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Monopoly corrupts. Absolute monopoly corrupts absolutely.





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The Libertarian Case Against Intellectual Property: A Concise Guide

"The Case Against IP: A Concise Guide," by Stephan Kinsella, Mises Daily (Sept. 4, 2009).

"The time is ripe to concisely restate the basic libertarian case against IP and provide links to some of the key anti-IP publications. read more…"

[Mises cross-blog; StephanKinsella.com cross-blog]


Comments

I'm a natural rights libertarian (neither utilitarian, nor objectivist) and I find myself completely in support of intellectual property. I only have a case against the granting of monopolies over it.

So isn't it a little presumptuous to equate libertarianism as necessarily against IP?

Just you try and steal my IP (or copies thereof) from me, then you'll see why it's naturally my property to give or keep, and not fair game for your taking.

If I give it to you however, then I will discard or neutralise the unnatural monopoly over it that the state has unethically granted me, and not seek one if it is available.

So why do you persist in refusing to recognise IP as a natural right rather than simply remain only against its unnatural monopoly?

Even if you can't answer that question, why do you refuse to concede the existence of libertarians who are against monopoly, but not IP?

Others have observed before of "...there being no property more peculiarly a man's own than that which is produced by the labour of his mind."

Fools have granted them monopolies in their literary works on the pretext of encouraging them to deliver their works to the public, but such monopolies do not invalidate the works as property - even if the monopolists pretend they have a right to a monopoly. Abolish the monopoly and we are left with property unencumbered by privilege, natural intellectual property.

You might still refuse to recognise it, but can you really pretend the non-existence of libertarians who recognise it? You cite none. For you the world appears to consist entirely of: A) those who recognise IP and justification to grant monopoly to it. C) those such as yourself who do not recognise IP at all.

Why do you omit: B) those who recognise IP, but no justification to grant monopoly to it.

Crosbie, you keep repeating this bizarre line over and over, that you are in favor of IP but not monopolies in it--I have no idea what you are talking about. Libertarians are (I argue) against legally enforced IP rights. What your "IP" is, I have no idea. If it's IP rights, I'm against it. If it's not, then it's just your idiosyncratic language you are using, which you have a right to do.
I'm not sure, but it seems to me that what Crosbie calls IP is in fact just normal physical property that is somehow connected with one's creativity, for example a statue, a manuscript of an original literary work or a CD with a song the owner just composed and recorded? Crosbie, if I'm mistaken please correct me and explain what exactly do you mean by "IP".
Samuel, I get the impression Crosbie is the type of person who is unable for some reason to give you a clear answer to this question. He's got a pet, crankish idee fixee and cain't let go of it.
Y'all smokin' crack, except Crosbie. His position is nice and simple, you just refuse to open your minds to understand.

Crosbie writes a book. He OWNS the content of that book, and it is his choice to keep the book or not. The "book" may only be electronic (i.e., imaginary). Regardless, the book and its content belongs only to Crosbie until he decides to:

o Sell a copy.

o Sell the copying rights.

o Give a copy away.

o etc.

Prior to any of these acts, Crosbie's intellectual property is as much his property as his house, his dog, or his underwear. Now, once Crosbie relinquishes control over a copy, he is saying that copy is no longer his and anyone owning that copy is permitted to do with the copy whatever they like.

Fundamentally, intellectual property (creations of the human mind) is natural and exists whether there are people-supported monopolies of the intellectual property or not.

Anonymous: In other words, what Samuel Hora said. When you think up a book, you already owned your brain beforehand. Having a copy of a book now encoded in your brain cells doesn't change the nature of your ownership of your brain. Similarly, when you write a book on paper that you own, you own this "intellectual" property because you already owned the paper. If you didn't own the paper, the book is not your property "intellectual" or otherwise. The same goes for the hard drive in your computer.

So, why should such property be treated any differently from, you know, property? I have yet to see Crosbie provide a coherent answer to this question. My hypothesis is that he's playing the same game the intellectual monopolists are playing: trying to confuse people by the use of words in an unclear manner. I admire the goal (to fight the monopolists), but I cannot endorse such a deceitful means to achieve it (and I don't think it's working anyway). Of course, perhaps I have misunderstood Crosbie, and he will finally provide a coherent explanation for his idiosyncratic language. Nah…

@David, of course, if you do not recognise intellectual property, you're only going to recognise material as able to constitute property. This is why you are unable to begin to recognise intellectual work as able to be treated as property in the first place. You have wilfully blinded yourself to any possible recognition.

See The Country of the Blind for a story concerning how difficult it is for a person with sight to explain the concept of sight to a community that has been blind for generations and has no terms of reference with which to begin to grasp it.

I see the writing on the page. You see only paper and ink.

I can naturally defend the writing in my possession from the attempts of others to steal or copy it. Or I can sell that writing to those who value it. And this is without the grant of an unnatural monopoly to encourage me to publish my writing.

If you are a judge and someone steals a copy of my writing (despite my best attempts to physically secure my writing within my private domain), you, being blind to the concept of IP, will say "Was any material removed?" I will say "No, m'lud" and you will say "No theft has occurred. Case closed". And if my writing had been removed, only the paper and ink would have been recognised, not its informative arrangement.

Something is property because it behaves as property naturally, not because a judge has decided to recognise it as property. Similarly, property doesn't cease being property because an IP nihilist has decided the world would be a better place if people blinded themselves to the possibility that intellectual work could constitute the property of its possessor.

I am just as against the recognition of unnatural property (privileges of copyright and patent) as I am against the non-recognition of natural property.

Anyway, the point here is not for me to demonstrate the case for the recognition of natural IP, but for Stephan Kinsella to explain why he refuses to recognise the existence of people who hold this position, i.e. only recognises either IP monopolists or IP nihilists, but not IP naturalists.

Crosbie: "Anyway, the point here is not for me to demonstrate the case for the recognition of natural IP, but for Stephan Kinsella to explain why he refuses to recognise the existence of people who hold this position, i.e. only recognises either IP monopolists or IP nihilists, but not IP naturalists."

You know, Crosbie, I'm not the biggest genius in the world. But I'm no dummy. And I know a bit about IP. And I cannot make heads or tails of your jumbled, apparently crankish views.

Crosbie, I'd like to understand what do you mean by "IP". If you create a poem and lock it in your safe, should I according to your understanding of IP be prevented from writing a very similar poem using exclusively my own property?
The idea that ownership is communicated by similarity is a supernatural notion.

The privilege of patent may adopt it, but not I.

I'm a little offended you could think it of any natural rights libertarian.

Even if you composed an indistinguishably similar poem, it would be just as much yours as mine was mine.

This is meta rather than germane to the above.

Is there a way to ensure one sees every single new comment to the site?

The problem is that the "latest comments" thing only shows the most recent ten comments. So there only seem to be three ways I can think of:

1. Periodically go back through the entire archive of the site checking the date on the bottommost comment on each post that has comments. 2. Check the site very frequently. I've been checking it at least every 24 hours, and still sometimes find that more than ten new comments have been posted since the last visit, so it would have to be even more frequent. 3. If the site has comment feeds: go back through the entire archive once, subscribing an RSS reader to every single comments feed. Periodically check for new posts and subscribe to all their comments feeds. Periodically check the feeds for new comments.

All of these seem onerous: 1 is very time consuming on a regular basis, 3 is very time consuming at least once and will only work if the site has comment feeds and may not scale well depending on the feedreader (and both 1 and 3 will hit the site with a fair bit of traffic), and 2 seems to require checking the site at least every six hours(!).

I think this is a problem, and there should either be a global all-comments RSS feed (if such a thing is possible) or the "most recent 10 comments" box should have a "previous 10" link, or similarly, so that one can wade back through all the comments in reverse chronological order much as one already can the top-level posts.

It wouldn't matter so much, except that Lonnie has a penchant for posting personal attacks aimed at me, sometimes as comments on old posts (though generally only ones where he'd previously had an argument with me), and if I am to neutralize the potential effects of such attacks I must be able to discover them as they are posted so that I can post rebuttals.

I've definitely seen him post a fresh personal attack in a comment to a blog post that was at least several months old, so this is not just a theoretical danger.

Google site search isn't useful; a search for "Lonnie" turns up thousands of mostly-nonfunctional links for some reason, and not just a list of all the posts with comments by him, one link per post. Furthermore, Lonnie has recently quit signing his name to his posts and now posts as "Anonymous" anyway, in a futile effort to escape the bad reputation he acquired under the previous name. (Futile, because his posts are immediately recognizable no matter what name he puts on them.)

Hey. Who removed line breaks from my previous post? Don't do that again.
Beeswax: you really don't need to neutralize graphomanic trolls. You must not reply if there is no chance a poster is sincere with his questions or willing to educate himself! Reply once for the sake of the audience, but any further discussion is void.

Crosbie: There is a difference between being unable to see the possibility of ownership of ideal objects and not seeing any sound arguments for it. If you look closely at the anti-IP literature, there are discussions about the attempts to justify it and none of them was found realistic. You see, we know the various theories of IP and understand their absurd consequences in real life. IP is not rejected because of blindness, but because the arguments for it were examined and found invalid.

"Even if you composed an indistinguishably similar poem, it would be just as much yours as mine was mine." - I'm just trying to find out what you call "IP". So if it is not the physical ink and paper and it's also not the ideal object of the poem, what is it that you think should be the subject to IP? What is being "stolen" by copying other than the ideal object? What is the difference between the results of copying and independent creation?

Samuel, because, like most indoctrinated by the monopoly of copyright, you have adopted its implicit notion of the 'ideal object' you can't see the natural, real object.

You see a poem as an ideal object pervading the universe; that the moment a poem is created, its author owns all likenesses of that poem, possibly only those that are indistinguishable in expression, possibly all those that are semantically indistinguishable.

That is a supernatural notion that elevates an individual with the powers of a god. We do not have such power and never did.

Of course, if you do have such a notion, you then perceive copyright as a weakly approximated recognition of that power in law. You should take a moment to wonder at the reality of a mortal power that even the legislature dares only approximate.

However, this is the gambit of the IP nihilist. They convince you that IP concerns the treatment of intellectual works as 'ideal objects' instantaneously pervading the universe, supernaturally inserting themselves into the private domains of all others, precisely in order to convince you that IP is complete bunk. You are thus tipped into such complete denial that you can no longer recognise the real object that constitutes intellectual work, a real, natural object, that is the natural property of its possessor.

The poems I write do not supernaturally pervade the universe (subject to my godlike power), but as truly natural, real objects they nevertheless remain my natural property, subject to my natural power. And this is all the law should ever have attempted to secure. I have no natural power to constrain others from copying the works I give them (their natural property), but I do have the natural power to constrain others from copying the works that remain in my possession. Hence IP without the privilege of monopoly is perfectly natural.

If you've been persuaded to find 'IP+state granted monopoly' so repugnant that you abhor even the IP that people possess a natural monopoly to, then it's not surprising you're an IP nihilist. It's also not too surprising that consequently you can't recognise natural IP. But, that you're blind to it doesn't mean it doesn't exist. Even without the unnatural privileges of copyright and patent, people will still exert their natural power to protect the intellectual works in their possession from theft or unauthorised copying. You can pretend such property doesn't exist if you like, but those for whom it does exist, will jealously guard it. If you are successful in legislating the pretence of its non-existence, then like pirates asserting their natural liberty to copy their natural property, so the natural owners of intellectual property will assert their natural right to protect their private property - and demand legislation in support.

Just as unnatural privileges are undone by nature, so are attempts to deny nature, undone.

That's why I repeatedly asked you to point to me the thing I am supposedly blind to. Please show me some hint of the existence of that what you speak of. If it's not the ideal object than what is it?

For instance you may go back to your example of the judge and the case of your writing being copied. Try to describe how a non-IP-blind judge should discern whether something was stolen or not.

Crosbie once again repeats his idee fixee. It is amazing to me, not that he holds his "views," but that he seems unable to see how kooky and incoherent they appear to others.

Crosbie as best I can tell, you are either saying nothing, or something fallacious. Either you support IP in the sense of legally enforceable rights different than mere rights in scarce resources or you do not. This middle-position stuff is just mumbo jumbo.

Samuel, we have at least 300 years of experience in determining whether an intellectual work has been copied. You may feel that such experience was in mumbo jumbo nonsense, but the fact remains that many judges do have the necessary ability to recognise the unauthorised removal or copying of intellectual works. That ability can be applied without granting anyone a reproduction monopoly.

It is that privilege of monopoly that is unnatural, not the recognition of intellectual work as the natural property of its possessor.

The fact that a king might grant monopolies in the production of wicker baskets does not invalidate the recognition of wicker baskets as property. Consequently, when the monopolies in wicker baskets are abolished, baskets remain able to constitute property, the natural property of their possessors.

This should be enough to grok natural IP. However, you've got this crazy notion that all wicker baskets of the same design represent the same wicker basket. So, there may be 500 similar wicker baskets owned by 500 people, but in your book, there is only one wicker basket and given it isn't sensible for it to be owned by one person you've decided that no-one can own it - ipso facto it's not property. No. Don't be silly. Each basket is the property of its owner (typically its possessor) - whether similar to someone else's or not. Don't become distracted by similarity - it does not communicate ownership (except by unnatural privilege).

"...determining whether an intellectual work has been copied." - I thought they do it on the basis of similarity which you acknowledged is false.

"...enough to grok..." - Not enough. You're missing the notion of scarcity. If the baskets were not a scarce resource, then they would not be property. Similarly, the design or the idea of a basket or the way of weaving the cane is not scarce and so it's not property.

When you copy a basket or a poem it is not the physical basket itself nor the paper and ink that is being copied, it is the non-scarce unownable ideal object of the design, the information, the arrangement of the parts of the scarce physical object. A new instance of the ideal object is being created and nothing scarce is being stolen.

Crosbie, you have still not demonstrated that there exists anything else beyond the scarce physical objects and non-scarce ideal objects

Samuel, patents are infringed on the basis of similarity, but copyright is infringed on the basis of provenance (contagion). Similarity is only considered as an indicator of copying, i.e. if similar works are created independently then copyright is not infringed.

Suddenly you've thrown another strange notion into the pot: scarcity. You must be getting desperate. Whether pebbles are scarce or not does not prevent the unique pebble in my possession from being my property. Similarly, the fact that indistinguishably similar paper-clips can be produced on a massive scale does not prevent the paper-clips in my possession being my property.

And again you have divided the world of objects into material objects and (supernatural) ideal objects, conveniently missing out the real and natural objects I'm talking about, i.e. physical, intellectual works.

Scarcity is irrelevant.

There are two kinds of physical thing in this natural universe: matter and energy, or material and information. They are fundamentally interchangeable, but with each we have different facilities. As humans we can apprehend both, with our bodies and our minds, as our property - whether the baskets we weave or the poems we write. We can control access to them and what is done with them.

In my briefcase I have a painted pebble, a curiously folded paper-clip, and a poem on parchment. Being naturally my material and intellectual property you can't have any of them unless I let you, nor can you copy any of them. If through force you overpower me and either remove or copy any of my items I would have the government prosecute your theft and remedy your act - with restitution. And that means recognising any unauthorised copies you may have made (using its considerable experience in enforcing copyright to do so).

So, come on, though you concede recognition of material theft, justify your violation of my privacy in order to make unauthorised copies of my intellectual property, that such acts should remain unrecognised given you've decided IP doesn't exist - whether aesthetic, literary, or mechanical.

Remember, I'm against being granted a reproduction monopoly to my pebble, paper-clip, and poem. I'm simply arguing that they are self-evidently recognisable as naturally my material and intellectual property. I'm naturally able to defend them as my property, but you don't think I should be legally permitted to - you don't think that the law should recognise my natural intellectual property rights, only my material property rights. You believe it's open season for burglars to copy my intellectual property as long as they don't remove my material property. Well, no of course you don't believe that, you don't even recognise 'intellectual property' so you have no beliefs that concern it. You see only material, only paper and ink, no words upon my parchment. And when I use the term 'IP' it comes across to you as 'blibble'. :)

But, again, the issue is not whether this house recognises IP, but why this house disbelieves in the existence of libertarians who recognise IP without monopoly, i.e. why the world can be simply divided into those who recognise IP as the ownership of intellectual works as 'ideal objects' (approximated by monopoly), and those who only recognise material property - strangely excluding those who recognise IP as the ownership of intellectual works as natural, physical objects (without monopoly).

Crosbie Fitch writes: "You believe it's open season for burglars to copy my intellectual property as long as they don't remove my material property."

No, of course not, but there are existing laws against assault, mugging, B&E, trespass, and invasion of privacy. New ones are not needed. Privacy laws and laws against trespass and various forms of snooping, and the Fourth Amendment limiting government searches of private property, come the closest to being explicitly about what you call "natural IP".

Samuel Hora writes:

"Beeswax: you really don't need to neutralize graphomanic trolls. You must not reply if there is no chance a poster is sincere with his questions or willing to educate himself! Reply once for the sake of the audience, but any further discussion is void."

I write not for his benefit but for the sake of the other people. What he writes might mislead an unsuspecting public, both about patents and, unfortunately, also about me personally. If however anyone who reads such a thing from him sees an objection from me immediately following, they will not mistakenly think that perhaps what he wrote is not contended.

Crosbie, you might want to start here: http://en.wikipedia.org/wiki/Scarcity The things you write are now partially explained by your lack of knowledge of basic economic terms.
Samuel:

One of the problems society faces is balancing scarcity and non-scarcity. For example, invention is a scarcity. Indeed, it was the scarcity of invention that has driven society, time after time after time, to adopt a method of incentivizing invention.

Some wonder why invention needs incentivized at all, because the economy supposedly drives invention via innovation. However, innovation, which is in much greater abundance than invention, is much easier to conduct than invention, and thus innovation is relatively less scarce, and may even be argued to be infinite. However, if innovation was to copy scarce invention without restriction, the original inventor is dis-incentivized to invent, as would be future inventors.

Another way to look at things is the economics of drivers. Basic research tends not to have any payback, or payback is over decades and even centuries. Few companies perform basic research, and thus society has formed patronage for basic research via government grants to a variety of institutions. Scientific discoveries, which are not patentable, are generally funded by society as a whole.

Innovation, as defined by Mike Masnick, is driven by societal demand for goods, and thus the reward for innovation is the profit from sales of desirable products.

Invention, however, is caught in the middle. Because a significant portion of invention only adds to public knowledge and may or may not provide the basis of a product, society has no desire to fund inventions that may or may not have an eventual use, even if the knowledge of the invention does.

On the other hand, innovators are not interested in funding invention if they can gain the invention for free. Indeed, few "innovators" would pay for inventions on which they base their "innovation," based on historical data. Even with patents, there are numerous examples of people using inventions without ever acknowledging the existence of the patent. However, there are also numerous cases where inventions were copied with abandoned once the patent or patents expired, showing that, contrary to myth, people are aware of patents.

The question becomes how we can fund invention that ultimately benefits society without funding invention that does not benefit society, without knowing in advance which is which. The answer is that the inventor funds himself, and society decides whether the inventor will be reimbursed via the patent.

The system is nicely balanced as long as it is not abused, as Thomas Jefferson noted when speaking of his guarded support for patents.

The system is not "nicely balanced", and would not be even if it weren't ripe for abuse. The system creates monopolies, which inherently are the antithesis of "nicely balanced".

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