are funded in these unusual ways; I am delighted that they exist and that it is possible for them to do so. That does not mean that all projects should or even could be funded like this. Removal of IP law would force your view of business operation on all. That is surely anathema to a libertarian? I do not require you to restrictively license your work, why do you require that I must freely license mine?

“The purpose of criminal law is moral justice. The purpose of IP law would be for economic justice:”

how about social justice next?

That’s an appalling response. Did I say anything about social justice? I’m not sure what social justice even is. Economic justice is fairly obvious though: I should not be expected to create for the benefit of another, and with no benefit for myself. Value for value. Is that not the essence of a free market?

If I spend 10 years of effort, and you spend 10 seconds of CPU time copying, then you have stolen ten years from me.

Where did I put it?

Surely you aren’t resorting to the fallacy of reification as an argument? Good grief, this is schoolboy stuff. Let me explain then: effort, being abstract, cannot be “put” anywhere. Theft, for example, is the misappropriation of goods or services. If you ask me to move a pile of rocks from A to B and then don’t pay me you have stolen effort from me… but where did you put it? You took no property, and the rocks were yours to begin with. There was obviously no theft then? If I get on to a bus without paying, and travel at no cost to myself, what have I stolen? A journey? How can I have? Where did I put it?

(Again, since you have trouble with this: the questions above are rhetorical. They don’t require an answer.)

You simply put something like “This work is dedicated to the public domain where you would normally put a copyright

That doesn’t put it in the public domain. You still have a copyright.

Accepted. I have done a little more digging and found advice that there is no easy and reliable way to put a work in the public domain before the copyright term has expired. This appears to be a jurisdictional problem rather than a question of whether the public domain exists.

That doesn’t affect my original point though: many of your publishers, if not you and if not all, will require that published works are copyrighted with a restrictive license (e.g. not CC0 or CC-BY). If you refused that then they would not publish your work and you would not be paid.

Your whole argument strikes me as similar to the argument of socialists: they have a favoured model of society, that no law prevents them from implementing amongst themselves should they choose, right now. Instead of doing so, they insist that their model be inflicted on all. I do not wish to inflict my model of copyrights on you (if you were arguing that copyright law should explicitly recognise public domain, then fine) — should you want to release all your work with non-restrictive licenses, that is excellent and I am very much in favour of the creative commons, and have used it myself. I am not in favour of you removing my ability to license my work in any manner I wish, and removing my potential customers ability to contract with me.

Stephan Kinsella December 16, 2010 at 8:31 am

I can’t answer all this in detail. I’ve written on this in detail before. I think you need to read up on it. Check out stephankinsella.com/publications, and http://www.c4sif.org/resources.

“You say ideas are not scare, and I say they are.”

But I have explained my definition an its relevance to law and rights.

It if the fact or possibility of conflict that gives rise to the need for norms. So where there can be conflict, there is scarcity. Scarcity can also be called rivalrousness–and everyone agrees that ideas are simply not rivalrous (not scarce, in this sense that is relevant for norm-making).

” You want to treat the fact that a single idea can be duplicated as meaning it is not scarce. I want to treat a single idea as just that: a single idea, no matter how many times it is duplicated.”

I think this is metaphysical and spooky nonsense.

“My reasoning is that a single idea is conceptually identical to a single piece of coal.”

“conceptually identical”? What? Your argument is very confused. I sense you are a smart engineer who, like too many engineers mired in scientism, thinks you can just reinvent the wheel here and figure all this stuff out by brute force, using your existing scientific concepts, metaphors, language, etc. It just doesn’t work that way. You have to think carefully and *systematically*, avoid the over-use of metaphors, and avoid scientism and positivism. (And if you don’t know what I’m talkin about, you need to do some more reading-read Hoppe’s Theory of Socialism and Capitalism).

“I accept that my generalisation was not universally true, just generally true. However, yours is an unfair example, your customers are a self-selecting group. The sort of person who would read articles that you write, and would be willing to pay for them, regardless of whether they could get them for free, is a probably libertarian who believes that there should be no intellectual property. Would the same thing happen with a design for a new form of turbo charger for a combustion engine?”

I don’t know, and don’t care. You are not making an argument. You are asking questions, like a communist citizen afraid of allowing toothpaste competition might ask, “but how will the market make sure there is enough toothpaste?”-the fact that you have questions is not an argument.

“I would also point out that in a world of no copyright you would be receiving your $.99 at Amazon’s grace. There would be nothing to stop them taking the money from the people who want to read your article and not giving any to you. You would naturally then stop giving the articles to Amazon; but of course in the world of no copyright, they can simply take them from your website and publish them anyway. Your only resort would be not to publish, and then probably not to write.”

You don’t konw what you are talking about. Too many assumptions and confusions here to deal with.

“What is to stop me from copy and pasting your articles, right now, putting my name on them and selling them for $.98 each? If I make anything more than zero on that scheme then it is profitable for me, because it cost me nothing to create, I am simply a parasite on your back.”

Go ahead! I don’t mind. Feel free. Seriously.

Now, I suspect you won’t. Ask yourself why you wont. B/c you know you’d look like a jackass and waste a lot of your time for nothing b/c no one wants to buy that stuff.

” Not to be rude, but who cares what your question is? I mean that is not an argument. But see http://c4sif.org/2010/12/funding-for-creation-and-innovation-in-an-ip-free-world/

I might just as rudely ask “who cares what your opinion is?””

You are missing my point. Questions are not arguments.

“Erm.. all property rights are artificial state-granted monopoly privileges.”

No they are not. You need ot read up. Ever heard of anarcho-capitalism? Hellooo

” “The purpose of criminal law is moral justice. The purpose of IP law would be for economic justice:”

how about social justice next?

That’s an appalling response. Did I say anything about social justice? I’m not sure what social justice even is.”

Tha’ts obvious.

” Economic justice is fairly obvious though: I should not be expected to create for the benefit of another, and with no benefit for myself. Value for value. Is that not the essence of a free market?”

The purpose of law and justice has nothing to do with what you “should” be “expected” to do.

Onus Probandy December 16, 2010 at 9:12 am

I give in. Your argument is essentially: “you don’t know enough to see how right I am. Go and read some of my and my friends writings until you agree with me”.

I am definitely not a philosopher, and I am not conversant enough with your subject to know the terminology (I think I understand the concepts though). However, I am an intelligent listener, predisposed positively to libertarian ideas, and I began reading your article with my mind open (honestly, I had no strong views before I started reading). The fact that you’ve put my failure to agree down to my ignorance rather than the weakness (or opacity) of your argument is evidence that you are going to be fighting this battle for a long time.

Thank you for taking the time to answer me though. Despite the fact that we don’t agree, I appreciate you taking the time to respond.

Stephan Kinsella December 16, 2010 at 10:08 am

Onus, it’s just that my time is limited. I don’t have time to walk you thru this step by step; and I really think some of your comments show lots of misconceptions that could be cleared by doing some more reading in some areas where you have gaps. That’s why I suggested some to you. Further, I have already exhaustively treated this subject in writing; there is no need to tailor it to you here when if you want my detailed comments on it you can just consult my writing. Go to stephankinsella.com/publications, under the IP section. I’d suggest you start with my Case Against IP: A Concise Guide. Follow that and the links where it takes you. For more detail, try Libertarianism and Intellectual Property; and then my monograph, Against Intellectual Property. And there are a variety of online speeches, and transcripts of many of them, right there on my site. I guarantee I have dealt with every question and objection you’ve had or will have; and if you want to pore into this and then have particular concrete questions or clarifications then I could address those, either here or in email. sound fair?

And please realize, I just concluded a six week course exploring this IP stuff in detail. There’s a lot to understand. A lot of un-thinking. un-learning, re-thinking to do for those who have unwittingly incorporated a lot of fallacious assumptions into their thought, due to the pervasiveness of IP and related false doctrines commonly held today.

BTW I am an engineer too; don’t take my comments too personally–I think engineers are smart but they are led to dismiss philosophy and become almost anti-intellectual about it, which is understandable since so much of it is bs. So they retreat into the causal sciences which is understandable. But then they start to think of it as the only “scientific” or “rational” model; they start becoming scientistic. This leads them to have fallacious views on the nature of knowledge, and to become positivist and empiricist; they start thinking they can just apply their natural science methods to economics, politics, etc.; they sneer at the soft-sciences and blunder on, trying to use engineering-methodology type “brute force” to solve complicated problems. this almost invariably ends up being mired in scientism; and at best, it leads to time-wasting and inefficient reinventing the wheel (and crankish neologisms too, since they are not familiar with extant developed thought they could have drawn from and worked within had they had the patience to study this first–and the stamina to suffer thru the BS and sort it out and separate the wheat from teh chaff. To do this, IMO, you need a solid grounding in basic Austrian economics including especially its methodology and dualism–I would highly recommend you read Ultimate Foundation of Economic Science by Mises–one of his last and greatest books, very short, and free on mises.org.

For some elaboration of waht is wrong with the engineering mindset, see some of the posts collected here http://www.stephankinsella.com/tag/engineers/

J. Murray December 16, 2010 at 6:51 am

Don’t listen to him. Mises.org employs an army of black crows to fly over the lands and report back to the Eye of Mises.

Michael January 27, 2011 at 10:44 pm

You know, I’ve been exposed to more than one copyright/piracy/intellectual property argument in my day (watching a $550 million business deteriorate to near-zero within a decade due to piracy might do that (the US anime industry)), but I thought I’d look at your list of tired old canards and try to give my view as a layman:

1) “It’s in the Constitution.” Weakly, if so. One might say the concept of IP is simply a function of whether the item has a financial value at all — therefore, the “disputes in a court more than $20″ motif. That’s about all I can see that _might_ be in the Constitution.

Though it does bring up three central views of mine on the argument:

First, copyright is simply and only the right to control dissemination.

Second, without copyright and enforcement, you don’t even “own” the product — it is (as a function of reality) public domain. If you can’t control who disseminates it, you have no power to own the product at all!

Third, without copyright, the concept of IP, and enforcement, there is no IP-based economy. No more entertainment industry as it is today, no more software industry as there is today. In fact, one (and I would guess the blog creator has so concluded) would conclude that the entire existence of said industries is an act of civil and probably criminal FRAUD under an IP-free situation.

2) “The name says _property_.” That’s nice. But does that mean anything? Again, in an IP-free situation, it could easily be considered fraud for you to attempt to sell something at a value it does not have. To say it’s property means it has an enforceable value.

3) “No movies would be made and kids would die without medicine.” I agree with the former (the cost of creation would make it abjectly implausible to continue to make movies in an IP-free argument, much less the costs of what would now be considered legal distribution — and how in Hell would you propose to make back that kind of money without enforcement of a value to consume the product?), the latter is a bit of a stretch.

4) “If you create something, you ‘own’ it.” The only other alternative is to say everything is in the public domain upon the creation of the entity. There is no middle ground. If the creator does now have a right to “own” the product he or she created, then, really, the entity is in the public domain, and so is all the work put in to the entity. Meaning, end of the day, the creator did nothing to better themselves by creating the entity.

Ownership is the central point of the exercise. IP is “interaction rights”. You are quite correct in so stating. That you feel it kooky is a function that you believe the concept of ownership at all is not valid.

If I don’t have the right, as a creator of a product, to control the interaction with the product, I don’t own it. I _CAN’T_ own it. It would be deceptive to the public to claim ownership if I do not have such control.

5) “Generates net wealth.” Can see the argument, but no. For this simple reason: I can see why people would say that it generates net wealth, for the entire purpose of IP is to enforce a financial value and provide wealth to the owner of the product.

However, since that is the entire purpose, it doesn’t generate _net_ wealth, it more generates a wealth that the person is entitled to _as the owner (and, if applicable, creator) of the product_.

6) “IP infringement is theft.” Yes.

You don’t even consider intellectual “property” to have any financial value whatsoever, if I’m gathering your arguments correctly. The facts are that, if IP is “property”, then it (no more or less than a physical product in a store) has an enforced value which you can be arrested (or shot!) for abrogating.

If IP is “property”, then infringing on that property is the same as taking a PS3, a television set, or whatever. That is the central concept of “property” and “ownership”: The owner gets to control dissemination.

What you are saying is that, at least with intellectual matters, there is no such right!

7) Creation of IP through private contracts… That’s effectively what you have with the licensure of anime series from Japan to American companies — and, without the initial product being enforced as IP, that’s fraud too.

james b. longacre January 28, 2011 at 1:24 am

“Third, without copyright, the concept of IP, and enforcement, there is no IP-based economy.”

has there ever been an ip based economy? the constitution says to secure for a limited time…secure writings and discoveries like you would a real-property i guess.

i assume they meant to secure the experiencing of the writings/discoveries as one would secure a rental car and lease out on occasion for profit.

i am not sure what you mean.

but if KFC wanted there 11 herb and spice recipe to stay hush-hush i expect they would contract with those who assemble the necessary spices in bulk (or do it them selves) to not reveal the exact composition of the spice recipe without some penalty. contracted secret keeping or such.

james b. longacre January 28, 2011 at 1:31 am

“This is how kooky all IP arguments ultimately are.”

i myself see the ‘securing’ or propertizing of communication and ideas as one would a real good a restriction on ones own life-expression.

on gold and silver pawn stars the manager always is ‘calling a buddy’ to get an expert appraisal on a pawn item. i expect a synthesis of material formers and idea people would also take hold outside of ip-ish schemes.

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