In the hundreds of emails I’ve received over the issue of intellectual property, the number one most common objection to doing without goes like this. We can’t subject the matters to free market competition. Some innovations are too easy to copy. Just one look or listen and the producer’s idea is taken from. Then another company that had nothing to do with bearing the costs of innovation will be able to reap the rewards. We have to have a period of monopoly if only to inspire people to innovate and bring things to market.
Now, consider first what a central-planning apparatus this entails. A vibrant and enterprising economy will consist of hundreds if not millions of innovations per day. Our work lives, no matter what field we are in, are all about doing things better, bringing better products to the world, stepping forward into a future in which ever better stuff is ever more affordable. That requires unrelenting innovation.
If you are to establish a government office to keep tabs on this activity, that alone is going to require massive bureaucracy. If the bureaucracy is charged with granted monopolies for all these things, the business of enterprise is going to find itself in an amazing tangled. If we find that society works at all, it is precisely due to the absence of such tangles.
Consider also what the above critic presumes about how markets work in world without intellectual monopolies. Consumers all sit around wanting something and wanting to pay for it. It could be a new song or a cool painting or something as simple as a q-tip. Entrepreneurs all over the country know that consumers want these things but they refuse to bring them to market for fear of being copied by the next guy. As a result, everyone just sits around doing nothing.
Is this really a realistic scenario? All experience suggests that in a vibrant economy, entrepreneurs are going look for unmet demands. This is what they live for. IP is not necessary to bring about this result, else there would have been no economic growth in the entire world until recent years when IP began to its march to ubiquity.
All these arguments really come to down to yet another market failure argument, the idea that unless the government comes to the rescue, market players will just sit around confused while the economy does down the drain.
All market failure arguments have the appearance of plausibility about them. Let’s say you have a poorly managed apartment unit with a porchlight that is out. Everyone would benefit from having the bulb changed. But if one person benefits, so does everyone. All dwellers enjoy the light and only one pays. That’s not going to work, is it? No one would act. Except that at some point, someone comes along and befuddles the failure theorists by changing the lightbulb.
So it is with markets and innovation. It is just a plain fact that many products come to us every day that are not patented. Look at a Kleenex, I mean, a facial tissue. Any paper manufacturer can make one. The Kleenex company was first to make the big time, and it has stayed on top through relentless innovation in design. So we have fancy boxes of every shape and size, tissues with oil in them, tissues with smells, and various colors and things. The company is still on top.
Boldrin and Levine give the example of TravelPro, the suitcase with wheels. Every company can replicate it. But TravelPro stays on top through new design and marketing.
Everyone has to marvel at how Arm and Hammer stays on top of the baking soda market. Talk about easy to replicate. And yet the company practically has a market monopoly, and has held it for many decades. The innovation here too is relentless: toothpaste, deodorant, cleaning products, you name it.
You can try this at home. Think of any company that has an open-source product that continues to make money and stay up top: Tupperware, Red Hat, Band Aid, Firefox, Tylenol, Bayer, Hershey. It is a long list, nearly infinite.
The competition is fierce. How do they deal with it? The model is always the same. Get there first. Stay on top through marketing. Count on brand loyalty. Innovate. Explain your superiority. Never rest on your laurels. Move forward and watch the competition carefully.
It is interesting because another market failure argument posits even that there is a reverse problem than the one used to defend IP. It suggests that the market has a “path dependence” problem, that once people get stuck on one technology or brand name, they have too high a hump to get over in order to move to one that is otherwise obviously superior.
Both can’t be true.
The defenses of IP share a trait in common with all claims that the free market can’t work. Hayek called it a kind of constructivism. We can’t imagine how a market might solve a particular problem so we conclude that the market must fail in this instance. It’s good to look outside the window and observe how the market solves the problem every day in ways we don’t expect.
There are a thousand possibilities for how producers deal with being copied even in digital media. If we open the market up to competition, we will see more innovation in book publishing and movie making, as every more goodies are piled on the consumer to earn loyalty and a range of options are made available. Consumers win, competitive producers win, and all without government privilege. What’s not to like?
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to silas barta:
you’re getting off message. your contention that ip gives huge pareto gains is unsustainable. there’s an internal contradiction.
pareto gains can only occur in the context of free-trade in a state of anarchy. two individuals trade for perceived benefits, no one else is affected. coercion (be it from the state of some other party) necessarily means someone suffers disutility.
please no more linking pareto gains with ip. stick to arguing that ip’s pros outweigh its cons.
Silas, it seems then that you are a defender of the status quo: according to you, the present IP laws are both necessary and sufficient for a happy society. Right?
newson: I answered that already in my previous post. Just answer the reasoning presented there. I also have already showed you why:
-IP doesn’t imply state enforcement of IP.
-The restriction you gave on when Pareto gains can occur is just wrong, and it assumes your conclusion.
-If IP rights exist, then certain transactions that are welfare enhancing are possible that are not possible in the absence of IP: a creator can create an idea and “sell” it, making himself better off as well as the people who have access to that idea. Without IP. the creator wouldn’t have the opportunity to make it, and the others would not be able to access the idea at all. So, that’s a clear example of how IP leads to a Pareto improvement.
Dmitry_Chernikov: You must not have read a single thing I posted on this issue in order to conclude that. How on earth did you come up with that?
silas barta says:
“And there’s no “huge state apparatus” required: just as there can be private law enforcement, there can be private IP enforcement, funded by insurers a violators.”
so why are you advocating for state-administered ip?
so why are you advocating for state-administered ip?
I’m not.
Any other words you want to put in my mouth?
silas barta says:
“The restriction you gave on when Pareto gains can occur is just wrong…”
how could coercion be compatible in any way with pareto gains? coercion must mean someone suffers. the state means coercion. so the state shaping a buy/sell transaction disqualifies it from being a pareto gain.
checkmate.
Silas, I came up with that, because I suggested that you play the role of a law-giver and tell us how you would structure the IP laws, yet you did not seem to have responded (unless you did elsewhere). I mean, it really is fairly useless to have an argument between “pro-IP” and “anti-IP” people, as if this were a grand battle of totally incompatible ideologies. Perhaps a paper from you would be of interest.
@Dmitry_Chernikov:Sorry, all I got out of that was, “No, I can’t substantiate the claim I just made up, but I bet I wrote more papers than you!!!!”
Let me know when you have something substantive to add to this discussion.
@newson: how could coercion be compatible in any way with pareto gains? coercion must mean someone suffers.
You really don’t know?
Okay, for starters, property rights involve coercing others not to use your property.
See why the topic isn’t so simple, Rothdroid?
silas barta says:
“Okay, for starters, property rights involve coercing others not to use your property.”
defense of property is not coercive. coercion is the act of aggression. coercion annuls pareto improvement, because the interaction is not voluntary. someone must suffer. the state is coercive.
ip codes enforced by the state preclude pareto gains/betterment/optimization/improvements.
seems straightforward to me.
Rufus, your argument that you can’t have a reputation without trademark law is very bad. I addressed it specifically in this post tonight: Trademark versus Copyright and Patent, or: Is All IP Evil?. Please read and educate yourself.
Barnett’s comments were dead-on. He is of course correct that “the idea that someone can own patterns of language, light, sound, motion, text, shape, etc. is … ludicrous.”
Think of it this way: the normal libertarian is in favor of rights to scarce resources, assigned in accordance with the Lockean first-use homesteading principle.
IP-tarians believe there are rights in the way property is used. Thus, normal libertarians say that if I homestead a tract of land, I get to use it, and if someone else wants to, they need to get my permission. I’m the owner of that land. I can do whatever I want with it, so long as I’m not committing an act of aggression.
IP-tarians, by contrast, say that if you are the first person to think of a way to use or arrange or pattern your own property then you now own that way-of-using-property across the whole universe. This is what it means to own a pattern, idea, information, etc. And it is of course incompatible with libertarian property rights, since it gives the owner sweeping rights to control how others use their already-owned tangible property. This is why it amounts to an undermining or transfer of property rights. Now this is so facially ridiculous and unjust that the IP-tards resist putting it this way, and evade and squirm and deflect and talk about radio spectra and fact that you can’t calculate without state-legislated monopolies and artificial scarcity, and so on.
But this is what they are in favor of.
Thus, when Barnett astutely points out that: “Intellectual Property is a ridiculous fiction designed to impede competition by granting special ownership privileges to specific persons which interfere with the property rights of the masses,”
Silas, one of the leading amateur IP-tards gadflys (along with Sasha and ktibuk) retorts,
“Oh, and who happened to coincidentally be the sole reason that such a pattern is usable. (Hey, kinda like land homesteaders!)”
Silas here seems to assume that pattern-rights are what are the basis of real property too. But it’s not. It’s simply appropriating a previously unused resource, in such a way as to publicly mark it as yours–by transforming it by purposive use, embordering it, and so on. The right is not in a pattern, it’s a right to use the resource itself, grounded in the fact that the first user has a better claim by virtue of his first use than any other person, who is necessarily a latecomer with respect to him (and thus has to have an inferior claim). By contrast, your IP rights are rights in patterns, or in all ways-of-using property.
“Sasha,” returning from a welcome long absence, writes, “If a third party (outside of contract) uses other person’s work of authorship without the owner’s expressed permission, he is committing a trespass and is liable for tort if an injury results from such unlawful action. … people who knowingly purchase unauthorized copies (property of copyright holder based on point #1) are liable for purchase of stolen goods.”
The problem here is the IP-tard equivocates on what they mean by “use” and “property” and “good.” They sometimes use “property” and “good” to refer to the information or pattern itself, which is obviously question begging (though the IP-tards can’t see this, even though it’s obvious). Or, they just argue by definition, saying that if you (say) learn of the plot of a movie you have never seen then if you make a sequel, you are “using” the “plot” or the “property” of the original movie producer without permission. More question-begging.
If on the other hand the IP-tard here sticks to ownable, tangible things, then his argument falls apart–for the third party need never possess any piece of property owned by the author or inventor. For example if Lucas writes the Star Wars screenplay and loans it to Richard Harding on condition she not show it to anyone or tell anyone about it, and Person overhears Richard Harding blabbing about Obi-Wan and Luke Skywalker at a cocktail party, then Person is not trespassing against any property of Lucas’s if he makes a movie incorporating some of these ideas. The IP-tards cannot see that the only way to hold Person liable in this case is to assume that information is itself property, which is of course question-begging.
As to the comment that Mises’s “Ownership means full control of the services that can be derived from a good” supports IP–this is either taken out of context, or it’s mistaken. Businesses routinely have costs of exclusion. That’s the way the world works. Drive-in movie theaters had free-riders sitting outside, watching the movies for free. Ownership of the theater did not give them any “right” to get money from these freeriders. It did give them the right to remove the loudspeakers and replace them with little speakers for each car, even thogh this cost some money. If this cost had been too high, then the theaters would have had to suffer the loss, or come up with other ways to reduce the free rider drain. Or go out of business. That’s life.
Another perceptive comment of Barnett’s, that the IP-tards are “extending rights into the realm of the non-physical”.
In what is a supreme case of irony, the IP-tards, who want to belittle the propertarians’ “fetish” with the “merely” physical, real, scarce world, to insist that that’s not “all” there is–that there are “ontologically” “many types” of things (see on this Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors and comments to Trademark and Fraud)–we can have property rights not only in mere base physical matter, but also in “other” things–other “types of” things–that we “create”, like poems, songs, novels, programs, ways of holding hands, ways of pinching on a multi-touch surface, and so on. And yet, and yet, though they want to treat this “higher realm” as equally (or, truth be told, more) deserving of legal protection as mundane physical property (that we don’t even create, after all, pshaw! we just find it, in fact, we are not responsible for the land value, so let’s have a Single Tax!)–though they act as if this pattern-realm is “just as” “real”, just as “deserving” of protection as the lowly physical realm–note that they are never content to enforce these lofty rights with lofty idea-force from the idea-realm. No–after denigrating those of us who restrict rights to scarce resources, to real, physical things, they themselves always, without fail, want to use real, physical force, against the real, physical bodies of infringers, to stop or punish them, or to extract from them real, physical monetary payments. A bit of hypocrisy and confusion there, eh?
It reminds me of various mathematical transformations, as when electrical engineers shift to the “imaginary” realm to do various calculations, and then when done, we shift back to the real realm–but the difference is we don’t delude ourselves that this imaginary realm of imaginary numbers is real, or anything more than a convenient way to do calculations. The IP-tards for some reason get confused when thinking about the patterns we give our property–they can’t seem to realize that just because these patterns are what makes our property more useful or valuable does not mean there is a property right in the value or property (rather, it is in one’s property’s physical integrity); nor do they understand that just because imposing a certain configuration on your property, or using it in a certain way, is useful, does not give you the right to monopolize all such configurations or uses of any property in the universe.
This is a really interesting discussion but it is clearly stated above the comment box to ‘Post an intelligent and civil comment’. Why, then, are there so many ad hominem attacks all over the place?
I’m trying to learn something valuable and I find that I’m having to do a mental search-and-replace for terms that add nothing but vitriol to the discussion.
Silas here seems to assume that pattern-rights are what are the basis of real property too.
Wow, Stephan_Kinsella, of the few points of mine you addressed here, you couldn’t even get them right. In the part you were quoting, I was showing one similarity between the two rights, and it was because they were both pattern-rights. The point — which would be very simple to understand if you actually read those two lines — was that IP and property rights are similar in that the resource is usable specifically because of the actions of its homesteader. A land homesteader makes a resource usable by being the first one to use it, and the IP homesteader makes the idea available by being the first to instantiate it such that without him, no one would be able to use the resource.
Please, try to respond to the *exact* arguments I make instead of the nearest match in your database.
Oh, and just a friendly reminder:
IP-tarians, by contrast, say that if you are the first person to think of a way to use or arrange or pattern your own property then you now own that way-of-using-property across the whole universe. This is what it means to own a pattern, idea, information, etc.
Yes, and by this definition, Stephan_Kinsella counts as an IP-tarian because he believes in a right to a way-of-using-property, at least when it comes to EM spectrum rights.
@Gary Hall
Well said. This debate has been raging for a really long time, though. All considered, things have remained relatively civil, but I suppose a little more civility wouldn’t hurt.
@Silas Barta
When the use of a resource is subject to an instantaneous limit, use by latecomers may deny use to homesteaders.
The informational capacity of the EM spectrum in a given region is finite. When additional users broadcast on a spectrum already in use, they may deny current users of their continued use.
What this has to do with intellectual monopoly is beyond me, but I very well may have missed something important.
Yes, Drake, it is beyond you and you did miss something.
Specifically, what is the connection between “informational capacity” and your rights? Why does the fact that the EM spectrum have informational capacity give you the right to stop others from broadcasting on it? Why does the justification of property reference “informational capacity”?
Once you justify such a connection, you will see that the same argument can be used to justify IP. Give it a go.
@Silas Barta
“Specifically, what is the connection between ‘informational capacity’ and your rights?”
What is the connection between the fact that only one person can wear my hat at any given instant (cranial capacity) and my right to wear my hat at any given instant? If I am not to be excluded from wearing my hat whenever I want, others necessarily MUST be excluded from wearing my hat whenever they want. This is due to the nature of my hat and not the result of arbitrary theorizing.
If we define property rights as the right to USE resources, exclusion only comes into play when use DEPENDS on it. In other words, I’m defining exclusion as a DERIVATIVE of the right to use, not a right unto itself. If the first broadcasters on an EM spectrum have a right to USE that spectrum, they may exclude others only if doing so is NECESSITATED by the nature of the spectrum itself (i.e. limited informational capacity).
Feel free to try and use that argument to justify intellectual monopoly.
Dr. Kinsella,
thanks for taking time to respond:
You say:
“they (IP-tards) sometimes use “property” and “good” to refer to the information or pattern itself, which is obviously question begging (though the IP-tards can’t see this, even though it’s obvious).”
What about serious defenders of copyright, who never made such claim… Even in school, IP advocates always claimed that an idea cannot be copyrighted — only a real form of authorship (tangible and one that can be owned) can be subject to copyright.
I’m not sure that even statists are so obsessed with “idea ownership.” To quote US copyright office:
“Only the actual expression of the author can be protected by copyright. The ideas, plans, methods, or systems described or embodied in a work are not protected by copyright. Thus, there is no way to secure copyright protection for the idea or principle behind a blank form or similar work or for any of the methods or systems involved in it.”
Dr. Kinsella said:
“For example if Lucas writes the Star Wars screenplay and loans it to Richard Harding on condition she not show it to anyone or tell anyone about it, and Person overhears Richard Harding blabbing about Obi-Wan and Luke Skywalker at a cocktail party, then Person is not trespassing against any property of Lucas’s if he makes a movie incorporating some of these ideas.”
Absolutely true! Copyright should not protect a movie not yet filmed. However, if you pick-up a Star Wars DVD, for which you only purchased some limited use (paying $14.99 instead of millions for co-ownership rights) — than we have a violation of free-market contract. Even if you find that DVD on a sidewalk, you still don’t become co-owner of that valuable property. That’s all.
“Businesses routinely have costs of exclusion. That’s the way the world works. Drive-in movie theaters had free-riders sitting outside, watching the movies for free.
It’s their choice of profession Dr. Kinsella… some business models just work like that. Some young bands give their music online for free as a way of promoting their future albums and concerts. Some authors provide free online access for their books, just to make more money from people who like to read classic, paper editions… But that business model does not work for everyone, and it surely does not disprove anything I said about free-market copyright protection.
You may claim that Mises’s definition is taken out of context, but in whatever context you place it, basic truth still holds:
“Ownership means full control of the services that can be derived from a good.”
You may limit the scope of what “services derived” means… but however you define it, copyright protection still holds for two reasons:
- Authors have an unalienable right to sell only limited use of their works, thus limiting many things you can do with their works (including replications)
- Authors can sue for damages if a third party (a non-customer) ever picks their work and uses it in a way that causes economic injury to them.
In other words, you by arguing with “IP tards,” you completely miss the entire point of copyright, while unintentionally misrepresenting what the authors would be able to do in a completely unhampered free market.
Best regards.
Mike,
you misread what I wrote. Every owner of a work of authorship has a right to form a contract with another party, in which they would agree that any unauthorized copies will become the property of copyright holder. If a third party knowingly purchases bootleg copies (that are now legally property of the copyright holder) — he is in fact purchasing stolen goods and he will use other person’s property without owner’s approval.
I made a clear and fine distinction between copyright violation made by those who purchase only a “limited use” of a work of authorship — and those who simply trespass (use it without owner’s permission). However, implied contract is enough to protect copyrights. If ownership by definition means the right to control services that can be derived from a good, that would include any unauthorized copies as well… Any other definition of ownership rights would be absurd. However, I chose not to expand this argument, because i already covered it here:
http://blog.mises.org/archives/009365.asp
Best regards.
Silas Barta:
There are so many problems with your reasoning it’s hard to know where to start. If you would try to come up with a coherent, positive account of rights your errors would be glaringly obvious. But: first: the analogy is terrible, first, as I noted above, because “making a resource usable” is NOT what the homesteader does, NOR is it why he is its owner. Second, in the case of scarce resource we have something that is subject to property rights; and as it’s previously in an unowned state, the question is when it becomes owned and who is the owner (the first user has a better claim than latecomers, is the libertarian view). IP is not a scarce resource and not a homesteadable thing in the first place; to assume it is is at best question-begging. So, third: the IP “homesteader” is not a homesteader at all.
And fourth: the “IP homesteader” does not “makes the idea available by being the first to instantiate it such that without him, no one would be able to use the resource” — in the case of patents, for example, the patent right exists even when the guy is not the first inventor, even when others invent it independently, even when the idea’s “time had come” so that it would have been invented by others. In this case, you can’t say that without the innovation no one would have been able to use it. Either you don’t understand the IP right you defend, or you are defending some alternate theory of IP that you don’t know how to articulate. This is typical of IP advocates. The primary ones who know what they advocate are IP lawyers and they are blatantly, cynically biased and self-interested. Now, you’ll do the typical IP-tard dance and say, “oh, no, we don’t advocate THAT”–every time we point out one of the many injustices of IP you crawfish and wiggle out of that. You pretend not to favor any of the obvious injustices that are inherent in any patent system, leaving us to wonder waht you do favor; but you have no idea what you favor and can’t articulate it.
Fifth: Even if it were true that without a pattern creator others would not be able to use that pattern–so what? From this it does not follow that he has a right to prevent them from using their property in a way they have learned from others. You are against learning, Silas.
Sasha Radeta:
I don’t konw exaclty what you mean. If they claim that putting a pattern on their own property gives them a right to prevent others from putting similar patterns on their property, then that has the same flaws. If they don’t, they are not advocating IP.
this comment is typical of the IP advocates. You must be unaware of what copyright is–it’s a bundle of rights, including “derivative rights.” So you seem here to now object to derivative rights being included in copyright. Fine by me–this denudes the notion of coyright down to a wisp of itself–and trust me, your fellow IP advocates will go nuts objecting to your (presumed) proposal to eviscerate it this way.
You guys are just confused about the monstrous and complex law you endorse. You want to have it both way.s. You want to object to the bad parts, all the manifest injustices we point out, yet maintain a pretense of defneding *some* IP shell that is left, without specifying what the hell it is. Must we catalog every single injustice of IP law, and get you to grudgingly conceded this, too, is bad, until we eradicate it all? Can we not think in principle?
But that doesn’t get you there. Unless you ensnare third parties, IP falls apart. It can’t get off the ground. So if you don’t suggest this, then you are not supporting IP law.
The point is that the existence of free riders does not prove anything. The fact is that businesses have to deal with this by creative exclusion techniques. Not by state-legislated artificially created scarcity rights.
The problem here is that information is not always connected to a particular scarce resource, so that it’s easy for information to get into the public domain. Then you cannot stop it. Like us real libertarians, information wants to be free. We have no right to stop learning, the spread of information, and emulation. Nor should we want to–emulation and konwledge and learning are good.
I happen to have a very good understanding of what copyright law and patent law are. I also know what the arguments in favor of it are. They are mostly unprincipled and utilitarian; or they are insane and unhinged, like Randian and Galambosian arguments.
If you support that kind of copyright, you are wrong. If you support something else, then don’t call it copyright.
Dr Kinsella,
you still haven’t addressed real issues here… If an author can contractually prevent his consumers from replicating his work of authorship — while at the same time get protection from unauthorized use (trespass) by non-customers — you are in fact admitting that copyright (yes, copyright) would exist under completely unhampered free market.
If you deny the very definition of copyright and you would rather argue with “IP tards” — please continue without me.
Best regards.
Not straightforward to say thank you, me english not so properly ? but these actually very good. Very good study to practice English.
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