Friday, January 17, 2020

A Distortion of My View on IP and Confusion About IP

At the post, The FBI and IP Enforcement, John Howard left a comment that distorts my view on IP and then goes on to make a claim about IP that is just not true.

In the first part of his comment he writes:
The key to RW's argument is that he assumes IP is valid (property) and that therefore what he wants by way of its distribution is relevant. However, the idea that being the first to do something bestows the right to violently prevent imitators is a very, very debatable idea which itself results in a violation of property rights.
For years, I have made clear that my view on IP protection is in line with the view of Murray Rothbard. That is, independent discovery/creation is the base, not "being first."

For example, seven years ago, I wrote:
A number of anti-IP proponents have attempted to bring the great economist Murray Rothbard into their camp. However, a careful reading of the sections in Man, Economy and State, on copyright and patent should make clear that Rothbard was not against IP law.

He was completely in favor of copyright law and was only against patent law because of the way it is currently structured, that is, current patent law grants monopoly protection to the first discoverer, rather than protection to each independent discoverer.

I recently posted a fascinating historic talk by Rothbard that he gave in 1981 at the  National Libertarian Party Convention, the entire speech should be listened to, but one thing that especially caught my ear occurred during the Q&A when a question was asked about IP. Here's Rothbard's response, which makes clear that he is not anti-IP.
Howard then goes on to comment:
If you come up with an idea and tell me about it, and I use it for my own purposes, then where is the rivalrousness or theft? You still have the idea even after I have used it, and my using it doesn't preclude your concurrent use of it. In fact, your idea could be used by millions of people at once, and you'd still have use of the idea. This is to be distinguished from the piece of paper on which you write down your idea, which IS your private property, and if I took it without your consent, then that would be theft.
I really marvel that this argument still has legs.

If I create something it is mine. Unless you are AOC or some other type of socialist, this should be obvious.

Further, there are a multitude of reasons I may not want it shared. That I can still use something, even though others may have it, may not at all be behind why I, the creator, don't want it shared.

Consider, for example, that I come up with a powerful new strategy to convert the masses to a point of view. I may not want this whiz-bang strategy shared with socialists for fear that because of their larger current size, they may be able to use it more effectively than I can even "if I still have the idea in my head."

Or consider this, I discover a back street short cut around massive daily auto traffic. I tell a friend on the condition that he tells no one else because if word gets out about the short-cut, even though I still "have the information in my head," it will quickly become useless as more and more learn about the short cut and traffic becomes backed up on that route also.

Or let's take this situation, I have an idea for a book on a topic that no one else has covered. I calculate that between doing research for the book and actually writing the book, it will take me a year.

I further determine that I would have to sell 10,000 copies of the book for me to earn enough money to make the project worthwhile.

How is it not damaging if others, without my permission, print the book so that I end up selling only 3,000 copies because of competitors selling 7,000 copies in this wonderful world of no IP protection? I am supposed to be happy that I still have the idea in my head? And society, in general, is somehow happy because I will no longer find it profitable to write books? That is, it lowers the standard of living not only for me but in general because all creators of IP in a non-IP world will be subject to lower earnings and thus create less.

How is the non-IP world not destructive of creativity from a personal property perspective?

I really hope, at no charge, that more libertarians get into their head that the anti-IP position will suffocate creativity, and that going against the desired distribution of a creator of an intellectual idea could do harm to the creator in his eyes. Or are we all socialists now and the desires of the creator do not matter?



  1. "Or consider this, I discover a back street short cut around massive daily auto traffic. I tell a friend on the condition that he tells no one else because if word gets out about the short-cut, even though I still "have the information in my head," it will quickly become useless as more and more learn about the short cut and traffic becomes backed up on that route also."

    Anti-IP folks like me believe that, in this scenario, if your friend discloses that shortcut to other people, he deserves proportionate punishment for violating his contract with you assuming he agreed to your condition.

    However, those other people whom he informed cannot be stopped from (or penalized for) using that route just because you never gave permission for your idea to be shared with them. Do you agree?

    1. The point with this example is that there is damage that is not recognized by anti-IP people. "You still have the information," they say. You are recognizing IP.

      It is a case similar to food being stolen and fed to others. In most cases you wouldn't charge the people who have eaten the food just the thief but there is damage and the food is stolen. Theft and recovery are separate items. The point with IP is to recognize the theft.

    2. Thanks for your response. I feel like you are simply using different terminology than 'anti-IP' folks. I think most of your anti-IP opponents will readily 'recognize IP' the way I do above.

  2. I think the key point is whether a government agency is needed with whom you would first have to register your idea and who would punish others for use of the idea, whether or not they are the ones who "stole" it.

    If we consider the case of the shortcut, it should be possible to recognize and punish the theft of your idea (which is what you're saying you want) merely by claiming a breach of contract by the person to whom you told the idea and who violated his agreement with you by sharing it. In this case it is not necessary to have a government agency tasked with registering ideas in order for you and your idea to be "protected".

    I don't think the big question between the IP and anti-IP camps is so much about whether an idea can be considered "belonging" to its creator. The big question is whether we need the state to serve as an registration and enforcement agency.

  3. RW, the problem with the pro-IP position is that it isn't based on any cogent theory of the purpose of a private-property-rights system and how one can legitimately acquire and defend private property. Citing Rothbard is not dispositive. He can be wrong (and was on IP).

    "If I create something it is mine."
    -- Well, we know that this is not always true. An employee might "create" something in his employer's workshop, but that doesn't make it the employee's property. What matters is who owns the physical goods on which work was done. In this case, it would be the employer, so even though the employee "created" something, it is the employer's property. Thus creation is not the source of private-property ownership (if it were, nothing physical could be owned, as no humans create any natural resources, they are already there; humans can only transform physical things).

    "Further, there are a multitude of reasons I may not want it shared."
    -- Since when does "want" create a private-property right? There are lots of things that I might want, but that doesn't make something mine. The key question is, if you're going to claim a private-property right in something, then you are saying that it is legitimate to use force against someone to protect it. It is a very weak argument that because you don't want someone to do something that you can use force against them. You first have to establish a private-property right in the thing that you don't want someone to use.

    "How is it not damaging if others, without my permission, print the book so that I end up selling only 3,000 copies because of competitors selling 7,000 copies in this wonderful world of no IP protection?"
    -- The purpose of law is not to enable one to make a profit, but to protect private-property-rights. Thus complaining that you can't make a profit is not a valid justification for using force against someone. If I come up with a new pizza-topping combination, then would it be legitimate to complain that the pizza joint down the street has copied my new idea and cut into my profits, and use force to prevent him from operating in this way? What you're really claiming is a right to revenues from customers, but you cannot have a right to what's in a customer's wallet.

    "And society, in general, is somehow happy because I will no longer find it profitable to write books? That is, it lowers the standard of living not only for me but in general because all creators of IP in a non-IP world will be subject to lower earnings and thus create less."
    -- Every entrepreneur would no doubt love the law to protect him from competition! But only some lucky cronies get it, through the limited scope of activities covered by copyrights, patents, etc. Incidentally, the societal-benefits argument has been debunked by Boldrin and Levine in "Against Intellectual Monopoly."

  4. RW quoted my first paragraph correctly, but then attributed a different paragraph to me that was actually from another commenter, Napster. No harm done since I agree with Napster, but if Napster copyrighted that paragraph, there may be trouble ahead.

    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.

    RW asks, "If I create something, it is mine."

    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.

    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.

    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.

    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.

    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. 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.

    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.

  5. I see a lot of people are still drinking the Kinsella koolaid. Here are some examples of perfectly valid goods that are non-rivalrous:
    - any classical club good that hasn't reached congestion (access pass to a park, a gym membership, a toll on an empty private road, etc.)
    - access rights to streaming content
    - any cryptocurrency with tokens that either haven't reached a supply limit or that don't have a supply limit
    - fractional reserve currency (perfectly legitimate in a free market)
    - and yes, intellectual property

    Kinsella has not proved that non-rivalrous goods are not legitimate property, but declared so by fiat. Defining what counts as legitimate property is a value judgement, and all values are subjective. There is no objective standard. Libertarians ought to err on the side of allowing more property rights, not fewer property rights. The more property rights are recognized, the more people exert an effort into production of goods associated with those property rights. Many IP products require capital investment, which would not happen without IP rights.

    Oh, and another thing. You either believe in Rothbard's Title-Transfer Theory of Contracts, or you don't. So if A buys a copyrighted work, copies it, and gives it to B, you can't say that A is not stealing, but only violating a contract. Under TTToC, all breaches of contract are theft. So either the contract is invalid, or A stole something and gave it to B. If B then copies it and gives it to C, C received stolen goods. So it's not different from selling a rented car to someone.

    1. EdU, the anti-IP argument is not based on anyone’s “fiat,” but, rather, is based on the principle that the purpose of property rights in a world with scarce resources is to minimize conflict over those resources. If that is true, then we can see that one could only have a property right in something physical, because there can only be conflict over physical goods (only they are scarce). If you don’t agree that the aforementioned is the purpose of property rights, then that’s where the disagreement is.

      Alternatively, think about this through the lens of the NAP. Under the NAP, someone only commits a legally redressable wrong if they initiate force against another person’s body or other property. However, by definition, force, which is a physical action, can only be applied to physical things; one cannot apply force to an intangible, and thus there can be no per se NAP violation if someone does something that you don’t like with your intangible “property.” Further, under libertarian law, you are justified in using force only in response to someone first initiating force against you or your property. Since enforcement of your rights involves your using force, if you were to try to enforce your alleged “right” in an intangible, against which no one could have initiated force, then in fact you would be the one initiating force, and thus be in violation of the NAP.

      The shorthand way to sort things out is to ask where could force be applied by the aggressor, and that is where the private-property right can lie. In the case of your examples, something like “streaming rights” is a nebulous concept; what you’re really talking about are the TVs, computers, file servers, routers, modems, fiber, cell towers, etc., as that is where force could be applied. Similarly with crypto-currencies and fiat money: force could only be applied to the physical computers on which the records are kept, the physical networks over which data is sent, and the land on which, or the wallet in which, one keeps his private key, PIN, etc.

      Finally, Rothbard’s TTToC does not imply that all breaches of contract are theft. The word “title” refers to the legitimate ownership of something, with the title being transferred under the contract. So, before you can apply the TTToC, you first have to ask if someone legitimately owned something to which they could, and intended to, transfer title subject to a condition precedent. If you cannot legitimately own something, such as an intangible, then the TTToC is irrelevant, and any contract relating to that intangible would not be enforceable.

  6. I know from the oil field industry that drill bit suppliers used to cordon off the drill floor whenever they made up their bits. Only the bit rep was allowed to enter the floor until the bit was below the rotary table. Nowadays every bit you come across has been copied a hundred times over by different companies. Even with patents and copyright there's really nothing preventing the sharing of images, and I see nothing wrong with that. Bit suppliers differentiate from their competitors by offering a higher degree of reliability and performance through wear features, stress modeling, fluid optimization, pricing, etc. Creativity has hardly been hampered by the proliferation of copy-cats. A breach of contract may be considered theft but that's not always how an ideas are copied.

  7. “The anti-IP argument is that objects may be property, but not arrangements.” Is this is correct? If so, all objects are arrangements (with the possible exception of what humans call fundamental particles). Either human conception of new/unique arrangements are property of the conceiver or they are not. The involvement of coercive monopolies, how private property is acquired and defended and how society is affected, while having practical application, are beside the point.

    What about mental arrangements, arrangements of thought? Are an individual’s ideas their personal property? If that individual transfers their mental arrangements to words, to music, or to arrange objects in a way they have not been arranged before can these arrangements be personal property that the owner of can claim the rights to all objects arranged in this manner? I say yes.

    That doesn’t mean the use of force is worth trying to stop a competitor from copying my new pizza topping idea. Or musical artists should stop local bands from performing their tunes. What that does means is if someone else uses your idea without your approval you have the right to use force to stop them. The mechanisms and practicality of stopping them are different arguments.

    Speaking of practicality, I and others I know would not have spent our energy, time and money on projects if we could not have protected our IP.

    But then there is Rupert Sheldrake’s concept of Morphic Resonance and studies that indicate ideas are shared almost instantly between like organisms.

  8. Cry harder about your book. Look at all the free content on the web. The notion that consumers will be net losers in a world without IP is silly. It's just welfare for publishers.

  9. RW, the argument that you'd like to do a business but can't because exclusion is too costly so the government-based mechanism (called "IP") for socializing your exclusion costs is therefore necessary is just downright silly.

    There's a million ways to come up with bad business idea. This is not a reason for having government thugs to make bad business ideas profitable.

    And, no the anti-IP argument is not that "arrangements" or whatever it is shouldn't be property. The argument is that the SOLE REASON for existence of property rights is to control conflicts for control of rivalrous goods. Information isn't rivalrous, so there is no reason to have the property rights in the information. Worse yet, artificially created "property" rights in information clearly violate property rights in physical (i.e. rivalrous) goods. Property rights in physical goods ARE LOGICALLY INCOMPATIBLE with property rights in (classical) information.

    Now, there's quantum information, which (due to no-cloning theorem) cannot be copied without destroying the original. This makes quantum information rivalrous, so there need to be property rights in that.

    And, no, Rothbard is not Pope. He can be (and sometimes has been) mistaken.