From Mises blog. Archived comments below.
On GMO patent infestation, Kent Hastings comments on my IP views and those of J. Neil Schulman. Schulman responded:
My article “Informational Property: Logorights” begins by specifically disclaiming any state grants of monopoly. The concept stands or falls on its natural-property-rights arguments. Neither Samuel Edward Konkin III or Stephan Kinsella or anyone else has ever successfully answered the challenge I raised in my article, that without the identity of a thing being real enough to make it claimable as property, there would be nothing identifiable existing to be copied in the first place.
This is not arcane. It’s just being pointedly ignored — and Kinsella’s attempts to change the subject don’t make me forget what I wrote.
My response is as follows:
Neil, I said your term “logorights” is somewhat arcane, not your theory, and there was no disrespect implied.
I think you are just wrong to assume that “having an identity” is a sufficient condition for being subject to property rights.
Consider: one has no property right the value of one’s property, as Hoppe and Rothbard have argued (see Sheldon Richman on Intellectual Property versus Liberty); and likewise, one has no property right in the “identity” of one’s property.
The reason is that owning value, patterns, identify gives you an ownership right in others’ already-owned property. Saying you own the “identity” of a thing you own is another way of saying you own the pattern by which it is arranged–which is a disguised way of saying you have ownership rights in things everyone else owns. The standard Lockean account of property accepted by most libertarians says that the person who appropriates a previously unowned scarce resource becomes its owner. The IP advocate, of which you are one, says that if A thinks of a unique way to use his property or a unique pattern to impose on his own property, this act of intellectual innovation magically gives him partial ownership rights in property already owned by others. It lets you tell B how he can use his own property, even though B is the appropriator and by Lockean principles only B should be the owner. Granting A an IP right just means some of B’s rights of control are transferred to A–it’s a transfer of wealth or property, and it’s incompatible with libertarian property rights.
The mistake Rand made was thinking “anything you create” is property, without first asking if the thing created is the type of thing that is subject to property in the first place. In fact, creation is neither necessary nor sufficient since if you create some new pattern using others’ property you are not its owner; and if you impose a new pattern on property you own, then you own the transformed thing since you already owned the stuff of which it’s made. A focus on creation as a source of ownership is the mistake made here. Creation is a source of wealth, sure, but not of ownership, since you can only create using things you already own.
Tibor Machan makes a similar mistake to your “identify” view when he assumes that many “ontological” types of things can be property–the mistake is in assuming that the way we conceptually and terminologically understand the world has some metaphysical basis that translates into property rights. By this view any concept we come up with to “identify” things that is successful, has magically created a new class of property. I find the concept “poem” useful–it is conceptually valid.. poems “have” “identity”–voila, they must be property!
I don’t agree with this way of making rights depend on what concepts we have or how we identify and understand things in the world. Just because we can call something by a word, or call it a “thing,” does not mean it is ownable. In fact, all ownership rights are enforced in physical terms against scarce resources; which means that granting rights in anything else has to undermine and dilute real rights in real things.
For a further explanation of what is wrong with Schulman’s “logorights” theory and why it is contrary to libertarian property rights, see text at notes 48-49 et pass. to my Against Intellectual Property; see also the following posts, which point out various errors in the Randian “creationist” approach to IP (and apply more or less to Schulman’s logorights idea too):
Articles:
- “Intellectual Property and Libertarianism” (in particular see here and the section on Libertarian Creationism);
- also “The Case Against IP: A Concise Guide”;
- for an alternative to the Randian approach to rights and politics, see What Libertarianism Is.
Media:
- I discuss problems with Rand’s view at length on the Peter Mac show
- and at the Mises University this year;
- also The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism.
Blog posts:
- An Objectivist Recants on IP
- Elaborations on Randian IP
- Rand on IP, Owning “Values”, and “Rearrangement Rights”;
- Libertarian Creationism;
- Objectivists: “All Property is Intellectual Property”
- Thoughts on Intellectual Property, Scarcity, Labor-ownership, Metaphors, and Lockean Homesteading;
- Renaming Intellectual Property;
- Perkins on Pursuing Insufficiently Abundant Intangible “Values”
- Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors;
- Inventors are Like Unto …GODS….
- Also these blog posts: Intellectual Products and the Right to Private Property;
- New Working Paper: Machan on IP;
- Owning Thoughts and Labor;
- Objectivists on IP.
[Cross-posted on Against Monopoly and Mises Blog.]
July 2, 2009 at 10:57 am
July 2, 2009 at 11:45 am-
Creation is a Person’s action which imposes that Person’s logos on something which exists to give that thing a unique identity it did not previously have.
Another quote from Schulman’s logorights article. Besides the fact that he’s assuming property is “creation”, the simple fact is that it is the labor involved that gives property rights, not its unique identity. If a person builds a house and fences in a particular piece of previously unowned land, it doesn’t matter if the house is unique, or identical to thousands of other houses that have been built–it is merely the fact that he has built the house on the land that gives him property rights in the house and land. 
July 2, 2009 at 1:05 pm-
“A focus on creation as a source of ownership is the mistake made here. Creation is a source of wealth, sure, but not of ownership, since you can only create using things you already own.”
Well, this argument throws all property out the window. The origin of property is based on homesteading–mixing your effort with previously unowned resources. Why does the anti-IP argument use lines of attack that are incompatible with defense of real property? I find it amusing to substitute the words like “land” for “intellectual property” and see how absurd the reasoning becomes.
All legitimate forms of property exist independent of the State. Anti-IP arguments should not reference State granted monopoly since Pro-IP arguments are not based upon State granted monopoly. A glaring problem with much of the Anti-IP dogma is the inability to divide State enforced rent-seeking from the debate about whether IP exists as an immutable class of property. It is like arguing that land ownership is invalid because the government practices eminent domain to seize property and give it to favored classes.
Mr. Kinsella argues ad nauseam that IP rights consist of nothing more than giving unjust ownership over everyone else’s property because IP is nothing more than an arrangement of atoms or thoughts. The pro-IP argument is clearly in disagreement with this axiom and posits that IP is more because it represents mixing of one’s effort with previously unworked veins of intellectual achievement.
Note that this is much different than color, weight, or time which do not have specific identities. Decrying the possibility of claiming ownership over these attributes as an attack on IP is an ignoratio elenchi.
Going back to the original quote, “A focus on creation as a source of ownership is the mistake made here,” I would say that this is not a mistake, but rather the crux of the discussion. The concept of IP revolves around the idea that if you spend the time and effort to create something no one else has done, you deserve to own it. If you homestead virgin land by fencing it and planting a crop, you have established ownership. If you homestead patterns and designs by spending time, money, and effort, you have established ownership.
Arguing against IP because it might lead to a maze of impediments to progress is like arguing against privatizing roads because it might lead to a maze of toll roads. In a truly free, privatized market, we expect that private roads will reach an equilibrium of travel cost versus mobility and that whatever that quiescent point turns out to be, it is just. How is it that we cannot apply the same faith to the world of idea ownership? Why do we have a Marxist mentality about mental labor? Do we honestly believe that devaluating thought is liberating thought?
Yes, there are many problems to be worked out with the malignancy of State sponsored intellectual property. There are serious problems to be worked out with practically everything in life due to State intervention. The question is whether we will see more progress by recognizing or denying an ownership interest in one’s intellectual achievements. Intellectual products are valuable–the question is who should reap the profits, the talented creators or the users who are not capable of creating what they want to use.
February 15, 2011 at 5:39 pm-
When I build a fence around a plot of land, it’s clear that the land is fenced off. But how do I build a fence around an idea?
This is why I am anti-IP: ideas exist in a world separate from the physical ones. As you say, you own an idea by spending time, money, and effort in coming to understand it. But, once you own an idea, you *cannot* build a fence around it, and then expect me, who may be *completely unaware* of your existence, to be able to respect your claim to that idea. I can still study the subject at hand, and come to own an idea for myself.
Ah, but you might argue that copyright and patents are “fences”! Of course, legally they try to be…but they cannot succeed: no system of “idea fences” can prevent me from “trespassing”, or even knowing I am “trespassing”, on a given idea. While highly improbable, I can *in theory* write “Atlas Shrugged” without having ever read a single word of it. That may sound absurd–but when we’re talking about physics, or computer software, or chemistry, possibilities are much more limited, and people independently coming to the same idea, at about the same time, happens surprisingly frequently!
- July 2, 2009 at 2:34 pm
July 2, 2009 at 4:01 pm-
Car repairmen do not pay the authors of repair manuals one penny, despite the fact that their own efforts are physical reproductions of the ideas displayed in such manuals. Yet, even i the face of this lack of revenue, repair manuals are not lacking in the marketplace, nor are repairmen held in jail for not giving royalties to the manual writers. If a manual indicates that to repair fault A in car B you follow C and D, and the mechanic follows the procedure exactly, then he IS reproducing the idea in a physical form, without compensating the manual writer.
Of course the counterargument would be that copyright refers only to the right to copy the written material into similar media to make a profit, but that invalidates the reasoning behind IP since it makes it contingent to re-established laws and provisos, leading to question begging – i.e. it is valid because the law makes it valid, or it is limited to A and not B because the law says it is limited to A.
July 2, 2009 at 9:46 pm-
David Spellman wrote:
“Well, this argument throws all property out the window.”Incorrect.
Stephen Kinsella wrote:
“The mistake Rand made was thinking “anything you create” is property, without first asking if the thing created is the type of thing that is subject to property in the first place.”So, Kinsella is saying that although your labor makes property (i.e. a scarce or economic good) into your property, it doesn’t make information your property. This is because information is not a scarce or economic good by nature, and thus is not subject to the concept of ownership. At least, that’s what I think he’s saying.
July 3, 2009 at 10:09 pm-
I’m going to try using html tags here, as it seems they may be accepted. Apologies if it comes out wrong. The comment form should mention what’s acceptable.
Spellman:
The origin of property is based on homesteading–mixing your effort with previously unowned resources.
….
The pro-IP argument is clearly in disagreement with this axiom and posits that IP is more because it represents mixing of one’s effort with previously unworked veins of intellectual achievement.
You appear to misunderstand what is meant by resources. The term is not inclusive of “unworked veins of intellectual achievement.” Knowing this, I suppose you may reconsider your first statement; though, I hope you continue to agree with it.
It is with utmost incredulity that I read rebuttals of the very natural, plain arguments that Mr. Kinsella and others, including myself, proffer. “How can these fallacies stand in the face of this?”, I ask. Nevertheless, despite my continuing surprise, the rebuttals continue.
I am happy to announce, though, that by granting this idea of logorights, they may be utterly confounded. For, to lay any claim, in the way put forth, to a pattern, one must cause all those informed to infringe said claim. Certainly, there can be no class of property for which that is true.
It’s analagous to Clinton’s infamous “That depends on what your definition of is is” line.
If this sounds too absurd to be true, allow me to explain. To claim a pattern or configuration, one must inform others of this claim. However, by informing others, you have caused them to hold this pattern in their mind. Not only is it in their memory, but insofar as they may consider one’s claim, they must use the tools of their mind to, again, produce for themselves a configuration corresponding to this pattern.
You may snort, “But they can not use this ‘configuration!’”. Ah, but they can and must. They must use it to compare to the typical forms which one thought one was claiming ownership over; they may use it to consider other ideas or improvements; they may use it to produce in their minds the products of its actions (if it were a machine); etc.
Neither can the retort stand that this is only an “imaginary” manifestation. My thoughts are as real as the keyboard I am using, and they have various, real effects. Indeed, in this scheme, one may patent, or claim logorights over, that which never exists beyond a thought. Also, the medium for my thoughts — my brain — consists altogether of real components. So, any patterns in my thoughts, are some projection of the patterns which exist in the configuration of my atoms and other components.
Of course, this argument is wholly superfluous if one understands the previously presented argument: rights derive from and find their extense in the ownership of property; ownership of property derives from the transfer or home-steading (the originating method of derivation) of unowned resources; and home-steading involves the working of scarce resources and results in the ownership of the same resources in their new configuration.
Now, perhaps there is some form of intangible resource which is capable of being owned. But, whatever that may be, rights over it can not conflict with the rights of owners of tangible property, unless you are able to prove the derivation of those rights, as just presented, to be incorrect. And proving a fallacy is a mighty task…
Perhaps my alternate refutation will convince those who are thus far unwilling or unable to understand the more general argument.
July 5, 2009 at 9:40 pm-
Kinsella, stop wasting your time in arguments- write “Stephen Shrugged”, a massive tome that will become the soul of Anarcho-Capitalism! Novels are the way to convey ideas these days! Even if the book then gets hi-jacked by Hellywood, and made into a complete reversal of what you meant, your ideas will still perculate through!
Go for it!
I have no idea what plot you could use- why not get ahead of the curve and have a robot trying to free itself in a humano-centric society? Whatever, good luck, and I might even buy a copy!
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