11 votes

Thoughts on the Great IP Debate

Hi all, I put together my early thoughts on the intellectual property debate going on. Posting them here in the hope of keeping what I'm finding to be one of the most fascinating debates among libertarians going!

by Marc Clair | Lions of Liberty | April 12, 2013

The Libertarian Internet Geek Community, of which I consider myself a card-carrying member, has been embroiled in heated debate over the last few weeks on the subject of intellectual property. This debate was sparked by Robert Wenzel’s challenges on his blog at Economic Policy Journal to what many had presumed was the libertarian consensus on intellectual property. This “consensus” view – the one most associated libertarian patent attorney Stephan Kinsella – is that the very concept of “intellectual property” is fraudulent and a creation of the State, and serves only to stifle freedom and creativity in the marketplace.

This view is so prevalent that until very recently one would be hard pressed to find much opposition to it within the libertarian movement. In fact, we ourselves criticized Ron and Rand Paul’s “Technology Revolution Manifesto” for it’s support of IP.

Kinsella presents this view of intellectual property as a creation of the State; an artificial construct that would not exist in a free market system. I believe this is the main reason for libertarian opposition to the concept of intellectual property – becaise it is framed in the context of the State, and associated with all of the terrible things that the State and crony capitalist firms have done in the name of IP. From the evil censorship laws proposed in CISPA and SOPA to major corporations like Apple using IP laws to shut down competition through “patent trolling”, the State and it’s crony partners in crime have used intellectual property as a cover for all sorts of nasty, anti-liberty maneuvers.

Wenzel however presents a different view of intellectual property. Wenzel holds the view held by Murray Rothbard as we discussed in this week’s edition of our weekly feature, Mondays with Murray. Rothbard essentially believed that intellectual property could have a legitimate function in the market place through the use of copyrights. Copyrights essentially allow the producer of an idea – a song, a book, a formula,etc. - to attach a condition on the sale of that idea that it will not be shared by the purchaser. This is essentially a contract between the seller and buyer about the use of the idea. However, Rothard was opposed to the idea of patents, which attempt to stymie competition by using force to prevent anyone who independently discovers or invents something from using or selling that idea or invention on the market place.

It’s clear the issue isn’t a simple one, and if you’re like me you still haven’t made up your mind on this one. So I will attempt to cut through the clutter and break down what I see as the most important questions that must be sorted out in order for libertarians to form a strong opinion on intellectual property.

Continue Reading




Comment viewing options

Select your preferred way to display the comments and click "Save settings" to activate your changes.

Yes, the State is evil

"Because it is, and this is an independent argument against IP. Aimed mostly at the anarchist pro-IP people."

And that is besides the point. As you said this is a debate between anarchists, but none of the pro-IP anarchist arguments I've read call for a State monopoly on IP, they simply believe IP is a legitimate creation that could emerge in the market place. This may be an incorrect assertion, and I look forward to reading your arguments against it further, but bringing up the State is a strawman argument. This is NOT about the State.

"It is one of many arguments against your flawed position. I cant help if it there are eleventy ways you are wrong."

What flawed position? I even stated in my article I am have not arrived at a position, pro-IP or otherwise. As your position has been fleshed out fully in many venues, I attempt to highlight some of the contrasts with Wenzel's position.

"I want IP to be abolished."

Great, then don't call anyone who disagrees with you stupid and ignorant. That is how you will win even more people over. I have genuine curiosity on this issue. Why am I going to listen to someone who speaks like that?

"That doesn't follow at all. Sometimes evil views win out. Ask Jews about to be killed in the concentration camp. Ask guys rotting in jail now for drug or tax crimes. As blacks during slavery."

Of course evil views win out ,that's why we have a State! Here we go with the straw men...war on drugs, taxes. How did slavery end? Many will just say "the Civil War", but the reality is that PUBLIC OPINION over slavery changed over time, largely thanks to the work of thoughtful abolitionists like Lysander Spooner and William Lloyd Garrison. As you said however...

"This is a tactical point. How does this prove IP is justified?"

It doesn't, and as I stated I have not yet been won over by the Pro-IP position, but I do think the discussion is important. Clearly you have made up your mind, but it's equally clear others, especially many just learning about libertarianism for the first time, have not.

http://lionsofliberty.com/
*Advancing the Ideas of Liberty Daily*

Private IP

"this is a debate between anarchists, but none of the pro-IP anarchist arguments I've read call for a State monopoly on IP, they simply believe IP is a legitimate creation that could emerge in the market place."

And some people believe there are daemons.

" This may be an incorrect assertion,"

no "may be" about it

" and I look forward to reading your arguments against it further, but bringing up the State is a strawman argument. This is NOT about the State."

It is not a straw man at all. THe state is used to enforce IP and uses IP to extend its control over human life and liberty.

"I even stated in my article I am have not arrived at a position, pro-IP or otherwise."

Well, take your time.

"Great, then don't call anyone who disagrees with you stupid and ignorant."

Well, I think they are. Sorry. IP is so stupid and evil that that is the only conclusion I can reach.

" That is how you will win even more people over."

Are we talking about substance and truth, or tactics now?

" I have genuine curiosity on this issue. "

If that is true you will agree with me soon.

"It is easier to commit murder than to justify it." –Papinian

wrong again, Kinsella

There was a common law copyright, which was killed by the courts when copyright statures were passed, because statutory law (law of the State) trumps common law (private law) in the eyes of the State.

See here, for example:
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=27...

“With laws shall our land be built up, but with lawlessness laid waste.”
-Njal Thorgeirsson

common law copyright

common law copyright was more like modern trade secret law--note that it can be lost when the piece reaches "general publication." So it was more for unpublished manuscripts etc.--if A steals B's manuscript from his desk drawer then B can prevent its publication--something like this. This has almost nothing to do with modern statutory copyright which extends *even after* the work is publicly known.

"It is easier to commit murder than to justify it." –Papinian

yes, but

If A writes a book, B steals it, and gives it to C, and C publishes it, common law copyright would protect A. The anti-IP mentality would not.

“With laws shall our land be built up, but with lawlessness laid waste.”
-Njal Thorgeirsson

"Evil" is never a rational

"Evil" is never a rational basis for an argument. Inefficient, self-interested, corrupt, compromised, intellectually bankrupt... THOSE are a defensible basis for an argument.

EPJ

EPJ ran my article as well .

http://www.economicpolicyjournal.com/2013/04/marc-clair-was-...

Anyone interested in purchasing the "EPJ Formula"?

http://lionsofliberty.com/
*Advancing the Ideas of Liberty Daily*

Private Law Aside, Copyright Makes Sense

Copyright even applies to industrial design.

So let's say you invent widget 1. Some other enterprise comes out with widget 2. Patent law might block the sale of this product, if it is too similar to widget 1. What if they invented it at the same time? What if they invented it simultaneously?

See, the Randian perspective holds that 'discovery' is an act of creation on the part of the discoverer. Yes, the discoverer created concepts in the mind that are then transmissable to other humans. And there was most likely a cost to the process of discovery. That is the justification for patent law.

However, discovery is borne of reality. Economics is the study of resources and scarcity, not a political contract governing such. Physical resources are finite and scarce, so law assigns property rights as a consequence - post facto - of the nature of these resources. Intellectual resources - concepts borne of preexisting natural laws - are not scarce. True, a cost was put into discovering them, but while the concepts might be a product of a discoverer's labor, the original laws are not. Thus, the concepts are scarce, the laws are not.

What this means is that a specific design, a methodology, a terminology, these may be copyrighted. So if I develop widget 1 and some other guy starts selling widget 1, I can legitimately claim theft. It's pretty easy to prove.

Yet, with slight changes, widget 1 becomes widget 2, and I have to admit that it is a different product. Regardless if it exploits a law of nature that I first put into concept. I don't own that law of nature. Even if the other guy discovered the law of nature through my product, riding my coattails I still only own the specific design I developed.

This is significant. What if the other guy can't figure out the law of nature, so he must copy my design exactly at first to replicate its functionality. That's theft. But if he discerns the law of nature from my design, even though I paid the cost of first discovery, then he has developed his own conceptual grasp of that law of nature.

Knowledge is not esoteric. God intended knowledge to be accessible by the many. We need not presume that individuals can lay claim to hidden universal secrets because of some promethean endowment of first discovery through will.

I posted this on Wenzel's blog

Let me know what you think:

Here is another way IP could be enforced under private law. Kinsella keeps harping on the fact that property rights can only be assigned to rivalrous goods and that information is not rivalrous because it can be copied by another without preventing consumption by the original person. I disagree, but, for the sake of argument, let's assume he is right.

Well, what if we make a certain piece of information rivalrous? The pro-IP crowd admits that some information is rivalrous, such as bitcoins. Consumption of a bitcoin by one person prevents consumption of the bitcoin by another. I keep thinking about Strangerous Thought's Fallacy # 4, where he compares copying of IP to counterfeiting by inflating a currency.

Here is what I have in mind. Simply bind a particular copy of the information to physical property. Here is an example. Let's say I want to sell an e-book for $30. I will use dollars for simplicity, but in practice it could be some non-fiat currency. I sell the book for $31, and make the e-book copy a certificate of deposit for $1. Verification of the certificate could be based on a digital fingerprint of the e-book, which could include a copy number worked into the fingerprint, so that multiple copies of the e-book could be issued, each copy for a different $1 deposited by a different purchaser.

Now the purchaser can use the e-book to get his $1 back, he can sell the e-book to someone else, but he can't copy it. Copying the e-book would result in two certificates of deposit for the same $1, which would be tantamount to counterfeiting or fraud. Thus, the e-book becomes, in a sense, money.

Other examples include making the copy a share to the stock of a company, or making the copy into another type of financial instrument tied to some physical property.

I welcome comments and criticisms.

“With laws shall our land be built up, but with lawlessness laid waste.”
-Njal Thorgeirsson

I read that over there

It's just one of many examples of how - despite the claims of many - the digital age will in many ways make it easier to protect intellectual properties through certificates, coding, etc.

http://lionsofliberty.com/
*Advancing the Ideas of Liberty Daily*

Thanks for the write up

If anything, the Mises Institute should concede there is disagreement on the issue and put up some pro-IP material on the IP wiki. Right now it's all Kinsella.

“With laws shall our land be built up, but with lawlessness laid waste.”
-Njal Thorgeirsson

Wenzel and his supporters continue to ignore...

what Kinsella means by the word "scarce", Kinsella is using it synonymously with the economic definition of the word rivalrous.

In economics, a good is considered either rivalrous (rival) or nonrival. A rival (subtractable) good is a good whose consumption by one consumer prevents simultaneous consumption by other consumers.

Wenzel uses scarcity to mean rarity in his "drudge formula" argument, as in he being the only person that has it, it is therefore scarce.

If scarcity is defined as, an inadequate supply to meet demand, and Wenzel agrees that non scarce things can not be property.

Say you produce more chairs than there is a demand for chairs, these chairs are not scarce by that definition, do chairs cease to be property?

Regardless of how many chairs are produced, each chair is still rivalrous, that is we can't both have a rightful claim to the same physical chair at the same time, possession of it by one of use would exclude possession of it by the other.

It does not matter if something is rare, it matters if possession of something by one person excludes possession of it by another person.

Property rights exist to resolve disputes between ownership of rivalrous goods.

Use of Ideas do not prevent others from simultaneously using them.

We can both posses the same idea simultaneously without preventing the other from doing so.

By keeping an idea to yourself it may be rare, but possession of it by someone else once someone else copies it or discovers it does not prevent you from possessing it.

Ideas can be rare, as in few people can posses them, but under no circumstance does possession of an idea by one person prevent possession of an idea by another person.

Check out the Laissez-Faire Journal at LFJournal.com


"The State is a gang of thieves writ large." - Murray Rothbard

Scarce vs. Rivalrousness

Is one's labor scarce? Is it rivalrous? Is one's mental labor rivalrous? Can someone inhabit my brain and use it while I am using it to create an idea of some kind?

I'm not being facetious, I am still weighing all sides of this issue, but these are the kinds of thoughts that pop into my head when discussing scarcity vs. rivarlousness.

http://lionsofliberty.com/
*Advancing the Ideas of Liberty Daily*

The means and end are seprerate from eachother.

Just because you use scare or rivavlrous means to produce and end result, doesn't make the end result scare or rivalrous.

Here is a previous comment I made, to elaborate further (use labor interchangeably with time):

I can use my time to solve an equation. Do I then own the answer to the equation?

Just because you exhaust scarce or rivalrous resources to discover something, does not mean the discovery is scare or rivalrous.

How does my use of an idea, exclude you from using it also?

Suppose that you spend a minute of your time figuring out x + 2 = 4.

You discover that x is 2, I come along and see your work and discover that x = 2.

By having this knowledge have I taken anything from you, by having this knowledge do i prevent you from also having it?

If I write down the equation and it's answer on a piece of paper and sell it for one dollar, have I taken anything from you?

If your answer to the latter question is "Yes, you have taken profit from me." , then you are assuming that you have a right to other people's money, and it would logically follow that if that action was theft because I made money that you potentially could have, so would all forms of competition.

P.S. In your opinion, when is a good scarce and when is it not scarce, when does a scarce good become non scarce?

Also, what is your definition of scarcity?

Check out the Laissez-Faire Journal at LFJournal.com


"The State is a gang of thieves writ large." - Murray Rothbard

How many times

do we have to go over this? Answer these two questions. Is time scarce? Is time rivalrous? If you get two different answers, as you should, your definition has problems.

“With laws shall our land be built up, but with lawlessness laid waste.”
-Njal Thorgeirsson

May I comment?

I'm not sure I can answer. Time, it seems to me, is quite complicated, especially in this context. Time, as some kind of absolute quantity of physics, is probably not owned by people and is outside the discussion. I infer that you must mean something along the lines of "an individual's experience of time." Of course, each of us "owns" our individual experience of time. However, that experience is fundamentally non-transferable, at least in some sense. You can not experience my experience, by definition.

But further, I would assume what you are trying to get at is the *product* of how one has decided to spend his time---his ideas. The ideas, though in a certain sense, the product of the time are distinct from the time. At least that seems clear to me. Furthermore, I don't see that there can be any particular universal obligation for others to pay for your experience of time---ever. If the time spent produces a commodity, then that can be property. And that is the question. Should ideas be considered as property?

But it seems clear that trying to view time as a commodity contributes little of substance to the discussion. Time is fundamentally a different thing. Perhaps the questions "Is time scarce?" and "Is time rivalrous?" in regard to the personal experience of time, don't even make any sense.

thank you for your time (hehe)

Mises, Rothbard, and, alas, even Kinsella, admit that time is scarce. I wasn't trying to argue that time is something ownable to which property rights should be assigned, or even trying to relate it to IP. I was merely pointing out that scarcity does not depend on rivalrousness and that Kinsella's definition of scarcity is very confused.

“With laws shall our land be built up, but with lawlessness laid waste.”
-Njal Thorgeirsson

I can use my time to solve an equation.

Do I then own the answer to the equation?

Just because you exhaust scarce or rivalrous resources to discover something, does not mean the discovery is scare or rivalrous.

How does my use of an idea, exclude you from using it also?

Suppose that you spend a minute of your time figuring out x + 2 = 4.

You discover that x is 2, I come along and see your work and discover that x = 2.

By having this knowledge have I taken anything from you, by having this knowledge do i prevent you from also having it?

If I write down the equation and it's answer on a piece of paper and sell it for one dollar, have I taken anything from you?

If your answer to the latter question is "Yes, you have taken profit from me." , then you are assuming that you have a right to other people's money, and it would logically follow that if that action was theft because I made money that you potentially could have, so would all forms of competition.

P.S. In your opinion, when is a good scarce and when is it not scarce, when does a scarce good become non scarce?

Also, what is your definition of scarcity?

Check out the Laissez-Faire Journal at LFJournal.com


"The State is a gang of thieves writ large." - Murray Rothbard

I wasn't arguing that you can own time

I was pointing out a problem with defining scarcity as based on rivalrousness.

“With laws shall our land be built up, but with lawlessness laid waste.”
-Njal Thorgeirsson

Main idea(s)

Thanks for the article. Not to be particularly picky, but you mention at least twice that you are going to summarize the main concepts/questions/ideas. You seem to present basically one: Can ideas be property on the basis of scarcity?

Regarding your statement:

Clearly if only a “few” people have access to it, the formula for Pepsi must be scarce.

Let me suggest that your assertion is not clear at all. It is not the formula which is scarce, but the access. The scarcity of resources may change, and of course, once many people know who have not made a voluntary commitment to restrict access (and have kept that commitment), then the access is no longer scarce.

The key question, it seems to me, is "For what resources is one morally justified in executing violence against others for possessing them?" The answer to that question is the definition of private property. I don't see any basis for the notion that one can own an idea. Can one own access? Perhaps that is possible in the presence of a contract---basically a promise to keep a secret.

If that view is correct, let me suggest that one should be very explicit about such a contract---to do otherwise would be anti-social at least and possibly immoral. Ah, but this may be the crux of the question. Rothbard even mentions above that copyright involves "implicit" theft. The presence of an implicit contract may be quite essential to all discussion of IP. If so, then perhaps that is a point: In matters of non-material private property (e.g., access, i.e., keeping a secret) it would be best if things were made very explicit. In other words, your secrets are yours to keep. If others do not keep them, apart from an explicit contract, you have no moral basis to execute violence against them.

Thanks

I replied on my site, pasting below:

Thanks for reading. Fair enough, there are other questions I could delve into on the topic but when writing this I wanted to keep it to the most simple and basic issues, which is essentially the question you stated above. I plan to write more about this in the future, but had to cut myself off on this particular article since it was getting lengthy.

I think your question is a good one and gets to the heart of how the question of IP ties into libertarianism / the non-aggression principle. As you said, it does come back to defining property? Can "access" to a formula be property then? If that formula came from the labor of the mind of its producer?

I don't know the answer, but I think it's the most important question in this discussion.

Appreciate your comments.

http://lionsofliberty.com/
*Advancing the Ideas of Liberty Daily*

redirect...

A further comment is posted on Marc's site.

The

actual formula for Pepsi is scarce. Even if Pepsi Co. posted the formula on their webpage, not every one would have accesss the knowledge. Imagine for a moment, that you have a friend that does not have internet access, and they offer you a sum of money to write down the formula or to teach them the formula. Or maybe someone is blind and needs the formula read to them. Could someone offer a price for this service? This takes me back to the Ludwig von Mises quote in the article,"The available supply of every commodity is limited. If it were not scarce with regard to the demand of the public, the thing in question would not be considered an economic good, and no price would be paid for it."

description

The service they would be paying for is access. You even say "not every one would have access." That is the point. It's not the formula. It's the access.

Exactly as Mises said: The available supply of every commodity is limited.

This is not true of the formula. It may be true of the access. Thus, the formula is not an economic good per se. The access to the formula may or may not be an economic good, depending on how available the access is. But what we're talking about here is an attempt to limit by violence the distribution of an idea which has a limitless available supply in principle. The access is coincidental. Someone may morally control the access, but only if they keep the idea limited to the *matter* where it is stored, i.e., in the gray matter between their ears, or between the ears of those who voluntarily and knowingly agree to keep it secret (or for example in *matter* containing digitized patterns which is not available to others).

Once a third party, who has no explicit obligation, possesses the idea, I see no moral basis for limiting him in copying it for others.

Hans Hoppe on IP

"I agree with my friend Kinsella, that the idea of intellectual property rights is not just wrong and confused but dangerous. And I have already touched upon why this is so. Ideas – recipes, formulas, statements, arguments, algorithms, theorems, melodies, patterns, rhythms, images, etc. – are certainly goods (insofar as they are good, not bad, recipes, etc.), but they are not scarce goods. Once thought and expressed, they are free, inexhaustible goods. I whistle a melody or write down a poem, you hear the melody or read the poem and reproduce or copy it. In doing so you have not taken anything away from me. I can whistle and write as before. In fact, the entire world can copy me and yet nothing is taken from me. (If I didn’t want anyone to copy my ideas I only have to keep them to myself and never express them.)

Now imagine I had been granted a property right in my melody or poem such that I could prohibit you from copying it or demanding a royalty from you if you do. First: Doesn’t that imply, absurdly, that I, in turn, must pay royalties to the person (or his heirs) who invented whistling and writing, and further on to those, who invented sound-making and language, and so on? Second: In preventing you from or making you pay for whistling my melody or reciting my poem, I am actually made a (partial) owner of you: of your physical body, your vocal chords, your paper, your pencil, etc. because you did not use anything but your own property when you copied me. If you can no longer copy me, then, this means that I, the intellectual property owner, have expropriated you and your “real” property. Which shows: intellectual property rights and real property rights are incompatible, and the promotion of intellectual property must be seen as a most dangerous attack on the idea of “real” property (in scarce goods)."

Check out the Laissez-Faire Journal at LFJournal.com


"The State is a gang of thieves writ large." - Murray Rothbard