1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar
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 }

Peter Surda February 25, 2009 at 7:57 am

@heuristic
> Copyright is created naturally by the terms of sales
> contracts such as the typical EULA. That commonly
> happens already; no “hypothetical” is necessary.
Where do you get these things from people? Copyright deals exclusively with relationships that do not have an underlying contract! Contracts and copyright do not have an overlapping area of applicability! The very fact that you pointed out to a contract on an immaterial good confirms that copyright is not necessary.

Seth Cohn July 22, 2010 at 11:35 am

You’re entirely incorrect here. Copyright is enforced as a universal binding contract on everyone under the legal wing. All ‘licensing’ is merely ways to lessen that binding. Whether it is GPL, CC or even an explicit granting to the Public Domain, the default (due to law) position is that copyright is automatic and applies to everyone.

Of course, unless you live in a country that doesn’t sign the treaty, or enforce it.
Then you have a state of anarchy, and you can do whatever you want, until someone realizes what you’ve done, and tries to invoke US law like the DMCA on you, despite you not being covered under it. (Google it, it happens a lot)

Stephan Kinsella July 22, 2010 at 11:43 am

Seth, copyright is not a contract at all–Peter is right.

Peter Surda July 22, 2010 at 12:45 pm

Maybe it is poorly phrased. I think we are talking about separate things. Copyright means that you can apply restrictions to people who did not agree to a contract. It is the analogy of trespass when applied to certain artistic works. In order to apply restrictions to people who did agree to a contract, no IP laws are necessary. Now, it may be that some parts of IP laws regulate the latter, but that is not relevant for a debate about the nature of IP.

Silas Barta February 25, 2009 at 8:24 am

@Cosmin: Yes, I saw it, I didn’t consider it worth responding to at the time, because it’s not a very good argument. You said that the characterization “a second transmission interferes with the first one’s signal” doesn’t apply to ideas.

Well, it does, so there’s not much more to say.

When a second person transmits a radio wave, that interferes — as judged by the first transmitter — with the first radio wave. And, not surprisingly, the same happens when the second person copy’s the first’s ideas. In both cases, there is real physical interaction caused by the second person.

@Greego: Me: “And your inability to understand my point has you going in circles like this again. If there’s no conflict to resolve, why are you arguing against a position?”

You: I’m clearly arguing against an unnecessary government-granted monopoly system as doesn’t solve any inherent conflict in our world (whereas property law does).

??? In what sense does one resolve conflict while the other doesn’t? They both are ways to decide which person’s claim is superior, which is what a solution to the problem of conflict is supposed to accomplish.

I’m coming to the conclusion that you’re either a troll or just too stupid to understand that simple point.

*I’m* the one who’s too stupid to understand a simple point? You’re trying to resolve a *conflict* in favor of a copier, by saying there is no conflict. I’d laugh, but Stephan_Kinsella has expanded that “argument” into ten pages of an academic paper.

@Imagination: Great! So, you’re admitting that there WOULD be profit absent intellectual monopoly. Of course, increased revenue and profit are market signals. Kinda contradicts what you said earlier, though, huh…

So, here’s what just happened:

Me: Lack of property rights deletes market signals…
You: Not true! It still leaves a tiny sliver of the signal left, allowing for the productivity of a kleptocratic regime’s economy! You are wrong wrong wrong!
Me: …Okay, lack of property rights significantly shackles the productivity of an economy. Point “conceded”. Enjoy your Pyrrhic victory.

@Peter_Surda:me: IP is scarce in every relevant sense *because* there are conflicts over it.
you:The only conflict is in people’s heads. It is not empirically observable in nature.

Gee, then how do IP infringement cases ever make it to court?

Frequency usage is exclusive, or if you want it in other words, rival, which means that the rights on them described in the previous sentence cannot be logically separated. Two persons using the same frequency interfere with each others’ ability to use it. This is empirically observable, I recall the communist regime in the country where I used to live jamming “illegal” radio stations.

Peter_Surda, you’re not showing any evidence of having read my argument against this point. There are two senses in which we can speak of rivalry in frequencies:

1) Two people cannot transmit waves at the same time.
2) Two people cannot transmit information at that frequency at the same time.

1) is false, and 2) is true. There is only rivalry in the second sense. Why does only the second one matter? That was the argument, and you’ve shown no evidence of having responded to it. When you do, you’ll have something.

And remember, once you show how people can have a right to the desirable property of “information transmission” in their waves, you’ll prove how people have the right to the desirable property of “exclusivity” in their ideas.

The Mises/Hayek calculation argument …
… is easily refuted by the fact that there are people making money with immaterial non-rival goods without the use of IP. I said on several occasions that I am one of them. I have my own company whose only product is freely downloadable from a website including the source code.

In summary, you either deny that I exist, or are calling me a liar, or are plainly stupid.

No, I just deny that your example is responsive, as I have explained several times. Look, people give away free products all the time, like for samples. People produce physical goods all the time with no attempt to make a profit in doing so. Do either of these refute Mises’s calculation argument? No? Well, then, neither does your example refute the IP calculation argument.

Sure, you’ve found a business model that doesn’t rely on IP rights in your software. Good for you! Still doesn’t say anything about the Pareto improvements that could be realized in the presence of IP.

Silas Barta February 25, 2009 at 9:02 am

You know, I just see the same poor, incoherent arguments for libertarian physical property all the time.

-It’s in the constitution (argument from authority; legal positivism)
-Physical property is *called* property! (argument by definition?)
-No houses would be made and kids would die without food(houses and food have been produced for ages without libertarian property law; and where’s the evidence?)
-If you “touch something first” you own it (despite all the exceptions, and despite the fact that touching 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 like in airplanes flying over farms and forcing life and commerce to a screeching halt)
-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)
-Trespassing is “theft” (even though the owner still has his property, and even though trespassing is just traveling and visiting)
-People “could” create variants of libertarian property via private contracts… (therefore artifical title-granting bureaucracies legislated by a criminal state are … justified?)

Fun, fun.

Peter Surda February 25, 2009 at 9:09 am

@Silas
> Gee, then how do IP infringement cases ever make it to
> court?
According to your logic, if I enact a law which says that there is a pink unicorn, and make it punishable to deny it, the said unicorn becomes empirically observable? Talk about a high level debate :-(.

> 1) Two people cannot transmit waves at the same time.
> 2) Two people cannot transmit information at that
> frequency at the same time.
Both of them are irrelevant. The qualitative or quantitative features of the reduction of the owner’s ability to use his property is of no concern to us. The only important question is whether the reduction is empirically observable.

> I just deny that your example is responsive, as I
> have explained several times.
You are applying the economic calculation argument in a very narrow way. Let us first assume that without IP, the market price for immaterial goods would indeed be zero (I don’t think it will but am trying to make an argument simpler). Just because you can’t market it directly doesn’t mean you can’t market it indirectly, for example by bundling or providing complementary products. In fact even with material goods, it is rare for a transaction to be infinitely divisible, i.e. for every part of it to be marketable on its own. If I wanted to sell one atom of gold, I don’t think I would find a buyer. Absent demand, there would be no price. Does that mean gold is not marketable? Evidence suggests otherwise. For non-homogenous goods, the non-divisibility is even more obvious. Half a CD of your favourite operating system is worthless. Someone might use it for decoration but I doubt they would buy it.

In ideal socialism, you can’t market anything, it doesn’t matter if you bundle it or divide it. In capitalism, you can’t market everything, but by the application of entrepreneurship you can create something for which there is demand, and then it has a market price and you can make money.

In summary, you misunderstand Mises. The ability to market something does not require the ability to market parts of it, neither does it require the monopoly to do so.

You have yet to recognise the difference between the right to use and the right to exclude third parties from doing so. Once you realise that with non-rival goods, these are logically separable and have different effects, you will have to admit your defeat.

Jay Lakner February 25, 2009 at 9:51 am

Hi everyone,

Many of the arguments here are intelligently thought out and well written but unfortunately are based on false assumptions.

Can we please look at this issue in terms of the fundamental assumptions of Austrian Economics?

One of the core principles of Austrian Economics is the right of all individuals to own and aquire property.
If an individual owns an item, then they have the right to use that item for any purpose as long as they do not physically interfere with other individuals.
You cannot be limited from using your property (other than the prevention of interfering with others)otherwise that is a direct contradiction of the definition of ‘your property’.
Copyrights and patents limit individuals in a society from using their property in some particular manner.
Copyrights and patents are therefore a direct contradiction of property rights.
That is, they are a direct contradiction of the fundamental core assumptions of Austrian Economics.

Therefore there cannot be an Austrian School justification for copyrights and patents because, by definition, they are a direct contradiction of the Austrian School itself.

You see what I’m saying? Any argument in favor of copyrights and patents is logically a direct attack on Austrian Economics itself.

Lastly, any Austrian School argument in favour of copyrights and patents must be either self-contradicting or based on a flawed assumption.

Jay Lakner.

crisco February 25, 2009 at 10:07 am

You know, I just see the same poor, incoherent arguments for libertarian physical property all the time.

Not sure what you mean. The earth’s EM field is a physical thing.

Transmitting information by electrically stimulating a portion of the earth’s EM field is a form of use, and thus the used portion of the EM field can be homesteaded. This is analogous to acquiring property rights in otherwise unowned land, for example.

I’m not sure what you’re referring to re: the libertarian position on the physicality of property, but if it means that something has to be physical to be property, then EM frequencies aren’t an exception.

Jason Gordon February 25, 2009 at 10:18 am

@Critical Observer

…IP is a reasonable societal law because it purports to protect the real property rights of capital investments (both labor and physical).

As bank bailouts are “reasonable” since they purport to protect “investments” of capital and credit.

With investment there is inherent risk. If you don’t want to invest your time developing a product — go on someone’s payroll to do the developing — or find venture capital.

Don’t you recognize the argument that IP is an artificial propping up of risk? A distorting intervention that leads to resource misallocation in the direction of less efficiency?

Deefburger February 25, 2009 at 11:01 am

Ok. Time for me to chime in. I love this argument! Many many good twists and turns.

I believe that Branding and Trademark are solutions to part of the argument of ownership. First off, a brand or trademark is a form of IP in and of itself and is, or can be, treated as a “signature”. A signature is a unique mark of ownership. In our current monetary system it is the basis of the creation of money when applied to a loan.

If I am an author, and I produce a work, and I sign it, I can publish it, copy it over and over again at my will. My signature, my trademark, on the product identifies it as having been produced by my hand or my devices.

Someone else publishing my work cannot use my signature without my consent. That would be fraud. Nor can they publish my work with their own signature, as that would be plagiarism.

They can publish with my name on it, as the author, but they cannot represent themselves as me without a contract. That contract will cost them money.

What if it’s Shakespear? What distinguishes my product from my competitors in the market place? The quality of my publication, my brand as a publisher. My Brand uses better paper, easier to read type, good binding. Or perhaps my brand goes the other way and makes it cheaper to purchase with paper backing and small size. How well my brand does will depend on the qualities of my brand as perceived by the market, not the content, assuming the content is already known!

What if my book was written by Tom Woods? What if the market for books by Tom Woods becomes popular? How does Tom Woods benefit from this? If my business is selling books, then I want to sell books written by popular authors. If I want to be first to market with the latest book by Tom Woods, then I need a contract with Tom Woods to put HIS signature on MY books. I need a contract with him to be first to market.Otherwise I have to wait for him to publish though another house before I can release my publication.

Tom Woods is not going to have a book signing sale at one of my bookstores and sign books for me. He’s going to sign the books published with HIS trademark signature in them already. My books don’t carry his signature on the “copyright” page. So nobody is going to expect to find his hand signature on them either. My books are cheaper. His books are original by contract with his publishing house.

Tom may benefit from the secondary market that comes from popularity. As a reader, I may wish to collect High quality publications of his work for my collection. As a publisher of high quality books, I want the right to have his signature on them. Tom Woods only grants that right by contract, and any publication containing that signature without contract is fraud. As a collector, I don’t want a fraudulent copy, I want the real McCoy. I’ll pay a premium price for it too if the quality of the publication justifies the cost.

Suppose I invent a toaster. My toaster works so well that others begin to make toasters like mine. But my toaster has MY signature, MY brand, My trademark on it. My toaster, being the original version of the invention, commands a higher price in the market place because of my brand, provided my brand is associated with high quality. If I continue to build my toaster, with the highest quality I can, the demand for my toaster will remain high, even though it is not exclusive of my competitors. They can make a toaster like mine, but they cannot use my Brand.

If my brand is junk, but the design is sound, I run the risk of having someone else produce a better version of the idea, my toaster. Their brand may win out, because of better quality. What should I do? Sue him? NO! Sell him my inventory in exchange for a share of his operation! That’s all. Perhaps make arraignments with him to produce the next idea I have. Or adopt HIS methods of production and improve the quality of mine.

Be an entrepreneur not a litigator! Protect your Brand, Your Trademark and Your Signature, not your idea. The free idea sword cuts both ways. Your competition does not have any more exclusivity of idea than you do. The difference between competitors is in the quality and quantity of production, not the idea itself. Maintain a reputation for qood quality at a low price and you will own the market for the things you sell. And what makes your things stand out? What makes the market yours? YOUR BRAND.

Yes, you will lose market share to competing brands, but if your brand is high quality, then your competition will disappoint that same market into desiring your brand even more, especially if the idea was a good one, but poorly implemented in the competitor’s brand. He’s doing you a favor!

Brand loyalty. Coke or Pepsi? Can any of you really tell the difference? I can’t, and so I have no preference for either. They have been producing nearly identical products for almost a hundred years, and have been doing just fine. What they have is not a patent so much as a trade secret. It’s not the patent system that protects them, it’s the secret formulas. But secret formulas don’t win the hearts and dollars of the market. Taste, a subjective thing if their ever was one, and brand association is what drives the market, a market dominated by two nearly identical products. The quality of taste is what keeps people buying the same brand, over and over again.

What brand of car do you drive? Why? Do you drive car X because the car maker is the only one who makes it? They are, but is that even a factor in your choice? It is, but WHY is it a factor? What qualities do you attribute to the BRAND of car you drive? Would you buy a cheaper version of it if it were available? Why?

Branding, Trademark and Signature are the key to unlocking the IP problem.

Jay Lakner February 25, 2009 at 11:15 am

@Deefburger

You just described what I have been saying all along. There needs to be a distinction between IP that establishes identity and IP which does not.

Brands, trademarks, signatures, logos, etc do not interfere with property rights. In fact they are crucial to the protection of property rights by establishing the identity of the producer and thus enabling honest trade.

Copyrights and patents, on the other hand, are not used to identify market participants. They do not help protect property rights, rather they infringe on the property rights of others by preventing them from using their property in any manner they see fit.

The problem, as I have stated before, is that all these things have been bundled into the one category, “Intellectual Property”, when they should not have.

Silas Barta February 25, 2009 at 11:20 am

@Peter_Surda:

@Silas
> Gee, then how do IP infringement cases ever make it to
> court According to your logic, if I enact a law which says that there is a pink unicorn, and make it punishable to deny it, the said unicorn becomes empirically observable?

No, the “unicorn denial” is empirically-observable, just like IP infringement or idea-copying is.

Both of them [capability of simultaneous transmission of waves or information] are irrelevant. The qualitative or quantitative features of the reduction of the owner’s ability to use his property is of no concern to us. The only important question is whether the reduction is empirically observable.

Yep, and like above, IP infringement is empirically observable.

You are applying the economic calculation argument in a very narrow way. Let us first assume that without IP, the market price for immaterial goods would indeed be zero … Just because you can’t market it directly doesn’t mean you can’t market it indirectly, for example by bundling or providing complementary products.

Yes, and I already addressed this point in the original argument on my blog. Again, complementary goods only reveal demand for those goods, not the idea. Demand that the knowledge of cure for cancer exists, is not the same as demand for the labor effort (time + difficulty) to implement the cure. People might simply want to *know* how to do the cure, or they might want someone to perform a specific cure. They are demanding different things.

Look at it this way: what if there were no property rights in anything but cheese; up to the final end-product of cheese, anything used in making it, and all other items, are under the “law of the jungle”. Would you agree that there is misallocation and calculational chaos and “non-price rationing” in such an economy? Would it change your mind if I pointed to “cheese bundling” schemes? Didn’t think so.

In fact even with material goods, it is rare for a transaction to be infinitely divisible, i.e. for every part of it to be marketable on its own. If I wanted to sell one atom of gold, I don’t think I would find a buyer. Absent demand, there would be no price. Does that mean gold is not marketable? Evidence suggests otherwise.

Um, what does this have to do with the discussion? You’re talking about a product for which there is no demand, even with property rights established for that product. That simply means that the combined supply and demand schedules don’t allow for it to be exchanged.

That has nothing to do with the topic at hand, which is about the consequences of there being no property rights whatsoever for a specific good (and knowledge of useful patterns is indeed good).

In ideal socialism, you can’t market anything, it doesn’t matter if you bundle it or divide it. In capitalism, you can’t market everything, but by the application of entrepreneurship you can create something for which there is demand, and then it has a market price and you can make money.

Again, this is a distinction between physical and legal possibility. The law in a capitalist system permits ownership and transfer of individual atoms, it’s just that no one wants them. But if that system lacks IP, people will indeed want the informational content of intellectual works that are produced. They will often probably *only* want the informational content, and not the packaging or related goods. But since the system doesn’t have exclusion rights in the goods, there can’t be a market for them, so there can’t be market prices, no entrepreneurs have no basis on which to gage the relative usefulness of producing a cure for cancer vs. producing a new Jazz album vs. growing another apple.

In summary, you misunderstand Mises. The ability to market something does not require the ability to market parts of it, neither does it require the monopoly to do so.

Sorry, but you’re the one who doesn’t understand Mises. There’s no sharp drop-off in the ability to perform economic calculation once the system becomes socialist. It is a continuous change between the two. *To the extent* that a system does not recognize property rights, there is calculational chaos. It’s not all or nothing. If only the road system is socialized the ability to perform economic calculation is hindered, but still largely present. And so on.

You have yet to recognise the difference between the right to use and the right to exclude third parties from doing so. Once you realise that with non-rival goods, these are logically separable and have different effects, you will have to admit your defeat.

No, you need to recognize that rivalry is a function of the desires of the different parties, not of the physical attributes of inanimate matter.

@crisco: Transmitting information by electrically stimulating a portion of the earth’s EM field is a form of use … I’m not sure what you’re referring to re: the libertarian position on the physicality of property, but if it means that something has to be physical to be property, then EM frequencies aren’t an exception.

Yes it most certainly is an exception, since you can say the same thing about IP. Just replace “EM spectrum” with “capacity of reality to instantiate ideas”. By instantiating an idea, I’m stimulating reality so that it has a certain form that I want. If you also do it, you’re messing up the form I wanted reality to have, just like you claimed I did with the EM spectrum.

Cosmin February 25, 2009 at 11:21 am

Silas said:
“@Cosmin: Yes, I saw it, I didn’t consider it worth responding to at the time, because it’s not a very good argument. You said that the characterization “a second transmission interferes with the first one’s signal” doesn’t apply to ideas.

Well, it does, so there’s not much more to say.”

Our debate started when I posted this paragraph:

“IP is not imbedded in any physical object, ktibuk.
And ideas are not property because they are not homesteaded by individuals. There is no entity outside of ourselves, called an idea, that you can homestead.
An idea is simply understanding some part of the world we live in. If you understand something about this world and then use that understanding to build an object, I can more easily understand that same world event by observing the object you’ve built. You can’t stop me from understanding.
My idea and your idea are completely separate, even if they both describe the same event in an extremely similar fashion.”

You never saw this as being worth responding to, but it was worth misrepresenting… You copied my paragraph, replacing “idea” with “radio frequency” or “transmission”.
I pointed out that you new paragraph didn’t equate to mine, since your transmissions or radio frequencies are NOT completely separate.

You NOW claim that ideas can also interfere with each other as they are not completely separate either.
Go back to my original paragraph and tell me, in the context of having defined an idea as “understanding some part of the world we live in”, how does my understanding interfere with your understanding?
It’s akin to saying that your love for your mother is being interfered with by my love for my mother, or my love for your mother.

Silas Barta February 25, 2009 at 11:31 am

@Cosmin: The *intended use* is being interfered with, and that is what makes the cases identical. I had only ever intended the analog of “broadcasting at a frequency f” to be “instantiating an idea i“, since, you know, that’s all that IP ever restricts. If you’re using “idea” just to mean, understanding something from within your brain, then you’re not using it in any sense relevant to the IP, because no one intends to restrict such unobservables.

If I’ve erred, it’s by not correcting sooner your improper definition of “idea” in the context of this debate. My apologies.

Cosmin February 25, 2009 at 11:38 am

Jay and Deefburger,
I also have no problem with trademarks. I’m sure many here agree, it just doesn’t come up in these debates as they are seen as different from IP anyway.
More a question of fraud or misrepresentation.

Cosmin February 25, 2009 at 11:53 am

Silas,
I’m glad we’ve identified the definition of “idea” as the source of our discordance.
I still think, however, that my definition is the one that should be used in this debate.
I think that trying to protect the intended use of an idea is not a noble endeavour, as it comes at the expense of the freedom to act.

Silas Barta February 25, 2009 at 11:56 am

@Cosmin: I still think, however, that my definition is the one that should be used in this debate.

And you’re wrong. Why define “idea” as “understanding” when IP rights don’t attempt to assert ownership over that?

I think that trying to protect the intended use of an idea is not a noble endeavour, as it comes at the expense of the freedom to act.

Ditto for protecting the intended use of a radio transmission.

Jason Gordon February 25, 2009 at 12:00 pm

…trying to protect the intended use of an idea is not a noble endeavour…

Yes, not to mention that using an idea for a new purpose is itself an idea. :)

Cosmin February 25, 2009 at 12:11 pm

Silas,
The fact that IP rights don’t attempt to assert ownership over an understanding tells me that there should be no IP rights.
One can’t have property in an intended use, as it arises inexorably and independantly in other people who have a similar understanding of a certain part of the world.

Silas Barta February 25, 2009 at 12:19 pm

@Cosmin:The fact that IP rights don’t attempt to assert ownership over an understanding tells me that there should be no IP rights.

So, if they did assert ownership over an understanding, then there … should be IP rights?

One can’t have property in an intended use, as it arises inexorably and independantly in other people who have a similar understanding of a certain part of the world.

Good, so one can’t have property in the intended use of transmitting information via radio waves. Cool. So you can have the right to transmit radio waves, but not to stop others from doing the same thing. Cause, if everyone’s blasting waves, gee, that doesn’t seem like scarcity…

Cosmin February 25, 2009 at 12:28 pm

“So, if they did assert ownership over an understanding, then there … should be IP rights?”
No, but there would be a debate. The debate would be lost. And we’d have no IP rights.

Meh, transimission of radio waves is overrated… Protect your transmission better by using wires instead of air, or encoding it, or jumping frequencies, or whatever, if you don’t want it to have interfered with.
The right of broadcasting at a certain frequency seems more like a societal convention than a fundamental right, as opposed to the right to act on knowledge and information from your own brain.

Jason Gordon February 25, 2009 at 12:30 pm

The fact that IP rights [fail] to assert ownership over an understanding tells me that there [exist] no IP rights.

Cosmin February 25, 2009 at 12:34 pm

Thanks, J.G.

crisco February 25, 2009 at 12:41 pm

Yes it most certainly is an exception, since you can say the same thing about IP. Just replace “EM spectrum” with “capacity of reality to instantiate ideas”. By instantiating an idea, I’m stimulating reality so that it has a certain form that I want. If you also do it, you’re messing up the form I wanted reality to have, just like you claimed I did with the EM spectrum.

Who cares what form you wanted to have?

The “desired reality” you keep talking about is a meaningless and crack-pot standard for legitimacy.

Let’s say I were to claim that the fact that you breathe air is interfering with my desire to have the whole of the earth’s atmosphere un-breathed by any other person, ever. It would follow that, therefore, my desire to have a planetary atmosphere that no one else ever breathes is destroying that “reality.” Which is true. So, if any old “desire” under the sun is the guiding principle by which the legitimacy of other people’s actions are judged, then it follows that you don’t get to breathe, and I can use legitimate force to stop you from destroying my desired reality.

That desire is unjust. The crack-pot desire to be the only person to breathe earth’s atmosphere does not magically make breathable air suddenly scarce and rivalrous. You can breathe it. I can breathe it. Your breathing does not interfere with my breathing. Your breathing only interferes with my INSANE and totally unjustifiable “desire” that no human being ever breathes earth’s atmosphere but me.

crisco February 25, 2009 at 12:46 pm

It would follow that, therefore, my desire to have a planetary atmosphere that no one else ever breathes is destroying that “reality.”

Meant to say: “It would follow that, therefore, my desire to have a planetary atmosphere that no one else ever breathes is destroyed by the fact that you are breathing.”

Larry N. Martin February 25, 2009 at 12:55 pm

Silas has just about convinced me…

…that there should be no ownership of electromagnetic frequencies!

Deefburger February 25, 2009 at 12:55 pm

@cosmin
The point of my comment was to show that patent and copyright are unnecessary. Brand, Trademark, and Signature are the only forms of IP that are required, and they are negative rights, not positive rights, and therefore have the benefit of legal implementation without the need for external governmental protections. I attempted to show that the market place is the true battle ground for any idea, whether you have some state mandate to exclusivity or not. I tried to show that the market has it’s own solutions concerning the creation of salable product that have nothing to do with any state mandates.

Entrepreneurship is all about the creation of salable product, the building of Brand and Trademark recognition, and the continued viability of the business as a whole, not the protection of an idea. The litigation over patent and copyright is an unnecessary expense and serves no useful purpose whatsoever except that it is needed because the state interferes in the market by issuing positive rights. Such rights are WRONG and complicate things to ridiculous degree. Positive rights protections require enforcement, and so require the state. Free Market capitalism has no need for the state, and can function on it’s own.

Negative Rights are the only rights that make sense in a free society. They are self-evident in nature and easily dealt with in court should a violation be obtained. In the case of IP, Brand, Trademark and Signature are devices of identity and are the only forms of IP that CAN be owned exclusively.

Take my name for example. Deefburger is a name I created. There is almost no one else out there that uses it. There is one other person, and they invented it too. Their story is different from mine, but other than him, there are no others. I have logos associated with my version of this name. I own the domain deefburger.com. I have branded the name Deefburger. Unless the other guy starts selling product with this name, I have no qualms about his use of it. If he tries to compete with me in the market place using my Trademarks, then we have a problem. I’m not going to go sue the guy because he came up with the same nonsense name I did. It is my product, my Brand, my identity surrounding the name that is my right. I have established the name as my brand, my signature. Google the name, and you will get page after page of – ME. For the other guy, it’s a login name he used on a forum once. For me it is my identity, and the identity of my products.

It is the uniqueness, the identity in the market place that makes a product desirable or not. Not the idea alone. It is the qualities of production, taste, etc associated with a brand that has value, not just the idea behind the product.

Only the negative rights associated with Identity are needed!

Go make a NAME for yourself!

Cosmin February 25, 2009 at 1:22 pm

Deefburger,
I didn’t disagree with you. I’m sorry if you got that impression. My post meant to say that there are more people agreeing with you than those who have maifested themselves. It’s just that many may not speak up because they don’t consider Identity part of the IP debate. But you’re right on as to its place in society and the marketplace.

Russ February 25, 2009 at 1:40 pm

One has no ownership right to an idea, i.e., to a discovery, only to an invention, the creation of X that did not exist in nature on its own before the person created it.

One has ownership to a particular formulation that has a material/physical manifestation. (E.g., no one can own “quantum physics,” but a writer has ownership of his particularized and physical presentation of that idea.) We are not ghosts. We exist in a physical world.

Without the input of a person’s mind, _no_ property of any kind would exist. The intellectual component involved in making “oil” into a “value” is no different in kind that the intellectual component of an author in making 100,000 words a “value” by placing them in a particularized order and publishing a book (electronic or physical) that contains his individualized presentation.

A fundamental “right” is primarily about the ability to choose how to _use_ a particular X and less about the X itself.

As Rand said, an IP declares that what is essential to production of values is _thought_, an idea, and not merely the physical effort required to produce it. The latter would endorse the “labor theory of value,” a theory incompatible with freedom.

As for how long a copyright or patent should be granted, that is a matter for debate. But the for the life of the creator and, perhaps, X years after his death seems a reasonable place to start.

Deefburger February 25, 2009 at 2:00 pm

@cosmin – Sorry Dude, I didn’t mean to imply you were wrong! LOL.

You are absolutely right. The debate seems to always fall back on the legalities of present Patent and Copyright Law, which are positive rights. Instead, we need to look more closely at how true IP in the form of negative rights, as in Identity, can be used legally, implemented in a framework of Law that requires no enforcement by the state, yet allows for reasonable argument in court should a conflict arise.

Peter Surda February 25, 2009 at 2:06 pm

@Silas
I think I need to go more slowly.

Violations of IP do not impact the ability of the “property” holder to use the said “property” according to his wishes. The “impact” is not empirically measurable, therefore is all made up. The only thing we observe is that people get excited and engage in legal battles, which is a completely unrelated thing. However, for non-IP, or if you want it, for rival goods, such as your favourite, the EM spectrum, the impact IS measureable, for example by hearing static in your radio. You don’t even need to be a physicist to do that.

Now back to Mises. As you undoubtedly know, in ideal socialism, NO capital good has a price. This prevents economic calculation. That however does not imply the opposite approach, that in all possible cases, all capital goods must have a price. Rather, it is sufficient that by applying entrepreneurship, one is potentially able to market a capital good which has a non-zero price (e.g. by making it into a rival good). I think it was either Dr. Kinsella or Drs Boldrin&Levine that argue that it is practically impossible to use “pure IP” decoupled from any non-rival goods, as an object of transaction. There is some merit to the argument, because even data transmission requires energy, observing someone’s machine requires light, etc. If this is true, it would mean that the the market price can never be zero anyway.

Stephan Kinsella February 25, 2009 at 3:04 pm

Greego: “Silas … I’m clearly arguing against an unnecessary government-granted monopoly system as doesn’t solve any inherent conflict in our world (whereas property law does). I’m coming to the conclusion that you’re either a troll or just too stupid to understand that simple point.”

Heroic!

Stephan Kinsella February 25, 2009 at 4:14 pm

John deLaubenfels writes:

“a copyright protects a completed work that the world would most certainly not enjoy except for the efforts of its author.”

So? But-for causation does not imply property rights. This is absurd.

“To take a copy of such a work without paying the author’s asking price is theft, pure and simple, and no amount of hand-waving can wish that fact away.”

It is not a fact at all. It is just your opinion–a bizarre, bare assertion. And calling it theft is just another way of stating that there are property rights in such ideal objects, which is question begging.

You are basically asserting this: if there is an idea that would not exist but for my originating it, I own the idea. This does not follow at all.

“People such as Kinsella bring discredit to the organizations which embrace them, and in the end I have no doubt that their morally bankrupt ideas will reside in the dustbin of history.”

Re “morally bankrupt”: Randroid alert!

Alexander S. Peak February 25, 2009 at 4:17 pm

I always capitalise the word Liberty, is that “crankish”?

Regards,
Alex Peak

Critical Observer February 25, 2009 at 4:35 pm

Jason Gordon:

“@Critical Observer

…IP is a reasonable societal law because it purports to protect the real property rights of capital investments (both labor and physical).

As bank bailouts are “reasonable” since they purport to protect “investments” of capital and credit. ”

I congratulate you on your ability to form straw man arguments. If you had quoted the next sentence of mine, you would see that’s not at all my line of logic. My next sentence reads:

“Go ahead and argue about its morality, its efficacy, whatever.”

I was responding to Cosmin, whose rebuttal to my argument in favor of IP as an idea in general was an irrelevant piece about Chinese medicine.

“Don’t you recognize the argument that IP is an artificial propping up of risk? A distorting intervention that leads to resource misallocation in the direction of less efficiency?”

Sure, IP is a “propping up of risk.” Hell, because it’s enforced by a government, it’s even “artificial” if you would like to call it that. I would hope you would at least be consistent then though and say that all property rights are an “artificial propping up of risk.”

In a world where people steal physical products I make (how about chairs?), the government is promoting risk by providing an incentive structure for me to make chairs that exist in the real world because I will own them. Ye gods, no! How will we live with this “artificial propping up of risk?!” Think of all the “misallocation” that will occur if people actually think the fruit of their labor will be defended by the government! I mean, this Critical Observer dude should really not be shielded against the people who could come into his home at any minute and forcibly take the chairs he makes, because that would mean that the government is deciding that he actually owns those chairs. Once again, gasp, omg, gasp.

My seething sarcasm aside, the argument for protecting IP (which I have outlined many times earlier) is just in preventing these metaphorical chair-stealers. So far, most of the arguments against my logic (besides the quite funny “Because Mises said so”) are basically moral statements approximating:

“You can’t steal that which doesn’t exist and intellectual property doesn’t exist.”

Well, let’s say I make a whole lot of chairs and consume three years of my saved income making them. Or, I come up with the specifications for a powerful cpu that uses 1/10th the wattage of those on the market and, in doing so, I consume three years of income. If a thief comes into my house and steals the schematics for my cpu, should I be less pissed or morally outraged if he took the chairs instead?

Of course not.

Yes, if the chairs are stolen, I no longer have that physical material. I also am out the cost of all the food, energy, and rent I consumed when producing those chairs. But are we to believe that only physical material has value? Did the labor not have value? Did the artistic craftsmanship have no value?

Let’s ask the same question with my hypothetical cpu. If that thief sold that invention to Intel, should I have no moral ground to stand on because, after all, I could have sold that to Intel too? I have lots of moral ground to stand on–those are my schematics! Not just the paper they’re printed on–all the equations, the figures, the experimentation and the work which came up with the discovery as well. This man stole three years of my livelihood, three years of consumed property required to sustain me while I made them, and untold years of income which would be the fruition of that investment (much more money than a chair maker as well).

Apparently, many people here don’t think that matters. The arguments against me are bleeding with forceful moral arguments, yet that scenario I just described doesn’t resonate with their moral compass, because the information contained in those schematics isn’t “real.”

It’s fine to believe that, but if a person believes that will produce an optimal production of innovation and goods, he/she is deeply ignorant of both human and institutional nature. If it was likely that the ideas would be taken by the “collective,” the incentive structure breaks down. Paranoia abounds in the no-IP world; inventors become hesitant to make mutually beneficial partnerships because any of their partners can produce the goods after they have been designed….. it is a bad, bad world.

Deefburger February 25, 2009 at 7:20 pm

@Critical Observer -

I don’t think anyone would argue against the assertion that the schematics are your property. And in the current world of IP they are salable to some entity like Intel. But they must remain secret to be of value to you and you alone. That is the nature of knowledge. In the world of No-Patents protection, the idea would require the use of Non-disclosure Contracts in order to secure Venture Capital to produce the chip yourself, or, the use of the same contracts, along with your credentials and a working prototype to sell the Idea to Intel.

In the world of IP protectionism, you are totally screwed by the theft, because unless you patented your design, Intel would as soon as they received the schematics and You would be hosed. No recourse, and no legal means to obtain Venture Capitol and build your own compeating design, with your own idea! Furthermore, you would be barred from creating ANY similar design ever again.

In the non-IP protectionism world, you would still own your idea, and would be able to compeat with a the same design using your own capital or the production services of an Intel competitor like AMD or Nvidia. Your superior design skills are still marketable commodities and further designs by you would also be marketable.

In the non-IP protectionist world:
Yes, the thief is a bastard, but your idea is not a chair, you still have it and can still use it. and there
is nothing the thief or their client can do to stop you from using it, improving it, and possibly usurping their market share.
You still have options.

In the IP-protectionist world:
YOU ARE HOSED! THAT is the REAL theft!

Peter Surda February 26, 2009 at 3:56 am

@Deefburger

The relationship between secrecy and IP is well known and has been subject of several research studies. A lot of them are quoted by Boldrin&Levine. The results indicate that businesses prefer secrecy to IP. This of course doesn’t automatically mean IP is bad, it just explains that the underlying decisions are determined by the equillibrium between the cost/revenue comparison of two functions.

heuristic February 26, 2009 at 4:36 am

Greego writes:

>>
Private IP contracts don’t protect the original creator against third-party copying, so they’re not really the same as current IP laws. For example: I purchase a copy of a piece of software from you, and sign something to say I won’t make copies of it. Then someone breaks into my house, makes a copy of my copy and then lets it free onto the net. Unless it was specified in the contract that I would be liable for any copies of my copy made against my will (in which case I doubt I, or anyone else, would sign it and also it would be extremely hard to prove that it came from my copy), the private copy protection scheme has failed and you have no legal recourse against the perpetrator who distributed it against your will. Only I would be able to claim damages against him for breaking into my house.
<<

Greego, you are trying to use an extreme case “lifeboat situation” to argue for/against the general case. That is false of course. One might call that the straining-at-gnats-fallacy.

I already acknowledged that there is a minority of dishonest people. And obviously such people will not only flout their own word given in sales contracts but also freely exchange material that they know has been acquired by such dishonoring of contracts by someone else.

An honest person would not knowingly trade in something stolen by someone else and use some legalistic argument that because they themselves didn’t steal it then they haven’t done anything wrong. Everyday observation of ordinary decent people suggests that they people don’t go through such legalistic, rhetorical gyrations in order to maintain a facade of being an honorable person. They don’t do that because it is simpler, and consistent, to just deal with others honestly and avoid liars and thieves.

Thus IP is naturally derived from contracts.

newson February 26, 2009 at 5:48 am

to critical observer:

even in a land of competing jurisdictions, certain people would enter into mutual compacts to protect physical assets they deemed to be theirs. to have ip enshrined in only certain districts is to guarantee that copying will occur in ip-free areas. so, in effect, you’re arguing for standardization and centralization of both legal codes and policing.

this is, in fact what we witness in the present, bad, bad world. large countries apply intense pressure to parts of the world where ip is less actively policed.

go team usa, world police!

Mike Cuneo February 26, 2009 at 8:05 am

The argument of “well who would innovate, sing songs, or make movies without IP??” is probably my favorite, just because it’s so easy to crush.

The main reason is it misses the point entirely. The truth is, we don’t know for sure who would innovate, sing songs, or make movies, but there is strong anecdotal evidence that songs/movies/artwork would keep improving and expanding without IP. Blogs, youtube, the iPhone etc etc all make this easier and more user-friendly.

Obviously companies and individuals are simply tailoring their actions to the reality of the situation, and when it comes down to “should I dream up new/creative ways to make money or distribute my music, movies, art, etc or just let the state effectively force people to choose from the limited selection that conforms to IP laws?” it’s smart business to just allow the state to effectively market and shut other, smaller players out of the market via IP. Ethically wrong, but smart business.

Look, people will ALWAYS look for ways to game the system. This is part of the reason “stimulus plans” cannot work, because people respond to incentives and play the game with the rules we have in place.

No real accountability? Spend tons of money on trash cans ($1,100 trash cans with Mayor Luke Ravensthal’s name have appeared in Pittsburgh. How people have allowed this to happen is mind boggling. You can get durable trash cans for a fraction of the cost, and it’s a huge advantage for the Mayor to have this free advertising, paid for by taxpayers. Plus I will never use the trash cans so why am I forced to pay etc etc.)

Don’t know how I got on the topic of $1,100 trash cans, but yeah I’m getting more and more upset each day with politics, the media, and basically everything except what I read here and places like LewRockwell.com

Deefburger February 26, 2009 at 10:55 am

I was having this argument with my wife last night. She’s Pro-IP-Protection. She admitted to the problem of the “stolen” plans getting tied up in a long legal battle that would undoubtedly end up in favor of whoever had the most money.

Even if the plans were “protected” by a patent, the legal battle that would ensue from the plans falling into the hands of a major monied competitor would effectively remove any “protection” that is supposedly granted by the patent. This reality is similar to the blow-back that occurs from prohibition. Just because the use of the stolen plans is wrong, and possibly provable in court, doesn’t make it viable option in reality. The legal battle itself can cost more than the investment in time and materials that was “lost” when the plans were stolen!

In the case of prohibition, the prohibition itself creates market forces that some will find irresistible because the prohibition increases the risk associated with trade in the prohibited commodity. Thus a black market arises that is outside the law, and the profits from the dealing in that market are much higher because of the prohibition.

In the same sense, the protections granted by patent and copyright have a similar back-lash effect when unscrupulous dealings are afoot. The cure winds up being worse than the disease!

In the world of patent protection, a stolen idea becomes unusable by the originator because of litigation, or because of use of the patent office if the idea was not yet patented. The wronged party cannot get venture capitol to compete because of the litigation. He can’t produce his own version because of the litigation. He has no options unless he has the money to litigate with and the money to produce with in spite of his rival having a copy of his plans.

So the original problem of lost competitive advantage in the market place is replaced with a greater problem of no recourse in the market due to risk of pending litigation and a large and lengthy and expensive court battle. Nice solution to an otherwise inconvenient market set back.

So, anyone want to explain to me how much better the “protections” of patent law are in reality than the inconvenience of a competitor “stealing” an idea in a world without patent? Go ahead, make my day!

Greego February 26, 2009 at 11:37 am

heuristic:

My example isn’t extreme, it’s illustrative – it only takes one breach and the material is available for everyone to see and copy themselves, and out of the protection of the original ‘private-IP’ contract. The basic point is that something equivalent to our current form of IP can’t be derived from contracts because the parties to a contract must be a finite number of people or entities – to be the same it’d have to apply to everyone in a legal jurisdiction.

Michael A. Clem February 26, 2009 at 3:17 pm

My seething sarcasm aside, the argument for protecting IP (which I have outlined many times earlier) is just in preventing these metaphorical chair-stealers.

Chair-stealing? If the chairs are stolen from you, then clearly, you no longer can use them because the thieves are using them. Scarcity. But suppose you come up with a new design for a chair, and then make and sell chairs based on that design. Somebody legally buys one of your chairs, and likes it so much he copies the design to build and sell his own chairs, copycat that he is. Is the design of the chair IP? Has he “stolen” your design, and thus prevented you from using the design? After all, how much time and effort and other resources did you use while working on the design? Non-scarcity–his use of your design is not preventing you from using your design. So do you have a right for the government to step in and stop him from making chairs with your design, even though he legally acquired the chair that he got your design from? What if he looks at your chair and actually improves on the design?

Gary Hall February 27, 2009 at 5:10 am

@Michael A. Clem:
“So do you have a right for the government to step in and stop him from making chairs with your design, even though he legally acquired the chair that he got your design from?”

I am yet to hear a response to this question that convinces me wholly that IP is necessary. I’m open to suggestions, though.

Today I saw a small aside in the newspaper about an ‘innovative’ sandwich bag: http://boingboing.net/2008/09/16/sandwich-bag-has-fak.html

I am a third party who has no contract with the innovator: I merely saw it in the newspaper. I have a green marker pen and a sandwich bag. If this mouldy-looking-sandwich-bag idea is protected by IP, then I can’t copy it with my own sandwich bag and marker pen?

Same applies for the dog leash poo-bag: http://www.patentstorm.us/patents/6035809.html which is just as cheaply copyable with bits around my house.

Granted, these ‘innovations’ are pretty trivial but surely discerning a ‘worthy’ innovation would be subjective.

Imagination February 27, 2009 at 6:45 am

Silas:

“By instantiating an idea, I’m stimulating reality so that it has a certain form that I want. If you also do it, you’re messing up the form I wanted reality to have”

You wouldn’t happen to be quoting from “The New Age Guide to Libertarianism” now, would you?

Chad Rushing February 28, 2009 at 3:03 am

Someone explicitly requests that you not copy their works, even if you own a physical object with those works encoded in/on it, so you voluntarily honor that request out of respect for the requestor. What is so complicated about respecting the explicit wishes of others?

No government coercion of any kind is required, and the principle of respecting the explicit wishes of others who create things would work even in an anarchistic society.

There is such a concept in reality as conditional ownership of physical objects even though many anti-IP individuals wrongfully deny such a concept exists. Parents may give their teenager a car, but that does not mean that the child is then allowed to give it away to a significant other, drag race with it, or set it on fire for kicks. The ownership comes with preset limitations. (I strongly suspect that there are those in the anti-IP camp who simply cannot stand the idea of there being any external limitations placed on their actions by others.)

If a book, CD, or DVD I purchase comes with the printed limitation, “Do not copy,” then I am not going to copy it regardless of whether there are any legal ramifications to doing so because I respect the wishes of the persons who are providing to me that information or entertainment encoded on it. If I do not agree with that limitation on the ownership of that physical object, then I should surrender ownership of it by selling it, giving it away, or just destroying it. It is as simple as that.

Gary Hall February 28, 2009 at 6:56 am

@Chad:

You must have skipped a few comments. Please look at my last post, and others pertaining to it, then posit a solution to the uncontracted 3rd party problem. Preferably, a solution which does not violate private, physical property rights.

I have absolutely no argument with limited-use contracts, provided there is consent from all involved, of course.

Julien Couvreur March 2, 2009 at 4:58 pm

Hi all,

I find this discussion on intellectual property quite thought-provoking.

I do wonder: what would a society look like without IP protection (copyright, patents)?
In that world, wouldn’t the author of a book spend months creating literature, only to have it put for free on the web by anyone with a scanner or patience?
Similarly, wouldn’t engineers and inventors spend a lot of time to research, find and design technical solutions to hard problems, only to find them replicated by an entrepreneur trying to spare some R&D investment?
On the other hand, no IP enforcement clearly helps the inventor who independently comes up with a similar solution.

I guess many of these scenarios can be solved by use of contracts. Is that the hidden point in Kinsella argument?

When you buy a CD or a book, the item would come of a “non-copy” or “limited-copy” contract. The same could be done with items containing technology.

Cheers,
Julien

Gary Hall March 4, 2009 at 8:44 am

@Julien Couvreur

“In that world, wouldn’t the author of a book spend months creating literature, only to have it put for free on the web by anyone with a scanner or patience?”

As I understand it, yes.

“Similarly, wouldn’t engineers and inventors spend a lot of time to research, find and design technical solutions to hard problems, only to find them replicated by an entrepreneur trying to spare some R&D investment?”

If the entrepreneur could find the solution path without resorting to violating property rights, yes.

“I guess many of these scenarios can be solved by use of contracts. Is that the hidden point in Kinsella argument?”

I believe so, although you would have to ask him.

“When you buy a CD or a book, the item would come of a “non-copy” or “limited-copy” contract. The same could be done with items containing technology.”

I would suggest so, although Stephan Kinsella posited an argument that they would be indistinguishable from non-contracted third-parties. Personally, I think the argument was needlessly contrived but the source I read was paraphrasing.

Etaoin Shrdlu August 1, 2010 at 2:49 am

I realize you are trying to push your side of the argument, but this has to be one of the dumbest articles I’ve ever read on the merits of IP rights. Somehow, you failed to call your opponents “a bunch of poopy-heads”; perhaps your next blog entry will address this inadvertent omission.

Hope you enjoyed the latest (and final) round of Bilski as much as I did.

Dean West September 10, 2010 at 10:24 pm

There is a good argument for intellectual property. I speak of the concept, not the government laws.

It is theft. And I know the counter arguments from Mr. Kinsella, a man who copyrights his material and has his name on it, in seeming defiance of his own position. It is claimed that it can’t be theft, because you still have your original manuscript, someone just made a copy. That you can still enjoy the book you wrote or that the medical procedure you came up with can still help you and your family. Why mind that others have it, there is no value in the non-material, right?

Wrong. Clearly there is value in the idea itself, apart from the materials that display it or show it. Am I speaking of the labor theory of value? No, quite the opposite. In fact, the falsity of the labor theory of value shows the real intrinsic and objective value of the book or idea copied.

The book or idea has an extra value assigned by the copier! The copier could copy anything, he has his ink and paper lying about, or he has a computer with enough memory. He is presumably seeking something that is worth copying, he does not as a rule spend his time copying words from the dictionary or graffiti he saw on a wall.

He is making a choice as to how best invest his resources. Shall he copy something worthless, or something that he could easily come up with himself? Or is he going to take a labor avoiding short cut, and copy another man’s work? Typically, he chooses to take the other man’s work. What is he doing then but stating “I know this is non-material thing is valuable, valuable apart from the paper and ink it is on. It will make my life in some way more enjoyable or better. I could invest the years the author did and create my own fiction book or medical procedure, but as this man’s already done the work, I’ll take it from him and give him nothing in return.”

Now I understand the arguments that “What if there is a cure for cancer on that paper?”, but if we replaced that with “What if there was a cure in a bottle?”, we’d all know to pay the price or go without. Those words on paper with a cancer cure are not simply worth the penny for the page and the micro-cent for the ink. They are “worth” what the seller wishes, and given how many years of effort it takes for a written cure versus a graffiti on a wall, one imagines it will cost more than the paper and ink price. Though in a robust and large market, perhaps not much more, so long as all pay. After all, a book in America costs about one minimum wage hour. That was not always so, and certainly wouldn’t be if 95% of the readers of the book chose to just read over the shoulder of the 5% willing to buy it.

As a counter argument, there is the alleged problem of “If we say another can’t copy, we are infringing on his right to do as he will with his ink and paper! We’re exercising ‘control’ over his property!” Golly – preventing a man from using his ink in way that he could not have come up with on his own? I suppose then that if a ballet dancer doesn’t show me her latest dance for free, she’s “controlling” my body by not letting me see what it might be able to do. Wow. I guess I need an attorney now.

However, that “argument” overlooks that even the most rabid anarcho-capitalists and propertarian must grant that such rights to control your property exclusively are not infinite in application. I have never heard yet that in a free market society those who own farmland with oxygen producing plants on them could charge a fee to those who own desert land with no such plants. Yet are not the desert owning people making use of oxygen that is coming in part from the farm owning people? Are they not “controlling” some of the oxygen – a solid, material value – generated by the property of others?

At the end of the day, some can create and some cannot. We all know this. Anything then that justifies there being an “equal right” of creators and non-creators is stampeding away from the free market, and rushing into egalitarianistic socialism. The real “equal right” is this – both creator and non-creator have the right to put pen and ink to paper as they will. But one doesn’t have the right to take the idea of the other. Your right to your use of ink is not infringed by me denying you that which you could not copy but for me having made it.

Peter Surda September 11, 2010 at 7:40 pm

First you say that you reject the labour theory of value and then proceed to say that an author invests more labour than copiers and therefore deserves more than them. Wow what a sophisticated argument.

Tom G. October 28, 2010 at 8:41 pm

I am but a simple writer. I write things for a living. A lot of what you very smart people–except for the Rand stuff–is over my head, admittedly.

I have a question, however. EX: I write some things for an advertising agency, let’s say. And, we have a contract for work for hire. HOWEVER, if they DO NOT PAY ME, the contract is null and void–there are no codicils which indicate they own the work even if they don’t pay me.

However, THEIR client is using the work. They are benefitting from it. They are happy with it.

Now, if there are no intellectual property rights, am I just out all my work, labor, and work product? If it were a car that I had agreed to sell on time, and was not paid for–and was subsequently sold to a third party (ANALOGY WARNING) I would be able to reclaim the car.

What are my rights under IP and what are my rights under copyright law?

Naturally, as someone who creates works, I am a proponent of those works being my own in terms of both control of them, and payment for them.

Comments on this entry are closed.

{ 1 trackback }

Previous post:

Next post: