In Jeff Tucker's superb article If You Believe in IP, How Do You Teach Others?, he notes Rand's increasing focus on exalting the creator and elevating "intellectual rights" to such a height that they totally trump real rights. This is no exaggeration. As I noted in Against Intellectual Property, Rand actually, incredibly said that "patents are the heart and core of property rights." See also my post Inventors are Like Unto .... GODS....., noting Objectivist IP attorney Murray Franck approvingly repeating this quote: "intellectual property is after all the only absolute possession in the world."

So, yes, Objectivists focus on the creation of value, and thus in rights in value, and explicitly drop the connection between property rights and scarcity. As I note in footnote 76 of Against Intellectual Property, Objectivist David Kelley wrote:

Property rights are required because man needs to support his life by the use of his reason. The primary task in this regard is to create values that satisfy human needs, rather than relying on what we find in nature, as animals do. . . . [T]he essential basis of property rights lies in the phenomenon of creating value. . . . Scarcity becomes a relevant issue when we consider the use of things in nature, such as land, as inputs to the process of creating value. As a general rule, I would say that two conditions are required in order to appropriate things in nature and make them one's property: (1) one must put them to some productive use, and (2) that productive use must require exclusive control over them, i.e., the right to exclude others. . . . Condition (2) holds only when the resource is scarce. But for things that one has created, such as a new product, one's act of creation is the source of the right, regardless of scarcity. [emphasis added]

Letter on Intellectual Property Rights, IOS Journal 5, no. 2 (June 1995), pp. 12-13 (including: David Kelley, "Response to Kinsella," IOS Journal 5, no. 2 (June 1995), p. 13; and Murray I. Franck, "Intellectual and Personality Property," IOS Journal 5, no. 3 September 1995), p. 7.

Thus, Objectivists will talk about man creating values. For them "a value" is a thing that exists; it's what you "create". For the Austrian and Austro-libertarian, you don't talk about "a value" as if it's an existing thing that you create. I don't make a value. For us, it's more of a verb: we value things as ends or as means to ends. We can make something more valuable by transforming it, but we do not create new property when we do this. As discussed in Intellectual Property and Libertarianism, creation is an important means of increasing wealth. As Hoppe has observed,

One can acquire and increase wealth either through homesteading, production and contractual exchange, or by expropriating and exploiting homesteaders, producers, or contractual exchangers. There are no other ways. [Hans-Hermann Hoppe, "Banking, Nation States and International Politics: A Sociological Reconstruction of the Present Economic Order," Review of Austrian Economics 4 (1990): pp. 55-87, p. 60. Emphasis added.]

While production or creation may be a means of gaining "wealth," it is not an independent source of ownership or rights. Production is not the creation of new matter; it is the transformation of things from one form to another the transformation of things someone already owns, either the producer or someone else.

By viewing "values" as things that we create, Objectivists then think there should be property rights in values. They are things, after all, right? But this is a fundamental mistake. As I noted in Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors, a common mistaken belief is that one has a property right in the value, as opposed to the physical integrity of, one's property. For elaboration, see pp. 139-141 of Hoppe's A Theory of Socialism and Capitalism; also see my comments re same to Patents and Utilitarian Thinking. This assumption sneaks into or lies at the basis of many fallacious notions of property rights, such as the idea that there is a right to a reputation because it can have value. It ties in with the (especially Randian) notion of "creation" as the source of rights, and the confusing admixture of the "labor" idea, when we talk about using our labor to "create" things of "value" (like reputations, inventions, works of art). As Hoppe notes in The Economics and Ethics of Private Property:

According to this understanding of private property, property ownership means the exclusive control of a particular person over specific physical objects and spaces. Conversely, property rights invasion means the uninvited physical damage or diminution of things and territories owned by other persons. In contrast, a widely held view holds that the damage or diminution of the value (or price) of someone's property also constitutes a punishable offense.As far as the (in)compatibility of both positions is concerned, it is easy to recognize that nearly every action of an individual can alter the value (price) of someone else's property. For example, when person A enters the labor or the marriage market, this may change the value of B in these markets. And when A changes his relative valuations of beer and bread, or if A himself decides to become a brewer or baker, this changes the value of the property of other brewers and bakers. According to the view that value damage constitutes a rights violation, A would be committing a punishable offense vis-à-vis brewers or bakers. If A is guilty, then B and the brewers and bakers must have the right to defend themselves against A's actions, and their defensive actions can only consist of physical invasions of A and his property. B must be permitted to physically prohibit A from entering the labor or marriage market; the brewers and bakers must be permitted to physically prevent A from spending his money as he sees fit. However, in this case the physical damage or diminution of the property of others cannot be viewed as a punishable offense. Since physical invasion and diminution are defensive actions, they are legitimate. Conversely, if physical damage and diminution constitute a rights violation, then B or the brewers and bakers do not have the right to defend themselves against A's actions, for his actions - his entering of the labor and marriage market, his altered evaluation of beer and bread, or his opening of a brewery or bakery - do not affect B's bodily integrity or the physical integrity of the property of brewers or bakers. If they physically defend themselves nonetheless, then the right to defense would lie with A. In that case, however, it can not be regarded as a punishable offense if one alters the value of other people's property. A third possibility does not exist.

Both ideas of property rights are not only incompatible, however. The alternative view - that one could be the owner of the value or price of scarce goods - is indefensible. While a person has control over whether or not his actions will change the physical properties of another's property, he has no control over whether or not his actions affect the value (or price) of another's property. This is determined by other individuals and their evaluations. Consequently, it would be impossible to know in advance whether or not one's planned actions were legitimate. The entire population would have to be interrogated to assure that one's actions would not damage the value of someone else's property, and one could not begin to act until a universal consensus had been reached. Mankind would die out long before this assumption could ever be fulfilled.

Moreover, the assertion that one has a property right in the value of things involves a contradiction, for in order to claim this proposition to be valid - universally agreeable - it would have to be assumed that it is permissible to act before agreement is reached. Otherwise, it would be impossible to ever propose anything However, if one is permitted to assert a proposition - and no one could deny this without running into contradictions - then this is only possible because physical property borders exist, i.e., borders which everyone can recognize and ascertain independently and in complete ignorance of others' subjective valuations.

Rand did have insights that militated against property rights in "values"; as she once wrote:

The power to rearrange the combinations of natural elements is the only creative power man possesses. It is an enormous and glorious power and it is the only meaning of the concept "creative." "Creation" does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. "Creation" means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before.

She should have realized that this means there cannot be property rights in value since this would have to mean property rights in arrangements or patterns, which would then give the owner of the arrangement rights in other people's already-owned property. If she had kept her focus on the fact that rearranging already-existing property can indeed make that property more valuable, she would have realized that creation (rearrangement) is not an independent source of property rights: if you rearrange your own property, even if this makes it more valuable, you already owned the property that you have rearranged (made more valuable). Yet this does not give you rights in other people's property. You can re-word the Randian view as follows: if you make your property more valuable, it gives you additional property rights--the right to prevent other people from making their own property more valuable. And this makes it all the more obviously flawed.

This is where the Misesian approach to subjectivist value makes sense: things have value to a valuer; values do not exist independently as free-floating things that can themselves be owned. And again, Rand should have recognized this; e.g., she once wrote, "Material objects as such have neither value nor disvalue; they acquire value-significance only in regard to a living being particularly, in regard to serving or hindering man's goals." (For more on the compatibility between Objectivism and Austrian economics, see Mises and Rand (and Rothbard); Randian Hoppe(?), Austrian Rand(?).) So she should have realized that if rearranging owned property makes the owner or potential buyers value the object more, it does not mean there is any additional thing created for which we need to find an owner.

I think a similar mistake is made by Tibor Machan. Rand slips into thinking of values as ownable things because she thinks of values as created things, rather than thinking of it as a verb: people value things (and demonstrate this preference or valuing in action). I'm sure Machan would disagree with my way or framing his argument, but his argument, to me, seems to say that if you can have a concept for some"thing", or a name or word for "it," then it's an ontological "type of thing," and after all, if you create this thing, why shouldn't you be "its" owner? The problem (For more on this, see New Working Paper: Machan on IP; Owning Thoughts and Labor; this comment to "Trademark and Fraud"; Libertarian Creationism; also Elaborations on Randian IP and Objectivists on IP.)

In my post An Open Letter to Leftist Opponents of Intellectual Property: On IP and the Support of the State, I noted that both conservative and libertarian IP advocates, and leftist IP opponents, all accept the idea that IP is a type of property right. The leftists oppose IP for this reason--because they are opposed to private property rights; and the libertarians favor IP because they are proponets of property rights. I noted Richard Stallman and Eben Moglen as examples of the former.

I just listened to Moglen's speech below (google video link). He's smart and has some good insights and criticisms here and there. But, although some hail the speech as "absolutely brilliant," Moglen seems has no coherent underlying or principled theory other than vague anti-corporatism and an inconsistent belief in "free speech" combined with the idea that in today's age, this means free software, almost free hardware, and free, unlimited bandwidth--he says this is everyone's "birthright" (as socialist Finland believes, too--it recently enacted legislation making broadband access a legal right). I didn't jot down all the problems I noted when I listened to it, but, for example, he opposes regulating the EM spectrum as a property right--he seems to think it has been treated as private property since the federal government nationalized it decades ago, and he seems not to realize that despite technological advances there is of course still scarcity and thus the need for property rights; he seems to be in favor of copyright, and even some form of patent (if I did not misunderstand his comments); he speaks of upholding the Jeffersonian goals of the Constitution's IP clauses, which is both naive and positivistic; he tosses off confused comments about how the nature of economics has changed. He is rightly extremely cynical about the corruption and incompetence of Congress, even though he does not seem to oppose the state on principle or even its IP law and its positivistic Constitution, and even though he seems to want to trust the same state to provide everyone with unlimited, free bandwidth as their "birthright", and to use the power of the state to outlaw the charging of price for bandwidth services (in this he seems to go beyond even the net neutrality advocates goals).

If only the leftist opponents of IP would shore up their views with a more realistic view of politics and the nature of the state and a better appreciation for the indispensability of private property rights and Austrian economics.

(google video link)

[Mises cross-post; SK cross-post]

As I noted here, I and others have been arguing the merits of IP law with patent attorney Gene Quinn on his blog at Reality Check: Anti-Patent Patent Musings Simply Bizarre and Responding to Critics: My View on Patents & Innovation. He's laid down a challenge to debate about IP:

I challenge anyone to a debate on this topic anywhere, at any time, to be moderated by a mutually agreed panel or moderator. I know as well as everyone here that I will never be taken up on that offer. I wonder why? If I am so stupid and irresponsible and ignorant then someone take me up and prove to the world I am as such. Of course there will be no takers because in a true debate none of the nay-sayers stand any chance and would be exposed for what they truly are. Nevertheless, the challenge is made. I am sure the silence will be deafening. Or wait, even better… the response will be "there is no point in debating you because you are ." We all know that is what they are going to say, and rational people will understand that to be nothing more than cowardice.

I would be happy to debate Mr. Quinn. What I'm thinking is that we could do an Internet debate, under the auspices of a suitable institution, with a moderator, with audio and video, open to a live, world-wide audience. If anyone has any ideas or suggestions, let me know.

[Mises post; SK post]

Against Intellectual Property has been been translated into Portugese (Contra a Propriedade Intelectual) by Rafael Hotz, of the Instituto Ludwig von Mises Brasil. It was previously translated into Spanish, Polish, and Georgian.

The issue of private property rights in the EM spectrum (airwaves) arises occasionally. To my knowledge there is not much systematic work on this topic; the David Kelley & Roger Donway's 1985 monograph Laissez Parler: Freedom in the Electronic Media remains the best work on this, to my knowledge; and see also the Rothbard quotes appended below. (And, depressingly, almost every new libertarian discussion about this seems ignorant of this work; young libertarians seem ever-determined to re-invent the wheel and/or weigh in before they've done their homework.)

One Silas Barta keeps claiming that those who support property rights in airwaves cannot object to property rights in IP (see here, here, here, here, and here). My response to this argument, in brief, is: (a) so what? If this were so, then that just means we cannot support property rights in airwaves; (b) and I disagree with this since the airwaves are scarce resources; (c) the libertarian case for property in airwaves is not settled or very developed yet.

As to (c), again, I refer to Kelley and Donway's monograph. As I have maintained for years, I lean in the direction indicated by Kelley and Donway--that individuals could on the free market homestead EM spectra. Let me briefly outline how I think this could work in a free market. First, let me note the argument of those who object on the grounds that EM frequencies are mere numbers. But a given "airwave" is basically a bandwidth of radio frequencies over a given limited volume of the earth's surface. Radio waves are electromagnetic waves that propagate at the speed of light (they are light; visible light is just one portion of the EM spectrum) through space. A signal can be transmitted by sending a modulated signal at a given wavelength (wavelength is inverse to frequency). For example AM means amplitude modulation: a given signal is modulated by varying its amplitude (magnitude). In FM, the frequency is modulated. It is impossible to have a perfectly precise (narrow) wavelength; when you emit a signal it is at a "center" wavelenght but extends to the "sides" to some degree, called the bandwidth. So a given broadcaster might send a radio signal over a certain bandwidth (set of wavelengths) surrounding a center wavelength or frequency such as 87.5MHz.

Now the case for property in airwaves is basically this, as I see it. It is based on the basic idea of homesteading (see my What Libertarianism Is). Under this approach, every scarce resource--things that can be contested; rivalrous things; resources that have exclusive use, so that use by me excludes use by you, and so on--is assigned an owner; that owner is the person who first appropriated or used the property in an embordering way--that is as an owner. It's the first person to erect publicly visible boundaries that others can respect and see; he has a better claim to the resource than any latecomer.

Note that this approach implies that the type of use made of and the type of borders established for a given resource determine the scope and nature of property rights. Property rights in bodies are different than property rights in land and in cows and in an apple. One type of property right is an easement (servitude, in the civil law). Say people routinely walk over a path from point A (their village) to point B (watering hole). You can say they have homesteaded at least that use of the propety. If someone else builds a home there, they have to let the easement continue. A similar case can be made for airways ("tunnels" in the sky that airplanes pass thru) and shipping lanes.

Now, why does it have to be an easement over walking-space on land on the earth's surface, established by the passage of human bodies? Why can't it be an easement over the airwaves (viewed as a type of volume of space with respect to a given bandwidth), established by the passages of EM waves? After all, EM waves are physical, and the airwave/spectrum used is a scarce resource like a path on land is. It's scarce because broadcaster 1 can't use the spectrum if broadcaster 2 sends a transmission over the same carrier channel in the same physical region; there is interference. So: the idea is that the first broadcaster to use a given bandwidth in a given region would be regarded as having homesteaded this airwave or EM spectrum. Others who broadcast on it would be viewed as trespassers. [Incidentally, the reason transmission of an EM wave for information-signalling purposes is not normally trespass even though the waves pass through others' bodies is that it does not interfere with their use of their bodies; for more on this approach to "invasion" see Rothbard's classic air pollution article; by contrast, aiming high-intensity, coherent, power-carrying EM radiation--a laser beam--at someone could be aggression, since it could affect the physical integrity of their body or other property.]

I tentatively lean in favor of this argument. I suspect this is the type of argument, and practical use, that would tend to win out in a decentralized, property-respecting, dispute-settling society. But I am not 100% sure.

A final note. This type of situation is not analogous to IP because there is no "idea space" that is scarce and homesteadable. Instead the IP advocates want to install property rights in "the right to make a greater profit by virtue of artificial imposed scarcity," something like this.

A few other discussions of this can be found here: B.K. Marcus, The Spectrum Should Be Private Property: The Economics, History, and Future of Wireless Technology; and comments here: http://blog.mises.org/archives/005577.asp#comment-101581; http://blog.mises.org/archives/006930.asp#comment-123893; and http://blog.mises.org/archives/007561.asp#comment-133579; http://blog.mises.org/archives/007561.asp.

Update: Rothbard was also, as usual, far ahead on this issue. Some of his comments on this are below:

From Man, Economy, and State:

Furthermore, if we understand by "air" the medium for the transmission of such things as radio waves and television images, there is only a limited quantity of wave lengths available for radio and for television purposes. This scarce factor is appropriable and ownable by man. In a free society, ownership of these channels would accrue to individuals just like that of land or animals: the first users obtain the property. The first user, Jones, of the wave length of 1,000 kilocycles, would be the absolute owner of this length for his wave area, and it will be his right to continue us­ing it, to abandon it, to sell it, etc. Anyone else who set up a transmitter on the owner's wave length would be as guilty of in­vasion of another's property right as a trespasser on someone else's land or a thief of someone else's livestock.[39][40]

... [39]If a channel has to be a certain number of wave lengths in width in order to permit clear transmission, then the property would accrue to the first user, in terms of such width.

[40]Professor Coase has demonstrated that Federal ownership of airwaves was arrogated, in the 1920's, not so much to alleviate a preceding "chaos," as to forestall this very acquisition of private property rights in air waves, which the courts were in the process of establishing according to common law principles. Ronald H. Coase, "The Federal Communications Com­mission," Journal of Law and Economics, October, 1959, pp. 5, 30-32.

[41]It is rapidly becoming evident that air lanes for planes are becoming scarce and, in a free society, would be owned by first users--thus obviating a great many plane crashes.

From Law, Property Rights, and Air Pollution:

The theory of homestead easements discussed earlier would require no restriction upon radio transmissions or on people's low-level radiation. In the case of radio transmissions, Smith's ownership of land and all of its appurtenances does not entitle him to own all radio waves passing over and across his land, for Smith has not homesteaded or transmitted on radio frequencies here. Hence, Jones, who transmits a wave on, say, 1200 kilohertz, homesteads the ownership of that wave as far as it travels, even if it travels across Smith's property. If Smith tries to interfere with or otherwise disrupt Jones's transmissions, he is guilty of interfering with Jones's just property.[61]

Only if the radio transmissions are proven to be harmful to Smith's person beyond a reasonable doubt should Jones's activities be subject to injunction. The same type of argument, of course, applies to radiation transmissions.

... [61] During the 1920s, the courts were working out precisely such a system of homesteaded private property rights in airwave frequencies. It is because such a private property structure was evolving that Secretary of Commerce Hoover pushed through the Radio Act of 1927, nationalizing ownership of the airwaves. See Ronald H. Coase, "The Federal Communications Commission," Journal of Law and Economics 2 (October 1959): 1-40. For a modern study of how such frequencies could be allocated, see A. De Vany, et al., A Property System Approach to the Electromagnetic Spectrum (San Francisco: Cato Institute, 1980).

And here:

in the courts' determination of radio frequency ownership in the 1920s, the extent of ownership depended on the technological unit of the radio wave -- its width on the electromagnetic spectrum so that another wave would not interfere with the signal, and its length over space. The ownership of the frequency then was determined by width, length, and location. ... American land settlement is a history of grappling, often unsuccessfully, with the size of the homestead unit.

See also Toward Property Rights in Spectrum: The Difficult Policy Choices Ahead, by Dale Hatfield and Phil Weiser (Cato 2006); and Milton Mueller, Property Rights In Radio Communication: The Key to the Reform of Telecommunications Regulation (Cato 1982).

[Mises and StephanKinsella.com cross-posts]

As reported by Roderick Long:

The Molinari Society will be holding its sixth annual Symposium in conjunction with the Eastern Division of the American Philosophical Association in New York City, December 27-30, 2009. Here's the latest schedule info:

GVIII-5. Tuesday, 29 December 2009, 11:15 a.m.-1:15 p.m. Molinari Society Symposium: "Intellectual Property: Is it Legitimate?" New York Marriott Marquis, 1535 Broadway, Room TBA chair: TBA

presenters: Bob Schaefer (independent scholar): "Response to Kinsella: A Praxeological Look at Intellectual Property Rights" G. Nazan Bedirhanoğlu (SUNY Binghamton): "History of the Reification of the Intellect"

commentators: Charles Johnson (Molinari Institute) Roderick T. Long (Auburn University) Jennifer McKitrick (University of Nebraska-Lincoln)

***

Interesting--I wonder if that the same Robert Schaeffer, skeptic, UFO-debunker, Randian (?), and author of Resentment Against Achievement? We shall have to await Roderick's report!

[Cross-posted at StephanKinsella.com]

I presented a speech last week at Mises University 2009 on "Intellectual Property and Libertarianism." The audio is available here; the video will be available later this month. This presentation was different than others I've done in the past on IP, partly because, as it for students, I tried to start from the ground up, and also to integrate the proper approach to IP with the essential principles of libertarian political philosophy. Thus part of the talk summarized my view of what libertarianism is, and then applied it to IP; this summary view of the libertarian framework was distilled from a more elaborated version, contained my chapter What Libertarianism Is, which appeared in the recently published Hoppe Festschrift, Property, Freedom and Society. An article based on my speech is forthcoming in Liberty magazine.

[Cross-posted at StephanKinsella.com]

At a recent Foundation for Economic Education seminar, a debate over intellectual "property" broke out spontaneously among Ivan Pongracic (second from right), Paul Cwik (second from left), and me (left).

Interesting blog musings on IP by Vincent McAffrey, in "Newton's Fig."

I cannot tell whether he is anti-IP or not, but he seems to be leaning that way.

Some thoughts:

The real justification for IP protection is not practical, but moral: stealing another's work is THEFT, and theft is wrong.

***If you believe that copyright is justified by appeal to some moral principle we cannot argue as we are not moral philosophers. The U.S. Constitution agrees with us however: the only justification is that it increases innovation and creation. The issue of theft is a red herring. Copying is not stealing. Why is it self-evident that because I have created a unique work I should have the right to tell other people what to do with it? Why do I have a right to tell other people from whom they may buy things?

B&L list numerous examples of works that brought their authors remunerative return in the absence of copyright laws...but [in the absence of copyright] struggling writers would be pushed from barely eking out an existence into giving up writing...

***Is it true that "struggling writers" will be pushed from barely eking out an existence? Do we care? After all if people do not care much for these works, then nobody will much care if they aren't created. More to the point, "struggling writers" do not benefit a great deal from copyright, and do not face much threat from "piracy". The technology that makes it easy to copy also creates great opportunities for "struggling writers" and the internet has been a boon for nascent creators of music and comic strips.

[In the discussion of the amount of money that would be earned by J. K. Rowling without copyright] one might ask, [what] is the relevance of the fact that Rowling worked as a "part-time French teacher"?

***The relevance is that there is no economic reason to pay her more than necessary to convince her to devote her time to writing books rather than her best alternative activity.

Many software writers choose to make their work available for free. So what? I don't belong to the cadre who claim that such a choice is subversive in some way, but this is not the equivalent of saying, "Therefore nobody should be paid for copies of their work whether they want to be or not."

***The point of course is that software writers earn money by giving software away for free. We are not opposed to software writers earning a living; in fact we are strongly in favor of it.

The actual worth of a work can be calculated as the sum of what each person on earth would willingly pay for a copy, if it could be obtained in no other way...

***This argument is pure theory, and unfortunately defective theory. For most reasonable specifications of production technologies, adding up the total contribution of each individual results in a number larger than the social total. A simple example suffices: there are two of us. There is a book that cannot be produced without both of our contributions. The book is worth $100. By the calculation above I have created a value of $100 which is what everyone in the world is willing to pay for something that will not exist without my effort. Ditto for you. So apparently the total payments for a book worth $100 are to be $200. Good work if you can get it. This is a very common confusion among non-economists. Fortunately from an economic perspective it is not necessary to pay everyone the total social value of everything that could not be accomplished without their contribution; it is necessary only to pay them the marginal cost of their effort (their "opportunity cost").

Full disclosure: I am a software author, whose work is available online for a price. It would be possible for any number of clever people to hack my program's security, and thus I have a personal reason for resenting any suggestion that the law should encourage such behavior. I can't help but wonder whether most opposition to IP protection comes from people who have produced nothing of value and who feel entitled to steal from anybody who has. That kind of attitude represents, to my mind, the decay of society, the equivalent of governments believing they are entitled to tax without limit from the productive because of the alleged "need" of recipients for the stolen loot.

***I also am a software author whose work is available online for a price. A number of clever people have hacked my program and made improvements, and I am very grateful to them for doing so.