Stephan Kinsella on the Logic of Libertarianism and Why Intellectual Property Doesn't Exist
The Daily Bell is pleased to present this exclusive interview with Stephan Kinsella.
Introduction: Stephan Kinsella is a libertarian scholar and attorney in Houston. The Executive Editor of Libertarian Papers and Director of the Center for the Study of Innovative Freedom (C4SIF), he is Counsel/Treasurer of the Property and Freedom Society, serves on the Advisory Panel of the Center for a Stateless Society and is also a member of the Editorial Board of Reason Papers and of The Journal of Peace, Prosperity & Freedom [Australia]. He was formerly a partner with Duane Morris LLP, General Counsel for Applied Optoelectronics, Inc. and adjunct law professor at South Texas College of Law. Stephan has published many libertarian articles and books including Property, Freedom, and Society: Essays in Honor of Hans-Hermann Hoppe (co-editor, Mises Institute, 2009), Against Intellectual Property (Mises Institute, 2008; Laissez Faire Books edition forthcoming) and the forthcoming Law in a Libertarian World: Legal Foundations of a Free Society and Copy This Book (both Laissez Faire Books). Stephan’s legal publications include International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (co-author, Oxford University Press, 2005), Louisiana Civil Law Dictionary (co-author, Quid Pro Books, 2011) and several other legal treatises published by Oxford University Press, Oceana Publications and West/Thompson Reuters.
Daily Bell: Give us some background on yourself. Where did you go to school? How did you become a lawyer?
Stephan Kinsella: I was from a young age interested in science, philosophy, justice, fairness and "the big questions." I ended up majoring in electrical engineering at Louisiana State University (LSU). This was the mid-1980s. I liked engineering but over time became more and more interested in political philosophy.
In the late '80s I started publishing columns in the LSU student newspaper, The Daily Reveille, from an explicitly libertarian perspective. As my interests became more sharply political and philosophical, my girlfriend (later wife) and friends urged me to consider law school. After all, I liked to argue. I might as well get paid for it! I was by this time in engineering grad school. Unlike many attorneys I know, I had not always wanted to be a lawyer. In fact, it had never occurred to me until my girlfriend suggested it over dinner, when I was wondering what degree I could pursue next—partly in order to avoid having to enter the workforce just yet. And also to make more money. At the time I naively thought one had to have a pre-law degree and many prerequisite courses that engineers would lack; and I feared law school would be too difficult. I remember my girlfriend's chemical engineer father laughing out loud at my concern that law school might be more difficult than engineering.
So I walked across the LSU campus one day and talked to the vice chancellor about all this. He tried to dissuade me, saying that engineering undergrads tended to find law school difficult. But he conceded that a pre-law degree is not needed; all one needs is a BS or BA in something. I took the LSAT and did well enough to get accepted at LSU Law Center. (In the US, law is a graduate degree, the Juris Doctor, which requires an initial B.A. or B.S. degree. Because of ABA protectionism. But I digress.)
I discuss some of this in my article "How I Became A Libertarian," LewRockwell.com (December 18, 2002), also published as "Being a Libertarian" in I Chose Liberty: Autobiographies of Contemporary Libertarians (compiled by Walter Block; Mises Institute 2010).)
I actually greatly enjoyed law school. Unlike many of my fellow law students, apparently, who seemed in agony. I was free to talk about laws, rules, human action and interaction. Norms and opinions were relevant. I enjoyed the Socratic discussion method. In one sense, it was unlike electrical engineering, which studies the impersonal behavior of subatomic particles. In law, the subject matter is acting humans and the legal norms that pertain to human action. On the other hand, I found it similar to engineering in that it was analytical and focused on solving problems. It is less mechanistic and deterministic than is engineering but it is still analytical. So if you are the type of engineer who can shift modes of thought and who is able to write and speak coherently (not all engineers are), then law school is fairly easy. By contrast, many liberal arts majors are not used to thinking analytically. The first year of law school is meant to break their spirit and remold them into the analytical, lawyer-thinking, problem-solving mold.
In any case, I became a lawyer and do not regret it. It can be lucrative and mentally stimulating. In my own case, my legal career has complemented my libertarian and scholarly interests. As Gary North has pointed out, for most people there is a difference between career and calling. Your career or occupation is what puts food on the table. Your calling is what you are passionate about – "the most important thing you can do with your life in which you are most difficult to replace." Occasionally they are the same, but often not; but there is no reason not to arrange your life so as to have both. In my case, my various scholarly publications and networks helped my legal career if only by adding publications to my CV. And my legal knowledge and expertise, I believe, has helped to inform my libertarian theorizing.
Daily Bell: You founded your own firm. Tell us how that came about.
Stephan Kinsella: After law school my first job was in oil and gas law at a large Houston based law firm, Jackson Walker. I found the work fascinating; it was all about contract and property rights. Then I moved into patent law because it was more in demand at this time (mid '90s) and unlike state-based oil & gas law, it is a national legal field so allows more geographic mobility. My wife's employer at the time was pushing her to take a job in the head office outside Philadelphia. So I switched to patent law in part to accommodate this and in part to capitalize on the then-burgeoning field of IP law.
I recall discussing my career choices at this time with my friend, LSU law professor Saúl Litvinoff, an old-world gentleman, who confessed that he was "nonplussed" that I, a man, a husband, would take into account my wife's career plans in my own career decisions. Oh, well. Different times.
I ended up taking a job with a Philadelphia law firm, Schnader Harrison, doing patents and related IP work. I and others there ended up moving later to Duane Morris, and when I moved back to Houston in 1997 I opened their Houston office. In 2000 I decided to join one of my clients as general counsel. At the time I had been at big law firms for about ten years and had learned a lot and enjoyed it but was ready for a change. And after about ten years as general counsel, I was ready for another shift so I have recently formed my own legal practice, specializing in intellectual property, technology and commercial law.
Daily Bell: Why were you attracted to Austrian economics and why did libertarianism attract you?
Stephan Kinsella: I was always interested in science, truth, goodness and fairness. I have always been strongly individualistic and merit-oriented. This is probably because I was adopted and thus have always tended to cavalierly dismiss the importance of "blood ties" and any inherited or "unearned" group characteristics. This made me an ideal candidate to be enthralled by Ayn Rand's master-of-universe "I don't need anything from you or owe you anything" themes.
Another factor is my strong sense of outrage at injustice, which probably developed as a result of my hatred of bullies and bullying. I was frequently attacked by them as a kid because I was small for my age, bookish and a smartass. Not a good combination.
A librarian at my high school (Catholic High School in Baton Rouge, Louisiana) one day recommended Ayn Rand's The Fountainhead to me. (I believe this was in 1982, when I was a junior in high school — the same year Rand died.) "Read this. You'll like it," she told me. I devoured it. Rand's ruthless logic of justice appealed to me. I was thrilled to see a more-or-less rigorous application of reason to fields outside the natural sciences. I think this helped me to avoid succumbing, in college, to the simplistic and naïve empiricism-scientism that most of my fellow engineering classmates naturally absorbed. Mises's dualistic epistemology and criticism of monism-positivism-empiricism, which I studied much later, also helped shield me from scientism.
By my first year of college (1983), where I studied electrical engineering, I was a fairly avid "Objectivist" style libertarian. I had read Henry Hazlitt's Economics in One Lesson and some of Milton Friedman's works (see my The Greatest Libertarian Books), but I initially steered clear of self-styled "libertarian" writing. Since Rand was so right on so many things, I at first assumed she must be right in denouncing libertarianism as the enemy of liberty. I eventually learned better, of course.
Daily Bell: How did you meet Lew Rockwell and become affiliated with Mises?
Stephan Kinsella: I eventually started reading more radical libertarians like Rothbard and Austrians like Mises and Hayek and soon became an Austrian and anarchist. The Austrian approach to knowledge made so much sense to me. It was rigorous without being mathematical and it was "Kantian" without succumbing to idealism: Like Rand's epistemology, the Misesian approach is also realistic. (Some of my favorite works in this regard are Mises' Ultimate Foundation of Economic Science, Rothbard's The Mantle of Science and Hoppe's Economic Science and the Austrian Method. See also my posts Mises and Rand (and Rothbard) and C.P. Snow's "The Two Cultures" and Misesian Dualism.)
In 1988, when I was in law school, I read Hans-Hermann Hoppe's controversial and provocative article in Liberty, "The Ultimate Justification of the Private Property Ethic" (for more on this topic, see my Argumentation Ethics and Liberty: A Concise Guide). In this article Hoppe sets forth his "argumentation ethics" defense of libertarianism. This idea had a profound influence on me. I wrote several papers defending libertarian ethics, based on this theory (discussed in the previously mentioned article) and I wrote an in-depth review essay of Hoppe's The Economics and Ethics of Private Property. I promptly sent it to Hoppe, who sent back a warm thank you note. This was around 1994.
Later that year, in October 1994, I attended the John Randolph Club meeting which was held near Washington, D.C., primarily to meet Hoppe, Rothbard and Rockwell. While there I was able to get Rothbard to autograph my copy of Man, Economy & State, which he inscribed "To Stephan: For Man & Economy, and against the state —Best regards, Murray Rothbard" (he died the following January). I started attending and speaking at various Mises Institute conferences such as their annual Austrian Scholars Conference. I am now involved with Hoppe's Property and Freedom Society, which has annual meetings in Bodrum, Turkey, since its founding in 2006.
Daily Bell: Tell us about your legal theory of property and how you came to believe that intellectual property doesn't exist.
Stephan Kinsella: My main interest has always been and remains the basics of libertarian ethics: What are individual rights and property, how is this justified and so on. As I discuss in Intellectual Property and Libertarianism, from the beginning of my exposure to libertarian ideas, the intellectual property (IP) issue nagged at me. I was never satisfied with Ayn Rand's justification for it, for example. Her argument is a bizarre mixture of utilitarianism with overwrought deification of "the creator" — not the Creator up there, but Man, The Creator, who has a property right in what He Creates. Her proof that patents and copyrights are property rights is lacking. (See my speech The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism, Austrian Scholars Conference 2008; and my blog posts Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors; Regret: The Glory of State Law; and Inventors are Like Unto.... GODS......)
So I kept trying to find a better justification for IP and this search continued after I started practicing patent law, in 1993 or so.
Many libertarians abandon minarchy in favor of anarchy when they realize that even a minarchist government is unlibertarian. That was my experience. And it was like this for me also with IP. I came to see that the reason I had been unable to find a way to justify IP was because it is, in fact, unlibertarian. I was heavily influenced by previous thinkers, as discussed in The Origins of Libertarian IP Abolitionism and The Four Historical Phases of IP Abolitionism. Perhaps the unlibertarian character of patent and copyright would have been obvious if Congress had not enacted patent and copyright statutes long ago, making them part and parcel of America's "free-market" legal system — and if early libertarians like Rand had not so vigorously championed such rights.
But libertarianism's initial presumption should have been that IP is invalid, not the other way around. After all, we libertarians already realize that "intellectual" rights, such as the right to a reputation protected by defamation law, are illegitimate. (See Murray N. Rothbard, Knowledge, True and False.)
Why, then, would we presume that other laws, protecting intangible, intellectual rights, are valid—especially artificial rights that are solely the product of legislation, i.e., decrees of the fake-law-generating wing of a criminal state? (For a criticism of legislation as a means of making law, see Legislation and Law in a Free Society and Another Problem with Legislation: James Carter v. the Field Codes.)
But IP is widely seen as basically legitimate. There have always been criticisms of existing IP laws and policies and many calls for "reform." But I became opposed not just to "ridiculous" patents and "outrageous" IP lawsuits, but to patent and copyright per se. Patent and copyright law should be abolished, not reformed. The basic reason is that patent and copyright are explicitly anti-competitive grants by the state of monopoly privilege, rooted in mercantilism, protectionism and thought control. To grant someone a patent or copyright is to grant them a right to control others' property − a "negative servitude" granted by state fiat instead of contractually negotiated. This is a form of theft, trespass, or wealth redistribution.
So to answer your question: IP rights − patent and copyright − "exist," but are not legitimate any more than welfare rights are. There are many types of IP; all are illegitimate, in my view. Not only because most of them are based on and require legislation (I view all legislation as unlibertarian; see Legislation and Law in a Free Society) but because they try to set up rights in non-scarce things, which in effect grants negative servitudes to some people at the expense of the property rights of others.
Daily Bell: According to Wikipedia and other sources, "In contract theory, you extend Murray Rothbard's and Williamson Evers's title transfer theory of contract linking with inalienability theory." What does that mean?
Stephan Kinsella: I discuss these issues in various places including Justice and Property Rights: Rothbard on Scarcity, Property, Contracts... and A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability. The basic idea is to root the entire idea of contract in a libertarian theory of property. The latter is based on the realization that the entire purpose of property rights is to solve the problem of incompatible uses of scarce resources. The fact that some things in the world are scarce resources means that these resources can be used as means of action only if ownership is assigned and socially recognized. For things that are not scarce there is no social problem to be solved. Hans-Hermann Hoppe addresses these issues in the opening chapters of his foundational treatise A Theory of Socialism and Capitalism.
Rothbard recognized that all individual rights are property rights and, therefore, that a theory of contract is not about enforceable or binding "promises" but simply about how owners of resources can contractually transfer title to others. As Rothbard recognized, this has implications for alienability or so-called "voluntary slavery" contracts. Many libertarians, assuming contracts are just binding promises, see no reason one could not bind oneself to be a slave. But if you view contracts as simply transfers of title to owned objects, then the question arises: Is one's body alienable, or not? You cannot just assume that it is. Rothbard argued that it was not.
Daily Bell: You also attempted to clarify the theory. How so?
Stephan Kinsella: Rothbard sketched the theory in 1974; Evers elaborated on it in 1977, based on Rothbard's insights. Rothbard then built on Evers's pioneering article in his 1982 Ethics of Liberty. But neither were lawyers and only took this analysis so far. I tried to incorporate their insights and integrate them with other Rothbardian, Misesian and Hoppeian insights about property rights and liberty and with established legal concepts, such as those developed under the Roman-influenced continental or civil-law systems, which I regard as more libertarian, in some respects, than the more feudalistic common-law concepts.
My basic approach is to recognize that mainstream legal theories of contract have been muddied by unlibertarian and positivistic conceptions of law and rights. Questions about what rights are "alienable" or not, loose talk about how promises should be "binding," etc., highlight the need for clarity in this area. In my view, to sort these issues out one needs a very clear and consistent understanding of the nature of property rights and ownership. First, we must recognize that only scarce resources are ownable; second, that the body is a type of scarce resource; third, that the mode of acquiring title to external objects is different from the basis of ownership of one's own body. The libertarian view is that human actors are self-owners and these self-owners are capable of appropriating unowned scarce resources by Lockean homesteading − some type of first use or embordering activity. Obviously, an actor must already own his body if he is to be a homesteader; self-ownership is not acquired by homesteading but rather is presupposed in any act or defense of homesteading. The basis of self-ownership is the fact that each person has direct control over the scarce resource of his body and therefore has a better claim to it than any third party (and any third party seeking to dispute my self-ownership must presuppose the principle of self-ownership in the first place since he is acting as a self-owner). (For more on this see my posts and articles The relation between the non-aggression principle and property rights: a response to Division by Zer0, How We Come To Own Ourselves, and What Libertarianism Is.)
So there is a difference in body-ownership and in ownership of external scarce goods. An actor is a self-owner; self-owners are able to acquire property rights in external objects by homesteading unowned resources − or by contractual acquisition from a previous owner. Many libertarians simply assume that if you own something, you can sell it. Thus, they conclude that if we are self-owners, we can sell our bodies. (Walter Block makes this argument.) My view is that we start with the nature of ownership: Ownership means the right to exclude others. It does not automatically imply the "right to sell" since this is actually moving from a situation where you have the right to exclude to one where you do not. But in the case of formerly unowned resources, because of the way ownership is acquired, it can be undone, in effect. Homesteading an object requires more than just possession − it requires the intent to own. So if the intent to own is abandoned, then the thing is no longer owned, but merely possessed (if that). Thus, an owner of an object can transfer ownership to another by allowing the other to possess the object and then manifesting his intent to abandon ownership, "in favor" of the new possessor. The new possessor then in effect re-homesteads the item, becoming its new owner. In other words, the nature of ownership in external objects means that it is possible to abandon ownership to them or use this abandonment method to transfer title to someone else. So ownership does not directly include the "right to sell," but it so happens to imply this power, for acquired property. However, the same is simply not true of one's body. There is no way to "undo" the homesteading of your body since you did not homestead it in the first place. There is no way to abandon your ownership of your body since it is rooted in your better claim to it based on your direct control over it. Merely stating "I promise to be your slave" doesn't change your status as having a better claim to your body than third parties. (For more on this, see A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability and How We Come To Own Ourselves.)
So in exploring the Rothbard-Evers title transfer theory of contract and in building on insights by Hoppe about the crucial importance of scarcity to property rights and his insights as to the nature of self-ownership and homesteading, I tried to identify the difference between body and external resource ownership, the basis and nature of acquisition of rights in each and the nature of what contracts are (transfers of title to alienable owned objects) and what implications this has for body-alienability (namely, that voluntary slavery contracts are unenforceable and invalid).
Daily Bell: You advance a theory of causation that attempts to explain why remote actors can be liable under libertarian theory. Can you clarify this point, please?
Stephan Kinsella: I had long been dissatisfied with the approach various libertarians take to the issue of responsibility for aggression caused by leaders or groups. Too often libertarians made what seemed to me to be too simplistic or unjustified assumptions, which they relied on in their analysis. For example some seemed to assume that there is a fixed amount of responsibility, so that if you say the mafia boss is responsible for ordering a hit, then the lackey who committed the killing is innocent. Or some would argue that a mafia boss or general or president is not responsible for the aggression committed by his underlings, unless he had coerced them or had a "contract" with them.
These all seemed confused to me. As for the latter: a contract is just a title transfer, so it is unclear why A hiring B to kill C means A is liable but A persuading B through sexual favors to kill C is not. Focusing on ad hoc exceptions to the rule that A is not responsible for B's actions seemed confused to me. The Austrian theory of subjective value teaches us that there are many ways to incentivize or motivate or induce someone to commit an action for you: you can promise sexual favors, promise to pay money, hire someone, and so on. Also, there is no reason to think that both the boss and his underling cannot both be 100% responsible: in the law this is called joint and several liability.
So in developing a paper called "Reinach and the Property Libertarians on Causality in the Law" for the Reinach and Rothbard: An International Symposium (Ludwig von Mises Institute, Auburn, Alabama, March 29-30, 2001), a version of which was later published as Causation and Aggression (co-authored with Patrick Tinsley, The Quarterly Journal of Austrian Economics, vol. 7, no. 4, Winter 2004: 97-112), I relied on Mises's praxeological understanding of the structure of human action and cooperation action in general. Mises points out that in a market economy with the division and specialization of labor, people use others as means to achieve their ends. This is the essence of market cooperation.
When the aim is peaceful production of wealth, this is good. But people can cooperate to engage in collective aggression too. In this case the members of the group conspire to achieve an illicit end, such as theft or murder. Just as a man can use a gun (a means) to commit aggression, so people can employ others as means to commit crimes. Sometimes these other people are innocent (e.g., hiring a boy to deliver a bomb concealed in a package) and other times they are complicit (the mafia boss's underling). In the latter case, both actors are aggressors, as they play a causal role in action that uses efficacious means to achieve the end of invading the borders of the property of innocent victims. The argument is general and praxeological and focuses on the intent of the actor (which relates to the praxeological end or goal of the action) and the means employed, whether that means be an inanimate good or another human. Thus, there is no need to resort to ad hoc exceptions such as "the boss is liable because he was coercing the underling" or "the boss is liable because of a contract with" the underling.
Daily Bell: You provide non-utilitarian arguments for intellectual property being incompatible with libertarian property rights principles. Can you explain this?
Stephan Kinsella: I alluded to this above in my discussion about negative servitudes. An IP right gives the holder the right to stop others from using their property as they wish. For example, George Lucas, courtesy copyright law, can use the force of state courts to stop me from writing and publishing "The Continuing Adventures of Han Solo." J.D. Salinger's estate was able to block the publication of a sequel to Catcher in the Rye, for example. This is censorship. (See The Patent, Copyright, Trademark, and Trade Secret Horror Files.) And Apple can get a court order blocking Samsung from selling a tablet if it resembles an iPad too closely. This is just protection from competition. (See Intellectual Property Advocates Hate Competition.)
Daily Bell: You offer a discourse ethics argument for the justification of individual rights, using an extension of the concept of "estoppel." Can you expand please?
Stephan Kinsella: This approach is summarized in Argumentation Ethics and Liberty: A Concise Guide and New Rationalist Directions in Libertarian Rights Theory. The libertarian approach is a very symmetrical one: the non-aggression principle does not rule out force, but only the initiation of force. In other words, you are permitted to use force only in response to some else's use of force. If they do not use force you may not use force yourself. There is a symmetry here: force for force, but no force if no force was used. In law school I learned about the concept of estoppel, which is a legal doctrine that estops or prevents you from asserting a position in a legal proceeding that is inconsistent with something you had done previously. You have to be consistent. I was at this time fascinated with Hoppe's argumentation ethics, which is probably why it struck me that the basic reasoning of legal estoppel could be used to explain or justify the libertarian approach to symmetry in force: The reason you are permitted to use force against someone who himself initiated force is that he has already in a sense admitted that he thinks force is permissible, by his act of aggression. Therefore if he were to complain if the victim or the victim's agents were to try to use defensive or even retaliatory force against him, he would be holding inconsistent positions: His pro-force view that is implicit and inherent in his act of aggression and his anti-force view implicit in his objection to being punished. Using language borrowed from the law, we might say he should be "estopped" from complaining if a victim were to use force to defend himself from the aggressor or even to punish or retaliate against the aggressor. I tried to work this into a theory of libertarian rights, relying heavily on insights from Hoppe's argumentation ethics and from his social theory in general.
Daily Bell: Please comment on and summarize the following books you wrote, with special emphasis on your IP theory:
• Protecting Foreign Investment Under International Law: Legal Aspects of Political Risk (with Paul E. Comeaux). Oceana Publications, 1997. ISBN 978-0379213713
• Online Contract Formation (with Andrew Simpson). Oxford University Press, 2004. ISBN 978-0379215199
• International Investment, Political Risk, and Dispute Resolution: A Practitioner's Guide (with Noah Rubins). Oxford University Press, 2005. ISBN 978-0379215229
• Against Intellectual Property. Ludwig von Mises Institute, 2008. ISBN 978-1933550329
Stephan Kinsella: The first three books are legal treatises that have little do with libertarianism or IP, although the first and third do examine practical ways for international investors to use international law to protect their property from takings from the host state (more on these at my legal site, KinsellaLaw.com).
The latter monograph was first published as an article in the Journal of Libertarian Studies in 2001, with the title suggested by Professor Hans-Hermann Hoppe, then the journal's editor. My initial title had been "The Legitimacy of Intellectual Property," the name of the earlier paper I had delivered at the Austrian Scholars Conference the preceding year.
It was only 11 years ago, but at the time there was not yet much interest among libertarians in intellectual property (IP). It was thought of as an arcane and insignificant issue, not as one of our most pressing problems. Libertarian attention was focused on taxes, war, the state, the drug war, asset forfeiture, business regulations, civil liberties and so on, not on patent and copyright.
I felt the same way. I looked into this issue primarily because I had been, since 1993, a practicing patent attorney and had always been dissatisfied with Ayn Rand's arguments in favor of IP (Ayn Rand, "Patents and Copyrights," in Capitalism: The Unknown Ideal (New York: New American Library, 1967), p. 133). Her weird admixture of utilitarian and propertarian arguments raised red flags for me. It included tortuous arguments as to why a 17-year patent term and a 70-year copyright term were just about right and why it was fair for the first guy to the patent office to get a monopoly that could be used against an independent inventor just one day behind him. I knew Rand's approach was wrong but I assumed there must be a better way to justify IP rights. So I read and thought and tried to figure this out. In the end, I concluded that patent and copyright are completely statist and unjustified derogations from property rights and the free market. So I wrote the article to get it out of my system and then moved on to other fields that interest me more, like rights theory, libertarian legal theory and the intersection of Austrian economics and law.
In the meantime, with the flowering of the Internet and digital information and with increasing abuses of rights in the name of IP, more and more libertarians have become interested in the IP issue and have realized that it is antithetical to libertarian property rights and freedom. It is in fact becoming a huge threat to freedom and increasingly used by the state against the Internet, which is one of the most important weapons we have against state oppression. (For more on this see SOPA is the Symptom, Copyright is the Disease: The SOPA wakeup call to ABOLISH COPYRIGHT. For more discussion of SOPA and PIPA, see C4SIF.org and Techdirt. See also Where does IP Rank Among the Worst State Laws?; Masnick on the Horrible PROTECT IP Act: The Coming IPolice State; Copyright and the End of Internet Freedom; and Patent vs. Copyright: Which is Worse?)
Daily Bell: What is the reaction to your theory of IP? Hostility?
Stephan Kinsella: At first there was apathy. The few people who thought about it mostly thought my views were too extreme − maybe we need to fix copyright and patent but surely the basic idea is sound. But my impression is that nowadays most libertarians are strongly opposed to IP. (See The Death Throes of Pro-IP Libertarianism; The Origins of Libertarian IP Abolitionism; The Four Historical Phases of IP Abolitionism.) And, in fact, scholars associated with the Mises Institute sensed the importance of this issue earlier than most − for example, the Mises Institute awarded my "Against Intellectual Property" paper the O.P. Alford III Prize for 2002.
Laissez Faire Books is coming out with a new edition of my Against Intellectual Property later this year. I am also in the process of writing a new book on IP, tentatively entitled Copy This Book, taking into account more recent arguments, evidence and examples. In the meantime, readers interested in these ideas may find useful the list of selected writings and talks that supplement the arguments made in AIP, which I have compiled in my C4SIF blogpost "Selected Supplementary Material for Against Intellectual Property." For further information see various works linked at c4sif.org/resources and material posted going forward at c4sif.org.
Daily Bell: How do you think artists and writers feel about it? What do they do to make a living if they do not receive royalties?
Stephan Kinsella: Well, sharing is not piracy, and copying is not theft. (And competition is not theft, either − see Intellectual Property Advocates Hate Competition.) But people are used to thinking in these terms, due to state- and special interest-inspired propaganda to the contrary. Most artists and writers do not make much money from copyright; if they are successful at all they typically go through a publisher who makes most of the profits and owns the copyrights anyway. Luckily, technology is allowing writers and musicians to bypass the publishing and music industry gatekeepers.
There are any number of models artists can use to profit off of their talent and artistry. It is not up to the state to protect them from competition. Musicians can obviously get paid for performing and having their music copied and "pirated" helps them in this respect by making them more well known, more popular. As Cory Doctorow has noted, "for pretty much every writer − the big problem isn't piracy, it's obscurity." Artists are just entrepreneurs. It's up to them to figure out how or if they can make a monetary profit from their passion − from their calling, as I discussed above. Sometimes they can. Musicians can sell music, even in the face of piracy. Or they can sell their services − concerts, etc. Painters and other artists can profit in similar ways. A novelist could use kickstarter for a sequel or get paid to consult on a movie version (see Conversation with an author about copyright and publishing in a free society). Authors of non-fiction such as academic articles do not even get paid today − but it enhances their reputations and helps them land jobs in academia, for example. Inventors have an incentive to invent to make better products that outcompete the competition − for a while. Or they are hired in the R&D department of a corporation that is always trying to innovate. And so on. And if you cannot make your calling your career, then find a way. As director Francis Ford Coppola has observed:
"You have to remember that it's only a few hundred years, if that much, that artists are working with money. Artists never got money. Artists had a patron, either the leader of the state or the duke of Weimar or somewhere, or the church, the pope. Or they had another job. I have another job. I make films. No one tells me what to do. But I make the money in the wine industry. You work another job and get up at five in the morning and write your script."
For some other examples, see: Funding for Creation and Innovation in an IP-Free World; Examples of Ways Content Creators Can Profit Without Intellectual Property; Innovations that Thrive without IP; The Creator-Endorsed Mark as an Alternative to Copyright. Techdirt also has a number of studies of how creators can profit from their works without relying on copyright, such as How Being More Open, Human And Awesome Can Save Anyone Worried About Making Money In Entertainment.
Daily Bell: We find your theories reasonable but are you making headway? Are people generally hostile?
Stephan Kinsella: As I mentioned earlier, libertarians have, in my impression, generally become more opposed to IP, and generally on principled grounds. Most "mainstream" people are reluctant to take a principled or "extreme" position, instead recognizing that IP is "broken" and needs to be "reformed." They think IP abolitionism is too extreme, but really cannot articulate why. (See There are No Good Arguments for Intellectual Property: Redux.)
Daily Bell: We've come to the conclusion that copyright law and patent law are deterrents to progress and technology. Your view?
Stephan Kinsella: The empirical studies all point this direction (see Yet Another Study Finds Patents Do Not Encourage Innovation). And this should not be surprising. Everything the state does, without exception, destroys. IP, especially patent and copyright, are pure creatures of state legislation. The origins of copyright lie in censorship and thought control; the origins of patents lie in mercantilism and protectionism. It should be no surprise that state interventions in the market lead to destruction of wealth, which of course will have an adverse effect on innovation.
Daily Bell: What would the world look like without patent and copyright law?
Stephan Kinsella: As far as copyright, I think it would look somewhat like what our current world is heading to since there is rampant "piracy" despite copyright law. Except there would be fewer outrageous, draconian results like jail terms and prison. (See Six Year Federal Prison Sentence for Copyright Infringement; Man sentenced to federal prison for uploading "Wolverine" movie; British student Richard O'Dwyer can be extradited to US for having website with links to pirated movies.) And there would be more freedom to engage in remixing and other forms of creativity and a richer public domain to draw on. We would still have a huge amount of artistic works being created, of course.
Without patents, companies would be free to compete without fear of lawsuits − and without being able to rely on a state-granted monopoly privilege to protect them from competition. I believe that an IP-free world would have far more innovation and diverse creativity than today's world. And there would be fewer barriers to entry so smaller companies could compete with the oligopolies that patent law has helped to create.
Daily Bell: Can you explain how patent and copyright law evolved and why it was likely a reaction to the Gutenberg Press and a means of controlling information rather than protecting the public?
Stephan Kinsella: The roots of copyright lie in censorship. It was easy for state and church to control thought by controlling the scribes, but then the printing press came along and the authorities worried that they couldn't control official thought as easily. So Queen Mary created the Stationer's Company in 1557, with the exclusive franchise over book publishing, to control the press and what information the people could access. When the charter of the Stationer's Company expired, the publishers lobbied for an extension, but in the Statute of Anne (1710) Parliament gave copyright to authors instead. Authors liked this because it freed their works from state control. Nowadays they use copyright much as the state originally did: to censor and ban books − or their publishers do, who have gained a quasi-oligopolistic gatekeeper function, courtesy copyright law. For more on this, see History of Copyright, part 1: Black Death; How to Slow Economic Progress. And now we see copyright being used, along with regulation of gambling, child pornography and terrorism, as an excuse for the state to radically infringe Internet freedom and civil liberties. (Where does IP Rank Among the Worst State Laws?; Masnick on the Horrible PROTECT IP Act: The Coming IPolice State; Copyright and the End of Internet Freedom; Patent vs. Copyright: Which is Worse?)
Patents originated in mercantilism and protectionism; the crown would grant monopolies to favored court cronies, such as monopolies on playing cards, leather, iron, soap, coal, books and wine. The Statute of Monopolies (1624) eliminated much of this but retained the idea of a monopoly grant to an inventor of some useful machine or process. (See "Why 'Intellectual Property' is not Genuine Property," Adam Smith Forum, Moscow; also How to Slow Economic Progress.)
Daily Bell: Didn't Germany do better WITHOUT strict copyright than Britain did WITH it? Isn't this the reason that Germany progressed so much in literature, philosophy, mathematics, etc. during the 17th and 18th centuries?
Stephan Kinsella: It probably had something to do with it. As noted in Frank Thadeusz's article No Copyright Law: The Real Reason for Germany's Industrial Expansion?, a new study by economic historian Eckhard Hoffner shows that Germany's lack of copyright in the 19th century led to an unprecedented explosion of publishing, knowledge, etc., unlike in neighboring countries England and France where copyright law enriched publishers but stultified the spread of knowledge and limited publishing to a mass audience. The article claims that this is the main reason that Germany's production and industry had caught up with everyone else by 1900. This seems believable to me. (See also Jeff Tucker, Germany and Its Industrial Rise: Due to No Copyright.)
Daily Bell: Shouldn't the enforcement of copyright law be strictly civil? When did it become a criminal offence?
Stephan Kinsella: I am not sure exactly when the criminal penalties were added but as I noted above, there are potentially severe civil and criminal penalties for copyright infringement, including prison, extradition, being banned from the Internet and so on. Patent law can also be enforced not only by a damages award but also by a court injunction ordering a competitor to stop making a given product, on pain of contempt of court.
Daily Bell: Why is Kim Dotcom in prison in New Zealand?
Stephan Kinsella: I've discussed this case in a number of posts on C4SIF. Basically, he offered a service that permitted people to share files (information) with each other. This crackdown threatens any number of "legitimate" sites and services such as Youtube, Yousendit, Dropbox and so on.
Daily Bell: We've postulated a simpler solution than what you present. We've pressed the argument for private justice - clan and tribal justice as practiced for thousands of years. In this formulation no "authority" is present but those agreed upon by the two parties to the quarrel/crime. Thus, copyright issues would become incumbent on the COPYRIGHT HOLDER to enforce. In other words, the copyright holder not the state would have the expense of enforcement. What's your take on this?
Stephan Kinsella: I suppose this could be an improvement but I think it's still misguided. Any attempt to use force against people using information would be aggression. The only exception would be if someone has contractually agreed to pay a fine if they use information in an unapproved way. But who would sign such a ridiculous contract? I believe there is nothing wrong with using information. If you reveal information to the public by telling people or selling some product that embodies or otherwise makes evident some idea, you have to expect people to learn from this, compete with you, maybe emulate or copy it or even build on and improve on it. As Wendy McElroy has explained, quoting Benjamin Tucker:
"...if a man publicized an idea without the protection of a contract, then he was presumed to be abandoning his exclusive claim to that idea.
'If a man scatters money in the street, he does not thereby formally relinquish title to it ... but those who pick it up are thereafter considered the rightful owners.... Similarly a man who reproduces his writings by thousands and spreads them everywhere voluntarily abandons his right of privacy and those who read them ... no more put themselves by the act under any obligation in regard to the author than those who pick up scattered money put themselves under obligations to the scatterer.'
"Perhaps the essence of Tucker's approach to intellectual property was best expressed when he exclaimed, 'You want your invention to yourself? Then keep it to yourself.'"
Daily Bell: Why should the state enforce copyright on behalf of the individual?
Stephan Kinsella: It shouldn't. In fact, the only thing the state should do is commit suicide.
Daily Bell: Why should disinterested third parties pay for copyright enforcement?
Stephan Kinsella: They shouldn't and wouldn't. The whole idea is preposterous and flies in the face of human action. The market provides abundance in the face of physical scarcity. It's a good thing when we are more productive. Likewise more information and knowledge is good. To try to restrict the spread and use of knowledge is insane.
Daily Bell: If people want to claim copyright and third party contracts, shouldn't it be up to them to enforce those contracts?
Stephan Kinsella: Sure.
Daily Bell: Is the US legal system − which is a state-run, "public" judicial system − competent and fair in your estimation?
Stephan Kinsella: No. It is thoroughly unjust and illegitimate. It is just the facade of a criminal organization with a pretense to legitimacy.
Daily Bell: Why does the US have so many millions of prisoners, half the world's population?
Stephan Kinsella: Someone has to be first. But seriously − it's partly due to our insane war on drugs and also due to the devastation various state (mostly federal) policies have imposed on the black population: minimum wage, welfare, inflation, unemployment, war, Jim Crow and other vestiges of slavery. The US regularly uses IP as an excuse to engage in imperialistic bullying of other nations, to benefit US industries such as Hollywood, the music and software industries, big Pharma and the like. (See Intellectual Property Imperialism and other posts.)
Daily Bell: Is there a power elite intent on moving toward one-world government and are they behind copyright and patent laws?
Stephan Kinsella: I used to be fearful of a one-world state but my current view is that the big powers, primarily the US, are the biggest threat. But yes, the western powers are using copyright and patent to crack down on dissent and to influence other countries' policies at the behest of the MPAA, RIAA and so on.
Daily Bell: What would be the best approach to socio-politics in your view?
Stephan Kinsella: As I explain in What It Means To Be an Anarcho-Capitalist and What Libertarianism Is, I am definitely an anarchist − have been since 1988 or so. I prefer the term "anarcho-libertarian" nowadays, in part because of confusion spread by some left-libertarians about the connotations of "capitalism." But I am in favor of a free market and capitalism rightly understood. I am basically a Rothbardian-Hoppean in terms of politics.
Daily Bell: Do you think the Internet itself, via what we call the Internet Reformation, is having a big impact on the powers-that-be and their ability to control society and information?
Stephan Kinsella: As some earlier answers have indicated − yes. The Internet is one of the most significant developments in our lifetime, perhaps in the history of humanity. The state is trying to control the Internet but I believe and hope that by the time the state is fully roused to the danger the Internet poses to it, it will be too late for it to stop it. As a Salon writer said about former congressman/now copyright lobbyist Chris Dodd after the Internet uprising that helped defeat the Stop Online Piracy Act (SOPA): "No wonder Chris Dodd is so angry. The Internet is treating him like damage, and routing around it." My hope is that the Internet will find ways to treat the state like the cancerous damage that it is, and route around it and leave it in the dust.
Daily Bell: Where does the IP movement go now? What are the next moves? Are you content with theorizing about it? Is it having a real-world impact? What would that be?
Stephan Kinsella: Ultimately we have to try to highlight the illogic and injustices of the system so that people realize IP is illegitimate. This is an uphill battle, of course. Most people are unprincipled and utilitarian, influenced by state propaganda and economically illiterate. I have pondered trying to set up some kind of patent defense league but have not yet figured out how viable this is. I would also like to urge some group like EFF or Creative Commons to come up with a simple, reliable, inexpensive way for people to abandon their copyrights. At present there is no easy way to do this. And though it is not prudent to advocate that people flout the law, the widespread disregard for copyright and resort to piracy, torrents and encryption will put some limits on how effective copyright enforcement can be.
Daily Bell: Any other points you want to make?
Stephan Kinsella: Let me close with a quote from Lew Rockwell:
"Let me state this as plainly as possible. The enemy is the state. There are other enemies too, but none so fearsome, destructive, dangerous, or culturally and economically debilitating. No matter what other proximate enemy you can name – big business, unions, victim lobbies, foreign lobbies, medical cartels, religious groups, classes, city dwellers, farmers, left-wing professors, right-wing blue-collar workers, or even bankers and arms merchants – none are as horrible as the hydra known as the leviathan state. If you understand this point – and only this point – you can understand the core of libertarian strategy."
Daily Bell: Any references, web sites, etc. you want to point to?
Stephan Kinsella: As mentioned, I am working on Copy This Book and I also have another book in the works, Law in a Libertarian World: Legal Foundations of a Free Society, an edited selection of my rights and law-related articles. Also, I blog regularly at The Libertarian Standard and C4SIF. Finally, readers can obtain here the slides and audio for the four Mises Academy lectures I delivered last year: Rethinking Intellectual Property, Libertarian Legal Theory, The Social Theory of Hoppe, and Libertarian Controversies.
Daily Bell: Thanks for your time.
Stephan Kinsella: You're welcome. Thanks for your interest.
We thank Stephan Kinsella for this interview and for the work he has done generally on this issue of copyright. Ideas have ramifications far beyond their apparent initial non-acceptance. What seems impractical now may be common sense tomorrow.
Human history seems to go in cycles. Right now we are seemingly at the top of the totalitarian arc. Cold comfort to most, but there has probably never been a time in human history when there was so much hidden totalitarianism and when a cabal of individuals controlling Money Power were likely making final moves to try to control the world
It is very hard to peer through the confusion purposefully laid by the dynastic families that apparently control central banking (and thus money) around the world. Monetary apologists are out in force these days, claiming that various forms of government money are an antidote to the abuse of mercantilism.
Of course, it is via mercantilism, the abuse of government laws and regulations by private parties, that Money Power retains its clout. Only by controlling the "democratic process" does a tiny group of people retain their hold on the levers of government. Behind the scenes these levers are pulled for their benefit. And THEY do the pulling.
It is mercantilism, the use of public law to reinforce private privilege, that bides at the base of Money Power. And those who are behind Money Power, the assorted apologists and enablers, will use ANY tool to buttress their privilege. Lately, in our view, they've been behind the resurgence of Georgism, Greenbackerism, Social Credit and a number of other "movements" that claim "the people" need to take back government.
Of course, it is improbable, these days anyway, that people can "take back" their government. What is more likely is that the powers-that-be are encouraging these movements because they provide a fertile methodology for the continuance of mercantilism. Mercantilism is impossible to apply in the absence of government.
But so long as public nostrums are being peddled, it is fairly easy for Money Power to gain a foothold once again. This is why we are proponents of laissez faire and libertarianism. The solution to the problem of government is not to have more of it "properly controlled," but to have as LITTLE of it as possible. The less government there is, the less feasible it is to abuse it.
People like Stephan Kinsella do us a great favor when it comes to establishing this sort of argument. Any perspective that shows us how laws and regulations provide artificial benefits to some at the expense of others is of a larger benefit as well because it delegitimizes force.
Force, in fact, is at the heart of government, any government. A handful of people pass the laws that bind us to the state, and generations to come as well. But Rothbardian libertarianism (and Misesian libertarianism generally) has been all about providing an alternative narrative to the force of the state.
Logically, Rothbard, Mises and other Austrian economists have shown us that force is the common currency of government and that voluntary, free-market societies have existed in the past and are likely the better alternative.
By opening up our minds to an alternative view of copyright, Kinsella continues this process. You don't have to agree with him, of course, and we ourselves have proposed a simpler solution: If people want to enforce copyright (or any other legal nostrum for that matter) let them do so out of their own pocket. That would put an end to the regulatory state in short order.
Beyond that, government doesn't work on a logical level. Every law and regulation, enforced by the threat of incarceration or even death, fixes prices by transferring wealth from those who earn to those who haven't. The more price-fixing you have, the more unfair, disorderly and inefficient society becomes. Eventually, society falls apart entirely.
Of course, in the West, one could argue we're at that stage now. Humans badly need new solutions. People need to understand that they need to think for themselves and exercise their own "human action" in order to help themselves and their families to survive as the world continues its slow-motion spiral into depression and military destruction.
People like Stephan Kinsella are indispensible to this process. Austrian economics, generally, and the larger ambit of free-market thinking it encourages are necessary in providing us with alternatives showing us that the current environment is not the "only alternative."
Whether you agree with Kinsella or not, we're happy he's around and has presented such thought-provoking ideas. It's people like Kinsella with exciting new ways of looking at sociopolitical and economic issues who provide us with a vision for the future. He is, in fact, part of the so-called "great conversation."
You can join it, too. Just study the great thinkers and come up with your own ideas. If the ideas are interesting enough, people will start to discuss them and write about them and respond to them. That's how the Austrian school succeeded and why its ideas are now part of the larger economic dialogue.
We know it's a real discipline because it builds on thousands of years of economic history. Don't let the sophists and the wily ones distract you from the truth. As free-market thinking succeeds, they are coming out in force. But the bottom line, unfortunately, is that government is force, no matter the "law" it is enforcing.
Of course, there is no absolute freedom and human beings are innately tribal. But within this context, we choose to advocate for freedom above all. One travels toward minarchism via rigorous anarchic logic, not by advocating MORE government. We're glad that people like Kinsella give us additional intellectual tools to make persuasive arguments for a less coercive society.
Posted by John the Just on 03/21/12 12:45 AM
Reply from The Daily Bell
JTJ said: A very clear understanding that the Force used to keep Exchanges honest must always be adjudged and implemented such that Society as a whole benefits.
The Daily Bell says: This is where it all breaks down ... And why we have suggested that those who believe in IP enforce it themselves, using their own pocketbook. You'd be surprised how quickly people would become a lot less vituperative about copyright."
JTJ says: When the Founders established the Constitution for the united States of America, they were of necessity painting with a broad brush and did not address themselves to many details regarding the powers of the three branches of government as they might affect the daily lives of the People. They put their attention upon only the most important aspects of the Society they were anticipating. In Article 1, Section 8 the Founders laid out in 18 clauses the specific powers that Congress was to have. These powers dealt with things like Taxes, Money, International Commerce, and War. Also of the level of importance of these mentioned was Clause 8, known as the Copyright Clause - it empowers the United States Congress, 'To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.'
In the minds of the Founders, Intellectual Property was of great enough importance for them to specifically mention it, and to provide Federal protection for it. These guys weren't dumb. They got too much right to just off handedly dismiss one of the provisions they put into place. They had good reason to give IP its own clause in the Constitution. They knew that by assuring that someone's creative genius would be rewarded in the new Society they were creating, they would actively encourage it - for the benefit of all of us. And they were right.
There are three things that have changed drastically since they wrote these guidelines: 1) The protections intended for individual human beings, was extended to Corporations; 2) The Limited Times have become almost perpetual; and 3) Technology has totally altered the public morality as regards copying information.
Quite obviously, we are discussing #3 as we contemplate IP versus copy machines in every library, and the ease and almost necessity of copying someone's copyrighted information on the Internet.
As I have stated (perhaps to the degree of vituperation), that I believe that not only should IP be afforded the same protection any other property is afforded against thievery, but I see IP as the basis of all action in the Marketplace. 'It's the Thought that counts.' While I don't remember creating this body that I've got pecking at my keyboard, I know it's definitely mine! But I do know that moment by moment, I am creating the ideas you see before you now - they too are mine!
I'm on the side of the Founders on this one. I think Society as a whole should recognize, cherish, and protect the spark of genius which gets transmitted to us by our artists and inventors. Not Corporations, but individual human beings! Not forever - just long enough that they still have the incentive to continue to create. And that the protections afforded their work should not be so Draconian that innocent 14 year-olds discover that they have somehow become criminals for sharing something they love.
Posted by John the Just on 03/20/12 01:41 PM
There is a very basic mistake being made by those who assert that there should be no acknowledgement of Intellectual Property in the Marketplace. It is of the magnitude of not recognizing that one owns his or her own body - actually it is of a more essential statement of Property; it is of greater magnitude. And just as it is necessary to fight to make people understand that they own their Bodies and that from that ownership springs much of what we know of as Philosophy, Sociology, and Economics - it is necessary to join with others to make them realize that they create and own their own Thoughts.
When we discuss the Sovereign Individual, and when we discuss his or her Liberty to act, and the ownership of Property in his or her Body, we have to hedge a bit. Not everyone can be treated as equal in this regard in the Marketplace. Some are in a condition of incapacity and are not equal: infants, children, incarcerated criminals, the sick, the insane, and the senile. We have to hedge in relation to these folks because quite obviously they can't operate in the Marketplace under their own power. Infants and children grow out of their incapacity; hopefully criminals can be rehabilitated; the sick can get well; it is less likely that the insane and senile will rejoin their fellows as equals. But - and this is huge! No matter their incapacity, they are always and forever the creators and indisputable owners of their own Thoughts! (There are those who would argue that one can even create Thoughts without a Body.)
The concept of the ownership of one's Thoughts is the true basic building block of all that follows in one's exchange and interchange with others in the world, and for our purposes here - in the Marketplace. To suggest that Thoughts are somehow inferior to their products is very short sighted, and hugely counter-intuitive. Locke among other giants, enshrined Property as the basis of all theorizing regarding Economics. I propose that the most essential of Property is one's Thoughts. And in the marketplace not one Good or Service is exchanged among Humans without the initial germinal Thoughts to make it happen.
Think of a pink belly-dancing rhinoceros… Good! That Thought was created by you, and is yours. Now think of something totally different… Good! That Thought too, was created by you, and is your Property - your Intellectual Property! If you develop that Thought of yours into a poem, a song, a recipe, or into a cure for cancer - it is yours and yours alone. To maintain that if you whisper it to another that you have lost all ownership in it is ridiculous. To suggest that somehow this most pure example of Property should be denigrated in the Marketplace borders on evil.
There are 2 elements of this discussion of Economics that are missing:
1) TERMINOLOGY: The Marketplace is the field - whether geographic or cyber - which facilitates Exchange between human beings. In this regard a clear nomenclature for the different aspects of Exchangeables is needed - whether those Exchangeables are physical Goods or non-physical Services. (IP would fit within non-physical Services.) All action in the Marketplace should be defined recognizing the Intellectual Property of the Sovereign Individual as the basis of all else.
Supply and Demand, and the multitude of sub-subjects based on these two pillars of Exchange are all that are necessary for discussion. Recourse to terms like *Scarcity* - which has been twisted until it can actually mean the opposite of its dictionary definition - must be expunged from the science.
2) POLICING: A very clear understanding that the Force used to keep Exchanges honest must always be adjudged and implemented such that Society as a whole benefits. What was once a crime entailing planning and treachery, and therefore vigorously policed, may through technological innovation become such a natural and innocent activity that the perpetrator doesn't even recognize that he might have transgressed against another. In such cases the continued vigorous policing of that activity becomes counter-productive - turning a large portion of the populous into unwitting criminals. What is needed in the case of IP is a reassessment of the realities of the situation.
Reply from The Daily Bell
A very clear understanding that the Force used to keep Exchanges honest must always be adjudged and implemented such that Society as a whole benefits.
This is where it all breaks down ... And why we have suggested that those who believe in IP enforce it themselves, using their own pocketbook. You'd be surprised how quickly people would become a lot less vituperative about copyright.
Posted by dave jr on 03/19/12 09:12 PM
"Caribbean bus driver that gets no tips"
I tip them heavily simply because I am happy to have survived. But, then I don't use their service anymore.
Posted by dave jr on 03/19/12 08:55 PM
In my industry, I have contributed several major ideas and demonstrations toward improving efficiency, versatility and safety of our machinery. It starts with the dealer wondering why we are not buying new machinery, while we rebuild and modify the old, because the manufacturers won't supply what we need.
We get visits from the dealer, then Reps in suits and finally their engineers who have an attitude of proving me wrong. They have high powered computers sporting finite element analysis programs, while I have production equipment up and running circles around their latest and greatest. It is usually the input into their programs that need the adjustment.
Anyway, I lost count of how many of my ideas have become standard equipment in the new machinery of my trade. That means my competitors can buy new equipment and use my ideas to compete against me.
So how does that make me feel?
Well, I imagine being on my death bed, where on my left is a stack of cash. On my right is a window and wonder about the world being a better place for having lived.
Nobody can own thought or prove who thought what, when. It is all about action and the first out of the gate gets the head start.
Posted by Agent Weebley on 03/19/12 05:12 PM
Bravo, Stephan Kinsella,
It's easy to stop creating; nothing is communicated to others from that point on. But if the something deep inside you that makes you want to continue to create is suddenly now missing . . . it may make the creator feel unfulfilled; a piece of them is now missing . . . a double edged sword.
Therefore, it is up to the creator to gain appreciation for their creations. That appreciation may or may not come in the form of money. It is no other person's problem, but their own to handle how that is achieved. If they want someone to help manage their affairs in certain areas, such as marketing, it is a private transaction between 2 parties for services rendered.
All laws are human constructs, designed by those that cannot create, to obviate the need for the creator to secure appreciation themselves. This has become quite complicated over the years. Now people seem to think that others are actually there to "help" or 'protect' them so they get the appreciation they deserve. This proxy of your creative process makes the creator lazy and not able to think straight anymore.
Cast your mind back hundreds of years if you will . . . anyone giving a live musical performance for tips (voluntary) or asking for an entry fee into a restricted room or area got the appreciation they wanted and deserved.
Now back to the present. With regard to tips for doing something good: if no-one tips you for what you are doing (e.g. busking,) then you would stop that particular type of behaviour, if you needed monetary appreciation for it to continue. e.g. a Caribbean bus driver that gets no tips can either live with the poor wage, try harder to get tips, or get another job.
Click to view link
Downloading music is like listening to the wireless (radio) or watching broadcast TV . . . advertising.
Posted by nskinsella on 03/19/12 04:42 PM
"And if he is correct in saying that 'recipes, formulas… etc. are certainly goods,' then it is absurd to say that they can not be scarce. " -- this is not right. A good need not be scarce. See my article Goods, Scarce and Nonscarce. Click to view link
Posted by nskinsella on 03/19/12 04:39 PM
"Etiquette: Those normative truth claims that are enforceable through non-violent means only. "
As Hazlitt says, manners are minor morals. :)
Posted by John the Just on 03/19/12 04:11 PM
OBJECTIVE HUMAN RIGHTS VERSUS SUBJECTIVE HUMAN NATURE
Hoss said: Hello there JTJ,
I think we may be arguing past each other because we have differing conceptions of what a right is.
JTJ says: Hey Hoss - I think we are very much in agreement aboutwhat you term a *Right*. I just think *Human Nature* says it better than *Rights*. With the term Human Nature, it would be more difficult for the powers that shouldn't be to sell the unwashed the idea that paid vacations, school lunches, and smoke-free bars are necessary. The powers that shouldn't be love the term *Rights* - they can twist it to mean anything they want it to mean.
Hoss said: I contend that a right is a quality, an aspect of a human being, that exists by virtue of being human, that springs from the nature of what a human being is.
JTJ says: Right on! Let's hear it for Human Nature! And please entertain the concept that your Human Nature is unique to you. (For example - your insistence about Rocky-Road Peach as the best flavor going, is socially unacceptable. But I respect you in your choice of flavor - for yourself, that is. You have no idea about my favorite flavor.) This isn't a bad thing. It grounds the fundamental concept you stubbornly refer to as Rights firmly in the Sovereign Individual. What too many people think of when they hear Rights, are some party favors doled out by the Government. We don't want to sully the concept of your pristine Human Nature with the backwash from that crowd.
Hoss said: [Re: Rights] A necessary condition for *proper* survival. (And *proper* survival means living peacefully among others without coercion.)
JTJ says: Whoa, big Hoss! Now we are into the area of your personal opinion of what Human Nature ought to be - not what it is, and not just for you, but for others as well. Can you see the distinction? While I agree with you, I think the way you talk about those views leads to continued confusion among folks who basically agree with you.
Look at the History of Man; his story is sodden with spilt blood. You would be hard put to find a decade that wasn't decorated by a war somewhere, yet you talk about the universality of 'living peacefully among others without coercion.'
This is why I continually flip-flop between what IS and what OUGHT to be. In this instance I think you are saying that Human Nature IS 'living peacefully among others without coercion.' Thus far, History would prove you wrong. Your unique Human Nature as Hoss the Hearty IS. Your considerations of what OUGHT to be, is another story.
Hoss said: My rights are absolute, they cannot be granted nor taken away.
JTJ says: At any given moment all Individuals have their unique Human Natures. Even identical twins have unique Human Natures. And no - they are not granted by another, nor can they be taken by another.
But the concept of Time is important here. Remember a time when you were slightly different in outlook. Look at yourself as a child, an adolescent, a young adult, and now as a crusty old fart. At each definable period in your life, your Human Nature was distinct from each of those other times. And I would suggest that when you get to be even crustier and older, your Human Nature might change yet again. (Let's hope it's for the better this time!)
The only Human Nature you can ever hope to really know in your own - and it's a slippery thing in itself. To assert a general Human Nature based on your own, is of the arrogance of the Social Engineers running the Nanny State. They haven't got a clue - but because peoples' minds are fettered in their thinking by fuzzy terms like *Rights* it's hard for them to reject Nanny's self-proclaimed good intentions.
Hoss said: A contract that I did not agree to is a weird thing to contemplate.
JTJ says: Welcome to the real world baby…
Hoss said: To me it looks like a bunch of armed nannies running all over the place bossing everyone around. I don't see how anyone can call that a contract, except to try to get me to comply voluntarily (to a threat of force). Even if we enact laws backed by force with the aim of protecting rights, then if we attempt to create rights that cannot exist, we inevitably end up forcibly violating the rights of others.
JTJ says: That would seem to be a fairly good description of where we are now.
Next time you need to get on an airplane, or withdraw money from the bank, try explaining about your 'Rights' to the TSA nanny, or the Teller nanny. Your teller has probably known you for 20 years, but she won't give you a penny of your own money until she follows the 'Know Your Customer' policy and sees a recent utility bill.
Hoss said: At any rate, I reject the implication that might makes right.
JTJ says: It is your Human Nature to reject it. Just be careful that you don't reject too vocally around one of your gun-toting public servants.
Hoss said: Good and evil are objective and not too difficult to discover.
JTJ shouts: NO! NO! NO! NO! NO! They are not Objective, they are Subjective! That's why we - you and I - who agree on the most basic esoteric philosophical principles - that the bulk of the world have never even considered - are in a discussion right now! We, my identical twin, disagree! Celebrate it! You are a unique Sovereign Individual, and so am I!
But if you insist that morality is Objective, then you are falling right into the hands of Nanny and her know-best enforcers. That's the meme that all the Social Engineers and Do-Gooders want you to buy into. Once they have you in the Objective Truth Box, then all they have to do is to label the box in order to justify screwing your head on straight for you.
Hoss said: Even if they prevail and force compliance, and I comply in order to avoid imprisonment, injury, or death, that does not make them right. As long as they purport to exercise the threat of retaliatory force in order to protect rights, logically they are bound to respect the rights they supposedly are protecting.
JTJ still shouting: LOGICALLY!!! Why do you think that Logic has anything to do with what the State does? That's the whole point - Logic has never bound the State and never will! For them might makes right and always will!
Hoss said: In reality a government projects force up to just short of the point where the governed will rise up and put them out.
JTJ, cooled down a bit, says: Correct. And that's exactly what the State in all its forms has been doing since before written history. And they will keep turning up the heat on little Froggie until he is thoroughly cooked. Nanny et alia are not dumb. They don't want to lose their jobs to a bunch of stupid parboiled frogs that have woken up and leapt out of the pot - they will monitor the increase in temperature to just below the boiling point. And as DB keeps pointing out - they need to get us cooked fast before the Internet wakes up too many more of us frogs.
Hoss said: And that brings us back to the point of this site in the first place: removing that justification from the minds of the governed.
JTJ says: Great! I'm with you. Will you please put your shoulder to the wheel and show your good intent by dropping all talk of Rights, and Objective Morality - and instead settle into discussing the unique Human Nature of each Sovereign Individual as the basic building block for all reasoned discussions towards Liberty?
Hoss said: Even so, …the reality is that the new technology is making enforcement impossible.
JTJ says: Speaking about new technologies, please take a look at a solution I have developed at Click to view link. I am hopeful that some permutation of what I am calling MultiLevel Governance might be a workable tool to extricate us from our current situation.
Hoss said: Thanks for your consideration of the points I raised.
JTJ says: It's been my pleasure.
Posted by Adam on 03/19/12 03:07 PM
Customers are not solely motivated by price. The company that originates a product not only has first-to-market advantage, but also enjoys the opportunity to establish a reputation (or "brand") for innovative product - and a customer of a new product would likely especially prefer to purchase from the originators of the product in the hopes of ensuring quality and safety.
A company that merely reverse-engineers the new product once it has arrived on the market has far less tacit knowledge as to how the product was developed/evolved, and thus can't so adapt easily to customers' queries/concerns about the product, or anticipate possible product-extensions.
And never forget, much of the value of taking a new product to market is in having the foreknowledge that there is in fact a market for the product. This knowledge gives the first-to-market a huge advantage in marketing and customer relationship management.
Quality is the only lasting protection.
Posted by Dilence Sogwood on 03/19/12 01:15 PM
I struggle with this one, because I follow capital flows, and capital would flow away from valuable innovation without some level of protection.
While I agree IP, patent, and copyright laws can be used to inhibit free competition; I believe that stating that those laws always must inhibit free competition is a fallacy of composition.
For example, if a biotech company could invest a large sum of capital to develop a beneficial drug that could be reverse-engineered, they would only do so if they could earn a return.
If they were unable to earn a return, they would not pursue the enterprise.
Without some protections, we would find ourselves at a lower overall level of wealth and productivity. For me that condition always points to a failure against liberty.
Posted by flying_pig on 03/19/12 12:55 PM
"patents and copyrights MUST be protected for their owners by SOME effective method. "
Hey genius, why don't you *invent* a way to protect the owners without curtailing the liberty of your fellow humans? Is this feeble task beyond your abilities, O mighty Inventor?
Posted by rossbcan on 03/19/12 11:45 AM
In response to the supposed "problem" of anarchy and conflict, the state "opines" that they MUST be the master predator, armed with OUR guns, that THEY stole from us, and further, we have no "right to self-defense", from anyone, especially THEM.
people must be pretty stupid to swallow something so prima facie, absurd.
People should be "tolerated" (not allowed) to personally and immediately deal with, as they see fit, those so foolish as to initiate aggression as opposed to arguing in corrupt courts whether or not the aggressor was "justified", disadvantaged or in some other manner allowed to be "irresponsible". Hurt anyone and, face the consequences.
The peace must be kept, or, adios civilization.
Only "an eye for an eye, a tooth for a tooth" is capable of controlling criminals or upholding justice:
Justice Defined: We are all free to profit or suffer and learn (adapt to excellence) by facing the consequences of our OWN choices. Injustice is to be forced to suffer the consequences of choices of unaccountable (irresponsible) others.
Posted by AnarchoLibertine on 03/19/12 11:13 AM
The fundamental flaw of non-Libertarianism is assuming that all is better with government. The result of government has been lawlessness, the law of the jungle where might makes right. non-Libertarianism is naive about the nature of man (both male and female), and what some are very capable of doing with the power of government.
The fact that there are some, or many of those, who get into government who are not altruistic and are just as capable of imposing injustice on citizens (subjects?), does invalidate the principle and function of government. When there is widespread corruption among mankind, there is no peace, no matter what--and having a government only exacerbates the problem.
Posted by alexsemen on 03/19/12 09:39 AM
200% I support this Big Idea and DB making knowing us about this problem.
This is the basics of the freedom of humanity !
Posted by Ol' Grey Ghost on 03/19/12 09:09 AM
From the BSN Network:
After government officials announced last week that scientists at the infamous Area 51 research center DO have alien technology and are trying to retro-engineer this technology for use by the Defense Department, a prestigious Washington law firm that specializes in Patent law is suing the federal government for infringement of the aliens' rights to maintain control over the use of their own technology. "What's good for the goose is good for the gander," the lead attorney is quoted as saying.
Further in the news, lawyers for the estate of the late King James are filing suit against any and all priests, pastors, and preachers that have ever quoted from the King James version of the Bible during any sermon that they delivered. It seems the estate of the old King still holds the copyright on that Bible and no one has been paying royalties over all the years since the King's untimely death.
In a related story, a group of fundamentalist Jews are suing the estate of the late King James for copyright infringement. It seems all the King's men (and all the King's horses) did not get the Jewish people's permission to copy from the Old Testament, which to this Jewish group is the ONLY Testament, when they wrote up the King James translation. "We'll be having chicken noodle soup for dinner tonight," one of the lead Rabbis of this group is quoted as saying by an undisclosed source close to the trial.
More news as it develops...
Posted by Hoss on 03/19/12 08:35 AM
Hello there JTJ,
I think we may be arguing past each other because we have differing conceptions of what a right is.
I contend that a right is a quality, an aspect of a human being, that exists by virtue of being human, that springs from the nature of what a human being is. A necessary condition for *proper* survival. (And *proper* survival means living peacefully among others without coercion.) My rights are absolute, they cannot be granted nor taken away, they can only be respected or violated. There can be no such thing as a right that violates the rights of others.
A contract that I did not agree to is a weird thing to contemplate. To me it looks like a bunch of armed nannies running all over the place bossing everyone around. I don't see how anyone can call that a contract, except to try to get me to comply voluntarily (to a threat of force). Even if we enact laws backed by force with the aim of protecting rights, then if we attempt to create rights that cannot exist, we inevitably end up forcibly violating the rights of others.
Ownership, like any other right, has to be exercised. The right has to be claimed and used (and defended against aggression) in order to be valid. So can you own air? Of course you can. The air in your lungs, so long as you remain in possession of it, can certainly be viewed as belonging to you. Once you exhale, you have little interest or ability to prevent someone else from breathing the air you once used. But it matters not to you because by the time the thought has occurred, you are already in possession of a new gulp of air if everything goes according to plan. How valuable is the air in your lungs? Pretty valuable. This goes to Nappy's point of exclusivity; air is not scarce, but your life depends on it, the air in your lungs cannot simultaneously be in someone else's lungs, so while you are in possession of it, it belongs to you. Nobody can own all the air, and smothering someone is wrong.
Rights based on reason, traceable back to the right to your own life, and applicable equally to all, can all be respected simply by non-aggression. Any purported right that requires aggression against peaceful people is therefore invalid.
Intellectual property is a little like air, in that once it is released, it becomes literally impossible to contain, and the attempt to do so inevitably involves ridiculously absurd machinations by state agents complete with periodic examples of gross injustice. In other words, it becomes a perversion of the concept of a free society.
Now, if I consider that my breath smells so sweet that someone might be willing to pay for a whiff of it, and I contract with someone to bottle it for me, I could exhale into a balloon and give the balloon to the bottler. A voluntary non-disclosure contract is rather like the balloon, and provides about as much protection, too. Consider that non-disclosure contract for a moment. What would it really take to enforce it? How could you prove that a signer whispered the secret to a secret lover who then blabbed it to a friend over the back fence, who then let on to someone else, who ... Well it depends on the relative value that is at stake. If the thing were worth a fortune, it might be worth it to try to trace a leak back to the source. In most cases, it's a gentleman's agreement in actuality (because an honest gentleman won't break his word), and an agreement not to be so stupid as to send blueprints to the competition. When I enter into such a contract with a customer of mine, it is a reflection that we are depending to some extent on each other for the financial viability of the plan we embark on. It might be easier for us to *imagine* that things would be simpler if we just make it illegal for our competitors to use our plans, but the implementation and execution of such a plan would eventually destroy the conditions that make our plan viable in the first place.
The internet, like CD's and cassette tapes before that, and like radio before that, has changed the conditions underneath the purveyors of information. Each new technology has raised the same arguments. Each one increasingly makes the flow of information more like air. Each one lowers the cost of copying and dissemination, and raises the cost of restriction of information. And now it is to the point where the information flows around obstacles as if it were a wind. This trend can be expected to continue. If something is disseminated with the purpose of allowing viewing or listening, already it is possible to record the viewing or listening with sufficient quality to render copy-protection schemes ineffective. It also renders enforcement impossible. Those who aim to make a living by producing and selling information will have to adapt, just as they did when cassette tapes were used to record songs off radio or movies off a broadcast signal. In fact the technology that is displacing brick-and-mortar information restriction businesses (who started as information dissemination businesses) will be the new medium with which successful originators of information prosper. The same thing will happen to universities and even government schools.
In your writing, you keep shifting back and forth between what IS and what OUGHT to be. Indeed, the way things are, there is a financial incentive for my competitors to steal my ideas and be first to register them, thereby preventing me from using my own idea by threatening to send men with guns after me.
At any rate, I reject the implication that might makes right. Slavery was never right and will never be right. Good and evil are objective and not too difficult to discover. The collective does not get to define them for me. Even if they prevail and force compliance, and I comply in order to avoid imprisonment, injury, or death, that does not make them right. As long as they purport to exercise the threat of retaliatory force in order to protect rights, logically they are bound to respect the rights they supposedly are protecting. In reality a government projects force up to just short of the point where the governed will rise up and put them out, and so any government spends an inordinate amount of resources trying to justify its cost to society. And that brings us back to the point of this site in the first place: removing that justification from the minds of the governed.
Even so, if we take the position that the rules are what they are and might makes right for the purpose of discussion, the reality is that the new technology is making enforcement impossible. No matter who thinks what. The people are voting with the new technology and are not being stopped by threats nor by public examples of gross injustice. So even pragmatists are going to have to adopt a new theory eventually.
Thanks for your consideration of the points I raised.
Posted by John the Just on 03/19/12 05:43 AM
Hoss said: I hereby violate your copyright simply by responding to your post, which automatically generates an unauthorized copy. Bring your gun.
JTJ says: You're a first offender - I'll let you slide this time.
Hoss said: If I have a right, any right, it is mine, it belongs to me, and it belongs to me forever. Not for some arbitrary period determined by some bureaucrat or gang of gunmen.
JTJ says: I prefer to distinguish between Human Nature and Rights. I would say that you are speaking of your Human Nature - who and what you are as a Sovereign Individual. Rights to me sound more like what you are accorded by some outside agency, whether it is God or those bureaucrats you mention.
Hoss said: So those who want to differentiate between those selling vegetables and those selling art or song in the marketplace, I would posit that you should jail those selling vegetables, in deference to whoever it was that figured out how to grow potatoes.
JTJ says: I do not subscribe to the Andrew Joseph Galambos bureaucratic nightmare of timeless ownership of ideas. But I do like the limited time concept, because I think it benefits Society.
Hoss said: I am an innovator… The existence of the second-handers steals nothing from me. By the time they are late to market with a copy of an idea of mine, I've got the next generation ready.
When I devise a solution to a customer's need, we voluntarily trade non-disclosure agreements between us, in recognition of the value of the information we each own. This is the legitimate way to protect intellectual property, as it is property only as long as it is owned, and it is owned only as long as it is held secret.
JTJ says: I'm glad to see that you agree that there is such a thing as Intellectual Property. We disagree only in how to secure your benefits from it in the Marketplace. Those bureaucrats will give you ownership for a limited time if you register with them. If you prefer not to register with them, you can maintain ownership, as you say - by keeping it a secret. But how many people can know about it and it still be a secret? 1, 2, 3, 4, 500, 600, 7000, 8000, etc? All we are doing here is quibbling about the scale of some Idea being in the Public Domain. And all the Copyright and Patent laws are doing is institutionalizing the benefits to you of keeping some unique Idea secret. In fact it no longer has to be kept secret for you to benefit for the specified limited period of time.
Hoss said: Once the product is released to the public, it's not secret, and the only way to pretend ownership is through violent aggression towards others, which by the way violates their legitimate rights.
JTJ says: Their rights are not violated if they are co-signers to your non-compete agreement - aka the Constitution of the USA. And per the 14th Amendment, all you have to do to be a co-signer is to get born - like Obama - in the US.
Hoss said: I can understand if someone simply accepted by osmosis the common sense of the widely accepted ideas they grew up with, and never had occasion to examine the underlying premises. But those who consider the arguments and conclude otherwise are accidentally revealing their own underlying principles.
JTJ says: Them's fightin' words - but I'll let you slide this time. You're only a second offender.
Posted by John the Just on 03/19/12 04:47 AM
NAPpy said JTJ said: "And if he is correct in saying that 'recipes, formulas… etc. are certainly goods,' then it is absurd to say that they can not be scarce. Before the Author, Song Writer, etc. created them, not only were they scarce - they were beyond scarce - they were non-existent! Today's technological ease of duplication does not change the fact of their being scarce, or abrogate the fact of Creative Ownership."
NAPpy said: I think a more coherent series of definitions would be the following:
JTJ says: The following may or may not be more coherent, but that doesn't prove that what you quoted me as saying isn't true. Hoppe is wrong: 1) Ideas can be scarce; and 2) At the time of creation, a unique idea is owned exclusively by its creator.
NAPpy said: 1. Definition of Property: A physical object / space / resource / product of creation whose use is mutually excludable between two humans.
JTJ says: Ideas are Property that fall under Product of Creation.
NAPpy said: 2. Definition of Ownership: The right to exclusive use, possession or control of property.
JTJ says: Bob says, 'I want to know your secret recipe.'
Jill says, ' I'm not telling, and you can't make me!'
NAPpy said: 3. Definition of Right: A normative claim that can be justified through deduction from an axiom.
JTJ says: Jill says, 'You have no right to beat it out of me!'
NAPpy said: 5. Definition of Aggression: The act of initiating unprovoked hostilities, invasion, attacks, destruction, harm, force, injury, coercion or the threat of such.
JTJ says: Jill says, 'Ow! That hurts! I'll tell!'
NAPpy said: Ideas, recipes, formulas, etc. can definitely be goods; they can definitely be scarce; they can even be rivalrous; however, they are definitely not mutually excludable between two people. Two people can inarguably have the same ideas, or patterns of ideas, at the same time. My having an idea does not preclude you having an idea. My creating a new idea does not preclude you creating the same idea at a later time. It is non-necessary mutual exclusivity of ideas that disqualifies them from being property.
JTJ says: Then we need to come up with a differentiation between Ideas, which I agree are not easily excludable once they are communicated into Society, and whatever it is that is being made excludable through the Force of Law. We unfortunately have the refrain, 'FBI! FBI! FBI!' constantly ringing in our ears. What is it that they are all exorcised about? It's surely not that I know the words to Lady Gaga's new song, but perhaps it's that I have attempted to exchange those words in the Marketplace for profit without her permission.
NAPpy said JTJ said: "First, in regards to 'nothing is taken from me' - if there were a contractual agreement stating that if I disclose my Intellectual Property to you, and you promise to pay me whenever you use it - and then you use it without paying me, is not something taken from me?"
NAPpy said: Fine, if you want to individually create a contract of non-disclosure, that some other individual can voluntarily sign; and, if you agree to personally bear the cost of enforcing that contract; then, this contract is legitimate. It might even be practical. Kinsella makes the point--"who would be dumb enough to sign it?"
JTJ says: You don't have to sign anything - it's an adhesion contract - you are born into it. 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and may not sell Lady Gaga's songs without her permission!'
NAPpy said: One problem with the idea of non-disclosure contracts is how do you hold third parties responsible, that did not sign the contract?
JTJ says: 'FBI! FBI! FBI!'
NAPpy said: If a solution is found and voluntarily implemented, then, again, fine. It certainly is NOT justified to socialize the cost of your desire for non-disclosure by using the power of the state. I am yet to see a logical, non-contradictory justification for the state.
JTJ says: The mythical Social Contract. Better Red than dead!
NAPpy said JTJ said: "It would seem to me that the simpler view is to see that Society as a whole has in one way or another acknowledged that creativity is a good thing and should be rewarded. And that with that acknowledgement have come legalistic methods to secure that perceived benefit for Society."
NAPpy Said: That's fine, right up until the time where one person questions the legitimacy of that legalistic method.
JTJ says: Let's live on a little desert island with 1000 people. All 1000 decide to adopt the US Constitution as a societal guide until they get rescued. That one dissenter would have to contend with 999 neighbors who disagreed with him. I don't think his disagreement would make much of a difference in the society.
NAPpy said: After all, slavery used to be legal. Slavery, however, can't be justified.
JTJ says: Slavery was justified for thousands of years. Why at one time even God was in favor of it!
NAPpy said: I have yet to see a good justification for treating ideas as property.
JTJ says: How about this, quoting you: 'Fine, if you want to individually create a contract of non-disclosure, that some other individual can voluntarily sign; and, if you agree to personally bear the cost of enforcing that contract; then, this contract is legitimate. It might even be practical.'
And don't forget, 'If a dog eats it - it's dog food!' Ideas are treated as Property in our current Society - Intellectual Property.
The process is pretty simple. Once enough folks agree that something is so… so it is! (At least as far as they are concerned.) The desert island next door may have a constitution that is not at all in agreement with the principles of our island - so what? That doesn't mean that one is right and the other wrong.
NAPpy said JTJ said: "... creativity is a good thing and should be rewarded."
NAPpy said: Should not those rewards be voluntarily provided by individuals, as they see fit?
I say: Could be; and I'm not in disagreement with such a Society. If it would be more beneficial to Society as a whole, 'Bring it on!' It sure sounds better than, 'FBI! FBI! FBI!' My point is that we ain't there yet, and it's unproductive to make believe that we are, when we're not.
NAPpy said: Now I'm going to throw you a curve ball and admit that I think copying and distributing some other person's intellectual effort is wrong.
At best, copying some musician's song is an etiquette violation. You can shun the violator, or something non-violent like that. You can post his violation on a reputation database. The copier did not steal, since the original is obviously still there. The copier did not murder/rape/assault, either, so a violent response to the copying is never justified, which, incidentally, rules out any state involvement. If the copier violated a contract, then he is "failing to transfer title", which, as a non-violent transgression, can, according to the proportionality theory of punishment, only be responded to non-violently.
JTJ says: 'fbi… fbi… fbi…'
Posted by rossbcan on 03/19/12 04:42 AM
SK: "His pro-force view that is implicit and inherent in his act of aggression and his anti-force view implicit in his objection to being punished. Using language borrowed from the law, we might say he should be "estopped" from complaining if a victim were to use force to defend himself from the aggressor or even to punish or retaliate against the aggressor."
So, when arbitrary power (the state) states: "obey or else", it is a threat to initiate aggression, a bluff, which, if called by choosing not to be servile, and they do initiate aggression would be "estopped" if the "law" were other than lackeys to arbitrary power, arrogantly and falsely assuming that it is their role to be the "approved aggressor" or, "master predator".
CHOICE IS EVERYTHING, past tit for tat actions leading to consequences got us here, only choice and consequences will lead to wherever we are going:
Click to view link
Posted by NAPpy on 03/19/12 12:07 AM
"And if he is correct in saying that 'recipes, formulas… etc. are certainly goods,' then it is absurd to say that they can not be scarce. Before the Author, Song Writer, etc. created them, not only were they scarce - they were beyond scarce - they were non-existent! Today's technological ease of duplication does not change the fact of their being scarce, or abrogate the fact of Creative Ownership."
I think a more coherent series of definitions would be the following:
1. Definition of Property: A physical object / space / resource / product of creation whose use is mutually excludable between two humans.
2. Definition of Ownership: The right to exclusive use, possession or control of property.
3. Definition of Right: A normative claim that can be justified through deduction from an axiom.
5. Definition of Aggression: The act of initiating unprovoked hostilities, invasion, attacks, destruction, harm, force, injury, coercion or the threat of such.
If you read through the works of Mises, Rothbard, Hoppe and Kinsella, you'll find that the idea of exclusivity is implied in every discussion of property. You'll see that property definitions have evolved from scarce, to rivalrous, trying to get at the idea that defining property as "owned" is not necessary, unless it's excludable. After all, if it's not excludable, like air and ideas, then why would you need to own it? So, I modestly propose that any definition of property must include the concept of mutual exclusivity.
Ideas, recipes, formulas, etc. can definitely be goods; they can definitely be scarce; they can even be rivalrous; however, they are definitely not mutually excludable between two people. Two people can inarguably have the same ideas, or patterns of ideas, at the same time. My having an idea does not preclude you having an idea. My creating a new idea does not preclude you creating the same idea at a later time. It is non-necessary mutual exclusivity of ideas that disqualifies them from being property.
"First, in regards to 'nothing is taken from me' - if there were a contractual agreement stating that if I disclose my Intellectual Property to you, and you promise to pay me whenever you use it - and then you use it without paying me, is not something taken from me?"
Fine, if you want to individually create a contract of non-disclosure, that some other individual can voluntarily sign; and, if you agree to personally bear the cost of enforcing that contract; then, this contract is legitimate. It might even be practical. Kinsella makes the point--"who would be dumb enough to sign it?" I think maybe some would, but I don't know. One problem with the idea of non-disclosure contracts is how do you hold third parties responsible, that did not sign the contract? If a solution is found and voluntarily implemented, then, again, fine. It certainly is NOT justified to socialize the cost of your desire for non-disclosure by using the power of the state. I am yet to see a logical, non-contradictory justification for the state.
"It would seem to me that the simpler view is to see that Society as a whole has in one way or another acknowledged that creativity is a good thing and should be rewarded. And that with that acknowledgement have come legalistic methods to secure that perceived benefit for Society."
That's fine, right up until the time where one person questions the legitimacy of that legalistic method. After all, slavery used to be legal. Slavery, however, can't be justified. I have yet to see a good justification for treating ideas as property.
"... creativity is a good thing and should be rewarded."
Should not those rewards be voluntarily provided by individuals, as they see fit? Are idea makers unable to compete? Do they need monopolistic grants of privilege to compete? Can you provide proof that ideas won't be created without monopolistic grants of privilege from the state? I can give examples of industries that don't need to be babied by leviathan:
Click to view link
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Here are examples of how IP does not encourage innovation:
Click to view link
Your poet example. Or, the townspeople could have given him some eggs in exchange for his poetry. Or, the townspeople could have given him an easy job with no real work, like town mascot, where he is the mascot who reads poems, in exchange for a salary. Or, the townspeople can say, well, his poems suck and I'm not going to pay for them.
Now I'm going to throw you a curve ball and admit that I think copying and distributing some other person's intellectual effort is wrong. The key is--wrong in what sense? According to argumentation ethics, an ethical theory has levels of enforcement:
a. Ethics: A scientific theory which attempts to minimize aggression against person or property by discovering and categorizing as valid those normative truth claims (propositions) which are logically justifiable, and by discovering and categorizing as invalid those which are not. Ethics delineates which normative truth claims can be enforced by proportional violence.
b. Etiquette: Those normative truth claims that are enforceable through non-violent means only.
c. Aesthetics: Those normative truth claims that are unenforceable.
At best, copying some musicians song is an etiquette violation. You can shun the violator, or something non-violent like that. You can post his violation on a reputation database. The copier did not steal, since the original is obviously still there. The copier did not murder/rape/assault, either, so a violent response to the copying is never justified, which, incidentally, rules out any state involvement. If the copier violated a contract, then he is "failing to transfer title", which, as a non-violent transgression, can, accoring to the proportionality theory of punishment, only be responded to non-violently.