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Against Monopoly

defending the right to innovate

Philosophy of IP

Monopoly corrupts. Absolute monopoly corrupts absolutely.





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On J. Neil Schulman's Logorights

On GMO patent infestation, Kent Hastings comments on my IP views and those of J. Neil Schulman. Schulman responded:
My article "Informational Property: Logorights" begins by specifically disclaiming any state grants of monopoly. The concept stands or falls on its natural-property-rights arguments. Neither Samuel Edward Konkin III or Stephan Kinsella or anyone else has ever successfully answered the challenge I raised in my article, that without the identity of a thing being real enough to make it claimable as property, there would be nothing identifiable existing to be copied in the first place.

This is not arcane. It's just being pointedly ignored and Kinsella's attempts to change the subject don't make me forget what I wrote.

My response is as follows [my other comments on Schulman's logorights idea may be found in Thoughts on Intellectual Property, Scarcity, Labor-ownership, Metaphors, and Lockean Homesteading; Renaming Intellectual Property; and pp. 16, 26 et pass. of my Against Intellectual Property]:
Neil, I said your term "logorights" is somewhat arcane, not your theory, and there was no disrespect implied.

I think you are just wrong to assume that "having an identity" is a sufficient condition for being subject to property rights.

Consider: one has no property right the value of one's property, as Hoppe and Rothbard have argued (see Sheldon Richman on Intellectual Property versus Liberty); and likewise, one has no property right in the "identity" of one's property.

The reason is that owning value, patterns, identify gives you an ownership right in others' already-owned property. Saying you own the "identity" of a thing you own is another way of saying you own the pattern by which it is arranged-which is a disguised way of saying you have ownership rights in things everyone else owns. The standard Lockean account of property accepted by most libertarians says that the person who appropriates a previously unowned scarce resource becomes its owner. The IP advocate, of which you are one, says that if A thinks of a unique way to use his property or a unique pattern to impose on his own property, this act of intellectual innovation magically gives him partial ownership rights in property already owned by others. It lets you tell B how he can use his own property, even though B is the appropriator and by Lockean principles only B should be the owner. Granting A an IP right just means some of B's rights of control are transferred to A-it's a transfer of wealth or property, and it's incompatible with libertarian property rights.

The mistake Rand made was thinking "anything you create" is property, without first asking if the thing created is the type of thing that is subject to property in the first place. In fact, creation is neither necessary nor sufficient since if you create some new pattern using others' property you are not its owner; and if you impose a new pattern on property you own, then you own the transformed thing since you already owned the stuff of which it's made. A focus on creation as a source of ownership is the mistake made here. Creation is a source of wealth, sure, but not of ownership, since you can only create using things you already own.

Tibor Machan makes a similar mistake to your "identify" view when he assumes that many "ontological" types of things can be property-the mistake is in assuming that the way we conceptually and terminologically understand the world has some metaphysical basis that translates into property rights. By this view any concept we come up with to "identify" things that is successful, has magically created a new class of property. I find the concept "poem" useful-it is conceptually valid.. poems "have" "identity"-voila, they must be property!

I don't agree with this way of making rights depend on what concepts we have or how we identify and understand things in the world. Just because we can call something by a word, or call it a "thing," does not mean it is ownable. In fact, all ownership rights are enforced in physical terms against scarce resources; which means that granting rights in anything else has to undermine and dilute real rights in real things.

[Cross-posted on SK and Mises Blog]


Comments

Should Patents be Abolished? - Scarcity

There have been a number of suggestions that patent should be scaled back or outright abolished. For instance, Stephen Kinsella has written a book, Against Intellectual Property, and Tom Palmer has written and article, "Are Patents and Copyright Morally Justified? The Philosophy of Property Rights and Ideal Objects." Many of these critiques suggest that property rights are based on scarcity and intellectual property rights are not subject to scarcity.

The article "Scarcity - Does it Prove Intellectual Property is Unjustified?" (http://hallingblog.com/2009/06/22/scarcity-%e2%80%93-does-it-prove-intellectual-property-is-unjustified/) suggests that property rights are not based on scarcity but on the "labor theory of property" first proposed by John Locke. The labor theory of property explains criminal law, how property is to be allocated and intellectual property law. The "scarcity" theory of private property does not explain criminal law and does not explain how property should be allocated. According to its proponents it does explain why there should not be intellectual property law. Trading scarcity for the labor theory of property is like trading the theory that "what goes up must come down" for Newton's Law of gravity. The fact of the matter is that the proponents of scarcity have confused cause with effect. A system of private property results in efficient allocation of resource, but it is not the reason for private property - it is the effect of private property.

Is the conception of ideas and inventions subject to scarcity? See http://hallingblog.com/2009/06/25/scarcity-and-intellectual-property-empirical-evidence-for-inventions/

Is the distribution of ideas and invention (technology diffusion) subject to scarcity? See http://hallingblog.com/2009/06/25/scarcity-and-intellectual-property-empirical-evidence-of-adoptiondistribution-of-technology/

I just Dale Halling's blog article, and don't have time for a full response now, but will point out that Locke erred in claiming that a person owns his labor in addition to his tangible property. Rothbard followed Locke over this cliff, which I think is why he believed in copyright. Labor is an activity, so it can't be owned. The fruits of one's labor can be owned, but not the labor used to produce them. Sometime people loosely talk of a slave's labor being appropriated (or perhaps expropriated), but it's not the labor that is appropriated/expropriated, but the product of the labor. Of course, forcing a slave to work is a violation of the slave's natural right in his own body with all that implies. But labor isn't owned by anyone.

The "labor theory of property" sounds to me like a variation on the long-discredited labor theory of value. To quote a professor of mine, "I don't believe in the labor theory of value." Right on, prof.!

The problem here is that, even if the "labor theory of property" accounts for what we might call originary property titles, it certainly would not account for subsequent title transfers. So, for example, I own property, but didn't expend any labor to bring it into existence. Yet the property, like all property, is scarce, which is why it has value, unlike "free" goods (e.g., air, but not cooled or heated air), and will always be scarce. Property, be definition, is scarce and will never be anything but scarce. Indeed, scarcity is the sine qua non of property.

Bill:

Absolutely, the fruit of one's labor can be owned. If you write a song and store it on a computer, and someone then someone makes a copy of that song and takes that copy with them, they have violated the rights of the author and reduced the opportunity to the author of that song to sell the unique song since now the copier owns the same song. Having someone make copies of your unsold and unpublished works without penalty would certainly stifle creativity, as well as encourage others to do the same thing.

Rothbard and Locke were not always right, but they nailed this aspect of labor precisely.

The act you speak of cannot be done without unauthorised use of naturally scarce property. Such use already has penalties, so your hypothetical where it doesn't is groundless.
Last Anonymous:

When the act is making a copy of unique works that exist on a computer, where is the unauthorized use of naturally scarce property that would enact penalties? You realize that no one was ever convicted of making the copies of GNR's music, only posting that music on the internet.

Using the computer. The computer is naturally scarce property. The use of it was unauthorised.
Last Anonymous:

However, with the exception of the hacking laws broken, and the trespassing, the unauthorized use of a computer is otherwise not illegal. I agree with you that the act was immoral, and almost certainly illegal, but those crimes were relatively minor. There is no reasonable way to compensate someone for the loss of privacy.

So, outside of the laws that cover unauthorized use of a computer, there are no laws covering unauthorized use of a computer? I'm glad we've got that sorted out.
Last anonymous:

Hacking is defined as breaking protections on a computer to enter a computer. If the computer has no protections, then using the computer is not illegal. It is NOT illegal to use a protected computer, it is only illegal to break the protections.

Fundamentally, if you have secret information on your computer and took no steps to protect that information, except to put it on your private property, then a person accessing and copying that data has broken no laws with respect to the computer. Of course, the trespassing and breaking and entering charges would be there, but nothing with respect to the computer.

I am glad we got that out of the way.

That leaves only a very small window of unprotected computers that are on public property or otherwise publicly accessible. However, under those conditions, there would be no legal protections save perhaps copyright, as most if not all trade secret law requires reasonable measures to keep the information secret.
Last Anonymous:

I am not sure the point you are making. All I am saying is that if someone came on your private property and accessed your personal computer, and your computer was not password protected, and that person took information from that computer that only you had, the only laws that person broke were trespassing and possibly breaking and entering. That's it. It is not against the law to access someone's computer and take their personal information, unless that information is SSN or credit card information.

The point is your point doesn't make sense. Virtually all instances that you are concerned with involve the potential for multiple criminal charges already. The cases that couldn't already involve criminal charges wouldn't be protected by trade secret laws. Illegally obtaining credit card or social security information would also entail identity/credit fraud if it's going to be useful to the party that obtains those numbers, and if they don't engage in the act or enable someone else to, there wouldn't be any harm done.

Furthermore, I would think most computers have passwords, and even cracking a weak password would break a computing law. Even failing that, it may fall within the realm of conversion or some other property crime if a prosecuting attorney felt so inclined. As I've said from the beginning, a computer is naturally scarce property, and unauthorised use of said property is not legal.

Last Anonymous:

Let me try again.

You contend that use of a computer without authorization is not legal.

I contend that if your personal computer is sitting on a table, let's say in a library or a cafe, and you walk away from your computer to go find a reference or get a coffee, and your computer is unprotected by a password, and someone then copies all the files in a directory labeled, for instance, in-depth analysis of future trends in engineering and manufacturing, the person making those copies have broken no laws. None.

If they have, what law have they broken? Conversion possibly, but that is weak, to say the least. The "value" of the usage of the computer could be proven to be essentially zero since the computer was running and the owner wasn't even there. No one in law enforcement would ever prosecute, and a judge would laugh such a case out of court. So, where are we, with the exception of a violation of privacy? I see nothing that could be prosecuted or even get a cop to raise eyebrows.

You seem to be touting the invasion of privacy as the big concern, but such invasion of privacy is the same whether what is discovered is an "in-depth analysis of future trends in engineering and manufacturing" or "Spock x Edward Cullen fanfiction." People who have greater economic value in their secrets aren't deserving of more protection or privacy than others.
Last Anonymous:

I agree that whether the economic value of the secrets is greater or lesser is independent of whether people should be secure in their persons. The issue remains that privacy is an ephemeral concept that a number of people seem to hold as valueless. I contend that the right to privacy is one of the few rights we have left, and may be the ONLY natural right, and it is under attack from people who seem to think that it is okay for someone to make copies of information on other people's computers and post that information on the internet, regardless of whether it is music only they own, a love letter, or pictures of themselves with their blow-up doll. Once privacy is gone, what do we have left?

I find that position reasonable, but I think any laws regarding such a thing should be rooted at the personal level, not the industrial level, with the punishments and such being tuned mostly for that.
Honesty.


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