Some Resources on Intellectual Property

Thank you to everyone that participated in the poll.   I got 42 responses and out of those 42, here’s how it broke down:

15 (35.71%) of the respondents believe that violating someone else’s intellectual property (i.e. copying a song without the copyright holder’s permission) is theft.

20 (47.62%) of the respondents believe that it is not theft.

7 (16.67%) of the respondents are not sure.

First of all, I was pleased that the plurality supported the idea that copying a song without the copyright holder’s permission is not theft.  This is actually my position.   I do not believe that intellectual property is an actual property right, but rather a social construct that governments use to protect inefficiencies in the market and discourage innovation.

I’m sure that the 35.71% of you that accept intellectual property as a justifiable aspect of law have your own reasons for doing so.  However, I encourage you to consider some of the following resources that I am going to post in order to at least give advocates of my position a fair hearing.  I also want to encourage those of you who are not sure about IP to look at these resources as well.

I would encourage you to watch the video below, entitled “Everything is a Remix.”  Technically, this is part 3 in the series, but it’s the first one I saw when I was very seriously considering a switch from the pro-IP position.  The great thing about this video is that it demonstrates that almost every aspect of our creativity is based on copying some other idea.  There’s practically nothing that we can do or create that is entirely unique to ourselves.  Sure, we can develop a new manufacturing method, engine, or piece of art that we think no one else has thought of before, and for that, we should be able to market and profit for the products of our ideas if they are really worthwhile.  But this video (for me at least) challenges the notion that it is possible to own an idea, which is at the core of IP law.

In addition the above video, I would encourage you to read an amazing article by Stephen Kinsella that was published by the Freeman entitled “How Intellectual Property Hampers the Free Market.”  I actually just stumbled upon it for the first time only a few days after I put up the poll.

Lastly, I personally love pretty much anything that Jeffrey Tucker has to say on the topic of intellectual property.  I first heard Tucker speak at a FEE seminar about the topic of emulation and about why emulation is one of the most important driving forces in a truly free market (very similar to the gist of the “Everything is a Remix” above).  It really got me started on my re-thinking of intellectual property.  If you want to listen to an excellent lecture by Tucker specifically on the topic of intellectual property, there’s a great one uploaded on YouTube here.  If you’re more of the reading type, Tucker has posted many articles on the subject of IP, but a good one to start can be found here at the Mises Institute.

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14 responses to “Some Resources on Intellectual Property

  • Gabriel Syme

    The video argues based on an equivocation: that mere copying for personal use and improvement constitutes a violation of IP. It does not—a position long upheld in the Common Law. What is prohibited is sale and distribution without permission within the period in which the copyright is held. The history described is well known to myself, given my familiarity with the industrial revolution. Further, derivative work has never been considered a violation of IPR. Terry Brooks’ “The Sword of Shannara” is considered a derivative work of Tolkien’s “Lord of the Rings,” but any case by the Tolkien estate over violation of its rights would be laughed out of court. An attempt to argue from the video that innovation depends on violating IP ignores the fact that, aside from Gutenberg, all of the figures mentioned were operating under an IP system—the examples work against the case, not for it. If anything, they show that the IP system encourages innovators to be more innovative to distinguish their work from that of others. The arguments just don’t hold water, in my view, given that they rest on a fallacy and each one of them can be turned on its head.

    As for the argument that ideas can’t be property, but are a legal construct, I would remind you that property rights in general are a function of law—specifically natural law. If J.D. Salinger wishes not to let others use his characters, his wishes should be respected as a matter of law until such time after his death as his work passes into the public domain.

    In conclusion, the case against IP seems inconclusive given that the arguments I have seen are dubious at best.

    • Jason Hughey

      So J.D. Salinger owns the actual order of the characters that he uses? That literally boggles my mind…I can’t comprehend the idea that someone actually can claim ownership of the manner in which ideas are penned. Obviously, they can claim authorship and surely they can charge for the cost of the materials if they publish a physical book (It’s not ok to steal a physical book), but copying an electronic PDF does not have the same effect. In the end, no one is worse off.

      Also, did you look at any of the other resources from Kinsella or Tucker?

  • Matthew

    That is a good point that we must base innovation upon material already present. However, if we take the idea that intellectual property is not property in any sense, we run the risk of another extreme. In China, one of their greatest weaknesses is a lack of respect for intellectual property. The producers of software or video games cannot make a profit, because their program is hacked and made available for download online at no cost. It’s very easy to think from the perspective of the consumer or competing inventor, but what if we were the maker of a song, or an author of a book, or the designer of a program? Would we consider it okay to have our work taken out of our control and given to everyone without our consent?

    • Jason Hughey

      Oddly enough Matt, I was just reading in Bastiat’s “Economic Sophisms” today that when we are faced with the decision of looking at an issue from the consumer’s perspective or the producer’s perspective, we need to ask what are they valuing? The producer is valuing scarcity because he wants prices high so that he can ensure profit for himself. But the consumer wants abundance because they want more for less.

      This is the key issue with IP. So long as we’re only talking about copying and replication, not actual theft that deprives someone of wealth that they actual own (not speculated profit that we think they would have made), then we can only say that producers who hide behind IP are valuing scarcity over abundance. Thus, IP clearly stems from the theory that scarcity is better for society than is abundance, which is pretty much the opposite of what Bastiat and free market economists actually believe.

  • Gabriel Syme

    Jason, I would argue that the presence of IP encourages people to publish things. Why should I bother building a better mousetrap if someone else can take the design that I spent months perfecting and make money off of it without giving me a cent? Frankly, I would argue that IP is the kind of restriction that makes the free market possible because it allows me to share ideas with the world without fear that someone will profit off it at my expense. Remember that the end goal is a free market not a chaotic one—freedom is not necessarily a complete lack of restriction. You want to have conditions that optimize both profits for the producers and prices for the consumers.

    The other trouble, of course, is the idea that laws have to be ethically justified rather than ethically permissible.

    “So J.D. Salinger owns the actual order of the characters that he uses? That literally boggles my mind…I can’t comprehend the idea that someone actually can claim ownership of the manner in which ideas are penned.”

    It boggles my mind that light is both a particle and a wave, but my mind being boggled has nothing to do with whether it’s true.

    • Jason Hughey

      No detractor of IP says that individuals are not allowed to be compensated for producing a new product or writing a book. They simply say that the copier should not be charged with violating the creator’s rights since the copier did nothing to violate the right of the creator. All he did was replicate or duplicate something, leaving the original completely intact. By definition, that cannot be theft.

      This in no way means that the creator should not be allowed to figure out a way to sell his work and make profits if he wants to do so. He just can’t restrict others from using his alleged “intellectual property.” Also, his work is not intrinsically valuable simply because he applied effort…that’s the disproven labor theory of value. He is entitled to the profits that he makes from the individuals that he engages in a voluntary exchange with, but to allow him to use the force of law to control how that content is dispersed or used beyond what he can personally control is distortive and ultimately a violation of liberty and property.

      I would also contend that, ironically enough, in the long run, this strategy would much more likely benefit the original creator rather than hurting him.

  • Gabriel Syme

    Let’s leave aside, for the moment, the question of whether there is a right to IP. If IP can be property, then there is most certainly a right to it. If not, then there is not.

    Now, I would compare the issue at hand to the question of whether I should be allowed to keep trespassers off my land. If someone walks across my land, they haven’t deprived me of it. They haven’t done anything to violate my rights—I still have possession of the land, just as the creator would still have possession of the work, and neither of us has been deprived of anything, by your logic.

    Yet somehow I don’t buy the argument. Somehow the definition of property-as-physical seems reductionistic. To understand what property denotes, we have to examine it in the context of the ways it is actually used and defined, and then proceeding with ethical investigation. Property has its definition in real life, not in abstraction, and therefore scrutiny of real life and ordinary usage can tell us what property is.

    And frankly, I’m a bit saddened to hear the harm principle espoused by Christians, as if Mill’s political ethic were a Christian one. I’m not trying to be rude or inflammatory, but it seems to me that the harm principle is at the root of your ethical argument—and frankly it’s a rather poor basis for a political ethic.

  • Jason Hughey

    The trespassing scenario is completely different because there is a deprivation–a forceful transferal of wealth. If you presume that you can trespass on my land without my permission, that means you have presumed that my land is your land. That’s fundamentally theft because the use of land for any purposes is exclusive. No two people can use the land in exactly the same way at the same time. Moreover, an infinite number of people cannot start walking through the land. Thus, the owner should decide how it is used.

    IP is completely different. An infinite number of people can listen to the same song at the same time and no one is deprive. What is called IP is completely non-exclusive and is infinitely reproducible without any deprivation of the quality of the file/blueprint/computer program that was originally designed. None whatsoever.

    I’m not sure where you’re going with the whole “We have to observe property in the real world and then develop an ethical theory.” I mean, that’s exactly what detractors of IP do. Look at the world of music copyright. It’s a mess because it’s broken and fundamentally in violation of the laws of economics. Fundamentally, there’s no way to get around the reality that when I make something electronically available, I cannot control what happens to it, unless I use the law to do it for me. And the biggest problem is that we’ve demonized a lot of innocent people who just share things electronically, but who have never actually stolen anything in their lives.

    If you don’t want people to “steal” your ideas, music, or writings, don’t produce them. Amass all of your wonderful wealth of ideas to yourself and be the richest idea person in the world. Otherwise, welcome to reality. (Props to Jeff Tucker for that observation)

    In the lecture, Tucker discusses industries and examples where there is no IP, and yet creators of content make profits, it’s highly competitive, and most importantly, it’s responsive to the consumer. Fashion, recipies, Mises Institute publications (he tells a fabulous story about how the Mises Institute published a really nice hardcover Rotbhard book and then found out later that another publishing company literally took the book manuscript, made a soft cover version, and was digging into MI’s sales. Did MI take them to court and waste millions of dollars in legal fees? No. They produced a cheaper softcover version and recaptured the market for the book by selling it on Amazon).

    I’m sorry to hear that you are saddened. Nevertheless, it doesn’t take away from the fact that using the law to aggress against innocent people who have done nothing wrong is evil.

  • Gabriel Syme

    “I’m not sure where you’re going with the whole “We have to observe property in the real world and then develop ethical theory.””

    I mean simply this: find the way that property is defined in ordinary usage and contract law and that is what property is. The fundamental debate here is over that definition. If IP is property, then the rest of your arguments are irrelevant because copying would fall under the ninth commandment. I’m not talking even about what’s the most market-efficient here but about what’s ethical.

    ” Look at the world of music copyright. It’s a mess because it’s broken and fundamentally in violation of the laws of economics.”

    No, simply behind the technology by twenty years. Because copyright law is a result of technology to begin with.

    ” And the biggest problem is that we’ve demonized a lot of innocent people who just share things electronically, but who have never actually stolen anything in their lives. ”

    If it is legally defined as stealing, then it is stealing. You’re arguing against Paul on this point.

    You’ve defined property here (in an oddly Anselmian fashion) as “physical-things-of-which-one-may-be-deprived.” Again, I find this reductionistic, particularly given the classic definitions of property given by Smith, Blackstone, and the common-law tradition out of which property and contract law arose in the first place.

    If I may (for once) quote Bastiat (“Property and Law”): “By property I understand the right that the worker has to the value that he has created by his labor.” Since IP has value and is created by labour, it may, I think, be safely classified as property.

    Now I understand that you think this definition somehow disproved, but I would then ask this: by what? Can you provide an example of property not created by means of labour (even the simple labour of investing or taking the time to claim a land grant)? And even if you could, why should this be reduced to physical property?

  • Jason Hughey

    I’m talking about what’s ethical as well. It also happens to be the most market-efficient. Nothing really to debate on that point.

    “Because copyright law is a result of technology to begin with.”

    If you mean “technology” in the modern sense (“Information Age” and whatnot), then you’re completely wrong in every factual sense. The origin of copyright law is rooted in the publishing guilds of the late Middle Ages that sought the protection of the king when other publishing guilds tried to publish the same work that they were publishing. It’s not a function of technology, but a function of rent-seeking. It always has been.

    “If it is legally defined as stealing, then it is stealing. You’re arguing against Paul on this point.”

    Is/ought fallacy. Plus, if Jews are legally defined as not human, then they are not human. You’re arguing against Paul on this point.

    (Also, I would prefer you not go down this path of reasoning any further, mainly because we have debated this issue over and over again and I find your position extremely unpersuasive because of its absurdity as demonstrated above. Let’s agree to disagree on this one for now.)

    “You’ve defined property here (in an oddly Anselmian fashion) as “physical-things-of-which-one-may-be-deprived.” Again, I find this reductionistic, particularly given the classic definitions of property given by Smith, Blackstone, and the common-law tradition out of which property and contract law arose in the first place.”

    Not exclusively. I am also emphasizing that property rights must be based on measurable usage and exclusivity. Ideas and electronic files just cannot fit that description as far as I see. If you could show me how, I would consider accepting it. But I’m not just simplistically arguing that property can only be physical, though that may be true. I just would like some advocate of IP to show me, step-by-step, how ideas can be exclusively assigned as a property right by showing that the usage of a creator’s idea results in actual and measurable harm to the creator (harm, that I may add, is not merely perceived or predicted, but in actual demonstrable harm to the ideas that are being copied and/or the creator’s ability to produce those same or similar ideas.

    “If I may (for once) quote Bastiat (“Property and Law”): “By property I understand the right that the worker has to the value that he has created by his labor.” Since IP has value and is created by labour, it may, I think, be safely classified as property.”

    Bravo! I think I should pinch myself. You just quoted Bastiat. Wonderful! However, there is no argument by you or any IP advocate that violating the legal construct of IP law actually results in the loss of an individual having a right to the property that he created. No musician loses the capability to make music because more people copy the file to a song he composed. None of the original music is damaged. None of the original files are corrupted. He retains full rights to the value of his created labor. I trust you will defer to my expertise on Bastiat when I tell you that, from what I’ve read by him, he would oppose IP because it is a government grant of monopoly power rather than a protection of the individual from coercive harm. In fact, in the very next paragraph after the quotation you presented, Bastiat says that the right to property precedes law and is not created by law. Yet, IP is a creation of law! You’ve even championed this as a reason for accepting IP.

    Also, care to respond to any of the examples by Tucker? I noticed you ignored those in your last comment. If that was just a mere oversight, I would like to see if you have a refutation other than “Well, it doesn’t matter if it works in the market.” Ironically, if that’s your response, it contradicts your whole, “Let’s look at this realistically first” point.

  • Gabriel Syme

    “Is/ought fallacy. Plus, if Jews are legally defined as not human, then they are not human.”

    Humanity is not a function of law. Property is.

    ” I just would like some advocate of IP to show me, step-by-step, how ideas can be exclusively assigned as a property right by showing that the usage of a creator’s idea results in actual and measurable harm to the creator.”

    Here again, you assume that J.S. Mill’s harm principle is a foundational ethical principle. I would suggest that it is not. Ethical action is not concerned merely with whether someone else was harmed. And even so, if IP is property, then the harm to the owner is inherent—you are violating his rights and failing in your duty toward him, therefore he has been harmed.

    “However, there is no argument by you or any IP advocate that violating the legal construct of IP law actually results in the loss of an individual having a right to the property that he created.”

    No, but he has lost the economic value of his property. The economic value of a work rests is a function of the exclusivity of supply and the demand. Let’s say I want to publish a book and make a living as an author: with IP, I can sell that book to a publisher who can effectively market and publish that book without competition. However, without IP, the publisher doesn’t have to do this: all they need is a hacker who can break into my hard drive and copy the file. At that point, yes, I can still self-publish, which means that I would need to be independently wealthy already to make any money, since that entails footing the bill for marketing, distribution, and printing myself. See the problem?

    “Bastiat says that the right to property precedes law and is not created by law.”

    Not by human law. I disagree that property is not created by law because it is created by Divine Law.

    “Ironically, if that’s your response, it contradicts your whole, “Let’s look at this realistically first” point.”

    Realistic in terms of ordinary language: I don’t really care if theft is an economic good—it’s still wrong and should be punished by the civil magistrate.

  • Gabriel Syme

    Here’s the basic syllogism:

    1) Property is value created by labour (Bastiat) (A=B)
    2) IP law protects value created by labour
    Therefore
    3) IP law protects property.

    QED

    • Tim Bass

      I’d like to know, Jason what you mean by “measurable” harm. If a person creates a computer program and sells only one copy because the one person who bought it gave a copy to his friend, isn’t there an inherent harm there? If his IP was protected couldn’t he have benefitted from a second sale? Is not the lack of the second sale a measurable harm to that individual? Sure, you may not know the magnitude of the harm but can you argue the removal of his freedom to benefit?

      In the physical world, if one Carpenter creates a chair that is vastly superior to the chair created by another, do the chairs sell for the same because they are made of the same amount of wood? Isn’t their value based on the effort and skill the Carpenter put into shaping the wood?

      How is the effort of the programmer any different than the effort of the Carpenter?

      I’d like to believe that our economy thrives and indeed survives off of innovation. The incentive to innovate is, the wealth we can gain from our innovation. If the ideas that result in the intangible aren’t protected under the law, who is going to innovate there? Who is going to spend 6 months on a program if they can only sell one copy and after that anyone can benefit from his work without him getting a dime? I know I’m not, I’m going to go build chairs.

      I realize I am something of a philosophy noob when it comes to this stuff, but I would hope that one could come to a common sense and ethical conclusion to an idea like this.

      That said, continue on… I would love to see more of this conversation.

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