For Blackberry Users out there ...
who support patent law: I don't feel sorry for you: patent law is about to shut down the Blackberry service and ruin a great company. But I do feel sorry for RIM, the owners of Blackberry.
Update: See my former partner, IT lawyer Eric Sinrod's discussion of the Blackberry lawsuit, I Want My BlackBerry; and this report, RIM stock hits five-week low.
Comments (112)
Curt Howland
Software patents are an abomination. Am I correct in remembering that the creation of software patents was administrative? That Congress didn't make any law creating it?
Published: December 1, 2005 6:01 PM
Pete Canning
Steph, are you saying that you expect the shutdown to occur?
Published: December 1, 2005 8:01 PM
Wild Pegasus
The software patent gradually evolved into acceptable patentable material over a period of decades. The State Street Bank decision in 1998 pretty much confirmed what had been evolving in the PTO and patent courts: software is patentable material.
Terrible result, of course, no matter what you think of patents in general.
- Josh
Published: December 1, 2005 11:06 PM
Stephan Kinsella
Pete--who knows. The threat of the shutdown will likely be used to extort hundreds of millions from RIM.
Josh: I don't agree that software patents are a "Terrible result, of course, no matter what you think of patents in general." I think that if you favor patents in general, in fact you principled grounds to stand on to object to software patents.
Published: December 2, 2005 12:53 AM
Chris Whisonant
Stephan - RIM has already offered over $450 Million for a settlement. NTP will likely get away with $1 Billion!
Chris, a happy BlackBerry user and administrator! =)
Published: December 2, 2005 7:04 AM
Jim Bradley
What is the consistent anarcho legal theory that distinguishes between illegitimate copying of the works of Rothbard (disallowed) and copying of other intellectual "properties" (allowed)?
At issue is the right to profit from one's intellectual work and not have it stolen under the conditions in which selling it is disclosing it. The argument that "this is a state enforced monopoly" carries no real weight ... the state enforces a monopoly of every person by disallowing the violation of certain of your rights (such as no one has the right to enslave you, thus your "monopoly" of voluntary contract of work by you continues to be protected).
While multiple people can come up with the same patentable idea, the legal rule is "first to file owns the rights". There are unfortunate circumstances in any case in which more than one person has a legitimate claim to the same "property". However, the situation without patents is a serious problem.
Since it is frequently not possible to truly determine whether more than one party came up with a patentable "formula", once the formula is sold, it is disclosed. The rule "first to file is first in right" is the same for competing interests in Real Estate Law.
Published: December 2, 2005 7:32 AM
Stephan Kinsella
Chris--yes, it's terribly sad and disgusting.
Jim: I have no idea what you are trying to say. Either it's too early in the morning for me, or your post is incoherent.
Published: December 2, 2005 7:46 AM
Chris Whisonant
Stephan, I believe Jim is saying "finders keepers". =)
All the patent infringement issues have been basically ruled as invalid:
http://www.techworld.com/mobility/news/index.cfm?NewsID=3913
RIM also has a workaround patch that they can implement to side-step the patent issues:
http://www.theregister.co.uk/2005/11/17/rim_ntp_workaround/
Published: December 2, 2005 7:57 AM
David J. Heinrich
Jim,
Your post seems a unclear. Firstly, who says copying Rothbard's work is illegitimate? I mean, a huge amount of his work is online for free. Secondly, Stephan Kinsella has written an excellent paper rebuking IP arguments, Against Intellectual Proeprty. Also see Stephan Kinsella's blog referring to several Mises.org papers/articles on IP. And for a debuking of the silly utilitarian arguments for patents, see Kinsella, Stephan. There's No Such Thing as a Free Patent.
Finally, as for how those who's livelihood currently depends on IP could make a living without IP-laws, individuals can use derivatives to profit off of inventions.
Silas Barta is working on a paper (tentatively titled An Alternative to Patents?) discussing such an option. Paraphrasing from his draft, the gist of it is this...Once an something newly invented is known, the contraints on satisfying human wants are altered. Hence, prior to making his invention known, an inventor can profit without patents, by being the first one to know that various prices are going to move in certain directions. What the inventor does is speculate in the markets (and derivatives markets) that his invention will alter.
There are at least 3 markets that new inventions alter:
1. Input markets for the invention. The prices on inputs for the invention will be bid up.
2. Complementary markets. The prices of complementary goods will be bid up.
3. Substitutes / competitor markets. The prices of substitute and competing goods will be bid down.
Now, as for isolating the impact of the invention -- separating it from noise -- this can be done using various financial instruments and options. In short, using derivatives and options, and various strategies, one can isolate the risk one wants to expose one's self to.
Published: December 2, 2005 9:19 AM
Jim Bradley
For those not clear: I'm saying (a) there not a consistent anarcho position on intellectual property: copyrights are supported yet other intellectual property is denied, but both are intellectual property - the proposed division between them (one is expressed form the other expressed content) leads to no objective distinguishment for the purpose of prescriptive law (b) anarcho non-patent theory would dictate there can be no pre-emptive protection of situations in which to sell an intellectual work (a "formula") necessitates disclosure of that formula - selling a very valuable formula to a small capitalized company would not provide adequate recompense should that company make the information public domain as what follows is a illegitimate use of the "formula" by all sorts of non-buyers (c) the current law (first to file is first in right) is a tradeoff that is (at root) adequate -- there is no perfect system here and the anarcho position would lead to greater problems (d) the "first to file is first in right" rule is no different for Real Estate Law to which anarchos don't seem to have an objection -- although that also certainly could be argued on the same grounds.
Published: December 2, 2005 10:10 AM
Jim Bradley
David -- People need to be free to take individual action as they see fit to benefit themselves no matter the form in which property makes itself. You can sell your labor in the form of physical property and the boundaries are well subscribed: another person cannot lay claim to the same property. The issue at question in intellectual property is -- since there is no physical object at question, what happens when two people develop the SAME "formula". One is granted the right and the other is refused as a practical matter of implementation. In a perfect world, both people would have free ability to sell their formula. The problem arises in enforcement. After the formula becomes known, it can be claimed by others that "they also developed the formula". It's not perfect, but no other system is either.
Published: December 2, 2005 10:15 AM
Stephan Kinsella
Jim:
I think you have not done your homework. I am always amazed at how some people are determined to hold forth on something without wanting to do the research first. In the field of politics, I find this is common among engineers, for some reason. In any event, many anarchists, such as me, oppose copyright and patent.
I have no earthly idea what you are trying to say.
Mere assertion.
Again, you have not done your homework. You do not undersatnd the objection to patents. I don't think it's our obligation to educate you hear; if you are going to comment in a debate you ought to not be merely dabbling or trying to reinvent the wheel. I suggest you read some of the many debates on this issue first if you are genuinely interested in it.
Published: December 2, 2005 10:15 AM
David J. Heinrich
Jim,
You haven't done the necessary reading to be making the kinds of statements your making. I referenced several papers/articles by Stephan and others, discussing why intellectual property isn't legitimate property, like a plot of land that you homestead. You can't lay a claim to an idea. Ideas are not scarce resources in the physical world, and to lay a claim to an idea is to violate someone else's right to their property (that is, to prevent them from utilizing their property in a non-aggressive manner). Me using someone else' idea for some new invention, on my own property, in no way constitutes an initiation of aggression against them: thus, they're not entitled to stop me from doing it.
Regarding Rothbard's defense of copyrights, but not patents, he argued that patents are an arbitrary grant of monopoly priviledge (by the State) over something which isn't a legitimate property right, whereas copyrights constituted a legitimate contract. Stephan disagrees with Rothbard on the legitimacy of copyrights (for this, see his paper).
Also, you completely ignored my reference to Silas' working paper, which does lay out a better system, where it isn't "first-come first-serve" for inventors, and where those inventing something can both profit from it.
Published: December 2, 2005 10:42 AM
Jim Bradley
Stephan - We are discussing theory so ALL of this is "mere assertion" ... libertarians have no empirical evidence to demonstrate that their perspective is indeed superior -- the analysis rests on argumentation.
The problems noted in the anarcho position are understandable. Although the U.S. system is a "first to invent" system in practical terms the "first to file" is frequently powerful evidence of the "first to invent" (especially since inventors know what's at stake) -- the same with California Real Estate Law, a prior first lien could be exercised in some cases in priority to a subsequent "first lien" (i.e. because of fraud) but has no guarantee of prevailing in court.
As a practical implementation of "selling formulas" you will have to successfully answer the objection noted twice: the damage once a formula (subject to the restrictions of patentable concrete processes) becomes public domain is frequently not retrievable thus requiring pre-emptive law. Similarly, the damage from biological disaster is not retrievable thus you are by law (contrary to anarcho theory) prohibited from making biological WMDs on your property.
That in fact protects because of the limits of practical use against the usurpation of property rights.
Published: December 2, 2005 11:03 AM
David J. Heinrich
Jim,
That's a great way to debate. Ignore all arguments, don't read the writing pertinent to the problem, point out one alleged problem, and claim you've won, as well as make raw assertions. You simply are not particularly well aware of the libertarian literature pertaining to the issues you're discussing.
Theory is not all "mere assertion". Praxeology is not "mere assertion". 2+2=4 is not a "mere assertion". Nor is argumentation ethics, which makes an argument for why, to engage in any argument at all, one has to presume libertarian self-ownership and homesteading, and hence arguing contrary to that is self-contradictory (analagous to saying, "the action axiom is false").
You've made a mere assertion that, as a practical matter*, the current system is the "best there is". No argument has been provided, and that ignores all of the articles I referred to above. *I dispute the ridiculous assertion that there is a dichotomy between what is "practical" and what is moral/ethical/just by natural law. A murderer might very well say, "laws against murder are impractical, because I want to feel good, and I feel good by murdering". So what?
Regarding "selling formulas", that is not the only way to profit off of inventions; see my reference to Silas Barta's ideas on derivatives. This is something you've simply ignored, yet it provides an opportunity for inventors to profit, while engaging in behaviour that is socially beneficial (spreading word of the invention, and use of it, as far and wide as possible).
What the current "law" says is irrelevant to justice; it is fiat law, the exertion of power. It has been characteristic of your discussion to say such non-sense as, "you can't do X, contrary to libertarian theory". This is nothing more than mere assertion, with no argument, or very minimal argument, made. Your discussion of making biological WMDs on one's property ignores the work Rothbard and Block have done on the "reasonable man" issue, and on "gun control". I've referred to Block's article on gun-control before; apparently, you didn't bother to read it, which is fine, unless you then (like you did) mischaracterize or simplify libertarian views on the issue.
Published: December 2, 2005 11:28 AM
Stephan Kinsella
AGain, you seem to not have done your homework--your comments here belie an amateurish, almost gleeful ignorance of the Austrian view of scientified methology. You seem to be merrily, blithely assuming everyone shares your implicit empiricist/positivist view--that if you don't have "evidence" something is "mere assertion".
Saying the "tradeoff" is "adequate"--as if this is not even controversial--is ridiculous. It achieves nothing. So it's your opinion. No one cares waht your opinion is, unless you can support it with reasons.
I have no idea what is the releavnce of this comment.
Again, relevance unclear.
None of this changes the fact that patent law is unjustified. That is the point.
Published: December 2, 2005 11:56 AM
Jim Bradley
David -- the "mere assertions" phrase came from Stephen, not me. Read his 4th post.
It is false that "patentable formulas are not scarce" and moving the debate into the "ideas are being patented" is a straw man.
The criteria for a patent are threefold:
novelty - not available in any way to the public prior to patent.
obviousness - not obvious to a person skilled in the art in which it was created
industrial application - (i.e. has utility) and excludes treatment of animals or the human body.
I think the most powerful libertarian argument is the fact that one can usurp the (sometimes currently existing) property rights of other people by the mere fact that one files a patent. A serious problem sometimes to be sure.
But the reverse situation is not desireable either (one cannot protect the unauthorized distribution of their IP work). In essentials the anarcho position is saying "our imperfect system is less imperfect than yours" .. but that's a judgement call, contrary to your claim of "objectivity" or "praxeology". Praxeology is strictly limited to cause and effect relationships, it does not specify better or worse, instead it specifies logical outcomes -- whether the benefit outweighs the costs is another matter.
No one has made the claim that the current system is the "best there is". The word (or a synonym) for "best" doesn't appear in this blog until you posted it.
Making a requirement that a person must rely on the existence of a derivative market is an interesting alternative -- albeit tremendously stifling: a charge that is leveled already against the current system.
Published: December 2, 2005 12:16 PM
ed
Steve,
Your tone of argument sounds more like Crossfire than reasonable discourse. I too haven't "done my homework" but IMO the patent issue is about the least important of the libertarian / Austrian fights out there. Similar to public ownership of roads (discounting eminiment domain) its the last fight worth fighting.
Its also difficult for the average Joe to grasp completely and easy for the statist government beaurocrat to refute with language that "makes sense".
I'd stick with the case against the Fed; pro hard money, Personal responsibility / moral hazard, and clear cut cases of government intrusion into business and personal lives.
The argument is worth having but you must agree that its not as clear cut as some of the others. As you think of ways to flame away, stop and reconsider. I have no fear for my thin skin, but can you say the same?
Published: December 2, 2005 12:44 PM
Stephan Kinsella
Jim:
to what do you refer?
Jim, this is not really the place to debate IP law. This post was simply to lament what harm patent laws are doing to RIM. It's just an illustration of why patents are terrible.
Anyway, you do not seem to be aware of the way "scarcity" is being used here in its unique economic sense.
this is not the place for mundane disucssion of legal topics, but your list is both under- and over-inclusive. Underinclusive, because it leaves out other requirements like statutory subject matter (section 101). Over-inclusive because (a) novelty and non-obviousness are not rigorous, objective concepts, so cannot really be said to be a real "test" or requirement; and (b) even if they were, the patent office is inept and does not really require this in every case--many "obvious" ideas get patented.
The "mere filing" of a patent actually does not do this. It is the issuance of a patent by the state.
Do you think libertarianism is about "desirable situations"? We are not all mainstreamer, unprincipled, utilitarians, you should be aware.
I have no idea what is the relevance of your offhand aside that "that's a judgment call". I think you are confused. In any event, you just don't seem to get it. Opponents of IP simply believe IP is not property. It's not about perfect or imperfect. Some of us actualy have principles and don't weigh everything by its "consequences" or effects.
It is very frustrating for some utilitarian to keep asserting this latter test as if everyone accepts that this is the standard. This is dishonest and disingenuous way of arguing--trying to get your standard accepted by feigning "aw-shucks golly-gee how could anyone ever disagree with this, why, it's obvious, everyone knows that!" Listen. Not everyone judges a given law based on "weighing its costs and benefits." Surel you must be aware of this.
I have made the claim that patent law is unjustified and violates individual rights. It has nothing to do with your meandering, ad-hoc approach.
Published: December 2, 2005 12:49 PM
Stephan Kinsella
"ed"--
My name is not Stephen or Steven, so why you shortened it to "Steve" I dunno. Have you ever heard of Stephanie? Do you pronounce it "Stevenie"?
Well, I agree it's not the most pressing issue; but the problems it causes are getting greater and greater with the advent of the internet and digitization of information. And you may think it's not that important but when I see a great company about to be shut down or extorted for a BILLION DOLLARS because of patents, it's reasonable to note this as an unfortunate example of patents. If you are not interested in this fine; those who are may find this illustration worthwhile.
I detest when discussions devolve away from substance and into navel-gazing third-level meta-discussions *about* the discussion; but this often happens when some people are thin-skinned or overly concerned with tactic and strategy rather than substance and truth.
As for "doing your homework," I simply think it's prudent and mannerly to avoid weighing in on a complex issue with amateur or ill-formed opinions that result from having educated yourself to the level where you are able to discuss at a high enough level; without forcing others to educate you on elementary things. I know today's students are so wussified and pampered they might boo-hoo if you tell them something like this; too bad.
Okay. I still blame them for supporting unjust laws.
Okay, you stick with that.
I have no idea what you are saying. Disagreement is fine but it ought to be honest and informed.
Published: December 2, 2005 12:56 PM
Stephan Kinsella
Just a side point: maybe it's just me but I always am a bit suspicious of people who are do not use their real names in email and in such discussions. What do they have to hide? Is it cowardice, or what? Just wondering--might as well, since we have now devolved into meta-meta-discussion.
Published: December 2, 2005 1:01 PM
ed
The name and email are real. Feel free to check it out first. If you can't figure out my last name, let me know and I'll email it to you.
RE: Meta-Meta - I just think its important to not fall into a shouting match or a personal front. Wise guy comments like "Okay, you stick with that." just don't help anything.
RE: Patents - Ideas are property. I believe that and therefore as property they must be defended. I wouldn't want to deteriorate the conversation into who best to defend property but the basic argument is the first sentence above.
There is also a practicality to protecting property. I can claim the rights to Happy BIrthday, but its tough to enforce. I can claim the rights to Spider-man and it to is tough to enforce, but I know I have claim to a $100 million dollar movie deal if I'm the one who created/owns his rites.
If I created the code allowing for Blackberry and did not allow it to be used by others I believe I am entitiled to protection for that. The level and extent of that protection would then become fairly complex and that shows in the amount of patent law over the years.
I'll be the first to admit its easy to find flaws here and there within patent law, but for the most part it works just fine.
Simple is as simple does for someone like me who partied Saturday night rather than studied his homework. Since thats the case there's no need to argue with me - I'm probably not at your intellectual level.
Published: December 2, 2005 1:37 PM
Jim Bradley
Stephen -- the most interesting of your implied assumptions are "praxeology equals a prescription for correct legal structure" (false) and the idea that "legitimate enforceable justice is consonant with pure private property rights" (also false).
Really the anarcho vision is very good. But anarcho law might (probably will) create injustice the same as does a pure private property universe ... after all demanding that a person that sells a "formula" has no effective legal way to bar that from being multiplied once it has got to the public domain is a gross infringment of his (or her) original right to keep knowledge limited to buyers. A straw "buyer" simply purchases the rights and distributes the knowledge over the internet. Granted, there are huge problems with patent law, but even if there were a non-rights-violating transition to the anarcho system, there still would be serious shortcomings. The objections are real. There IS no perfect solution.
Frankly I agree with the other sentiment expressed even though I liked your paper very much. I'd rather get the legalized thievery of 50% of my productive income reversed down to 1 or 2% rather than focus on these side issues.
Published: December 2, 2005 1:42 PM
Stephan Kinsella
ed:
It was just an observation. If it does not apply to you, it does not apply. I didn't say it did.
Dunno why "helping things" is some kind of requirement of discoures. Look you said, "I'd stick with the case against the Fe; pro hard money, Personal responsibility / moral hazard ..." You just announce all of a sudden what is apparently a listing of your own personal preferences about what issues you like to worry about or find interesting. Okay... but so what? What is the relevance. My comment that "Okay, you stick with that." was meant to emphasize that you are free to value what you want, and others what they want--thus denuding your comment of any relevance.
Not everyone agrees with this wild, controversial (almost incoherent, in my view) assertion.
your feelings are irrelevant.
The truth is in most, or at least a lot of, patent infringement cases the alleged infringer has no idea of the patent. They don't find out until they get sued. In most cases the technique or design used is obvious or independently invented. I don't know the details of the Blackberry case but I would doubt that RIM just copied some method or design one of their engineers found in some other company's patent. Probably what happened was they had a team of engineers using their minds to try to make a product work. Then it turned out the way it worked was similar to the claims of some other company's patent. This is all outrageous, IMO.
I believe this statement is based on deep ignorance of the way the system works in practice.
That's okay, the beauty of the free market and the law of comparative disadvantage is that you can still be useful.
Jim:
Was there a Stephen on this thread?
I am not sure what you mean. I don't recall every having propounded such views.
This thread has nothing to do with anarchy.
Are you really unable to see that you keep asserting things that are controversial, or are you just disingenuous and think that if you keep implying it "as if" it's obvious, others will just give in? We do not all believe there is such a right.
Perfect "solution" ... to what? Are you trying to sneak in the controversial assumption that there is a problem, namely, a rights violation, which would smuggle in your presumption, i.e. beg the question?
Thanks. But I have no idea what paper you mean and what "other sentiment" you mean.
And yet here you are, "focusing" on them.
Published: December 2, 2005 2:39 PM
ed
And more.
Assuming there is no legal right to a Intellectual prpoerty. If I create software code I am inclined to pursue a method to keep it secret. Either through hardcoding or through contracts I can share these things. Do you agree with a scenario that if you contract to not copy my code or make it public and I let you buy it, this, in essence is supportable. Add aditional protecting covenants to cover other scenarios IP subject dependent.
In place of all this contract stuff we have a set of laws set up ahead of time that have been established and we live by. This isn't my strongest argument but again I fall back on stating that everything works out pretty the way things are right now. Adjust laws as necessary through our imperfect system.
RIM broke the rules set up which is similar to a broken contract (government created -true)
Published: December 2, 2005 3:00 PM
David J. Heinrich
Jim,
An idea is not something that is scarce in a meaningful economical way. It can be replicated infinitely with no, or practically no cost. That is, it is not an economic good, it is akin to air: once known, it is part of the general condition of mankind, much like the sun. A patent is a grant of State priviledge to someone, for a coming up with a specific kind of idea (that meets the criteria you laid out).
Praxeology in and of itself, if you take a superficial view, does not imply any particular values. Once, however, you recognize that someone -- an actor -- must be there to discuss praxeology, the mere fact that a discussion is occuring does imply certain values. This is what argumentation ethics (the a priori of argumentation) is all about.
Your right, I was the first to bring up "best there is". However, your claims throughout this thread imply that the current system is better than what various anti-IP libertarians have proposed. This is false: (1) IP constitutes a violation of real property rights, and thus is not legitimate by libertarian principles; (2) The alternate systems proposed would allow artists, researchers, inventors, etc to be rewarded for their efforts; (3) Current IP law is inconsistent, in that it rewards applied ideas, but not more fundamental ones -- why isn't basic science also to be rewarded? I certainly don't think that patent system should be extended to basic ideas, but the point is that it is internally incoherent and inconsistent.
My claim isn't that inventors must rely on the derivatives market. There are other options. I just think that that's the best one for them to consistently be rewarded for their work (they would probably sell their information to hedge funds specializing in inventions). The charge of incredible stiffness of the current system is only levelled because of the moral bankruptcy of those supporting it, most of whom have no moral argument, and rely on worthless utilitarianism; the point is, the so-called "benefits" of the IP system aren't as clear-cut as IP-advocates would make it out to be.
My ultimate argument, however, is that IP constitutes a violation of the non-aggression axiom, a violation of property rights, and hence is not justified. Also, a particularly pertinent point, as someone else noted: most so-called IP-violations occur unknowingly. People are punished for independent discovery and use of an invention. That is, let's say you have a patent on an algorithm; Joe's Software company, totally oblivious to this patent, created a similar algorithm (for legal purposes) to meet their needs for a program they were developing. You sue them and win in court. This is simply unjust: someone is being punished -- not for looking up your patent and copying it -- but for accidentally "reinventing the wheel". Furthermore, in reality, there's no way to prove whether someone using technique X did it because they invented it on the spot, or copied it from a patent...I think it's been said that it's impossible to write two lines of computer code without violating some patent
Published: December 2, 2005 3:13 PM
Jim Bradley
Stephan -- Patents are grounded in pre-emptive law and protection of a person's right to the product of his work, both respecting property rights but in a manner inconsistent with your beliefs. The problem is that the "product" can be common property. Really, I believe you have the capacity to understand the arguments, the paper I believe you authored is the one linked on this blog (I read it entirely and appreciate your excellent work), you brought up that you are an "anarchist" confirming your position - note that anarcho is a shortening of anarcho-libertarian, and the theories are tied together which have a string of antecedent implications ... frankly unless there are other factors at work I'd have to guess you aren't making the effort.
The idea that there can BE no right outside of property rights in your universe (that view has serious shortcomings in the problems of children, undue influence, pre-emptive law, risk-conferrence, etc.) IP is therefore "logically inconsistent". Okay. But the criticisms stand, in fact more firmly because they remain definitionally ignored -- i.e. they are "defined away" as being outside the scope of discussion but they are in fact very much inside the scope.
David -- Good ideas are scarce (why do private scientists get paid anything?). Don't think the idea that "ideas are not scarce" is supportable. Goods that are not scarce command no price.
Praxeology doesn't specify which ethics are proper.
IP constitutes a pre-emptive response to potential aggression by another person and thus is not without merit. Your point about the difficulty of post-event proof supports the criticism of the anarcho view: essentially stealing methods under which people may have labored for years is made relatively costless.
The idea that utilitariasm has no place is foolishness. Clearly, if by adhering to philosophical purity we would doom the human race, the philosophy (even if logically consistent) isn't to be considered worthwhile.
Published: December 2, 2005 5:25 PM
Stephan Kinsella
Jim:
No earthly idea what you mean.question-begging. Where is there such a "right"?
Fancy that.
No; it is that all rights ARE property rights. Every single attempt to enforce one of your vaunted rights ends up enFORCing it against what? PROPERTY--my body, money, things I own. I just love it when you IP advocates feign taking the high road by saying that there are types of property or rihts "other than material things" but when the rubber hits the road, you always want to enforce your little cliams against these real things. IF intangible things are so real, then en"force" them in that realm. But no; if you sue me for infringmeent of your patent, you want the court to do what?--to take my PROPERTY away--money, etc.; or to issue an injunction against what?--my PROPERTY--telling me that, on pain of PHYSICAL force being applied to My body or my property--that I cannot use my PROPERTY in a certain way. All IP advocates are utter hypocrites. They want to have it both ways: they want to say that IP is "real"--just as "real" as real real things, but then they want ot enforce it in the "real world".
I just cannot follow this British humanities essayist style of rambling prose.
Read Hoppe's argumentation ethics: www.Hanshoppe.com.
patent infringement is not aggression. enforcemnt of a patent is aggression.
Calling it stealing is question-begging. THis is getting boring.
Published: December 2, 2005 5:35 PM
Jim Bradley
Yes Stephan -- Just as enforcing what you consider property rights enforces them against intangible things, similarly enforcing intangible rights will affect tangible property. They are not entirely divisible, yet you attempt to divide them.
Reposting Windows code, which you've received from an illicit source does not "make it yours" and such action is illegal ... it does not automatically "become your property" because you now conceive of it, yet that is what you argue...Nor is there an adequate response to the fact that selling a "formula" discloses it and thus if it should make it to a person that didn't buy it (and hence is not under contract), that person can simply distribute it free of charge. Such a system is preposterous unless the benefits outweight the costs. The arguments as to the benefits are not made (and in fact are praxeologically impossible) so I submit that such a system is deficient at the very least in support of itself.
The final objection: What we are talking about is practical tradeoff in implementation not a pure atomistic universe in which the only "real thing" is tangible material. Clearly what matters is how to implement such a system and if it is workable, not whether it is possible in the imagination.
It is curious indeed that libertarianism in its extreme form comes back to vigorous belief in legal materialism: nothing can be actionable except it cross private property boundaries. Yet there is huge disagreement over that. Not only in the issues of raising children, but also in conferred risk.
In effect you argue the entire scope of law is legitimately relegated to the material realm: a breathtaking claim which disregards all intangible effects. Convince a retarded person to commit murder and you've essentially no actionable cause. But I trust you can come up with even better examples, should you be willing to make the effort.
Published: December 3, 2005 12:59 AM
David J. Heinrich
Jim,
You can't own intangible things; you don't "own" your reputation, you don't "own" ideas, you don't own inventions (other than specific physical manifestations of them), you don't "own" a plotline. These immaterial things can only exist in people's minds, and to say that you can own them is an amazing contradiction of real property rights -- namely, to one's body, and resources one homesteads. To claim that you can own an idea is to claim ownership over someone else's mind, which is the stuff of Orwellian dystopia.
You seem to be unable to understand the fact that ideas (in the metaphysical sense) are not scarce*.
Praxeologically, ideas are not scarce. They are not a necessary source of conflict -- like land and food may be -- between actors; they are only a source of conflict when the mentally unbalanced -- the same people who could make anything a source of conflict -- make them a source of conflict. Consider that we are trapped on an island, and there is some resource on it -- say, a pineapple tree -- that we both want for fruit. Let's say it only produces enough fruit to feed one person. This is a necessary source of conflict, and libertarian homesteading justly resolves that conflict.
However, lets say that we both catch fish. We both want to catch more fish. Now, we both come to realize that we can catch more fish by building up a stock of savings -- something which requires the recognition of private property, lest others diminish one's stock of savings -- and building a stabbing-stick or net while we live off the stock of fish we caught. The idea for doing this -- that is, engaging in savings (foregoing some consumption of fish, and instead diverting that consumption into savings) and also in investment (building the stabbing-stick or net) -- is not a necessary source of conflict. This idea is not scarce. Both of us can come up with it independently, without diminishing the other's use/understanding of this idea.
PS: I'd also argue that anyone who holds to the view that ideas are property, as you do, should keep their ideas to themselves, for any sharing of your ideas is nothing more than the tyrannical and despotic attempt to take control of someone else' property -- that is, their land/posessions, their body, and their mind. In short, I'd rather these pioneers of patentable ideas keep their ideas to themselves, so that I can pursue inventiveness of my own without having to fear being in violation of "IP laws" with every idea I come up with and implement, and if these despots do share their ideas with the world, I have absolutely no moral or legal obligation to restrict my behaviour.
* Ideas may be scarce in some biological sense, in that there are only 6 billion people in the world, each person only able to hold so many ideas in one's head, and in that only a few people hold a particular idea in their head.
Published: December 3, 2005 2:20 AM
Jim Bradley
David -- But you surely make a straw man argument. None of the examples you've given are patentable! Patents don't protect ideas, they protect only those things that fit the criteria, and the criteria specify a tangible component.
So the issue of "ideas are not a source of conflict" is a straw man. But even there the theory is incorrect.
"Ideas are not a source of conflict" is insufficient to make the claim that all ideas are not scarce -- clearly R&D does command a positive economic price: some ideas are demonstrably scarce by observing human action, and they would remain so in a system that does not have patents.
I concur with your points about the injustice of having independently developed a system which you must then license because someone else patented it, as well as the nonsensical behavior of throwing hurdles in the way of independent innovation. In practice, it would be necessary to provide a transition to the new system that would minimally or not at all violate existing property rights, and it would be necessary to show how the new system would solve enough problems so that it's shortcomings would be less than what we have.
Alternatively, you can propose a solution within existing legal theory that addresses the problems without (to the extent possible to foresee) creating new problems. I note that libertarian private property law would create many problems themselves, perhaps many unforseen.
Published: December 3, 2005 7:50 AM
David J. Heinrich
I didn't make a strawman argument. Just because patents have to fit "specific criteria" doesn't mean they aren't idea; they are, briefly put, ideas for implementing technologies or inventions (also note State-granted copyrights). This does not change the fact that the ideas themselves are not scarce. My illustration is still the same, and I can simply say the "idea for a stabbing stick".
The idiocy and injustice of "owning ideas" can be illustrated by our little island example, which allows us to clearly illustrate this. Say that I observe you making your stabbing stick, and decide that's a good idea, and that I'll make one too. In response, you argue that I'm somehow "stealing from you" because you came up with that idea, and now I'm using it. This is utter nonsense. You can still use your idea, I haven't "stolen" anything from you.
I'd also note that it is completely internally inconsistent to argue for ownership of ideas as pertains to implementing inventions or technologies, but not of basic science ideas (e.g., E=mc^2).
Now, coming up with ideas is something that is scarce. This does not mean that the ideas themselves, once created, are scarce in any meaningful praxeological sense. What I'm doing is showing why it is simply injust to try to enforce a system of ownership of ideas. The so-called "problems" that you point out are completely irrelevant. It's no different than me saying, "Murder is wrong" and a rich husband saying, "But, that creates a practical problem. You see, I want to divorce my wife, and so that she doesn't take half of 'my' money, I have to murder her."
The alleged "problem" that proponents of IP claim with not having IP is that ideas won't be produced. This is silly nonsense, there are numerous ways for inventors and book-writers to profit without IP. Barta pointed out that inventors can sell their information to hedge-fund managers specializing in taking advantage of new inventions. And companies may also collaborate to produce new ideas, even if they may not be the only ones capturing the benefit (the "externalities" argument is sheer idiocy, as almost every action generates externalities).
Published: December 3, 2005 12:39 PM
Stephan Kinsella
Jim:
How does enforcing property rights in real things have anything to do with "intangible" things? The force used is real force--real, physical force, against real, physical things.
Who said it "makes it yours"? adn what is the relevance of the quite obvious observation about he current state of the law?
No, it's not. I argue nothing of the kind. You are simply confused, and trying to figure out what you believe here.
Why do "facts" need "adequate" "responses"? What are you talking about? How can you be so unaware of all the unsupported assumptions underlying your rambling, ad hoc assertions?
Last time I will mention this, since your stubbornness appears to be intentional: we are not all utilitarians, we do not all agree that norms and laws have to be justified based on a cost/benefit analysis.
objection to what? What are you jabbering about? What exactly are you trying to say?
It might be what you are talking about but since I have no idea what you even mean, I doubt it is what I am talking about. You are apparently unable to realize not everyone is a utilitarian. I suppose when you hear people speak in terms of rights and principles, your only hear grunts.
to whom?
You seem simply not to realize not everyone thinks in terms of "constructing systems". Sometimes one has a narrow question about right and wrong, and about rights.
You seem to be unaware that the essence of libertarianism is the non-aggression axiom, which just says that any ation is permissible except aggressoin--which is an unconsented-to invasion of another's property boundaries. I.e., all libertarians support the notion that the only rights we have are the right to be free from the initiation of force; the idea is that *only* initiation of force can violate another's rights. This is all painfully elementary.
I never argue this and have no idea what you mean. You are thinking like a mainstream European.
Oh, as I have argued in my paper on causation and the law (on my site www.StephanKinsella.com), I think this action would indeed be an act of aggression, committed by me--where I used the retard as a means to my illegal end.
Published: December 3, 2005 3:35 PM
R.P. McCosker
I've always been confused by the assertion that property can only exist in things that are scarce. Property, it seems to me, exists in whatever we so impute. (Is there a link to something that specifically clears up the semantics of this?)
What's more to the point, I'd think, is what claims of property supercede others. The salient feature of IP is that it's recognized and enforced by the State as *inherently* trumping tangible property. It can *only* exist by the assault on tangible property. Your copyright tells me what I can't put on paper or disc-space I own, for example. It exists *precisely* to prevent me from using my own paper or disc-space (and other tangible belongings) that way.
Why's the State ready to use its coercive power to assert IPs over tangible properties?
The Constitution expressly authorizes IP law "[t]o promote the Progress of Science and useful Arts," conspicuously avoiding reference to any moral claim that IP-holders might have. The IP clause (Article I, Section 8) exudes utilitarianism. I don't know the intellectual history of this, but I suspect that moral claims of ownership to IP largely arose among the generations after the enactment of IP laws. A new class of individuals benefiting from IP monopolies developed -- who wished to strengthen IP law beyond the Constitutional mandate of promoting progress "by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries[.]"
Since most of what we read (actually everything, as I understand current law) is copyrighted, it's not surprising that the moral claim of the writer to exclusive rights to his ideational work-product has worked its way into the Zeitgeist. Hence we get things like ed's blithe assertion, "Patents - Ideas are property. I believe that and therefore as property they must be defended. I wouldn't want to deteriorate the conversation into who best to defend property but the basic argument is the first sentence above." (Perhaps patents *can* be held to be property, but why doesn't he deal with *how* such a claim trumps other people's tangible property, *which it necessarily must*?)
Ayn Rand's snappy and unbalanced assertions on this matter in *Capitalism: The Unknown Ideal* haven't brought clarity to the many libertarians who've read it. She merely declares IP to be an inviolable right of its holders without even considering how it directly takes away from tangible property. Excuse the ad hominem here, but her moral claim in this -- since she doesn't use closely argued logic -- is suspect, as when writing that she'd already grown very rich from the sales of her copyrighted works. Rand elsewhere makes much fuss about what she dubs "the politics of pull" -- what about the pull of those who live off the seizure of tangible property via government grants of IP?
Finally, what of the utilitarian claims for IP? Does it lead to greater achievement in in techology, literature, and the arts?
Comparing periods without IP and periods with, taking into account the trajectories of development in the periods without, suggests it didn't make much difference. I suspect patent creates incentives to invest more in R&D divisions in search of "big ideas", but at the expense of having those same creative minds working in product development, with more emphasis on incremental ideas that can be brought to market quickly. I have trouble thinking how an absence of copyright law would play out nowadays, but there were certainly some very fine American writers before copyright law was established here in -- was it the 1870s? Franklin, Brown, Irving, Poe, Cooper, Hawthorne, Melville -- we should suffer from so much bad writing today!
Published: December 3, 2005 4:08 PM
David J. Heinrich
For those following the debate, the paper to which Stephan is referring to is: Kinsella, Stephan. Tinsley, Patrick Causation and Aggression. Winter, 2004. QJAE 7(4): 97-112.
Oh, in regards to Jim saying, "it's a matter of weighing the benefits and costs", this is non-sensical, except from Jim's point of view (to which I answer, so what? others can have different points of view; if this is to be a valid point, then him and whoever he's debating with have to at least have some of the same concerns). Now, as for utilitarianism, it is meaningless tripe. Interpersonal utility comparisons are impossible, and utility is ordinal not cardinal.
I have another (internal) criticisms of utilitarianism, which I've elaborated elsewhere, but I don't have the time to do so now.
Published: December 3, 2005 4:19 PM
David J. Heinrich
Lets not forget all the resources wasted on IP legal departments, defensive patents, offensive patents, lobbying of the US Patent Office, etc. Somehow, the utilitarians always seem to ignore the costs of their system, or presume that (of course) those costs are outweighed by the benefits (assuming their end of maximum innovation).
Published: December 3, 2005 4:34 PM
Jim Bradley
RP -- You make th assumption that patents are only restrictions on private property - part of the justification for patents is the stimulation of research being put into the public domain that would otherwise have been kept private or disclosed only to those entities with the capital to recompense in case of contract violation (as there would be no functional way to prevent the public from using the patent). This (as well as corporations in general) are an example of the benefits to smaller organizations. Since most growth has come from smaller organizations, I think there is a huge cost, which remains unacknowledged.
I think the fact that IP does infringe on the rights of other people to use their own property (their mind and tangible property) to their own benefit independent of received ideas is a serious problem. But the libertarian system has big problems too.
David -- There is a good argument that "value" DOES have an objective component ... it is logically impossible to "value" death, because the word value holds as a prerequisite a "supporting life" requirement else the concept is self-contradictory. Hence the idea that values are entirely subjective is only right if the word value is used as a synonym for "economic choice" but false if used as a synonym for moral choices. We are discussing legal matters with a moral components (justice and rightness of private property), hence value takes on the latter meaning.
Published: December 4, 2005 7:32 AM
Brent Nelson
With a copyright, there is no assault on property. You have full rights to use your paper or disk space as you see fit. But: You also have the right to enter into contracts. When you receive some information that is under copyright, someone is doing you a service *by providing that information to you*. Because you actually received the information from the copyright holder, you are entering into a contract. The service of transferring that information to you is the scarce good in question here, not the information itself, not the physical piece of paper or stray photons you may receive as part of that transfer. As part of the contract, you have accepted a restriction on what you will or will not do with that information. The title to that service is being transferred to you with some conditions. It is not the information that is the property, it is the service of transferring that information to you.
With a patent, the problem is that there is not necessarily a service provided, not necessarily a transfer of information from the patent holder to the person that uses the same idea. So enforcing a restriction on your use of your paper or disk space in this case is wrong. That is the anarcho-capitalist difference between copyright and patent. A copyright involves a service actually being provided, a patent does not.
Published: December 4, 2005 9:00 AM
Brent Nelson
RP, you asked about the connection between scarcity and property. Something on the title transfer theory of property might be what you are looking for. I recommend Rothbard's "The Ethics of Liberty." Chapter 9 on Property and Criminality and Chapter 19 on Property Rights and the Theory of Contracts may help. There is also an illuminating article by Stephan Kinsella in JLS, "A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability."
Published: December 4, 2005 9:25 AM
Dan Mahoney
The nub of the pro-IP'ers argument is that, if I
am the first person to publicly announce in
the "right" manner (e.g., via the State's Office
of Inventions) some way of assembling factors of
production into a finished good, then I thereby
am justified in employing force against anyone
else who similarly assembles *other* factors of
production (i.e., factors different from my
own). In other words, by this princple of first
announcement, I establish (at least partial)
ownership in factors of production, in a way
besides homesteading, mutual exchange, or
production. Now, according to most libertarians,
only the latter form of action can establish
legitimate rights to property, so it seems that
from a libertarian perspective IP has no basis.
At least, the establishment of rights to property
via "proper" public announcement is the point
that must be established by the supporters of IP,
and it is clear that few of them bother with this
endeavor, preferring instead crude utilitarian
assertions or absurd notions of idea ownership.
(Let's also note that of course ideas *can* be
acquired illegitimately from a libertarian
perspective, e.g., if I disclose an idea to you
with the caveat that you not act on it, but you
do anyway. However, this is just a standard
application of contract theory, and in no way
implies ownership in the original idea. Again,
too many IP'ers have not done the basic homework
here, as Stephan/Steve/Stephen [or whatever the
hell his name is :)] has pointed out.)
Dan
Published: December 4, 2005 10:38 AM
Xellos
Jim,
"Patents don't protect ideas, they protect only those things that fit the criteria, and the criteria specify a tangible component."
May I suggest you read any of a large number of patents issued by the USPTO over the last couple decades? Anything software or business-process related for starters. A tangible component is no longer required, and has not been for a long time. Nor is this limited the US; most of Eurpoe is the same way, despite ostensible rules against it.
Heck, even for patents on actual physical implementations, no working model is required. That requirement was done away with a long, long time ago. There are several current patents for perpetual motion machines...
Most patents granted to companies like Microsoft have no physical component. They rarely have anything that can even be claimed as a physical component. Most of them also fail the reproducability test (your public domain argument); they're vague and broad enough that you cannot reproduce them based just on the patent filing (ie. no compilable source code is provided; often not even psuedocode is). Most of them additionally fail the non-obvious and uniqueness tests, such as Microsoft's IsNot operator patent.
ed,
"If I created the code allowing for Blackberry and did not allow it to be used by others I believe I am entitiled to protection for that."
That is not the point in question. That would be a copyright case (note that software is unique in being covered by both copyright and patent). This is a patent case. I haven't read the patent in question, but it'll be a patent on a method of doing things, not on an implementation of it (the written code), or it would be a copyright case. Software patents are usually the equivalent of "patent on boiling water by making it hotter" rather than "patent on putting a pot of water over a pile of burning logs". Stretching the analogy, RIM is in trouble now for heating their water on a gas stove.
To both of you,
I fail to understand why patent defenders can support software and business process patents. They weaken all your arguments dramatically. Usually the people I see supporting them have a vested interest in them.
Published: December 4, 2005 2:34 PM
Curt Howland
One of the things I find interesting about the arguments of the, ah, "pro-IP" folks, is that they seem to assume that fraud requires copyright or patents in order to be prosecuted.
I cannot market something and call it "The Real McCoy bearing oiler", because it's not. No matter how long it's been out of patent, it would still be fraud.
Published: December 4, 2005 3:06 PM
Paul Edwards
Brent:
I used to see the copyright Rothbard's way, but here is how i answer the argument now:
"When you receive some information that is under copyright, someone is doing you a service *by providing that information to you*. Because you actually received the information from the copyright holder, you are entering into a contract."
But, say i picked the book out of the trash can. Tell me who, again i received this book from. By pulling a book out of a trash can, do i really enter into a contract? I don't think this is generally how contracts come about.
"The service of transferring that information to you is the scarce good in question here, not the information itself, not the physical piece of paper or stray photons you may receive as part of that transfer."
If i've pulled the book out of the trash can, i would argue that no service has been provided to me and i have not paid for any service. I am homesteading the book, the paper, the ink. I now own the book and whatever else of value i might derive from owning the book, including the information in the book.
"As part of the contract, you have accepted a restriction on what you will or will not do with that information. The title to that service is being transferred to you with some conditions. It is not the information that is the property, it is the service of transferring that information to you."
Pulling a book from the trash does not constitute entering into a contract. I have agreed to no conditions, and there is no way that not agreeing to the conditions you refer to forces me to through the book back in the trash. I now own the book, and all value associated with such ownership. Whatever right i would have to do with a blank piece of paper i pull out of the trash, i have equal right with the book i pull out of the trash.
Copyright requires coercive government intervention to enforce, otherwise, it would be plain that ownership of a book is a very simple thing. You own the book period. If the author wanted to avoid this situation, he should keep the book in his safe, or share it only with people who will agree to and sign a contract not to share it with others. Publishing a book is no way to keep the book out of the hands of people who have not agreed to keep it to themselves.
Published: December 5, 2005 1:14 AM
R.P. McCosker
Jim Bradley:
"You make th assumption that patents are only restrictions on private property - part of the justification for patents is the stimulation of research being put into the public domain that would otherwise have been kept private or disclosed only to those entities with the capital to recompense in case of contract violation (as there would be no functional way to prevent the public from using the patent). This (as well as corporations in general) are an example of the benefits to smaller organizations. Since most growth has come from smaller organizations, I think there is a huge cost, which remains unacknowledged."
If I were to consider this from a utilitarian perspective, I'm apt to remain skeptical. I've heard that some inventions -- particularly certain chemical manufacturing processes -- are virtually impossible to reverse engineer, and so de facto possessers of those ideas avoid patenting them, which would only serve to make those things known to the competition, which could then develop analogous processes or wait out the expiration of those patents.
But your main idea here seems to be that, because (you assume) patents result in the growth of businesses, that property rights are thereby enhanced. (At least for businesses that grow.)
But that doesn't change the fact that IP *by definition* steals its
assets from tangible property holders. It's like a jewel thief saying, "Theft is great! It's brought me untold wealth!"
"I think the fact that IP does infringe on the rights of other people to use their own property (their mind and tangible property) to their own benefit independent of received ideas is a serious problem. But the libertarian system has big problems too."
That's like a serial killer saying, "It's problematic that I murder innocent people. But innocent people die all the time anyway, so what the heck!"
Brent Nelson:
"With a copyright, there is no assault on property. You have full rights to use your paper or disk space as you see fit. But: You also have the right to enter into contracts. When you receive some information that is under copyright, someone is doing you a service *by providing that information to you*. Because you actually received the information from the copyright holder, you are entering into a contract. The service of transferring that information to you is the scarce good in question here, not the information itself, not the physical piece of paper or stray photons you may receive as part of that transfer. As part of the contract, you have accepted a restriction on what you will or will not do with that information. The title to that service is being transferred to you with some conditions. It is not the information that is the property, it is the service of transferring that information to you."
Of course that's Rothbard's old thesis. Reputedly Kinsella authored a refutation, which I haven't read, but I'll just make two quick observations.
Contemporary copyright law is so broadly drawn that, even without an official copyright, material is copyrighted. So by your own standards, surely you reject that aspect of current law.
Second -- and this I hesitate to raise since it tends to go beyond the scope of this discussion -- I see no reason why a minarchist government should be in the business of enforcing contracts. Contracts should be private matters.
Indeed, how ridiculous that the government should be going after, say, the buyer of a used book for violating some supposed contract buyer had with, say, a publisher that's gone out of business!
"With a patent, the problem is that there is not necessarily a service provided, not necessarily a transfer of information from the patent holder to the person that uses the same idea. So enforcing a restriction on your use of your paper or disk space in this case is wrong. That is the anarcho-capitalist difference between copyright and patent. A copyright involves a service actually being provided, a patent does not."
Again, that's what *some* anarcho-capitalists -- including Rothbard -- argue. But plainly not all anarcho-capitalists agree.
Published: December 5, 2005 1:56 AM
Michael Barnett
Kill all the [IP] lawyers! Especially the anarchist sellouts!!! ;)
Published: December 5, 2005 4:02 AM
Brent Nelson
Paul: As Dan alluded, just because an item comes into your possession does not automatically mean you own it and all rights to it. When you buy a watch, it is only yours if the seller owned it in the first place. If it was stolen, there is still the original owner to contend with. Similarly, when you pick a book out of the trash, you can homestead the rights that were abandoned by the owner of that copy of the book, but you don't get more rights to the book than the last purchaser had in the first place. If someone downloads music illegally and drops his MP3 player on the way to his RIAA-sponsored execution, that doesn't mean you can legally sell those songs because you found them in the trash. So I don't see any inconsistencies so far in the Rothbardian position.
RP, I agree that no special case needs be made for copyright, that contract law should be sufficient. I like your example of a used book from a publisher that has gone out of business -- that emphasizes the homesteading of abandoned property aspect.
With regards to the current copyright situation, it is possible we might have come up with something similar in a natural, discovered law situation. I'm getting into a fuzzy area for me, but bear with: I don't really mind that there is an assumed copyright, there are already implied contracts everywhere in society. It was easy enough for me to release a bit of software into the public domain with a statement to that effect at the top. The default length of a copyright could emerge from case law as juries wrestle with decisions of whether or not ownership has been abandoned. Two differences that I can see: A copyright would only be enforced if the owner so desires, and a company like Disney could reaffirm it's ownership of Mickey Mouse works without having to buy off the politicians to grant it as a favor. So copyrights *might* not look that different in an anarcho-capitalist world.
The only reason I mentioned anything at all on this thread was that there seemed to be some confusion about scarcity. Scarcity for economic purposes is when use by one precludes use by another. Ideas are not scarce *in that sense* and are not property. The service of transferring that idea to you is scarce. This leads to the difference between a copyright and a patent.
If there is another anarcho-capitalist position, or if there is some fine-tuning of these ideas, I would enjoy any articles on the subject.
Published: December 5, 2005 8:53 AM
Jim Bradley
The question is the broadness of the "idea". For example, patenting a specific "operating system" is far different that patenting the idea of the operating system.
Patents do protect property rights of the originator as well (contrary to libertarian assertions that there are no property rights involved), especially when it is impossible to license without disclosure and there is a risk that the idea could become public domain.
Dan -- A tangible component is required in the sense that it has "usefulness to industry" ... it is true that you do not have to "design a machine" to obtain a patent: in only that sense I concur.
R.P. -- Patents both protect and infringe on property rights.
I think the libertarian position is "be damned to all the damage: we want a non-conflicting rights theory". There are 4 objections (1) Transition is presently impossible without massive rights violation (2) Libertarian theory in general must still appeal to a higher authority necessary to settle disputes (which will likely end at some powerful exerciser of violence or devolve into anarchist violence). This situation is true irrespective of the substitution of terms to make it sound differently ("covenants" etc.) (3) An entirely non-conflicting rights system is impossible: it does not fit the nature of man (conferred risk, raising children, etc.) (4) Libertarian ideals would better be achieved by legal theories throwing up blocks and action to the growing power of the state as it exists now rather than "building a universe in the mind". Theory is important, but really need to come down to earth.
Brent -- Scarcity, for the purpose of economics, is something that commands a positive price. Clearly "labor by one" does not preclude "labor from another source" but no one would argue that labor is not scarce. Great ideas are indeed scarce.
Published: December 5, 2005 9:45 AM
Paul Edwards
Hi Brent:
You are loosing me with your statement that appears to be key to your position: "Ideas are not scarce ...and are not property. The service of transferring that idea to you is scarce."
Going with my trash can scenario, further, let's say that the person who signed the contract not to copy the book owned the book, and so now you do since he no longer cares about the book. He did not have the right to copy the book and so you would argue he did not throw the right to copy the book in the trash. But i argue that that is between the two contracting individuals, the original seller and buyer. I now own the book and since the ideas in them are not property, as you correctly point out, there is nothing else to the question. I own the book and it's that simple. I have no contractual obligations and i own the book free and clear via homesteading. Since the ideas in the book are not property, no one has a claim on them. Since I also own all printing presses that i will use to copy the book, no property violation can occur.
The service of transferring the idea to me was performed by the person who threw the book in the trash, if you can call that a service. He didn’t actually do anything for me other than to relieve himself of what was to him trash. Do I perform a service to my garbage collector each time I present him with my trash? Perhaps I should start charging him. :)
Published: December 5, 2005 9:46 AM
Jim Bradley
Stephan -- let's cut to the chase:
I believe you claim (a) The only rights are property rights (b) property rights are 100% tangible (c) thus patents and copyrights are invalid.
Do you make the claim that a libertarian society would be better or worse? If not, what's the point?
Published: December 5, 2005 10:27 AM
Stephan Kinsella
Brent Nelson wrote:
I have previously addressed the flaw in this reasoning in my article Against Intellectual Property, pp. 39-41. In sum: the problem with this reasoning is that it seeks to find a particular right to engage in every particular action; it implicitly assumes that all humans live by permission, can must find permission to do any given action. But the proper libertarian view is that any action whatsoever is permissible *unless* it violates a right. See the referenced article at the pages noted for more elaborate discussion of this issue.
See, here you are searching for permission-to-do-something. We do not live by permission, as we would in a communist or totalitarian state.
Let me give an example. Suppose X is a famous movie star, and on her belly she has an embarrassing tattoo from her youth. Now this information is private and known only to X. X tell ssome professional--therapist, say--under a strict contractual obligation of confidentiality. She may even give the therapist a photograph of the tattoo--again, under a strict contractual obligation not to let anyone else see it or know about it.
You might argue the therapist has "no right" to tell this information to anyone else. Let's grant that he has no right. But what if he does it anyway? He posts on his blog "X has a such-and-such a tattoo on her belly," and even posts a copy of the photo to prove it.
Soon it is common knowledge that X has a tattoo. Now suppose a movie director was going to hire her for a children's film in which image is important; and now that he knows she has a tattoo, he decides not to hire her. He bases on of his actions on knowledge he has--even though the source of the information did something wrong in revealing it. Would you say the director has no right to base his actions on the information that he has? Does he now have to pretend he does not know what he actually does know?
If you say yes--he has to pretend; then at least you are consistent, because this is an implication of your implicit theory here; but it would then reveal how absurd this entire theory is. If you say no--then you are undercutting the basis for your theory about the MP3 file or the book found in the trash.
This seems to betray a lack of understanding of how the real business world works. A company that goes out of business invariably has owners or creditors, who will liquidate all remaining assets--not abandon them.
I think people who say such things really don't quite understand how copyright and patent law actually work. ARe you aware for example that copright protects not only the right to copy the literal exact version of the work in question, but a host of other rights, including the right to make "derivative" works--such as translations, sequels, moviews-based-on, etc.? So for example even if a given person has never seen the movie Star Wars, he may be generally aware of its characters and plot... he is prohibited by copyright law from writing a totally original novel "based on" this plot or characters. How in the world, even according to the more liberal version of your "retained rights" theory, is this justified? General and classic plotlines from antiquity are widespread and common konwledge; bits and pieces of them are used all the time by writers and artists, of course.
Jim Bradley:
"far" different? I think not. And so what?
? Utility does not require a "tangible component." What are you talking about?
No, they protect "ideal" rights, and in thereby doing, violate property rights.
No. Libertarians are opposed to unjustified violent conflict--aggression. Most people are not completely opposed to aggression, but are to some degree. Libertarians are just those people who are most consistent in their opposition to aggression and, consequently, in their search for justifications for the imposition of force and violent conflict and struggle. They are the ones that are most reluctant to use force, and that have the most stringent standards and requirements for justifying force. The most stringent and principled opponents of aggression are anarcho-capitalists.
? by who? to what?
How do any of these trite observations establish that libertarians are wrong when they maintain that aggression is unjustified? Are you saying that aggression is sometimes justified? IF so, you are not a libertarian; if not, then what are you jabbering about, because none of this is relevant.
Published: December 5, 2005 10:52 AM
Paul Edwards
Jim:
When Stephan makes comments such as “not everyone is a utilitarian� and then makes reference to “rights and principles�, what i believe he is saying is that the question of whether a certain conclusion makes us “better or worse� off is irrelevant to him. That is the chase.
The only question is this: What is JUST? What adheres to the non-aggression principle? Stephan uses argumentation ethics to justify his position. It is a priori logic that allows the determination of what is defensible and what is indefensible. When he says he is not a utilitarian, what he means is, he believes a principled stand for justice trumps the question of whether we are better or worse for taking the stand. The point is what is justified and what is not. This is ethics.
He may also view, as some do, that upholding justice will also result in the optimal long term benefits for society. However, this is secondary to the belief that justice must be upheld.
Published: December 5, 2005 11:14 AM
R.P. McCosker
Brent Nelson,
You wrote:
"RP, I agree that no special case needs be made for copyright, that contract law should be sufficient. I like your example of a used book from a publisher that has gone out of business -- that emphasizes the homesteading of abandoned property aspect."
Uh, I think I failed to communicate here. I don't agree with you at all! (Not so far, anyway.) I was, if anything, expressing skepticism of Rothbard's contract theory of copyright.
In the example, which I didn't flesh out sufficiently, I was thinking of a book from a used bookstore, from a now-dissolved published. The idea was two degrees of separation, and how outrageously microregulating it was of the State to be dictating to me the use of its textual content. Yet that's the implication of copyright law.
The contract thesis seems as lame as any in defense of copyright law. I'm not your ally in this.
Published: December 5, 2005 11:39 AM
Stephan Kinsella
Jim Bradley:
Let me be clear. I happen to believe aggression is unjustified. It is pretty simple. Do you?
Actually, everyone believes in property rights: property rights just refers to the fact that in a given system some owner is assigned to a given resource. Everyone has some theory of property rights: socialists think all property should belong to the state, at least for the means of production. This means that they believe the rule of assigning title to (certain) scarce resources is simply: the state should have it.
As I argued here (also in this article: Defending Argumentation Ethics, see the section on "Libertarian Rights"), what distinguishes libertarians from others is not *that* we believe in property rights, but rather how we want property rights *assigned*. Since we oppose aggression, we want property rights to be assigned to the first user of a previously unowned scarce resource, or to whoever he voluntarily transfers the title to. Any other rule relies on aggression: to assign ownership to the state, for example, implies theft of the property from its original owner.
So I would not say I think there are "only" property rights; rather, a more precise way to say it is that all rights are of course property rights; and that the only legitimate (property) rights--the only legitimate way of assigning property rights--is a system based on first possession homesteading of rights, which implicitly adopts an anti-aggression stance.
So, if you are not a libertarian, you necessarily favor forceful transfer of title from the original owner to a non-owner; and vice-versa.
Re patents, as I have argued, the problem with them is that they assign property rights based not upon first possession of a given resource, but merely based on some private activity of another person with respect to other property. It is on a par with merely verbal decrees to own property or other arbitrary criteria that undercut the first-acquisition rule and indeed the legitimacy and objectivity of all claims to property.
Since I oppose aggression--and you apparently do not (you are free to correct my impression if I am wrong)--yes, I think a libertarian society is "better" since it is one in which systematic, institutionalized ("public") aggression is eliminated or radically minimized.
Do you not think eliminating public aggression is "good"?
Paul Edwards:
Well, it is more than this--utilitarianism (as I point out in my Against IP piece) is incoherent: methodologically, since utility cannot be interpersonally compared, nor is it even cardinal for a given individual; and morally, since increasing overall utility would seem to justify killing some innocent person if it would make others happy enough to generate a util surplus, which is obviously, intuitively, morally repugnant.
Published: December 5, 2005 11:58 AM
Jim Bradley
Stephan -- You make a utilitarian argument. Clearly the pure forms of utilitarianism AND of "principles only" are false as repugnant results from either can result. The basic problems:
(1) Impossible transition (2) Necessity of an appeal to violence (3) Non-conflicting rights impossible unless all men are moral (4) thus the "Fantasy Universe"
The fact that utility cannot be interpersonally compared doesn't relegate all legitimate legal action to pure private property: It might be impossible to compare the "utility" of the pedophile versus the innocence of teenage children ... hopefully you do not support children emancipating themselves from their parents at a young age (and what system do you propose if you do?).
Libertarianism goes a long way, but serious issues remain, and most people rightly have reservations (not that our greatest enemy isn't the state ... but the question is what arguments are the most non-controversially effective?)
Published: December 5, 2005 12:33 PM
Dan Mahoney
The fact that someone pays a price for an invention based on my brilliant idea means
that they are paying for this actual, physical invention that implements my idea;
they are *not* paying for the idea itself. An idea as such cannot command a price;
only particular actions (with property) based on that idea can be the basis of
exchange, and it is these *actions* (not ideas) that are subject to questions of
ownership.
Jim Bradley seems to be confusing scarce factors of production with the particular
ideas that motivate their assembly in some (valuable) way. The former are necessarily
scarce; once I put some factors together, these factors cannot be put together in
some other way, by me or anyone else, regardless of what other ideas come into being.
The latter are not; you can have the *exact same* idea that I just had; however,
to act upon that idea, you must acquire and assemble *different* (i.e., scarce)
factors of production to implement that idea.
What possible claim can I, as the original progenitor of the idea in question, have
on these *new* factors of production? The IPer's would seem to hold that the fact
of first conception is somehow transferred to all *subsequent* use of factors that
are motivated that conception. This plainly absurd.
Dan
Published: December 5, 2005 12:37 PM
Stephan Kinsella
Jim Bradley:
I don't care what you call it. My view is that the essence of libertarianism is that aggression is unjustified. I don't see this as "utilitarian," but if you want to play games with semantics, feel free. I also believe that a given ethical rule cannot be coherently justified by trying to estimate or measure, and then sum up, the various "costs" and "benefits" of the rule, because of the subjectivity, incommensurabilty, and non-cardinality of value; and because of the unjustified moral assumption that it is okay to sacrifice A if it hurts him less than the sacrifice benefits B. I think this view of mine is anti-utilitarian, but again, you are free to play whatever word games you like.
I have no idea what you are trying to say. The "basic problems" of ... what? I think you are not coherently stating any position that I can respond to. I have no idea what you are trying to say--I have pointed this out several times and you persist in your vague, context-less assertions.
I see no easy way to respond to this rambling, incoherent, ad hoc list of statements.
I have no idea what this is supposed to mean.
Where?
Okay.
Published: December 5, 2005 1:38 PM
Jim Bradley
Stephan -- Nix the "rambling, incoherent, etc." stuff. Context makes clear what is being discussed and you're well versed in libertarian philosophy, hence you need no comprehensive explanation.
You have to use a utilitarian criteria under the same argument Hoppe makes for the necessity of libertarian view of rights: to argue at all you implicitely accept some form of utilitarianism.
The basic problems with libertarian arguments:
(1) Impossible transition (2) Necessity of an appeal to violence (3) Non-conflicting rights system impossible unless all men are moral (4) thus the "Fantasy Universe". These are practical objections, #3 is the theoretical objection most in context to our discussion -- the libertarian assumes that all rights are private property rights (certainly children have greater rights than those).
If aggression is justified only in the cases of being a victim of tangible private property violation ... one must adopt a view that there are no conflicts except private property conflicts that are legally actionable. But how can you show that to be the case? Applying the criteria (universal rules, objectivity, settling conflicts) a law protecting the rights of (say) young kids under the age of 14 from predatory seduction by teachers is in fact, legitimate (noting the unfortunate violations of kids of 14 that in fact are able to make adult decisions -- it's not a perfect world). Or production of biological weaponry on your land in your lab is precluded (and if discovered, you can be jailed). The point is those "rights" are intangible and just.
And I believe you commit a straw man: clearly the fact that utility cannot be computed or compared does not at all restrict legitimate state action (It may be that the killer valued killing more than the victim valued life).
Similarly, interpersonal utility comparisons are irrelevant to the question at hand.
Published: December 5, 2005 2:33 PM
John
An interesting - and wholly useless discussion.
I'd love to see you, Mr. Kinsella, publish a book (or piece of software, or mathematica process...ad nauseum) and relinquish all rights to it - and all of its derivations - at the time you release it. You stand on your "rights" don't you? Sounds like you're an incredibly snotty hypocrite with a penchant for belittling others.
If you spend your time and energy producting an "intangible" product - you will want to profit from it. One of the basic failures of your whole philosophical perspective is that you want to benefit from the works of others (regardless of their benefitting from their own work) yet seek to exact payment for your work.
Such a morally and intellectually vapid crock has rarely been presented.
Published: December 5, 2005 2:41 PM
Brent Nelson
Stephan: I do appreciate the reductio. I hadn't looked at it quite that way before, as a positive obligation like in your case of hiring the tattooed actress. I will concede that regardless of how knowledge of the tattoo is acquired, there is no obligation to hire the actress. I just can't quite see why I am proposing such an obligation. But take heart, I will look at the articles you mentioned.
Paul: Yep, you signed no contract. The service was only provided to the purchaser of the book. Argh, I still don't think I am demanding a positive obligation. If you find a gold watch on the street with someone's name on the back, you are not obligated to track them down and deliver it to them. But if that person comes up and says "I didn't really abandon that watch, it was stolen from me and the thief must have dropped it", aren't you obligated to return it? It seems like there should be an aspect of relinquishing the gold watch in this whole finding-a-book-in-the-garbage copyright thing. Before you panic, yes I realize that a gold watch is a tangible object. I'm not trying to turn an idea into property. Sigh.
Here's a better analogy. I own some land. Stephan, my neighbor, contracts for an easement across the land. If I sell the property to Paul, Paul has to honor Stephan's easement. If instead I abandon the property, Paul can homestead the land but still can't kick Stephan out. Paul can't assume full ownership of the land because I didn't have full ownership to sell or abandon. If you accept that the contract for the easement is valid, don't you have to accept the limitation of Paul's purchase or homestead? So when Paul finds a book in the garbage, don't you have to accept that there may be a similar limit to his ownership of that book? Now, I want to be careful here, Paul is not obligated to run around trying to see if anyone has an easement on his new property. But he might be wise to, because if Stephan shows up holding his contract, from that point on Paul would have to take it into account. Not so?
Or is this really an argument about what sorts of contracts are enforcable? Or the side effects? Say Stephan writes a book and sells one to me on the condition that I not sell reproductions. We write it up, sign it and pinky-swear. Could there even be a valid contract to that effect? If I turn around and start selling copies, I assume that breaks the contract. If I merely hand it to Paul, and Paul starts selling copies, could I have broken the contract? Is how it got from me to Paul important? Maybe I was negligent in not using a licensed shredding service when I abandoned the book? Can Paul continue to sell copies? Even after Stephan explains to him about the contract?
Anyway, I'm not quite ready to abandon the contract idea -- it seems like there should be some sort of contract that protects a book. But at least now I know that there is another anarcho-capitalist position on copyrights, even if I don't understand it yet. I'm sure some of you are exasperated by covering old ground here. But it's new to me. And hey, it's Rothbard, it's not like I'm trying to revive the Real Bills Doctrine. :)
Published: December 5, 2005 6:33 PM
R.P. McCosker
Brent Nelson:
You seem to be analogizing IP law with two different things: (1) the right of original ownership, and (2) confidentiality agreements.
(1) I agree, the original owner should be able to demand back his watch from the finder. And ditto respecting a valuable physical copy of a book. (One like, say, the LMI's *Human Action: The Scholar's Edition*.) But ideas, once they escape and are out there, and can only be restricted by attacking the (previously "homesteaded") tangible assets of others.
(Now, if someone has burglarized and publicly released secret ideas out of safekeeping, he would still be susceptible to the usual criminal and civil sanctions. But, to be ethical, they must be directed at *him* -- and *not* to outsiders who serendipitously are able to utilize those ideas. As unfair as such a situation may be for the victim, to deny the general populace use of the former secrets would constitute aggression against the extant property holdings of that general populace. This is no more unfair, BTW, than the victim of a more tangible loss -- the theft of his jewels, say -- not being able to command compensation from other owners of tangible assets.)
(2) I don't know the current state of jurisprudence here, but I'd think that to be ethical confidentiality agreement enforcement must not extend beyond the signatories. Again, once the cat is out of the bag, coercively preventing applications of those ideas is an act of aggression against the tangible assets of others. If such a signatory loses a document, then the enforcement demand may not extend beyond uncovering the signatory's negligence and seeking appropriate civil damages and torts against him.
Published: December 6, 2005 2:25 AM
Stephan Kinsella
RP:
Actually, if memory serves (see section 2, and the definition of "misappropriation"--last part, (C), of the USTA), under current trade secret law, as far as I know, the judge can order an injunction against third parties who have come into the possession of trade secrets by the actions of one of the parties who has an obligation to keep it secret. This only works if only a limited number of third parties have been exposed to the information. If the information gets out to the public at large, however, it is no longer a trade secret.
Whether this is justified or not, I am not sure, but I tend to doubt it. The best argument I can think of that tries to justify this would be that the third party is "aiding and abetting" the trade-secret-leaker in committing a property crime. But I think this argument makes more sense when the third party is actively trying to induce the employee etc. to violate his trade secret agreement, not when he accidentally or innocently learns of it.
Published: December 6, 2005 8:13 AM
Paul Edwards
Brent:
I felt exactly the same way. What switched me over was the realization of the original utility of the concept of property: scarcity. If i imagined a world where there is no natural scarcity, and there was no situation where one person's using a good meant another could not use it equally as well, the idea of property could hardly have arisen. Property comes up because it ethically solves the problem of who gets to own a particular scarce resource.
I know you are not claiming to make an idea into property, but humor me with reading my logic: I own my thoughts and my ideas, even if some of them were modified or completely inspired by another. There is no telling a person (beyond an explicit contract) not to think and express thoughts another originated and lays claim to. Therefore, nor is there an ethical stand (beyond an explicit contract) to tell a person not to reproduce a stream of characters on paper (which represent ideas) that another originated. The similarity of the two scenarios seem overwhelming from an ethical perspective.
Published: December 6, 2005 9:34 AM
tz
I would argue that an opensource model - which produced linux - could produce pharmaceuticals and even other inventions.
The current IP regime is as outdated for the 21st century as the patents on trade that gave our founding fathers things like the East India company. You needed a license for monopoly trade.
The dinosaur will thrash in the tarpit for a while and make a lot of noise and probably do a lot of damage, but it will eventually die.
Before, it was too expensive to do much with "remix" - collecting and creating collages of ideas. Now it is inexpensive, so they want both legal and technological measures to prevent it. Opensource and the internet will bypass both.
Published: December 6, 2005 10:55 AM
Stephan Kinsella
Jim Bradley:
Well your views are not explicit enough to make it obvious that they rest on internal contradictions. Just trying to make you state it explicitly so that you will see, and be forced to choose.
Whatever. Use whatever semantics you want, if you want to play games. But I do not base my arguments on the idea that we should choose rules that maximize utility. Utilitarianism (as I point out in my Against IP piece) is incoherent: methodologically, since utility cannot be interpersonally compared, nor is it even cardinal for a given individual; and morally, since increasing overall utility would seem to justify killing some innocent person if it would make others happy enough to generate a util surplus, which is obviously, intuitively, morally repugnant.
Hmm. I assume you oppose murder. But you recognize that it is still going to occur. Would you say that there a problem opposing murder because there wouldbe "transition problems" going to a socieyt with no murder? What are you talking about? Do you not even know what moral principles are? What it means to have one? The difference between a normative view and a prediction? The difference between principles and tactics/strategy/activism?
Not sure what you mean but violence is not wrong per se. A violent response to a criminal is just fine.
Sorry, but I missed your justification for aggression. Where is it, again?
Are you saying that aggression is (sometimes?) justified, or that it is not? What are you trying to establish? Are you saying that people who say aggression is unjustified are *incorrect*? What exactly is your position here?
Well, you are right--"facts" do not "restrict legitimate state action." I fail to see what you are trying to establish here.
Yes, it might be. And if so, the utilitarian would have to say the killing was justified, since it gave rise to a net increase in overall utility. Voila!
"John":
Well, most "discussions" are "useless"; if they can manage to be interesting, that's a pretty good accomplishment. BUt note the use of "useless" here--the implicit adoption of the strategist/tactician/pragmatist mentality. The type of libertarian for whom all that matters is activism; principles, truth, honesty, do not count; they are time-wasters. All that "matters" is coming up with arguments that "work"--if an argument "will persuade" people, it's "good" (regardless of its soundness); if an argument "will not persuade" other people, it's "bad" (regardless of its soundness). These disingenuous activist-minded people are utterly boring and tiresome.
I do not undersatnd what argument this "John" character is trying to make. Is he saying that "If an opponent of IP benefits from the current IP scheme, that proves he is wrong."?
(And how does one "relinquish all rights" one has in a book? Methinks "John" has no idea what he is talking about. Does he think a statement on my website would suffice to "relinquish" all rights? Utterly clueless.)
How does any of this screed prove the patent system is justified?
How does the fact that people "want" things prove they are entitled to patent rights?
How does this prove that my thinking of a way to use my own property somehow gives me the right to tell others what they can or cannot do with their own property?
Brent:
The decision not to hire her is based on information he has. If you say he can do this, you say he has a right to use the information--to based his actions on it. But notice that an invention is the same thing--a recipe. It's just technological information that helps guide action. So if I know of "your" technique for making glue, I can use this information to guide my actions--make my own glue. IF you believe in patents you have to say that the inventor of some new glue making process has a right to this *information*.
I.e., if you say the guy can refuse to hire the actress, you are implicitly admitting information is not property. If information is not property, there is no basis for patents.
The problem is that we are all agreed that land is an ownable thing. So really, by saying Stephan has an easement, you are saying I'm a co-owner of the land, with you. So if you sell your share, the new owner is a co-owner with me; and thus I still ahve my easement.
However the copyright argument works only if you assume information--patterns--are ownable things. They are not.
Forget about the book case; the tangible book confuses things. Suppose you hear someone humming a catchy tune in an elevator. Now you like it; what "easement" is at issue? How can you be bound by some agreement between the hummer and some tune-composer?
The argument really concerns what "things"--ontologically--are ownable. I say, only scarce resources. Just because you can attach a word, or concept, to a "thing" like a "poem", does not mean "it" is "ownable".
tz:
Could be. What is the argument? How do you see it happening? Could you elaborate?
Published: December 6, 2005 11:28 AM
Yancey Ward
Well, since I owe my present living to IP protection of pharmaceuticals (I am a chemist who works in drug discovery), I will take up tz's argument.
Yes, open source could easily produce pharmaceuticals given that the present state regulatory apparatus disappeared tomorrow. It would not only produce pharmaceuticals, but it would likely produce them in far greater variety, tailored to specific groups, even if treating the same diseases. The reason IP protection is needed, as opposed to just wanted by pharmaceutical companies, is that the regulations in drug development are so onerous that the cost involved bringing just a single compound for a single disease indication through to market is so high that practically no one would even bother funding such research without some hope of recovering the costs. The problem is that the chemical identity of final drug product can't be concealed, and its production is almost always going to be miniscule compared to the cost of all the years of testing required before you can contract usage with a patient.
I used to be a believer in the IP system that we have, but it only serves a purpose in that it ameliorates the effects of other state interventions in our private lives and dealings.
Published: December 6, 2005 12:33 PM
Jim Bradley
Stephan -- Clearly you make the argument that libertarian society would be better ... and in fact you make the claim that it would be better for nearly everyone.
That, my friend, is a form of utilitarianism however much you wriggle and scream about it not being so. To argue IS to adopt utilitarianism. And in fact to argue is also to adopt the "reasonable man" criteria, which also means the "reduction to absurdity" can be a straw man.
Because there are cases in which reasonable people seem to reject utilitarianism does not make it invalid: but in fact says that "the appreciation of justice exceeds the cost in human life". That is a pro-social morality and the only non-contradictory form of society (any other form of society is populated by those unwilling to pay the price in the maintenance of freedom). I make no further claim of the rightness of utilitarianism than that.
Your argument pattern is to obsolve yourself from any difficult implications by restricting the range of discussion. You say "I am claiming only X" while X implies Y and Z, but you internally obsolve yourself of claiming Y and Z. That practice is not done so that "I will see my contradictions" but so that "you can avoid the implications" and also so that "you will catch me in a contradiction you can exploit".
Reasonable discourse requires that you bear the burden of implications, irrespective of your wish not to do so.
Impossible transition: Achieving the libertarian state (as was the independence of the 13 colonies) can be accomplished and defended only by force ... which is what libertarians were supposed to avoid. Unless Galt's revenge is for real, the libertarian ideology of peaceful interaction by refashioning society is fiction. Theory is important, but practicality is also crucial.
Necessity of an appeal to violence: libertarians cannot achieve and enforce their society except by violence, hence the issues that arise are again the problems of "states" and their limits and how such "states" would be able to cooperate where they need to. There will still be conflicts and an authority needed to settle them, and there still will need to be a strong national defense and there will also be conflicts between states ... All these problems are simply ignored as if the "libertarian" position is "self-consistent".
Non-conflicting rights are impossible unless all men are moral: As if the seduction of schoolchildren by a teacher doesn't make this claim clear. Rights exceed private property boundaries, especially in the cases of children.
I've got to say your depersonalization of "John" is simply bizarre "I do not understand the argument this 'John' character is trying to make ..."
John makes a legitimate point. A person (you) has a right to sell his or her work and not have it stolen. You exercise that right but deny it exists. Hence any money you receive is ill-gotten and should immediately be refunded. Consistency demands action.
The criticisms of patent law have been noted. The criticisms of "no patents" have been psychologically neutered by a invalid isolation between what is claimed and the logical implications. I should hope your next paper (if not done already) discusses the shortcomings of the libertarian theory and how those shortcomings are overcome.
Published: December 6, 2005 1:07 PM
David J. Heinrich
Jim,
WIthout spending too much time rebutting this non-sense...
1. It is obvious that saying, "system X would (if implemented) generally be desireable from the 'utilitarian' pov" is different than saying, "the utilitarian pov is right".
2. Your repeated reference to "violence being necessary" is: (a) A mere assertion, of which you provide no evidence what-so-ever. There's an argument that a pacifist society can work fine; (b) Irrelevant. Libertarians are not, qua libertarianism, opposed to violence; only the initiation of aggression is opposed, qua libertarianism.
3. Re the burden of consequence, you can assert all the consequences you want. So-far, most of your assertions have been just that -- assertions, nothing more. However, this isn't particularly relevant, unless one takes the idiotic, flawed, and morally bankrupt utilitarian position.
Published: December 6, 2005 1:34 PM
Stephan Kinsella
Jim Bradley:
Do I? I argue that aggression is unjustified.
I.e., you think anyone who believes in anything is a utilitarian? Very useful concept then.
Wow, deep, man, deep.
Do you oppose aggression, or do you endorse it? Simple question.
Whatever. So. Anyhoo. Do you maintain that aggression is justified, or not?
Okay. BTW, do you maintain that aggression is justified, or not?
First: libertarians are not against force. We are against aggression, which is the initiation of force. We are not opposed to force responding to aggression. Second, I don't agree with your bare assertion that a libertarian state can only be achieved with force. I wish it could. Sadly, I think it can only be achieved if a sufficient critical mass of people voluntarily adopt its central norms. Third, I don't think it will be achieved, for this very reason. Fourth, views of activism, strategy, rhetoric, tactics--is not the same as one's own moral or normative views. I oppose aggression. It is immoral and wrong and unjustified. Do you oppose it? It's a simple question.
If you refuse to answer, I will assume you do not oppose aggression--that is, you are willing to endorse, or commit, aggression, i.e. acts of violence committed against innocent victims. Feel free to deny it (and join me on the libertarian side).
Ummm... crucial to what?
Thanks.
You can "sell" work? Interesting. How does one do that. Much less "steal" it. Are you speaking metaphorically?
Hey, call the consistency cop (I think it's called "reality").
Please regal us wiht your other hopes and dreams.
Published: December 6, 2005 2:23 PM
Jim Bradley
David --
1. Utilitarianism cannot be entirely faulty if it is fundamentally necessary to argumentation (stolen concept fallacy)
2. "Violence being necessary" is more than assertion: examples of the reason violence is necessary have been given. Clearly assuming away the primary problem: the existence of violent men, is a monumental blunder, exceeded only by the attempts to intellectually justify that position ("a pacifist society" ... While we're at it, why not just define away scarcity and promise free ice cream and good weather?). Come on David.
3. The non-libertarian has "assertions" while libertarians claim to have ... a "logically coherent system" by definition!! Where have I heard this before? Really, hasn't this become a "create your own universe" game? Isn't the leap from praxeology to state legitimacy to interpretation of history to enforceable morality just a wee bit tenuous? Geez.
I think it's valid to ask that libertarians Respond to objections in this world not in another universe.
Published: December 6, 2005 2:26 PM
Jim Bradley
Stephan --
Pre-emptive or non-property rights legal restrictions are justified in some cases.
Since you believe in non-aggression, would you not also argue that intitiating hostile action (amassing troops on a border, preparatory invasion, surrounding an "enemy") is indefensible?
Yes you can sell work: property is rarely sellable in it's natural form. You labor "imbeds" itself in property following a Lockean theory of rights.
Got to wonder: since you don't ever believe that we will have a libertarian society, is this just a form of entertainment?
After all you've said "yes, I think a libertarian society is "better" since it is one in which systematic, institutionalized ("public") aggression is eliminated or radically minimized."
Published: December 6, 2005 2:40 PM
Stephan Kinsella
Jim:
I assume you are saying aggression is justified. Fine. You are not a libertarian; from our point of view, you are akin to a criminal.
Hostile? Is hostile the same as aggression? I am hostile to anyone who wants to break into my house, it seems to me, so "hostile" is not necessarily aggressive.
Hmm, you are using a metaphor, are you not?
What? Metaphors lead to confusion, you see.
You presumably oppose most acts of murder. Yet you cannot be dumb enough to think we'll ever achieve a murder-free society. So is your opposition to murder just a form of entertainment?
Published: December 6, 2005 2:51 PM
Jim Bradley
Stephan -- I see. Let's focus. Others that disagree with you are akin to criminals: apparently you now have the justified ability to use violence? If not, why not?
Is your libertarian argumentation more than entertainment, Stephan?
Published: December 6, 2005 3:18 PM
Stephan Kinsella
Bradley:
Well you admitted it. You admitted you are in favor of aggression. But that is how we libertarians *define* criminals--those who commit aggression. So to that extent you have something in common with criminals.
You mean against non-libertarians? But of course. Any aggressor--including supporters of institutionalized aggression--deserves punishment. It's just a question of prudence or mercy whether or not to mete it out.
How would I know?
Published: December 6, 2005 3:22 PM
Jim Bradley
Stephan -- I see. Any non-libertarian (as you define them to include a person believing "Pre-emptive or non-property rights legal restrictions are justified in some cases") are a supporter of "institutionalized aggression" and thus "deserves punishment" and "it's just a question of prudence or mercy whether or not to mete it out."
Does that belief extend to the claims in all your writings? Are "non-libertarians" rightly subject to violence on their persons?
Of course I see your point: if we were to continue to fantasize about the non-existence of murder rather than apply practical impediments to murder, that would be the same as complying to the acts of murder ...
Published: December 6, 2005 3:42 PM
Stephan Kinsella
Jim:
Jim: I asked you if you support aggression, and you evaded the question, giving me the mumbo-jumbo above; so I have no choice but to try to decipher your meaning, and it seems to me you are reluctantly, begrudgingly, admitting you do favor aggression in some cases. If you don't, feel free to correct my assumption. If you don't, I will assume I'm right. This is a tactic I often have to take when dealing with slippery relativists and hippie types.
I am not sure what you are asking. I have advocated a libertarian view that proportional punishment of aggressors is, as a general matter, justified. Someone who is an aggressor therefore may be punished, proportionally, based on the nature of the aggression committed.
Now if you merely go around advocating aggression but never actually commit it, you still share in common with an actual aggressor (one who commits it directly) the endorsement of aggression, but then we must ask if merely advocating aggression is itself aggression.
In a society like ours where we have massive state aggression committed only because the state has the tacit and explicit support of a large number of the populace, ordinary citizens who support the state (and its aggression) are arguably partly responsible for the acts of aggression it commits. A juror who votes to convict someone being tried for a victimless crime, for example, is in my eyes an aggressor. Someone who urges people to vote for a political candidate who is obviously more socialist than others is argually playing a causal role in the crimes the state commits. Someone who loudly agitates for an increase in taxes, or an increase in welfare, an increase in business regulations, for the state to go to war, for more socialism to be imposed, for healthcare to be socialized--arguably, they are complicit in an act of criminality. Should they be shot? I don't know. It's just a detail.
For more on this see Walter Block, “Toward a Libertarian Theory of Guilt and Punishment for the Crime of Statism� (Oct 6 Auburn, AL, Auburn University, Mises Seminar, The Rise and Fall of the State; forthcoming). As I have argued before--if your neighbor is a democrat, or Michael Kinsley, technically you have a right to jump over his fence at night and steal his lawnmower for restitution. Whether this is prudent or not is a separate question.
You are putting words in my mouth. Most unsanitary. But anyway, the point is that if you endorse aggression, you are endorsing criminality, if not engaging in it. Whatever this is, it is not libertarian. I am a proud libertarian. I do not shy from admitting what I believe, unlike a lot of non-libertarians, apparently, as your case shows, with your mealy-mouthed refusals to clarify exactly waht you believe--to frankly come out and admit that you believe in breaking a few eggs to make an omelet. So if you expect me to apologize for or be embarrassed by my libertarian principles--or by the implication that a person who supports the criminality of the state is perhaps criminally responsible for the criminal actions of the state--you will be sorely disappointed. It is not my fault that some people endorse and condone criminality, and make the mass murder and misery and impoverishment perpetrated by the state possible.
Published: December 6, 2005 4:19 PM
David J. Heinrich
Jim,
1. Utilitarianism is not necessary for argumentation. It cannot be, since it is impossible. The utilitarian doctrine is that that which is right is that which "maximizes the net social good". This is a bunch of meaningless tripe, as utility is ordinal (not cardinal), and inter-personal utility comparisons are impossible. What is necessary for argumentation, and hence what cannot be consistently disputed by an arguer, however, is libertarian homesteading and self-ownership (the NAA).
I've made other objections to Utilitarianism, namely that (even if we ignore the interpersonal utility comparison problem and the ordinality-problem) make it invalid. For one thing, the doctrine has the preposterous outcome that the more peverse an individual is, the more his acts are justified, because he may derive some kind of peverse and lasting pleasure from acts of cruelty. Utilitarianism could be used to justify the gang-rapes of Chinese women by Japanese soldiers during WWII. You see, the more the women are raped, the more the "disutlity of rape" declines (declining marginal returns), while each additional rapist experiences the "marginal benefit" of rape for the first "unit of rape". And furthermore, if these soldiers are of a demented enough mind, they might derive some kind of lifelong satisfaction from the remembrance of their violation of these women (thus, from the view of the Utilitarian "ethical" system, cancelling out possible life-long trauma the woman would face).
Hoppe has also noted that utilitarianism isn't even an ethical system at all, as it doesn't and can't answer the question of, "What should we do right now?" All that it can say is "try X", and see if you like the consequences of that; and then if you don't, you simply try something else, and measure the consequences of that.
2. You haven't shown why violence is "necessary". You've shown why it might be desireable, in your view, as a means to achieve some ends you seek.
Furthermore, stating that there are violent men isn't some kind of counter-point to libertarianism. Violent men would exist in any social system that you could conceive of. The argument of libertarians -- which has been rigorously made -- is that libertarianism is the best system for any distribution of the qualities of men (good to evil), and that libertarianism limits the damage evil men can do, and also reduces the number of violent men in society. It should be quite obvious that a system of State and highly centralized power is particularly dangerous, given that evil men exist, who will inevitably rise to the top of such a system.
You seem to have the dimwitted view that somehow pointing out that there are criminals -- individuals who initiate aggression -- somehow invalidates libertarianism (the tenants of which are homesteading, self-ownership, and the non-initiation of aggression).
3. One libertarian response to your consequentialist arguments is, "So what?" Consequentialism as an objection to a moral system is a logical fallacy.
You then come up with this assertion that anyone engaging in an argument is engaging in Utilitarianism. Utter hogwash. Firstly, since Hoppe has already demonstrated that Utilitarianism contracts the a priori of argumentation, this is impossible. Secondly, simply to say, "better" is not to be an ethicl Utilitarian. Having utility does not make one a utilitarian ethically. Saying that something is "better" doesn't make one a utilitarian. Nor does saying that libertarianism could address all of the issues people bring up (e.g., inventions, roads, justice, education).
Published: December 6, 2005 4:22 PM
Brent Nelson
Thanks guys, I'll keep plugging away here. Take the case where Stephan sells a book to Paul with a non-copy contract between them. Maybe it's easier to think of it as Stephan's book with Paul getting an easement. Stephan retains the title to that book with some use of it ceded to Paul. If Paul combines that book with his own labor and materials to produce a new copy in defiance of the contract, I don't think Paul has clear title to the new book. Similarly, if Paul sells me that book to which he does not have full title, that restriction can apply to any future book I make as a result.
It seems to hinge on the validity of the conditional title transfer and if you accept that the old book was combined in making the copy. If it came before an arbiter, should he accept that the old book was used to create the new one? Maybe a better way to look at it would be: Could the new book have come into existence without the old one or not?
If you don't accept that last bit, then legal action is restricted to only the two original signers of the contact, and the title to the new copy is clear. Does that mean that punishment for the violation of the contract must be a single shot that is fired only when the purchaser makes the first copy? I mean, every copy after the first is a copy of the copy (to which he has clear title). If not, if the purchaser can be held responsible for multiple copies, would he then be responsible for every copy made by other people from his copy, even if they are not?
So that's where I'm coming from on the copyright. I didn't realize copyrights had expanded so much, I was thinking of them in a pretty narrow sense. I never claimed to be fond of patents, I don't think I'm demanding that anyone hire tattooed actresses. It's just that when there is a trail to follow from book to copy to copy, the work hasn't necessarily escaped into the wild yet.
Published: December 6, 2005 4:27 PM
Stephan Kinsella
Brent:
I hate to plug my stuff but I deal w/ this extensively in the discussion of Rothbard's view of copyright, in my Against Intellectual Property article. I'd suggest you check that out.
Well, I don't necessarily agree. First, I don't think this is an area we can deduce sitting in ou libertarian armchairs. The common law has workoed out some complex rules about title to property in such cases, that ought not to be just thrown out, rationalist-style.
But anyway, let's take a better example. Stephan writes a novel, that no one has yet seen. He lets Paul come over to his house and read the only copy of the book, on the condition that he never tell anyone of the book's plot.
Paul reads Stephan's book and has a very good memory. He leaves Stephan's house that day, with most of the novel's plot memorized. It is in his brain.
He then walks over to Brent's house, and recites the plot of a novel to him--say, he tells Brent he just thought of a new story, and here's the plot.
In this case--what *possible* restriction can there be on what Brent does with this information? Don't you see you *have* to say there are property rights *in pieces of information* in order to restrict what Brent does in such a case? It is not enough to say there is a physical book with limited-rights in it--that is not the case here. It is not enough to try to base it on contract--Brent had no contract with Stephan. Etc.
Published: December 6, 2005 4:44 PM
Jim Bradley
Stephan -- Do you really have a theory of the proper use of violence that is "more objective" than that of a collection of 1000 mothers that want to protect their underage daughters from older men? Get serious. Probably there are multiple criteria to arrive at a reasonable structure.
It also sounds like you have a theory that justifies unrestricted aggression against any person not supporting "libertarianism". But surely that is invalid, as by your own code, no one owes a positive duty to anyone, and it takes positive action on the part of the majority to restrain government. WHO are the guilty?
And of course you do make aggression by the state possible ... hence the comment "if we were to continue to fantasize about the non-existence of murder rather than apply practical impediments to murder, that would be the same as complying to the acts of murder ..." The assertion that all rights are only property rights ... I think that is dramatically false. At what governmental level those codes are enforced, I think is the more practical question.
It's also not "your fault" (if you reside in the U.S. or Western Europe) were born into Western Civilization, the wealthiest and fairest system on the earth, for all it's unfortunate faults and lack of commitment to principles of freedom. Can you really secede? In fact, would such secession be permitted in a libertarian society (say for instance a person not believing in private property and aggressing against others)? the point is, morality whether libertarian or otherwise, must be enforced contrary to the fantasy that there is a system where it is not (and don't "define away" the problem by claiming there is such a thing as a "pacifist society").
Am I a libertarian? Depends what you mean by "libertarian". I support restrictions on my neighbor making biological WMD in his backyard, restrictions to the age of consent and contract, laws that prevent the unreasonable transfer of risk under the current (not an imaginary libertarian) ownership system (like speeding, firing guns in the air), I support a volunteer national army (no draft), I believe in private schooling and to the extent that can't be achieved (or as a first step), vouchers - however nothing whatsoever at the Federal level.
I believe in "old style" conservatism: the original intent of the Federal Constitution (else laws have no meaning) and abolishment of everything unconstitutional outside of that structure (including the Federal Reserve by abolishing any capital gains tax on financial assets and thus currencies). I believe in "voluntary competing socialistic organizations" for people that want to join (probably organized churches) as the practical implementation of social insurance, with all state intervention ceasing immediately.
That doesn't disqualify me as a libertarian in most people's eyes ... but your's, I don't know.
Published: December 6, 2005 5:33 PM
Jim Bradley
David H. -- But you make my point: The correct view (man is corruptible) leads to what works (limiting government by some method) which IS better, hence yields "greater utility". How could you argue otherwise?
However, the (straw man) argument that a person or group can measure or observe utility is false (the same as the market: no person or group can make utility comparisons in lieu of individuals, but individuals do make comparisons). Ultimately logic is coincident with reality, provided the foundation is correct. If men make moral choices, the morality must be correct as well -- and in some cases morality (such as raising children) are as important or supercede the call to honor "private property".
The "dimwitted" view was a counterpoint to your claim of a "There's an argument that a pacifist society can work fine;" ... no such society can or does exist if man is corruptible.
The existence of consequentialist arguments are as apriori as libertarian arguments (one can't argue without specifying better / worse and cause / effect) -- after all if we agree to use logic and we are after cause and effect then consequences are what we are debating about.
Published: December 6, 2005 5:54 PM
Brent Nelson
Stephan: Yeah, I (eventually) figured that was where we departed. Paul violated the condition of his visit, he essentially stole Stephan's book for the time it took to read it. Paul tells "his" idea to Brent, who writes it up. If Stephan does chose to bring it before a judge, I guess he'd have to show that Paul and Brent together must have used Stephan's novel along with their labor and materials to create the new book. Things like chemical formulas obviously could be discovered independently, things like general plot ideas could be thrown out, I thought I was relying on common law here to help decide between what is and isn't dependent.
I have (re)read your stuff, I do enjoy it. Here is a quote that might help, p27: "Consider the forging of a sword. If I own some raw metal..., then I own it after I have shaped it into the sword. I do not need to rely on the fact of creation to own the sword, but only on my ownership of the factors used to make the sword."
What if you do not own all of the factors used in making the sword? Or in the book, in the previous example. Can we say that Stephan's physical novel was a factor used to produce Brent's new book? Stephan certainly did not have full use of his own book for the duration, there was a period of time when it was stolen by Paul.
Published: December 6, 2005 6:34 PM
David J. Heinrich
Jim,
"Better" does not mean "greater utility". It doesn't even make sense to say "greater utility" in the social sense, because of the interpersonal utility comparison problem.
Now, what I do claim is that under libertarianism, most people would be, by their own subjective evaluations, "better off" than they are now. Now, a few people, the minority, wouldn't. Those bent on dominating others via the government would, in their own suibjective evaluations, be worse off (however, that's assuming that there's still as many people who would have such desires in a libertarian society). Now, what I can say is that such a society is "better" -- all else equal -- in my valuation, than a non-libertarian society. This doesn't mean I'd rather live in the stateless society of Ancient Ireland thousands of years ago than in present-day society (because other things enter into my evaluation of "better", like technology, the state of knowledge, etc).
What I can say objectively, on a society-wide level, is that such a system is inherently more ethical, as there would not exist the systematic initiation of aggression.
You seem to be confused about what it means to be a Utilitarian. Talking about utility in the economic sense does not make one an ethical utilitarian. Utilitarianism is the doctrine of JS Mill and Bentham. It is the idea that what is ethically justified is that which "maximizes the net social good". This requires interpersonal utility comparisons, a problem in-and-of itself, but there are all kinds of other unresolvable problems and contradictions of Utilitarianism.
Consequentialist arguments are indeed a priori. They aren't always particularly convincing, however. It may be useful to make a consequentialist argument to convince someone who's dead-set that certain things are to be avoided, or sought after. However, this is only strategy/tactics. It hardly shows that that consequence really is something to be avoided, or to be avoided by the given method. You also have to have a valid argument of cause and effect, which you simply do not for many things.
You can say, "well, if we have libertarianism, there will be consequence X". I can respond to that in several manners, all of which I have at various points: (1) So what? This is mere consequentialism. It demonstrates nothing ethically. (2) You haven't adequately shown that there will be consequence X. (2) The free market can work around that, if it's a big enough concern to enough people.
Also, you seem confused about ethics. If various ethical statements are true they cannot be in contradiction to one-another. As for false ethical statements that people may believe in, this is irrelevant to the truth or falsehood of other ethical statements, and is only a practical concern.
You've made repeated assertions about undesireable things that would be allowed, or would happen, under libertarianism. Others have tried to point out that many of these things either: (a) Aren't unethical; (b) Aren't allowed by libertarianism; (c) Although allowed by libertarianism, wouldn't necessarily happen in a libertarian society if there was a market for preventing them.
Published: December 6, 2005 6:50 PM
Stephan Kinsella
Jim:
You have mentioned the underage kid issue multiple times, without explaining what the hell you are jabbering about. Quit rambling like a stoned monomaniac if you want any serious response. Make an effort to make a coherent point, ask a coherent question. My point all along has been that I and other libertarians oppose aggression. If you, as a libertarian, disagree that this is the proper standard for libertarianism, say so, and explain why.
As I said before, and as my lengthy publications make clear, I am advocate proportional punishment of aggressors, not "unrestricted". And an aggressor being punished is not being aggressed against. Aggression is the initiation of force. Force against an aggressor is in response to his initiated force. Responsive force is not aggressive force. I apologize for using clear concepts and making my definitions clear.
No idea what you are jabbering about.
Um, okay. Whatever dude. I have no idea how these rambling comments are supposed to show that aggression is justified.
deep, dude, deep.
hey, maybe we should sell a video game where you can program your own private naive-constructivist utopia. Neat-o.
And for God's sake, we know that--if anything--laws must have *meaning*, if nothing else. Ahem.
Thanks for telling us what you don't know. What else don't you know?
Brent:
Be careful here: "factors" in this context ought only to refer to *ownable* things, otherwise you are confusing the issue with imprecise, non-rigorous metaphor. Don't confuse economics with politics.
Published: December 6, 2005 11:43 PM
Vince Daliessio
Somewhere on this site I referred to liberty as being neither valuable for its utility nor any of its effects, however desirable, but that liberty itself is simply a negative right, a zero setting, a null value of aggression against persons. It seemed to strike a chord.
Far from being valuable in its utility, the value of liberty becomes apparent only in its infringement. Liberty is no more than the prime right of human beings to be left alone. Any infringement of that fundamental right compromises the integrity of the person, and the civilization.
Seems to me that copyright and patent violate and aggress the living hell out of liberty. There isn't any way you can square property rights in IP with that.
Published: December 7, 2005 12:32 AM
Jim Bradley
David -- Not at all confused about what "is" utilitarianism (having studied it before)... The point is we argue about what is better / worse so the arguments have their grounds in specifying utility; buying into the rest of utilitarianism is not required.
The arguments about "consequent X" being consequentialism hence needing no reply -- how bizarre is that argument? I see "consequentialism" applied all the time by libertarians.
Vince -- Yep. So does selling someone else's work as your own. Is there a practical objective system that does a decent job of drawing the line? Don't know (and we won't know if libertarian theorists argue it's "irrelevant" and posit a non-economic definition of "scarcity" ... clearly some ideas DO command a positive price: they are economically scarce).
Stephan -- I'd hoped to engage in an interesting debate about many subjects, but for a guy that promotes "non aggression" your posts are soaked with it. Tone it down.
Probably our central point of debate is whether there is ever any non-contractual legal duty that a person in society has to other people (say for instance forcing parents to feed or pay for the feeding and shelter of their kids). Is there?
And what IS "initiation of force?" ... Pushing addictive drugs to kids (or to dull people) certainly seems to qualify, so does seduction of kids by teachers (that problem I presume would be solved by private school contracts ... but until then ... ). Seems to me the objectivity and the model fails in quite a few cases.
Published: December 7, 2005 5:06 PM
Stephan Kinsella
Bradley:
My posts are not socked in initiation force. In one sentence you show the perils of overly metaphorical, non-rigorous reasoning--twice: with the imprecise "soaked" comment, and the equation of (violent) aggression with what you perceive to be the tone of my comments.
Boy, you sure jump around don't you. I notice this is often done by people with a non-systematic belief system. I personally believe parents have an obligation to feed their kids.
Whatever. You are either opposed to aggression, or you are not--despite the existence of hard cases.
Published: December 7, 2005 6:14 PM
Jim Bradley
Stephan -- But of course I'm opposed to initiating aggression: but isn't "stealing someone else's IP work" aggression? And how, as a practical matter, can that be avoided? In fact, do you support the power of the court to force a person to testify in a death penalty case should they have information that may exonerate the defendant? Think about your position.
The problem is not that the territory hasn't been covered (in fact covering a huge expanse), but that you've presented (here at least) no cogent definition of initiation of force that solves those problems. And if those problems are unsolved, then it should be honestly admitted as a "cost" and the (unfortunately utilitarian) argument made that the resulting society would be better for most people.
Vince -- You're right. As a pratical matter, we might get a non-patent system anyway, as other countries likely won't enforce U.S. patents to the full extent, but those countries are still attractive as manufacturing bases. So it's likely also that U.S. patent law might be modified by market forces. Lets hope so.
Published: December 8, 2005 6:09 AM
Roy W. Wright
...but isn't "stealing someone else's IP work" aggression?
Were you ever going to get around to explaining how it can be considered aggression?
Published: December 8, 2005 7:04 AM
Jim Bradley
Roy -- Come on Roy, use your imagination. Say a user in the U.S. gets "Windows Code" from any unlicensed source (not that any serious programmer doesn't already guess what's in there) and modifies it. He is under no contractual obligation and he sells it into the public domain. Now that it is in the public domain, now what?
I do see your point, however. In many cases there IS a contract violation and we can stick with that. The problem is, (like in the case of Windows), without some sort of enforcement, the work that MSFT has done is essentially "free" for the taking as MSFT could not possibly recover damages sufficient to pay them for their loss. And certainly not from a teenage hacker.
I agree the system has huge problems. But throwing it all out seems to invite other abuses that are really severe.
Example: The biggest competitor to Windows is Linux, even though we have copyright and patent law in place. The license for Linux is GPL, essentially a "copyright which grants the right to modify and redistribute", which under the libertarian system (at least as promoted by Stephan) I believe would ALSO be invalid. Once any GPL licensed program hits public domain from an unauthorized source, a person could modify it and sell it contrary to the license.
Published: December 8, 2005 7:34 AM
Stephan Kinsella
Bradley:
Really? You are an anarchist now? You oppose the state?
Published: December 8, 2005 10:03 AM
Roy W. Wright
Come on Roy, use your imagination.
No, defend your argument yourself.
Say a user in the U.S. gets "Windows Code" from any unlicensed source... and modifies it. He is under no contractual obligation and he sells it into the public domain. Now that it is in the public domain, now what?
"Now what," indeed. Where's the aggression?
Published: December 8, 2005 11:33 AM
David J. Heinrich
Jim,
All GPL'ed software comes with the license of use. However, under the libertarian idea, if someone removed that license and then distributed on the web, anyone who downloaded it as such wouldn't be under any obligations.
You seem to misunderstand the intent of the Free Software Foundation, which is to undermine both patents and copyrights. The GPL, often called "copyleft", is a tool to that end.
Published: December 8, 2005 1:08 PM
Peter
Stephan:
Of course not, but it can get shortened that way: how about Stevie Nicks? Or Steve Chadwick (a nasty socialist Member of Parliament in New Zealand)
[So how do you pronounce your name? Is it like "Stefan", with the stress on the second syllable, or on the first like "Stephanie" without the "ie"? Or something completely different, like one of those Monty Python names that's spelled "frank" and pronounced "george" ]
Brent Nelson:
I don't think that's the way to look it at. Paul can homestead the land but can't kick Stephan out ... because Stephan was there first, already using that land; in effect having already homesteaded (a particular use of) the land. The contract he had with the previous owner is not relevant, AFAICT.
Only if someone else is already using the book when he found it. (But that would prevent him taking it at all)
Published: December 8, 2005 11:20 PM
Jesse McDonald
All,
New guy here. Go easy on me...
Jim (and possibly others) appear to be of the opinion that there is an inherent right to the results of one's work (physical and intellectual), whatever form those results might take. This concept is close to the heart of the debate on IP. If such a right exists, then IP rights must necessarily exist in perpetuity, since rights by their very nature do not expire. Once recognized they can only be transferred from one person to the next, or possibly abandoned. On the other hand, if such a right does not exists, then IP is not a right at all, and deserves no special protections.
The idea most likely arises (directly or by way of Lockean ideology) from the casual observation that humans, on a practical, everyday level, tend to value work above most other factors of production. Work is an essential factor in the production of most, if not all, goods, whether the end result is the expression of an idea, such as the words written in a book, or a physical good, such as the material of the book itself. However, work, by itself, is not something that you can sell. You can sell an obligation to perform work; for example, I can sell you the right to sue me if I don't attempt to fix your car, under the condition that I am given access to the vehicle and have the right to sue you if I'm not paid. By doing so I have a reasonable expection of payment in exchange for my services. However, if I just went over to your car and fixed it on my own, without a contract, then you don't owe me anything regardless of the work I've performed. You may even sue me for it, since I temporarily deprived you of the use of your car.
The fact that I performed work does not grant me any special rights; only a contract, or homesteading, can do that. In the same way, if I perform work writing something that may be of use to others, but do so without an employment contract, then I cannot reasonably expect to gain any special priviledges through doing so. I continue to own, as before, the paper and ink (or energy, as the case may be) in which my ideas have been expressed, but to claim that by making that expression of my ideas generally available, I have somehow taken from everyone else the preexisting right to take their own paper and ink (or energy) and reproduce the same expression of the same ideas is dubius at best.
On a more practical note, this post (an expression of my ideas and work) is hereby placed in the public domain. Be aware that plaigarism is fraud, not copyright infringement, so anyone using this post should still be careful not to claim it as their own work.
Published: December 9, 2005 12:40 AM
Jim Bradley
Stephan -- No. I'm against any use of state power that is "initiating aggression". But one can argue all sorts of laws under that rubric. The confusion is what you mean by that phrase. So to make the argument compelling, the problems should be noted and the potential solutions proposed.
Roy -- I understand already. In fact, I'll jump to the end of the logic stream. There is no systematic theory of justice. Libertarians might think they have one, but even many of their choices (abuse of children, etc.) are "conscience based".
Back to your point: It is the same basic argument that you are allowed (under libertarian theory) to tell lies about other people no matter the damage to their "reputation" because no one can "own a reputation". But note that intangibles DO affect tangibles. IS that initiation of aggression? Is "stealing" someone else's work and ruining the value of their "contract" aggression? Why not?
Which gets back to whether law can pre-emptively be used to prevent the near certain situation (mentioned in the first comment I posted) that an unlicensed or uncontracted user will get a copy of a work and render the value of the original contract zero. But the detractions of a "no patent and no copyright system" are not addressed (in fact the results are vigorously avoided). Stephen King would earn nothing from his novels, chemists that have labored for decades to "solve cancer" would have no exerciseable claim to their discoveries, etc.
Jesse -- I think a better solution would be to change patent law to allow for discovery: but I see no practical way to do that. After all, what's the theoretical difference between discoving something today and half-way throught he patent period: all sorts of people would be making the claim they "discovered" the idea by rigging their research.
And yes, I understand Linux can nearly be shut down for patent infringement. Clearly there needs to be something else as criteria for the time being.
Published: December 9, 2005 7:41 AM
Jesse McDonald
I assume that both of these paragraphs were addressed to me. However, I don't see the connection between my (one) previous post in this thread and either patents or Linux. My post dealt with whether it makes sense to talk of "selling work," which touches on the justification for both patents and copyrights but is itself based on neither.
In any event, changing patent law to allow patents on theoretical work as well as practical implementations would only compound the problem. There are very good reasons why the "unpatentable" ideas, such as discoveries of natural law, are not allowed; think of how far back society might have been held if "E=m*c^2" or "F=m*a" or "F=G*m1*m2/d^2", or even something as basic as fire, were subject to patents, such that only the original discoverer and his/her licensees could apply them, or build on their work.
I agree with the sentiment expressed earlier by David Heinrich: "In short, I'd rather these pioneers of patentable ideas keep their ideas to themselves, so that I can pursue inventiveness of my own without having to fear being in violation of "IP laws" with every idea I come up with and implement, and if these despots do share their ideas with the world, I have absolutely no moral or legal obligation to restrict my behaviour."
Published: December 9, 2005 9:35 AM
Jim Bradley
Jesse - But you make an artificial case. I don't think anyone is arguing the current system doesn't need changing ... I think the debate is whether we should completely scrap patents and copyrights -- and whether the problems of such a system can be offset by the market.
In fact, let me throw a question at you that will address whether or not intangibles are ever proper bounds of enforceability. Is it proper to require testimony in a death penalty case by a person that could exonerate the defendant? And is supporting a "yes" answer really "initiation of violence"?
Common law says the conflict of "rights" in this case is settled in the favor of the defendant (note the defendant cannot have a right to a "fair trial" that isn't a duty of someone). Now libertarians might say that is "an aggression" but it's not all that clear that this state of affairs isn't preferrable. Nor is it clear that a voluntary association of people wouldn't want it the same way by social contract or "covenant" ... after all the majority seems in favor of it.
The idea that the IP situation would be better if we had none of the laws I think is not supported. For sure some things would be better, others would be worse. Stephen King certainly wouldn't be enjoying the huge readership he has (and distributors would have no incentive to distribute his works).
Published: December 9, 2005 4:26 PM
Jesse McDonald
Jim -- I agree that the debate is whether we should completely scrap the patent and copyright systems. I intended, by simultaneously pointing out the inconsistencies of the patent system and the obvious failings of allowing patents on theoretical work (which is even more fundumental to the idea of patents than practical implementations) to show that there can exist no patent system which is both justifiable and consistent. I don't believe that to be an "artificial case." One could argue that a patent system need not be consistent so long as it is justifiable, but an inconsistent system is necessarily unfair to those who could have gained an advantage from their unpatentable ideas.
You bring up an interesting, an essential, point: a "voluntary association of people" may indeed choose to enter into a covenent granting validity to patents and/or copyrights. That would be their choice. People are necessarily free to enter into whatever social contracts and covenants that they wish. However, a social contract must be entered into willingly, as is the case with any other contract. You can't be party to a social contract simply by being born in the geographical boundaries of some self-pronounced political group, or by having parents who were themselves party to the contract. If patents and copyrights are valid only within the context of a social contract, which I believe must be the case in a libertarian society, then any given person is perfectly free to refuse the social contract and remain free of them. The same rule would apply to your question of forcing someone to give testimony, and doing so outside of the bounds of a social contract is initiation of violence. Common law is not an absolute authority; there are a number of areas in which it conflicts with basic libertarian principles.
Think of it this way: how would you go about "forcing" the third party to testify, assuming that he refused to do so willingly? You could start by throwing him in jail for contempt of court, seizing his property, making threats against him and his family. If he continues to refuse, you could order him executed along with the person his testimony might have exonerated. In the end, unless he caves to these coercive forces, you will find yourself executing two individual instead of one. If any of these methods do not sound like "initiation of violence" then I pity you.
As for Stephen King, I think that trading a few good novels for a libertarian society is not all that bad a trade. We have so much "culture" now, in the form of books, music, movies, video games, etc., that the public perception of the value of any given piece of "culture" has dropped to precipitously low levels. Perhaps the arts and sciences might be properly appreciated again when they aren't in such excessive supply.
Published: December 9, 2005 5:13 PM
Jim Bradley
Jesse -- There's no such possible practice as "secession at will". People that seceded from a libertarian society (i.e. they decided that it was okay to "initiate violence" against someone else in some cases) would be dealt with by violence by the libertarians should they attempt to exercise their "new morality". In practice it is impossible.
Your example (of patenting basic science research) is artificial because the case does not exist, whether more fundamental or not.
Common law has, like any system (including libertarianism) inconsistencies because a person of reasonable conscience believes that the inconsistency is better than otherwise. Quite a few cases are unresolved by strict property rights infringement (for instance, exposing others to risk they haven't reasonably accepted).
In the case of being forced to testify in a murder trial, the cost (death of some percentage of innocent people) is something that could not be avoided in our society except by reliance on violence. In the case of "socialized health care": the cost (death by cancer) is made more avoidable when left to non-violent means. Our law heritage (especially that honoring private property) is very nuanced, and perhaps more consideration of retaining as much of it as possible should be given by libertarians.
You'd be trading much more than "a few novels". I imagine there are trillions tied up in patents, and there's hardly an indication that a no-copyright no-patent legal system would be overall better. Certainly a "no welfare" and "no federal education" and "no federal housing" etc. society would be monumentally better and more reflective of libertarian society than abolishing patents and copyrights.
The fact that we have so much "books, music, video games, etc." is a reflection that the patent system isn't as stifling (at least to those artforms) as suggested.
Roy -- Your analysis rests on the assumption "There is no such thing as intangible aggression which can violate a person's rights". Under that theory, lying in court is not a legally prosecutable offense.
Your analysis also rests on the theory that there can be no ownership of an idea. But why not? All people that have ideas "own" them (just as they own their bodies). The problem is the "right to exclude" ... but is there a practical solution to protecting the right of people to sell their ideas yet still allow independent discovery?
Published: December 9, 2005 7:36 PM
Jesse McDonald
Stephan -- I'm beginning to understand why your answers were so curt before.
Jim -- This discussion appears to be too high-level given our obvious differences of opinion on even the most basic guidelines for discussion and definitions of fundumental terms. It is my principled belief that no amount of "good to society as a whole" is worth violating even one person's personal rights. It is also my principled belief that the only justified property rights are either rights in own's own body, which are inherent to every human being, or rights to scare phyical resources, gained through homesteading or non-coercive interpersonal or social contracts. No amount of utilitarian argumentation will change either of these beliefs. It is my observation that both of these beliefs are fundumental to libertarian philosophy and contrary to universal (non-contract) patents and copyrights. You clearly have different beliefs, which is your right. At this point, I honestly don't care any more. We're not going to convince each other or anyone else by continuing to fire shots back and forth.
I can't quite let this go, because I believe that it's a common misconception. Even the staunchest opponents of the copyright system would not argue that the system does not naturally lead to the creation of a greater quantity of books, music, movies, etc. That is its function. It cannot help but do so. My argument was that the quality of these items, and the value placed on them by society, are limited by the artificial increases in quantity. We have innumerable "music" groups imitating the favorite pop-star of the week, and more published busybodies than we know what to do with, but few Mozarts or Leonardo da Vincis. Advanced culture is a matter of quality, not quantity.
Published: December 9, 2005 11:09 PM
Roy W. Wright
Roy -- Your analysis rests on the assumption "There is no such thing as intangible aggression which can violate a person's rights".
No, you could obviously violate a contract by doing something "intangible."
Your analysis also rests on the theory that there can be no ownership of an idea. But why not? All people that have ideas "own" them (just as they own their bodies). The problem is the "right to exclude" ... but is there a practical solution to protecting the right of people to sell their ideas yet still allow independent discovery?
No, my "analysis" simply depends on fewer assumptions than yours. You can certainly possess an idea, but the supposed "right to exclude," or "right to sell ideas" are assumptions which you have made without any justification other than, basically, "I want people like Stephen King to be able to make lots of money."
Published: December 10, 2005 4:00 PM
Jim Bradley
Jesse - It is illegitimate to play the game of "restriction of range" refusing to consider anything else but the arguments in one's own definitional universe. We share a universe, and it is subject to the laws of her creator, not of Stephan.
Stephan has also attempted to generate a theory by which other people are fair game for "proportional punishment" depending on the definition of libertarianism. Stephan's other answers went far beyond "curt". It is supposed to be an exchange of ideas by argumentation, not an outlet for hostility.
We can agree that legalized thievery (welfare) violates the rights of those aggressed upon, so does socialized medicine, socialized education, etc. But many other cases are not so clear-cut. Libertarianism is far more inconsistent that it sounds, and much of it is impossible in practice.
What is possible is the reduction of government infringement of rights by one group over another by dispersal of centralized power and voluntary joining or secession from geographic areas -- as well as the commitment to minimizing violence by government and people.
Requiring testimony in a death penalty case certainly IS "minimizing violence" and it is necessary but in violation of property rights (the right to one's own knowledge). Consider the practical implications of your basic "right" to a fair trial. That is impossible without implying a duty by others. After all, what's the possibility of having a just society if even acquiring the data cannot be enforced? Can the state authorities supina records?
Roy -- It seems libertarians have an almost desperate need to remain "consistent" to a univariate system even if it arguably violates the rights of people to protect their work.
IP has big problems. Perhaps it should be scrapped. But no argument here has really made an argument outside the libertarian definition universe -- instead relying on definitions of "scarcity" etc. that are frankly half-arbitrary.
The bottom line is whether it is just to allow a person that gains illegitimate access (not having developed or bought the intangible product himself or herself) use or distribute or sell it. You've no right, having stumbled upon Stephen King's work to copy and distribute it. That is theft. Ideas are scarce by the economic definition (a positive price), although there is no conflict between people independently developing ideas (a serious problem with the current system). As soon as Stephen King's book is distributed free of the included license, the book becomes "public domain" and there's no ability to prosecute the illicit distributors that have aggressed on Stephen King's right to produce and sell "intangible things" like his book (or an e-book). How is that better?
The shortcomings of the libertarian system are not discussed as they are by definition not to be considered. I understand the reasoning (consideration of consquences are less important than consideration of rights). The problem is that some libertarians promote without room for argument (because of the restraint above) that their form of libertarianism is right.
Published: December 11, 2005 7:53 AM
Jim Bradley
Stephan -- certainly comments like "Deep, man or accusations of 'obsession'" etc. go beyond bluntness.
The point of our discussion is the existence of general moral laws: which I trust if they are given by a creator, they will become clear in time to those open to following them, and resisted by those that do not want to "give up their wrong ways".
You favor non-aggression as codified in a system of private property. That is a moral position. I would make the broader claim you favor minimization of government violence, even at the cost of (what looks like) "increasing individual violence" (calling yourself anarchist) -- and you do so with the belief that such a society is better. So adopt a libertarian utilitarianism (which can be praxeologically argued, by the way).
For me, practical (i.e. possible) minimization of long-run violence is the goal.
That's why I believe it is better to adopt a non-violent method of emasculating the state. For example: I read about "abolishing the Federal Reserve immediately". But what a disaster inviting worldwide depression, war, and destruction. Why not advocate abolishment of capital gains laws so holding alternative private currencies becomes possible: and abolishing legal tender laws so that dollars are only tax credits and private contracts can stipulate any private currency for payment? That's a (more) non-violent method of freeing people from the state. (In fact that IS being done in offshore accounts).
The emerging freedom makes the call for "one world government" all the more nefarious.
The criticisms of building a "definitional universe" are trenchant (a term Rothbard was fond of using) ... I make the claim it would be better if libertarians respected the fact that (so far as we know) there isn't a "one viewpoint" road to truth -- instead attempt to show all roads point back to libertarianism using multiple methods. Reality IS moral, meaning a proper morality yields a society that is better and libertarian society is better by multiple criteria.
There is likely nothing as intellectually powerful as taking someone else's system and using their rules to demonstrate libertarianism works, rather than "creating one's own universe".
In terms of IP: I think equal weight needs to be given to the problems that might arise with a libertarian "solution". The only person posting on the solutions to that criticism was David Heinrich (thanks David).
Anyway, don't want this to sound all bad. Thanks for participating, Stephan. Enjoyed this a lot.
Published: December 11, 2005 11:42 AM
Manuel Lora
If IP were real property, then why would we even have laws that would regulate expiration on patents and copyrights? If I have a house (assuming IP can be treated like normal physical scarce property), then why would it be "better" to have that house "expire" and become public domain? Who determines when the value of the house becomes low enough to allow it to become unowned ("public domain"). Should it not be, at best, the owner of the house to determine what value he gets from the house?
An expiration date on IP would seem to be theft, regardless of whether it's 3 years, 10 or 60.
Published: December 11, 2005 12:25 PM
Jim Bradley
Jesse -- The first responses were accusations "you haven't done your homework" etc. etc. That's simply an assumption. I've been a libertarian for 10 years reading volumes of material. I don't concur with a lot of blanket statements made by libertarian theorists who seem to have lost sight of practical implementation, difficult legal tradeoffs, and are wedded to a certain "viewpoint universe". The better theorists (Hoppe) end up coming far closer to practical implementation, and in fact ending up perilously close to "what we have" (or should have in constitutionally limited government).
While I've noted the severe problems with current IP law, most libertarian viewpoints haven't done the same for the libertarian system. Criticism by noting the "bad effects" seems to go only one way - even so far as making the claim "rights trump consequences".
But if reality is consonant with truth, there's a serious contradiction: results will comport with reality, so it's fair game to consider consequences. This avoidance tactic has been that way through the entire string.
If it is an affront to conscience to say that there is no "right" to the product (including sale) of one's work (noting that other people also have that right), then good reasons why that cost is "worth it" are necessary. The basic strategy here is "scrap all IP", which might be valid, but the argument so far is too restricted in range to be comprehensive.
Published: December 11, 2005 12:43 PM
Jim Bradley
Too bad we lost the last of Stephan's comments.
Here's a Lysander Spooner excerpt: "But what must settle, absolutely and forever, this question of the right of property in incorporeal things, is this- that the right of property itself is an incorporeality. The right of property is a mere incorporeal right of dominion, or control, over a thing. It is neither tangible by the hand, nor visible by the eye. It is a mere abstraction, existing only in contemplation of the mind. Yet this incorporeal right of dominion or control over a thing, is itself a subject of property- of ownership; one that is continually bought and sold in the market, independently of possession of the thing to which it relates."
Fully in contrast to the no IP views here are Lysander's:
http://www.lysanderspooner.org/intellect/ch2s1-s5.html
Published: December 13, 2005 1:33 PM
Stephan Kinsella
Jimbo, you quoted Spooner:
A lot of the older writers were more metaphorical and flowery in their writings, and even more mystical. Here is an example of that, combined with semantical word games. It is frankly a ridiculous argument. What he is saying is that the "right to property" is itself incorporeal, "therefore" there must be property rights in incorporeal things. Ridiculous.
The question is who owns a given scarce resource; this question arises when 2 people contest or both want to use a thing that of its nature has to have exclusive use; that is, use by one person excludes the other. This is why a dispute arises, and the need to assign a property right in the thing, to one person. You cannot then say, "Aha, but 'property rights' is an incorporeal abstraction, therefore the things that are subject to property rights must aslo be incorporeal." This is simply a confusing non-sequitur; a mere assertion. If a glass can hold liquid, it must be made of liquid, right?
Look, "property rights" is also a "societal mechanism used to promote harmony and avoid conflict." So by the reasoning above, "mechanisms used to avoid conflict" would be ownable. That is, the *very notion of property rights*, would be ownable. This makes absolutely no sense whatsoever.
The point is we assign an owner to a given scarce resource. We label this assignment as an instance of a regime of property rights. So what? If I sell you a thing I own, I have not transferred an "incorporeal right" to you--I have made you the owner of the thing. The object in discussion is not incorporeal.
Published: December 13, 2005 2:03 PM
Jim Bradley
Stephan -- But you make a straw man argument by choosing ideas that are already in the "public domain" and are not ownable, acting as if they could now be. Clearly we both agree in a perfect world (contrary to IP law) that people having their own ideas should be able to fully act on them. That's not a valid criticism of current IP law unless it is possible to have an alternate system that is more just.
And certainly your right to your own labor is intangible as "labor" is itself not a tangible thing, but instead is the manipulation of tangible things by your body which is by your will, which is also intangible. A "contract" is intangible (the agreement itself is represented by ideas as written by a piece of paper and the ideas are not tangible). "Ownership" is intangible, as you have a right to control something but that "right" is not something that is tangible (only the evidence of the intangible right is traded by paper titles), etc. The tangible / intangible dichotomy is an artificial division as ALL action has both components, Stephan -- (that is the nature of conceptual humans interacting with matter) including those acts which libertarians defend (for instance, the right to the product of one's labor in homesteaded property). Lysander's critique is very devastating. I believe the theory of no-IP rights fails on many grounds. If IP rights are property rights, IP suffers from the least protection of all property rights.
In any case, his complete critique is here:
http://www.lysanderspooner.org/intellect/contents.htm which you may enjoy.
I think the broader point is, many things libertarians assert as objective non-conflicting rights theory are not -- hence my vigorous disagreement about Rothbard's views being the "accepted" libertarian view on Mises.org. I think Mises was more restrained. I also think it is clear that praxeology cannot be used to make the jump to morality and that a shared morality is critically necessary to a functioning society -- as there are necessarily (in any functioning society) duties of men to others in any practical formation of laws. The question is the minimization of violence and conflict -- which must critically include the "nature of man's corruptibility" both in power and without the restraints of power.
Frankly, the more I study our system of jurisprudence in history, the more respectful I am of it. I never had respect for politicians, but I hoped for more from intelligent libertarians.
Published: December 14, 2005 11:04 AM
Stephan Kinsella
Jim:
Actually, I am not so sure exactly what that latter formulation means, so not sure I would endorse it. It might be my own idea to kill you, for example.
We don't think about this the same way. You cannot seem to accept that not everyone is a strategist or utilitarian. Look: I oppose any law that is unjust. Period. I don't support even apparently unjust laws, unless I can find a "more just" one. I have no idea why you seem to endorse such an approach--unless you presuppose that the situation faced by innovators in the absence of IP laws is also unjust--whcih is question begging.
Which is why it seems to me that labor is not technicalaly an ownable thing. It's just actions you perform.
the fact-that-you-exist is intangible. The tendency of my dog to bark is intangible. Squareness is intanagible. So what. A contract is just a means-of-assigning-title-to-property.
We disagree. I think this is utter confusion and nonsense, to be honest--imprecise and unrigorous and overuse of metaphor that masks the underlying confusion.
I would tend to disagree--see Hoppe's argumentation ethics--e.g, as summarized in my Defending Argumentation Ethics.
This is really just a technical question, a question of enforcement of rights etc. The question for libertarians is the identification of what is just and unjust, not how to minimize injustice.
Irrelevant.
Published: December 14, 2005 1:32 PM
Jim Bradley
Stephan -- Okay -- our approaches are different. To prevail, you must necessarily show why your approach is better (i.e. validly supercedes mine). Hence my assertion that you must adopt a utilitarian view, or not argue at all. If utility is valid, then Hoppe's ethical apriori assertions are also in peril.
Tangibility: The will implies self-ownership which implies ownership of one's labor, and labor is intangible like the will. So intangibles are in fact critical to the support of libertarian theory.
Lysander basically made the following argument (started earlier in this string): If one's labor, being intangible, is not ownable, then how can property be ownable? Intangibility applies both to labor and ownership of property -- ownership is "rightful control" which is an idea not a tangible quality.
If we argue on the grounds of theoretics only (as opposed to practical application): then it is clear that every person has the absolute perpetual right to their property, tangible and intangible, including their own ideas with rights of exclusion on any other person as they see fit (by restraining to share, or by forbidding the resharing of their ideas), and all other persons have that same right as well.
One has no right to exclude others from developing their own ideas which may be the same, but one has every right to prevent the usurpation (stealing) of his ideas without consent -- the same as the rule for labor: one has no right to prevent others from independently developing skills and selling their own labor, but one has the right to refuse to perform labor except on terms agreeable to him and therefore at his consent.
And finally, if the ownership of tangible property is argued on the grounds of ownership of intangible property (the will), how can one argue against intangible property?
Published: December 14, 2005 2:28 PM
Stephan Kinsella
JIm:
Well, to say they are different is to presume we both have an approach. Mine is pretty explicitly stated. I confess I have no idea what your "approach" is, in general, nor even if you have one. If you do, care to specify?
Yeah, funny, I just don't look at it this way.
Again, I would avoid the imprecision of metaphorical statements like one own's one's will or labor.
Because as between two people contesting a given resource, the one who acquired it first has a better claim than the late-comer. This argument does not rest on any weird notion that one "owns" one's "labor". See my post here on this.
Intangibility applies both to labor and ownership of property -- ownership is "rightful control" which is an idea not a tangible quality.
I really don't think in this way. If you say "we ought to argue on the grounds of practical application" this rests on a certain theory.
NOt sure what an "absolute" right is. And it does not follow, at least re intangible. It is question begging to assume intangible is property.
Lots of pure assertions and question-begging here. IT's only stealing if it is property, which is what you are trying to show.
But it need not be. See above.
Listen, I don't seek to establish my case here. BUt only that there is another approach than yours (whatever it is). What I find annoying is this way you keep blithely assuming everyone must be making your own assumptions. Surely you are aware *that* other libertarians don't all agree with this? If so, why pretend they do?
Published: December 18, 2005 4:54 PM
David C
After reading much of this thread, I wanted to make some comments.
First off, property rights exist to allocate and deal with limited resources in a way that is just, not to provide incentive, not to provide compensation, not even to provide a reward for labor. Now granted, just allocation of limited resources often have these side effects, but still they are effects and not causes.
Second off, the argument against patents and copyrights is extremely practical. A quick read of the essay proved that, but even not so - a look at the marketplace will confirm ... the x86 architecture vs the Motorolla one, Ethernet vs Token-ring, integrated PC's vs PCI-compatible ones, and today Linux and open source software. The least proprietary technology always takes the lead in the markets and in share when given the chance to do so.
Third off, the copyright and patent debate is very relevant today. As the US enters the information age, the copyright issue is going to be one of THE issues. And, when pharmaceuticals sued African nations in the world court for trying to infringe patents on AIDS medication - it could be argued that a million people died early because of that. But the patent debate is also central at home as millions of elderly retire and rely on patented medicines that are over expensive and have lots of chemical side effects - this is directly related to the patent problem. Also, when an issue is related to the effective murder and suffering of millions, it is not appropriate to say "well this is irrelevant vs issue x"
Fourth off, those who wish to impose patents or copyrights are the ones who wish to impose these massive and huge restrictions on what people can copy and imitate. The real burden of proof is on them to justify such impositions, not on everyone else because it's the "status quo".
Fifth off, you can use government to choke the natural supply in any market and there will exist some commerce and business that will benefit from that and others that won't. How will people make money without patents and copyrights limiting how others can copy and use invention? .... I don't know and I don't care anymore than I care how plantation masters will make money without slaves on the plantation. ( which BTW, was also a phony property right/incentive that was supposedly pro-business ).
If someone is smart enough to create and invent, then I'm sure they are smart enough to figure out how to make some dough on it without a personal government coerced monopoly. If their only response boils down to "well, what's in it for me? (or my industry)", then I would respond, "how is that attitude different than any other welfare queen?"
Published: March 4, 2006 1:09 AM