Stephen Kinsella's argument that IP conflicts with property rights should be disregarded.

[DerpStatis]

Stephen Kinsella (and others) makes an argument against intellectual property (IP).
http://library.mises.org/media/Mises%20University%202009/Intellectual%20Property%20and%20Libertarianism%20Stephan%20Kinsella.mp4
[1] see @ 7:25 for his (incomplete) definition of property rights
[2] see @ 13:40 Kinsella accepts homesteading and defines property rights through it.
[3] see @ 16:24 Kinsella defines copyright (I note below that this does not differentiate copyright from defenses of property by the state).
This is also where he makes the argument I’m talking about.

The argument is paraphrased as follows. IP should be opposed because IP infringes on property rights. Define IP as copyright and/or patents.
I am only considering ONLY this PARTICULAR argument here and not passing judgment on whether IP is legitimate or not or on his other arguments against it.

Some clarification and definitions are needed to analyze his statement.

• Definition (Property Rights:Mine, and possibly Kinsella’s second definition)

  A property right is a right to do as you please with property as long as you don’t infringe/violate/conflict with other existing property rights.

  Since this is a recursive definition we must define what infringe/violate/conflict with means and whether property rights exist at all.
  I will use the homesteading theory here to prove the existence. And from that we obtain the characteristic that property rights exist for a given use.
  A “violation” means a physical invasion/physical trespass/physical interference with that use by virtue of which the homesteading occurred.

I think people will generally agree with the definition I’ve provided. If you don’t please correct me.
However keep in mind that the rest of what I say may be true despite any corrections or alterations in the definition, so please check before making the correction.

• Definition (Property Rights:Kinsella first definition)
  Kinsella provides a different definition that says property rights are rights to exclusive control.
  This definition is incomplete.
  From video we can deduce that control means having ultimate judgment on how to use the property.
  However, implicitly we have to acknowledge that some uses may not be “just”. Those are exactly the ones that infringe/violate/conflict with other’s exercise of their own control.
  We must have such clauses in the definitions because we must accept that rights cannot conflict with each other (by definition they cannot, but this is a separate discussion).
  Kinsella accepts that property rights cannot conflict with each other since that is the crux of his argument.
  So substitute “control” with “do as you please” and add the limiting provision and you get back the definition I supplied above.
  I am using my definition because I think that’s the one that most people accept.
  If you think it isn’t equivalent to Kinsella’s please point it out, while keeping in mind that the rest of what I say will hold even if I use his definition.

Local Definition (Libertarian):
For convenience I refer to libertarian in this discussion as someone who believes property rights are absolute, should never be violated.
This definition has no relevance to the argument, if you doubt this, just substitute libertarian=“property rights absolutist”.

Now I will start with the obvious.
It must be true that either IP is a property right or it isn’t.
Kinsella is arguing something and any argument has a claim.

So in lieu of this let’s see what Kinsella is claiming. Since it isn’t explicit we can deduce his claim.

1. Case1 (his claim is that IP is not a property right AND it conflicts with property rights)
   In this case he must prove that IP is not a property right and he does provide arguments for that elsewhere.
   The purpose of such a claim is not clear to me.

   For libertarians that don’t think IP is a property right this is irrelevant and a good illustration.
   With libertarians holding the view that IP is a property right, he will have to argue some other way.
   With non-libertarians this won’t work either, because an infringement of property rights may be warranted, so he must argue why such an infringement is wrong.
   (Because of the nature of the IP debate, I tend to think Kinsella is trying to mostly convince other libertarians)

2. Case2 (his claim is that IF IP is a property right then we can show a contradiction.)

   If a contradiction is there, this should convince libertarians to drop the view that IP is a property right.
   In my view this is more likely what he is claiming.
   And if you watch the video after [3], he is clearly engaging in proof by contradiction or reductio ad absurdum.

   So the proof of this MUST go as follows (MUST because we are dealing with logic)
   We MUST assume that IP is a property right and show that this leads to a negation of another assumption or result.
   That is by definition a proof by contradiction or equivalently a proof by contrapositive.

   The “other result” for Kinsella in this case is that a property right is infringed upon/violated/conflicted with.

   This contradiction cannot occur, because if IP is a property right, then by definition it cannot conflict/infringe/violate other property rights.-

So I must conclude that no libertarian should be convinced by this PARTICULAR argument by Kinsella against IP.
At best it is merely an illustrative example of the bad effects of the illegitimate right of IP on legitimate property rights.
The illegitimacy of IP he shows through other arguments.

The confusion here arises from the implicit misunderstanding of the recursive definition of property rights.
Any property right limits the sphere of influence of posessors of other property rights.
Kinsella is using “conflict” as something that limits your use of property rights.
If a new right comes into existence, they can still “do as they please”, but they have to limit their actions to those that will not violate the newly created right.
The simplest example of this is when someone homesteads a piece of land by planting a tree on it, so now another person cannot use their property to plant a tree in the same place.
Whereas before the homesteading everyone would have been able to plant a tree in that place. Hence the perceived “conflict”.

Kinsella is using the definition of “conflict” as something that limits your use of property rights.
That is a bad definition of the concept, since it would at least include homesteaded property rights.
So if we accept that definition of “conflict” we cannot maintain homesteading as giving rise to property rights.
In fact it is hard to think how anything can give rise to property rights given that definition of “conflict”.

See [3] where he makes the same grave error by defining copyright as a state imposed limitation on how A can use his own property.
In a libertarian society there would be by definition of property rights many such occurrences of limitations on how A can use his property.
When the state defends the property of B they are necessarily imposing limitations on how A can use his own property and his own body.

(For sake of credit, Godd2 on the mises chat gave me the crux of what I said here, but any errors are solely mine)
Please don’t reply with things like “IP is not a legitimate property right because…”, I am not arguing about that here and it is logically irrelevant to the discussion.
I am just talking about the argument Kinsella uses and others have came up with or repeated to me.

Here’s my view on IP in brief in case you question my motives:
The whole point of homesteading is that you homestead a use.
And infringement only happens when someone interferes with your use.
With information there is no interference if I decide to use the information, because you can still do exactly the same things you could before. There are no damages and hence no victim and no action is warranted.
That’s really the end of the story for me. That’s what differentiates copyright and IP in general with property rights, and not its conflict with property rights.

[billott1]

Property must be scarce. Intellectual Property IS NOT SCARCE.

[DerpStatis]

@Bogart

Property must be scarce. Intellectual Property IS NOT SCARCE.

This is very very dissappointing. You have not bothered to read anything that I have said!

[gotlucky]

NOTE: Your link is broken, so I can only comment on what I remember about Kinsella’s arguments, not about the one’s in the link.

@DerpStatis

Some clarification and definitions are needed to analyze his statement.

• Definition (Property Rights:Mine, and possibly Kinsella’s second definition)

  A property right is a right to do as you please with property as long as you don’t infringe/violate/conflict with other existing property rights.

  Since this is a recursive definition we must define what infringe/violate/conflict with means and whether property rights exist at all.
  I will use the homesteading theory here to prove the existence. And from that we obtain the characteristic that property rights exist for a given use.
  A “violation” means a physical invasion/physical trespass/physical interference with that use by virtue of which the homesteading occurred.

I think people will generally agree with the definition I’ve provided. If you don’t please correct me.
However keep in mind that the rest of what I say may be true despite any corrections or alterations in the definition, so please check before making the correction.

First, property rights don’t “exist” in the sense that you are using the term “exist”. You don’t “prove” the existence of property rights, unless you are talking about describing the property rights in a given society, which you are not doing. Second, if you are going to analyze someone’s argument, use their definitions, not yours. If you don’t use their definitions, you are not analyzing their argument.

@DerpStatis

Definition (Property Rights:Kinsella first definition)
Kinsella provides a different definition that says property rights are rights to exclusive control.
This definition is incomplete.
From video we can deduce that control means having ultimate judgment on how to use the property.
However, implicitly we have to acknowledge that some uses may not be “just”. Those are exactly the ones that infringe/violate/conflict with other’s exercise of their own control.
We must have such clauses in the definitions because we must accept that rights cannot conflict with each other (by definition they cannot, but this is a separate discussion).
Kinsella accepts that property rights cannot conflict with each other since that is the crux of his argument.
So substitute “control” with “do as you please” and add the limiting provision and you get back the definition I supplied above.
I am using my definition because I think that’s the one that most people accept.
If you think it isn’t equivalent to Kinsella’s please point it out, while keeping in mind that the rest of what I say will hold even if I use his definition.

Kinsella’s definition is fine. Also, do not substitute control for “do as you please”. That is not the standard definition of control, which I’m assuming Kinsella is using. Some uses may not be “just”, but that doesn’t change Kinsella’s definition of property rights. All that means is his definition allows for some property rights to not be considered just. I think that is a useful definition, as it allows us to differentiate between just (or rightful) property and unjust (or wrongful) property.

You might not be okay with that definition, but it seems that is what Kinsella is using, and I’m certainly comfortable with that definition.

@DerpStatis

Local Definition (Libertarian):
For convenience I refer to libertarian in this discussion as someone who believes property rights are absolute, should never be violated.
This definition has no relevance to the argument, if you doubt this, just substitute libertarian=“property rights absolutist”.

If it has no relevance to your argument, then don’t define it. I certainly don’t like that definition of libertarian, and it doesn’t seem to describe a number of people on this board either.

@DerpStatis

Case1 (his claim is that IP is not a property right AND it conflicts with property rights)
In this case he must prove that IP is not a property right and he does provide arguments for that elsewhere.
The purpose of such a claim is not clear to me.

For libertarians that don’t think IP is a property right this is irrelevant and a good illustration.
With libertarians holding the view that IP is a property right, he will have to argue some other way.
With non-libertarians this won’t work either, because an infringement of property rights may be warranted, so he must argue why such an infringement is wrong.
(Because of the nature of the IP debate, I tend to think Kinsella is trying to mostly convince other libertarians)

If he provided no argument, then maybe he expected the audience to already be familiar with his arguments against IP.

@DerpStatis

Case2 (his claim is that IF IP is a property right then we can show a contradiction.)

If a contradiction is there, this should convince libertarians to drop the view that IP is a property right.
In my view this is more likely what he is claiming.
And if you watch the video after [3], he is clearly engaging in proof by contradiction or reductio ad absurdum.

So the proof of this MUST go as follows (MUST because we are dealing with logic)
We MUST assume that IP is a property right and show that this leads to a negation of another assumption or result.
That is by definition a proof by contradiction or equivalently a proof by contrapositive.

The “other result” for Kinsella in this case is that a property right is infringed upon/violated/conflicted with.

This contradiction cannot occur, because if IP is a property right, then by definition it cannot conflict/infringe/violate other property rights.-

Again, I cannot view the link, but your critique is inadequate. One of the main problems with IP is that it makes claims to other people’s property. If I patent the design of a chair, what that means is that you may not create that same shape with your wood and your tools. I am making a claim to what you can do with your property. I am excluding you from using your property. That is the contradiction with IP and property rights.

[DerpStatis]

gotlucky , I just pasted the link into my browser and it was fine.

Unfortunately none of you comments were helpful to me. You seem to be attacking my exposition, but not the substance of my claims and disecting irrelevant aspects of my argument. You are not engaging me, just trying to block any discussion of the logic of the matter. Your response is an attack rather than a constructive critique. Your response fits a pattern that I would like to avoid. I did not spend my time writing this critique to deal with beligerence.

I understand that definitions are important. If I chose to use a slightly different defintion, it wasn’t without reason. I cannot explain every single aspect of my argument. The least you can do is give me the benefit of the doubt. I used that definition because I have argued against this in other venues where that was the whole premise of the discussion. I do not use Kinsella’s first definition because it is not complete in my opinion. I can rephrase the whole discussion using his definition if you would like me to.

The “existence” is merely a theoretical construct, I am not implying anything about metaphysics, the premises are not mine, but ones that are agreed upon particularly by Kinsella. When you define something, you must prove that it exists, otherwise there is no meaning in the definition. Property rights exists in the theoretical construct of Kinsella, they arise through homesteading. That is all I am saying, please do not twist every one of my words.

Please watch the video and do not speculate about its contents before you judge me. And try to discuss the logic of my argument rather than blinding dismissing it.

Your comment “I am making a claim to what you can do with your property.” shows you have refused to understood anything that I have said. Everyone that owns property is making such a claim.

[h.k]

IP doesn’t generate more inventions anyway, according to various PRO-IP people.

Secondly, various countries have scraped IP laws with no negative impact in prescription drugs, etc.

Reality thinks highly of Kinsella.

[DerpStatis]

@h.k.

IP doesn’t generate more inventions anyway, according to various PRO-IP people.

Secondly, various countries have scraped IP laws with no negative impact in prescription drugs, etc.

Reality thinks highly of Kinsella.

I agree with you, but I am not discussing the merits of IP here. I’m just pointing out that this particular argument that he uses does not work. That’s all.
I think highly of Kinsella also.

[h.k]

@DerpStatis

@h.k.

IP doesn’t generate more inventions anyway, according to various PRO-IP people.

Secondly, various countries have scraped IP laws with no negative impact in prescription drugs, etc.

Reality thinks highly of Kinsella.

I agree with you, but I am not discussing the merits of IP here. I’m just pointing out that this particular argument that he uses does not work. That’s all.
I think highly of Kinsella also.

Ah

I see what you mean now, my mistake.

Although honestly it is very easy to see what he meant, since I’m an Austrian. Non-austrians would be confused possibly.

All he has to do is add a handful of words and his argument is sound.

[DerpStatis]

Ah

I see what you mean now, my mistake.

Although honestly it is very easy to see what he meant, since I’m an Austrian. Non-austrians would be confused possibly.

All he has to do is add a handful of words and his argument is sound.

I’m operating on that premise, but it seems to me he cannot make the conflict argument, since other (legitimate) property rights have the same properties w.r.t. other property rights. I’ve tried to be as rigorous as possible on this.

[h.k]

@DerpStatis

Ah

I see what you mean now, my mistake.

Although honestly it is very easy to see what he meant, since I’m an Austrian. Non-austrians would be confused possibly.

All he has to do is add a handful of words and his argument is sound.

I’m operating on that premise, but it seems to me he cannot make the conflict argument, since other (legitimate) property rights have the same properties w.r.t. other property rights. I’ve tried to be as rigorous as possible on this.

Yes I agree with your argument, he did not clarify his point well enough. Sometimes authors make mistakes, but all they have to do is add in a few words here and there.

[gotlucky]

gotlucky , I just pasted the link into my browser and it was fine.

It was my browser (Chrome). I had to use IE to get it to work. Go figure.

Unfortunately none of you comments were helpful to me. You seem to be attacking my exposition, but not the substance of my claims and disecting irrelevant aspects of my argument. You are not engaging me, just trying to block any discussion of the logic of the matter. Your response is an attack rather than a constructive critique. Your response fits a pattern that I would like to avoid. I did not spend my time writing this critique to deal with beligerence.

I was not hostile…anyway, your exposition was weak for the already stated reasons. As for the logic, you are not even responding to my points…namely that you are not even characterizing Kinsella’s argument correctly. I was able to watch the video, and guess what? I have confirmed that you have mischarcterized Kinsella’s arguments and statements.

Go figure, apparently I’m more familiar with his arguments than you are.

I understand that definitions are important. If I chose to use a slightly different defintion, it wasn’t without reason. I cannot explain every single aspect of my argument. The least you can do is give me the benefit of the doubt. I used that definition because I have argued against this in other venues where that was the whole premise of the discussion. I do not use Kinsella’s first definition because it is not complete in my opinion. I can rephrase the whole discussion using his definition if you would like me to.

No. You have not extended to me the benefit of the doubt, so I will most certainly not extend it to you. Your definitions were not Kinsella’s definitions. Therefore, you were not describing Kinsella’s argument. So yes, I would like to you rephrase the whole discussion using Kinsella’s definitions, or at least accurately describe his arguments.

The “existence” is merely a theoretical construct, I am not implying anything about metaphysics, the premises are not mine, but ones that are agreed upon particularly by Kinsella. When you define something, you must prove that it exists, otherwise there is no meaning in the definition. Property rights exists in the theoretical construct of Kinsella, they arise through homesteading. That is all I am saying, please do not twist every one of my words.

You are too sensitive. You will not last here long if you get this defensive over any critique of your posts.

Please watch the video and do not speculate about its contents before you judge me. And try to discuss the logic of my argument rather than blinding dismissing it.

Yeah. I watched the first 20 minutes, which is what you talked about. Like I said, you do not accurately portray Kinsella’s arguments. Not only that, but my last point which you conveniently dismissed was the same as Kinsella’s. Did you watch the video?

Your comment “I am making a claim to what you can do with your property.” shows you have refused to understood anything that I have said. Everyone that owns property is making such a claim.

Okay. I honestly can’t tell if you are trolling us or not.

[DerpStatis]

h.k.

If you have time, can you write down briefly what you think he should have said.

Or what you think his actual idea is.

Thanks.

[DerpStatis]

gotlucky,

I am not “too sensitive”, I just don’t have time for this. You are clearly here for a differnt purpose than me. And judging from the discussion so far I don’t think I can gain anything from communication with you. Maybe I’m wrong , but my time is precious and I don’t have time to find out.

Forgive me if I misjudge you, but I cannot respond further. Thank you for your input.

[gotlucky]

DerpStatis,

For your convenience, I will repost my critique:

@gotlucky

Again, I cannot view the link, but your critique is inadequate. One of the main problems with IP is that it makes claims to other people’s property. If I patent the design of a chair, what that means is that you may not create that same shape with your wood and your tools. I am making a claim to what you can do with your property. I am excluding you from using your property. That is the contradiction with IP and property rights.

This was Kinsella’s argument. Not only did you misprepresent this argument in your OP, you dismissed it in your response to me. That you are dismissing it demonstrates that you are not here for honest purposes.

If you want to evade this point, so be it. But it will be abundantly clear that you are attempting to troll the members of this forum.

[h.k]

@DerpStatis

h.k.

If you have time, can you write down briefly what you think he should have said.

Or what you think his actual idea is.

Thanks.

I read your interpretation of what he said, if that is true, then I see your point.

I’m a bit too lazy to watch the actual video though. So I shouldn’t comment. :]

[gotlucky]

@h.k.

DerpStatis misrepresented Kinsella. The example I gave prior to watching the video was almost identical. Instead of using “wood and tools” as an example, Kinsella used “ink and paper”. The logic of the argument was the same. This can be viewed starting a little after the 16:00 mark. DerpStatis has twice misrepresented Kinsella’s argument, so I suspect he his trolling us.

[DerpStatis]

@h.k.

I read your interpretation of what he said, if that is true, then I see your point.

I’m a bit too lazy to watch the actual video though. So I shouldn’t comment. :]

Sure, I understand

[z1235]

@gotlucky

One of the main problems with IP is that it makes claims to other people’s property. If I patent the design of a chair, what that means is that you may not create that same shape with your wood and your tools. I am making a claim to what you can do with your property. I am excluding you from using your property. That is the contradiction with IP and property rights.

This is a non-argument. If (you assume, for the sake of argument that) IP rights are property rights, then you doing certain things with your (physical) property could come in conflict with the (IP) property rights of someone else.

You cannot freely launch your fist into someone’s face, either, as that would put you in conflict with his property rights to his own face. So, the fact that this person would be “making a claim to what you can do with your property” (fist) does not invalidate his property rights to his face.

The IP debate is (or should be) solely about whether IP rights are property rights or not. An “objective” (a priori) answer to this question does not exist, IMO.

[gotlucky]

z1235,

I see what you are saying, but I think there is a crucial difference between hitting somebody and arranging some ink and paper (as Kinsella stated) or wood (as I stated). If I hit your face, then I am taking my property (my fist) and trespassing against your property (your face). But if I arrange my property (blocks of wood) in some particular way (into a specific design of a chair), then suddenly I have violated your property? What exactly is my crime? Unlike hitting your face, it’s not trespass. My crime is arranging my property into some configuration.

In the case of hitting your face, I am using my property to trespass against your property. In the case of building a chair, I am using my property and you are claiming that I have violated your IP. The contradiction is that we are both making simultaneous claims as to how to use my property. In the case of trespass, you are not claiming to own my property, but that is the case in IP. In the case of trespass, you are excluding me from entering your property. In the case of IP, you are excluding me from configuring my property on my property. I’m not trespassing or otherwise controlling property of yours.

We can’t both own the same property (unless it’s a joint ownership, but that’s not the claim with IP). That’s the contradiction with IP. We both make claims to own the same property, and only one of us can actually be the owner.

[z1235]

gotlucky, if (you assume that) IP rights are property rights, then the manner in which you use your physical property could collide with (trespass over) the (IP) property rights of someone else – just like the manner in which you use your fist could do the same with respect to someone else’s face.

Property rights evolved as means towards the desirable end of peaceful conflict resolution. We are the descendents of the people who strongly preferred not to have fists launched into their faces. If, in a free society, enough people strongly prefer that original patterns (of numbers, words, sounds, or images) which they have created are not to be used by others without their permission, then property rights in IP would also evolve. If not, they won’t. The beauty of freedom is that it is unpredictable and uncontrollable by any one entity or dogma.