Comments (68)

• Matthew

  ktibuk et al.,

  I've thought more about your position(s) that IP are one's creations and one therefore possesses property rights over them. To me, it is indeed reasonable to set aside the scarcity argument and explore the position that ideas are creations.

  Taking that position a step further, is it based on the assumption that:
  

  1. As a property owner, one has the right to enjoy use of his property without interference from others, or
  
  
  2. As a property owner, one has the right to exclude others from using his property?
  I infer that you necessarily take the latter position. I'm personally inclined to take the former. I believe that the two positions above are equivalent in the realm of tangible property. One necessarily implies the other. That's why we haven't already had this discussion in terms of tangible property. But in IP they are clearly bifurcated.

  If one makes the first assumption, the argument could not be made that others using one's (identical) idea interferes with his own idea. That would be like saying that someone interfered with my right to my car by selling a similar car on the open market for a price less than I want to sell mine. Or that his driving his car interferes with my rights because I'm no longer driving one that is unique.

  My question is whether I'm correct in interpreting your position on IP. That is, all property rights, tangible or intellectual, give one the right to exclude others from use of his property as opposed to the idea that property rights entitle one to use his property without interference. If I'm correct, would you mind providing a basis in natural law to justify the first position and not the second?

  Published: February 3, 2009 8:47 AM

• ktibuk

  Matthew,

  Both assumptions are correct.

  But there is a confusion about the second assumption and this confusion manifests itself mainly about patent laws.

  An owner may exclude others from using his property, but since "using" implies interaction or access to the property this means "copying" when it comes to IP.

  But if someone else without any interaction or access to an already owned property, homesteads an idea, no one can stop him. Otherwise this would indeed mean using coercion against the property of others and current patent laws fail because of this shortcoming.

  And I should also add that these two assumptions have no difference regarding tangibility of property. They are the same assumptions for both tangible property and IP.

  The difficulty with IP is not an ethical one, but a technical one. Everyone on ethical theoretical basis can examine a scenario about IP and decide the right outcome without any arbitrary judgments.

  But since copying doesn't affect the integrity of the original, it is technically harder to prove in most real life situations.

  And this is ok.

  Some IP owners may not be able protect their property and enforce IP laws but that is life. There are also problems when it comes to enforcing tangible property rights.

  Taxation is theft but none it seems can get away from it, although in theory we know who owns what. Also past justice and restitution is a hard subject when it comes to tangible property.
  

  Published: February 3, 2009 9:09 AM

• Silas Barta

  I'll give my standard replies to articles like these:

  1) And all of this is in contrast to the completely libertarian origin and modern implementation of physical property law, right?

  2) Every criticism you just made of IP applies equally well to EM spectrum rights. Either you have the right to signal a certain way, predicated on stopping others from making the same signal, or you do not.

  Published: February 3, 2009 9:38 AM

• ktibuk

  Also regarding the differences between tangible and intangible property is the handling of "aggression". This confuses a lot of people, because they think aggression is about physical integrity.

  Aggression has nothing to do with physical integrity of matter, it is about the consent of the owner of property.

  If someone willingly goes to a tattoo parlor and gets a tattoo, no one can accuse the artist of aggression because the owner of the body consented to the physical alteration. If he didn't consent then that is aggression.

  Changes in the physical integrity of tangible property can only be used to prove aggression took place which is a technical issue.

  Curiously most, if not all, anti-IP "libertarians" (or IP socialists), concede to this point when it comes to "fraud being aggression". In cases of fraud there is no coercion or threat of coercion but it is well known that fraud is in fact aggression, a form of coercion.

  But when it comes IP it suddenly stops being about the owners consent but physical integrity.

  "You may not have consented but you haven't lost anything so there is no aggression" they claim. Which is clearly contradictory, at least regarding libertarian property right and non aggression theory.
  

  Published: February 3, 2009 10:03 AM

• Matthew

  First, my apologies for the huge font on my first posting. I didn't realize it would end up looking like that using a <ol>.

  As I said in my post, I'm inclined to take the position that property rights only entitle one to enjoy use of his property without interference. I understood your response as saying that one is entitled to that as well.

  I'll ponder your conceptual definition of interference/aggression, but I have difficulty seeing how someone else's performing or recording a song that I wrote interferes with my own use of my creation. I can still have sheet music of it printed up. I can perform it or record it myself. I can ask someone else to do the same.

  Assuming IP rights are legitimate, I agree wholeheartedly with your statement that not all IP rights can be enforced, but that's life. Oh well.

  Assuming IP legitimacy again for a moment, I agree with your view that a "patent" could be obtained my multiple people through independent homesteading. I don't, however, see why that would not also apply to ?copyright? or ?trademark" or whichever forms of IP you do support.

  I'd also like to say that I wish people on all sides of this argument would exercise humility. Matters of interpreting natural law such as this are not perfectly obvious. Rothbard didn't take rigid stances on things like abortion being illegal or not. IP is another issue with many subtleties that need to be clearly delineated and addressed.

  Published: February 3, 2009 10:32 AM

• Inquisitor

  IP couldn't be legitimate even if everything Silas and Ktibuk said held true... their arguments don't go any further than economic efficiency, and unfortunately for Silas's argument, I'm not so attached to EM spectrum rights to say they should stay, as opposed to go along with IP "rights"... if their basis for legitimacy is demonstrated to be the same. So yeah, good riddance to both if that be so.

  Now, as far as the article goes, this is ridiculous. I wish they invested this much energy in defending actual property rights, but oh wait, that'd undermine their own legitimacy...

  Published: February 3, 2009 10:45 AM

• Silas Barta

  Inquisitor, it's clear my arguments go beyond economic efficiency if one of them is to show how IP is equivalent to spectrum rights. If you recognize the parallel but conclude "all the worse for spectrum rights", that's great, but I doubt many libertarians, even ultra-lefty ones, will go along with you.

  By the way, what is the calcualtion argument *but* an argument from economic efficiency? So how is that a strike against my "IP calculation" argument? (I guess I can identify it as "my idea" now, in the sense of having originated it, since everyone who promotes it seems to have gotten it from me, and I haven't seen it anywhere else from the regular calculation arguments' promoters.)

  Published: February 3, 2009 10:57 AM

• ktibuk

  "but I have difficulty seeing how someone else's performing or recording a song that I wrote interferes with my own use of my creation."

  The problem is not "interference of own use".

  In my aggression post I tried to elaborate on this issue.

  You are assuming, that the only way for aggression to take place against someone is to stop him from using his property, or change the physical integrity of the property.

  This is one way of aggression but not all, because fundamentally, aggression is about consent of the individual owner. Property rights already implies this with the above assumptions you have written. Consent, the power to decide what to do with something is the defining aspect of property and without it property rights are meaningless.

  Also in a tangible property case, when you steal my car, the problem is not that I can no more use it, but you aggressed against me and my property by taking my car without my consent.

  Assuming, as most Ip Socialists do, that property rights are positive rights that were formulated by man to better society, leads you to a point where the link between the producer and the owners is severed. Where the important thing is arbitrary "social welfare", because isn't that the goal to begin with? If you pay close attention most of the anti-IP posts here imply this without outright saying it. They claim IP rights stifling innovation, which is I guess is against "social welfare"

  And they get mad when I call them Ip Socialists.

  Published: February 3, 2009 11:16 AM

• Andras

  @Inquisitor,
  What about IP addresses? Where do you stand?

  Published: February 3, 2009 11:20 AM

• Matthew

  ktibuk,

  I haven't thoroughly explored the utilitarian arguments on each side of IP, so I don't have a strong opinion in that regard either way. Those discussions might help in effecting change at the margin in our current state capitalist society, but they aren't particularly relevant to the discussion of the existence of IP rights in a stateless society, which is what I would like to focus on.

  Back to the "aggession" discussion, you say:
  

  You are assuming, that the only way for aggression to take place against someone is to stop him from using his property...

  
  Your statement is correct.

  My intuition says that, in essence, this is the fundamental basis of and the limit to which property rights extend. To me, property is not so much about controlling one's creation as it is being free from interference (I intentionally avoided using the word aggression). Unfortunately, at the moment, I can't really think of a way to justify that position. That said, I don't see how your definition of aggression could be justified in more basic terms either.

  More later I'm sure.

  Published: February 3, 2009 12:27 PM

• JIMB

  Ideas are scarce goods: programmers, engineers, all sorts of people are paid for scarce ideas. The "nonscarcity" argument needs to be divorced from the "government should not enforce IP rights" argument. Once is distinct from the other.

  Published: February 3, 2009 1:12 PM

• SweetLiberty

  Good, marketable ideas are scarce. And again, everyone glosses over the fact that our creators, from musicians to inventors, will simply cease to go on creating without some form of IP protection. The internet provides a way to pirate information and mass distribute it for free, bypassing markets and therefore circumventing the supplier’s incentive to create even though the demand still exists. A “40% drop in signing up new performers each year” indicates that the market cannot sustain new artists, not because the demand isn’t there, but because there is not the ROI that makes financing, marketing and distributing the artist’s works worth while. I’m not advocating Orwellian controls, but I do think a middle ground on copyrights and patents needs to be found or the world will be wondering where John Galt has disappeared to.

  Published: February 3, 2009 1:57 PM

• David Spellman

  "Ideas are not scarce, and therefore cannot be the subject of property rights."

  Back in the days of the Old West, there was not a scarcity of land. Vast tracts of uninhabited land existed in North America, and anyone who wanted to could stake a claim and homestead. Does the fact that there was not a scarcity of land mean you could not claim property rights?

  The Kinsella doctrine could be used to justify running a farmer or rancher off his land in colonial days by saying "There is no scarcity of land, so I am taking yours and you can go settle somewhere else in the vast wilderness!" It doesn't matter if you were there first so long as you have somewhere else to go.

  As a matter of fact, that is exactly how the indigenous american tribes were treated. European settlers took their land and moved them farther and farther west. Apparently the White Man had the same respect for land rights that Mr. Kinsella and Mr. Tucker have for IP rights. The arguments were selfish and self-serving in the days of the Indian Wars, and they are still the same selfish and self-serving arguments in the War on Intellectual Property today. "The only good injun is a dead injun" translates to "The only good good patent is a public domain patent."

  The real aggression has always been constant. The IP property critics claim that defending IP is aggression, but it is no more aggression than defending physical property from misappropriation. The real aggression is those who want something they didn't create who feel justified in taking it from the productive people who do create. In the olden days it was land, cattle, food, gems, and coin. Today the theft has been extended to ideas and the products of very real labor to produce abstract but useful intellectual products.

  Once we at least paid a penny for your thoughts, but now we honestly believe the best things in life are free for the taking.

  Published: February 3, 2009 2:24 PM

• Eric

  Off hand, the spectrum would seem to qualify as physical property, since it obeys the natural laws of physical exclusion - i.e. there can't be two signals existing without interference in the same spectrum.

  This is not a case of two signals merely existing with the same informational content. In fact, by using a 5th dimension of frequency (along with the 4 of space-time) interference can be avoided, and so the spectrum can be divided up into multiple separate property domains. Even the same frequency can be used in separate physical locations, if the signals don't have enough power to interfere.

  IP does not have this exclusion principle. There can be two or more parties using the same idea at the same time without any physical interference.

  The argument is rather about whether or not one can use force to exclude others from making use of the same information.
  

  Published: February 3, 2009 2:36 PM

• Silas Barta

  @Eric: the spectrum would seem to qualify as physical property, since it obeys the natural laws of physical exclusion - i.e. there can't be two signals existing without interference in the same spectrum.

  Yes, but what does "without interference" actually mean here? Literally, for person _P_ to broadcast within frequency band _fo_ "without interference" means:

  -No one else but _P_ will broadcast within _fo_.
  -So, by observing the waves within _fo_, one can infer -- given approprate decoding standards -- what _P_ wishes to communicate.

  What happens when there is "interference"? Well, that second part is gone: you can no longer infer what _P_ wants to communicate by observing _fo_.

  As I'll argue in an upcoming blog post, whether or not you believe in this kind of right has big implications. Because what's going on here is that _P_ is claiming that people don't have a right to do things that will destroy the correlation between his desired communications, and the content of waves within _fo_. And he is doing so based on a previous correlation he established before.

  Look at this in another context: what if, during the early days of homesteading land, I called out a meaningful number every morning. Say, my currect expectations for crop yield. Well, do that long enough and people will start to expect that "the number called out in mornings is Silas's estimate of crop yields." But then if sometime later, other people call out their own numbers, that expectation is no longer valid. The numbers you hear called out in the morning are no longer related to my estimates of crop yield.

  Do I then have a right to stop people from calling out numbers? This situation is perfectly parallel with EM spectrum rights. In both cases:

  1) I established a pattern of making some observable quanitity related to a message I want to send.

  2) People start to expect that observable quantity to correspond to a message I want to send.

  3) The usefulness of that method depends on other people not doing the same thing as me.

  4) I claim the right to stop people from forming a specific pattern with (omg!) their own property.

  So you see, the kind of right asserted in the EM spectrum can arise without using the EM spectrum.

  But, you might think, surely the "calling-out-in-morning" right described in my example has nothing to do with IP. You'd be wrong. If I can have a right to stop others from messing up the correlation I have created in the example, so do I in IP. I can claim that, "if people observe the informational content of Silas's Book, they need to know it's with my authorization, which isn't possible if anyone can transmit such information." Just as I claimed that "if people observe the content of the numbers called out in the morning, they need to know it's my number, which isn't possible if anyone can do that."

  Just as you already believe that "If people observe frequency _fo_, they need to be certain that its informational content was put their by that bandwidth's owner, which isn't possible if anyone can broadcast in _fo_."

  Can you homestead a "pattern of use" like that? Whatever your answer, IP and spectrum rights sink or swim together.

  To anyone responding to this comment: Please, make some attempt to follow the example before dismissing it.

  Published: February 3, 2009 3:01 PM

• Francisco Torres

  2) Every criticism you just made of IP applies equally well to EM spectrum rights.

  This is not correct. The EM Spectrum is a "Spectrum" because it is limited, otherwise it would be called the EM Universe. Ideas cannot be limited.

  Either you have the right to signal a certain way, predicated on stopping others from making the same signal, or you do not.

  It's not the same. You are incorrect in using the EM Spectrum as an example.

  Yes, but what does "without interference" actually mean here?

  Means trying to transmit signals in the same bandwidth. It would be like trying to paint a picture over someone's else painted canvas.

  Instead, if I painted exactly the same picture that someone else already painted, but in MY canvas, that would not be interference. Nevertheless, IP Law goes as far as to say it is, which is absurd.

  Published: February 3, 2009 5:07 PM

• Francisco Torres

  Does the fact that there was not a scarcity of land mean you could not claim property rights?

  Let me know where land is not scarce. I have yet to see a geometric figure of unlimited area that's naturally occurring.

  The Kinsella doctrine could be used to justify running a farmer or rancher off his land in colonial days by saying "There is no scarcity of land, so I am taking yours and you can go settle somewhere else in the vast wilderness!" It doesn't matter if you were there first so long as you have somewhere else to go.

  You're using a strawman argument, Stephen is not arguing that. Besides, it is clear in your example that land is scarce and that the ranchers believe it is scarce, otherwise the ranchers would not have a need to push the natives out, their rationalizations and justifications for their acts notwithstanding.

  The IP property critics claim that defending IP is aggression, but it is no more aggression than defending physical property from misappropriation.

  You're begging the question - IP is not "like" or in absolute ways physical property, but you assume it is anyway to argue that IP Law is the same as protecting physical property. Ideas cannot be property because ideas are non rivalrous and non exclusive, meaning a person cannot hold an idea inside a fence or put it in bubble wrapping if it already spawned in other minds.

  Published: February 3, 2009 5:24 PM

• Silas Barta

  Francisco_Torres: Congratulations on replying to my post without addressing any of the extensive reasoning in it whatsoever. Really helps the discussion along.

  Published: February 3, 2009 5:29 PM

• Francisco Torres

  Silas,
  Congratulations on replying to my post without addressing any of the extensive reasoning in it whatsoever. Really helps the discussion along.

  If your premises are incorrect, then your reasoning cannot be correct. I do not need to address your complete discourse if I can show you that the premises are wrong. In this case, it is fallacious to compare the EM Spectrum to ideas, so your argument cannot stand.

  Published: February 3, 2009 5:49 PM

• Eric

  Silas Barta asks, "Do I then have a right to stop people from calling out numbers?"

  Yes, you would have the right to stop others from calling out numbers, if their doing so trespasses (i.e. can be heard on your property). In this case, it is the sound waves created by the second party that trespasses upon the homesteaded land owner.

  However, you would not have the right to stop them from calling out numbers that you claim to own IF their calling out of numbers does not interfere with your calling out of numbers. For example, suppose they call out the same numbers as you, but they do so out of range of your hearing them (and of anyone listening to you on the homesteaded property). It is NOT that they call out the same number (IP) that is at issue here, it is that they transmit the sound through the same airspace as you which is the trespass.

  With the spectrum, it is the trespass of homesteaded frequencies that is at issue here. The trespass is NOT done solely with one's own property - since the magnetic fields in a particular place and time are the property, not just the transmitters. One can transmit anything one wishes, provided it does not interfere with the magnetic fields generated by a prior homesteader.

  This is no different from interfering with the building of a house on homesteaded property by using force, e.g. a sledge hammer to knock down the building's walls. Naturally, interference can be difficult to define. How loud is loud? How much interference in the spectrum is considered a trespass?

  In a libertarian world, judges would discover over time what rules work the best (this is the common law method). Certainly it would not be perfect, but nothing men do is going to be perfect. It seems pretty clear that there is a problem today with IP and in particular with the laws that are used to enforce it. Good laws don't cause dissension, bad ones do. Few would argue that murder should be permitted (well few outside of government that is).

  Published: February 3, 2009 7:03 PM

• newson

  to silas barta et al:
  bk marcus has made a good case that the state has no place in administering the em spectrum, and that radio was doing just fine before the fcc. ditto for ip.

  http://mises.org/journals/essays/marcus.pdf
  

  Published: February 3, 2009 7:56 PM

• Silas Barta

  newson: Thanks for the link, but I want to make clear that I was just trying to show that IP is every bit as valid as EM spectrum rights, *not* that the state is justified in enforcing either. Remember, there are things that should be done, but not by the state; and there are things that should not be done at all, by anyone. IP and spectrum rights have a valid case for being in the former rather than the latter set.

  Francisco_Torres: You weren't refuting my premises, as you didn't even address them; you were disagreeing with my conclusion, which accomplishes nothing in terms of refuting my reasoning. Yes, we all know my conclusions conflict with your beliefs. The hard part is to tell us *why* you think so.

  Eric: You've just defined away the the problem I've described. There is only "interference" to the extent that people's assumptions about who will do what and when are violated. And that kind of interference happens in numerous ways, not at all restricted to the EM spectrum.

  *Within* the realm of the EM spectrum, the "violated assumption" is that "only Silas broadcasts within frequency band _fo_". Within the realm of my example, the violated assumption is, "only Silas calls out numbers in the morning, and those numbers are his crop yield estimates." The problem is independent of the EM spectrum, and is really an issue of what kinds of patters of behavior get you an exclusive right to that behavior.

  As for your last point, I agree that private law should work out what are valid laws and what aren't, but Stephan_Kinsella's and Jeffrey_Tucker's consistent point is that IP is inherently "statist" and "anti-property rights". That is what I'm addressing.

  Published: February 3, 2009 9:37 PM

• andras

  I might be wrong but I think, beyond EM frequencies, an internet domain name is also a good example for similarities with IP. It has a pattern, it is not tangible, it is registered, it is unlimited and it is enforced.
  They definitely have value, currently.
  Should we respect domain names then?

  Published: February 3, 2009 10:16 PM

• crosson

  I am pleased to provide you the following link.

  http://www.truecrypt.org/

  Published: February 4, 2009 12:34 AM

• Robert C

  First off, I like many other blog visitors think that this constant recent bickering over IP has a negative marginal product for Austrians. The disastrous economic outcome of a reckless fiat legal-tender money regime predicted by ABCT is once again being highlighted before our very eyes. Meanwhile, the most active threads as of late are related to IP, which is among the most esoteric topics in the libertarian world. I think that without convincing people of the validity of basic Austrian economics, few people would be willing to jump straight to supporting the end of intellectual property.

  That being said, I'll bite...

  It seems that one of the biggest arguments for intellectual property is that someone worked hard to create the idea, i.e. ideas have value because of the labor used to create it. Most people who populate this blog dismiss the labor theory of value in the physical realm, so why do so many implicitly use this notion as support in the IP debate?

  Second, I fail to see how the end of IP would necessarily destroy intellectual innovation. The decrease in entertainment investment may have something to do with consumers being more attracted to substitutes. I can't prove that, but it merits investigation. Video gaming, for instance, has seen a continued increase in consumer spending, and the most common way of asserting IP "rights" in that sector involves privately denying pirates access to the network gaming servers.

  Third, even in the case of patents, are there not ways to profit from being the first adopter of a new technology if even for a short time? Would not a company be willing to continue paying large sums to engineers in exchange for confidentiality agreements that enable only that company to use the ideas first? By the time a design can be copied and implemented by a third-party observer, enough time may be able to pass such that the first mover can still make a handsome profit. Further, an engineer can go short or buy put options on companies that use competing ideas (that's probably illegal due to insider trading laws, but I consider those laws illegitimate to begin with).

  If I, an unremarkable undergraduate at an unprestigious state school, can think of possible ways to profit without IP, can't one of the brighter businessmen of this world think of even better ways? I'm guessing that people use IP just because it's available, not because it's totally necessary for innovation to take place.

  But really, why are we bickering over this issue when we have something of a "gospel" to communicate to the rest of the world? I doubt that the anti-IP argument, regardless of how much I doubt the necessity of IP, can have an appreciable "marginal liberty product." In fact, I'd say that the opportunity cost of these arguments may even push said product into the red.

  Published: February 4, 2009 12:41 AM

• ktibuk

  "It seems that one of the biggest arguments for intellectual property is that someone worked hard to create the idea, i.e. ideas have value because of the labor used to create it. Most people who populate this blog dismiss the labor theory of value in the physical realm, so why do so many implicitly use this notion as support in the IP debate?"

  Homesteading a natural resource by mixing your labor is the basis of all property rights.

  Labor theory of value is something different. It states a good must fetch a certain price just because there was certain amount of labor spent on it.

  One is about homesteading property, the other is economic value.

  But I can understand your confusion because IP socialists keep economics and ethics mixed up all the time.

  For example scarcity is a purely economics concept but somehow it becomes the only prerequisite of property. Which is absurd but memorized and repeated constantly by IP socialists.

  Published: February 4, 2009 3:14 AM

• Peter Surda

  @andras
  Regarding IPs and domains. You are free to "claim" any IP and domain you wish, even those that are already being used by anyone else. However, it won't be of any practical use to you unless you manage to persuade other people to route the IP and resolve the domain, i.e. integrate it within the existing registration infrastructure. While it is true that there is a certain level of enforcement in both areas, neither is done by a government, and you are free to "fork" them, i.e. create new, competing registration infrastructure. The reason why you don't see much of competition is due to network effects. It is not the government that's preventing you from competing, rather it is not profitable.

  Published: February 4, 2009 5:19 AM

• Peter Surda

  @andras
  Regarding IPs and domains. You are free to "claim" any IP and domain you wish, even those that are already being used by anyone else. However, it won't be of any practical use to you unless you manage to persuade other people to route the IP and resolve the domain, i.e. integrate it within the existing registration infrastructure. While it is true that there is a certain level of enforcement in both areas, neither is done by a government, and you are free to "fork" them, i.e. create new, competing registration infrastructure. The reason why you don't see much of competition is due to network effects. It is not the government that's preventing you from competing, rather it is not profitable.

  Published: February 4, 2009 5:19 AM

• Lou Ohls

  Perhaps it is the struggle, not the outcome, that is important. The Sperry corporation did some research on how children learn at Stanford University in the 1950s. They didnt copywrite, and left it on the shelf. It became the foundation for Apple's "Desktop" and Microsoft's "Windows." But where is Sperry? Xerox did some work on Graphic User Interface. They left it in the public domaine. It provided a foundation for a culture shift to virtual interaction; where is Xerox?

  On the other hand, the financial industry started bundling debt obligations and income streams in the '70s. They treated each bundle as "proprietary information," securitized the bundles, thus restricting transparency, as they sold the products, both to rating agencies and to investors. The salesmen created a rather large, profitable industry. The information about the process, if not the individual bundles, has been available, for free, to fiduciaries and investors from the '90s, even as each bundle was "protected." Yet today, we have economic "wheezeandgasp," as governments coerce taxpayers into owning "toxic assets." And neither the governments, nor the taxpayers, have a clue about the contents of their "pig in a poke."

  Exactly the same process applies to health care. When you enter a doctor's office, your disease, disability, deformity, becomes the doctor's "Intellectual Property." Even the hospital, with whom the doctor has contracts, has limited access to this information. If you travel, and suffer health problems, the situation is magnified, as the players have to negotiate a contract before you receive informed treatment. The economic result is that the average emergency room visit, by whomever, costs over $10,000, most of that is administrative and "cover your ass" procedures.

  The problem is not always the "scarcity of information", but scarcity of effort to use the information.

  Published: February 4, 2009 8:38 AM

• Robert C

  @ktibuk:

  Thanks for clearing up that one bit of confusion re: labor theory vs homesteading. I'll sideline myself on this topic now, since I won't consider it relevant until the rest of the state is dismantled... besides, I'd expect more explicit contract arrangements over IP in a stateless society. See y'all on another thread!

  Published: February 4, 2009 9:58 AM

• Eric

  Silas writes,

  "*Within* the realm of the EM spectrum, the "violated assumption" is that "only Silas broadcasts within frequency band _fo_". Within the realm of my example, the violated assumption is, "only Silas calls out numbers in the morning, and those numbers are his crop yield estimates." The problem is independent of the EM spectrum, and is really an issue of what kinds of patters of behavior get you an exclusive right to that behavior."

  Homesteading is the pattern of behavior that gets you the exclusive right to use property. Basiclally, you find something unused in nature and you combine your labor with nature. Again, it's not completely black and white, since one might get a bit greedy about homesteading, and claim more than one actually homesteads.

  For example, the cattle ranchers of the old west would often claim they owned the entire range over which they would drive their cattle and rejected any homesteading done by small ranchers (at least this is what is shown in movies about the problem).

  But with IP, there is nothing physical to call one's property. Many people can independently discover the same idea.

  It would not even be possible to know if someone else had the same idea until and unless one party were to make it known by, for example, trying to sell a copy of the idea to others.

  With physical property, it is impossible for two to be using it at the same time. Perhaps this then is part of the definition of interference that you are looking for.

  Should govt be the arbitrator of homesteads? I don't know. Rothbard talks about homesteading and sets up private protection companies as the protector, but I'm not sure he is right when he says that they wouldn't just become state like in the end.

  
  

  Published: February 4, 2009 11:34 AM

• Sasha Radeta

  Basic confusion comes from IP-opponents who keep talking about "idea ownership" and impossibility of this imaginary concept.

  However, basic premise of copyright is that it is applied only to real, tangible property (such as books, CDs, etc). Owners of such property have an absolute right to restrict others to USE it (or allow only certain USES) in any way they see fit. However, patents are completely different issue and Rothbard covered this issue very well.

  We all agree that "trespass" by definition is an "unauthorized use" of one's property by another person. The issue here is: what constitutes "use" of one's real property?

  To answer this question correctly, imagine the case in which some sick individual is following your child everywhere and records on camera his/her every move in public... What if he's even spying on your property from a nearby tree, and even broadcasts your child's privacy on internet -- for huge sums of money paid by other sick individuals. Would that constitute trespass?

  According to Mises's definition of ownership rights, it certainly would. As Mises correctly noticed, "ownership means full control of the services that can be derived from a good." No other definition of ownership would make any sense (try phrasing an alternative).

  Would unauthorized internet broadcast of your private life constitute "service derived from your real property" (and your body is your property, since you have an absolute control over its functions)? Well, I think this example illustrates a clear violation of your ownership rights -- or trespass. Any gains resulting from such trespass would belong to you, plus all punitive damages.

  ________________________________________

  Now let's translate this into a copyright issue:

  - According to implied contracts, you agree to use someone's book or CD in a strictly limited fashion by purchasing only a personal, non-commercial use for $14 (instead of paying large amounts of money for co-ownership or publishing rights). If you decide to reprint that book and start distributing it -- you are in a clear violation of a free-market contract, which makes you liable for all damages that may occur as a result of your action (theft).

  - Likewise, if a third party who never purchased any publishing rights finds a book or CD on a street -- and than decides to assume full control of that property without paying a dime to the books rightful owner (author or publisher) -- this is an obvious example of trespass. Such trespasser is liable for all injuries resulting from that trespass (tort) and book's rightful owner should own all proceeds derived from use of his property.

  -------------------------------------------------------------

  It's not a coincidence that legendary Enemy of the state, the ultimate free market anarchist Murray Rothbard was a defender of copyright -- while attacking state-granted patents that have nothing to do with property rights.

  Published: February 4, 2009 1:09 PM

• Rockyway

  In my opinion, the French (etc.) are inconsistent in how they defend property rights.
  - This is the same government that has given every 18 yr. old the right to have a 'free' copy of any newspaper of their choice; delivered to their door. (The state will even pick up the bill for delivery.) The cost will be forcibly extracted from the tax paying citizen; so no protection of his property rights.
  - if France is like Canada, then any citizen with a mailbox is forced to accept junk mail; no protection of his property rights if he should not want to accept junk mail.
  - Socialism itself is a gross violation of property rights; but here we have politicians claiming to defend property rights. (Only a few limited property rights it would appear.)
  - what about so called 'free education' that is offered to all students; isn't this another violation of property rights? (i.e. as tax paying citizens are forced to pay for it whether they want to or not.)
  - I'm not someone who is for the elimination of all copyright laws; but I just wanted to point out some inconsistencies in the proposed legislation. (I personally prefer reducing the years allotted to copyright, as a solution to this problem.)
  

  Published: February 4, 2009 1:27 PM

• Eric

  Sasha ,

  In the sense that a copyright is a private contract between two parties where one grants limited use to some material, what happens when this contract is violated and the material is allowed to be copied and then sold. Who is then responsible for losses to the copyright holder?

  Is the buyer of the copied material liable? What of an unknowing buyer of the material, 5 or 10 transactions down the chain? Who is responsible? How much are they liable for?

  Should every purchase of material that can be considered IP require the equivalent of title insurance, as in real estate purchases? Should the cost of this insurance be socialized or private?

  I know Rothbard has talked about this in his Ethics of Liberty, but I forget his conclusion. However, what I do know is that he did not write that the solution should be through government enforcers.

  
  

  Published: February 4, 2009 1:56 PM

• unger

  ktibuk: "Homesteading a natural resource by mixing your labor is the basis of all property rights."

  Great. Welcome to the 'IP-socialist' club. Took you long enough to get here, didn't it? You didn't homestead or mix your labor with *my* resources, present or future - say, my hard drive, my paper, etc., etc. - and therefore you confess that, no matter what idea you dreamed up, you can have absolutely no right to require me not to configure my resources in particular ways, or distribute said configurations as I please. I'm glad you've finally seen the light.

  Or were you lying? A fifth-columnist among the libertarians, secretly vowing, "Everything in the RIAA, nothing outside the RIAA, nothing against the RIAA"? You can't have it both ways. There's no third option. IP claimants - patent or copyright - basically claim final authority over absolutely all matter in the universe, regardless of who found or will find it. Idea-creators either legitimately have such authority or they don't, but if they do, homesteading natural resources by mixing labor with them is very plainly *not* the basis of property rights. And if that's really your position, call us IP socialists all you like: you're an IP fascist.

  Published: February 4, 2009 2:12 PM

• Cosmin

  An idea is not transferable. That is why you can't share it, or sell it, or patent it, or "copyright" it. You can control it by keeping it to yourself, or by expressing it in a way that is valued by others.
  Someone else can have an - extremely - similar idea by independant discovery, or from watching you work, or from observing the product you sold on the market, but it is HIS idea, regardless of how he "acquired" it. Thus, he can, in turn, control his idea by keeping it to himself, or by expresing it in a way that is valued on the market, which can be similar or different to the way you expressed it.
  This acquisition of ideas is an unalienable condition of the human existence. A contract can no more stop you from acquiring an idea than it can stop you from seeing the colour green.

  Published: February 4, 2009 2:22 PM

• Artisan

  unger

  "Or were you lying? Call us IP socialists all you like: you're an IP fascist."

  May I call you a child, then?

  Frankly, does this kind of talk bring anyone further? Not many people care about free market. Even less about IP-opposition so if there's some truth to it (which I believe) it's not with a guy claiming indignation that the majority is going to change its view.

  One of the less impressive things about free market IP-opponents all over the blogs (except Jeffrey Tucker admittedly) is their strong emotionality.

  Published: February 4, 2009 2:54 PM

• unger

  You may call me anything you like; I'll answer to 'child' as well as 'El Conquistador', so long as you spell my name right. The comparison to fascism was, however, thoroughly warranted. IP is fundamentally totalitarian. "Everything in the RIAA, nothing outside the RIAA, nothing against the RIAA." If you disagree with that, then you agree that there exist materials to which their rule does not extend. We 'IP socialists' make the oh-so-very-socialist suggestion that those would be things other people homesteaded or bought. But if you don't disagree with that - if IP claimants, the RIAA for example, really have rights to control everything in the entire universe - then you're ...totalitarian.

  And as for emotionalism, what do you make of people yelling 'IP socialist!!!!!!!1111oneoneone'? Naw, there's no emotion there, no suh - even though it's a very cheap (and moreover, blatantly false: socialists are many things, but Lockeans they ain't) attempt to link us with Austrians' sworn enemies. Please check your double standards and tar brushes at the door - or if you're going to keep your tar brushes, use them appropriately.

  Published: February 4, 2009 6:13 PM

• newson

  to sasha/eric:
  p 123 of "the ethics of liberty" (162/336 pdf) is where rothbard talks about copyright.

  i think he's wrong to use the word "theft"; that would imply that the state does have a role to play, as the administrator of the penal code.

  i think kinsella has advanced and clarified the ip argument.

  Published: February 4, 2009 8:22 PM

• Martin OB

  @Sasha

  "Basic confusion comes from IP-opponents who keep talking about "idea ownership" and impossibility of this imaginary concept.

  However, basic premise of copyright is that it is applied only to real, tangible property (such as books, CDs, etc). Owners of such property have an absolute right to restrict others to USE it (or allow only certain USES) in any way they see fit. However, patents are completely different issue and Rothbard covered this issue very well."

  Well, if you try to derive IP rights from contracts about the use of physical objects, without claiming the existence of IP, then you can only enforce them on people who have signed the contract, so they become extremely ineffective and therefore irrelevant. Suppose that A sells a book to B, under a contract saying "you agree not to copy this book or let anyone copy it. If you copy it to another physical support, this physical support becomes my property".

  Then B reads the book aloud to C, who writes it down using his own means. So, you can say that B broke the contract, but C didn't sign any contract, so he is free to distribute the book he wrote down. B can sign a contract whereby he agrees to forego his own property (a newly made physical copy) to A in such and such circumstances, but he can never "agree" to forego C's property (his brain and the book he wrote down), because it's not B's to begin with.

  Property can be defined as the right to control the physical access to a resource. There's no need to talk about "derived services"; since this fact is, well, derived from such control. The fact that something is your property does not mean that you may restrict any service "derived" from its mere existence. For instance, if you own a night club where only people who can dance like Tony Manero are let in, then if someone else opens a Manero-style dancing school, this new service is derived from the existence of your property, and you have no right to control it. Even if your clients signed a contract saying they would keep the existence of your night club a secret, and one of them violated the contract by making this information public, this doesn't mean you have the right to close the dancing school that someone opened based on this information.

  Published: February 5, 2009 5:55 AM

• ktibuk

  "Well, if you try to derive IP rights from contracts about the use of physical objects, without claiming the existence of IP, then you can only enforce them on people who have signed the contract, so they become extremely ineffective and therefore irrelevant."

  This is true. Pyhsical objects that the IP is embedded in and contracts are only tools for the techincal issue of protecting property.

  This is also true for contracts regarding physical objects.

  A house is someones property, as an ethical property right, before any authority issue a "title", or the owner rents it out with a "lease contract". Neither the "official title" or the "lease contract" makes the house some ones property.

  Ideas are property because they are homesteaded by individuals.

  Published: February 5, 2009 6:45 AM

• Cosmin

  IP is not imbedded in any physical object, ktibuk.
  And ideas are not property because they are not homesteaded by individuals. There is no entity outside of ourselves, called an idea, that you can homestead.
  An idea is simply understanding some part of the world we live in. If you understand something about this world and then use that understanding to build an object, I can more easily understand that same world event by observing the object you've built. You can't stop me from understanding.
  My idea and your idea are completely separate, even if they both describe the same event in an extremely similar fashion.

  Published: February 5, 2009 11:24 AM

• Silas Barta

  @Cosmin: Watch this:

  Radio waves are not imbedded in any physical object, ktibuk.
  And radio frequencies are not property because they are not homesteaded by individuals. There is no entity outside of ourselves, called a radio frequency, that you can homestead.
  A radio frequency is simply understanding some part of the world we live in. If you understand something about this world and then use that understanding to build an object, I can more easily understand that same world event by observing the object you've built. You can't stop me from understanding.
  My transmission and your transmission are completely separate, even if they both reference the same frequency in an extremely similar fashion.
  ***

  When will people start admitting the similarities?

  Published: February 5, 2009 12:08 PM

• Cosmin

  Silas: I understand the analogy you're trying to make, but I'm not sure how it applies. I'm no engineer, but I'm pretty sure radio frequencies would exist in the universe even in the absence of sentient beings. Are you sure radio waves aren't imbedded in physical objects? Ideas, on the other hand...
  Having said that, if my transmission and your transmission are completely separate even if they both reference the same frequency, I'm not sure why you would be able to homestead a frequency. I'm not an engineer so I'm not sure how the whole thing works, so I can't take position on the EM spectrum debate, but I don't see the relevance in a discussion about ideas.

  Published: February 5, 2009 12:38 PM

• Silas Barta

  @Cosmin: I welcome you to read this brief post on my blog, which expands it. But to respond more directly:

  I'm no engineer, but I'm pretty sure radio frequencies would exist in the universe even in the absence of sentient beings.

  Yes, and so would land and other objects. Just not the legal or moral rights therein.

  Are you sure radio waves aren't imbedded in physical objects? Ideas, on the other hand..

  Ideas *and* waves (including radio waves) are defined with respect to an (object-independent) pattern, rathern than with respect to specific protons or molecules, as property rights are. A wave is simply a pattern of motion. Consider a compression wave in a slinky: If you compress a stretched-out slinky from one end, the first 5 coils are clumped together. Then, right afterword, only coils 2 thru 6 are clumped, then 3 thru 7, then 4 thru 8, etc.

  What we call "the motion of a wave" is the aggregate effect of individual motions that adhere to a patter. The wave may go 5 feet, while each coil never moves from its original place more than a few inches.

  When one owns a radio wave, one is owning the right to gesticulate any electronic device in such a way that they cause patterns to form at a specific radio frequency. The right is therefore over a pattern of motion.

  Just like ideas.

  If you can own the right to form an EM pattern (and stop others from forming it), then you can own the right to form an idea (and stop others from forming it).

  Published: February 5, 2009 12:57 PM

• Sasha Radeta

  Martin OB,

  thanks for your response, you said:

  =====================================
  "Well, if you try to derive IP rights from contracts about the use of physical objects, without claiming the existence of IP, then you can only enforce them on people who have signed the contract, so they become extremely ineffective and therefore irrelevant."
  =====================================

  However, I already addressed such issue. Once again, if ownership by definition implies "full control of the services that can be derived from a good" -- that means that any unauthorized "third party" use that creates an injury is constituting a tort -- not breach of contract. Therefore, even if you find some author's book on the street (no contract at all), it does not mean that you can assume the book's full ownership and start making unauthorized copies (resulting in economic injury to the signed owner).

  A separate issues are free market contracts, in which, by the force of implied contract, any buyer can distinguish between the purchase of limited use (for few dollars) and the purchase of co-ownership and publishing rights (much more expensive). Anyone who violates such contract is basically committing a theft.

  Once again, ideas cannot be copyrighted -- only real, tangible property can.

  PS
  Eric, bona fide purchaser of unauthorized copies is not liable for any tort -- its distributor is. Every copyrighted material has its rightful owner's information (author, publisher) -- and whoever creates injury to them through unauthorized use of their property should be liable for tort.

  Published: February 5, 2009 1:13 PM

• Sasha Radeta

  When we copyright a book, we don't claim ownership over some "pattern" of ink on paper... such pattern on unauthorized copies can only be used as evidence of someone's trespassing (unauthorized use) against real tangible property.

  Many authors have a basic tactic of economic survival by selling only strictly limited use of their goods -- and libertarian common law doctrine would not prevent them to do so.

  Some authors and publishers choose to advertise their work by allowing others to see their work online for free -- while still having their hard-copies copyrighted (to make money on those who enjoy reading real books) -- and this should be their free choice. Or some authors who are healthy and mobile can make money by holding lectures... however, such business models should not be forced upon anyone who wishes to use copyright (restrictions on commercial use of their real, tangible property).

  Published: February 5, 2009 1:35 PM

• Cosmin

  Silas, you said: "Just like ideas."
  You made an unjustified logical leap here.

  You earlier said this phrase that illustrates your misunderstanding: "Ideas *and* waves (including radio waves) are defined with respect to an (object-independent) pattern, rathern than with respect to specific protons or molecules, as property rights are."
  Ideas are NOT defined with respect to a pattern! Ideas are defined with respect to a sentient being identifying a "pattern".
  If you understand the workings of a device, you can't transfer your understanding to me. You can sell the presentation of your idea or the realization of your idea but you can't transfer your idea. By presenting it to me, you can create an environment where I can develop an understanding of the same device. But I still created my understanding for myself, based on my technical expertise and observation of the world around me.
  Thus, you can never "own the right to form an idea or stop others from forming it", except by riddling all others with bullets.

  Published: February 5, 2009 1:57 PM

• Martin OB

  @Sasha

  "However, I already addressed such issue. Once again, if ownership by definition implies "full control of the services that can be derived from a good" -- that means that any unauthorized "third party" use that creates an injury is constituting a tort -- not breach of contract. Therefore, even if you find some author's book on the street (no contract at all), it does not mean that you can assume the book's full ownership and start making unauthorized copies (resulting in economic injury to the signed owner)."

  Right, that's why I said I reject such a definition of property, I explained why, and I offered and alternative definition in the last paragraph of my previous reply. I think that the definition you advanced begs the question (ie, if I accept your definition I'm obliged to conclude that either you are right or there's no property at all) and leads to absurd conclusions, as described.

  Regards,
  

  Published: February 5, 2009 4:38 PM

• unger

  Silas: We don't recognize the similarities between IP and EM spectrum use mostly because there aren't any. No radio operator ever claimed the right to beat, imprison, or kill absolutely anyone, anywhere, who transmitted on a particular frequency. Why? Because radio transmissions have a limited useful range: signal strength decreases with the cube of the distance from source. Why's that? Well, when you think of the particles inv--

  ...wait, particles? You mean, *stuff*?

  That's right. Radio transmissions are basically tossing photons out into the void. If EM spectrum rights exist, they're perfectly understandable as standard property rights. They don't deal with idealized patterns; they deal with *stuff*. These photons here, not those photons over there - which may, after all, be somebody else's. Interfere with my photons and it's no different from interfering with my house. But depending on power and distance, it's perfectly possible - and more to the point, commonly done in the real world - for two people to transmit signals in the same frequency without bothering each other.

  It should be obvious - and rest assured it *is* obvious to The Rest Of Us - that IP fascism's claims are of a wholly different, *universal* nature. If it's illegal to configure my hard drive to contain some insipid but copyrighted noise here, it's just as illegal to do it around Alpha Centauri, or even in galaxy IOK-1 - and that not because doing so would interfere with anyone's copy here, but because the RIAA simply claims veto rights over every atom in existence.

  Published: February 5, 2009 5:00 PM

• unger

  ...I add: veto rights which cannot help but trump any physical property rights acquired through mere homesteading or purchase.

  Which means, simply, either Locke was right or he wasn't. If he was, there is and can be no IP. What's mine is mine and I can do with it as I please without your interference, no matter what you dreamed up. If he wasn't, then there are no solid property rights. What's 'mine' isn't mine at bottom, and all exists at the sufferance or mercy of the censors.

  There is no third option.

  Published: February 5, 2009 5:09 PM

• Martin OB

  @kitbuk

  "Ideas are property because they are homesteaded by individuals."

  But IIRC, you are against patents. For instance, in another thread you said: "Nobody is defending the patents (and patent laws) that can be the subject of independent discovery".

  I thought your defense of IP was based on the rights one has on his own physical property, including the right to sell it under whatever conditions one may choose. If instead you want to base it on the idea that you can "homestead" an idea, then independent discovery should not be an impediment to enforce your supposed rights. If the thing the author owns is the pattern itself, and he has the right to prevent innocent third parties from using their physical property as they see fit, in the name of protecting the author's exclusive right to this pattern, then what difference does it make whether or not there's a causal, physical connection? Even with this requirement, you are not deriving the copyright from physical ownership; you are postulating it to the detriment of physical ownership, therefore the causal connection requirement buys you nothing in terms of justification.

  BTW, the idea that you can homestead an idea is in itself an idea, therefore the first person to come up with this notion can homestead it and its negation. So if it were taken seriously, then the very act of debating about the topic would be an infringement of IP ;)

  Regards,
  

  Published: February 5, 2009 6:12 PM

• Sasha Radeta

  Martin OB,

  your definition of property as: "the right to control the physical access to a resource" is an incomplete one.

  You don't have to physically access someone's property to violate his substantial property rights. As you could see from my stalking examples, your definition would lead to absurd situations of legalized rape and that's why I didn't address that issue.

  Contract law always rests on ownership rights and the principle of "consideration" must be present. Otherwise, you can claim that a worker does not have a right to "control services that can be derived from his body (property)" - he could never be able to collect his wages from an employer.

  Mises's definition still holds...

  Published: February 6, 2009 2:47 AM

• ktibuk

  "IP is not imbedded in any physical object, ktibuk."

  Yes they are. The physical object maybe brain tissue, a piece of paper, or a digital media but ideas are always embedded in some physical, tangible object.

  "And ideas are not property because they are not homesteaded by individuals. There is no entity outside of ourselves, called an idea, that you can homestead."

  Ideas are abstract reflections of things that are outside of ourselves. If you were raised in a vacuum where your senses couldn't help you gather, homestead, those reflections of outside things, you couldnt homestead an idea.

  "An idea is simply understanding some part of the world we live in. If you understand something about this world and then use that understanding to build an object, I can more easily understand that same world event by observing the object you've built. You can't stop me from understanding."

  I don't want to stop you homesteading you idea. There are basicly two ways of gathering an idea. One is homesteading, originating, the other is copying, getting it from some one else. I am saying copying without consent is aggression.

  "My idea and your idea are completely separate, even if they both describe the same event in an extremely similar fashion."

  It may very well be, and we would both own our own ideas then. And this would be fine.

  Published: February 6, 2009 3:36 AM

• ktibuk

  "But IIRC, you are against patents. For instance, in another thread you said: "Nobody is defending the patents (and patent laws) that can be the subject of independent discovery"."

  Yes I am but that is because different individuals can homestead similar, or even the same ideas, independently. I am against copying without consent, which is aggression. I place no restrictions on homesteading.

  "I thought your defense of IP was based on the rights one has on his own physical property, including the right to sell it under whatever conditions one may choose."

  No, physical property just helps protect IP, which is a technical issue. Ethically I say ideas can be homesteaded and owned.

  "If instead you want to base it on the idea that you can "homestead" an idea, then independent discovery should not be an impediment to enforce your supposed rights."

  This doesn't follow at all. I am saying the important thing, the only thing that matters when it comes to property is the theory of homesteading. If you have an idea, either you homesteaded it or you got it from someone else. And if you got it from someone else you either got it legitimately (as a gift or part of an exchange) or illegitimately (against the wishes of the owner). If you got it, against the wishes of an owner you committed aggression.

  "If the thing the author owns is the pattern itself, and he has the right to prevent innocent third parties from using their physical property as they see fit, in the name of protecting the author's exclusive right to this pattern, then what difference does it make whether or not there's a causal, physical connection?"

  No, he has the right to stop third parties from copying the pattern he homesteaded, he can not stop them to homestead their own similar pattern. There is a difference between copying and homesteading. Two people living in isolated islands, may not copy from each other but they may very well homestead their own ideas.

  I don't quite get what you mean by causal and physical connection.

  Published: February 6, 2009 3:53 AM

• ktibuk

  "BTW, the idea that you can homestead an idea is in itself an idea, therefore the first person to come up with this notion can homestead it and its negation. So if it were taken seriously, then the very act of debating about the topic would be an infringement of IP ;)"

  If there is no justified claim that "a unique idea can only be homesteaded by one individual" ( and I don't think anyone can seriously claim this), there is no negation or contradiction at all.

  The "theory of homesteading" could be homesteaded by many different people, at different places or times. The most prominent was John Locke, but I am sure many people unknown to us thought of similar, or even the same thing in the past.

  Published: February 6, 2009 4:26 AM

• Martin OB

  @ktibuk

  "If there is no justified claim that "a unique idea can only be homesteaded by one individual" ( and I don't think anyone can seriously claim this), there is no negation or contradiction at all."

  Let's see. Suppose person A was the first to have the idea that an idea can be homestead. Then A tells this idea to B, under the condition that B will keep it secret. Then B breaks the contract and tells everyone about A's idea. Now no-one else has the opportunity to independently discover the idea (or its negation), because they already know it, because B told them. So their possession of the idea is illegitimate and they can't use it in argumentation without A's consent. There you have it.
  

  Published: February 6, 2009 9:29 AM

• Martin OB

  @Sasha

  "You don't have to physically access someone's property to violate his substantial property rights. As you could see from my stalking examples, your definition would lead to absurd situations of legalized rape and that's why I didn't address that issue."

  Your examples were not about rape, they were about defamation (how could you ever rape someone without physical access?). I don't believe that someone has the right to prevent others from using footage taken in public places, except if they signed a contract to the effect.

  Controlling the use of one's image is also a case of IP, and I don't accept it, so I find your examples uncompelling. Just like the definition of property you gave, these self-image-ownership examples also beg the question.

  BTW, care to provide a link about where Mises used this definition, please? I'd like to get some context.

  Regards,

  Published: February 6, 2009 9:47 AM

• ktibuk

  @Martin

  That scenario just create a possibility that someone else might have the ability to copy the original idea, it doesn't make independent discovery impossible. If you think it does, it means you are assuming access to the minds of the rest of humans that live and will live in the future.

  Published: February 6, 2009 11:04 AM

• Rockyway

  The French government is against people downloading things from the internet; (this was the original topic) but don't they have themselves largely to blame for this phenomenon? Haven't they caused the feeling (via the welfare state) among people that things should be free?

  The socialist state offers (to at least some classes) everything from housing, education, and food to medical care for free. This has caused a feeling of entitlement in many people; especially the young generation.

  For most people this isn't a position they've come to by philosophical reflection, but merely a feeling; the spirit of the age if you will. (What we see here are the old revolutionaries saying to the young; ''this far and no further.")

  p.s. Isn't there an irony in the French government giving young people free newspapers, but not allowing them free downloads?
  

  Published: February 6, 2009 11:35 AM

• Sasha Radeta

  Martin OB,

  I didn't use the term "rape" literally, but I think my examples were extreme enough to convince most libertarians that your definition of ownership rights is not precise enough to protect our lives and privacy. With common-day surveillance equipment, one does not need physical access to do harms I described. That's the reason why state is in love with your definition... Try reductio ad absurdum approach: if a definition of "ownership" does not protect humans from such invasions - just try to consider a different one.

  ---------------------------------------------------------------
  As I stated, services that can be derived from our property (including our labor) are all real forms of consideration in any contract -- and that's why Mises's definition logically holds. By legally controlling services that can be derived from us, we are able to seek compensation for our labor, even when it does not involve any "physical access" to our bodies...

  http://mises.org/humanaction/chap24sec4.asp

  PS
  All the talk about "idea ownership" or impossibility thereof seems to be nothing more than a straw man argument, purposefully planted on Mises.org. Even statist textbooks never claimed that ideas can be copyrighted. Only real forms of authorship (private property without any doubt) can be subject to copyright.

  Published: February 7, 2009 3:21 AM

• Martin OB

  @ktibuk

  "That scenario just create a possibility that someone else might have the ability to copy the original idea, it doesn't make independent discovery impossible. If you think it does, it means you are assuming access to the minds of the rest of humans that live and will live in the future."

  How so? I'm not assuming access to the mind of anyone. I'm just assuming that the new idea is so widely publicized that everyone knows it before they can independently discover it.

  If you tell me an idea, then it's indeed impossible for me to discover it independently, by definition. If everyone is told about the idea, everyone is precluded from independent discovery of the idea.

  Published: February 7, 2009 11:43 AM

• Martin OB

  @Sasha

  [--
  I didn't use the term "rape" literally, but I think my examples were extreme enough to convince most libertarians that your definition of ownership rights is not precise enough to protect our lives and privacy.
  --]

  You do realize that most people, libertarian or not, find a big ethical, legal and factual difference between rape and defamation, right? I'd say that virtually all libertarians think rape is an aggression and physical coercion against the rapist is justified.

  OTOH, most libertarians I've talked to think that freedom of expression includes the right to defame and make people embarrassed. If you are doing something you are ashamed of, don't do it in public. If you do it where people can see it, then they are allowed to record it. Even if you do it in your porch, people can see it from the street, so it's up to them to take footage of it. So, do it indoors. If they send X-rays to see through your wall, they are invading your property, but if they just record it with an infrared camera, they are not invading your property, so if you are worried about that possibility, you can either use some technology to prevent your emission of a distinct infrared signal (for instance, thicker walls, possibly with embedded heat sources to increase the thermal noise) or you can move to a fenced community where everyone must sign a contract not to spy on anyone.

  Private fenced communities are my preferred solution to all those cases where you don't want to put up with some annoying conduct by your neighbors, but making this conduct illegal would be against libertarian principles.

  [--
  With common-day surveillance equipment, one does not need physical access to do harms I described. That's the reason why state is in love with your definition... Try reductio ad absurdum approach: if a definition of "ownership" does not protect humans from such invasions - just try to consider a different one."
  --]

  Far from being in love with my definition, the State rather hates it. Most legal frameworks nowadays are chock-full of "ifs" and "buts" about your right to control your physical property. Intellectual monopoly (so-called IP) and reputation rights are just some of those limitations.

  Most legal systems have tight controls about how you are allowed to use your capital goods. Labor legislation is an obvious example. In principle, these limitations can go so far that your ownership of the means becomes irrelevant, and the State has the effective control of production. This is what Mises warned about with his definition and explanation of property in Human Action (BTW, thanks for the link). He was focusing on what the State allows you to do with your own means (derive from them any services you may choose to, either for you or for other people, either for free of for a fee), not on your alleged right to prevent others from taking advantage of the mere fact that you are using your means in a particular way, thus providing some kind of "service" they have to pay for.
  

  Published: February 7, 2009 1:01 PM

• Sasha Radeta

  Martin OB:
  "Private fenced communities are my preferred solution to all those cases where you don't want to put up with some annoying conduct by your neighbors"

  Not even fenced communities can protect you from a neighbor that would stalk your child and broadcast her life online, revealing her identity and private moments to millions of mentally sick individuals... (if you call such action “defamation” or a mere “embarrassment” the incorrect definition of property rights is the least of your problems).

  In other words, a perfect solution to satisfy your definition of property rights is to put us all in prison. We should all live behind bars and leaded paint to satisfy your definition of property rights. Like I said, try reductio ad absurdum: when a "libertarian" premise takes you to a conclusion that we should all live in prison of some sort - that definition must be wrong.

  Martin OB:
  "This is what Mises warned about with his definition and explanation of property in Human Action (BTW, thanks for the link). "

  You missed Mises’s major point: property rights are not divine and sacred – it is a human device designed to make our lives bearable. Instead of hiding behind prison walls (your suggestion), his definition of property rights would completely protect us from harassment that would be completely legal in your ideal world. Also, his definition of property rights explains why we have a right to sell our labor, rent and other services – including a limited use of our property, such as works of authorship (our real, tangible property).

  Martin OB:
  “...not on your alleged right to prevent others from taking advantage of the mere fact that you are using your means in a particular way...”

  Majority of book authors are merely taking advantage of the fact of possessing a good that is so distinctive that you can easily prove someone else’s unauthorized use (or trespass), as well as any breach of contractual terms of use. Also, with free-market contracts they can dictate what their customers can do with their property.

  People here often forget the fact that there is an easy way in which you can obtain the right to replicate other person’s works of authorship...
  Authors often sell co-ownership rights for their books for the prevailing market price. Unlike these publishers, who often have to pay large amounts of money, you dislike the price required to treat someone else’s books like your own property. Instead, you simply want to pay $14.99 for a limited use of someone else’s property – and to turn around claiming this property is your own. No matter what property rights definition you use, such violations are just a form of theft.

  Anti-copyright crowd forgets that works of authorship are like any other property. If I hold a property title to some books printed – I have every right to claim this property cannot be used by other people, unless they agree to limited terms of use (contract). The distinctiveness of these books will help me to identify any trespassers – or people who did not have my permission to pick up my book and to treat it as their own property.

  ===============================================================

  HOWEVER, regardless of how we define property I hope we all agree on these simple facts:
  - works of authorships are material objects that can be owned
  - a rightful owner has every right to dictate allowed terms of use (contracts)
  - a rightful owner can classify any unauthorized use of his property – including works of authorship-- as a trespass
  - a trespasser should be liable for all injuries caused by his unauthorized use of someone else’s property – including the use of someone’s works of authorship
  

  Published: February 8, 2009 4:42 AM

• Martin OB

  @Sasha

  [--
  Not even fenced communities can protect you from a neighbor that would stalk your child and broadcast her life online, revealing her identity and private moments to millions of mentally sick individuals...
  --]

  Why, of course they can. If spying is against the community bylaws, those neighbors would face the correspondent economic punishment and possibly expulsion. That's a powerful deterrent.

  [--
  (if you call such action “defamation” or a mere “embarrassment” the incorrect definition of property rights is the least of your problems).
  --]

  Actually the name is "invasion of privacy" rather than defamation. But even "defamation" and "embarrassment" are miles closer as a description of this conduct than "rape". Pots and kettles.

  [--
  In other words, a perfect solution to satisfy your definition of property rights is to put us all in prison. We should all live behind bars and leaded paint to satisfy your definition of property rights. Like I said, try reductio ad absurdum: when a "libertarian" premise takes you to a conclusion that we should all live in prison of some sort - that definition must be wrong.
  --]

  
  So, are you telling me that any kind of fences are a prison for you? I must assume there are no fences around your house, and no protected borders in your country? Obviously, fences in fenced communities are meant to keep strangers out, not to keep inhabitants as prisoners.

  Moreover, if you insist that any restriction in your right to plant your feet on every square centimeter of the Earth is a form of imprisonment, then no one has the right to keep you out of their property. Here's a nice reductio ad absurdum.

  [--
  You missed Mises’s major point: property rights are not divine and sacred – it is a human device designed to make our lives bearable.
  --]

  Mises doesn't seem to be particularly interested in the origin and legitimacy of private property. IIRC, other often-quoted libertarian authors, like Rothbard, would contend that, if not holy or sacred, property rights are at least natural rights, and not just a social convention.

  Anyway, let's admit that the best definition of property rights is the one which makes life most bearable. Different definitions have different consequences. The detrimental consequences of my definition are relatively easy to solve. Those of yours, in my opinion, are far more likely to make life unbearable. You are conveniently bringing up the example of child stalking to incite moral outrage and disgust, but the same reasoning can be applied to all situations when someone feels distressed or outraged by the opinions of others or the truth others say about him. It would be a breeze to impose worldwide censorship to such a degree that free speech becomes a harmless joke. It can also justify Gestapo-style enforcement of intellectual monopoly (so-called IP).

  [--
  Instead of hiding behind prison walls (your suggestion), his definition of property rights would completely protect us from harassment that would be completely legal in your ideal world.
  --]

  There's no mention of privacy rights in Mises's definition of property, and no treatment of harassment in his elaboration of it. That's just your interpretation of his definition.

  [--
  Also, his definition of property rights explains why we have a right to sell our labor, rent and other services – including a limited use of our property, such as works of authorship (our real, tangible property).
  --]

  So does mine (which I believe is the same as his, with a different wording).

  
  [--
  Majority of book authors are merely taking advantage of the fact of possessing a good that is so distinctive that you can easily prove someone else’s unauthorized use (or trespass), as well as any breach of contractual terms of use. Also, with free-market contracts they can dictate what their customers can do with their property.
  --]

  You mean under current copyright legislation? Well, no. Copyright law is not based on contract law. Otherwise it could not be enforced against people who didn't sign a contract. Contracts, by definition, can never oblige a third party.

  [--
  Authors often sell co-ownership rights for their books for the prevailing market price. Unlike these publishers, who often have to pay large amounts of money, you dislike the price required to treat someone else’s books like your own property. Instead, you simply want to pay $14.99 for a limited use of someone else’s property – and to turn around claiming this property is your own. No matter what property rights definition you use, such violations are just a form of theft.
  --]

  They are a breach of contract by whoever signed it. Of course, your definition of "theft" may include all kinds of breach of contract, but then you are trivializing the concept. Still, no third parties can be held liable.

  [--
  HOWEVER, regardless of how we define property I hope we all agree on these simple facts:
  --]

  Maybe. Let's see...

  [--
  - works of authorships are material objects that can be owned
  --]

  Check.

  [--
  - a rightful owner has every right to dictate allowed terms of use (contracts)
  --]

  Check.

  [--
  - a rightful owner can classify any unauthorized use of his property – including works of authorship-- as a trespass
  --]

  If your definition of "use" need not involve physical access to your property by the "user", that is, if anything he may learn from third parties about your property is a form of "use", then you are begging the question and no, I don't agree. Otherwise, I agree.

  [--
  - a trespasser should be liable for all injuries caused by his unauthorized use of someone else’s property – including the use of someone’s works of authorship
  --]

  It depends on your definition of "injuries". In the strict sense, injuries to one's property can only be a partial or total elimination of its use value. I wouldn't be so fast to include a diminution of its trade value, that is, of lost business opportunities, in the definition of "injuries". This needn't mean that an economic compensation beyond what's derived from the physical destruction of property is out of the question, but it can't be justified as a mere restitution of injuries suffered by property. And of course, any kind of economic punishment or restitution obligation only concerns the trespasser, and never third parties.

  Published: February 8, 2009 8:24 PM

• Sasha Radeta

  Martin OB,

  So let's conclude that even in your ideal world -- the one in which we can protect our privacy only in a maximum security prison... a world in which millions of maniacs can watch your child's life, while you helplessly wait for something horrible to happen... Even in such world, which seems to be a perversion of libertarian ideals, we can conclude the following still holds:

  - Person who purchases only limited use of someone's work of authorship is liable for breach of contract if he violates those terms of use. These terms can stipulate that any unauthorized copies will be the property of the original owner.

  - If a third party (outside of contract) uses other person's work of authorship without owner's permission he is committing a trespass and liable for tort if an injury results from such unlawful action. We both agreed that bona fide purchasers of unauthorized copies are not to be held liable for their actions. People who knowingly purchase unauthorized copies (property of copyright holder), the will be liable for purchase of stolen goods.

  - Damages in tort are awarded generally to place the claimant in the position in which he would have been had the tort not taken place. Damages for breach of contract are generally awarded to place the claimant in the position in which he would have been had the contract not been breached. These are basic principles of justice, recognized by common law, which preserves many of libertarian principles.

  In short, you recognized that works of authorship that must be picked-up in order to be copied could be copyrighted (with contract and tort law), even without any state protection. You only dispute copyright violations that occur without "touching" someone's CD, book, etc.

  While we agree that a trespass is "unauthorized use," we only differ on what constitutes "use." In order to limit the term "use" only to "physical access," you created completely absurd world in which maniacs can thrive and freely prey on future victims, while decent people must hide in imprisonment. You think that people should accept all that evil, just to dispute only a smaller number of copyright violations. You practically proved my point.

  Best regards!
  

  Published: February 9, 2009 1:46 PM

• Martin OB

  @Sasha

  
  I dismantled your "prison" argument, but instead of trying to address my rebuttal, you keep on repeating the argument as if it had never been challenged. Occasionally I'm rather stubborn myself, but I don't think a debate is or should be a stubbornness contest, each one repeating the very same statements until one gets tired and leaves.

  
  Unauthorized copies are NOT stolen goods. They are just that, unauthorized copies, period. People who buy them (in a contract-based-IP society) are not cooperating with burglary, they are just benefiting from a breach of contract.

  Here's a point of disagreement. I don't think a breach of contract is morally equivalent to a physical aggression, moreover I don't think all contracts should be honored and actively defended by the State (or private protection agencies). Many kinds of contracts (for instance, a slavery contract, or a contract authorizing murder upon losing a bet) should be held null and void. Not forbidden, just unenforced and unenforceable. In the absence of a State, private arbitration agencies would refuse to validate some contracts. If there's a State, it should do likewise.

  Peaceful coexistence and de facto agreement, plus reputation, is all a free society needs. Contracts, while a useful social device, are secondary.

  By definition, a contract only obliges those who signed it, never third parties. This is an essential difference between contracts and property: arguably, people who cooperate with a burglar or a vandal in his wrongdoings can be held liable of some of the damages he caused. In contrast, a contract should be phrased in such a way that breaking its terms and conditions results in a specific compensation the breaker owes to the other party, making tort law irrelevant for contract violations.

  Moreover, regardless of whether tort law is invoked or not, a third party should never be held liable for convincing the breaker to violate the terms and conditions of a contract. It's the signatories' responsibility to respect those terms and conditions, or to pay the right compensation otherwise.

  regards,

  Published: February 17, 2009 4:56 PM

• Sasha Radeta

  Martin OB,

  You didn't dismantle anything. You kept blabbing nonsense about non-valid gambling contracts and slavery contracts (which cannot be enforced in libertarian world and are completely invalid). If you know anything about libertarian theory of contracts, you would know that you didn't establish any relevant arguments against contractual copyright. If you advocate violations of contracts - you are against free markets that completely rest on contracts, explicit or implied (market exchanges),

  I never claimed that third parties are obligated to respect contracts they didn't sign - but to respect other people's property.

  Once again you ignore the fact that free-market contracts can stipulate that any copies created by the purchaser of limited services will belong to the author. If such copies are sold to third parties as if it were the property of contract violator - it is a clear equivalent of sale of stolen goods.

  Also, you keep ignoring the fact that even if you somehow excuse third parties from knowingly purchasing these stolen goods, you still admit that the person who violates copyright and terms of use are responsible for economic injury caused to the author. That's enough from you.

  When you said:
  "I don't think a breach of contract is morally equivalent to a physical aggression"
  You really demonstrated complete lack of knowledge about theory of contracts. When ownership titles are exchanged based on a contract, any contract violation is a moral equivalent to pure theft and aggression against property.

  Here, read:
  http://mises.org/rothbard/ethics/nineteen.asp

  Published: February 18, 2009 12:59 PM