Do intellectual objects exist in the external world?
The nature of existence has plagued philosophers for eons. Physical
matter, external to our minds, appears self-evident. We see and feel
things, hear them, taste and smell them. We rely on our senses to
understand the nature of reality. It is no coincidence that the word
“sense” means both “a faculty by which the human body perceives an
external stimulus” and also “a judgment derived by reason”, as in “that
makes sense to me”. Claims that defy the senses do not make sense.
But is it enough to say that matter is self-evident? Or, as
immaterialist philosophers challenge, could not our sensory perception
of external reality be merely that – a perception? Is it “all in our
minds?” Can we prove the existence of matter? If so, how? And crucially
here, what happens if we then attempt the same proof for the existence
of intellectual objects? Do intellectual object really exist outside the
perception of each individual human mind?
Ludwig von Mises met and conquered the existentialist challenge with praxeology – the logic of human action.
The starting point of praxeology is a self-evident truth, the
cognition of action, that is, the cognition of the fact that there is
such a thing as consciously aiming at ends. [1]
The Mises Test of External Reality
A thing is real if it can condition the outcome of human events.
Humans act purposefully. To deny this would be a performative
contradiction, since the act of denial is purposeful. Only humans can
deny, so a denial of human action would actually represent a denial of
one’s own humanity, an impossibility. It is literally undeniable that
humans act purposefully. Mises then applies that fact to the question of
material existence, in “Human Action”, and a section titled “The
Reality of the External World”:
From the praxeological point of view it is not possible to question
the real existence of matter, of physical objects and of the external
world. Their reality is revealed by the fact that man is not omnipotent.
There is in the world something that offers resistance to the
realization of his wishes and desires. Any attempt to remove by a mere
fiat what annoys him and to substitute a state of affairs that suits him
better for a state of affairs that suits him less is vain. If he wants
to succeed, he must proceed according to methods that are adjusted to
the structure of something about which perception provides him with some
information. We may define the external world as the totality of all
those things and events that determine the feasibility or unfeasibility,
the success or failure, of human action.[2]
Clearly, intellectual objects can meet Mises’ conception of “things”
in the “external world”, because they can affect the success or failure
of people’s goals. For example, consider a book about automobile
repairs. The know-how contained in the book may have a major impact on
whether someone can successfully replace their carburetor, or just makes
a bigger mess of things. Mises continues making the case for external
reality:
The much discussed question whether physical objects can or cannot be
conceived as existing independently of the mind is vain. For thousands
of years the minds of physicians did not perceive germs and did not
divine their existence. But the success or failure of their endeavors to
preserve their patients’ health and lives depended on the way germs
influenced or did not influence the functioning of the patients’ bodily
organs. The germs were real because they conditioned the outcome of
events either by interfering or by not interfering, either by being
present in or by being absent from the field.[3]
From this we can derive “The Mises Test of External Reality”. A thing
is real if it can condition the outcome of human events. We ask whether
the thing may interfere or not interfere with some human endeavor,
depending on whether it is present in the situation or not. Note that
“present” does not necessarily mean physically present. Indeed,
Mises’ approach was to deliberately ignore physicality in proving the
existence of the world external to the human mind.
To run the test, let’s insert the Beatles song “Hey Jude” into Mises’ example:
The much discussed question whether intellectual objects can or
cannot be conceived as existing independently of the mind is vain. For
thousands of years the minds of musicians did not perceive the
combination of words and melody the defines the song “Hey Jude”. But the
success or failure of their endeavors to entertain audiences depended
on the way the music did or did not influence the emotional functioning
of the listeners. “Hey Jude” is real because it conditioned the outcome
of events either by interfering or by not interfering, either by being
present in or by being absent from the field.
Does “Hey Jude” condition the outcome of human events? I don’t refer
to any specific physical instance of Hey Jude, rather I refer to the
underlying pattern of language that defines the song itself. Suppose
Paul McCartney had written the song differently, with a different
melody, and different words. Would the outcome have been different? Yes,
the outcome would have been different.
The Beatles recorded hundreds of songs, including “Old Brown Shoe”
which immediately succeeded “Hey Jude” on the original album release.
“Old Brown Shoe” was not nearly successful at entertaining listeners as
was “Hey Jude”. Had “Hey Jude” been more poorly written, fewer people
would have recommended it to their friends, fewer radio stations would
have played it, and its overall influence would have been less.
“Old Brown Shoe” had the same physical manifestation as did “Hey
Jude”, because they were both embodied in the same original album. Yet
something about the pattern of information in “Hey Jude” conditioned
human events in a way that “Old Brown Shoe” did not. An intellectual
creation has the ability to condition the outcome of human events,
passes the Mises test, and therefore is a real thing.
By contracting, humans act as though IP exists
We know that intellectual objects exist because people act as though they exist.
In particular, people voluntarily contract to buy and sell intellectual
objects, such as movies, songs, games, and software. One may only
contract with that which is one’s own property. If intellectual objects
cannot be property, then we simply cannot make any sort of contract
about them at all.
People voluntarily agree to buy and sell things like movies, songs,
games and software. By contracting, people demonstrate their belief and
understanding that the pattern of information that defines the
intellectual object is rightful property. And overwhelmingly, people are
satisfied with the intellectual content that they purchase.
Imagine a world in which sellers are allowed to defraud buyers about
the intellectual content of their goods. This would seem to be a
decidedly non-libertarian situation. When customers buy intellectual
objects, we must ask what exactly it is they value. Obviously, it is the pattern of information, not the physical container.
Suppose I go online and order a DVD of the movie “Thor”. I pay the
agreed price, and a few days later a DVD arrives at my house. But
instead of “Thor”, it features reruns of “Gilligan’s Island”. Do I have a
legitimate complaint against the company that sold me the DVD? After
all, I ordered a DVD, and I got a DVD. The only difference between what I
contracted for and what I received is the pattern of 1’s and 0’s
encoded into the disc. In other words, the only distinction is the IP.
The physical property is identical, except for the pattern. In some
technical sense, the two discs could be said to be physically different,
but such would be completely irrelevant to human action. The only
humanly meaningful distinction between the two discs is the pattern of
information encoded. My satisfaction as a customer depends entirely on
the pattern of information I received, and nothing else.
In the above example, obviously, I have a legitimate complaint
against the seller of the DVD. The only theoretical basis for such
complaints is to assert a property right in the pattern of information
stored on a disc. Only property can be the subject of contract, one
cannot make contracts regarding that which one does not own.
Doesn’t IP require a physical container?
It is true but irrelevant that intellectual objects require physical
containers to be delivered. A movie arrives on a DVD or Blu-Ray disc,
computer software lives on your hard drive. But this does not mean that
only the physical object can be owned, as the IP opponents would have
it.
To demonstrate the physical differences between the two discs are
completely irrelevant, let’s consider a different hypothetical. Suppose I
go online and purchase a vacuum cleaner. Inside the vacuum cleaner is a
motor, and on the motor is a sticker that contains information about
the date of manufacture and so forth. Suppose I learn that the motor was
installed on a Tuesday, but I hate Tuesdays because it reminds me of
September 11.
Assuming the vacuum cleaner sucks up dirt correctly, do I have a
legitimate complaint against the company that sold me the vacuum? After
all, the pattern of information within the device is different than I
would prefer. In some technical sense, there is a physical difference
between a vacuum cleaner with “Tuesday” versus “Wednesday” on the motor
label. But such is irrelevant to human action. I have contracted to buy a
vacuum cleaner, and its use is to suck dirt up off my floor. I did not
contract regarding the pattern of information.
Concluding remarks on the Mises test
The fundamental point of the Mises test is to consider human
relevance. The same one pattern of information can be embodied on many
different types of physical media. And it is the pattern, not the
physical media, that matters. In this light, patterns of information
must be considered real, and ownable.
You have shown that information is real, that different sorts of
information can be distinguished from each other, and that information
is a good. You have not shown that it is rivalrous or ownable in the
practical sense (as opposed to the sense in which one can create
arbitrary enforcement mechanisms so that we can pretend it is ownable in
the usual way).
(I think your analysis has another problem, but I’ll save that for after I see how you deal with my objection above.)
Quoting from the last sentence, “patterns of information must be considered real, and ownable.”
You have made the case for “real.” You said nothing to support your conclusion of “ownable.”
Hmmm, should have made a note, I forgot my additional point.
“It is true but irrelevant that intellectual objects require physical
containers to be delivered. A movie arrives on a DVD or Blu-Ray disc,
computer software lives on your hard drive. But this does not mean that
only the physical object can be owned, as the IP opponents would have
it.”
Shouldn’t you produce an argument or explanation why this is the
case? Is the vacuum cleaner story supposed to help me understand why you
believe this? I don’t see the connection.
Are you saying “it is real, so it can be owned?” If so, why not own ideas, math, etc.?
Or maybe I just don’t get it? I need help to understand how your
vacuum cleaner story relates to the conclusion you want to draw. Usually
I understand your point and either agree or disagree. This I just don’t
understand.
“intellectually dishonest”
Say for the sake of argument that I agree and wish to mend my ways.
How would you have me honestly express my confusion regarding the
connection between the vacuum cleaner story and the conclusion that I
quoted?
Imagine a scenario. A tells B, “come to my backyard to see the
unicorn I have there.” B deduces that A is crazy or has evil intent, and
refuses. Has the unicorn conditioned the outcome?
I am trying to understand better what it means to condition the outcome of human events.
Dave, being real is one necessary element of rightful property, but not the only one.
Please review the definitions of intellectual space, matter, object,
and property I have given them to you previously, and they describe the
conditions under which intangible goods are / are not rightful property.
http://homesteadip.liberty.me/2014/05/26/definitions-of-key-terms/
Intellectual matter – that which can be understood through language
Intellectual object – an ascertainable, temporally stable and bounded
pattern of intellectual matter which can condition the outcome of human
events
Intellectual property – a non-trivial, homesteaded rivalrous
intellectual object that substantially functions as productive capacity
Ideas:
“Non-trivial”, yes, at least some. Not really sure what counts as trivial here.
“Homesteaded”, yes.
“Rivalrous”, yes, IF we use Alexander’s approach (100% of production).
“Intellectual object”, yes.
“Substantially functions as productive capacity”, depends on what we mean by “substantially”?
All production requires the use of numerous ideas. Maybe Alexander
should be paying royalties to the heirs of the guy who invented the
major scale, etc. Or maybe his non-standard use of the word “rivalrous”
is a problem?
Homesteading property (physical or intellectual) requires
transforming raw matter into usefulness, with borders sufficiently clear
to distinguish the object from its surroundings, and sufficiently
complex so as to be non trivial.
Asking how we separate ideas from songs is like asking how we
separate “iron” from “a bicycle factory made of iron”. There is no end
to the amount of raw material ( iron or language). By taking the raw
material and transforming it into a useful good ( a factory or a song)
one has homesteaded, and is the rightful owner of the object created,
and rightly made exclude others from its use.
“Homesteading property (physical or intellectual) requires[...]”
Are you saying ideas are all trivial? Or have unclear borders? Can’t ideas be homesteaded?
“Asking how we separate ideas from songs is like asking how we separate “iron” from “a bicycle factory made of iron”. ”
Okay, so how do we separate “iron” from “a bicycle factory made of iron?”
Why is an idea raw material and not a producer good? Even so, raw
materials are also property and can be owned. Ore in the ground can be
owned. The factory producer must own the iron used to construct the
factory. Why is this analogy more apt that say, a ton of iron and a
bicycle factory made of iron?
“There is no end to the amount of raw material ( iron or language).”
Not sure how this is relevant.
“By taking the raw material and transforming it into a useful good ( a
factory or a song) one has homesteaded, and is the rightful owner of
the object created, and rightly made exclude others from its use.”
Why would this not apply when the resulting useful good is an idea? Ideas are not useful? They are not goods?
Honestly Dave, you’re pretending to not know the difference
between iron lying dormant in a hillside, versus iron that has been
transformed into a factory.
Either you’re trolling, or unintelligent. Either way . . .
Forgive me for failing to make myself clear. I didn’t say there
was no difference, I just want you to state the difference in a way that
makes the analogy work. You say ideas should not be owned but songs
should. I asked why, you gave this analogy which actually does not work.
We are talking about ownership. Iron ore can be owned. Iron can be
owned. Factories made of iron can be owned. Songs can be owned. Ideas
cannot be owned. Please explain.
There is iron in a hillside. There is iron at the center of the
earth. There is iron on mars. There is iron on some planet in a galaxy
100,000 light years away. There is an infinite amount of iron in
existence. Truly infinite. And it is unowned. Iron only becomes owned
when it is transformed from raw matter into usefulness.
Individual words and ideas cannot be owned because they are trivial,
as I’ve explained. Similarly, some specks of dirt on the bottom of your
shoe cannot be owned. They are trivial.
At what point does an object (physical or intellectual) become
sufficiently useful enough to warrant property rights? It’s a great
question, and applies equally to all forms of property.
“Iron only becomes owned when it is transformed from raw matter into usefulness.”
The current system assigns ownership of mineral rights before the ore
is mined, before anyone knows whether there is anything there or not.
So, what was your point? That ideas are like the infinite iron in
existence which you claim is unowned? What about the ideas that have
been written down and used to build things or make new ideas or
accomplish things or predict things or argue against things? Are you
saying that the ideas in Mises’ Human Action, that you used to develop
your test, have not been homesteaded?
“Individual words and ideas cannot be owned because they are trivial, as I’ve explained.”
I must’ve missed it. Hmmm, quick google search turns up nothing, a few uses of “non-trivial”. Maybe you can provide a link?
“At what point does an object (physical or intellectual) become
sufficiently useful enough to warrant property rights? It’s a great
question, and applies equally to all forms of property.”
So calculus is too trivial, unimportant, and useless to bother with,
but your songs are not? Geometry? Addition and subtraction? Evolution?
The big bang? {brain explodes}
Calculus is raw matter. The English language is raw matter. Iron
is raw matter. Aluminum is raw mater. The moon is raw matter. The
concepts conveyed in “Human Action” are raw matter.
The exact pattern of information that comprises the words of “Human
Action” is a homesteaded producer good. Do you see the difference? I can
express concepts and ideas about love and forgiveness in a song. Those
ideas and concepts are not copyrightable. The exact pattern of words and
notes in my song is copyrightable.
You can discuss “Human Action” in your own words. You can write your
own book about praxeology. But you can’t copy “Human Action” without
permission.
I certainly don’t support statism, but our current system
demonstrates that we can make these distinctions. Not perfectly, but
well enough. I’m quite sure the free market could do a better job.
“The exact pattern of words and notes in my song is copyrightable.”
It can’t be quite as clear-cut as this, or Harrison would never have
lost the “My Sweet Lord/He’s so Fine” lawsuit. You’re not going to let
me off the hook if I change only one word, or even all of them, if the
music is still recognizable. Do you cut samplers and mash-up artists
slack if they use only a part of your pattern and combine it with new
patterns?
Is a novel that steals the plot of a previous book plagiarism only if it contains perfectly quoted passages?
Mathematical theorems are often published as exact patterns. Then a
new theorem may apply an old theorem as a single step. That step is an
abbreviation of the full pattern. In effect, the new theorem contains
all of the old theorem, all those steps are required and would have
needed to be developed independently if the old theorem did not already
exist.
“The concepts conveyed in “Human Action” are raw matter. The exact
pattern of information that comprises the words of “Human Action” is a
homesteaded producer good. Do you see the difference?”
I see, but does it make sense? I can take the “raw matter” of Mises’s
book and make my own, without violating copyright. How much more did
Harrison need to change “He’s so Fine” to cross the line to safety?
Dave, you are absolutely correct. Drawing property lines in
intellectual space requires arbitrary judgments. So does drawing
property lines in physical space.
For just 2 of many examples, look up “Easement” and “Adverse Possession”.
After how many days (weeks, years) does trespassing establish an easement?
Adverse possession must be “open and notorious”. What does that mean?
Can land be abandoned, thus returning to un-owned status? How much
time constitutes abandoned? What constitutes “use” of the land anyway?
How much land is allowable for a “setback”? 5 feet? 500 feet? 500 miles?
How deep to land rights go? 5 feet? To the center of the earth?
Etc, etc, etc, etc, etc, etc, etc
But what is the model that the arbitrary judgements are patching
up? It sounds indistinguishable from a sort of platonic realm of ideas,
where a song or a novel or whatever is a point in idea space, which can
be projected into copyrightable pattern space in many different ways
(arrangements, notations, formats, media, etc.) But then there is no
difference between me using a sample from your song in my mashup and a
mathematician using one of Euclid’s theorems or Rorty riffing on
Foucault. Copyright deals with the pattern, but a totally different
pattern can infringe. It is the object in idea space that is the same.
A “totally different pattern” does not infringe. When you sample
my song, then mix you own material in, my exact pattern is contained
within the emerging pattern. The infringement only involves the use of
my pattern.
The analogy is building a new structure, partly on your own land, but partly on my land.
Not that it matters, but we don’t actually know how many spatial
dimensions exist. Our current best guess is 10 (see string theory).
‘A “totally different pattern” does not infringe. ‘
What counts as the pattern? I could take an MP3 of your song, play
it, record the playback, make a new MP3 with bad quality, but still it
would be identifiable as your song, so a violation of copyright. But
none of the digital encoding in the files will match. Or is that not the
pattern that is copyrighted? Is the pattern something I can see, or
does it also exist only in intellectual space?
Hard to think of how to do this with a novel. If I went through and
paraphrased every sentence in the book, changed Harry Potter to Barry
Hotter, and Hogwarts to Warthogs, would it infringe or not? Some authors
threaten lawsuits against fan authors who appropriate characters or
settings. Hmmm…
What counts as the bicycle? I could take a bicycle of yours, ride
it, bend up the frame, file off the serial numbers, but still it would
be identifiable as your bike, so a violation property laws. But none of
the serial numbers will match. Or is that not the bicycle that is owned?
Is the bicycle something I can understand, or does it also exist only
in physcial space?
Maybe I’m being unclear again. The bad copy of the song infringes
the copyright. But where is the pattern? Because it infringes, it must
have the same pattern. But the MP3 encoding is unrecognizable, so that
is not the pattern. How do we find it?
You didn’t like the idea of considering an MP3 as a method for
reproducing the sound of a performance of a song. But maybe it works
better? Instead of copyrighting the MP3 file, you copyright the sound
waves produced by the MP3 file? Maybe a frequency analysis of the two
recordings would reveal the similarity our minds detect. Of course, that
wouldn’t be true for a new recording of a different performance of the
song with a different arrangement, though it would still infringe.
Dave, you’re now asking what types of evidence support a legal
finding in a property dispute. The answer includes, but is not limited
to, expert testimony.
Suppose a construction company built a structure and sold it to you,
with the understanding that it is engineered to be earthquake resistant.
A 5.4 magnitude earthquake occurs 40 miles away, and the structure
sustains $100,000 worth of damage. Who is liable for that repair, you or
the construction company?
You question whether the structure was or was not built according to
specs. Your X-Ray analysis shows a fracture along the 15XJN beam of 5.4
centimeters, and your expert says this proves poor design.
The construction company does ultrasound analysis and shows something else. Their expert says the building was designed well.
OK? We have the same kinds of technical problems with physical property.
I’m trying to understand intellectual space, not that other stuff.
The thing that gets copyrighted is a physical object, an MP3, or sheet
music, a CD, something like that. The encoding on that physical object
identifies one or more objects in intellectual space, depending on
whether it infringes or uses samples or whatever. Any physical instance
of the song is a projection of the song from intellectual space into
real space. Given a song in real space, we can project back into
intellectual space and identify the song, songs, or song fragments that
it represents.
But the dimensions are still a problem. We could normalize tempo and
key, things like that, so that the same song played in a different key
and tempo still maps to the same shape. Hm, if I play your song
backwards, is that the same shape in intellectual space? Or if I divide
it up into time slices and randomize the play order? Should that map to
the same shape? Listening to the performance would definitely be a
different experience, some ints lost and new things added. So
intersecting but not identical.
Real space has a limited number of dimensions, and they are all
deterministically correlated, so it makes sense to talk about a point in
space, or a sphere, and moving from point to point, defining boundaries
between areas, and an object occupying space. If I make a mash-up or
use sampling, I can trespass on 17 different properties in 17 widely
separated locations in intellectual space at the same time. At the same
time, I have homesteaded (though illegitimately perhaps) a new region of
intellectual space. The intellectual space analogy just doesn’t hold
up. It is incoherent, forced, works only for easy cases.
Intellectual space has a limited number of dimensions, and they
are all deterministically correlated, so it makes sense to talk about a
point in intellectual space, or a sphere, and moving from point to
point, defining boundaries between areas, and an object occupying space.
If my agents trespass or build structures on others land, I (through my
agents) can trespass on 17 different properties in 17 widely separated
locations in physical space at the same time. At the same time, I have
homesteaded (though illegitimately perhaps) a new structure in physical
space.
The intellectual space analogy thus does hold up, as I’ve
demonstrated by editing your hypothetical. It is coherent, well thought
out, and works well in theory, as well as the real world.
Next.
Maybe I don’t understand. Are you just saying intellectual space
is not continuous? Or diminesionless? How can a single object occupy 17
different places, and not occupy the space in between the 17?
My song exists at a unique location in intellectual space.
Visualize it as 3D space, because that is humanly relevant (all that
matters). 17 people can trespass on my property, if they are
disrespectful and cruel enough to do so.
The first to project a song from intellectual space to real space
is the homesteader. Others who follow without permission are
trespassers, Those who project a song using all or part of the
homesteaded song with permission are guests or tenants. Okay, that
works.
The nature of existence has plagued philosophers for eons.
Physical matter, external to our minds, appears self-evident. We see and feel
things, hear them, taste and smell them. We rely on our senses to understand
the nature of reality. It is no coincidence that the word “sense” means both “a
faculty by which the human body perceives an external stimulus” and also “a
judgment derived by reason”, as in “that makes sense to me”. Claims that defy
the senses do not make sense.
<![if !supportEmptyParas]> <![endif]>
But is it enough to say that matter is self-evident? Or, as
existentialists challenge, could not our sensory perception of external reality
be merely that – a perception? Is it “all in our minds?” Can we prove the
existence of matter? If so, how? And crucially here, what happens if we then
attempt the same proof for the existence of intellectual objects? Do
intellectual object really exist outside the perception of each individual
human mind?
<![if !supportEmptyParas]> <![endif]>
Ludwig von Mises met and conquered the existentialist
challenge with praxeology – the logic of human action.
<![if !supportEmptyParas]> <![endif]>
The starting point of praxeology is a self-evident truth, the
cognition of action, that is, the cognition of the fact that there is such a
thing as consciously aiming at ends. <![if !supportFootnotes]>[1]<![endif]>
A thing is real if it can condition the outcome of human
events.
<![if !supportEmptyParas]> <![endif]>
Humans act purposefully. To deny this
would be a performative contradiction, since the act of denial is purposeful.
Only humans can deny, so a denial of human action would actually represent a
denial of one’s own humanity, an impossibility. It is literally undeniable that
humans act purposefully.Mises
then applies that fact to the question of material existence, in “Human
Action”, anda section titled “The
Reality of the External World”:
<![if !supportEmptyParas]> <![endif]>
From the praxeological point of view it is not possible to
question the real existence of matter, of physical objects and of the external
world. Their reality is revealed by the fact that man is not omnipotent. There
is in the world something that offers resistance to the realization of his
wishes and desires. Any attempt to remove by a mere fiat what annoys him and to
substitute a state of affairs that suits him better for a state of affairs that
suits him less is vain. If he wants to succeed, he must proceed according to
methods that are adjusted to the structure of something about which perception
provides him with some information. We may define the external world as the
totality of all those things and events that determine the feasibility or
unfeasibility, the success or failure, of human action.<![if !supportFootnotes]>[2]<![endif]>
<![if !supportEmptyParas]> <![endif]>
Clearly, intellectual objects can meet
Mises’ conception of “things” in the “external world”, because they can affect
the success or failure of people’s goals. For example, consider a book about
automobile repairs. The know-how contained in the book may have a major impact
on whether someone can successfully replace their carburetor, or just makes a bigger
mess of things. Mises continues making the case for external reality:
<![if !supportEmptyParas]> <![endif]>
The much discussed question whether physical objects can or
cannot be conceived as existing independently of the mind is vain. For
thousands of years the minds of physicians did not perceive germs and did not
divine their existence. But the success or failure of their endeavors to
preserve their patients' health and lives depended on the way germs influenced
or did not influence the functioning of the patients' bodily organs. The germs
were real because they conditioned the outcome of events either by interfering
or by not interfering, either by being present in or by being absent from the
field.<![if !supportFootnotes]>[3]<![endif]>
<![if !supportEmptyParas]> <![endif]>
From this we can derive “The Mises Test of External
Reality”. A thing is real if it can condition the outcome of human events. We
ask whether the thing may interfere or not interfere with some human endeavor,
depending on whether it is present in the situation or not. Note that “present”
does not necessarily mean physically
present. Indeed, Mises’ approach was to deliberately ignore physicality in
proving the existence of the world external to the human mind.
<![if !supportEmptyParas]> <![endif]>
To run the test, let’s insert the
Beatles song “Hey Jude” into Mises’ example:
<![if !supportEmptyParas]> <![endif]>
The much discussed question whether intellectual objects can or
cannot be conceived as existing independently of the mind is vain. For
thousands of years the minds of musicians did not perceive the combination of
words and melody the defines the song“Hey Jude”. But the success or failure of their endeavors to entertain
audiences depended on the way the music did or did not influence the emotional
functioning of the listeners. “Hey Jude” is real because it conditioned the
outcome of events either by interfering or by not interfering, either by being
present in or by being absent from the field.
<![if !supportEmptyParas]> <![endif]>
Does “Hey Jude” condition the outcome of
human events? I don’t refer to any specific physical instance of Hey Jude,
rather I refer to the underlying pattern of language that defines the song
itself. Suppose Paul McCartney had written the song differently, with a
different melody, and different words. Would the outcome have been different?
Yes, the outcome would have been different.
<![if !supportEmptyParas]> <![endif]>
The Beatles recorded hundreds of songs,
including “Old Brown Shoe” which immediately succeeded “Hey Jude” on the
original album release. “Old Brown Shoe” was not nearly successful at
entertaining listeners as was “Hey Jude”. Had “Hey Jude” been more poorly
written, fewer people would have recommended it to their friends, fewer radio
stations would have played it, and its overall influence would have been less.
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“Old Brown Shoe” had the same physical
manifestation as did “Hey Jude”, because they were both embodied in the same
original album. Yet something about the pattern of information in “Hey Jude”
conditioned human events in a way that “Old Brown Shoe” did not. An
intellectual creation has the ability to condition the outcome of human events,
passes the Mises test, and therefore is a real thing.
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By contracting, humans act as though IP exists
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We know that
intellectual objects exist because people act as though they exist. In particular, people voluntarily contract to buy
and sell intellectual objects, such as movies, songs, games, and software. One
may only contract with that which is one’s own property. If intellectual
objects cannot be property, then we simply cannot make any sort of contract
about them at all.
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People voluntarily agree to buy and sell things like movies,
songs, games and software. By contracting, people demonstrate their belief and
understanding that the pattern of information that defines the intellectual
object is rightful property. And overwhelmingly, people are satisfied with the
intellectual content that they purchase.
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Imagine a world in which sellers are allowed to defraud
buyers about the intellectual content of their goods. This would seem to be a
decidedly non-libertarian situation. When customers buy intellectual objects,
we must ask what exactly it is they
value. Obviously, it is the pattern of information, not the physical container.
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Suppose I go online and order a DVD of the movie “Thor”. I
pay the agreed price, and a few days later a DVD arrives at my house. But
instead of “Thor”, it features reruns of “Gilligan’s Island”. Do I have a
legitimate complaint against the company that sold me the DVD? After all, I
ordered a DVD, and I got a DVD. The only difference between what I contracted
for and what I received is the pattern of 1’s and 0’s encoded into the disc. In
other words, the only distinction is the IP.
The physical property is identical, except for the pattern. In some technical
sense, the two discs could be said to be physically different, but such would
be completely irrelevant to human action. The only humanly meaningful
distinction between the two discs is the pattern of information encoded. My
satisfaction as a customer depends entirely on the pattern of information I
received, and nothing else.
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In the above example, obviously, I have a legitimate
complaint against the seller of the DVD. The only theoretical basis for such
complaints is to assert a property right in the pattern of information stored
on a disc. Only property can be the subject of contract, one cannot make
contracts regarding that which one does not own.
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Doesn’t IP require a physical container?
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It is true but irrelevant that intellectual objects require
physical containers to be delivered. A movie arrives on a DVD or Blu-Ray disc,
computer software lives on your hard drive. But this does not mean that only
the physical object can be owned, as the IP opponents would have it.
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To demonstrate the physical differences between the two
discs are completely irrelevant, let’s consider a different hypothetical.Suppose I go online and purchase a
vacuum cleaner. Inside the vacuum cleaner is a motor, and on the motor is a
sticker that contains information about the date of manufacture and so forth.
Suppose I learn that the motor was installed on a Tuesday, but I hate Tuesdays
because it reminds me of September 11.
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Assuming the vacuum cleaner sucks up dirt correctly, do I
have a legitimate complaint against the company that sold me the vacuum? After
all, the pattern of information within the device is different than I would
prefer. In some technical sense, there is a physical difference between a
vacuum cleaner with “Tuesday” versus “Wednesday” on the motor label. But such
is irrelevant to human action. I have contracted to buy a vacuum cleaner, and
its use is to suck dirt up off my floor. I did not contract regarding the
pattern of information.
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Concluding remarks on the Mises test
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The fundamental point of the Mises test is to consider human
relevance. The same one pattern of information can be embodied on many
different types of physical media. And it is the pattern, not the physical
media, that matters. In this light, patterns of information must be considered
real, and ownable.
Property is the foundation of any free and just human
society. “Property” is the name we give to things that can be owned. The owner
of a thing is the person who has the sole right to use it, to exchange it, and
to exclude others from using it. Without an understanding of property, we have
no basis for ethics.We simply
have no other way to decide who is and is not allowed to do anything.
Am I allowed to pick an apple from that tree? It depends
whose property this is. Am I allowed to
drive that car? It depends who owns it.
Even basic human rights are best understood as property rights. Each person
owns herself. Am I allowed to touch you? Only if you say so, because you belong to you.
Do you see how fundamental and far reaching the concept of
property is? The moral concepts of “right” and “wrong” disappear without
property. Conceived this way, all rights are property rights, and all wrongs
are property violations.
Like most everyone, I believe it is wrong to initiate the
use of force against the person or property of another. Like anyone with the
courage and clarity to apply this non-aggression principle consistently, I am a libertarian. I favor a stateless, voluntary,
free society. This conclusion is controversial, but it is the only
conclusion that can be reached after accepting the validity of property.
The philosophical and economic framework for libertarianism
is found in a large literature over the past two centuries, most importantly in
that of the Austrian school of economics.[1]
Owing to preeminent thinkers such as Ludwig von Mises, Murray Rothbard, and
Hans-Hermann Hoppe, using the irrefutable logic of human action called
praxeology, the Austrians have shown that a society free of government
intervention is superior to any other system, both morally and economically.
Economics is understood through a priori, deductive logic,
not empiricist positivism. Scarcity of economic resources creates the
possibility of conflict. Self-ownership, non-aggression and respect for private
property rights are the requirements for peace and prosperity. A state, by
definition, is a monopolist of the legal use of violence, and so is
incompatible with a free society.Government intervention into the economy distorts the price signaling
system, causing irrational economic calculation. Fractional reserve credit
expansion artificially lowers interest rates, stimulates bad investments, and
ultimately causes the boom-bust business cycle. Money in a free society must be
based on a valuable commodity, like gold.These are some of the conclusions reached by Austrian school, and I
concur.
Libertarians on intellectual property
In 1855, anarchist philosopher, abolitionist and attorney
Lysander Spooner[2] held that:
. . . a man has a
natural and absolute right—and if a natural and absolute, then
necessarily a perpetual, right—of property, in the ideas, of which he is
the discoverer or creator; that his right of property, in ideas, is
intrinsically the same as, and stands on identically the same grounds with, his
right of property in material things; that no distinction, of principle, exists
between the two cases.[3]
Similarly, libertarian philosopher and novelist Ayn Rand
invoked a homestead principle in supporting intellectual property:
Patents and copyrights are the legal implementation of the base
of all property rights: a man’s right to the product of his mind.[4]
Murray Rothbard also supported the concept of intellectual
property, but drew a distinction between copyright and patent.[5]
He saw no justification for patent on the free market, but argued that
copyright could exist as a contract in which a buyer agrees not to copy the
intellectual work as a condition of purchase.[6]
In recent years, however, owing largely to the scholarship
of libertarian author and patent attorney Stephan Kinsella[7],
many Austrians appear to have adopted what I believe is an erroneous position
on the issue of intellectual property (IP). Kinsella has evidently convinced
many that intellectual property does not exist, except in the fanciful
imaginations of those artists and inventors who would engage the coercive power
of the state to force others to pay for the use of their ideas.In Kinsella’s view, IP, like the state
itself, is incompatible with a free society:
[A] system of property rights in “ideal objects” necessarily
requires violation of other individual property rights, e.g., to use one’s own
tangible property as one sees fit.[8]
About this project
Having studied and acquired such profound respect for the
Austrian school, I initially accepted Kinsella’s central claim that
intellectual goods are not rivalrous, and so cannot be property. As both a
libertarian and a music composer, deriving a significant portion of my income exploiting
my copyrights, I accepted the anti-IP argument somewhat grudgingly.
I did notice what I saw as a few shortcomings of Kinsella’s
work, such as a lack of clear definitions of crucial terms, and a rather
non-libertarian take on the homestead principle. For this reason I began to
work on intellectual property myself, thinking I could bolster Kinsella’s case
with praxeology.
To facilitate, I propose the doctrine of intellectual space.
The doctrine is a conceptual framework theorizing the a priori existence of
intellectual matter. My approach is to take the reasoning used by Mises,
Rothbard and Hoppe in showing the existence of, and property rights in physical
matter; and to apply that same reasoning to intellectual matter. I expected to
see that these intangible patterns of ideas behaved so differently than
physical objects that they could not function as property in a free society.
But just the opposite occurred.
By the logic of human action, I will show that intellectual
objects exist, that they are rivalrous, that they have all the characteristics
of goods, and may be homesteaded. I will therefore conclude that a legal system
in a free society should enforce property rights in intellectual creations such
as songs, books, and motion pictures. For reasons that will become clear, I
draw a sharp distinction between copyright and patent, finding that the former
should be enforced, while the latter must not.
Overview of topics
How do we assign property rights in the first place? Is
there a philosophically valid way to establish original ownership? And what of
intellectual property? Is there such a thing? Is it morally permissible, or
economically viable to recognize a property right in a pattern of ideas? Or
should property be restricted to the realm of physical, tangible objects? What
are the tenets ofthe current
anti-IP case, and is it valid or flawed? Of what value are empiricist or
utilitarian analyses? What thought experiments will illuminate the problem most
brightly?These are the questions
will drive this work.
In Part I, “The Philosophical Case for Physical Property”, I
will offer a brief summary of the well-established libertarian philosophy on
property rights, including Hoppe’s Argumentation Ethic. I consider this
position to be proven, and after my restatement, I will assume it as fact. If
you do not accept the fundamental propositions of self-ownership, the
non-aggression principle and homesteading, I refer you the many fine scholars
at the Mises Institute[9]
, and any disagreements you have can be taken up with them.
Next, in Part II, I postulate “The Doctrine of Intellectual
space”. I will define “intellectual space”, “intellectual matter”,
“intellectual object”, and “intellectual property”, along with other key terms.
With these in play, I’ll do a side-by-side analysis of physical vs.
intellectual objects, and show that we arrive at property rights in
intellectual objects exactly as we arrive at property rights in physical
objects. The two behave identically.
Part III is “The Alleged Case Against Intellectual
Property”. Restated are the arguments against intellectual property,
particularly those presented in “Against Intellectual Property” (Stephan
Kinsella), and “Against Intellectual Monopoly” (Boldrin and Levine). I will
refute each and every element of the supposedly “libertarian” anti-IP position,
showing that argument to rest upon logical fallacies such as faulty analogy,
baseless assertions, non-sequitors, and begging the question.
Finally, Part IV is called “Exploring Intellectual Space”.
Here I offer various examples, parables and thought experiments. I apply the
theory to various species of intellectual property enforced under the current
statist model (i.e. copyright, patent, trademark, and reputation), and discuss
which of these are viable in a free society.
I hope that you will join me on my journey through
intellectual space.
[1] Austrian
economics today has nothing to do with the country of Austria. The originators
of the doctrine (Carl Menger, Eugen von Böhm-Bawerk, Ludwig von Mises,
Frederich Hayek) were indeed in Austria, faculty at the University of Vienna,
during the late 19th and early 20th centuries.
[2] See
Spooner’s classic essay “No Treason: The Constitution of No Authority” (1867), a refutation of the U.S. Constitution under
common law contract principles.
[3] Spooner,
Lysander, “The Law of Intellectual Property”,
Part 1, Chapter 1, Section 9.
[4] Rand, Ayn, “Capitalism:
The Unknown Ideal” Signet, New York, 1967,
p. 130.
[5] Rothbard,
Murray N., “Man, Economy, and State: A Treatise on Economic Principles” Volume II, Chapter 10: Monopoly and Competition,
Nash Publishing, Los Angeles 1970, pp 652-660)
[6] Under
long-held common law principles, one can only contract regarding that which is
one’s rightful property.
[8] Kinsella,
Stephan, “Against Intellectual Property” Ludwig
von Mises Institute, (2008) p. 59.
[9] The Ludwig
von Mises Institute (http://www. mises.org)
freely provides a vast library of online books, articles, lectures and other
educational materials related to the economics and philosophy of human
liberty.
(I think your analysis has another problem, but I’ll save that for after I see how you deal with my objection above.)
You have made the case for “real.” You said nothing to support your conclusion of “ownable.”
“It is true but irrelevant that intellectual objects require physical containers to be delivered. A movie arrives on a DVD or Blu-Ray disc, computer software lives on your hard drive. But this does not mean that only the physical object can be owned, as the IP opponents would have it.”
Shouldn’t you produce an argument or explanation why this is the case? Is the vacuum cleaner story supposed to help me understand why you believe this? I don’t see the connection.
Are you saying “it is real, so it can be owned?” If so, why not own ideas, math, etc.?
Say for the sake of argument that I agree and wish to mend my ways. How would you have me honestly express my confusion regarding the connection between the vacuum cleaner story and the conclusion that I quoted?
I am trying to understand better what it means to condition the outcome of human events.
How about the previous questions? That which is real, can be owned?
Please review the definitions of intellectual space, matter, object, and property I have given them to you previously, and they describe the conditions under which intangible goods are / are not rightful property.
http://homesteadip.liberty.me/2014/05/26/definitions-of-key-terms/
Intellectual object – an ascertainable, temporally stable and bounded pattern of intellectual matter which can condition the outcome of human events
Intellectual property – a non-trivial, homesteaded rivalrous intellectual object that substantially functions as productive capacity
“Non-trivial”, yes, at least some. Not really sure what counts as trivial here.
“Homesteaded”, yes.
“Rivalrous”, yes, IF we use Alexander’s approach (100% of production).
“Intellectual object”, yes.
“Substantially functions as productive capacity”, depends on what we mean by “substantially”?
All production requires the use of numerous ideas. Maybe Alexander should be paying royalties to the heirs of the guy who invented the major scale, etc. Or maybe his non-standard use of the word “rivalrous” is a problem?
http://homesteadip.liberty.me/2014/05/25/the-alleged-case-agains-intellectual-property/
Asking how we separate ideas from songs is like asking how we separate “iron” from “a bicycle factory made of iron”. There is no end to the amount of raw material ( iron or language). By taking the raw material and transforming it into a useful good ( a factory or a song) one has homesteaded, and is the rightful owner of the object created, and rightly made exclude others from its use.
Are you saying ideas are all trivial? Or have unclear borders? Can’t ideas be homesteaded?
“Asking how we separate ideas from songs is like asking how we separate “iron” from “a bicycle factory made of iron”. ”
Okay, so how do we separate “iron” from “a bicycle factory made of iron?”
Why is an idea raw material and not a producer good? Even so, raw materials are also property and can be owned. Ore in the ground can be owned. The factory producer must own the iron used to construct the factory. Why is this analogy more apt that say, a ton of iron and a bicycle factory made of iron?
“There is no end to the amount of raw material ( iron or language).”
Not sure how this is relevant.
“By taking the raw material and transforming it into a useful good ( a factory or a song) one has homesteaded, and is the rightful owner of the object created, and rightly made exclude others from its use.”
Why would this not apply when the resulting useful good is an idea? Ideas are not useful? They are not goods?
Either you’re trolling, or unintelligent. Either way . . .
Individual words and ideas cannot be owned because they are trivial, as I’ve explained. Similarly, some specks of dirt on the bottom of your shoe cannot be owned. They are trivial.
At what point does an object (physical or intellectual) become sufficiently useful enough to warrant property rights? It’s a great question, and applies equally to all forms of property.
The current system assigns ownership of mineral rights before the ore is mined, before anyone knows whether there is anything there or not.
So, what was your point? That ideas are like the infinite iron in existence which you claim is unowned? What about the ideas that have been written down and used to build things or make new ideas or accomplish things or predict things or argue against things? Are you saying that the ideas in Mises’ Human Action, that you used to develop your test, have not been homesteaded?
“Individual words and ideas cannot be owned because they are trivial, as I’ve explained.”
I must’ve missed it. Hmmm, quick google search turns up nothing, a few uses of “non-trivial”. Maybe you can provide a link?
“At what point does an object (physical or intellectual) become sufficiently useful enough to warrant property rights? It’s a great question, and applies equally to all forms of property.”
So calculus is too trivial, unimportant, and useless to bother with, but your songs are not? Geometry? Addition and subtraction? Evolution? The big bang? {brain explodes}
The exact pattern of information that comprises the words of “Human Action” is a homesteaded producer good. Do you see the difference? I can express concepts and ideas about love and forgiveness in a song. Those ideas and concepts are not copyrightable. The exact pattern of words and notes in my song is copyrightable.
You can discuss “Human Action” in your own words. You can write your own book about praxeology. But you can’t copy “Human Action” without permission.
I certainly don’t support statism, but our current system demonstrates that we can make these distinctions. Not perfectly, but well enough. I’m quite sure the free market could do a better job.
It can’t be quite as clear-cut as this, or Harrison would never have lost the “My Sweet Lord/He’s so Fine” lawsuit. You’re not going to let me off the hook if I change only one word, or even all of them, if the music is still recognizable. Do you cut samplers and mash-up artists slack if they use only a part of your pattern and combine it with new patterns?
Is a novel that steals the plot of a previous book plagiarism only if it contains perfectly quoted passages?
Mathematical theorems are often published as exact patterns. Then a new theorem may apply an old theorem as a single step. That step is an abbreviation of the full pattern. In effect, the new theorem contains all of the old theorem, all those steps are required and would have needed to be developed independently if the old theorem did not already exist.
“The concepts conveyed in “Human Action” are raw matter. The exact pattern of information that comprises the words of “Human Action” is a homesteaded producer good. Do you see the difference?”
I see, but does it make sense? I can take the “raw matter” of Mises’s book and make my own, without violating copyright. How much more did Harrison need to change “He’s so Fine” to cross the line to safety?
For just 2 of many examples, look up “Easement” and “Adverse Possession”.
After how many days (weeks, years) does trespassing establish an easement?
Adverse possession must be “open and notorious”. What does that mean?
Can land be abandoned, thus returning to un-owned status? How much time constitutes abandoned? What constitutes “use” of the land anyway?
How much land is allowable for a “setback”? 5 feet? 500 feet? 500 miles?
How deep to land rights go? 5 feet? To the center of the earth?
Etc, etc, etc, etc, etc, etc, etc
The analogy is building a new structure, partly on your own land, but partly on my land.
Not that it matters, but we don’t actually know how many spatial dimensions exist. Our current best guess is 10 (see string theory).
What counts as the pattern? I could take an MP3 of your song, play it, record the playback, make a new MP3 with bad quality, but still it would be identifiable as your song, so a violation of copyright. But none of the digital encoding in the files will match. Or is that not the pattern that is copyrighted? Is the pattern something I can see, or does it also exist only in intellectual space?
Hard to think of how to do this with a novel. If I went through and paraphrased every sentence in the book, changed Harry Potter to Barry Hotter, and Hogwarts to Warthogs, would it infringe or not? Some authors threaten lawsuits against fan authors who appropriate characters or settings. Hmmm…
You didn’t like the idea of considering an MP3 as a method for reproducing the sound of a performance of a song. But maybe it works better? Instead of copyrighting the MP3 file, you copyright the sound waves produced by the MP3 file? Maybe a frequency analysis of the two recordings would reveal the similarity our minds detect. Of course, that wouldn’t be true for a new recording of a different performance of the song with a different arrangement, though it would still infringe.
Suppose a construction company built a structure and sold it to you, with the understanding that it is engineered to be earthquake resistant. A 5.4 magnitude earthquake occurs 40 miles away, and the structure sustains $100,000 worth of damage. Who is liable for that repair, you or the construction company?
You question whether the structure was or was not built according to specs. Your X-Ray analysis shows a fracture along the 15XJN beam of 5.4 centimeters, and your expert says this proves poor design.
The construction company does ultrasound analysis and shows something else. Their expert says the building was designed well.
OK? We have the same kinds of technical problems with physical property.
The thing that gets copyrighted is a physical object, an MP3, or sheet music, a CD, something like that. The encoding on that physical object identifies one or more objects in intellectual space, depending on whether it infringes or uses samples or whatever. Any physical instance of the song is a projection of the song from intellectual space into real space. Given a song in real space, we can project back into intellectual space and identify the song, songs, or song fragments that it represents.
But the dimensions are still a problem. We could normalize tempo and key, things like that, so that the same song played in a different key and tempo still maps to the same shape. Hm, if I play your song backwards, is that the same shape in intellectual space? Or if I divide it up into time slices and randomize the play order? Should that map to the same shape? Listening to the performance would definitely be a different experience, some ints lost and new things added. So intersecting but not identical.
The intellectual space analogy thus does hold up, as I’ve demonstrated by editing your hypothetical. It is coherent, well thought out, and works well in theory, as well as the real world.
Next.