Comments (93)

• theblob

  I totaly agree with you, jeffrey. Culture and knowledge accumulation is Imitation and emulation. And it makes no sense to introduce the concept of property to non-scare goods.
  That doesn't suggest that the market(people) won't find a way to turn ideas into profit.

  Published: January 22, 2009 11:39 AM

• DavidNcl

  Suppose that we had IP in peer review science. I'd be able to stop you using results that I had published a decade ago or prevent another mathematician for using a proof technique which I had a patent on.

  IP is insane, is a huge drag on both the economy, and human progress. It also gives rise to a coercive and oppresive state apparatus.

  The idea that it somehow benefits inventors, authors and artistic creators is nothing but crude propaganda of the "chains make you free" sort.

  
  

  Published: January 22, 2009 11:41 AM

• andras

  You are just keep ignoring the arguments for IP. All the "failure to calculate" and the "property rights" concerns have not made a dent.
  My understanding is that the IP-socialists' strategy is to pull a Goebbels on IP hoping that the pro-IP folks will give up eventually.

  ps. Beethoven got his royalties from the beginning of his carrier to survive so that he could show his true genius later on.
  We should praise IP for Beethoven and the other geniuses though this is only the utilitarian approach.

  Published: January 22, 2009 12:04 PM

• Fephisto

  DavidNCL:

  As a fellow wannabe mathematician, I agree.

  Published: January 22, 2009 12:19 PM

• Jeffrey Tucker

  Umm, there was no copyright in Germany during Beethoven's life, nor Bach, Brahms, Bruckner or even Mahler. That should tell you something.

  Published: January 22, 2009 12:40 PM

• Michael Smith

  My attitude? My attitude is that the Mises Institute has hit rock bottom with this campaign against IP and this promotion of a book that declares that the only justification for property rights -- the only reason you can claim any property rights -- is if doing so generates a net benefit to the rest of society. Nothing is deadlier to the cause of freedom than the notion that an individual must "purchase" his rights by contributing to "the public good".

  
  In the comments under "The Book that Changes Everything", I provided the principled pro-IP argument -- but you have completely ignored it and have, apparently, simply decided to remove it and all the other pro-IP arguments from this website in the belief that if you pretend the arguments don't exist, they will disappear.

  How sad it is to see the name of Mises associated with such an assault on individual rights, which are the indispensable foundation of all political freedom.

  Published: January 22, 2009 12:51 PM

• Jeffrey Tucker

  Michael, it is not necessary that authors be correct on everything to be right on many things. It is not wise to use infallibility as a test for whether you are willing to learn something.

  Published: January 22, 2009 12:55 PM

• Stephan Kinsella

  As my friend Robert Wicks told me,

  I think IP is a far more important issue than some people think. It warps culture, and the moral notions behind it make it all but impossible to believe in IP without also believing in an oppressive state. You really can't object to busy bodying in general if you believe in IP.

  I think maybe the idea of IP and its popular acceptance is largely responsible for the immensity of western states. I think the false association with IP and prosperity has caused people to lose touch with older notions of property. I'd like to see how IP laws and various state and social trends have changed over the years.

  Published: January 22, 2009 1:00 PM

• Mike

  "Nothing is deadlier to the cause of freedom than the notion that an individual must "purchase" his rights..."

  Couldn't agree more. Glad you've come around.

  Published: January 22, 2009 1:09 PM

• Gustav

  I'm somewhat surprised you're taking a utilitarian approach to the argument against "IP," as opposed to a moral one based on property rights.

  "IP" isn't PROPERTY, because there is no economic scarcity. Your use of my wheelbarrow deprives me of my use of my wheelbarrow, at least, while you are transporting said wheelbarrow to its place of employment and back, and while you are using it. Your use of my IDEA for a wheelbarrow, however, does not harm me economically in the slightest. I still have my wheelbarrow to use.

  Now, someone may interject the harming of my potential for profit through renting my wheelbarrow or subletting the "design rights" to produce wheelbarrows, but these are legal fictions, and any potential is just that - "potential" - with no certainty.

  Further, the enforcement of preventatives on "wheelbarrow designs" that are similar to mine constitute an infringement on your property rights. You have wood, iron, and rubber, what gives ME (or the "government") the right to constrict your use of them as you see fit? "IP" laws would be used to prevent your use of a "wheelbarrow design" that was similar to mine, even if you never saw my design and came up with yours independently.
  

  Published: January 22, 2009 1:10 PM

• Stephen W. Carson

  Jeffrey wrote: "consider that emulation is unavoidable. There is no such thing as absolute originality. Everything in a growing and health society is an elaboration on something else that already exists."

  JRR Tolkien made this very point with his notion of "sub-creation". To put his point in my own words... Only God creates ex nihilo. We pay tribute to the Creator through our sub-creation which basically involves re-arranging the elements already given to us (through the Creation or from other human sub-creators).

  He was at pains to fight against this exaggerated notion of originality (creation ex nihilo) that has become so dominant since the Romantic era especially, but also to encourage human sub-creation as a profound manifestation of being created in His image.

  I gave a talk spelling out Tolkien's views on this, which I'll gladly get online somewhere if anyone expresses interest.

  Published: January 22, 2009 1:10 PM

• Mike

  Gustav,

  There's nothing wrong with using utilitarian arguments to show the *extent* to which an unethical concept like IP has harmed us economically. Furthermore, when these sorts of discussions are taking place among people who already generally agree on the principles (I know this is not the case here) utilitarian arguments can help us determine which issues should take priority,

  Published: January 22, 2009 1:13 PM

• andras

  Jeff: "Umm, there was no copyright in Germany during Beethoven's life, nor Bach, Brahms, Bruckner or even Mahler. That should tell you something."

  It does not mean that there was no IP.
  Beethoven was paid for every piece of his by his publisher(s). What he gave them was only the sheet music, the design of his ideas, a truly marketable product inspite of the fact that they were not materialized. The definition of IP.

  No other publisher dared to publish it but the rightful owner. So IP worked. Whoever imitated from the artist's universe stated so thus came the variations.

  One thing is to base your work on general ideas (Hungarian folk music) and another is a unique idea (Bartok's Concerto). The latter definitely would not have been concieved without IP. Again, this is only a utilitarian approach, not favored at Mises.org .

  Regards,

  Andras

  Published: January 22, 2009 1:27 PM

• I Hate Taxes

  My attitude is that property can only be physical and not intellectual.

  You should not be able to stop somebody else from doing what they want with their own property.

  Even if that means that they will copy your ideas and embody them with their own computers and hardware.

  At the moment you release and information, you no longer control how that information will be used.

  We are in the 21st century and ideas are spread accross the globe anyways.

  You cannot physically stop songs or copyrighted material from being copied and distributed.

  Published: January 22, 2009 1:44 PM

• Bob

  I find this argument against IP has gone from serious study to utopian fantasy quite quickly. Here are my 2 cents:

  1) The labor required to create IP is a scarce good, even if the resulting IP is not. If we are concerned only with IP created by those who wish to also consume the IP, there is no problem with their making it freely available to others. They work for the ability to consume IP itself, not the market's valuation of the IP. This is the pure prosumption view. What about those who labor to fulfill the IP demands of others, through a market economy? There is economic harm to the advancement of IP if this labor has no means of being financially rewarded. This is the vast majority of IP. I, for example, write software that I don't care at all about. But my employers do, so they pay me to write it. I like this arrangement. Elimination of IP law changes the market. Mass consumption IP would seriously decline while custom IP would rise. No more new video games, just mods to your old ones = NO FUN.

  2) Not all IP is represented in a tangible form. For instance, it makes sense to consider patents for gasoline engines a harmful market restriction. IP laborers can get paid through the sale of related tangibles required to enjoy the IP. What about software, music, and literature, that only requires the same very general tangible good - a home computer? Would we rely on computer distributors to fund IP ventures to increase demand for their tangible goods. That doesn't sound practical to me. It would economically be no different than IP consumers leaving voluntary tips to IP producers, which is surely not competitive with current models based upon sale at distribution.

  3) The IP goods market is now extremely prone to "free riders". I would agree with Austrian analysis that "free rider problems" are usually not problems at all; however, I believe this is different for IP. For instance, if I spend $100,000 on labor costs to produce a piece of software while I'm forced to sell any products at the same prices as my competitors who can freely distribute the resulting IP, my business is less profitable than the free riders.

  Ultimately, without laws protecting the creators of IP, there is no market mechanism to guarantee payment by consumers to producers. All payments become either voluntary, attached to tangible goods (which is a fraction of the market), or rely on secondary goods (such as support service or advertisements) of which only a fraction will return to the IP producer. None of these models have shown to be as efficient as pay per copy which relies on exclusive distribution rights.

  This being said, I do believe copyright and patents are obviously abused and in need of reform. Perhaps there is a workable system for the above problems. Until I learn of one I do not believe complete elimination of copyright and patents is a viable alternative.

  Perhaps a better system would not rely on market restriction but instead forced royalties by alternative producers? For example, the copyright holder would not be entitled to a distribution monopoly; however, he would be legally entitled to X% of others' sales that use/contain his copyrighted work. This percentage could decline gradually over time rather than remaining stationary, and expire much earlier than the 140 years currently given to copyright. The problem I see with this approach is the extremely subjective definition of "using/containing a copyrighted work".

  But for the love of God, can we please stop acting like eliminating IP laws would change the market ONLY for the better. A sizeable portion of IP laborers would no longer be able to eat. They don't give a crap if people want to emulate them. Few are going to "flatter" them with a greater supply of tangible goods. A lot of this fantasizing sounds like "the new Socialist Man" is coming...

  Published: January 22, 2009 1:57 PM

• RWW

  My attitude is simple:

  You are free to own physical property. You are free to stipulate in a voluntary contract that some specified idea must not be disseminated, and you are free to stipulate, in that same contract, severe penalties. The possible ineffectiveness of your voluntary contracts does not entitle you to further rights.

  Published: January 22, 2009 1:58 PM

• happylee

  You have a ways to go to convince me that IP is a greater challenge to life and liberty than the manmade global warming bugaboo, but you have come a long way. I was sold on Kinsella's argument the first time I heard it. No Person could convince me otherwise. The importance of this issue is becoming more clear to me. Thank you.

  Published: January 22, 2009 2:15 PM

• RWW

  You have a ways to go to convince me that IP is a greater challenge to life and liberty than the manmade global warming bugaboo...

  Ah, this is another aspect of my "attitude" -- despite my passion in arguing, I don't think "IP" is a very important issue, compared to many others. It is unfortunate that so much time is spent debating it here, but it more or less comes with the nature of the blog, I think. Most of us agree on about 95% of the issues, so we're naturally going to clash where we disagree. And we're naturally going to disagree on the issues that aren't important enough for everyone to already have gotten on-board with the principled position (whichever position that may be).

  Published: January 22, 2009 2:22 PM

• Mike

  "Ah, this is another aspect of my "attitude" -- despite my passion in arguing, I don't think "IP" is a very important issue, compared to many others. It is unfortunate that so much time is spent debating it here, but it more or less comes with the nature of the blog, I think. Most of us agree on about 95% of the issues, so we're naturally going to clash where we disagree. And we're naturally going to disagree on the issues that aren't important enough for everyone to already have gotten on-board with the principled position (whichever position that may be)."

  I think it's far more important than you give it credit for, mostly because the harmful effects are almost entirely unseen. Who knows just how much technological development has been restricted? In at least one field (medicine) we can say with some degree of certainty that IP has been incredibly harmful, and that without it we would all be much better off.

  Published: January 22, 2009 2:28 PM

• RWW

  True, but I think the other forms of intrusive regulation in medicine have been far more damaging.

  Published: January 22, 2009 2:32 PM

• Mike

  "True, but I think the other forms of intrusive regulation in medicine have been far more damaging."

  It's tough to say. I suspect you're pointing to licensing requirements, which I'd certainly agree with, but what is IP if not a huge, incredibly expensive licensing requirement?

  Published: January 22, 2009 2:35 PM

• Marcelo

  andras Beethoven was paid for every piece of his by his publisher(s). What he gave them was only the sheet music, the design of his ideas, a truly marketable product inspite of the fact that they were not materialized. The definition of IP.

  So Beethoven sold a piece of scarce paper to a publisher and you take that as a definition for IP? Of course no one listens to your arguments. Your defense of IP is quite pathetic.

  Published: January 22, 2009 2:51 PM

• bob

  I would like to add, after reading Michael Smith's comments on the "A Book that Changes Everything" blog, I do not share his views, which seem to argue that information can be "owned". I agree with Kinsella's theoretical views, and while I have not read "Against Intellectual Monopoly" I am fairly sure it lays out a great practical/empirical case against the abuses of copyright and patents. I don't care about theoretical ownership, or if it even makes sense in this argument; but whether or not IP laborers will be compensated more or less for their mass consumption information.

  I do not believe that alternatives have really been thought through. What I want to know is how a market without any legal rights given to IP creators can coordinate the free exchange of IP labor with the consumer demand for such IP. This market mechanism is obvious in exclusive IP rights, allowing creators to charge upon distribution or in licensing its use to others. Without them, it becomes a vague jungle of gifts and connections to tangible property. This is great for prosumers...not so much for those that want to trade their labor for bread. Without a means to exclude consumers from consumption, there cannot be a market price. This isn't necessarily a deal-breaker, but there needs to be a system that can gauge consumer interest and translate that into bread for the laborers.

  Finally, IP cannot be treated purely as property. Consequentially, it is quite obvious that allowing copyright and patents to never expire is incredibly harmful for human progress. From an intent perspective, it is immoral to dictate what others can learn, reproduce, or create, without altering your life, liberty, or scarce tangible property, in order to enrich yourself, either beyond the time it took to create the information or beyond a reasonable multiple of the market value of similar labor (which I know seems subjective and not a good theory of value but it seems morally acceptable to most people).

  Published: January 22, 2009 2:55 PM

• bob

  Consuming Beethoven's works required massive amounts of tangible goods. First-to-market had incredible advantage. After producers paid Beethoven for information, they not only had to put hundreds of copies on paper, but assemble and pay the numerous laborers to perform the piece, as well as rent a theater to perform it in. On the consumption end, consumers required access to this assortment of tangible goods. Their only means to hear the symphony was to purchase a scarce seat in a theater/auditorium.

  Furthermore, who had the entire score that would be willing to copy it and distribute it? Seems only those who commissioned Beethoven would. They would have no reason to do so. And even if others got the score (such as groups of the musicians), there would be little market demand for such; as consumers would have to expend labor to find many hundreds of other consumers who would collectively raise the money necessary to purchase the musicians' labor and auditorium time to actually consume it. Finally, such could only be done after an initial run of performances, when consumer interest peaked. Such ventures would likely be unprofitable to producers or undesirably costly to consumer groups.

  This is completely different for modern music, which can be enjoyed through endless varieties of low-cost, general-purpose, mass-market, tangible goods, not directly tied to music production. Of course, efforts to enforce IP law are failing...but the Beethoven example simply doesn't apply.

  Published: January 22, 2009 3:12 PM

• newson

  rww says:
  "despite my passion in arguing, I don't think "IP" is a very important issue, compared to many others."

  i beg to differ here. it's one area where people have an emotional involvement; i don't know anyone who hasn't breached copyright at least once in life.

  the argument is in some ways more immediate to the average person than monetary policy, or suchlike.

  anything that shakes people out of their statist mindset is water to our mill.

  i compliment kinsella on his dogged persistence, he convinced me.

  Published: January 22, 2009 5:15 PM

• andras

  Marcelo: "So Beethoven sold a piece of scarce paper to a publisher and you take that as a definition for IP? Of course no one listens to your arguments. Your defense of IP is quite pathetic."

  I think Beethoven's original sheet music is an example of IP. A definition by example.
  Please give me a definition of IP.
  I would like to know what you are fighting against.
  Please do not send me a web page, a book title or cite the patent or copyright laws and their failures. Just a simple definition, after all you should know what you are up against!

  
  

  Published: January 22, 2009 5:49 PM

• Mike

  "Please do not send me a web page, a book title or cite the patent or copyright laws and their failures. Just a simple definition, after all you should know what you are up against!"

  The exclusive right to arrange physical material in a certain manner. Or, if you prefer, the right to use force to prevent others from arranging physical materials in a certain manner.

  Published: January 22, 2009 6:02 PM

• andras

  @All those who think abolishing IP is important,

  It can be important, very important. However at Mises.org you should be aware that its importance is not absolute. It is only a single issue in a list of priorities.
  Unless you want to solve the following, in my view, much more important problems with IP, its priority should be much lower at this site.
  Just think about the imminent financial collapse, Obama's Newer Deal including gold confiscation, interventions, stimulations, total nationalization of Health Care, Finance, auto manufacturing, his green agenda, creating entire industries against "global warming", his war plans, his education initiatives, etc.
  Is IP still THAT important?
  

  Published: January 22, 2009 6:03 PM

• Michael Smith

  Why does the physical creation of a man's muscles belong to him -- but the mental creation of his mind belong to any of you who wish to profit from it?

  Published: January 22, 2009 6:06 PM

• Mike

  Some people can walk and chew gum at the same time, andras.

  Published: January 22, 2009 6:06 PM

• andras

  Andras:"Please do not send me a web page, a book title or cite the patent or copyright laws and their failures. Just a simple definition (of IP), after all you should know what you are up against!"

  Mike: "The exclusive right to arrange physical material in a certain manner. Or, if you prefer, the right to use force to prevent others from arranging physical materials in a certain manner."

  Andras: thank you Mike. Let's keep discussing if this worth abolishing or not in an anti-IP vs. pro-IP discussion and not its imperfect applications.

  As a side, I have a question though following this definition. Do I have an exclusive right to think and arrange my thought thus my brain in a certain matter? Or if you prefer, may I use force to prevent someone to arrange my brain in a certain matter (brainwash, indoctrinate).

  Published: January 22, 2009 6:31 PM

• Mike

  That's an extremely complicated question, one predicated on if and where you free will begins and ends. I'm not sure we have time to go into it here, nor am I sure it's entirely pertinent to the discussion. Suffice it to say, I'm not sure anyone can "control" the thoughts in your head without using violent force, and your brain obviously belongs to you, so yes, you have the right to prevent someone from using violence to tamper with your body, but I don't think you have the right to use force to prevent "indoctrination."

  Published: January 22, 2009 6:47 PM

• andras

  I intentionally selected this extreme as a test of your definition. The question whether IP is a right ultimately leads to your right to your mind, your brain and its products.
  I think public education just does that: control thoughts without using violence. (Some are even happy to be indoctrinated.)
  1) So should anyone have the right to refuse to go to public school and prevent tampering with his or his child's brain? ....
  2) If yes, is (s)he allowed to use violence to protect this right?

  Published: January 22, 2009 7:13 PM

• lukas

  andras: Your example does not apply... Your brain belongs to you, my brain belongs to me. What does this have to do with IP? IP is all about preventing others to do with their property as they wish.

  Published: January 22, 2009 7:37 PM

• Mike

  "1) So should anyone have the right to refuse to go to public school and prevent tampering with his or his child's brain? ...."

  Yes, of course, but it has nothing to do with the "tampering" being done, and more to do with the kidnapping.

  "2) If yes, is (s)he allowed to use violence to protect this right?"

  I'll say my answer to this is a conditional "yes" and leave it at that.

  Also, I have to agree with lukas, this is an entirely tangential discussion at this point.

  Published: January 22, 2009 7:43 PM

• Sean T. McBeth

  "I think it's far more important than you give it credit for, mostly because the harmful effects are almost entirely unseen. Who knows just how much technological development has been restricted? In at least one field (medicine) we can say with some degree of certainty that IP has been incredibly harmful, and that without it we would all be much better off."

  And yet the onus is on the IP supporters to quantify the utility of IP? Until you can quantify the harm of IP, this argument is a fallacious appeal to emotion.

  I have a problem with discarding the concept of Intellectual Property, because I believe it is an important weapon for small producers to defend themselves against large corporations.

  There are any number of shady companies out there that trawl amateur artist websites to steal as many hi-res images as they can to run off prints and never give the artist any compensation for the matter. The artist, being in a weakened position from the start, lacks the resources necessary to bring this infringement under control, and misses out on the fruits of his labor. It would be like setting up a factory but not being able to use it because squatters have over ran it.

  Recently, embedded journalist Michael Yon sued yellow-jacket videographer Michael Moore over the misuse of one of Yon's images (http://www.michaelyon-online.com/michael-moore-lawsuit-update.htm). Michael Moore took one of Michael Yon's photos and presented it in a light that completely contradicted the original circumstances, to the detriment of the subject of the picture.

  Apple Computers was successfully sued for infringing on a photographer's copyright with an ad campaign they ran some years ago. This is actually a pretty common form for copyright infringement. Apple had published a "Spec" job for new advertising campaign ideas. "Spec" jobs are open-ended contracts: send in your stuff, if we like it and use it, we'll pay you, if we don't like it, you don't get anything. Apple's final commercial was pretty blatantly based on a photo the artist had sent in for the spec, but Apple failed to compensate him for it.

  A similar controversy surrounded the original Baltimore Ravens logo (http://en.wikipedia.org/wiki/Baltimore_Ravens#Logo_controversy).

  By eliminating the strong intellectual property laws that we have, we would eliminate the one weapon that small producers have to defend themselves against the crushing power of vulture mega-competitors. An IP-less system does not allow for the protection of small producers from large vultures. A strong-IP system *does* allow for "serving the common good" by releasing the fruits of your labors to the Commons. If you truly believe that it's better to give your mental labor away, then you may do so under our current system, no one is stopping you. *There* is your rule-utilitarian argument for Intellectual Property.

  But let's not stop at utilitarianism. We could also consider Kantianism. People are not a means to an end, they are an ends unto themselves. We respect IP because to ruin the producer by creating a competing source of distribution for his own goods would be immoral.

  Want to try some Social Contract Theory? We respect the IP because we wish other people to respect our IP. That good enough for you?

  How about appeal to emotion? Wait, that's not an ethical framework. I'll leave that one to you guys.

  The examples given of the wallpaper, the wall painting, and the grass mowing are ridiculous on their very face. When you paint some one's wall or mow some one's lawn, A) you aren't creating a recognizable work of media, and B) even if you were the intent to reassign full rights to the land owner is implied. The example of taking down the painting prints in the office is equally ridiculous, photographing the man in his office with his prints would not have constituted a copyright violation, because the purpose of the photo was not to redistribute copies of those prints; ergo falling under what we call Fair Use.

  Buying copyrighted material is engaging in contract. "I will sell you this copy if you agree to these terms of this contract. DON'T MAKE COPIES TO SELL TO OTHER PEOPLE." Are we now denying the sanctity of contract? Copyright law is nothing but the codification of automatic, implied contract between producer and consumer.

  I also reject the concept that the digital age has made copying free. This is incredibly naive and short-sighted thinking. The individual act of the copy may be relatively *cheap*, but it is not free, and when we factor in the variables that go into make copies available (running servers 24/7 burns a lot of electricity and uses up a lot of hard drives and RAM sticks), costs run up quite quickly. I've ran the numbers once before, a good rule of thumb is that it costs about $1 to make 1GB data available for download 24/7, assuming 100% bandwidth usage. The numbers get worse the less efficiently one uses their server bandwidth. 1GB is about one and one-third music CDs at full quality. That's not "free" by any interpretation of the word. We don't even have to *try* calculating the numbers on hardware depreciation, electricity costs, and bandwidth costs. Just go to any site for a free, open source, software project and look for the "donate now" link. The big projects make it very easy to find (here's one: http://apache.org/foundation/sponsorship.html). Why do they need money, if they are producing the product for free and releasing and distributing the product for free? To cover operating costs for running servers so that users can download the software. What other costs are there to making copies than overhead? Making digital copies available for download is immensely expensive. The whole concept that making digital copies costs marginally $0 is a bald-faced lie. If Intellectual Property is not capital, then what happened to all the capital that went in to making it?

  The concept that "ideas are not scarce, do not require rationing, are not diminished by their dissemination, and so cannot really be called property" shoots itself in the foot from the beginning. If ideas are so plentiful, then why does the IP right violator need *this particular* instance of an idea? If ideas are so pentiful, then why can't they come up with a new, different idea? Look at the GNU General Public License (the GPL). The stipulations of the GPL are designed to deny the concept of Intellectual Property, and use modern copyright law to short-circuit projects into becoming "free and open". In essence, the price of using a GPLed application is that you return changes to the community, code-for-code. But the GPL is designed to deny the existence of copyright because "ideas are inherently valueless." So, if that is true, then how can code, an idea that is inherently valueless, require compensation on any level? And how can code, an idea that is inherently valueless, serve as compensation for anything? It's a logical paradox.

  The assault on IP is a socialist agenda. It is an attempt to wrest control of capital from the original producer "for the good of humanity." Humanity is not a real entity, it's nebulous concept that emerges from the interactions of real entities, but it is not itself a real entity. Protect the rights of the individuals, i.e. govern the interactions between entities, and "society" will be fine. That's the entire point of libertarianism. We are supposed to be protecting the rights of individuals, and the "good of humanity" will take care of itself because of it.

  Published: January 22, 2009 7:50 PM

• Mike

  "We respect IP because to ruin the producer by creating a competing source of distribution for his own goods would be immoral."

  Complete question-begging nonsense. Ideas are not a good, first of all, and creating competition is not immoral.

  "Buying copyrighted material is engaging in contract. "I will sell you this copy if you agree to these terms of this contract. DON'T MAKE COPIES TO SELL TO OTHER PEOPLE." Are we now denying the sanctity of contract? Copyright law is nothing but the codification of automatic, implied contract between producer and consumer."

  If you are really still asking this question, it implies to me you have not read this thread at all.

  Published: January 22, 2009 7:58 PM

• Mike

  "But let's not stop at utilitarianism. We could also consider Kantianism. People are not a means to an end, they are an ends unto themselves. We respect IP because to ruin the producer by creating a competing source of distribution for his own goods would be immoral."

  Total question-begging nonsense. Ideas are not goods, first of all, and creating competition is the basis of market trade.

  "Buying copyrighted material is engaging in contract. "I will sell you this copy if you agree to these terms of this contract. DON'T MAKE COPIES TO SELL TO OTHER PEOPLE." Are we now denying the sanctity of contract? Copyright law is nothing but the codification of automatic, implied contract between producer and consumer."

  This question has been addressed numerous times. Contracts between producer and consumer are just fine and dandy, but two people cannot contract to bind a third person.

  "If Intellectual Property is not capital, then what happened to all the capital that went in to making it?"

  Karl Marx called. He wants his reasoning back.

  Published: January 22, 2009 8:03 PM

• Mike

  Your post was so great, I responded to it twice.

  Published: January 22, 2009 8:04 PM

• Sean T. McBeth

  I've already demonstrated how producing copies of "ideas" requires capital, and that cost is significant. How is that any different than the capital needed to grow plants, which are "copies of God's IP" encoded in the DNA of the plant's seed. The acts are the same, just of different degree. Are you saying that there is a monetary cut-off that defines some copies as goods and some copies as not goods?

  Who is this third party that is bound by the implied contract? If you do not wish to be bound by my contract, then you merely refrain from purchasing my goods. And if you do not buy my goods, you are no less damaged than if I had never produced the goods in the first place.

  You've also failed to address how individuals will protect themselves from vultures, or the paradox of assigning value to ideas while simultaneously denying the value of those same ideas.

  Published: January 22, 2009 8:24 PM

• Mike

  "Who is this third party that is bound by the implied contract? If you do not wish to be bound by my contract, then you merely refrain from purchasing my goods. And if you do not buy my goods, you are no less damaged than if I had never produced the goods in the first place."

  And people who download your software? Or purchase a "pirated" movie? They are free to reproduce the material as they see fit, you agree?

  "You've also failed to address how individuals will protect themselves from vultures, or the paradox of assigning value to ideas while simultaneously denying the value of those same ideas."

  I don't mean to sound callous, but it's not my responsibility to design you a business model. Be an entrepreneur; figure it out.

  Published: January 22, 2009 8:41 PM

• andras

  @Mike, Lukas,
  Lukas:"andras: Your example does not apply... Your brain belongs to you, my brain belongs to me. What does this have to do with IP? IP is all about preventing others to do with their property as they wish."
  Mike's definition of IP: "The exclusive right to arrange physical material in a certain manner. Or, if you prefer, the right to use force to prevent others from arranging physical materials in a certain manner." did not mention property interconnection.
  Lukas your definition is quite different. I would say contradicting to Mike's. You anti-IP folks should come together and work out an accepted definition
  I've just wanted to prove that Mike's definition is wrong.
  You can amend it, after all, I still want to know what you are fighting against.

  Another question: Should I have rights to my trade secrets, inventions not public yet, irrelevant whether materialized or not? If yes, may I protect it with violent force?

  Published: January 22, 2009 8:43 PM

• andras

  Mike: "Some people can walk and chew gum at the same time, andras."

  Wonderful! But could Mises.org afford to dedicate 40-100% of its daily articles to IP? What kind of message does it send? Again, under an unfolding financial and political catastrophy.

  Published: January 22, 2009 8:48 PM

• Mike

  "#

  @Mike, Lukas,
  Lukas:"andras: Your example does not apply... Your brain belongs to you, my brain belongs to me. What does this have to do with IP? IP is all about preventing others to do with their property as they wish."
  Mike's definition of IP: "The exclusive right to arrange physical material in a certain manner. Or, if you prefer, the right to use force to prevent others from arranging physical materials in a certain manner." did not mention property interconnection.
  Lukas your definition is quite different. I would say contradicting to Mike's. You anti-IP folks should come together and work out an accepted definition
  I've just wanted to prove that Mike's definition is wrong.
  You can amend it, after all, I still want to know what you are fighting against."

  I think you are misreading my definition. It does not conflict with Lukas'.

  "Another question: Should I have rights to my trade secrets, inventions not public yet, irrelevant whether materialized or not? If yes, may I protect it with violent force?""

  This question is vague. It depends on the specifics of the circumstances, and the way in which you do so.

  Published: January 22, 2009 8:58 PM

• Mike

  Maybe I should have been more specific in my definition, since "physical materials" could mean a few different things.

  I should say that IP is the right to use force to prevent people from arranging *their own* physical materials in a certain manner.

  Published: January 22, 2009 9:01 PM

• newson

  michael smith says:
  "Why does the physical creation of a man's muscles belong to him -- but the mental creation of his mind belong to any of you who wish to profit from it?

  manual labour doesn't give entitlement to ownership, outside of marxism. only if the transformed resources belong to the worker is there a valid claim to ownership.

  an unsolicited basquiat graffiti on my wall belongs to me, even if he used his spray can and labour.

  Published: January 22, 2009 9:42 PM

• lukas

  Mike's original definition is still valid. My right to use force to prevent others from arranging physical materials that are my property does not depend on IP, it's covered by physical property rights. No one here disputes those.

  Published: January 22, 2009 9:59 PM

• Michael Smith

  newson said:

  manual labour doesn't give entitlement to ownership, outside of marxism. only if the transformed resources belong to the worker is there a valid claim to ownership.

  You confuse ownership with value. Labor does not determine the value of what a man produces or creates -- only the market of those willing to trade their money for his product determines value. But when a man creates intellectual property -- when he creates the content of a work of art, such as a book, or when he creates the design of an invention, or when he creates the formula for a new material, all of which is done with only resources he already owns -- why does his creation belong to anyone other than him?

  You have provided no answer to that question. So I repeat it for the anti-IP people here:

  Why does the physical creation of a man's muscles belong to him -- but the mental creation of his mind belong to any of you who wish to profit from it? What justifies ruling IN one class of creations as property, while ruling OUT the other?

  What have any of you done to earn the right to profit from the copying of another man's creation? What gives any of you the same right to profit from the content of Atlas Shrugged as Ayn Rand, its creator?

  By what moral principle does the copier -- who adds nothing new to the creator's mental output -- acquire a right to profit from the output of the creator's mind?

  By what concept of morality is the man who has NOT created the content of a work of art nonetheless entitled to profit from that content -- and do so at the expense of the man who DID create it?

  By what concept of morality is the man who has NOT conceived of and created the design of an invention nonetheless entitled to profit from that design -- and do so at the expense of the man who DID create it?

  By what concept of morality is the man who has NOT created the formula for a new material nonetheless entitled to profit from that formula -- and do so at the expense of the man who DID create it?

  You have provided no answers to these questions -- and you cannot, because to do so is to admit that your position rests on the obliteration of the concept of justice -- it rests on the notion that the earned and the unearned are irrelevant to the concept of rights and irrelevant to the issue of who is entitled to economic rewards and who is not.

  You seek to obliterate the distinction between the earned and the unearned; you seek to evade the distinction between the man who creates -- and the man who simply seeks to cash in on the creative efforts of others. By doing so, you have come down squarely on the side of the Peter Keatings and the Orren Boyles of the world. And in doing so, you have proven Ayn Rand right once again: the alleged defenders of capitalism and economic freedom have done it far more harm than all its enemies combined.
  

  Published: January 22, 2009 10:29 PM

• Joe B

  I generally lean towards anti-IP, although I'm still somewhat undecided. I've read Kinsella's piece, but haven't read this book yet.

  As an engineer at a small company, I have seen enough stifling effects of patents to predispose me against them. Ideas that are used to produce tangible goods are rewarded in the sale of those goods. First to market gets the biggest prize, which benefits consumers and encourages new innovation. Without patent monopoly protection, there is still incentive to innovate inherent in the Austrian view of entrepreneurial profit - in order to make a profit you have to develop a new market.

  So what happens if one producer "steals" and idea from another and gets it to market first? The consumers still benefit, but is this enough disincentive to prevent producers from innovating at all? I don't think so, at least not on a global scale. Maybe producers would simply be willing to pay their innovators more in exchange for signing non-disclosure agreements. There's your compensation for invention.

  While the current business model for software would struggle without IP law, software developers could still be paid for their labor by developing custom products directly for consumers (or businesses). They could then use the resulting application to leverage themselves for similar projects with other customers - if I have developed an application, I know it inside and out and will have an advantage in customizing it for various needs.

  Once open-source versions of every imaginable application are prolific, demand for this service would probably diminish, which means that would-be software developers could profit more in other fields - again, benefitting consumers. Just because you want to write software doesn't mean you deserve to be paid for it - unless you can sell your services (not your ideas) more effectively than your competitors.

  Copyright is where I struggle a bit. My wife works in the film industry so I may be biased - although I tend to think that she would happily find another job if the current film industry collapsed and forced her out of work.

  It's difficult to imagine films and other media being profitable once bittorrent and limewire have completely supplanted the classic distribution models, but this will inevitably happen in the near future. The consumers demand it. If you think this is ethically wrong, you're free to continue donating to the film producers (and paying my wife's salary!).

  So what sort of model would the film industry take on without copyright? (This is probably discussed in the book, but I haven't read it yet). There is ever-growing demand for content of all kinds, meaning that there must be a way for someone to profit from it. I think it would be a combination of donations and corporate sponsorship/product placement.

  An important distinction needs to be made in what you are paying for when you donate to an artist or film producer. You're not funding the movie you just saw, you're funding the next one that you expect will be just as good.

  There may be a market for managing fundraisers for specific new projects - if you want to see Spider-man 4 get made, kick in $10 and you'll be the first to know when it's available. Maybe you get a t-shirt. For $100 you get your name in the credits. For $10,000 you get a cameo with a few spoken lines. For $1,000,000 you get a love scene with the lead (in the name of art, of course).

  While there would be some risk to the donator if the film goes over budget and doesn't get released, this would provide a market mechanism for the producers that can most efficiently use the resources given. If they have been efficient enough, they might turn a profit. If the film doesn't get released or the fans don't like it, their donation for the next one will go to someone else.

  Since budgets would probably be much lower under a voluntary system like this, there would be a greater market for low-cost production tools - and actors would certainly be paid less. The quality of the films produced as a result of this is necessarily subjective. Most likely the people who stick with it will be the ones who do it out of passion rather than to make a buck. Whether this is good or bad is up to each consumer to decide.
  

  Published: January 22, 2009 10:56 PM

• newson

  to michael smith:
  of course i don't confuse ownership with value. look carefully at what you've claimed:

  "Why does the physical creation of a man's muscles belong to him..."

  labour gives no entitlement to ownership, which is your contention. the rest of your argument seems based on this initial fallacy.

  the artist must own the transformed substance to claim ownership.

  Published: January 22, 2009 11:09 PM

• Andras

  Andras: "Should I have rights to my trade secrets, inventions not public yet, irrelevant whether materialized or not? If yes, may I protect it with violent force?"

  Mike:"This question is vague. It depends on the specifics of the circumstances, and the way in which you do so."

  Andras: What is vague about my questions?

  Published: January 22, 2009 11:10 PM

• Andras

  @Joe B,
  Don't be an anti-IP apologist. When you buy a ticket for Spiderman 3 you want to see Spidermen 3 and not 4.

  Published: January 22, 2009 11:14 PM

• Mike

  "Copyright is where I struggle a bit. My wife works in the film industry so I may be biased - although I tend to think that she would happily find another job if the current film industry collapsed and forced her out of work. "

  I hate to make a personal appeal like this, but I also work in the film industry (honest). Our business model would no doubt change without copyright, but you'd have to be nuts to think there wouldn't still be a demand for artwork, or any medium.

  Published: January 22, 2009 11:24 PM

• newson

  jeff, i think the schoolyard microcosm is a great way to examine the ip concept.
  the cool guy stills cool by constantly staying ahead of the crowd, and is generally comfortable enough in his own skin to tolerate copying (or even to be amused by it).

  
  

  Published: January 22, 2009 11:26 PM

• Mike

  "labour gives no entitlement to ownership, which is your contention. the rest of your argument seems based on this initial fallacy."

  To be fair, labor does establish ownership of *unowned* physical materials. Once natural resources are owned, however, labor has no effect on ownership.

  Published: January 22, 2009 11:26 PM

• Mike

  "I think it would be a combination of donations and corporate sponsorship/product placement. "

  Don't underestimate internet release models, either. Being the first to release is worth something.

  Published: January 22, 2009 11:29 PM

• Maty

  Newson said:

  "labour gives no entitlement to ownership, which is your contention."

  This has been continuously and blatantly misrepresented!

  When you work you are entitled to the result of your effort. If you invest your time and energy to create something (leaving charity aside), you do so to benefit yourself (creating something that you need).

  Enter trade...

  Now you can trade the product of your effort for the product of the effort of someone else--or for a monetary medium

  If you were hired as a contractor to paint a wall you would not own the wall or the paint, but what would have been the product of your work--the painted wall--which you agreed to trade for a monetary payment in advance.

  If you would have painted the wall of your own house, you would have owned the result.

  (can't believe I have to state this...)

  Published: January 22, 2009 11:39 PM

• Michael Smith

  newson wrote:

  to michael smith:
  of course i don't confuse ownership with value. look carefully at what you've claimed:

  "Why does the physical creation of a man's muscles belong to him..."

  labour gives no entitlement to ownership, which is your contention. the rest of your argument seems based on this initial fallacy.

  the artist must own the transformed substance to claim ownership.

  This response is pure evasion on your part. And lamely done, at that.

  I didn't claim that mere labor conferred ownership -- as anyone with normal reading skills can comprehend. I claimed that production, that creation of the value involved confers ownership.

  And based on that principle, I posed a series of moral questions which you have -- predictably --chosen to evade.

  You state that "the artist must own the transformed substance to claim ownership". That statement on your part is an indication that you didn't read or comprehend what I wrote, because I made clear that the act of creating intellectual property does not use any property except what one already owns.

  Your response is typical of the libertarians here. Come back when you can answer the questions I have posed. Come back when you can explain why the parasite and the creator are on the same moral plane with the same right to profit from the creator's work. Come back when you can justify why any crank, looter or misfit has a right to profit from the work of Ayn Rand or any other creator.

  Published: January 23, 2009 12:11 AM

• Michael Smith

  newson wrote:

  to michael smith:
  of course i don't confuse ownership with value. look carefully at what you've claimed:

  "Why does the physical creation of a man's muscles belong to him..."

  labour gives no entitlement to ownership, which is your contention. the rest of your argument seems based on this initial fallacy.

  the artist must own the transformed substance to claim ownership.

  This response is pure evasion on your part. And lamely done, at that.

  I didn't claim that mere labor conferred ownership -- as anyone with normal reading skills can comprehend. I claimed that production, that creation of the value involved confers ownership.

  And based on that principle, I posed a series of moral questions which you have -- predictably --chosen to evade.

  You state that "the artist must own the transformed substance to claim ownership". That statement on your part is an indication that you didn't read or comprehend what I wrote, because I made clear that the act of creating intellectual property does not use any property except what one already owns.

  Your response is typical of the libertarians here -- it pretends that the issues I've raised don't exist.

  Come back when you can answer the questions I have posed. Come back when you can explain why the parasite and the creator are on the same moral plane with the same right to profit from the creator's work. Come back when you can justify why any crank, looter or misfit has a right to profit from the work of Ayn Rand or any other creator.

  Until you respond to these issues, your responses are nothing more than evasions or smokescreens for the purpose of hiding from the real issues. Come back when you are prepared to justify why the man who has created nothing is entitled to profit by appropriating the work of the man who has created something.

  Published: January 23, 2009 12:19 AM

• Joe B

  andras: "Don't be an anti-IP apologist. When you buy a ticket for Spiderman 3 you want to see Spidermen 3 and not 4."

  I saw Spiderman 3 in the theater because it looked great on a big screen. I paid for this experience because I valued the results produced by the theater owner's expenditure of scarce capital - which I could only get at the theater. I downloaded it on bittorrent so that I could watch it again whenever I want, and paid nothing for this.

  If the theater owner could have downloaded a high-quality version of the film for free, I would have still paid to see it at the theater, although the ticket may have been cheaper. The scenario I'm describing is one where this would have been possible, and the point I'm making is that new business models would have to develop to cope with this.

  I'm assuming that people can download these films for free (which many do today) and investigating what sort of model would continuously meet the demand for new content.

  If I watch Spider-man 3 for free and enjoy it, afterwards I might trade $10 of present money for the future good of Spider-man 4. I no longer economize Spider-man 3, because it is no longer scarce. But since Spider-man 4 will take scarce resources to produce, as a future good it is scarce. I might even pay more to see it come to fruition sooner in accordance with my time preference.

  If the production studio has borrowed money to produce Spider-man 3, I will take this into consideration when deciding whether I think they will be capable of producing Spider-man 4. This will affect my decision of how much I'm willing to pay for the future good, or whether I would rather pay a different studio to produce it. It doesn't mean that I'm paying for Spider-man 3. If they borrowed money to create spider-man 3 expecting to make money once it was released (and no longer scarce), that's a risk that they have assumed.

  Mike,
  I think you've misunderstood me - as I said, demand for content is continuously increasing. What is changing is the scarcity of the final product as a present good. Increasing supply means decreasing prices - and limitless supply sends the price to zero. As I have discussed here, the scarce future good is what has market value, so I think that new business models will need to find ways to exploit this rather than expending resources to force scarcity upon the present good.
  

  Published: January 23, 2009 12:55 AM

• lukas

  Michael Smith:

  I think the problem is that you have multiple, conflicting concepts of ownership.

  On the one hand, there's physical ownership of material goods: a pretty well-defined idea in terms of how it comes about, what rights it entails, and how it ends.

  On the other hand, you claim there is such a thing as intellectual ownership in ideas, a much fuzzier concept... Could you explain how exactly, in your view of things, intellectual property is created, what rights it confers on its proprietor, and how it ends/expires?

  Anyway, since physical property rights are sufficient to establish a system of ethics without recourse to IP rights, those IP rights will necessarily be in conflict with other property rights. What should be done in those cases?

  Published: January 23, 2009 1:31 AM

• Maty

  Jim B said:

  "If I watch Spider-man 3 for free and enjoy it, afterwards I might trade $10 of present money for the future good of Spider-man 4."

  So if you've watched a movie you enjoyed you'll spend $10 buying a T-shirt to support the next, but not a copy of the movie?

  Mike said:

  ". Could you explain how exactly, in your view of things, intellectual property is created, what rights it confers on its proprietor, and how it ends/expires?"

  Allow me to pick you up on this one (since my previous post on the subject was ignored) and quote from yet another post:

  "...when one takes isolated ideas and groups them together in a certain way; in a particular order and fashion that is distinct and personal to him—he creates a new unit. All those ideas that have been previously isolated and continue to be so outside of his work, once formulated by the power of his mind, constitute a new whole.

  ...Just as the mason, whose workplace is physical, would own the house his hands have built—should not a writer, whose workspace is conceptual, own the structure his mind erected?"

  Published: January 23, 2009 1:45 AM

• Maty

  Jim B said:

  "If I watch Spider-man 3 for free and enjoy it, afterwards I might trade $10 of present money for the future good of Spider-man 4."

  So if you've watched a movie you enjoyed you'll spend $10 buying a T-shirt to support the next, but not a copy of the movie?

  Mike said:

  ". Could you explain how exactly, in your view of things, intellectual property is created, what rights it confers on its proprietor, and how it ends/expires?"

  Allow me to pick you up on this one (since my previous post on the subject was ignored) and quote from yet another post:

  "...when one takes isolated ideas and groups them together in a certain way; in a particular order and fashion that is distinct and personal to him—he creates a new unit. All those ideas that have been previously isolated and continue to be so outside of his work, once formulated by the power of his mind, constitute a new whole.

  ...Just as the mason, whose workplace is physical, would own the house his hands have built—should not a writer, whose workspace is conceptual, own the structure his mind erected?"

  Published: January 23, 2009 1:55 AM

• Maty

  Sorry for the double posting...bad connection.

  Published: January 23, 2009 1:58 AM

• Randall Goble

  I think a great example of the shortfalls of Intellectual Property is the music industry. Musicians are some of the most vicious advocates for IP, yet it's no secret that the most marketable chart toppers usually all sound extremely similar, borrowing entire chord progressions, beat signatures and vocal stylings from one another, yet all the while going to great lengths to protect their "creations." Meanwhile, the less marketable, unheard of genres and artists tend to be the most adventurous and unique, oftentimes conscerned little with copyrights and money, valuing more the recognition of their peers. Anyone who has ever had or still has a deep love of music, knows that the, pardon the expression, "underground" genres always have the artistic curve, leading the mainstream industry by roughly 5-10 years before being discovered and contracted, usually resulting in better sales (and poorer quality albums.) This isn't a written in stone rule, but it's been my observation over the years.

  Of course, there's nothing quite like being told you can't bring your video camera into the show by a bouncer with an anarchy symbol tattooed on his neck.

  Published: January 23, 2009 2:46 AM

• Maty

  I have a question for everyone who denies the concept of IP.

  Suppose someone has a formula written on a piece of paper. You claim that the physical paper is his property while the contents contained therein are not, and therefore maintain that you have the right to that content once it leaves his possession. Am I correct this far?
  
  So let us say that someone has written such formula--say the code for a software, in a manuscript that he keeps in the drawer of his desk.

  Suppose that you are extremely curious to learn the contents of this manuscript, but you also know that the author does not wish for the contents to be read, and made it explicitly clear by leaving a sign above the desk stating: 'please do not open'.

  The drawer is not locked... and you know it.

  However, if, as you profess, you do respect Property Rights, the man's word is stronger than any lock... The table is clearly his--he built it, or purchased it from the one who did, and thereby obtained its ownership--and so opening the drawer against his will to read the contents of that manuscript would be a violation of Property Rights, right?

  You would not open the drawer.

  Now, let us suppose that same individual was to build the software--with that same code embedded within--and agreed to license it to you under the express condition that you would not reverse-engineer it to learn his code.

  You agreed to his condition.

  Would you feel free to violate his will and condition now, because the code is not hidden behind the physical desk but the non-physical software?

  If so, why? Because you can?

  Why would you not open the unlocked drawer to glean the secret when there is nothing to stop you save his wish, but you would 'open' his 'unlocked' software?

  However, if, as you say, you do respect 'physical

  Published: January 23, 2009 3:09 AM

• Miklos Hollender

  Imitation by composers: yes, back then it was a matter of course that every great idea starts a tradition, a "school". That only really talented people were really expected to innovate and there was nothing shameful in being a mediocre musician within a given tradition/school, just doing the job right. Perhaps IP is one of the reasons that now "everybody" feels they need to innovate instead of imitating, even if they are of mediocre talent, which means instead of producing something un-original but worthy many people produce a lot of things that are very original but are totally crap.

  But I still have misgivings against IP. Perhaps in a perfectly free and perfectly functioning capital market... perhaps then it would be OK. But these days you can have a good idea, pour your life savings into a starting a small business. And without IP a big corporation would just say thanks, take the idea and produce it at half the cost because they have the economies of scale. And you get nothing. IP makes it possible for the little guy who has nothing to sell but his ideas to compete or to sell it.

  Perhaps in a perfect capital market the little guy would get enough investment from others to be able to compete with the big corporations... but in the absence of that, it looks like a necessary protection.

  Published: January 23, 2009 3:18 AM

• Miklos Hollender

  Sorry, too early in the morning: what I really meant: I still have misgivings about NO IP, not about IP.

  Published: January 23, 2009 3:20 AM

• Maty

  Please disregard the last sentence in my previous post (dead tail... should have previewed.)

  Published: January 23, 2009 3:22 AM

• Randall Goble

  Also, to be clear, before being mutilated; My previous statement wasn't an argument for why IP is right or wrong, it was simply a personal observation.

  After I placed the previous comment, I went back and read the entire thread and realized how heated this discussion had become.

  It seems to me that what everyone is arguing over is, at the end of the day, not about what is a basic human right, but what is to be protected and enforced by government.

  For instance, I write songs. I've written 10 or so country/folk style songs and I've only performed three of them at an open mic, where everyone was drunk and wasn't paying attention. I was a nervous wreck and botched every one of them and I've never gone back. BUT, my point is, if someone happened to be filming or recording my set, and decided that the songs were good but the performance was not, they may go and learn my songs, return the next week and blow everyone away. Maybe then they are discovered and become famous, touring and performing to millions of people. Well, first and foremost, I'd be upset. Very upset. But the fact of the matter is, if I had performed those songs well enough, they would have been remembered the next week by the regulars of the bar. Or if they weren't, I could challenge the imposter by accusing him of stealing my idea. But truthfully, at the end of the day, the only way for me to redeam myself would be to perform the song better. The service I provide as an artist is only actualized in it's execution. Having a great idea is one thing, delivering on that idea is another.

  Just because the abolition of IP would change the marketplace, doesn't mean it would destroy it. There are ways to prove being the first to create something, there could be an entire industry devoted to it. It would be in the form of businesses that time stamp ideas and works of art, fraudulent companies would be weeded out by the market place, and eventually artists and inventors would seek a kind of "accreditation" from the most publicly reputable companies. This would uphold and recognize genius, but not congest the improvement and circulation of ideas. Besides, if I invent something, no one on the planet should know it better than I, but if by glancing at my plans they notice a small but fatal error in my design, they should be able to improve upon it and profit from it, because by publishing my plans, I've opened them up to improvement.

  The competition to protect one's ideas would also spur industry. There is nothing wrong with protecting an idea, there's nothing wrong with wanting recognition for a creation. But to appeal to the government for that protection is not necessary. Entrepenuers, inventors and artists would simply need to find ways to market and implement their ideas within the free-market, in the most efficient, qualitative, and affordable way possible, and other entrepenuers, inventors and artists would need to meet them half way with products and services aimed at doing just that.
  

  Published: January 23, 2009 4:19 AM

• Randall Goble

  The formula/code written on a piece of paper in a drawer is private property. To open the drawer and take it would be theft.

  The written code once implemented would be a working program. The best thing you could do is either develope code that allows your program to be used and simultaneously protected from reverse engineering, or to not put your product on the market and keep it to yourself. If it is not possible to market your code without exposing it to reverse engineering or copying, then you may want to booby trap it with a virus that fries anyone's computer who tries to crack the code. There's an endless array or solutions to these problems without the government being the watchdog. Coercion, theft, dishonesty and plain meanness will never go away. It's not about creating a utopia. It's about allowing the market(free people) to come up with it's(their) own solutions to these problems.

  Published: January 23, 2009 4:38 AM

• lukas

  Just as the mason, whose workplace is physical, would own the house his hands have built—should not a writer, whose workspace is conceptual, own the structure his mind erected?

  But what does it mean for a writer to own the structure his mind erected?

  Published: January 23, 2009 6:52 AM

• Joe B

  Maty: "So if you've watched a movie you enjoyed you'll spend $10 buying a T-shirt to support the next, but not a copy of the movie? "

  My point is that I have no economic incentive to pay for a copy of the released movie, since I was able to download it for free. I have signed no contract stating that I would pay any amount to view or copy that movie. It is not scarce, so it has no economic value.

  I might send the producer $10 out of the kindness of my heart to say thanks, but on a larger scale this doesn't get you a feasible business model. It requires the threat of violence to ensure that everyone who sees it kicks in their $10, and this is where I have a problem.

  I think people confuse potential with value. John Galt's motor had zero market value because nobody knew it existed. He chose to keep it a trade secret, and not to turn it into a consumer good. However, if Dagny Taggart's attempt to reverse-engineer it had been successful and she brought it to market, she would have given it value (actually the bidders who purchased it would have given it value based on her supply and their demand).

  In this situation, the only thing she has stolen from Galt is the potential to bring it to market first. She has not prevented him from doing this. He still has the idea and could start building and selling motors in competition if he desired.

  If Galt had marketed the motor prior to Dagny offering it, then her competition would affect his potential for future profits by increasing supply in the market. It would not transfer any of his current physical wealth to her.

  Galt could try to protect his trade secret by installing a self-destruct device with a proximity sensor on every unit sold, but this would likely reduce the demand for it, and thus the price. It also brings up the issue that he is destroying physical property that he no longer owns. Or, he could form an agreement (cartel) with Dagny offering her some incentive to refrain from selling them. These are free-market approaches.

  He could also rely on the state to enforce his patent at taxpayers' expense. This seems to be OK with the pro-IP crowd, or at least it's the scenario to which Libertarian anti-IP'ers are primarily opposed. I can't see how this scenario could be compliant with an objectivist morality.

  I would say that if you can protect your IP, go for it. However, you must consider the cost involved. If you rely on IP rights for your business model, someone will eventually discover or circumvent your secret and enter your market, whether or not you think they have a right to do so.

  And don't let me hear you talking about a free market if my coerced taxes are paying for your protection.
  

  Published: January 23, 2009 6:55 AM

• Brian Macker

  I posted my attitude to property rights here long ago in a few of the innumerable anti-copyright articles by Steven.

  I ground intellectual property rights in physical property rights. Current patent law does not do this and thus I do not think it is valid. Copyright law on the other hand is more compatible with my beliefs.

  Grounding IP in physical property rights is perfectly compatible with an anarchist or free market system. It's not compatible with socialism, obviously.

  Here's another comment I posted here on Mises with regard to copyright and how it's tied to physical ownership. I defended it successfully against all the misconceptions of the anti-IP opponents.

  So far none of the anti-copyright crowd have produced a valid argument against my position.

  It's pretty clear that many of those who are wedded to anti-IP are doing so precisely because they see it as an obstacle to the complete elimination of government. That is, they argue with a result in mind, instead of reasoning clearly.

  Published: January 23, 2009 7:00 AM

• Brian Macker

  Michael Smith,

  I see your comments under "A Book that Changes Everything". Why did you think they were deleted?

  Perhaps you went to the story article, instead of the blog entry?

  The story articles do not allow comments. You have to find them in the blog to comment. I think you got mixed up between the two.

  Published: January 23, 2009 7:33 AM

• lukas

  Brian,

  I agree with you that IP rights are acceptable as long as they are grounded in and compatible with physical property rights. The current legal situation, however, goes far beyond that... obviously so with trademarks and patents, and less flagrantly but still with considerable impact in the case of copyrights.

  Published: January 23, 2009 8:12 AM

• Mike

  Brian,

  You make some interesting points, but I think your argument falters on a few levels.

  Say you are, in fact, copying an unauthorized version. You assert that this version, having been copied from an authorized version, is justly the physical property of the original creator. Even allowing for this, does this necessarily mean that the version that *you* created belongs to the original creator? You had no contract with him. You are, if anything, obligated to return the original to him, but I fail to see how this new, copied version also belongs to him. And, in fact, this is how most copying is done in the modern era. One party buys an authorized copy, uploads it as a bittorrent or some such thing, and it is copied dozens of times. Perhaps the original artist has some claim to the first copied version, due to contract violation, but I don't see how he has the right to stop the flow of information that ensued after the fact.

  Published: January 23, 2009 8:38 AM

• Amy

  Just to throw in my two cents about how the entertainment industry would survive without current copyright law...

  Anyone here heard of Joss Whedon and/or Dr. Horrible?

  During the writer's strike, Joss was trying to come up with a different business model that would bypass the producer studios, and thus Dr. Horrible's Sing Along Blog was born. It streamed for free on Hulu and was also available for hi-res download on iTunes. Later, a DVD was released with several special features, including quite a few 'Easter Eggs' that the die-hard fans could discover. Joss funded the whole thing on his own with two budgets: one to cover basic costs while the actors and crew donated their time, and another to pay the actors and crew what their time was worth. The second budget would only come into play once the movie covered its costs.

  Now that it's done and over with, Joss won't talk specific numbers, but has said that from the iTunes sales alone (and again, this is something that was also streaming for free on Hulu), he was in the black.

  Obviously Joss's rabid fanbase contributed to the success of this project, but it proves a few important points: first, that people are still sometimes willing to pay for things they can legally and easily get for free, and second, that die-hard fans of an artist are often willing to pay extra for an experience (e.g. discovering easter eggs on a dvd) that you would have a hard time recreating for free.

  The same applies to music... although music downloads are widespread, some people still pay for the iTunes or Amazon download instead. Sometimes it's just easier to find a song on iTunes than to track it down on bit torrent. And no matter what, the artist always has their own performance to sell. In fact, many smaller, indie-type bands have gotten profitable because the free downloads exposed new people to their music, expanding their fanbase and driving up their ticket prices for concerts.

  What the entertainment industry requires is a rethinking of the business model, which will most likely cut the producers ever further out of the process. There will always be a demand out there for entertainment, and people willing to pay for it in one form or another.

  Published: January 23, 2009 8:47 AM

• wearehere

  The labor required to create IP is a scarce good, even if the resulting IP is not.

  Published: January 23, 2009 2:07 PM

• wearehere

  The labor required to create IP is a scarce good, even if the resulting IP is not.I do think so

  Published: January 23, 2009 2:07 PM

• bob

  I think attempting to attach tangible goods markets distort the true meaning of this debate. Sure, composers may find a market demand for their additional performance of their works. Also, coders who create some mass consumption software can find work commissioning them for custom modifications of it.

  The point is that some people are better at the IP creation aspect, and that they do not value the IP for their own use as much as the market is willing to trade them for its licensed use. In other words, forcing IP producers to also be some other form of producer is simply inefficient and does not take division of labor into account. Maybe I can better serve the public by working on the next piece of mass-consumption software, leaving customizations for less experienced programmers. it seems that mass consumption software holds more total society-wide "value" than any single-client software.

  Without IP law, there needs to be some alternative system that rewards IP laborers based on the total consumer value of their product. Without scarcity, be it natural or artificial, it is impossible to assign a market value to anything.

  I am willing to abolish or reform current forms of IP, as their abuse is clear. I think that would be a better debate. Our current one seems like those defending an idealistic, unrealized, quasi-utopian system vs. an obviously flawed but somewhat practical system.

  I have proposed an alternative -> non-restrictive entitlement rights. Essentially, this is keeping copyright but forcing copyright holders to grant licenses to any and all uses of the IP and forcing them to accept the same price to so as a share of their commercial revenue from doing so. Additionally, this price would diminish over time until reaching $0. This would prevent free rider effects from commercial distributors, while redefining "Fair Use" as ALL use. Anyone not seeking monetary revenue would be completely free to use an IP. No one would be excluded from the market...and competitive distributors or related services would have the same costs.

  Published: January 23, 2009 5:36 PM

• Martin OB

  From a moral POV, I think even the name "intellectual property" should be avoided, since it's no property at all, just a monopoly on a given activity (the activity of interchanging or even producing some patterns of information), so it should be called "intellectual monopoly" as a neutral term.

  When the term "intellectual monopoly" is used instead of "intellectual property" it become clear why it is so odious. It's not because it's property of some inexhaustible resource. The real reason is that every monopoly on an activity is intrinsically invasive, incompatible with physical property and privacy. The division of physical property lets every person "mind their own business" while respecting other people's right to do alike. So called "Intellectual property" makes this peaceful coexistence impossible; you never know whether your words, drawings, or your very thoughts are infringing on someone else's "property". That's why so-called IP should be abolished even if its benefits were real.

  But I don't think they are. Let's get into the more interesting issue of how arts and inventions would be promoted in an IP-free society.

  First, let's ignore the example of books and other physical incarnations and assume that all information is exchanged online.

  Some artists' lobbies claim there would be "no music/books at all" without IP, which is preposterous. Music, literature and other forms of art which can be cheaply produced by a single individual would go on even in the total absence of economic motivation. True artists simply can't help to produce works of art, and they enjoy it, even if they have to do it in their spare time.

  A different story is action/sci-fi movies, where numerous artists and non-artists must coordinate their efforts. While it's also conceivable that all the people involved do it in their spare time for the fun of it, some form of funding seems highly desirable.

  An obvious candidate is the "fund and release" strategy, also called "threshold pledge". The artists gives some hints, maybe even samples, of the work he intends to produce (or has produced but keeps private) and he sets a price. Those interested in having the work released can make a money pledge. When the full price is reached, the work is released. If the artist decides not to release it, people get their money back. So this is not charity (pay and hope), it's just a commercial transaction involving lots of buyers.

  Another funding strategy is a generous prize policy. It has the advantage that the money is given after the relative merits of the work are seen .And who would pay for the prizes? Maybe it's some manufacturing company looking for advertisement, Maybe it's wealthy individuals who want to improve their image, maybe it's art clubs supported by many enthusiasts, or maybe it's someone who has something to gain from an increased public awareness of that kind of art; for instance, an association of art teachers. Or maybe the artists become art teachers and their works of art are their main form of advertisement.

  This last possibility is also very interesting for academic research and as a subtitute for patents. So, technological advancement would flow from academia to industry, and university teachers would work hard to produce useful papers, to attract more students who pay for lessons. Students would pay for the lessons, either because they like to learn, or because they hope to become teachers themselves, or because they hope to be hired in some manufacturing company as the expert who decides which of the available technologies to implement and how. And so we come to the argument advanced in the book "Against Intellectual Monopoly": manufacturing companies would pay handsomely to these experts, who would help them get to the market first and massively with new products. So, even if the physical process of spreading the idea is inexpensive (as in online publishing instead of printing press) the embodiment of patentable ideas in useful objects is an area where consumers would be wary of cheap imitators. What about software products, like office suits and photo-manipulation apps? they may start as internal software of a manufacturing (or service) company. Later on, as the company needs to cooperate with others, comunication protocols and file formats would naturally emerge. And those would be automatically open standards, which everyone seems to like even in these IP-loving days.

  So why are we not seeing all this plethora of alternative funding schemes today? Why, because of the overwhelming competition of intellectual monopoly, which drains the market, attracting the best and the brightest with its promise of huge revenues, and leaving preciously few brilliant individuals to the open knowledge world. That's why the very existence of "free software"/"open source" applications and operating systems is indeed remarkable, and its alleged shortcomings are not a sign of what to expect if intellectual monopoly were abolished.

  Regards,

  Published: January 23, 2009 8:41 PM

• newson

  a very well-reasoned comment, martin ob.

  Published: January 23, 2009 9:58 PM

• Sean T. McBeth

  If labor does not confer any level of ownership then, pray tell, how does the system of wage labor work? Why do we compensate laborers?

  Published: January 24, 2009 2:21 PM

• Brian Macker

  Lukas,

  "The current legal situation, however, goes far beyond that..."

  Correct. I disagree with current law.

  "Even allowing for this, does this necessarily mean that the version that *you* created belongs to the original creator? "

  The process is iterative. Say I own a prize cow and bull. Real expensive ones of a special breed. Say somebody else steals them both, mates them and makes copies this way. Of course he feeds them, cares for them in the meantime. Certainly he was responsible for initiating the copying in this example.

  I think it is pretty clear that I own the calf.

  Should he get caught then to fully compensate me I need the cow, the bull and the calf. Because if they hadn't been stolen then I could have, if I valued it, made the copy myself.

  Now, the thief did mix his labor with my property, but that doesn't make it in any part his because it was mine to begin with and he had no such right. Nor was his action a mistake.

  Plus he must compensate me for the effort of finding, catching, and prosecuting him. Plus pay me for the risk I ran that I would never get my goods back. Thus usually courts don't bother weighing in the criminals contributions when returning lost goods and often add fines on top.

  Now the same thing may have happened in a different way. He may of stole my cow and bull then sold them to someone else. That other person may then mate them, feed them and produce the calf. But it is still stolen goods. If this person is caught with my property then I should get my property back, the cow, the bull, the calf. However I should compensate him for the care and feeding.

  Under this view the calf is mine, even if I do not have possession. The calf itself might then be mated with my bull to produce yet another calf. Heck an entire herd may be produced. But still that herd is mine, or at least partially mine, since it was produced with my stuff. Some portion of course being do to the mixing in of the other guys stuff.

  So if the crime were discovered then what a judge should do is try to disentangle our contributions and try as best as possible to make both parties whole. We are in a sense forced co-owners of property because of a fraud caused by a thief.

  Now I breed those animals to high quality over a lifetime or perhaps bought special animals that had been breed to high quality over hundreds of years. They represent a scarce and valuable good.

  On the other hand the guy who copied them added little of value. Some straw, some water, some minimum wage labor, and a shed. When it comes time to disentangle the contributions I think it is clear that I should have the lions share of ownership.

  Also to make me whole again it is clear that the genetic heritage of the animals should naturally be put back in my possession, and not the guy who benefited from a theft. I should get the herd and pay at most for the room and board of my animals to an innocent receiver of these stolen goods.

  The same goes for copyrighted books. The paper used to make copies really isn't that valuable. Even less valuable contribution is made by copying via a computer.

  The copyright owner on a book really is a co-owner of the work. The buyer is really only renting the work with a right to proper disposal. I covered this in detail in one of the comments here on mises and don't want to repeat myself again.

  The contract about the book makes them co-owners with differing rights in the book. Just because some third party is not a party to the contract does NOT mean he can just steal the book and use it as he wants.

  What about a lost book? Well if the book is clearly marked with a copyright notice then the finder can certainly locate the person who retains the ownership over the right to copy the book.

  There are all sorts of other issues that arise that I can also justify. For example, what if the copyright owner dies without selling the copyright to anyone, and has no heirs. Well then we treat it like any abandoned property.

  If you happen to find a book for which no one currently holds copyright then you should in fact be able to establish your own copyright for any physical copies of that book. Even if you are not the author.

  For example, if you happened to find an original copy of say the bible that is older than any known copy then I see no reason why you could not establish a copyright contract which you use to sell copies of it.

  Were someone else to find another original copy of it they could establish their own parallel copyright.

  Again all based on physical property rights.

  
  

  Published: January 24, 2009 4:43 PM

• scott t

  if the bullthief led the stolen bull down the road and the bulls**t on the road, would that be yours too?

  would the thief also return that to you?

  Published: January 24, 2009 7:56 PM

• Brian Macker

  "if the bullthief led the stolen bull down the road and the bulls**t on the road, would that be yours too?"

  As a matter of fact, yes.

  "Would the thief also return that to you?"

  If he was caught and it was valuable to me then yes I would request compensation for it too.

  Published: January 24, 2009 9:30 PM

• lukas

  Brian,

  I won't repeat Stephan's argument here, I'll just refer you to it... in Against IP, pp. 47--55, he disputes the "bundle-of-rights" view of property that you seem to (do you?) espouse. Where do you disagree with him?

  Published: January 25, 2009 2:42 AM

• Brian Macker

  Starting on page 49 Kinsella’s argument is invalid, and certainly doesn't work against my theory of copying rights. I believe it is invalid against Rothbard’s argument also.

  He proposes that the author A writes a book and makes two copies. He sells copy, BOOK 2, to a party, B1, wholly. He sells partial ownership in the second copy, BOOK 2, to party, B2, with a copying right contract.
  
  In my view (and Rothbard’s) the contract is that A is co-owner of the book with B2, and is the only co-owner allowed to copy the book. B2 is allowed to use the book in any other way and is also allowed to destroy the book, and therefore dissolve the contract over that one physical piece of property. Since Kinsella is arguing against Rothbard, and to prevent his counter argument from being a straw man we must assume this definition even if Kinsella didn’t spell it out.

  He then states: “The two books, BOOK1 and BOOK2, appear to third parties to be otherwise identical. Yet they are not: one is incomplete; the other somehow contains more mystical “rights-essence” within its covers.”

  To which I respond (and Rothbard would also), “So what? This is true of any co-owned physical property”. The same can be said of a piece of land where mineral rights are owned by one party and other rights by another. There is no way by looking at it to tell who owns what. In fact, can’t look at any piece of property to tell who owns it without specific markings. There’s nothing mystical about it. There are no “essences” involved.

  Not only that but he has made some other false assumptions here and the following text. 1) Abandonment. and 2) Indistinguishablility. The short replies to these are: 1) Just because I left my book on the park bench does not mean that I have abandoned ownership of it. 2) There may indeed be identifying marks in the book.

  On assumption 1) Abandonment.

  I used to be a bellhop and found a roll of a little over one hundred dollars on the floor in an elevator wrapped in a rubber band. I did not assume this was abandoned property because I took human nature into account. People lose things. When I got back to the desk I asked the other bellhops if they had lost anything. One guy with a pained look on his face said, “I lost my wad”. I said, “Describe it”, and he described it exactly. So I handed it over to him. He was quite surprised I did that because he thought most people were dishonest. I laughed and said, “Thanks for having such a high opinion of me”.

  If I were to find a book on a park bench I would leave it there in the hopes that the owner would find it, or if I thought there were many dishonest people around, or it was going to rain, then I would take it and leave a note. I would not assume ownership until I had exhausted a reasonable amount of effort considering the value of the property. Likely I would just leave a cheap paperback.

  Furthermore I might take other steps to establish ownership, such as dropping it off at a lost and found, or taking it to the police. Also, I would look on the outside edge of the book, and the first couple pages for anybodies name.

  On assumption 2) Indistinguishablility he is also incorrect. There are many ways to establish the difference between the books.

  a) By any reasonable means we already use to establish ownership of misplaced objects. Once we establish the owner then any relationship between that owner and the original author A is up to them. If we find BOOK2 and give it back to B2 then it’s clear that this was a book with co-ownership between A and B2.

  b) It’s likely that book B2 will contain an explicit copyright notice. If the finder of the book sees this notice then he at least knows who one of the co-owners of the book is. He can return that book to A if he wants too, or he can homestead B2’s property rights in the book, which does not include the right to copy.

  Thus most of Kinsella’s claims that the books were indistinguishable is moot in deciding if there can be co-ownership defined by a copying rights contract.
  Let’s see if he can get further in his argument with even more assumptions.

  Remember, he argues: “Suppose B1 and B2 leave these books on a park bench, where they are discovered by third party T.” and ” But think of the two books, BOOK1 and BOOK2. How could one tell the difference between them?”

  He’s got a very narrow issue here, two identical books left on the same bench, and indistinguishable. Hardly a situation that is likely or something one would want to build ones rights theory on, but let’s address it.

  Well there are all sorts of outs that could resolve the issue in Rothbard’s favor still. Both owners could come back. The owner of BOOK 1 could come back, etc.

  The only situation that seems to cause problems is if the finder of the book T, was unable to find the owner, and the book had no copyright notice inside. But even then any reasonable actor would know that somebody wrote the book, and may have had such an agreement with the actual owner of the book. The book will likely have a title, and author, etc. What the person should then do is contact the author and see if this is the case. If this is a one-off contract with a particular individual B2 then the author could contact B2 and see if he frequented the park in question and lost the book. In which case, the owners are identified, and no homesteading is possible.

  Note too, that the finder of property should not use that property. If I find a potentially abandoned car on my property then that does not give me the right to drive it. Likewise I have no right to read a discovered book up until I have discharged my duty to take reasonable care in finding the owner. So I don’t want any responses in this direction from my opponents. You’ll find the intellectual gate closed.

  Let’s concede points Kinsella didn’t even make. Let’s assume against all odds that the books truly are indistinguishable, that the owners are impossible to find, that it is impossible to determine the author, or anyone he might have sold copying rights too. Well then it is perfectly acceptable for a the finder of the BOOK 2, Mr. T, to homestead full ownership of the book.

  The only question that is left is what if BOOK 1 is found and author A is alive. Can T homestead BOOK 1, and make copies. Well theoretically yes he could have given that scenario. However there is an issue here of possible dispute between A and T, and what a court could reasonably determine. Mr. A could lie and say that he sold BOOK 1, with copyright with B, in which case the court would ask A to produce the contract. Or Mr. A could lie and say that he never sold the BOOK 1 at all.
  
  What’s the court suppose to do in that case? Well if A is to be believed then he is the full owner. So he gets his book back and T cannot make copies, and if he already did then he did so without permission and must make A whole.

  Courts and societies often settle on social conventions for the purpose of reducing transaction costs, preventing disputes, and the like. Often choosing what makes most sense based on the more common occurrences. The default assumption is often a matter of convention. The question in this case is what is the more reasonable default assumption A) That a book without a notice is copyrighted. or B) That a book without notice is not copyrighted. Sometimes it is quite unclear what the default social convention should be and yet we decide anyway.

  Since people write things all the time and do so on their own paper, computers and the like it would be quite onerous to require them to print a copyright on each copy. Also items are stolen and misplaced with much more frequency than the extremely unlike scenario played out in Kinsella’s book. It seems much more reasonable to assume that for all works the author retains copying rights unless otherwise explicitly abandoned either in writing, or upon death by a lack of heirs. Books that are not covered by copying rights would have to explicitly state so within their pages, in a place determined by convention.

  With that convention the author A would only need to establish his authorship of the book (or the current holder of the copying rights a contract with the author). So what of an ancient text dug up from some cave, like the Dead Sea Scrolls? Well, obviously the author is dead, and obviously there is no copyright holder who bought from the author. So the finder is free to homestead all rights to the text. He would need to advertise the discovery, and place his name on any copies.
  
  Why should he put his name on his copies to establish his copyright? Because someone else may dig up a second copy, and homestead it, which would entail the right to make a hierarchy of additional copies. Heck, the second discoverer could then sell his copies without any copy right contract. This would in no way interfere with the first discoverers rights, although it would make them far less valuable.

  Then, by accident all copies that the second discoverer had found or made may by accident be destroyed. In which case, the value of the first discoverers copying rights goes back up.

  Also, from the point of view of the courts it may be harder for the first discoverer to prove that any third party copy was a violation, but it probably will not be impossible. The two discoveries may not be identical copies. If it is impossible to determine then it is tough luck on the second discoverer.

  Likewise tough luck on you if someone steals your unpublished work and you can’t prove ownership. But that hardly proves that the underlying rights don’t exist. That’s an issue of the fact that courts are not all-knowing, not one of rights.

  In summary, all the talk by Kinsella about magic, right’s tendrils, spooky, amorphous, invisible, mystical, spooky, are either nonsense which can be claimed of property rights or misunderstandings on his part.
  
  Kinsella also quotes an argument by Palmer in which he asks, “Could one reserve the right, for example, to remember something?” This analogy is not a valid comparison. The parties to a contract must be able to execute on them. One can certainly live up to an agreement not to copy something. At this juncture it is impossible to live up to a promise to forget something. You can certainly promise not to disclose something, but how can we tell what’s going on in someone’s mind, and how can someone even control what they remember. Maybe in the future we will have technology that can erase specific memories and read minds. Until that point such contracts are impossible to meet the performance requirements of.

  The short of it is that Kinsella has not made his case against Rothbard, or me, nor Palmer. They both have some failure of understanding of natural rights and the duties they entail.
  

  Published: January 25, 2009 1:01 PM

• newson

  s t mcbeth says:
  "If labor does not confer any level of ownership then, pray tell, how does the system of wage labor work? Why do we compensate laborers?"

  employees fulfill contractual obligations using their bodies. ownership of labour is impossible, it's an intangible. workers own their bodies, not the output of their bodies, which has been traded for a wage. if i refuse to work, i am of no value to any employer. with cessation of output, the work contract is broken, and my fully-owned arse is out the door.

  don't believe me, try it for yourself.

  Published: January 25, 2009 10:51 PM

• lukas

  What’s the court suppose to do in that case? Well if A is to be believed then he is the full owner. So he gets his book back and T cannot make copies, and if he already did then he did so without permission and must make A whole.

  (I'm going to make T female in the following. Makes it easier to write about this without having Ts and As all over the place.)

  Why does T need permission to make copies? She has never entered into any contract with A that would bar her from doing this. Now you will say that the book was not T's rightful property, and I'll agree with you on that. But is ownership a precondition for copying? Unlike mating cattle to produce offspring, producing a copy of a book does not require actual physical control over the book: It only requires a certain state of mind.

  Imagine the following: After having returned the book to A, T sits down at her desk, takes her pen, and reproduces it from memory. How do her pages become (co-)owned by A in this process? She has made him whole by giving back his book, so how can he have any claims on her?

  Published: January 26, 2009 3:16 PM

• Mike

  "(I'm going to make T female in the following. Makes it easier to write about this without having Ts and As all over the place.)

  Why does T need permission to make copies? She has never entered into any contract with A that would bar her from doing this. Now you will say that the book was not T's rightful property, and I'll agree with you on that. But is ownership a precondition for copying? Unlike mating cattle to produce offspring, producing a copy of a book does not require actual physical control over the book: It only requires a certain state of mind.

  Imagine the following: After having returned the book to A, T sits down at her desk, takes her pen, and reproduces it from memory. How do her pages become (co-)owned by A in this process? She has made him whole by giving back his book, so how can he have any claims on her?"

  I think Brian was assuming that "copying" is a way of physically making use of an item, but this does not necessarily need to be the case.

  Suppose B, having contractually agreed to A's copyright, nonetheless prints the contents of the book on an enormous billboard for all the world to see. T passes by the billboard, and transcribes it's contents into her notebook. What can now be said of A's copyright? Certainly, B has violated his contract with A, but A has no claim over the contents of T's notebook. The mere fact that B's billboard rightfully belongs to A has no claim on the transcription in T's notebook.

  Published: January 29, 2009 12:54 PM

• jarle

  I found the example considering the cow and bull being stolen quite amusing. I wish to amend it in the following manner:

  1) Exit thief
  2) Enter alien with replicator

  The Alien, using his superior replicator-technology, creates two clones, one of the cow and one of the bull. He then goes on to breed a herd and starts to sell meat and milk.

  Would the farmer have any grounds for bringing the Alien to court?
  
  On a more serious note, IP should be maintained for the commercial industry. For the individuals, however, it should be abolished. In effect, any idea can be sold to a company, but noone can put restrictions on personal use.

  Published: May 20, 2009 2:14 PM