Kevin Carson has just released his Intellectual Property–A Libertarian Critique. I haven’t had a chance to read all of it yet, but from a quick skim it looks good, and with a title like this–and given that IP is turning out to be an insidious tool wielded by the state to destroy and re-route wealth–it’s worth looking into.
Source link: http://blog.mises.org/9946/kevin-carsons-intellectual-property-a-libertarian-critique/
Kevin Carson’s Intellectual Property — A Libertarian Critique
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Thanks, Stephan.
Stephan Kinsella recommending a Kevin Carson book (essay?). I thought I’d never live to see that day.
I always got the sense that despite some major differences, Kinsella greatly respects Carson as a thinker.
‘fess up kinsella, it was you who wrote the conclusion:
‘”Intellectual property†is theft. Smash the state.’
call me vulgar, but this analysis strikes me as poor economic analysis:
“The same goes for Nike’s sneakers. I suspect the amortization cost of the physical capital used to manufacture the shoes in those Asian sweatshops, plus the cost of the sweatshop labor, is less than 10% of the price of the shoes. The wages of the workers could be tripled or quadrupled with negligible impact on the retail price.
nike’s profits would drop in the absence of i.p. protection, but that would have no impact on its offshoring policy. and companies only pay the minimum wages they require to obtain a certain productivity. why should nike pay one cent more than it has to for foreign labour, even if it does get a helping hand from the i.p.brigade at home? this is like saying bank workers should get a pay rise because their employer is getting bail-out money.
aside from that, carson’s done good!
Well at least this is one area in which Carson and Kinsella can probably find a lot of common ground.
Dennis and Brainpolice, you’re right. My comment was half tongue-in-cheek. The encounters between left-libertarians and Kinsella I observed on the net weren’t too friendly, but they probably agree on many things
How exactly does Nike use I.P. to its favour, newson? What impediment stops other shoe makers from making their own brand of sport shoes with a similar build but with a different brand? It’s akin to saying that Ferrari is unfair because it produces fancy sports cars and this somehow stop others from making fancy sports cars. Last time I looked there are cheaper sports shoes for those who don’t want to pay extra because it has a four letter ‘n’ word.
to gil:
well, you should read the short paper, as the example is carson’s not mine. but try putting a tick on your cheap joggers and just wait for the attorney’s letter.
carson is suggesting that nike is able to reap extraordinary profits by dint of its trademark, and i agree.
“The new digital copyright regime has done away with many traditional limitations on copyright”
New problems arise from the enforcement of copyright in the digital age. Digital Rights Management or DRM requires access to Higher priveledges in the users computer system than the user himself, and it requires access to the parent company on an ongoing basis in order to function.
This opens a doorway in the user’s computer system for malicious access and control. It is my guess, just from the evidence I’ve seen in my work, (successfully removing Rootkit Infections), that these draconian measures taken to enforce the copyright holders supposed “Right” is dircectly causing the loss of adequate seccurity for the user.
This software takes over the users machine. The user has less control of their own system than media owners. This software is then compromised by hackers to serve up their own content, whether the user wants it or not.
I suspect that it is the DRM that allows OSX to get infected in what would otherwise be a very secure system. This same “problem” of protection of the vendor, rather than the user, is at the root of the problems with infections in Windows as well. WGA is a DRM mechanism for protecting Microsofts interests, and is the direct cause for almost all of the conversions I’ve done to Linux, which has no successful viruses or the ability to run DRM code.
The police state within our own machines is the source of our infections. A microcosm for the problems associated with outside control. Freedom may be less convenient for the user at times, but is much more comfortable in the long term, and less vulnerable to abuse.
Positive Rights enforcement is anathema to free use and exchange. If you are using systems that support Positive Rights enforcement, then you do not own your own machine, someone else does. It’s not really your system, it’s Big Brother’s system, and he’s “Doing you a favor by keeping you honest”.
Remember this the next time you pay for Internet Security, purchace a DRM protected DVD or CD or Music file. Your security has been compromised in order to protect some nameless, faceless person or institution. Their right to no “piracy” over your right to secure computing.
“The new digital copyright regime has done away with many traditional limitations on copyright”
New problems arise from the enforcement of copyright in the digital age. Digital Rights Management or DRM requires access to Higher priveledges in the users computer system than the user himself, and it requires access to the parent company on an ongoing basis in order to function.
This opens a doorway in the user’s computer system for malicious access and control. It is my guess, just from the evidence I’ve seen in my work, (successfully removing Rootkit Infections), that these draconian measures taken to enforce the copyright holders supposed “Right” is directly causing the loss of security for the user.
This software takes over the users machine. The user has less control of their own system than media owners. This software is then compromised by hackers to serve up their own content, whether the user wants it or not.
I suspect that it is the DRM that allows OSX to get infected in what would otherwise be a very secure system. This same “problem” of protection of the vendor, rather than the user, is at the root of the problems with infections in Windows as well. WGA is a DRM mechanism for protecting Microsofts interests, and is the direct cause for almost all of the conversions I’ve done to Linux, which has no successful viruses or the ability to run DRM code.
The police state within our own machines is the source of our infections. A microcosm for the problems associated with outside control. Freedom may be less convenient for the user at times, but is much more comfortable in the long term, and less vulnerable to abuse.
Positive Rights enforcement is anathema to free use and exchange. If you are using systems that support Positive Rights enforcement, then you do not own your own machine, someone else does. It’s not really your system, it’s Big Brother’s system, and he’s “Doing you a favor by keeping you honest”.
Remember this the next time you pay for Internet Security, purchace a DRM protected DVD or CD or Music file. Your security has been compromised in order to protect some nameless, faceless person or institution. Their right to no “piracy” over your right to secure computing.
http://games.slashdot.org/article.pl?sid=09/05/13/168230
An interesting /. discussion on DRM with some good quotes and links. I think Jeffrey Tucker should read though this, he’d find it interesting.
Well, its true that it will be illegal to compete with Nike by producing joggers with a big tick on the side, and therefore true that, insofar as providing shoes with a tick on the side is concerned, Nike have a legal monopoly. I can’t imagine that it would earn Nike much more than a competitor, all else being equal, though, unless it was because Nike had developed a good reputation and brand first, so copying their logo would increase sales due to that. Of course, marketing your good as a Nike good when it is not would be fraud.
On the other hand, brands and trademarks keep firms accountable to a degree – a few years ago, the Nike logo itself was used in a media campaign about work conditions in contractor’s factories. In that case, having a big tick on the side of the shoe would have lost the company income.
Even the author recognizes the fact that the pharmaceutical patents are outliers. However instead of investigating the reasons for that he chooses the usual IP-socialist path of gross misinterpretation.
In fact only a miniscule part of R&D is spent on IP and government “funding” is avoided as lepers.
If you are interested of a more realistic story of AZT you can read it here: http://www.scribd.com/doc/1049/The-History-of-AZT
Draw your own conclusions. Can you?
Good point, Andras.
I’ve only had time to read bits and pieces of it throughout, but I think it’s the best libertarian anti-IP piece I’ve seen so far — not that that’s a high bar, mind you.
I like that it brings in an angle I hadn’t even thought about before, about how mutualist production incorporates “collective intelligence”, which makes it the closest I’ve ever seen any IP opponent come to tackling the calculation problem. Since Kevin_Carson didn’t write about collective intelligence for that reason, obviously he didn’t cover much, but he’s given an idea of the kinds of arguments you can make.
Overall, a useful contribution to the discussion, even as I disagree with most of it. I’ll have to write a review.
andras says:
“In fact only a miniscule part of R&D is spent on IP and government “funding” is avoided as lepers.”
care to substantiate this?
to andras:
carson doesn’t hold pharmaceuticals as an “outlier”, as you maintain. that was the view of the expert witness, f.m. scherer, whom carson cites in a 1985 ftc hearing. carson’s skepticism regarding this “supposed exception” is quite apparent.
working in the drug industry, shouldn’t you be prefacing all comments with a conflict-of-interest disclaimer?
i’m going to read the azt article, in any case, notwithstanding my aversion to both ip and government-funded research.
Newson,
IP is established at the preclinical level. At this stage the cost of a drug is less then 20% closer to 10%. Even up to here, the cost of IP is negligible comparing to chemistry and pharmacology thus the claim that the majority of the R&D cost is IP is totally false.
Pharma is a highly professional business. Any governmental meddling is watched with suspicion knowing that their help is not free. Even academia is considered highly amateurish or dilettant. Though some of them are great specialists they cannot move out of their field of expertise and incapable of integration as they are living off of government grants.
I think a good comparison is that even banks want to pay back their loans to get the government from their back.
Silas,
You definitely have to write your piece.
Usually anti-IP ignores the calculation problem all together.
This is another typical socialist attitude: have your cake and eat it, too. They calculate as if nothing had happened after the market has been obliterated by them.
Newson: “working in the drug industry, shouldn’t you be prefacing all comments with a conflict-of-interest disclaimer?”
You are the only one who replies and you know as I have admitted several times.
On the other hand, I am an inventor, a thinking human and as such I think have the right to protect my ideas.
Shouldn’t every social engineer have this disclaimer? Even Rothbard wanted to keep some of the copyright as he was living on copyrighted material. What is wrong with wanting to live from your expertise.
to andras:
i believe rothbard exposes himself to a similar criticism. nor do i think his copyright ideas make sense.
the disclaimer is not for me, but for others, who may not know you are an interested party.
there’s nothing wrong with trying to monopolize your ideas, as long as you don’t drag everyone else into the subsidization of same via taxes and regulatory framework. but we’ve danced this dance a thousand times before…
“. . . nike is able to reap extraordinary profits by dint of its trademark, and i agree. ” – newson
I thought businesses had the right to their own business identity? Are you saying other shoe companies should have the right to put ‘nike’ on their shoes because it was their own materials and labour?
I’ve read more of Carson’s piece. A few nits:
1. The repeated pejorative use of “corporate” as an adjective. … when it’s almost always unjustified, unexplained, and unnecessary… and gratuitous. e.g. “So about 90% of the price of that new Minolta comes from tolls to corporate
gatekeepers,”. “In an economy where software and product design were the product of peer networks, unrestricted by the “intellectual property” of old corporate dinosaurs, 90% of the product’s price would evaporate overnight.” “the ownership of proprietary content to become untenable as a basis for corporate institutional power;” “A major component of the business model that prevails under existing corporate capitalism” “To manufacture generic replacement parts for a car or appliance, in competition with the corporate dealership, is likewise illegal.” “It’s hardly coincidental that the dominant industrial sectors in the global corporate economy are all heavily dependent on “intellectual propertyâ€:” “It is necessary to pay the enormous expense of obtaining a patent in order to enforce the continued public domain status of one’s own invention, and keep it from being stolen by corporate pirates.”
What does their “corporate” status have to do with this? It’s evil either way. Seems just unnecessary and gratuitous, to me.
2. The strange lack of reference to Boldrin and Levine, given the last section on practicalities like whether IP is needed to incentivize innovation.
3. The Kindle example is outdated already, to an extent; Carson says “If the reader falls afoul of Amazon’s good graces, they’ll disable his reader by remote and make the e-books he already “owns†utterly worthless.” Let’s leave aside the almost paternalistic whining about this–people buy kindles with open eyes. But already, Kindle’s new large-size reader supports native PDF files, which is a huge threat to the official copyright purveyors. This is what the iPod (controlled and locked down as it is) did to the music industry by supporting DRM-free MP3 files. Likewise, if the textbook publishers, say, are too restrictive or abuse their copyright monopoly to charge too high a price for normal kindle versions of their books, students will just put free pirated PDFs of the books on the kindles. This threat will help tame the copyright parasites. So kindle is good, in many ways.
As for the comment above that at least finally I can agree with Carson on something–this is silly. Carson is anti-state and that is a huge zone of agreement. We both agree the state distorts the market–e.g. via road subsidies, and should not; and that it should not grant corporate status; and that many firms have unclean hands, and are unjust to the extent they e.g. employ or encourage eminent domain and the like. Where we disagree is on things like: the value of the “left” libertarian label (I think it’s incoherent and useless); predictions about what a free market would look like; the extent and nature of the distortions wrought by subsidized roads and state incorporation statutes (I think Carson et al. have not proved their case, that it’s mostly guesses; that incorporation statutes have not affected much; that road interference has harmed everyone but that there would still be roads and international commerce absent the state). And some of them have a penchant for the left-Marxian jabber about wage-slavery, alienation of labor, etc. I view most of these disagreements as fairly insignificant. The most significant would be their hostility to Lockean homesteading and their (in my view unlibertarian) tying of property rights to “occupancy”-to me this reduces property to possession and is tantamount to redistribution of wealth.
to andras:
having read the article, i see that azt was first synthesized at the michigan cancer centre under a nci grant. so how does this fit in with your reasoning?
objectivists will be amused at “galt-magnon”, carson’s primordial innovator.
@Stephan_Kinsella: You know, you and I have a huge range of agreement and disagreement too … so, is a libertarian IP sympathizer better or worse than a libertarian leftie anti-corporatoid?
to gil:
companies don’t have “rights” to their identity. customers may possibly have recourse if they have been defrauded in their purchases.
but that would be a case-by-case thing, in my view. for example, if a buy a rolex from a street vendor and pay $50, i don’t think i could make a case for fraud. i also don’t think that these knock-offs seriously threaten rolex’ status. (there’s a vast amount of information available to enable potential purchasers to sniff out fakes, anyway). caveat emptor.
companies could invest more in branding (ie the “real” nike is only available in certain retailers, or has a hologram label etc).
Newson,
I don’t see any problem though our views are different.
The synthesis itself is quite mechanical, any generic company can do it. Although AZT could not be patented as a composition of matter as it was already public (or close to be) Burroughs Wellcome could rightfully patent its use after assaying their compound library and identifying it as active. Here, strangely the FDA collaborated, usually that is not the case. The majority of pharma R&D goes to satisfying their capricious demands. I am sure, the cost of developing AZT was still a few hundred million dollars, anyway. Usually a price of a composition of matter patent hardly exceeds a few million at the discovery level. Had B-W had to acquire the rights this cost would have been still negligible.
“And some of them have a penchant for the left-Marxian jabber about wage-slavery”
No, we are just consistent with American individualist anarchism, which gives priority to self-employment and worker cooperatives (resolves labor problem).
“The most significant would be their hostility to Lockean homesteading and their (in my view unlibertarian)”
Libertarianism begins with Pierre-Joseph Proudhon (mutualist), not with Rothbard, classical liberalism, or Old Right. “Occupancy and use” is the oldest libertarian property rights theory.
“tying of property rights to “occupancy”-to me this reduces property to possession and is tantamount to redistribution of wealth.”
Early Rothbard supported the revolutionary redistribution of property!
Confiscation and homestead principle by Murray Rothbard
http://williamgillis.blogspot.com/2007/11/all-power-to-soviets-following-is.html
P.S. Time has shown that conversations with Kinsella are pointless. I’ll give you to read the article on property rights, which explains this conflict.
Neo-lockean vs. Use-based Property Rights
http://polycentricorder.blogspot.com/2009/01/neo-lockean-vs-use-based-property.html
What you wrote doesn’t make sense, newson. If the name ‘Nike’ doesn’t belong to anyone then a cheap ‘Nike’ product isn’t fake per se just ‘different’. This isn’t problematic (apparently) as two separate companies can call themselves ‘Nike’ because no one owns leters or colours or shapes. I can’t imagine too many actually believe that companies can’t have their own basic identity. I mean ‘come on’, seriously!
Stephan,
I think another issue that should be brought up here is the appeal that cost-of-production theories of value (e.g., labor theories of value) hold for many left-libertarians. Such theories, of course, are rejected by Austrians (and in fact all modern schools of economic thought), who adhere to a *marginalist* theory of value. Rothbard’s MES is a brilliant application of marginalism: a completely thorough treatise on economic science starting from a marginalist foundation, truly a core work of the Austrian school.
There seems to be great affection for Kevin Carson’s theoretical work because he tries to incorporate concepts like subjectivism (accepted by *all* modern economists, contra some of the GMU school’s pretensions) and time preference (pretty distinctly Austrian). However, he most clearly rejects marginalism, so I can’t see why Austrians, even if they like his politics, can accept his theoretical work.
Unfortunately, many Austrians (e.g., at GMU) minimize marginalism and exaggerate subjectivism, so probably it’s not too surprising that the Mutualists have found allies in the Austrian camp. However, how can left-libertarians who call themselves Rothbardians (e.g., Roderick Long), continue to promote Carson’s work? Do they accept his criticisms of marginalism? If so, how can they call themselves Rothbardians?
I am only modestly familiar with Carson’s work, but where does he stand on the tremendous legal privilege granted by government to labor unions? When we discuss government interference with the market and subsidization of interest groups, this surely has to be a significant issue.
“Kregus”:
The only “anarchism” that is true is anarcho-libertarianism; and libertarianism is about opposition to aggression. It does not imply any “priority” to self-employment (whatever that means) or “worker cooperatives”; there is no “labor problem” to solve (no offense, Marx).
You are free to harbor these crypto-Marxist personal preferences if you wish, but they are not part of the non-aggression principle or libertarianism. I do not say these notions are necessarily incompatible with libertarianism, any more than liking Star Trek or being an SCA devotee is–so long as you do not advocate trespass or theft.
No, it’s not. Lockeanism and the idea that you do not lose property from non-use is ancient and has always and will always be part of libertarianism. See, for example, Louisiana civil code art. 481: “The ownership and the possession of a thing are distinct. Ownership exists independently of any exercise of it and may not be lost by nonuse.” Also see art. 3448. This does not imply things may not be abandoned; see art. 3418 (“One who takes possession of an abandoned thing with the intent to own it acquires ownership by occupancy. A thing is abandoned when its owner relinquishes possession with the intent to give up ownership.”). (Such provisions are exemplary of laws in force for centuries; see this article by Yiannopoulos.)
I disagree, respectfully, with Carson when he claims that the mutualist idea of occupancy being necessary to property is just at one end of the (practical, necessarily gray or fuzzy) determination of what constitutes abandonment. I agree with him that the issue of abandonment itself is a continuum problem and that different communities will adopt different rules for determining what constitutes abandonment–that is, for determining as a factual matter when an owner has actually “relinquishe[d] possession with the intent to give up ownership” (or for establishing presumptions in this regard). As a practical matter, simple rules of prescription will tend to be relied on instead of making an abandonment determination. (See La. C.C. arts. 3446, 3473, 3486, 3489; and my Civil Law Dictionary, entry “Acquisitive Prescription”.)
So what would happen in a real-world libertarian order is that ownership could be established by use or “occupancy”–possession, which is Lockean and compatible with established legal systems. But ownership is not lost merely by non-use or “absent” ownership. It is not identical with possession; and thus a landlord or owner may permit tenants or others to use his property–you may lease it, loan it, have a factory that workers work in, etc.–without losing ownership to them.
From time to time things will be actually abandoned. When this can be proven or established by context or community-standards-influenced presumptions then the thing is now unowned and subject to appropriation by a new user. However, in most cases this will not come up; if someone leaves their estate untended then well before a determination of abandonment could be made, someone else will likely start using the property; then after a certain amount of time they will be held to be the new owner by acquisitive prescription.
In any event, I disagree with Carson that the occupancy-views of mutualism are just at one end of the abandonment spectrum. It’s a different notion altogether and incompatible with libertarianism.
Sure, and so do all libertarians–we support returning property to its owner, if they can show they have a better claim to property than its current possessor or putative owner. But this “redistribution” is based on the Lockean idea of property which assumes that continual occupancy or use is not needed to maintain an ownership claim.
This is an uncalled-for insult. We libertarians have a distinctive view of property acquisition and maintenance; mutualists have theirs. Vive la difference!
so you’re the only “gil” on earth, and nobody else has the right to your name – is that what you’re trying to say?
> On the other hand, I am an inventor, a thinking
> human and as such I think have the right to protect
> my ideas.
Personally, I have no problem with this argument, considering myself as an inventor. The crucial question is however, what does “right to protect” mean. For the explanation of where we disagree, kindly refer to this diagram: http://shurdeek.shurdix.org/tmp/ip.png
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