“Author’s note: I am compiling in this thread a list of all the fallacies invoked against intellectual property rights. I would greatly appreciate if one of the authoritative members of forum involved in the Mises Institute were to promote this to a full Mises.org story, thus confirming the institute’s dedication to honest intellectual debate in the tradition of the Austrian school of economics, however I would like to debate this for a few days in the forum in order that we may be able to discover a few additional fallacies I may have omitted. I will therefore be making some edits to this post for some time.”
This is a presumptuous request and employs unfair tactics: publish my article to prove you are fair! First, this is no way to get an article published (andI think it should not be published, because it is not well reasonined, and not suitable as an article in any case). Second, it’s wrong to imply they don’t have a dediction to full debate just because they don’t publish this forum post.
It has been a recent fashion by some libertarians to denounce the legitimacy of intellectual property rights on the free market. They believe and promote the idea that all information should be owned in common by all men, and that no man should exclusively profit from any information. This makes them, by any honest definition of the term, intellectual communists.
No, we say information has no owner, it is not ownable. And interstingly many of the IP advocate get upset when we simplify the matter by saying they are in favor of ownership of information. They puff up and start with their eristic tactics and say they do NOT believe in ownership of information, why how dare we accuse them of that! Why, they only believe in some (metaphysical babbling) physical instantiation of blah blah blah. Yet here you are cheerfully admitting it. Good!
Most anti-IP arguments stem from confusion over the nature of information and its physical manifestation, which is why property in information gets bundled with property in ideas. Some libertarians, whose opposition to IP comes from a communistic sensibility to the production of information,
False. And IP does cover ownership of ideas and information.
when not actively promoting communistic models of information production, make liberal use of the confusion between information and ideas to promote the abolition of IP entirely and thus destroy their competition. This is particularly obscene due to the fact that the industrial wealth of the United States in the late 20th century has been grown precisely thanks to the capitalist industries that produce information, most notably the publishing, media, film and software industries, which have produced some of America’s most illustrious corporate champions and continue to be one of America’s most cherished exports all over the world, spreading goodwill for Americans where the export of bombs and wars have spread hatred.
You seem to be implying IP law is somehow necessary for our success. There is no empirical proof whatsoever of this dreamed up propaganda.
The trend towards de-industrialization and the expansion of the service industries goes through the expansion of the information-producing industries, both by making production more automated and by offering valuable consumer information goods, and the future wealth of civilization is therefore inextricably bound to the protection of intellectual property rights.
The “therefore” doesn’t follow at all. This is not even an argument. It is just assertion.
It is my intent here to go through each one of the fallacies of intellectual communists, from the most common to the most bizarre, to show that intellectual property is fully rooted in the physical nature of the universe
“fully rooted”? overuse of metaphors is dangerous. It leads to fuzzy, imprecise, stuff like this. (see http://blog.mises.org/7614/objectivist-law-prof-mossoff-on-copyright-or-the-misuse-of-labor-value-and-creation-metaphors/)
and derives from property rights in materially scarce goods produced in the free market, as well as making the case for the nefarious intentions of the opponents of intellectual property rights.
IP "derives’ from somethign? As in, has a “source”? As for intentions–this is ridiculous. I myself have practiced patent law for 17 years, and tried to salvage Rand’s tattered defense of IP, tried to find a way to justify it, but realized it cannot be done because my assumption was wrong: it is simply incompatible with real property rights. My only “intention” is truth and justice and libertarian rights.
Fallacy 1: Intellectual property is bad due to patents
This is by far the most common fallacy, as espoused by such legal professionals as Stephan Kinsella. This argument goes as follows: because patents are monopolies, all forms of intellectual property must be abolished.
I do not make this argument at all. Rather, I attack the most prominent and destructive forms of IP, patnet and copyright, and also show waht they have in common.
One does not need to reflect for long to realize the fallacy in this argument. We have known since Rothbard’s Man, Economy and State the difference between patents and copyrights. Simply put, copyrights originate with a producer, while patents originate with the state. One must “apply for” patent protection in order to be granted it, but one does not need to apply for copyright protection to receive it,
Truly, this is a horribly amateur and uninformed argument. First, both patent and copyright originate with the state: they are called STATUTES. Second, it is only under current law that you don’t have to apply for a copyright–that is simply how Congress chose to draft those statutes. It could easily require copyright registration (it is allowed now, and required before filing a suit), and it could grant patnets automatically. If it did this would your argument have to change? You cannot make a libertarian distinction rest on what Congress happens to do! Further, the copyright Rothbard tried to defend was a private contractual arrangement, which had NOTHING to do with the copyright proteciton you are talking about here. So why did you even mention Rothbard??
one only needs to seek protection with the state when a copyright is violated, much as is the case when any other form of market-created property is violated.
But in a free market you would not run to the non-existent state for property violations, but to private courts. And it is inconceivable that there would be a copyright statute in such a society since there would be no legislature and no state.
This makes a copyrighted intellectual property a product of the free market, as it is created by a producer of information for the benefit of consumers.
This is just a horrible, horrible argument. IP is a product of the free market because Congress doesn’t require registration in the copyright statute?? Wow.
In the case of patents, the patent is created by the state (you may even say for the state), and may be granted or refused at the will of the state.
Actually you may not say it is created “for” the state. In fact you have it backwards, if anything: ALL original works of authorship recevie statutory, state-created copryight protection from the state regardless of whether the author wants it or not (see http://blog.mises.org/9240/copyright-is-very-sticky/ ), while patents are only granted if the private inventor actively applies for it (begs the state to grant it a private monopoly).
Further it’s funny you want to separate patent and copyright, when all the law and lawyers treat them under the same umbrella, as does the very government you think is competent to issue copyright law (what, it’s not competent to do this and also determine that patnet law is similar?). And funny that your fellow IP monopolists are in favor of patent AND copyright. Hmm.
Additionally, if one were to independently arrive at an idea and apply for a patent for this idea, it may be the case that an existing patent on this idea already exists. Not only does this mean that this act of independent production will be refused protection,
not necessarily. the PTO may well grant a patent. What if it doesn’t connect it to the first patent?
it will also be banned,
Patents don’t ban “acts of independent production.” They give the patent holder the right to prevent others from making, using or selling the patented invention.
and of course the whole process of searching and checking patents against each other will require the state to consume substantial resources to enforce its patents.
The state? its patents? No, it’s patentees who do this: they pay tons of money to do all this, hoping to extort multples of this from the poor IP victim.
This means that the creator must also suffer the burden of the costs of applying for patents in order to be protected
How exactly does a patent protect you? It doesn’t stop a lawsuit, or give you permission to do what your patent claims. It only gives you the right to stop others from making it. Suppose I patent a new chair–one made of foam-covered steel. I can stop people from making a foam-covered steel chair, but I cannot MAKE them myself if someone else first patented the idea of steel chairs. And that guy can’t cover his in foam. We can both just stop each other. What protection? What are you talking about?
(while in the case of copyrights he faces no cost to declare such a right),
Only because the current copyright statute does not require it.
and may abstain from producing an invention due to the risk of it already being patented. Obviously such a system makes no economic sense.
You know, as an IP abolitionist, even I realize this is not a good argument against patents. It’s just not a complete argument. You throw around obviously’s and therefore’s without even building a coherent case. And it’s not obvious to your fellow IP monopolists!
It is for this reason that Rothbard argued that patents are illegitimate precisely to the extent that they go beyond the copyright.
Dude, he was talking NOT ABOUT THE CURRENT COPYRIGHT LAW. He was talking about a private contractual system–this is obvious if you read it–his example is a MOUSETRAP. That’s an INVENTION covered by patent law now, NOT COPYRIGHT LAW.
Look, I realize IP law is arcane and confusing. It’s one reason I despise it. But you can’t go around making argument FOR copyright and NOT for patent based on your insights into the distinctions between them if you don’t even understand it (but I give you permission as a merely intelligent laymen to realize it’s all arcane BS and to advocate jettisoning it all).
All forms of intellectual property must thus be judged on their origin, whether they are created by a private producer or whether they are created by a state. Except for patents, all are created by producers and are therefore legitimate on the free market.
Patent and copyright are both created by state; and in any case you have not even given a coherent argument why a patent is illegitimate just because it’s “created by the state”, since your example assumes the state grants and even owns the patents–when they are actually actively applied for and pursued by private actors and then owned by them. The only way in which you can say the state “creates” patents is that it has set up a statute that grants these patent rights in certain cases; but then, it’s done that for copyright too–so they are both state-created!
And no, we don’t judge IP rights based on their “origin”–but rather, on whether they are compatible with libertarian property rights! Back to basics people!
Fallacy 2: Information is not scarce
Ideas can be communicated orally following their formulation in the mind, but useful information can only be produced while working with media,
I mean, I honestly don’t know if I can continue replying to this. Useful information cannot be communicated orally? What? Where do you come up with this stuff?
can only be inscribed and communicated through media, and can only be enjoyed and consumed through a media. Often they must be recorded from the physical world using sophisticated instruments to transform physical patterns from one aspect to another, recordable one. This physicality makes information essentially indistinguishable from media.
What nonsense. Yes, it is distinguishable. One is media. The other is the information somehow embedded in it.
Information can only exist if media takes a specific physical shape.
Do EM waves travelling at the speed of light have a specific physical shape? Are they physical?
For example, if one wants a recording of actors riding along a mountain range, one must send physical actors to this mountain range and record their physical presence with cameras writing on film or on digital memory, a process that requires a substantial capital investment. The uniqueness of such an event is self-evident, and even if another producer of information were to hire the same actors to ride along the same mountain range and film them with the same equipment, the resulting stream of information would still be completely different in physical structure. This makes information a good that is inevitably bound to a physical structure, which are scarce, therefore a tangible good. Any existence of an identical copy of this information stream is physically connected to this original recording through acts of communication with the producer’s property, and it is impossible for it to be a result of an independent act of creation.
All you are saying is that information is stored somehow on some scare thing. So what. Yes, all objects we own and use are arranged and configured in various ways. So what? And if there is an “identical copy” of information–i.e., if you have two similar information-patterned objects–it does NOT mean the second is not an independent act of creation. First, you have to define the degree of similarity. Second, you don’t homestead information, but rather scarce things-property. So if you impattern a thing you own, you are now creating anything new, you are ony rearranging the thing you have to a more desirable state. Third, so waht if the “copy” is not an 'independent act of creation". Libertarianism says DO NOT COMMIT AGGRESSION. It does NOT say “EVERYTHING YOU DO MUST BE AN INDEPENDENT ACT OF CREATION.” Jesus, it’s like you people never heard of, you know, LEARNING? What is wrong with LEARNING THINGS??
I cannot bear to continue to respond in detail. I’ll just hit a few high points:
Fallacy 3: Information is more efficiently produced in common
Our arguments are principled and property rihgts based, not utilitaria or wealth-maximization. We do not rest our critique on such an argument. However your side often argues based on consequentialist or utiliaraian arguments, so we simply reply that even if this were a valid way of arguing (it’s not), you don’t even have any evidence to back up your utilitarain arguments. But we do not make utilitarian arguments.
Fallacy 4: Nothing is taken away by copying
You guys are the ones that say THE IDEA IS STOLEN. And we reply: no, it is not. Copying it, emulating it, using it, learning things based on it–does NOT TAKE THE IDEA FROM YOU.
We don’t say “nothing is taken away”. We rebut YOUR claim that the idea itself is “stolen”. It is NOT stolen.
Instead, if you want to argue that your stream of profits that you could obtain if you had a state granted monopoly on your logos (information pattern) is “taken” by someone copyingyour idea–you’d have a better case. But this kind of “taking” is justified.
Fallacy 5: Why admit limited copyrights of some tens of years instead of zero years, an arbitrary distinction?
How can a question be a fallacy?
Under a pure free market, information producers could determine themselves what the extent of their copyright is, going as far as perpetuity.
wow. perpetuity. No public domain. Thanks for being consistent–all the young Austrians and libertarians are helped by this. They know to turn their heads and run screaming.
Fallacy 6: Copyright cannot stop piracy
This fallacy states that piracy is ubiquitous and therefore intellectual property rights are invalid.
I have never heard this argument used. Copyright cannot stop all piracy. It can stop some. Like all state law.
And “piracy” is question-begging: it presupposes copying is theft. Pirates trespass and take your stuff, maybe kill you. And when they take your stuff–you are left … without it.
A “copier” does not take teh stuff he copies–the other guy still has it.
Imagine a world where I can simply look at your car, and blink my eyes and zap up a duplicate next to me. That would not take your car. You would stil have it.
Fallacy 7: A counterfeiter is not breaking a contract and is not bound by copyright limitations
Some people can be in breach of contract if they copy–if they signed a contract. But what is a “counterfeiter”? If I download a bootleg copy of The Sound of Music am I a “counterfeiter”? I’m not passing it off as genuine.
Fallacy 10: Information is property, but only if it is self-protected
It’s never property. It’s a crankish overuse of a metaphor to call it property even when it’s in your own head.
The main argument is that IP infringes existing proprty rights. Period. This is very obvious, and clear, and you have not even tried to rebut this main argument.
