I’ve noted before a central error of arguments for intellectual property (IP) is the idea that creation is an independent source of rights (see Libertarian Creationism; Rand on IP, Owning “Values”, and “Rearrangement Rights”; Locke, Smith, Marx and the Labor Theory of Value; this comment to “Trademark and Fraud”; Elaborations on Randian IP; Objectivists on IP). As I noted in “Intellectual Property and Libertarianism“:
… creation is an important means of increasing wealth. As Hoppe has observed,
One can acquire and increase wealth either through homesteading, production and contractual exchange, or by expropriating and exploiting homesteaders, producers, or contractual exchangers. There are no other ways.[26]
While production or creation may be a means of gaining “wealth,” it is not an independent source of ownership or rights. Production is not the creation of new matter; it is the transformation of things from one form to another — the transformation of things someone already owns, either the producer or someone else.
Using your labor and creativity to transform your property into more valuable finished products gives you greater wealth, but not additional property rights. (If you transform someone else’s property, he owns the resulting transformed thing, even if it is now more valuable.) So the idea that you own anything you create is a confused one that does not justify IP.
There are two ways to acquire rights to property: homesteading unowned property; or contractually acquiring title to property held by a previous owner. It is wealth and value that is created or produced, by rearranging already-owned scarce resources. But no new property emerges from an act of production, from labor, from creation: new wealth is created, by making existing property more valuable. By being careful here about the distinction between “creating value” and acquiring property rights, by avoiding overuse of the creation and labor metaphors, we can avoid the mistake of thinking that we have rights in whatever we find, whatever we buy, and whatever we create, as if this latter is an independent, third category. We have rights to the value we create only as a by-product of owning the resource that we have made more valuable by rearranging it. And once we see that this third category does not exist, we see that the creationist case for IP evaporates. Creation never was a source of ownership at all.
Or, as I wrote in Against Intellectual Property,
One reason for the undue stress placed on creation as the source of property rights may be the focus by some on labor as the means to homestead unowned resources. This is manifest in the argument that one homesteads unowned property with which one mixes one’s labor because one “owns” one’s labor. However, as Palmer correctly points out, “occupancy, not labor, is the act by which external things become property.” By focusing on first occupancy, rather than on labor, as the key to homesteading, there is no need to place creation as the fount of property rights, as Objectivists and others do. Instead, property rights must be recognized in first-comers (or their contractual transferees) in order to avoid the omnipresent problem of conflict over scarce resources. Creation itself is neither necessary nor sufficient to gain rights in unowned resources. Further, there is no need to maintain the strange view that one “owns” one’s labor in order to own things one first occupies. Labor is a type of action, and action is not ownable; rather, it is the way that some tangible things (e.g., bodies) act in the world.
Palmer (p. 838) cites Hegel’s Philosophy of Right for the contention that “occupancy, not labor, is the act by which external things become property”. In particular, in §§50-51, Hegel writes:
The principle that a thing belongs to the person who happens to be the first in time to take it into his possession is immediately self-explanatory and superfluous, because a second person cannot take into his possession what is already the property of another. … Since property is the embodiment of personality, my inward idea and will that something is to be mine is not enough to make it my property; to secure this end occupancy is requisite. … Occupancy makes the matter of the thing my property, since matter in itself does not belong to itself.
So: creation does not give rise to property rights or new property, but only enhances the value of already-owned scarce resources. And it is being first to appropriate or occupy an unowned resource, not some metaphorical and derivative “ownership of labor,” that is the basis for Lockean homesteading. The idea of creation and the labor metaphor Locke employed has been wildly distorted by modern advocates of intellectual property. They regularly argue that if you own your labor then you own “things” that you create with your labor. Yet even the American Founders who put the IP clause into the US Constitution in 1787 did not think of IP rights as natural rights, steeped as they were in Lockean ideas. “To the contrary, they evidently viewed copyright as a policy tool, one aimed at promoting the progress of science and useful arts. They begrudged copyright’s interference with natural and common law rights, like the government they formed, as a necessary evil.” Tom W. Bell, Intellectual Privilege: A Libertarian View of Copyright, ch. 3 (draft). The Founders didn’t think Locke’s natural rights views implied that IP was a natural right, and Locke apparently didn’t either. As Professor Bell writes, Locke’s
labor-desert justification of property gives an author clear title only to the particular tangible copy in which she fixes her expression–not to some intangible plat in the noumenal realm of ideas. Locke himself did not try to justify intangible property. He appears, in fact, to have viewed copyright as merely a policy tool for promoting the public good. Modern commentators who would venture so far beyond the boundaries of Locke’s thought and into the abstractions of intellectual property thus ought to leave his name behind.
More pointedly, copyright contradicts Locke’s justification of property. He described legislation authorizing the Stationers’ Company monopoly on printing—the nearest thing to a Copyright Act in his day—as a “manifest . . . invasion of the trade, liberty, and property of the subject.” Even today, by invoking government power a copyright holder can impose prior restraint, fines, imprisonment, and confiscation on those engaged in peaceful expression and the quiet enjoyment of physical property. By thus gagging our voices, tying our hands, and demolishing our presses, copyright law violates the very rights that Locke defended.
… As our careful review of the historical record showed, however, the Founders almost certainly did not regard copyright as a natural right.
Bell cites here Ronan Deazley, who in Rethinking Copyright: History, Theory, Language writes (p. 143-44, n.32):
One of the ironies of the orthodox conception of copyright within the UK is that John Locke himself did not consider that his theory of property extended to intellectual properties such as copyrights and patents. In response to this letter from Freke [discussing with Locke arguments about a Bill for the Better Regulating of Printing and Printing Presses to provide certain property rights in books], Locke suggested that Parliament might secure the “Author’s property in his copy” by either including some provision that would allow a right to reprint those works which bore the name of the author or publisher upon them, or by issuing a “receit” upon delivery of three copies of any printed work for the use of the King’s library and the two universities which would “vest a priviledg in the Author of the said book his executors administrators and assignes of solely reprinting and publishing the said book for ___ years from the first edition thereof” ….
Consider Locke’s words in Two Treatises on Civil Government (ch. V, § 28):
He that is nourished by the acorns he picked up under an oak, or the apples he gathered from the trees in the wood, has certainly appropriated them to himself. No body can deny but the nourishment is his. I ask then, when did they begin to be his? when he digested? or when he eat? or when he boiled? or when he brought them home? or when he picked them up? and it is plain, if the first gathering made them not his, nothing else could. That labour put a distinction between them and common: that added something to them more than nature, the common mother of all, had done; and so they became his private right. And will any one say, he had no right to those acorns or apples, he thus appropriated, because he had not the consent of all mankind to make them his? Was it a robbery thus to assume to himself what belonged to all in common? If such a consent as that was necessary, man had starved, notwithstanding the plenty God had given him. We see in commons, which remain so by compact, that it is the taking any part of what is common, and removing it out of the state nature leaves it in, which begins the property; without which the common is of no use. And the taking of this or that part, does not depend on the express consent of all the commoners. Thus the grass my horse has bit; the turfs my servant has cut; and the ore I have digged in any place, where I have a right to them in common with others, become my property, without the assignation or consent of any body. The labour that was mine, removing them out of that common state they were in, hath fixed my property in them.
Notice here Locke already assume self-ownership, and then argues that an acorn ingested into one’s body becomes one’s property; to take the acorn back would violate his rights in his body. So what makes the acorn his? Locke says that it is labor that “put a distinction between” the ingested acorn and the unowned commons. Later he says the labor “was mine,” but this metaphorical comment is not necessary for his argument that by exerting labor on some unowned resource–by somehow transforming, enclosing or otherwise embordering it–one “puts a distinction” on it. That is the very purpose of borders of owned things: to distinguish them from things one does not own. Labor does this by establishing a connection or link between the homesteader and the thing embordered or transformed. (See my “What Libertarianism Is” and “How We Come To Own Ourselves.”) But labor does not need to be “owned” to serve this function. If labor were “owned” as some independent thing or substance (instead of merely being a metaphorical description of the fact that owning one’s body gives one the practical right to control one’s actions and labor as a sort of “byproduct”), and anything you “mixed” it with “therefore” became your property, then the argument would arise that you would own even useful, valuable ideas one “creates” by one’s labor. In fact this is how modern-day IP advocates argue.
But apparently Locke did not overextend his own labor metaphor as IP advocates do, for he did not view IP as a natural right, and neither did the Locke-influenced Founders who put the IP clause into the US Constitution in 1787. Bell is right that modern advocates of IP should not claim to be Lockeans. I’m not sure when the mistake arose of thinking of patent and copyright as “natural” rights. While the Founders and even Locke realized IP is not a “natural” right but only a temporary policy tool based on utilitarian notions, those coming later apparently did not see this distinction. They saw a large set of “rights” protected in the Constitution and lumped them all together as natural rights, even though only some of them were thought to be by the Founders and by Lockeans.
Now I noted in Rand on IP, Owning “Values”, and “Rearrangement Rights” that Rand should have realized that creation is not an independent source of ownership (thus deflating her case for IP), given that she once wrote:
The power to rearrange the combinations of natural elements is the only creative power man possesses. It is an enormous and glorious power—and it is the only meaning of the concept “creative.” “Creation” does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. “Creation” means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before.
She was not alone in this insight. In Man, Economy, and State, Rothbard wrote:
Men find themselves in a certain environment, or situation. It is this situation that the individual decides to change in some way in order to achieve his ends. But man can work only with the numerous elements that he finds in his environment, by rearranging them in order to bring about the satisfaction of his ends. With reference to any given act, the environment external to the individual may be divided into two parts: those elements which he believes he cannot control and must leave unchanged, and those which he can alter (or rather, thinks he can alter) to arrive at his ends. The former may be termed the general conditions of the action; the latter, the means used. Thus, the individual actor is faced with an environment that he would like to change in order to attain his ends. To act, he must have technological ideas about how to use some of the elements of the environment as means, as pathways, to arrive at his ends. Every act must therefore involve the employment of means by individual actors to attempt to arrive at certain desired ends. In the external environment, the general conditions cannot be the objects of any human action; only the means can be employed in action.
Lest Objectivists accuse Rothbard of “plagiarizing” from Rand, note the words of Mises in The Theory of Money and Credit (citing J.S. Mill’s Principles of Political Economy, sec. I.5.1-I.6.1):
It should never have been called in question that the transportation of persons, goods, and information is to be reckoned part of production, so far as it does not constitute an act of consumption, as do pleasure trips for example. All the same, two things have hindered recognition of this fact. The first is the widespread misconception of the nature of production. There is a naive view of production that regards it as the bringing into being of matter that did not previously exist, as creation in the true sense of the word. From this it is easy to derive a contrast between the creative work of production and the mere transportation of goods. This way of regarding the matter is entirely inadequate. In fact, the role played by man in production always consists solely in combining his personal forces with the forces of Nature in such a way that the cooperation leads to some particular desired arrangement of material. No human act of production amounts to more than altering the position of things in space and leaving the rest to Nature.
***
Official version:
- Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and ‘Rearranging’, C4SIF (Sep. 29, 2010) (with links to Mises version)
September 29, 2010 at 1:56 am
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You try to claim that it shouldn’t exist, but both copyrights and patents attracted inventive minds to america and Britain! (A lot of Europeans moved to England if they had good ideas- not just America. Bata shoes, Marconi Radio, etc.) If you are going to claim that taking the amerindian lands was a major reason for immigrants to your land, that would not apply to the other immigrant magnet- the British Isles. I think that America would not be as rich as it is now, if it had not adopted copyrights and patents.
Can you point to a counter-example from history, as proof of your ideas?September 29, 2010 at 2:11 am
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Copying has become exponentially easier and the utilitarian want for IP must be re-evaluated. What worked yesterday will not necessarily work today. (In other words, I’m calling IP a technology, not a right)
September 29, 2010 at 8:17 am
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No counter example, I can make tidy use of your own example.
Tesla owned the patents Marconi used in his radio. Marconi used them against the intellectual property laws you make reference to above. This was proven in court (I believe a supreme court decision just before or just after Tesla’s death). Unfortunately, the fact is still misreported in most schools that mention the subject.
With properly enforced patents you are correct, America would be a different place because Marconi would have been arrested for his use of his radio and all the benefits of it you allude to would be foregone.
September 29, 2010 at 9:22 am
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Grat example North…
And Tesla died basically in poverty due to theft and even sabotage by copy-cats. It is such a shame that this increadible genius was unable to complete and control the USE much of his inventions that would benefit the entire mankind (after all, he invented the way to produce and transmit the alternating electicity we use today, but this was only his first step in solving the world’s dependence on primitive ways to obtain energy that is all around us).
September 29, 2010 at 9:41 am
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Sasha,
why don’t you address the objections Jay and me explained last week? Such as your theory requiring that a trespass results in a change of ownership?
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Don’t have time to repeat myself. This was already addressed — fruits of trespass do not belong to a thief… Even in your improbable example where innocent third party’s blank paper is used as a tool for trespass (unauthorized replication of someone’s expensive book) – this third party can only be compensated for destruction of his blank paper — he can’t lawfully reap the fruits of trespass and theft.
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Sasha,
merely because “fruits of trespass” (whatever that means) do not belong to the thief, it does not follow that they belong to the trespassee. For that, it is necessary that a change of ownership occurs as the consequence of the trespass. You are committing a logical error in your claims. How about instead of repeating the same errorneous claims, you address the objections that have been made?
But, since you have been repeating the same nonsense for years, just like Kerem, I don’t expect you to fix the errors in your claims.
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By the way, if a thief breaks into your house and paints excerpts from Harry Potter on your walls, according to your “theory”, JK Rowling would be in full right to demolish your house. I’ll make sure I have a camera with me should such a thing happen.
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Peter,
If “fruits of trespass” (the result of trespass that may have some value) don’t belong to either trespasser or trespasee, you basically support the destruction of illegal replicas and this is exactly what is done in the real world! If we follow your last comment, IP laws should be upheld and you unwillingly admitted that IP is perfectly just form of property protection.
I understand your anger and name-calling, but I’m glad this charade is now over for you. Bye-bye!
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And Peter, stop with silliness:
As I said in case of your completely absurd blank-paper-theft example: the owner of painted house can only get compensated for new painting of his house — he doesn’t obtain JK Rowling’s expensive property use rights, only because someone trespassed using his property as a tool.
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Sasha,
your logical fallacies are more and more ridiculous.
If “fruits of trespass” (the result of trespass that may have some value) don’t belong to either trespasser or trespasee,
Even if this is correct, it still does not follow that the trespassee has any right whatsoever over the material used in the trespass. That’s where you err: you claim a separate owner over the material (third party) and the way it was arranged or used (trespassee). So, you claim ownership of immaterial aspects, as well as matter. This is so important that it requires a reiteration: you claim that physical matter and the arrangement of that matter have separate owners. And, of course, in your view, the immaterial aspect takes precedence, so physical matter must be expropriated and destroyed.
you basically support the destruction of illegal replicas and this is exactly what is done in the real world!
On the contrary, I say that if you support 100% physical property rights, trespassee has no right to destroy material belonging to a third party.
If we follow your last comment, IP laws should be upheld and you unwillingly admitted that IP is perfectly just form of property protection.
If we follow my arguments, we will notice you contradict yourself. You are obviously unable to draw the line far enough.
The owner of painted house can be compensated for new painting of his house — he doesn’t obtain other person’s expensive property use rights, only because someone trespassed using his property as a tool.
In other words, the house is expropriated, because it’s immaterial aspects overlap with a pattern that the traspassee owns. So, you contradict your former claims that IP is enforcing physical property and is not about ownership of patterns.
You could at least attempt not to pretend you are making proper arguments and instead of making up self-contradictory theories, just say that you don’t like copying.
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Peter,
I never claimed that trespassee has any right whatsoever over the material used in the trespass. Neither does trespasser have any property rights in a DIRECT OUTPUT of trespass. All that angry foaming will not help you – we just both agreed that the results of trespass belong to neither party.
By the way — who claimed that a house in your absurd and nonsensical example is expropriated? You are hallucinating. I just said that the house owner should get a just compensation for house painting — not to get his house destroyed or to obtain JK Rawling’s expensive property use right’s based on another person’s theft.
Unfortunately, you are completely clueless how ridiculous your examples and pseudo-arguments got… If you could stop and think for a second, you would see that your JK Rawling paint example and similar nonsense is only painting you as completely lost and angry.
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Also, have you noticed that your entire case against IP is now based on hysterical search for loophole that always involve some thief or trespasser who endows some innocent third party with multi-million dollar gift. Just a mere fact that your entire case now rests on theft and justification of its results speaks volumes (at least to normal, decent people).
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I never claimed that trespassee has any right whatsoever over the material used in the trespass.
On the contrary. You claimed that the paper needs to be destroyed, and the walls repainted.
Neither does trespasser have any property rights in a DIRECT OUTPUT of trespass.
Again, you use vague words, like “direct output”. But let’s ignore the trespasser. His activities might be restricted either through contract or through the rights in the physical property itself. The question here is regarding property of a third party.
All that angry foaming will not help you – we just both agreed that the results of trespass belong to neither party.
For whatever reason, you ignore my whole argument. Since the beginning I have been claiming that IP means the restrictions put on third parties, not on trespassers. Why do you keep referring to them then?
I just said that the house owner should get a just compensation for house painting
A couple of paragraphs above you claimed that the trespassee has no rights whatsoever on the material used in the trespass. Now you claim that the wall needs to be repainted. Again, you contradict yourself.
Furthermore, previously you said that the paper needs to be destroyed. How come the house does not need to be destroyed, only repainted? You arbitrarily made a random claim to patch a hole in your theory. There is no logical coherence whatsoever in this part of the argument.
… obtain JK Rawling’s expensive property use right’s based on another person’s theft.
You have not explained why he has to obtain anything. If he does, it means his house was expropriated. It means that you do not own physical property, but the arrangement of it. Again, this contradicts your other claims.
Unfortunately, you are completely clueless how ridiculous your examples and pseudo-arguments go…
On the contrary, the one who is oblivious is you. You continue to contradict yourself practically in every second sentence.
If you could stop and think for a second, you would notice the contradictions, the lack of a proper theory, your preconceived bias and cognitive dissonance.
Also, have you noticed that your entire case against IP is now based on hysterical search for loophole that always involve some thief or trespasser who endows some innocent third party with multi-million dollar gift.
You are oblivous to the fact that my objections are not against IP per se, rather against self-contradictory theories.
Just a mere fact that your entire case now rests on theft and justification of its results speaks volumes (at least to normal, decent people).
This is merely a corner case to accentuate the errors in your claims (since they already depend on very vague concepts). Also, every IP proponent makes up a completely different argument base, so it needs to be addressed differently. In addition to that, I made many other objections to your claims as well, which you have not addressed, but ignored.
Last but not least, “justification” is not necessary (again, you are oblivious to the fact that I am making positive, not normative, claims). It is sufficient to point out that it contradicts your other claims. Justified or not, you advocate expropriation and deny it at the same time.
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Peter Surda,
You’re still left with your failed attempt to justify theft and with a severe anger. Calm down and you will understand that even your nonsensical example does not prove your point. Now I will use your disturbed sense of logic to prove a point:
Imagine that a thief steals my knife and stabs you in chest. According to your twisted logic of “third party rights”, I have a right to take back my knife from you, pulling it out of your chest – even if such action kills you.
Crazy!
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Sasha,
well, you’re the one fuming here, so I don’t get your reference to anger.
Imagine that a thief steals my knife and stabs you in chest. According to your twisted logic of “third party rights”, I have a right to take back my knife from you, pulling it out of your chest – even if such action kills you.
No, that is not according to my logic. According to my logic, noone can assert their claims by causing damage to third parties’ property. It is you who claims that. In this specific case, it would mean that the knife cannot be removed without both the knife owner and the stabee agreeing. However, even if you made the normative claim that the property life of the stabee takes precedence over the knife owner, it still does not follow that anyone has the right to destroy the knife against the knife owners’ wishes. You could then make the claim that the knife owner needs to wait until the stabee has received medical attendence.
I am already stretching the definitions by accepting that writing on paper is trespass. That does not eliminate your contradictions. According to you, the author has a right to fruits of their property, but the material owner not only does not have the rights to the fruits of their property, they do not even have a right to the integrity of their property. Or, to phrase it more correctly, the authors’ rights take precedence. Yet, you claim that this is not expropriation. Why should trepass result in the cessation of property rights? You do not explain this, and you deny this expropriates. Although it is evident that any extension of rights beyond the physical property itself logically collides with other physical property, you sill are oblivious to it.
I’m on a vacation so responses are delayed/incomplete.
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Peter Surda,
Even if paper used to replicate someone’s book (trespass) was yours, that does not mean that you can do with this paper whatever you please to do, even if it means injury to person suffering trespass!
That’s why I used the knife-stabbing example: you stated that the knife-owner needs to wait with his property claim, because his property use cannot take precedence over victim’s injury. Similarly, the use of paper used for unauthorized book replication will have to wait until it is blank again (or replaced by the same blank paper).
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Sasha,
you continue to contradict yourself. Whether a paper owned by B is blank or has something written on it has no effect on the physical property of A. It merely has a difference on whether B draws immaterial benefits that were caused by the physical property of A (which, as explained several times alrerady, extend to infinity). So, your example is immaterial benefits derived from physical property, rather than physical property itself. The concepts of physical property and immaterial benefits derived from physical property are different interpretations of the same contents. If you say that one of them is a full right, the other cannot be any right whatsoever, other than incidental partial overlap. Alternatively, you can create a proportional mix of them. Anything else is double-counting and results in a self-contradictory system.
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Peter,
I’ll bet you have no clue what you just wrote. I’m completely focused on property rights and when your property is used to create trespass or injury to another person, you cannot lawfully use your property to create more injuries.
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So, if a thief steals money from you and uses it to have his girlfriends’ car fixed in a repair shop, you can demand that the car become broken again? Maybe it needs to be even the same repair shop that does the breaking, otherwise they would be liable for tort? Are you sure you have given any thought whatsoever into your claims?
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Peter,
We talked about completely different examples (you insisted on those). If a thief steals my chemicals to turn them into WMD, I should not be allowed to get this weapon into possession – but only to get compensated for my materials that were stolen. Now that’s much closer analogy.
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We talked about completely different examples (you insisted on those).
What I am trying to do is to find the point in your arguments where the two conflicting approaches cross, and make it apparent to you. You claim that you have a right both to the physical integrity/momentum of your property, as well as “benefits derived from them”. So, I am trying to find cases where you yourself do not claim that the owner of physical property has a right to benefits derived from it.
If a thief steals my chemicals to turn them into WMD, I should not be allowed to get this weapon into possession – but only to get compensated for my materials that were stolen. Now that’s much closer analogy.
On the contrary, it is a very bad analogy, since the act of assembling WMD involves the change of physical integrity or momentum of your chemicals, whereas the repair of the car does not. Just like when someone writes Harry Potter on a wall, it does not necessarily involve the change of integrity or momentum of J.K.Rowling’s books. So, just like in your previous examples you demand that the wall be repainted, in my example, you should demand that the car become broken again, if you want to remain consistent.
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Peter,
There is nothing in my examples that supports your confusing car analogy. I never said that person should have his house destroyed – however, I did say that this product of trespass cannot lawfully be used to create injury to a victim of a trespass (JK Rawling in your example).
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Sasha,
you claim that the author has a right to prevent the wall owner from using his wall, because someone who trespassed your property painting over it. How exactly you formulate or defend it is irrelevant. You have not explained what the alleged difference is supposed to be. Hiding behind metaphors appears to be a common method of arguing among IP proponents.
September 29, 2010 at 9:37 am
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switzerland.
October 6, 2010 at 9:55 am
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Lots of people flock to welfare states. That’s one of the things which bankrupts them.
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If causality (or creation or rearranging) doesn’t justify the relationship between one individual and the property, NOTHING CAN.
Causality is a necessary, but not a sufficient criterion for homesteading. You recognise this yourself, since you deny that externalities are property.
This is merely one of the contradictions that you need to resolve before you are taken seriously.
September 29, 2010 at 5:09 am
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this line tickled me: ‘And once we see that this third category does not exist, we see that the creationist case for IP evaporates. Creation never was a source of ownership at all.’
hehe. the use of the term ‘creationist’ in this context is exquisite, and profoundly apt in a far wider sense, imo.
September 29, 2010 at 8:17 am
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And once we see that this third category does not exist, we see that the creationist case for IP evaporates.
Your case against IP appears to evaporate as soon as we call into question your insistence that people do not own their own labor. Here, I do just that:
You say:
This is manifest in the argument that one homesteads unowned property with which one mixes one’s labor because one “owns” one’s labor. However, as Palmer correctly points out, “occupancy, not labor, is the act by which external things become property.”I counter that it is impossible to “occupy” an acorn or an apple. How might one occupy an apple? There is a deliberate reason Locke noted that labor was necessary to take possession of the apple in the first place.
Furthermore, the word “occupy” itself means “to take possession of,” so you are essentially arguing a tautology, i.e. that possession is the fundamental requirement for possession. Well, of course it is!
The idea that one cannot own one’s actions is completely untenable. Someone employed in a service industry (law) ought to know this full well. When hiring Kinsella’s services, one is purchasing an action – it is by definition an agreement for Kinsella to act on behalf of the purchaser. Suggesting that nothing owned is exchanged in this transaction is, again, untenable. The mere fact that economics under the Misesian framework is founded upon human action – that action is the fundamental atom of economics itself virtually demands that actions are property.
If actions are not property in the above respect, then I suggest we clearly define what property is. I can guess, however, that your definition of property will be such as to exclude action, and mine will be such as to include it.
The debate continues… However, I don’t think you’ve punched a hole in IP with this line of reasoning, simply because you have not yet dealt with the fact that action is ownable. You will first need to establish once and for all that it is not in order for the above argument to work.
(In my opinion)
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Ryan,
irrespective of the imprecisions Stephan might have in his post, the core issue is difficult to counter. Any human action is merely an alteration (or, to borrow Jay Lakner’s terms, change of integrity or momentum) of physical matter. Performing a service results in some change in physical matter. It does not follow that a change of ownership (other than the money paid for it) also occurs. Rothbard calls this “conditional exchange”: the money will be paid if the provision of service results in a specific outcome. There are no other results of that action (service). So there is nothing else to homestead or own.
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But homestead is a verb, i.e. an action. If homesteading is a valid form of obtaining ownership, then why isn’t it a form of labor that results in property?
I think it’s inevitable: Whether we’re talking about the homesteading of original ownership or the sale of services, eventually you have to admit that we own our own actions.
September 29, 2010 at 12:15 pm
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Labor does (or can) result in property rights being acquired. So what? Why does this mean you “own” the labor? The labor is just an action you perform, whereby you transform and/or somehow emborder an unowned resource, thereby establishing an objective link to the resource, which gives you a better claim to it than latecomers have. This is the Lockean-libertarian view. This notion does not depend on the idea that you “own” labor; in fact, saying you “own” labor doesn’t add to or detract from the argument. It’s just an unnecessary, superfluous–and vague and misleading–statement.
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As I suggested in my original comment, this matter may be resolved if you take the time to define what property is, in the economic sense.
If you define property to be “physical, homesteaded matter,” then action definitely cannot be property.
If you define property to be “anything that holds praxeologic potential for want-removal,” then action is certainly property.
I submit that this latter definition is more accurate, less confusing, allows for better economic interpretation of service industries and perhaps most importantly puts me in the right! (ha ha)
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Ryan,
no matter how you define property, all human action is merely altering physical objects. So, either this alteration is homesteading of that physical object, or it is a homesteading of something else. But what else?
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Peter – Human action could be many other things. Off the top of my head: 1) Technology in the Misesian use of the term; 2) Communication; 3) Something of value to be bought and sold on the market…
Obviously #3 is very relevant here. #1 is also of note. Technology is a form of capital in Misesian praxeology, and capital can be bought and sold as a second-order good. #2 may be considered a sub-category of #1, but it is also a sub-category of #3 in some cases.
I think suggesting that a person doesn’t own his/her action is a convenient expedient in an IP argument, but problematic in the context of praxeology. Services are rendered for a fee – in that sense they are economic goods, and goods are property.
As this presents no real contradiction with anything other than Kinsella’s proposition that we do not own property, I really don’t see the problem with this view. It is intuitive, natural, and unobjectionable. It confuses nothing, and it sheds light on a whole host of valuable economic categories.
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Ryan, the issue is not that the alternative definitions were “wrong”. The issue is that they cover the same scope: scarce goods, or physical matter if you will. There is nothing outside that. Even if you concentrate on different aspects, you’re still covering the same scope. Your definitions are just that: different aspects of physical matter. Can you have technology, communication or a sale without the physical matter?
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“When hiring Kinsella’s services, one is purchasing an action – it is by definition an agreement for Kinsella to act on behalf of the purchaser.”
Well, you can SAY it’s purchasing services, but this is potentially misleading metaphor. It’s not really like a normal exchange even though it’s couched in that language. I discuss this in my Contract Theory article https://stephankinsella.com/publications, but contracts can be viewed as ways of transferring title to alienable, owned objects (basically, to homesteaded scarce resources). The title is almost always transferred in the future and/or conditionally, except for some contemporaneous manual gift, I suppose; even a contemporaneous exchange of a dollar for an apple is accompanied by conditions: the title to the dollar is transferred IF the apple is genuine and IF title to the apple transfers and IF the guy purporting to sell the apple really owns it, and so on.
In a normal exchange, each person transfers title to some object he owns, to the other, and each transfer is one of the conditions of the other transfer occurring.
But unilateral transfers are possible too: you can give title to something to someone as a gift; or it can be triggered by some random or other event (gambling is one possibility). So, I can transfer title to my car to you on the condition that it does not rain on Wednesday. If it doesn’t rain, then title transfers. That does not mean you “sold” me the weather conditions, but that the weather condition was a trigger for the title transfer.
Likewise, if I want money from you, the fact that I have practical power over what labor I perform (since I own my body and have the right to control it) allows me to obtain money from you by making a contract where I withhold certain services unless you agree to transfer money to me conditioned on my performing these services. With this contract in place, I know that I can trigger the money trasnfer to me by just performing the specified action. So my action triggers money transfer to me, and people loosely refer to this as “selling a service” in analogy to a normal exchange, but the danger of using this analogy is that it makes “servicE” or “labor” sound like something owned. BUt it’s not; there is no title to labor; title to it is not transferred; rather it is simply arranged to be the condition for the money transfer, in a clever arrangement that gets the payer what he wants (he wants me to do some service, and knows I have an incentive or inducement to do it, since the money goes to me if I do it), and gets me what I want (I get to have the money I desire, if I just choose to perform an action that triggers the payment).
So, you can call it an exchange, or a sale of servic,e if you keep in mind that it’s just an analogy or loose language. But you can’t then say, Aha! Because it is a SALE of labor that means you must have owned it! I mean this is just horrible reasoning–and often disingenuous.
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I don’t think it’s a metaphor, and I don’t think it’s bad reasoning. You yourself just said: “since I own my body and have the right to control it”. This is basically 99% of the way to saying that you own your actions. I simply go the remaining 1% and say, “Yes of course. You own your actions. Isn’t it great?”
I think you may feel that admitting this puts you at risk of endorsing IP, but I don’t see it that way. Much as a musician owns his/her performance, but not all recorded and rebroadcast instances of that performance, so you can own your legal services without claiming title to the resulting court transcripts or jurisprudence.
In my mind, the difference is absolutely clear. There is no confusion, metaphor, or contradiction. If you own your body, then you own what your body does – but you do not own a recording of that action, nor do you own anyone else’s body and their resulting ability to learn from your example and repeat your actions with their own bodies (then, it becomse their actions).
I am really puzzled that you could look at it differently, actually.
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Ryan, you’re just confused. See my comment here: http://blog.mises.org/14045/locke-on-ip-mises-rothbard-and-rand-on-creation-production-and-rearranging/#comment-727845
You don’t own what your body does. You own your body. It is nonsense to speak of owning actions or processes.
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Stephan, there’s nothing in that comment or anything else you’ve quoted that establishes (or even argues for) the fact that one cannot own one’s actions. You keep calling it confused, but you never really point out why.
I will concede that owning one’s actions is a byproduct of owning one’s body – but I will not concede that this means one cannot own one’s actions. (Similarly, owning a chicken egg is often a byproduct of owning a chicken.)
If you want me to buy into the arguments you have laid out, you need to do a better job of establishing the impossibility of owning one’s actions. You cannot merely keep reiterating that I am confused. I am not confused, you just haven’t convinced me yet.
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Stephan – Basically, you’re saying it’s a self-evident fact that we don’t own our actions. I’m saying it’s a self-evident fact that we do. Now what?
September 29, 2010 at 4:41 pm
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Ok, Ryan, how can I steal an action from you?
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Mashuri – Easy: You can hire me to perform a service for you, and then refuse to pay me once I’ve performed that service.
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Stephan – If occupancy is required for ownership, then the money isn’t mine until I take occupancy of it, right?
Either way, we’re still at the definition stasis here. My definition of property includes action – yours does not. For what it’s worth, I think it’s worth your while fleshing the idea out as opposed to just saying that it’s a byproduct.
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Stephan – Either way, this is definition-stasis stuff. No easy way to convince each other, I’m afraid. I’ll give it some more thought on my end, but I think that will only reinforce my existing view.
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Ryan, “Stephan – Either way, this is definition-stasis stuff. No easy way to convince each other, I’m afraid. I’ll give it some more thought on my end, but I think that will only reinforce my existing view.”
I don’t think you are being reasonable. I have explained why it’s problematic to refer to owning actions or labor as literally true, as something more than just a consequence of owning one’s body in the first place. One reason I gave is that explains nothing more. I even gave an illustration where the typical language “sale of service” really is describing a unilateral transfer of property to scarce goods that does not at all imply the service is “owned”. You tried to find a way around this, and I showed how your attempt is flawed. The reasonable position at this point would be for you to re-evaluate whether you are, in fact, correct, that the assumption makes sense that labor is “owned”.
October 7, 2010 at 3:19 pm
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I really don’t understand how Ryan, or anyone for that matter, can say that it makes sense to “own” an action.
Ownership of tangible materials means the right to prevent other people from altering the integrity or momentum of those materials.
So ownership of an action means the right to prevent other people from altering the integrity or momentum of … an action? Huh? What? It makes no sense. You can’t alter the integrity or momentum of an action. An action is nothing more and a sequence of spacial transformations, ie a “pattern” of movements with respect to time.Unless he is implying that ownership has a different definition when applied to actions, eg, the right to prevent others from performing the “owned” action. But then that similarly makes no sense because ownership of an action and ownership of tangible materials would conflict and, since one of them must take precedence, one must always violate the other. Ownership of an action and ownership of tangible materials are therefore mutually exclusive.
I just don’t get how so many people can find this stuff so difficult to understand.
September 29, 2010 at 12:49 pm
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Stephan,
I am looking for a good lawyer. The last one I hired is such a twit. Now he is suing me. I needed some work done to complete that last merger, not a big deal really, just the usual legal paperwork mumbo jumbo stuff. Well that %^&* billed me for 200 hours! Can you imagine that? I had agreed to pay him $250 an hour and he must have let the clock run non-stop. Well, what could I do? $50,000! No way! It’s only worth $10,000 to me. I told him that I had just read that he didn’t even own his own labor and so he couldn’t sell anything that he didn’t own! That makes the contract void because he can’t contract to sell something he doesn’t even own. Like you can sell the Brooklyn Bridge. I read it right here, so I know it’s true. Then he said he wasn’t selling his labor and that wasn’t what we agreed to, he was simply trading the finished paperwork for some un-predetermined amount of money upon delivery. I told him he could take the papers back and where he could put them, but he won’t because he said they are not worth anything to him. (Ha! I made 2 copies and I kept those. Mr. Surda says that I can copy stuff to infinity and beyond for the same price – nothing, but I only need 1 copy so why be greedy.) So now I hold nothing that he can remotely claim was his property. I even offered to give him a new toner cartridge and a whole ream of new blank paper but he just laughed at me and said something about how he was 200 hours older or something and demanded that I pay him. So what, he would have been 200 hours older anyway. So I say that I owe him nada. I am glad that at least I have someone who understands and is on my side.Anyway, I need your services to defend myself against this charlatan. I’ll pay you $500 per hour. Do we have a deal?
Jokingly yours,
DonP.S. Seriously though I am having a very difficult time with this and so far I don’t get it. I know that I am simple, but it seems to me that intangibles are deemed to be un property arbitrarily because they cannot be perceived by the physical senses and for no other reason. Why is this? It seems to me to be because we have no simple, effective way to handle disputes over these “nothings”, so we declare them to be part of the commons, then hold that no disputes can arise. Why not try to devise new ways to handle those inevitable disputes? Thanks, in case you choose to reply.
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I suggest you simply read what I and others have written and think about it before trying to reinvent the wheel here.
“I told him that I had just read that he didn’t even own his own labor and so he couldn’t sell anything that he didn’t own! That makes the contract void because he can’t contract to sell something he doesn’t even own.”
You apparently do not understand what I said above. It’s fairly simple, so I’m not sure what I can say. You owe him the money b/c you agreed to give it to him IF x,y,z happened. x,y,z can be whatever is specified–such as the attorney performing a given action. That does not imply he “owns” the service.
“P.S. Seriously though I am having a very difficult time with this and so far I don’t get it.”
That is obvious. I don’t konw what to tell you. This is not too hard to understand, it seems to me. I think some people just can’t get past certain common terminology and mental blocks.
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Stephan,
Thanks for making your point clear, it helped. Please excuse my density.
Respectfully,
Don
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Don,
intangibles are features of the tangibles, they do not exist without them. It’s a different perspective on the same contents. Either you can own tangibles, or intangibles, or some sort of combination thereof. But if there are full ownership rights in one of the categories, there can be no rights whatsoever in the other category. I’ll borrow from Stephan: if you want to own tangibles and intangibles, you’re double-counting.
There is no need to “own” something in order to earn money by doing something. Rothbard calls this “conditional exchange”, you can read about it when you google for it, it will give you a link back to mises.org.
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Peter,
Allow me to apologize for my clumsy attempt at humor – “copying to infinity and beyond” – that was childlike. I’ve been advised not to quit my day job.
Before I read your response I was simple, now I’m stupid. I’m falling backwards in spite of my efforts to move forward.
intangibles are features of the tangibles, they do not exist without them. It’s a different perspective on the same contents. Either you can own tangibles, or intangibles, or some sort of combination thereof. But if there are full ownership rights in one of the categories, there can be no rights whatsoever in the other category. I’ll borrow from Stephan: if you want to own tangibles and intangibles, you’re double-counting.
I shall ponder this. Some days the old neurons just don’t seem to have it, and today appears to be (yet another) one of those days.
I actually do get the conditional exchange thing. In the example I used there was an agreement to exchange something real for something intangible. The rules for settling disputes were developed in the real, tangible world and they work well, or mostly so, for real goods. The problem arises when there is a breech in the agreed upon transfer of intangible or ephemeral goods. McDonald’s solves this by collecting the money before handing you the burger. But life is a bit more complicated than buying burgers. Many real world cases involve the sale of partial rights, which are in fact intangible. I don’t think I need to get into why the sale of partial rights can be beneficial, on this site. Some are one of, like my example, and others may happen to have the characteristic that they can be duplicated easily, say with the rental of a dvd. Absent a breech, the free trade transaction is no different than any other. Benefits flow both ways and both parties are better off than they were before the trade was made. In a breech, where unauthorized copies are made, and either sold, or simply distributed without money changing hands, benefits still flow as before, perhaps more so. But the distribution of those benefits is now very different. In the first case, where the copies were sold against the expressed agreement in the contract there are now two beneficiaries, not just one. Because money has changed hands it may be possible to identify the person who breeched the contract and achieve restoration. In the later, anonymous free distribution, unquantifiable benefit has flowed out to the recipients of the copies, but no benefit has flowed to the seller whose terms were violated. The real costs of identifying the thief (thieves) may be greater than the expected recovery.
If we set aside all of the existing laws pertaining to the protection of intellectual property (transactions involving intangibles), for the sake of clearing the field of distractions, and attempt to create anew a mechanism to deal with this relatively new phenomenon, the easily breached contract and rapid, unrepairable damage that may result, that we must deal with if we wish to remain a civil society, we find we have very few choices available to us. Increasing the severity of the punishment fails because incarceration fails [conjecture, and no time to go into that here] and increasing the monetary penalty fails because, as we know, you can’t get blood from a turnip. Increasing surveillance of the user to insure compliance with the limited use contract, give me a break, please. Even if it could be done, the extra expense incurred would add the the sale price. Or the price could be raised to compensate for the (accepted and expected) loss. This fails. It incentivizes additional breaches and fails to establish the natural flow of benefits that must occur in free trade transactions to maximize their occurrence.
If you hold a firm mental construction of property and it’s ownership you may want to close your eyes before reading the next sentence. Maybe the concept of property and ownership needs a closer look.
I warned you not to look.
Cheers,
Don-
Don,
a limited use contract can mean various things, but it still does not cover new scope.
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Peter,
Have a great vacation. I shall ponder longer, until I get it.
Cordially,
Don -
Thanks Don,
maybe a reference to fiat money and FRB will help. It took me a long time to get it, but finally I realised that printing money cannot create additional wealth, only redistribute existing wealth. If there is more resources spent on production in some factory, the resources are unavailable for other uses, which might have taken place in the absence of the extra money. Same with IP: resources are redistributed, control over more goods by the author means less control over the same goods by everyone else. Of course, that does not mean IP is bad, it just means it conflicts with physical property rights.
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Why did you remove Kerem’s posts? Sure, he’s writing nonsense, and maybe you can also claim he’s insulting people, but cutting him off will result in him remaining in his error. I think the Mises Institute should encourage verbal confrontation. I hold to the seemingly archaic notion that the purpose of discussion is to find the truth rather than to force your opinion on others. I don’t mind if others get irritated or otherwise emotional. That tells something about them, not about their opponents.
I think in fact that the opposite should be done. As the most vocal proponent of “IP” on this site, Kerem should be invited into a virtual panel discussion. That is a more controlled environment than comments on a blog, and it would be much more difficult for him to evade. So, either it will be clearly demonstrated he’s not interested in truth, or he will be forced to admit his errors. Or, of course, since I try to avoid normative claims, the deficiencies of his opponents will be shown. But I don’t think the latter is likely.
September 29, 2010 at 9:14 am
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Peter, his rudeness went too far, and it’s not as if he hasn’t been given a hearing. He has posted the same thing thousands of times. Eventually this approach devalues the blog for everyone.
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Posted the same thing thousands of times? I thought it was an accepted part of anti-IP, anti-property-right-of-exclusive-use propaganda served on this blog every other day. Such approach really discredits and devalues this blog, indeed.
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Another confused charade of IP-communists: people don’t own labor — we simply control services that can be derived from our property — hence, we can lawfully charge others from using the services of our body and resist enslavement.
The same goes for inventions; “creation” is not source of ownership on its own. Those who produce such physical goods with their own resources have a legal ownership based on Lockean principle and they can sell limited use of their property, while at the same prevent unwanted use by others (such as use for unauthorized replications, etc).
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You don’t need to own labor to charge people for it. You only need to own your body, since this gives you the ability to choose what you will or will not do with your body–that is, what action you will perform. See http://blog.mises.org/14045/locke-on-ip-mises-rothbard-and-rand-on-creation-production-and-rearranging/comment-page-1/#comment-727788
It’s funny that you repeat the idea that it’s a Lockean idea that you own ideas because you put labor into making them, as a response to the very post that shows this is exactly not the case. Unbelievable.
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Like I said… Another confused charade of IP-communists: people don’t own labor (read carefully what I wrote – I don’t claim we own labor) — we simply control services that can be derived from our property, our bodies in this case.
We also control services that can be derived from our other property, such as inventions (physical goods), by allowing personal, non–commercial use for one price — and charging much higher amounts for publishing or manufacturing rights…
Entire anti-IP case is based on false premises. IP laws never claimed that they protect ideas, concepts or anything intangible – they actually explicitly denied such notion.
Best regards.
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we simply control services that can be derived from our property, our bodies in this case.
You cannot control “service”. You can control your body and the physical matter outside of your body. The third type of action does not exist.
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If control means “power to direct or determine” — then your reply is nonsense, as usual.
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But let’s focus on real issue here: IP is all about allowed types of use of one’s physical property… It has nothing to do with metaphysics nonsense you love to waste hours on… IP laws (if you only read them) explain this quite clearly,
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If control means “power to direct or determine” — then your reply is nonsense, as usual.
Please explain to my how you can “direct or determine” anything without the use of a physical object. And explain to me why this results in expropriation.
IP is all about allowed types of use of one’s physical property…
Aha, so now you expose yourself. It is not about physical property, but about “use” of physical property. Then, you implicitly define “use” as “causality”. But you neglect to note that this construct interferes with other peoples’ property, and expropriates it. You propose two contradictory notions, two types of homesteading, two types of trespassing, two types of using, and two types of property.
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Peter Surda,
By using and owning your body, you basically direct and determine (control) what services will be performed and who can enjoy those services. If you completed at least the state-run high school, you know that force in physics has a direction – so your metaphysical verbal diarrhea is nonsensical – as always.
IP does not deprive any innocent third party of his/her property. That is just your hallucination in a crazy world of house demolishions due to JK Rawland’s manuscript being replicated on the wall of innocent by-stander. It’s just your mind playing tricks on you.
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And wow! You discovered what I claimed all along and what all IP laws state: that IP does not claim any idea ownership, but deals only with allowed use of authors’ physical property.
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Sasha,
you have not addressed any of my objections. You just repeat what you said before. Don’t you consider it important to get rid of the self-contradictions?
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Peter Surda,
Don’t you think it is time to stop imagining my self-contradictions? Don’t you think it is time to stop raising false objections to laws of physics?
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Well if you prefer to stick your hand in the sand that’s fine with me.
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Correct. We have the right to control our bodies. This gives you the ability to perform or not to perform actions, as you choose. To say you ALSO “own” your actions (or labor, whatever) in addition to your body, is double-counting. See Copyright and Patent in Benjamin Tucker’s Periodical, Liberty, http://mises.org/daily/4575 — “Tucker refined Tak Kak’s second point. In distinguishing between an idea within your mind (private) and an idea that had been communicated (public), Tucker claimed that the ownership of a private idea did not result from originating it. The ownership resulted from the fact that the idea was protected by other rights. You owned an idea in your mind simply because it was impossible for anyone to access it without your consent unless they used force, such as torture. Thus, the “ownership” of private ideas was merely a byproduct of self-ownership.”
See also my comment here: http://blog.mises.org/11445/writers-can-prosper-without-intellectual-property/#comment-651998 , where I wrote:
Crosbie, you regularly make these strange and confused assertions: that you condemn the state IP monopoly grants, but that there can be “natural” property anyway in IP. I think you are just using idiosyncratic, crankish language, that impedes communication.
For example you write:
Even as a copyright and patent abolitionist, I’d still argue that patterns can be property. You just have to recognise that patterns are only universals in the abstract. When a pattern is actually realised, physically manifest, then each instance has no relationship to any other except that of similarity (and possibly provenance if constructed through copying). Identity can only occur in the abstract. Two instances may be indistinguishable, but they are not a single instance.
I’ve thought of a number. It’s my idea that I own. It has been realised in my mind.
You do not specify what you mean by “own” here. Of course if you are thinking of a number, then … you can do what you want with this idea or information. You can decide not to reveal this thought to others. But this is because you own your body. There is no “ownership” of a number, just because you can keep the thought of the number private, just because you can rely on it in acting. (See my post Intellectual Property and the Structure of Human Action.)
You go on to say: ” If I set it down on paper it becomes my physical property (material and intellectual property).”
No, there is no “it” that “becomes” your property. You already own the paper. You still own it, even if it now has a different appearance due to your having marked it wiht a pencil you own.
“I control access to both the paper and the number written on it”
Your ownership of the paper and your body allows you to keep its contents private, sure. Rothbard explained something similar regarding free speech rights: in Ethics of Liberty, ch. 15, “‘Human Rights’ as Property Rights”:
Take, for example, the “human right†of free speech. Freedom of speech is supposed to mean the right of everyone to say whatever he likes. But the neglected question is: Where? Where does a man have this right? He certainly does not have it on property on which he is trespassing. In short, he has this right only either on his own property or on the property of someone who has agreed, as a gift or in a rental contract, to allow him on the premises. In fact, then, there is no such thing as a separate “right to free speechâ€; there is only a man’s property right: the right to do as he wills with his own or to make voluntary agreements with other property owners.
There IS NO SEPARATE (i.e, indepenent) right to free speech; it’s just a consequence or implication of property rights. Likewise, your ability to keep information secret because you have property rights in your paper and body is not itself a separate, independent right. It’s just a consequence of your rights. To call it a right, to say you own numbers and information, is crankish. You are simply trying to express something obvious–that if you keep information secret, no one knows it; that if you have information, you may use it–but make it sound like more than it is by including it confusingingly in the concept of property and ownership. Thus, you crankishly insist that there is still “natural intellectual property” even though you oppose state grants of IP. All you mean is that if the state does not grant IP monopolies, but your rights in your body and other property are respected, you are free to act on information you have, and to keep it secret. Yes, this is quite obvious; no need to come up with an “ownership” category to explain this obvious fact. Likewise if I own my body I’m able to take a bath, scratch an itch; these are just a few of billions of things I can do by exercising my rights.
September 29, 2010 at 4:33 pm
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Whoa whoa whoa, time out, Stephan_Kinsella — are you saying you don’t believe in the right to own a pattern of EM waves, which includes the right to stop others from instantiating that pattern with their own property??? What changed, man?
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No, I didn’t miss this discussion.
I think there’s a lot of msiconception and strawmanning regarding “creation theories” of ownership (CTOs), especially when they try to reduce them to the labor theory of value.
CTOs are a special case of a more general class of reasoning that most people find intuitive; and even if they don’t find it intuitive, they act identically to if they were using such reasoning.
The reasoning I’m referring to is recognition of “Subjunctive Acausal Means-End Links” (SAMELs), which I describe in Morality as Parfitian-filtered Decision Theory? Don’t let the jargon scare you — a SAMEL just means the recognition that if you *didn’t* act a certain way, other people *wouldn’t* have (already!) acted in a way you find favorable, and that you therefore should act that way, even though the past cannot be changed.
For example, punishing criminals. People typically favor punishment even when it can’t reverse the past crime, with the same fervor as if the punishment *could* reverse the past crime. This is a recognition that, though we may not materially gain from punishing someone for a crime, we should do it anyway, because even if we didn’t regard this as the right thing to do, the criminal would have even less reason to refrain from crime — and so it remains irrelevant that the crime has already happened and threat of punishment obviously failed to suffice. That’s a SAMEL.
Ditto for contracts: We regard it as right to honor our end of a contract even when the other party has already irrevocably fulfilled their end, and we’re physically capable of just stiffing them. This remains true even if we would materially benefit *after* taking into account the refusal of others to deal with us on that basis! That’s a SAMEL.
How does it apply to IP? Simple: most people recognize that, (in characteristic cases), if not for the creator, we would not even be able to form “our own property” into the new patterns they discovered. Thus, even if we gave nearly exclusive rights to instantiate that pattern, we would *still* be better off. And if the creation was specifically created *because* of expectation that such rights would be honored, then we recognize that, if we didn’t have a norm of honoring it, they wouldn’t have produced it. For the exact same reasoning as the above cases, we have a SAMEL here: this recognition suggests we should honor it, even though we could just stiff them, just like we can stiff those who help up their end of a contract, or let a criminal go unpunished to save on the costs of punishment.
The intuitive wrongness people find in all these cases, of failing to meet our side, is deeply interrelated. It is remarkably callous to reason that you should stiff someone you have a deal with because, “gosh, it’s such a pain to fulfill your end, and they already gave you their stuff … “. It’s equally callous to reason that, “hey, we already have their creation, so screw ‘em!”
(On this matter, see also my Intellectual Property’s Ungrateful Hitchhikers.)
(I am almost 100% certain that Stephan_Kinsella won’t bother to read any of the above, but will dismiss it as crankish rambling. I welcome comments nevertheless.)
Oh, and: standard comment about how Stephan_Kinsella just proved that radio wave pattern transmission rights can’t be owned because all the relevant property had already been homesteaded before the use of radio waves to communicate, etc.
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Silas/John Sharp/Person/Richard Harding,
None of this jibber jabber has a thing to do with showing that we can acquire property by an act of creation divorced from homesteading an unowned scarce resource. You continue to push this monomaniacal obsession of yours, but just like every other advocate of IP I have ever encountered you don’t have a coherent much less libertarian justification of it, or even a clear idea of exactly what is the “IP rights” you claim to endorse. In your case it seems to be psychological–you petulantly decided to turn on me since I didn’t think your original attempt to argue for some bizarre view of IP was scholarly or supported well enough. You apparently have retreated to a combination of engineering mentality brute-force advocate of your own pet theories cobbled together in your spare time, with disingenuous attempts to reverse the burden of proof and insinuate that if you can find problems with a critique of IP that means it must be justified.
“For example, punishing criminals. People typically favor punishment even when it can’t reverse the past crime, with the same fervor as if the punishment *could* reverse the past crime.”
PUnishment cannot at all reverse the crime; and in fact in a significant sense, there is no such thing as real restitution–the crime can never be undone. This is in fact the problem with crime. But crime gives rise to certain rights-to-respond on behalf of the victim. They desire to use these rights for various subjective reasons. No problem.
” This is a recognition that, though we may not materially gain from punishing someone for a crime, we should do it anyway, because even if we didn’t regard this as the right thing to do, the criminal would have even less reason to refrain from crime”
That’s one reason; there are also others, as I discuss in Punishment and Proportionality: The Estoppel Approach. What’s funny is you are illustrating my point that there are no good arguments for IP: now you are arguing that because people can be victimized by crime, and because they have no perfect options to respond and undo the crime, … that somehow means the state ought to grant monopoly privileges to allow people to use state courts to force people not to use their property as they see fit. I see! This is sophistry.
“Ditto for contracts: We regard it as right to honor our end of a contract even when the other party has already irrevocably fulfilled their end, and we’re physically capable of just stiffing them.”
Yet another confusion; as I explain in A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability, contracts are not about enforceable obligations at all.
“The intuitive wrongness people find in all these cases, of failing to meet our side, is deeply interrelated.”
i.e., there is IP b/c people “think” certain things. They have some intuitions. Okay…. wow. what a theory!
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Does anyone find this to be responsive to the specific arguments that I just made? If so, which problems with my reasoning did Stephan_Kinsella cite? Was I correct in my prediction?
October 1, 2010 at 1:23 pm
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The problem with IP is that it covers 3rd parties who weren’t part of any agreement at all. I could see your reasoning if you were arguing for a contractual agreement not to copy something, but that’s not IP.
You can argue if you believe in a “social contract” that you think everyone fundamentally agrees to that fulfilling this inherent obligation is necessary, but the entire reason for these debates is that people do not agree.
Insofar as this is the case, in a system where IP was not expected to be defended, I agree with you that people would act in some ways differently than they do now. Individuals who are now creating things due to the ability to recoup costs of investment via IP would not do exactly what they are doing now.
The reason I’m clarifying (“exactly” and “some ways”) is that I don’t agree with you at all that the final outcome is less production of ideas/books/movies/etc. I don’t disagree that we might see some kinds of things that are produced in the current system produced less (such as $200 million movies) but like most here I believe that this is more than made up for due to the things that cannot be made now (adaptations, extensions, etc.) that will be possible then.
The reason I believe the burden of proof is not on me, but on you is that you are the one who advocates a system of force in order to make me do what you want, or not do what you don’t want with my own property. I only want you to leave me to do what I want with my own things.
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Silas,
so, basically, you made up a lot of jibberish, put it together into a theory of morality, and claim that this fixes the logical fallacies in the theories of IP? It’s worse than I expected.
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You could try reading it first. Do you want me to translate it into German?
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Newton, is Switzerland your answer to my question? What does it do about patents? And is it a magnet for immigrants because of its’ economy or freedoms?
As for the rest of you- this seems to be feud resolution central! Why don’t you just agree to meet at the O.K. Corral at midday, and the survivor will be recognised as the winner? (And was ever a corral more misnamed? That was true irony!) -
By the way, here is a real-world example in a form of question:
If you purchase a service of only limited personal use of a book from author – and you decide to lend this use to me, do I have any legal ground to assume more rights and to start doing with this book whatever I want – including the mass production of unauthorized copies?
Anyone who even remotely understands property rights knows that this is a basic example of IP violation and that this is nothing but an example of trespass resulting in tort.
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Sasha,
I don’t understand why you are so confused about the trivialities. Looks like you are stuck in vagueness.
a service of only limited personal use of a book from author
This could mean two different things. It could be a lease, or a sale with conditional property exchange. We’ll label the parties A (author), B (the one author has a contract with), and C(third party the author does not have a contract with.
In the first case (lease), the physical book remains owned by A and he can demand it back from C if B gives it to C. In the second case, the book ownership is is either with B or C (depends on the contract), and while B might have breached the contract he had with A and therefore owe him according to the clause of contract, A cannot make any demands towards C.
Anyone who even remotely understands property rights knows that this is a basic example of IP violation and that this is nothing but an example of trespass resulting in tort.
Anyone with a basic understanding of the legal system will note that you don’t understand it.
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Peter,
Anyone with a basic understanding of a legal system will note that you are completely confused by it
ABC, ABC, ABC… Dude, a second, third, or fourth party cannot lawfully use author’s property in ways he did not authorize. That is it. If unauthorized replicas get produced by trespasser’s ink & paper, or even third party’s material, the property rights over these materials used in trespass cannot be claimed in ways that create or even aggravate injury to the owner (that would amount to a tort).
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Sasha,
again, you are interchangeably using two distinct defintions of “property”. Property can lie in the physical good, or the immaterial effects of the physical good. or a proportional mix of those. Sometimes, these definitions overlap and that seems to be the source of your confusion leading you to the incorrect conclusions that they are the same. I already provided ample examples demonstrating that they are in conflict. You say the latter one takes precedence, which is on its own fine, but you don’t realise this is only possible at the cost of eliminating the former.
I am already ignoring the finer problems in the non-existence of boundaries of immaterial goods, merely to get you to recognise your core error. You need to admit that your argument for IP is an argument against physical property. That seems to be an insurmountable obstacle for you.
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Surda,
Any argument against IP is argument against physical property (the right of exclusive uses belong to property owners). The fact that your case now rests on scenarios in which you seek to get benefits from other person’s trespass or theft speaks volumes! My theory is based on property rights and I don’t need to make-up any loopholes.
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Sasha,
once again: the concepts of physical integrity and of immaterial benefits derived from physical matter are conflicting. You use the word “use” in two conflicting meanings: one is the change of physical integrity and the other is being causally related to the physical property. Your theory is based on confusion and vagueness.
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Peter,
Not true. I’m talking about services that can be sold in a market – for material benefit of property owner. IP laws focus on such services (i.e. exclusive uses belonging to copyright holders). Your attempts to create third party that could benefit from theft through nonsensical loopholes only harmed your case.
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Anything can be sold on the market.
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Wrong! Your economics teacher should be fired. Only scarce goods and/or services derived from these goods can be sold in a market. Back to school!
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All interaction with non-scarce goods also involves scarce goods, non-scarce goods are a metaphor for scarce goods. Just like before we showed to you that it is impossible to act without changing physical matter, it is also impossible to use/trade a good without using/trading scarce goods. If you say you are using non-scarce goods, you are merely interpreting usage of scarce goods as usage of a fictional, non-scarce good. Again, you are double counting and using two contradictory definitions.
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Like I said: to claim that “anything can be sold on the market” demonstrates Mr. Surda’s ignorance in economics. It s his attempt to deny the fact that movie shows are sold as a real market service and that these contracts are enforceable (an exclusive right to this service simply exists).
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Sasha,
I wonder why I attempt to argue with you, since you show no signs of comprehending your opponents’ arguments. You just repeat mantras like a chanting monk. I don’t have anything against monks, but it’s not an argument.
Show me an example of a non-scarce good that exists, can be produced or consumed without the existence, usage or production of a scarce good. Show me an example of an action that is possible without the alteration of physical objects.
September 30, 2010 at 4:47 am
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It seems to me that there is a confusion here between “creation” as the creation of a new pattern and creation as the transformation of material into something which matches that pattern. The latter doesn’t require creativity, only the ability to follow the pattern. As physical labor becomes automated, you wouldn’t expect anyone to argue that the robots doing the transforming-of-matter-according-to-a-pattern are the “real” owners. If it makes no sense to argue that robots making something according to someone’s pattern own the produced good, it makes no sense to argue that a human worker should own it. In the former case, one pays to buy the robot to do the work; in the latter case, one pays the worker to do the work. None of this, though, addresses the issue of the one who actually creates the pattern that will transform matter, etc. I personally don’t understand why it matters whether or not the person created (or could create) the new pattern ex nihilio. They can’t. Period. So that is a non-issue — a straw man, if you will. Creativity consists of creating new patterns from older patterns of various sources. This, any idiot should know. The question is, as always, shouldn’t someone who did the work in question get paid? If not, why not? If so, by whom?
September 30, 2010 at 5:53 am
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“The question is, as always, shouldn’t someone who did the work in question get paid? If not, why not? If so, by whom?”
This obviously isn’t the issue at the heart of the numerous debates on this topic that have and are taking place here. You should try to better familiarize yourself with them.
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I have been following the arguments. For me, it does boil down to this question — and it still hasn’t been satisfactorily answered for me. IP is one answer. Anti-IP seems to argue: tough luck; if you get paid, fine, but if you don’t, too bad for you. There are two sources of wealth creation: 1) moving products from a place of less value to one of more value, and 2) new ideas. The anti-IPers seem to suggest that ideas are a common good, held by everyone. Strangely collectivist idea for Misesians. This doesn’t mean it’s not true. It doesn’t mean I’m not wrong. It doesn’t mean that the anti-IP stance is the best one for the proliferation of ideas and the creation of wealth for society as a whole. But what are my incentives to work if I’m not going to be paid? What are my incentives to let any of my ideas out if I’m not going to be paid? We would object to a physical laborer being enslaved to society; but isn’t anti-IP arguing that the idea-producers should be enslaved to society? If you rearrange material, you can get paid, but if you rearrange ideas, too bad for you?
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Troy,
There are two sources of wealth creation: 1) moving products from a place of less value to one of more value, and 2) new ideas.
I think this construct is misleading. These are not two separate sources. They are merely two different representations of the same content. It is impossible to act without altering physical matter, even if that act is only in changing the electric charge of your brain cells. If you already own your body (or even just the brain), you already own the ideas that are circulating in it. To borrow Stephan’s words, you are double-counting.
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I went away for a few days and it seems like I missed all the fun.
Ah poor Sasha Radeta. Last IP debate he wrote this:
you described an example in which a purchaser of limited use of a book creates a replica that lawfully belongs to the original owner (because he retained such rights) — but then you claim that a third party has the right to use this (stolen) property, although he never obtained the legal posession of this item
I pointed out that the replica does NOT belong to the original owner. To illustrate my point I directed him to several examples where the replica was produced with materials that belong to a third party. He, of course, proceded to lecture me on how stupid I am without really offering any sort of counter to what I was saying.
And now in this debate Sasha writes:
I never claimed that trespassee has any right whatsoever over the material used in the trespass. Neither does trespasser have any property rights in a DIRECT OUTPUT of trespass.
It’s clear he has changed his argument.
Now he is saying that the illegal replicas should be destroyed.
But wait one second. Sasha has also written:
This deals with the issue of trespass and not breach of contract.
I never claimed “ownership rights” over immaterial concepts exist
IP deals with allowed uses of physical goods that belong to authors
I thought this was purely about property rights. Yet apparently, if someone breaks into my home and writes the Harry Potter book on my walls, my walls MUST be repainted.
Why do they need to be repainted? They’re MY walls. What if I don’t want them repainted?
Similarly, if someone makes a replica of Harry Potter on MY paper using MY printer, what right does anyone have to come and destroy MY property?
If this has nothing to do with contracts or ownership of immaterial goods, then how can anyone come to the conclusion that a third party’s property should be destroyed?So, not only has Sasha been blatantly dishonest with his arguments (I expect some sort of apology from him if he wishes to demonstrate any sort of intellectual integrity – it’s clear to everyone that he DID change his argument), but his new position is still inconsistent with his overall claims.
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Jay,
You totally your senses and please don’t expect any appology. It’s just that you got so emotional that you can’t read what’s why it was written.
JK Rawling has no claim on your house – and she can’t tell you that your walls MUST be painted. She can only have a claim on USE of her work – and you can’t lawfully use this trespass to make money out of it. If you seek compensation, you can only get it for painting your walls. If we talk about illegal replicas that cannot be “repainted,” they do get destroyed – and if material used for trespass was stolen from an innocent third party, this party will be compensated for this material.
Now these examples with JK Rawling were quite stupid and have nothing to do with real world, but I didn’t expect better from you.
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Sasha Radeta,
a) You DID change your argument. At first you were claiming that the replicas belong to the original author. The quote in my above post proves this.
b) Given that you have changed your argument to “they must be destroyed”, you have failed to justify WHY these replicas need to be “destroyed”.
c) What exactly is being destroyed? I thought you said this was entirely about property rights? The author has no property rights in my walls. Since you claim that you do not advocate ownership of immaterial goods, then why oh bloody why should the author have any recourse at all to demand the re-painting of my walls?
d) The “walls” example was brought up to get it through to you that the author has no claims on the property upon which the replica was made. If the author has no claims on my walls, then it stands to reason that the author has no claims on my paper or ink. You forced me to go to an extreme example to get you to understand what I was saying.
e) Not “emotional”, frustrated. It’s natural for one to get frustrated when, after explaining one’s argument in a hundred different ways, the other person still doesn’t understand what you are saying.
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Jay,
A) I did not change my position; you’re simply incapable to understand it. Anyway, I’m not the topic of this blog, so back-off.
B) Replicas need not to be destroyed if material used for trespass can be returned to prior condition without too much cost. And why it needs to be returned to previous condition or destroyed? Because it was result of a trespass that creates injury to the original owner (tort)
C) I already answered your silly notion that your property rights in material used for trespass may take precedence over the injury to property owner that suffered this crime.
Author may not demand that you repaint your walls, but if you use this trespass in any way to financially harm the author – you will be liable for tort.
D) Already answered: You have claims to your wall, just like I have a claim to my knife that someone might use to stab you. However, it doesn’t mean that I can claim this knife by pulling it out your chest even if this action kills you. Likewise, you can’t use your paper that was used for trespass – if it creates injury to the author (tort)
E) Try to go out more or something. You do seem totally frustrated, but getting embarrassed in these discussions will only make it worse.
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a purchaser of limited use of a book creates a replica that lawfully belongs to the original owner
I never claimed that trespassee has any right whatsoever over the material used in the trespass.
I did not change my position
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I think I’ll add a bit more.
She can only have a claim on USE of her work
When I read the walls of my house, I am not “using” her work. The walls are mine, not hers.
Unless you are claiming she owns something “intangible”. (Note: “actions” are also intangible)and you can’t lawfully use this trespass to make money out of it.
Why not? And furthermore, even if this was true, is giving away copies for free acceptable?
If we talk about illegal replicas that cannot be “repainted,” they do get destroyed
It is often very difficult to determine what the best course of action is after an illegal act has occurred. To flat out claim that all copies causally related to the crime should be destroyed is a remarkably arrogant position to take. You don’t care whose property they are, you demand they all be destroyed with the owners being compensated for the lost material.
Such a position makes ZERO sense if viewed purely from a property rights point of view.
If you took a contractual standpoint on IP, I might be sympathetic to this position and willing to explore it. But from the point of view of property rights, there is no justification for altering/destroying any third party’s property.-
Jay,
You are obviously ignorant of any property rights theory and you never put much thought to it. If a person steals by golden bullet and shoots you to your head and it gets stuck where any removal might kill you – that does not mean that I can exercise my property rights regardless of your injury and rights.
In your example, JK Rawling’s book was used to paint your house and this use was unauthorized by her (trespass). If you use anything to turn this trespass into injury to the author, you will be liable. This includes giving-out copies that normally have commercial value.
I just don’t understand such hatred toward these wonderful (limited use) services provided by creative people for the benefit of mankind. You guys are trying to come-up with the stupidest examples to deny exclusive uses to the authors, but these examples always include theft and your search for loopholes from which you could benefit from theft – don’t that tell you something about your position?
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Aren’t you a nasty piece of work Mr Radeta?
Let’s see if I can recap our discussions:
You come here, oozing arrogance, insulting everyone, claiming we don’t understand property rights.
You speak in extremely vague and slightly nonsensical language.
I patiently try to explain my position to you.
You repeat the same nonsense.
I come to the conclusion that either English is your second language, or you’re just a bit slow.
Feeling sorry for you I persist with my explanations trying to get the point through to you.
You repeat the same nonsense.
It becomes clear that either you do not understand or you are pretending to not understand.
I’m forced to go to extreme examples in order for you to understand.
Then you try to point to the fact that I have used an extreme example to somehow invalidate my position?I’m still not sure whether you are dishonest or just stupid. (actually I already know you’re dishonest, I guess the real question is if you’re dishonest AND stupid)
If a person steals by golden bullet and shoots you to your head and it gets stuck where any removal might kill you – that does not mean that I can exercise my property rights regardless of your injury and rights.
Only because removing the bullet involves using my body without my consent. By “using”, I mean altering the physical integrity of MY body.
In your example, JK Rawling’s book was used to paint your house and this use was unauthorized by her (trespass).
He may have written it all from memory. Or a third party could have made the copy using a replica (it’s irrelevant that you consider it illegal, you admitted it’s not the author’s property). If so, how was JK Rawling’s book “used” to paint my house?
The integrity and momentum of the physical book weren’t altered in the process. That’s what “use” means right? To alter the physical integrity or momentum. You’re not applying the word “use” in a metaphorical way are you?If you use anything to turn this trespass into injury to the author, you will be liable.
Oh authors have the “right to profit” now do they?
And how oh how are you planning on working out how many receivers of the free copies were actually going to buy one? You can’t. There is no way to tell if her profits have been decreased or not. In fact they may have even increased.“Injury” to the author? More metaphors. I shouldn’t expect any less from you.
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Jay,
“injury” is not a metaphor – it’s a legal term. Even high-school kids know that. But I would not expect you to know that.
If removing bullet from your head was not clear enough example – go back to knife-stabbing example. Even if you own a knife someone’s stabbed with, you can’t you pull it out of a victim’s chest if it means worse injury. The same goes with your nonsensical examples with innocent third party’s property used in trespass: you can’t claim such property if it is in condition to aggravate trespass and create injury to the victim.
By the way, it is idiotic to assume that I advocated “the right to profit” for the authors. I only defended Mises’s position that ”
Carried through consistently, the right of property would entitle the proprietor to claim all the advantages which the good’s employment may generate.” Unlike you, I don’t have to make up idiotic scenarios aiming at justifying profit from theft (all your examples aim at that).
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MY CAR!
Now you are thinking about my car. I didn’t authorise that. You are committing trespass. I am entitled to claim all the advantages which my car’s employment may generate. “Thinking about” my car is a “use” of my car, is it not?
Furthermore, if you don’t pay me the $1000 market price for the right to think about my car, I will have to arrange the surgical removal all your memories of thinking about my car from your brain.
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Don’t be mad for exposing your ignorance about legal terms… I mean, person who thought that “injury” is a metaphor for harms is debating about legal theory!?! O tempora, o mores!
By the way, your car example is nonsense, due to the fact it does not involve any tort or harm that I caused to you by using your car (I used it when I was watching it, by the way). You are obviously incapable to understand that IP violations always require some injury to a property and not some bona fide use by a bystander.
PS
I don’t support harsh applications of IP, but it is fun to prove anti-IP position completely baseless -
Sasha,
I made it abundantly clear why I considered your use of the word “injury” in that context to be a metaphor. Let’s see, what did I write? … something along the lines of:
“And how oh how are you planning on working out how many receivers of the free copies were actually going to buy one? You can’t. There is no way to tell if her profits have been decreased or not. In fact they may have even increased.”
Maybe your arguments would be more effective if they actually addressed what I wrote?
By the way, your car example is nonsense, due to the fact it does not involve any tort or harm that I caused to you by using your car
I’ve been robbed of all the profits I would have received from you and all those other people who should have paid for the service of thinking about my car. This is economic injury to me, plain and simple.
Are you aware that “injury” is a legal term that even high school kids know? Maybe I’m expecting too much from you in this regard.You are obviously incapable to understand that IP violations always require some injury to a property and not some bona fide use by a bystander.
That’s funny, I could have sworn that you said:
Only a complete idiot thinks that “services” that a good provides (such as rent or access to view something) must involve physical change or physical alteration.
So IP violations require some “injury to a property” but that property does not undergo any “physical change or physical alteration”?
I eagerly anticipate reading your explanation of how it’s possible to “injure” property without actually “altering” it.
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Jay,
I actually support most of what you wrote
Finally you may be onto something. It is important you know at least one legal term and I hope you understand that all market services are intangible. The sales of services always implies exclusivity of use by property owner (otherwisre, no market exchange would be necessary).BR,
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Are you drunk?
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Jay spent much time on analysing property rights, and so did I. The comments on the site provide ample documentation. Jay’s request to you to define use is the proof of this. However, it appears that IP proponents only throw back metaphors and try to slime out of the vagueness and the contradictions.
Maybe I’ll try it from a different angle. As I already explained, the concepts of a right to the integrity of physical matter, and to the immaterial effects it has on other physical matter are different ways of evaluating the same contents. Now, I will point out that most of such things (immaterial effects physical property has on other physical property) are all around us. Not only that, but also the “borders” of the benefits people can derive from them are on the physical property boundaries, rather than on causality. If you want to benefit from causality, you need to cover it with a contract, and then you can use this contract to restrict the causality somewhat and transfer the benefits to you, but only from people who agreed to the contract. Yet, for some magical reason, for a tiny subset of causality which some people label IP, these boundaries are unacceptable, and they apparently extend even without the presence of contracts.
To demonstrate this omnipresent causality, let’s say that someone breaks into your house and finds you with a mistress, without either of you noticing. He’s a really lousy bastard and owes me money. I see him the next day and start being rough on him to get him to return my money. He says that if I stop beating him, he’ll give me information. He tells me about your infidelity. I stop beating him and tell your wife, other family members and your friends, who subsequently shun/abandon/disown you. According to the IP logic, since the dissemination of the knowledge was a result of a trespass, your wife needs to return to you and your friends must like you again, since you suffered this “injury” as a result of trespass. And if they don’t want that, they will be liable for tort.
This is just a slightly modified example that does not use what is commonly called IP to demonstrate the thin line between IP and other types of causality. Hopefully, it will be able to better demonstrate the contradictions that pro-IP arguments are based on.
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Peter,
Your example has nothing to do with IP – you are probably tired or something. I never implied anything close to what you just constructed. In all my examples some party assumed the right to benefit from victim’s property by deriving services of that property that normally cost some money. Their liability is clear.
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I really like your example Peter.
Unfortunately it seems as though it’s a bit over Sasha’s head.
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Your example has nothing to do with IP
Aha, so I made some progress now. Why doesn’t it have anything to do with IP? The knowledge of your infidelity was the result of a trespass and a benefit was derived from your physical property. You yourself showed examples where you claim that the use or dissemination of information is trespass. Why isn’t it the case now?
I never implied anything close to what you just constructed.
On the contrary, in the paragraph above I demonstrated all the core issues present in both my and your example.
In all my examples some party assumed the right to benefit from victim’s property by deriving services of that property that normally cost some money.
This is wrong on so many layers that it is doubtful you gave it any thought whatsoever. First of all, you cannot define property by the possibility of making money off it. Making money off something is not a feature of a good, it is a feature of human interaction. There are people who can sell anything. Furthermore, there is no reason to assume that in a case like this the service would not be tradeable. A private eye or a paparazzi could have made a picture or a sound recording (for money). The wife might be very much interested in knowing if her husband is cheating on her and prepared to pay money for it. Last but not least, you forget that even in the specific example I brought up, payment was involved: I “paid” the thief for the information. I could have asked the wife for money too but for some reason didn’t.
So, you have failed to explain why my example is different than IP. All the core elements are present:
– trespass of physical property at the beginning of the chain of events
– people not involved in the trespass of the physical property benefiting from the trespass
– trade involved
– information transfer involved
– trespasee is suffering significant harm as a result of the chain of eventsWe’ll see how you react now.
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Peter,
If you wanted to make an IP analogy, it would involve a paparazzi who breaks into your house, makes a video of your affair — and then thinks he has every right to publish this recording online, making tons of money, without paying you a dime.
Now that’s a real analogy to IP violation.
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Sasha,
the one who painted over the wall did not make a recording that he published. He wrote it from memory. It’s just like if the paparazzi did not make the picture, just wrote about it in a newspaper. Sure, you might not believe him without the picture, but how does that affect property rights? Also, you did not explain why it does not apply to the wife and friends in the case. And what if the paparazzi did not make a picture with a camera but drew it with a pencil?
You still have not defined what IP is, yet maintain to know whether an example is a violation or not, and continue to blame the deficiencies of your arguments on your opponents.
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Peter,
I defined IP many times before and I even gave you specific references in IP legislation and defines it and outlines its scope. You’re in denial
Your examples have nothing to do with IP violations. Take a look at mine:
– In my example paparazzi takes pictures of you, while making a trespass, and then uses this trespass to make money without paying you a dime.
– In real world, a pirate is ripping a CD, hence conducting an activity never authorized by CD’s owner (doing trespass), making money without paying a dime to the owner.You’re on the thief’s side, making up all kinds of excuses for theft, while I’m with the property owner. That’s why we’ll never agree on this.
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Ok Sasha,
if you say so, I’ll try a different approach. You “defined” property, so now if you would be so kind and defined positive externality.
Your examples have nothing to do with IP violations.
At the same time however, they all match your “definition” of IP as well as all the additional requirements that you pulled out when pressed hard. So, you continue to contradict yourself.
In my example paparazzi takes pictures of you, while making a trespass, and then uses this trespass to make money without paying you a dime.
I asked you additional questions, which you failed to answer. If he drew a picture or wrote an article, that would still match all your conditions. Also, what about the example with car repair, what about the example with wife and friends leaving you? What if the newspaper did not like the picture and fired the paparazzi, then you can’t claim he benefited, would it still be “IP”?
In real world, a pirate is ripping a CD, hence conducting an activity never authorized by CD’s owner (doing trespass), making money without paying a dime to the owner.
I already explained innumerate times that this is a contract violation, which has nothing to do with IP. Unless of course you are calling pirated copies of your CDs also “your CDs”, however this is a position which failed to provide any explanation whatsoever. Furthermore, if he did not make any money, would that make it legal?
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Sasha,
last but not least,
You’re on the thief’s side, making up all kinds of excuses for theft, while I’m with the property owner.
Two can play this game too, although it’s kind of silly. No Sasha, you’re on the thief’s side, making excuses for theft, while I’m with the property owner. Every time you are pressed hard, you make up another lie to cover your fraud, which is then subsequently disproved, but you just laugh it off.
That’s why we’ll never agree on this.
We can never agree because there is nothing to agree upon. You are presenting self-contradictory arguments.
October 1, 2010 at 3:52 pm
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Extraordinary exchanges on this blog.
Kinsella is right and so are his critics.
If you treat everything as tangible (material) or as if it were tangible, then of course, intellectual property can be owned.
But if you concede that some things are intangible, then it can’t.
The issue is not about who’s right or wrong about private property but about your theory of economic value creation.
If you are a materialist (ie you think everything is tangible or should be treated as if it is), then intellectual property can be owned.
If you are not (ie some things aren’t tangible, like useful and value-creating thoughts and ideas), then it can’t.
I think in services, value is created through human interaction not through linear human action: ie production and exchange of things for other things.
There’s a fuller exposition of the concepts here: https://sites.google.com/site/theendofthemarket/ -
Kinsella is right and so are his critics.
If you believe everything is tangible or can be treated as if it were tangible (ideas, arguments etc), then intellectual property logically can be owned.
But if you believe some things like ideas and thoughts can’t be owned but only shared, because they are immaterial, then it can’t be.
It’s all about your concept of how value is created.
In services, I believe it’s through iterative human interaction, rather than the linear human action like production and exchange. There’s a fuller account on the website above. -
The debate is about the tangible and the intangible (or the material or the immaterial).
Value in tangibles is created in a linear way starting with raw materials with value being added until a final good is consumed or used up.
Value in intangibles, in contrast, is created through human interaction (hotels, doctors, teachers etc).
How much value would a teacher create have if he/she didn’t have a student?
None.
If that is the case, then how much should the teacher be paid? That depends upon the relationship between him and her and the student, not any apparently objective characteristics of the service provided.
If that is true, then how can a teacher objectively quantify the life-time value of that relationship?
He/she can’t. So how come service corporations can record the projected value of their relationships with their customers on their balance sheets?
It shouldn’t be allow.
But the law lets it happen. -
IP is about exclusive rights of use of tangible property that authors (property owners) retain — there is nothing intangible that is “owned”
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…
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To put into service or apply for a purpose.
Which more specifically means to alter integrity or momentum.
“Ownership means full control of the services that can be derived from a good.”
Yes and Mises meant it in the literal physical sense. “Services” means any manner in which the good is physically altered to achieve a purpose.
“Carried through consistently, the right of property would entitle the proprietor to claim all the advantages which the good’s employment may generate.”
Look closely at the word “employment”. Once again this refers to a physical change. The proprietor is entitled to any advantages that can be derived from the alteration of the integrity or momentum of a good.
You are applying the metaphorical use of words to Mises’ quotes to arrive at your conclusions.
Reading or reproducing – these are all services or uses of a book.
This is a metaphorical application of the word “use”. If “reading” or “reproducing” do not require a physical change in the book, then they are not “uses” of the book.
The word “use” can have several different meanings and this is exactly where you are falling down. If you define “property” in a manner where it can have multiple meanings, you end up all sorts of contradictory and nonsensical conclusions.
For example, according to your logic, “thinking about” my car is a use of my car. I’m entitled to claim all the advantages which my car’s employment may generate. I have not transferred the right to “think about” my car to anyone else. Anyone who thinks about my car is committing trespass. I’ve decided the price for this particular “use” of my car is $1000. So what we need to do now is go around finding everyone who has ever thought about my car and confiscate $1000 from them.If you do not place measurable boundaries on what constitutes “use”, then just about everything we ever do is a violation of somebody else’s property rights. And the limits on what is and is not measurable is quite clear: We can measure changes in the integrity and momentum of physical objects. Nothing more. “Reading”, “reproducing” and “thinking” are not changes in the integrity or momentum of an object. We cannot measure them. They are therefore not “uses”.
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Sigh. Because this thread was messed with, my reply has appeared in the wrong spot.
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Jay,
You forget that people in general don’t care what is mine or your definition of “service” (hence definition of property “use”). As far as economics are concerned — if people are willing to pay for some kind of employment of physical property — it constitutes a service. This may include watching a human body or art, without physical alteration this property. As long as we sell these services based on private property rights — IP will be its logical application (for those owners who retain some commercial uses, while selling only rights for limited, personal use).
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Why did you reply to both my identical posts?
We have already debated my points in this post at the bottom (somewhere).
There was no reason to reply to this one too.
You are a strange individual.
October 3, 2010 at 6:58 pm
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Man, I don’t know what your aiming at any more.
It’s very confusing.
Your saying that your concept of ‘IP’ is about controlling ideas your create. That creation of new concepts means you ‘homestead’ those ideas and that they are your property. And that you only want laws to protect this property.
Yet there is no law in existence that actually does that. There never was and there never will be. It’s a practical impossibility.
The way IP Laws work is that the government gives you the right to control the actions and good produced by other people. That’s all they do. With patents they do not even need to know your idea or anything you create. They can create a idea completely and 100% on their own, but IP Law still gives you the right to sue them for their own use of their own private property.
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It’s all about control of use of author’s own property and nothing else. He restricts other people’s actions or property — only when it comes to restricting unwanted use of his property.
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It’s all about control of use of author’s own property and nothing else. He restricts other people’s actions or property — only when it comes to restricting unwanted use of his property.
Again, an issue of vagueness resulting in contradictions. The right in the physical integrity/momentum of property contradicts the right to immaterial effects the physical property has on other physical properties. It’s double counting. You use the word “use” in two distinct meanings, one referring to the change of integrity/momentum, and the other to the causal effects outside of change of integrity/momentum.
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Peter,
Don’t go insane by trying to prove what you wrote. After all, I never claimed that you have a “right to immaterial effects the physical property has on other physical properties.” Instead, I never conceded from basic property right: to be entitled to benefits derived from our property’s marketable services, whether it is a labor, or movie show, or an art show (none of which involve physical alteration of service-seller’s property).
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“Services” provided by an object require a physical change in the object itself. Otherwise these are services provided by something else (such as your own eyes and brain and the physical land upon which the property is located).
Let’s look at your example of an art show.
You place the work of art in a room you own. Entering the room requires that you alter the integrity of the room somehow (for example, opening the door and wear and tear on the floors). The art work’s integrity is not altered by viewing it. Therefore, viewing a work of art is not services provided by the art but instead is services provided by the room the art is located in.
Yes you derive value from viewing the art, but that doesn’t necessarily mean that “viewing” is a service that the art provides. “Line of sight” of the artwork is what you are paying for. And to achieve line of sight requires using something other that the artwork itself. In this case, you “use” the land in close proximitiy to where the artwork is located.-
Jay,
If a room within a gallery provides a service – and not art located within it, according your twisted logic, a room-owner may fool you by not displaying art while still charging you the entry fee. Don’t you see how silly your analogies get?
This is a petty attempt on your part. Why trying so hard?
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Dear Sasha,
Have you ever heard of fraud?
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Ha ha ha, a person who never heard of legal term “injury” now thinks I never heard about fraud.
If showing art were not a service that costs some money to receive – there would be no contract or fraud in the first place. After all, galery owner let you in the room (according to your insane argument, he fulfilled what you consider a “service”)
To quote Murray Rothbard: “THE RIGHT OF PROPERTY implies the right to make contracts about that property: to give it away or to exchange titles of ownership for the property of another person… the right to contract is strictly derivable from the right of private property.”
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Dear Sasha Radeta,
I answered this somewhere below.
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I never claimed that you have a “right to immaterial effects the physical property has on other physical properties.”
Of course you did.
… benefits derived from our property’s marketable services …
Now you’re doing it again.
… none of which involve physical alteration of service-seller’s property.
And yet again. If it does not involve physical alteration, it must be immaterial.
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Peter,
Don’t try to hard to change what I wrote by misinterpreting my words- it won’t work. Physical objects may be put to service without its physical contact with customers. That f-s your entire attempt to find at least one gap in a clear nexus between property rights and IP – so you should really give up now.
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Sasha Radeta wrote:
I never claimed that you have a “right to immaterial effects the physical property has on other physical properties.”
I never conceded from basic property right: to be entitled to benefits derived from our property’s marketable services … none of which involve physical alteration of service-seller’s property
Do you not see Sasha? These two quotes contradict one another.
If “viewing” the artwork is a service derived from the artwork, and this service does not in any way physically alter the artwork, then it must be the artwork’s intangible properties that are providing the service.
Hence, the claim that “viewing” is a service derived from an object is a claim that the intangible features of that object are property.
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Jay,
You are trying too hard buddy. Try looking at the truth’s face: objects may be put to use (they can be of service, for which people pay money) – without ever getting in physical contacts with customers. Art is a wonderful example, whether it is displayed in open spaces or in rooms.
From attempts to justify third party that directly benefits from theft – to your crazy definitions of “services” or “use,” I think you guys completely demolished anti-IP case. Somebody may think that you are IP proponents who just try to make S. Kinsella look funny.
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Dear Sasha,
Dodging and evading are not a form of debate.
Are you or are you not applying the word “use” in two distinctively different ways?
To “use” a shovel involves altering the shovel’s position and velocity.
To “use” an artwork involves altering your brain. (looking and processing)In the first case, the definition of “use” is: “Purposeful alteration of position or momentum”.
In the second case, the definition of “use” is: “Purposeful rearrangement of other tangible materials into a specific configuration”.You might be puzzled by that second definition, but that IS what your brain is doing is it not? You are processing the “pattern” of the artwork in your mind and storing a memory of that pattern.
And if we move from “viewing” to “duplicating”, it becomes even more blatantly clear that this is the definition of “use” that sums up your position.With that second definition, you are claiming that only the owner has the right to services that can be derived from the intangible aspects of an object. This is an implication that the intangible aspects of the object are property.
Man up and face the arguments being made.
attempts to justify third party that directly benefits from theft
Theft? What, exactly, has been removed from the owner’s possession?
I find it funny how IP proponents go back to this sort of ridiculous language when they have been thoroughly refuted. Trying to act morally outraged. It’s nothing more than pathetic desperation in an indefensible position.
And you accused me of being in an emotional fervor? It’s sad really. October 6, 2010 at 7:13 am
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Jay – just saw your comment to me on the other thread “But since you reject logic, you are probably incapable of understanding this.” Nice to see you are still claiming I “reject logic”, whatever that means. Shame you didn’t just own up to the fact that you misread what I wrote, never mind.
Sasha said above:
“objects may be put to use (they can be of service, for which people pay money) – without ever getting in physical contacts with customers. Art is a wonderful example, whether it is displayed in open spaces or in rooms.”
You go mental about the word “use”. Ok, let’s try and rephrase it. Rather similar to your obsession with me, saying repeatedly ” I have shown that there can never be a way to “own” both intangible and tangible entities.”
I don’t claim you can own intangible things.
However, some things can be sold in a market for a price – and some can’t. This is a reasonable distiction to make – do you agree that
– the right to the full use of a hammer that I “own” can be sold in a market
– the right to view a painting that I “own” can be sold in a market
– the right to look at my plane as I fly over in the sky cannot be sold in a marketThat is, even if we don’t, erm, use the word “use”, there is a distinction to be made here. How would you word the distinction?
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Kid,
the word “use” being vague is a secondary problem. The primary problem is that it is used in two contradictory meanings, making it impossible to determine whether use is present or not. The problem is that Sasha confirmed that he believes both of those contradictory meanings to be correct.
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” The primary problem is that it is used in two contradictory meanings”
What do you mean by “used”?
Just kidding. I don’t disagree – the word used should be banished and other ones, erm, used. That’s what I asked Jay – how he would phrase it instead.
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Jay “proved” his definition of use, by claiming that movie theater provides you a “service” of letting you in — and that enjoying a movie is not a market service that you receive in exchange for money. As I said, according to this twisted logic, you could never enforce a contract if theater refuses to play the movie.
I aleready defined “use” by utilizing (using
a basic English dictionary, no need to repeat it. Market services do not have to involve transfer of ownership of physical goods or act of physical alteration of any physical object by its user (these were all ramblings of anti-IP fanatics who already set their conclusions and now are constructing “logical” premises). -
As I said, according to this twisted logic, you could never enforce a contract if theater refuses to play the movie.
You are refering to a contract case, not a property rights case.
I’m pretty sure in previous debates with you that I’ve explained that you can control actions with contracts, but not with property rights.
Contracts are effectively conditional property transfer agreements.
ie I will pay you $X if you will show movie Y.This does not in any way imply that there are “viewing rights” to movie Y. All it means is that your transferral of $X to the other party is conditional on them performing the action of displaying the movie.
If they do not display the movie, then they have committed breach of contract. If this was done intentionally, then they have committed fraud. The property rights violation is the theft of your $X. There are no “viewing rights” present here at all. -
The Kid Salami wrote:
Shame you didn’t just own up to the fact that you misread what I wrote
“Misread”? Uh huh… shame you agreed with me and then said something completely contradictory to the very thing you agreed with, never mind.
However, some things can be sold in a market for a price – and some can’t. This is a reasonable distiction to make – do you agree that
– the right to the full use of a hammer that I “own” can be sold in a market
– the right to view a painting that I “own” can be sold in a market
– the right to look at my plane as I fly over in the sky cannot be sold in a marketThat is, even if we don’t, erm, use the word “use”, there is a distinction to be made here. How would you word the distinction?
Maybe my long post to Sasha somewhere near the bottom of all these comments will answer your questions. Please forgive me if this link doesn’t point you to the right place.
http://blog.mises.org/14045/locke-on-ip-mises-rothbard-and-rand-on-creation-production-and-rearranging/#comment-729568 -
Jay,
you are demonstrating a horrible and even shameful ignorance. To say that “a contract case” has nothing to do with “property rights case” is simply ridiculous. You are such a waste of time… Yet, other IP opponents, even the ones with PhD and JD are not much better.
There is no contract enforcement if there is no exchange of property rights (including rights of use) over some property. If movie show did not qualify as a “service” (based on property right over the film) – you would never be able to enforce the contract that requires movie theater to provide you this entertainment.
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Jay – erm, no it doesn’t. Your post explains the many, erm, uses of the word “use”. I asked you about the disctinction between services that can be sold in a market and those that can’t. Do you accept that this distinction exists?
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Kid,
you have not defined “things” and “services”, or, for that matter, “sale”, so it is impossible to determine the answer to your question. From a logical point of view, anything that is property can be exchanged for money. But that does not mean it is the only way to get others to pay you money. I’ll paraphrase Mises: people the way they act because they believe it will result in them being better of. As long as people consider themselves being better off without receiving new property, then there will be ways to earn money without transferring property titles. Whether you can call such a transaction “sale” depends on how you define “sale”. If you define it as exchange of property titles, then such a situation is not a sale. If you include also conditional property transfer, then such a situation is sale.
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You don’t have to define every word every time you communicate. There are a set of definitions which two people agree on – then you can use those to define others. Saying ” it depends what you mean by ‘is’ ” is hardly helpful – and you know this.
THis is exactly what I am trying to do on the other thread, establish which terms we agree on and where we can use those terms to define other things.
All I want Jay to say is that there are some “services” (these don’t require transfers of ownership of property eg. viewing a movie on my property) which can be sold in a market and some which are always priced at zero (eg. viewing the bat projection in the sky when I shine it there). It’s really quite simple, no need for enldess philosohical debates.
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All I want Jay to say is that there are some “services” (these don’t require transfers of ownership of property eg. viewing a movie on my property) which can be sold in a market and some which are always priced at zero (eg. viewing the bat projection in the sky when I shine it there).
I’m pretty sure the post I directed you to answered all your questions. Really I’m not sure what else to say. I’ll further elaborate on the topic of “services” and hopeful somewhere along the line you’ll get the answers you’re looking for.
“Services” provided by a person generally refers to actions that person performs which in some way benefits others, eg changing a business’ customers (more, less or simply different – think “marketing”), changing their physical possessions (repairing, updating, modifying), changing their intangible assets (knowledge, business practices, pleasant memories – think “educating” or “performing”).
Sasha Radeta here talks of “services” provided by property. I generally think about capital equipment in this regard, such as a forklift. The principles are exactly the same as “services” provided by a person.
You can contract with a person to perform certain actions with their body which in some way results in your benefit. Similarly, you can contract with a person to take possession of their property and “use” (alter it’s integrity or momentum) it some some manner which results in your benefit.Now actions such as “viewing” and “hearing” are actions YOU perform. They are not actions performed by other people or other people’s property.
So to say that “viewing” an artwork is a service provided by that artwork is completely nonsensical. The artwork is not being physically altered by the act of viewing it. The only thing being physically altered is the viewer (whose eyes are being bombarded by photons of light and whose brain is receiving and interpreting the information).
Similarly with music, “listening” is not a service provided by the music. The music is not being physically altered by the act of listening to it. Only the listener is being altered (his eardrums are being vibrated and the information is sent to his brain which then processes the information).
A physical performance is a service provided by the performer who needs to alter their bodily movements. But the “viewing” of the performance is not a service the performer provides.The only way in which “viewing” and “listening” can ever be considered “services” is if the “viewer” or “listener” is the one providing this service. This is actually quite common. For example, upcoming artists often pay experts to listen to or view their performances in order to gain feedback, writers pay people to proofread their works in progress, etc.
If that doesn’t help, maybe my most recent post to Sasha might shed more light on the subject for you:
http://blog.mises.org/14045/locke-on-ip-mises-rothbard-and-rand-on-creation-production-and-rearranging/#comment-729959
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Plus, enjoying market services (from receiving a massage to watching a movie) does not require a direct action and physical alteration of any object. Copyright owners retain the right to control those kinds of services when it comes to comes to commercial uses of their property.
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Plus, enjoying market services (from receiving a massage to watching a movie) does not require a direct action and physical alteration of any object.
Of course it does. Massage changes the shape of your muscles, even if only temporarily, and stimulates blood circulation. Watching a movie makes photons collide with your retina and sound waves vibrate your eardrum, both of which are then translated into electric impulses transferred by nerves into your brain.
Of course, provision of service does not need that the one who ordered the service is affected physically. You might order a service to be performed on others, even if you have no way of verifying if the service was provided (e.g. you trust the provider). But as long as you have some sort of feedback that allows you to conclude that the service was provided, you are also physically affected. You can only get feedback from your senses, and these are based on physics and chemistry.
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Mr. Surda,
You don’t even realize how ridiculous and broken anti-IP position now sounds. You basically conceded that a person can ENJOY the service completely passively, without having to physically alter anything. However, you and your Politburo of IP-Communist Party declared that only physical contact can count as service, while art and providing services for enjoyment of other human senses is now abolished from market contracts! BRAVO! That’s all I wanted to hear and that is exactly what it takes to eliminate IP!
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Sasha,
the one who is ridiculous is you. You don’t even read what Jay and I wrote and don’t think about what you write.
First of all, it is not me who claims that you can enjoy a service passively, without altering any matter. You claim that, I claim it is impossible.
Furthermore, I don’t claim that only physical contact counts as service, since it follows from the former paragraph that such a claim is nonsensical.
The problem is the internal contradiction in your claims, not a preference over a specific property claim. The problem is not normative, it is logical.
Let me summarise what I’ve been saying for days/weeks now, maybe some day you’ll comprehend it. All acts involve altering physical matter. If you claim that there is property in physical matter, that already covers all physical matter and thereby all possible actions. However, if you claim that you have a right on “benefits derived from physical property” that do not alter the physical property you own, it logically follows that it is a right to alter physical property belonging to someone else. These two claims contradict each other. You need to choose.
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Sorry Peter,
By denying the fact that person can passively enjoy the service, you are in fact denying the legitimacy of contracts in whick people exchange money for pleasure of visual/audion experience of art.
That is a logical prerequisite for everything you claim. This strange imaginary construct is your only chance to argue against IP.
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Sasha,
By denying the fact that person can passively enjoy the service …
You are using vague language again. In order to enjoy a service, it is not necessary that a physical object owned by the service provider is physically altered. I never claimed that, you just thought that I claimed that because your vague preconceptions confuse even you. However, it is necessary that some physical object is altered. It could belong to the service provider, service recipient, a third party, or on rare occasions, noone. But it belongs to someone, or at least can belong to someone. By using “service” to define of property, you are double counting.
You have not explained how you want to stimulate your senses without using physical objects.
you are in fact denying the legitimacy of contracts in whick people exchange money for pleasure of visual/audion experience of art.
This is a non-sequitur. I already referred you to Rothbard’s contract theory. A contract does not require bidirectional property exchange. If I promise to stand still for an hour in exchange for money, it does not mean that I own “hour” or “movement” or any other concept. It is a conditional title transfer.
That is a logical prerequisite for everything you claim. This strange imaginary construct is your only chance to argue against IP.
I explained everything from several points of view, yet it does not seem to penetrate into your brain. You continue to hide behind vagueness and make random implicit assumptions. You are not making effort to understand what I write and you have not explained your position. You have not explained how you can enjoy a service without any physical alteration occurring.
October 6, 2010 at 3:50 am
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Is Mises relevant on copyright? Stephan, I thought you and your readers might be interested in this piece by Mises’ student Bettina Bien Greaves, who has search for Mises’ thoughts on IP:
Best,
Tom
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Sasha,
If we were to assume that authors “cannot have exclusive usage rights” over those services (intangible by its very definition) that don’t involve human contact
It is tiresome how we have been repeating the same thing over, but you show no comprehension of our argument. The problem is a logical contradiction. The “usage rights over services” are logically incompatible with rights to alter physical property. You want to have both, although they are merely a different distribution of the same content.
Once again, it is impossible to act without changing physical property. Any act (or if you want to call it service) changes some physical property. The right of one person to “service” is in conflict with another person’s right to integrity of physical property. The only time it doesn’t is when the person who owns the service also owns the physical property, in which case the ownership of one of them is a redundant construct.
It’s like if you had a pile of books and wanted to divide them both by the author and the topic. It will result in two different distributions. Sure, there could be some overlaps, but in general you cannot divide them by both rules at the same time. If it resulted in two same distributions, it would mean one of the rule is redundant.
This is so trivial, yet it does not seem to penetrate into your brain. Another issue that is of secondary importance is that you have not explained what IP means, but since none of the IP proponents can, I’ll let it slide.
– this would imply that service fees for art shows or concerts were illegitimate forms of market exchange.
This is of course another non-sequitur. It merely means that it is a transaction that you do not comprehend or does not fit into your framework. In the rothbardian framework (just like Jay said earlier), this is called conditional transfer of title: the customer (A) pays the museum or the concert organiser (B) money on the condition that they are shown a picture or a performance. It does not necessitate that B transfer property of any kind to A. Just like in the example Rothbard uses, grandpa who promises to pay his grandchild money if he has good school results does not mean that the child needs to transfer property to grandpa.
September 29, 2010 at 2:17 am
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That is why, in none of these posts advocating IP socialism you can find the concepts of “the individual”, “homesteading”, “self ownership” and if they are mentioned at all they are mentioned in passing, to make the drivel seem like it is libertarian because these concepts are actually an integral part of libertarian private property theory.
This is possibly the most ironic thing I’ve ever read.
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Dear Kerem,
a case of intellectual dishonesty
I would not recommend you use this phrase, considering the history of your arguments. It has become quite redundant to point out that you are avoiding resolving contradictions in your claims, providing definitions and answering questions in general. But, I have become accustomed to that.
Without homesteading, making the unowned owned, there can be no further exchanges of property thus no property to speak of.
Well, this is a tautology. It does not explain what acts constitute homesteading, and what the scope of the homesteading is.
You IP socialist, because of your Marxist materialistic paradigm, only focus on the nature of the property in question. We individualist libertarians on the other hand focus on how that property comes to existence.
Well, by “we”, you obviously mean “you”, since there is noone else making the same claims as you. With regards to Marxism, just like he arbitrarily divided goods into means of production and means of consumption, you arbitrarily divide goods into those that are product of intellectual labour and those that are not. Marx was oblivious to the fact that the function of a good is related to the actions of people (rather than referring to the goods themselves), you are oblivious to the fact that immaterial goods are aspects of material goods, rather than having a separate existence. I have repeatedly pointed out this contradiction to you, yet you remain oblivious to it.
the concepts of “the individual”, “homesteading”, “self ownership” and if they are mentioned at all they are mentioned in passing
On the other hand, you use them without definition, and they serve you as a distractions to avoid addressing the contradictions in your theory.
According to this Marxist property theory, how the said property comes to being is not important at all.
I assume by “Marxist property theory” you are referring to Stephan’s post. On the contrary however, Stephan explains (quoting other sources), that human action is an interaction with the material world. Either the material being interacted with belongs to someone prior to that action, or it does not, in the latter case the interaction can mean homesteading. The third type of action, that which homesteads immaterial goods, does not exist; either it is not an action at all, or it is interacting with physical matter.
… everyone that produces intangibles …
Once again, for this argument to make sense, it would require a type of action which does not exist. It is impossible to produce an intangible without altering physical matter.
The novel Harry Potter can not be owned by its creator but the whole society must own and have right to consume it.
Since immaterial goods are an aspect of material goods, ownership of immaterial goods require the expropriation of material goods. There is no way to avoid this. Again, your claims require a type of constructs which do not exist.
Now, I don’t know if you noticed that, but in this post I am not making any normative claims. I am merely pointing out that you contradict yourself: you can only have IP at the cost of elimination of physical property. By denying that you want to eliminate physical property, yet advocating IP, you contradict yourself.
It is as simple as that. Regardless of your moral outrage, you are wrong.
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… a thing owes its existence …
A thing can owe? Really? I thought only people can owe. The image of you pulling out a gun, pointing it at an unauthorised copy of a book yelling “give it back!” is, admittedly, humorous. -
IP laws never challenged your view of private property rights (they are essential application of these) and they don’t deal with some metaphysical “source”… IP is simply about rights of USE of physical property that happens to be unique is certain features (this uniqueness is making such goods marketable for limited use, and it’s possible to prove when someone used them in unauthorized ways).
It’s just that you misinterpret these laws, for political purposes I assume, forgive me if I’m wrong about the “source” of your motivation.
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IP laws never challenged your view of private property rights (they are essential application of these)
On the contrary, IP laws expropriate physical property and contradict it. There is no other type of action than changing physical matter. If you create a theory of homesteading of all physical matter, you cannot at the same time have a theory of homesteading of results of actions. These two views cover the same content, so they necessarily overlap.
You not only misinterpret laws, you create interpretations that are self-contradictory.
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But Peter!
Just above you proved otherwise: IP laws deal trespass (unwanted use) of one’s physical property (goods usually marketed for service of limited-use) – and nothing else.
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Sasha,
You keep referring to trespass so I want to clarify with some examples. Let’s say Person B buys a music CD from Person A with the agreement that B will not copy or distribute the CD’s content. Person B goes home, cranks up the volume, and then starts rocking out to his new CD. Person C, a gifted musician who lives next door to B, overhears this music and commits it to memory. C then gets together with his own band, records the same music to his own CD and starts selling it to the public. A’s and C’s CD’s sound identical to each other. Is anyone guilty of trespass here?
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IP laws deal trespass (unwanted use) of one’s physical property (goods usually marketed for service of limited-use) – and nothing else.
That is inaccurate and deceptive. First of all, I’m not 100% sure a trespass is a necessary condition at all, but I’ll assume it for simplification. IP does not deal with trespass itself, it deals with the consequences of trespass on third parties: it expropriates their property. It’s kind of like saying that if person A kills person B, then the concept of friends of person B attacking friends of person A in retaliation is “dealing with murder”. That’s just as inaccurate and deceptive.
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Mashuri,
According to my view of IP – no harm done. I’m perfectly fine with such action.
According to Mises’s definition of ownership – there was an unauthorized use of property by third party (trespass). Trespass in itself does not imply a crime – but if it creates injury or damage to the property owner, it becomes a tort case.
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Peter Surda,
IP does not deal with trespass itself, it deals with the consequences of trespass (injury to property owner) — but you are too concerned with your pseudo-philosophizing to understand this crucial point.
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Sasha,
your argument does not invalidate my objection.
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Peter,
Your objection is a product of fantasy.
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According to my view of IP – no harm done. I’m perfectly fine with such action.
OK, how about if I download an ePub copy of “Harry Potter” off of Bittorrent? Does J.K. Rowling have a claim against my computer?
According to Mises’s definition of ownership – there was an unauthorized use of property by third party (trespass). Trespass in itself does not imply a crime – but if it creates injury or damage to the property owner, it becomes a tort case.
So please apply your interpretation of Mises to my example. Between persons A, B and C who is liable for what and why?
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According to Mises’s definition of ownership – there was an unauthorized use of property by third party (trespass). Trespass in itself does not imply a crime – but if it creates injury or damage to the property owner, it becomes a tort case.
On second thought, I have another question regarding this response. Since you stated that you see “no harm done” with my “ABC” scenario, how is the above referenced argument even relevant? If Mises actually did define property this way (which I doubt — this is more likely an interpretation of yours) and I think he is mistaken, he isn’t around to clarify his position anyway. You, on the other hand, can only speak for yourself.
So, let’s move forward with the relevant thread. Since you see no harm in my first scenario, how about if I download an ePub copy of “Harry Potter” off of Bittorrent? Does J.K. Rowling have a claim against my property?
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Mashuri,
Please refer to 23rd and 24th chapter of “Human Action” – if you find a single quote that contradicts his definition as I presented it, please show it. You ask: how is this of any relevance if it does not present my position? You fail to understand that as opposed to ideological fanatics such as IP-communists, I possesses objectivity that makes me consider all approaches that are consistent with any definition of property rights (anti-IP position is directly in contradiction with “right to exclude others from unwanted use” principle of ownership right, hence I reject such anti-property rights position).
Going back to your ABC example, as you already mentioned, Mises is no longer alive so it would not be fair to develop a discussion in which he cannot argument or defend his position. My take on such position is quite clear from my previous posting, so I have nothing to add. If you try to imagine what would Mises say, just go back to his definition of ownership (C is the one that, arguably, turned the use of other person’s property into a commercial endeavor, reaping the benefits of such use, all without owner’s approval or a compensation to him).
As far as your JK Rawling example goes, you just demonstrated a complete lack of understanding of what IP is, yet you seem to adamantly oppose it. JK Rawling would never have a claim against your computer because it “contains her ideas” – she would have a claim against unauthorized USE of her property that results in economic injury to her (you used her property’s services for free, while knowing that these services were provided by unauthorized users that hijacked this property).
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Sasha Radeta wrote:
anti-IP position is directly in contradiction with “right to exclude others from unwanted use” principle of ownership right
Define “use”.
I mean really define it. What specifically does it mean? Break it down to its fundamentals. In terms of matter, space and time, what does it mean to “use” something?
I go into greater detail somewhere below.JK Rawling would never have a claim against your computer because it “contains her ideas” – she would have a claim against unauthorized USE of her property that results in economic injury to her
It’s HIS computer. He is not USING JK Rowling’s property. He is USING his property.
you used her property’s services for free, while knowing that these services were provided by unauthorized users that hijacked this property
Her “property’s services”? It’s a book. It’s an inanimate stack of paper bound together with glue (or whatnot) containing ink symbols in a specific arrangement. On a computer it’s just a bunch of 1s and 0s. What services do you speak of?
Despite your endless protests to the contrary, you ARE claiming ownership of the intangible.
And your slippery way to try and avoid “ownership of a pattern” seems to be by claiming “ownership of an action”.
But you cannot “own” an “action”. Actions are intangible. They are spacial and temporal “arrangements” that can be applied to matter. Actions ARE patterns.
You seem to think that the author “owns” the act of copying her physical book.
But what does this mean?
What does “copying her physical book” specifically mean?
“Copying her physical book” means arranging symbols on to a page into a particular arrangement.
Therefore, when you make a claim equivalent to the author “owning uses of his/her property”, you are merely saying that the author “owns the act of forming a particular pattern”.This is in every way identical to the argument put forth by all those pro-IP people who advocate ownership of patterns.
You do not own the “uses” of your property. You only own your property. Sasha you are completely mixed up because you do not seem to realise that the word “use” has multiple meanings, and only one of these meanings applies to property.
To “use” something is to alter it’s integrity or momentum for a particular purpose.
You cannot “use” a pattern or action because you cannot alter the integrity or momentum of a pattern or action. When “use” is applied to patterns and actions, it is metaphorical.“Use” of JK Rowling’s book, when used in the non-metaphorical way, means changing it’s integrity or momentum. For example, opening it, picking it up, ripping it up, drawing on it, leaning on it, shining light on it, etc.
Rewriting the book from memory is NOT a “use” of the book. It is not a “service” that the book provides. You are not physically altering the book. You are not moving it. You clearly cannot be “using” it. To say you are “using” the book when you copy it (in a non-physical way) is a metaphor. You are not really “using” the book.It requires a contract to prevent “actions”, but you deny that IP has anything to do with contracts. With property rights, all you can prevent is physical interaction with the book, nothing more. This is why your entire line of reasoning is deeply flawed.
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Jay,
you’re again falling into emotional fervor. Go back to Mises (Human Action, CH 24) – and go to any English dictionary for word “use” and you’ll find your answer. I’ll use this one: To put into service or apply for a purpose.
Just few quotes from Mises:
“Ownership means full control of the services that can be derived from a good.”
“Carried through consistently, the right of property would entitle the proprietor to claim all the advantages which the good’s employment may generate.”
Reading or reproducing – these are all services or uses of a book. Only a complete idiot would argue against such notion. If I adhere to such scope of “use” and property rights as defined by Mises, that makes me a follower of Mises, a libertarian – and by no means a follower of imaginary “idea ownership” doctrine invented by Kinsela & co. (notion directly denied even by IP laws).
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I’m posting this again, hoping it lands in the right spot. (fingers crossed)
To put into service or apply for a purpose.
Which more specifically means to alter integrity or momentum.
“Ownership means full control of the services that can be derived from a good.”
Yes and Mises meant it in the literal physical sense. “Services” means any manner in which the good is physically altered to achieve a purpose.
“Carried through consistently, the right of property would entitle the proprietor to claim all the advantages which the good’s employment may generate.”
Look closely at the word “employment”. Once again this refers to a physical change. The proprietor is entitled to any advantages that can be derived from the alteration of the integrity or momentum of a good.
You are applying the metaphorical use of words to Mises’ quotes to arrive at your conclusions.
Reading or reproducing – these are all services or uses of a book.
This is a metaphorical application of the word “use”. If “reading” or “reproducing” do not require a physical change in the book, then they are not “uses” of the book.
The word “use” can have several different meanings and this is exactly where you are falling down. If you define “property” in a manner where it can have multiple meanings, you end up with all sorts of contradictory and nonsensical conclusions.
For example, according to your logic, “thinking about” my car is a use of my car. I’m entitled to claim all the advantages which my car’s employment may generate. I have not transferred the right to “think about” my car to anyone else. Anyone who thinks about my car is committing trespass. I’ve decided the price for this particular “use” of my car is $1000. So what we need to do now is go around finding everyone who has ever thought about my car and confiscate $1000 from them.If you do not place measurable boundaries on what constitutes “use”, then just about everything we ever do is a violation of somebody else’s property rights. And the limits on what is and is not measurable is quite clear: We can measure changes in the integrity and momentum of physical objects. Nothing more. “Reading”, “reproducing” and “thinking” are not changes in the integrity or momentum of an object. We cannot measure them. They are therefore not “uses”.
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Only a complete idiot thinks that “services” that a good provides (such as rent or access to view something) must involve physical change or physical alteration. Jay constructed such nonsense in order to find at least one case in which IP law is inconsistent with property rights. I’m not a psychiatrist, so I can’t help him with that. I wish him all the best.
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Only a complete idiot thinks that “services” that a good provides (such as rent or access to view something) must involve physical change or physical alteration.
You seem to have trouble comprehending arguments of your opponents. More likely you are uninterested in them. What you describe is not the issue being debated. The problem is that a right to services derived from a good conflicts with a right to integrity/momentum of physical goods. It’s double counting. Jay and I have been trying to explain this to you, yet you keep this issue unaddressed.
Jay constructed such nonsense in order to find at least one case in which IP law is inconsistent with property rights.
More likely, Jay’s attempt to explain the contradiction in your claims failed to make it comprehensible to you.
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Huh? “Use” or “service” does not necessarily involve physical change or alteration – and no amount of psycho-babble will change that.
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“Use” of a physical object does require alteration of the integrity of momentum of that object.
“Viewing” an object is the use of your eyes and brain, not the use of the object.
“Duplicating” an object is use of the materials in which the replica is made from, not use of the object you’re duplicating.
To say you are “using” the object in these processes is a metaphor.
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Huh? “Use” or “service” does not necessarily involve physical change or alteration – and no amount of psycho-babble will change that.
Any action whatsoever involves the change of integrity or momentum of some physical objects. It merely does not follow that the physical objects involved, apart from the body of the actor, are property of the actor. That’s the reason for your contradiction: you are double counting.
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It is not a metaphor. When I’m vatching (viewing) a movie – I enjoy the service (use) provided, without havig to physically alter anything. Your entire argument now rests on completely bogus definitions.
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Of course it’s a metaphor.
What exactly are you “using”?
You’re using your eyes, your brain, the seat you’re sitting in and the photons of light conveying the information.Are you “using” the movie? No.
With the metaphorical application of “use”, one is saying they are “using” the intangible apsects of the movie.
When discussing the fundamentals of property rights, it’s important to recognise this metaphor for what it is. Otherwise, one can inadvertantly advocate a position that contradicts normal physical property rights, just like you have been doing.
Your entire argument now rests on completely bogus definitions.
My arguments always rest on specific definitions.
I do not hide in a cloudy labyrinth of vague definitions as IP proponents often do.
Unlike you, if I am logically inconsistent, there is no where for me to run.
And, unlike you, I don’t think it should be any other way. -
Jay,
Your definitions may be specific but they are nothing but nonsense. Watching a movie in a theater involves enjoying (using) a service provided by those who own rights to present you this show. A person can passively receive a service (from being physically touched – to be entertained by watching a movie or a dancer) without really physically altering anything. At least I’m glad you demonstrated that in your twisted world there is no place for artists who want to charge their services (like presenting their works). You decided to theoretically eliminate entire markets in order to create a little doubt about IP, but you only showed how anti-IP position is religious and detached from reality.
Best regards.
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Dear Sasha Radeta,
Do you at least understand how the word “use” can be applied to in two distinctively different ways?
In one way, to “use” something means to alter integrity or momentum of something. eg to use a shovel, to use a car, to use a chair, etc.
In another way, to “use” something means to duplicate the essence of something (even if this simply means forming a mental picture), eg to use an idea, to use engineering blueprints, to use an artwork.
The point is, these two different meanings of “use” have two distinctively different processes occurring. Also note, the first definition applies to the tangible while the second definition applies to the intangible.
Everything that exists has two aspects:
The tangible “stuff” that it’s composed of, and the intangible “arrangement” of that stuff.Tangible things are scarce, in that changes to their integrity/momentum are mutually exclusive to other simultaneous changes to their integrity/momentum. In other words, only one person can alter the integrity/momentum of a tangible object at any one point in time.
You will note that the intangible does not and can not suffer from this same problem.
It is the scarcity of tangible things that underlies the very reason why “property rights” exist.The basic idea of property rights is that only the owner has the right to “use” any given object. You are not permitted to perform actions that alter the integrity or momentum of other people’s belongings. This is because do so automatically prevents them from altering the integrity/momentum of that belonging. Property rights solve the problem of simultaneous mutually exclusive actions.
I’d just like to quickly add here that it’s impossible to assign property rights in both the tangible and intangible because this would require two distinctively different types of property, due to the two distinctively different processes of “using” them. It’s very easy to show that these two types of property rights contradict one another – forcing one to take preference over the other. ie, the two definitions are mutually exclusive.
Now, you argue that the owner of any piece of property has exclusive rights to all the uses and services derived from that property. But “uses” and “services” can fall under either of the two definitions outlined above.
But you only have property rights in the tangible aspects of any given piece of property. You do not and can not have exclusive rights to the intangible aspects of that property.
Therefore, you have the exclusive rights to all the uses and services of the tangible aspects of property, but you do not have exclusive rights to the uses and services derived from the intangible aspects of that property.
And making this distinction is very easy. If you apply the first defintion of “use”, you have exclusive rights to it. Whereas, if you apply the second definition of “use”, you do not have exclusive rights to it. In other words, if the “use” or “service” derived from the property involves the physical change of that property, then it’s a service derived from the tangible aspects of the property. If the “use” or “service” derived from the property does not involve physical change of that property, then it’s a service derived from the intangible aspects of the property.
Let’s look at your claims and see where they fit.
You claim that “viewing” an object is a use that the owner is entitled to. But “viewing” does not involve a change in the position or momentum of the object. Viewing involves duplicating the intangible aspects of the object in your mind. Hence, to claim that “viewing rights” belongs to the owner is to claim that the owner has property rights in the intangible aspects of the object.
You also claim that “duplicating” an object is a use that the owner is entitled to. But “duplicating” does not necessarily (obviously it depends on the process) involve a change in the position or momentum of the object. Duplicating involves rearranging other materials into the same configuration of the intangible aspects of the object. Once again “duplication rights” are another claim that the owner has property rights in the intangible aspects of the object.Since you seem to agree that ownership of the intangible is not possible (which, as I have shown, is the logical position to take), then you must also agree that owners can not have exclusive usage rights to uses and services derived from the intangible aspects of their property.
I have laid this out very specifically. You should, at the very least, now understand my position. If anything is unclear, please ask for clarification.
P.S. Hopefully you now see why, when discussing the fundamentals of property rights, I only consider the first definition of “use” to be legitimate and I consider the other definition to simply be a metaphor.
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Jay,
If we were to assume that authors “cannot have exclusive usage rights” over those services (intangible by its very definition) that don’t involve human contact – this would imply that service fees for art shows or concerts were illegitimate forms of market exchange. You don’t seem to understand one of the basic principles of property rights: if a person don’t have an exclusive usage rights, he has no legal ground to charge you for such use (since it would belongs to him, as much as it belongs to you).
I hope you now understand why your attempt to attack IP always logically amounts to the abolishment of visual arts, music industry, etc.
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Sasha,
The “service” for art shows and concerts fundamentally results from ownership of the places where they take place, not from the “art” or “music” itself. It’s very simple really. The only thing preventing you from experiencing these performances is “line of sight” (or in the case of music, being able situate yourself in a position to clearly “hear” the performance. You are paying for an unobstructed view of the art (or to be in an unimpeded hearing range of the music).
The contracts could go something like:
If you give me $X, I will allow you to enter my land and I promise artworks A, B and C will be present inside my property borders. Or…
If you give me $X, I will allow you to enter my property and I promise people A, B and C will be present performing actions D, E and F.There are no exclusive usage rights to “viewing” or “hearing”. The only exclusive usage rights that exist in these scenarios involve the physical alteration of tangible materials.
You don’t seem to understand one of the basic principles of property rights: You only have exclusive usage rights for “uses” of property that result in the alteration of that property’s integrity or momentum.
For a band performing at a concert, the band members have the exclusive rights to alter their body movements in the manner that produces the music. But they have no exclusive rights as to “who” can listen to it. To discriminate over who can and cannot listen to the music requires that the performance be contained in a privately owned enclosed space, and then charge people for the right to enter that space.You said yourself, I don’t have exclusive rights over the “viewing” of my car. I can’t run around forcing people not to look at my car. But if I store my car in a privately owned building, I can regulate the “viewing” of my car by regulating access to my building. There is NO difference between viewing rights of my car and viewing rights of a work of art.
Same deal with music. If I walk around talking out loud in public, I can’t force people NOT to listen to me. I have no exclusive rights over the “hearing” of my talking. However, if I talk in a sound-proof privately owned building, I can regulate who can and cannot listen to me by restricting access to the building. Once again, there is NO difference between the hearing rights of my talking and the hearing rights for a piece of music.
I hope you now understand why your attempt to attack IP always logically amounts to the abolishment of visual arts, music industry, etc.
Why would you make such a ridiculous claim?
All “intangibles” that people value must be presented in the form of tangible materials. It is impossible to have an “intangible” on its own.
If I want to view a magnificent painting, that requires that the painting actually have a tangible existence somewhere, ie a canvas with paint on it. And this painting has to be located somewhere. I don’t automatically have line of sight to it purely because it exists. I need all the obstacles to viewing it removed. And all these obstacles are tangible things that someone owns.
If I want to listen to a beautiful piece of music, the music must be stored in some physical way. I need a physical copy of the music. I also need the means to play this physical copy. If I want to listen to it in its pure form, ie straight from the artist’s mouth, I need to form a contract with that artist for them to make the desired bodily movements required to perform the music. I also need to be in close proximity to the performance.
In both cases, artists can profit from their talents by obstructing the viewing/hearing of their works (with tangible property) and then selling the right to be unimpeded by these obstructions.Seriously Sasha, you have to stop thinking about this topic in such a vague way and start analysing what is specifically going on.
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