I have a few more questions about IP, but since they are not directly related to the topic of my previous thread, I decided to start a new one. The following are not my ideas, just some arguments I thought a pro-IP person might make.
Can one say that whenever an author of the work sells a book to you, he is selling only the matter of the book, and you’re renting the information contained in the book from him under condition that you will not reproduce it? (You don’t have to pay the renter’s fee, and you’re free to destroy it though.)
It would be similar to saying that I am selling you a house that has a fireplace, under condition that I am renting you the fireplace itself. You may use the fireplace as you see fit, but you may not spread fire from the fireplace.
One may argue that if someone else (not you) has lit something from the fireplace, he has broken no contract, since he had never made a contract with me, but the truth is that he has trespassed my property (the fireplace) without my permission. I have granted the use of fireplace to my “tenant” under certain conditions, and it is only under those conditions that other people may use it (since I never gave up the complete ownership of the fireplace).
Ideas, inventions, etc., are called ideal objects, but that of course stems from the Platonic model of ideas (that is different from the materialist model of information): that ideas exist in their own, “ideal”, realm, and the shapes that things take in this, physical, world are merely instantiations of the ideas – for instance, there is an idea of Rothbard’s face existing in the ideal world, and the silver coin with Rothbard’s face on it is a result of the ideal object interacting with the silver material.
So, when one creates an idea, could one say that he homesteads an ideal object? Then, each material representation of the idea is only a medium of access to the ideal object. A ticket. For instance, a materal copy of my book, a pdf of the book, an audio book are all simply mediums of access to the same ideal object, which I have homesteaded.
(A potential response to this, admittedly, somewhat religious model, is the non-scarcity argument. Which brings me to my next question…)
Isn’t the non-scarcity argument basically utilitarian? It says: “We are interested in minimizing use of force and violence in the society, and therefore, we assign property rights. But in the case of non-scarcity, not only is there no need to do so, but, in fact, doing so will increase the amount of needless force/violence and increase the amount of scarcity.”
But isn’t that a version of utilitarianism? Who said the goal of the law is to minimize use of force or minimize conflict? As Stephen Kinsella writes in his famous monograph, “wealth maximization is not the goal of law; rather, the goal is justice — giving each man his due.” So, could a pro-IP person not say: “Force minimization or scarcity reduction are not the goal of the law; rather, the goal is justice —giving each man his due. So, protecting one’s ideal object does increase scarcity and does increase use of force beyond minimization of conflict, but it protects one’s belongings — an ideal object which he had homesteaded. It gives the ideal homesteader his due.”
For one thing, that’s a terrible analogy. But for another, I find it interesting that you would ask this while in the very same post mention Kinsella’s short monograph on the subject…as this concept of there being an implicit contract between the author and anyone who purchases his book was actually touched on by Rothbard and then furthered by Kinsella in that very work. (The short answer is “no”.)
I’m glad you’re aware of the scarcity factor. That should make it easy to recognize the absurdity of talking about “homesteading” an idea.
This simply begs the question…as it assumes an idea is property in the first place. Kinsella’s whole argument is that ideas aren’t property.
What you’re saying is kind of akin to quoting the bible as saying it is the word of God, as evidence to support the notion bible is the word of God.
I suppose the author can try (good luck) to get you to sign a non-disclosure agreement before selling you the book, but IMO he can’t reasonably lay a claim on how you use the ideas that come to exist in your head as a result of reading his book, since this amounts to him “owning” your thoughts because they contain his “intellectual property.”
Scarcity/non-scarcity is a physical fact. It would be utilitarian to decide to artifically imbue non-physical things (like “ideas”) with property attributes based on whether or not it would result in a net positive, but that has nothing to do with the basic libertarian argument against IP.
And what determines if a particular idea can be declared “property” or not? Could Einstein have copyrighted E=mc2 and expected payment from all scientists and students who use it? If someone invents a new Heimlich maneuver that is more effective, does he have a “right” to payment from any doctor that uses it or from the people saved by it?
IMO, IP is an unmanageable mess of reification, monopolistic privileges, and false ownership. Par for the course on government meddling.
In his monograph, Kinsella gives a different example. He gives an example of contractual obligation. I am giving an example of the original owner of information never giving up that ownership. He still owns the information (obviously, there are arguments against the possibility of him owning information; in here I am not addressing them); he merely sells the book as a physical way to access what the author owns. (Or, he sells the physical matter of the book, but not the information content.)
What I am trying to say is that from libertarian perspective, what should drive us to assign rights is their scarcity of use. But why should that be the case? After all, if a billionaire is not using his summer house in the mountains at the moment, that is not an excuse for a burglar to come in and use it for a while as his home (providing he hasn’t broken anything, etc.). One could say that what should drive us to assign rights is scarcity of claim. Only one party at a time can claim something to be his, and therefore, we should find a way to figure out whether it is his or someone else, based, for instance, on homesteading primacy.
I am not saying that the author lays a claim on the ideas that come to exist in one’s head as a result of reading the book. One could not lay ownership claims in this case, I agree. I am saying that the author never sells the information contained in the book with the book.
I suppose it’s true that if I memorize the book and then re-type the contents of it, the author cannot lay a claim on what I retyped if the ontology of information in non-platonic. I don’t know if “taking a picture of the page” and “using the information on the page” are the same… i.e., I don’t know how to get into the nuances of active vs. passive usage of information…
If it were platonic, however, then it is conceivable that I could still hold on to the ownership of the information even after selling the book.
I agree that IP leads to a large number of arguments ad absurdum. That in itself does not mean that the concept of platonic ideas is not true; it just means it’s a very practically messy concept.
Let me explain what I mean by scarcity of use vs. scarcity of claim.
First, let’s ask: what is the idea of property? It’s the idea that if I have a claim on something, it’s not immoral for me to restrict others’ use to it. Why not?
You can use religious argument. [Insert here a version from whatever religion. Simple version: G-d created the world with a particular purpose; G-d is good; whatever He says is right; therefore, when He says you can’t use something that came to someone’s hands because it contradicts the purpose for which He created the world, it’s immoral to do it.]
What about a natural morality argument? Well, one can say: Because we want to live in a society with the least amount of conflict. And the way to resolve the conflict most successfully is to assign property rights based on homesteading. (By the way, one could also say that maybe one can resolve the conflict by assigning property rights based on need. Whoever needs something the most deserves to have it the most. Well, let’s leave that alone for now.)
But then, you haven’t really solved the problem with scarcity of use.
For example, in every family that has at least two small kids, sometimes you have the following situation:
Kid A is playing with his first toy. Kid B comes into the room, holding A’s second toy. A screams: “Don’t touch it. It’s mine.” B says: “You weren’t using it.” A says: “It doesn’t matter; it’s mine.”
Based on the scarcity of use approach, why shouldn’t B use A’s second toy as long as A doesn’t need to use it (assuming there is no fear that B will break the toy)? If my goal as a parent/babysitter in the situation is to minimize conflict (ignoring the goal of teaching the benefits of sharing, etc.), I should let B use the toy, and only when A decides he wants the toy to play with, he can take it from B.
Following the approach of scarcity of claim, B cannot use A’s toy, because the toy has only one claim on it – that of A – that precludes B from using it.
This approach precludes the burglar from using a rich person’s summer house without the person’s permission (and if the rich person found the burglar, he can prosecute him for trespass alone, even if the burglar didn’t break or steal anything and paid for any food he ate and electricity he used). But this approach also precludes someone from using information on which someone put his first claim.
I know it may sound ridiculous (as Groucho said, if I heard your song, I have to pretend I don’t know it?), but why is this argument wrong, ad absurdums aside?
Regarding my first question, let me give a different example:
Can I sell someone a sheep with stipulation that the wool of the sheep and the offspring still belong to me? The owner may use the sheep for milk (or for pushing a cart), but all the wool that the sheep or the offspring that the sheep produces are still mine; I never transfered them to the buyer.
Then, if someone borrows the sheep to milk it and cuts off some of its wool, he has stolen my property.
Could this analogy be extended to my selling a work of art, but stipulating that I am not selling the information contained in it full – I retain the ownership of the material copies of the information? I could, for instance, stipulate that I retain ownership of all paper or electronic copies, but not the brain circuits of the person who memorized the information.
The first problem with this is that there would be no such thing as “creating” an idea – it would simply be an act of discovery since all ideas would already exist in the ideal realm. The next problem is that of independent discovery. Let’s say I sit down at the piano and play a melody, one that I have never heard before. According to you, I haven’t created a melody, but rather accidently trespassed on a ideal object already owned by the first person to access the melody. But then you have the problem of ideas which are constitutive of, or constituted by, other ideas. If “Mi-Re-Do” is an ideal object, then what about “Sol-Fa-Mi-Re-Do”? Is it a completely different object? You need an entire theory about the ontology of ideal objects in order to put forth a coherent theory of property based on it.
What!? Why would you have to stipulate that you don’t own someones brain circuits?
Because it doesn’t parallel what you’re comparing it to, almost at all.
For one thing, you’re saying the author created the information in the book, and is selling the book provided the information created within it is not “spread” outside of the book. But to make a congruent comparison you would have to be saying the previous owner of the house owns the fire. But he didn’t create the fire. And how in the hell can someone claim “ownership” of a fire? It’s a chemical process. Even the patent system doesn’t try to allege someone can own a specific instance of a chemical reaction. At least they say the process itself is “owned” (which of course is only slightly less absurd). And not only that, the person working the fireplace “created” the fire…how can the owner of the fireplace retain ownership of what someone else creates as a result of simply using the fireplace?
So are you suggesting that the homeowner owns the patent on fire? Because he retained ownership of a fireplace? Or are you saying that the book the author wrote can somehow create new information, and the author of the book therefore owns any of the new things the book brings into existence?
You said it yourself: “I am not saying that the author lays a claim on the ideas that come to exist in one’s head as a result of reading the book. One could not lay ownership claims in this case, I agree. I am saying that the author never sells the information contained in the book with the book.”
I could go on and on. It’s just a terrible analogy. It’s like:
“Driving your car to the super market is like baking a cake for a black man.”
Then there’s no point in what you’re saying. The entire argument against the legitimacy of “intellectual property” is that it isn’t property and cannot be owned. It’s like I told you before. You cannot attempt to argue a premise by assuming the premise is true and then just coming up with theoretical examples of it.
Your question regresses back to roots addressed in Hoppes “argumentation ethics”. I myself have an ultimate fundamental question regarding that, but it seems to be a regression even further back than yours. The answer to yours may be found in examination of the theory. See these resources.
And why should one assume there is no fear of a child breaking a toy? Because that neeever happens, right? The fact of the matter is there is risk involved of this “forced sharing”, and since you acknowledge the reality of scarcity, you must acknowledge the real cost involved in replacement of a scarce object.
…Which, if taken to its realistic extreme, is infinite…because there is no such thing as a real “identical replacement” of anything. What you’re suggesting is that someone who keeps her grandmother’s pearls that your grandfather gave her after returning from World War I should be perfectly able to wear them, or do whatever they want “so long as they don’t break them.”
a) There’s no guarantee they won’t break/ruin them.
b) Even if something is not “broken”, for most things there is a reality of aging and diminishing that is accelerated with use. Sometimes this is called “wear and tear”. How is the owner of the property compensated for this loss?
c) Suppose something does happen to the property. What if this random user doesn’t have the means to replace it? So you’re saying you only have a right to use someone else’s property (just because they’re not using it) only if you can afford to buy your own?
d) This would also imply a recognition that you’re suggestion is that if something does happen to the property, it’s perfectly fine so long as it’s “replaced”. As in, it doesn’t matter that this random stranger lost your grandmother’s pearls, so long as he buys you some new ones.
e) What you’re ultimately saying is that anyone has a right to anything so long as it’s not in use at the moment. I think if you take 30 seconds to think about the implications of this, you’ll be able to come up with plenty more points as to why it’s a ridiculous notion.
You should “let” B use the toy (something you don’t own, and therefore have no place to say what should be done with it), and only when A “decides” he wants to play with it, he can take it back.
I see. So…
What gives you the authority to dictate command over someone else’s property?
Suppose there’s a “C” and he gets to this property at exactly the same time B does. Who gets to use the property then? However this is decided, I’m sure you’ll be the final arbiter, whether B and C ask you to help settle their conflict or not, right?
I’m assuming this role of “babysitter” would be filled by some high ranking official in the grander scheme of things? Perhaps like a governor of some sort? Maybe someone who has command over a force so that he might be able to overpower those who do not abide by his rulings of “letting” the Bs use the As’ property until the As decide they want to use it? Because we all know the public at large certainly needs a babysitter.
Again, this is not an accurate comparison. NONE of the things I mentioned in the first list above apply to ideas or patterns. NONE.
I hope you haven’t seen this yet (because if you have, I’m not quite sure how you could be even wondering some of the assertions you’re posing), but if you haven’t, please see here:
It will help you understand that (as Mike implied) there is no such thing as an “original” idea, and the only way to follow along the lines you’re talking about is to attempt to draw lines that are, for one thing, impossible to draw; and for another, no matter what you end up deciding, would be completely arbitrary.
OK, so I think my model with retaining ownership of the information part of the book while selling the matter of the book is flawed for a number of reasons.
I agree that the crux of the issue is the question of whether information (either ideal or bound in the object) can be owned. So, I need to read up (or listen up) the sources about the reasons to restrict property.
Quick question, though:
Someone asked me the following question: “we, as a society, agree to allow people to take control of property, and restrict the access of others to it, so that there will be an incentive to produce. Isn’t that utilitarian?”
In a phone conversation with him, I explained that, from libertarian perspective, the objective of creating laws is not to provide incentive to produce, but to minimize the amount of conflict. But he answered essentially with what I hinted to before: “Why then not say that anyone has free share of all resources, and whoever wants to, can use any resource? It seems that the problem with doing that is motivation.”
I.e., we say: “The reason to have private property rights is to minimize people punching each other on the nose.” He answers: “An even better way to do that is to say that anyone can use whatever he wants, and people may not punch each other on the nose. The only reason that doesn’t work is that nobody will want to save up in order to invest, since as soon as he saves anything, people will come and grab it from him. So, that is why we restrict people from using each other’s property – to encourage saving and investment (and other unique uses of property). But that is essentially utilitarian.”
There is someone alive on this Earth who honestly believes the way to minimize conflict is to say everyone has a right to everything? This is the way of dealing with scarcity that would minimize people getting punched in the face?
You’re saying you can honestly imagine a society of human beings existing on any large scale and operating in a peaceful, sustainable manner under a system in which no one can own anything?
Have you really thought about the implications of this?
You misunderstand. Neither I nor my friend are saying that such a society is sustainable or at least sustainable for a long period. It will necessarilly revert to a lot of small communes that will operate on a primitive level of small barter economies.
But this argument against this system is utilitarian. Isn’t it?
What moral right would “society” even have to presume it could do anything other than “allow” people to exercise their rights. Judging by that passage, I’m afraid your friend has a deep statist streak and will probably not be able to grok the libertarian arguments. At the outset he presumes that property only exists because “society”, through some collectivist 100th Monkey osmosis, mutually considered the idea a good cost benefit analysis so therefore agreed to “allow” it. If I understand it, I think he’s saying property rights only exist because society collectively agreed to recognize and enforce them on behalf of property-owners.
It’s that nanny mindset that regards humans as occupants of an aquarium who would soon be trudging through their own efluvia were it not for the wise keepers behind the scenes who maintain the system.
Yes, it can be a dangerous world out there, but the fearful notion that peaceful cooperation cannot be achieved or defended without collectivist authoritarians keeping order is just another in a long line of neuroses prevalent in Americanus Domesticus.
Heh, s’cuse the rant!
Yes, that is utilitarian and completely disregarding the question of individual rights.
Just because my friend says “What if X” doesn’t mean he believes in X.
You make it sound like he is in favor of utilitarian government deciding what to do with property. Not necessarilly. Imagine we have an anarchist society, in which independent legal authorities decide what the right way to live is. Imagine you have a congress of legal authorities, during which different authorities (and by that I don’t mean people with guns, I mean people whose opinion others consider valuable) give proposals of different society models.
One of them could say: “Let us have a society in which conflict will be minimized by everyone agreeing to share all resources. If someone disagrees to share a resource, we will consider such a behavior immoral.”
Another authority says: “Such a system would not allow any saving up of resources to invest, since as soon as someone saves up enough wheat to invest in increased wheat production, someone else who hasn’t saved up will come and take that wheat away. That is why we should have private property.” He could also say: “If individuals don’t live better as a result of their choices to save, invest, or work harder (since any excess goods will be taken away by those less successful), there will be no motivation for them to save, invest, or work harder. The society will stagnate. That is why a better system is private property.”
The second argument (both versions) is utilitarian.
My friend is asking (and so am I): what is a non-utilitarian argument for private property rights? What would be a non-utilitarian moral justification of someone restricting someone else from using the property that the first person has homesteaded?
This question is important for the content of this thread, since whatever answer you give should apply to scarce resources and not to non-scarce ones and be non-utilitarian.
Another question that I want to ask, returning back to my partial ownership model:
In the model of information as being bound within the object (i.e., rejecting the model that information is an independently existing ideal entity, but accepting that information is merely a property of a physical object, just like shape is), can we not say that this particular instance of this information is scarce, because the physical object that holds it is scarce?
For instance, star shape “in general” is not scarce; hence, arguably it cannot be owned. But individual star-shaped cookie cutter is scarce. What, then, is the status of that specific cookie cutter’s shape? Is that specific instance of star shape not scarce? (Proof being that it can be used by only one person at a time and only on one piece of dough at a time.)
In that case, one could argue that the specific instance of the shape can be owned. One could go back to my model where the original cookie cutter manufacturer says: “I am selling you the metal of the cookie cutter, but not the shape – the shape still belongs to me, and I am merely leasing it to you. The conditions of the lease are such that you may only use the shape to cut cookies, but not to cut paper shapes.” (Or whatever.)
In that case, when someone used the cookie cutter to cut paper shapes, he has violated the specific star-shape owner’s property rights. If I give the cookie cutter to my wife as a present, the manufacturer still owns the specific star shape (thus, this example is different from the one used by Rothbard and Kinsella).
I don’t think that even in this case the manufacturer could confiscate the star-shaped pieces of paper that I used the cookie-cutter and its shape to make. (If I rent an axe from you, and you stipulate that I may not chop down endangered trees with it, and I still do it, I don’t have to return the choped-up trees to you, even if I violated the terms of our lease.)
But maybe what the manufacturer could do is prevent one from cutting new paper shapes using his specific star shape.
Well, if you want a strictly utilitarian argument you can also check out the story of the Jamestown settlement. 90% of them starved the first few years while their settlements were communistic (small c) and sharing all resources. Finally they implemented a more reasonable plan of giving plots of land to the successful homesteaders in a “desperate attempt” to improve efficiency and profitability of the settlement.
Lo, it worked.
The non-utilitarian argument is simply recognizing that if something is a scarce resource (a plot of land, a bag of wheat, whatever as long it is a specific physical thing), then it is something that can be owned. I don’t know who the owner of an improved property could be if not the person or people who developed it from its unimproved natural state into the dwelling, crop, or what have you that exists now.
If you’re the homesteader, it is your prerogative to control the property and assert your right to use it unimpeded by someone else with no claim to the property. If I homesteaded the property and someone walked inside one day and throws me out the door, you can bet I’m going to assert my rightful ownership and undertake whatever means to remove the aggressor.
Heck, if you lock the door when you leave your house you are doing so to restrict unauthorized entry, so it doesn’t really seem like a moral dilemma. Or maybe I misunderstand you?
