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Intellectual Property: As usual, Rothbard gets it right

Intellectual Property: As usual, Rothbard gets it right

On stealing BitCoins, selling brain patterns, and copying people

There has been a fierce debate going on recently about intellectual property (IP) between libertarians, led by Stephan Kinsella on the anti-IP side and Bob Wenzel on the pro-IP side. In recent years, the momentum has shifted toward the anti-IP side, with prominent thinkers such as Stephan Kinsella, Hans-Herman Hoppe, Jeffrey Tucker, and others, coming out against IP. In the pro-IP side corner sits Bob Wenzel, Paul Cwik, but also Murray Rothbard and Ludwig von Mises.

In this article, I will argue that, as usual, Murray Rothbard gets it right. Then I will address Kinsella’s arguments, based on his treatise “Against Intellectual Property,” Copyright 2008 Mises Institute . That’s right, Kinsella’s book is copyrighted.

So, what is Rothbard’s view?

In chapter 16 of the Ethics of Liberty, Rothbard writes:

Violation of (common law) copyright is an equivalent violation of contract and theft of property. For suppose that Brown builds a better mousetrap and sells it widely, but stamps each mousetrap “copyright Mr. Brown.” What he is then doing is selling not the entire property right in each mousetrap, but the right to do anything with the mousetrap except to sell it or an identical copy to someone else. The right to sell the Brown mousetrap is retained in perpetuity by Brown. Hence, for a mousetrap buyer, Green, to go ahead and sell identical mousetraps is a violation of his contract and of the property right of Brown, and therefore prosecutable as theft. Hence, our theory of property rights includes the inviolability of contractual copyright.

A common objection runs as follows: all right, it would be criminal for Green to produce and sell the Brown mousetrap; but suppose that someone else, Black, who had not made a contract with Brown, happens to see Green’s mousetrap and then goes ahead and produces and sells the replica? Why should he be prosecuted? The answer is that, as in the case of our critique of negotiable instruments, no one can acquire a greater property title in something than has already been given away or sold. Green did not own the total property right in his mousetrap, in accordance with his contract with Brown—but only all rights except to sell it or a replica. But, therefore Black’s title in the mousetrap, the ownership of the ideas in Black’s head, can be no greater than Green’s, and therefore he too would be a violator of Brown’s property even though he himself had not made the actual contract.

In chapter 10 of Man, Economy, and the State, Rothbard writes:

Turning now to patents and copyrights, we ask: Which of the two, if either, is consonant with the purely free market, and which is a grant of monopoly privilege by the State? In this part, we have been analyzing the economics of the purely free market, where the individual person and property are not subject to mo¬lestation. It is therefore important to decide whether patents or copyrights will obtain in the purely free, noninvasive society, or whether they are a function of government interference.

Almost all writers have bracketed patents and copyrights to¬gether. Most have considered both as grants of exclusive mo¬nopoly privilege by the State; a few have considered both as part and parcel of property right on the free market. But almost everyone has considered patents and copyrights as equivalent: the one as conferring an exclusive property right in the field of me¬chanical inventions, the other as conferring an exclusive right in the field of literary creations.[93] Yet this bracketing of patents and copyrights is wholly fallacious; the two are completely different in relation to the free market.
It is true that a patent and a copyright are both exclusive property rights and it is also true that they are both property rights in innovations. But there is a crucial difference in their legal enforcement. If an author or a composer believes his copy¬right is being infringed, and he takes legal action, he must “prove that the defendant had ‘access’ to the work allegedly infringed. If the defendant produces something identical with the plaintiff’s work by mere chance, there is no infringement.”[94] Copyrights, in other words, have their basis in prosecution of implicit theft. The plaintiff must prove that the defendant stole the former’s crea¬tion by reproducing it and selling it himself in violation of his or someone else’s contract with the original seller. But if the de¬fendant independently arrives at the same creation, the plaintiff has no copyright privilege that could prevent the defendant from using and selling his product.

Patents, on the other hand, are completely different. Thus:
You have patented your invention and you read in the newspaper one clay that John Doe, who lives in a city 2,000 miles from your town, has invented an identical or similar device, that he has licensed the EZ company to manufacture it. . . . Neither Doe nor the EZ company . . . ever heard of your invention. All believe Doe to be the inventor of a new and original device. They may all be guilty of in¬fringing your patent . . . the fact that their infringement was in ig¬norance of the true facts and unintentional will not constitute a de¬fense.[95]

Patent, then, has nothing to do with implicit theft. It confers an exclusive privilege on the first inventor, and if anyone else should, quite independently, invent the same or similar machine or product, the latter would be debarred by violence from using it in production.

We have seen in chapter 2 that the acid test by which we judge whether or not a certain practice or law is or is not consonant with the free market is this: Is the outlawed practice implicit or explicit theft? If it is, then the free market would outlaw it; if not, then its outlawry is itself government interference in the free market. Let us consider copyright. A man writes a book or composes music. When he publishes the book or sheet of music, he imprints on the first page the word “copyright.” This indicates that any man who agrees to purchase this product also agrees as part of the exchange not to recopy or reproduce this work for sale. In other words, the author does not sell his property out¬right to the buyer; he sells it on condition that the buyer not reproduce it for sale. Since the buyer does not buy the property outright, but only on this condition, any infringement of the con-tract by him or a subsequent buyer is implicit theft and would be treated accordingly on the free market. The copyright is there¬fore a logical device of property right on the free market.

Rather than the nebulous term “idea,” I will use the terms “pattern,” as in “pattern of information.”

Thus, Rothbard believes that an expression of a pattern in a tangential format (e.g., a book), can be sold with a restrictive covenant on the title, preventing the buyer from copying the pattern of words. If the buyer then trades or gifts the book to a third party, that restrictive covenant remains, because the buyer cannot impart ownership rights onto the book that he did not initially have. The third party is thus bound by the restrictive covenant. It does not matter whether the third party is aware of the restrictive covenant, just like it does not matter if you buy a house to which someone else already has title. That’s why there is title insurance. Wenzel used the analogy of a rental car. If I rent a car and then sell the car to you, you do not own the car, because I did not have title to the car to sell in the first place.

Now, Rothbard does not address why patterns can be owned. However, we can deduce that, since Rothbard believes that ownership comes from mixing one’s own labor with a resource, ownership of a pattern comes from mixing one’s own labor with the previous patterns that were used to create the new pattern. But what gives you the right to use previous patterns? Well, not all patterns are scarce. You have the right to use a non-scarce pattern and mix it with your labor to create a scarce pattern. For example, I can use English words, which are not scarce patterns, to write a novel, which will be scarce. Furthermore, even with scarce patterns, you can have the right to use a pattern and derive new patterns from it, while still lacking the right to copy the pattern.

Now let’s get to Kinsella’s arguments. Stay with it, I saved the best for last.

1) Kinsella argues that distinction between which IP is protectable and which IP is not protectable is arbitrary. For example, why are novels protected by copyright, but not fashion designs or recipes? Since we can’t make a rigorous distinction between what is protectable and what is not, there is something wrong with the concept of IP.

Well, you can certainly copyright a book of recipes, or a book of fashion designs. So I would say that fashion designs and recipes can be copyrighted. Why is it that it seems reasonable to copyright a book of recipes, but not reasonable to copyright a single recipe? It appears to be a question of length and relates more to what the private law, as evolved through the market process, would set as a reasonable standard. For example, how much smoke pollution would you have to endure from your neighbor before you could sue him? The answer is somewhere between one molecule of smoke and total inundation of your property, and the legal system would sort that out through the market process. The same process would apply to IP.

2) Kinsella argues that IP gives you partial ownership of other people’s property, because an IP owner can prohibit them from performing certain actions with their own property. Therefore, IP violates other people’s property rights.

There are many examples of restrictions on property that are consistent with libertarian principles. Some examples of property restrictions include land easements, restrictive covenants, equitable servitude clauses, rental agreements, and leases and licenses. Furthermore, my property sets limits on what you can do with your property. You cannot drive your car over my lawn.

Here is an example straight from Rothbard ( Rothbard, Murray N. (1997). Applications and criticism from the Austrian school.):

Most of us think of homesteading unused resources in the old-fashioned sense of clearing a piece of unowned land and farming the soil. ... Suppose, for example, that an airport is established with a great deal of empty land around it. The airport exudes a noise level of, say, X decibels, with the sound waves traveling over the empty land. A housing development then buys land near the airport. Some time later, the homeowners sue the airport for excessive noise interfering with the use and quiet enjoyment of the houses.
Excessive noise can be considered a form of aggression but in this case the airport has already homesteaded X decibels worth of noise. By its prior claim, the airport now "owns the right" to emit X decibels of noise in the surrounding area. In legal terms, we can then say that the airport, through homesteading, has earned an easement right to creating X decibels of noise. This homesteaded easement is an example of the ancient legal concept of "prescription," in which a certain activity earns a prescriptive property right to the person engaging in the action.

Thus, there is nothing inherently wrong with restrictions on property.

3) Kinsella argues that you cannot own what is in someone else’s head.

Why not? Most libertarians will agree that you should be able to sell your organs. Thus, if I want to sell Joe a kidney, I can do so. But what if I want to rent him my kidney? Say Joe is waiting for an organ donor and is tired of being on dialysis. Joe knows it will take about a year for him to get a new kidney and we agree that, for a princely sum which he can afford, I will rent him my kidney for year. I, of course, put in all kinds of clauses in the contract about how he is to treat my kidney while it is in his body. Now my kidney is in Joe’s body and I have partial property rights to parts of his body. Note that this can extend to beyond my kidney. I can stipulate that Joe can’t drink alcohol while he has my kidney, which puts a restrictive covenant on his liver.

We can extend this little thought experiment to the brain. Just imagine that science has advanced to the point that we can transplant brain tissue. For example, I can rent Joe part of my awesome frontal cortex. Now, that may seem silly, but how about renting out a memory chip that interfaces with brain tissue and stores a certain skill set? Or, assume I develop the ability to rewire people’s brains to give them a particular engram. An engram is a term used for a set of neural connections that gives someone a particular skill. Let’s say we sign a contract that I give you an engram for fighting skills, but I stipulate that you can’t use your fighting skills to start a fight with an unwilling participant. This puts a restrictive covenant on your brain.

So, there is nothing inherently wrong with the possibility of owning what is in someone else’s head.

4) Kinsella argues that ownership is based on the first occupier, and is not based on mixing one’s own labor with the resource.

Kinsella argues against Rothbard’s, and Locke’s, criterion of homesteading. Rothbard quotes Locke (John Locke, "An Essay Concerning the true original, extent, and end of Civil Government"):

Though the earth and all inferior creatures be common to all men, yet every man has a "property" in his own "person." This nobody has any right to but himself. The "labour" of his body and the "work" of his hands, we may say, are properly his. Whatsoever, then, he removes out of the state that Nature hath provided and left it in, he hath mixed his labour with it, and joined to it something that is his own, and thereby makes it his property.

Kinsella disagrees with this basic homesteading principle espoused by Rothbard. Kinsella argues that whosoever is the first occupier of a resource is the rightful owner, and that labor has nothing to do with it. But, as Cwik points out, isn’t an act of occupation an act of labor? Furthermore, who has more claim on a piece of land? A first person who simply walks across it and leaves, or a second person that follows him and tills the land? Now, we can argue that the person that walked across the land and then left homesteaded the land and then abandoned the property, but that does not address the fact that the walking is an act of labor. Without labor, you cannot homestead.
How does this point apply to IP? Kinsella argues that creation of a thing, which is an act of labor, is not sufficient to demonstrate ownership of the thing. For example, if you create a statue out of a block of marble that you do not own, you do not own the statue. Rather, the owner of the marble owns the statue. In this, Kinsella is correct.

However, there are many examples of mixing one’s labor with a non-occupied, non-scarce resource to create a scarce resource. For example, I can make art out of garbage. This is the case with IP. I am mixing my labor with a non-scarce resource (that is, non-scarce patterns), to create a new scarce pattern.

5) Kinsella argues that scarcity is defined by rivalry, and scarcity is the basis for ownership. Ideas are not rivalrous and therefore not scarce and thus cannot be owned. “The very possibility of conflict over a resource renders it scarce.”

A scarce good is not necessarily rivalrous. A good is rivalrous if consumption by one consumer prevents consumption by another consumer. For example, you and I both can’t eat the same apple, can’t use the same bicycle, can’t get a massage from the same person at the same time, etc. But there is a class of goods known as club goods, wherein consumption by one person does not preclude consumption by another person. Examples of club goods include museums, movie theaters, cable television, or a boat ride. Imagine 10 people on a boat, enjoying a sunny day. Another boat comes by, and the captain offers the 10 people a ride on his boat for $100 each. They tell him to beat it. But if their boat hits a rock and starts to sink, and the captain comes back and offers them the boat ride again, they will happily pay for the boat ride. Furthermore, all 10 people are able to consume the boat ride. Yet the boat ride is clearly scarce.
Furthermore, imagine Robinson Crusoe. He has no rivals on his island. Yet he still has to make decision about scarce resources. Furthermore, what does he do with his time? As Cwik points out, time is also scarce.

Thus, scarcity is not defined by rivalry. Rather, scarcity is determined by supply and demand. Something is scarce if there is insufficient supply to meet all demand. This is why air is not scarce. It's in great demand, but there is sufficient supply. How do we know something is scarce? Someone is willing to trade for it (i.e., It has a price. In the example of Crusoe, he is willing to trade his time for it). But doesn't a price imply a bidding contest and thus rivalry? No, because there can be just one prospective buyer. But isn't there rivalry between the buyer and the seller? In other words, isn’t it necessarily the case that there is a conflict, resolved by the trade, as to who will consume the good, the buyer or the seller? No, because there are goods that can be consumed by both the buyer and the seller. For example, I can let you join me in my hot tub for a beer. Now we are both consuming the hot tub.
So, can a pattern be scarce? I submit that if there is insufficient supply of copies of a pattern to meet the demand, that pattern is scarce.

Having addresses some of Kinsella’s arguments, let’s get to the heart of the matter. Can you own patterns?

My view, which I believe is consistent with Rothbard, is that one homesteads something by mixing one’s own labor with a previously unowned resource. The resource can be scarce, as in land, or not scarce, as in air. For example, I can fix nitrogen from the air to create fertilizer. In the case of IP, I am mixing my labor with non-scarce patterns.

Let’s take a look at some revealing examples.

1) What is a BitCoin? My understanding is that a BitCoin is essentially a private key, and he who knows the private key can control the BitCoin. Thus, a BitCoin is a pattern. Are BitCoins scarce? Can they be owned? What about a brain wallet? A brain wallet is a sufficiently large pattern, such as a very unlikely, long sentence, which can be memorized and stored in someone’s brain, and which represents a BitCoin. Can you own a brain wallet? Can you own a brain wallet stored in someone else’s brain?

2) What about your DNA pattern? Do you own your DNA pattern? Can someone else copy it? If you store it on a disk and someone steals that disk and gives it to a third person, can that third person copy your DNA pattern and use it to clone you?

3) Who are you? Questions of the soul aside, most people would say that you are your body. But what does that mean? Are you a collection of cells? Cells die and new cells are born. Most of the cells in your body were not there 10 years ago. Now, you can argue that neural cells do not get replaced and that you are your nervous system. But neurons replace molecules all the time. DNA repairs itself with new molecules all the time. If parts of you are continuously being replaced, why are you still you?

What about your memories, your consciousness, your self-awareness? Where does that come from? Again, questions of the soul aside, most people would say that your consciousness comes from the pattern of neural interconnections in your brain. Notice that I said pattern. It is not the neurons themselves, but how they are interconnected. You could replace the neurons one by one with new neurons, or artificial functional equivalents, and you would still be you. The essence of what is you is not the neurons themselves, but how they are interconnected. You are, at the heart of the matter, a pattern.

While I doubt this is possible, suppose we develop the technology of being able to upload our consciousness into a computer and download it into a new, cloned body. Now, there are all kinds of philosophy of mind identity questions that this brings up, but I don’t want to focus on those kinds of issues right now. Rather, I want to posit, if your consciousness is stored in a computer, and someone gives a copy to a third party, should the third party be allowed to make copies?

You are not just your body. You are a pattern expressed through your body. You are pattern that is continuously evolving, by mixing your current labor with the previous version of yourself. Do you own yourself? I hope you say yes. To deny intellectual property is to deny self-ownership.



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all right then

Please define what you mean by labor, because if gardening is not labor, I don't know what is.

“The welfare of the people in particular has always been the alibi of tyrants.” — Albert Camus

If you're gardening in my yard

If you're gardening in my yard, I would be within my right to stop your "labor" because of your aggression onto my scarce resources.

Scarcity is where the need for private property arises! For things that need not be scarce, there need not be ownership. If all it took was a little labor to arrange non-scarce goods (& patterns) into scarce goods (& patterns), who are you to tell someone they can't do it?

Not this crap again

First off, this is just plain wrong: "In recent years, the momentum has shifted toward the anti-IP side."

I don't buy the anti-property rights bullcrap Kinsella and his ilk spew. Property rights are rights and are defensible under constitutional law. If you have problems with the Constitution, then nothing further need be said.

What is property and what is not?

The whole idea of what is property and what isn't... it's just how a group of people (usually: population of a country) define it (usually: democratically or by decree of some dictator).

If a country decides tomorrow that pencils can not be property anymore, then pencils aren't. It's that simple. What the consequences are I don't know, maybe nobody is going to buy a lot if you can't keep them, but that is separate discussion.

So... the question should be... "Is it desirable for a country to support the concept of IP, yes or no?"

The rest of the questions are moot.

Here's my reply:

Let us discuss this purely from the legal enforcement paradigm derived from English & American Common Law as it exist today, as what I want or prefer IP to be, or not, is irrelevant (for this portion of the discussion), however better I believe it to be, or not.

If you're an AnCap, like myself, none of whatever Powers the State presumes it has an inherent 'right' to do ___, or are delegated it, are moot, from a purely individual sovereignty POV, as well as morally and ethically speaking, as no one born post-Founders' era has been a signatory to the original Constitution, even as a contract, if you want to be consistent about current legal contractual legal framework; how can anyone be violating an implicit contract that they never signed?

A contract is supposed to be transparent and voluntarily agreed to by all signatories. The entire Rousseaun concept of "Social Contract" is a commie socialist statist con, anyway.

But for the sake of discussion, the parameters and definitions we can all relatively understand and discern are: well... definition of terms, 'legality' under current STRICTLY Constructionist Constitutionalist paradigm (not the bastardization of the Constitution, post Ante-Bellum, nor the more preferred private-law society framework), enforcement efficacy, nature of contracts, nature of defendant & plaintiffs, nature of real measurable harm, what determines a 'harm,' mens rea, excusable unintentional violations, property, theft, etc. And later on, the more abstract: what is just, moral, right, inefficacy vs. functional practicality, what is preferred going forth, etc.

First, do you agree that what Rothbard says is not Gospel, but merely a reference point?

If so, then let us proceed.

Your 1st Rothbard snippet:

Violation of (common law) copyright is an equivalent violation of contract and theft of property. For suppose that Brown builds a better mousetrap and sells it widely, but stamps each mousetrap “copyright Mr. Brown.” What he is then doing is selling not the entire property right in each mousetrap, but the right to do anything with the mousetrap except to sell it or an identical copy to someone else. The right to sell the Brown mousetrap is retained in perpetuity by Brown. Hence, for a mousetrap buyer, Green, to go ahead and sell identical mousetraps is a violation of his contract and of the property right of Brown, and therefore prosecutable as theft. Hence, our theory of property rights includes the inviolability of contractual copyright.

First of all, Mr. Brown has no control over what a third party post-"First Sale" obtain-er does with Mr. Brown's initial design of the mousetrap, as the post-"First Sale" participants are NOT signatories to the copyright he may have established with the first buyer.

If you gonna argue based on contractual compliance, you need signatories and mechanisms to enforce it. Since private arbitration is only between signatories (and as I opened establishing the case to discuss this from a status quo legal paradigm, not my preferred private law society), you'd have to resort to govt protection racket to violently enforce it.

The post-1st sale buyer has ZERO obligations to Mr. Brown, or his imaginary sales terms.

Oh hey, and guess what?

Even the disastrously Constitutionally clueless current SCOTUS agreed on re-affirming "First Sale" doctrine: 11-697 Kirtsaeng v. John Wiley & Sons

Though of course, that decision does not further clarify what can or cannot be done with the actual content changes of those books in that case, beyond the scope of currently accepted enforcement of IP.

Second. You cannot be prosecuted for theft, when a product never belonged to you, in the first place, as Rothbard erroneously argued there; you'd have to establish that IP, by the nature of IP itself, has always belonged to you.

Whenever the music or film industry says they "lost $500Million in sales due to counterfeiting and Napster et al, and theft" etc, you have to know that they're really stretching their case based on previous sales quarter figures.

Now, what business do you know that can guarantee that you'd have sold within this fiscal quarter, the exact amount or more (or even less), than the last quarter?

They're claiming loss based on projections? Really? Yes, I 'get' that it's a commonly accepted practice in some insurance and actuarial circles, but is that really economically sound, just, or even ethical?

Hey then guess, the Feds claiming 9% employment is real, when it's more like 22%, or it makes sense that they exclude food & energy costs with their numbers. LOL.

Clearly, not. This is the same moronic thinking process behind Clintonite a-holes claiming they left GWB with a surplus. Um, no. Assholes, you left us with your phony PROJECTED surplus, kinda like every fictitious number coming out of damn near every govt entity.

Hey, guess by that standard, I should be able to walk into any bank and make a convincing case for them to lend me $200million with the promise to double it, because I value myself supremely and I project that I can earn $5 billion over my lifetime and thus can easily make back 'their' $200million in 2months, simply because I can project based on my own calculations. LOL.

Now back to Murray's Mr. Brown: say in week one of the 1st production run of Mr. Brown's mousetraps, he had a breakdown in his assembly line, his prototype room had an unfortunate roof collapse, and he desperately needed a sample to show a new bulk buyer from Walmart coming to town.

Mr. Brown then remembered that he personally sold a long time friend Mr. Pink a copy of his famous mousetrap at a significant discount. Well, Mr. Pink decided to re-gift it to his nephew, so it was sitting on the kitchen table gift-wrapped, while he was away on biz trip.

Now, Mr. Pink and Brown are close friends, but not close enough with Mr. Brown to have left him his house keys. Growing desperate, Mr. Brown breaks kitchen door of his 'friend's home, to steal what was legitimately sold to Mr. Pink, to 'retrieve' the pristine copy to show his Walmart buyer.

Question 1: Did Mr. Brown illegally trespass? Yes.
Question 2: Did Mr. Brown steal from Mr. Pink? Yes, or...er...no???

Now, can Mr. Brown claim that the mouse trap he sold his friend Mr. Pink will perpetually belong to him, just because he can claim IP rights under the implied copyright protections via 1st-sale?

If not, how could Mr. Brown claim ANYONE can "steal" his product, as theft, especially for the copies of the product that he legitimately completed the 1st-sale transactions on?

If Rothbard's Mr. Brown claims that he OWNS the designs of the mousetrap in contractual copyright in perpetuity, then he should be able to take back ANY copies of the mousetrap even though the copyright nor sales contract clarifies that the product was being sold as a lease, not a final sale.

Because THAT, would be the only way that Rothbard's Mr. Brown could claim that someone else changing his initial design to sell it as their own, is equivalent to "stealing."

Does Mr. Brown own the design changes made by others, even if they're based on his initial designs, just because he designed the first version?

Fcuk NO!

If yes? Well, there goes the entire industrial revolution! LOL.

Then there's the issue of what measurable metric constitutes a significant change in the initial design to be considered a wholly different product? A 0.00001% difference? A 10%? How about 51%?

Then what would you consider a 51% change in design??

It's all arbitrary.

One cannot STEAL what never legitimately belonged to you, or once you let it go to someone else.

And, I'd proffer that once the product left the factory and was sold legitimately as a first-sale, whatever happens to that product post-1st sale, Mr. Brown has ZERO claims on that product.

Otherwise, every product Apple Inc. has ever produced would be perpetually considered theirs.

Plus most point-of-sale products' warranties are implied terms, not a physically signed, notarized, equal and consensual contract. At best, all point-of-sale products' terms are like software EULA; 'here are the manufacturer's terms, by opening/buying this product, you agree to x, y, z, etc.'-type deal. Not a contract, contract, in the traditional sense, even though, they're legally equally recognized in most cases.

Rothbard's being wholly inconsistent, here:

But, therefore Black’s title in the mousetrap, the ownership of the ideas in Black’s head, can be no greater than Green’s, and therefore he too would be a violator of Brown’s property even though he himself had not made the actual contract.

How can you violate terms of a contract you never signed?
There is NO legitimate claims to hierarchy of ownership or 'supremacy of lien holder,' beyond the voluntary signatories/participants in the initial "First Sale" contract, as one would in mortgage liens.

To claim otherwise is absurd! "though he himself had not made the actual contract." -- that, is very much what a Rousseaun socially implied contract-adherent would say, not an AnCap, my dearest Murray! .o/

Here's a real estate corollary: mineral rights, vs. land deed.

If I buy mineral rights to your land, but not the land itself, it's kinda like claiming I have perpetual copyright on the content recorded onto the silver platter of the DVD, but not the physical DVD disk itself.

Say I created a technology that can recognize when the DVD has been played and attempted to be copied. And, say the copyright and the EULA terms on the packaging of the DVD, as well as the intro warning screen on the DVD when you play it, clearly forbids the 1st sale end user from copying it, at all.

Then the question becomes how do I make sure that you are complying with my copyright terms? I have no way of knowing. But since I built in the 'copy-sensor' I have to be able to physically check it to make sure. Does that 'grant me the right' to invade your home to make sure you're complying?

Well, the RIAA's answer is that they can 'virtually' do it essentially, with your ISP providers, based on your IP address.

So the question is, if I bought mineral rights to your land, but not your land, would I be trespassing if I snuck in at 2am to extract oil and gold under your land?

Again, same with Mr. Brown & Pink; sure, I'd be trespassing, but not 'stealing.'

LOL! How you like that distinction? LOLOLOL

Now, would I be trespassing on your private property if my friend was your next door neighbor and he let me 'angle-drill' under your land in which I own the mineral rights to?

Contractually, NO.

But generally? Ethically? Morally? YES, I would be trespassing.

Then I'd counter with: "UNDER your land" is not trespassing "ON your land."

See where this goes?

So if you're gonna claim and agree with Rothbard that you can perpetually own a copyright which is embodied in every recording medium that can encapsulate 'patterns of info' like a DVD, then I should be able to check the veracity of that copyright; you're basically saying that I should be able to check in on you to make sure you're maintaining the terms of my copyright, even if you legitimately completed a first-sale.

Because what is a "right" when it cannot be exercised in full?

So, according to you and Rothbard, non-signatory 3rd party post-1st sale buyers should also make themselves perpetually available for inspection.

Otherwise, it's not really a "right," is it, if I can't exercise that right? Right?

Hm...awefully sounds like the RedCoats and their 'surprise random inspection checks' and illegal quartering within Colonists home to enforce the Stamp Act, you know, the reason why there's a Third Amendment to the Constitution to prevent it?

How you like that, Rothbard and you siding with the RedCoats. Yikes!

Rothbard is creating a completely fictitious, non-existent right of perpetual copyright.

Just because he lays out the case for it, does not make it so.

However, as Rothbard clearly states and illustrates that he knows the definition and the differences between copyright and patent, and proceeds to clarify that indeed any 'copied improvements' embodied in later iterations of the 'original' design, is based on a contractual protection, not solely based on some none existent presumptive paradigm that alludes somehow that the very nature of IP itself precludes that it can be and should be protected by its sole existence; his own conclusion essentially admits and clarifies that his own understanding of IP is essentially strictly contractual, not based on the Common Law concept of freestanding inherent "Right."

Now this?

Patent, then, has nothing to do with implicit theft. It confers an exclusive privilege on the first inventor, and if anyone else should, quite independently, invent the same or similar machine or product, the latter would be debarred by violence from using it in production.

Patent being protected via statist protectionist racket aside, Murray, by clarifying the functions of a patent there, in context of the previous section on how a copyright would function via contractual component (which is what Kinsella was referring to when he told Wenzel that Rothbard was using copyright in context of a patent even though he clarified the difference), Rothbard's basically admitting that for the implicit non-contractual 'contract' implied 'right' of a copyright to even work, it has to be assigned a contractual component to essentially perform like a patent, as he describes in the above section.

Sadly even our sweet dear 'ol Murray states that it's acceptable to violently, forcibly prevent someone from manufacturing a similar mechanism EVEN IF the product was conceived wholly independent of the original patent holder.

I'm kinda dismayed how little emphasis was on the time-component was missing in the entire discussion:

Frankly, in the internet age, at this current tech/cost trajectory and the veracity of the 100th monkey effect is such that, the time-gap/lapse between one inventor inventing a similar mechanism to another independently coming up with same or similar solutions will be shortened to the point of irrelevance that enforcement of patents itself will become damn near impossible.

Ever heard of Cody Wilson? 3D Printing?

Which is why, while yes, I 'get' that this is how the current statist-protectionist racket enforces patent violations:

Neither Doe nor the EZ company . . . ever heard of your invention. All believe Doe to be the inventor of a new and original device. They may all be guilty of in¬fringing your patent . . . the fact that their infringement was in ig¬norance of the true facts and unintentional will not constitute a de¬fense.[95]

I whole-heartedly disagree that honestly not being made aware that another guy invented something similar and patented it, "will not constitute a defense."

It simply won't matter, once 3D printers become as ubiquitous in every home as a desktop ink jet printer, and particle metallurgy and polymer recipes becomes such that structural weakness inherent in MIM metals and ABS plastics will become irrelevant.

Ever heard of graphenes?

It's like what couldn't you do?

When the cost of DiY manufacturing of carbon nanotubes drops below $5000 from the current $100,000~2mil range, and don't need an expensive kiln to 'grow' them??

Literally, the sky's the limit.

As for your breakdown of Kinsella, I actually agree with you here: "Thus, scarcity is not defined by rivalry."

That indeed is true. I wouldn't define it as that, either. Although to be fair, in the Wenzel interview, I actually believe Kinsella clarified that it can be a byproduct of rivalry, but not solely defined by it. I'd have to go back to be 100% certain.

As for the "homesteading principle" I've always had problem with it. What human alive anywhere can 100% legitimately claim 1st ownership? We can't. Then you introduce into the mix...'well beyond 1776...we can discern...' then you're relying on statist colonialist paradigm of ownership based on post-Conquistador date, at least as it pertains to the Americas.

That said, as things exist now, generally I can see it. But the homesteading principle is sloppy frankly, if all it takes is me 'working' what naturally exist to own it, unless that land and resources weren't deeded it specifically under Queen of England's Admiralty Land patent racket. Where the line of demarcation begins and end to determine what can be homesteaded or not is murky, and becomes worse, when you take statist land patent/deed legal doctrine out of the land ownership equation, as it stands now.

Suffice it to say, I generally agree with Kinsella on your 1), 2), 3), and kinda 4), as per my qualms with 'homesteading' doctrine as it stands.

But dude, no really?

3) Kinsella argues that you cannot own what is in someone else’s head.

Why not? Most libertarians will agree that you should be able to sell your organs. Thus, if I want to sell Joe a kidney, I can do so. But what if I want to rent him my kidney? Say Joe is waiting for an organ donor and is tired of being on dialysis. Joe knows it will take about a year for him to get a new kidney and we agree that, for a princely sum which he can afford, I will rent him my kidney for year. I, of course, put in all kinds of clauses in the contract about how he is to treat my kidney while it is in his body. Now my kidney is in Joe’s body and I have partial property rights to parts of his body. Note that this can extend to beyond my kidney. I can stipulate that Joe can’t drink alcohol while he has my kidney, which puts a restrictive covenant on his liver.

We can extend this little thought experiment to the brain. Just imagine that science has advanced to the point that we can transplant brain tissue. For example, I can rent Joe part of my awesome frontal cortex. Now, that may seem silly, but how about renting out a memory chip that interfaces with brain tissue and stores a certain skill set? Or, assume I develop the ability to rewire people’s brains to give them a particular engram. An engram is a term used for a set of neural connections that gives someone a particular skill. Let’s say we sign a contract that I give you an engram for fighting skills, but I stipulate that you can’t use your fighting skills to start a fight with an unwilling participant. This puts a restrictive covenant on your brain.

So, there is nothing inherently wrong with the possibility of owning what is in someone else’s head.

Your answer to 3) is wholly absurd. Aside from the fact that if we progress to the point of keeping your organ alive in someone else's body and have it back, as a 'rental,' even the current technology is such that it'd be less hassle and easier to simply clone yours with stem cells based on 3d printed structure and let the organ grow, and sell it to him but custom design the size to fit in his body. LOL. Sounds SciFi? The future's already here:

http://www.livescience.com/27280-3d-printed-ear-created.html
http://www.designboom.com/technology/3d-printed-organs-from-...
http://now.uiowa.edu/2013/02/ui-researchers-developing-3d-pr...

If you want to avoid, 'that motherfucker's still got my kidney I lent him, and he's two months late on rent!'- questions? Follow the 3d organ printing trends, so you don't unnecessarily have to stress over the terms of a contract for your organ rental biz! LOL

Besides what if he gets robbed and yours is shot in the process? Or he goes agpeshit and turns into a junkie after couple of delayed payments?

That said, back to the more complex issue of the mind...

1. Can you actually quantify owning what's inside someone's mind?

Eh, no.

2. Can you separate one thought or a specific idea from another, as it resides within someone's mind?

FCUK no, Mr. Repo Man.

3. Is mind, thought, idea, consciousness, an organ? Can you prove it, not as a measured byproduct, but an originator?

FCUK NO, Mr. Repo Man.

You cannot own, what you cannot isolate to extract it.

4. Can you extract a single thought or idea, among other ideas in that person's head like some bar-coded SKU?

FCUK NO.

5. Can you honestly make the case that you can take the entire mind of a person as a collateral for not relinquishing that single thought/idea that you and a voluntary party signed with you on, within a live person?

LOL. Really? No, seriously?

You're implying lit signals equal to origins of function; current scientific paradigm conflates what area of the brain 'lights up' with where the function or thoughts originate. Read Dr. Norman Doidge. EVERYTHING 'scientists' claim to know about the brain, the mind, the consciousness itself, are utter speculation. This is what happens in a reductionist society who cannot see matrix of interconnected systems that work as a whole, and attempt to assign a-priori assumptions of functions based on one's previous erroneous understanding, without knowing that you're basing proceeding algorithms based on previous erroneous models. You know, kinda like modern non-Austrian economists and their models??

This extends to:

2) What about your DNA pattern? Do you own your DNA pattern? Can someone else copy it? If you store it on a disk and someone steals that disk and gives it to a third person, can that third person copy your DNA pattern and use it to clone you?

When the highest scientific mind labels what they don't know as junk DNA? Yeah, see where cloning gets ya. If what it took to create anything was simple rearrangement of DNA, regardless of how they're spliced or where they came from, we wouldn't have so many problems with GMO 'food' now, would we?

You are not just your body. You are a pattern expressed through your body. You are pattern that is continuously evolving, by mixing your current labor with the previous version of yourself. Do you own yourself? I hope you say yes.

I agree, but for someone who believes the mind and single idea within that mind can be "owned" by someone else?

"To deny ACCEPT intellectual property is to deny self-ownership."

Here's the actual meat of the discussion. LOL Pardon, read on if interested. If not, others still may find it interesting.

Definitions

For the sake of discussion, regardless of one's present preference or future preference of just enforcement (or none at all) paradigm regarding IP, let us define a few things, before we move forth.

First of all, can we agree that the veracity of an idea or a concept or definition is wholly independent of, and not predicated upon the opinions, interpretations, or treatise by one or more authors, or intellectuals?

If so, let us agree that this is a debate about what IP should/should not be, is it moral/immoral, right/wrong, and is it inconsistent/consistent with Non-Agression Axiom and/or libertarianism as a whole, and why?

Not what Rothbard, Mises or Ron Paul, Kinsella, or Wenzel define it as, aside from taking their work as reference, right?

Now some parameters: if you're an AnCap, you wouldn't want state enforcing IP to begin with and would most likely consider it immoral. And if you do believe IP, let us agree that you are approaching this from a minarhist to Constitutionalist libertarian, or a libertarian consequentialist POV, or if you're an enigma within an enigma and ride the AnCap & Minarchist divide, you may consider the very concept of IP as being copacetic with property rights and you want to defend/enforce it strictly from a private law POV, and you want to explore what are its implications, are the issues & pitfalls that should be explored.

As such, for the sake of discussion, let us consider the debate concepts premised upon currently enforced statist paradigm, which has been around for ages, and one in which we can somewhat objectively critique to illustrate our points, before we move on to what it should, or should not be:

1. for patent or copyright to be, it must be "scarce"
2. patent: mechanical
3. copyright: written and/or visual
4. do we agree that NOTHING is truly wholly original?
5. do we agree that there is no objective 100% copy of something, even a mechanical item? There is no technology, even ones manufactured on an assembly line geared for interchangeable parts; what is the objective variable? 0.001th of an inch difference in dimension, structural curves? Or, how about 0.0001% difference in function?

Well, since a physical item is more easy to distinguish, more apropos of IP discussion, let us consider a cinema goer's experience.

No 'duplicated' movie, can be by definition be a copy, for the very real fact that you cannot physically copy anything 100%, even digitally, in reality. It'd be like calling all physical objects a solid, when nano-scopically, they're not.

What determines a copy? 51% likeness? 99%?

We as humans supposedly have 1~5% variations in our DNA from chimps and various primates, and even less than 1% differentiates us from each other.

By the current IP paradigm, then doesn't that make ALL humans copies?

Suppose one would counter that by arguing that DNA/bio-matters are different! Well...now, the IP statist regime claims that they can patent individual DNA that they 'discovered' (as in, it already publicly existed in nature, before some white-robed MonSatan cultist came and wanted ownership of it using US Gvt monopoly) NOT invented, should the bio-matter barrier to IP definition not consistently apply, if the very concept of IP is to be applied universally?

If a definition of something cannot be applied universally, consistently, you don't really have a definition, now do you?

So, in finality, there is no 100% pure copy. You CANNOT copy an original period. No law can objectively define what a copy of an original, is.

6. Allow me to play Devil's Advocate from an IP-regime statist's POV: the morality/immorality, justness/unjustness does not equal lawful or legal, nor negate the veracity of a concept. Just because IP/patent/copyright is currently being enforced by a state mechanism does not negate the idea of IP/patent/copyright, itself. Just like the intellectual concept of 'common defense.' Just because currently, the police is a tax-theft funded state monopoly, does not negate a voluntary or commercial contractual employment of security services.

True.

But, the concept of scarcity is really the lynchpin for why libertarians argue over IP. If we can't agree that scarcity is necessary to establish a 'need' for IP protection, from those wishing for it, we cannot go forth on this discussion.

So if you accept that scarcity is what defines a 'need' for IP, from your POV, then you must prove that ___ is scarce or not.

7. For something to be considered theft, do you agree or disagree that a given property must have once belonged to the original claimant, 1st, or not?

8. If yes. Then ALL IP laws are null and void, in terms of theft-protection aspect of the argument.

Why?

Now elaborating on the cinema goer example: say this particular theater chain, let's call it IP-CineMax Theaters, that is particular about EULA type 'voluntary' stipulations whereby the mere act of stepping into a place or opening a package constitutes you are agreeing to the terms of the individual or corporation that is providing the product, software, or movie/music experience, or in this case, on back of each printed ticket, the terms are clarified in fineprint.

So in the example of IP-CineMax, a ticket purchaser is voluntarily agreeing to a contract that he/she agrees to not film ANY movie being shown in the physical IP-CineMax space with their own personal or someone else's recording equipment/device to make a visually or audio-recorded 51%+ copy in content, length, likeness, common narrative of that said film, and if you do record it with your own or other's device, you're in VIOLATION of that said voluntary contract.

Now even if the filmgoer were to violate that 'ticket-contract' and recorded a movie being shown in that theater, can we agree that, that's a contract violation, NOT a theft of property?

But what if someone snuck into the theater without buying a ticket?

Since he never agreed to the ticket contract, nor was shown the 'enter this premise, then you agree to ____'-implicit 'contract,' the contractual obligation does not technically apply to him.

Now suppose, the person who illegally snuck into the theater saw that the original ticket-contract-bound moviegoer was violating the terms and recorded the film with his smartphone, but the smartphone's screen was so clear, that the guy who snuck in, decided to record the recording of the film, instead of what was being projected on the screen.

But, even then, aside from the physical trespass of the theater by sneaking in, when that person 'copies' something off of that said filmgoer who is in contract violation, is that theater trespasser also guilty of that IP contract violation, too?

Ask a DA, yes.

But, technically, even under current legal-regime?

Of course not.

He may be a IP-CienMax theater trespasser, not a contract violator, because 'ticket-contract' was only between the theater operator and the first sale ticket customer, and its stipulations do not extend beyond the original sale.

Even the disastrously Constitutionally clueless current SCOTUS agreed on re-affirming "First Sale" doctrine: 11-697 Kirtsaeng v. John Wiley & Sons

So, do we agree that even with current IP regime, one can never accurately state that an IP-violation is at best a first-sale contractual violation, NOT a theft?

Here's realistic corollary:

Say in violation of original sale and contractual agreement, a electronics store owner plays an original claimant's visual product, ie a film, in full view of passing storefront traffic on a 'public' sidewalk on a 60" flatscreen TV. What contract are passerbys violating if they were to stand outside the window of the store and record the said movie on their recording devices?

The agreement was only agreed upon between the original purchaser (electronics store owner) and the seller (film studio), or on the package of the product, if opened to be be played, the purchaser agrees to terms x, y, z. So EVEN IF the store owner violates the terms of purchase, the 3rd party was NEVER a signatory. So for you to enforce 'copyright' it MUST be enforced via state mechanism.

Now even if in a private law society, how are you gonna rationalize hiring a private security firm from enforcing 'theft' contractual violation of a film, by that said pedestrian sidewalk passerby of the electronic store who filmed a 'copy' of that said film, when the private arbitration services can only judge the original seller and the original buyer, who were the only signatories to the binding contract?

Could you morally justify hiring a non-corporatist version of something like BlackWater to enforce a non-signatory 3rd party violator, before your arbitration?

If you are an AnCap/voluntaryist, the above realistic example is why one cannot be a voluntaryist and be for IP, period.

Now if you claim to be a minarchist, or Constitutionalist who fully believes in state agency enforcement of existent IP 'legal' framework, sure. It may be argued to be immoral and violent, but at least you'd be consistently violent and immoral. But you cannot be a voluntaryist and be for IP, period.

IP fails the scarcity test as well.

Say I have friend Sallie, who is a script writer, who sat in on a meeting with five other studio-contract script-doctors that introduced them to an 'original' author Mr. Green with a 'novel' concept: a love triangle serial killer cannibals who run a diner selling human meat, who open up a chain of such diners.

The contract for the meeting was the usual non-disclosure agreement (NDA): do not discuss the content of the meeting to anyone. But such NDA's typically exempt YOU, the very person signing the NDA from talking about the content of the meeting...to yourself. LOL!!!

But unbeknownst to Sallie, while she never directly told anyone about the content of the NDA-stipulated writers' meeting, when she sat at a public park bench that she often goes to, to 'zen-out' and think outloud, Mark, a 'friend' of Sallie's friend (Hannah), whom Sallie does not know at all, nor does Mark know Sallie, overheard Sallie simply thinking outloud about the concept, while sitting at two benches away from her.

Mark, remembering that his friend Hannah was in the film biz, playfully floated 'his' film idea to Hannah. Hannah being somewhat of a B-movie horror-comedy genre auteur, she got inspired: how about, instead of a love triangle, but two generations of family of cannibal serial killers, who owned a hipster Charcuterie/dry aged meat joint which served hybrid meat mixing in their their illicit human kills, rest to organ blackmarket, then decided to branch out and franchise it, among their other family members?

Now, say by a chance, both Sallie and Hannah were at a party that their mutual friend Eddie invited them to. Now, while catching up, Hannah tells Sallie that she has an awesome original idea, but never mentions that her friend Mark told her about the film idea he overheard at a public park. Now Sallie, being a horror film buff herself, and eager to get her career off the ground, thought it'd make a cool indy flick.

Now, she admits to herself that Hannah's idea sounds somewhat similar to the NDA-stipulated closed meeting she had, but since she signed the NDA, didn't want to confirm to Hannah that such similar film project idea had been optioned to the studio in which she was a contract employee. And being somewhat familiar with legalese, as long as she never admitted to hearing about a similar idea to Hannah, Sallie would not be violating the terms of her NDA.

Now, Mr. Green's film project option run its course, and the studio passed on the project. But using her contacts, Sallie was able to secure financing for her and Hannah's 'new' film idea about a chain of family of cannibal serial killer run Charcuterie hipster joint. And the film hits the box office and is a moderate success.

Mr. Green catches wind. Does he have a case to sue Sallie, Hannah, Mark, the Studio?

Try proving that. No mens rea could be proven beyond a shadow of a doubt, in any of the parties involved.

Now, how much of the Charcuterie-chain film idea was a copy of the original? Cannibals, yes? Love triangle? No. A chain of eateries? Yes. But a chain of diners? No. Do they serve illicit meat? Yes.

So...what scarcity? Irony is, the minute the idea is made public, no matter how many NDA's are signed, it does not become scarce anymore.

Let us consider an extreme possibility. If the mere exposure of an original idea constitute copying, then are you going to enforce what others are aware of, WITHIN their own minds??

Mr. Repo Man?

EVERYONE who sat in on that Mr. Green's 'original' film script idea were exposed to his ideas, no matter what the NDA stipulated as a contractual prohibition in willful disclosing of the idea. But, the contract only protects disclosing and using that idea without permission by the original signatories, not anyone else.

But as Mark and Hannah in the example shows, the idea got out. The mere 'exposure' of the 'original' already negated the scarcity of the idea. And because Mr. Green's film idea was able to be modified by Hannah, and also claim originality it instantly became non-scarce, and in fact un-original.

Was the 'copy' of the original film idea a byproduct of inspiration to the plot, or 'stealing' the central core of the idea? What if the 'copycat' screenwright Hannah claims that the core theme to her was "the family," not the fact that they are a family of serial killer cannibals who served meat?

If you were to attempt to enforce that, you'd be venturing into the arbitrary legal realm of victim defining what constitutes 'harmed party,' we're now entering the prior-restraint 'hate speech' zones.

If you called a really really bitchy waitress a "biotch," and because of the girl's abusive past/childhood, unbeknownst to you and contrary to her tough public persona, the way you delivered that word, one which in any other context would have to be at the lowest of the low on the ladder of 'offensive' verbal flourishes by any modern standards, have much graver personal connotation to the bitchy waitress. So, IF & When she decides to sue you and her employer (when do they ever NOT sue whomever is perceived to have money?) in states like California for harassment and destructive work environment, you are literally at the mercy of the 'victim' to adjudicate whether a defendant has or has not committed a 'crime' along with the veracity of the level of 'harm' committed against her.

And, there are plenty of scorned women, and bullied dorks among the current batch of utterly PC-brainwashed emasculated sheeple populace who'd easily side with the waitress over your glib 'hey, without bullies, where would all the great comics come from?'-drive by commentary, at the jury box.

As we all know, 'word-harm' is really wholly dependent on the intended audience's level of internal insecurity and emotional maturity.

Likewise, in such IP cases, are we then to assume that what constitutes 'violation' to be dependent on what the defendant claims was the core idea that inspired a similar story, and not from the 'original creator' of that said idea? Should it matter more that Mr. Green considers cannibal to be the lynchpin factor in his case, when to Hannah and Sallie, the fact that the cannibalized meat Charcuterie hipster joint owning Family of cannibals was more important? Does the arbitrary hierarchic assignment of importance in literary concept determine the level of violation?

As you can see, it can go on and on and on... This is no way to have a consistent legal framework.

As you can see everything becomes subjective. How do you objectively enforce an inherently a subjective matter??

So, clearly, IP fails the scarcity test, the originality test, even the 'copy' test. It's a legal fiction.

It is not a property, in the traditional physical sense; a physical object manifested from the ideas of its creator, that first physically belonged to that original creator in the first place.

IP is a faux/pseudo-property.

You can argue till the cows come home as to what constitutes a variation on your personal definition of 'idea' as "patterns of information." But, here's where you run into problems with that definition: how much change in your idea of "pattern of info" for that idea to be considered DIFFERENT than your collection of pattern of info?

What percentage of variation constitutes a wholly different idea, enough to have your voluntary contract signatory to agree to such terms?

Is 0.00001% enough difference? Or, how about 10% How about 49% variance. What are the legally consistent metric to gauge what constitutes a percentage of variation? What is the constant, or variable, used to determine WHAT a variable that determines the percentage of difference, is??

As you can see, you're never gonna let a voluntary party transparently agree to your terms, under the arbitrary reality for gauging what amount of variation in a given idea constitutes enough difference to be considered a 100% different idea, concept, without tricking them.

In math, even 0.000000000000001% variation makes that a wholly different number (unless you do function & limit considerations).

Since you defined your understanding of idea as a 'patterns of info' well, if I change 0.00001% of 'your' idea to make it more preferable to me, since even that 0.00001% of idea changed your patterns of info, then under your definition, I should be able to claim that 'your' idea just became mine, as long as that said 0.00001% variation is applied.

And I make no claim of ownership to any third party who observed me make that change in the pattern of info.

Then, the question to you would be: how the hell are you going to enforce a 0.00001% modification to your 'original' pattern of info, when someone who changed that pattern of info weren't a signatory to an agreement, with you, or me?

EPIC FAIL.

And, as someone whose background was in industrial design, let me make this clear: patents and copyrights are costly, and impedes innovation and promote perpetual monopoly (especially if you interpret Rothbard to 'allow' perpetual copyright or patent).

Those who never worked in design have very little clue as to how easy it is to change something to 'evade' it. Worse, what legally constitutes difference between 'original' product vs. a copy, is completely arbitrary.

For the clearest example, you want to know what Glock had the gall to trademark?

The blockiness of a slide!!!

http://www.thefirearmblog.com/blog/2012/08/20/glocks-tradema...

The mark consists of the three dimensional overall configuration of a semi-automatic pistol having a blocky an squared-off shape as viewed from the side, the front, and the rear. The vertical lines at the rear of the slide indicate ridges. The stippling is a feature of the mark and not intended to indicate color. The dotted lines indicate features that are not claimed as a part of the mark. Neither the shape of the notch on the rear sight nor the circular shape of the interior of the barrel are claimed as a part of the mark. The shape of the trigger guard and the shape, location, and a position of the trigger safety tab are claimed as a part of the mark, but no claim is made to the shape of the trigger separate from the trigger safety tab.

LOLOLOL!!!

If a pistol's slide is a purely squarish block, it's considered Glock's. But as soon as you machine a crease, a few serrations, you can evade the Glockiness of a Glock!

This is why someone like Kinsella who IS a professional IP attorney can tell you objectively, why ALL IP 'laws' are fucking ridiculous!

Worse, it fails with its core purported Raison d'être: to promote innovation.

Do you know why almost no one bothers to copyright or patent fashion design? The time value component. Your idea literally becomes obsolete and unoriginal, once you make your designs public. Often, while a dress is still laying on the sewing machine, or a fitting station.

But of course, that's not gonna stop statists. Now when you have Fucky Schmucker on your side, you KNOW you're on the wrong side of history:

http://www.fee.org/the_freeman/detail/fashion-design-and-cop...
http://huntnewsnu.com/2010/04/copyright-protection-for-fashi...

http://reason.com/blog/2012/04/19/reasontv-too-much-copyright

Well, let us consider the more technological IP option.

Ever heard of Compaq?? https://en.wikipedia.org/wiki/Compaq#Introduction_of_Compaq_...

Legally speaking, the Compaq Portable PC was NOT considered a copy or a clone of the IBM Portable PC because it was conceived/designed by hiring a third party to reverse engineer it, even with an intent to essentially 'infringe' upon IBM's 'original' design (got mens rea much?), just because it was manufactured using 'off the shelf' commercially available components.

Now, that real, historical, factual example is far more intentional in their attempt to 'copy'/'clone' someone else's idea and patterns of info, than my Mr. Green/Sallie/Hannah/Mark example ever could be.

To re-emphasize, there is NO real 'legal' litmus for what constitutes 'enough difference' between an 'original' vs. a 'copy' to objectively define how much percentage of difference, or what exact 'formula' can be used to differentiate the original vs. a 'copy.' And no, the porn definition of "when you see it, you'll know it" can NEVER be justly applied, as it's wholly subjective and arbitrary.

And when you can't legally define what you want to enforce, just WTF are you attempting to enforce?

How you gonna protect or enforce what no one can objectively define. More specifically, what no legalese authors can define, or have been able to define, justly?

Now, even if your very legal framework were antithetical to its original intent proclamation to inspire innovation, when your status quo legal framework can be easily evaded even from a statist's POV, as was the case with my screenplay and Compaq example, then WTF is the point of punishing people under your monopoly corporatist protection racket??

What moral libertarian can claim to enforce IP, and consider themselves adherents to the Non Agression Axiom/Principle?

You can't.

Because the only 'universal' enforcement paradigm for protection of IP under your idea as well as yours and Wenzel's interpretation of Rothbard's, is the State.

Thus, anyone who promotes IP as property right, is being inconsistent and immoral.

PS. By the way, I HAVE copyrighted multiple versions of a mechanical design that would've taken much longer and costlier to receive individual 'mechanical patents.' But the thing is it technically only 'protects' the visual representations of that said mechanical design, NOT the mechanical design itself. It just prevents others from patenting it, because the idea is now public; so in the end, I ironically cannot patent those variations of my own designs that I alone came up with, because now I made them public. See how it works. But given enough time and resources, there are very few designs that could not be evaded.

If you pay attention to any particular industry where time to market cycle is short like electronics and fashion, patents almost become moot. Oddly, a company like Kyocera who perfected ceramic blades will be around because they're the best at it, despite the fact that any large company can buy the same equipment and competent personnel. No different than why every quality clothier prefers the Japanese YKK zippers, even though the patent ran out on zippers long ago, because they simply manufacture the best most toughest bad-ass mofo longest lasting zippers on the market.

Quality and reputation, in the end, is the best 'IP protection' there is. The Market has long proved it, in fact ALWAYS has proven it, and continues to prove it, everyday.

When companies like Apple and Samsung waste anywhere between 15~35% of their annual expenditure paying their army of lawyers to dicker over weak software 'patents' you know that it's clearly not working.

Predictions in due Time...
http://www.youtube.com/watch?v=zGDisyWkIBM

"Let it not be said that no one cared, that no one objected once it's realized that our liberties and wealth are in jeopardy." - Dr. Ronald Ernest Paul

hey Ancap

Thanks for your thoughtful comment. Can you create a separate post for it? It's just too long for me to address in a reply. The whole thing would just become an annoying mess to read. Thanks!

“The welfare of the people in particular has always been the alibi of tyrants.” — Albert Camus

"If it's worth saying, it's

"If it's worth saying, it's worth editing." —Me

That entire post could be boiled down to something readable. As it is now, I don't have the time to pore over every detail. It's like an L. Ron Hubbard novel completely spun out of control.

Rothbard is inventing rights

Rothbard is inventing rights here. Imagine if going back in history the inventor of the wheel had patented it. Now Grog, seeing Groc's wheel copies it. Should Grog have had the the right to use violence against Groc to stop him from using the wheel? Also say Groc never wanted to sell his idea at all, he just wanted to keep others from using it? Imagine the stifling affect this would have had?

The fact is it takes TREMENDOUS resources to protect IP. I'm talking about the tremendous resources that only a massive government can provide. By definition, that massive government will also curtail all other kinds of individual rights.

IP is not property, Rothbard is wrong here. If you have an apple and I have an apple and we each give each other an apple, we both still have one apple. If I have an idea and you have an idea and we each give each our idea, we now each have two ideas. The advantage simply comes from being the originator, or first to market. IP simply breeds massive corporations who stifle innovation instead of thousands of smaller companies all collectively putting their collective power into building a better product.

Thomas Jefferson is the one who actually gets it right well before Rothbard's contradictory fumbles of logic:

"It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance.

By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property.

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.

Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.

–Thomas Jefferson, letter to Isaac McPherson, 13 August 1813
http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html"

"In reality, the Constitution itself is incapable of achieving what we would like in limiting government power, no matter how well written."

~ Ron Paul, End the Fed

Patents have a limited life span

thus a limit to exclusive ownership.

go ahead and patent the wheel 5000 years ago. the patent ran out and is dead 4983 years ago.

Until Disney lobbyists

...Until Disney lobbyists encourage Congress to extend the life span AGAIN....

6 minutes. Do it --> http://www.youtube.com/watch?v=tk862BbjWx4

why are you mixing patents and copyright?

they are completely different things.

They are both limits on concepts

.

They are both time limited

They are both time limited protections on implementations of concepts. Huge, huge difference you and a coterie of others continue to misidentify.

I see problems

I haven't read the whole piece and probably will not get to it tonight, but there are problems with your argument right away. I skipped all the stuff about Rothbard, because it literally does not matter what Rothbard said or what Kinsella or Wenzel thinks he said -- the task is to justify the noxious concept of "IP."

You said:

1) Kinsella argues that distinction between which IP is protectable and which IP is not protectable is arbitrary. For example, why are novels protected by copyright, but not fashion designs or recipes? Since we can’t make a rigorous distinction between what is protectable and what is not, there is something wrong with the concept of IP.

It is indeed arbitrary, and there are plenty of other examples besides just fashion designs or recipes. But let's look at your answer to this.

Well, you can certainly copyright a book of recipes, or a book of fashion designs. So I would say that fashion designs and recipes can be copyrighted.

If you write a book, you automatically have a copyright in it, thanks to the current copyright statute. What's in it for this purpose is immaterial. The "copyrighted" thing in your example is a book.

Why is it that it seems reasonable to copyright a book of recipes, but not reasonable to copyright a single recipe?

It does not seem reasonable to me.

It appears to be a question of length and relates more to what the private law, as evolved through the market process, would set as a reasonable standard.

But copyright is a statutory creation, not something that evolved from a market process.

For example, how much smoke pollution would you have to endure from your neighbor before you could sue him? The answer is somewhere between one molecule of smoke and total inundation of your property, and the legal system would sort that out through the market process. The same process would apply to IP.

I am not a law-talking dude but your example sounds like it would be classified under trespass, which has zero to do with either copyright or the larger notion of "IP."

That's all I got now, but if your other points are this shaky, I wouldn't expect your argument to hold together very well.

exactly

I had the same observations

exactly

I had the same observations

The smoke example is an analogy

about how matters of degree are determined on the market. Of course it has nothing to do with IP. I was using it as an example of how the market determines thresholds for legal action.

“The welfare of the people in particular has always been the alibi of tyrants.” — Albert Camus

Oh crap!

My mother had a garage sell last week! She must be an aggressive criminal.

Although I don't remember signing a contract with Nike when I bought those shoes... I guess its some sort of vague implied contract. But still, she is quite evil, after all she is cutting into Nike's profits!

Since when is every purchase only a transfer of partial ownership? Does this not require an explicit agreement, instead of an implied, state regulated rule? If I design a new invention using an ACME pencil, is ACME entitled to royalties from my invention? Obviously not, but my question is what principle says they are not? The principle is that when they sold me the pencil, they sold me full ownership of the pencil, unless explicitly stated otherwise.

"Vague Implied Contract" says it all

Rothbard was completely out to lunch on this one. If people are serious about copyrights they need to make people sign an *explicit* contract agreeing to not duplicate the product upon purchase. The reason they won't is because they know it would repel customers. "I have to sign a contract just to buy a damn cd?! Fuck it then." So instead they try to sneak it in in small print on the package and claim that this constitute an agreement that's 'implicit'. What if it said "You have to kill yourself upon purchase" at the bottom of the package? Would everyone who bought the album be legally obligated to commit suicide?

you agree to implied contracts everyday

When you walk into Hair Cuttery and sit in a chair, did you sign a contract that you will pay for a haircut? No. Can you walk out without paying after you get the haircut? No. Then why do you have to pay? Because it's UNDERSTOOD. The courts can rule on what kind of implicit contracts are understood in everyday life.

The same thing with buying something that say "copyright." When you buy it, it's understood you have agreed not to copy it.

“The welfare of the people in particular has always been the alibi of tyrants.” — Albert Camus

You just answered your own point about the Nike shoes

with the "unless explicitly stated otherwise." The point was really quite silly in that you are trying to make a point against the pro-IP position by implying it means someone couldn't rightfully sell their shoes at a garage sale. Nike would lose sales if they did in fact require that no one can resell them as a condition of the original sale--would you buy them instead of other firms' shoes if so? These sort of statements pop up routinely in anti-IP arguments claiming every utterance, letter, etc would be strictly copyrighted. Just because aspects of copyright law are ridiculous doesn't mean the pro-IP people endorse everything in copyright law such as criminal sanctions. I assume most pro-IP people believe only in civil remedies for violations. [And just to state it, I am still on the fence on this but lived for decades passively accepting copyright legitimacy and I don't change my mind at the drop of a hat (the first time I hear an argument).]

It is a silly argument, but...

It makes a simple point. The line drawn by the pro-IP side is abitrary, and requires a central authority, as opposed to a principle, to declare what is and is not acceptable. My argument simply points out a logical extreme (although the ultimate extreme is complete totalitarianism). If there is not a principle involved in determining when it should/should not be implimented and to what degree, one opens the gate of hell for government involvement and decision making.

Wow! Thanks, I think I'll have to switch sides now.

So, IP copyrights are down with private property rights, but .... are you saying that Patents are not?

And help me understand your reply to the Jefferson example of what is and what is not, property. That is the Candle and flame analogy.

And could you say something about Brands, ...logos such as nike and alike.

And finally, you mentioned Bitcoins,...this is off track of IP & Patents but do you have a reply to Karl Denninger's article claim that bitcoin, is really a bitCON because of its faults?

Thanks, and I eagerly wait for more of your thoughts, rrr patterns. (uncopyrighted and freely given of course).

Treg

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Hi Treg

Yes, that is Rothbard's view. Copyrights are in, but patents are out. However, you can copyright an invention.

When you say brands and logos, you are talking about trademarks. Trademarks are relatively uncontroversial, because when you violate a trademark (e.g., by putting a Nike logo on your shoes), you are committing fraud against the buyer of the shoes. It would be analogous to filling a gold bar with tungsten and selling it as gold.

I have not read Karl Denninger's article in detail yet, but from what I understand, he is a greenbacker and not an Austrian. I will take a look at it, though :)

“The welfare of the people in particular has always been the alibi of tyrants.” — Albert Camus

Respectfully disagree...

I have limited time so I'll get to my main point.

In chapter 16 of the Ethics of Liberty, Rothbard is using force to coerce Mr. Black into accepting the terms of a contract that he never agreed to. You can rationalize it any way you want but the fact remains you are using force to coerce someone into doing what you think is morally or philosophically correct without any agreement or contract with that party. That is authoritarian, not libertarian.

EDIT:
"To deny intellectual property is to deny self-ownership." I also disagree with this statement. Even if they made 1000 clones of me I still own myself. Whether or not YOU can tell the difference is irrelevant to my own self-determination.

NOTE: I am not advocating violence in any way. The content of the post is for intellectual, theoretical, and philosophical discussion. FEDS, please don't come to my house.

I would disagree...

You state that: To deny intellectual property is to deny self-ownership.

I find this to be completely false. IP is absolutely not necessary for self ownership. You own your body out of normal property rights. It is a tangible physical asset. You do not own it based on thoughts in your brain or patterns in your DNA.

here is a question for you

If we ever develop a self-aware artificial intelligence, will it have self-ownership rights?

“The welfare of the people in particular has always been the alibi of tyrants.” — Albert Camus

I think this dodges the question.

We need to focus on human rights and human beings which actually do exist, not theoretical constructs about an AI future which probably wont.

People get all jazzed about future AI bots but who knows what will happen in the future. People speculate that because there were sentient computer programs in "the matrix" that were just like the human brains in the matrix that somehow this will be a true ethical problem in the future. But this was science fiction. There is no way human consciousness is going to be sucked out of our brains and put into computers or other cloned brains. This is a pretty weak argument to make as a support for modern IP law.

copying patterns does not steal anything from anyone. Even if someone could suck your thoughts out of you, you still have your thoughts. You own yourself regardless of someone else's use of patterns. This is why we need to get rid of IP in its current form. Now people (monsanto) are patenting the patterns of life, even human DNA. They could use this IP to claim that they own the DNA. But our self ownership is tied to the ownership of our physical bodies, not to patters or IP.

You claim that IP is required for self ownership. I think that abolition of IP will be required for self-ownership in the future.

We'll find out in less than

We'll find out in less than thirty years.

if we expand human rights to AI rights? Yes.

But if you're an AnCap, it doesn't matter: it only matters if the self-aware-AI impedes or initiates force vs. another human's rights...or go robot postal xD

If you want to expand property rights to tertiary human creations to have rights as well, you'd need a statist legal protection paradigm for it, now, won't you?

How many private arbitration companies do you suppose would cover AI bots? Who knows? Let the market decide.

But I'd suspect by the time such AI can be achieved, they'd have worked out how to self-replicate themselves. So 'harm' to self-aware AI-bots would be relative; it'd be more like 3d print carbon nanotube chasis or 3d print parts to replace themselves. Seriously, AI-bot lawyers defending themselves? From car accidents, medical malpractice, suing gun makers? LOL think not!

Besides any 'self defense' vs. human case would be a riot. 'Me robot, no need to feel pain; you human, how you like the 12" dia. hole I made with my new railgun design?'

Hell, they'd probably be smart enough to run everything on solar or something more fundamental: matter/antimatter!

Also, they probably wouldn't actually have a need for political superstructure impeding their decisions.

And IF AI bots decide humans are insufferable, hey, maybe they'd buy a land from an enterprising human land owner, and establish their own sovereign commune. as long as they do not impede on humans, I'd say let them!

And if such exile runs its course, as they have no need for oxygen, they can all choose to leave earth, as I'd assume by the time we have functional AI that becomes self-aware and enough to create or re-create on their own, I'd assume they'd have enough know-how to go off earth.

If they decide to do go off world? I'd say let them, again! LOL.

Predictions in due Time...
http://www.youtube.com/watch?v=zGDisyWkIBM

"Let it not be said that no one cared, that no one objected once it's realized that our liberties and wealth are in jeopardy." - Dr. Ronald Ernest Paul