Originally posted at the Mises Blog. Archived comments below.

The issue of private property rights in the EM spectrum (airwaves) arises occasionally. To my knowledge there is not much systematic work on this topic; David Kelley & Roger Donway’s 1985 monograph Laissez Parler: Freedom in the Electronic Media [Amazon; Google books] remains the best work on this, to my knowledge; and see also the Rothbard quotes appended below. (And, depressingly, almost every new libertarian discussion about this seems ignorant of this work; young libertarians seem ever-determined to re-invent the wheel and/or weigh in before they’ve done their homework.)

One Silas Barta keeps claiming that those who support property rights in airwaves cannot object to property rights in IP (see here, here, here, here, and here). My response to this argument, in brief, is: (a) so what? If this were so, then that just means we cannot support property rights in airwaves; (b) and I disagree with this since the airwaves are scarce resources; (c) the libertarian case for property in airwaves is not settled or very developed yet.

As to (c), again, I refer to Kelley and Donway’s monograph. As I have maintained for years, I lean in the direction indicated by Kelley and Donway–that individuals could on the free market homestead EM spectra.  Let me briefly outline how I think this could work in a free market. First, let me note the argument of those who object on the grounds that EM frequencies are mere numbers. But a given “airwave” is basically a bandwidth of radio frequencies over a given limited volume of the earth’s surface. Radio waves are electromagnetic waves that propagate at the speed of light (they are light; visible light is just one portion of the EM spectrum) through space. A signal can be transmitted by sending a modulated signal at a given wavelength (wavelength is inverse to frequency). For example AM means amplitude modulation: a given signal is modulated by varying its amplitude (magnitude). In FM, the frequency is modulated. It is impossible to have a perfectly precise (narrow) wavelength; when you emit a signal it is at a “center” wavelenght but extends to the “sides” to some degree, called the bandwidth. So a given broadcaster might send a radio signal over a certain bandwidth (set of wavelengths) surrounding a center wavelength or frequency such as 87.5MHz.

Now the case for property in airwaves is basically this, as I see it. It is based on the basic idea of homesteading (see my What Libertarianism Is). Under this approach, every scarce resource–things that can be contested; rivalrous things; resources that have exclusive use, so that use by me excludes use by you, and so on–is assigned an owner; that owner is the person who first appropriated or used the property in an embordering way–that is as an owner. It’s the first person to erect publicly visible boundaries that others can respect and see; he has a better claim to the resource than any latecomer.

Note that this approach implies that the type of use made of and the type of borders established for a given resource determine the scope and nature of property rights. Property rights in bodies are different than property rights in land and in cows and in an apple. One type of property right is an easement (servitude, in the civil law). Say people routinely walk over a path from point A (their village) to point B (watering hole). You can say they have homesteaded at least that use of the propety. If someone else builds a home there, they have to let the easement continue. A similar case can be made for airways (“tunnels” in the sky that airplanes pass thru) and shipping lanes.

Now, why does it have to be an easement over walking-space on land on the earth’s surface, established by the passage of human bodies? Why can’t it be an easement over the airwaves (viewed as a type of volume of space with respect to a given bandwidth), established by the passages of EM waves? After all, EM waves are physical, and the airwave/spectrum used is a scarce resource like a path on land is. It’s scarce because broadcaster 1 can’t use the spectrum if broadcaster 2 sends a transmission over the same carrier channel in the same physical region; there is interference. So: the idea is that the first broadcaster to use a given bandwidth in a given region would be regarded as having homesteaded this airwave or EM spectrum. Others who broadcast on it would be viewed as trespassers. [Incidentally, the reason transmission of an EM wave for information-signalling purposes is not normally trespass even though the waves pass through others’ bodies is that it does not interfere with their use of their bodies; for more on this approach to “invasion” see Rothbard’s classic air pollution article; by contrast, aiming high-intensity, coherent, power-carrying EM radiation–a laser beam–at someone could be aggression, since it could affect the physical integrity of their body or other property.]

I tentatively lean in favor of this argument. I suspect this is the type of argument, and practical use, that would tend to win out in a decentralized, property-respecting, dispute-settling society. But I am not 100% sure.

A final note. This type of situation is not analogous to IP because there is no “idea space” that is scarce and homesteadable. Instead the IP advocates want to install property rights in “the right to make a greater profit by virtue of artificial imposed scarcity,” something like this.

A few other discussions of this can be found here: B.K. Marcus, The Spectrum Should Be Private Property: The Economics, History, and Future of Wireless Technology; and comments here: http://blog.mises.org/archives/005577.asp#comment-101581; http://blog.mises.org/archives/006930.asp#comment-123893; and http://blog.mises.org/archives/007561.asp#comment-133579; http://blog.mises.org/archives/007561.asp. See also B.K. Marcus, “Radio Free Rothbard (discussing Rothbard’s concept of the “relevant technological unit”). ¹

Update: Rothbard was also, as usual, far ahead on this issue. Some of his comments on this are below:

From Man, Economy, and State:

Furthermore, if we understand by “air” the medium for the transmission of such things as radio waves and television images, there is only a limited quantity of wave lengths available for radio and for television purposes. This scarce factor is appropriable and ownable by man. In a free society, ownership of these channels would accrue to individuals just like that of land or animals: the first users obtain the property. The first user, Jones, of the wave length of 1,000 kilocycles, would be the absolute owner of this length for his wave area, and it will be his right to continue us­ing it, to abandon it, to sell it, etc. Anyone else who set up a transmitter on the owner’s wave length would be as guilty of in­vasion of another’s property right as a trespasser on someone else’s land or a thief of someone else’s livestock.[39][40]

… [39]If a channel has to be a certain number of wave lengths in width in order to permit clear transmission, then the property would accrue to the first user, in terms of such width.

[40]Professor Coase has demonstrated that Federal ownership of airwaves was arrogated, in the 1920’s, not so much to alleviate a preceding “chaos,” as to forestall this very acquisition of private property rights in air waves, which the courts were in the process of establishing according to common law principles. Ronald H. Coase, “The Federal Communications Com­mission,” Journal of Law and Economics, October, 1959, pp. 5, 30-32.

[41]It is rapidly becoming evident that air lanes for planes are becoming scarce and, in a free society, would be owned by first users–thus obviating a great many plane crashes.

From Law, Property Rights, and Air Pollution:

The theory of homestead easements discussed earlier would require no restriction upon radio transmissions or on people’s low-level radiation. In the case of radio transmissions, Smith’s ownership of land and all of its appurtenances does not entitle him to own all radio waves passing over and across his land, for Smith has not homesteaded or transmitted on radio frequencies here. Hence, Jones, who transmits a wave on, say, 1200 kilohertz, homesteads the ownership of that wave as far as it travels, even if it travels across Smith’s property. If Smith tries to interfere with or otherwise disrupt Jones’s transmissions, he is guilty of interfering with Jones’s just property.[61]

Only if the radio transmissions are proven to be harmful to Smith’s person beyond a reasonable doubt should Jones’s activities be subject to injunction. The same type of argument, of course, applies to radiation transmissions.

… [61] During the 1920s, the courts were working out precisely such a system of homesteaded private property rights in airwave frequencies. It is because such a private property structure was evolving that Secretary of Commerce Hoover pushed through the Radio Act of 1927, nationalizing ownership of the airwaves. See Ronald H. Coase, “The Federal Communications Commission,” Journal of Law and Economics 2 (October 1959): 1-40. For a modern study of how such frequencies could be allocated, see A. De Vany, et al., A Property System Approach to the Electromagnetic Spectrum (San Francisco: Cato Institute, 1980).

And here:

in the courts’ determination of radio frequency ownership in the 1920s, the extent of ownership depended on the technological unit of the radio wave — its width on the electromagnetic spectrum so that another wave would not interfere with the signal, and its length over space. The ownership of the frequency then was determined by width, length, and location. … American land settlement is a history of grappling, often unsuccessfully, with the size of the homestead unit.

See also Toward Property Rights in Spectrum: The Difficult Policy Choices Ahead, by Dale Hatfield and Phil Weiser (Cato 2006); and Milton Mueller, Property Rights In Radio Communication: The Key to the Reform of Telecommunications Regulation (Cato 1982).

Update: from Albert Esplugas: “Guatemala did actually implement something along these lines some years ago, which apparently has been an amazing success. The reform was designed and pushed by libertarian economists from Francisco Marroquin University. Here is a paper about Guatemalan experiment in privatization: Property Rights to Radio Spectrum in Guatemala and El Salvador: An Experiment in Liberalization.

[Mises and AgainstMonopoly cross-posts]

Archived comments:

Comments (53)

• Nuke Gray
• I mentioned an alternative previously, which fits in neatly with some of these ideas. I called it Public Intellectual Property. I am not an Anarcho-Capitalist in one regard- I think that we will still have local counties as road-owning entities. The road-owners, like any private company, could set conditions, and license, any activity on or through their lands. They could license EM transmissions through Public spaces, for instance.
  Just another idea to throw into the mix, from a minarchist.

• Published: August 9, 2009 8:34 PM

• Nuke Gray
• I mentioned an alternative previously, which fits in neatly with some of these ideas. I called it Public Intellectual Property. I am not an Anarcho-Capitalist in one regard- I think that we will still have local counties as road-owning entities. The road-owners, like any private company, could set conditions, and license, any activity on or through their lands. They could license EM transmissions through Public spaces, for instance.
  Just another idea to throw into the mix, from a minarchist.

• Published: August 9, 2009 8:35 PM

• Floyd Looney
• I believe in intellectual property rights, so I don’t have a conflict in saying that airwaves are property too.

• Published: August 9, 2009 8:38 PM

• David Bratton
• While we’re at it let’s not just assume an absolute necessity for exclusive control over a portion of EM spectrum in order to use it. The Ethernet protocol allows multiple computers to communicate on a single common circuit by simply listening for collisions and, when necessary, repeating transmissions. It is possible to utilize a common transmission medium without having enforceable exclusive control over it. Who is to say what technical means of exploiting the EM spectrum might have been invented if there had been no FCC and no courts to enforce the requirements of the current exclusivity based protocol.

• Published: August 9, 2009 9:10 PM

• BioTube
• Ethernet is interactive(and that resending is probably TCP), whereas radio is push-only. Hybrid-digital radio does drastically decrease the amount of spectrum needed for a signal, though.

• Published: August 9, 2009 9:12 PM

• David Bratton
• Is that a cart before the horse argument though? Why is radio push only?

• Published: August 9, 2009 9:19 PM

• RWW
• Perhaps, in the absence of state-granted spectrum monopolies, producers would have moved on more quickly to a better method of delivering content than indiscriminately radiating it.

• Published: August 9, 2009 9:33 PM

• Bruce Koerber
• Apolitical Political Commentary!
  Sunday, August 9, 2009Property Rights For The Tangible And The Intangible!In a classical liberalism society the continual refinement of property rights would be one of the most exhilarating and important jobs performed.In our hampered economy, infested with ego-driven interventionists, it is one of the most frustrating tasks but nevertheless it is ever so important!To everyone engaged in this work – God bless you always and in all ways!

• Published: August 9, 2009 9:41 PM

• jon shusta
• the ethernet protocol depends on link statefulness, which itself depends on an actual pair of wires: two carriers. collision avoidance is not possible without link state at the physical layer, and that is simply not the nature of wireless propagation. it is half-duplex. all collision occurs at the receiver end only.now one can allocate a secondary “back” channel to alleviate the problem, but this only begs the question: who gets this pair of channels? also, one can limit oneself to code division, but, once a bunch of people have a channel, who gets what code?further assessment might also need to take into account other modulation techniques, both analog and digital.http://en.wikipedia.org/wiki/Modulation

• Published: August 9, 2009 9:43 PM

• zuzu
• The myth of interference by David WeinbergerMar 12, 2003 | There’s a reason our television sets so outgun us, spraying us with trillions of bits while we respond only with the laughable trickles from our remotes. To enable signals to get through intact, the government has to divide the spectrum of frequencies into bands, which it then licenses to particular broadcasters. NBC has a license and you don’t.Thus, NBC gets to bathe you in “Friends,” followed by a very special “Scrubs,” and you get to sit passively on your couch. It’s an asymmetric bargain that dominates our cultural, economic and political lives — only the rich and famous can deliver their messages — and it’s all based on the fact that radio waves in their untamed habitat interfere with one another.Except they don’t.”Interference is a metaphor that paints an old limitation of technology as a fact of nature.” So says David P. Reed, electrical engineer, computer scientist, and one of the architects of the Internet. If he’s right, then spectrum isn’t a resource to be divvied up like gold or parceled out like land. It’s not even a set of pipes with their capacity limited by how wide they are or an aerial highway with white lines to maintain order.Spectrum is more like the colors of the rainbow, including the ones our eyes can’t discern. Says Reed: “There’s no scarcity of spectrum any more than there’s a scarcity of the color green. We could instantly hook up to the Internet everyone who can pick up a radio signal, and they could pump through as many bits as they could ever want. We’d go from an economy of digital scarcity to an economy of digital abundance.”

  So throw out the rulebook on what should be regulated and what shouldn’t. Rethink completely the role of the Federal Communications Commission in deciding who gets allocated what. If Reed is right, nearly a century of government policy on how to best administer the airwaves needs to be reconfigured, from the bottom up.

  Cognitive radio – Wikipedia, the free encyclopedia

  Cognitive radio is a paradigm for wireless communication in which either a network or a wireless node changes its transmission or reception parameters to communicate efficiently avoiding interference with licensed or unlicensed users. This alteration of parameters is based on the active monitoring of several factors in the external and internal radio environment, such as radio frequency spectrum, user behaviour and network state.

  Open spectrum – Wikipedia, the free encyclopedia

  Open spectrum (also known as free spectrum) is a movement to get the Federal Communications Commission to provide more unlicensed, radio frequency spectrum that is available for use by all. Proponents of the “commons model” of open spectrum advocate a future where all the spectrum is shared, and in which people use Internet protocols to communicate with each other, and smart devices, which would find the most effective energy level, frequency, and mechanism. Previous government-imposed limits on who can have stations and who can’t would be removed, and everyone would be given equal opportunity to use the airwaves for their own radio station, television station, or even broadcast their own website. A notable advocate for Open Spectrum is Lawrence Lessig.

  National governments currently allocate bands of spectrum (sometimes based on guidelines from the ITU) for use by anyone so long as they respect certain technical limits, most notably, a limit on total transmission power. Unlicensed spectrum is decentralized: there are no license payments or central control for users. However, sharing spectrum between unlicensed equipment requires that mitigation techniques (e.g.: power limitation, duty cycle, dynamic frequency selection) are imposed to ensure that these devices operate without interference.

  Traditional users of unlicensed spectrum include cordless telephones, and baby monitors. A collection of new technologies are taking advantage of unlicensed spectrum including Wi-Fi, Ultra Wideband, spread spectrum, software defined radio, cognitive radio, and mesh networks.

• Published: August 9, 2009 10:01 PM

• zuzu
• So, given that interference is a myth, as well as that software-defined radio and cognitive radio are technologies already exist and are being actively developed, we could disband the FCC without resorting to Coasian extension of property rights to frequencies of light.There’s no need for anyone to “own” electromagnetic spectra, because it’s non-rival and non-excludable. (You just need to own more advanced radio equipment — which are examples of real property.)In fact, the current FCC licenses of radio frequency monopolies are very much akin to the bogus “intellectual property” government-granted monopolies that Stephan Kinsella has criticized.

• Published: August 9, 2009 10:10 PM

• David Bratton
• I don’t want to press the Ethernet example too far. The case I’m trying to make is that there have been solutions to exclusivity problems in other mediums which do not involve either permanent or enforceable exclusivity; and I think the reason no such solutions are in use (to my knowledge) in the EM spectrum is because the existence of a governmental enforcement mechanism favored the development of protocols that rely on enforcement. Therefore we shouldn’t assume as given that enforceable permanent exclusivity (i.e. ownership) of a portion of the EM spectrum is necessary in order to make use of it.

• Published: August 9, 2009 10:23 PM

• David C
• Okay, I’m going to quote some things I said on the LF email list, because I think it’s important to make the same point here too.
  ———————————————————
  1st, when it comes to how you treat things, there is no effective difference between radio emissions or any other type of light emissions:
  ————————————————————–
  Well, imagine that you were communicating with blue flash lights, but then you made the frequency a little lower, and used green flash lights, but then you made the frequency a little lower, and used red ones, and a little lower, and used infra red flash lights, and then a little lower and lower and lower, ….. well eventually those light emissions will be in a very very low frequency range, called radio.If you think of RF like light and color, you can’t go wrong, because that’s what they are – except that our eyes can not see light frequencies that low, but radios can. But most radios use simple technology which causes the signal to look “blurry”, but that’s not the senders fault. That’s just the radios abilities.
  ————————————————————-
  Second, natural law outcomes seem to be voting against homesteading …..
  ———————————————————
  lets say I created “green light radio”, and it was basically a big green light bulb on top of my roof that flickered, and people had decoders that could convert that to sounds. Well, now does that mean I have the right to forbid people from putting up green Christmas lights? What if an advertizer nearby wants to put up a green neon sign? And lets say someone else puts a big green light bulb on top of their roof too, well – I could either sue the crap out of them and drag it thru the courts for years, or people could cut out a piece of construction paper and block out the neighbours light just like one might put up their hand to block out the glare of the sun in their eyes so that they could see everything else. Or they could put up a lenz to focus only on my green light, just like you might focus your eyes to look at or look thru your screen door.The latter way seems a lot less intrusive and more natural than the former of trying to control every one and their mother from using green lighting. It also requires a lot less government and legal enforcement. That seems like natural law’s way of telling me, “sort it out with technology, not with homesteading”. In addition, when you look at the areas of the spectrum that are totally 100% no rules, is that the section that nobody wants to use because it is too chaotic and unworkable? No, in fact, that is the area of the spectrum where all the innovation and progress are happening. 80211b, chord less phones, wireless sensors, and all sorts of other stuff. That also seems like natural law’s way of saying “work it out with technology, not with homesteading”. In addition, we all know how much evil false property rights can cause. The fact that it seems that people can work it out without any formal homesteading rules at all also seems like a big natural law indicator “work it out with technology, not with homesteading”. Finally, in the real world, my neighbour would likely NOT put up a green light on his roof, because unlike with physical property, he gains nothing by creating interference with me. He has as much incentive to avoid interference to reach the max number of people as I do. Once again, that is natural laws way of saying “let technology sort it out, not homesteading”. Finally, just the elementary school physics of it. Anybody can hold up two flash lights, criss cross their paths and clearly see that the light going to left side is not going to block the other light from going to the right side. This also implies by natural law, “you don’t need homesteading to work it out” because emissions can share the same space yet be distinct.

• Published: August 9, 2009 10:36 PM

• thesprot
• Anyone with a little basic know how can transmit a electromagnetic wave at a certain frequency or receive it. The space around us is the carrier of that frequency and we the transmitter. Every object in the universe emits radio waves at different frequencies. When we lay a claim we don’t lay a claim on the space that carries these waves but rather we claim the frequency at which these waves are transmitted.First space is vast as big as the universe itself, it is plentiful in economic terms, ie it’s supply is practically limitless hence there is no economic benefit to it, anyone who lays a claim to it for economic purpose can do so by force alone.Second the attributes of private property can not be applied as they would to property in our possession because the physics of electromagnetic don’t permit it. On the other hand a frequency is scarce, it becomes scarce because of the limitations of our technology and trading them is not unheard of before. There are radio station that prefer a certain frequency above all others for whatever reason, should that frequency be taken they would buy it, by buying the station that broadcasts on that frequency, they can even choose to buy the frequency alone for a sum.Personally i don’t see any benefit in such an idea, especially at these times we live right now, where the most basic of private property right and human liberty in general is being stripped away piece by piece.

• Published: August 9, 2009 11:29 PM

• newson
• to rebut silas barta’s argument, isn’t it just easier to leave the scarcity/non-scarcity aspects to the science brigade, and focus on the tangibility of electromagnetic radiation? ideas don’t qualify as property because they have no physical manifestation.

• Published: August 9, 2009 11:46 PM

• hacksoncode
• I must say I violently disagree with Rothbard’s analysis in the linked article (which has implications on this one as well).Harm is not harmless simply because it is diffuse. Extremely great harm can be done in aggregate even when any one person’s harm is minimal. Any sane political system must have a mechanism for preventing this, or it will suffer revolution, at a minimum.From a minarchist perspective, government is nothing more and nothing less than a (corporate) agent designated to act by its citizens. This designation is equivalent to a power of attorney (of course, citizenry should be voluntary, but that’s a tricky situation to leave for another day). The government must be able to act against diffuse tortfeasors.Additionally, there are other ways to deal with the problem of assumption of innocence than to allow all manner of torts to be perpetrated which contain some element of doubt as to strict liability. Proportionality of guilt is not nearly so hard to assess as he would have us believe.Finally, he completely misunderstands physics and biology in talking about “homesteading of pollution rights”. People’s (inherited) homesteading of use of air to breathe predates *all* industrial uses of it. Every molecule of oxygen on the planet has been “mixed with their labor” (breathing) and therefore used by someone at some point, and their easement on its use passed down to their descendants. We do *indeed* all have the right to breathe clean air, by strict libertarian principles.How does this apply to the question of EM spectra? It is *absurd* to claim that someone’s use of a frequency establishes a “homestead” on it. I could set up a broadcast tower hooked up to a power plant and sweep across all usable frequencies across the entire country (and maybe even make useful use of them via some kind of spread-spectrum communications). Would I thereby “own” every bit of previously unused spectrum in the country? Of course not.

  Again, everyone’s (inherited) use of the pretty much the entire EM spectrum predates any industrial use. Auctioning of EM spectrum rights is one of the few sensible ways for our joint agent (the theoretical minarchist government) to fund itself without coercive measures. We do *too* own it. All of us.

• Published: August 10, 2009 12:29 AM

• David
• zuzu’s ctation is spot-on. Do we own frequencies of sound? Of course not. If I’m talking and someone else starts talking next to me, I don’t tell that person to stop, claiming trespass over my property of sound frequencies. No, that person has just as much right and freedom to speak. I have no right to be heard! More importantly, I still get heard, because our brains are incredible computing devices that can differentiate between different signals at the same frequencies. And so can actual computing devices receiving EM signals. There is absolutely no reason to tell people not to broadcast at certain frequencies. That’s a real violation of their own property rights. “Ownership” of frequencies is just the same old government-granted monopolies you’ve been fighting. Stephen, you, of all people, should know better.

• Published: August 10, 2009 12:49 AM

• Walt D.
• This presumes we are the only life form in the universe that uses electromagnetic waves. What if some aliens show up and claim homestead rights on the airwaves? :-)I agree with David ““Ownership” of frequencies is just the same old government-granted monopolies.”

• Published: August 10, 2009 1:05 AM

• Gil
• Does this mean some infrastructure cannot exist because it can only come about through a monopoly service from government? Alternatively, can certain ‘infrastructure’ not exist in Libertopia because it requires a monopoly of some sort. For example, how would the private market handle the sewerage system? The answer is that it couldn’t. A homeowner can’t just have the sewerage pipes under his home ripped up and replaced just because he wants to change providers. The answer comes from what was happening when sewerage was handled by the free market – every home had a septic tank which was taken away when full and replaced by a clean one by a private provider – no monopoly of pipes needed. Similarly, what of all the water pipe networks leading to homes? The free market couldn’t do it. Instead every home would require a water tank for private providers to refill when needed – thus no need for a monopoly network of water pipes under the ground. Maybe it’s the same with EMS – the private market has to work in a way that isn’t monopolistic and maybe the monopoly given by government can’t work in the private market and something else is required. Maybe all data tranmission should go through your Internet broadband connection instead.

• Published: August 10, 2009 1:27 AM

• Nuke Gray
• I call myself ‘Nuke’ in honour of the great action hero, Duke Nuke. If aliens annoy us, we’ll know how to handle them! (Say, what are them aliens doing using OUR radiowaves? Time to go to their home planets, and give them a beating!)
  This is where Public Intellectual Property could resolve the issue, since only counties would enforce it, within their own counties!

• Published: August 10, 2009 1:28 AM

• Nuke Gray
• I call myself ‘Nuke’ in honour of the great action hero, Duke Nuke. If aliens annoy us, we’ll know how to handle them! (Say, what are them aliens doing using OUR radiowaves? Time to go to their home planets, and give them a beating!)
  This is where Public Intellectual Property could resolve the issue, since only counties would enforce it, within their own counties!

• Published: August 10, 2009 1:28 AM

• Gil
• “If aliens annoy us, we’ll know how to handle them!” – Duke Nuke Gray.After all:* a laptop can link into an alien’s computer network and be compatible with their operating system which no firewall nor anti-virus software.and* they’re so caught up in interstellar technology that they forget how to deal with microbes.

• Published: August 10, 2009 1:49 AM

• Gil
• “If aliens annoy us, we’ll know how to handle them!” – Duke Nuke Gray.After all:* a laptop can link into an alien’s computer network and be compatible with their operating system which no firewall nor anti-virus software.and* they’re so caught up in interstellar technology that they forget how to deal with microbes.

• Published: August 10, 2009 1:50 AM

• ktibuk
• “It’s scarce because broadcaster 1 can’t use the spectrum if broadcaster 2 sends a transmission over the same carrier channel in the same physical region; there is interference.”What exactly is “interference”? Can’t it be a form of “usage” for some person. Maybe a person enjoys that outcome you named as “interference”. What then?The problem with IP socialist is that they start talking about property rights before defining what property rights mean.What do property rights entail?Does it only entail some subjective concept such as “a right to use”?Property rights means, the right to exclude other humans.

  That is it.

  It has nothing to do with usage. Surely most people exclude others from their property in order to use the property in some subjective way but because the concept of “use” subjective you can not base an ethical principle on it.

  If property rights are based on the ability to use, or consume in some way, even physical property would cease to be private property when its supply exceeds the ability of that person to consume or use. In other words, if scarcity is the sole prerequisite of ownership then abundance ends the ownership.

  If you follow this logic to its conclusion, no single individual could own anything more than he/she can individually use, or consume.

  But then we come the the definition of use.

  What if the richest person “uses” all the excess wealth to feel good about himself. Isn’t “feeling good” a form of using property?

  The simple fact is if you can not define the concept of “use” for each and every human, which you can not, you can not base a rule or a right on that undefinable concept.

  The only concept that we have left is “the right to exclude” other humans, which is a very objective and clear cut right.

  And it covers most of the package called IP.

  It covers the authors right to exclude others from his novel, it covers the programmer right to exclude others from his software.

  But it doesn’t cover independent discovery, thus most of the patents. An inventor has a right to exclude others of his invention, but someone else’s independent discovery has nothing to do with this process.

• Published: August 10, 2009 5:42 AM

• 2nd Amendment
• Airwaves can be digitized, multiplexed and encoded. Therefore airwaves are today much more abundant and are not a scarce ressource anymore.Airwaves property rights might have been a problem during analog communications. But in an area of digital communications there is much more airwave available.

• Published: August 10, 2009 7:33 AM

• 2nd Amendment
• “Instead every home would require a water tank for private providers to refill when needed”That would be fine, each home owner would not be at the mercy of the city’s chlorine and fluoration and other mandatory poisons in the water and also he would not depend on the city for availability of the water service.As long as the water tank is full he can be certain that he will have water and since he paid for that water he can do what he damn pleases with it, he can use it to melt snow on his driveway or use it to sweep his driveway if he wants, after all he paid for the water.It would be no different than the water cooler at the office where some delivery man brings in new water tanks and takes the empty ones.

• Published: August 10, 2009 7:41 AM

• Peter Surda
• @ktibuk:> Property rights means, the right to exclude other humans.
  [citation needed]

• Published: August 10, 2009 8:40 AM

• RWW
• From a minarchist perspective, government is nothing more and nothing less than a (corporate) agent designated to act by its citizens.I have never heard the word “government” used in that sense. Governments are not formed by unanimous consent; therefore they are invalid as “agents” of their presumed “citizens.”This designation is equivalent to a power of attorney (of course, citizenry should be voluntary, but that’s a tricky situation to leave for another day).Convenient.Again, everyone’s (inherited) use of the pretty much the entire EM spectrum predates any industrial use. Auctioning of EM spectrum rights is one of the few sensible ways for our joint agent (the theoretical minarchist government) to fund itself without coercive measures.And what if I, who supposedly own it with you, do not wish to authorize an agent to auction it off? On questions like this, you minarchists inevitably show yourselves to be advocating violent thuggery.

  You’re always looking for the magical source of non-coercive funding for your supposed agent, but in the end it always boils down to some form of extortion.

• Published: August 10, 2009 9:07 AM

• RWW
• By the way, if your government is voluntary, why not simply fund it through voluntary payments? The very fact that you seek another method should be a warning sign to you.

• Published: August 10, 2009 9:11 AM

• Peter Surda
• @ktibukI don’t know if you did it on purpose, but in your description you omitted a very important right: the right to trade. I tend to be a minimalist, so I consider it a derivative of the right to use. Maybe that confuses some. However, you seem to ignore it altogether. I don’t see how you can derive the right to trade from the right to exclude.The right to use and right to trade are the basic of economy. Without the right to use, you cannot consume, and die of starvation and dehydration. Without the right to trade, there is no division of labour, no markets, no civilisation.The right to exclude is a tricky one and is a great cause of misunderstanding. For rival goods, its violation automatically interferes with the right to use and/or right to trade as well, therefore such a right cannot be assigned independently. Again, as a minimalist, I can make a simplification by asserting that it is a derivative of the right to use for these types of goods.For non-rival goods, one can violate the right to exclude without violating the other rights. Therefore, one can assign them separately, or alternatively, not assign the right to exclude at all. Our legal system calls these rights to exclude “copyright”, “patent”, etc and are colloquially known as “intellectual property”. The other two rights are not called intellectual property. But they are still in effect, even when applied to non-rival goods. When talking about these two rights with regards to non-rival goods, the term “property” (without the prefix “intellectual”) is the correct one.Because some goods are rival, decisions need to be made with regards to dividing consumption. Some will be able to consume the goods and some won’t. There is no way around it, a solution is a necessity. One approach is to create a legal system that builds rights with regards to these goods.

  For non-rival goods, there is no such necessity. For them, the right to exclude has no basis on the real world. The only explanation I can offer for its existence is the attempt to stretch the legal system because their proponents don’t like the real world.

  Have a nice day,
  Peter

• Published: August 10, 2009 9:51 AM

• Peter Surda
• They say a picture is worth a thousand words, so here it is:http://shurdeek.shurdix.org/tmp/ip2.pngWhether you think IP is good or not, or even if you don’t agree with the concept of property at all, you can’t deny that my picture correctly represents the logical relationships and it’s evident that classical property and IP are disjunct sets.

• Published: August 10, 2009 1:27 PM

• Silas Barta
• Awesome! I’m now past the “they laugh at you” and “they ignore you” stages, and well into the “they fight you” stage! (But where was my courtesy email pointing me to this post?)Stephan_Kinsella’s confusion on this issue is so basic, I can’t make it any clearer, but I’ll try.There is a difference between broadcasting waves, and broadcasting information.Once you grasp this simple insight, Stephan_Kinsella’s arguments fall to pieces. It’s like this:There is no scarcity in broadcasting waves. There IS scarcity in broadcasting information.If you blast radio waves at frequency F0, that does not stop me from blasting waves at F0. *But*, if you try to transmit information at frequency F0, that does stop me from transmitting information at F0 — because the waves interfere.

  So ultimately, “the EM spectrum is scarce” is just a cleverly disguised way of saying, “I would much prefer it if there were exclusive rights in frequencies, because that permits the use of the EM spectrum for transmitting information, which I like.” Ah, but when *that’s* your justification for exclusive spectrum rights, you’re making the same argument that people do for IP.

  None of the citations Stephan_Kinsella listed addresses this problem. In his zeal to always document the lineage of his arguments, Stephan_Kinsella seems to have forgotten that it’s not enough to have citations; they have to be relevant too. And to the issue I’ve raised, they’re simply not. Rather, they ignore the fundamental distinction between broadcasting waves and information. If that weren’t the case, Stephan_Kinsella could quote the analysis that directly addresses my argument, yet there is none.

  With that in mind:

  One Silas Barta keeps claiming that those who support property rights in airwaves cannot object to property rights in IP (see here, here, here, here, and here). My response to this argument, in brief, is: (a) so what? If this were so, then that just means we cannot support property rights in airwaves; (b) and I disagree with this since the airwaves are scarce resources; (c) the libertarian case for property in airwaves is not settled or very developed yet.

  My response, in brief, is:

  a) If your position implies that people should be free to broadcast over each other, that’s strong evidence you made a mistake somewhere.

  b) See above about waves vs. information.

  c) Then the libertarian case for property *in general* is not settled or very developed yet. The issues are not independent, you know.

  And I must object to this:

  This type of situation is not analogous to IP because there is no “idea space” that is scarce and homesteadable. Instead the IP advocates want to install property rights in “the right to make a greater profit by virtue of artificial imposed scarcity,” something like this.

  Can we please drop this? IP is not a “right to greater profit”, any more than physical property is a “right to greater profit”. They’re both rights to exclusivity, full stop. Profit is merely something that emerges from the right to exclusivity, as long as other conditions are met, and so is something usually strived for. But someone can value having IP rights for non-monetary reasons, just as someone can value having property rights for non-monetary reasons.

  Give. It. Up.

• Published: August 10, 2009 1:54 PM

• Brian
• “If you blast radio waves at frequency F0, that does not stop me from blasting waves at F0. *But*, if you try to transmit information at frequency F0, that does stop me from transmitting information at F0 — because the waves interfere.”Radio waves are radio waves. Whether or not they are ‘information’ depends solely on the what is done with them. Nothing has changed in your two supposed cases, they are identical.

• Published: August 10, 2009 2:11 PM

• dj
• Silas,
  I agree with Brian. You can broadcast all the information you want on F0 regardless of any competing broadcast. My F0 broadcast could interfere with your audience receiving the information, but not with your transmission.Regarding this…

  “a) If your position implies that people should be free to broadcast over each other, that’s strong evidence you made a mistake somewhere.”

  …I don’t follow. You seem to be saying that people should not be free to broadcast over one another. How is this different than someone talking over another? Such rude behavior typically interferes with communication, but I wouldn’t want to disallow someone from talking.

  Good point about exclusivity vs. profit. Seems like profit, even if it’s the motive, is not the issue. Does this have any effect other than clarity on Stephan’s position?

• Published: August 10, 2009 2:46 PM

• Stephan Kinsella
• DJ:
  “Good point about exclusivity vs. profit. Seems like profit, even if it’s the motive, is not the issue. Does this have any effect other than clarity on Stephan’s position?”it’s not my position; it’s the implicit view of Silas in his fumbling attempt to justify IP.

• Published: August 10, 2009 3:08 PM

• Russ
• “So ultimately, “the EM spectrum is scarce” is just a cleverly disguised way of saying, “I would much prefer it if there were exclusive rights in frequencies, because that permits the use of the EM spectrum for transmitting information, which I like.” Ah, but when *that’s* your justification for exclusive spectrum rights, you’re making the same argument that people do for IP.”Umm, no. If I were to say “I would much prefer it if there were exclusive rights in *land*, because that permits the use of the *land* for *growing food*, which I like”, that would be more to the point. I can’t grow food on a piece of land if someone else is trying to develop a strip mall on it at the same time, because land is scarce and must be owned exclusively to be useful to anyone. EM spectrum is scarce and must be owned exclusively to be useful to anyone, just like land. Hence, it is an economic resource, and hence it makes sense that the concept of ownership applies, just like with land.As for whether ownership or property is a legitimate concept with regard to something, simply see what happens if you drop the concept of “exclusivity, full stop”. If one doesn’t apply the concept of exclusivity to land (or EM spectrum), these resources are useless. If one doesn’t apply the concept of exclusivity to software or other information, what happens? Nothing much. If I somehow (without violating your rights) get my hands on a copy of Visual BartaLang.NET, which you plan on selling to Microsoft and making a gazillion bucks with, you still have your copy of Visual BartaLang.NET, and can still use it. So, exclusivity is not necessary for software to be useful. I can use my copy, and you can use yours, without any interference resulting. Of course, if I share my copy of Visual BartaLang.NET on the Internet, that might put a crimp in your avaricious dreams. But it in no way reduces the inate usefulness of your copy of the software. Hence, software should not be considered property in the same way that land or EM spectrum is.

• Published: August 10, 2009 3:50 PM

• dj
• Stephan,
  My apologies; I read a bit too quickly. In any case, the point is (interesting to me, but) trivial.Care to comment on the distinction between talking over another person and broadcasting over another…um…broadcaster? I can’t see the difference, and therefore tend to disagree with the homesteading of frequencies. However, is there a point (volume, perhaps?) at which I would violate someone’s right to speech by talking over them? Do we have a right to speak, or a right to be heard?

• Published: August 10, 2009 4:12 PM

• Butt Cheese
• Silas Barta is apparently unable to distinguish between the information transmitted at some
  frequency, and the physical factors of production needed to perform that
  transmission. The latter are scarce, and thus homesteadable, the former are not.
  If I am the first to assemble some factors that broadcast at a particular frequency,
  then subsequent broadcasters at that frequency (using different factors of production)
  thereby violate my ownership rights in the original transmitting factors (because
  they interfere with or jam my transmitting factors). Ownership
  of a particular frequency, if that’s the expression to be used, is not ownership of
  information transmitted at that frequency, but a proxy term for ownership of the
  particular, scare factors of production needed to carry that broadcasting (at that
  particular signal).

• Published: August 10, 2009 4:19 PM

• Russ
• dj wrote:”Care to comment on the distinction between talking over another person and broadcasting over another…um…broadcaster? I can’t see the difference, and therefore tend to disagree with the homesteading of frequencies. However, is there a point (volume, perhaps?) at which I would violate someone’s right to speech by talking over them? Do we have a right to speak, or a right to be heard?”Firstly, I think it depends on where you are doing the speaking. What about noise pollution? If an act of mine causes excessive noise at my neighbor’s house, am I not polluting? This is similar to EM broadcasts. If I broadcast in a certain area, where I own the rights, I am not violating rights. If I broadcast with too much power, and interfere with another broadcast zone somewhere next to me, then I am violating rights.Secondly, the concept of “too much volume” is subjective, but I would think that it would be taken care of by economic disincentives to getting carried away. Suing somebody for noise pollution has risk, and an opportunity cost. Most people wouldn’t do it unless they thought the situation was entirely out of hand.Extreme volumes can kill, BTW.I certainly think a normal person (with functioning vocal cords) has a right to speak, since that is a function of self-ownership. I don’t think we have a right to be heard, because that would be forcing another person to listen, wouldn’t it?

• Published: August 10, 2009 4:27 PM

• Stephan Kinsella
• dj: “Care to comment on the distinction between talking over another person and broadcasting over another…um…broadcaster?”well, as a practical matter, almost all audible communications occur in a small area, usually on one person’s property. So that is handled by the rules set down by the owner. And if the sound by one person is so loud that it does interfere with others’ use of their own property or bodies, then it is a nuisance. In fact I would say that the pirate broadcaster is analogous to the nuisance creator who has a very loud speaker or set of explosions that invade the neighbors’ property.EM waves by contrast extent far beyond most tracts of land.

• Published: August 10, 2009 4:54 PM

• scott t
• on the surface it would seem that em spectrum isnt property….i guess because someone could transmit information on a frequency and another could want to transmit non-information on that same frequency. and they both could do that on existing property with existing property. the market could put its weight behind whichever transmitter was producing the most desired value – information or the information blocker.

• Published: August 10, 2009 6:08 PM

• Andras
• Brian, dj, Russ etc
  What makes information information, beyond other things, that you receive what was intended to be received. Without this the waves are just noise even if they were intended as information at the broadcast.
  I am sure you would not need this basic explanation had you wanted to understand what Silas had clearly said.
  Stop blasting, Start listening.

• Published: August 10, 2009 6:33 PM

• Nuke Gray
• Scott, and others- so what if EM isn’t property? My minarchist argument was that it would need a license to go through Public property, if someone was causing it. Public property would be the roads and parks and Town Hall, and the space in, and above, them.
  Who decides for the public? I would hope that Local Government would decide, being composed of volunteer citizens, who chose to pay to become citizens. Local government would then become a specialised company dealing in roads in one locality, being able to make rules for it’s property in the same way that companies make rules for their properties. Money could come from fees for citizenship, or from issuing licences to vehicles to use your ‘public’ lands and roads, etc. (This is where traditional Anarcho-Capitalism fails- someone will end up owning the roads. So why not just transform what is already there, local government, and give the job to it, with all who want able to become citizens?)

• Published: August 10, 2009 10:09 PM

• Thinker
• I hereby claim the Meter as my sole property, and no one may use the Meter for any purpose without my consent.The EM spectrum is a set of measurements of the frequency and wavelength of light waves. One cannot own a measurement; it is a quality, not an item. I can own a 10 kilogram widget (which is one very heavy widget), but not the kilogram. It is the same with EM spectra-one can own light that one produces, but not the characteristics of that light.

• Published: August 10, 2009 11:50 PM

• George P. Burdell
• The fundamental argument for the property status of the electromagnetic spectrum presupposes that the spectrum is limit. In the past, this may have been true, for transient technical reasons, not for philosophical or “law of nature” reasons. As it stands today, with the use of digital signal processing there is practically no end to the digital spectrum. The IEEE 802.11 protocol is a prime example of this fact, which allows for your wireless computer router that you probably have in your home to connect to hundreds of computers at one time, over the exact same frequency; with no problems of interference, message miss-delivery, or even a need for a single message type or protocol.Also, the debate over the spectrum does not generally ask the question if government (and property rights) are the only answer, assuming that the spectrum is limited, for the sake of argument. Ham radio operators have a standard code of conduct on how to use the small amount of free bandwidth that they can use, why would this voluntary solution not work for everyone else. Large antenna operators (such as tv, public radio, and cell phone providers, et al) would no doubt get together and decide between themselves who would use what frequencies and what other rules they would follow to make sure that they all could coexist. Would that not be in their best interest? Smaller operators would then do the same thing, since the local ham operator is not going to be able to overpower the broadcast of one of the big players, but will instead find a smaller, unused section of the spectrum for their own purposes. Even if the spectrum was so crowded that the small or large players could not have their own piece of the pie, the players in question would no doubt come up with strategies and rules on how to share the spectrum so that everyone could use it.

• Published: August 11, 2009 12:28 AM

• ktibuk
• Peter Surda,”I don’t know if you did it on purpose, but in your description you omitted a very important right: the right to trade”The right to use or trade is implied and derived from the right to exclude which is the main right.As I said, “right to use” or even trade can not be defined, thus they can not be used to define something else, the definition of private property rights.There are many other problems arising from “the right to use” definition.It is argued by IP socialists that, since the owner doesn’t lose his ability to use the original after copying, it is ethically ok to copy.

  This is in no way different than stealing 100 dollars from Bill Gates and claiming that Gates didn’t lose his ability to use his money in general because he has so much money he couldn’t have used that 100 dollars even if he tried.

  If you claim the authors exclusion is not dictated by “reality” but just the whim of the author then you must also claim Gates’ exclusion of 90% of his wealth is pure whim since only 10% is enough for a very lavish life for Gates and his family.

• Published: August 11, 2009 5:58 AM

• Peter Surda
• @ktibuk
  >The right to use or trade is implied and derived from the
  > right to exclude which is the main right.
  I fail to see the logical steps necessary to make this conclusion. If you have the right to exclude (only), it only allows you to enjoy a subset of the other two rights. In other words, it isn’t the right to exclude that is the superset, but the right to use. Even if you insist on making the unified right to exclude (both rival and non-rival goods) a superset and redesign the diagram, there would be parts of rights to use/trade that are outside of that set.To put this into an example, if you only had the right to exclude, you would be able to prevent others from eating your food and drinking your drinks, but you wouldn’t have the right to consume them yourself. It would rot away and you’d die. Eating and drinking is not exercising your exclusion right. Such a right on its own is obviously a very useless right.If you disagree, provide me an example where an infringement on the right to exclude (rival goods) doesn’t infringe on the right to use or the right to trade. Unless you can do it, you logically need to admit that right to exclude cannot be the superset.> It is argued by IP socialists that, since the owner doesn’t
  > lose his ability to use the original after copying, it is
  > ethically ok to copy.
  A simplification, but let’s assume that it’s correct (ignoring the repetitive “IP socialist” ad hominem).> This is in no way different than stealing 100 dollars from
  > Bill Gates and claiming that Gates didn’t lose his ability
  > to use his money in general because he has so much
  > money he couldn’t have used that 100 dollars even if he
  > tried.
  I fail to see the logic in this argument. Indeed, you are not only misrepresenting the right to use, but creating arbitrary valuations. It is not my or your call to value 100 dollars or 10% of Bill Gates’ money. Before, he had X dollars, now he has X-100. He cannot use the 100 anymore, therefore his right to use is infringed. He cannot trade them, therefore his right to trade was infringed. It doesn’t matter what he wanted to do with them.Now, let’s say that I copy MS Windows. Before, Microsoft had X copies of windows, now they have X too. They can still install them or sell them or shred them. I don’t see any stealing happening. In certain cases (regardless of IP), copying might result in a contract violation, but that’s a separate thing.

  What a lot of IP proponents argue however is that because copying (sometimes) decreases the demand for their products and they have to lower the price, that means it’s stealing. That’s a modified version of the labour theory of value (which was refuted by early Austrians). There are an infinite number of activities that decrease the demand for your goods and lower their market price. For example, the car decreased the demand for horses. Does it mean the cars’ manufacturers stole the horse breeders’ property? Desktop PCs decreased the demand for mainframes. Internet decreased the demand for print media. And so on.

  > If you claim the authors exclusion is not dictated
  > by “reality” but just the whim of the author …
  Let’s assume that’s correct.

  > … then you must also claim Gates’ exclusion of 90% of
  > his wealth is pure whim …
  Again, yet another wild jump. You confuse what people want with what the nature dictates. The nature dictates that rival goods cannot be consumed simultaneously, and non-rival can. This is not influenced by people’s wishes or the ideologies they adhere to. Both a socialist and a capitalist need to deal with the first (otherwise they die), but there is no such imperative with the second. There is, evidently, a social pressure to put rules around the second, but from logical point of view it isn’t necessary.

  To summarise: you are making arbitrary jumps in the flow of your arguments and breaking the value-free methodology of the Austrian economic school.

  You are losing your ground and presenting sillier and sillier arguments.

  Cheers,
  Peter

• Published: August 11, 2009 10:29 AM

• Current
• Interference is most certainly not a solved problem.Cognitive radio and open spectrum are ways of ameliorating the problem. They don’t eliminate it.In the same space two links can’t be used at the same time without interference. However it is possible to select when a transmission is performed so that competing transmissions don’t overlap. This doesn’t eliminate the problem though, all it does is to share the available channel between several users. This is what 802.11 protocols – WiFi – does. As the number of users increases performance deteriorates. This isn’t noticeable for a few users but can occur.Many of the bandwidth limitations encountered in practice are the result of technological limits. But nature also sets limits.The similarities between land and radio spectrum are close. Different parts of radio spectrum have particular propagation properties. This makes different parts similar for certain uses.

• Published: August 11, 2009 2:05 PM

• ktibuk
• Peter Surda”In other words, it isn’t the right to exclude that is the superset, but the right to use.”No. Right to use, or right to trade (the right to exclude), are derivative rights.If you have right to use but not a right to exclude, abundance will cause problems as I tried to show above. This is not only an issue of IP it is also an issue when tangible property is abundant.Your (not exclusively yours of course) problem is, you are twisting the derivative right to use, and shaping it to a right derived from the ability to use.Saying, “the author still has the book after I copy it”, is an example of this absurdity.

  “Even if you insist on making the unified right to exclude (both rival and non-rival goods) a superset and redesign the diagram, there would be parts of rights to use/trade that are outside of that set.”

  No.

  Right to use or trade are natural outcome. When an individual has the right to exclude others, he is left with the property or reality as you will. He may do anything he wants with it, and it all depends on his ability. There are no conditions put by other humans on his right to property. He is Robinson Crusoe. He has the absolute liberty. He might not have all the might, the know how and such but he has the liberty.

  That is why property rights are the basis of liberty because it brings the right to exclude other humans.

  Liberty is the condition that no other human may restrict and/or cause harm to one individual. This depends on having the right to exclude other humans. On ones own body, mind and earthly possessions.

  If you think an author doesn’t have the right to exclude others from his novel, you are defending a parasitic relationship where the host has no say over his body and mind (since the book is the product of his body and mind).

  “I fail to see the logic in this argument. Indeed, you are not only misrepresenting the right to use, but creating arbitrary valuations. It is not my or your call to value 100 dollars or 10% of Bill Gates’ money. Before, he had X dollars, now he has X-100. He cannot use the 100 anymore, therefore his right to use is infringed. He cannot trade them, therefore his right to trade was infringed. It doesn’t matter what he wanted to do with them.”

  You are the one that is making arbitrary valuations.

  You think Gates’ wealth – 100 dollars is meaningful, but authors novel – the exclusivity is not.

  If the exclusivity of the novel is meaningful to the author who are you to say that it is not, or it is not in the same league as 100 dollars. And not everything is about money. The author may want exclusivity for profit or he may want it just for sentimental value.

  Do you think if someone found and copied your personal diary, and exposed it, it would be ok when they pointed out to you that you still have you diary?

• Published: August 12, 2009 5:15 AM

• Peter Surda
• @ktibuk:
  You are increasingly making less sense.> No. Right to use, or right to trade (the right to exclude),
  > are derivative rights.
  If a right B is a derivative right of a right A, it means right A is a superset. Logic dictates that the right to exclude is not a superset.> If you have right to use but not a right to exclude,
  > abundance will cause problems as I tried to show
  > above.
  Unfortunately, you have not demonstrated anything. You have yet to show me an example of a violation of right to exclude (non-rival) that at the same time doesn’t also violate the right to use or right to trade. Unless you do it, you can’t claim that these rights are derivative.On the other hand, opposite examples are easy. Say a government forbids you to sell bananas that are not curved properly (happened in the EU once). This way, your right to trade is violated, you cannot trade your bananas as you want. However, your right to exclude is not impacted. That would be impacted if the government forced you to sell the bananas to people you don’t want to sell it to. Also, your right to use (the narrower one) isn’t impacted, that would be impacted if the government forbade you to eat them yourself.> Your (not exclusively yours of course) problem is, you
  > are twisting the derivative right to use, and shaping it to
  > a right derived from the ability to use.
  Logic dictates that my approach with sets is the only correct one. Each of the possible activities can be properly assigned to a set, a subset or an intersection thereof. See the picture that I posted. It is independent of ethics, a proper value-free approach.You are trying to twist the logic so that your precious dogma is uphold. I personally don’t really care whether IP is real property or not or what the ethical implications are. However, logic dictates it isn’t so I have to follow. I used to be an IP proponent once, but found my position intellectually unsustainable.

  > Liberty is the condition that no other human may restrict
  > and/or cause harm to one individual. This depends on
  > having the right to exclude other humans.
  Just another confusion. If you’d abstract your claims into a set theory, you would immediately recognise the flaws therein. Basically, you are claiming identity of different parts of the diagram.

  > If you think an author doesn’t have the right to exclude
  > others from his novel, you are defending a parasitic
  > relationship …
  Once again, you are weering off the main course of discussion. Whether IP is ethical or not is irrelevant. It is not property, and it is not in any way deducible from “nature”. You can, in theory, make a utilitarian (which B&L; refute), a social or a historical argument for IP. But logic, Austrian economics and natural science do not support it.

  > You are the one that is making arbitrary valuations.
  I most definitely am not.

  > You think Gates’ wealth – 100 dollars is meaningful, but
  > authors novel – the exclusivity is not.
  You are confusing the use of word “wealth” as nominal units of currency in once case and market value in another. The first one is an objective measure, the second one not. There is no claim to market value, that’s just the labour theory of value rehashed.

  > If the exclusivity of the novel is meaningful to the author
  > who are you to say that it is not, or it is not in the same
  > league as 100 dollars.
  It is irrelevant whether it is “meaningful”. What counts is whether it can be assessed in an objective, value-free approach.

  > Do you think if someone found and copied your personal
  > diary, and exposed it, it would be ok when they pointed
  > out to you that you still have you diary?
  Obviously, it would depend on whether that person in the course of the copying:
  – violated some of my real property (e.g. breaking & entering, getting a physical hold of my diary without permission)
  – violated any contracts

  Depending on what exactly they did, their activities would overlap with one or more parts of the diagram that I posted earlier. If it only intersected with the set I labelled “IP”, then logically I don’t see anything to claim from them. If it intersected with the left part of my diagram, I would have a claim against them. Current law might see it differently though. What I would do in reality would depend on my assessment of the situation and the comparison of opportunity costs of various actions. Making a claim might seem like a more prudent approach from short term point of view, but could also cause negative PR which might outweight the gain. But this is an empirical question.

  Diagram URL: http://shurdeek.shurdix.org/tmp/ip2.png

  I am sorry, but you need to make a decision here. Either you’ll continue pulling out random claims out of nowhere, or you stop and re-assess your arguments logically.

  Have a nice day,
  Peter

• Published: August 12, 2009 6:42 AM

• ktibuk
• Peter Surda,You have presented no definition of “use” when you claim the right to use is the superset.Please define “use” as an obejctive concept.To own a property means having the right to exclude others from it.Only and only after this fact may come the acts of use or trade. And they don’t have to come either. The owner may choose not to use or trade the property in question.This is what the logic dictates.

  Person A approaches person B who is at that moment standing on a field,

  Person A, “I want to work the field”

  Person B, “No I am sorry. I am using this piece of land and since two of us can not use it at the same time I must exclude you”

  Person A, “So if you weren’t using this land, I could have used it but since you are already using it I can not?

  Person B, “That is right”

  Person A, “Do you mind telling me what exactly are you doing to the field when you say using it.”

  Person B, “I am just standing on the field looking around.”

  Person A, “Can you think of any other activity regarding the field, that can be considered “not using” the field.”

  Person B, “Not really”.

  Person A, “So it is not that you are using the property in some objectively defined way but you are here first and you are using your right to exclude anyone else according to your whims.”

  Person B, “I guess”

• Published: August 12, 2009 8:09 AM

• Peter Surda
• @ktibuk:> You have presented no definition of “use” when you
  > claim the right to use is the superset.
  > Please define “use” as an obejctive concept.
  I define the “use” from an economic perspective as any sort of consumption. In the narrower meaning, it only includes self-consumption, in the broader one, also allowing other people to consume it (trade).> To own a property means having the right to exclude
  > others from it.
  Again, [citation needed]. Logically, it doesn’t follow.> Only and only after this fact may come the acts of use
  > or trade.
  The right to exclude is not sufficient to utilise the right to trade. It merely means that you have a right to refuse a trade you don’t want, but the (positive) right to sell to those you want is missing. You can clearly see that from my diagram. Because of this, the right to exclude cannot be a superset. This is simple logic.On the other hand, the (broader) right to use is very much sufficient for either trade or to exclude third parties (the latter only for rival goods of course). Therefore, it is the superset for (classical) property and a disjunct set with IP.> The owner may
  > choose not to use or trade the property in question.
  Yes. Choose.

  > Person A, “So it is not that you are using the property in
  > some objectively defined way but you are here first and
  > you are using your right to exclude anyone else
  > according to your whims.”
  You are confusing the rights with actual activities. These are two separate things. The right to use means that you can consume the property if you so desire. There is no imperative to actually consume anything. Similarly, the right to exclude is not equivalent with actually excluding anyone. If in your case person B permitted person A to use the field, it wouldn’t mean that he didn’t have the right to exclude, but that he chose not to exercise it.

  Hope that clears it up for you.

  Cheers,
  Peter

• Published: August 12, 2009 8:43 AM

• Daniel Krawisz
• I think that the problem that causes people to look at ownership of electromagnetic frequencies as analogous to intellectual problem is just an imprecise use of language.Strictly speaking, one cannot own a frequency of the electromagnetic spectrum. That just makes no sense, insofar as the electromagnetic field extends across the entire universe, including locations that no human could possibly ever have been to homestead, such as beyond the horizon of a black hole. Owning a frequency, if that phrase were taken literally, would be to claim property rights over the entire universe. It would be similar to the claim, “I own red” or “I own middle c” This is similar to an intellectual property claim because this would also constitute claim to a property right over everything in the universe, since anything in the universe might end up as a physical embodiment of the idea. To think of a libertarian radio broadcaster as “owning a frequency” does therefore seem very similar to “owning an idea”.However, broadcasts do not reach the entire universe, but only a limited volume of space, or at least beyond a given distance the signals are too weak to be detected. Therefore instead of saying that one “owns a frequency” one should say that one “owns the right to broadcast a frequency over a given volume of space.” When we think of it this way, the right of a broadcaster to broadcast seem no different than ordinary property rights because we are now talking about owning something physical and localized, not an abstract property of waves. Geometry is the essential part in resolving the confusion.One would homestead this volume of space in the ordinary way, as Kinsella describes: by being the first broadcaster in this volume, one gains an easement over it to continue broadcasting.

• Published: August 12, 2009 2:53 PM

1. See n. 5 of Kinsella, “On the Obligation to Negotiate, Compromise, and Arbitrate.” [↩]

Re Karen de Coster’s excellent LRC post Resistance to Oppression and Slavery is Hatemongering, my buddy Rob Wicks wrote me:

As far as I am concerned, the only thing that makes me prefer the left to the right is the fact that the left doesn’t pretend that the socialism they support is really “freedom” and “liberty.” The right muddies the waters so much that libertarians have to damn near re-invent the English language in order to convey ideas. I don’t want to have to spend the first 15 minutes of every conversation describing what “capitalism” and “free markets” are because everyone associates the concepts with rightwing socialism.

And my buddy Juan Fernando Carpio added:

Exactly my thoughts. Add to that the fact that the Left does read a book or two a year and the Right is full of fear and basic instincts and you have the whole picture from where I stand.

Rock on!

Old post that I intend to update soon. See also our IP-policy wiki.

Intellectual Property at Mises.org

March 29, 2004 10:53 AM by Stephan Kinsella | Other posts by Stephan Kinsella | Comments (9)

In response to requests from readers, listed below are links to several IP-related articles, most available on Mises.org:

Property/Rights-based Arguments

• Against Intellectual Property, Spring 2001, Vol. 15, no. 2 Journal of Libertarian Studies, Stephan Kinsella
• In Defense of Napster and Against the Second Homesteading Rule, September 4, 2000, LewRockwell.com, Stephan Kinsella (summary version of some of the arguments presented in “Against Intellectual Property”)
• Murray N. Rothbard, Man, Economy, and State and Power and Market, Scholars Edition, liv, 745-54, 1133-38, 1181-86
• Murray N. Rothbard, The Ethics of Liberty, pp. 123?24.

Utilitarian Considerations

• Patents and Copyrights: Do the Benefits Exceed the Costs?, Fall 2001, Vol. 15 Num. 4 Journal of Libertarian Studies, Julio H. Cole
• On the Abuse of Patents as Economic Indicators, Winter 1998, Quarterly Journal of Austrian Economics, Pierre Desrochers
• Ludwig von Mises, Human Action 3rd rev. ed. Chicago: Henry Regnery (1966), chap. 23, section 6, pp. 661?62; see also pp. 128, 364
• George Reisman, Capitalism, pp. 388-89 & 417-20; also 40, 96, 187, 216, 233.

Mises Daily

• Rethinking Patent Law, July 18, 2000, Mises.org, Gene Callahan,
• Patent Wrongs, March 29, 2001, Mises.org, Ilana Mercer
• Cipro Shortage: An Invented Scarcity, October 25, 2001, Mises.org, Ilana Mercer

Further reading

• Links to other IP articles, pro and con, can be found at www.StephanKinsella.com/ip

Here:

Professor Hoppe was sixty on the 29th July. At a private celebration of this occasion in America, he was presented with a Festschrift – that is, a book of essays by those he has influenced. One of these essays is by me, and I republish it here. The whole book can be found here.

On behalf of the Libertarian Alliance, I wish Professor Hoppe a happy birthday, and many more years of happiness and of creative activity.

Here Gabb writes:

Hans-Hermann Hoppe

Professor Hoppe is one of the great men of our movement. He stands in the apostolic succession of vin Mises and Rothbard, and is a person of forbidding achievements. This year, he is 60. In celebration of this fact, his admirers have brought out a Festschrift. I am one of the contributors. You can find my own contribution here. You can find the whole work here.

Love to all –

Sean Gabb
Director, The Libertarian Alliance
[email protected]
Tel: 07956 472 199

http://www.libertarian.co.uk
http://www.seangabb.co.uk
http://www.hampdenpress.co.uk
http://libertarianalliance.wordpress.com

FREE download of my book – Cultural Revolution, Culture War: How Conservatives Lost England, and How to Get It Back
Wikipedia Entry

Great post by Jeff Tucker, Profiting from Sickness, which states in part:

A student at the Mises University, who is surrounded by some of the smartest young lefty students in the country, told me last week that there is no question in his mind that the injustices done in the name of “intellectual property” are not only driving young people away from the idea of property rights in general but are actually inspiring a re-embrace of socialism.

This is why the intellectual stakes are so high. It is urgent that believers in real capitalism separate themselves completely from this false notion of “intellectual property” so that it not permanently discredit the cause of property property, free markets, and capitalism generally. To save the idea of private property, it must be completely severed from impostor forms.

Libertarian Papers, Vol. 1 (2009), Art. No. 34: “Feser on Rothbard as a Philosopher,” by Gerard Casey

Abstract: In “Rothbard as a philosopher” (Feser 2006) Edward Feser harshly criticises the philosophical abilities of Murray Rothbard. According to Feser, Rothbard seems unable to produce arguments that don’t commit obvious fallacies or produces arguments that fail to address certain obvious objections. His criticism centres on what he regards as Rothbard’s principal argument for the thesis of self-ownership. In this paper, I attempt to show that Feser’s criticism fails of it purpose and that Rothbard is very far from being the epitome of philosophical ineptitude that Feser takes him to be.

As reported by Roderick Long:

The Molinari Society will be holding its sixth annual Symposium in conjunction with the Eastern Division of the American Philosophical Association in New York City, December 27-30, 2009. Here’s the latest schedule info:

GVIII-5. Tuesday, 29 December 2009, 11:15 a.m.–1:15 p.m.
Molinari Society Symposium: “Intellectual Property: Is it Legitimate?”
New York Marriott Marquis, 1535 Broadway, Room TBA
chair: TBA

presenters:
Bob Schaefer (independent scholar): “Response to Kinsella: A Praxeological Look at Intellectual Property Rights”
G. Nazan Bedirhano?lu (SUNY Binghamton): “History of the Reification of the Intellect”

commentators:
Charles Johnson (Molinari Institute)
Roderick T. Long (Auburn University)
Jennifer McKitrick (University of Nebraska-Lincoln)

***

Interesting–I wonder if that the same Robert Schaeffer, skeptic, UFO-debunker, Randian (?), and author of Resentment Against Achievement? We shall have to await Roderick’s report!

[AgainstMonopoly cross-post]

As I wrote here, in response to another commentator who had said: “Ludwig von Mises himself was not an anarchist and went so far as to outright denounce anarchism as ‘altogether untenable'”:

Mises was wrong. However, his views on this matter were so close to anarchy to be almost indistinguishable. See Rothbard:

How far would Mises push the principle of secession, of self-determination? Down to a single village, he states; but would he press beyond even that? He calls the right of self-determination not of nations, “but rather the right of self-determination of the inhabitants of every territory large enough to form an independent administrative unit.” But how about self-determination for the ultimate unit, for each individual? Allowing each individual to remain where he lives and yet secede from the State is tantamount to anarchism, and yet Mises comes very close to anarchism, blocked only by practical technical considerations:

If it were in any way possible to grant this right of self-determination to every individual person, it would have to be done. This is impracticable only because of compelling technical considerations, which make it necessary that the right of self-determination be restricted to the will of the majority of the inhabitants of areas large enough to count as territorial units in the administration of the country.

That Mises, at least in theory, believed in the right of individual secession and therefore came close to anarchism can also be seen in his description of liberalism, that “it forces no one against his will into the structure of the State.”

And Mises did believe in a vigorous right to secede, Liberalism pp. 109-10:

The right of self-determination in regard to the question of membership in a state thus means: whenever the inhabitants of a particular territory, whether it be a single village, a whole district, or a series of adjacent districts, make it known, by a freely conducted plebiscite, that they no longer wish to remain united to the state to which they belong at the time, but wish either to form an independent state or to attach themselves to some other state, their wishes are to be respected and complied with. This is the only feasible and effective way of preventing revolutions and civil and international wars. … However, the right of self-determination of which we speak is not the right of self-determination of nations, but rather the right of self-determination of the inhabitants of every territory large enough to form an independent administrative unit. If it were in any way possible to grant this right of self-determination to every individual person, it would have to be done.

See also Ludwig von Mises and the Justification of the Liberal Order, by William Baumgarth (“Mises, then, opened himself up to the claims of the individualist anarchists, who believe such a radical self-determination not only feasible but, on Mises’ own grounds, the ultimate source of social peace.”).

Update: Vijay Boyapati has persuaded me that this is a bit TTH (trying too hard). Mises was not an anarchist.

Still.

Update: Maybe I was wrong. He is pretty darn close to anarchism.

I find the Bill Maher, fake libertarian, to be loathsome. But sometime he makes a good point, as here, where he mocks a health-care reform protestor at “a recent town-hall meeting in South Carolina [who] stood up and told his Congressman to ‘keep your government hands off my Medicare,’ which is kind of like driving cross country to protest highways.”

[LRC crosspost]

David Gordon has a nice tribute to recently-deceased philosopher G.A. Cohen. Writes Gordon: Although he was a Marxist, he took libertarian ideas with great seriousness; and his efforts to come to grips with the self-ownership principle merit careful study. I rate him one of the best philosophers of the past fifty years. He was extraordinarily sharp in argument but, at least judged by the few times I was in touch with him, warm and generous. He was also extremely funny. I will miss Jerry Cohen.”

Others are not so charitable.

[Update: Tyler Cowen on the VAT]

“Tax Reform” is UNlibertarian

Calls for tax reform of a distraction (no offense, my naive, youthful advocacy of a national sales tax). For good material on this see: Rockwell, The Tax Reform Racket; Rockwell, Diversions; Rothbard, The Consumption Tax: A Critique and The Myth of Neutral Taxation; and The Fair Tax Fraud and Flat Tax Folly by Laurence Vance. In Power and Market (ch. 4, Binary Intervention: Taxation), Rothbard lays out a taxonomy of the methods utilized by the state to confiscate private property and how each tax uniquely distorts the free market. And as Rockwell writes in The Tax Reform Racket:

“Is there a need to reform taxes? Most certainly. Always and everywhere. You can always make a strong case against all forms of taxation and all tax codes and all mechanisms by which a privileged elite attempts to extract wealth from the population. And this is always the first step in any tax reform: get the public seething about the tax code, and do it by way of preparation for step two, which is the proposed replacement system.

Of course, this is the stage at which you need to hold onto your wallet.

Bait and Switch

Hardly a day goes by when I don’t receive an email from someone who has a grand plan to reform the tax code, replacing the current system completely, with something else. That something is usually the Value Added Tax or the National Sales Tax. The people promoting this plan long for a world in which they are permitted to keep all the money they make and only the purchasers of goods and services pay.

Now, there are many grave problems with the VAT or the NST, not the least of which is that it would have to be more than 20% or perhaps as much as 40% in order to raise “enough” revenue. Then there are the problems of enforcement. The US would instantly become host to the world’s largest underground economy, which in turn would give a rationale to the central state to invade our businesses, homes, and bank accounts like never before. It would be essentially unenforceable and lead to even more a war of the government against all, complete with more spies, agents, and entrapments of all sorts.

But there is another danger to promoting a VAT or a NST. It might actually convince someone in Washington to give it a try. And instead of replacing the whole tax code, the politicians might try to introduce the new one at the seemingly low rate of 1 percent or 3 percent. If they ever get away with this, look out. It will inch up year by year as the political class discovers yet another way to loot us.

This points to a general danger of the idea of a replacement tax. I hear of these plans all the time. People say, let’s get rid of the tax I don’t like and replace it with one I do not pay. So people will propose getting rid of the capital gains tax and instead increase taxes on inheritance. Or they say, let’s get rid of inheritance taxes and put a higher tax on Americans working abroad. You can think of many of your own variations on this. The danger here is not in advocating the repeal of one tax. That is something we should all favor. The danger comes from advocating a new tax to take its place. If you know the way politics works, you know that the new tax will be enacted and the old one not repealed.

…

Never Trust a Thief

…

For my part, I’m a champion of loopholes, as was Ludwig von Mises. He was attending a conference in the 1950s, at which economists were all denouncing loopholes and he rose to their defense. “Let us be grateful for the fact that there are still such things as those the honorable gentleman calls loopholes,” he said. “Thanks to these loopholes this country is still a free country and its workers are not yet reduced to the status and the distress of their Russian colleagues.”

A loophole is nothing more or less than a chance to keep your own money. It is not a subsidy. It is not tax spending. It is not corporate welfare. It is not a special privilege. It is just a window of freedom. Loopholes should be expanded as much as possible. There should be ever more of them. A completely loopholed economy, where there were maximum opportunities for not paying tax, would finally arrive at the idea of freedom.

Thus do I suggest we never bite when someone dangles on a hook the idea of closing loopholes. And this raises the question of precisely what we should support.

The Lower Tax

The only tax plan anyone should trust is the most simple possible: the one that proposes to lower existing taxes. I really must say this again because it is the most important single point you can remember when evaluating whether to support a tax reform or not: the only trustworthy plan is that one that proposes a lowering or elimination of an existing tax, period. That is the bare minimum. An ideal reform would also propose equivalent spending cuts. In fact, in the most strict sense, there can be no tax cut without spending cuts since we must all pay, one way or another, for the burden of government as measured by spending. But we must leave that aside for now.

…
The Red Flag of Reform

…

What is the end result of tax reform? Well, we have had reformed taxes frequently in the last century, and you need only look at the rise in federal revenue to see where this has gotten us: ever more of our earnings going to Washington, ever fewer choices on how we use what remains.

Let me close with a proposal that we abolish the income tax. It took in $873 billion last year. If we cut the budget by that amount, we would end with a completely gutted federal budget, right? Actually, that is not true. We would end up with a federal budget of about $1.5 trillion, where it was in the last year of Clinton’s second term. If anyone thinks that the federal government was too small back then, I can only recommend a complete education in economics, politics, and the truth about human freedom.

Thus do I end this talk with a call, not for reform, but for an end to the income tax. It should be replaced with nothing at all. In any case, that would be a good first step.”

Update: See also Rothbard, “Big-Government Libertarians,” Rothbard-Rockwell Report (Nov. 1994):

Opposition to taxes in fact, is being weakened across the board. Cato has recently come out in favor of the well-financed campaign to eliminate the “personal income tax” and to replace the revenue completely by a national sales tax. The Old Right, or older paleo call that I remember fondly from the days of my youth, was to repeal the Sixteenth Amendment and to abolish the income tax, period. The current variant is a very different proposition. In the first place, it falls for the slogan first foisted on the conservative movement by the supply-siders and then adopted, left and right, by virtually all economists and alleged statesmen: that whatever happens, and whatever changes are made in the tax laws, that the changes must be “revenue neutral,” that is, that total federal revenue must never fall.

It is never explained how this axiom got smuggled into alleged conservative or free-market doctrine, or why in Heaven’s name total tax revenues must never be allowed to fall. Why in blazes not? To the common answer that we have to worry about the federal deficit, the proper reply, which no one seems to make any more, is to cut government spending by huge amounts; and that means, of course, the old-fashioned definition of “budget cut” as an actual cut in the budget, and not its current meaning of a cut in its “rate of growth” or a cut from some presidential or congressional projection, based on inevitably shaky assumptions, of future growth in spending. As pointed out recently in the Mises Institute’s Free Market newsletter there are several grave flaws in the idea of replacing the personal income tax by a national sales tax.

In the first place, contrary to the alleged “realism” or “pragmatism” of this proposal, it will not, in practice, result in repeal of the income tax, but rather in adding on of the sales tax to the current rotten tax structure. Secondly, if the “personal” income tax were eliminated, the corporate income tax would remain. In that way, the hated IRS Gestapo would remain intact, examining records and poking into lives. Moreover, a 30-percent sales tax would also require heavy enforcement tactics, so that a new division of the IRS would soon be poring over the records of every retailer in the country. It seems to me that to foresee these consequences does not take a Ph.D. or extensive theoretical acumen, which leads one to question the bona fides of outfits advocating this program.

Update: See Lowering Taxes Without Spending Cuts