Richard Epstein on "The Structural Unity of Real and Intellectual Property"
New from Law professor Richard Epstein: The Structural Unity of Real and Intellectual Property (video). Epstein argues that there are many similarities between physical property and "non-physical" property (i.e, intellectual property). Epstein identifies four principles that create a basic framework for understanding physical property law. He concluded in his speech that all four can be applied to intellectual property with the main difference being transfer of such property is only absolute in the case of physical property.
I think Epstein confuses positive law with justification. Of course IP "can" be enforced. But recognzing crucial role of scarcity in specifying property rights makes it clear that any enforcement of IP is always done in the physical realm--enFORCEment, get it? Enforcing IP in the physical realm in effect means a claim to IP is a claim to physical property. Property that is already owned. Property whose ownership is justified--in libertarian terms--by the first possession of that piece of property by the owner or an ancestor in title--the homesteader or someone who contracts with him. Granting a right to control that resource to an IP creator simply means transferring rights in an already-owned thing to a non-homesteader, non-contractor. We libertarians call this theft, trespass, confiscation, socialism, or redistrubution of wealth. Showing that modern positivistic legal systems can "deal with" IP does not show it is justified.
Interesting note: someone asked me if I thought it odd Epstein's paper does not cite or link to any prominent anti-IP libertarian publications, such as my Against Intellectual Property. Could it be, my correspondent wondered, Epstein is engaging in the typical Cato-ish habit of not-naming or citing to a Rothbardian or Hoppeian, even when it would be appropriate? After alll, Epstein is a Cato Institute Adjunct Scholar, and Epstein's piece does seem addressed at some growing groundswell of opposition to the legitimacy of IP. Doesn't it? But I am loathe to think this of Epstein, who has always been a genuine scholar and someone I greatly respect and admire.
But just a couple of observations: First, some of us have criticized Epstein's and Cato's pro-patent views in print in the past. See, e.g. Epstein and Patents; also Cato Tugs Stray Back Onto Reservation; Jude Blanchette's The Reimportation Controversy; Protectionist Cato?; Drug Patents and Welfare.
Second, it is interesting to note that James DeLong introduced Epstein's paper and talk--the same DeLong that I debated on the issue of "Do patents and copyrights undermine private property?" a few years back in a symposium in Insight Magazine.
But I'm not saying nuttin'.
Comments (269)
p>The thing that kills me about the IP debate, is that it's not that hard to see how fraudulent it is. It doesn't take that much observation to figure out that bits floating around on the Internet are a lot different than physical objects like houses and cars. If I was the first to make a mud pie, that clearly doesn't give me a God given right to monopolize mud pies. If I was the first to identify the color orange, that clearly doesn't give me a God given right to extract royalties from anyone who has an oranges paint in their house. If the government gave someone a monopoly over growing wheat, and then called that monopoly a property right because he could buy or sell shares of that monopoly - it would clearly be a government regulation and not a property right. However, people use this kind of logic all the time with IP. Also, if it's a natural law right - then how come IP doesn't scale? For example if I write 5 notes, do I suddenly have the right to use to coercive power of government to extract royalties, even in other states, countries, nations, cultures, and even other planets and galaxies. What about 4 notes? Do I suddenly have that right throughout all known space and time. What if my terms are that I have a right torture, rape, and murder anyone who uses those 5 notes? After all, if they use it they are voluntairly agreeing to my terms, right? With IP, it clearly doesn't work out well. Isn't the point of natural law that nature and truth coincide to form law about what's just regarding human interaction? The free to copy nature of information is pretty obvious if you ask me.
Published: October 5, 2006 12:08 AM
David C,
I suppose you're one of those libertarians who doesn't accept "homesteading" either...
Isn't it outrageous too, that under homesteading, I have the right to own a piece of land and enforce property rights with my gun just because I'm the one who SAW it first?
So, do you really think homesteading "sounds" so much better than copyright?
The torture-for-5-notes idea shows in what paranoid state you are ready to push the argumentation however...
Published: October 5, 2006 3:46 AM
Stephan - The scarcity argument falls down because the market itself pays a price for strategic knowledge (CEOs are paid a positive price, no?). I trust you can see that "ideas are non-scarce" simply is not true.
I find it ironic the arguement ends up at some sort of "economic communism" of ideas: absolutely no property rights at all.
The issue for IP is the practical impossibility of exclusion - but then you make a pragmatic argument, not a "axiomatic" based argument.
But then again, the "axiom" of "self-ownership" as a moral ethic - in my view - is not at all clear. It elevates a physical reality to a universal moral ethic. In fact, the real problem is that, using physical reality as a criteria, a person that offers no argument but hits you over the head with a crowbar, is justified because it physically is that way.
So in fact, the bare-bones libertarian starting point (if it can be agreed that self-ownership is that) is the opposite of morality. It's a nice starting point for theoretical discussions about "limiting the state", but that is all it is, it is not anything more - and how contractual societies with disaggregated force users could exist, I think, is the critical issue.
Published: October 5, 2006 7:22 AM
David C: good points.
Artisan: no idea why you attribute to David an anti-homesteading position. Ownership of patterns, recipes, information is indeed "unnatural," while basing ownership on possession of a scarce resource is very natural. Even dogs can recognize it.
JimB: No, of course I don't agree that knowledge is scarce in the economic sense--rivalrous--just because it has a market value. Why would something having a market value imply it is a scarce (rivalrous) resource?
Published: October 5, 2006 7:44 AM
The same kind of scarcity exists in IP as in physical property: there exists a conflict over usage. No justification for different treatment of the two can logically hinge on a difference in this respect.
Like I said about thirty times before.
Published: October 5, 2006 9:29 AM
Artisan. If the nature of the universe was that you could make a copy of my homestead without locking me out of it, then sure - I'd be against homesteading too. But that isn't the nature of the universe with homesteading, but it is with bits flowing over the Internet.
JIMB, the scarcity is not in the nature of the Idea, it is in the time and resources used to think about it, discover it, study it, and apply it. All of those have natural limits in supply and demand that have a scarce value. In fact, IP distorts those limits because it artificially forces the market to center around information controls rather than information services, it forces the market to center around fencing off ideas instead of applying them. In fact, a quick look at the current market as it is now shows how overt the problem is.
Published: October 5, 2006 9:32 AM
Person,
No there isn't. If I have a copy of a book, there is nothing in this universe stopping you from doing what ever the heck you want with your copy and nothing in the universe stopping me from doing whatever the heck I want with my copy even if what I do is totally different than what you would do. Me trying to sell it, doesn't stop you from trying to sell it. Me burning it, doesn't stop you from putting it upon a high alter and worshiping it. Where's the conflict?
Published: October 5, 2006 9:45 AM
David_C: The conflict is that (hypothetically), I don't want you to do those things with your copy.
Published: October 5, 2006 10:02 AM
Person: "The conflict is that (hypothetically), I don't want you to do those things with your copy."
Right. Quite right. AS we said. The conflict is over material things--scarce resources. The real fight is over who owns the physical thing--A, the novelist, claims a right to own the material paper and ink owned by B.
So that is what the dispute is about: who owns the property that is currently in B's possession. Now, we libertarians say that you come to own unowned resources by homesteading them. By presumption B or his ancestor in title did this already. So the property already has an owner.
A wants to assert a co-ownership claim in B's property, even though it's already owned, and not by virtue of A's homesteading the property at issue, or even having acquired it by contract from an owner--but because A thought of a way to use that piece of property.
It's akin to me walking up to you and saying, "Hey, I just thought of an innovative sexual move that I could perform on your body--so hand it over."
Published: October 5, 2006 10:10 AM
So, Stephan, do you then concede that "non-scarcity of ideas" does not support your argument against IP, and is therefore irrelevant?
Published: October 5, 2006 10:17 AM
Person the Persistent Pest: "So, Stephan, do you then concede that "non-scarcity of ideas" does not support your argument against IP, and is therefore irrelevant?"
No, not at all. I argued exactly the same way in my lengthy paper on IP. Ideas are not scarce. They are not property. Waht this means is IF you try to protect property rights in these non-scarce things, you can ONLY do so by in effect granting rights in actually scarce things--which amounts to redistribution of wealth. It amounts to assigning ownership in an already owned thing to some other person, which is a type of theft.
This has been my problem with it all along. If ideas were actually scarce, assigning property rights in them would not imply assigning property rights in others' things. Since ideas are not scarce, the only way to assign rights in them is *through real things* that already have owners.
Get it now? Jesus, how explicit do I need to be for you people. Sheesh.
Published: October 5, 2006 10:24 AM
Yee hah, another IP thread...
The term 'scarcity' is inappropriate unless everyone agrees to its defintion. This is because in one way ideas ARE scarce and in other way they are NOT scarce.
v1: Person A is the only one in the universe that is in 'possession' of idea X. (Actually I'm sure possess is the right word since an idea is not really something you can hold on to or see....). In this sense we can say idea X is scarce. This is the 'not everyone knows it' idea of scarcity.
v2: Person B comes into possession of idea X (independent discovery, imitation of A, etc.) Now two individuals have idea X. However both have completely independent instances of X. By obtaining idea X, B has not diminished A's copy of X, since it resides in A's mind and can never actually leave (unless forgotten). In this sense idea X is NOT scarce since it can be replicated into the mind of every individual w/o diminishing its existence in any previous "knower's" mind.
It is not the scarcity that matters. It is whether or not an individual can make use of something and leave it undiminished and fully available for someone else to use @ the same time. If this can be done then the good is non-rivalrous and thus cannot be homesteaded (i.e. become property) under liberatrian homesteading theory.
Published: October 5, 2006 10:34 AM
No, not at all. I argued exactly the same way in my lengthy paper on IP. Ideas are not scarce. They are not property. Waht this means is IF you try to protect property rights in these non-scarce things, you can ONLY do so by in effect granting rights in actually scarce things--which amounts to redistribution of wealth. It amounts to assigning ownership in an already owned thing to some other person, which is a type of theft.
Then your argument is that you believe enforcement of IP conflicts with the homesteading principle, and is therefore unjustified. Non-scarcity has nothing to do with your position, and to mention it is irrelevant. Do you now concede this?
(I would also like to note that the entire line of argumentation based on non-scarcity is a category error. What would such a point be trying to establish? "It doesn't bother you, so you have no right to object." ? Obviously, some people do support IP, so they are bothered. It's unclear in what context pointing out non-scarcity would resolve a conflict.)
Published: October 5, 2006 10:35 AM
Person;
"The same kind of scarcity exists in IP as in physical property: there exists a conflict over usage."
...and if I apply your reasoning on IP back against conflicts over physical property (PP), what emerges is this - if you use your own justly-aquired property in such a way that causes "conflict" with me and my justly-aquired property (e.g., you paint your house an ugly color that offends me and possibly lowers my property's value incrementally), then rather than just resorting to a friendly discussion about the conflict, I have a right to enlist a government authority to come and take your property and imprison you.
In short, we can have either PP, or we can have IP, but not both in the full sense. They are like matter and antimatter - the two cannot coexist. One annihilates the other.
Published: October 5, 2006 10:41 AM
Person says: "Then your argument is that you believe enforcement of IP conflicts with the homesteading principle, and is therefore unjustified. Non-scarcity has nothing to do with your position, and to mention it is irrelevant."
Claiming and enforcing a 'property right' in something that is not rivalrously scarce is what brings IP into conflict with the homesteading principle. So no, the non-scarcity of ideas is not irrelevant to the arguement; it is fundamental to it.
Published: October 5, 2006 10:42 AM
Person the Persistent Pest:
Absolutely not. I don't "now concede" anything; this has been my view all along.First. Scarcity is ultra-relevant to the idea of property; things that are scarce (rivalrous) can be fought over; for these things property rules assign an owner so that conflict over the use of that thing can be avoided. What is the rule? There are any number of rules. Only libertarians choose the rule that is really designed to make conflict avoidance possible: that is the basis for the homesteading rule. Any other rule is some kind of violation of the homesteading rule, which is tantamount to a later-user gets to take it away from a prior-user for some arbitrary reason: socialism, criminal, I am bigger than you, I don't care, a particularistic rule--whatever.
Now. IP advocates are the ones who say they just believe in property rights in IP. To them, it's just another "thing" out there in the universe that can be created, has value, so "why can't" it "be property"? This is their mentality. They do not realize what I pointed out above: that property rules are specifically aimed at establishing an owner of a scarce (rivalrous) thing so as to make it possible for these resources to be employed in a conflict-free way (and therefore, the rule has to be based on the homesteading principle and the prior-later distinction). They do not realize how crucial *scarcity* is to the whole enterprise of property rights. Therefore, they do not realize that in advocating property rules in IP they are really advocating for a change in property rules for scarce things. Adn this is exactly the problem with advocating rights in non-scarce things.
Published: October 5, 2006 10:43 AM
Information is an abstraction which describes some arrangement of matter into forms recognizable by the human mind, and apart from the mind of the person discerning it, it is ultimately and universally meaningless.
Those arrangements could be the magnetic polar orientation of an iron atom, dark-colored ink molecules weaved into paper fibers, electrically-charged phosphor molecules in a bed of silicon, etc.
To say you have ownership over such things can only be in a physical term- in that specific arragement pattern.
To say you can control others from making similar arrangements is making a metaphysical leap from objects of nature, to things our minds think about nature.
Published: October 5, 2006 10:44 AM
Brian_Drum: I think you're forgetting another sense in which the use of the term "scarcity" is ambiguous, and I think you fell prety to it to. I would call this the "value scarcity" vs. the "physical scarcity" distinction (corresponding to the distinction between value productivity and physical productivity). A good is value-scarce to the extent that it cannot simultaneously satisfy the ends of more than one person. A good is physically-scarce to the extent that it cannot be put to more than one use.
The justification for the libertarian homesteading principle clearly stems from value scarcity. But then when discussing IP, Stephan shifts into meaning physical scarcity. An idea is value-scarce, but not physically scarce. It can be used in different ways (physical non-scarcity) that conflict between the desires of different actors (value scarcity). This is why Stephan's constant appeal to how "everyone knows" ideas are "non-rivalrous" is unhelpful because the same authors fail to make the distinction.
Stephan: after I started typing this, your post appeared. I think it still applies to what you said -- you're shifting between different kinds of scarcity. And even if your argument does hinge on the concept of scarcity, it does not hinge on ideas specifically being non-scarce, just that property-rights assignment in all relevant objects obviates any IP rights assignment. Your discussion of idea non-scarcity is still irrelevant.
Published: October 5, 2006 10:54 AM
What the heck is 'value scarcity'?
Stephan - rightfully - owns this area of libertarian law and if you're gonna challenge his analysis, define your terms. (Or, to invoke the ghost of Rand, state your premises...)
Published: October 5, 2006 11:21 AM
Lee: I just explained what "value scarcity" is: " good is value-scarce to the extent that it cannot simultaneously satisfy the ends of more than one person." Come back when you want to read my posts. And considering that it's my intellectual opponents here who are carelessly shifting between the meanings of a term ... I'm the last one here who needs to "check his premises".
Vince: like I said thirty times in the last thirty discussions someone tried your gambit in: Just because I believe a conflict exists doesn't mean I favor its resolution in a certain way.
Published: October 5, 2006 11:29 AM
Person the Pesky Pest:
I have been consistent from the get-go. Your understanding is evolving, however, which is gooooood. And Lee is right: I *own* this area. I mean literally. By your IP theory, I hereby claim ownership of this entire argument. And as owner, I hereby decree that I have won.
But now you are seeing how this has to be argued. Either you do, or do not, favor property rules that allow resources to be used in a conflict-free manner. If you do not, then I believe you are contradicting your peaceful stance here; but in any event, I for one don't care to engage in civilized discourse with someone who refuses to acknowledge the importance of having conflict-avoiding rules.And if you do admit this: then the question is simply: what kind of rules satisfy this function? We have an argument for why homesteading is the only rule, and for why any other rule is tantamount to theft. Hoppe in particular has explained this in detail in showing how the first user rule is the only one that can really serve to avoid conflict. If you want to debate this, fine, but then we are debating what property rules are compatible with the admitted goal of reducing conflict. And this has been my goal all along: for once this is admitted, we've won, since, you know, John Locke was basically right. GOTCHA SUCKA!
Published: October 5, 2006 11:37 AM
Stephan: What does your last post have to do with the specific relevance of idea non-scarcity to IP? And do you agree you use scarcity in more than one sense? If not, which sense do you believe your are using it in?
Published: October 5, 2006 11:53 AM
A good is value-scarce to the extent that it cannot simultaneously satisfy the ends of more than one person. A good is physically-scarce to the extent that it cannot be put to more than one use.
The justification for the libertarian homesteading principle clearly stems from value scarcity.
Person, why do you think ideas are not 'value-scarce'? It seems to me that ideas definitely can simultanously satisfy ends of more then one person. Can you provide a counter-example?
Published: October 5, 2006 12:19 PM
Stephan - To demand something implies scarcity which also means one does not possess the thing demanded. So the fact that "idea people" command a positive price necessarily implies lack of ownership of the ideas in the first place.
So it seems to me - perhaps wrongly - the line of argument presented to be confusing and tactically deficient.
I note you've not responded to the disagreement on self-ownership; are you framing a response? Given the defense of Hoppe's formulation, I am very interested in your reply.
Published: October 5, 2006 12:25 PM
Interesting note: someone asked me if I thought it odd Epstein's paper does not cite or link to any prominent anti-IP libertarian publications, such as my Against Intellectual Property. Could it be, my correspondent wondered, Epstein is engaging in the typical Cato-ish habit of not-naming or citing to a Rothbardian or Hoppeian, even when it would be appropriate? After alll, Epstein is a Cato Institute Adjunct Scholar, and Epstein's piece does seem addressed at some growing groundswell of opposition to the legitimacy of IP. Doesn't it? But I am loathe to think this of Epstein, who has always been a genuine scholar and someone I greatly respect and admire.
But just a couple of observations: First, some of us have criticized Epstein's and Cato's pro-patent views in print in the past. See, e.g. Epstein and Patents; also Cato Tugs Stray Back Onto Reservation; Jude Blanchette's The Reimportation Controversy; Protectionist Cato?; Drug Patents and Welfare.
Second, it is interesting to note that James DeLong introduced Epstein's paper and talk--the same DeLong that I debated on the issue of "Do patents and copyrights undermine private property?" a few years back in a symposium in Insight Magazine.
But I'm not saying nuttin'.
Published: October 5, 2006 12:28 PM
JImB:
Why do you say this? I have specified umpteen times that "scarcity" in the property rights sense is rivalrousness. It is this very capacity which makes it possible for there to be conflict over the use of this thing. Now, you are trying to say that if you demand something, this means it is a type of thing that is rivalrous. This is just an assertion. I want, or demand, my wife's love; world peace; my fond memories of the way my grandpa smelled; beauty in the world; profundity; fun; relaxation. Are these things scarce resources now? Not sure what you are talking about, but I've recently written in some detail about self-ownership: How We Come To Own OUrselves.Published: October 5, 2006 12:42 PM
andy: Person, why do you think ideas are not 'value-scarce'? It seems to me that ideas definitely can simultanously satisfy ends of more then one person. Can you provide a counter-example?
Okay, I think I phrased that poorly. I meant that for a value-scarce good, there exists a set of actors such that for one to use the idea comes at the cost of the other's ends. It is true that all ideas can conceivably satisfy more than one person's ends, but some ideas (the ideas people today assert IP protection over) must oppose one actor's ends to satisfy another's. That is, for one actor, he meets his goal of e.g. listening to the music, but in doing so impedes another actor's goal that it not be listened to.
Your comment was more fruitful than anything Stephan has yet offered in this thread.
Published: October 5, 2006 12:50 PM
Person;
"I meant that for a value-scarce good, there exists a set of actors such that for one to use the idea comes at the cost of the other's ends. It is true that all ideas can conceivably satisfy more than one person's ends, but some ideas (the ideas people today assert IP protection over) must oppose one actor's ends to satisfy another's."
In other words, you are saying that all uses of one's PP must always satisfy any other persons ends involving his IP. You are saying that in all conflicts between IP and PP, IP must rule.
This doesn't make logical sense, and in any event does not justify IP. There are no guarantees in life. One's ends are not bound to be automatically satisfied.
More to the point, one's ends are not always just. Wherefrom originates the dictum that the IP users ends must be fulfilled, even at the expense of infinite others ends of their PP?
Published: October 5, 2006 1:39 PM
Vince: Please, please tell me you're not being serious.
Published: October 5, 2006 1:45 PM
Stephan Kinsella says:
“Artisan: no idea why you attribute to David an anti-homesteading position.”
David C says then:
“If the nature of the universe was that you could make a copy of my homestead without locking me out of it, then sure - I'd be against homesteading too.” (not an easy sentence, I’m not sure what it means as such either, please someone tell me…)
This odd remark leads me anyway to think Dr. Kinsella, that David C is not quite aware of what homesteading means nor implies… even though this is part of the core definition of property as used by Hoppe and Rothbard along with the other “scarcity” part, and even though this is the core concept that resembles the most copyright, the later apparently considered by David C nonetheless not worthy of his intelligence.
Just one question to David C. thus please, so I can go further with my analogy: can you make up a new example of how actual homesteading of property rights might happen in your actual everyday life, as libertarians (you) pledge to respect and defend them?
Published: October 5, 2006 3:15 PM
No, I AM being serious. I am honestly trying to understand where you are coming from. I am seriously trying to understand the argument you are making for IP, and how it can be squared with PP.
Published: October 5, 2006 3:15 PM
Pretty please, with sugar on top [(c)] stop using the absolutely misleading term "Intellectual Property".
It is NOT, repeat: NOT, property -- it is temporary monopoly granted by the government on some particular form of expression. Any real property is presumed to be permanent. And there's nothing intellectual in most of the "IP" - insert your favourite rap lyrics here.
"Intellectual Property" is blatant newspeak, nothing more.
If you take any pro-IP argument and replace "IP" with "Temoporary Government-granted Monopoly", it will bring the inconsistency, if not outright stupidity of that argument into stark contrast.
Published: October 5, 2006 4:17 PM
Vince, I don't know how you're serious, since I keep explaining this. Just because I believe there's a conflict, doesn't mean I favor the absurd side. If Bob doesn't like being looked at, there is a *conflict* between Bob and people who want to look at him. That doesn't mean Bob's desire supercedes the others. In fact, I don't believe that at all.
In exactly the same sense, there is conflict (and thus, depending on Stephan's mood, scarcity) between an artist who doesn't want people to enjoy his work without paying him, and people who want to enjoy his work without paying him. That holds even despite the non-scarcity of the underlying intellectual work. Again, that doesn't (by itself) imply that the artist's desire ought to be respected, is justified, etc. It just means that's Stephan's trite attempt to invoke idea non-scarcity to refute any and all claims to intellectual property is invalid. Whether or not IP is justified has nothing to do with non-scarcity of ideas, and for Stephan to include it in his paper, or in any discussion, is a red herring.
Published: October 5, 2006 4:32 PM
Stephan - All those things are scarce relative to your demand for them (how could it be otherwise?), i.e. to have them (provided they are not impossible), you would need to give something else up to get them, at the least time in reflection, etc.
If ever an economic actor gives up "money for ideas" obviously he or she, by their actions, admits they do not own the quantity or quality of them they wish. Hence the market, by placing a positive price on ideas, is confirming ownership.
So, it's my contention that the argument presented is probably weak as it contradicts the actions of the market (and of you, if you've ever demanded any "ideas" by giving up an alternative good: money or time or otherwise). Clearly ideas are scarce. Ideas do not exist in infinitude floating in the ether, which - like breathing non-scarce air (which commands no positive market price under normal circumstances) - we can seize at will.
re: "I want, or demand, my wife's love; world peace; my fond memories of the way my grandpa smelled; beauty in the world; profundity; fun; relaxation."
Published: October 5, 2006 5:02 PM
Person,
You still have not addressed how information or ideas about property transcend to a metaphysical class of 'intellectual' property. Without that, there is no possible comparison to real property and talk of rights or enforcement.
Agreed though that scarcity is irrelevant to the topic, because scarcity is only a fact in the nature of real property making encroachment matter to the people who are trying to reduce conflict.
Published: October 5, 2006 5:07 PM
iceberg: I never attempted to prove such a transcendence. All I'm saying is, don't claim that the non-scarcity of ideas is somehow relevant, and I think I've established that by noting the subtle equivocation regarding scarcity and rivalry that people make.
Published: October 5, 2006 5:20 PM
Sorry Vince, Averros, Iceberg: reading your concern, it seems the question to David C in my previous post goes to you too...
Ever heard of homesteading as a part of libertarian property definition? Care to give an example which proves you understand and accept what it means in every day life?
Published: October 5, 2006 5:21 PM
PErson:
Nonsense. I've maintained many times in writing, and consistently throughout, that what makes libertarianism different from all other political theories or views is our particular rule for assigning property title to scarce resources. To recognize this and how we are different, one must realize that all political systems have some explicit or implicit theory of assigning title to these types of resources. Once one realizes this, it is clear how libertarianism is different--and why we are superior.This way of viewing it requires one recognize that it is really only scarce (rivalrous) resources that can be owned at all. This means ideas are never ownable. The problem is that IP-socialists want to protect ideas as if they are property; this requires them to swoop down into the mundane physical realm to enFORCE their IP laws with FORCE against REAL things. IT's always about real things. Of course. This is tantamount to their adopting a non-libertarian rule for assigning title to scarce resources.
AS I have said many times: for A to have a right to an idea, means he has partial property rights in B's property. But if B previously owned that resource, and now A has partial rights in it, that means B has been robbed. This is very very simple. I think this is why IP advocates don't like it. It makes it impossible from them to squirm out of acknowledging the essentially criminal or socialist aspect of their IP advocacy. Nooooo they say, we don't advocate theft of real property--we only want to protect rights in another kind of property--IP. That this requires us to use (realy, physical) force against (real, physical) things to get any traction is just a coincidence.
Published: October 5, 2006 9:09 PM
JimB:
Jim: I grant you that the word "scarce" is potentially misleading as it has at least two different meanings. One--which you seem to be relying on here--is less plentiful; etc. The other is more strict and basically means a rivalrous good. But I have been so explicit about which meaning is meant here that I fail to see how you can be confused and why you keep switching to the other use.Do you understand what rivalrous means? See this explanation, for example: http://en.wikipedia.org/wiki/Rivalrous. To avoid confusion let's use "rivalrous". Now: how does something one desires become rivalrous just because of this? This is just ridiculous. Waht is it to be valued? It is to be the goal one seeks when one acts. That goal is valued, and demanded--it is not necessarily a rivalrous good!!
Published: October 5, 2006 9:40 PM
Artisan,
Not an easy sentence, perhaps, but an easy concept. Two people can't homstead the same physical property, but can use the same piece of information.
Sure, I find some virgin land, put some stakes up on four courners, and now no one else can claim it without excluding me from my claim and violating my rights.
Published: October 5, 2006 10:26 PM
Stephan: Nonsense. I've maintained many times in writing, and consistently throughout, that what makes libertarianism different from all other political theories or views is our particular rule for assigning property title to scarce resources.
That doesn't contradict or respond to anything I said in the passage you quoted.
This way of viewing it requires one recognize that it is really only scarce (rivalrous) resources that can be owned at all. This means ideas are never ownable.
Again, you're making a careless shift between meanings. If you consistently carry your meanings through, you see that nobody claims to own ideas. Rather, they claim to own the use-rights regarding that idea in physical objects (scarce things!). Again (I keep saying that), your entire attempt to quash IP claims through the invocation of rivalry is a category error. At no point, ever, can you justify one claim over another through rivalry -- at least, not "value rivalry" (the counterpart of "value scarcity"), which you start from in justifying the homesteading principle. The very fact that there is a debate proves that there is "value scarcity" and "value rivalry". If there weren't, there wouldn't be a debate. (Hey, I'm starting to like argumentation ethics!)
Certainly, you can set up a philosophy based on the principle of "physical scarcity" and "physical rivalry", but only if you stayed with that kind of scarcity, and didn't shift over to "value scarcity".
AS I have said many times: for A to have a right to an idea, means he has partial property rights in B's property.
Sure, just as for you to have property rights in anything (not just ideas), you have partial property rights in everyone else's property to the extent that you may prevent them from using it in a way invasive of yours. Of course, you could define that problem away, but it's unclear exactly what that would prove...
Published: October 5, 2006 11:49 PM
Person: it's not that you have property rights in something "except you can't use it to harm others". I indeed have a negative obligation not to trespass--not to use others' property without their consent; not to invade their property borders.
This obligation is not tied to any particular property I have. This obligation does not "burden" or "limit" my property rights in a given thing. It's just a general obligation I have. I cannot use any efficacious means to invade your property borders. Whether it's my "property" I'm using as my means, or something else. The limit is on what actions I can take; it's not a limitation on my property rights in my property.
Sure they do. THey claim to own IP. They way they enforce it is to try to control how others use their scarce resources. Which means: they claim to own part of others' property. Right. As I've said. See, Daddy doesn't agree. It's crucially relevant. Scarcity--rivalrousness--is what defines the category of "things" that can be the subject of conflict; that can be the subject of ownership claims; that can be subject to the use of enFORCEment actions. If you are in favor of having a way individuals can use such resources in a conflict-free way, you are necessarily in favor of some ownership rules--property title assignment. And we libertarians go further and say you are in favor of the specific rules that are compatible wtih this. And we say that if you look at it, you see that the rule is obviously the first use first own principle.Now. Any criminal, statist, tyrant, theocrat, thug, whatever, has a property view, but his property title assignment rule is different than the libertarian's. His rule is not a rule based on the goal of avoiding conflict. His rule is based on some other goal, like "getting what I want" or "making people more equal" etc.
It's the same with IP advocates. They, too, want to abandon the title assignment rules that are essential to establishing a conflict-free, just order--namely, the first-use, first-own principle, and the prior-later distinction, etc.--and use a different rule: the rule that if someone dreams up a way to use resources, he now has a veto-claim over others' already-owned property.
NOw, if you want to try to justify this, go ahead. BUt the endeavor is: what property title rule can solve the social problem of the possibility of conflict in the use of scarce resources? If you think your arbitrary and never-specifically-stated IP rules do this--by all means, let's hear how.
I don't have property rights in their property; as noted above: they are not permitted to trespass against me by any means. IT's not tied to their "property".Let's be very clear here. The very basis for the libertarian property assignment rule is that it is the only rule that satisfies the desire to permit conflict-free use of scarce resources. The rule is not undercut by its own implications, as you insinunate. A may not use his knife--or fist, or his neighbor's gun--to murder me, just because of this rule. If this is viewed as a "limitation" or "restriction" on his own rights, it is strictly negative, and flows from the fact that I do alreayd own my own body and other (scarce) property.
YOu cannot make an analogous claim in the case of IP. You cannot say that our right to own scarce resources can be built on to say there is an obligation not to use this resource to violate others' IP rights--this is mere question begging. The presupposition of the ownership of property is that conflict is avoided by assigning title in a certain (basically Lockean) way. So this presupposition of course implies that one may not trespass on others' property. That is in fact how conflict is avoided: by people respecting the publicly ascertainable boundaries of property.
So in adhering to a property rights system it is implicit that one recognize the negative obligation not to invade the borders of others' property.
A similar thing cannot be said in the case of IP. How does my adhering to and participating in a property system that allocates property title to scarce resourceds for the very purpose of allowing these resources to be freely and productively used without conflict --- how does this imply I cannot use this property if it is in a way that someone else has described? It just does not follow. My use of "your" method to fine tune my carbureutor to get better petrol mileage does not invade any of your owned scarce resources. It does not trespass.
You have a choice, Person, if you want to be taken seriously and not be dismissed as a pest or gadfly: make your case plainly for what you believe. Do you agree that property rights realy only pertain to scarce resources? Do you agree that we have to favor a set of rules that permit conflict-free use of such resources?--or are you an advocate of conflict? Assuming the former--do you agree that assigning title has to be done to avoid conflict... but more than this: it cannot be done just arbitrarily, since such rules would not be seen as fair and would not be respected, and thus would not serve their function. So the rules have to assign owners, but which owner? by which criteria? It has to be based on some objective, intersubjectively ascertainable link between the person and thing claimed; and temporal priority has to be presumed as having importance too. If the rules do not embody the prior-later distinction then no conflict -free use is possible; B can just take property from A, and now B is the current "owner". A merely came first after all. So unless "coming first" is a trump, you can have no property system. Instead you have a system of mere possession and might makes right.
What this means is that first users of property have a better claim than any other, ceteris paribus. YOu can see how this leads to the Lockean rule.
Now. NOw. YOu want to swoop down and declare some other property assignemnt rule. Fine; go ahead. Try to show how it is compatible with all the presuppositions that are part of this civilized debate.
But that is your burden, man. And you won't succeed, because you are wrong. Took me years to finally admit that.
Published: October 6, 2006 1:09 AM
See, David C. the triteness of your example only shows you have no idea why homesteading could even be important. You prefer always and always repeat throughout all the IP blogs, the same elements of the property definition you have managed to grasp...
When I ask what element of homesteading would apply to YOU in every day life, you mention discovering some virgin land… Come on pal, stop dreaming, this is 2006 and you live in the US! I think you can do better than that.
So you do mean homesteading is irrelevant for the libertarian today. (But do you think there was more “virgin land" to to put "stakes on" when Rothbard was around then?)
Published: October 6, 2006 3:29 AM
Stephan - But we are talking conflict over goods and the market says so. This, If I'm not mistaken, is the third time it has been presented as a contradiction with your position.
I quote myself:
If ever an economic actor gives up "money for ideas" obviously he or she, by their actions, admits they do not own the quantity or quality of them they wish. Hence the market, by placing a positive price on ideas, is confirming ownership.
Published: October 6, 2006 5:52 AM
JIMB, it is not a confirmation that ideas or "ownable" but rather to save man-hours of effort.
Given a few thousand years of spare time, I could write a nice operating system to run on my computer.
I don't want to spend that time, so I pay someone to write it for me. This does not mean that somehow they "own" the ideas and patterns that produced that operating system.
The scarcity is time, not in some good. Now the producer of the pattern can demand that in exchange for their service, I don't share the pattern with anyone, and that would be fine. But the pattern itself is unownable. The expression of a pattern on one piece of matter in no way precludes or interfers with that pattern being present in anothe piece of matter. If I write my own clone of Windows, Microsoft does not suddenly find their warehouses empty. If I sneak into Microsoft's property and copy their software, they still don't find their vaults empty (I would however be guilty of trespass and owe them fines). If, on the other hand, I sneak into the local bakery and take their donuts then the bakery will find its vaults empty. Physical objects are scarce an ownable. The patterns for organizing them, no matter how unobvious or difficult to invent, are not.
Published: October 6, 2006 7:29 AM
Incidentally, after reading through this discussion, I moved on to the next tab, where I was reading http://www.boyet.com/Articles/NotesOnLulu1.html -- check out about the middle of the page, where he says "The Caslon font (...) was invented by William Caslon in the 18th century". Now click on the http://www.boyet.com/Images/Caslon.jpg link and check out the copyright - exactly *why* is Adobe entitled to copyright that font? Worse, what makes it a *right*, such that me using that font without their permission would violate it?
Published: October 6, 2006 7:43 AM
JIMB wrote:
I don't think that the nature of the exchange is one of "money for ideas" at all. Let's say that I have an idea. This idea is stored as a pattern in my brain. I communicate the nature of my idea to you & let's say that you want me to convey the idea in full to you (for whatever reason - perhaps you see the potential to further act on the idea to your benefit). We arrange a trade: you'll give me a sum of money and I'll communicate my idea to you in its fullness. There is no property title exchanged in this transaction - you are paying me to act. I am providing a labor service in exchange for money. I still have a record of my idea, and now you do as well. Even if we agree to a contract that stipulates that I may not further act upon this information, it does not change the fact that we both now have the information. As I still have the information, I cannot, by definition, have exchanged it for anything. I have, however, lost the time & energy required to convey the information to you. Money for labor - not "money for ideas".Published: October 6, 2006 7:51 AM
David - But how does your argument indicate the idea is not property?
You bring up another point - the entire libertarian "concrete" justification of property isn't valid. Title to property is an preagreed definitional "idea" ... i.e. by agreement of the parties, it gives a person a "right to act" in regards to the subject of trade, but the right to act goes from person to person. The right is not concrete.
Neither are agreements concrete, even if the evidence of them is. Words are nothing but scribbles unless they refer to mental processes. Now - where does the reality lie - in the concrete thing or the agreement?
I say it lies in the agreement, which is by necessity non-concrete. You see the problems with this 'axiomatic' approach?
I think most people (this includes learned libertarians) have a much better argument in better / worse (and natural moral law) than logical-chain-from-an-axiom approach.
Published: October 6, 2006 8:50 AM
Tarran - The same argument could be made for any concrete good. You could (given enough intelligence, knowledge, and long life) "make your own car", but we do not say the car is not property, do we? I also refer you to the post in response to David.
Published: October 6, 2006 8:55 AM
JIMB said,
"You could (given enough intelligence, knowledge, and long life) 'make your own car', but we do not say the car is not property, do we? I also refer you to the post in response to David."
"OK, let's do a simple experiment. I just copied the patterns of your words above. Let's scroll up and see if there is a hole in your argument (literal not figurative). Gasp! There's no hole there! there are your words, your sentences all right were you put them! Yet they are also here, in this post!
Now, let's do the same to your car. If you like, I'll be happy to swing by your garage with a hammer and a screwdriver, and drive off with your car. Tomorrow morning, when you go to use your car, will it be there for you to use?
Ownership is essentially a system of assigning who has the right to control something. To be meaningful, there has to be a scarcity. Only one person can drive your car at a time. If someone else is driving it, you cannot be driving it at the same time. If you are holding a rock in your hand and deciding whether to lob it into the water or to try to skip it accross the water, another person cannot be holding the rock at the same time.
But, if I get the idea that varying the diameter of a steam nozzle in a certain way will increase the efficiency of my turbine, it in no way automatically and inherently precludes you from designing your nozzles in an identical way.
You can replicate patterns. Physical matter cannot be replicated. If I want a gold ring just like the one on your finger, I have to acquire some other bit of gold. If I want a car just like yours, I have to find some other steel, fabric, plastic to arrange in the right configuration. That is true scarcity.
In the end, as Stephan has repeatedly pointed out, the proponents of IP are claiming that the claim to have originated a pattern provides a superior claim to the onwership of the matter. In other words, if you were to buy a few reams of paper, some ink and a typewriter and type out a copy of the latest Harry Potter novel, your suddenly cease to own the paper, and they instead become Ms. Rowling's property because the pattern on them makes them hers. I argue that you retain your ownership of the paper and ink continuosly form the point you acquired them (assuming you didn't steal them) through the writing process and indefinitely to the future until you decide to give or sell the property to someone else or destroy it.
Again, a particular drop of ink can be owned by someone. If we both want to use drops of ink for different purposes, we each have to get our own. The word written by a drop of ink is unownable separately from the ownership of the drop itself. If we both have our own drops of ink, we can write the same word simultaneously. There is literally no legitimate conflict. If I own the ink I can write whatever I want with it, and you cannot stop me without violating my property rights to that drop of ink. And unless you shared a work that you had invented with me, eliciting beforehand my promise not to write it down without your permission, I have no obligation to use my drop of ink only in a manner that suits you.
Now, let us turn to your argument that since property rights are, in the end, an agreement as to who gets to control things, and, that we who claim that the ownership of matter takes precendence over the ownership of a pattern is arbitrary. First, it is absolutely true that property rights are a form of agreement. Robinson Crusoe living on the desert island does not have to worry about who owns what. Whatever his eye sees, his hand can grasp without fear of conflict. Then you kind of veer of course and crash, arguing that since a property right is an abstraction that therefore it is unreal and thus our system has no better claim to usage than yours.
The reason for your accident is that you ignore the details of how the conflict settled by the property right arises. If I copy Ms. Rowling's book, does the book magically pop into existence in my hand? No. I have to have a pattern in my mind, paper, ink, glue and cardboard needed to make the book. Let us assume that I have acquired everything but the pattern trough trade. In other words, the paper-maker transferred his ownership of the paper to me, the cardboard maker that of the cardboard and so on, the inkmaker that of the ink, and the glue-maker that of the glue. Now, who owns the material? I do. When do I stop being the owner of the material? when I agree to give it to someone else or decide to destroy it. At this point is there some conflict between me and Ms Rowling? Does she have any reason to confront me or to shout out to all thsoe who know me, "that tarran, he has deprived me of my property?".
Of course not. Now, I write some words down on the paper, and use the glue and cardboard to bind it into a really spiffy looking book. Does she now have a claim on it?
You would argue that it depends on how the ink is organized, which shapes appear in what order on the paper. That if they are organized in one way then the object is Ms Rowlings, and that if they are organized another way, that the object remains mine. I argue that in the absence of my agreeing to give the book to someone, the particular arrangement of the ink, paper, glue and cardboard in no way affects who owns it. That stuff remains my property no matter how I arrange it.
If everyone in my town holds to the view that the book has become Ms Rowling's and assists her in taking it from me, obviously there is no agreement that the book is my property. Hell, if everyone I know decides to string me up from the nearest lampost, you could argue that there is no agreement that I have a right to live.
But the howling of a mob in no way forms a system of morality. Tomorrow the village could decide that they agree that I own Ms Rowling's house and assist me in evicting her. To make things predictable, to establish a system wherein people can predict which actions will put them in conflict with their fellows and which will not, one has to develop a set of rules.
In the end, all of our interactions are physical. I consume and excrete matter. My senses consist of matter that is stimulated by energy produced by other types of matter. Thus any conflict must have physical dimension. I must be manipulating matter and energy in someway that conflicts with your attempts to manipulate matter and energy.
Since the potential conflicts are over how physical matter or energy is used, any system for preventing conflicts must dictate who can use which pieces of matter or energy and in what ways they are permitted to use them.
The Lockean notion is pretty complete. Whomever acquires control of some physical piece of matter that is not previously controlled by another can claim it for himself as something he "owns". Whomever acquires something already "owned" by convincing the "owner" to cede control of it becomes the new "owner" of it.
Those who argue for IP claim that this is insufficient, that they have an alternate system wherein the "ownership" can transfer from one person to another based on how the original "owner" manipulates the object, or that somehow the first person who organizes some matter or energy in a particular way should be permitted to prevent others from simmilarly ordering other bits of matter or energy.
However, this sytem is actually far from providing guidence on how to avoid conflict. For example, if I build myself a shelter with a peaked roof for keeping the rain off and preventing snow build-up, am I going to come in conflict with the owner of the pattern known as a "peaked roof"? If I write the word "The" am I violating the porperty right of some owner of the word "the"? If I write "Arma virumque cano, Troiae qui primus ab oris, littorae..." at which word do I begin to violate the right of the person who owns the pattern called "Virgil's Aeneid"?
In short, the weaknesses you argue for our system are not weaknesses at all. A moral code is, by definition that of ideas. Our moral code has a simple, yet comprehensive system that, if followed, will prevent people from ever coming into conflict. On the other hand, the pro IP argument is neither simple, nor comprehensive, and cannot be followed in a conflict free manner. There is no rule for identifying which patterns are free to be used and which are not. Two people can independently express the same pattern for organizing matter, and each will have an equally weighty claim to all the expressions of the pattern.
Since "intellectual property" makes conflict inevitable rather than precluding it, it really does not describe property at all. It in no way provides a framework for agreeing who owns what. In short, it is a failure.
Published: October 6, 2006 7:15 PM
Artisan
You asked for an example so you "can go further with" your analogy. I gave you a simple one to work with, and now I get called "trite", and am told I have "no idea". and get critized for commenting in IP blogs, and am told that I am a "dreamer" and "can do better than that".
Perhaps you should take those unique insights and focus them at yourself! But I do see your problem now. The problem is that Rothbard is plain outright wrong when it comes to non scarse properties. If you take his philosophies about non scarse properties to its logical conclusion - it would boil down to property rights being about feelings.
Published: October 6, 2006 9:38 PM
JimB:
I quote myself:
If ever an economic actor gives up "money for ideas" obviously he or she, by their actions, admits they do not own the quantity or quality of them they wish. Hence the market, by placing a positive price on ideas, is confirming ownership. I think this is just confused. You seem to want to conflate valuing with ownership or property. Something's being valued does not make it rivalrous, of course. I think Tarran fielded your parry admirably.
Published: October 6, 2006 11:26 PM
Person writes:
"The same kind of scarcity exists in IP as in physical property: there exists a conflict over usage."
Person, I already COMPLETELY debunked your definition of "scarcity" (i.e. conflict over usage) in this blog:
http://blog.mises.org/archives/005196.asp
... yet you are STILL using it.
Please reread my posts from the last half of that blog.
Published: October 7, 2006 4:07 AM
Stephan - It's either (a) a free good (like air) or (b) not a free good. Trade only falls into category b. The "good" of course is the whole good - distribution, packaging, delivery ... so "free" goods like 10 cubic yards of dirt still are "scarce" (rivalrous) because delivery and organization, etc. matters.
Ideas are not like air (at least not the ideas we are talking about). They are not free.
Published: October 7, 2006 8:59 AM
Tarran -- very nice post! Thanks.
Published: October 7, 2006 10:51 PM
BTW, I suspect that (and from what I hear) various free market think tanks around the world acquire pharmaceutical companeis as "supporters" provided, of course, that they support IP. Hmm, I wonder, does this explain Cato's schizophrenic reaction to patents?
In this regard I recalled my post Palmer on Patents.
Published: October 7, 2006 11:47 PM
Dear David C.
However, I thoroughly regret that some pretty clear issues here take so much blog space, while others, leading to profound ideological division within the libertarian founding thoughts are barely mentioned. Look for yourself a few posts above: Dr. Kinsella asks “Artisan: no idea why you attribute to David an anti-homesteading position?” Maybe Dr. Kinsella has somewhat of a “blind spot” here?
Forgive me though if this sounded too personal, yet it seems to me I had to be somewhat irritating in order to get attention in this huge soup of general “IP-opponent correctness”. Don’t misunderstand me, your personal intervention in the Blog is most profitable I’m convinced, especially if you manage at some point to “see the problem” that I mention.
And yet David C., you are still wrong when you think you can single out the specific property rights definition beyond the concept of scarcity within Rothbard’s thinking… I’d be curious what ideas of Rothbard or von Mises, leading to “feelings of property rights” you are mentioning in fact.
Eventually your own restrictive approach of Rothbard is a pure annihilation of the libertarian logic (or at least the Rothbardian / Misean) in its “boiled down” consequences. Why is that good?
Published: October 8, 2006 9:13 AM
Tarran - The sentence was freely released to the public domain, so it is hardly an example of your position.
Ownership is not control, but the right to control, and rights are abstract.
If I mix my labor with unclaimed material in nature, it becomes mine. But what is labor but the activity of the will through my body. So in fact, ownership boils down to mixing "conscious acts" and transforming material through the physical motions of my body.
So at root, the theory Stephan presents is false because it presumes that "ownership" is "concrete" when in fact we are talking "rights of action" which implies the "will" which is not concrete, and "rights" imply "just property" and "justice" is also not concrete but originates in understanding (consciousness) of a natural moral order.
So the accusation that it is reprehensible to take physical action against unjust distribution of an idea, is in the last end, no criticism at all (in and of itself, without further appeal to justice) - because concretes are attached to non-concrete reality.
After all, what we want to stop in an aggressive person is not the actions of his body (which could at the right time be appropriate), but a change in the understanding and the will which controls the body. So the "concretes are all that there need be" is spectacularly false.
And more, the original theory fails to account for how ideas are justly acquired.
The criticisms could go on and on. For instance, trademarks are illegitimate - after all they are simply an arrangement of ink, etc.
You example of a peaked roof is especially appropriate (since it is so nonsensical as there is no one anywhere advocating restricing information in this manner, so it is a straw man argument...) In the case of the house, unless it is built on private land out of sight, the designer cannot help but release a good portion of the design to the public (and may want to do so to obtain clients).
In your example of the Harry Potter book, you must specifically DENY that the words have any "meaning" apart from (or labor "mixed with") the physical scribbles, print, ink, paper, and binding - but surely you cannot ravage the nature of man (and consciousness) and thus of freedom so completely and expect to have a cohesive theory of rights!
Published: October 8, 2006 11:52 AM
JIMB, I like the way you explain things here!
Published: October 8, 2006 1:44 PM
JimB:
You seem to be implying all non-free goods are necessarily rivalrous.Artisan: I don't really know what you are trying to say.
I don't really know what you are trying to say.
I have no idea what you are talking about or trying to say.What do you mean, they are abstract--and what's the relevance? Uh, however you want to undersatnd it, okay. The reason mixing labor with unclaimed property homesteads it is not because you own your labor--you don't; but because by doing this you emborder it and thereby set up observable borders that evidence *that you were* the first to use it--this serves to establish you have a better claim to it than anyone else who in comparison is necessarily a latecomer. See, you don't have to get all metaphorical and poetical. Uh, whatever. Anyhoo--the point is that the first user of a scarce resource has a better claim to it than latecomers. Simple. Uhhhhhhhh .. hunh? (picture of dog cocking his head sideways when hearing a confusing sound) JIm, are you even *aware* of what has already been written on this? I addressed this explicitly in my Against IP article; and again, in my reply to Frank Van Dun on this trademark issue in a recent JLS.
Published: October 8, 2006 2:55 PM
Stephan - I've read a number of articles written by you, but unfortunately, at least to me, each seem to offer significant problems in logic - the arguments against IP are not exempt. There are big problems with IP, but your arguments do not do those problems justice.
The fact that people will pay for ideas means they are scarce in the senses we normally attach to the acquisition and sale of property.
Sellable ideas are:
1 - generatively scarce because they rely on resources that are scarce
2 - rivalrous because the buyer does not have the ideas and wants them - hence it is no different than denying another person your goods before they pay for them
3 - rivalrous in the sense that the seller can legitimately restrict distribution to those willing to pay for the idea, provided the idea is not already in the public domain. Those that have the same idea independently are clearly also owners.
Perhaps you can enlighten? I see no functional difference between paying a doctor for his "experiential knowledge" and paying for ideas, both of which are owned by the seller and of which the seller can demand non-disclosure (thus non-replicability by the buyer). It's the same for non-competition clauses in private contracts for employment.
Published: October 8, 2006 9:38 PM
I think that it is very telling that neither side in this debate quite "gets" where the other side is coming from. Frankly, I don't get the arguments of the pro-IP crowd, but not for lack of trying. Stephan has laid it out his theories quite persuasively and elegantly in "Against Intellectual Property". Any defense of IP needs to start with a systematic refutation of the points laid down in this article. Trying to categorically deny the validity of Kinsella's arguments on the basis of observed actions in the marketplace or by quibbling over what homesteading "really" means is missing the point. The real meat of his argument is that IP and "real" property rights must necessarily come into conflict, which I think is self-evident.
JimB:
"If ever an economic actor gives up "money for ideas" obviously he or she, by their actions, admits they do not own the quantity or quality of them they wish. Hence the market, by placing a positive price on ideas, is confirming ownership."
That ideas are valuable and are routinely exchanged for money is a given, but does that make them property? If I hire someone to mow my grass, have I acquired any property? If I pay for piano lessons, have I bought property? Can I sell my lessons back to the piano teacher later on when I get tired of them? Just because there is a market in a good does not mean that the good is workable as a property right.
In my mind, what has happened is that we have been with patents and copyrights for so long, treating them as property, that many people cannot conceive of them being anything else. Rather than wrestling with the difficult implications (and there are some potentially thorny ones) of abolishing IP law, these people cling to it tenaciously and justify it to the point of absurdity.
The internet has changed everything. Music, movies, books, software, none of these can hide behind the relative safety of being tied to a medium anymore. And I think that it is as it should be. It is no more productive to cling to the old model of distributing music, for example, than it is to decry the loss of jobs when a factory automates its production line.
So how would we get by in a world without IP? Patents are the biggest issue, causing the most harm because of their multiple diversions of productivity. Abolishing patents would basically make ventures that are currently based upon them just as profitable and risky as other types of entrepreneurial ventures. The first firm to market with the idea has a good chance of earning an economic profit, with that profit steadily decreasing as competitors implement the idea and enter the market.
Would this stifle creativity and stagnate these markets? I argue quite to the contrary. No, I see the problem of ongoing competition sparking an explosion of innovation in which competing firms attempt to differentiate their own products by ongoing research and development.
In a world without IP law, why would anyone write books, make music or movies? As a not-so-serious writer, I can tell you that the answer is that they will continue doing so for the same reason they always have: personal enjoyment. Publishing a book now requires nothing more than a computer and storage space on a webserver, and music needs much the same, with some specialized hardware and software.
Those particularly talented individuals who really think that their offerings are worth some cash would find a solution. Writers could offer their work as an encryption-secured, paid subscription service. For musicians, the answer is live music, which much better represents the realities of a free-market system than CDs. That would make music filesharing their medium of advertising.
Movies have a bit of a hurdle to overcome with the high production costs involved. One observation I have concerning that is that those costs are a direct result of the monopoly power of ideas. Movies cost so much to make because it is profitable to do so at this time. Pull the monopoly rug out from under the industry and observe all that productivity diverted elsewhere.
Seriously, though, I think that the movie industry would continue to survive and thrive, but with a very different business model. Whether the result would be jealous restrictions on how someone gains access to the content or a particularly clever sales scheme is something I'd rather leave up to the free market to devise.
Software is a rather interesting case, because open-source licensing points to just the opposite of what IP lay proponents predict about failing to incentivize. Open source projects are the source of some of the liveliest and most valuable software development occurring today. In fact, I would go so far as to suggest that open source software debunks the myth of the free rider, but that is a topic for another thread.
Published: October 9, 2006 12:16 AM
Dr. Kinsella
”I don't really know what you are trying to say.”
Oh, that’s nothing new to you, Dr. Kinsella, as you made it relatively clear that you understand the flaw of the “Lockean proviso”… Perhaps you remember how I begged you to have Prof. Hermann Hoppe to occasionally express his views on the following idea as a conclusion? “If identity could be considered a part of the integrity of someone’s property, then it would be unethical to mess up this identity by any mean… according to the definition Prof. Hoppe makes of property in "Four Critical Replies " ,,. In this case thus, plagiarism would be unethical, which justifies some copyright on the other hand.
By the way, my proposition with the bottles of champagne is still going…
My intervention in this blog concerns just the fact that some of your disciples (well maybe it’s only David C.) don’t seem to accept that key concept of homesteading explained by Rothbard .
I wonder if it’s more important to you they be anti-IP or that they understand the flawed “Lockean proviso” and the full extent of homesteading thus. But – please excuse this presumptuous suggestion – in case it’s more important to you to be anti-IP, maybe you/they should consider a secessionist non-Rothbardian libertarian movement?
Published: October 9, 2006 5:37 AM
Scott D.
"Those particularly talented individuals who really think that their offerings are worth some cash would find a solution. Writers could offer their work as an encryption-secured, paid subscription service."
you do understand how this is not a solution to secure them a living from their individual art, if all copies are legal, don't you?
Published: October 9, 2006 5:46 AM
Artisan: "you do understand how this is not a solution to secure them a living from their individual art, if all copies are legal, don't you?"
Technology taketh away, and technology giveth a solution.
What I'm saying is that it is perfectly acceptable to control the means of distribution. Consumers who want access to the content will have to agree to receive it through a medium that limits their ability to copy it.
Now, that doesn't prevent someone from potentially cracking the software (not likely, if size of the encryption key is up to standards and the source code is kept out of the public eye) or simply typing out a copy word-for-word.
Two observations here: Current publishing tacks a lot onto the cost of a book. Really, though, the only service that a writer needs for publishing over the internet is an editor. If the price of a book sold this way is adjusted to a reasonable value by the market, say, two dollars, a writer who makes 50,000 book sales would have a tidy sum to split with the editor. If the author released a book as a serial, one chapter a month, the cost per chapter could be as low as oh, let's say 25 cents per month. Would this really put the incentive out there for people to copy and redistribute it?
My second observation is that books still work best when they are books. Books are more portable and less strain on the eyes than a computer screen. There is the danger of rogue publishing houses running off their own copies of the book, but this can be largely solved by contracting with book distributors to only carry official, authorized copies (ie. copies that pay the author's royalties). I would suggest that consumers would prefer to make sure some of their money goes to the original author.
I think that the overall money flowing into this sector would be lower, but that's the nature of a leaner, more efficient non-IP law economy.
Published: October 9, 2006 8:25 AM
Scott D - Ideas would be traded even in the presence of zero IP -- because ideas are the basis for purposeful human action.
I don't think you've been reading the posts carefully - The argument that "it is unjust because one must infringe on concrete property to enforce IP property" is nonsense. Trading concrete property is as "abstract" as trading ownership in ideas because what is changing hands is "rightful use" (physical property may not even change hands) - so concrete property is in fact tied to abstracts.
If you pay someone for an idea, certainly something changes hands -- what? You say there is no "ownership" but I assert the simple direct observable brute fact that market behavior indicates at least some ideas are owned and exchanged and they would be even if there were not IP law.
I think where we disagree is not whether IP can be fair or just (it cannot help but be partly arbitrary), but whether it should be dispensed with completely and writers, programmers, chemists, pharmaceuticals, etc. be continuously aggressed upon by allowing unjust and unauthorized distribution of their "goods". What we've got might be bad, but what Stephan proposes is far worse - and also illogical at root.
Published: October 9, 2006 8:31 AM
I've thought about this subject a lot, since one of these days I'd like to get around to publishing. How about this:
"Author J.K. Rowling announced this morning that she is already hard at work on the next installment of the the highly-successful "Harry Potter" series of books. The new book is projected for an October 2010 release, with a sponsor goal of 8.5 million dollars. Rowling has promised that patrons who give a donation in excess of two thousand dollars will be invited to an exclusive meet-and-greet and book reading and will receive an autographed, leather-bound special edition of the new book. Donations of two-hundred dollars or more will receive an autographed copy of the book's standard edition, following down to the paperback release at eight dollars.
Analysts are already predicting that the sponsor goal will be surpassed by a wide margin, and speculations are running rampant that this time around, Rowling is planning a world tour to satisfy the demands of her fans who will pay the premium to meet her in person. Rowling's book will be available for free download from the author's website one month after the its official printed release."
Of course, all of these distribution methods could coexist, with bestsellers taking the rockstar route outlined above, and unknowns choosing secure internet distribution or conventional publishing.
Published: October 9, 2006 9:34 AM
I just wanted to point out here, so no one thinks I'm chickening out, why it's impossible to discuss anything with Stephan. I know, this is meta-talk, but Stephan uses his exact same tactic each and every time I try to make my case on this blog.
1) I explain that the non-scarcity of ideas (to the extent it's true doesn't help his case and is irrelevant.
2) Stephan tries to distract readers by acting like I have to prove his conclusion wrong to establish 1), which is false.
3) Stephan then says scarcity really is relevant because it forms the basis for his property theory.
3) is, of course, missing the point, as I've said over and over. While scarcity might form the basis of his property theory, the specific non-scarcity of ideas has no relevance. In this latest thread, I explain that Stephan's confusion arises due to his careless sliding from one definition of scarcity to another. Of course, I've made the same point in different ways on several other threads by asking such over-Stephan's-heads questions such as:
Can a socialist claim the right to sleep in a farmer's field because "the farmer isn't using it" and therefore "there's no scarcity"?
Are radio frequencies really scarce if more than one person can transmit along one in the same region?
And others I can't remember. Stephan deliberately dodges this critique of his case. You can see it now in how he REFUSES to specify which definition of "scarcity" he's using. Is he talking about "value scarcity" (impossibility of satsifying coincident desires) or is he talking about "physical scarcity" (impossibility of satisfying coincident uses) when he forms his libertarian theory? Does he even know?
I have made this challenge again, and again, and Stephan will never respond without changing the subject. In his mind, everyone is either agreeing with him or saying stupid stuff, so he will never seriously consider any objection to his arguments whatsoever. His entire JLS article is an exercise in preaching to the choir. Until he answers this objection, he is a crank, pure and simple.
Published: October 9, 2006 10:03 AM
Artisan:
I vaguely recall this (and btw HOppe did confirm for me in private that I am correct about his view). but what I meant is, I find your langauge or wording so bizarre and obscure I am really not sure what you are asking.
As for the Lockean proviso, both Hoppe and I reject it. Hoppe mentions this in his replies; and I mention it in my review of de Jasay's book Against Order (see p. 91 and footnote 5).
I really don't know what you are trying to say or what your question is. You are not being clear, at least not to me. I have no disciples. There are just lots of people who see IP for the crock it is. I don't know how the Lockean proviso got brough up or its relevance. My view on IP is just an application of or consequence of my libertarian conception of the nature of property rights. no; IP is just derivative; a secondary topic. As far as I know my IP views are perfectly compatible with Rothbard's conception of property rights. I think this is why my IP views are agreed with by various ultra-Rothbardians, such as Block, HOppe, and Salerno.
Scott, I suspect that this is only temporarily true: it seems inevitable that something like an e-book reader (an iPod for books) will eventually largely supplant books. It might take 10 or 20 years, but I think it will happen. What do you think would happen then? It seems to me that NOW if an author publishes his book for free on the Internet, in most cases it does increase book sales, for the reason you gave. But this is because there is no e-reader substitute for books yet. When that does become a reality, I think publishing an e-copy of the book for free will have greater costs. What do you imagine publishers/authors will do when this happens.... some kind of cartel agreement etc.? Curious as to your thoughts. No; this actually happens. Companies and people get injunctions to force them not to use their own property in certain ways. Or have to pay money damages if they do so. Trust me, this happens all the time. Uh, okay. Anywhoo: IP still means recipe-thinkers gain control over others' property. It just ain't right. It's completely arbitry, and a creature of statute. Aggression is the unconsented-to invasion of the borders of others property (owned scarce resources--thins that have borders). What you are describing is not aggression. No, it's not.Scott D:
Person the pest:
You stand contradicted. yes, and, sigh, here we go again. tactic? I have certain ideas and principles. You do not explain it--you argue it; and you do so unpersuasively. I have pointed out many times why I disagree. Let it go. Take a breath. Realize we don't all agree w/ your nattering, confused views. Wait, what is false? Right. Bingo. Got it. The whole debate is whether IP is really property. Our view is that only scarce resources are property. IP is not scarce; therefore it's not property. In fact the non-rivalrousness of IP means that if you try to make it property, you end up infringing on property rights in material things. This has always been my point. Oh, I don't know about that. I always use scarcity in the "rivalrous" sense. It is you poeple who say, "Aw, shucks, golleee, I shore know good ideas is sure scarce! We need more of 'em, huh-yuk!" That is using "scarcity" in the casual, "not-plentiful" sense, instead of in its strictly "rivalrous" meaning. It's sneaky. The farmer owns the field because he was the first to use it. The field is rivalrous--the farmer wants it used in one way, the vagrant another. The farmer is the owner, so his decision is the one that matters. See David Kelley, Laissez-Parler, on this. What critique? How do your ad hoc queries change the fact that assigning rights in ideas is a way of assigning proprty rights in real things in contravention of the first-use-first-own principle? I always use it in the economic sense of rivalrousness. Are you not familiar with it? I don't know what value scarcity is, it sounds like something you dreamed up. Of course not--but it is rare to have a coherent, intelligent objection to IP. I actually think the utilitarian case is probably the best. I think that's a first! haha.Published: October 9, 2006 10:33 AM
2) Stephan tries to distract readers by acting like I have to prove his conclusion wrong to establish 1), which is false.
Wait, what is false?
It is false that I must justify IP in order to show that the non-scarcity of ideas is irrelevant to your attempted refutation of IP. Like you would have seen if your attention span were longer. [insert 1000th apology from Stephan about short attention span and promise to improve]
3) Stephan then says scarcity really is relevant because it forms the basis for his property theory.
Right. Bingo. Got it. The whole debate is whether IP is really property.
No. The whole debate is whether IP claims regarding the use of scarce resources should be respected and enforced. It's not just a semantic shift; this distinction underlies your careless treatment of the topic.
Our view is that only scarce resources are property. IP is not scarce; therefore it's not property. In fact the non-rivalrousness of IP means that if you try to make it property, you end up infringing on property rights in material things. This has always been my point.
No. Your claim is that IP claims infringe on property rights you believe to be superior. This has nothing to do with ideas being non-scarce.
me:3) is, of course, missing the point, as I've said over and over. While scarcity might form the basis of his property theory, the specific non-scarcity of ideas has no relevance.
you: Oh, I don't know about that.
Unfortunately, I *do* know about that. And I know that you are in error. You do not know that you are in error because "everyone who says anything is either agreeing with you or saying stupid stuff".
me:In this latest thread, I explain that Stephan's confusion arises due to his careless sliding from one definition of scarcity to another.
you:I always use scarcity in the "rivalrous" sense.
And you never bother to actually look up what that means in the context of my objections to your use of it. You "pass the buck" to economists who handle the concept of rivalry and think no further. However, as I have explained here and elsewhere (thought not always in these terms) there can be "value rivalry" and there can be "physical rivalry". Normally, no one bothers to distinguish them, but here, when you clearly slide between them, the distinction is vital. In the farmer's field example, there is value rivalry but not physical rivalry. There is not physical rivalry because it is *physically* possible for both the trespasser to sleep in the field, and for crops to grow. There is value rivalry because the trespasser wants to sleep in the field, while the farmer does not want him to sleep in the field. Again, Stephan, what kind of rivalry are you talking about?
It is you poeple who say, "Aw, shucks, golleee, I shore know good ideas is sure scarce! We need more of 'em, huh-yuk!" That is using "scarcity" in the casual, "not-plentiful" sense, instead of in its strictly "rivalrous" meaning. It's sneaky.
No, Stephan, I have never used it in this sense, and for you to claim I have, you are perpetrating a fraud on all readers of this thread. You are lying to prove a point. Shame on you. Go back and read what I actually posted for once in your life.
me:Can a socialist claim the right to sleep in a farmer's field because "the farmer isn't using it" and therefore "there's no scarcity"?
you: The farmer owns the field because he was the first to use it. The field is rivalrous--the farmer wants it used in one way, the vagrant another. The farmer is the owner, so his decision is the one that matters.
And there you go again. You start from using the concept of value scarcity (mutually exclusive desires on how to use something) to justify your property theory, but you switch to complaining about physical (non-)scarcity of ideas for IP. IP is precisely as scarce as it is in the sense you are using it right here -- Neil Diamond wants his ideas used one way, Bobby wants that idea used a different way. Physical non-scarcity of the idea has nothing to do with it.
me:Are radio frequencies really scarce if more than one person can transmit along one in the same region?
you:See David Kelley, Laissez-Parler, on this.
NO. You explain, in your own words. Don't let others do your heavy lifting. You're a grown-up. You can make your own arguments.
How do your ad hoc queries change the fact that assigning rights in ideas is a way of assigning proprty rights in real things in contravention of the first-use-first-own principle?
I am not trying to claim that. My claim all along, you know, the one you keep distorting, is that the non-(physical)-scarcity of ideas has nothing to do with your case against IP. For the reasons above you probably already forgot.
me:You can see it now in how he REFUSES to specify which definition of "scarcity" he's using.
you:I always use it in the economic sense of rivalrousness. Are you not familiar with it?
*I* am familiar with it. *You* are not. You carelessly slide between two definitions that are important to distinguish in this case. See above for why, which you have by now probably already "forgotten".
me:Is he talking about "value scarcity" (impossibility of satsifying coincident desires) or is he talking about "physical scarcity" (impossibility of satisfying coincident uses) when he forms his libertarian theory? Does he even know?
you: I don't know what value scarcity is, it sounds like something you dreamed up.
You don't know? Maybe you could have read the several times I defined it. You know, like how I defined it in the part you were just responding to before you fraudulently claimed not to know what it is. I didn't "dream it up". I certainly didn't dream up the concept of desires conflicting (which is what value scarcity ultimately is). I certainly didn't dream up the value/physical distinction that economists -- you know, the ones you fraudently lean on to lend an artificial aura of credibility to you arguments -- make, such as in the context of "value productivity" vs. "physical productivity".
me:I have made this challenge again, and again, and Stephan will never respond without changing the subject. In his mind, everyone is either agreeing with him or saying stupid stuff,
you: Of course not--but it is rare to have a coherent, intelligent objection to IP.
Of course. OH! You mean, it's rare to have a coherent, intelligent defense of IP! Well, if you had been reading my posts (I can dream), you would have noticed that I'm not objecting (yet) to your conclusion (the unjustifiability of IP), but to your pretence that idea "non-scarcity" matters. Once you grow up and concede that error in your paper, then we can get to that. But not until.
Published: October 9, 2006 11:23 AM
Okay. Let's look at "value" scarcity. I contest that it is irrelevant because it is ONLY valid as a separate concept from "physical" scarcity if we are talking about IP. I see this as a circular argument. IP is justified through a concept which could not exist without IP. To illustrate an example of "impossibility of satisfying coincident desires" let's say we have two people who each purchase a banana cream pie in a restaurant. Person A loves banana cream pie, but becomes nauseous at the thought of someone else eating one. Seeing Person B buying the same pie, Person A becomes violently ill and is unable to eat his own pie. The system has failed to satisfy both person's desires to eat their pie. Obviously, the answer is to prohibit B from purchasing a pie, right?
I would challenge you to come up with a counterexample of "scarcity of values" that is reasonable and is not a case of IP.
Now let's look at scarcity of ideas. Yes, ideas are scarce in the sense that you can't just get any idea you want whenever you want. They are scarce in the same way that piano lessons are scarce. See where I'm going with this? In fact, what is scarce is the SOURCE of ideas and piano lessons, the people who come up with them. This is the fundamental error that you are making, Person. It is not the ideas themselves that are scarce, but the cogniti