Part 8, Block versus Wenzel on Intellectual Property

By Walter Block

The first seven parts of my debate with Mr. Robert Wenzel on Intellectual Property (IP) occurred verbally. That is, we sparred over this issue on the telephone, typically in two minute bursts, each; see on this here. However, with the publication of Wenzel (2014), Bob has shifted gears, going from the spoken to the written word. Each format, I think, has its advantages and disadvantages. The former is more spontaneous; neither of us read from any script, we both spoke informally, off the cuff. The latter can be more careful and considered. I think this not only goes for the two of us, but is correct in general. Since my friend and debating partner Bob Wenzel has made this transfer of mode, and since we have already had “at it” with each other for seven verbal iterations, without coming to any conclusion, or agreement, I have decided to follow his lead on this matter. I, too, will henceforth write about, not speak with him directly, on this issue.

Mr. Wenzel is like a chess grandmaster. Whenever you think you have him pinned to the wall he typically has a response that he seemingly picks out of the air but one that is exceptionally potent. And, his attacks are nothing less than intellectually ferocious. In his latest sally against my position, he launches at me no less of a libertarian theorist than Hans-Hermann Hoppe with, seemingly, devastating results.

Let me recapitulate, before I try to contend with Bob’s latest contribution to our debate. In the early parts of our now long running controversy, I, also following Hoppe (1988), accused Wenzel of engaging in a performative contradiction. On the one hand Bob Wenzel claims that ideas can be owned in perpetuity, just like objects such as pencils, cars, books. We both agreed, I think, that words are, or at least embody, ideas. And yet a plethora of words comes tripping out of his mouth and/or off his finger tips and out onto his computer. But he does not own any of these words; all of them, without exception (well, perhaps, except for the few if any he himself created) are owned by other people, according to his views on IP. Mr. Wenzel thus acts in a manner (speaking words, writing them) incompatible with his philosophy on this matter.

Bob’s brilliant rejoinder?

These words were unowned and thus he, or anyone else for that matter, was free to use them. He could do so without trying to find their originators-owners, or their heirs. He need not arrange to pay them for their use, if they agreed. And, if they were not willing to sell these words to him, Wenzel would have to keep silent and refrain from writing. Words were sort of like ancient artifacts from long-dead or disappeared civilizations. Yes, they were owned at one time, to be sure, but they have long since been abandoned.

I told you he is really bright, a worthy opponent, even though, as I shall argue, his viewpoint is untenable.

I demurred. I claimed that the burden of proof rested with him. He should not so cavalierly assume the words he now uses, whether written or spoken, are there for the taking by the likes of him, or anyone else, at least according to his position on IP.

And now Wenzel uses against my perspective (no one can legitimately own ideas, or words, since once they are “out there” they are not scarce) a powerful insight indeed: Hans Hoppe’s (2014) analysis of burdens of proof. Bob quotes this in full, so there is no real need for me to do so as well, but it is just so magnificent that I cannot resist:

“As a matter of fact, most private holdings are likely just, irrespective of their history – unless and except in such cases in which a specific claimant can prove that they are not. The burden of proof, however, is on whoever challenges the current property holdings and distribution. He must show that he is in possession of an older title to the property in question than its current owner. Otherwise, if a claimant cannot prove this, everything is to remain as it currently is.”
Seemingly, Mr. Wenzel now “has” me on this issue. For I fully and enthusiastically support my friend Hans in every word of this quotation. (By the way, I also agree with how Bob entitled this 2014 essay of his: “Hans-Hermann Hoppe Slams Walter Block Theory,” but not on this particular point. Rather, elsewhere in his otherwise magnificent article Prof. Hoppe does launch a frontal attack on my views on a very different subject, namely, immigration. But I will leave for another day my rejoinder to what I consider his erroneous viewpoint on that topic.) And, also seemingly, Dr. Hoppe supports Mr. Wenzel’s position, not necessarily on IP, but on burdens of proof for property titles.

To put this in other words, “Possession is nine tenths of the law.” Bob uses lots of words; he has been doing so for practically all of his life. I claim he has no right to do so (on pain of violating his perspective on IP). But Wenzel “possesses” this vocabulary. Since I claim he may not do so, that he is in effect a word thief, the burden rests with me to prove it, not with him to disprove it, if we take Hoppe seriously, as both of us certainly do. Notably, I have not done so. I have not even seen the need to prove any such thing.

What then is my response to this seemingly overwhelming intellectual attack? Well, I have played a few chess games in my time, and I am not without a reply. Interestingly, I made this rejoinder, the one I am about to make again, more than once in our previous spoken word disputes. Perhaps, due to the heat in our always friendly verbal battles, Bob did not hear it, or appreciate it, or even remember it. (This is one of the reasons I agree with his initiative to switch from the spoken to the written word.) Here was my answer then, and I now offer it again.

In reality, Bob is 100% correct. And, he wields the Hoppe analysis with extraordinary skill. Case closed. I have not met, nor even recognized any “burden.” Mr. Wenzel is free to speak or write whatever he wants without contradicting his IP position by one iota.

However, I was not speaking about reality. Not at all. I was talking then, and am now writing, about, something very, very, very different. Something unrealistic. My point has nothing whatsoever to do with reality, where Bob, thanks to Hans, is on solid ground. My point is so unrealistic, it could never have occurred. Namely, I refer to a situation, arguendo, where Bob’s IP principles were actually implemented in law. (Below, I demonstrate the utter impossibility of this, but please, work with me now.) That is, let us go back to the early prehistory of mankind, when words were first invented and assume, contrary to fact conditional coming up, that Wenzel’s views on IP were part and parcel of law. This means that when Mr. Elephant invented the word “elephant” or Mr. Rock came up with the word “rock,” they were the full owners of it. In this imaginary made up unrealistic world, these people would actually own this verbiage. They would be entitled to prevent anyone else from using it. Possibly, they would allow this for a fee, and also plausibly, they would not. In which case, assuming there were no thieves back in the day, no one else would be able to use these words. And, ditto for every other word first used, created, by anyone else; that means every word in the entire language.

At this point Bob has a response open to him, one that he tried to employ in the spoken version of our debate. The inventors, first users of these words, “elephant,” “rock” and every other one in use, could have given them away for free as a sort of public service, or charity, or some such other motivation. But what are the odds of that? Nowadays, under patent law (which Wenzel supports for ideas, only without any time limit, just as in the case of cars and pencils, etc.) how many people give away these rights for free? Not too many. Rather, they engage in costly court battles, suing each other up and down over their IP rights.

No, Mr. Wenzel’s masterful use of Dr. Hoppe’s splendid insight will not save his position. For Hoppe refers, merely, to reality, to an actual situation in the world. He is certainly entitled to do exactly that. Wenzel, in utilizing this argument, also applies to a realistic scenario. But this misses the power of my objection. I am not referring to any aspect of reality. Rather, I am concocting a contrary to fact conditional, one based, precisely, on Bob’s IP viewpoint; that his views on this matter were employed, were in operation, were respected by all, during that long ago epoch when words first came into use. Then, assuming even a modicum of profit seeking behavior, these words would have been owned, passed down to the heirs of their creators, and Bob (along with everyone else) would not be free to use them, the splendid Hoppe insight seemingly to the contrary notwithstanding. Hans’ analysis of any realistic situation where words are not owned is unobjectionable. But, it simply may not be employed to a scenario, a la Wenzel, when they can be considered property.

How realistic is this science fictionish world I have created? Not very much at all. Rather, it is highly impracticable. For humans could not possibly have survived, beaten out the sabre-tooth tiger and their ilk, without cooperating with each other. But language, of course, is the sine qua non, of working together. So, the human race would have perished, very quickly, had they adopted the Wenzel view of IP. No one could have communicated with anyone else, at least not in words. This goes, also, for gestures, facial expressions, since they, too, are ideas, and, according to Wenzel, can come under the proprietorship of their creators. Bob and I would not now be around at all, and, certainly, would not be able to debate each other on these issues or any others.

I think I have met this burden of proof. If the Wenzel principles were implemented early on, and somehow, don’t ask, we survived as a species, we would necessarily have done so silently, both in speech and in writing. Why? Because the owners of (intellectual) property do not blithely give it away to all and sundry. Thus, when Bob uses words that others have created, that is, all of them, he is a thief. He cannot act compatibly with libertarianism. If he wants to do so, he must remain silent. That he does not (he is one of the most verbal and articulate men I have ever interacted with) reveals him as someone guilty of a performative contradiction. That he speaks or writes reveals his theory to be in error.

It is now time for me to move to another point, which has also been raised more than once in our verbal dispute, and not yet settled. That is, Bob has not yet seen fit to agree with me on this issue either. But, I have high hopes. This insight was put forth to me by my friend Dr. Michael Edelstein, who did a lot more in this verbal debate between Bob and myself than serve as a time-keeper. (Let me take this opportunity, once again, to congratulate Mr. Wenzel for agreeing not only to take up the verbal cudgels with me, but against the two of us.) The accusation I want to make now, in continuation of the verbal discussion in the last few sessions, is that my dispute with Bob Wenzel over IP involves only the tip of the iceberg. All during the course of this dispute I have been assuming that he, along with me, was a deontological libertarian of the Rothbardian stripe. I now think that the reason I am having so much trouble arguing Mr. Wenzel out of his IP position is that he really does not share these basic premises with me. This all came to a head for me when I posed the following case to him.

Girl A puts her hair up in a ponytail. Girl B sees this and emulates her. Whereupon A physically attacks B, engages in assault and battery against her, rips off girl B’s rubber band thus depriving her of a ponytail. A does so, wait for it, on the ground that B stole her property, the idea of a ponytail. I asked Bob about this. I wanted him to say that girl A was a criminal. He would not do so. He first mentioned the possibility that girl B invented the ponytail independently of girl A. I replied, “assume she did not.” Then, we discussed whether girl B could be lying in her claim of independent invention. Again, I urged the supposition that B was honest, and admitted she had “stolen” the idea from A. Finally, Bob admitted that in a libertarian society girl A would be considered a criminal. This concession, it seems to me, puts paid to his view that ideas can be owned. If she is guilty of a crime, then B could not have stolen anything from her. I say A is indeed a felon, following Kinsella (2001), since once ideas are “out there” they are no longer scarce, and property rights make sense only when applied to scarce things. When girl B “stole” the ponytail idea from girl A, A still had that hairdo. It is highly problematic to think that a “robber” would leave the possession under contention still in the hands of the “victim.”

But I wanted to go further with Mr. Wenzel. I wanted him to admit that in any society, not only a libertarian one, A should be considered a criminal. At this point he continually relied on methodological individualism. This is a fine upstanding concept in positive (Austrian) economics. Only individuals can act, not groups. There is no such thing as a group, apart from the individuals who comprise it. Once all the individuals are gone, the group disappears along with them. But when applied to normative science such as libertarianism, methodological individualism plays no proper role at all. Rather, it becomes legal relativism, or polylogism applied to the philosophy of law.

In an attempt to further probe this man’s relativistic philosophy, I brought up the issue of suttee. This is the practice prevalent in India (now happily outlawed) of pushing reluctant widows to their deaths onto the funeral pyres of their deceased husbands. Yes, my debating partner agreed that in a libertarian society this would be murder, but I wanted him to admit that this would be unjustified killing, period, in any society. This, he steadfastly refused to do, indicating to me that he is not a deontological libertarian of the Rothbardian persuasion.

If I cannot get my learned friend to admit that suttee is murder wherever and whenever it is practiced, then, I fear, we are too far apart to have a meaningful debate on IP. I would still characterize Robert Wenzel as a libertarian, one of the most brilliant ones on the entire planet, and one of the most successful ones at articulating this philosophy. But, I think he has a blind spot regarding IP specifically, and with regard to his relativism in general. Hopefully, Mr. Wenzel will one day take the Rothbardian position that suttee is an undeniable and per se violation of the non-aggression principle (NAP). If and when he does, my query then reverts back to my favorite two young ladies, girls A and B. Is the former a criminal? If so, Wenzel must logically renounce his IP position. If not, he is compelled by the laws of logic to urge a violation of the NAP, at least in this one case.

References:

Hoppe, Hans Hermann. 1988C. "From the Economics of Laissez Faire to the Ethics of Libertarianism," in: Walter E. Block & Llewellyn H. Rockwell, eds., Man, Economy, and Liberty: Essays in Honor of Murray N. Rothbard. Auburn, AL: The Mises Institute.

Hoppe, Hans Hermann. 2014. “A realistic libertarianism.” September 30;
http://www.lewrockwell.com/2014/09/hans-hermann-hoppe/smack-down/

Kinsella, N. Stephan. 2001. “Against Intellectual Property,” Journal of Libertarian Studies, Vol. 15, No. 2, Winter, pp. 1-53; http://www.mises.org/journals/jls/15_2/15_2_1.pdf

Wenzel, Robert. 2014. “Hans-Hermann Hoppe Slams Walter Block Theory.” October 4;
http://www.economicpolicyjournal.com/2014/10/hans-hermann-hoppe-slams-walter-block.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+economicpolicyjournal%2FKpwH+%28EconomicPolicyJournal.com%29