Intellectual Property

[Alexander]

I believe I've got a robust theory supporting intellectual property consistent with a free society. I'm hoping to get through to Stef on a Sunday call-in to kick it around a bit as I continue writing. Below is my current summary of the Anti-IP position as given by Stephan Kinsella and others. Please comment on whether I've done a fair job of presenting that which I wish to destroy, or to add other elements of the current libertarian case against IP. Thanks.

-Alex

_______

Intellectual
property is not scarce.  Physical objects, such as the apples on a tree,
are always limited in abundance. If I take the apples and eat them, there
are none for you. The use of property by one excludes the use by another.
Conflict over scarce resources is inevitable. A peaceful society therefore
requires a system of property rights in physical things to decide who is
allowed to exploit which resources. Conversely, IP is, by its very nature,
super-abundant. If you copy my book, I still have my book. Your use of the
IP does not preclude my use. A system of IP rights is therefore
unnecessary.



Intellectual
property is not libertarian. Enforcement of IP necessitates violations of
physical property rights. If I write a  novel and assert a copyright, IP denies you the ability
to write down the same pattern of words, even though you are using your
own pen and your own paper.



Intellectual
property is evil. IP laws are tools of the coercive state. Enforcement of
IP is arbitrary or malicious, practiced for the benefit of the government
itself and favored interest groups, at the expense of everyone else.



Intellectual
property is not economical. IP works against the interest of consumers by
stifling innovation and dis-coordinating the economy.

[Arius]

I would add one an additional argument to your bag:

Intellectual property is claim on how people should behave.  Ownership is a type of relationship which exists between people.  Specifically, "ownership" describes all the activities in which some number of people agree to (and execute) a course of action regarding some object.  Because intellectual property does not exist, any restrictions on its use constitute a limitation of the normal behaviors of people.  That is (just as an example), if you claim to own the word "the" then I must change my usage of language to accommodate that ownership or risk being in the wrong.  Thus, all intellectual property disputes are actually a demonstration of the non-preferability of a behavioral imperative.  Simply, non-consensual intellectual property rights are immoral (having nothing to do with the state) because their enforcement is empirically indistinguishable from the initiation of force.

 

[Alexander]

I appreciate the reply, I'm not sure your item is different than the one I called "IP is not libertarian".The point of that item is to say that IP necessarily places limits on the physical property rights of others, including self-ownership, which is what I think you're trying to say in your item.

You also said "because IP does not exist . . ." which would be an assumption of anti-IP's attempted conclusion. That's so easy to knock down that if I used it, I'd be accused of making a strawman argument.

And then you said that "enforcement" is like "the initiation of force". Yes, force is like force, but that's a bit of a tautology. Not sure it adds.

 

 

[Alexander]

Incorporating Arius' item strengthening #2:

 

Intellectual
property is not libertarian. 








Enforcement of IP
necessitates violations of physical property rights, including the right to
self-ownership. If I write a  novel
and assert a copyright, IP denies you the ability to write down the same
pattern of words, even though you are using your own pen, your own paper, and
your own physical body. Because you have not aggressed against me, any
enforcement of my IP would represent the initiation of force against you.

 

 

[Alexander]

 

Regardiing the attempted ownership of the word "the", I propose a new item in the case against IP:

IP requires arbitrary boundaries. Supporters of IP all agree that a novel is sufficiently complex to be IP, while nobody has suggested that the single word "the" should be property. But how and where do we draw the line? IP requires arbitrary, subjective judgments about the quantity and complexity of information needed to constitute property.  Therefore IP cannot be the subject of a rational objective theory.

 

 

[Alexander]

Strange, I had edited my post above where I first replied to Arius, but it reverted back. No big deal, but odd. I had removed the last couple of sentences.

 

 

 

[Alan C.]

The fundamental problem with IP, which Stephan Kinsella discusses in this video, is that it is a State-granted property right over a person by another person.

 

IP allows a person to use the State apparatus to compel another person to refrain from using his own body.

[Alexander]

Thanks Alan. I have "tool of the coercive state" in the item called "IP is evil", and "using his own body" is covered in "IP is not libertarian".

Is it your position that IP MUST be granted by the state, that it could not exist in a free society?

[Alexander]

Intellectual property is not scarce.  Physical objects, such as the apples on a tree, are always limited in abundance. If I take the apples and eat them, there are none for you. The use of property by one excludes the use by another. Conflict over scarce resources is inevitable. A peaceful society therefore requires a system of property rights in physical things to decide who is allowed to exploit which resources. Conversely, IP is, by its very nature, super-abundant. If you copy my book, I still have my book. Your use of the IP does not preclude my use. A system of IP rights is therefore unnecessary.


Intellectual property is not libertarian.  Enforcement of IP necessitates violations of physical property rights, including the right to self-ownership. If I write a  novel and assert a copyright, IP denies you the ability to write down the same pattern of words, even though you are using your own pen, your own paper, and your own physical body. Because you have not aggressed against me, any enforcement of my IP would represent the initiation of force against you.


IP requires arbitrary boundaries. Supporters of IP all agree that a novel is sufficiently complex to be IP, while nobody has suggested that the single word "the" should be property. But how and where do we draw the line? IP requires arbitrary, subjective judgments about the quantity and complexity of information needed to constitute property.  Therefore IP cannot be the subject of a rational objective theory.  

Intellectual property is evil. Originating in medieval England under the "Statute of Monopolies", IP is strictly the legislated tool of the coercive state, and cannot arise voluntarily under common law. Enforcement of IP is therefore malicious, practiced for the benefit of the government itself and its favored interest groups, to the detriment of everyone else.

Intellectual property is not economical. Contrary to the utilitarian claims of its supporters, IP actually works against the interest of consumers by stifling innovation and dis-coordinating the economy.

Intellectual property is mandatory. Under the current statist model, copyright automatically attaches to published songs, videos, books, etc. Even if the creator wanted to make the work freely available, he is unable to do so.

[Alan C.]

The State has always been the source of IP, but the source of the alleged property right in ideas and patterns misses the point.IP asserts that mimicry is commensurate with trespass.

[Alexander]

I agree, the historical or current source of IP law is not relevant. The important question here is, regardless of the history, could IP possibly exist in a free society? Statists of course, argue that since physical property rights are currently codified and enforced by the state, that this must be the case. As Hoppe has pointed out, that's like saying, "because a monkey can ride a bicycle, ONLY a monkey can ride a bicycle".

 

 

[Alan C.]

If you're asking how the concept of IP might exist and be enforced under market anarchy, I imagine that freeloading would carry the same social stigma as bad manners, poor taste, and obnoxiousness.

Personally, I don't see this issue as being a huge problem. Entrepreneurs such as Gabe Newell from Valve Software have demonstrated that piracy is insignificant. Whether he realizes it or not, he is rendering the issue of IP moot.

[Alexander]

I'm really just looking for an endorsement that I have given a concise and fair restatement of the case against IP. 

[Arius]

IP asserts that mimicry is commensurate with trespass.

Amen!

[Alexander]

 

IP asserts that mimicry is commensurate with trespass.

Amen!

 

This would be part of the positive case in favor of IP.

 

 

 

[Alexander]

Here's another . . .

Intellectual property requires a physical container. Storing, transmitting and consuming IP can only be accomplished with physical devices like books, CDs,
hard drives, modems, copper wire, iPads, etc. Without these physical objects, IP
disappears. IP is therefore meaningless, and the correct system of rights is in
physical, tangible things.

 

 

[Arius]

Intellectual property requires a physical container. Storing, transmitting and consuming IP can only be accomplished with physical devices like books, CDs,
hard drives, modems, copper wire, iPads, etc. Without these physical objects, IP
disappears. IP is therefore meaningless, and the correct system of rights is in
physical, tangible things.

You're forgetting the non-media forms of IP.  Genes, chemicals, and processes are all elements of IP which require no media to store.  If you're going to use this objection, it is only valid for the portion of IP which requires media.  If you examine how Monsanto uses IP, the saving of seed from patented plants is legally addressed as theft.  I could go on a rant about how treating seeds as IP creates immiserating trade.  Sufficed to say: it does.

[Alexander]

Genetic information is stored on strands of DNA, which is physical. Information about genes collected by scientists is stored on computer memory devices, which are physical. Chemicals are physical, and chemical formulas are stored on pieces of paper or computer memory, which are physical. Processes are written down on pieces of paper or PDF files which are stored in computer memory which is physical. Seeds are physical.

I still think it's fair to say that all IP requires a physical container, but perhaps I should add some of these interesting examples. Thank you.

[Alan C.]

I'm really just looking for an endorsement that I have given a concise and fair restatement of the case against IP.

Yes, you have.

However, I wanted to point out that the only ethical argument in your list is: "Intellectual property is not libertarian." The other arguments are appeals to pragmatism.

That's not to say that they don't carry weight; they do. My personal preference is to focus on ethics because it forces your antagonist into a position in which he has to defend aggression.

One of the big mistakes that libertarians make (especially on YouTube) is to focus on things such as statistics or a contest of ideas (eg. flat tax vs. fair tax). Not only is that futile, but it diverts attention away from the only thing that ultimately matters.

Don't allow yourself to be roped into a debate over whose statistics are more accurate or whose ideas sound more practical.

[ribuck]

Intellectual property requires a physical container ... like books, CDs,
hard drives, modems, copper wire, iPads, etc

Are you counting a "brain" as a physical container or not?

[Alexander]

 

Are you counting a "brain" as a physical container or not?

 

Yes, of course.

[Alexander]

 

However, I wanted to point out that the only ethical argument in your list is: "Intellectual property is not libertarian." The other arguments are appeals to pragmatism.

That's not to say that they don't carry weight; they do. My personal preference is to focus on ethics because it forces your antagonist into a position in which he has to defend aggression.

One of the big mistakes that libertarians make (especially on YouTube) is to focus on things such as statistics or a contest of ideas (eg. flat tax vs. fair tax). Not only is that futile, but it diverts attention away from the only thing that ultimately matters.

Don't allow yourself to be roped into a debate over whose statistics are more accurate or whose ideas sound more practical.

 

The "scarcity" argument goes directly to the moral / ethical foundation of austro-libertarianism. The  "Not libertarian" argument then assumes the validity of self-ownership, non-aggression and physical property rights proven via the scarcity argument. Etc.

Yes, your point about the futility of utilitarian approaches is well taken. The ability to analyze any issue in terms of its implicit moral / ethical assumptions is a great part of Stefan Molyneux's genius, and the main reason I am here.

[ribuck]

 

 

Are you counting a "brain" as a physical container or not?

 

Yes, of course.

 

Well, bring it on then! I'm interested to see how your approach to IP deals with the first person who worked out the process by which fire could be initiated and harnessed. Although the patent office did not yet exist, this person nevertheless held the process in his brain.

Is the "Process for initiating and harnessing fire" a valid instance of intellectual property according to your approach?

[Alexander]

I'm bringing it on ribuck, in measured steps. There are two aspects to my overall work - the positive case for IP, and the deconstrction of the case agasint it.  This particular thread is stating the anti-IP case, after which I will state the rules that must exist to support the anti-IP position.

In response to your query about a method patent for fire, I will tell you that my conclusion will be that copyright exists, but patent does not.

 

[Alexander]

Next, I repeat the anti-IP arguments, this time each item is followed by the logical rule that must operate to reach the conclusion in the item. For each rule, please answer:

1. Does the rule represent a correct inference derived from the argument above it. If not, why not?

2. Does inserting a physical object for X invalidate physical property according to the rule? If not, why not?

 

1. Intellectual property is not scarce. Physical objects, such as the apples on a tree, are
always limited in abundance. If I take the apples and eat them, there are none
for you. The use of property by one excludes the use by another. Conflict over
scarce resources is inevitable. A peaceful society therefore requires a system
of property rights in physical things to decide who is allowed to exploit which
resource. Conversely, IP is, by its very nature, super-abundant. If you copy my
book, I still have my book. Your use of the IP does not preclude my use. A
system of IP rights is therefore unnecessary.

 

Rule 1: If X is
useful, and Y is a duplicate of X, and the use of Y does not interfere with the
use of X, then X cannot be property. 

 

2. Intellectual property is not libertarian. Enforcement of IP necessitates violations of
physical property rights, including the right to self-ownership. If I write
a  novel and assert a copyright, IP
denies you the ability to write down the same pattern of words, even though you
are using your own pen, your own paper, and your own physical body. Because you
have not aggressed against me, any enforcement of my IP would represent the
initiation of force against you.

 

Rule 2: If the
enforcement of Person A’s alleged property rights in X imposes any restrictions
on the physical movement of Person B, or any restriction on Person B’s use of
his own rightful property, then X cannot be property.

 

3. IP requires arbitrary boundaries. Supporters of IP all agree that a novel is
sufficiently complex to be IP, while nobody has suggested that the single word
"the" should be property. But how and where do we draw the line? IP
requires arbitrary, subjective judgments about the quantity and complexity of
information needed to constitute property.  Therefore IP cannot be the subject of a rational objective
theory.

 

Rule 3. If, during
the attempted homesteading of X, the property lines cannot be objectively
determined with absolute precision, then X cannot be property.

 

4. Intellectual property is evil. IP laws are tools of the coercive state.
Enforcement of IP is arbitrary or malicious, practiced for the benefit of the
government itself and favored interest groups, at the expense of everyone else.

 

Rule 4: If a state
has legislated with regard to the use of X, and enforced that legislation in
violation of libertarian principles, then X cannot be property.

 

5. Intellectual property requires a physical container. Storing, transmitting and consuming IP can only be
accomplished with tangible, physical things like paper, CDs, hard drives,
modems, copper wire, DNA, and the human brain. Without physical property, IP
disappears. IP is therefore meaningless, and the only correct system of rights is
in physical, tangible things.

 

Rule 5. If X
requires a physical container in order to be useful, then X cannot be property.

 

6. Intellectual property is not economical. IP works against the interest of consumers by
stifling innovation and dis-coordinating the economy.

 

This utilitarian argument is based on economic analysis. An
ethical, moral and economic analysis of intellectual property on the free
market can proceed by postulating the Doctrine of Intellectual Space, Matter
and Property; then reasoning forward under Hoppe’s Argumentation Ethic and
Austrian Economic Principles generally. Such is the task of the next section.

[ribuck]

If X is
useful, and Y is a duplicate of X, and the use of Y does not interfere with the
use of X, then X cannot be property.

The above "rule" does not hold when X is physical property. It also does not hold when X is imaginary property. Perhaps you meant something like the following:

If X is
useful, and Y is a duplicate of X, and the use of Y does not interfere with the
use of X, then "X together with all its present and future duplicates" cannot be property.

[ribuck]

If a state
has legislated with regard to the use of X, and enforced that legislation in
violation of libertarian principles, then X cannot be property.

This "rule" obviously does not hold, whether X is physical or imaginary property. What some state may or may not have done in the past cannot possibly determine a matter of principle. Perhaps you mean something like this:

If exclusive use of X cannot be enforced without the initiation of force, then X cannot be property

Physical property can be locked in a container. Then, exclusive use (by the holder of the key) is the default condition, and requires no initiation of force. On the other hand, breaking that exclusive use would require the initiation of force.

However, imaginary property can be copied without the initiation of force, because access to a physical manifestation of the original is not required. If you have heard a song, you can sing it without requiring access to the original CD.

[ribuck]

Furthermore, rule 2 is unusable because it uses the phrase "rightful property". It is therefore assuming that the definition of rightful property is already determined.

Alexander, before I comment further I would like to see your whole argument. If you unravel it piece by piece, we need to critique every sentence, even if most of those will turn out to be uncontentious or irrelevant. That's a very inefficient use of everyone's time.

If you post your whole argument, we can focus first on what appears to be its weakest point. This is much more efficient. Then, if the apparently-weakest point is OK, we can check whether the rest of the argument is sound.

[Alexander]

In my theory, I assume as valid the moral / ethical property system commonly known as anarcho-capitalism. My positive theory will state that. This process is the analysis of the anti- IP position. When I said " valid property" I meant "valid physical property as understood by anarcho- capitalists". 

[Alexander]

@ribuck -

Thank you very much for your input so far. Your time is valuable, and I appreciate it. I have chosen to proceed here step by step, because forum discussions can easily go off in every direction, as we all know I'm sure. My general thesis should be clear by now. I postulate the theoretical existence of Intellectual Space, Matter and Objects. I assume as valid the austro-libertarian theory of physical property. I substitute Intellectual objects for physical objects into the existing valid property theory, to see what happens. I find that Intellectual Matter is homesteaded into Intellectual Property by the trasnsformative input by humans, just as physical matter is homesteaded.

My approach to the deconstruction of anti-IP should also be clear now. I'm showing that the rules that generate these allegedly strong arguments against IP do not hold for physical property, and therefore must be invalid. Your task as an opponent of IP would be to forumlate rules for defining property that hold for physical property, yet fail for IP. I allow you to assume as valid self-ownership, NAP, physical property rights. Obviously, you may not define property as necessarily needing to be physical, for that would be assuming the conclusion.

-Alex

 

 

 

[ribuck]

I have chosen to proceed here step by step, because forum discussions can easily go off in every direction, as we all know I'm sure.

Fair enough!

It seems you are setting out to show that "if homesteading of physical property is legitimate, then homesteading of non-physical property is also legitimate". That's an interesting way to argue it, but it's not as powerful as showing that non-physical property is legitimate without any precondition.

It's clear to me that a person owns the fruits of his labor, but it's not clear to me that land can be owned for all time simply by using it for a finite time. So I would be more interested in your theory if its precondition didn't require me to already accept the homesteading of land. (There's an interesting duscussion about property ownership here, by the way.)

[Alexander]

Any theory of anything requires intitial assumptions. For example, in Human Action, Mises assumes the existence of humans that act purposefully. This assumption will not satisfy existentialists. Even a dictionary assumes some basic agreement on the meaning of words, in order to then report definitions of other words.

To approach my theory from the very ground up, I would simply copy Hoppe's Argumentation Ethic, which is what I'm doing. If you want to argue the validity of that, argue with him. I'm choosing to accept Hoppe for three reasons:

 

1. It makes perfect sense to me.

2. It seems much like Stef's UPB, which also makes sense to me.

3. Kinsella accepts it.

[Mister Mister]

 Great topic.  Yes IP requires a container, but when I copy that information into a container I own, is that theft?  Not by normal definitions, because I am not taking anything from you by force or otherwise.

I think it also speaks to the concept that human creativity multiplies wealth.  If a caveman has some tinder, it is not useful until he discovers he can burn it.  Of course he can keep this secret and charge everyone to cook their meat for them, but it is actually in his interests to teach the secret of fire to everyone, in that it multiplies the wealth of all society and uplifts everyone.  To this end, I hope we are looking at a paradigm-change in this sort of thing.  Open source software and technology is a great example.

As a musician I am particularly interested in this.  Technology is really changing the music industry, like many industries.  You all remember the controversy over Napster a few years ago.  Most of that has died down because .  While Metallica and Jay-Z might have gotten upset over it, the huge majority of musicians think this is great.  Instead of signing of the "rights" to all their creative output to a company for a record contract, which is basically a loan for the capital that used to be required to record and distribute an album; the average recording artist can do it all with some good microphones (which can even be rented nowadays) and a laptop, distribute it for free on the internet, and build up a nationwide fan base that will sponsor them on a tour.  Anyways I think information technology is really reframing this debate.

[Alexander]

Let's try this formulation:

"If X isuseful, and Y is a duplicate of X, and the use of Y does not interfere with theuse of X, then "X together with all its present and future duplicates" cannot be property."

Kia car 1 is useful, and Kia car 2 is useful, and the use of Kia car 2 does not interfere with the use of Kia car 1, therefore Kia car 1, Kia car 2, and all present and future duplicates cannot be property.

Sorry, that does not hold.

 

 

[Alexander]

 

 Yes IP requires a container, but when I copy that information into a container I own, is that theft? 

 

This is one of the CRUCIAL points that I am going to make. The "copying = theft" construction is wrong, and has been a source of endless wrong thinking on all side of this debate forever. Are you ready? (Clears throat . . . )

 

Copying is trespass, not theft.

(This holds for physical as well as intellectual property).

Both types of property can be stolen, both types can be trespassed upon.

Imagine you owned a piece of land with a factory on it.
Uninvited, I come to your factory, and study all the machines you have
operating. I then go to my own piece of land, and build my own factory, which
is an exact copy of yours. Consider the following questions.

 

Have I violated your physical property rights? Yes, I
trespassed. By definition, a property owner has the right to exclude others.
Does my copy of your factory deprive you of the use of your factory? No, you
still have your factory. Does the fact that I copied your physical objects
somehow prove that physical objects are not scarce, and thus eliminate the need
for property rights? No, physical objects are scarce, despite the fact that they can be copied.

 

If the ability to copy physical objects does not invalidate
the concept of physical property, then why should the ability to copy
intellectual objects invalidate the concept of intellectual property? Therefore,
the argument stemming from “copying is not theft” is a non-sequitor founded on
a faulty analogy.

 

Can IP be stolen?

 

Yes. As discussed, copying per se is not theft, it is
trespass. But IP can in fact be stolen, further supporting the proposition that
IP is property.

 

Suppose you are a computer programmer and have worked long
and hard developing some code. I am your competitor, and I hack into your
computer system, copy your code and save it onto my own hard drive, and then I
delete the code from your hard drive, and I delete all of your backups too.
Have I violated your physical property rights? Specifically, have I stolen any
of your physical property? No, your computer hardware is still right there
where it was before, available for your use. And yet, because of my actions,
you no longer have use of your computer code. Only by recognizing a property
right in IP can we conclude that copying and deleting your code is theft.