Wednesday, January 23, 2013

Examining Jeff Tucker Intellectual Property Theory

I continue to receive emails asking me to discuss my view on intellectual property and how it differs from the views of Stephan Kinsella and Jeffrey Tucker.

As far as Kinsella is concerned, he has written a deeply thought out and complete theory of IP that I will respond to in full length book form. Kinsella's theory deserves serious treatment and I will not attempt to address that discussion in a blog post.

However, Tucker's views do not have the same rigor as Kinsella's and can be demolished in a drive by shooting manner. I will attempt to do so here by examining his article, Back to Basics on Property and Competition.

He begins by writing:
Zeroing in on a topic like "intellectual property" offers a chance to clarify fundamental notions in economics generally. You think you understand something like property rights or the nature of competition — you have studied the ideas for years! — and then a challenge comes along that blows everything up. It's an opportunity. Time to think and think again.
"Clarify fundamental notions in economics generally," really? This is not a widely held view by economists. In  fact, the great Austrian economist Ludwig von Mises went out of his way to slam  Tucker's type of view. He wrote in his magnum opus, Human Action that intellectual property discussion had little to do with general economic thinking:
 It is beyond the scope of catallactics to enter into an examination of the arguments brought forward for and against the institution of copyrights and patents.
From this stumble, Tucker goes on to tell us that:
  If you have an idea, it is yours. You can do with it what you want. If you share it (sing, speak, broadcast, let others see the products of your ideas), others then have copies of it. They are entitled to do with their copies of the idea precisely what you can do with your idea. They can use it how they want provided they don't prevent others from doing with it what they want. This is a simple application of the non-aggression principle that governs a free society. Whether it is fashion, language, know how, or whatever, people are free to copy.
This is a huge failure in logical rigor, it is a tendency that pervades Tucker arguments.

Let us put the above paragraph in some kind of logical form and see what happens:

A. If you have an idea, it is yours. 

This is true.

B. You can do with it what you want.

This is also true.

C. If you share it (sing, speak, broadcast, let others see the products of your ideas), others then have copies of it. 

This may or may not be true. If you sing something and it is not recorded than you might be able to argue that a person has a copy in his mind, but this is at least a bit of a stretch. A stretch students listening to a college lecture can easily relate to when taking a test. You may have heard the lecture, but it doesn't mean that you have a full copy of it in your head when you are taking a test based on the lecture.

Thus, as far as point C is concerned, if we are charitable, we can say that Tucker is just not completely rigorous in his argument.

D.  They are entitled to do with their copies of the idea precisely what you can do with your idea. They can use it how they want provided they don't prevent others from doing with it what they want.

Tucker makes this point as a declaration rather than offering any proof as to why it should be so. In fact, it is easy to imagine plenty of cases in a free market society where this doesn't occur and control of intellectual property remains controlled by the original holder of the information, based on an agreement between two consenting adults. I may, for example, tell you a secret only if you agree not to tell anyone else. This could not occur in Tucker's world, secrets couldn't exist.

In business, non-disclosure contracts are quite common. I may want to show you my project because I may want financing from you, but I don't want to reveal the workings of my business unless you agree not to disclose the information to anyone else.

Tucker tends to pose all IP situations as a battle with the government, but the above two examples show IP protection can evolve in the private sector, even in a world without government.

Tucker also uses utilitarian arguments that tend to suggest that elimination of IP is always the way to advancement. But clearly, private agreements in Tucker's world would not be enforceable, so it may result in some businesses choosing not to disclose their projects to potential financiers for fear their projects might be stolen without non-disclosure protection. Thus, in Tucker's non-IP protection world, some projects may not get to be financed to the degree they would where non-disclosure agreements would be allowed.

Further, Tucker can't prove that some writers, singers and other creators of intellectual property will be willing to produce product if their works aren't IP-protected. Some may chose not to. Thus, his claim that the elimination of IP will improve production for overall society is something that can not be asserted as a fact, since it will be impossible to measure net production, especially because of the difficulty in measuring product that isn't produced because of lack of IP protection. And we also run into the problem of what is good "for all of society."  We can't measure value over individuals, thus it is impossible to state, as Tucker does, that preventing people from entering into IP private contracts will result in a "greater good" for overall society.

E. [Non-IP ] is a simple application of the non-aggression principle that governs a free society. Whether it is fashion, language, know how, or whatever, people are free to copy.

If a person agrees to provide information to another only if the other person agrees not to share it, it is difficult to see how it is not a violation of contract (an aggression), if the  recipient of the information shares it with third parties. Thus, non-IP is not "a simple application of the non-aggression principle." In fact, dictating that a contract can't be enforced that two people initially  agreed upon is a case of aggression against the party that is being damaged by the lack of enforcement of the contract.

And if an agreement can be made between two adults to not further disperse intellectual property, why can't one person do it with multiple people, say for a book or a song? (Note: I am aware of  Kinsella's argument of a person agreeing to not to pass on the information  and then doing so and thus there would be no obligation to protect IP by the third  party receiver. I will address this in my book)

Finally, to conclude analysis of this Tucker paragraph, it should be noted, there is no logical progression from points A to E. They are separate sentences in a paragraph that suggests a logical flow, of which there is none. There is no If A then B, then C, then D, then E. In fact, standing alone, we can see that some of the sentences are true, others are unclear and still others false.

Tucker goes on:
"Intellectual property" is the completely wrongheaded idea that, in the words of the authors [of the book Against Intellectual Monoploy], someone has the right "to monopolize an idea by telling other people how they may, or more often may not, use the copies they own." This strikes at the heart of progress because it means not improving what exists but rather prohibiting others from using and improving it.
Tucker here again is ignoring the possibility that two people might enter into an agreement, where one agrees to keep some intellectual property, provided to him, private. There's nothing "wrongheaded" about it. Indeed, if we understand the concept of Austrian subjective theory, as Tucker has proclaimed he does, we know it is impossible for an outsider to proclaim scientifically that an agreement between two consenting adults is "wrongheaded." We may have our own opinion about a particular agreement and think it wrongheaded, but this is quite different from declaring, as Tucker does, that all such agreements are "wrongheaded." Among many other things, Tucker here is claiming that it is "wrongheaded" to agree to keep a secret.

Yup in Tucker's world, there would be no secrets, no non-disclosure agreements, no agreements between consenting adults. It will be Tucker's rules for everyone, even if people chose to make private agreements, in Tucker's world they won't hold. Tucker writes:
What can you copy? Anything and everything. This is not "taking" anything from anyone. The original idea owner still has his. Other people now have their copies, and are free to improve it.
How far is Tucker willing to take this bizarre thinking? All the way:
Let's say I write a book and publish 1000 copies. They are all mine. When I sell one, I now have 999 remaining and the new owner of the one book, in a free society, is free to do with his copy what he wants: use it as a placemat, throw it away, deface it, photocopy, and even republish it. You can even re-republish it under your own name, though that would amount to the socially repudiated vice of plagiarism (vice, not crime). 
Here Tucker sneaks in his anti-IP view as though it is a core principle of a free society. It is no such thing. Indeed, in Tucker's non-IP world, no IP contracts are enforceable. How is that freedom, if both parties to a contract agreed to the original terms? It is nanny state thinking---ruling from above, despite the desires of consenting adults. It's Tucker's rules, superseding  the right of two people to enter into a contract and have the contract upheld.

116 comments:

  1. What is IP and patent law but really a form of standardized contract with the teeth of government behind it. Bob, why can't you just use private contracts (think licenses, but written in the context of tort law, not copyright law) when disseminating your ideas? Every libertarian worth his salt understands the idea of private contracts, or exchanges that imply mutual consent (like exchange of goods for money). There is no need, NONE WHATSOEVER, for government-centered mechanism to protect whatever intellectual property you have that you consider valuable. I'm sure you already have boilerplate agreements in place when you sign up a new paying customer. How different is that without copyright law, other than the wording of the contract or method of enforcement?

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    1. Did you even read what Wenzel wrote? His two examples are of the private contract variety. Jeez

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    2. Well said, Shimshon.

      Robert Wenzel said:

      "Indeed, in Tucker's non-IP world, no IP contracts are enforceable. How is that freedom, if both parties to a contract agreed to the original terms?"

      If there's a contract, then the issue has nothing to do with so-called "intellectual property".

      If someone writes something and gives me a copy, and doesn't require me to sign a contract, then everything about the copy is mine. As Tucker says, I can republish it under my own name and still conform to the non-agression principle.

      Just because someone thought of something first doesn't mean he has a right to restrict other people from utilizing it as they see fit. If someone wishes to attempt to maintain a monopoly on an idea, then he must get people to sign a contract.

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  2. You cannot get to copyright and patents through private means, since they are binding on third parties not privy to the original agreement. The best you can do is non-disclosure agreements to bind individuals, which I don't see that Tucker specifically denied anywhere.

    Have you asked Tucker whether or not he believes NDAs are a valid form of contract? Without that denial from him, this seems to be one giant strawman of a criticism.

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    1. You don't see Tucker denying? Tucker says in a free market:

      "What can you copy? Anything and everything. This is not 'taking' anything from anyone. The original idea owner still has his. Other people now have their copies, and are free to improve it."

      Tucker is anti-property.

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    2. I don't believe Tucker hold the ideas you are attributing to him. If he says that private contracts are void if they concern copying or revealing someone's ideas, then I'll admit that you're right. Until then, you are taking him out of context.

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    3. @The Cleaner: You're reading things into that statement that aren't there.

      If I ask: "In a free society, what color clothing can you wear?"
      And you answer: "Um, any color clothing?"
      And I say "BOOYA! YOU DIDN'T ACCOUNT FOR PRIVATE CONTRACTS YOU ENTER INTO THAT SPECIFICALLY PROHIBIT YOU FROM WEARING A PARTICULAR COLOR OF CLOTHING! YOUR STATISM HAS BEEN REVEALED FOR ALL TO SEE!!!!"

      You would think I was a loon, and rightfully so.

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    4. "Tucker is anti-property."

      Nice strawman you got there.

      He is anti "intellectual" property, with which he finds many libertarians on his side; libertarians who could not possibly be more PRO private property.

      Intellectual property is a fiction. It cannot be stolen, it is not scarce, and it requires telling people what to do with the most important private property of all: THEIR BODY.

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    5. How is being anti-intellectual property not being anti-property.

      Tucker may be in favor of some property but he is anti-some property.

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    6. i would like to see wenzel and other supporters of the position respond to these posts,including chris's.

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    7. If you buy a house from another individual, I'm not privy to that transaction. So, can I just say "fuck you, I'm using that house."? So the only rule is who is bigger, a better shot, or more capable of rallying support to his taking of the property?

      The "third party" argument is a complete non sequitur since all property transactions between individuals are not "approved" by everyone on the planet.

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    8. Anon 3:59,
      If I get "Just Do It" on a T- Shirt does that mean you can't wear a shirt. Your statement is ridiculous. It shows you don't understand the conversation. Lets put it this way I like your house and build one that looks like it right down to the furnishings, can you take my house since I have stolen your "idea" though I used my own property to build it?

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  3. Also, using music as an example doesn't work. There was a "golden age" when copying musical recordings was extremely expensive and even difficult. the big music companies made a killing. and copyright law had little to do with it. today, any music artist worth his salt knows that live concerts are the steady income generator. the recordings are teasers, promotional material even. more and more get this by the way. if your "asset" is more esoteric and/or restricted, the private contract model works just as well as current law, without the onerous addition of government involvement.

    I haven't read any of Tucker's works, but from what little you quoted, either he neglects to consider contract law as a basis for protecting what could be considered more valuable "property," or you omit to mention it. I do agree with the idea that you have a right to impose a contract on how you disseminate a work, as long as there is some positive affirmation of the other party's consent is given. This does kind of imply contracts of this sort should be short and easy to understand, to have any credibility.

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  4. I think you're spending too much time on one counterfactual of the agreement to not disclose. You can keep secrets and try to hold business partners to these agreements, but you are free to break contracts in a free society. There are consequences and maybe even torts, but those can be dealt with peacefully. The point is that you must prove you've been harmed by the disclosure of what you've agreed was to be held as private information and that the specific party you're claiming a tort against disclosed the information.

    This alone does not validate IP. The information about the company is not in itself its property, you've just agreed not to disclose it. For instance, I consider the business relationships I have with vendors to be private. That doesn't mean it's unknowable to someone else. The knowledge of those relationships is not owned by me. The information can be obtained by someone observing my business via say a competitive intelligence function. Another business doing competitive intelligence gathering on a competitor is not an aggressive action, even it does result in a business transaction falling through. (like informing a customer that the competitor vendor uses unsafe working conditions in their plant operations).

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  5. Tucker, from what I can surmise, isn't against private contracts at all, but against the government criminalizing plagiarism and other deeds wherein one uses the ideas of another and claims them as his own. Such criminalization, in and of itself, has nothing to do with the enforcement of private contracts.

    Seems strange to think that Mr. Wenzel wants more laws on the books in any area of modern society, but does he believe one should be able to patent clothing patterns, and designs of sunglasses? Take Calvin Klein for instance. His fashion designs, spawned from the creative depths of his own mind, made him a very rich man despite the fact that anyone could have legally duplicated his designs in every aspect and sold them under another name.

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    1. Where does Wenzel say he wants more laws on the books? He points to private contracts--not new laws.

      Tucker is against private contracts. He says in a free market:

      "What can you copy? Anything and everything. This is not 'taking' anything from anyone. The original idea owner still has his. Other people now have their copies, and are free to improve it."

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    2. I would bet that Tucker isn't in favor of allowing someone to copy, reproduce, or reveal any idea or information if in fact there is a private contract between the two parties agreeing to keep the idea under wraps.

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    3. Neil,

      He writes that in a free society:

      "What can you copy? Anything and everything. This is not 'taking' anything from anyone. The original idea owner still has his. Other people now have their copies, and are free to improve it."

      Ask him?

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    4. If you sign a contract saying that you won't copy a work, and then make a copy you've violated the contract. But the person who received the copy hasn't violated anything. They themselves in fact can make infinite amount of copies and distribute them to everyone and they haven't broken any contract or law.

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    5. But can you go back to that third person and ask for the copy back saying that it was given to him under violation of contract, in the same way if I rent a car and "give" it to a third party, can't the person I rented the car from ask for the car back?

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    6. yes, but a car is an actual piece of physical property, you cant give someone back an idea or a piece of information.

      suppose i hear of an idea as a third party that is not involved in any contract from a party that was involved in the contract and broke it. suppose i use my own capital and physical property to build on that idea, can you take this back and claim ownership of my physical property?

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    7. Wenzel, let's say you can ask for it back. That still doesn't solve the problem for you. How do you stop third parties that you are unaware of from sharing your book. There are currently draconian penalties for sharing IP, but the ability to download books, movies, shows, etc. online just keeps getting easier. Heck, it is no longer even necessary to download most things. You can usually just read or watch something online without even having to download it. It is also getting easier to hide your identity online.

      We are not disputing the fact that you can make non-disclosure contracts. We are saying they will be ineffective and the only way to enforce IP rights would be through the State. Maybe your book will explain how to get around the technology that makes it possible to share IP to the entire world in a matter of minutes and seconds, but I doubt it.

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    8. "But can you go back to that third person and ask for the copy back saying that it was given to him under violation of contract, in the same way if I rent a car and "give" it to a third party, can't the person I rented the car from ask for the car back?"

      I wouldn't think so because the third person wasn't a part of that contract. And I don't think the analogy about the car works because it wouldn't be the original car that was given away so you'd still have your car. It'd be more like if there was some sort of magic car-copying machine and someone made a duplicate of your rented car and gave the copy away. Even if the person you rented the car to agreed not to copy it and then did anyway, the person who received the copied car didn't agree to any such deal. So even if the renter who did the copying was to be penalized I don't think that you could justly take the copied car away from the recipient, provided they used their own materials to make it. Just because the renter who made the copy violated your agreement, that doesn't make the copy that was made automatically your property. It just means that the renter violated their contract with you.

      So I guess that if someone were to sell a work under the condition that the buyer agrees not to duplicate it, that still isn't really intellectual property per se it's just an agreement between consenting parties. So if the buyer violates this contract than they could be penalized perhaps, but any third parties who received copies such as downloaders shouldn't be penalized because they didn't violate any contracts and they didn't actually steal anything.

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    9. Robert Wenzel said:

      "But can you go back to that third person and ask for the copy back saying that it was given to him under violation of contract ..."

      Yes, you can take back the single copy you gave him.

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    10. "But can you go back to that third person and ask for the copy back saying that it was given to him under violation of contract, in the same way if I rent a car and "give" it to a third party, can't the person I rented the car from ask for the car back?"

      If you enter into a contract with someone not to reveal to anyone that you like to wear womens' shoes, and they break that contract and tell me, what are you going to do? Confiscate my brain? Force me at gunpoint to agree to never tell anyone else?

      Do you see how your secret is not your property, and though you can make a private contract to attempt to prevent its release, you have no authority to make that contract binding on me, a third party? IP is the same.

      Just because someone broke a contract with you never to fileshare your MP3 on the internet does not give you a right to repossess my hard drive.

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    11. I misunderstood Robert Wenzel, who said:

      "But can you go back to that third person ..."

      I somehow read that as going back to [ah, see? "back to", as if I had gone to him before] the person I hade made the contract with.

      The contract is not binding on the third person. Sorry for the confusion.

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  6. I think Tucker just got exploded.

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  7. There isn't one person in the world that ever "invented" anything without using the cumulative knowledge of MILLIONS of people through time. Just because you bang two rocks together or strum a few strings or create an algorithm in a new way that (probably) no one has ever have done before doesn't mean you can keep everyone else from doing it too.

    We all stand on the shoulders of our millions of ancestors. IP is a block to progress plain and simple. And when examined even casually it is obvious that no person "invents" anything with only his own knowledge. So what ARBITRARY line are you going to draw Wenzel? Where ARBITRARILY are you drawing the line where I can use an idea that supposedly belongs to someone else?

    I'm all for keeping your stuff a secret, forcing others to sign contracts before they are allowed to view or use your product/idea, etc. But the whole idea that people can own knowledge is absurd and egomaniacal.

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    1. Great if knowledge is free, give me your DOB, SS# and bank account number. Leave it in a comment.

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    2. No answer, huh? Imagine that.

      My post clearly states in the last paragraph "I'm all for keeping your stuff a secret, forcing others..."

      Not a good response. I am a fan of yours too by the way.

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    3. If I could divine your DOB, SS# and bank account number would it be different than if you gave it to me willingly?

      If I could, through my own mental abilities, and efforts, learn a foreign language, does that make it my own? Can you own words? How are words different than ideas? When is one semantic construction determined to be the unique possession of an individual? Would that not presume that the individual parts are also his own? Then, one could presume everything which I am writing here is my own, and, by extension, so are each phrase, word, letter and character. I must, then, have invented a significant portion of the English language in this blog post.

      I could then, ostensibly, recover damages for you using any part or parcel of these sentences, phrases, words, letters, characters in any way which I have not consented.

      In the same way Shakespeare, or his descendants/agents could do the same to you and so on all the way back to Chaucer. He, or his heirs, would be sitting pretty right now.

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    4. that is legal to do so.... ip makes that illegal?

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    5. @Derrick

      The only thing that caught my eye was your last sentence.
      " the whole idea that people can own knowledge is absurd and egomaniacal."

      To believe that knowledge can not be owned, but secrets can be kept is contradictory.

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    6. Robert,
      I agree that last sentence was a poor choice of words. I believe that information can be owned but once public the car is out of the bag. This is why NDA would arise. Think of coca -Cola they guard their secret recipe for a reason. The music by musicians or words by authors are just their recipe a for others to enjoy.

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    7. I'll refine...to think you can have EXCLUSIVE RIGHTS to knowledge is absurd and egomaniacal...better?

      You still have ignored the crux of the matter. Where is your arbitrary point drawn Wenzel?

      You have successfully plucked the 6 guitar strings (which you had nothing to do with creating) in a manner that no one before you did. You have successfully arranged letters (which you had nothing to do with creating) in a manner that no one has before. You have successfully arranged metal, glass, and electricity (none of which you had anything to do with creating) in a new way.

      At what arbitrary point do you think others should be allowed to do these things?

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    8. you can own a secret because it is kept within your body, once you share the secret it becomes knowledge to others and is no longer owned by you.

      Rothbard made a great point about this in his book the ethics of liberty. if you claim to own the knowledge within anothers brain then you are claiming ownership over their body.

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    9. Must a secret necessarily imply only two parties? The idea of a secret has no inherent reliance upon a countable restriction in the number of knowing parties. That is, there is no necessity of restriction to 2 or less parties. In a Crusoe situation the population could be 10 and 9 could know piece of information A and not tell the tenth person. This would still be a secret.

      Thus, party A could enter into identical NDA contracts with both party B and C respectively to keep information X a secret. B could comply with such a contract while C breaks it. Neither A, B or C owns the knowledge and at the same time the secret was kept and not kept in two separate but related transactions.

      The important aspect is to be able to prove that it was party C who distributed the information and broke the contract and not party B.

      It is perfectly possible, albeit improbable, for any one entity to divine knowledge or trade secrets about any other entity. This confirms the non-proprietary nature of knowledge. I can guess your age, but I cannot 'guess' my way into possessing your car. This does not, however, preclude the possibility of two parties establishing a contract limiting the parties actions regarding the distribution of a particular piece of information. Will it be effective? Depends, but that is not the point.

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    10. if i own a guitar, and i own my body, do i not own the right to use both?

      Delete
    11. "To believe that knowledge can not be owned, but secrets can be kept is contradictory."

      How so? Me keeping a secret does not imply "ownership" of it. Certainly, I own the physical matter that the idea is stored on (my brain, in this case), but I don't own the idea itself.

      In the same way, I own the hard drive in my computer, but I can't own the particular arrangement of bits on it. If someone else arranges the bits on a hard drive they own in the same way, I have no say in the matter: it's not my hard drive they're tinkering with. If I don't want anyone to arrange those bits in the same way, I can disconnect my drive and lock it away, but I still don't own the arrangement.

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    12. Robert Wenzel said:

      "Great if knowledge is free, give me your DOB, SS# and bank account number. Leave it in a comment."

      If you can acquire it, I don't have a right to keep you from using it.

      Of course, the solution with any problems there is to abandon the statist SS# thing and to not to use such a large digital network to deliver personal information.

      (The whole world has potential access to the information on each of our computers. We're basically offering our information for the taking. Utilities and DNS servers should be privatized so that we can have far more strictly local networks from which to choose.)

      I found these audiobook chapters from Walter Block to be indirectly helpful on the topic of IP:

      Defending the Undefendable (Chapter 7: The Slanderer and Libeler) by Walter Block
      http://www.youtube.com/watch?v=j3vQQBe_02s

      Defending the Undefendable (Chapter 6: The Blackmailer) by Walter Block
      http://www.youtube.com/watch?v=Gi1wf-OeUys

      (In that order.)

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  8. Here's how I see your points:

    1. If someone tells you something, and you can't remember it, then you didn't receive a copy of that information. -- While this is true that you do not have the info any longer, if we were to replace memory with something tangible, say a bicycle, and like memory, if the bicycle is not cared for/maintained, then it will be destroyed. If I give you a bicycle and you destroy it, you cannot say I did not give you a bicycle.

    2. NDAs can't exist if there is no IP. -- There is no basis for this claim whatsoever. NDAs exist now and they will continue to exist regardless of whether IP is protected by the government or not.

    3. Private agreements in Tucker's world would not be enforceable. -- Again, no basis for this claim. You just made it up.

    4. If a person agrees to provide information to another only if the other person agrees not to share it, it is difficult to see how it is not a violation of contract (an aggression), if the recipient of the information shares it with third parties. -- This is true, however your entire argument pivots on your made up point that contracts will not be enforced without a government.

    5. Among many other things, Tucker here is claiming that it is "wrongheaded" to agree to keep a secret. Yup in Tucker's world, there would be no secrets, no non-disclosure agreements, no agreements between consenting adults. -- This goes on top to your made up point that NDAs cannot exist without govt enforcement of IP. Please point out where Tucker says NDAs cannot exist and also please point out to me the organization Tucker claims will ensure two people do not enter into an NDA by themselves.

    This entire criticism of Jeff Tucker revolves around the point that you falsely attributed to him; NDAs cannot exist without government enforcement of IP. Nowhere does Tucker mention this, and nowhere does Tucker put forth an idea at how this would be accomplished.

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  9. Bob,

    Are you sure that "in Tucker's non-IP world, no IP contracts are enforceable"? I think what he is arguing, in the book example, is that copying the book is not a per se violation of property rights. But certainly he would agree that, if the purchaser buys the book with a contract provision that says he agrees not to copy it, there would be a violation of property rights if he copies it. But there has only been a violation of property rights because they agreed to the exchange on the condition that the purchaser would not copy it, not because there is an independent intellectual property right outside of the contract. Thus, the author could recover damages from and seek an injunction against the buyer, but would have no cause of action against subsequent copiers (that copied the buyer's copy).

    Regardless, I'm pretty sure that Tucker adopts Kinsella's view on IP. I'm excited to read your IP book.

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  10. How dare thermodynamics take away my right to contract the manufacture of a perpetual motion machine?!

    Sometimes the issue at stake is not individual rights but the underlying properties of the universe we live in. Two private individuals may agree to alter the laws of gravity. They are fools. The properties of information impose a similar restriction on what makes sense to contract.

    Property rights cannot be applied to information because enforcement is impossible. Other kinds of contracts have simple triggers such as "you did not perform the physical action of making your payment therefore you default." A NDA contract would need all parties to excercise perfect surveillance of all existing copies of the information. If an unknown copy exists it falls apart. If an external party independently creates the same information it falls apart.

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  11. Your entire post revolves around a point you falsely attributed to him: NDAs cannot exist without government enforcement of IP.

    Please point out where Jeff Tucker says NDAs cannot/should not exist and please point out where Tucker writes about how making NDAs illegal will be enforced.

    Your deduction cannot be trusted, so I'm looking for direct quotes. Tucker is pretty straightforward and doesn't mask much in his writing, so if the points you attribute to him are true, there will be a clear and concise quote you can dig up.

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    1. Exactly correct. Nowhere in this article does Tucker say that NDAs cannot exist. Wenzel just implies it by showing a few quotes where Tucker doesn't specifically mention it.

      Delete
  12. So what is up with the non-stop attacks on someone who should be an ally?

    So weird Wenzel.

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    1. Good point, we should bury all disputes and just go with what Tucker tells us.

      Delete
    2. No, it's another example of how someone is somehow singled out for different reasons in a short period of time.
      Remember, he also complained about Rothbard not being prominent on any of LFB's lists.

      And now this.

      Tucker just seems to be next on Wenzel's shitlist.

      Delete
    3. I don't have a problem with Wenzel going after Tucker or anyone else. I don't agree with him on these two criticisms of Tucker, but I am fine with Wenzel disagreeing with me on this. I don't mind a battle of ideas at all.

      Delete
  13. I'll just focus on a couple things; first, the issue with contracts. The problem is that contracts are predicated upon an exchange of property. Otherwise without that exchange of property, a contracts are mere words. Words written on a piece of paper do not magically gain some special power to bind people. That is positive right thinking. So how is a contract enforced then? By the exchange of property. That is, if one party satisfies one part of the exchange of property, but the other does not, only then is there grounds for enforcement. Now this gets to the crux of the matter: what is property?

    Kinsella, Hoppe, Block and others go through this is much more detail, and I won't repeat it all here, but suffice it to say, I agree with them and conclude that IP cannot be real property. This is where I believe Rothbard's position of pro-copyright and anti-patents shows him going halfway there, but ends up with a contradiction. (I should note that I used to hold that same position myself!)

    In short, he is against patents because patent law does not allow for independent inventions i.e. the same ideas arrived at independently. Yet, ironically, patent law actually treats IP as you would for real tangible property. This is because real property has the attribute of being inherently exclusive (scarcity in quality, not quantity). That is, if I have a widget, a physical thing, there is only 1 of that thing. I do not mean type of thing, I mean the thing itself, of mass, just as many people can drive the exact same model car, yet each instance is separate and exclusive. Patent law uses that same principle and wrongly applies to ideas. Hence, if someone claims ownership of some idea, for which a patent is essentially a title to, then like real property, it is actually impossible for someone else to posses or arrive at the same idea independently. But this is of course, easily falsifiable. Or if you want to go the other extreme, literally no one would be able to do anything, since all action also comes from ideas and words, and treating them as real property implies an exclusive owner.

    Rothbard's contention against patents is right, but his reason (that it monopolizes ideas, preventing independent thought), though very rational, is actually just a consequence of the underlining principle of it not being real property. And if you apply the same principle consistently then you reach the anti-IP conclusion. One has to question how one cannot own a single or a few words, but by mere arbitrary length, a string of words suddenly becomes real property, acquiring some magical power of exclusivity?

    Now, I agree that Tucker is wrong in making sweeping arguments about great utilitarian benefits, though he still reaches the right conclusion. There are some merits, but you can also argue against his generalization as there will be some people who become disadvantaged by anti-IP. It's always a mix where some will benefit and some won't. Ultimately, for any principled justification, you have to rely on deontological basis.

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    1. So contracts cannot exist for the performance of services? That is, all accountants, lawyers, doctors, teachers, entertainers...and on and on are not entering into contracts with their clients?

      Be careful with such broad statements.

      Delete
    2. In effect, that's right. (I know, *gasp*) But see my posts below:
      http://www.economicpolicyjournal.com/2013/01/examining-jeff-tucker-intellectual.html?showComment=1358964070182#c1275522478419867328

      They can enter it all they want, but there's nothing enforceable, no action that can be justifiably taken, until an exchange of property occurs. Even from a utilitarian perspective, this deontological argument is better, because the current type of contract you think of, is only arbitrarily limited. IF you were to be consistent, it results in:

      http://www.economicpolicyjournal.com/2013/01/examining-jeff-tucker-intellectual.html?showComment=1358969940901#c1212653118497705279


      This is where bonds/liens/collateral comes in as I mentioned in the first link.

      In fact, it's already used widely today in construction. Suppose you have a construction project and you have everything all ready and planned with the construction crew and everyone you contracted with, but you have not paid them yet. Let's say the agreement is to pay in increments, first batch of money after first phase is done.

      Well, the start date comes up and they drop out. Who knows for what reasons: maybe they died, maybe they went bankrupt, maybe they fled the country. What are you going to do? Are you going to say hey, they violated my contract (despite no money or work being exchanged yet), therefore: we must bring these guys back to life to fulfill my contract .. or we must force these guys to work even as they business completely shut down ... or we must find these guys outside the country and bring them back to work?

      No, the way to mitigate the effects is to require a bond or some kind of collateral (pre-cursor exchange for the job) to incentivize performance; now you have something you can use as a legitimate claim that you can use for compensation in the case of non-performance.

      And bonds/liens/collateral can work both ways, with the project owner providing something of his own, to try to ensure his performance for the workers. That last incentive would be credit ratings and reputation.

      It's the same way home/property loans are contracted. The lender wants you to perform (pay), but you just can't and there's not much they can do about it. Debtor's prison (even if that is legitimate) isn't going to help with the lender's problem, so ultimately the bank takes your property as collateral

      Delete
    3. Thank you for the recap on bonds and liens, though I'm quite familiar. Perhaps I was too vague with my commentary - I would love further clarification.

      Let's suppose I'm a clown. You enter into a contract with me to make silly noises and funny faces for the children to laugh at during your son's Bday party. We consent and I subsequently provide the service. The contract stipulates payment upon completion of the services. You don't pay me. According to you, this is ok as there was no exchange of property so there was no contract. Surely, you won't tell me the children's smiles and laughter are my property because my actions provoked them, or that they somehow represent the exchange of property. Right? So, you can go around and contract for any service you would like and then not pay because there was no exchange of property.

      No, to the contrary. An exchange of PROPERTY, per se, is not necessary to have an enforceable contract. An exchange, yes.

      Just to be clear, you should examine all outcomes of your supposition that property must be exchanged for a contract to exist. Take it to its logical conclusion. Let's take your construction example, but from another angle. After Phase 1 is complete, you decide to not pay the workers. They have not surrendered any of their property, only their time and efforts. They cannot say that phase 1 of the construction is their property. And yet, there has effectively been no exchange of property. According to your theory you can posit that the contract does not exist and you are not liable for the services rendered.

      I am not so sure what is NAP about that idea.

      Delete
  14. The most fundamental problem with Hoppe, Kinsella and Tucker version of rights is that they do not think they are natural rights but positive rights.

    These guys think that property is social convention. That is why they out scarcity, and concept of economics but not ethics, in the middle of the whole thing.

    They claim if something is not scarce, then it can not be property because property is positive , invented social convention that deals with the problems of scarcity. They claim since scarce objects can be the subject of a dispute between two peoples, society somehow invented property rights and if something is not scarce then there is no need for society to give it a property status.

    Of course this view has soo many problems. And this type of thinking actually extends to the are of the tangible if you define scarcity in a meaningful way, and if you take the thing to its logical conclusions.

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    1. what else is property if not a system to address economic scarcity.in utopia,there is no need of property rights since everything is infinitely abundant.
      on earth,nobody sells or buys air -even if you produced it.it is infinitely abundant and anyone buying air is not indulging in economic exchange.
      wenzel is the ayn rand camp here.that is all we need to know.hoppe vs ayn rand. it is not even fair

      Delete
    2. Hoppe disagrees with you:

      "With regard to the purpose of conflict avoidance, however, the institution of private property is definitely not just a convention, because no alternative to it exists. Only private (exclusive) property makes it possible that all otherwise unavoidable conflicts can be avoided."

      Delete
    3. "They claim since scarce objects can be the subject of a dispute between two peoples, society somehow invented property rights and if something is not scarce then there is no need for society to give it a property status."

      This is actually precisely the reason for private property rights. There is no reason for anyone to "steal" anything, or sell and buy anything, that is abundantly available. It would be irrational. It is precisely the scarceness that makes private property necessary.

      To say the concept of "property" is derived from the abstract concept of "ethics" is nonsense. Ethics are not an end; they are a means. People do not have property because it is "ethical" to have it, but because they have a legitimate claim to it, and they have a claim to it, because it is scarce and without a claim to it endless conflict would arise. You steal something that is scarce, and the owner loses it.

      That is why beaches can be owned (because beaches are scarce), but the notion of someone claiming 10 grains of sand as property is just ridiculous.

      You cannot steal words, or bits and bytes, or thoughts, because they are not stolen because they are not scarce; they are still with the owner.

      It is not unethical to use words or thoughts already used by others; what IS unethical however, is to stop people from using them like an intellectual stasi, as if you control their minds, their mouths, and their PEACEFUL actions they make with their bodies.

      Delete
    4. Actually "scarcity" is a misnomer. I need to email those guys because I think it confuses people. I sometimes try to clarify by "scarcity in quality" but really the right word is exclusivity, as [AnonymousJanuary 23, 2013 at 11:58 AM] clarified above with Hoppe's quote.

      Let's say you can have an infinite amount of land. Most people would indeed say, land is no longer scarce (scarcity in quantity).

      However, land is still real property, because it is exclusive. Despite the infinite amount of land, there is still only 1 of each lot, whatever the size. You and I can't both occupy the same spot.

      On the other hand, if it were possible to make a copy of my land, but position it at a different space, then your copy would be your own, of which I have no legitimate claims from a rights perspective. (Of course, people could invent different technologies to try discourage that, like say, embedding something in their land to transform it when the copy machine scans it, etc; and that would still be consistent with the anti-IP position)

      Delete
    5. bad example. if YOUR land is different than MY land,then it is a scarce resource.a truly infinite resource like AIR has no economic scarcity.to have air property rights,you will need to live in a greenhouse with limited air supply for eg

      Delete
    6. npcomplete -you misunderstand both scarcity and the meaning of infinity. if it is infinite,then land A is not distinguishable from land B by any means.just like you cant differentiate the air you breathe and the air your neighbor breathes.
      if A and B are to be property,then A should have attributes different than B.so A might be a mine and B a peanut farm.in that case,it is not infinite and the scarcity exists.

      Delete
    7. The concept of property rights, is an area of Ethics. It is the are of "ought". Scarcity on the other hand, is a concept of economics a value free science.

      Property rights are not social conventions that are created by man. It is part of the natural law. All property rights are actually metaphors and extension of self ownership.

      Owning means, a conscious being having absolute control over something. In this context self ownership is not actually an "ought" proposition but an "is" proposition. Every human being is in absolute control of himself. Even in the case of slavery, supposed owner of the slave doesn't have absolute control over the slave. Slave is not a puppet. He ultimately decides whether to follow the slave owners orders of not. Of course he may be forced, manipulated to act in certain way but ultimate control is his.

      This is the nature of things. It is the basis of natural law. It is how it is. You either discover and acknowledge it or you don't but the fact doesn't change.

      Other property stems from this fact. When a human homesteads something, he makes it his as if it is part of him. This gives him the ultimate decision making right over something. Not because some people got together and decided in a system like this there would be less conflict. Property rights are not invented for conflict resolution, on the contrary conflict arises when natural law is disregarded.

      Also there are many problems with using a concept like scarcity in Ethics. This sneaks positivism in Ethics and actually opens up the flood gates.

      For example the place of scarcity in this context is its function as a possible conflict creator. But tangible goods can be so abundant that the only way they can create a conflict is the whim of the owner. Yes a novel can be the subject of conflict depending only the authors whim. But so is a 100 dollar bill when it comes to Bill Gates. Yes, the author of a novel looks like he doesn't lose anything if someone copies it, but so does Bill Gates since he has not natural need for the 100 dollar bill on the margin.

      See where this scarcity as a source of conflict thing takes you?

      Also in this universe there is no such thing as intangible that is completely detached form tangible. Every thing that is the subject of this discussion is necessarily attached to some medium or some storage which is in fact tangible. Whether it is paper, a digital medium or neuron cells in your brain.

      So the universe the anti IP people claim that exist doesn't even exist. Intangible things do not pop up in the universe. When some intangible thing comes into existence it is the result of an investment. An author spends the most actually the only scarce thing in this universe, his time. The end result can be copied with minimum effort, very minimal compared to the effort that took during creation. But this fact doesnt break the tie between the homesteader, in this case the author and his creation, his property.

      Delete
  15. Oh come on Robert. Tucker is obviously referencing current patent and copyright law, which has nothing to do with private contracts.

    I'm sure Tucker would agree with the sanctity of private contracts, however misguided they may be. I think if you are going to bash his IP views based on private contracts you should specifically cite him on that particular issue.

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  16. Guys,

    Tucker won't come on my show, so I can't ask him, but I don't think you get how insane Tucker's view is. He says it is okay to put your name on the work of someone else. And ncomplete's comment (http://www.economicpolicyjournal.com/2013/01/examining-jeff-tucker-intellectual.html?showComment=1358955939966#c4559177279966830034), is the closest to what I suspect Tucker's view is.

    That is, they don't recognize contracts between two adults as binding, relative to intellectual prpoperty.

    Go ahead, ask Tucker. See if he will clarify in writing.

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    1. "He says it is okay to put your name on the work of someone else."

      He says it's okay to put your name on your property. Nothing insane about that. If I buy a book, scratch out the name of the author, and write my name in, I have done nothing but modify my own property.

      "they don't recognize contracts between two adults as binding, relative to intellectual property."

      Can you provide a quote to back that up? Nothing you have written or cited here thus far actually says that.

      Delete
    2. I can't speak for Tucker, and I have no idea if he would think the same (though I would I think there are agreements and disagreements) but to address your comment about contracts: of course a contract, as mere words, or pledges, cannot be binding on it's own. Haven't you read the Ethics of Liberty?

      What binds isn't the contract, it's the exchange. But again, because when exchange involves IP there's nothing enforceable about it. So the question I suspect you and others have is the more utilitarian, "How then would people form agreements for information/non-property things?"

      But first note that even with real property, people can't seem to accept the notion of contracts not being supreme or special and being predicated purely on, or submissive to exchange of property, such that they'd have a hard time accepting a contractual promise to do something.. like say, repair your house, then be allowed to back out of the promise free and clear, in spite of the contract, if no exchange took place i.e. you did not pay the repairman, and the repairman did not start his job yet.

      Rothbard addressed the issue, while still allowing the above "breaking" of contracts happen, by incentivizing via bonds. That's widely used today with bonds/liens especially in construction, but it could be applied to anything else. It doesn't make the contract binding, but provides a strong incentive to do what you promise to do since they have a legitimate claim on real property (there are actually two types of exchanges involved: the first for bond/lien/collateral, the second for the actual job)

      In the realm of information, you could still use two analogous approaches: adding a physical component of exchange as a precursor to the otherwise unenforceable agreement on information i.e. the bond; or simply use confidential information as collateral i.e. don't reveal this info and I won't reveal yours.

      There is nothing in the anti-IP position that precludes discouraging certain things, or incentivizing others. Anti-IP does not imply "giving everything away for free" as some think. I recall Kinsella using an example of drive-thru open air movie theaters back many decades ago. Theaters next to hillsides faced a problem of people freeloading on the movies, since sound was also projected out from large loudspeakers. The anti-IP position is that you cannot criminalize it, but you can still devise some incentive. So in response, the theaters moved from a loudspeakers for the screen to individual speakers next to each car. (Now, if the freeloaders tried to barge into theater grounds, that would be a different matter)

      With regards to claiming someone else's work as your own, as part of a condition for exchange--that, I certainly do NOT agree with as it would obviously be fraud. However, you will have to very precise here. Merely lying is not a crime in the same way above of breaking a promise, even if written down on paper is not a crime. So you can proclaim and advertise falsely all you want... UNTIL the moment of exchange, if it involves physical things, like the example of money for books. The situation changes a bit with tacit agreement, though the principle remains the same (i.e. if the buyer already knows something is fake)

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    3. Robert,

      I agree with Chris above that you have not quoted anything from Tucker showing he doesn't recognize private contracts, either regarding real or intellectual property. If that is his actual position then I would disagree with him and say he's wrong about it.

      But the fundamental question here is really not about whether two people can enter into a contract, they most assuredly can. The question is, how would you enforce that on a third party not privy to the contract as current IP laws do?

      Put more personally to you, when you publish your IP book, how will you enter into an agreement (without the force of government) with everyone that purchases it, keeping them from making copies or giving it away to other to copy?

      Delete
  17. Tucker was on the Peter Schiff show yesterday (Hosted by Tom Woods) and talked at length how it is absolutely legitimate to restrict use by contract.

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    1. I listened to the show, that was Tom Woods not Tucker saying that. Tucker said nothing about private contracts. He just prattled on against IP, nothing to distinguish between private IP and government IP.

      Woods was wishy washy and brought up a book found on a bench.

      Delete
    2. Well listen to it again (it was towards the end of the show probably 3/4 the way through), Tucker clearly went on for a decent length of time after a listener called in who designs comic books and questioned how his ip could be protected. Tucker responded that it is very important to understand that private product constrictions are good and wise to do. It is the business model he uses his LFB.com He went on to describe how Peter Schiff does a great job with this product constriction as a business model and then went on to list off a number of different businesses who do the same thing like microsoft etc.

      Delete
    3. A business model is not a universal law or custom. It is how Tucker tends to confuse things. Why is he talking about business models in a discussion about IP-protection.

      You just got-Madoff suckered by Tucker.

      Delete
    4. What? IP has everything to do with a business model. Taking advantage of government granted monopolies is a business model. Using contracts and user agreements with your product is a business model. They are interrelated and should be talked about together. You make no argument. Don't get suckered into Wenzel's twist on this subject; I'm not sure if Wenzel just really likes to baselessly attack people like this or if this is his way of getting web traffic and media hype.

      Delete
  18. Wenzel must have been texting while performing this drive by shooting. Ironically, this post is the thing that doesn't rise to the level of discussion worthy.

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  19. I think I'd prefer a discussion of Kinsella vs. Tucker, mainly because Tucker's views came out of Kinsella's book, a point I believe he even admits. Also, it took Tucker 6 years (according to him) to arrive at all of his conclusions, which mainly again came from Kinsella. Seems like you're missing the target here Wenzel, and judging by all the comments you get about this, it might be a good time to start plowing ahead on your book. BTW, I much prefer this flat out discussion of your disagreement on IP, rather than your "Jeffrey Tucker doesn't put a picture of Murray Rothbard on his website" attempt to start a discussion on IP.

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  20. Some comments.

    npcomplete states that a contract involves an exchange of property. That is incorrect. A contract involves an exchange of consideration, which does not have to be property. It just has to be something of value to the parties involved, such as an agreement not to do something.

    Claims about utilitarian benefits of IP vs. non-IP are pure speculation. Imagine a world without patents and copyright. Imagine how much effort companies would put into DRM R&D and licensing agreements. Imagine how much effort companies would put into private security to maintain trade secrets, corporate espionage and counterespionage, prevention of reverse engineering, etc. Who is to say that it would not be more efficient to set up some kind of patenting agency that grants a temporary monopoly on new inventions, with which companies sign some kind of contract? I think it is hubris to assume we know how the free market would handle IP. Perhaps, the private courts would render decisions that reflect the ethics of the majority of the population. If the majority of the population believes that copying someone'w work is stealing, the courts would treat it as such.

    Also, I wonder how the anti-IP people feel about the stealing of BitCoins. I mean, a BitCoin is just a string of characters, right? So is it ok to copy someone's BitCoins?

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    1. Agreed. Under npcomplete's view, two couples couldn't contract to exchange babysitting duties because the only consideration supporting the contract is an exchange of time.

      I also believe that IP would be protected to at least some extent by private courts in a purely libertarian world. In the case of a song downloaded from an artist's website, or even recorded from a live concert, there may be an implied term of the song or ticket purchase that involves restrictions on distribution of copies. Implied contract terms are common for oral contracts or contracts that arise by common custom. For example, consider a banana buyer on a boat dock haggling with a seller over a recent shipment of bananas. The buyer says "I want 1000 bananas at $0.10 apiece." The seller says "Deal" and they shake on it. The Seller can't come back a month later, when he has not delivered the bananas yet, and say "Oh, no, that deal was for the bananas that will arrive three months from now." I think a private court would find an implied contract term in the deal (absent evidence to the contrary), that it applied to the shipment currently sitting at the boat dock.

      Similarly, a custom could arise in a libertarian world that a downloaded song carries with it an implied agreement to not sell copies, or not falsely attribute your name to it, etc. I'm not saying this definitely would arise, or that it would be absolutely noncontroversial, but it could happen.

      Delete
    2. All true. The Tucker defenders only fallback position is "Well I am a third party and I got someone in the middle to break the contract." What a way to create a "libertarian" society. On broken contracts?

      Delete
    3. I don't know enough about BitCoin so i don't even know if "copying" Bitcoins is possible.

      Even so, seems like you've actually made more of a point about the weakness of BitCoin as a currency than made an ethical statement.

      By the way, you started out saying it was "stealing" (which is wrong) and ended by saying "copying" (which is correct.) Don't conflate two entirely different things.
      It is not stolen, for the property is still with the owner, and the owner has not been the victim of aggression.

      Delete
    4. No, to clarify, what I'm saying is that how a contract is enforced is predicated upon exchange of property, since all rights derive from property rights. The promises I mentioned (what most think of as the contract) is your "exchange of consideration".

      However, such promises, pledges, words do not gain any special power, nothing inherent in them to justify taking action, just because it was written on an official form. If you are really going to be consistent, by using the exchange of consideration definition, then we'd all be in seriously trouble.
      - "Hey, can you help me move some furniture tomorrow? I'll treat you to lunch"
      - "Ok"
      - "Sorry, something came up, I can't make it"
      would be contract violation and you'd be liable for damages.

      Again, how is that type of exchange of consideration any different from one on paper, the later being given a special power to justify the initiation force, without any change in the state of each parties' respective property as a result of some other force?

      As for the utilitarian arguments, I address that above, in how people could still make agreements regarding information and provide incentives and collateral. I mean this is exactly the same type of seemingly unpleasant arguments for things like legalizing blackmail and libel--both of which hinge on defining property in an absolute manner--that I suspect Robert is willing to accept. But we really need to separate utilitarian arguments from deontological arguments, the later being concerned with just use of force.

      As for digital bits, you are conflating stealing with copying. You have to go back to the definition of property, where its defining attribute is inherent exclusivity i.e. there can only be 1 of it. *IF* you were able copy bitcoins, then yes, it would certainly be justified. But since that is technically impossible, as no one can inflate bitcoins by fiat, then only way is a forced transfer, depriving someone else's wallet of their current bitcoin, which is illegitimate

      Delete
    5. @npcomplete:
      The example you gave IS an example of a broken verbal contract. It's just that no one would bother pursuing it in court, just like no one would bother pursuing the theft of a nickel. But technically, you could.

      If you don't like my BitCoin example, I got another one for you. Let's say we have the technology to clone people and I collect your DNA (e.g., from you spitting on the sidewalk) and make a clone of you. That would be cool with you? Actually, I have a much simpler example. I guess you don't believe in "misappropriation of likeness" torts?

      Delete
  21. I usually like Bob's outlook but this is just bad, even juvenile the way he argues.

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    1. Did you see, Tucker's early response to Wenzel:

      http://www.economicpolicyjournal.com/2009/01/bullshit-response-from-jeffrey-tucker.html

      If anything, Wenzel is being reserved relative to Tucker's tendency to be rude and crude.

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    2. He apologizes in the very first comment.

      Delete
  22. Wenzel is correct to read into what Tucker is saying. Tucker's poor argumentative style makes it difficult to understand where his argument starts or ends.

    I am surprised that there are so many here that are assuming that Tucker would be in favor of private party IP-protection. Because his ability to argue in an A equals B form is poor, most of his argument is just assertions. If you try to derive the logic behind the assertions, you get to Wenzel's point. Wenzel has backed Tucker into a corner.

    If he is against private IP, then his theory is revealed for the insanity that it is. If he acknowledges private property IP, then his entire argument reverts back to "keep government out of IP," just like we should keep government out of everything--and nothing special. Tucker should be pushed to respond, so we can get at the truth of Tucker's true position on private IP. I suspect he is against it.

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  23. Tucker has written approvingly of Kinsella's view:

    "All IP is unjust, he wrote. It is inconsistent with libertarian ethics and contrary to a free market. He favors the complete repeal of all intellectual-property laws."

    http://www.economicpolicyjournal.com/2009/01/bullshit-response-from-jeffrey-tucker.html

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    1. Do you know the meaning of REPEAL?
      It means take down all currently existing laws i.e. state-enforced laws.

      He is 100% correct about that.

      It is no different than demanding the repeal of all permit requirements and all regulations, without asserting that such things have no right existing in a stateless society.

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  24. Jeffrey Tucker already clarified in writing.

    "But you are right that if you can find the means to restrict your information, and do it privately, that's great. Nothing wrong with technological means and market means of keeping information proprietary. But as Benjamin Tucker used to say, the only sure way to keep information to yourself is to never let it leave your brain."


    http://www.thedailybell.com/4175/Anthony-Wile-Jeffrey-Albert-Tucker-on-Laissez-Faire-Books-Intellectual-Property-Rights-and-Beautiful-Anarchy

    It's called google.

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    1. But just searching for the information he wanted would make it impossible for Wenzel to simply make things up in order to support his ridiculous crusade against Tucker.

      Delete
    2. Yes, I am not sure why Wenzel thinks opponents of IP are saying that you couldn't make non-disclosure contracts. There is not a single libertarian opponent of IP that would agree with that view. We simply say that non-disclosure contracts wouldn't be enforceable against non-consenting third parties. So if Wenzel makes a contract with a guy not to share or copy his book, then that is fine. But if that guy breaks his contract and shares it online, then Wenzel can not go after the people who downloaded it and then shared it to their friends. He can only go after the guy who broke the contract. We have no problem with Wenzel making contracts that prevent his book from being shared or copy. We just believe that his attempts to do so will fail because of third parties.

      Delete
    3. So cotterdan321, do you believe that if someone steals my one-of-a-kind van Gogh painting, and then sells it to a good-faith purchaser who has no knowledge that it was stolen, that I have no cause of action against the purchaser? What if instead the purchaser has knowledge that it was stolen from me? I think there are good arguments on both sides for the former, but in the latter case I should clearly be able to recover my stolen goods from the purchaser.

      A similar argument could apply to things like digital copies of music. If someone is selling copies of songs that they know are not authorized by the party who created the song - ie. the seller obtained the copy from someone who the seller knew had a contract with the artist that prohibited disclosure of the song to third parties - a very compelling argument can be made that the artist should be able to seek redress from the seller even though the seller was not a party to the original agreement.

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    4. Mixing to different types of property here. The person who lost the painting needs to be made whole. Physical property was taken.
      The musician still has his song. The person is liable that broke the contract. As stipulated but no property was stolen.

      Delete
    5. A Van Gogh painting is a scarce resource. If I take it from you then you no longer have it, so if I stole it and sold it to someone else it is still your property. Ideas are not scarce though. If I copy your idea then you still have it, as well. The only reason we need property rights to begin with is because we live in a world of scarcity. To arbitrarily attach property rights to non-scarce resources is pointless and destructive. That is not to say that you can't make non-disclosure contracts, but since they don't bind third parties I fail to see how they will be effective.

      Delete
    6. Sorry, but I see no justification for treating the two situations differently regarding third party liability merely because one involves tangible property and the other does not. Let's modify the van Gogh hypothetical a bit: say instead of being stolen, it was on consignment with a certain minimum price specified on the contract. The gallery owner sells it for $2.00 to someone who knows that is far below the minimum contracted price. This becomes a simple breach of contract case, and again, the third party purchaser gets dragged in not merely because real property is at stake, but because he knew about the contract and conspired with the gallery owner to break it. Who cares if it's tangible property?

      The only difference I see would be related to damages. I think a better case can be made to recover the painting itself because it is so rare, and perhaps money damages wouldn't be adequate. But if it is a run of the mill gold coin at stake instead, which is sold at a lower price, I think a good case can be made that the owner of the coin can be made whole by payment of another gold coin of the same make and grade.

      The basic idea here is that when there is a conspiracy between a non-party and party A to breach a contract with party B, which benefits the non-party and harms party B, I think a persuasive moral argument can be made that party B can go after party A and the non-party for damages. This moral argument is premised on the fact that party A and the non-party have, together, aggressed against and harmed party B. The harm that is caused is actually can be related to scarcity. In the case of digital copies of music, the harm done is the result of more copies being made of the music, thereby diminishing the value of the original (sound familiar?).

      Let me be clear - I am not arguing for government laws to protect this. I am making a moral case in favor of going after a non-party to a nondisclosure agreement.

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    7. You're hypotheticals have nothing to do with intellectual property. Also, morals play no part in whether something is legal or illegal. Libertarians might find drug use or prostitution to be immoral, but they don't argue for it to be punishable by law. I'm not trying to be insulting, but I would recommend further studying of libertarian philosophy first, and then move on to studying Kinsella's work on IP. I think if you study Rothbard, Hoppe, and Block before you delve into the IP debate then you'll have a better grasp of what is being discussed.

      Delete
    8. Again you can't separate tangible property from intellectual property. In your specific scenario it seems that fraud is the issue and the property at mention could have been anything of value. A 2 x 4 for example. How does one go after information in someone elses head? Do you force someone to unlearn something?

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    9. cotterdan - my hypothetical has everything to do with the reasoning some in these comments are using to say that IP could never arise in a purely private market. The argument goes that contracts have zero effect on non-parties to the agreement. Therefore, this reasoning goes, a party and non-party conspiring to breach a non-disclosure agreement would leave the non-breaching party with no recourse against the breaching party. I reject it because I think the non-party is liable for willful harm caused to the non-breaching party, based on the fundamental non-aggression principle.

      I'll stay on the example of a digital copy of a song. It may not be a tangible good, but the storage on which it resides, encoded with the digits of the song, does represent a state of matter (which is easily reproducible, I grant). Now, if a non-disclosure agreement is willfully violated by a conspiracy with a non-party, I still say the non-breaching party can claw back the digital copy that was obtained in violation of the contract. The reason is that the value of the previous copy has been affected by there now being another copy, which can then of course be copied again and again, further affecting the value of the previous copy.

      Finally, I'm not talking about morality in the sense it is used in popular culture. I'm talking about it in terms of the non-aggression principle. I think it is fundamentally immoral to violate this principle. I realize it can also be justified on property grounds, but it is also a fundamental wrong in the world of human action. So, by using the word moral I was merely trying to signal that my argument was based on the non-aggression principle.

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    10. You don't own value. The car reduced the value of the horse and buggy, but there was nothing wrong with that. Just because something you own goes down in value doesn't mean you have a claim against someone else's property.

      Let's say that I develop this recipe for chicken that is better than any other chicken recipe out there. I start a restaurant and start selling my meal, and people are filling out my restaurant for it. I hire chefs to work for me, and I make them sign non-disclosure agreements to not share my recipe with anyone else. Then I find out one of my chefs puts the recipe online for all to see. Now every restaurant in the world can copy my chicken recipe. This drives down the value of the meal I was offering because the competition has just jumped through the roof. Can I seek restitution from anyone who uses my recipe in this instance, and can I legally use force to prevent them from using that recipe in the future?

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  25. This was a pretty good drive-by shooting of Tucker. I can't wait for the presidential drone strike treatment of Kinsella in your book. Maybe you could also give "Against Intellectual Monopoly" the old Iraqi occupation manner of treatment in the book, too. And then follow it up with a Truman double-A bomb of IP analysis of "The Economic Structure of Intellectual Property Law."

    The only thing that confuses me is why Tucker wouldn't accept an invite to the show, so you both could engage in a Rhamaland-style gangland shooting of an IP and Rothbard book placement debate.

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  26. That's the problem with Tucker, he is not consistent and not a clear thinker. During the same interview he follows that comment with this:

    "You are mostly right but there are some people who imagine that copyright and patent could be reinvented by the market if the government got out of the business. This makes absolutely no sense whatsoever. The very essence of patent and copyright is that they interfere with the property rights of third parties. It's not just that I can't copy from you; it's that no one else is he world is permitted to come up with the same idea."

    Well, if you allow private contracts, you are allowing IP protection.

    Dude, Tucker is very confused.

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    1. Dude, you win for most ignorant comment on the thread. Are you just trying to make sure that everybody here knows you don't even understand the debate?

      Delete
  27. As a filmmaker, the idea of IP is attractive to me. But I also find Kinsella's arguments persuasive. Thus, my mind is open, and I look forward to reading Wenzel's book on the subject. With regards to this post, however, I think Wenzel has fallaciously derived a special class of intellectual property rights from an ordinary criminal breach of contract.

    While Wenzel is correct that in a free society two parties might engage in contractual agreements stipulating that neither party share sensitive information. However, while divulging said secrets constitutes a criminal violation of contract for the contractually bound parties, their liability isn't predicated on the value of the leaked information as a kind of private property, but the value of its *secrecy* defined by the terms of the contract.

    Assuming that the leaked trade secrets do constitute intellectual property, wouldn't it also follow that any party outside of the contractual agreement be held likewise culpable for the offense by simply acquiring the leaked trade secrets -- whether nefariously (they paid the contractually-bound party to divulge the secrets) or benignly (they happened across the protected secrets scribbled on a public bathroom stall)? This would be absurd. It seems clear that while the party guilty of divulging secrets is liable for the crime of breaking a contract, any other party who acquires the leaked information outside of the contractual agreement should face no liability for the original breach of contract, whether they use the trade secrets to their advantage or not.

    In summary: violating a contractual obligation to preserve trade secrets does not confer the trade secrets in contention a special category of property right; the object of value here is the obligation to follow a contractual stipulation, not the information itself, no matter how valuable.

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    1. So if someone steals your car, as long as they can sell it to someone else before you catch them, the third party gets to keep the car?

      If you're a filmmaker, can you honestly say you could attract millions of dollars of funding to create a film that could just be copied the first time it's shown to anyone? That makes no sense whatsoever.

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    2. Your counterexample with a car is predicated on the idea that someone can have ownership of the intangible. I'm not convinced this is the case. By applying the same standards to stolen trade secrets as to stolen cars or other physical goods, someone would be guilty of infringing on the intellectual property rights of the trade secrets by merely reading them on a blog post. Worse still (and this applies more generally as well), anyone who concurrently and independently arrive at the ideas expressed in the trade secrets could be expected to prove they didn't derive them from the stolen trade secrets, which may as well be impossible. Secrets are kept, they are not owned.

      With regards to filmmaking, what you described happens all the time. At screenings of blockbuster films in NYC it's not unusual to see tables stacked with bootlegs right outside the theater. And yet, still, financiers continue investing millions of dollars into pictures. The investors are still there because, contrary to MPAA propaganda, piracy hasn't had an appreciably negative impact on film sales, and in some cases even encourages ticket/DVD sales. Torrents have a very limited appeal. If copyrights vanished tomorrow, the convenience and low-cost of online streaming services would marginalize the torrent community to the same niche of tech. literates who prefer the onerous, risky process of torrenting to tapping the Netflix app on an iPad. The average viewer would rather pay $15 than go through that. Further, as a director, I would profit little from the studios litigating a single mother into bankruptcy because her kid ripped a BD of my film. In fact, the greatest threat to my finances are the "Hollywood accounting" practices employed by the same corrupt producers/execs. bitching about piracy to defraud directors, actors and writers in particular. The fact that standard Hollywood contracts guarantee points on *gross* returns tells you everything you need to know.

      Stiff copyright laws can also diminish the cultural impact of a film, thereby limiting the benefits filmmakers stand to gain from their work. For example, the endless Hitler parody videos that emerged from an obscure foreign film very few people had seen prior to the viral phenomenon. The director -- and his financial backers -- have certainly benefited from the wanton violations of their copyrighted material. The way I see it, the more viewers I have, the greater my profile as a director; and a higher profile leads to a wider and possibly more dedicated audience.

      Ultimately, I can't predict all of the effects that abolition of copyright would have on my industry and profession, though it would almost certainly be a mix of positive and negative. But nothing like the zero-sum game IP defenders imagine a world without copyright to be. And as a libertarian, my personal finances and career have little to do with my motivation for supporting or opposing copyright: you have to follow the truth.

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    3. "So if someone steals your car, as long as they can sell it to someone else before you catch them, the third party gets to keep the car?"

      If, and when the third party can make a copy of your car and continue to use it, while you continue to have full and uninterrupted use and access to your copy of the car, then yes, the third party gets to keep his copy of the car. Because at that point, he holds no property of yours, and has broken no contract with you.

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  28. It is interesting that no one is stepping forward to defend Tucker's claim, contra-Mises, that IP changes all of economics.

    I have yet to ever see a logical argument from Tucker. It's all assertions. The craziest being that contract can not be enforced because of third party involvement. How does Tucker justify that? He doesn't, it's an assertion. If I make a contract with a party to dis-close and it's disclosed, I'm going to the party and say give it back, whether it is in digital form or otherwise.

    ReplyDelete
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    1. Seriously guys, if you don't understand what's being said, then why chime in. Tucker doesn't argue that contracts are not enforceable. If you believe otherwise then you just don't understand what is being discussed.

      Delete
    2. Here are is your question -

      “It is interesting that no one is stepping forward to defend Tucker's claim, contra-Mises, that IP changes all of economics.”

      Here is Tucker’s quote -

      “Zeroing in on a topic like "intellectual property" offers a chance to clarify fundamental notions in economics generally.”

      “Clarify” and “change” are not the same word. What Tucker is saying the taking an anti-IP view, arguing that there is no property rights to ideas (patents) or physical copies (copyright) helps to highlight or clarify the fundamental notions of economics, namely the study of human action as it relates to scarce goods.

      The quote from Mises that Bob cited to is not germane to Tucker’s comment. I am not an expert on Mises, but I believe what he was getting at was that catallactics, would simply take the issue of IP as it is, and is not the appropriate means for analyzing the rightness or wrongness of their existence. Tucker’ point is to the side of it saying that once IP is decided not to be property, it may help clarify certain economic issues related to scarcity as it would remove the anomalies created by including the non physically-scarce IP rights.

      As for your last point -

      “The craziest being that contract can not be enforced because of third party involvement. How does Tucker justify that? He doesn't, it's an assertion. If I make a contract with a party to dis-close and it's disclosed, I'm going to the party and say give it back, whether it is in digital form or otherwise.”

      If you sign an NDA with a 2nd party and they disclose to a third, you have no contract rights against the 3rd party, since you have no privity of contract with them. (This assumes there is no larger conspiracy to steal initially involving the 3rd party). You would only be able to sue the 2nd party for breach of contract and damages. This is why important NDAs include liquidated damages clauses because assessing damages of leaked ideas is difficult unless spelled out in advance. Under current law, if you wanted to go after the third party you would need a patent (or copyright), issued by the government which is valid against all 3rd parties whether they got the idea from the 2nd party or elsewhere. This is why IP attorneys advise their disclosing parties to use NDAs cautiously and to usually file a patent application even prior to disclosure as a fallback.

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    3. Here are is your question -

      “It is interesting that no one is stepping forward to defend Tucker's claim, contra-Mises, that IP changes all of economics.”

      Here is Tucker’s quote -

      “Zeroing in on a topic like "intellectual property" offers a chance to clarify fundamental notions in economics generally.”

      “Clarify” and “change” are not the same word. What Tucker is saying the taking an anti-IP view, arguing that there is no property rights to ideas (patents) or physical copies (copyright) helps to highlight or clarify the fundamental notions of economics, namely the study of human action as it relates to scarce goods.

      The quote from Mises that Bob cited to is not germane to Tucker’s comment. I am not an expert on Mises, but I believe what he was getting at was that catallactics, would simply take the issue of IP as it is, and is not the appropriate means for analyzing the rightness or wrongness of their existence. Tucker’ point is to the side of it saying that once IP is decided not to be property, it may help clarify certain economic issues related to scarcity as it would remove the anomalies created by including the non physically-scarce IP rights.

      As for your last point -

      “The craziest being that contract can not be enforced because of third party involvement. How does Tucker justify that? He doesn't, it's an assertion. If I make a contract with a party to dis-close and it's disclosed, I'm going to the party and say give it back, whether it is in digital form or otherwise.”

      If you sign an NDA with a 2nd party and they disclose to a third, you have no contract rights against the 3rd party, since you have no privity of contract with them. (This assumes there is no larger conspiracy to steal initially involving the 3rd party). You would only be able to sue the 2nd party for breach of contract and damages. This is why important NDAs include liquidated damages clauses because assessing damages of leaked ideas is difficult unless spelled out in advance. Under current law, if you wanted to go after the third party you would need a patent (or copyright), issued by the government which is valid against all 3rd parties whether they got the idea from the 2nd party or elsewhere. This is why IP attorneys advise their disclosing parties to use NDAs cautiously and to usually file a patent application even prior to disclosure as a fallback.

      Delete
  29. I have a company called The Female Wrestling Channel. I keep all female wrestling videos behind a paywall. It's $5.99 per month or $50 per year for customers to access them.

    According to Tucker, if I understand correctly, if people legally, or hell, illegally download my content, then distribute it, it seems according to him they should also be able to profit off my works with no penalty?

    Is this correct or am I off base?

    I think logical folks could see the issues in my case immediately if he believes that should be the case.

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    1. if somebody does copy your video,how does it reduce your ownership of the video? you still have your channel.do whatever you want to do with it.
      you DO have a business model problem if you cant find a way to stop your so called unique idea from being copied by others.dont use govt guns to prevent copying.kinsella gives a good example. in the days of the drive in movies,people sitting in far away trees/hills could free ride on the movies .the movie people didnt sue them for free riding.they just made smaller and personal speakers available so that people far away could not enjoy.just because you havent figured out how to profit from your idea,it doesnt make it wrong to copy

      Delete
  30. Not to speak for Tucker, but yes:

    If someone else copies content from your site and attempts to sell access to it, there's nothing wrong with that.

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  31. It is silly to me the chain of reasoning that Wenzel appears to be using in his "non-disclosure::ownership" argument.

    Woman: I'm pregnant, please don't tell anyone yet.
    Best friend: Ok

    Woman now owns the concept of pregnancy. This is his exact argument above, except not using precisely an idea, say, for an engine, or whatever. Somehow a secret implies ownership. Wenzel uses the word control, but he means ownership. Anti-IP types would agree that control is kept, but this does not imply ownership.

    When thinking of IP and IP related issues, I try to imagine this scene, and hopefully it becomes apparent that IP is baseless by the very nature of property.

    Scene: Police show up at a house because of an alleged break in. When they go inside, the victim explains that there was actually no break in, but he has been the victim of theft. Somebody had stolen something from him, he insisted. The police ask, "What's missing?" The victim, puzzled, looks around nervously, thinks for a moment, and responds, "Well, nothing..." The police, annoyed, close the case and leave.

    Property is only in tangible goods. Superabundant goods, i.e. goods whose supply out lasts their demand, e.g. air, salt water, dog droppings, are not subject to property. Ideas fall into the latter category because they are superabundant due to their non-rivalrous and near-endlessly-duplicable nature.

    When someone "steals" an idea from another person, what is missing? Cannot both make use of this idea without harming the other, without depriving the other of such use? When someone steals a chair, the harm is due to the rivalrous nature of the chair. If I take your chair, you can no longer sit in it. If I see your chair, use my own materials to build one of my own, then we both have chairs, and nothing at all has been taken.

    When advocates of IP mean that something is stolen, they inevitably mean that this person is profiting off of this idea and perhaps not the originator of the idea itself. But this assumes that the originator has a claim to other people's money. He does not. Advocates of IP attempt to redefine the word "stolen" in that they have a claim to the property of others.

    Also, the subject of IP does indeed fall out of the realm of catallactics because the subject of property, which IP falls into, precedes catallactics. Indeed, catallactics assumes certain property rights. The Mises quote does nothing to disparage anti-IP arguments.

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  32. Regardless of Mises' opinion, when intellectual property rights are taught to undergrads, it's done by using basic micro.

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    1. Oh yeah, I would always match up Tucker and Econ101 teachers against Mises.

      Delete
  33. Informatics Outsourcing is an Offshore Intellectual Property Services company. They are providing Intellectual Property services for Bio Technology, Biochemistry, Drug Discovery, Chemistry, etc

    ReplyDelete
  34. Good show Wenzel.

    Kinsella, the theorist, isn't much.

    Kinsella, the lawyer, gives even less hope:

    http://groups.yahoo.com/group/LeftLibertarian2/message/48762

    "The follow is an excerpt of a public email that I wrote in
    1998, after receiving Kinsella's threat to initiate a
    lawsuit against me for libel and defamation of character. As
    noted before, I received Wendy's threats, via her attorney,
    long after I had pledged not to take any kind of legal
    action against here.


    On the Legal Threats of Wendy McElroy, Plagiarist and
    Censor.

    By George H. Smith





    "[W]e demand that you immediately cease transmitting any
    further email messages or making any other communication, in
    writing or orally, to any third party alleging or even
    suggesting that Ms. McElroy did not co-author FOR, or that
    she has lied, breached contracts, stolen others' work, or
    engaged in any other unlawful or unethical activity that
    would adversely affect her career as a writer and
    professional reputation related thereto." - N. Stephan
    Kinsella, the Sun-King and Attorney-at-Law..



    Question: What do Wendy McElroy and Bill Clinton
    have in common? Answers: (1) Both are as guilty as hell; (2)
    Neither is able to defend themselves owing to impending
    legal action. How convenient.



    In McElroy's case, she has threatened to initiate a lawsuit
    against me for libel and defamation of character. I have a
    received a tedious, long-winded and poorly written series of
    threats from her attorney, one Mr. N. Stephan Kinsella -
    hereafter and forever known as "the Sun-King Kinsella." I
    fear Mr. Kinsella won't understand this reference, so
    perhaps one of the secretaries in his law firm will be kind
    enough to explain it to him -- very slowly. (The Canadian
    McElroy apparently had to search as far as Texas to find
    anyone who was willing to take her case. Any further south
    and the letter I received would have been in Spanish.)



    Following are some bits and pieces that are relevant to this
    matter. If this bores you as much as it does me, try
    skipping down to my personal comments.



    [snip]



    The Sun-King Kinsella has also threatened legal
    action against Sharon Presley, Tim Starr, Laura Kroutil and
    other third parties who might have the temerity to forward
    my postings to various lists. (See Sharon Presley's letter,
    Addendum II below.)



    McElroy's lawsuit, should it occur, promises to be an
    important challenge to freedom of speech on the Internet. I
    encourage every libertarian out there to become a
    participant in this historic event. Here's how. Simply
    forward one or more of my postings to someone else. This,
    according to McElroy's attorney - who apparently received
    his law degree through an Iraqi correspondence course- will
    make you guilty of libel and defamation of character. Thus
    you need only confess your crime to this intrepid enemy of
    the First Amendment to earn your place among the future
    champions of free speech.



    I encourage libertarians (especially attorneys) to defy the
    imperious edict of Wendy McElroy and her ventriloquist's
    dummy, the Sun-King Kinsella. Wear your little fingers to
    the bone by hitting that "send" icon on your computer
    screens, thereby striking a blow for freedom of speech and
    press. As for the Sun-King Kinsella, I responded (in part)
    as follows:



    "SUBJECT: Idiot lawyers.

    Dear Mr. Kinsella:

    Fuck you and the horse you rode in on.

    Yours truly,

    George H. Smith"



    You can confess your crime to the Sun-King Kinsella at:
    NSKinsella@....>


    Or confess directly to Wendy McElroy, Court Censor, at:

    mac@...>

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