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)
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
Steph, are you saying that you expect the shutdown to occur?
Published: December 1, 2005 8:01 PM
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
"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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
Kill all the [IP] lawyers! Especially the anarchist sellouts!!! ;)
Published: December 5, 2005 4:02 AM
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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 do