John Howard has responded in the comments to my post, A Distortion of My View on IP and Confusion About IP, where I take to task his original broadside against my IP position.
Below are relevant parts of his comment with my responses in blue:
RW makes an issue of the difference between "being first" and being a "creator". I understand his point, but it is inconsequential to me. I am happy to use the term "creator" instead of "first" and still hold to my position.This is not a case of using a different term. It is a major difference in position. Indeed, the Rothbard snippet I posted is about the significant difference. Howard has thrown his original position under the bus.
RW asks, "If I create something, it is mine."A person can certainly define property anyway one chooses but it should be understood what Howard is claiming. If a person writes a novel, Howard's position is it is just "an arrangement of words."
The problem with this is that "something" can refer to the object created or to the arrangement of property that resulted in that object. The anti-IP argument is that objects may be property, but not arrangements. If I arrange my property in immitation of RW's arrangement of his property, I have not stolen anything from him. To imitate is not to steal and that is the root of the disagreement.
Notice how he has to sap all the originality and creativity out of the "arrangement of words" to make his point. Does he not think it is a mind that arranged the words, that there was thought that went into creating the arrangement of words, that there was research that went into outlining the arrangement of words, is not reflected in the arrangement? It is a con job to suggest a great novel is just "an arrangement of words." that there is no distinction between Shakespeare arranging words and Howard.
Smearing anti-IP debaters as socialists is not valid. They are not arguing against property rights. They are arguing against arrangements of property being designated as property. They are arguing in favor of property when they say that they have a right to imitate with their own property what RW has done with his property and that RW does not have a right to tell them what they can make with their own property. The debate is not about the value of property rights; it is about a detail in the definition of property.Again, we have more of the arranging of words as somehow not of importance. In Howard's world, if someone creates an arrangement of words that provides magnificent insight and discovery, Howard's position is that anyone else is free to copy such because it is just "an arrangement of words." Notice the attempt to downplay the actual creation, which is new insights, discovery, etc., to "an arrangement of words." Does Howard seriously think that Amazon or a bookstore could survive by just selling compilations of words without identifying the thought and insight behind the arrangement of the words? Step right up, we have one book that is 300 words and another that is 450 random words. We buy books with "words arranged" by authors because we appreciate the creativity of the arrangement and the information and message conveyed. It is the individual authors who create their arrangements for their very own independent reasons. But Howard says "no." In Howard's world, the individual created arrangement of words and how the arrangement is used does not belong to the creator but to, apparently, Howard, who says it may be copied by anyone for any reason without compensation to the creator.
RW repeats the original justification of IP law, the utilitarian argument that it motivates creativity and that without it, some creativity would not occur. This is no doubt true, but it is just as true that under IP law, creativity is prevented, both the direct imitation and the imitation plus modifications which the original creator did not think of.Bang, this is the socialist argument. The minute you take property away from the original owner, the socialist claim is made that the new arrangement of property would result in different creativity. Take money away from the rich and give everyone an equal amount of money and new creation would occur. This is an attempt to play down the importance of incentive. Why does Howard want to prevent incentive to the owner/creator, to obliterate the gain to the creator? Where is the end of this taking away property, anti-incentive rabbit hole? Wouldn't there always be the possibility for new creativity if the original incentive is ignored? Just suffocate incentives, that's socialist and Howard admits it is part of the anti-IP view.
None of this is in the realm of fact, however; it is in the realm of prediction and pretending to be able to predict the bottom line of "social benefit" is pretending too much. More to the point, social benefit does not and must not trump individual property rights. Further, no one can have a right to aggress in the name of the greater good in part because no one can claim a monopoly on calculating or predicting the greater good.Here Howard takes another shot at distorting my position. My position has nothing to do with what he writes above. Nowhere do I argue for "social benefit."
My entire argument is within my private property position. And it is not, as Howard claims, a utilitarian position. My position is different and has major implications. Indeed, Dr. Walter Block in commenting on my book, Foundations of Private Property Society Theory: Anarchism for the Civilized Person, stated: "The book also contains the best short introduction to why we need society and the best short critique of utilitarianism."
When I write: "it lowers the standard of living not only for me but in general," I am not making the utilitarian argument. I am stating this, as I outline in my book, from a methodological individualist perspective. It is not from a utilitarian position.
There are free market (non coercive) ways to reward innovation and if enough people care to reward innovators, they will discover and invent ways to do so. The Nobel Prize is an example. Another way which is used is to set up a reward for the solution to a particular problem that many people want solved and let innovators race to solve that problem so as to claim that reward.This is, even more, central planning claptrap. Howard recognizes the problem with killing incentive so he wants to create a fake incentive world. The way communists wanted to create a fake pricing system after Mises raised the problem of calculation in a socialist economy.
Socialists say: We won't have a free market, we will have a fake free market so we learn market prices. Howard says: We won't have free market incentives, we will only have fake free market incentives.
Public rewards as opposed to market rewards? What if someone wants to work on a research project that no one has created a reward for? Ayn Rand's "The Fountain Head" was rejected by dozens of publishers, does Howard seriously think she would have gotten an award for her novel before the free market showed the interest in it?
What is not necessary or justified is government coercion that violates property rights in the false name of protecting property rights. Creating coercive monopolies is not a way to advance prosperity. Stopping individuals from immitating good ideas makes no sense except to those who want to limit their competition by limiting the spread of good ideas.After taking his shot at a fake incentive scheme, Howard appears to abandon it and march back into the claim that a creation by an individual is not property. And he tries to slip in the government coercion angle to further distort and confuse. But in my private property book, I explain how private property, including intellectual property can be protected without the need for government.
RW asks, "How is it not damaging if others, without my permission, print [my] book so that I end up selling only 3,000 copies...". The answer is that you cannot claim damage for not getting something you wanted. You can only claim damage if you lose something you own. You cannot own customers or sales or sales potential.And once again, Howard ignores the fact that an individual creates an intellectual property and can make any demands he chooses as to how he desires that IP be disseminated. Howard says "No," that every intellectual property must be distributed on his terms, which, of course, is almost always a creation he had nothing to do with.
What a monstrous arrangement of words! It is probably good for Howard's mental health that he doesn't think he owns the arrangement.
-RW
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RW thinks IP laws are necessary for XYZ good thing. Is there anything else The State uses IP laws for? Is there any other route to XYZ that does not empower the state?
ReplyDeleteRw's IP argument just sounds to me like the labor theory of value. He worked hard on his book, so people who read it owe him money. This is silly. People value the content being delivered to their brain. They do not value the fact that RW wrote it. It is of no value to them whatsoever behind a paywall or in a box in RW's basement or any other format in any other location that for whatever reason the target audience is unwilling to pay for. If he values hiding it, he can pay for his own damn security and keep his own damn secrets. No one else is obligated to keep his secrets. It's similar to the assertion that blackmail should be legal.
Bingo Incentive and Value is at the core of the argument. Though the additional layer is comprised of trusted resource, for which RW is recognized for being.
DeleteTrue market capitalism will support private property rights as it relates to IP out of a natural course. A great real world example of "value finding" is the Steam gaming platform. Howard incentive to argue is based on what people tell you their content is worth and he deciding disingenuously that its never more valuable than free.
I will not bother responding to RW's take on my position. What I wrote is there to read and almost all of RW's interpretations are absurd and unjustified.
ReplyDeleteIn the end, the most telling line from RW is this one: "Howard ignores the fact that an individual creates an intellectual property and can make any demands he chooses as to how he desires that IP be disseminated." That remains true until he disseminates that idea to me. Then I am in charge of what I do with the idea which is now my idea because it is in my mind.
If you read RW's response to my comment on the earlier post, you will notice that there is probably very little difference between his 'pro-IP' position and our anti-IP position.
DeleteWeirdly for an intelligent person like him, he gets into so many absurd arguments on IP without actually spelling out his position in plain words and trying to reconcile his position with anti-IP libertarians.
IP violations are, if anything, more breach-of-contract violations than property violations. If the blue-ray disc that I buy has contractual language plain for all potential purchasers to see, stating that the purchaser, with his purchase, agrees to use it only for only non-pecuniary gain (e.g. not to copy it for re-sale purposes, etc), then a violation of that agreement could be a breach of contract. But it is not a property-rights violation, and hence not the domain of police enforcement of criminal law.
ReplyDeleteThe case for property-rights IP violation is even weaker where the artistic or intellectual creation is offered up freely for publication/sharing, without any disclaimer or unilateral contractual language. e.g., a song played on the radio, or a story posted on the internet by someone, and which sharing lacks any ominous, threatening legal language that puts the listener on Notice of consequences flowing from any "sharing for profit." It's not stealing (not a property rights violation) if I heard a song, decided I like it, and then start playing that song in clubs for a profit, because I like it; Blame the person who "put it out there" without the proper safeguards. And one can see that it's certainly not a breach-of-contract situation.
Maybe stigmatize such unseemly "gray-area theft,"...leave it up to social ostracism and pressures---but criminalize it? Seems wrong to go there, if you ask me.
Now, if one wants to argue the utility of IP law, that without it people won't be motivated enough to create things...that's a different topic I think.
Great thoughts and along my line of thinking after I have read much of the scholarship on the libertarian IP debate (including Kinsella's impactful works).
DeleteBut there is one thing I am not sure I have reconciled, relating to the 'natural law' in a PPS pertaining to physical property bound by an agreement. Let me state the hypo:
A sells a music CD to B. The sale terms say: "You hereby agree to purchase a physical copy of the CD [or a revocable license to use the CD]. You may not copy it or play it publicly outside your home, and it being agreed that if you may only sell or transfer the CD if the buyer agrees to these terms. You own only qualified title to the CD and cannot transfer it further without complying with the preceding sentence."
B sells the CD to C at a flea market, with no terms mentioned. A finds out and demands that C return the CD, as he could not have obtained proper title. [End hypo]
It seems to me there is tension b/t two positions -- either C has the property unencumbered due to either (1) no privity with A, or (2) there being a sort of 'bona fide purchase' rule in the natural law as there is in civil law; or C actually has encumbered property, like a house subject to an easement, and therefore the "easement" holder, i.e. A, can repossess the CD that C possesses.
I honestly think the latter is the correct position, so in an IP'less world, content creators could in fact find protection against copying and distribution by essentially providing encumbered title to physical copies, or just providing revocable licenses to physical copies.
Of course, in a PPS, there would be various DRO's and some of those DRO's may only recognize some of the CD owner's "rights", in which case the content creator must take subject to those rules when selling to buyers in that DRO. I really think this all gets resolved contractually if and when the state bows out of this area.
But it's fun to think about the initial anarchic state to tease out principles.
PM, I think that you're right, but this is not the type of example that the pro-IP crowd is really talking about. In your example, there is a physical object which could be owned, the title could be transferred subject to conditions, and the title could be traced.
DeleteThe main pro-IP point is that if B were to listen to the music and "reverse engineer" it, record the same song himself on his own CD, and then sell it himself, then B would be violating A's "property right" in the music (as opposed to the physical CD). The pro-IP crowd argues that you can own content separately from the physical medium on which the content is stored. It's sort of like saying that if you own a red car, you own the redness separately from the physical car.
If I were to summarize the entire Pro-IP argument it would be this:
ReplyDeleteTO COPY IS TO TAKE
That is obviously false since a taking involves a removal - a loss. Many, many paragraphs are necessary to obscure the obvious invalidity of their argument. If there actually was a loss, it would only take a short sentence to name it.
Other misguided summaries might be:
DeleteTO CREATE IS TO OWN and TO INVEST IS TO PROFIT.
At its most basic, the pro-IP position often begs the key question. It just assumes a property right in intangibles, without first arguing how and why property rights come into existence. You've got to get the basics right before you can apply them.