The Superiority of the Roman Law: Scarcity, Property, Locke and Libertarianism

The Superiority of the Roman Law: Scarcity, Property, Locke and Libertarianism (Mises, Aug. 17, 2010) (archived comments below)

Update: see also:

• “Legislation and the Discovery of Law in a Free Society,” in Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023) (LFFS)
• “Legislation and Law in a Free Society,” Mises Daily (Feb. 25, 2010)
• Classificationism, Legislation, Copyright, C4SIF (Oct. 25, 2011)
• Another Problem with Legislation: James Carter v. the Field Codes (Oct. 14, 2009)
• The State’s Corruption of Private Law, or We Don’t Need No Legislature, The Tom Woods Show, Ep. 557 (Dec. 17, 2015)
• KOL221 | Mises Brasil: State Legislation Versus Law and Liberty
• KOL187 | Anarchast with Jeff Berwick Discussing IP, Anarcho-libertarianism, and Legislation vs. Private Law (2012)
• KOL001 | “The (State’s) Corruption of (Private) Law” (PFS 2012)
• Richard Epstein on the Roman Law, https://www.youtube.com/watch?v=_v6esY3Dzfo&list=PLojsk2GQ8jIRkjMTadCY_bUBmnQdp0jqS
• Richard Epstein, playlist of short lectures he did for the Federalist Society https://www.youtube.com/playlist?list=PLWwcngsYgoUUv5NgIyRXaZDVLZ_0jzYPC

The Superiority of the Roman Law: Scarcity, Property, Locke and Libertarianism

The Emperor Justinian, 483 – 565 AD

Before I went to law school (in 1988), I was an engineering student with little interest in law. I decided to go to law school for the prospects of making more money than an engineer, and because I liked to argue. People would say, Hey, Kinsella, you like to argue politics–you should be a lawyer. Doesn’t make much sense, I know, but I wasn’t ready to take a job designing air flow sensors for F-16 fighter planes for General Dynamics (my first offer as a senior majoring in electrical engineering). I knew so little about the practice of law and law school that I thought I would not able to go since I didn’t have a “pre-law” degree, whatever that was (I am still not sure what a pre-law degree is). But I ended up going–to Louisiana State University’s law school–and from the beginning I was fascinated by law and legal theory and history.

Justinian’s Code (Codex Domini Justiniani), a fifteenth century edition from the Rare Book Room of the Boston College Law Library

In retrospect, my interest was no doubt fueled by Louisiana’s mixed legal system–as a hybrid of Roman, French, and Spanish law, on the one hand, and American common law, on the other, it probably has the most interesting and richest legal history of any other American State. From my first semester I was immersed in the history of Roman law and the later civilian codifications. Back then, I was still somewhat under the sway of AynRand’s unique emphasis on “human reason” and even rationalism. So when I first started learning about the civil law, my first reaction was Wow! This is very libertarian!

Until then I only knew about the common law, and only a little at that. It took me a while to sort it all out. You see, often the modern common law is contrasted with European continental law, the so-called civil law. Most people believe the civil law is said to have arisen from the French Napoleonic Code which itself is based on Roman law. So you have the idea that we have English common law, or civil law, the modern form of Roman law.

Bear with me; I’m getting to a point or three. It turns out that the Roman law was very decentralized, similar in many ways to the English common law. It was codified and preserved in Justinian’s Code. In the 17th and 18th centuries, during the Enlightenment, the Roman law as it then existed in Europe, plus additional practices and developments, began to be codified into modern “codes”–very systematic and elegant restatements of existing (largely Roman) legal principles. (Justinian’s Code was not a modern code in this sense, but more of a summary of existing legal precedents and rules.) The most famous modern civil code is the 1804 French Code Napoléon—which strongly influenced Louisiana’s Civil Code of 1808 (as did Spanish law).

As noted, at first glance one might think of the two traditions as being English common law vs. Roman law/civil law. But as I discuss in my 1995 Journal of Libertarian Studies article Legislation and the Discovery of Law in a Free Society (summary version: Legislation and Law in a Free Society) (now updated as a chapter in LFFS), the defining characteristic of the civil code-based legal systems is legal positivism: the idea that legislation, and thus the legislature and the state, is the supreme source of law. The modern civil codes are not merely scholarly, elegant restatements of Roman law; they are legislated. The civilians are explicit about this being the defining characteristic of the civil law.

So the real distinction is between decentralized legal systems–Roman law and the original English common law–and centralized legal systems like the modern civil law. In fact, even modern common law-based systems are being gradually overrun by a flood of legislated statutes, so that they become to resemble civil law more and more, though without the elegance (in America, for example, the Constitution is in a sense a code, and a fairly abstract, general and elegant one at that, compared to other legislation; the Uniform Commercial Code is well done and systematic, if not as elegant as a civil code, but most such legislation is narrow, technical, specific, ad hoc, artificial, and incoherent). The civil codes are works of art compared to modern statutes of common law systems. At least civil codes largely embody the legal rules developed in the decentralized ancient Roman law, even if they also presuppose legislative supremacy and legal positivism. Common law statutes are ad hoc and have excessive detail in part to overcome the common law judges’ hostility to legislative encroachment on their glorious common law. Civil law is also superior since Roman law principles are often more coherent and streamlined in comparison to the clunkier, feudalism-based concepts of the common law (see n. 130 and accompanying text of Legislation and the Discovery of Law in a Free Society; other comparisons in terminology and legal concepts may be found in my Civil Law to Common Law Dictionary).

John Locke (1632-1704)

But at first I didn’t get this. I saw the explicit paeans to “reason” given by the modern codifiers, and the language of natural rights and the Enlightenment. At first I thought–hey, these civil codes are more libertarian, since it’s an explicit attempt of the human mind to set down, in coherent, codified, written form, a code of law and justice. I discussed this with one of my professors—John Devlin, a wonderful professor who, though somewhat of a liberal had Hayek’s Law, Legislation and Liberty on his bookshelf in his office–who was from a common law state (New York) and who suggested I read Oliver Wendell Holmes’s The Common Law, and other works, which I did. This left me thoroughly confused for a while, since aspects of the common law also seemed to be superior to the civil law’s legislated codification approach. It was not until later, after I had more distance from Rand and more exposure to libertarian theory, Austrian economics, and other writings such as Bruno Leoni’s Freedom and the Law and Giovanni Sartori’s Liberty and Law, that I developed my current view—as expressed in my 1995 JLS article noted above. Which is that the original Roman law and English common law, both decentralized systems, are vastly superior to today’s legislation based, positivistic, codified legal systems–and that as between Roman and common law, the Roman law is more fascinating to me and seems superior in many respects.

And over the years I keep noticing cases of this. To which I now turn. The first example is Jesús Huerta de Soto’s fantastic book Money, Bank Credit, and Economic Cycles, which draws on Roman legal concepts (such as irregular deposit) to explain and clarify the issues surrounding fractional-reserve banking—narrowing the wiggle room of ambiguity that FRB proponents operate within.

And I am starting to think the Roman law had not only a more elegant and conceptually coherent and streamlined legal framework, but a better view of property rights and even some economic fundamentals than the common law. My entire view of property rights is heavily influenced by the idea that property simply means ownership, and this means the legal right to control a scarce resource. This sounds simple, but once you view it this way, it makes it easier to see various issues more clearly—from contract theory (see chs. 9 & 11 in LFFS) to intellectual property (see Part IV of LFFS), for example. This conception of the nature of rights complements naturally the title-transfer theory of contract of Evers and Rothbard. As for IP, once you realize property rights are simply the right to control some scarce resource, it is easier to see the role of property rights being to permit conflict to be avoided in the productive use of such resources, and it is also easy to see why the first user of a resource has a better claim to it than others–the Lockean homesteading principle. It is also easier to see why one need not assume the ownership of labor for Lockean homesteading to be valid, and why the expending of labor or “creation” is not an independent source or property rights. To create something is just rearranging or changing property that you already own; it is not creating new ownership rights or new property. So the whole natural rights justification for IP just vanishes. I discuss some related issues in my post Locke, Smith, Marx and the Labor Theory of Value, where I suggest that Locke’s emphasis on ownership of labor leads to the erroneous conclusion that intellectual property is justified.

This way of looking at property rights is of course how Austro-libertarians such as Rothbard and Hoppe view it, but it is also natural to the Roman law tradition. See, for example, the comments of Professor A.N. Yiannopoulos, a world renowned civil law scholar, regarding the nature of ownership and the relationship to economic scarcity:

Property may be defined as an exclusive right to control an economic good …; it is the name of a concept that refers to the rights and obligations, privileges and restrictions that govern the relations of man with respect to things of value. People everywhere and at all times desire the possession of things that are necessary for survival or valuable by cultural definition and which, as a result of the demand placed upon them, become scarce. Laws enforced by organized society control the competition for, and guarantee the enjoyment of, these desired things. What is guaranteed to be one’s own is property… [Property rights] confer a direct and immediate authority over a thing.

[See What Libertarianism Is, Appendix I, quoting A.N. Yiannopoulos, Louisiana Civil Law Treatise, Property (West Group, 4th ed. 2001), §§ 1, 2 (first emphasis in original; remaining emphasis added). See also Louisiana Civil Code, Art. 477 (“Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law”).]

So after having been steeped in the civilian conception of property and scarcity, it is no wonder that the Austro-libertarian perspective seemed so natural to me. I am now beginning to wonder if my views on IP as most fully expressed in my 2001 article Against Intellectual Property resulted in part from the intersection of civil law property and ownership concepts and various insights of Mises, Rothbard, and Hoppe regarding scarcity and property rights.

My interpretation of Locke’s labor/creation based homesteading theory and its potential to lead to support for artificial IP rights is bolstered by an article Jeff Tucker came across recently, Robert M. Hurt and Robert M. Schuchman’s 1966 American Economic Review article The Economic Rationale for Copyright. In this piece, the authors note:

We may group the various justifications offered in favor of copyrights under two headings: (1) those which are based on the rights of the creator of the protected object or on the obligation of society toward him and (2) those which are based on the promotion of the general well-being of society. Under the first classification we should discuss two important theories in some detail and one more in passing: (1) the natural property right of a person to the fruits of his creation, (2) the moral right to have his creation protected as an extension of his personality, and (3) his right to a reward for his contribution to society.

1. The claim that an author has an inherent property right in his writings, which right is merely recognized by the statute, has such wide acceptance that it seems at times to brook no opposition. Jurists, political philosophers, and economists have developed two divergent views of property which illustrate the conflict among supporters of the copyright system.

First, property rights can be viewed as a device whereby scarce resources will be subject to exclusive control rather than exploitation at will by all comers, with the result that they will be used in an economically efficient manner. This theory was latent in the Roman law development of the rights of property, with its emphasis on dominium, or exclusive control over tangible objects. The origin of the claim to a property right–working of the soil, gathering of the objects, gratuitous grant by the government, plunder, or theft–is not necessarily relevant; rather it is important that someone has control.

Second, property rights can be viewed as the right of each person to the exclusive control of the products of his creation. If a man brings a given commodity into existence, one who appropriates this commodity without the consent of the creator is guilty of theft, a proposition which becomes self-evident with the use of right reason. This later theory of property has its roots in scholastic jurisprudence and finds its most famous expression in John Locke’s Second Treatise. It is inextricably tangled with the first theory in Blackstone and finds its strongest refuge today in justifications for the expansion of patents and copyrights.

So. Not only is Locke wrong in his proviso (see my post Down with the Lockean Proviso); he is also wrong in his reliance on labor and creation as sources of property rights–and this erroneous view contributes to the confused justifications that are often given for IP. Roman law is superior conceptually and substantively, and more compatible with libertarianism and Austrianism. I named my most recent poodle Louie von Mises. The next one will be Justinian.

Update: See also Hans-Hermann Hoppe’s comments regarding common law and civil law in his lecture on The Production of Law and Order: Natural Order, Feudalism, and Federalism, starting at 1:07:30 (loosely transcribed) [see Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), ch. 13, “Legislation and the Discovery of Law in a Free Society”, text at note 152]:

A little side remark, in English speaking countries there is a certain amount of pride in having the so called “common law,” which is in a way non-codified law, case law. The continental tradition has been for a long time different. There we have had codified law.

Anglo-Saxons look down on codified law and hail their non-codified common law. I want to remark that Max Weber has a very interesting observation regarding this. He sees the reason for the non-codification of the common law in the self interest of the lawyers to make the law difficult to understand for the layman and thus make a lot of money. He emphasizes that codified law makes it possible for the layman on the street who can read to study the law book himself, and go to court himself, and point out “here this is written down” and so forth.

So maybe this excessive pride that Anglo-Saxons have in their common law might be a little bit overdrawn. ¹

***

Archived comments:

Aubrey Herbert August 17, 2010 at 2:34 am

Good read. Much appreciated. Cheers

Kerem Tibuk August 17, 2010 at 4:10 am

You are a very confused fellow and it is mainly because you are trying to reconcile two very different views on rights, mostly based on property rights. Hoppe’s theory of property which you actually adhere to has nothing, I repeat, nothing to do with the Rothbardian natural rights theory.

Actually Hoppe’s theory of property where it is assumed that, property rights are established to resolve or handle conflicts regarding scarce resources, undermines private property all together if you follow to its logical conclusion.

I am astonished by the fact that no one ever challenges this assumption where you can even justify socialism.

What is the definition of conflict here? Why not consider, inequality when it comes to the ownership of scarce resources, a source of genuine conflict and try to resolve that too? Why not say,

“Property rights are established to resolve conflicts regarding scarce resources, and one of the best ways to resolve conflict is to suppress envy and one of the best ways of that is to distribute scarce resources as equally as possible.”

What is really stopping you? That damned Lockean proviso maybe?

Peter Surda August 17, 2010 at 4:42 am

Kerem, you espouse the same fallacy all over again, unable to come to terms with elementary logical constructs and blindly professing your faith instead of facing reality. There is no need to assume that property rights are established to resolve conflicts in scarce (rival) resources. There is, however, a need to conclude it, as it is the only logical conclusion. As many clever people said in the past, if you eliminate the impossible, that which remains, even though improbable, must be the truth. A conflict in non-rival resources is logically impossible. The phrase is a metaphor for a conflict in rival resources causally related to the non-rival resource. Non-rival resources cannot be used, sold, exchanged, created, consumed. All these are metaphors for activities that happen with rival resources.

Stupid me, instead of taking months to realise this, I could have just read Hoppe, who realised it earlier. I quote: “A conflict is only possible if goods are scarce.”

The Kid Salami August 17, 2010 at 4:53 am

“…if you eliminate the impossible, that which remains, even though improbable, must be the truth.”

This may be the first time that Sherlock Holmes has been cited as an authority on these pages.

Kerem Tibuk August 17, 2010 at 4:59 am

Peter,

You are trapped in circular reasoning just like Hoppe, Kinsella, etc and can not escape it.

“A conflict in non-rival resources is logically impossible.”

What the hell does this mean, but a mere tautology. Of course it is impossible. Just like a square with five sides is impossible.

But why don’t you try to define conflict, and non rivalry without using synonyms, or concepts that depend on the concept you are trying to define?

Silas Barta is the only person that tried to define conflict in this site that I am aware of and it was like, a state where the wishes of two parties can not be satisfied at the same time. Al Kinsella, you and others have done is introduce concepts without defining them. You did this with the externality argument, and you are doing it again.

There is conflict regarding IP. There is also rivalry regarding the use of it.

I wrote a novel, I own it and we will have a conflict when you interact with it against my wishes. And if we have this conflict this means the good is necessarily rival.

Now explain to me, how you argue against socialism with this definition of property rights and without referencing the damned Lockean proviso.

Peter Surda August 17, 2010 at 5:48 am

Dear Kerem,

You are trapped in circular reasoning just like Hoppe, Kinsella, etc and can not escape it.

The one trapped is you. You profess your faith in things which do not exist, make no sense, and cannot be explained and accuse opponents of immorality.

What the hell does this mean, but a mere tautology.

If it is a tautology, why do you object to it in subsequent sentences then? You contradict yourself.

But why don’t you try to define conflict, and non rivalry without using synonyms, or concepts that depend on the concept you are trying to define?

Conflict merely means the presence of alternatives, courses of actions which are mutually exclusive. Such as, “you can’t have your cake and eat it too”.

Silas Barta is the only person that tried to define conflict in this site that I am aware of and it was like, a state where the wishes of two parties can not be satisfied at the same time.

Silas merely pointed out issues with current implementations of law. Coincidentally, I agree with him on some of these. He did not dig deeper into the theory though. He also mixes into the argument subjective elements, like the desires of the people involved, distracting from the underlying questions.

Al Kinsella, you and others have done is introduce concepts without defining them.

I believe I have explained to you the concept of rivalry before, but you didn’t get it. I would go even farther and say that you’re a hypocrite, since you have not defined IP. Rather, you mention colourful metaphors, such as: product of labour, creation of mind, rearranging patterns, extending sovereignty.

You did this with the externality argument, and you are doing it again.

Well well well, mister natural reflection is deflecting. Since it is you who claims that externalities are distinct from IP, it is up to you to provide a definition, not me. It’s not my job to fix the errors in your theories.

There is conflict regarding IP. There is also rivalry regarding the use of it.

You are trapped in a metaphor. What you refer to is conflict or rivalry, you refer to a conflict or rivalry of rival goods that are causally related to the non-rival good. You are comparing two different methods of distributing rival goods. Let me rephrase the question I asked Silas: how can there be a product of labour, creation of mind, how can you rearrange a pattern or extend sovereignty without the use of rival goods?

The introduction of IP is equivalent to making some uses of rival goods subject to agreement of people other than were necessary before the introduction. The rules for this redistribution are based on immaterial aspects of those goods, but that does not create new stuff. It’s kind of like with inflation. Printing new money or extending credit merely redistributes value, it does not create anything new.

Kerem Tibuk August 17, 2010 at 6:11 am

“If it is a tautology, why do you object to it in subsequent sentences then? You contradict yourself.”

I don’t object to it, I find it irrelevant and useless. You are trying to define a concept, the concept of property, with another concept that need the concept of property. You are not adding anything to the knowledge, all you are trying to do is muddy the waters.

“Conflict merely means the presence of alternatives, courses of actions which are mutually exclusive. Such as, “you can’t have your cake and eat it too”.”

If this is the definition, how is me having written the novel wanting to keep it “un-copied” and you “wanting to copy it” is not mutually exclusive? How is this not a genuine conflict according to you? Can you copy a book and at the same time keep it un-copied? A book is either copied or it is un-copied. How can two different states exist at the same time? Have you ever heard of Aristotle’s law of identity being so fond of using the term “logic”?

“Silas merely pointed out issues with current implementations of law. Coincidentally, I agree with him on some of these. He did not dig deeper into the theory though. He also mixes into the argument subjective elements, like the desires of the people involved, distracting from the underlying questions.”

I am not talking about Barta’s Em spectrum argument but only his effort regarding the definition of conflict, which he doesnt even have the burden to do so. Whoever uses the concept of “conflict” must define it without the use of tautologies.

“I believe I have explained to you the concept of rivalry before, but you didn’t get it. I would go even farther and say that you’re a hypocrite, since you have not defined IP. Rather, you mention colourful metaphors, such as: product of labour, creation of mind, rearranging patterns, extending sovereignty.”

You haven’t explained jack. You merely use tautologies. And I don’t have special thing for IP or whatever you call it. My issue is about property and I have only one definition regarding property whether you define some as IP or categorize then regarding their tangibility or not. You are the one making a distinction and it is your responsibility to explain the reason.

“Well well well, mister natural reflection is deflecting. Since it is you who claims that externalities are distinct from IP, it is up to you to provide a definition, not me. It’s not my job to fix the errors in your theories.”

Again, you use the concept of externality without even knowing what it really means. You probably read it in one of Block’s writings and since you though IP and externalities were similar you started using the concept. When you first used the concept I asked you to define it, and you again asked ME to define the concept you used. Which proves you don’t know what you are talking about and only pull concepts out of your ass.

Peter Surda August 17, 2010 at 6:29 am

Dear Kerem,

I’ll reply in detail later, just now the most obvious error:

If this is the definition, how is me having written the novel wanting to keep it “un-copied” and you “wanting to copy it” is not mutually exclusive? How is this not a genuine conflict according to you?

You failed to understand the core of the objection. There is only a conflict because the concept of copying involves rival goods. You are using a metaphor and interpret a conflict in rival goods as a conflict in non-rival goods.

Stephan Kinsella August 17, 2010 at 7:22 am

Peter, you have it exactly right. This issue is pretty simple and apparent. I actually cannot believe K Tibuk is not perspicacious enough to realize this. Therefore, it seems to me that he and his ilk must be being intentionally disingenuous. They don’t want to give in on this simple point since they sense that it would undermine their whole house of cards.

Kerem Tibuk August 17, 2010 at 8:16 am

“You failed to understand the core of the objection. There is only a conflict because the concept of copying involves rival goods. You are using a metaphor and interpret a conflict in rival goods as a conflict in non-rival goods.”

You are still trying to use tautologies. We are trying to define the concept of “conflict”. Stop using concepts like “rival”, that exactly means “things that can cause conflict” when you try to define the concept of conflict. It is meaningless.

Again,

I wrote the novel. This novel can be in two states relevant to our discussion.

It can either be copied by some other person or in can be un-copied. Two states can not exist at the same time.

I want it to be un-copied, untouched and you want it copied.

If conflict, “merely means the presence of alternatives, courses of actions which are mutually exclusive” how are these mutually exclusive states (the state of the novel being already copied, and the state where it wasn’t) do not present a conflict?

Peter Surda August 17, 2010 at 9:20 am

Kerem,

answer this question: can you interact with non-rival goods without the use of rival goods? Your whole “theory” depends on the answer being yes.

Peter Surda August 17, 2010 at 9:27 am

Kerem,

I won’t address your fallacies in detail, because you just repeat the same errors and show ignorance of objections. Indeed, you do not show any signs of comprehension of the objections.

You shout “externalities” and claim victory. You do not comprehend that my argument does not depend on the definition, or even use, of the word externality. I picked externalities because they are a known economic concept and can be used for a good illustration. The whole argument can be rephrased without them:

You use causality to define property. You also admit that causality is an insufficient criterion for property. However, you do not provide a method to distinguish between causality that is property and causality that isn’t.

Your theory is full of holes and you show no intention of addressing them. You prefer to live in your paradise of metaphors and contradictions.

Michael A. Clem August 18, 2010 at 10:36 am

You’re mixing up the use of the term “conflict” There may be conflicting desires when it comes to copying a novel–the author wishes it to not be copied (except for official publication copies by his publisher, of course), while another person wishes to copy it. But that’s a conflict of desires, not a conflict over scarce resources. It’s the latter that is economically meaningful–the former is meaningless in economic terms.

Peter Surda August 18, 2010 at 10:55 am

But that’s a conflict of desires, not a conflict over scarce resources.

Of course it is a conflict over scarce resources: paper, ink, data storage in computers. These resources cannot be utilised in a way that the desires of a pirate and author are fulfilled simultaneously. The alternative uses of those resources are mutually exclusive, and that is the sole reason for the existence of a conflict.

Stephan Kinsella August 18, 2010 at 11:12 am

Of course there can be no conflict of desires or interests. There are only conflicts over and with respect to scarce resources.

As Hoppe writes (in an unpublished piece; but he has written similar things elsewhere I believe):

Let me begin with some abstract but fundamental theoretical considerations concerning the purpose of social norms and the sources of conflicts. If there were no interpersonal conflicts, there would be no need for norms. It is the purpose of norms to help avoid otherwise unavoidable conflicts. A norm that generates conflict, rather than help avoid it, is contrary to the very purpose of norms, i.e., a dysfunctional norm or a perversion.

It is often thought that conflicts result from the mere fact of different people having different interests or ideas. But this is false or at least very incomplete. From the diversity of individual interests and ideas alone it does not follow that conflicts must arise. I want it to rain, and my neighbor wants the sun to shine. Our interests are contrary. However, because neither I, nor my neighbor controls the sun or the clouds, our conflicting interests have no practical consequences. There is nothing that we can do about the weather. Likewise, I may believe that A causes B, and you believe that B is caused by C, or I believe and pray to God and you don’t. But if this is all the difference there is between us nothing of any practical consequence follows. Different interests and beliefs can lead to conflict only when they are put into action: when our interests and ideas are attached to or implemented in physically controlled objects, i.e., in economic goods or means of action.

Yet even if our interests and ideas are attached to and implemented in economic goods, no conflict results so long as our interests and ideas are concerned exclusively with different — physically separate — goods. Conflict only results, if our different interests and beliefs are attached to and invested in one and the same good. In the Schlaraffenland, with a superabundance of goods, no conflict can arise (except for conflicts regarding the use of our very own physical bodies that embody our interests and ideas). There is enough around of everything to satisfy everyone’s desires to the fullest. In order for different interests and ideas to result in conflict, goods must be scarce. Only scarcity makes it possible that different interests and ideas can be attached to and invested in one and the same stock of goods. Conflicts, then, are physical clashes regarding the control of one and the same, given stock of goods. People clash, because they want to use the same goods in different, incompatible ways.

Silas Barta August 17, 2010 at 11:27 am

I agree with Kerem_Tibuk, of course, who is making the same points I would, and elegantly. I only want to add that Stephan_Kinsella *and* Hoppe et al. are *already* using my definition of conflict when they derive their theories of property. The only question is whether they will *consistently* use that definition when applying it to specific cases.

Whe Stephan_Kinsella justifies the existence of property, he says it’s necessary on the grounds that there must be a way to resolve conflicts (in the sense of determining whose claim is superior, even if one of them rejects this judgment). Propery rights are a *way* to resolve this, but there can be conflicts based on anything. If one person believes that Joe’s car should be used for a monster truck rally, while Joe believes it should be used for Joe’s purposes, that is a conflic. Property rights tell us that Joe’s claim is superior, but that doesn’t imply that there is no conflict!

Likewise, people might disagree about whether “Joe’s” things should be used to instantiate the content of a Harry Potter novel. It would be nonsensical to say that Rowling’s claim is invalid because there’s “no conflict” over the copying of the novel simply because you support Joe’s side — yet this is exactly what Stephan_Kinsella’s argument from non-scarcity amounts to, when you consistently carry over the definition of conflict/scarcity!

(By the way, I’ve recently made a post on my blog that shows that Stephan_Kinsella has likewise “proved” that you shouldn’t have to pay anybody for work already done; after all, that work has been performed and is no longer “scarce”. He still doesn’t have an explanation for why he’s obligated to make such a payment if he really believes in rights in scarce resources.)

Peter Surda August 17, 2010 at 12:51 pm

Propery rights are a *way* to resolve this, but there can be conflicts based on anything.

No, there cannot. You can’t have conflicts in non-rival goods, because the are no mutually exclusive options.

people might disagree about whether “Joe’s” things should be used to instantiate the content of a Harry Potter novel

Although you base your theory on metaphors like “instantiate”, at this moment it is irrelevant, since by any reasonable interpretation instantiation involves the use of rival goods. Therefore, the contest you describe revolves around those rival goods which can be potentially used for instantiation. Misinterpreting this as a conflict over non-rival goods (“Harry Potter novel”) is fallacious. I asked you already how to instantiate without involving rival goods, remember?

Your problem, just like Kerem’s, is that you create arbitrary assumptions and then build a theory on them, oblivious to the fact that taken together, the sum of these assumptions is self-contradictory.

Silas Barta August 17, 2010 at 12:55 pm

@Peter_Surda: I agree that all conflicts about IP involve some physical good — of course! But Stephan_Kinsella is trying to deny the existence of this conflict in order to prove why one side’s claim in the conflict is superior.

If you agree that that’s absurd, then you’re on my side on this, even if you believe there are other good reasons to oppose IP.

Peter Surda August 17, 2010 at 1:07 pm

I agree that all conflicts about IP involve some physical good — of course!

That however invalidates your economic calculation argument.

But Stephan_Kinsella is trying to deny the existence of this conflict in order to prove why one side’s claim in the conflict is superior.

Surely that must be a misinterpretation.

Silas Barta August 17, 2010 at 5:12 pm

That however invalidates your economic calculation argument.

No, it doesn’t.

Surely that must be a misinterpretation.

Alas, truth is stranger than fiction.

Peter Surda August 18, 2010 at 3:41 am

Sure it invalidates it. If all activities involving non-rival goods also involve rival goods, then there is no activity uncovered by property rights or the price mechanism.

Stephan Kinsella August 17, 2010 at 7:19 am

K Tibuk: “There is conflict regarding IP. There is also rivalry regarding the use of it.

I wrote a novel, I own it and we will have a conflict when you interact with it against my wishes.”

No. Since the “novel” is non-scarce there is no way for you to actually control “it” without controlling all the real property in the universe. This is precisely why people like you want to use the physical force of legal system to direct it against the physical bodies or physical property of copyright infringers. For example if you sue for copyright infringement you are asking the court to use the physical force of guns etc. of its minions to back up an order to me: “do not use your body in such and such way” or “pay $10,000 of your money to X”. It is always all about money and real property. Thus, if you sue me for copyright infringement, it is really a dispute about who owns or controls my body, my money, my printing press. Now we real libertarians already have an answer to this: I own these things, not you. You IP fascists want to transfer property rights from the owners to the idea creators.

This is similar to the “religious wars” issue: people use clunky language to say that people fight over religion. Of course this is simply imprecise. THey always fight over something scarce: land, territory, or each other’s bodies. Religion might be the motivation or reason for the conflict, but it is not what is actually conflicted over.

Kerem Tibuk August 17, 2010 at 8:08 am

“No. Since the “novel” is non-scarce there is no way for you to actually control “it” without controlling all the real property in the universe.”

This is pure nonsense. You have a choice regarding your interaction with the novel. Writing a novel and owning it is not claiming a broad ownership over everything, only extending your sovereignty over a particular and identifiable property.

“This is precisely why people like you want to use the physical force of legal system to direct it against the physical bodies or physical property of copyright infringers.”

Using defensive force against aggressors is the same whether a property is tangible or not. And no you do not a need a monopoly like the state to protect property.

“For example if you sue for copyright infringement you are asking the court to use the physical force of guns etc. of its minions to back up an order to me: “do not use your body in such and such way” or “pay $10,000 of your money to X”. ”

Pure nonsense. When I sue you I say, “do not interact with that particular property that is mine”.

You can use your own property however you want. Only patent laws are too broad to cause problems because they disregard possibility of independent discovery and this issue has been talked about many times.

“Thus, if you sue me for copyright infringement, it is really a dispute about who owns or controls my body, my money, my printing press. ”

Copyright infringement is trespass. When you trespass through my land and if I stop you or sue you afterwards, do you think I am controlling your body?

Why don’t you try defining the concepts you use to define property?

Why don’t you define “conflict” without the use of tautology?

Why don’t you answer my challenge regarding “inequality being a conflict source”?

Why don’t you try do argue against socialism without the use of that useless Lockean proviso?

Stephan Kinsella August 17, 2010 at 9:12 am

“This is pure nonsense. You have a choice regarding your interaction with the novel. Writing a novel and owning it is not claiming a broad ownership over everything, only extending your sovereignty over a particular and identifiable property.”

this is equivocation. By “novel” you don’t merely mean a physical book with a certain ink pattern on the paper. You mean some “ideal object” in Tom Palmer’s terminology–you mean all instances of the pattern itself. If this is what you mean, then you are talking about interaction with a pattern. Interaction with a pattern is simply LEARNING. So now you are saying that we have a choice to learn or not. If we decide to learn, we obligate ourselves and give partial control of our bodies and property to those who “originated” the information that we are learning.

In other words, you explicitly want to impede learning by imposing a heavy penalty or fine or tax on it. Learning and absorbing information is a productive and harmless activity, a way of exploiting the infinite abundance of information itself. You IP guys hate this and want to stop it. You are taxing it. You are saying: NO MORE LEARNING without PAYING A PRICE to some state-designated “official” “originator” of “the” idea.

This is monstrous and anti-liberal.

Kerem Tibuk August 17, 2010 at 10:26 am

“By “novel” you don’t merely mean a physical book with a certain ink pattern on the paper. You mean some “ideal object” in Tom Palmer’s terminology–you mean all instances of the pattern itself.”

I am talking about a particular “man-made” pattern yes but that is not a ideal object. In fact it is just the opposite. “A novel” is an ideal object, the novel “Harry Potter” is not. And I don’t know who Tom Palmer is.

“If this is what you mean, then you are talking about interaction with a pattern. Interaction with a pattern is simply LEARNING.”

No it is not. You can learn without the use of a man made pattern. And if you want to learn with the interaction of man made pattern you need the creator of the patterns concent.

“So now you are saying that we have a choice to learn or not.”

No I am not. You can do without reading Harry Potter. In fact I haven’t read it myself. I don’t thing I have a right to it, without the consent of its creator. You are the one bringing the platonic ideal objects by the use of concepts like “pattern, “learning” etc. Do you think if you did without Harry Potter your” right to learn” would be harmed? Do you even think you have right to learn?

“If we decide to learn, we obligate ourselves and give partial control of our bodies and property to those who “originated” the information that we are learning.”

No you do not give partial control of your body and your property, you only limit your actions REGARDİNG THAT SPECİFİC PATTERN which you wouldn’t have access to if it wasn’t for the creator anyway thus there is really no restrictions regarding your body or property. Do you think Crusoe’s body and property is controlled because he doesnt have access to the novel Harry Potter?

“In other words, you explicitly want to impede learning by imposing a heavy penalty or fine or tax on it.”

Hahaha. Yeah, in other words, but your irrelevant other words. Nothing I have said leads to an absurd conclusion like that.

” Learning and absorbing information is a productive and harmless activity, a way of exploiting the infinite abundance of information itself. ”

I dont usually get into utilitarian arguments regarding property rights but even then you wouldnt have much of an argument.

“You IP guys hate this and want to stop it. You are taxing it. You are saying: NO MORE LEARNING without PAYING A PRICE to some state-designated “official” “originator” of “the” idea.”

Yes we also want to drink the blood of new born babies. we are the bogey man, thus you must be right.

Stephan Kinsella August 17, 2010 at 11:18 am

No it is not. You can learn without the use of a man made pattern. And if you want to learn with the interaction of man made pattern you need the creator of the patterns concent.

“So now you are saying that we have a choice to learn or not.”

No I am not. You can do without reading Harry Potter. In fact I haven’t read it myself. I don’t thing I have a right to it, without the consent of its creator.

Kerem, like other insincere or ignorant IP morons, who do not even bother to understand the very legal system they are endorsing, apparently does not even realize that even now, even though he has not read Harry Potter, even though he has not “interacted with the pattern” (whatever the hell that means, apart from, you know, learning facts and acquiring information about the world), he may not write a book of his own imagination called “Kerem’s Further Adventures of Harry Potter.” This would be copyright and probably trademark infringement.

I am getting sick of morons who don’t have the mental perspicacity or honesty to even know what they are defending.

Kerem Tibuk August 18, 2010 at 5:20 am

Stephan,

This is my last warning to you. Watch you language or you will be banned..

Silas Barta August 17, 2010 at 12:34 pm

@Stephan_Kinsella: and I’m getting tired of people who claim that IP rights are so obviously invalid, but yet can’t resolve his opinion on that issue with his opinion on EM spectrum rights.

If you ever want to give it a try, and address the similarities I’ve shown, let me know.

Ditto for the IP calculation argument.

Peter Surda August 17, 2010 at 1:02 pm

Ditto for the IP calculation argument.

As I’ve been trying to explain for several weeks now, IP is a rearrangement of property rights, rather than introduction of property rights into things which were uncovered before. Redistribution is not a calculation argument, it’s a utilitarian one.

Jay Lakner August 17, 2010 at 1:05 pm

Nicely worded Peter.

I can’t believe these guys keep trying to bring up the calculation argument as a defense of IP. This line of reasoning has been destroyed over and over again.

Silas Barta August 17, 2010 at 1:09 pm

Good point, Peter_Surda. Obviously, demand for good intellectual works is reflected just as well by prices in an IP-free regime as demand for physical goods because … how did you say it? Ah, here we go: “IP is a rearrangement of property rights, rather than introduction of property rights into things which were uncovered before.”

There, that totally explains the mechanism by which prices inform entrepreneurs the relevant amount they should invest in producing intellectual works versus physical goods. Somehow. Maybe if I read it a few hundred times. But it definitely answers my question! I’m just not smart enough to understand how it’s responsive, maybe.

But just in case, could anyone translate Peter_Surda’s point into something that’s responsive?

Jay Lakner August 17, 2010 at 1:19 pm

Silas,

Patterns only need to be originated once. Then never again. They duplicate after that. One does not have to go through a research process every single time they wish to produce a good arranged into that pattern. Hence any monopoly price establish for a pattern does not convey information towards research.
Physical goods need to go through a production process for every single physical good created. Hence their price conveys information towards production.
Can you not see the difference?

Silas Barta August 17, 2010 at 1:42 pm

Yes, Jay_Lakner, and once you are rescued, you don’t need to be re-rescued for the same distress situation.

You should still pay the rescuer, though.

(And how does that address the economic calculation argument? If the price of the rights to use any idea is fixed at zero, how again does some market mechanism signal the relative merit of intellectual works vs. physical goods…? No idea? Didn’t think so.)

Jay Lakner August 17, 2010 at 4:50 pm

Silas Barta,

I see you have no idea what I’m talking about.

sigh

Peter Surda August 17, 2010 at 5:03 pm

There, that totally explains the mechanism by which prices inform entrepreneurs the relevant amount they should invest in producing intellectual works versus physical goods.

Just when I thought the point might be getting through, you demonstrate you still don’t understand the argument. The “producing intellectual works versus physical goods” is a false dichotomy. You cannot produce non-rival goods without producing rival goods. So the decision is actually between producing different sets of rival goods. The whole concept of non-rival goods is just a different interpretation of phenomena involving rival goods. It’s not anything “new”, it is just a different way of saying the same.

Silas Barta August 17, 2010 at 5:20 pm

@Peter_Surda:

The “producing intellectual works versus physical goods” is a false dichotomy. You cannot produce non-rival goods without producing rival goods.

Trivially false. You don’t have to make an airplane to make its blueprints. Etc.

Peter Surda August 18, 2010 at 3:48 am

Silas, this is the last post where I don’t call you a moron. Blueprints must also be a rival good before they can be used. You cannot use them without having them in your brain, computer or on paper. These are all rival goods, or in your words, instantiations of a patter. Without the instantation, a pattern is unusable, or, to use a metaphor, a pattern cannot exist without an instantiation. How can you interact with a pattern without instantiating it?

You claim you understand that all conflicts must involve rival goods, but obviously you don’t. That also means that any choice or action requires rival goods too.

Silas Barta August 18, 2010 at 7:24 am

@Peter_Surda: That’s a cop-out. People can value the physical stuff, or they can value the knowledge behind the stuff. In the case of intellectual works like the airplane design, they might value the knowledge of how to build the airplane, regardless of the physical medium. Constructing the knowledge of the design of the airplane is satisfying a different desire than constructing the airplane.

No matter how you label the term, entrepreneurs must decide between making one more boring airplane vs. designing a new one. You haven’t shown how a market signal reflects the merit of one compared to another. Please make a serious effort to do so this time, for the first time.

Peter Surda August 18, 2010 at 8:12 am

People can value the physical stuff, or they can value the knowledge behind the stuff.

Now you switch back to utilitarianism.

In the case of intellectual works like the airplane design, they might value the knowledge of how to build the airplane, regardless of the physical medium.

That is true, however, the former is impossible without the latter. This is a crucial point.

No matter how you label the term, entrepreneurs must decide between making one more boring airplane vs. designing a new one.

This is correct and I never denied it.

You haven’t shown how a market signal reflects the merit of one compared to another.

You avoid the actual fallacy in your argument. You claimed that without ownership of non-rival goods, such a decision is impossible because the outputs cannot be traded. I showed that the outputs can be traded, because you will always have an output that is rival.

Now, you appear to be making an entirely different argument, in that the prices of those rival goods do not follow some very specific utilitarian aspects of the production. That claim, like any other utilitarian claim, is a double edged sword, because the same argument can be made against you, or for any other arrangement, and there is no reason why your aspects of the production should be given more merit than any other aspects of the production.

Silas Barta August 18, 2010 at 9:33 am

If anyone can see how Peter_Surda’s latest comment addresses the specific point I brought up, please translate for me. Thanks.

Peter Surda August 18, 2010 at 10:08 am

The economic calculation argument says that in the absence of market and a pricing mechanism, rational decisions cannot be made. You originally claimed that without IP, there is are situations that are uncovered by the the price mechanism. I demonstrated that it is false, IP does not introduce prices into situations which did not contain prices without it, rather it redistributes property rights and changes existing prices. You are unable to admit defeat, therefore make up a different argument, claiming that the prices that arise in the absence of IP are somehow undesirable. I win, you lose.

Silas Barta August 18, 2010 at 11:48 am

@Peter_Surda: You still haven’t explained how the market signals reflect the relative merit of the new airplane vs. the new airplane design.

Peter Surda August 18, 2010 at 12:04 pm

You still haven’t explained how the market signals reflect the relative merit of the new airplane vs. the new airplane design.

The question is nonsensical, it is a false dilemma. If you want to earn money by designing new airplanes, you do not need to create an airplane. You can just create a blueprint and sell that.

Now, you will probably say that you might not be able to cover all the expenses for the creation of the blueprint, unless you receive the full benefits from your blueprint (i.e. making copying without your permission illegal). But that is an unfixable problem that has nothing to do with IP. You can never receive full benefits of any of your action, since causality extends to infinity. What you are left with is utilitarianism and redistribution of wealth.

Silas Barta August 18, 2010 at 4:47 pm

@Peter_Surda: So is that your position? IP-free markets only allow prices to accurately reflect the value of ideas when … there’s only one person who will ultimately instantiate that idea? I think that pretty much concedes the point then, even if I agree with everything you’ve said there.

Peter Surda August 18, 2010 at 5:42 pm

IP-free markets only allow prices to accurately reflect the value of ideas when …

What the hell is “accurately reflect the value of ideas” and what does it have to do with the economic calculation argument? You constantly try to mix normative claims into the debate. Kindly stop that.

My point is that the only difference between a system with IP and without IP is redistribution. One cannot claim, like you do, that one of those distributions is a more accurate representations of values, because that would require the existence of a method of measuring value other than market price. Once you make an assumption that there is a different measure, then there is the question why your measure should be the preferred to others. Indeed, there is a question what your measure actually is, other than some vague feeling of accuracy that you cannot explain.

… there’s only one person who will ultimately instantiate that idea?

I have no idea how you came to this conclusion. You have not defined what “instantiate that idea” means, other than it denotes a causal relationship, and we all agree that causality is an insufficient criterion for any of the conclusions that you are making. Causality is, for practical purposes, unavoidable. One cannot know if a certain action is causally related to an object or not, without having some sort of knowledge about that object. That creates a catch 22: you must at the same time abstain from certain actions without knowing what those actions are.

I’m a falsificationist. I do not prove, I disprove. Humbug eliminated, that which remains contains the truth.

Kerem Tibuk August 17, 2010 at 4:22 am

Also, the issue regarding law is not how it is happens to be known and enforced.

The main issue is if the law relates to reality or not.

A law can be a common law, its first recognizer anonymous, and can come down through generations, or it can be legislated. If it relates to reality there is no problem.

The usual divide between civil law and common law and why common law relates to reality more than civil law is that, man most of the times rebels against reality and can think it can change the laws of reality by the stroke of the pen. Man tris to undermine especially economic laws and almost every one who follows this site can give examples of that.

But all this tells us that civil law is prone to disregard reality when it comes to law, and common law tends to be more in line with reality thus libertarianism, but all law whether common or civil has to be filtered through reason. A common law can be wrong as much as a civil law can

Jeffrey Tucker August 17, 2010 at 7:43 am

This is a remarkable post, really expansive and interesting. It is interesting to try an experiment and re-read Rothbard on property; whenever he drifts into Lockean ideas (and this goes for Hoppe) too, substitute the Roman law idea and see how much more quickly and precisely you arrive at the conclusion.

Beefcake the Mighty August 17, 2010 at 9:04 am

To build a better mouse-trap, you need to use factors of production. Does everyone agree that *these* are scarce, that conflict can arise over *these* factors? If so, is it not clear that there must be some way of resolving this conflict, of determining *who* may justifiably or legitimately use these factors and who may not? I.e., some way of assigning property rights? Finally, is not the pro-IP position that such rights are determined *not* by first-use (i.e., homesteading), but rather by the fact of first *conceiving* some use for these factors?

Why is it not clear that the pro-IP position conflicts greatly with libertarianism?

Stephan Kinsella August 17, 2010 at 9:09 am

“is not the pro-IP position that such rights are determined *not* by first-use (i.e., homesteading), but rather by the fact of first *conceiving* some use for these factors?”

Yes. This is why the title of one of my first anti-IP articles is In Defense of Napster and Against the Second Homesteading Rule.

Silas Barta August 17, 2010 at 11:57 am

Yes, there needs to be a way to sort out who has a superior claim when there are conflicting claims to use what, where, when and how. No one’s disputing that. What people are disputing is whether your homesteading of the physical resource suffices to justify a resolution of *every* conflict involving uses of the resource in your favor.

I know it may just blow your mind, but the resolution that “Joe may do anything with this paper that doesn’t use other people’s physical resources except instantiate Harry Potter novels” is another way to resolve the conflict. So is “Joe may do anything with this metal except osciallate a current through it between 850 110 kHz”.

But … but … how can someone *possibly* be the “owner” of that metal *without* having the right to run whatever current he likes through it? I don’t know, ask Stephan_Kinsella. Just make sure not to tell him you’re talking about EM waves before you get his answer.

Jay Lakner August 17, 2010 at 12:11 pm

Silas Barta,

I just finished a post directed at Kerem Tibuk which I think applies to your objections also. Maybe you should read it before reading the rest of this post. (it’s below somewhere)

EM broadcasting, like every other action, affects other people’s property. The question is, is the effect too “big”. By broadcasting at an already utilised frequency, many would consider that you are causing a major negative effect on the other broadcaster. Now this doesn’t cause major problems, one can simply broadcast on a different frequency. Problem solved.

Just like other communication, such as talking, conventions have emerged. You don’t speak when other people are speaking. Likewise, you do not broadcast at 850,110 kHz when someone else is broadcasting at 850,110kHz.

Silas Barta August 17, 2010 at 12:32 pm

@Jay_Lakner:

EM broadcasting, like every other action, affects other people’s property.

So do ideas. Next?

And I think Kerem_Tibuk is doing just fine without me, I rarely find I need to add something.

Jay Lakner August 17, 2010 at 12:41 pm

Excuse me, you have not addressed my point at all.

The effect of copying an idea is negligible. The effect of broadcasting at a frequency which someone else is using is huge, much like the effect of talking when someone else is talking.

Silas Barta August 17, 2010 at 12:53 pm

The effect of copying an idea is negligible.

Well, gee, then why do people seem to conflict over the spread of ideas so much?

Jay Lakner August 17, 2010 at 1:00 pm

Same reason businesses everywhere are clamouring for state-granted monopolies. It’s called wealth. People fight wars for wealth. Did you know that?

Silas, you are going to have to do better than this if you truly wish to argue that my altering the configuration of my physical property into some pattern has a non-negligible physical effect on the property of the originator of that pattern.

Silas Barta August 17, 2010 at 1:05 pm

So is it just a clamor for a state-granted monopoly when people want exclusive rights to broadcast at a specific frequency?

Ideas and EM waves both propagate through other people’s property. Why does only one of them count as “interference” or whatnot?

Required reading: If you support EM spectrum rights, you support gong-hitting rights, which look suspiciously like IP.

Jay Lakner August 17, 2010 at 1:10 pm

Silas,

If broadcasting EM waves over someone’s property causes a large unwanted negative effect on someone’s property, then the broadcasting should be discontinued. I have never said any different.

Ideas do not propagate. “Propagation of ideas” is a metaphor.

Silas Barta August 17, 2010 at 1:46 pm

@Jay_Lakner: what if they don’t cause any damage to the property, but only with other people’s ability to broadcast along that signal.

And the “propagation” bit is no metaphor. Once people start instantiating good ideas, light reflects off them, carrying the information represented in intellectual works. (Think about looking out my window with a telescope and reading someone’s book as they open it. No, not in terms of the privacy issue, but how those light waves bounce off the book and come to my window, somehow without violating my rights. Sure looks like an idea propagating to me!)

Sure, you typically don’t notice this happening. And gosh, you’d have to build special equipment to even *detect* these light waves from them, flowing over your property. But, well, you could say the same thing for radio broadcasts, couldn’t you? Hm…

Jay Lakner August 17, 2010 at 4:59 pm

Silas Barta,

You have gone out of your way to deflect the conversation so far away from my arguments and to such extremes that all I can do is feel sorry for you. There is very little point in even bothering to converse with you. You clearly do not understand the arguments I’ve made and you clearly have no intention in grappling with them with honest debate.

The “propagation” of ideas can alter the physical integrity of other people’s property in a non-negligible way??? Are you so desperate to cling to your pre-conceived notions of property that you’ll go so far as to make this argument???

It’s pathetic really.

Silas Barta August 17, 2010 at 5:25 pm

@Jay_Lakner: First, it’s not my job to keep the debate in your comfort zone. I explained why the points are relevant and why they need to be addressed for your position to be defendable. If you don’t see any of the connections, please ask for clarification — it’s not a big deal.

Second, propogation of patterns over other people’s property, of the kind I’ve described, happens very similarly for ideas AND for EM waves. In both cases, you don’t notice the pattern propagation unless you look for it. In both cases, the (initial) transmitter prefers that others not broadcast the same pattern for his inscrutable reasons.

Yet, in your mind, one of those cases (EM waves) do you believe that the transmitter has the right to stop others from making the same pattern, while in the other case (ideas), you do not. That is a serious inconsistency on your part. Reconcile it, or concede your error.

Peter Surda August 18, 2010 at 3:52 am

The only similarity between propagation of information of EM waves is that they both are a type of causality. However, long before we have established that causality is not a sufficient criterion for homesteading or property violation. So, you cannot use causality to prove your point.

Jay Lakner August 18, 2010 at 4:04 am

Silas Barta,

You are just embarrassing yourself. You insist on making extremely vague arguments in an attempt to salvage your completely debunked EM analogy to IP.

Ideas do not propagate like radio waves. Get your head on straight and start to look at the specifics of your argument.

An EM wave is a combination of oscillating electric and magnetic fields. An oscillating electric field generates an oscillating magnetic field, the magnetic field in turn generates an oscillating electric field, and so on. This is how EM waves “propagate”. EM waves carry momentum and energy which directly interacts with any matter it comes into contact with. Low energy EM waves, such as radio waves, only very weakly interact with the matter it passes through. Hence it’s considered non-aggressive to broadcast radiowaves because the effect on other’s property is negligible most of the time.

When one talks about ideas “propagating”, they speaking metaophorically. All ideas are simply patterns, that is, an arrangement that tangible materials can take. A pattern itself does not propagate. If by chance a bunch of rocks on the moon happen to get arranged into a perfect triangle, that triangle does not spread around forming triangles all over the moon.
When we speak of ideas “propagating”, we are speaking of mankind’s inherent ability to learn. Humans learn by recognising patterns and copying them. So if a human sees a bunch of rocks arranged into a perfect triangle, he recognises the triangular shape and develops the concept of organising other materials into that shape if it suits his purposes. The recognition of this pattern does not occur due to the pattern’s ability to “propagate”. That’s ridiculous. It only occurs because human beings have the ability to learn.

You say that the originator of a pattern is the same as a transmitter of radio waves. Once again ridiculous. If a write a novel, I am not “transmitting” this novel. I am simply arranging my paper and ink into a specific configuration. Due to causality, this arrangement will become known by others. Not because the novel “propagates”, but because other entities causally related to the novel propagate. (eg light)
My novel is not directly interacting with other people’s property. I’m not attacking you with “novel-rays”. My radiowaves however, are directly interacting with other people’s property.
The transmition of radiowaves is a direct physical attack on other people and their property. The effect of this “attack” is usually so incredibly small that we don’t consider it a violation of rights. But when the effect is not negligible, then it is considered a violation of rights.

Silas, you’re not doing yourself any favours by continuing this false IP/EMwave analogy. Like Peter Surda says, you are thinking in terms of metaphors. On the surface the cases may look similar, but when you look at the specifics and ask yourself what is actually happening in each case, it becomes clear they are totally different.

Silas Barta August 18, 2010 at 7:21 am

@Jay_Lakner: I already addressed all of that here and showed both the metaphorical and literal similarities between the EM wave propagation and idea propagation. Your comment does not address those at all, and so can’t be considered responsive until it does.

Jay Lakner August 18, 2010 at 7:43 am

Silas,

Examine what is actually happening. Look at the specifics. If you did you would realise that my post completely destroyed your “reasoning”.

You wrote:
“Once people start instantiating good ideas, light reflects off them, carrying the information represented in intellectual works.”

The idea is not propagating. The light that is interacting with the physical representation of the idea is propagating. A human receives this light through his eyes and the signal goes to the brain which identifies the pattern of symbols on the page.
What you have mislabelled as “idea propagation” is actually human identification and learning resulting from EM propagation.
In essence, you’re trying to show that “idea propagation” and “EM propagation” are the same by misinterpreting an example of “EM propagation” to be an example of “idea propagation”.

Silas Barta August 18, 2010 at 9:32 am

@Jay_Lakner: And that’s different from the propagation of information via deliberate EM wave transmissions … how, again?

Compare apples to apples, please.

Jay Lakner August 18, 2010 at 10:23 am

Silas Barta,

You have completely missed the point.

And I’m beginning to think you’re doing so deliberately.

So I’m done.

I’m going to go hide in a dark cave somewhere so people can’t damage my property with “triangle waves” and “Harry Potter waves”.

Peter Surda August 17, 2010 at 12:54 pm

So do ideas. Next?

Metaphor. Next?

Silas Barta August 17, 2010 at 12:56 pm

Incomplete thought. Next?

Stephan Kinsella August 17, 2010 at 7:13 pm

Silas/John Sharp: “Second, propogation of patterns over other people’s property, of the kind I’ve described, happens very similarly for ideas AND for EM waves. In both cases, you don’t notice the pattern propagation unless you look for it. In both cases, the (initial) transmitter prefers that others not broadcast the same pattern for his inscrutable reasons.”

Ideas are propagated like EM waves ? mwa ha ha ha ha ha ha jesus you get more ridiculous allatime.

Silas Barta August 17, 2010 at 8:07 pm

Read my explanation above. For one thing, when an idea is instantiated, light bounces off of it and onto other properties; with the right equipment (telescopes, millimeter wave scanners, etc.) you can get that information to higher and higher precision. That, by itself, makes it identical in all relevant respects to EM: like EM waves, you don’t notice unless you look for them, and like EM waves they propagate as EM radiation.

In the more general case, ideas propagate because they are instantiated and travel with someone, or are directly communicated. In either case, they are brought onto or through others’ property without their specific consent.

Michael A. Clem August 18, 2010 at 11:22 am

Once again, the thread is layered too deep to directly reply. When an idea is instantiated, it is embedded or encoded in some physical medium: paper, compact disc, electromagnetic wave, etc. It is the physical property of the medium that is “propagated”, not the idea itself. Right there, we see that EM and IP are not equivalent.

Silas Barta August 18, 2010 at 11:53 am

Stay up on the exchange so I don’t have to refute this argument yet again.

Beefcake the Mighty August 17, 2010 at 12:18 pm

“I know it may just blow your mind, but the resolution that “Joe may do anything with this paper that doesn’t use other people’s physical resources except instantiate Harry Potter novels” is another way to resolve the conflict.”

It doesn’t blow my mind, I simply regard this resolution as illegitimate. This is what blows my mind: after all these debates you really don’t seem to grasp what the other side is saying. Example:

“There exist a real disagreement about who should do what. That disagreement will persist whether or not you say that “oh, the owner of this thingamajig gets to make the call”.”

It’s irrelevant whether “disagreement” persists after a formal resolution has been put forth. What is is relevant is the nature of that resolution, specifically how ownership is established. Perhaps you disagree with the theory of ownership put forth by Kinsella et al. (I say “perhaps” because you harp on so many irrelevant details it’s really not clear), but your defense of IP has to concern *this* point, and I’m unaware that you’ve ever put forth such a theory of property rights. (Playing word games with the property rights theories of others does not qualify.)

Silas Barta August 17, 2010 at 12:30 pm

It doesn’t blow my mind, I simply regard this resolution as illegitimate.

Great. But there are good reasons and bad reasons to regard it so, and “ideas aren’t scarce” is a bad one, as I’ve made clear. If you can stick to those other reasons, then 50% of my gadflying is over with.

It’s irrelevant whether “disagreement” persists after a formal resolution has been put forth.

That’s why I didn’t base my argument solely on that, and why you needed to read the surrounding sentences to get the point I was making there.

Beefcake the Mighty August 17, 2010 at 12:35 pm

“That’s why I didn’t base my argument solely on that, and why you needed to read the surrounding sentences to get the point I was making there.”

The next sentence in the passage I quoted was:

“Resolving the conflict, here, simply means positing a method that determines whose claim is better.”

Precisely what people like Kinsella have been doing. Since your next paragraph in the post I quoted then goes on to display pretty serious ignorance of this work, I’d say you don’t have worry about losing your gadfly status.

Silas Barta August 17, 2010 at 12:37 pm

How about just replying to that comment directly so we can see if your argument actually responds to anything?

Beefcake the Mighty August 17, 2010 at 12:41 pm

“How about just replying to that comment directly so we can see if your argument actually responds to anything?”

Look it up below. It was one of your snarky responses (aren’t they all) to Magnus.

Silas Barta August 17, 2010 at 12:44 pm

I know what it was, but you’re not showing the argument in full context, and you haven’t otherwise let people know what argument you’re responding to. Please show what inference you believe the argument to be making, and how it errs. Then, I can either show you how that wasn’t the argument, or how your counterargument is in error.

See, this is the normal give and take of civilized discussion.

Beefcake the Mighty August 17, 2010 at 9:11 pm

“What people are disputing is whether your homesteading of the physical resource suffices to justify a resolution of *every* conflict involving uses of the resource in your favor.”

This might be an acceptable response, except as far as I can tell every counterexample you give of such a conflict involves a metaphor relating non-physical entities to physical goods. For example,

“I know it may just blow your mind, but the resolution that “Joe may do anything with this paper that doesn’t use other people’s physical resources except instantiate Harry Potter novels” is another way to resolve the conflict.”

Note your use of the term “except.” You beg the question by supposing that “instantiation” of an existing creation qualifies as a physical resource, to be excepted from the general homesteading rule. What you really want to say, it seems, is that if someone has previously created something, then later actors may not use means, however acquired, in such a way as to replicate that original work. Note that none of your objections here and elsewhere about scarcity, conflict, homesteading, property, etc., have any relevance. The question you simply have to answer is, why are first creators justified in preventing others from acting in certain ways (specifically, to replicate previous creations)? Can you answer THIS question?

Beefcake the Mighty August 18, 2010 at 5:49 am

To clarify my point here, what you should write is,

“the resolution that “Joe may do anything with this paper that doesn’t use other people’s physical resources AND instantiate Harry Potter novels” is another way to resolve the conflict.””

and then ask, why this kind of resolution should be regarded as legitimate.

Silas Barta August 18, 2010 at 12:11 pm

Note your use of the term “except.” You beg the question by supposing that “instantiation” of an existing creation qualifies as a physical resource, to be excepted from the general homesteading rule.

Nope, relevant resource is still the physical book, and my point doesn’t assume otherwise. It’s just that this resolution of the conflict does not require one party to have 100% usage rights.

And Stephan_Kinsella already admits that homesteading a physical resource does not entitle you to 100% usage rights, even 100% of the rights that don’t use others’ property. For example, he accepts that I can’t use my own property to transmit waves at certain frequencies, or to significantly impede the transmission of radio waves.

So to assume that your homesteading gives you *this* usage right (to instantiate a Harry Potter novel or EM wave) is to assume the very conclusion in dispute!

Does it make sense now?

Beefcake the Mighty August 18, 2010 at 12:45 pm

Thanks for the clarification. However, the book *is* 100% owned by the
homesteader, just as a baseball bat is 100% owned by its homesteader. It
is irrelevant what the owner may or may not do with the bat (e.g., smash
someone’s car with it). What you are claiming (and I should ammend my
previous post on this matter) is not ownership rights in some factors
of production (e.g., a book) but rather ownership rights in certain
*outputs* of those factors (e.g., a copy of a Harry Potter novel).
(Ownership and usage are completely different concepts; I’m sure this
has been pointed out here before?)

So again, you are claiming that ownership may be acquired based on
prior creation. This is in conflict with Kinsella’s (and other
libertarians) theory of property rights that ownership of goods is
acquired based on (a) homesteading, (b) production with homesteaded
goods, (c) voluntary exchange of homestead goods, or (d) some
combination of these. So I ask you: why should anyone accept your
theory of property rights?

Peter Surda August 18, 2010 at 1:20 pm

For example, he accepts that I can’t use my own property to transmit waves at certain frequencies, or to significantly impede the transmission of radio waves.

In general, you can use your property to transmit waves at certain frequencies. That’s not the limitation that is asserted. The assertion is that you cannot damage property of others, and transmitting waves sometimes does that. If you manage to transmit without damaging other people’s property, you’re off the hook. You are conflating two conditions merely because they occur simultaneously.

Beefcake the Mighty August 18, 2010 at 4:17 pm

Let me turn the question around: why *shouldn’t* homesteading give you this particular usage right (to copy a novel)?

Silas Barta August 18, 2010 at 4:44 pm

Beefcake_the_Mighty: I don’t know — why shouldn’t homesteading (components that you build into) a radio transmitter give you the right to blast it at all frequencies? Why doesn’t it get you that use?

Stephan_Kinsella can’t figger that one out, either, maybe you can do better.

Note that EM spectrum rights are like exclusive rights to use a gong at 8am. So there’s another scenario you need to reconcile your view with. If you can find a way to reconcile your view on all three (IP, EM exclusivity rights, gong exclusivity rights), I’m interested in hearing it. (For real, that wasn’t just a rhetorical remark — if you can come up with a position, you’re already ahead of Stephan_Kinsella.)

Beefcake the Mighty August 18, 2010 at 5:36 pm

Can you please address my specific example, about copying a novel?

Stephan Kinsella August 18, 2010 at 7:53 pm

Silas, I have not devoted all my mental efforts yet to the EM issue, and for that I apologize. Am I supposed to figure this all out? I posted my tentative views on this– http://blog.mises.org/10433/why-airwaves-electromagnetic-spectra-are-arguably-property/. My view is that EM spectra are scarce and can be contested over, barring some argument to the contrary. Not much comprehensive or fundamental from an Austrian point of view has been done yet, but I think Kelley and Donway’s book, and the B.K. Marcus study I linked to in that post, are basically sound. The details–maybe I, or someone else, will work on that some day.

In any case I don’t think the EM spectrum case poses any problem whatsoever for the IP case. I never said, as you implied, that homesteading a scarce resource gives you “less than 100% ownerhsip” of it. I think that mentality is a fallacy–people often say that your property rights are limited by others. No. It isy our actions that limit what you can do–with any means, whether you own it or nor. You are always free to use any means you rightfully have control of, to do anything at all except trespass on others’ property. This is just libertarianism 101. IF it is true that the EM spectrum is a scarce resource and a given airwave is in fact homesteaded by someone else (and of course the whole spectrum is not homesteaded by a given broadcaster any more than a guy with a farm homesteads all of Norht American; and I thing homesteading principles along Rothbard’s line of the relevant technological unit help delimit this), ² then I cannot take an action that invades this–this is not a limit on my property rights but on my action, just as all property rights of others are. This limit in fact presupposes and thus confirms the notion of property rights in scarce resources.

Your attempt to analogize an “information wave” to an EM wave “propagating” is sheer scientism and overuse of metaphors run amok. It is incoherent and unscientific, and proves nothing whatsoever.

Your bizarre notions about calculation somehow showing that there are (need to be?) property rights in information are literally risible. I cannot believe you keep making this argumen.t The object of action is some end state that would not otherwise occur. The end state is usually some kind of transformation of scarce resources, that you achieve by the use action employing scarce means in accordance with causal laws–causal laws that one understands, in accordance with information at one’s disposal. The information is a guide to action and plays into action that way. Information is a non-scarce good, and need not be conserved, since it may be copied and re-used without diminishing its serviceabiltiy; and it may be used simultaneously by any arbitrarily large number of actors. The calculation problem has to do with how to allocate SCARCE resources. Information may factor into this any number of ways–as a guide to action, say, or as a feature of the scarce resources you are trying to achieve by rearranging them in some way.

As an example, you may want to make money, to use in your life. A salary or profit, say. If you realize people desire a service, you can use your scarce means (your body, etc.) in accordance with skills you possess, to offer to perform this action in exchange for money. Calculation has to do with your appraisement of the costs you need to expend in the contemplated entrepreneurial action, and with your estimate of the revenues that you forecast or judge will accrue to you. That information and other aspects of action play into this is not any revolutionary insight, and dropping a few Austrian buzzwords out of context to bamboozle neophytes proves nothing at all except that you are grasping at straws in a vain attempt to justify the imposition of artificial scarcity on non-scarce things.

You seem to think that poking holes in a few aspects of a massive, multi-layered criticism of the various incomplete and fallacious arguments in favor of IP, somehow proves IP. Even if your attempt to poke a few holes were not mere incoherent, fumbling, ad hoc gadflyism, this would not prove IP. Even if we said nothing in criticism of pro-IP arguments, the IP advocate still has his burden to carry and none has yet done so. In my view there almost no coherent attempts to prove IP from a principled point of view–Rand’s was muddled and incomplete and intermixed with utilitarian arguments, Galambos’s was nutty and cranky; only J. Neil Schulman has mounted a serious attempt–and his simply does not work either, and besides even it veers into utilitarianism. So the only thing left are utilitarian arguments: these are all flawed for methodological and moral reasons from the get-go; and even setting these aside, the utilitarian still has the burden of proving that IP laws generate net social wealth overall–this means a showing that IP law (a) stimulates NET innovation; and (b) that the value of the net innovation is greater than the cost of IP law itself. Yet none even try to seriously show either one. If you ask them–they can’t answer. They cannot even show (a) by itself, much less that (a) is greater than (b). More damning still, the actual empirical studies that are done are either inconclusive on (a) AND (b) OR they conclude that (a) is negative; or that (b) is greater than (a).

The case against IP is easy and devastating, and lies on multiple fronts. Which is to say, IP arguments fail in almost every way. And this is the reason that now that we libertarians are looking closely at it, there is a massive recognition of the anti-IP point. I have been a libertarian for 25 years, studying the scholarly literature and issues and arguments in depth, and I cannot recall any issue like this ever, which is such a major shift in opinion (or adoption of an opinion) where so many people see the issue so well. Even the shift from minarchy to anarchy is not as decisive and obvious to libertarians. I am very happy about the direction of progress — and growing progress–on this issue, from various fronts. It is not just a few impressionable, gullible youngsters just aping the conclusions of a couple of anti-IP promoters; you have amazingly sophisticated, deep, arguments from people like Surda and many others who “get it”. It’s okay if you have your own views, but there is a reason your arguments are not making headway.

Silas Barta August 19, 2010 at 12:58 pm

Long reply, but not much different from what I’ve replied to numerous times already. In rough order of your post:

1) If you want to call “the exclusive right to make EM oscillations at a specific frequency” — which is intangible — another property right, fine. This allows you to avoid having to admit that homesteading doesn’t get you all rights in that resource. But then, if there can be property in the intangible “exclusive pattern formation of EM waves”, why not in ideas? If I just call those property, then I can certainly claim that you fully own your paper, but are violating my property in the idea — and you’d have exactly the same basis for responding to me as if I claimed EM “interference”, whatever that means. Have you read the gong-rights article I linked? If not, chop chop.

2) Yes, it is important that you can’t even say what your position on EM spectrum rights is, since they’re such a common, everyday issue. These issues are entangled, and if you can’t say what your position is on it, and how it obviously follows from the “well-supported” citadel of arguments you’ve supposedly built up, then you don’t have much of a citadel, do you?

The sources you point to this aren’t responding to the challenge I’m posing. They say that the EM spectrum is scarce. But none of them define exactly what is meant by that. After all (like I’ve said a trillion times), it’s most certainly *not* scarce, in that infinite people can blast EM waves. But no, that wouldn’t … er, *satisfy* anybody, because you wouldn’t be able to wring out information transmission capability, just like in the gong case you haven’t read. And then, once you nail down exactly what you’re owning (the right to make a certain assumption that assists in communication), you have given up the right to object to the same kind of claim in ideas.

3) You have not replied to the calculation problem. You haven’t shown how prices tell that person whether he should look for new ideas or produce more physical goods. Physical property rights lead to differential pricing for (the rights to use) physical goods of different value and thereby redirect resources — okay, we all agree on that. So now, if there is no IP, and the right to use any idea is forced to zero, how can this zero price reflect its relative merit? How does any market signal reflect the relative merit of producing different ideas?

Complete blank-out here. No response. No evidence you’ve even realized this is a problem.

4) I am not simply “poking holes” in a complex and well-supported case; rather, I am showing how the case has no basis to begin with. Your whole argument amounts to, “If you assume that homesteading suffices to give you rights to instantiate every possible pattern in the homesteaded physical resources — the VERY THING under dispute — then homesteading gives you that right. It’s a circular argument. No amount of complexity or references are going to get you out of this.

Beefcake the Mighty August 21, 2010 at 2:33 pm

” I am not simply “poking holes” in a complex and well-supported case; rather, I am showing how the case has no basis to begin with. Your whole argument amounts to, “If you assume that homesteading suffices to give you rights to instantiate every possible pattern in the homesteaded physical resources — the VERY THING under dispute — then homesteading gives you that right. It’s a circular argument. No amount of complexity or references are going to get you out of this.”

This is not accurate. The argument is that homesteading is sufficient to establish *ownership* in the physical resource. You are essentially claiming that ownership in a physical resource can be established based on having previously instantiated a pattern in some *other* physical resource. I.e., if I instantiate this pattern in a resource I have homesteaded, *you* are now the owner based on your previous instantiation.

I will ask you yet again: WHY is this a legitimate theory of property rights? WHY is prior instantiation sufficient to establish ownership? Please, get off your EM-hobby horse long enough to answer this simple question.

Stephan Kinsella August 21, 2010 at 3:19 pm

Beefcake:

“The argument is that homesteading is sufficient to establish *ownership* in the physical resource. You are essentially claiming that ownership in a physical resource can be established based on having previously instantiated a pattern in some *other* physical resource. I.e., if I instantiate this pattern in a resource I have homesteaded, *you* are now the owner based on your previous instantiation.

I will ask you yet again: WHY is this a legitimate theory of property rights? WHY is prior instantiation sufficient to establish ownership? Please, get off your EM-hobby horse long enough to answer this simple question.”

Exactly right. They have no reply. They smuggle in an implicit utilitarian view without wanting to name it explicitly b/c they know how bankrupt it is.

Russ the Apostate August 21, 2010 at 5:20 pm

“They have no reply. They smuggle in an implicit utilitarian view without wanting to name it explicitly b/c they know how bankrupt it is.”

Why is a utilitarian view so bankrupt? As far as I can tell, utilitarian considerations are the only realistic justification for any property rights, including regular property rights. Yes, the rivalrous and scarce nature of property comes into play, but these attributes pale beside the usefulness of property. After all, if it weren’t useful, the facts of its rivalrousness and scarceness would be irrelevant. And homesteading is simply a procedure for determining who owns property; it’s no justification for it. And if utilitarian considerations are so important with respect to regular property rights (which they are), why shouldn’t they be important wrt IP?

Peter Surda August 22, 2010 at 7:11 am

WHY is prior instantiation sufficient to establish ownership?

In addition to that, IP proponents need to explain how to divide patterns into “worthy” and “unworthy”, since every action whatsoever is an instantiation of an infinite number of patterns. As usual, they are completely oblivious to this.

Peter Surda August 22, 2010 at 7:49 am

Why is a utilitarian view so bankrupt?

There are many issues, so I’ll just concentrate on this case. The first one is that utilitarians argue that with IP, “something” will be better. What will be better? How do you measure it? Is it even possible to be measured without competing legal systems? Why should one criterion be used for measure and not other?

As far as I can tell, utilitarian considerations are the only realistic justification for any property rights, including regular property rights.

It is only necessary if your argument is that a certain distribution of scarce resources is more beneficial than another. But the existence of the requirement for a distribution in general follows from the requirement to consume. The alternative consumptions of scarce resources are mutually exclusive, so people need to make some arrangements for how they should be distributed. IP is just another way of distributing scarce resources.

Beefcake the Mighty August 18, 2010 at 9:35 pm

Perhaps this “100% usage rights” question is better is better phrased as, who has 0% (ie, no) usage rights? I would say, everyone *but* the homesteader. The reason being, as Kinsella has stressed, is that there exists no objective link between the good in question and non-homesteaders. Again, the non-homesteader has *no* claim on my homesteaded notebook and pencil. If I copy Harry Potter in this notebook with this pencil, then the pro-IP position can only be that a prior author now owns this rendition, or at least the part of it that is a duplicate of the original creation. I again ask, why do I have *no* claim on this output, given that I’m the only party here with an objective link to the product in question? It is only by employing metaphors that one can think that this copy has some kind of objective link to the original author (unless my copying is done illegitimately, eg the breaking of a prior agreement with that author not to copy his work after he reveals it to me). This is the essence of pro-IP property rights theories.

Peter Surda August 19, 2010 at 5:26 am

Perhaps this “100% usage rights” question is better is better phrased as, who has 0% (ie, no) usage rights? I would say, everyone *but* the homesteader.

This is a nice attempt, but still problematic. It depends on how to define “use”. IP proponents reach their conclusion by defining “use” through causality. And even if you stick to the realm of the physical, you could construct an argument that someone alters a bullet that enters his body and therefore is violating the bullet owner’s rights. This only demonstrates that causality is an insufficient condition for homesteading / trespass, and that a change in a physical world is an insufficient condition for determining who violated who’s rights. Stephan’s paper “Causation and Aggression” is the best attempt I know of for filling in the gaps.

Beefcake the Mighty August 19, 2010 at 9:07 am

Peter Surda, thanks, I’ll take a look at this article.

Magnus August 17, 2010 at 9:34 am

I wrote a novel, I own it and we will have a conflict when you interact with it against my wishes. And if we have this conflict this means the good is necessarily rival.

The idea of “rivalry” has been defined for you many times, and yet you continue to act as though it is all a big mystery to you (and to Mr Barta).

Rivalry is NOT merely the state of having two people with “wishes” that cannot be simultaneously satisfied. Rivalry refers to conflicting USES of particular things, where the use of some thing by one person is incompatible with the use of that thing by another person. Every rule of property, then, asserts that all other people in the world may not interfere with a person’s use of some thing. The rest of the world may do whatever they please, otherwise, but they may not prevent that one person from using that thing in that way.

It’s a basic principle of liberty that there can be no property right in an exclusive (“captive”) market, or an exclusive right to sell a particular type of good on the open market (“monopoly” or “protectionism”). This is because there is no property right in one’s existing or prospective customers. You may acquire exclusive use of a thing, but not exclusive use of other people (customers).In your example of the novel that you have written, you claim that your “wish” is that I refrain from engaging in the acts of copying it, printing up new volumes and selling them to third parties. You claim that the copyist’s “wish” to engage in these acts creates a “conflict,” and therefore there must be some rule of property attached to the NOVEL to resolve it.

You are incorrect. Rivalry is not merely conflicted desires. The only desires that are relevant in defining a property right are desires regarding the use of some thing, not desires regarding the sale of that thing, or desires for better price when you sell it, or a desire to exclude competing offers to your prospective customers that would dampen or satisfy the market demand that you want to exploit. Those are desires to the exclusive use OF OTHER PEOPLE (customers), over whom you can have no legitimate claim.

Let’s say that I have the desire to plant some valuable agricultural product on my land, and sell them. I would make a lot more money on the sale if my prospective customers could not get that type of product anywhere else. But my neighbor is starting to plant the same type of crop.

Do I have even the POTENTIAL of a property right over his land and crops merely because of my DESIRE that no one else be able offer my potential customers another batch of the same type of goods, which would reduce my desired price? No.

Let’s say that I have the desire that you, Kerem, no longer draw breath on planet earth. You naturally have a conflicting desire. Do I even have the POTENTIAL for a “property right” in causing your immediate death, merely because I desire it? No.

These issues (of protectionism and murder) are selected to illustrate a point — property rights govern the relationships between people with regard to things, not with regard to other people.

Your “desire” that I not engage in the act of imitating your novel and selling my batch to your prospective customers amounts to nothing. It is no more valid, and no more the basis for a property right, than is the protectionist’s desire to be a monopolist, or a murderer’s desire that you no longer get to breathe.

Or, to be more accurate, to the extent there is a rivalry, then the neighbor owns his land and crops already, and you own yourself already, so my desires (that those crops never get planted, and that you stop breathing) are inferior and subordinate to the pre-existing property rights of others.

The “rivalry” you are attempting to describe in your example with the novel is not a conflict over the novel itself. The only “rivalry” in your example is a rivalry over customers — you want to sell a certain type of good to them, and I also want to sell that type of good to them.

You would prefer to have that market exclusively. But you can’t, because you can’t own your existing or potential customers. Your desire to have a captive market is subordinate and inferior to my right to offer the same type of good to them.

That’s why a claim of IP is really no more than an assertion of “pattern protectionism” — a desire to have the exclusive right to sell a certain TYPE of good to all prospective customers.

Peter Surda August 17, 2010 at 10:16 am

You are incorrect. Rivalry is not merely conflicted desires.

I think you are needlessly giving ammunition to Kerem. The issue you are addressing, is in my humble opinion, irrelevant, since it does not invalidate lunatic’s axioms.

The issue is deeper. Even if rivalry was an issue of conflicting desires only, it still would be impossible to have a conflict without involving rival goods. There cannot be a conflict in non-rival goods without a conflict in rival goods. But rival goods are already owned by someone regardless of IP. That’s the problem. IP is a redistributive mechanism for rival goods. It does not merely include the redistribution as a byproduct, it is the redistribution itself.

Stephan Kinsella August 17, 2010 at 10:24 am

I agree with you guys–desires cannot conflict. It is only action that can conflict when it involves scarce resources.

Magnus August 17, 2010 at 11:06 am

I am trying to respond to Kerem’s objections. His idea that rivalry involves conflicting desires is vague and squishy, of course, but I am trying to expose where exactly his error has occurred.

“Conflicted desires” doesn’t really mean anything in the real world. A better way of saying it is that two people may desire outcomes (end states) that are mutually exclusive and therefore incompatible. The focus on end states means that we are necessarily talking about action, something taking place out here in the real world.

But, before there can be action, there is desire, or intention, or decision. As Mises said, Human Action is the study not of all behavior, but of purposeful behavior. It is this conflict over purpose (i.e., desire) that Kerem is getting stuck on.

Kerem wants a world where he can be the sole seller of the novel he wrote. Unfortunately, he thinks his desire for an exclusive market for a particular type of good (the novel, and every version of it that is substantially similar) gives him a property right merely because his desire is in conflict with the copyist’s desire to copy the novel, print it and sell it, too.

The desire to use an object is all fine and good, but not all desires are created equal. The desire to control other people’s market activity is off limits.

Kerem Tibuk August 17, 2010 at 11:11 am

“Kerem wants a world where he can be the sole seller of the novel he wrote. Unfortunately, he thinks his desire for an exclusive market for a particular type of good (the novel, and every version of it that is substantially similar) gives him a property right merely because his desire is in conflict with the copyist’s desire to copy the novel, print it and sell it, too.”

Yes and how is that different from “the concept of conflict” you use to define and justify tangible property?

There is one object, whether a particular novel or a piece of land, and two persons possible interaction with then particular object creates conflict.

One wants the particular novel to be not copied, the other wants the exact particular novel to be copied.

One wants the particular land not passed on, the other wants to pass through the exact particular land.

JGiles August 17, 2010 at 12:03 pm

“One wants the particular novel to be not copied, the other wants the exact particular novel to be copied.”

So who owns the novel? NOT “the novel” in the IP sense; this particular physical novel made out of these particular physical pages with these particular physical words on it?

If it’s the non-copier, then he can lock it in his vault and keep it from being copied. That’s fine.

If it’s the copier, he can copy it to his heart’s content; EVEN IF SOMEONE ELSE WROTE IT. The copier paid money for it. It’s his. He can do whatever he wants with it.

Peter Surda August 17, 2010 at 12:29 pm

There is one object, whether a particular novel or a piece of land, and two persons possible interaction with then particular object creates conflict.

Again, same error all over again. You cannot interact with non-rival goods, that is a metaphor for interacting with rival goods that are causally related to it. But those are property regardless of IP. The concept of property rights in non-rival goods is a self-contradictory one, it is merely a rearrangement of rights in rival goods. It is pointless to debate whether immaterial goods should be property or not, since it is impossible. You fall prey to metaphors. Closing eyes, putting hands over your ears and singing la la la does not make logic go away.

Kerem Tibuk August 17, 2010 at 11:16 am

We are talking about a conflict regarding “a particular object”. And scarcity has nothing to do with it. The concept you need to wrap your head around is “identity” not “scarcity”.

Peter Surda August 17, 2010 at 12:40 pm

We are talking about a conflict regarding “a particular object”. And scarcity has nothing to do with it. The concept you need to wrap your head around is “identity” not “scarcity”.

Ah, so you introduce another error: the concept of immaterial identity. But that is irrelevant to the issue, that just creates another one. Let me rephrase the argument, maybe then you’ll understand it better: it is impossible to have a conflict without involving rival goods. Non-rival goods cannot be used, sold, consumed, traded, fought for, exchanged or interacted with, it is only possible to do these things with rival goods that are causally related to the non-rival goods. Merely because you interpret a transaction as involving a non-rival good, the transaction cannot take place without involving rival goods.

Therefore, your “theory” does not introduce ownership of resources previously unownable (non-rival), rather it redistributes ownership of those that were already ownable (rival).

Kerem Tibuk August 18, 2010 at 1:07 am

I really do not know what you still mean by rival and non rival because you keep failing to make a distinction. you assume tangible to be rival intangible to be non rival but you can not prove that assertion.

On the other hand every intangible is necessarily embedded to the tangible. Even the thought in your head is embedded in your brain cells and do not exist apart from you. İdeas do not float in space until they are pick up by humans. But that doesnt mean they have no identity.

So what is your point?

Why do you bring in irrelevant points the moment you are stuck and can not answer?

Why don’t you be at least honest to yourself and admit you are done for?

Peter Surda August 18, 2010 at 4:20 am

I really do not know what you still mean by rival and non rival because you keep failing to make a distinction.

The lengths of hypocrisy and cowardice you go to to avoid confrontation are truly boundless. I explained it several times. However, you have not explained anything. You just assert that some fictional undescribable unusable construct exists, and then go around accusing others of blasphemy.

Rival means the existence of mutually exclusive alternatives. Non-rival means the absence of mutually exclusive alternatives. Do you get it? Or are you just pretending to argue to avoid admitting you are wrong?

On the other hand every intangible is necessarily embedded to the tangible.

Well well, finally the fist step to realising the nonsense in your claims. This invalidates, among other things, the ability of non-rival goods being able to be property, and the economic calculation argument.

Even the thought in your head is embedded in your brain cells and do not exist apart from you. İdeas do not float in space until they are pick up by humans. But that doesnt mean they have no identity.

So, how do you define identity then, other than one’s imagination?

So what is your point?

My point is that you contradict yourself.

Why do you bring in irrelevant points the moment you are stuck and can not answer?

You coward, how can you claim this? I answered every single of your objections, you however avoid as much as you can.

Why don’t you be at least honest to yourself and admit you are done for?

You coward, that’s what you should do. You profess your beliefs in the non-existing, nonsensible, self-contradictory, unexplainable.

Kerem Tibuk August 18, 2010 at 4:45 am

Why are you getting so agitated Peter?

Is it because I keep pointing out that your definitions are merely tautologies that serves no purpose other than trying to confuse the subject?

“Rival means the existence of mutually exclusive alternatives. Non-rival means the absence of mutually exclusive alternatives. Do you get it?”

If that is the definition then intangible objects can and are the object of conflict. This means IP is NOT non-rivalrous as you assert it to be.

A novel being an un-copied, untouched virgin state, and the same novel being a copied state are mutually exclusive alternatives. And these states are not natural states but depend on individuals choices to exist. That is why this is an ethics issue.

Do you get it?

Peter Surda August 18, 2010 at 5:24 am

Kerem,

Why are you getting so agitated Peter?

Because I hate frauds, especially religious nuts masquerading as scientists.

Is it because I keep pointing out that your definitions are merely tautologies that serves no purpose other than trying to confuse the subject?

No, it is because you twice said that although a sentence is a tautology, you nevertheless think it is false, thus contradicting yourself.

If that is the definition then intangible objects can and are the object of conflict. This means IP is NOT non-rivalrous as you assert it to be.

You are avoiding confronting the objection by reinterpreting a situation in a different manner. You confuse the non-rival good with the rival good that is causally related to it.

A novel being an un-copied, untouched virgin state, and the same novel being a copied state are mutually exclusive alternatives.

Here you are using the word “novel” in two distinct meanings: both the rival good (the copied book) and the non-rival good (the contents of the book). You interpret the creation of an unauthorised copy (a rival good) as a changing of the state of the concept of the book (the non-rival good).

And these states are not natural states but depend on individuals choices to exist.

The only change between those two states is what features does the rival good (physical book) have. Either the ink on the paper is arranged in a way that you consider to be a copy of the non-rival good, or it is arranged in a way that you do not consider to be a copy of the non-rival good. The non-rival good is unchanged. The conflict occurs because the rival good (the paper and and ink) cannot occupy those two states simultaneously. However, regardless of IP, the paper and ink are already owned by someone. The introduction of IP therefore expropriates some uses of already homesteaded goods.

That is why this is an ethics issue.

That is why it is a logic issue and the question of ethics is nonsensical, since it depends on a self-contradiction.

Do you get it?

I do. Do you?

Kerem Tibuk August 18, 2010 at 6:01 am

“No, it is because you twice said that although a sentence is a tautology, you nevertheless think it is false, thus contradicting yourself.”

“Conflict” is the concept YOU use to define property not me. I am merely trying to understand what you mean by it. But you only define “conflict” by the use of another concept called “rivalry” and that is a tautology.

I never said it is false. It just serves no purpose and it is irrelevant. It is just a tool for your inductive reasoning, to reach the conclusion you have already made.

“You are avoiding confronting the objection by reinterpreting a situation in a different manner. You confuse the non-rival good with the rival good that is causally related to it.”

I am not avoiding anything. I am merely applying your reasoning to the intangible. Where you say it is impossible I am showing it is in fact possible according to the definition you provide.

“A novel being an un-copied, untouched virgin state, and the same novel being a copied state are mutually exclusive alternatives.

Here you are using the word “novel” in two distinct meanings: both the rival good (the copied book) and the non-rival good (the contents of the book). You interpret the creation of an unauthorised copy (a rival good) as a changing of the state of the concept of the book (the non-rival good).”

No I am not. I am using only one meaning. In fact I am not talking about a “meaning” at all but a particular object with a distinct identity.

Let’s say we are are using “War and Peace” as an example. You either copied it or you didn’t.

The said, particular novel can only have two following identities;

One identity is “War and Peace copied by Peter Surda”, the other identity is” War and Peace not copied” by Peter Surda There can not be a third choice an two identities can never exist at the same time.

Since you didn’t write War and Peace, the original state can only be the state of “War and Peace not copied by Peter Surda”. It is your ethical choice to change this state or not.

If Tolstoy was alive and could enforce his property rights, you would have a conflict regarding the state of the particular novel, War and Peace. He would want the identity to remain, “War and Peace not copied by Peter Surda” and you would want the identity be change to “War and Peace copied by Peter Surda” and two alternatives are mutually exclusive.

It doesn’t matter if the two states are known, or your possible unauthorized change of the state known or proven or any enforcement could be made. Objective reality is that, the identity of War and Peace changed or it didn’t.

“The only change between those two states is what features does the rival good (physical book) have. Either the ink on the paper is arranged in a way that you consider to be a copy of the non-rival good, or it is arranged in a way that you do not consider to be a copy of the non-rival good. The non-rival good is unchanged. The conflict occurs because the rival good (the paper and and ink) cannot occupy those two states simultaneously. However, regardless of IP, the paper and ink are already owned by someone. The introduction of IP therefore expropriates some uses of already homesteaded goods.”

Again with the “rival”. Why do you keep insisting on using concepts you can not properly define?

As I explained many times, in accordance to one of your definitions IP can and does cause conflict. And this claim that IP redistributing already owned tangible property is pure nonsense.

All the creator wants is for you to act as if you have never came across the particular pattern.

There is no difference between Crusoe never having heard of Harry Potter thus can not make copies of it, and you respecting Rowling’s wishes and purposefully not making copies of it, regarding the issue you are presenting.

In either case, no already homesteaded physical property if affected.

Jay Lakner August 18, 2010 at 6:19 am

Kerem,

Tolstoy’s original copy of “War and Peace” is left unaltered regardless of any non-destructive events causally related to it.
The events themselves may have objectively occurred, but the objective identity of the book was left untouched.
The objective identity of any entity is characterised by it’s composition, location and velocity. Events that have occurred as a result of the entity’s existence do not change it’s identity.
The only change is in Tolstoy’s feelings towards the book. The change occurs to the human mind, not to the original physical book itself.

Peter Surda August 18, 2010 at 7:03 am

“Conflict” is the concept YOU use to define property not me. I am merely trying to understand what you mean by it. But you only define “conflict” by the use of another concept called “rivalry” and that is a tautology.

I am merely pointing out that it is a necessary condition for property. You do not get that the concepts of rivalry, conflict, exclusivity and property are mutually related. They cannot exist without each other.

You on the other hand use causality to define property, yet at the same time admit it is an insufficient condition.

I never said it is false.

You did. Or, you probably did not understand it. Your claims are mutually exclusive. A good cannot be at the same time non-rival and rival.

I am merely applying your reasoning to the intangible. Where you say it is impossible I am showing it is in fact possible according to the definition you provide.

You are committing a fallacy. In order to disprove my claim, you would need to show a conflict that exists in the absence of rival goods, not that it exists in the presence of non-rival goods. All your examples include rival (physical) goods.

You are lost in a world of metaphors.

I am using only one meaning. In fact I am not talking about a “meaning” at all but a particular object with a distinct identity.

Of course, while neglecting to define what a “distinct identity” is, other than “it appears to me that way”.

The said, particular novel can only have two following identities;

One identity is “War and Peace copied by Peter Surda”, the other identity is” War and Peace not copied” by Peter Surda There can not be a third choice an two identities can never exist at the same time.

That is just an interpretation that happens in your brain. Outside of your brain, the whole concept has no meaning. There are an infinite number of “identities” depending on who is interpreting and for what purpose.

Objective reality is that, the identity of War and Peace changed or it didn’t.

Again, the only thing that can have alternatives is the arrangement of ink on paper. You cannot turn causality backwards. There is nothing objective about it. It’s a subjective interpretation, just like insults and blasphemy are subjective.

Again with the “rival”. Why do you keep insisting on using concepts you can not properly define?

I defined it, you ignore it. On the other hand, you use vague definitions, but refuse to address the holes that have been pointed out to you. You’re a fraud.

As I explained many times, in accordance to one of your definitions IP can and does cause conflict.

You are playing with words and using faulty logic. Merely because IP is involved in a conflict does not mean that it causes conflict. Correlation does not mean causality. You would need to prove that a conflict exists in the absence of rival goods (e.g. copies). It cannot, it is a contradiction. How can there be a copying without copies?

And this claim that IP redistributing already owned tangible property is pure nonsense.

On the contrary, it is a logical conclusion. Your brain is stuck in religious mode, so you are unable to follow a simple implication.

All the creator wants is for you to act as if you have never came across the particular pattern.

Often refuted error. You have not explained the difference between “pattern” and causality, or how a “pattern” can exist without physical property?

In either case, no already homesteaded physical property if affected.

Yes Kerem, by magic you will create a pattern without using physical property. Then I suggest you also use magic to protect your “rights”.

Kerem Tibuk August 18, 2010 at 7:05 am

Jay,

All you are saying is “intangible is not tangible”.

Yes, we all know that and I haven’t seen anyone claiming that.

Yes, physical integrity of the tangible (the paper and the ink) that the novel is embedded in does not change.

This doesn’t mean the pattern has an intangible but never the less objective identity and THAT identity changes when you copy it.

And when I say this, you claiming the physical can not change is an irrelevant issue.

Kerem Tibuk August 18, 2010 at 7:23 am

Lets take Human Action Scholar edition.

Let’s assume I took all the physical material that has been used to produce that edition, exact same amount and quality of paper, exact same amount of ink and glue and binding, but instead I used these physical things to produce, make a book, a novel called “Adventures of Peter Surda”.

Are these two objects that are physically identical, also identical in every way?

If not what separates them?

Peter Surda August 18, 2010 at 7:29 am

This doesn’t mean the pattern has an intangible but never the less objective identity and THAT identity changes when you copy it.

There is absolutely no evidence or logical requirement for this conclusion. That’s just something people make up to cover up the holes in their theories. I can also make a claim that if you write nonsense, that insults me and “changes my identity”, therefore I should be able to use force to prevent you from writing nonsense.

All you do is establish causality. However, you also claim that causality is an insufficient criterion.

Peter Surda August 18, 2010 at 7:59 am

Let’s assume I took all the physical material that has been used to produce that edition, exact same amount and quality of paper, exact same amount of ink and glue and binding,

You conflate two different meanings. First you say “the physical material that …”, then you say “exact the same amount and quality”. Either the material used is the same or it is not. “same amount” has nothing to do with identity. That is just an attribute of the material that you happen to consider relevant.

Are these two objects that are physically identical, also identical in every way?

Since you depend on vagueness for your constructs, it is impossible to determine what the question actually means. Either the material is “the same” or it is not.

If not what separates them?

Some time ago I presented on this site a method for disproving a hypothesis that objects A and B and the same. If you can modify object A without modifying object B, they are distinct. An opposing conclusion (they are identical) cannot be made without using inductive reasoning. It is impossible to modify non-rival goods (by their very definition), therefore the concept of identity of non-rival goods is non-falsifiable, and therefore a non-scientific one.

For example, if you have two books, burn one of them but still have the other one unharmed on your shelf, you can conclude they are not identical.

Jay Lakner August 18, 2010 at 8:13 am

Peter Surda wrote:
” If you can modify object A without modifying object B, they are distinct.”

By this, do you mean the following?:

“If you can modify object A without making the exact same modifications to object B, they are distinct”

Peter Surda August 18, 2010 at 8:34 am

No, I mean if you can modify object A while keeping the object B unmodified. Of course, in its purest sense, it is impossible if there are other objects present or if time flows. Let’s maybe rephrase it: if two objects can simultaneously be in states which would be mutually exclusive for one object, they are distinct. However, that is just another way of defining of rivalry, so it proves my point yet again, the concepts are inextricably related.

Jay Lakner August 18, 2010 at 11:30 am

Kerem Tibuk wrote:
“This doesn’t mean the pattern has an intangible but never the less objective identity and THAT identity changes when you copy it.”

A pattern does not have an identity. What is it that you are trying to identify? How are you going to identify it? There is no way to interact with a pattern.

Only tangible entities can have an identity. And their identity is established by the pattern of their configuration. So a pattern effectively IS an identity. How can an identity have an identity?

Furthermore, a pattern/identity cannot be altered.
A pattern is simply a possible configuration that tangible materials can be arranged into. This pattern remains the pattern irrespective of past events. Just because the pattern has occurred a million times in the past does not alter what the pattern is. This perceived alteration only occurs in your mind.
When asked to identify a basketball, I don’t say “a spherical rubber sphere with a radius of 9.39 inches that has occurred 148 billion times in the past”. I simply say “a spherical rubber sphere with a radius of 9.39 inches”. Past events are irrelevant when it comes to the task of identifying an entity.

If we had it your way, I could prevent people from producing basketballs because they are altering the identity of my “spherical rubber sphere with a radius of 9.39 inches which has never had more than 150 billion copies in existence”.

Although I love hearing extreme arguments, I think this one is a bust Kerem.

Michael A. Clem August 18, 2010 at 11:29 am

What? Of course desires can conflict–it’s just that such a conflict is economically irrelevant. Desires are not resources or goods.

Stephan Kinsella August 17, 2010 at 10:27 am

I make this point in IP and Aggression as Limits on Property Rights: How They Differ.

Silas Barta August 17, 2010 at 8:09 pm

What a joke. That doesn’t even deserve a reply, it’s just too ridiculous.

(Note: this is the extent of your reply to substantive arguments I’ve given in the past.)

Silas Barta August 17, 2010 at 12:04 pm

@Magus:

Rivalry is NOT merely the state of having two people with “wishes” that cannot be simultaneously satisfied.

Um, I hate to break to you, but yes it is. Otherwise, you’re just defining away the problem.

There exist a real disagreement about who should do what. That disagreement will persist whether or not you say that “oh, the owner of this thingamajig gets to make the call”. Resolving the conflict, here, simply means positing a method that determines whose claim is better.

What you cannot do, however, is simply say, “Oh, hey dudes — y’all aren’t arguing about 100% ownership rights in a specific physical item, so you’re not having a real conflict; therefore I’m going to resolve the conflict in favor of this guy”, which is what Stephan_Kinsella’s argument — and yours — amounts to.

JGiles August 17, 2010 at 12:06 pm

“What you cannot do, however, is simply say, “Oh, hey dudes — y’all aren’t arguing about 100% ownership rights in a specific physical item, so you’re not having a real conflict; therefore I’m going to resolve the conflict in favor of this guy”, which is what Stephan_Kinsella’s argument — and yours — amounts to.”

Question; why not?

Silas Barta August 17, 2010 at 12:36 pm

Seriously? Because it’s a contradiction to say BOTH that there is no conflict, and that you are resolving the conflict.

JGiles August 17, 2010 at 12:41 pm

Semantics. I’ll rephrase a bit if you like;

“Oh, hey dudes — y’all aren’t arguing about 100% ownership rights in a specific physical item, so dude #2, you don’t have a leg to stand on; therefore I’m going to resolve the conflict in favor of dude #1”.

Now answer the question. Why not? This is assuming, of course, that you have some right to interfere in an argument between two other people.

Silas Barta August 17, 2010 at 12:51 pm

It’s *not* just semantics when my whole point these past four years is that Stephan_Kinsella’s argument is based on that very equivocation! He uses the same word in both cases with different meanings. Even if he changes the word usage to destroy the equivocation, he just messes up the argument’s interal consistency.

It’s like this: if he uses different words with different meanings where he currently uses “conflict”, he can’t quite reject IP claims on the basis of “no conflict”, because he would no longer be basing support for the kind of property rights he wants on his earlier argument that “property rights exist to resolve conflict.”

“Oh, hey dudes — y’all aren’t arguing about 100% ownership rights in a specific physical item, so dude #2, you don’t have a leg to stand on; therefore I’m going to resolve the conflict in favor of dude #1”.

That fails too because you’re smuggling in the assumption that disagreements (and rights allocations) can on exist for 100% ownership rights in all physical items. But obviously a) people can disagree without believing either has full usage rights, and b) Stephan_Kinsella already admits that a homesteading doesn’t entitle you to 100% ownership rights! (See EM waves, farmers gunning down aircraft in “their” airspace.)

Also, why does the fact that one of them isn’t claiming 100% ownership rights mean you automatically rule against him? Then he can just trivially change his claim to 100% ownership rights with an easement for everything he’s not claiming, and you realize the pointlessness of ruling on only this basis.

JGiles August 17, 2010 at 1:00 pm

Quick disclaimer; I don’t know Stephan Kinsella from Adam. I’m anti-IP based on my own thoughts on the matter, which I’ll cheerfully admit probably do not account for all circumstances.

That being so, what Kinsella admits or doesn’t admit means jack to me. To be frank, I’m a pragmatist, not a moralist. Most arguments about IP are meaningless to me, basically because I see people making esoteric moral arguments. I don’t belief there EXISTS an objective moral code. My support for free-market capitalism stems from my opinion that the free market is much better at producing wealth than any government ever has been, and it always will be.

So ignoring Kinsella, MY argument against IP is this; What I do with my paper, my CD, my computer, my voice, or my musical instrument are exactly none of anybody else’s business, unless I am using them to attack some other person. If somebody wants to reserve certain rights when they’re selling me something, they need to make a contract with me to that effect, and I need to sign it/stamp it/shake hands/whatever. If that hasn’t happened, then I have purchased THE OBJECT; not some limited mix of rights concerning the object, the object itself and all rights associated to it, and nobody – the author of the book I bought, the singer who recorded the CD, nobody – can stop me from doing anything I want to it.

Or rather they CAN, under our current legal framework, but to my mind that framework is far from ideal and leads to market distortions, which are inefficient at producing wealth, increasing standards of living &etc.

Magnus August 17, 2010 at 12:31 pm

I do not discuss topics with people who use phrases like “Um, I hate to break it to you …”

Your persistent use of that kind of childish, sarcastic language demonstrates that you are not sincerely interested in the topic or anyone else’s thoughts on it, but rather you are seeking some kind of social effect — some perverse form of respect, social status, relevance, validation, expression of anger, etc.

My time is better spent talking to people who want to have a sincere conversation, not with people like yourself who use topical debates as a pretext for acting out their social and psychological problems.

Silas Barta August 17, 2010 at 12:35 pm

Okay, and I’ll stick to engaging with those who use a consistent definition of conflict and conflict resolution. Sounds fair.

Scott F August 17, 2010 at 10:03 am

I can’t believe I didn’t notice this before but belief in IP is a bit like believe in platonic forms.Only IP advocates try to claim they own these forms.

Kerem Tibuk August 17, 2010 at 10:09 am

“Rivalry is NOT merely the state of having two people with “wishes” that cannot be simultaneously satisfied. Rivalry refers to conflicting USES of particular things, where the use of some thing by one person is incompatible with the use of that thing by another person.”

Magnus,

Do you think you can get out of this conundrum of using a vague concept such as “conflict”, by the use of another vague concept like “use”?

What do you mean by “use”?

Do you think my use of a non copied book is not effected when you copy it? Do you think my using a non copied book is compatible by your action of copying it?

Peter Surda August 17, 2010 at 10:24 am

Do you think you can get out of this conundrum of using a vague concept such as “conflict”

I offered you an explanation: the existence of mutually exclusive alternatives. You ignored it and continue repeating your errors. Plus, you omit the glaring error in your “theory”, in that you failed to define “IP”, or for that matter, “property”.

Peter Surda August 17, 2010 at 10:28 am

What do you mean by “use”?

Ah, yes. The error is yours I am afraid. It is you who cannot distinguish between “use” and causality, yet your theory requires that such a distinction exists.

Jay Lakner August 17, 2010 at 11:33 am

Kerem Tibuk wrote:
“What do you mean by “use”?”

Use: Action applied to an entity.

Action: Alteration of the integrity or momentum of an entity.

How do you define “use” Kerem?

Jay Lakner August 17, 2010 at 11:55 am

Kerem Tibuk wrote:
“Do you think my use of a non copied book is not effected when you copy it?”

Of course. In fact every action you perform in some way alters the physical integrity and momentum of every object in existence.

And yes there is no distinct boundary between actions that are considered agressive and actions that are considered non-aggressive.

It’s considered non-aggressive for me to play music in my home but it’s considered aggressive for me to play music loudly in my home. There is no distinct line to be drawn over which volume is acceptable and which is not acceptable.
It’s considered non-aggressive for me to send radiowaves through your property but it’s considered aggressive for me to send gamma rays through your property. Once again, there is no distinct line on the EM spectrum to say what frequencey is acceptable and what is not.

Obviously all action has externalities which extend to infinity. This is what makes a precise definition of property rights impossible to formulate.

However, the libertarian position seems to be to consider all but the most negligible property rights violations as unacceptable. They make the assumption that virtually unmeasurable violations are not violations at all. Hence libertarians form a simplified model of the world and treat this model as reality. This model of reality makes economic analysis much easier and adopting a libertarian position leads to greater wealth and prosperity for all compared to all other positions.

In the case of IP, the physical effects of my duplicating a pattern are so small that the libertarian position is to consider them zero. You can jump up and down all you want on this point, but there is no way of avoiding it. If we consider negligible effects to be trespasses, then just about all human action everywhere would cease because somebody somewhere will always have their feelings hurt by the actions of another.

Now, I’m hungry. May I please go to the kitchen? I’m only asking because my movement slightly alters the centre of gravity of the Earth which in turn affects all your property.

Kerem Tibuk August 18, 2010 at 1:01 am

Jay,

Regarding the issue in hand, you have a choice to “not the alter the identity of the object in question” but you do it anyway, and claim you have right to it.

We are not talking about unintended and unavoidable results of actions. We are talking about purposeful behavior regarding a particular identifiable object.

That is why the issue is an ETHİCS, issue.

You as an individual have a choice to either copy or not copy a certain novel. The creator wants the novels identity not changed from “un-copied” to “copied”. Two states of this novel can not exist at the same time. So you will have to decide. Are you going to abide the wishes of the owner or are you going to use aggression?

Also the conflict is not about some general wishes of two parties but a disagreement regarding the identity of a certain, particular object. That is why independent discovery is fine, but copying is not.

Peter Surda August 18, 2010 at 4:21 am

The conflict is regarding alternative uses of rival goods. Merely because you interpret it differently does not invalidate the argument.

Jay Lakner August 18, 2010 at 4:24 am

Kerem Tibuk wrote:
“The creator wants the novels identity not changed from “un-copied” to “copied”.”

“Copying” a novel does not change the objective “identity” of the novel. The only change that occurs is in the human mind.
Your line of reasoning equates to outlawing any actions that hurt the feelings of another.

The Kid Salami August 18, 2010 at 4:49 am

If I step onto your land and promise: only to step on stainless steel (thereby not altering the land in any measureable way); to never to be in your line of sight; not to move anything; nor ever get in in your physical way, then the only change to your life from before is also in your “mind”. On what basis then do you prevent me from stepping onto your land?

Jay Lakner August 18, 2010 at 5:51 am

If the rights violations are negligible, then I have no right to prevent you from stepping on my land. If there is no conflict over the scarce resources in the situation (the physical integrity of the land is left virtually unaltered and the space you occupy does not prevent me from using that space), then there are no property rights violations. Maybe this answer sounds strange for some people to hear, but it’s the only logical conclusion. It also shows why farmers (usually) have no right to shoot down aircraft that fly over their property.

The Kid Salami August 18, 2010 at 6:13 am

That seems logical yes.

On the other hand, I might say I’m only going to step on stainless steel – and fully intend to to do my very best to do so. But I might trip and fall onto your collection of antique ming vases. It seems perfectly natural in this case for you to prevent me from doing this, something which in my judgement will not violate your rights but in your judgement may very well do so. To make it more obvious, imagine I want to cross your land by walking on your steel wire washing line which I insist I can do without falling off onto your collection of ming vases.

In short, systems need to “fail safe”. I submit that this problem simply cannot be resolved by logic alone – this is why these debates are interminable and go round in circles which will never end.

Jay Lakner August 18, 2010 at 6:48 am

Accidents happen. If you destroy my antiques you are still violating my property rights, even if it was just an accident. You would have to compensate me for them.
Do I have the right to prevent you from stepping on my land if there is a reasonable probability of a rights violation? Yes I do.
Risk assessment is part and parcel of every action you perform. If it can be shown that there is a reasonable probability that an action you perform could lead to a rights violation, then I have the right to prevent you from performing that action.
Obviously the definition of “reasonable” is the subjective element in this, and there is no well-defined boundary between what is and is not “reasonable”. This is unavoidable.
But, as I said earlier, “every action you perform in some way alters the physical integrity and momentum of every object in existence”, so there is no well-defined boundary between what is a property rights violation and what is not.

I guess social convention is the only measure. Basically, it will come down to how much risk most people consider to be “too much”.

The Kid Salami August 18, 2010 at 7:06 am

Well, I agree that “there is no well-defined boundary between what is and is not “reasonable”.” That’s why I’m saying that using logic ALONE to resolve this issue is not possible and people trying to do so are playing games of mental gymnastics for their own reasons. It is frankly getting a bit ridiculous and just adding noise to the ECONOMICS that this site could be putting out there.

Jay Lakner August 18, 2010 at 7:21 am

Logic is an analysis tool, nothing more.
Logic allows us to examine what is happening.
Logic is how we determine that the boundaries are not defined.
It is through logical reasoning that we determine whether or not an issue can be solved.
Have I not just used logic to demonstrate which aspects of a scenario should be left to social conventions? Without such logical reasoning, everybody would be completely in the dark as to whether or not you can step on my land. Now, using logic, we have broken the situation down and we understand what’s going on.
We have left an arbiter with only two things to consider:
a) The degree of the physical effect of you stepping on my land, and
b) The probablity that your action will cause an unacceptable physical effect.
If both of these are deemed acceptable by the arbiter, then no rights violation has occurred. The desires of consumers (ie profit and loss) will determine which arbiters are making socially acceptable decisions and which ones aren’t.

The Kid Salami August 18, 2010 at 7:47 am

“It is through logical reasoning that we determine whether or not an issue can be solved.”

Really? Always? This kind of woolly thinking is not helpful. Some things are not solvable by logic alone – note I said ALONE, I didn’t say we shouldn’t use logic at all which is what you appear to be countering.

I can introduce new variables into the steel-wire-ming-vase scenario all day, each of which may or may not cause you to change your mind that you can keep me from your land. A set of logical axioms can only go so far – a case by case evaluation, over time in a free market, is an essential companion to logic in the resolution of such disputes – and over time people will, based upon these case by case results, adjust their behaviour accordingly. Trying to establish a set of axioms that can be applied to every case and yield the correct answer is impossible.

Jay Lakner August 18, 2010 at 7:58 am

In other words, we are in complete agreement on this issue.

The Kid Salami August 18, 2010 at 8:13 am

I would say almost complete agreement yes.

Where I think we might disagree is on a meta-point: terms like “IP fascist” are used on this site by people who want to do what I think we just agreed is impossible (put the property issue on a sound logical footing ENTIRELY free from contradiction and put this goal above ALL others), and who say you own your own body because you make an argument and other such logical nonsense that is competely removed from the real world. The people doing this are the real problem here, not Kerem.

Jay Lakner August 18, 2010 at 8:28 am

Kid Salami,

We certainly disagree on many things then.

As far as I’m concerned, we should apply exhaustive logic on all the information we have to understand as much as we can.

For example, just about everyone would agree that it’s not a property rights violation to perform an action that does nothing more than hurts someone’s feelings.
Therefore, any actions that can be logically demonstrated to do nothing more than hurt people’s feelings must also not be rights violations.
Most arguments put forth by pro-IP advocates can be logically reduced to “copying hurts the author’s feelings”. Hence logical reasoning refutes those arguments.

I must admit I have not fully grappled with Argumentation Ethics as yet, but from what I’ve read it seems to start on a logical foundation. Apart from that, I really can’t comment on your objections to it.

The Kid Salami August 18, 2010 at 10:02 am

“As far as I’m concerned, we should apply exhaustive logic on all the information we have to understand as much as we can.”

Again, I’m not saying we ignore logic, I’m saying it is only part of the deal. What in my words has suggested that I disagree with this statement? My problem is that, in complex systems, logic does not get you very far, it can be used but it is limited.

“For example, just about everyone would agree that it’s not a property rights violation to perform an action that does nothing more than hurts someone’s feelings.”

Agreed.

“Therefore, any actions that can be logically demonstrated to do nothing more than hurt people’s feelings must also not be rights violations.”

Agreed.

“Most arguments put forth by pro-IP advocates can be logically reduced to “copying hurts the author’s feelings”. Hence logical reasoning refutes those arguments.”

Agreed.

I’m not sure what your point is. We just agreed between ourselves that even in “normal” property rights that there is subjectivity and that reasonable people can disagree, and that a free market process would be required to iron out a sensible way to negotiate these grey areas.

There are grey (much greyer than in tangible property) areas in IP that would also be handled I suggest by a free market process. This process has not yet happened in an IP-less world, so there are things about this that we do not now know – the market is cleverer than we are. So there is I suggest room for reasonable disagreement, even if this is constrained by the bounds of what pure logic can tell us (as per your points above).

So, I ask you, do you think that the use of the term “IP fascist” is justified or unreasonable?

Jay Lakner August 18, 2010 at 10:30 am

“So, I ask you, do you think that the use of the term “IP fascist” is justified or unreasonable?”

It’s my understanding that “IP fascist” is used as a retort against those who use the term “IP socialist”. In fact I’ve only ever seen it used against people who have a history of using the term “IP socialist”. So far, from what I’ve seen, it’s been completely justified.

(I consider it a case of estoppel … those who use childish name calling reveal that they are ok with others using childish name calling against them)

Jay Lakner August 18, 2010 at 10:46 am

“My problem is that, in complex systems, logic does not get you very far, it can be used but it is limited.”

Logic is the only tool we have, especially in complex systems.
I get the feeling that your idea of logic is inaccurate.
How can we do ANYTHING without logic? Roll a dice? Even the decision to roll a dice is based on some line of logical reasoning.

Every decision we make is the most logical course of action to us at the time. We acquire all the information available to us and then use reason to determine what we should do next. Our reasoning could be extremely logical or it could be not very logical at all. If a decision turns out to be a poor one, then that simply demonstrates some flaw in the logic of our reasoning. But at all stages of all human thought, logic is central.

When you say ” logic does not get you very far, it can be used but it is limited”, you fail to realise that logic is at all times being used by every thinking being. The logic is either solid or faulty, but you can never not use logic. Do you now see the problem I have with some of your statements?

The Kid Salami August 18, 2010 at 4:03 pm

Ok, replace my uses of the word “logic” with “a priori deductive reasoning and/or the solving of the equations which describe the system state and its state transitions” and that is what I mean, i thought this was clear from the context but maybe not.

No, I don’t think I’m confused about this at all. You say “you fail to realise that logic is at all times being used by every thinking being.” “at all times”? I don’t fail to realise any such thing. When I touch a hot stove, my hand moves away without me knowing anything about it. There is no “logic” involved in this – I didn’t decide it. It happens as a result of automatic processes that are set in motion by the heat of the stove being detected by the sensors of the complex system which is my body. No’one understands this type of process entirely (how it appears to not go via the brain but maybe via the spine or whatever) and certainly no’one understands it anywhere near enough to “prove” it will happen from a set of logical axioms or calculate whether it will happen from any set of measurements.

It certainly happens though – or does it? Maybe not to that white haired guy in Lethan Weapon who has the lighter held to his wrist. If I pick some random guy from the street and put his hand on a stove at a certain temperature, do you think we could ever – by asking questions of him and the environment and taking measurements – decide whether or not he will be able to take the heat or that his hand will involuntarily move away? No, of course we can’t. This is what I mean by the limits of “logic”. “Logic” can say that there is some temperature no’one can stand, and that there are others that everyone can stand, but as for the grey area in between, it is limited.

That an empirical investigation of this is built on processes that are undoubtedly “logical” in that they are based on models that wil, in general, be self-consistent and always consistent with the laws of physics is true, but trivial. This is what you seem to be saying – I agree of course, but this contains no information. You can take it as read that I believe all events could, with perfect information, be reduced to logical consequences of the laws of physics. But as we live in a world of imperfect information, we are reduced to taking some things as a given without them standing on a concrete “logical” footing.

In he same way, it’s no good trying to decide if I can walk over the steel wire in your garden using equations or logic like x AND (y OR z)) => w – we already established that there is risk, meaning a probabilistic element, and so adding risk and a few more variables means the problem very very quickly becomes impossible to solve mathematically. That’s why have to let the market find the solution for us. That is the limits of “logic” I was talking about, even if my use of the word was a bit lazy.

Kerem Tibuk August 18, 2010 at 4:53 am

““Copying” a novel does not change the objective “identity” of the novel. The only change that occurs is in the human mind.
Your line of reasoning equates to outlawing any actions that hurt the feelings of another.”

It in fact does change the objective identity of the novel.

If I wrote a novel and if nobody ever read it, it is objectively an unread novel. This identity doesn’t depend on anyones perception or knowledge. It is unread because it is unread.

Similarly if a novel I wrote has never been copied, ever, its objective identity is that is is “un-copied”. This also doesn’t depend on perception or the knowledge of the fact by others but the fact itself.

There is a difference between an un-copied book, and a book that has been copied but never known to be copied. Even if no one knows the book has been copied, if the book has been copied its objective identity is, “copied”. Anyone knowing this fact or not does not change the identity. It only shows if someone is aware of the identity or mistaken about it.

Peter Surda August 18, 2010 at 5:44 am

If I wrote a novel and if nobody ever read it, it is objectively an unread novel. This identity doesn’t depend on anyones perception or knowledge. It is unread because it is unread.

An unread book is merely the description of a situation with the absence of actions causally related to the book. That does not change the (immaterial) book, causality does not work backwards. So, we’re back to causality, which, as you yourself admit, is an insufficient criterion for any claim.

There is a difference between an un-copied book, and a book that has been copied but never known to be copied.

There is a difference between the situations involving an uncopied book on one hand, and a copied book on the other hand. But you cannot derive from this that the state of the book has changed. That is merely an interpretation created by your brain, just like the concept of identity of non-rival goods is something created by your brain. Plus, the presence or absence of causality is only possible if rival goods (e.g. copies) were involved in the process.

The situation is equivalent to people claiming that they have a right not to be insulted or their religion should not be blasphemed against. Why should your delusions be given more merit?

Jay Lakner August 18, 2010 at 6:07 am

Kerem,

Peter pretty much summed up how I was planning to respond.

Causal events related to the book does not change the objective identity of the book. In order for an objective change in identity to have occurred, the integrity or momentum of the book needs to have been altered in some way.

Causal events related to the book may change your conceptual view of the book. Your feelings towards a book you have written may change dramatically if you discovered that Paul Krugman bought a copy and it was his favourite book. But the book itself is objectively no different.
Similarly, if someone makes twenty million copies of your book, your book still remains objectively unaltered. Your feelings towards the book may have changed (oh no now you have a “copied” book instead of an “uncopied” book), but we don’t cry “rights violation!” every time someone’s feelings are hurt.

Kerem Tibuk August 18, 2010 at 6:18 am

Are you claiming the identity of the book being either “un-copied by Jake Lakner” or “copied by Jake Lakner” depends on the subjective perceptions of individuals?

Are you claiming there can objectively be more than two alternatives to the identity of the book besides, “copied by Jay Lakner” and “un-copied by Jake Lakner”? If so I would like to hear it.

This issue is not about “feelings being hurt” no matter how much you want to pull it there. This is about Aristotelian “law of identity”.

Jay Lakner August 18, 2010 at 6:22 am

I just replied to this point in the debate above.

I wrote:
“Tolstoy’s original copy of “War and Peace” is left unaltered regardless of any non-destructive events causally related to it.
The events themselves may have objectively occurred, but the objective identity of the book was left untouched.
The objective identity of any entity is characterised by it’s composition, location and velocity. Events that have occurred as a result of the entity’s existence do not change it’s identity.
The only change is in Tolstoy’s feelings towards the book. The change occurs to the human mind, not to the original physical book itself.”

It’s silly having the same debate with the same person twice in the same thread. Can we move this debate to just one post?

Peter Surda August 18, 2010 at 6:31 am

Are you claiming the identity of the book being either “un-copied by Jake Lakner” or “copied by Jake Lakner” depends on the subjective perceptions of individuals?

The claim is actually twofold. You have not defined copying, and causality does not work backwards.

You use causality to define “copying”, yet you yourself admit it is an insufficient criterion. That is a hole in your argument. Of course, a book can either be causally related to some other book or not be causally related to it. But the presence of causality alone does not change the other book.

Larry N. Martin August 18, 2010 at 11:36 am

If the author doesn’t want his novel copied, then why does he send it to a publisher so they can make a bunch of copies of it?? 

Kerem Tibuk August 17, 2010 at 10:15 am

“I can’t believe I didn’t notice this before but belief in IP is a bit like believe in platonic forms.Only IP advocates try to claim they own these forms.”

Don’t be so hard on yourself. You didn’t notice it because IP has nothing to do with platonic ideal forms. In fact it is about the opposite. That up there is only Kinsella jumping to conclusions and introducing irrelevant concepts because he has no answers to the questions regarding the holes in his theory.

Stephan Kinsella August 17, 2010 at 10:26 am

Scott, you are starting to see it. Many others are too. That is why IP fascist-socialists like Kerem are running scared and making more and more desperate arguments. It’s sad to see.

Peter Surda August 17, 2010 at 10:50 am

Kerem jumping to conclusions and introducing irrelevant concepts because he has no answers to the questions regarding the holes in his theory.

Fixed that for you.

Magnus August 17, 2010 at 10:42 am

Do you think my use of a non copied book is not effected when you copy it? Do you think my using a non copied book is compatible by your action of copying it?

The only substantial effect of copying a book is that the existence of substitutes in the market reduces the sale price of the original. (The proliferation of copies also increases the visibility of the author, but pattern-protectionists are typically short-term thinkers, and can’t tolerate the idea that someone is out there “stealing their customers.”)

The only effect is on the market, not on the thing itself. Pattern-protectionists only care about the exclusivity of their market — i.e., the ownership of potential customers.

asdf August 17, 2010 at 10:47 am

What incentive does anyone have to do anything creative if only one person buys it and then redistributes it to everyone? Wouldn’t they give up their creative trade for something more profitable?

Art Thomas August 17, 2010 at 10:50 am

Stephen, Magnus

In a IP-free world then, what would induce you as a novelist to put your work in the public domain?
Assuming you want to earn your living from your writing, how would you go about it?

This is a fascinating subject, I’m beginning to learn about, thanks mostly to your lively arguments.

Magnus August 17, 2010 at 11:22 am

My suggestion for creative artists would be to produce something that is difficult or impossible to reproduce — spontaneous performance.

Before copyright, and before the age of electronic media even, there were actors and writers and musicians. The emphasis back then was on live, time-based performance, not on being a one-hit wonder. Musicians in the age of the Internet are making their money by being performers again, not by selling records. People pay to see Band X, not to see Band Y imitating Band X.

As for writers, it means a shift toward forms of writing that are more spontaneous and performance-oriented. People read blogs, for example, because they are timely. Without IP, it would mean that novels would have a shorter shelf life — no one can print up copies of new novels faster than the author and the publisher can, so being the first in the market means you get the exclusivity from merely being there first.

Matthew Swaringen August 17, 2010 at 6:48 pm

Art, in the case of books I don’t think a great deal would change. The most I see is there being creator endorsed versions of books and then those that are released for free, but that would be competing with used books, so in reality I don’t see many publishers going that route. They are going to want the authors endorsement, and they are going to want to get first to market, etc.

People aren’t going to fundamentally change just because we get rid of IP laws, anymore than they are obeying those laws or not obeying them now. Those who believe that it’s necessary to support/profit creative sorts are still going to think they should buy copies from endorsed sources.

Just look at the rise of iTunes. Pirates use iTunes at a greater rate than non-pirates. Pirates buy more media than non-pirates. You can find sources for this information in studies on the internet, but it should be obvious that the people most interested in copying/sharing information are also the same people interested in spending their money on such things.

I’m not arguing that there won’t be some people who will “freeload” off this system, but even that term presupposes that an author deserves money every time someone sees or uses or learns from something he wrote. Does that mean that those who dislike his work or like it less after reading it should pay less? Of course not.

What people are essentially purchasing when they pay authors/artists/musicians/etc. is the trust, relationship, and desire to support the future of what they like.

It is wrong in my view to look only at the disadvantages of copying for artists, authors, musicians, software programmers, etc.. They can get money from more people at a cheaper rate of reproduction than those who sell physical goods. They just have to convince more people that they are worth supporting for the future ideas, software, art, etc. that they will make. They are already doing this for the most part, because if people want to copy instead of pay them, they can do it right now.

Raynor August 17, 2010 at 5:47 pm

“I am getting sick of morons who don’t have the mental perspicacity or honesty to even know what they are defending.”

Keep that in mind next time you pick another fight with the left-libertarian blogosphere.

Matthew Swaringen August 17, 2010 at 6:53 pm

Do you think this comment is appropriate to this particular discussion? It sounds like it’s some kind of reference to something, but it’s meaningless to this topic.

Raynor August 17, 2010 at 8:02 pm

“It sounds like it’s some kind of reference to something”

It’s a reference to his crude form of argumentation, which is pervasive in all discussions with his opposition.

For example:

http://polycentricorder.blogspot.com/2010/04/kinsellas-closed-system.html

“That is why IP fascist-socialists like Kerem are running scared and making more and more desperate arguments. It’s sad to see.”

See what I mean.

David Gordon August 17, 2010 at 8:19 pm

From the fact that resources are scarce, how is supposed to follow that, first, someone or other must have exclusive control over each scarce resource; and, second, that the person in question should be the first user? All sorts of ways of distributing resources are conceivable, many of which do not include exclusive control over all resources. Further, if one confines the discussion to distributions that involve exclusive control, why not the second user, the third user, a lottery of all users, etc.?

Peter Surda August 18, 2010 at 4:03 am

From the fact that resources are scarce, how is supposed to follow that, first, someone or other must have exclusive control over each scarce resource

Scarce (or as I prefer to call them, rival) resources mean that the choices involving them are mutually exclusive: if one is taken, the other cannot be taken. That means if one assumes that scarce goods should be consumed, there must be rules who determine who makes these decisions.

that the person in question should be the first user

That does not follow from the scarcity alone. That would be a separate argument.

David K. August 18, 2010 at 4:24 am

“That means if one assumes that scarce goods should be consumed, there must be rules who determine who makes these decisions.”

Yes, but there are other possible such rules besides exclusive ownership. Two people, A and B, might own a scarce resource X in such a way that A has the right to use X in a specific way while B has the right to use X in every way that does not preclude A’s specific way of using X.

Peter Surda August 18, 2010 at 4:51 am

Even if you rearrange the usage, the options are still mutually exclusive. Furthermore, criteria for determining the boundaries other than the physical integrity require human interpretation, therefore cannot be impartial/neutral/objective. Yes, it’s an additional assumption, but if we do not make it, then any arrangement could be claimed to be “the correct one” merely because it looks that way to someone.

The Kid Salami August 18, 2010 at 5:22 am

“That means if one assumes that scarce goods should be consumed, there must be rules who determine who makes these decisions”

Ok, but who says these rules must be based on logic or a system of independent axioms? They could be based on one if one is found to work, but there is no reason at all that there actually will be a set of axioms that work. Assuming that there is is to me confusing. Animals and pre-language humans managed and manage to get along just fine. That the rules they use might conflict with human ethics is not in dispute – but still, there is no reason why we can resolve this with logic only.

Peter Surda August 18, 2010 at 5:49 am

Ok, but who says these rules must be based on logic or a system of independent axioms?

Noone. That is an assumption. However, if you don’t make it, how do you determine which set of rules should be preferred to others?

The Kid Salami August 18, 2010 at 6:17 am

How indeed. That is in fact the question that should be under investigation.

Jay Lakner August 18, 2010 at 6:28 am

Without a logical system to determine these things, we can reach multiple contradictory conclusions. Also decisions may become rather arbitrary. People won’t be aware of their rights and people won’t be able to plan for the future.
Humans employ means to reach desired ends. Individual actions cannot occur if there is doubt over which means and ends are acceptable and which are unacceptable.

The Kid Salami August 18, 2010 at 4:28 pm

I can’t talk for wherever anyone else might be, but here in the UK there are lots of unwritten rules of the road: where you can and can’t park, like how and when you flash people to leave a junction, who tends to go first in certain situations, when you say thanks and when you don’t need to, etc. I’ve been paying attention to these for months – they work really well, and they are not in the highway code or written down anywhere else, they just evolved.

Could they be written down as rules of thumb or principles? I guess so yes. Would there be contradictions in these rules of thumb? Without a shadow of a doubt.

Quote:
http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm
“I have suggested that because the law consists of contradictory rules and principles, sound legal arguments will be available for all legal conclusions, and hence, the normative predispositions of the decisionmakers, rather than the law itself, determine the outcome of cases. It should be noted, however, that this vastly understates the degree to which the law is indeterminate. For even if the law were consistent, the individual rules and principles are expressed in such vague and general language that the decisionmaker is able to interpret them as broadly or as narrowly as necessary to achieve any desired result.”

Same applies to these rules. But people just get on with it. That is, it works fine without someone checking all the rules to make sure that they are logically consistent. Why is a complex question without doubt, but, firstly, the cost of the occasional impasse, where someone has to do something against their will because there are a gang of young lads in the other car or the other guy is rude or whatever, is deemed by everyone a price worth paying. They’ll take the occasional one of these as most of the time they benefit – at the moment – from these principles and rules of thumb, contradictory or not, so just take the rough with the smooth.

If one of them wants to call paying this occasional price and “act of aggression” and say that constructing a system in which this never happens should be the main priority ABOVE EVERYTHING ELSE, SO NO’ONE – EVER – IS A VICTIM OF ANY AGGRESSION, then ok, that is their right.

But it is not at all clear to me that this would make sense.

The Kid Salami August 19, 2010 at 4:58 am

“Without a logical system to determine these things, we can reach multiple contradictory conclusions.”

And in the interests of saving you pointing out things like this if you are going to reply to this, I should point out that my first degree was in maths and that I studied logic and therefore that I have quite literally forgotten more about formal logic than most people ever know.

Stephan Kinsella August 18, 2010 at 8:04 am

David:

“From the fact that resources are scarce, how is supposed to follow that, first, someone or other must have exclusive control over each scarce resource”

David, each scarce resource by its nature is such that multiple people cannot simultaneously control and use the thing. Scarcity makes it possible that different interests and ideas can be attached to and invested in one and the same stock of goods. Conflicts are physical clashes regarding the control of one and the same, given stock of goods. People clash, because they want to use the same goods in different, incompatible ways.

Of course, such conflicts are not necessary and unavoidable. Conflicts regarding the use of any good can be avoided only if every good is privately owned–exclusively controlled–by some specified individual(s), and if it is clear which thing is owned by which person.

This doesn’t follow merely from the fact of scarcity–you also have to presuppose the goal of conflict-avoidance. If you take this as a goal, the rest seems obvious: there are “conflictable” goods; if you want to avoid conflict, let property rights assign owners so that people can avoid conflict by using only their own things.

“; and, second, that the person in question should be the first user? All sorts of ways of distributing resources are conceivable, many of which do not include exclusive control over all resources. Further, if one confines the discussion to distributions that involve exclusive control, why not the second user, the third user, a lottery of all users, etc.?””

Again, the first-user rule does not flow merely from scarcity but from the fact of scarcity combined with the goal of conflict avoidance–the desire to permit the conflict-free (and thus productive, peaceful, cooperative) use of scarce resources in the service of human action.

The reason it has to be the first user is because it is the only rule that can succeed in addressing the very problem of conflict. Why is this? There are several interrelated reasons. First, the general problem of avoiding conflict in the use of scarce means is not a new one. Our solution to the problem of the possibility of conflict needs to be a general one–and my apply from the very beginning of mankind. It must also apply to the appropriation of unowned resources, since sometimes there will be such unowned resources that are also desired to be used as means and that are scarce as soon as they are no longer unowned. Thus, whatever property assignment rule we come up with, it has to include original appropriation–the first transformation of nature-given “things” into “economic goods” and private property. Obviously there is a given person who first desires a given thing and acts to appropriate and use it. If he is not the one who will be the owner–if some second guy or latecomer is entitled to take it–then we have a situation where we have unowned property but if I take it I don’t own it–some second guy does. I think de Jasay does have a point–I think he would say that if you set up a system where the second guy is the owner then you are saying the unowned good already has an owner–but this contradicts the original assumption that it is unowned.

In any case, forgetting the de Jasay point, if the original appropriator does not have title but some later person does, then you are setting up a rule that does not solve the original problem of conflict: if you set up the rule “the next guy to come along has a better claim” than the first, then no property is stable; there is no ownership at all. For ownership to exist the current owner has to have the right to exclude others, including latecomers. The idea that a latecomer has a better claim than the current owner is contrary to the very idea of property itself–that is to say, it is contrary to the very idea of conflict-avoidance. This is just why a latecomer ethic cannot be a solution to the problem of conflict in the first place.

Now you could say, well it’s not the latecomer in general that we assign ownership to: it’s the SECOND person (say; or third, or what have you). But this fails for the same reason homesteading by verbal decree fails. It is utterly arbitrary and therefore it does not serve the purpose of property rules which is to permit conflict to be avoided. In a state of true “anarchy”–before any property rules–conflict is basically unavoidable since there are means people want to use but there are no property borders or rights to use these things. So the various useful things in the world can be desired by multiple people and the only way to determine who gets it is some kind of physical clash or intimidation–say, the stronger or meaner guy gets it–temporarily–in a given situation.

If we assume we are trying to come up with rules that assign ownership in things, for the purpose of allowing conflict to be avoided, the rules have to be objective and fair. They cannot be simply arbitrary, or they are no rule at all and do not serve the purpose. After all one guy could verbally decree: “I am king and therefore all property is mine”. This is the same, in essence, as the claim: “This thing is mine, because I am me, and you are not.” Such a claim is particularizable and arbitrary; it is not universalizable and is not a rule designed to avoid conflict. For such arbitrary, merely verbal decrees could be made by everyone, so that everyone claims the right to control a given good–after all every person is “me” and “not you”–… and we are back to the state of propertyless anarchy.

There is a reason maxims such as possession is nine tenths of the law have arisen. There is a reason even dogs recognize a type of proto-property in thigns they are currently controlling or using–as when a dog worrying a bone growls when another approaches. There is a reason the homesteading rule assigns ownership in property to the homesteader himself and not some arbitrary latecomer. The reason is that there is an objective and natural connection between the original appropriator and the thing. And because of this objective and natural link, it can serve as a fair rule of property assignment that permits conflict avoidance. Any other rule is either arbitrary, or particularizable, or simply akin to mere verbal decree, none of which serve the purpose of conflict avoidance.

Again: we need to have rules not only now, but also to cover the case of original appropriation (and all current goods were at one time appropriated). This original “privatization” of goods cannot occur by verbal declaration–by the mere utterance of words; such appropriation by verbal decree could work ONLY if there were not different interests among men, ONLY if there were a pre-stabilized harmony of the interests among all people. But of course this is contrary to the case; no norms would be needed in such a society where there was no conflict. In the real world where there are different interests among men, and conflict is possible, permitting appropriation by verbal decree would obviously lead permanent and irresolvable conflict–i.e., it does not get us out of propertyless conflictual “anarchy.” It simply leaves us in a state of war of all against all.

So: the purpose of norms is conflict-avoidance. If the first user becomes owner, this permits conflict to be avoided — his appropriation itself does not cause conflict, since the thing was per assumption unowned! IIRC this is de Jasay’s point: that if you say this causes conflict that means the other person with whom the appropriation causes conflict was already an owner, contrary to the assumptions.

This is why, in order to avoid all otherwise unavoidable conflict, the original privatization of goods must occur through actions–acts of original appropriation of what were previously merely “things”. Only actions taking place in time and space can establish an objective link between a particular person and a particular good. Only the first appropriator of a previously un-appropriated thing can acquire the thing without conflict. So in a regression style analysis, all property titles have to go back, directly or indirectly, through a chain of mutually beneficial and hence likewise conflict-free property title transfers, to original appropriators and acts of original appropriation.

I note here that the rule I propose is exactly the same as Locke’s: the first user IS the person who mixes his labor with–”transforms”–the resource. The only difference I have wiht Locke is I do not add the half-step “the appropriator owns his labor and THEREFORE the mixed thing is his”. I simply leave out the “owns his labor” part of the *argument* since this statement seems confused and unnecessary to me.

David Gordon August 18, 2010 at 5:28 pm

It’s certainly right that people who want to avoid conflict won’t settle on an arbitrary rule. But it is easy to think of a rationale for a second-user rule. People might say, e.g., ” the first user is too anxious”: ownership should go to someone who has waited before trying to use a resource.” I of course don’t accept this view; but so long as people in a society did, a second-user rule would not result in conflict. More generally, there are all sorts of moral systems that lead to consistent property rules. Many of these do not assign libertarian ownership rights to anyone. De Jasay’s claim that anyone who objects to a first appropriator would himself be claiming to own the resource, contrary to the hypothesis that the resource was unowned, begs the question, because it assumes that only owners of a resource have standing to object to its appropriation.

Peter Surda August 18, 2010 at 5:46 pm

It could be argued, for example, that a conflict only arises when the second (and subsequent) claimants appear. I’m not saying it is a good argument, but it is an impartial one, unlike “being too anxious”. See it as an example.

Stephan Kinsella August 19, 2010 at 9:35 am

If someone does not accept this rule how could they object to someone proposing to kick them in the rump or hit him on the head from morning to night? It seems to me this point begs the question: of course if people agree on something–if there is a preexisting harmony of interests–if first guy always gives up his property when the next one comes along, etc.–then everything works. But what if they *don’t”–that’s the problem, and conflict would arise, not be solved by this second-user rule.

David Gordon August 19, 2010 at 9:04 pm

The second-user rule does not assume a harmony of interests, any more than the first-user rule. Both are rules for allocating property. Also, the second-user rule isn’t the principle that everyone abandons property when another claimant comes along. Rejecting the first user rule hardly allows kicks in the rump; perhaps this is a joke the point of which I have failed to grasp.

1. Update: See the more extensive comments by Hoppe in this regard in the book based on these lectures, as quoted in Roman Law and Hypothetical Cases; see his Economy, Society, and History (Mises Institute, 2021; https://www.hanshoppe.com/esh/), p. 111. [↩]
2. See n. 5 of Kinsella, “On the Obligation to Negotiate, Compromise, and Arbitrate.” [↩]