Thursday, September 11, 2014

Round 4: Walter Block and Michael Edelstein vs. Robert Wenzel, on IP

Some of you will be happy to learn that the discussion finally moves beyond the  topic of the ownership of words.

Round 1 is here.

Round 2 is here.

Round 3 is here.


  1. If Wenzel is claiming that there is some universally enforceable right to IP, then I disagree with this claim on the grounds that if there is no contract between the holder of IP and another user of the IP, then that is the end of it for those two parties (assuming the second person did not steal the IP otherwise, such as hacking into the owner's computers, extorting, surreptitiously installed cameras, etc.). The second person may do as they wish (independent discovery is irrelevant). However, if the second person learned of the IP through someone that is contracted to not share the IP, then that person who is in violation of the contract shall be held to the terms of the contract, which likely includes a clause to make the harmed party whole, which, in this case, would be to provide for the lost profits and other damages.

    With regards to Block's claim that there would be no opportunity because so many fundamental things would be tied up in IP, I again find that Block is a communist claiming to know all possible options that actors in a market may take, because the real issue is whether or not holders of IP would choose enforce the IP and whether or not investors would provide capital to produce whatever the IP produces. This is a market issue, not an IP issue. I think taking the argument in the direction of open source, etc., is not necessary as it is on Block to demonstrate that the market system will fail with this 'set' of products.

    I still want to know how Block can argue that a blackmailer has rights to profit from information held on the blackmailed while someone who holds some other bit of information has no rights to profit from information.

    1. Every contract for property binds third-parties who were not part of the agreement. You can't use my yard even though you never signed any agreement recognizing my ownership of the yard.

      Also, all "market issues" ultimately are property issues as well. You can't have a market without property rights.

    2. If a man washes ashore on a large, uninhabited island, he may choose to claim title to the island, however, this claim does nothing to protect him from the sea gulls, mice and other vermin that steal the food stores he creates for himself, and it becomes particularly difficult when a second man washes ashore.

      The second man may not choose to recognize the first man's claim to title of the island. Being that these two men are equal in size and fighting ability, they decide to split the island equally.

      Now a third man washes ashore. The first two men decide they do not want to share the island with the third man and inform him to leave the island and find a different one. Just as the third man is about to leave, a fourth man arrives. With the sides again equal, all men decide to split the island equally.

      In this scenario we can see that there is no right to property and there is no contractual right. There is only one right throughout: the right to choose.

      The claim that there is a set of natural rights may only be supported with the assumption that there is something to enforce these rights. Absent external enforcement, the right does not exist as practicable by an individual, which suggests it cannot be 'natural' in the sense that it is not innate to an individual.

      Based on this reasoning, it might be argued that an individual has a 'right' to violence. However, if an individual has a 'right' to violence, then this individual also has a 'right' to non-violence, thus, these are not rights, but two options in a choice.

      Beginning from this point, that the only practiceable right is the right choose, it is much easier to argue for liberty because it is much clearer when this right is being violated. This is because everyone has their own definitions, justifications, reasoning behind, and lists of rights, and none of these things matter much when those of opposing beliefs in social orders debate each other.

      Many libertarians will dislike this view because the right to choose precludes the non-aggression principle (NAP) and reveals that the NAP is a belief system, which is what I consider it to be.

    3. Your island may (or not) be off thread, but I like your island concept. Generally, if you are strong enough you resist any contract so you may choose at your leisure to, well, chose anything you like anytime. The weaker really need a contract or they are in peril, but they probably are anyway as the strong may renounce their agreement later. Alliances must be made for mutual protection though one guy or one most powerful alliance may do as he/it chooses to the others. We have the world as our island & the nation states as our actors. And how could this ever be changed since there are no outside enforcers.

  2. Block's point about Kinsella putting Rothbard into the category of anti-IP is something I also discovered when I looked up the citation (37) used in Kinsella's book, Against Intellectual Property. I'm not sure if Kinsella did this as an oversight or to gain favor of those who respect Rothbard, but it's hard for me to believe it isn't one or the other, of which both options make the entire work suspect. For those who respect the work of Rothbard, I would recommend a censure of Kinsella and banishment from attendance until he formally corrects the work. It makes the entire community look bad when a piece that is considered by so many to be the defining work on an important position contains such a glaring and, frankly, embarrassing error that is borderline fraud and certainly disrespectful to Rothbard's intellectual works and findings.

  3. I have immense respect for these men, so it pains me to say this but boy, what a disappointing discussion so far. After suffering through Round 1 and part of Round 2, I skipped to Round 4, encouraged by the note about the word ownership debate ending. Now pony tails? Sheesh. I was hoping to gain some knowledge about Rothbard's views on this (which, I understand, Robert endorses) and how markets could solve these problems. What are the differences between patents (where the words comprise ideas that can result in tangible devices/objects/substances that can then - I'm sure we all agree - be owned and traded) and copyrights (where the combinations of words in themselves are considered property)? In the absence of a state, how could markets handle these? In my view, patents are a horrible idea. If you have an idea for a better mousetrap, and you don't want anybody to steal it, then fine: don't tell anybody and don't build any mousetraps unless you're going to keep them hidden. In the real world, people are not going to just sit and do nothing all day when they have ideas that they think could profit them, so this would be a non-problem. Copyrights I'm not so sure about. How are they different? And as a practical matter, keeping in mind how rapidly combinations of words can be spread in the internet age, could there ever be a way to enforce property rights in these without a coercive state? What about computer code? Sure, you can have a non-disclosure agreement that would pass libertarian muster, and that conceivably could be enforced with second- or third-generation users, but what happens when the "property" can be reproduced and distributed to millions of people in a few seconds?

    1. You are completely missing the nature of this debate. We are going through the minutiae of every aspect of the IP, so that no stone is unturned.

      This is not a summary course on "What Murray said about IP." If you want that go read Murray.

      And you can ask a dozen questions on IP issues, but as you might have noticed neither Walter nor I are simply stating opinions, without establishing a foundation for what we are saying. That takes time.

      This debate is not for everyone. It is especially not for those who want fast answers without proper foundation.

    2. Thank you, Robert. Gosh, "the minutiae of every aspect of the IP"? How many rounds will there be?

  4. From what little I know about Wenzel's arguments, & I may be TOTALLY wrong as I'm still a newbie to the issues, he seems to:

    a. Allow for independent discoverers (no theft, fraud, etc) to have all rights & privileges as an original discoverer. Sounds good to me. One can skip patent research & proceed creating whatever seems like a good idea.

    b. Allow rights, restraints upon others, for obvious & trivial inventions. Seems like a bad idea. I don't like limitations for trivial reasons. This concept is built into current patent law – for good cause.

    The pony tail seems obvious & trivial & upon observing such in public, it would seem ridiculous to be required to go check some database to see if it is OK to copy it or be confronted with a cease & desist at lunch. Leave people be unless you've got major reason to tie their hands over every day observations.

    Were girl A to invent a clever, non-obvious hair style, e.g. suppose with some nano-technology her hair billowed & flowed like a shampoo commercial as she walked across campus, girl B would not be able to copy it without purchase from girl A, or I suppose hiring a physicist or engineer to independently create the look, especially if girl A decided being “The Fairest of Them All” was more important than $.

    Paul would not let girl A restrain girl B's pony tail for lack of contractual obligation. I would not allow it over trivial restraints. Perhaps both Paul & I would agree that girl A could restrain B were A to get B to sign up. Girl A: “I've a great idea which I'll show you if you sign for it.” Girl B then has to pay even when all other school girls get a free ride.

  5. One of Bastiat's key elements for defined property is that is has "market value"...which is the answer to Block's dilemma/question on pony tails.

    Yes, "market value" is subjective...and the reason that courts exist(not withstanding that we all think they should be privately run courts), so the person suing has "prove" damages(via market value) to a group of (hopefully) reasonable people, which is the more utilitarian aspect of the IP debate.

    It is also the reason why Bastiat specifically said in Economic Harmonies that it was important to merge utilitarian and philosophical arguments.

    1. Thank you, Nick, as it will take time to catch up as I must earn a living. I'm already behind my intentions.

      In the following please read “Wenzel” as his, and all agreeing with, arguments, i.e. nothing to do with himself, even if it stretches Wenzel's personal statements:

      Allow me to pursue: “Market value” is important? Is there no justification for the “non-obvious” rules in existing patent law? Upon a new development, say smart watches there are, will be, many obvious & trivial things to do. You may “invent” something which will have occurred to millions within hours or days, and maybe millions will have thought of it but not pursued it because they woke up in LA rather rather than UK or busy or sick. Suppose only 10s. It has market value only because you've done (filed or whatever) something first. Does Wenzel's protection of independent discovery take care of this?

      I've not yet viewed the 1st debates so forgive ignorance, but does Wenzel approve “rights” for trivia? Trivial Words? Sitting on ownership like “URL squatters” (I think now illegal) until someone needs them? TMs are good for us all but they are limited: you must be using them & renewing them every 10yrs. If Wenzel approves trivia in words without limit, could IBM (Watson super computer) generate trillions of protected words (programmed to know pronounceable words) so physicists theorizing and/or discovering a new particle (like quarks) must pay IBM or publish: “32,764,923 are new elementary particles we discovered” (assuming the “are a new elementary particle we discovered” are already in the public domain & numbers cannot be protected)? Sorry if this sounds foolish when I've not viewed the debates, but trivia can have “market” value if gov guns & goons forbid use. Can “independent discovery” allow “quarks” so no worries – ownership doesn't mean too much? Ignore registrations & words, TMs & ideas are free to any that think of them?

    2. I'm not entirely clear on RW's specific positions on the nuances of IP in general.

      We both view IP as a legitimate concept, but come at it from different ways. I think you have to start with some cogent definition of what "property" is, and Bastiat's definition seems to make the most sense to me. In short, he uses labor(both mental and physical) and market value as two key components.

      What "property" is, has changed over time and is different both in opinion between people obviously but also within different societies and their norms. I started in spring to do some reading and research into the history of what has been defined as "property", but I've been blessed since May in my business with a huge, ongoing backlog and like you have I have make a living as well so it's "make hay while the sun is shining" and I had to put it on hold.

      Assuming things at one point slow down for me I'll pick it up again...I think it's important to understand the history of what property has been defined as across time/cultures in the context of the current debate.

      RW has made a simple statement on the concept that rights are "designed", to which I can take a secular or theist approach with that concept. I think this is an important statement for everything to think about.

      Just like an-caps should have no problem with those that choose to voluntarily live in communes as long as they aren't using force to push their system on to others, I'm starting to think this conundrum between those who respect IP and those who do not can only be solved by same philosophy: those who want IP communes do their thing in their own society, versus those who respect IP having their own distinct society.

      Personally, I think society that respects all forms of property will end up prospering more...but only time and those conditions actually arising would prove it out. The court systems and the definitions of property are somewhat representative of cultural norms and definitions of a given society in most cases, for better or worse.

      So in summary, I make comments about Bastiat's work because it provides a logical framework for those who agree with his definition of property to come up with their own answers to dilemma's/questions.

      I know RW holds a view that seems to be contract based Rothbardian IP, which is easy enough for you to read/find when you have time...but I find it lacking sometimes because there's no clear definition of what property is, the closest I've seen from Rothbard is this:

      " It follows then that each person justly owns whatever previously unowned resources he appropriates or "mixes his labor with". From these twin axioms – self-ownership and "homesteading" – stem the justification for the entire system of property rights titles in a free-market society. This system establishes the right of every man to his own person, the right of donation, of bequest (and, concomitantly, the right to receive the bequest or inheritance), and the right of contractual exchange of property titles."

      Kinsella is partially right in one respect in that he calls Rothbard "confused", I wouldn't use that word choice, but I would agree that Rothbard doesn't seem consistent in the area of IP.

      Make no mistake, Rothbard struggled in this area too and from my understanding put out a request for comments on the whole concept of the implications surrounding recording technology(VHS/Beta) on the rights of content producers....which has direct relationship to ongoing difficulties today.

  6. Thanks Nick & to all:

    I hate the word “property,” used to establish equivalence where there is none. We recognize such by qualifying adjectives yet the qualifier is often dropped & debate proceeds w/ “property” as though all are one, knowing there are different types & laws.

    My understanding: RW says IP is property. Block [Kinsella?] says Nope!

    Soln: “Property” is obviously too broad as there is disagreement. Pick a more basic thing where there is agreement, e.g. define a “writing.” No word problems. Proceed w/ justification for protections (limitations on others). One may think of any statements which apply to a ranch & worded, sometimes exactly, for a writing, but “it's like walking on my grass” does not apply & only muddies.

    Then proceed w/ the next “thing.”

    We should use unique words: Hardstuff (real property), Writings (for, well writings), Symbols (TM thingies), Machines (hardware patents), Nerdworks (software if you insist they are not writings), Pics (images). . . Each w/ separate concepts, definitions & rules.

    The UT-Austin math dept was (when there) split into Pure & Applied (my study) Math. The Pure was the RL Moore School. No texts. Start with the few basic axioms (only a few required for the entirety of mathematics), & the class independently discovers math. Without texts & known discoveries, they covered but a fraction of what we did, but it was not to teach math as much as how to think – though all advanced math teaches how to think.

    Math texts are good b/c theorems are without argument. IP has no absolute truths & much disagreement so the RL Moore method is better – start w/ a few “axioms” (basics upon which we agree & “property” is not basic) & develop therefrom. A statement must stand on its own merits regardless of source (Rothbard or the boy next door) as it applies for each type to (1) Definition, (2) Justification, & (3) Rules. A source is named only for credit (good idea, but I didn't think of it) – the statements must self-stand.