Kevin Carson has just released his Intellectual Property--A Libertarian Critique. I haven't had a chance to read all of it yet, but from a quick skim it looks good, and with a title like this--and given that IP is turning out to be an insidious tool wielded by the state to destroy and re-route wealth--it's worth looking into.

Worrying to see some take-up of your invidious notion that one can contract away one's liberty. I'd be with Rothbard on contracts but for his notion that it would be possible to contract away the liberty to make copies in exchange for purchasing a copy. Contracts are about the (conditional) exchange of property, not a means of bondage.

Kevin's most succinct and damning argument against IP is:

"Like all forms of coercion, artificial property rights create a zero-sum situation in which one party benefits at the other's expense. There is a symmetrical relationship between one party's benefit and the other's loss. While natural property rights benefit everyone by securing the individual's claim to the product of his own effort, artificial property rights enable the holder to collect tribute from the efforts of others. Natural property rights are a way of dealing with scarcity; artificial property rights create scarcity."

ACLU to tackle human genome copyrights:

http://www.wired.com/threatlevel/2009/05/aclu-human-gene-patents-infringe-speech/

Crosbie, I am not sure what you rae trying to say or what you are talking about. Are you saying you basically endorsing Rothbard's views on the unbundling of "knowledge rights" from physical objects?

I have been extremely clear in my writing about my view on contracts and alienability. See e.g. my Against Intellectual Property; also A Theory of Contracts: Binding Promises, Title Transfer, and Inalienability and Inalienability and Punishment. Both Rothbard and I upheld a sort of inalienability approach, because of our adherence to a "title-transfer" theory of contract. Promises are not strictly binding; rather, a contract is just a set of related, conditional transfers of title to alienable property--which refers to homesteaded objects, not to one's body, title to which is not alienable by promise or contract.

Where we differ is that Rothbard did not stick consistently to this. Regarding copyright, he implicitly assumed that "knowledge" is ownable property. This is implicit in his idea that if one can grant conditional "ownership" to another, while "retaining the ownership power to disseminate the knowledge of the invention." Thus, he says that Brown, the inventor of an improved mousetrap, can stamp it "copyright" and thereby sell the right to each mousetrap except for the right to reproduce it.

As I wrote in my Against IP,

But third parties still pose a problem for this theory. Even if a seller of an object could somehow "reserve" certain use-rights with respect to the sold object, how does this prevent third parties from using information apparent from or conveyed in that object? Reserved rights proponents say more than that the immediate buyer B1 is bound not to reproduce the book; for this result could be obtained by pointing to the implicit contract between seller A and buyer B1. Let us consider a third party, T1, who finds and reads the abandoned book, thus learning the information in it. Alternatively, consider third party T2, who never has possession of or even sees the book; he merely learns of the information in the book from gossip, graffiti, unsolicited e-mail, and so forth. Neither T1 nor T2 has a contract with A, but both now possess certain knowledge. Even if the book somehow does not contain within it a "right to reproduce," how can this prevent T1 and T2 from using their own knowledge? And even if we say that T1 is somehow "bound" by a contractual copyright notice printed on the book (an untenable view of contract), how is T2 bound by any contract or reserved right?

Rothbard tries to address this point as follows:

A common objection runs as follows: all right, it would be criminal for Green [the buyer] 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 . . . 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 . . . 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.

But as I explain in my Against IP:

There are several problems with this reasoning. First of all, Black merely sees Green's mousetrap. He does not see or have access to ideas in Green's head. Nor does he need to have such access in order to duplicate evident features of the mousetrap.

Further, ideas in one's head are not "owned" any more than labor is owned. Only scarce resources are owned. By losing sight of scarcity as a necessary aspect of a homesteadable thing, and of the first occupancy homesteading rule as the way to own such things, Rothbard and others are sidetracked into the mistaken notion that ideas and labor can be owned. If we recognize that ideas cannot be owned (they are not scarce resources), that creation is neither necessary nor sufficient for ownership (first occupancy is), and that labor need not be "owned" in order to be a homesteader, then the trouble caused by these confused notions disappears.

If Black somehow comes into possession of the ideas implicit in an item which Brown invented (in Rothbard's example, he "happens to see" it), it is irrelevant that the mousetrap may not have had a "right to copy" built into it. For Black does not need such permission to use his own property as he sees fit. How does "happening to see" the mousetrap make Black a trespasser or violator of Brown's rights?

All action, including action which employs owned scarce means (property), involves the use of technical knowledge. Some of this knowledge may be gained from things we see, including the property of others. We do not have to have a "right to copy" as part of a bundle of rights to have a right to impose a known pattern or form on an object we own. Rather, we have a right to do anything at all with and on our own property, provided only that we do not invade others' property borders. We must not lose sight of this crucial libertarian point. If I own a 100-acres of land, I can prance around naked on it, not because the land is imbued with some "right-to-prance-naked," but because I own the land and it does not (necessarily) violate the property rights of others for me to use my property in this fashion.

Similarly, I am entitled to do what I want with my own property my car, my paper, my word processor including improving my car's carburetor or using my ink to print words on my paper. That is, unless I have contractually obligated myself to someone else to restrict my actions with respect to my use of this knowledge. I do not have to first find in my property a right-to-use-in-a-certain-way, for all ways of using it, except those that cause invasions of others' property borders, are already encompassed within the general right to use my property. In libertarianism, we live by right, not permission. We do not need to find permission to take actions with our own property. Contrary to practice in totalitarian societies, all things that are not forbidden are permitted. The reservation-of-rights view would reverse this by assuming that every use of property is valid only if that particular use-right can be somehow found or located in the property.

Consider the following analogy. Farmer Jed discovers oil under his land. No one for miles around knows about the black gold. Jed plans to buy his neighbors' property for a song; they'll sell it cheap, too, since they don't know about the oil. In the middle of the night, his nosy neighbor Cooter, suspicious over Jed's recent good spirits, sneaks onto Jed's land and discovers the truth. The next morning, at Floyd's barbershop, Cooter spills his guts to Clem and the boys. One of them promptly runs to a pay phone and gives a tip to a reporter at the Wall Street Journal (who happens to be his nephew). Soon, it is common knowledge that there is oil in the vicinity. The neighbors now demand exorbitant prices for their land, thus spoiling Jed's plans.

Let us grant that Cooter can be prosecuted for trespass and harms flowing therefrom. The question is, can Jed's neighbors be prevented from acting on their knowledge? That is, may they be forced to somehow pretend that they do not know about the oil, and sell their land to Jed for what they "would have" sold it when in ignorance? Of course they may not be so forced. They own their land, and are entitled to use it as they see fit. Unlike tangible property, information is not ownable; it is not property. The possessor of a stolen watch may have to return it, but so long as the acquirer of knowledge does not obtain that knowledge illicitly or in violation of a contract, he is free to act upon it.

Note, however, that according to the reservation-of-rights view, the neighbors would not be permitted to act upon their knowledge because they obtained it ultimately from Cooter, a trespasser who had no "title" to that knowledge. Thus, they could not have obtained "greater title" to it than Cooter himself had. Note also that others, such as geological surveyors mapping oil deposits, cannot include this information in their maps. They must feign ignorance until given permission by Jed. This imposed ignorance correlates with the unnatural scarcity imposed by IP. There is clearly no warrant for the view that reserved rights can somehow prohibit third parties from using knowledge they acquire.

It is simply not legitimate to restrict the use to which an owner of property can put it unless that owner has contractually obligated himself or has otherwise acquired the information by a violation of the information-holder's rights. Talk of reserving the right to copy is merely a way to avoid the contractual notion that only parties to a contract are bound by it. Therefore, as a general matter, purchasers can be bound by contracts with sellers to not copy or even re-sell the thing. However, once third parties become aware of the ideas underlying the invention or literary work, their use of that knowledge does not, in general, violate any recognizable property rights of the seller.

RichF:

I haven't read Kevin's paper yet, but I don't quite agree with your interpretation of the quote.

The reason for granting intellectual monopolies in the form of patents and copyrights is that granting them may not be a zero-sum situation. Instead the idea is to incentivize innovators by offering them the prospect of a monopoly. That is, the belief is that without the prospect of a monopoly, no innovations would be made. This stems from the fact that there exists a theoretical possibility that the situation is not zero-sum.

The real problem is that the prospect of an intellectual monopoly in many cases appears to be unnecessary, and in some cases even seems to create more problems than it solves.

With regard to the term "artificial property rights", it seems that it also includes trademarks, is this correct?

Stephan,

You appear to be in support of the alienability of liberty (and perhaps other natural rights too), given you say: "I believe two consenting parties have the right to enter into whatever terms they want, even if they are stricter and more draconian than those set by modern IP law".

Given that 'modern IP law' seems to suspend/alienate people's liberty to reproduce intellectual works, I infer that you'd support contracts that would do the same or worse.

And now you underline this when you say "That is, unless I have contractually obligated myself to someone else to restrict my actions with respect to my use of this knowledge."

Unlike you, I see no need for contracts to require the alienation of liberty. Contracts should do nothing more than alienate property. A contract may be conditioned upon actions or inaction, but this can't be an obligation (legal compulsion to act or carry out promise, or legal penalty for failure).

Rothbard seemed to be largely in sympathy with the idea of contracts not being able to alienate one's liberty, e.g. being unable to bind a promisor to the action promised.

So, wrt Rothbard's example of copying constrained by contract, I'd have no problem with the contracted loan of an intellectual work for an indefinite amount of time, with termination conditioned upon the discovery of unauthorised copies. However, because it's only a condition rather than a constraint, this does not alienate the recipient from their liberty to make copies. Naturally, upon being discovered to have made copies, they return the work on loan. The copies they've made are their own intellectual property of course.

If the intellectual work on loan was held within a secured box, a glued shut DVD player say, then the recipient is physically prevented from making copies (without causing damage), given the contents of the box remain private to their owner - though one can still take a videocam recording of the DVD player's screen.

As to constraining the speech or actions of burglars (or those they tell), of course it cannot be constrained. However, they can be prohibited from violating their victim's privacy by communicating their discoveries (unless disclosure is warranted in remedying more serious rights violations). Thus if a burglar blogs their discovery that their neighbour is having a secret affair with someone and cites verifyable evidence gleaned from their diary, this warrants remedy and deterrent. People have their privacy, and their private speech cannot be policed without warrant, but if they make public statements of disclosure that constitute or abet a violation of privacy, then this is not to be ignored simply because it's a fait accompli. There's no point in a right to privacy if one is to ignore violations.

Intellectual works, being identifiable fixations, constitute intellectual property and behave as naturally as material property. Their theft can more easily be detected and remedied.

I think we're pretty much in agreement when it comes to 'living by right rather than permission'. However, I recognise IP (though not monopoly) whereas you don't. On the other hand I don't believe liberty can be alienated (by contract), whereas you seem to believe it can be - or at least enjoy making statements that appear to imply that.

I haven't reead it yet, but based on the precis and a knowledge of other work he's done, I'm guessing that he overlooks the fact that intellectual monopoly injures some corporations even as it unjustly enriches others. The corporate form of business is perfectly compatible with a libertarian theory of property rights and free markets, and I've never understood the so-call left libertarian argument against them.

"The corporate form of business is perfectly compatible with a libertarian theory of property rights and free markets"

Well, perhaps in the absence of monopolies, and if corporations weren't privileged with equality to human beings...

Crosbie,

I think the reference to corporations being "privileged with equality to human beings" refers to a statutory interpretation of corporations, which is inconsistent with common law or libertarian law. In any event, it doesn't touch the issue of monopoly. Speaking of which, can you name one monopoly that ever existed without a statutory grant of monopoly power, one that excluded would-be competitors from entering into competition with the privileged monopolist?

In a free market, there can be no monopolies, or crookopolies as I sometimes call them.

Crosbie:

You appear to be in support of the alienability of liberty (and perhaps other natural rights too), given you say: "I believe two consenting parties have the right to enter into whatever terms they want, even if they are stricter and more draconian than those set by modern IP law".

Not sure what you mean by "alienation of liberty".

My comment of course ought to be understood in the context of my view of contract, which is similar to Rothbard's. And my point was that no matter what A and B can agree to, the third party C is not bound by it.

Contracts should do nothing more than alienate property. A contract may be conditioned upon actions or inaction, but this can't be an obligation (legal compulsion to act or carry out promise, or legal penalty for failure).

Yes, I wrote an article on this.

Rothbard seemed to be largely in sympathy with the idea of contracts not being able to alienate one's liberty, e.g. being unable to bind a promisor to the action promised.

Yes, except he is not fully consistent; thus he speaks of debtor's prison being in principle justified, which presupposes a binding promise rather than a title transfer (if it's just teh latter, then if you are penniless on the due date, there is nothing to steal; so no theft).

So, wrt Rothbard's example of copying constrained by contract, I'd have no problem with the contracted loan of an intellectual work for an indefinite amount of time, with termination conditioned upon the discovery of unauthorised copies. However, because it's only a condition rather than a constraint, this does not alienate the recipient from their liberty to make copies.

Again, this loosey-goosey "liberty" talk.

What if I invite you to my house, and I say you have my permission to use my property only for X,Y,Z purposes, but not for A, B, C? If you do A on it, you are trespassing or using my property against my consent. Right?

What if I "lease" you a CD but retain the rights to it and give you teh right to use MY CD for only certain purposes? If you use my CD for other purposes, is this not a type of trespass?

Naturally, upon being discovered to have made copies, they return the work on loan. The copies they've made are their own intellectual property of course.

This is not "of course" at all.

Intellectual works, being identifiable fixations, constitute intellectual property and behave as naturally as material property. Their theft can more easily be detected and remedied.

If I can remember, aren't you the dude here with the weird theory that sort of says there "is" intellectual property even though there isn't? I can't follow this--it seems like nonsense to me.

I think we're pretty much in agreement when it comes to 'living by right rather than permission'. However, I recognise IP (though not monopoly) whereas you don't.

I really don't know what you are talking about when you talk like this, and I suspect maybe you don't either.

Bill, I was just being careful. What with 'right' being used to describe privilege, and 'free market' being used to describe markets that permit monopolies, it would be dangerous for me to agree with you without qualification. You didn't exactly define 'the corporate form of business' now did you? Corporations as they exist today are 'naturally selected' toward sociopathy. The first steps toward their reform would be to remove their privilege of personhood, and to abolish the monopolies they so love collecting.

Anonymous(Stephan?),

By 'alienability of liberty' I mean treating it as if it were not inalienable, i.e. as if the individual can alienate themselves from their right to liberty by binding themselves through agreement to future actions or constraints. Just as it is an alienation of liberty to say "I will work for you for a year if you keep me fed and sheltered", so it is also an alienation to say "If you sell that CD to me for $5 I will not make copies of it or allow others to". One cannot bind oneself into slavery, nor surrender one's liberty to make copies.

I quite agree that contracts (or even licenses) cannot reach out and mug passersby.

I agree wrt to your point on debtor's prison. One may be required to surrender property if one is in debt, but labour cannot be extracted (through force or suspension of right). As long as no fraud was committed (deliberate exploitation of insolvency), that all parties appreciated the need for due diligence to assure themselves that traders were solvent, then insolvency is a consequence for one's trading reputation.

For your house example, you can eject me if I take liberties that you don't like. If you tell me I can watch one of your DVDs on my laptop but I'm not allowed to copy it, you can't actually suspend my liberty to copy it (nor could I if I attempted to contract away my liberty to do so). You can only eject me if you discover that I have copied it. You can eject me at any time, or not even allow me in in the first place if you suspect I'm prone to copying DVDs. Or alternatively, simply not give me any DVDs to use whilst I visit you.

Your lease example seems to be identical with my example of a loaned CD. You cannot constrain my use of the property you loan me. You can make the lease terminate upon certain uses however, or that deposits are forfeit. Any copies of your CDs that I make are mine. Just as if you had lent me a basket and I had made a basket in its likeness (being instructed by its design and colouring).

As to IP. It's pretty clear you don't recognise it, and don't even recognise that it could be conceivable for anyone else to recognise it, e.g. me. An example of my recognising IP is that if I burgle you and make and remove copies of your CDs, I have stolen your IP (violated your privacy), and there should be remedy/restitution, etc. However, if you lend me a CD you don't get to suspend my liberty to make copies (nor can I surrender this liberty). It's probable you will refuse to recognise any sense in this, but there's not much I can do about that. At least I am able to recognise that you have arrived at a basis of not recognising IP - which is more than you seem to be able to do for me. ;-)

Crosbie:

Anonymous(Stephan?),

Yes, that was me; mistake.

By 'alienability of liberty' I mean treating it as if it were not inalienable, i.e. as if the individual can alienate themselves from their right to liberty by binding themselves through agreement to future actions or constraints. Just as it is an alienation of liberty to say "I will work for you for a year if you keep me fed and sheltered", so it is also an alienation to say "If you sell that CD to me for $5 I will not make copies of it or allow others to". One cannot bind oneself into slavery, nor surrender one's liberty to make copies.

What I meant was your loosey-goosey use of "liberty". A property right is alienable, or not. That discussion, I understand. But "liberty"? What is a "right to liberty"?

For your house example, you can eject me if I take liberties that you don't like. If you tell me I can watch one of your DVDs on my laptop but I'm not allowed to copy it, you can't actually suspend my liberty to copy it (nor could I if I attempted to contract away my liberty to do so). You can only eject me if you discover that I have copied it. You can eject me at any time, or not even allow me in in the first place if you suspect I'm prone to copying DVDs. Or alternatively, simply not give me any DVDs to use whilst I visit you.

I think you are being too quick here. If you break in my house, you are committing trespass, a crime; and you may be punished, or forcefully dealt with. Why? Because you are using my property without my consent. If I loan you my car to use for a 1 hour drive to the grocery store, and you intentionally destroy my car, you are committing a type of theft or trespass. No?

Your lease example seems to be identical with my example of a loaned CD. You cannot constrain my use of the property you loan me.

Why? I can withhold, or grant, permission to you to use my property, can I not? If you disregard this you are a trespasser--a criminal.

You can make the lease terminate upon certain uses however, or that deposits are forfeit. Any copies of your CDs that I make are mine.

Why? If you agree w/ Rothbard's title transfer theory of contract, why couldn't we also agree ahead of time as an accessory title transfer, that IF you use my CD in certain prohibited ways, e.g. to "make-a-copy-of-it", then you transfer title to ME of any new CD's you create?

As to IP. It's pretty clear you don't recognise it, and don't even recognise that it could be conceivable for anyone else to recognise it, e.g. me. An example of my recognising IP is that if I burgle you and make and remove copies of your CDs, I have stolen your IP (violated your privacy), and there should be remedy/restitution, etc. However, if you lend me a CD you don't get to suspend my liberty to make copies (nor can I surrender this liberty). It's probable you will refuse to recognise any sense in this, but there's not much I can do about that. At least I am able to recognise that you have arrived at a basis of not recognising IP - which is more than you seem to be able to do for me. ;-)

The problem is I really do not know what you are talking about. You seem to speak in contradictory, or vague and metaphorical, ways, about this. I really do not understand what you mean by "IP".

I recognise property as a derivative of the right to privacy, that objects become property through entering the private domain (the individual's natural space they are able to enclose/control), by creation, discovery or exchange.

Objects are alienable. Rights are not.

One has a right to liberty, where liberty is the right to do anything that does not violate another's liberty or a superior right (truth, privacy, life).

We need to distinguish between what I may do with the property you voluntarily give or lend to me, vs that property you do not. I believe I have been careful in my examples to distinguish between what I may do as your guest with what you lend me vs what I may do as a burglar.

If you lend me your car and I am unable to return it to you in agreed condition (if I have damaged or destroyed it), then a remedy is warranted. This is quite different to your commercial inclinations to prevent me driving it for purposes of trade as a taxi, or to reverse engineer it.

Either you lend me your property or you do not. Lending me your property does not entitle you to suspend my liberty, e.g. constrain my use of what you have lent me.

Transferring title to future work? Do you really think that's possible? Can you cite Rothbard on this?

I take it you envision something like this: "If you borrow my basket you must transfer title to me (as forfeit) all baskets you may manufacture in its likeness"? I find it stunning that you could find this at all tenable. It's slavery reconstructed, e.g. "I'll teach you how to make baskets in exchange for 90% of your future income in this craft".

It might be fine to lend someone a basket in exchange for "a deposit of $50 to be refunded upon the supply of 5 copies", but not "$5 + all copies you ever make, if any". In the former no title is transferred to future work, whereas it is in the latter.

Crosbie:

I recognise property as a derivative of the right to privacy, that objects become property through entering the private domain (the individual's natural space they are able to enclose/control), by creation, discovery or exchange.

I think this is confused and vague at best, crankish at worst.

Objects are alienable. Rights are not.

Committing a crime is one way to alienate some rights. I have a right to object to punishment before, but not after, I commit the crime. Crimes include trespass.

One has a right to liberty, where liberty is the right to do anything that does not violate another's liberty or a superior right (truth, privacy, life).

Crankish. Privacy?

We need to distinguish between what I may do with the property you voluntarily give or lend to me, vs that property you do not. I believe I have been careful in my examples to distinguish between what I may do as your guest with what you lend me vs what I may do as a burglar.

It's all or nothing for you; this is ridiculous. I can let you use my property for one purpose but not for another. A woman may consent to being kissed by not fondled--if she is fondled, this is a battery. I may let you step onto my property for purpose of coming to a dinner, but not to ransack my house. Etc.

If you lend me your car and I am unable to return it to you in agreed condition (if I have damaged or destroyed it),

Yes, you are UNABLE because you DID SOMETHING intentionally thaty ou had no right to do--i..e you were a trespasser.

Either you lend me your property or you do not.

no, this is crankish. It can be conditional, limited, partial.

Transferring title to future work? Do you really think that's possible? Can you cite Rothbard on this?

of couse. just read his article; read Evers; read mine. Almost all contracts involve future title transfers. Of course. That's waht an agreement is: an agreement now, to transfer title int he future if certain conditions are fulfilled.

I take it you envision something like this: "If you borrow my basket you must transfer title to me (as forfeit) all baskets you may manufacture in its likeness"? I find it stunning that you could find this at all tenable.

What does "tenable" mean? Waht does "tenable" have to do with rights?

It's slavery reconstructed, e.g. "I'll teach you how to make baskets in exchange for 90% of your future income in this craft".

It might be fine to lend someone a basket in exchange for "a deposit of $50 to be refunded upon the supply of 5 copies", but not "$5 + all copies you ever make, if any".

If you want to argue there is a limit to how much of your patrimony you can alienate, fine, but the general idea is not crazy.

Google faces ant-trust suit:

http://www.nytimes.com/2009/05/18/technology/companies/18antitrust.html