Fantastic post by Jeff Tucker at Mises Blog:

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IP Vices and Crimes

March 18, 2009 8:51 AM

The 18 or so articles I've written about "intellectual property"--elaborating on a book I consider to be a seminal work of our epoch, Against Intellectual Monopoly--generated floods of email like I've never seen on any topic. The thing that gets people going is the conclusion: in a free market, there should be no legal grants of patent or copyright.

What many people do--and this is rather depressing from the point of view of a writer--is seize on the conclusion, ignore the reasoning and arguments, and then attempt an instantaneous, arm-chair refutation.

It always goes something like this: "Oh, you are telling me that I could just steal this article that you wrote, even put my name on it, sell it and take the money, and there would be nothing wrong with doing that?"

Some go even further to actually do this: put their names on it, post it somewhere, and send me the link.

I think precisely what you are thinking: "What a jerk!"

I'm not sure what other kind of response they expect from me. They must really think I will say: "Oh, this is so shocking! I had not considered that someone might actually do this to me if we got rid of the U.S. Copyright Office! My goodness, this kind of thing cannot be tolerated. I was completely wrong in everything I said. I too am grateful to the state for all it does to protect my intellectual creations and my good name."

Sorry to say, this is not my response. My detailed response actually goes as follows: "If you do that in a free society, you will not be arrested by the police or experience physical coercion blessed by official mandate. However, everyone is free to regard you as a poseur, a wretch, a menace to society, and wholly lacking in credibility. If having a good reputation counts to you, it's probably not a good idea to pretend to have written something that you have not in fact written."

The difference here comes down to a wonderful distinction that was made by Lysander Spooner in the 19th century. He was careful to explain the difference between a vice and a crime. A crime involves aggressive force or threat of aggressive force against another person or privately owned property. A vice, however, is a much larger category of behaviors that don't involve invasion of person or property.

Vices can involve lying, being nasty to others, eating like a pig in public, abusing oneself with drugs or liquor, failing to shower and thereby stinking to high heaven, swearing in public, betraying benefactors, rumor mongering, displaying ingratitude, not keeping commitments, being a shopaholic, being a greedy miser, failing to do what you say you are going to do, making up stories about other people, taking credit for things you didn't do, failing to give credit where it is due, and other things along these lines.

In a free society, vice is control through decentralized social enforcement of social, ethical, and religious norms. The great problem of statism is that it turns vices into crimes, and then when the law is repealed, people forget that there are, after all, certain social norms that nonetheless need to be upheld and will be upheld once society is managing itself rather than being managed by the state.

Consider the case of classroom plagiarism, for example. A teacher wrote to me with a concern that the repeal of intellectual property law would make it more difficult to punish students for turning in work that claimed to original but was actually copied from elsewhere. I pointed out that the police and courts are not involved in the enforcement of classroom rules now, so why would a change in federal legislation be any different? Plagiarism is still plagiarism.

IP law has really had the effect of distorting our society's sense of all of these matters. It has made everyone too unwilling to admit our dependence on imitation and emulation as institutions that permit and encourage progress. It has made people too shy to copy the success of others and admit to doing so. Writers, artists, entrepreneurs all live with this weird burden of expectation that everything they do must be completely original and they must never draw from others sources. It's preposterous!

On the other hand, we are too quick to credit the state for preventing the mass outbreak of old-fashioned vice. Even without copyright and patent, some kinds of behaviors and practices will remain shoddy, unseemly, ungracious, conniving, and social unacceptable. What, for example, would you say about a local author who claim to write a new play that turned out to be written by Shakespeare? Doing this is perfectly legal right now. But the person would be regarded as a lout and a fool for the rest of his life.

Hence, the repeal of "intellectual property" law does not mean some sort of crazed free-for-all chaos in which no one can be entirely sure of anyone's identity, creations, who wrote what, what company did what, where credit is due, what one's commitments are, and the like. What we will gain is a great sense of our moral obligations to each other.

And in the absence of the state's grant of monopoly privilege, we will become ever more vigilant in giving credit where it is due. You still have to be a nice person who acts with a sense of fairness, equanimity, and justice, as conventionally understood. If you don't, the state will not crack your skull, but you will lose something profoundly important.

In other words, in absence of IP, we gain a greater sense of the distinction between what is vice and what is crime, and a better means for dealing with both.

Keep intellectual property. Abolish intellectual monopoly.

People will use a crowbar or pick a lock and burgle a house to steal IP, and this cannot be regarded as a non-crime simply because you prefer not to believe in IP.

It might seem simpler to completely abandon the concept, but this does an injustice to those who invest a considerable amount of time and effort in producing IP. They should not have their work stolen without consequence just because IP has been abusively extended by unethical monopoly, and it seems easiest to deny the recognition of intellectual property rights in order to remove the possibility of abuse and privilege.

Remember: "As simple as possible, but NO SIMPLER."

Abolish intellectual monopolies, but NOT intellectual property!

Abolish copyright and patent, but do not cease the recognition of authors' and inventors' natural exclusive right to their writings and designs - as such is necessary for the progress of science and useful arts.

IP law has really had the effect of distorting our society's sense of all of these matters. It has made everyone too unwilling to admit our dependence on imitation and emulation as institutions that permit and encourage progress. It has made people too shy to copy the success of others and admit to doing so. Writers, artists, entrepreneurs all live with this weird burden of expectation that everything they do must be completely original and they must never draw from others sources. It's preposterous!

What is preposterous and absurd is this statement. It twists a viewpoint into a pretzel and then expects logic to come from it.

In fact, one premise of the IP system was that inventions would be placed in public view faster than they would have been without IP (and study after study, including some cited by Boldrin & Levine, show that geographic dispersal is faster with IP). Thus, the entire point of IP is to make technology available to all for emulation after a relatively short period of time.

Another absurdity is the statement that everything is "completely original." What nonsense. A typical invention may well be "completely original," but since the typical invention is part of other inventions, it requires a lot of what has been done before to have a purpose, and possibly to be enable since the invention may require fasteners, glue, etc., even though in a novel configuration.

I guess hyperbole is common among the anti-IP crowd.

Crosbie, you wrote "People will use a crowbar or pick a lock and burgle a house to steal IP, and this cannot be regarded as a non-crime simply because you prefer not to believe in IP."

Of course it can't, but that has nothing whatsoever to do with IP. Breaking and entering is a crime no matter what you do once you get inside. In the language of the article, it's "aggressive force against privately owned property" -- specifically, against the house, which is indisputably property.

You wrote, "Abolish copyright and patent, but do not cease the recognition of authors' and inventors' natural exclusive right to their writings and designs - as such is necessary for the progress of science and useful arts."

This makes no sense. That exclusive right is copyright. If you "abolish copyright" but replace it with a different law that provides exclusive distribution rights to authors, then you end up with copyright by another name. If you don't replace it with copyright-by-another-name, then you cease the recognition of that exclusive right.

Jesse, if IP is not recognised whereas material property is, then a burglar can steal a copy they make of your invention without repercussion or remedy, whereas if they steal an oil painting this is recognised as a theft to be remedied. In the former we just have an intruder who didn't damage or steal anything (if they pick the lock), whereas in the latter we have a thief.

An individual has a natural exclusive right to their intellectual work and this should be recognised and protected, which means recognising IP, and remedying IP theft.

This exclusive right isn't the privilege of a monopoly.

That abomination pops into existence later, with the excuse that a monopoly encourages inventors to release their work from the protection of their exclusive right (to publish it), or that it incentivises authors to publish novel works. This monopoly could be argued to help protect the natural exclusive right (whilst unpublished), but the post-publication monopoly is wholly unnatural. It's an unwarranted gift to industrialists at the expense of the public's liberty.

People will cite the US constitution as defining copyright and patent, but it does no such thing. It specifies only the recognition of natural rights and that the government should have the power to protect them. An author/inventor's natural exclusive right is recognised. However, no power to grant monopolies is sanctioned - only power to protect rights, not to derogate them.

Unfortunately, the word 'right' has become distorted over the last couple of centuries to include privileges of monopoly as 'exclusive rights', and so because people term monopolies this way, they presume that the US constitution granted those monopolies. The constitution could not recognise monopolies granted after it, nor could it grant any such privileges.

Crosbie, I'm not sure how a burglar is supposed to "steal" a copy that he made. That's not stealing, it's just private property: the copy belongs to him and he can do whatever he likes with it. Yes, in that situation, we have an intruder who didn't damage or steal anything -- so why should we falsely charge him with stealing something?

I'm also still not sure what you think an "exclusive right" is, if not a monopoly. How can it be exclusive if there's no monopoly associated with it?

Crosbie's argument seems to me not well explained (I agree with Jesse #1 that it needs clarification).

My only real concern is that people may take a great idea to the grave with them rather than divulge it and let others make money from it. Though I think any inventor worth their while would want to see their idea come to fruition.

Other than that I agree... abolish 'em. Sure, it might put a bunch of IP lawyers out of work, but they can retrain. Really, a bright idea is such an elusive, abstract, transient thing, I think it's stupid to be able to own it.

I would like to see the copying of music and film be completely open slather. I don't think art will die, on the contrary I think diversity in art would flourish, as there would be no multinational publishers/studios using their artificial $$ to Jam trash music down the throats of our youth.

Musicians should love the idea that their music is copied everywhere. It means they can make more money from touring. The real essential "Live" performances would be all the more valuable, as with the theatre, opera etc.

Recordings would still happen. Artists could interact with their fans, pledging to release their next album when they receive sufficient donations.

Most importantly, I think it would clear the mind!

Jesse, if you don't recognise the natural right to privacy and that intellectual work may be just as much private property as material work, then obviously you won't recognise how making an unauthorised copy and removing it without authorisation constitutes IP theft, nor that such theft should be remedied by restitution rather than be disregarded as inconsequential.

As for monopoly, one could say that recognition of property constituted recognition of monopoly, i.e. for any material or intellectual work you privately possess, you have an exclusive right to it, you alone may control its use, access, and exchange. If I own a chair, I have a natural monopoly over that chair; similarly with a poem I've just written. It is thus sensible to reserve 'monopoly' for unnatural monopolies, i.e. those granted and protected by the state (or less reputable enforcement) such as copyright and patent.

So, what I'm arguing for is the natural form of intellectual property, i.e. the natural exclusive right that authors and inventors can be recognised to have to their writings and designs. I'm therefore arguing against its unnatural extension by copyright and patent that grant monopolies that extend beyond the point at which the property is exchanged (and leaves the natural exclusive control of its owner).

Until I sell you a copy of my poem, you can't steal it from me. Once I sell you a copy, then that copy is no longer mine, and I have no natural ability or right to constrain your use of what is now your material and intellectual property. Naturally, you can't change the truth of authorship - the truth is an inviolate fact, it is not property to be moulded to taste.

Thus, I'm a proponent of the recognition of intellectual property as natural, and of the idea that creation confers ownership, but yet against the grant of unnatural monopolies such as copyright and patent.

I realise this is an uncommon position and considered incoherent by some, but I find it self-evidently natural, whereas, especially in this information age, I find no sense either in IP nihilism or IP maximalism (augmentation by monopoly).

Crosbie, I can't fathom how the author of a poem has a "natural monopoly" over it. Surely his exclusive possession of the poem is only natural as long as he keeps it inside his head. Once he commits it to writing, it naturally belongs to anyone who happens to read it.

As usual, Lonnie has some nonsense for us this week:

"In fact, one premise of the IP system was that inventions would be placed in public view faster than they would have been without IP (and study after study, including some cited by Boldrin & Levine, show that geographic dispersal is faster with IP). Thus, the entire point of IP is to make technology available to all for emulation after a relatively short period of time."

Which it utterly fails to do. The evidence is ambivalent at best regarding "geographic dispersal", but seeing as "IP", the locomotive, and the telegraph all began significant expansions at around the same time, it seems likely that only two of the above actually sped up the geographic dispersal of anything. To the extent that "IP" did so, it may have been when publishers set up shop outside the existing strong "IP" regimes so as to avoid regulation by same, and brought copies of works with them.

"Another absurdity is the statement that everything is "completely original." What nonsense. A typical invention may well be "completely original," but since the typical invention is part of other inventions, it requires a lot of what has been done before to have a purpose, and possibly to be enable since the invention may require fasteners, glue, etc., even though in a novel configuration."

The post you are blindly attacking was clearly mainly discussing copyright, not patent.

Quoting Sokoloff, Lamoreaux and Kahn, patented innovations "tend to be traded more than those that are not, and therefore to disperse geographically farther away from the original area of invention."

Nobody:

I look forward to the study you will cite that proves otherwise. In the meantime, your statement is worthless.

"patented innovations tend to be traded more than those that are not, and therefore to disperse geographically farther away from the original area of invention."

Bollocks. This is clearly twisting things. Obviously only patented innovations are "traded" at all, since unpatented ones will simply get copied for free, so "patented innovations tend to be traded more than those that are not" is true but meaningless. And then the stated conclusion fails to follow from the premise. In fact, the opposite stands to reason, since the innovation that cannot spread EXCEPT by being "traded" at monetary expense is inhibited in its travels!

Lonnie goes on to falsely and rudely assert that my statement is "worthless", which of course is a pointless personal attack rather than a valid argument in support of the patent system.

Nowhere:

Interesting. I cite a study by Sokoloff, Lamoreaux and Kahn. You cite? What? Oh, NOTHING. You just assert some vague conclusion based on your own religious beliefs. So, your statement is, as I previously noted, unsupported, and therefore without academic value. Go away until you can come back with facts to support your position.

The basic problem with the work by Sokoloff, Lamoreaux and Kahn is that it does not have a good counterfactual. They establish that a strengthening of the patent system making it harder to get patents was followed by a great deal of trade in patents. Unfortunately you can't measure innovation under different patent regimes by the number of patents issued, nor can you measure information flows under different patent regimes by the number of patents traded. The criticism by Nobody Nowhere is a legitimate criticism of the SLK study.

David:

Had Nobody's criticism been explained as you did, I would have responded accordingly. However, he neglected to bring any facts or logic to the table.

Regardless, as you know there are other studies that have used other methodologies to compare the spread of technology with and without patents. Yes, all such studies (including those that hypothesize that the world would be better without patents) have flaws, the biggest of which is that there are few "pure" examples of a world either with or without patents.

Oh, look, Lonnie's been lying about me again.

1. I am not religious. 2. I did indeed bring facts and logic to the table. Among the facts, that personal attacks are worthless. Mainly I used the claims in Lonnie's own post against him by exposing their internal contradictions, which does not require introducing wholly new facts. 3. I have every right to post here and rebut his arguments, contrary to his implication when he says "go away" to me in no uncertain terms.

Of course, it should also be noted that Lonnie appears to be outnumbered here. :)

Nobody:

I believe that a sane man in an insane asylum will always be outnumbered.

No, Lonnie, you're the crazy one.

Nobody:

Your paranoia is showing again.

No, you're the paranoid one.

Stop posting personal attacks.

Nobody:

Considering that you are the one calling people crazy, and you are the one acting paranoid and attacking people personally, both here and at other web sites where you have stalked me, I would suggest that the pot should stop talking about the kettle.

"Considering that you are the one calling people crazy"

I am not. You said "Nobody, your paranoia is showing again". In other words, YOU are the one calling people crazy, which isn't very nice.

I have never "stalked" you or seen you at any other sites. You may have me confused with somebody else.

Stop publicly lying about me at once.

Nobody:

I sure wish you would leave me alone.

You wish that I would leave YOU alone? That's rich, considering that you are the one publicly badmouthing me, and all you need to do to be left alone by me is to not post about me here.

Nobody:

I was publicly badmouthing YOU? lol...That is even richer.

I think it only appeared that I was badmouthing you. After all, are facts badmouthing or just the truth?

The day you actually post some actual facts, I'll tell you.

Nobody Nowhere:

You want facts? How many? About what? Until you tell me what you want facts about, I offer you a couple in advance:

- Nobody Nowhere has not revealed his real name on this website and advised people that his real name is connected to Nobody Nowhere.

- I have never said that Nobody Nowhere is crazy. Being paranoid is not the same as being crazy. I suspect many people are paranoid for short periods of time for one reason or another, usually without real justification.

"Nobody Nowhere has not revealed his real name on this website and advised people that his real name is connected to Nobody Nowhere."

This is irrelevant to the subject of "IP Vices and Crimes".

"I have never said that Nobody Nowhere is crazy."

This, while technically true, is deceptive: you have certainly implied it.

"Being paranoid is not the same as being crazy."

True, because being crazy allows for many other possibilities, such as schizo, klepto, severely depressed, delusional, psychotic, and so forth; paranoid is just one of them, so it's a more specific diagnosis than the generic "crazy".

But being paranoid certainly means being crazy, for a particular type of crazy.

"I suspect many people are paranoid for short periods of time for one reason or another, usually without real justification."

This is irrelevant to the subject of "IP Vices and Crimes".

Nobody Nowhere has not revealed his real name on this website and advised people that his real name is connected to Nobody Nowhere.

This is irrelevant to the subject of "IP Vices and Crimes".

While this statement may be irrelevant to the subject, it is relevant to the topics you mentioned.

I have never said that Nobody Nowhere is crazy.

This, while technically true, is deceptive: you have certainly implied it.

You inferred from my comments. I am unable to keep you from inferring things that are not there.

Being paranoid is not the same as being crazy.

True, because being crazy allows for many other possibilities, such as schizo, klepto, severely depressed, delusional, psychotic, and so forth; paranoid is just one of them, so it's a more specific diagnosis than the generic "crazy".

But being paranoid certainly means being crazy, for a particular type of crazy.

I think a certain amount of paranoia is healthy.

I suspect many people are paranoid for short periods of time for one reason or another, usually without real justification.

This is irrelevant to the subject of "IP Vices and Crimes".

However, it is relevant to your comments, and thus fits in this subject as well as yours do.

"While this statement may be irrelevant to the subject, it is relevant to the topics you mentioned."

No, it is not relevant to anything whatsoever.

"You inferred from my comments. I am unable to keep you from inferring things that are not there."

No, you're the crazy one who is seeing things.

"I think a certain amount of paranoia is healthy."

See? Told you.

"However, it is relevant to your comments, and thus fits in this subject as well as yours do."

No. Nothing that you have written is relevant, or even worthwhile. You are posting personal attacks rather than discussing IP. Go away.

Nobooby:

Let us return to your very FIRST post on this page, after my posts:

As usual, Lonnie has some nonsense for us this week:

So, who is attacking who? Who spouts nonsense the very first statement they make? Who brings irrelevancy to arguments? Is this statement even worthwhile?

Before you starting accusing others of doing things, perhaps you should go back and see whether you did them yourself, and without even being addressed.

"Let us return to your very FIRST post on this page, after my posts:

As usual, Lonnie has some nonsense for us this week:

So, who is attacking who?"

You. The first attack comment on this post was by you, aimed at Stephan Kinsella, saying "What is preposterous and absurd is this statement. It twists a viewpoint into a pretzel and then expects logic to come from it."

"Who spouts nonsense the very first statement they make?"

Again, you.

"Who brings irrelevancy to arguments?"

Again, you -- often in the form of ad hominem arguments.

"Before you starting accusing others of doing things, perhaps you should"

No. Perhaps YOU should simply shut up and accept whatever opprobrium you get from coming to a blog called "Against Monopoly" to shill for patent holders!

Nobody Nowhere:

A quote from you:

Perhaps YOU should simply shut up...

Intelligent come back. If that is the best argument you have (which it seems to be), then perhaps you should choose somewhere else to play and spout your nonsense.

As for Mr. Kinsella, he is a patent attorney and has been one for some time. I suggest that with the intelligence and education it requires to become a patent attorney that he likely is quite capable of defending himself. He certainly does not need you to "defend" him - though your defense is more like a continual ad hominem attack.

Incidentally, I would love to know why you can only post once a week. Are you in an institution where you only may use a computer once a week?

"perhaps you should choose somewhere else to play and spout your nonsense. "

I'm not the one who spouts nonsense here, Lonnie, you are.

"He certainly does not need you to "defend" him"

He doesn't seem to be complaining.

"Incidentally, I would love to know why you can only post once a week."

I can post any time I like, but the weekend is when I have the most time. Because I, unlike you, actually earn an honest living during the week.

Nobody:

Used car salesman? Dog catcher? Politician?

Software engineer.