Thursday, June 30, 2011

The Day Robert Nozick was Konked

David Gordon provides the inside scoop:
[Sam] Konkin had a gift for coining words that attracted the libertarian public, and even those libertarians unfamiliar with Konkin use his terms. He called supporters of a minimal state "minarchists," condemned Libertarian Party "partyarchs," and warned against the undue influence of the "Kochtopus." I recall another of his coinages, which has not come into general use. This stemmed from his disdain for minarchists; in particular, he was no admirer of the leading minarchist theorist, Robert Nozick. I do not think this has made print, but he called followers of Nozick "Nozis." If this was unkind, it was at any rate amusing.
BTW, the entire profile by Gordon on Konkin is a great piece and should be read. I hasten to add that I do not agree with Konkin on IP. As Gordon reports:
He traces the origin of IP to state-granted monopoly privileges: "If copyrights are such a drag, why and how did they evolve? Not by the market process. Like all privileges, they were grants of the king. The idea did not – could not – arise until Gutenberg's printing press and it coincided with the rise of royal divinity, and soon after, the onslaught of mercantilism." He concludes in characteristic style: "It [copyright] is a creature of the State, the Vampire's little bat. And, as far as I'm concerned, the word should be copywrong."

I believe free market IP protection started before the printing press and even before written words, in the form of secrets. If I have some information and tell you that I will only reveal it to you, if you tell no one else, and you agree, then we have a free market agreement over IP. To say that IP protection started with the state merely because the state has written copyright laws, is as wrong as saying that money started with the state because the state invented the dollar. Money existed before the dollar and IP protection existed before government copyright laws. Simply because the government created the dollar and copyright laws does not mean that the concepts money and IP protection are evil. They are evil, when controlled and manipulated by the state, but free market money and free market IP are not evil. They both surely can arise without the state and, indeed, are likely to do so in a free market environment.

More on IP coming soon:)


  1. I tend to agree with you here, Robert. My own opinion of IP is entirely Rothbardian in that I believe that copyright is merely a free market solution to theft, whereas a patent is a monopoly privilege granted by the state. While a patent restricts two individuals from coming up with an invention, product, or information independently (and grants monopoly to the first filer), a copyright merely restricts a person from stealing the invention, product or information of another individual for his own gain. The difference is that with a copyright it must be proved that the defendant was not aware of the copyrighted material (he came up with it independently) and that he did not invade the private property rights of the plaintiff.

    Copyright is entirely consistent with the principles of both libertarian philosophy, as well as with free market theory, thus it could easily have emerged without the existence of the State.

  2. There is no such thing as IP. It's a legal fiction designed to benefit the state's allies. Wenzel needs to read Kinsella on this. All the scholars at the Mises Institute are anti-IP at this point. Don't fall behind the curve.

    Keep up the good work otherwise, though.

  3. The topic of IP fascinates me. I'm a lawyer who never took a class on IP and who does not practice in that area. I'm not sure where I stand on the issue as both side seem to have relevant points. Perhaps patents make sense but only for 3-5 years. That may be a better balance. As far as copyrights, it strikes me as being fundamentally unfair for me to be able to take an author's best selling book and start re-printing it and selling.

    I will say though, Jeff Tucker's example of the fashion industry, in which anybody can copy anybody's new styles, is very compelling. The lack of patent/copyright with respect to fashion trends does not seem to inhibit that industry whatsoever. In fact it's probably the reason it's so vibrant.

    I look forward to more IP discussion on EPJ.

    Thanks, Bob.

  4. To anonymous at 12:38, how in the world could you think that patents should be a shorter duration and copyright as it stands is acceptable? If we (for arguments sake) forget the libertarian anti-IP arguments, and agree that some sort of IP is required (again, just for the sake of this particular argument). Then how in the world could you think that a copyright, which only covers entertainment in its myriad forms, would be more important than a patent, which tends to be for a device that benefits and betters humanity. Patents are inherently more beneficial to society than copyrights are, and thus *at the minimum* the patent duration length should be equal to that of the copyright, though likely it should be longer. If we are going to have IP in our society I think a good compromise would be copyrights should be 1/2 the duration of a patent. If here in the US we keep the patent length of 20 years intact, then all copyrights are immediately reduced to ten years. Disney eat your heart out.

  5. @Anonymous 12.13

    Wenzel HAS read Kinsella. That's why he's pro-IP.

    @Anonymous 4.02

    "benefits and betters humanity"

    Just there you gave away the inherent socialism of anti-IP.

    The point is not what "betters humanity" (how on earth does a libertarian better humanity when they're always railing against the whole notion of the "public"? No humanity..)

    The point is what is a right and what isn't.
    If something is within my rights to assert, I can can assert it, regardless of whether you think that by pinching it you can "better humanity. The only thing that limits me is your right.

    You cannot steal my invention or creation because that is theft. The good of humanity has nothing to do with it. You aren't the arbiter of the good of humanity...even if we concede that such an intangible and unverifiable thing existed and could be quantified.

  6. To Anonymous at 4:02: As I said, my mind is open to all arguments. Both proponents and opponents seem to make at least some sense. However, the patent argument makes less sense to me.

    If somebody designs a mouse trap and I take that design and build them for sale, how am I injuring the inventor? I'm still having to buy or manufacture the materials, assemble them, bring the mouse trap to market and then sell it. All the inventor did was provide a recipe. Now I know the argument in favor of patents is that unless the inventor enjoys a monopoly for at least a period of time he has no incentive to invent and no more inventions would occur. That's why I say maybe patents are good, but the monopoly should be shortened to say 3-5 years. Then again, without a monopoly, mouse traps would be cheaper, thereby allowing those to have more money to buy other things spurring demand for more inventions.

    I could still make money on my invention. I would have it in confidential form and bring it to a manufacturer for sale. Before I presented it, I would require a non-disclosure and non-use agreement which allowed the manufacturer a look-see without me risking it being "stolen." Once we struck a deal, the manufacturer would work in secrecy to get the product to market as quickly and cheaply as possible in the hopes of having a competitive advantage with its head start. If the manufacturer priced it too high or if its manufacturing operation were inefficient it would encourage competitors to jump in.

    As I said, I am a lawyer. If I come up with a unique legal defense, should I be able to patent or copyright that so all defendants would have to utilize me to assert that defense or pay me some royalty for asserting it? Wait a minute, I spent all that time and energy coming up with that unique argument I'm entitled to riches from all those who need that argument. That's not how the system currently works though. Lawyers "steal" arguments all the time (please don't ask me to defend my partial monopoly as a result of laws prohibiting the practice of law w/o a license). That's just the nature of the game. My work has produced a positive externality to others, but without an expansion of the concept of IP, I can't capture that "value" for myself. However, I can gain publicity from coming up with such a great defense and thereby gain new clients who see it as an indication of my legal brilliance.

    With respect to copyrights, as I said, it strikes me as unfair if I can simply take a best seller, retype it, print it and then sell it for my own profit. The written work isn't just a recipe, it is the product per se. The same goes for a musical recording. It seems unfair that an artist incurs costs to record and I simply take the mp3 file and sell it. I can see a distinction in taking his song (i.e. his recipe for a song) and re-record it with my musicians and then sell that recording.

    Then again, maybe a written work or a recording should not be given exclusive-use property status. Instead, the only real value should be to promote one's intellectual skills or musical talent. In other words, these works would be used as marketing devises to encourage those to pay to see you speak or perform in person (much like I would use my unique defense as a marketing tool to get new clients).

    Unlike most actions which can easily be determined based upon whether they injure somebody or violate tangible property rights, the answer to IP puzzle does not seem to be intuitive, mainly because this "property" can be replicated without apparent injury to the inventor/author/artist, other than through the allegation that the inventor/author/artist is losing potential profits. This of course is a legal construct though.

  7. Anonymous 4:02. What in the world makes you think that a copyright only applies to "entertainment". Have you never seen an older machine with "copyright" stamped on it? Copyright can apply to any sort of property, and is only a mechanism to clearly state that one cannot copy the "thing's" distinct properties. Just because current law makes the distinction does not mean that copyright has not been applied to any and all goods, or that they cannot be in the future.

    Copyright does not bar somebody from coming up with the same "thing" independently. The burden of proof is whether one party copied the other's "thing", or whether they happened to come up with the same "thing" independently.

    I do make a distinction in what can be copyrighted, it must be a physical object. For instance, I can talk and tell you something, and your copying what I said and putting it into action is not an infringement (same goes for recipes, ideas, etc). But, if I print those ideas onto paper and release a book, it becomes copyrighted due to its physicality (barring you from copying that material and releasing it in a book of your own). The same goes for music, I have no problem with somebody playing my music, but it is an entirely different matter if they release albums of themselves performing the same exact music as my recordings. Obviously, any sort of physical product follows with this reasoning.

  8. I have a question directed towards Lila Rajiva regarding the libertarian point of view on patent granting as the area of IP seems to be a big (if not the biggest) problem with libertarian theories/tenets. On the one side we have the desire to protect the IP or "property" of others. And I personally do subscribe to the camp that if inventors are not compensated well the pace of progress will slow quite a bit (though never stop). On the other side is the artificial product and scarcity created by the government granting of a monopoly. It would seem to me that trade secrets are the only type of IP that is compatible with the libertarian ideals of small/no government as well as the protection of IP. Am I offering a fair description? Am I missing something?

  9. An aside that all parties here, pro & con, need to contemplate- if you've never listened to The Beastie Boys album "Paul's Boutique" (or on the fully illegal side, DJ Danger Mouse's "Grey Album") then you should seek both out. They liberally "rip off" other works (any and everybody in the former case, Jay-Z and The Beatles in the latter) but the resulting work is wholly unique. The BBs could never release "Paul's" today without paying millions in licensing fees, but it is considered a classic for good reason. It alters and reimagines the works it samples to make something wholly unique.

    The pro-IP people need to realize that the courts have been so compromised that even the concept of "fair use" has been drastically curtailed by legislation (DCMA) and court rulings. Copyright, at the behest of Disney, has been extended dramatically to protect their already vast incomes- and the result is that many works that should be in the public domain are now in legal limbo because of their bribery of the congress. Why do you think most people don't believe that downloading music or movies is wrong? The law has been so twisted that most people have little respect, and many outright contempt, for it.

    Copyright and patent laws have been distorted and abused by large corporations to the detriment of everyone. A reasonable protection of a few years for each, or the implementation of a "Knowledge Tree" wherein the original creator of a work or technology is compensated by those who later use, refine or improve on that work, or some other as yet undiscovered (because our current monopolistic (il)legal system inhibits it) could easily replace patent and copyright of allowed to develop in a true free market.

    Just food for thought.

  10. I would have to know the specific case, before I could venture an opinion since I'm not a lawyer and don't know what issues have become important to the courts or why they might decide one way or other.

    But in general, my view is that patent laws might be prone to being abused by the way trademark is.

    However, that might not be something amiss with patent law itself so much as something amiss with the entities involved in pursuing extreme claims.

  11. While the IP system in the United States certainly has problems, the copyright system is much more abused than the patent system, just based on the duration of the two. 20 years vs. (practically) infinity.

  12. Well, it's a complex topic and while cost-benefit analysis is a valid approach, it's not when at all other times you cast yourself as a purist to the nth degree, as many libertarians do.

    I mean if at every other instance of force, you cry "evil statism" without regard to the moral/social results, then you have no grounds to attack IP SOLELY on the basis of consequences, right?

    For non-purists like me, however, there's no problem with different treatment of different things.