Thursday, March 28, 2013

Countdown to the Wenzel-Kinsella Debate: 4 Days



My debate with Stephan Kinsella over intellectual property is only 4 days away. The debate will be posted here at EPJ and by Kinsella at his site, at 5:00 PM ET on April 1.

Jeffrey Tucker is responsible for advancing Kinsella's anti-IP position. However, despite having a Keynesian-type flair for words and an enthusiasm for Kinsella's perspective, Tucker is very confused about Kinsella's take on IP. He doesn't understand what Kinsella gets right and he swallows like a hungry lion what Kinsella gets wrong. It simply amazes me that Tucker has been able to generate so much enthusiasm for Kinsella's view, when his writings clearly indicate he doesn't understand it.

As a byproduct of my pointing out the weaknesses in Kinsella's views,Tucker's confusion will be exposed. How will Kinsella react? Will he twist his own thinking to back up his buddy or will he admit the errors in Tucker's thinking? It will be fun to find out.

Jeffrey Tucker

21 comments:

  1. "...Keynesian-type..."

    Now the gloves are coming off! I can't wait.

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  3. For goodness sake, I hope both of you keep it civil and take the high road.

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    1. Yeah, hopefully all this trash talk won't happen during the debate.

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  4. RW is a marketing genius, but unless he pulls out something that no one has ever heard before in this debate, he's going to get crushed.

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  5. Kinsella is deep, DEEP inside Wenzel's head.

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  6. All these fireworks before the debate are largely unnecessary and really disappointing coming from two men that should know better. I have my fingers crossed for a productive debate, but I am really worried that won't happen.

    Tucker is a separate matter and another case where two men who should be allies choose to act like children. I think there is a lot more than IP disagreements behind all this.

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  7. "keynesian type" lol

    so private property and natural rights is anti free market "keynesian-type" thinking, but designing rights for others is liberty?

    i like this blog, but Wenzel is in over his head on this one.

    Kinsella is one of the sharpest guys out there right now on libertarian thinking and he's extremely well spoken and coherent in his arguements. ive yet to hear anyone stump him on IP.

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  8. I think the basic pre-cursor to this entire debate revolves around 2 fundamental questions?

    1) Why do we even need property rights?
    2) What do we mean by the term property?

    Hoppe (which both Kinsella and Tucker rely on as the basis of their argument against IP) wrote about the precondition for property in his classic "A Theory of Socialism and Capitalism" starting in Chapter 2. Anyone who wants to debate IP must read Hoppe's brilliant discussion on property. The basic point comes down to the fact that in a world of scarcity and rivalrous goods, a demarcation of ownership is needed to prevent conflict. In the garden of eden, property rights for goods would not be needed. However, everyone would still have a property right in their own person since everyone would not be able to occupy the same space (Hoppe explains this better than I can).

    The fundamental fact is that ideas are non-rivalrous and there is no conflict since no one can exclusively "control" or "own" an idea, theorem, algorithm, etc. Why? Because there is no reason why 2 people (working completely independently who live on opposite ends of the globe) cannot both come up with the same idea or mental construct at a given point in time. Also, there is no way to "homestead" an idea and exclusively own it (for the reasons I've given above). Now, one may "possess" an idea, but it is impossible to exclusively control it given that the basic law of humanity is that we have the ability to reason given we all possess a supercomputer atop our shoulders.

    Lastly, a primary issue to the IP debate concerns two concepts: stealing versus copying.

    A comment by Ted Sonnier (below) eloquently describes how ideas (even genuinely original ones) cannot be "stolen" as well as the difference between control/possession and ownership.

    http://www.economicpolicyjournal.com/2013/01/examining-jeff-tucker-intellectual.html?showComment=1358978923227#c4987558210719373154

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    1. "The fundamental fact is that ideas are non-rivalrous and there is no conflict since no one can exclusively "control" or "own" an idea, theorem, algorithm, etc. Why? Because there is no reason why 2 people (working completely independently who live on opposite ends of the globe) cannot both come up with the same idea or mental construct at a given point in time. "

      Didn't Murray Rothbard write something about "time preference"?

      "Also, there is no way to "homestead" an idea and exclusively own it (for the reasons I've given above)."

      That's actually not true. The concept of a NDA(non disclosure agreement) accepts the basic premise that you have an idea...and the other party is interested in knowing what it is and considers it as your "property" by agreeing not to share it with anyone else and acknowledging you "own" it.

      Just because we as a society haven't developed an effective contractual system for dealing with the idea of "intellectual property" doesn't mean that such property shouldn't be respected.




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    2. @Nick.. "The concept of NDA" is totally misunderstood by you. NDAs are not concerned about ideas being property. They only create a covenant in which one party is willing to disclose information it has (which can be completely public... the fact that this party has interest in this particular information is itself can be sensitive) only if the other party agrees not to share this information with anybody else. Often, this is a pre-condition for employment or a business deal - one party voluntarily restricts its behavior in order to gain material advantage resulting from access to other party's knowledge.

      In NO WAY signing NDA creates or reaffirms property rights in the information.

      And. no, there is no way to develop the system of contract law dealing with "intellectual property" because "IP" is logically inconsistent, and is incompatible with property rights in real property.

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    3. Let me start by saying I routinely use, both subject to and offer, NDA's in my professional life.

      I do not feel that I "misunderstand" them, instead I think you are missing my point.

      In that regard, I will be more specific and blame myself for the misunderstanding.

      The use of NDA's are an IMPLICIT understanding/acceptance of the fact that someone's idea is his property. (In my opinion.)

      "In NO WAY signing NDA creates or reaffirms property rights in the information."

      That is your opinion.

      In my view, not only do NDA's implicitly show property ownership, they are also a validation that ideas are understood to be inherently scarce(or unique) at times.

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    4. You may want to talk with an actual lawyer, Nick. NDAs no more create property rights than me agreeing with you that the house across the street is yours makes it yours and not the property of the guy who actually bought it.

      (You may also learn that NDAs are usually unenforceable, and rarely worth more than the paper they're printed on. That is because to have a binding contract you need a consideration, and none of the hundreds of NDAs I've seen or signed had any. But I'm digressing.)

      Property rights are not dependent on any agreements between parties. See Rothbard's "The Ethics of Liberty" for the detailed explanation of what property rights are and how they are related to contracts.

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    5. Being a contracting officer for IT purchases as my day job, I agree with Nick.

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    6. As to Rothbard and Time-Preference, yes Rothbard/Mises/Bohm-Bawerk all wrote extensively about Time-Preference as it relates to interest. What it has to do with property and this discussion of property and IP - I haven't a clue. How exactly is Time-Preference germane to IP exactly?

      Again, I'm particularly interested for someone to address Hoppe's argument about property itself why it is necessary and what qualifies as property.

      Property solves the issue of conflict between scarce resources/goods. Ideas do not fall into this category and cannot be "controlled" or "owned" - rather only "possessed" by one or more people at any point in time. By controlled or owned, I mean to have exclusive control over sometime that no one else can control at any one point in time. Clearly, an idea, pattern, design, etc does not fall into this type of category.

      As for Trade Secrets and NDA, they are related to terms of employment or any business deal/negotiation. It is totally fine to have NDAs with employees or business partners. However, NDAs are two-way and as Kinsella has pointed out many times do not bind third parties. Also, Kinsella does address trade secrets and binding contracts in his book Against Intellectual Property.

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    7. "What it has to do with property and this discussion of property and IP - I haven't a clue. How exactly is Time-Preference germane to IP exactly?"

      Very simply the notion that we pay for the use of money now instead of later via interest, presumably to benefit earlier.

      In speaking to the issue of time preference, which you touched on lightly:

      "(Because there is no reason why 2 people (working completely independently who live on opposite ends of the globe) cannot both come up with the same idea or mental construct at a given point in time."

      If someone has an idea but has to spend resources trying to protect it, or maybe does not even implement it as a result- would it not be beneficial for a party to "pay"(similar to interest) to have that idea NOW instead of waiting for someone else to generate it?

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    8. "You may want to talk with an actual lawyer, Nick. NDAs no more create property rights than me agreeing with you that the house across the street is yours makes it yours and not the property of the guy who actually bought it."

      I really have to disagree with you. The implicit notion that people have "agreed" that someone's idea is unique and worth writing a contract over is the heart of the issue.

      "Property rights are not dependent on any agreements between parties."

      I would disagree with you here as well. There are situations where 3rd parties may not be bound...squatting, homestead, etc. et al...

      But there is DEFINITELY a creation(or transfer at the least) of property rights via contract(like NDA's) between two parties...just like if I sign the title of my car over to you for $100.

      "You may also learn that NDAs are usually unenforceable, and rarely worth more than the paper they're printed on."


      The thing is though, the inability for people to protect their property rights at times(in all realms) is not an argument that they shouldn't be acknowledged or an attempt made to protect them...unless of course everyone wants to go back to bonking each other over the head in caves in regard to property rights-where the one with the biggest arms and clubs is the "winner".

      Everyone knows the current system sucks, but it doesn't mean that we should throw up our hands and so "Oh well, screw property rights in that area for now."


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    9. "Very simply the notion that we pay for the use of money now instead of later via interest, presumably to benefit earlier."

      Sorry, I'm not sure I understand what you are saying (and I do not want to straw man your argument). Can you elaborate? It sounds like you're trying to make a quasi-Labor theory of value argument but I'm not sure.

      "If someone has an idea but has to spend resources trying to protect it, or maybe does not even implement it as a result- would it not be beneficial for a party to "pay"(similar to interest) to have that idea NOW instead of waiting for someone else to generate it?"

      To the question of "protecting" or not telling anyone else about an idea, design, pattern, algorithm - that is certainly well within someone's prerogative or maybe best interest to keep it under wraps or not disclose it. But, this premise rests on the fact no one else could ever manifest it or come up with the same idea. This of course is impossible since we as humans all have the ability to reason and manifest ideas independent of each other.

      Kickstarter is a way of paying for someone to turn an idea, algorithm, or design into a tangible good or service. But, IP is particularly dangerous since it says only the person who gets to the gov't Patent office first has exclusivity over an idea, plan, design, or whatever and prohibit anyone else from selling or producing the widget that one came up with.

      You still haven't addressed Hoppe's point about how we define property and most importantly why we need it? That is the main point of my argument - how does one demarcate ownership/control over an idea?

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    10. "But, this premise rests on the fact no one else could ever manifest it or come up with the same idea."

      No, it doesn't. That is my reason for bringing up time preference.

      "Because there is no reason why 2 people (working completely independently who live on opposite ends of the globe) cannot both come up with the same idea or mental construct at a given point in time."

      The weakness in this argument is that it doesn't reflect reality. There is ALWAYS someone that comes up with unique idea "first". If society respected property rights they would naturally pursue its implementation in most cases...though we don't have a great framework yet via a type of intellectual homesteading.

      I think I can reasonably state that this notion that IP is invalidated because of the almost impossible mathematical probability of two people both having the same idea and then making a homesteading claim on it simultaneously is preposterous.

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    11. Okay, you're injection of the concept of "time preference" has absolutely no bearing on the IP debate whatsoever. Time-preference relates to interest (savings/investment, etc). So, I still don't have any idea what you're saying unfortunately. If you have a paper, resource, blog post about how it does relate to IP, please let me know and I'd be happy to try and understand your argument better.

      I absolutely respect and feel property rights (of scarce goods) are essential to human flourishing - prosperity, peace, and justice. But, what about non-scarce goods? That is specifically ideas, patterns, etc?

      First, there are 6 billion people on the planet so it all depends on what we are talking about. Would or could 2 people on opposite ends of the planet (or even next door to each other) come up with how to invent time travel at the same moment in time? Yes. Is it likely? No, probably not. But, I'm not interested in the probability of this event occurring. I'm interested in the principle of whether aggression is warranted. Specifically, I'm talking about whether if 2 (or more) people came up with the theory of warp drive (or how to create a worm hole), does one person have the right to exert violence through the State (or an organized gang of street toughs) to stop the other person from turning that idea, algorithm, design, pattern into a tangible (scarce) good by being the FIRST get a license from one-world governing patent office and have a temporary monopoly privilege on that "idea"?

      Also, please explain to me how you "homestead" an idea and demarcate exclusive control/ownership (as opposed to "possession") over an idea without violating the non-aggression principle?

      Yet again, I will repeat myself since I must not have asked this enough times. What is it they say... repetition for retention? How do we define "property" and most importantly why do we need it? How does one demarcate ownership/control over an idea?

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