But they then go on to recognize that a creator of an idea, say A, can make a contract with person B as to what can be done with an idea created by A. Libertarian anti-IPers will recognize such a contract as legitimate. For example, Kinsella writes:
ABut if something is not scarce or not "owned", why would party A and party B waste time drawing up a contract over it? Air is generally not scarce and so access to air is not something you would enter a contract over. If something is not scarce, who the hell would you even contract with to grant access to it? The very act of a contract being entered into by a creator/owner of an intellectual property and a second party implies scarcity. Thus, the anti-IPer libertarian argument that ideas are not scarce falls flat on its face the minute the anti-IPers recognize that contracts over intellectual property are legitimate.book publisher may be able to contractually obligate his purchasers to not copy his book, but he cannot prevent third parties from publishing and selling it, unless some contract prohibits this action.
Wenzel, A & B can make a contract over non scarce resources such as air or IP if they want to. Making a contract over non scarce resources is a legitimate activity, because ultimately a contract is a voluntary act.
ReplyDeleteThe point is, that just because A & B have a contract, it dies not mean that C is bound by it.
Your confusion over the IP issues is in part lead by Kinsella not using the Rothbard-Evers Title Theory of Contract as the basis of what constitutes a property right and exchange.
@ Yohan
DeleteI believe you are incorrect. I believe Kinsella does subscribe to the Transfer of Title Theory of contract. The question then is, if IP is not property, what is being transferred, right? The classic anti-IP answer to this question is that the contract is for the service of delivering the information to the purchaser. So, you are paying for the service of receiving the information, rather than the information itself. That seems like bizarre semantic juggling to me, but that's the argument.
"Your confusion over the IP issues is in part lead by Kinsella not using the Rothbard-Evers Title Theory of Contract as the basis of what constitutes a property right and exchange."
DeleteThe problem is much more fundamental than that...if you can't agree on a definition of what property is these discussions amount to a hill of beans. The fundamental basis for the discussion is in question first and must somehow be dealt with...and I'm not sure it can be!
That being said, if someone takes something from me and says it's "ok" because in their mind it's not property, it has virtually no impact on me in terms of using the resources at my disposal to stop harm or get restitution. Let said violators wax philosophically about me being the NAP "violator" instead of them.
I see these discussions ultimately going the way of the abortion debate.
Yohan,
DeleteIs C bound by the law of tort? I.e. the laws about nuisance, negligence etc.
"But if something is not scarce or not "owned", why would party A and party B waste time drawing up a contract over it?
Delete...
"Thus, the anti-IPer libertarian argument that ideas are not scarce falls flat on its face the minute the anti-IPers recognize that contracts over intellectual property are legitimate."
First, something owned does not have to be scarce. Ownership occurs because one mixes his labor with a resource - scarcity is irrelevant.
So, it's not that your Drudge Formula isn't property because it isn't scarce. Rather, it's that your formula isn't a thing, but an interpretation of a pattern. It doesn't take up physical space in your head. The paper on which it it is written is your property.
Second, contracts are mutually agreed-upon conditions of trade. Maybe it would be pointless for people to make contracts over plentiful resources such as air, but people can do what they want with their own property.
Also, a contract precludes claims to "intellectual property", and vice versa. If the trade of the service of providing information is happening due to a contract, it's BECAUSE the information isn't owned. And if there were such a thing as "intellectual property", it would be pointless to make a contract over it - you don't ASK people to respect your property rights.
Be very careful with your position on IP, Mr. Wenzel, because whatever is legitimate property, its owner has the right to defend it from theft; and advocating the "defense" of a property right that doesn't exist is tyranny.
Not scarce as in non rivalrous.
ReplyDeleteBut, even if I have a contract with someone, to do or to not do something, the contract can't just be a promise. Promises are not enforceable claims (ex: a promise/contract to marry). The persons involved would need to specify the conditions in which B has withheld or stolen A's rightful property, and specify retribution upon A's rightful property being stolen.
Ex: A sells a book to B. The contact states that B is giving up partial ownership of said book; the right to copy and/or let a third party copy the book. As it is now, the contract is a mere promise, and cannot be enforced via coercion. To be enforceable, the contract must state that upon copying or allowing a third party to copy said book, B will thereby owe A some specified compensation.
This is why A cannot enforce the contract he has with B, with a third party (C).
If C copies the book, A can't use force to stop him from using his (C's) own ink and paper. His only recourse is to collect the specified compensation from B.
Again, it does not suffice to merely stamp an object with ones own "copy right" seal, to prevent whomever comes to own (through trade) any property, from doing what that person wishes with it.
>> Again, it does not suffice to merely stamp an object with ones own "copy right" seal, to prevent whomever comes to own (through trade) any property, from doing what that person wishes with it.
DeleteYes, it does. The copyright means you have *permission* to use the author's property (the words - not the paper) within the limits of the license. Buying a bound pile of paper is not the IP and not buying the words. And the license - copyright in this case - transfers with the book.
These kinds of implied contracts are common. Take a lawn mower. If you buy one, you enter an implied contract that limits the legal use of the mower. If you use the mower to perform self-surgery, the manufacturer, by implied contract (ie you didn't sign it), is not liable for your self-inflicted injury.
And this implied contract (accepted with purchase and use) transfers with the object. If A sells X to B then B gives X to C all limits, exclusions and liability transfer to C as they should... Same for copyright.
SteveZ
DeleteYou wrote "Ex: A sells a book to B. The contact states that B is giving up partial ownership of said book; the right to copy and/or let a third party copy the book. As it is now, the contract is a mere promise, and cannot be enforced via coercion. To be enforceable, the contract must state that upon copying or allowing a third party to copy said book, B will thereby owe A some specified compensation. "
This is not the law of contract. There is obviously the intention to create a legally binding agreement and there is consideration - there is a contract.
Kinsella should apologize for calling Galambos a kook.
ReplyDeleteI got this from Politics and Prosperity:
ReplyDeleteThe blogger says BHLers are basically leftists, marketing themselves as libertarians. Sounds like it to me:
"I refer to the following utterances by another BHL, Jessica Flanagan:
I support a Universal Basic Income (UBI), and I think that other libertarians ought to as well….
When I say ‘social justice,’ I mean UBI. Below are several arguments for a basic income. I don’t endorse them all, but I’m including them all to show that there are many libertarian paths to this kind of ‘social justice’ conclusion.
First, I think that a UBI is morally required, given the wrong of a state-enforced property system….
Second, the UBI is relatively market friendly.… [W]e ought to support things like childcare and education vouchers, or a UBI for kids. Such a system would help citizens access the services they need without forcing them to sign up with a crappy state program.
Third, consider libertarian types like John Tomasi, Loren Lomasky, and Gerald Gaus, who argue that a UBI makes state power justifiable. Tomasi thinks that impartial institutional designers would first choose to protect important liberties (including economic liberties like contract and ownership) but then they would endorse redistributive policies to benefit society’s worst off within the limits of said liberties.…
Fourth, a UBI can be compatible in principle with ‘hard libertarian’ property rights. Even if you were entitled to your property holdings, you are not entitled to coercive public enforcement of those holdings. Just because we have negative rights doesn’t mean that those rights merit full public accommodation. Once libertarians start demanding that their property is protected and their rights are publicly enforced, we can think of taxes as the public fee for that enforcement. If the public is the guardian of your wealth, who are you to tell your security guard how to spend his paycheck? This isn’t how states work, but it does point to a possible justification for redistribution.
Alternatively, some libertarians believe that a UBI is good because it will promote overall well being….
These arguments for the UBI also explain why libertarianism at its best is aligned with the political left. The world is really unjust in part because states coercively enforce laws that make people really badly off. On this we agree. Sufficiency is on the path to priority or equality, so for a while, BHL’s and leftists can walk the path from here to social justice together.
PS: Matt Zwolinski wrote a great essay on the topic of Classical Liberalism and The Basic Income (see SSRN for a PDF)
They aren't saying that ideas are scarce. They are saying that access to the ideas may be scarce.
ReplyDeleteIdeas are not scarce. Good useful ideas are rare. An idea can't be useful unless people use it. Creators of useful ideas don't have a lot of leverage. People who control distribution and finance have access to most of the levers. That is becoming less so in the internet age, but the leverage still does not seem to be moving in the direction of the creative, it is moving in the direction of consumers.
ReplyDeleteWow, I think Wenzel just won the IP debate.
ReplyDeleteReally? That's what you got out this post? What I read was Wenzel finally going completely crazy.
DeleteThe answer to his rhetorical question is obviously, "Yeah, why would they?" They wouldn't and who cares. Maybe then they will get a real job instead of relying on government granted monopolies to earn an inflated living.
Wenzel hasn't illustrated anything contentious, much less has he "won the IP debate."
DeleteI have non-disclosure agreements with a number of clients. They can - in theory - win reparations if I violate these terms. If they share the information with others who are not bound by such a contract, then they have no recourse.
In this case, it is clear that my clients do not own the rights to the ideas they share, but do have standing to compel me not to share them further. If one recognizes the legitimacy of an NDA, then one must also roundly reject this article's pseudo-logic.
WTFWTFMD? (What the Fuck Would the Free Market Do)
ReplyDeleteYou guys can argue all you want, but in the end, just like drugs and porn, the free market gets what it wants, and it wants to download copies for free.
On the other hand, it doesnt want plagiarism. If I publish a song I didnt write and I say I wrote it, someone would eventually out me and the free market would destroy me socially and economically.
Free market say: Copy? OK, Plagiarize, no way.
download copies for free? sure if you apply a five fingered discount.
DeleteIs this a variant of the Libertarian Hypocrisy Fallacy? Because the legal apparatus is pro-IP, requiring people to make such arrangements to avoid all manners of potential exposure to action, that's somehow proof a thing is legitimate or real?
ReplyDeleteNonsense. Nonsense on stilts.
Are you still completely ignorant as to what's being talked about? Are you cherry-picking again?
Wenzel lost this debate some time ago and is clearly not going to concede. What he is doing here is confusing an idea with access to that idea. If I know a path through the woods, I do not own it. But I might sell that info to you. This does not mean I sold you the idea. I sold the service of introducing that idea to you.
ReplyDeleteWenzel continues to misunderstand scarcity. To say that an idea is not scarce means that an unlimited number of people may have that idea in their minds. It does not preclude the possibility that only one person has that idea. By its nature an idea is infinitely reproducible. That is all that is meant when ideas are said to be not scarce. What might be scarce and therefore marketable in free market, is access or introduction to an idea. That is a marketable service.
ReplyDeleteSounds like the anti-IP crowd is getting desperate. So something is now not-scarce even though everyone doesn't have access to it? This is the plain and simple the torture of a word. Scarce in economic terms means no action needs to be taken to acquire such a good, e.g. air.
DeleteNo, Robert. Something is not scarce when there's no contention for control of it as necessitated by the physical nature of this something. Physical goods and space would be non-scarce, too, if somebody invented a machine replicating them at effectively zero cost (alas, the laws of physics in the form of non-cloning theorem prevent this).
DeleteYou consistently fail to answer the question which is really central in defining what is property (and so is subject to property rights) and what is not - and that question is: "What the system of property rights is FOR?" Why do we need this artificial limitation on freedom of action at all?
As soon as you come with a non-utilitarian explanation for this, you will see why information cannot be property.
What the pro-IP folks never say is what exactly does the "owner" of an idea lose when that idea is "stolen"? What did the owner own, that he now no longer has? What did he lose? I never get an answer to that.
DeleteWenzel is arguing that when only he has an idea it is scarce, so it is property. But when it becomes public, it ceases to be scarce, so it ceases to be property, right? So IP law makes no sense, because it claims that which is no longer scarce continues to be private property.
DeleteAnonymous, Robert and I are on island. If I sell a fishing net to Robert that I invented, can I club Robert for "stealing" my idea by reverse-engineering, reproducing, and selling one to Anonymous? I think not, even if I write a patent # on it and claim an implied contract. However, if Robert signs a contract that promises he won't reproduce & sell another one, then I get to club him (if that's what we agreed to).
ReplyDeleteI'm convinced that clubbing Robert won't work. It might with others, but not Robert.
Delete-- But if something is not scarce or not "owned", why would party A and party B waste time drawing up a contract over it? --
ReplyDeleteBecause either A or B is naive and stupid.
-- If something is not scarce, who the hell would you even contract with to grant access to it? --
That would be a question best answered by Time Preference. If B does not want to start thinking for a great idea or wait for someone else to arrive at the same idea if A offers it to you, then B pays a premium to A to be the second one to hold the idea in his head. That does not mean B pays for A's silence unless B kills A. 'A' still holds the idea in his head, 'B' also has the idea in his head. Where's the scarcity?
I find it fascinating that the pro-IP crowd always limit the scope of their arguments to books, which are basically a description of a series of ideas and not a single idea, like the crankshaft is a single idea. How about ideas like the antenna inside a cell phone? It is designed from a fractal equation which helps place a higher-gain antenna inside a small space. There had to be a first person who came out with that idea but that does not mean a) antennas and b) fractals are things to which only he had access; it doesn't take much to come up with ideas as necessity drives ingenuity - yet IP law "protects" his "idea" (the antenna) from being "copied" by others who might never had heard of the guy that came up with that antenna the first time. The insidiousness of IP lies precisely in the way it stymies progress by raising the cost of improving upon an invention or an idea out of fear of government-backed litigation. When arguing for IP, though, oh it has to be books for the pro-IP crowd!
If Mr. Wenzel is in favor of IP law - in any form - he should be able to offer a hypothetical case where such a law is both moral and necessary in the pursuit of justice. I doubt that he can. Claiming that he has an idea, and is keeping it secret and so it is scarce and so it is property is fine word play. But he needs no IP law, since he's keeping it secret. When he makes his idea public, it is no longer scarce, so no longer property, so he deserves no IP law, yet he continues to claim he is in opposition to the "anti-IP crowd."
ReplyDeleteYou can't invalidate one's claim because they also make another claim built upon it that you find illogical. So, whether libertarians recognize a contract valid or not has nothing to do with whether IP can be a property. Now, to clarify things for everyone, Ideas are property only as long as they can be maintained in a state of scarcity. The second they become disseminated, the enforcement of scarcity is no longer possible and their availability becomes infinite, and their price tends to zero. Enforcement of scarcity becomes a subsidy the second government starts providing the advantage to some. However, as long as the idea is kept private, via trust - such as the trust within families, common interest, or for lack of interest - magician secrets for instance are not in high demand compared to the recipe for coca cola, they can have a price and a market, in which a contract for purchase is consistent with libertarian principles, regardless of ownership, but rather posessikn.
ReplyDelete"If Mr. Wenzel is in favor of IP law - in any form - he should be able to offer a hypothetical case where such a law is both moral and necessary in the pursuit of justice."
ReplyDeleteI, too, would love to see such a case be made.
"Claiming that he has an idea, and is keeping it secret and so it is scarce and so it is property is fine word play. But he needs no IP law, since he's keeping it secret. When he makes his idea public, it is no longer scarce, so no longer property, so he deserves no IP law...'"
This seems to be the inner contradiction of the pro-IP advocate basing their premise on scarcity. What is the answer to that question pro-IPers?
It seems to me another way to "prove" the existence of intellectual property is through the concept of amortization. In a completely free market system, devoid of the need for tax deductions, amortization would exist simply as a record of the loss of value of intellectual property due to competition. This competition would come from processes that solve the same problem in a different manner. For instance, suppose a company comes up with a "secret blend" of fabric that has properties which make it valuable on the free market. If this fabric takes up enough market share other companies are going to attempt to make competing fabrics. They may even come very close to making a blend of fabric that is very close to the original. As these competing fabrics enter the market the intellectual property representing the rights to the original "secret blend" must be amortized accordingly.
ReplyDeleteIt is not inconceivable that a company would have a whole balance sheet with proprietary "secret blends". The value of these products would be determined by a variety of factors like the amount of competition in each market segment. Another company isn't going to be willing to pay top dollar for a "secrety blend" that has been knocked off several times. However there would be an incentive for a larger company with strong marketing resources to buy a smaller company's "secret blend" to expand the reach of the product. This may even result in a temporary price appreciation for this piece of intellectual property. Even in our current system there is a robust trade in intellectual property with companies buying and selling patents and trademarks.