Let's Bring Back the Good Old Days of English Patents
It's somewhat striking that modern libertarian advocates of patent rights seem blithely unaware of the utterly monopolistic, completely unlibertarian origin of "patent grants" by English monarchs. At the very least, they ought to be a bit uncomfortable that patents arose in this manner.
[Note: Update: Patent-Seeking as a Defensive Move -- Then, and Now]
Interestingly, as reported by the Patently-O Patent Law Blog (The Roots of Patent Policy: Rethinking Early English Patent Policy),
Dr. Chris Dent, an Australian Researcher, has written an interesting new paper on the history and value of original English patents. Although invention was not the basis of the patent grant, Dent argues that they may still have been based on sound public policy goals.
Dent concedes (from Patently-O's synopsis) that "The manner in which the early modern English monarchs – Elizabeth I and James I – granted patents of monopoly is not seen in a good light in current legal discourse. There are many tales of the nepotism that was, allegedly, rife and the public outrage at the abuses of the Crown – circumstances that only ended with the “triumph” of the Statute of Monopolies in 1624." Right. No surprise.
However, argues Dent, "This simplistic understanding does not do justice to the good intentions of Elizabeth and James; and, to an extent, may be inaccurate." Amazing! The opposition to nepotistic and utterly unjustified state monopoly grants is "simplistic," and does not "do justice" to the monarchs' "good intentions". Ha!
Dent actually argues that
three key policy objectives informed the monopolies awarded by the two monarchs. ... These goals – increased employment levels, an improved balance of trade with other countries and the better regulation of industries – not only appear to be modern, but also may be understood to have been fundamental to the modernisation of English society and its economy. Examples of these goals in practice include the granting of monopolies for water pumping inventions to more effectively mine for minerals (increasing both goods production and employment); grants for the establishment of local industries, based on imported technical knowledge, to reduce the reliance on foreign goods; and the regulation of manufacturers to improve the quality of goods available for sale. Economic historians note that the English economy underwent significant change in the 16th and 17th centuries; this change may have been, in part, a result of the policy actions of the Executive of the time. Actions that included the grant to individuals and companies of the now-maligned grants of monopolies.
So here we have it: not only is the monopolistic origin of our modern invention-based patent system not embarrassing, it was a good thing, similar to our modern legislative "tweaks" of "unbridled" capitalism. Seen in this light, modern patents and ancient ones have a lot in common.
Comments (61)
Person
This, of course, is in contrast to the completely libertarian origin of "landlordism".
Published: August 31, 2007 10:31 AM
TLWP Sam
Muhahahahahahaha! Good one Person! }>:)
Published: August 31, 2007 10:49 AM
jeffrey
And its purpose was to cement political loyalty in a time of grave political-religious upheaval. It was the same on the Continent with the first mercantile grants of privilege for producers of many products. The Kings wanted credit for the growing existence of consumer goods and services. The first producers wanted security against being looted by the King and otherwise being outcompeted. Everyone won but the consumer.
Today we think of a exclusive privileges to make clothing or sugar or hand tools are ridiculous and outmoded. But exclusive privileges to produce movies, books, and drugs? Oh those are oh so necessary, else we'd be sunk!
Published: August 31, 2007 11:08 AM
jl
I believe Rothbard pointed out another reason for the monopoly grants in Conceived in Liberty. It made it much easier for the Crown to tax trade when it was confined to government-sanctioned ports.
Taxation was bad enough, but Parliament held the purse strings. Monopoly grants were a way for the Crown to get around this restriction.
Published: August 31, 2007 12:37 PM
Anthony
Person, what exactly do you mean by landlordism? Rothbard had written against forms of it in several of his works.
Published: August 31, 2007 1:36 PM
Robert M.
I'm new to the Austrian school and am unfamiliar with your views on patents. Would someone please give me a brief summary? How would new drugs ever be researched (which costs in the millions) if the company put out the drug and someone else quickly copied it and was able to sell if cheaper? It seems to me like this takes the incentives out of inventing new things.
Published: August 31, 2007 2:41 PM
Robert M.
I'm new to the Austrian school and am unfamiliar with your views on patents. Would someone please give me a brief summary? How would new drugs ever be researched (which costs in the millions) if the company put out the drug and someone else quickly copied it and was able to sell if cheaper? It seems to me like this takes the incentives out of inventing new things.
Published: August 31, 2007 2:42 PM
Stephan Kinsella
Robert M: "I'm new to the Austrian school and am unfamiliar with your views on patents. Would someone please give me a brief summary?" No. Try google.
Published: August 31, 2007 4:04 PM
Eric
Robert,
The best source of how the market would work without force (and patents use force) is the writings of Rothbard.
Mises, in Human Action, does not speak for or against them (page 662 in my copy). Others acknowledge that patents have plusses and minuses.
Without patents, a new invention would provide an initial advantage for some time over copiers. Look at the computer industry. Mac copied Zerox and Microsoft may have copied both. I don't think patents for software have helped much; in fact I think they hurt. Just look at all the discussion of patent "war chests" and how awful the patent office is. In addition, the legal costs are astronomical and economically wasteful.
As to drugs, how is it that Bayor still sells asprin many decades after it became generic. If they make theirs with better quality or by reputation (brand names) they can still make a profit. And Bayor charges more for their asprin.
As to the huge cost to discover new drugs, that's mostly due to regulation e.g. FDA rules. As discussed in "Economics in one lesson" the lesson applies here; one must look at all the effects of a govenment policy, over all time and for all people. You need to subtract from any possible good that patents provide the amount of bad they cause to all over time, not just one group today.
Published: August 31, 2007 4:05 PM
happylee
Wasn't it the Brits who gave us the corporation, the other evil birthed by the state and yet somehow adopted and beloved by "libertarian" types?
Published: September 1, 2007 1:59 AM
David C
Oh good, I never got a chance to continue our last debate....
David C: [insert patents are genocidal argument here]
Person: A lot of people die of starvation while there is food available. Does that make property rights evil?
David C: It does if they forbid people from growing their own *copy* of the food on their own land, and then fraudulently call that restriction a "property" right.
Person: I don't know if you're intentionally being dense, but you missed the point of my question. You said that IP is wrong, on the level of genocide, because violating it prevents massive death. I pointed out that violating physical property rights would also prevent mass death and by your own standards is thus wrong on the level of genocide. I then asked you if you conclude that property rights are evil. Your answer was, yes, if it's also an instance of IP. That's non-responsive. ... Now, try again, and this time, try to maintain ideological consistency.
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No I didn't because it's a Red Herring, patents have nothing to do with physical property - that should have been outrageously clear considering how I ripped apart your analogy. You may as well have just said, "Joe Blow busting into someone's house and shooting someone is violent" ... so what, it says nothing about the nature of patents or the argument, it's a Red Herring.
It has always been a Libertarian position that taking away freedom causes death and misery. I pointed out Patents cause death, misery, and loss of freedom. If we can't use a rational criteria to judge the nature of a belief or system, then what else is there ... the tooth fairy? PS: Physical property rights don't cause death and misery in the real world, patents do.
Published: September 1, 2007 10:08 AM
Anthony
I find arguments against IP that could be turned against physical property to be ineffective in the extreme. A more rational approach would be, as Kinsella I believe has done, to show how they are incompatible with homesteading theory.
On the other hand, if analogies are carefully drawn (e.g. showing how patents are similar to government/government-aided land monopolies, which libertarians do see as pernicious), there is less of a problem.
Published: September 1, 2007 10:28 AM
Person
David_C: The question is whether violating property rights could alleviate mass suffering. If so, they are morally equal to patents under your argument. Violating property rights quite clearly could alleviate mass suffering. Ergo, you should favor violating them.
Anthony: My point was that private property rights can be historically traced back to institutions and practices libertarians would object to, just as patents can be traced back to things pro-patent libertarians object to. Why do you think we call someone who rents out property (not itself objectionable) a land*lord*?
Also, if you think attempts to compare physical property with IP are "ineffective", how do you respond to the argument that property in radio frequencies is a kind of IP?
As for homesteading theory, appealing to it only pushes the problem back, because then you have to justify why, under your homesteading theory, certain things count as "homesteadable resources" and others don't. For example, "exclusive legal right to use idea X" is unambiguously scarce, yet Stephan_Kinsella says it can't be homesteaded.
Eric: High cost of drug research has little to do with the FDA. As Stephan_Kinsella has agreed, cost of making any new discovery necessarily increases over time -- people grab the lowest-hanging fruit first, remember? -- therefore, if you go far enough into the future, drug research costs *without* the FDA will cost more than they do today, *with* the FDA. Then what's your solution?
Published: September 1, 2007 2:04 PM
Jean Paul
Yes person, property in radio frequencies does seem stupid. It is no different than property in sound frequencies or light frequencies. Think of the idiocy that would arise if those were somehow owned. "I own blue!"
'Ownership' of 'number of oscillations per unit of time of all transducers in this vicinity' is absolutely unlibertarian and wrong. As is all IP.
Published: September 1, 2007 4:33 PM
J. W.
Person:
Let me start by saying I am up in the air on IP. I think good arguments are put forth on both sides.
However, I've noticed this "the exclusive legal right to use idea X" is scarce comment several times from you in this and other threads. It does not address the issue Kinsella is putting forward.
Here's why: "The exclusive legal right to use idea X" signifies a scarce good. (Yes on that point I agree with you!) In fact, "the exclusive legal right to Z" also would designate a scarce good, whatever you choose to put in the place of Z, including Z="decide whether or not IP is valid".
This is all fine and good, but Kinsella's claim is that only goods which are scarce can be homesteaded, that is claimed as owned. The key is that only an UNOWNED good can be homesteaded. So what Kinsella is saying can be more precisely worded as: Only an unowned good can be homesteaded, and then only if it is scarce. "The exclusive legal right to Z" clearly passes the scarcity test, with flying colors in fact, but only if ALREADY OWNED. If unowned, "the exclusive legal right to Z", does not even exist! Thus while "the exlusive legal right to Z" is certainly scarce, it never exists in an unowned state and therefore cannot be homesteaded.
Please attack Kinsella's argument on other grounds.
Published: September 1, 2007 5:32 PM
Anthony
Person: "My point was that private property rights can be historically traced back to institutions and practices libertarians would object to, just as patents can be traced back to things pro-patent libertarians object to. Why do you think we call someone who rents out property (not itself objectionable) a land*lord*?"
Yes, I don't disagree with you on this.
"Also, if you think attempts to compare physical property with IP are "ineffective", how do you respond to the argument that property in radio frequencies is a kind of IP?"
Because unlike ideas, radio frequencies are scarce. One can use an idea simultaneously with someone else using it - the same cannot be said of such frequencies.
"As for homesteading theory, appealing to it only pushes the problem back, because then you have to justify why, under your homesteading theory, certain things count as "homesteadable resources" and others don't. For example, "exclusive legal right to use idea X" is unambiguously scarce, yet Stephan_Kinsella says it can't be homesteaded."
Again, ideas are not scarce in the sense that physical property is; two individuals may act on the same idea in a non-rivalrous fashion.
Published: September 1, 2007 7:37 PM
Person
Jean_Paul: Well, I may disagree with you about radio frequencies, but I agree that IP rights and frequency rights are connected, and Kinsella hasn't satisfactorily distinguished them.
J._W.: The exclusive legal right most certainly is unowned at some point. And I attack Stephan_Kinsella on this point because he makes subtle distinctions in his grounding of homesteading theory and then completely blurs them when explaining how IP can't be owned.
Anthony: "Yes, I don't disagree with you on [property rights being traceable to something not libertarian]."
Then you agree with me about the invalidity of Stephan's argument in this blog post.
"unlike ideas, radio frequencies are scarce. One can use an idea simultaneously with someone else using it - the same cannot be said of such frequencies."
Well, as I've explained a thousand times, it's not the use of the idea that the creator is after, but the exclusive legal right to use it, and that most certainly is scarce. Similarly, two people most certainly *can* use a radio frequency at the same time, in the sense of transmitting along it -- it just won't be satisfying. Kind of like producing an intellectual work when others have the right to freely copy it.
Published: September 2, 2007 10:44 AM
J. W.
Person:
You did not reply to my objection; you simply asserted the contrary: "The exclusive legal right most certainly is unowned at some point." Prove it.
In what way can "the exclusive legal right to Z" be said to EXIST if it is UNOWNED?! Does the unowned "exclusive legal right to speak" exist? Can I homestead it? Or better yet, does "the exlusive legal right to determine the validity of IP" exist? No one owns it, can I homestead it?
You are not so dense as to not see the problem here. So go ahead, prove that an UNOWNED "exlusive legal right to Z" EXISTS.
Published: September 2, 2007 11:41 AM
J. W.
Person:
I apologize, I didn't read your response carefully enough. Of course you can prove for SOME Z that your assertion, "the exlusive legal right to Z" is unowned at some point is true. Obviously any exclusive legal right which DOES NOT EXIST is unowned for the period of its nonexistence, just as Santa Claus is unowned because he doesn't exist.
However, my challege boils down to asking you to identify a Z such that "the exlusive legal right to Z" EXISTS, and is UNOWNED.
Published: September 2, 2007 11:57 AM
Jean Paul
"The exclusive legal right to " presupposes the legal system that grants this 'right'.
I think the debate is about what kind of legal system is justifiable, not whether "The exclusive legal right to " COULD be recognized in SOME legal system. Of course state-granted 'IP' rights could exist, and in our legal system today they do, but the question is whether this is JUST or not.
I believe in absolute self ownership as an axiom, as I think most here do. This is the fundamental right from which all others flow, so let's not even consider any other form of physical property except self-ownership of one's person.
Well, IP is incompatible with this most basic right of self ownership. That's all that needs to be said really. If the existence of IP is precluded by self ownership, the most fundamental of libertarian principles, then no other derivative feature of libertarianism can bring it into being.
It simply cannot exist in a libertarian world.
Published: September 2, 2007 12:08 PM
Jean Paul
Person: I think you will wait a long time to hear a satisfactory distinction between intellectual 'property' and spectrum 'property'. The 'property' nature of each is the same - which is to say, neither can be considered property.
A portion of a spectrum is really "a range of rates of oscillation of a medium"; spectrum is meaningless when separated from the physical medium; and to OWN a spectrum is equivalent to owning the medium iteslf - just like to OWN an idea is equivalent to owning the medium that embodies that idea. Since no one owns all the air, nor all the electrons, nor all of any medium, no one can own the spectrum, nor own an idea, except in any physical property they already own.
Lastly, when you cause the air/electrons in the vicinity of my body to oscillate without my consent, you are actually trespassing on my most fundamental and absolute posession. It's a benign trespass, but technically a trespass nonetheless. I can always object at my discretion.
IP is no different. If you somehow trespass 'your' ideas onto me without making me party to some fancy IP agreement beforehand, then you accept the consequences of your trespass. Which may mean my thinking about and enjoying your ideas, selling or giving away products based on your ideas, etc. That's the price you pay for trespassing.
Published: September 2, 2007 12:46 PM
David C
Person: The question is whether violating property rights could alleviate mass suffering. If so, they are morally equal to patents under your argument. Violating property rights quite clearly could alleviate mass suffering. Ergo, you should favor violating them.
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No it isn't. The real issue is that patents violate property rights, and that causes mass suffering. Your argument is quite amazing considering that I own my brain which has the knowledge, I own the materials which I bought and paid for, and I use my property how I see fit in a way that does not defraud or coerce anybody else, but only makes an invention. Yet, your position implies that I have violated a property if somebody else already claims a patent. Nonsense, you're violating my property rights to do what I want with the time resources that I own, and you're acting fraudulent towards me by representing something as a property right that isn't.
Once again, if we can't use a rational criteria to judge the nature of a belief or system, (or property) then what else is there ... the tooth fairy?
Published: September 2, 2007 1:03 PM
Curt Howland
On radio frequencies, this is well handled by the principle of right of way.
If I find an unused frequency in my area, I set up a transmitter that does not infringe upon anyone else's use. So long as I stay on that frequency, then someone who comes along and bleeds over into that frequency (thus disturbing my signal) is trespassing.
Regular, established use is the criteria I would consider valid for this "right of way". Is it "ownership"? I don't think so, because if I turn off my transmitter it is no longer in use.
Exactly the same as walking on the sidewalk. Someone pushing through me is, in fact, trespassing on my "space", yet I do not own the sidewalk because as soon as I pass that space is open for the next person. Or my passing through an intersection in my car, so long as I have right of way, someone who tries to occupy the volume of space my car is already in is the one who is at fault for the "accident". Yet I do not own the road.
This is also a field well suited for "community standards". Someone who bleeds over my signal is taken to court, and may defend themselves maybe that "I turned on my receiver at midnight, and there was no signal. So I started transmitting."
I reply, "I have been daytime-only transmitting for 3 years, well established in the community, advertising for sponsors in the local paper. If the interloper wishes to establish _night_time_ programming on this frequency, I do not object, but my right-of-way is well established from 6am to 9pm."
How about, "I have been transmitting at 770KHz for years, but recently the station transmitting at 770KHz a hundred miles away has boosted their transmitting power far above what they used to be. They are bleeding over my signal, disrupting the ability for my listeners to receive my signal in the area where I am well established."
etc. Simple right-of-way.
Technical standards will establish various bands, and as technology improves the available bandwidth increases.
Published: September 2, 2007 2:40 PM
Jean Paul
Curt, good points, but I think you take the concept of a right of way too far when you allow someone to establish "6am to 9pm on a particular frequency".
If unchallenged use for a while is considered establishing a right of way, then presumably if an owner tolerates trespass for 'long enough' he surrenders his ownership.
I do not surrender the ownership over the electrons in any of the gear in my home, which is located next to your transmitter, and my extremely low power radio experiments are being oblitterated by your transmissions. You must lower your transmissions to a level that does not identify you as an aggressor.
No different than if you decided you to stand on your lawn screaming at the top of your lungs anytime you liked for as long as you liked. Do what you want as long as it doesn't affect me, but if I can hear your screaming it's technically trespass.
Published: September 2, 2007 6:56 PM
Anthony
Good points JP.
Published: September 2, 2007 8:37 PM
Person
J._W.: Why does any exclusive legal right, to any Z, ever exist? Be precise. Remember, any principle you invoke, I can invoke in defense of IP.
Jean_Paul: I actually agree with you. IP and frequency rights sink or swim together. Except that you think they both sink, while I think they both swim. (at least in terms of meeting some minimum threshold for justifiability)
David_C:
1) You claim that patents are unjustifiable because we could save lives by violating some of them.
2) I claim that property rights are just as unjustifiable, because we could save lives by violating some of them.
3) You claim that that doesn't matter, because patents violate property rights, which actually are valid.
4) I lose faith in your ability conduct reasoned debate.
Curt_Howland: The problem with that line of reasoning is that two people *can* use the same frequency at the same time. Claiming that this simultaneous use "doesn't count" is ultimately an appeal to the validity of the desires of the litigants to have certain attributes accompany their frequency-use. Why isn't the desire "for others not to use my idea without my permission" just as valid?
Published: September 2, 2007 10:14 PM
Peter
If unchallenged use for a while is considered establishing a right of way, then presumably if an owner tolerates trespass for 'long enough' he surrenders his ownership.
Indeed. Google "adverse possession"
Published: September 2, 2007 10:18 PM
ktibuk
Anthony: "as Kinsella I believe has done, to show how they are incompatible with homesteading theory."
He did no such thing. What Kinsella did is, he changed the definition of homesteading rule. Lockean-Rothbardian homesteading rule has nothing to do with Kinsella's.
Real (Lockean) homesteading rule has two components. Mixing your labor and first comer.
Kinsellas anti IP stance can't handle "mixing with labor" without getting trapped in pradoxes so he just omits it and keeps "the first comer".
Published: September 3, 2007 4:11 AM
ktibuk
jeffrey "But exclusive privileges to produce movies, books, and drugs?"
Are you kidding?
I am for copyrights and against patent laws but nowhere in the world what you claim is true. Anyone can boroduce movies, books and drugs. You don't need exclusive prvilige.
Published: September 3, 2007 4:14 AM
ktibuk
"This is all fine and good, but Kinsella's claim is that only goods which are scarce can be homesteaded, that is claimed as owned. The key is that only an UNOWNED good can be homesteaded. So what Kinsella is saying can be more precisely worded as: Only an unowned good can be homesteaded, and then only if it is scarce. "The exclusive legal right to Z" clearly passes the scarcity test, with flying colors in fact, but only if ALREADY OWNED. If unowned, "the exclusive legal right to Z", does not even exist! Thus while "the exlusive legal right to Z" is certainly scarce, it never exists in an unowned state and therefore cannot be homesteaded."
This implies that homesteaded goods are picked up and just used and they are readily available as consumer goods.
But producing means changing something. You dont just find an unowned good and claim it. You find some nature given good and change it to a more satisfactory state.
Nothing consumed is just nature given. Even picking something from a tree is producing, changing the state of the nature given thing.
So mixing your labor, or production or mixing a part of you, whatever you call, is the main requirement of the homesteading rule, not scarcity.
Kinsella thinks backwards and cares only about scarcity because, as he admitted he thinks property rights are some rules that are invented by man just to get along. This is an utilitarian position and actually closer to socialism.
But many natural law libertarians such as Locke and Rothbard know that property rights are there, and not invented for a spesific purpose by man.
Laws (and every law is based on property rights)are discovered not made or invented.
Published: September 3, 2007 4:31 AM
Jean Paul
I'm not sure about the whole 'mixing labor' part of homesteading. Seems far from objective.
If I pick an apple, have I mixed my labor with the tree? The orchard? What must I do to homestead either of these? If enclosing my yard in a fence homesteads it, then can I go to an unoccupied planet and make a small circular fence and say I've 'enclosed' the entirety of the planet? If the rule can't be expressed in a way that's invariant across all circumstances, it is not a very good rule.
I think private property is just, but I'm not certain I can defend WHY. That bothers me.
Published: September 3, 2007 11:44 AM
J. W.
Person: "Why does any exclusive legal right, to any Z, ever exist? Be precise. Remember, any principle you invoke, I can invoke in defense of IP."
Couldn't find that Z could you? I am not surprised. I was quite precise. According to Kinsella the exclusive legal right to Z comes into existence when "Z" is homesteaded. Do you see the difference? Z is homesteaded, creating " the exclusive legal right to Z". One does not homestead "the exclusive legal right to Z", but rather it comes into existence when the underlying "Z" is homesteaded. The difference is crucial as the next paragraph should show.
You cannot use this same principle for IP because you cannot identify one sigle Z such that "the exclusive legal right to Z", which IS SCARCE, EXISTS and is UNOWNED. Furthermore, you may identify plenty of ideas which are unowned, exist, but are NOT SCARCE. To use Kinsella's homesteading/first occupancy rule, you would have to find, for any "idea" a phrasing Y, such that Y is scarce, exists, and is unowned at the same time, then you could homestead it. Your current phrasing doesn't cut it. I on the other hand can point out vast stretches of unowned land in, say, Antarctica which certainly EXIST, are SCARCE and are UNOWNED.
You seem certain that Kinsella's argument is inconsistent, perhaps you are an Objectivist, but it is in fact entirely consistent. It may nevertheless be wrong if one of his premises are wrong. For an example of how to RATIONALLY attack Kinsella's argument, see ktibuk's comment above. He attacks a premise.
Published: September 3, 2007 12:18 PM
J. W.
ktibuk:
Your comments are much more to the point. I agree with you that Kinsella has changed the homesteading principle.
This does not bother me, if it is done with good cause. I believe he changed it because he believes as originally formulated, the principle gives contradictory results. He makes a good argument for why, noting that the orignal Homesteading principle is a conjunction of two different principles, namely first occupancy and labor-mixing.
Contradicitons certainly seem to follow. As an example: suppose you and I are both working on a cure for cancer. Let us further suppose both that you get it first, and for the sake of argument, that barring your discovery, I would have found it one day later. Is it not clear that your being granted a property right in the cure for cancer infringes upon my right to do what I want with my own equipment and research to produce the same cure? Does the original Homesteading principle not say BOTH that you own the cure for cancer, and I own my own equipment and research? Further, given your property right in the cure for cancer, is it not clear that my right to my own equipment and research has been materially altered, namely I am barred from even continuing it.
I'd be interested in seeing challenges to the assertion that the orignial Homesteading principle is self-contradictory.
Published: September 3, 2007 1:50 PM
Anthony
JP, I think Kinsella's (and Hoppe's) reformulation of the homesteading principle allow it to circumvent such problems by changing its underlying logic.
But one problem you raised stood out - no, you may only homestead as much as you can put to productive use and mix with your labour. Thus homesteading a tiny spot of an unowned planet grants you just that much - a tiny spot.
Published: September 3, 2007 7:36 PM
ktibuk
"Contradicitons certainly seem to follow. As an example: suppose you and I are both working on a cure for cancer. Let us further suppose both that you get it first, and for the sake of argument, that barring your discovery, I would have found it one day later. Is it not clear that your being granted a property right in the cure for cancer infringes upon my right to do what I want with my own equipment and research to produce the same cure? Does the original Homesteading principle not say BOTH that you own the cure for cancer, and I own my own equipment and research? Further, given your property right in the cure for cancer, is it not clear that my right to my own equipment and research has been materially altered, namely I am barred from even continuing it."
If you defend patent laws, which I don't, yes there is a contradiction.
But IP rights don't have to be against independent discovery.
First comer principle is a tie breaker where the raw materials, which are nature given in their highest order, are scarce.
But this doesn't mean the only requirement is the first comer principle for the homesteading rule. It doesnt even mean the first comer is more important than mixing labor.
In IP raw materials arent scarce, they are ideas and anybody can discover and use them.
But a novel, or a book like Human Action is a product.
The author has mixed his labor with it, thus it is his. Nobody has a right to the fruit of his labor. You cant enslave him and make him write you a book, or you can not take his book without his consent. Which are the same things really.
And ommiting mixing labor rule has consequences. Do you think Locke and Rothbard hasnt thouyght about this.
Do you think you can own acres of land just strolling through it?
Does Robinson Crusoe owns the whole island although he hasnt even been to most of it?
Ommiting the most important axpect of the homesteading rule is the most dangerous thing that can happen to property rights.
And Jean Paul. If you pick up an apple from an unowned tree you mix your labor with the apple, you change the apples state, thus it is yours. If you do anything to the tree that you hoped that it would give more fruit then you own the tree. You need to change the state of the nature given thing from a less satisfactory state to a more satisfactory one.
I agree it isnt all clear cut sometimes but if you respect the homesteading rule allways the common sense prevails.
Rothbard tackled some tough scenarios and I havent seen any exapmle where he lost the common sense.
Published: September 4, 2007 7:49 AM
Jean Paul
ktibuk: "The author has mixed his labor with it, thus it is his. Nobody has a right to the fruit of his labor. You cant enslave him and make him write you a book, or you can not take his book without his consent. Which are the same things really."
They aren't the same. A third party enjoying the positive externalities of your actions, is NOT the same as the third party threatening violence against you to compel your actions.
A huge, and not at all subtle difference.
Published: September 4, 2007 10:27 AM
Jean Paul
ktibuk: "And Jean Paul. If you pick up an apple from an unowned tree you mix your labor with the apple, you change the apples state, thus it is yours. If you do anything to the tree that you hoped that it would give more fruit then you own the tree. You need to change the state of the nature given thing from a less satisfactory state to a more satisfactory one."
I can't agree with this. How much modification is enough? It's much too subjective.
I also dislike the obligation to cause changes. What if I desire to own a thing (i.e. I desire to justly exclude others from interfering with the thing, and become the only just interferer) specifically because I want to preserve the perfection of its natural state just the way it is?
Your proposed rule of mixing labor leaves me two dissatisfying options: vandalize the object I wish to own, or leave it for someone else to vandalize. My desired choice, "own it just as it is", is not available to me.
Seems to me this 'mixing labor' idea is a red herring. Why is mixing labor such an appealing standard of entitlement, versus simply ASSERTING an (unchallenged) claim over the unowned thing?
After all, 'mixing labor' and 'enclosing' are just special cases of asserting claim. Announcing loudly to anyone who can hear, "that tree over there which I've never touched is now mine" should also suffice.
Published: September 4, 2007 11:11 AM
Jesse
Jean Paul: "Why is mixing labor such an appealing standard of entitlement, versus simply ASSERTING an (unchallenged) claim over the unowned thing?"
I agree with some of your objections to the "mixing labour" standard, but there does need to be some qualification beyond a simple claim. A claim that will never be challenged serves no purpose; as such, there needs to be some principle by which a challenged claim can be authenticated. If all initial property claims are valid I could simply state "I hereby claim ownership of everything not yet owned", preempting all later attempts at homesteading, which I think you would agree is somehow wrong.
Without working out the exact logic, it seems to me that whatever guiding principle is employed ought to limit claims to what one person could actually observe or interact with in their lifetime; after all, if they claimed more than that they couldn't know for sure that no one was infringing the claim. Personally I tend to agree with those that advocate homesteading-by-use (homesteading of the object, not the use itself). It has the advantages of not requiring one to alter something to claim it and involving a clear link between the claimant and the property -- and the disadvantage that "use" is a vague concept that can often only be decided by arbitration, particularly when the nature of that use changes over time.
Published: September 4, 2007 4:25 PM
Anthony
I agree with Jesse, the reformulation of homesteading into a first-user ethic is more satisfying as far as I am concerned. Hoppe is recommended reading on the matter. Pure Lockean homesteading is too riddled with errors at this stage; even Rothbard altered a lot of it (e.g. dropping the proviso.)
Published: September 4, 2007 6:37 PM
Jean Paul
"Use" is an absolutely subjective concept, which is the problem with it.
Every once in a while I 'use' the earth-facing half of the moon to look at and marvel. Do I own it, or just an easement on its pristine, gleaming, crater-sclupted surface, or neither?
I think everyone will say "neither" because that's the obvious, 'common sense' answer, but I am undeniably a user. Can we resolve this disagreement objectively, or does democracy take over at this point?
These weaknesses with the homesteading principle are leading me to believe that self ownership alone is fundamental; private property beyond that seems to be just another utilitarian social institution. Perhaps the best 'system' we can think up, but in the end just an arbitrary, subjective invention of human circumstance.
This makes me sad.
Published: September 4, 2007 7:15 PM
ktibuk
Jean Paul: "A third party enjoying the positive externalities of your actions, is NOT the same as the third party threatening violence against you to compel your actions."
What you call positive externality, I call a product. It was produced by some one with someones labor. Just because I dont lose the original when you copy it doesnt change that.
That is why I urge people to stop getting hung on scarcity and get focused on the more important aspect, mixing the labor, producing.
These books and songs arent nature given goods. They are produced by man. Someone created it.
How can you claim the creator has no claim on his creation?
So yes, enslaving someone to write a book and copying his book without consent are the same things. In both cases the producers product is taken from him by force or fraud. In both cases he might also get to keep his product himself but that doesnt change the fact that someone else got it without his consent.
Published: September 5, 2007 7:02 AM
ktibuk
"I think everyone will say "neither" because that's the obvious, 'common sense' answer, but I am undeniably a user."
Also these mostly have to do with semantics.
You are not the user of the moon. You use its image. You use the light bouncing off the moon.
If you actually go to the moon and homestead it you can claim ownership.
But I agree since there are million ways to produce millions of products it is not easy to give one straight answer to everything.
But Jesse is right.
There needs to be a challange, which means two claims.
It is much more easier to deal with two claims rather than one.
People dwelling on the definition of mixing labor, or using are missing this point.
I claim I mixed my labor. Instead of asking me to be more clear you need to challange me and claim you own it instead. Or everyone owns it, etc.
And you need to back your claim up too.
And regarding the alternatives to the mixing of labor nothing even holds water, let alone objectively.
Published: September 5, 2007 7:13 AM
Anthony
Ktibuk: "There needs to be a challange, which means two claims.
It is much more easier to deal with two claims rather than one."
Doesn't this show why it is better to treat scarcity and first-use as criteria for ownership?
Published: September 5, 2007 7:43 AM
Kristian Joensen
"The author has mixed his labor with it, thus it is his."
ktibut, the problem with your position is that the same holds true for a maker of a copy. The copy is made with HIS brain, HIS paper, HIS pen/computer, HIS resources, HIS efforts, HIS money.
Yet your position would imply two things that are absurd:
1)The original author WOULD own the copy even though he has NOT at all mixed his labor with it.
2)The one that made the copy WOULDN'T own it, yet he is the only one that HAS mixed his labor with it.
Published: September 5, 2007 8:42 AM
TLWP Sam
In defense of ktibuk, Kristian Joensen, I'd say a possible equivalent is a landowner who hires people to work the land in exchange for a rental income. The owner must have done something to own the land in the first place but doesn't do any more work as that's the rentee's job. I'm sure every I.P. case a real world equivalent but it's back to the old argument as to whether I.P. deserves to exist or not.
Published: September 5, 2007 10:04 AM
Jesse
Jean Paul: "I think everyone will say 'neither' because that's the obvious, 'common sense' answer, but I am undeniably a user. Can we resolve this disagreement objectively, or does democracy take over at this point?"
That was my objection as well; I think use is a better guideline than "mixing labour", but there are certainly issues with it. Even if there is no objective resolution, however, the matter can still be resolved internally if the two claimants can agree on a protocol, such as private arbitration (which is based on unanimous consent, not "democracy"). At least one party will probably end up dissatisfied with the arbitrer's decision by the very nature of the dispute, but so long as it was reached impartially under principles both parties agreed to in advance, and so long as it leaves the loser(s) with a reasonable alternative, they will probably both abide by it anyway.
Jean Paul: "These weaknesses with the homesteading principle are leading me to believe that self ownership alone is fundamental; private property beyond that seems to be just another utilitarian social institution."
The inability to satifactorily and objectively determine ownership in a handful of rare corner cases does not invalidate the entire concept of homesteading, or that of private property. Let's not lose perspective here; the different homesteading principles differ only in fringe cases like the ones we've been discussing. For the vast majority of cases they have a great deal in common, and for the most part it doesn't matter in practice which scheme one adheres to. It's good to seek a more consistent and objective solution, but it would be a mistake to reject the whole concept of private property just because not everyone agrees on the procedural details underlying particularly uncommon kinds of homesteading, particularly when most property you're likely to deal with has already been homesteaded -- beyond any reasonable challenge -- under one system or another.
Published: September 5, 2007 10:58 AM
Jean Paul
Jesse, I'm certainly not rejecting private property, but I am losing faith in its inherent justice.
A system of justice, not unlike the laws of physics, must be universal and self consistent. Anything else is just our best shot at engineering. The lack of an objective approach to first acquisition excludes private property from the system of justice itself, and relegates it to a mere social convention, tacitly agreed to by participants.
BUT, based purely on individual utility, free market exchange of private property, without limitation nor penalty on ownership, is clearly the best system we can adopt. Because of this, I'm hopeful a truly fundamental justification for absolute private property can be found... but by no means am I certain.
Published: September 5, 2007 4:43 PM
Anthony
JP, I would recommend Dr Hoppe's The Economics and Ethics of Private Property and A Theory of Socialism and Capitalism, as well as Kinsella's publications on homesteading (termed the undeniable morality of capitalism IIRC.) Look them up, they may help.
Published: September 5, 2007 6:09 PM
ktibuk
"ktibut, the problem with your position is that the same holds true for a maker of a copy. The copy is made with HIS brain, HIS paper, HIS pen/computer, HIS resources, HIS efforts, HIS money.
Yet your position would imply two things that are absurd:
1)The original author WOULD own the copy even though he has NOT at all mixed his labor with it.
2)The one that made the copy WOULDN'T own it, yet he is the only one that HAS mixed his labor with it."
Homesteading is a thing, and protecting property is another thing.
You might say stealing requires effort thus someone stealing car has mixed his labor with it.
But you would be as absurd as claiming copying a copyrighted material is mixing labor.
Published: September 6, 2007 4:14 AM
ktibuk
"Ktibuk: "There needs to be a challange, which means two claims.
It is much more easier to deal with two claims rather than one."
Doesn't this show why it is better to treat scarcity and first-use as criteria for ownership?"
Not really.
Actually terminology mi,ght be the problem here.
When Anti IP people talk about scarcity they talk about natural sacrcity.
But artificial scarcity is possible.
Even then creating scarcity isnt the main point.
The point is producing, creating thus owning.
I can not accept a homesteading rule where the only rule is the first comer rule.
Think of a very possible scenario.
You pass through 10 acres of land don't even fence it.
Later I come to the same land, put fences around it. Pcik the rocks off the soil, plant crops and fertilize it.
The you come and say and prove you were there first and claim the land is yours and ask for rent from me.
Who owns the land?
The first comer, which is you.
Or the the first comer that has mixed his labor with it, which is me.
Published: September 6, 2007 4:23 AM
Jean Paul
ktibuk,
Not the first comer; the first CLAIMER. I think maybe this distinction can unravel a few things?
To own a thing, you must assert and maintain a claim to that thing. If there are social or technological means established to sustain your claim in your absence, on your behalf, wonderful. Otherwise absence is abandonment.
Did the first stroller through the ten acres mark the trees with red spraypaint as he went? Did he post notices saying, "bob claims these ten acres where marked, his claim stands and he will return in a year to enjoy his land"? Did he stand in the middle of the ten acres with a loudspeaker constantly blaring his announcement over a ten acre radius, "these ten acres are mine"?
Note that this doesn't necessarily require 'mixing labor' with any part of the ten acres. It just requires communicating claim, by whatever means can be employed.
Published: September 6, 2007 9:54 AM
Anthony
JP is correct, in part. Use must be combined with a claim. Individuals who traversed through now owned property at most would enjoy easements to pass through, insofar as they made no claim (and no emborderment, which is necessary to demonstrate that land has been appropriated.) To claim land one must be the first to put it to productive use.
The problem with appropriation by mere verbal decree is that it can be used to own an entire planet, for instance, provided one can defend the claim. By contrast, productive use puts a heavy constraint on how much one can take for themselves.
Published: September 6, 2007 10:28 AM
ktibuk
Ok Jean Paul,
Lets say while he is strolling through he shouts "In the name of property rights I now claim all this land to be mine" and keeps strolling.
He doesnt need to do nothing else, if we hold Kinsellas new homesteading rule. No mixing labor, no putting it to productive use as Anthony said, or mark the trees with paint.
He literally just claims it.
Does this claim make the land his?
Published: September 7, 2007 3:45 AM
Jean Paul
Ktibuk, I think the claim is valid... but when he keeps strolling, absent technological/social measures in place to sustain the claim, then that's abandonment, no?
Just like various detritus that dislodges from the body (old skin, hair, you know, gross biology stuff) was absolutely, incontestably yours when it was a part of you, but obviously does not remain so when it falls.
Published: September 7, 2007 10:16 AM
Jean Paul
Anthony, agreed, there must be other 'considerations' at work to prevent the (in my subjective opinion) absurd case of someone announcing, "I hereby own all that is unowned."
You may argue against the above because it is nonspecific - the above claim is a function without an argument and therefore without a value. Until applied in a given case, it refers to nothing. Does not seem reasonable to me.
Lets try this one: "As first claimant to the prior unowned specific X, I hereby own specifically X".
I don't think you can deny this claim on the basis of the size of, distance to, degree to which my actions have modified, or any other attributes particular to, X. Whether X is an apple, a tree, an orchard, a mountain, a continent, or a planet. To tie the validity of the claim to the nature of the X opens a whole can of definitional worms, infinitely prone to subjectivity and thus conflict.
I would say the only criteria for objectively rejecting a new claim is the existence and nature of standing claims.
Published: September 7, 2007 10:44 AM
Kevin B
ktibuk: "You might say stealing requires effort thus someone stealing car has mixed his labor with it.
But you would be as absurd as claiming copying a copyrighted material is mixing labor."
One cannot gain rights to an object by mixing one's labor with it if all the property rights to the object are already held by someone else.
One does not gain ownership to a new object by mixing one's labor with the initial/template object. One gaines ownership of a new object by mixing one's labor with the new object.
Published: September 7, 2007 2:18 PM
Robert M.
Stephan Kinsella : [comment deleted for incivilit. Rober M: please watch your manners. --Eds.]
Eric: I agree with Person, in that the FDA might make things more costly, but they still take years to research these drugs. And not counting FDA costs, it still costs millions of dollars. I dont see a businessman investing that much to make a drug that will be reverse engineered almost immediately. I know the government causes most problems, but I can't put this one on the government. I'd say that this is one of the few things that they do right.
Published: September 7, 2007 5:14 PM
Robert M.
Oh by the way. I CLAIM THIS UNIVERSE AS MINE. Since you all occupy the area that is now mine...I expect my check shortly.
Published: September 7, 2007 5:55 PM
ktibuk
"Ktibuk, I think the claim is valid... but when he keeps strolling, absent technological/social measures in place to sustain the claim, then that's abandonment, no?"
No it is not abandonment.
You dont need to be in possession of your property at ALL times. Abondonment is something different and it also implies the need for mixing you labor.
Abondonment presupposes you mixed your labor at one time but you don't care for the property, thus don't mix your labor with it anymore.
It is not about physical presence.
Published: September 8, 2007 1:15 AM
Jean Paul
ktibuk: "You dont need to be in possession of your property at ALL times ... It is not about physical presence."
Jean Paul: "[without] technological/social measures in place to sustain the claim [in your absence] ... [it is] abandonment"
I'm pretty sure there is no contradiction here?Possession is just one way among many to sustain a claim - but as I did concede, not the only one. Other means could be signs, fences, locks, neighbors who speak on your behalf, name & address & 'return to owner' stitched into the inseam, etc.
...but an unsustained claim IS abandonment. Could you maybe even say - by definition?
Published: September 8, 2007 12:23 PM
ktibuk
Jean Paul: "Other means could be signs, fences, locks, neighbors who speak on your behalf, name & address & 'return to owner' stitched into the inseam, etc.
...but an unsustained claim IS abandonment. Could you maybe even say - by definition?"
When you say claim what do you really mean?
Being there physically before anyone else and just speaking words that you claim it? You claim it once out loud and it makes it yours, and you have to keep saying it out loud at certain intervals to keep you property?
Abondonment means not taking care of the property anymore. Taking care implies the ommited principle, mixing labor.
In abondonment mixing labor principle is more important than first comer/claimer principle since your ownership doesnt end when you physically leave your property.
You may leave the land temporarily or rent it out and still care for it, fix it up etc.
This means you keep mixing your labor, and it also means you haven't abondoned the property.
First comer/claimer principle needs physical presence. If it was the only princeple needed for homesteading then by the same logic anyone would lose his ownership once he left the property physically even for a short while.
If he can keep property while not being there physically anymore, means there is something else needed.
And that is the mixing labor princeple.
Published: September 8, 2007 1:36 PM