Tuesday, May 6, 2014

3 Questions for Stephan Kinsella, Jeffrey Tucker, or Stefan Molyneux

Super Abundant IP? 

Stephan Kinsella and the other Intellectual Communists claim that Intellectual Property (IP) is unnecessary because it is super-abundant, like a "magically reproducing lawnmower" in Kinsella's words.

It is agreed that there is no justification for property rights in super-abundant goods. The best (maybe only) example of a super-abundant good is atmospheric air. Here on the surface of the earth, we find ourselves with more than enough air for every person to breathe. Notice that people never attempt to buy and sell air to breathe. Every person already has all the air they need, delivered right to their faces.

Under water air is scarce. Notice that people do buy and sell air for breathing underwater, in the form of scuba tanks.

Question 1: 

If IP is super abundant, why do people act as though it is scarce? In particular, why do people contract for the delivery of IP (movies, songs, software, video games)?

Contract Requires Property Rights


Kinsella contends that IP are creations of the coercive state, and would not exist in a libertarian world. It is agreed that property rights and voluntary contract are the basis for prosperous free society.  It is a well-accepted principle of contract that one may only contract with that which is one's own property.  I can offer to sell you my car, but I can't offer to sell you my neighbor's car, because I don't own it.


Question 2:

In a world without IP, how could we possibly contract for the intangible goods people want? 
By contracting for the physical containers? That's absurd. Yes, I understand that intangible goods require physical containers to be useful, just as many physical goods require physical containers to be useful. But people do not contract for the delivery of containers. We don't care about containers. We care about content. If the pattern of ideas on a DVD is not rightful property, then there is simply no basis to contemplate buying, selling or licensing such a pattern.

Boycotting Plagiarists

Jeffrey Tucker and Stefan Molyneux have suggested boycott and ostracism as a response to plagiarism in a world without copyright. They believe that consumers will recognize that plagiarism is fraud, and refuse to deal with such a bad guy. They are correct that plagiarism is fraud, but only because a property right is at stake.

By definition, fraud is harming another person by inducing a reliance on a deception. I deceive you, you rely on the deception, and are harmed as a result.

Suppose you write a book, and I plagiarize it, offering it up as my own work. I have deceived you, because we had an understanding that I would not copy your work. You relied on my deception, because you trusted me. Under copyright law, I have harmed you because I interfered with your intellectual property.

But if there is no property right in the authorship, then who have I harmed? The true author? No, because I did not take or interfere with the author's property. Did I harm readers of the book? No, the content of the book is the same regardless. Are the readers harmed because they don't enjoy the benefit of the reputation of the true author? No, reputation is another form of intellectual property, and a rather tenuous one at that.

Absent copyright, plagiarism is not fraud.

Question 3:

Why would you ostracize a plagiarist, when the plagiarist has not violated anyone's property right?
Is the plagiarist wrong simply because plagiarism is dishonest? No. Lying is only wrong when done to deprive another person of property. Deceiving a robber about the location of your valuables is virtuous.

Tucker and Molyneux are quite correct that the free market would punish plagiarists. This is simply an admission that people recognize the property rights violation that plagiarism is.


Stephan Kinsella, Jeffrey Tucker, Stefan Molyneux, or any other Intellectual Communists are invited to answer.





16 comments:

  1. 1) Because the state has decided to act as though it is scarce, and will jail you at the behest of others who benefit from acting as though it is scarce.
    It's like asking why people act as though there is a God, in a ruthless, oppressive theocratic state.

    2) In a world without IP, how could we possibly contract for the intangible goods people want?
    Stephan has clearly explained this. A "contract" for a service (landscaping, or performing a song) is a conditional unilateral title transfer. My money for your service. I have to own my money, but you don't have to own anything at all.

    You have a digression about plagarism here, but I'm not sure it's part of question #2.

    3) Lying can be wrong with depriving people of property. If someone slanders you, saying they saw you sexually assault an entire under-10 boys' soccer team, what they've done is wrong.

    Plagiarism sometimes deprives people of property and sometimes not. If you say you wrote Moby-Dick and use that lie to get money out of me, I have standing to ding you (not Herman Melville) for the money when I find out the truth.

    You are asking questions that SK and others have dealt with *numerous* times over the last decade or more.

    -Matt

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    1. 1) I strongly believe a free society will support copyright. Copyright is just one of many examples of legal concepts that arose in the common law, to later be taken over by the state. Intellectual goods do not pre-exist humans, and are not "magically reproducible'. Delivering a song to a consumer's ears via MP3 file is like loading air into a scuba tank. It is not at all like finding abundant air surrounding every person since the beginning of time.

      2) Kinsella's position on contract thus violates the very definition of a contract. A contract requires an offer, acceptance, and consideration. "Consideration" is the bargained-for exchange of things of value. One person gains what the other gives up, and vice versa.

      A situation where one person promises to give up property, but the other person does not, is a "gift". A gift is not a contract.

      These are not my definitions, these come from the common law. Look them up if you like. If you and Kinsella wish to overturn the well-established principles of contract, you should make that explicit.

      3) All rights are property rights. All legal wrongs are property rights violations, without exception. Falsely accusing another person of a crime is wrong because being convicted of a crime will result in punishment (like fines or imprisonment). Fines and imprisonment are the loss of property. Get it?

      You might also argue that falsely accusing a person of a crime is defamation. "Defamation" requires finding a property right in one's reputation. I don't know if a libertarian world will support defamation, Rothbard certainly didn't think so. But if you want defamation, you have to have a property right in reputation.

      If I lie and say that I am the author of Harry Potter, and I sell you a copy of the book, and then you find out I am not the real author, who is harmed? There are two possible answers, and they both require IP.

      As customer, your only harm would be in your disappointment that I was not the true author. For that, you must find a property right in the pattern of my name on the cover of the book, or in my reputation, or something similar. In terms of physical property, you are not harmed in any way.

      The true author of Harry Potter, J.K. Rowling, might claim to be harmed. She will need to find a property right in the pattern of words that I copied, or in the value of her reputation as an author, both forms of IP. Rowling's physical property rights have not been interfered with at all.

      Thank you for agreeing that plagiarism is wrong. Most people also agree. Think carefully, and you will see that only with IP can plagiarism be wrong.

      -Alexander Baker



      -Alexander

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    2. > 1) I strongly believe a free society will support copyright.
      So? Your question ways "why do people act like songs are property" and I answered it. Some people also act like conscription is acceptable.

      > 2) ... Acceptance ... Consideration ..A situation where one person promises to give up property, but the other person does not, is a "gift". a gift is not a contract ... Look them up if you like.
      Why don't you?: http://definitions.uslegal.com/c/contract-law/
      "A unilateral contract is one in which there is a promise to pay or give other consideration in return for actual performance. A bilateral contract is one in which a promise is exchanged for a promise ... the promise to make a gift is generally unenforceable"
      etc. etc.

      You are so obtuse and condescending that I don't see a point in continuing. Presumably you think that performance is also property, and so on.

      >3) If I lie and say that I am the author of Harry Potter.. who is harmed? .. There are two possible answers, and they both require IP.

      To see the problem in your argument, just change Harry Potter to a less-well-known book, for example a technical book on server administration. You say you are the author of it, and (based on that) I hire you to configure my network. The actual author is not harmed, but I was defrauded out of money because you don't actually have knowledge of those matters, and now my network sucks.

      No IP required. Kinsella has also explained this, about fifty times. Also note that it has nothing to do with copyright and everything to do with trademark and fraud:
      http://c4sif.org/2013/01/trademark-aint-so-hot-either-trademark-and-fraud/

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    3. 1) With IP, people voluntarily contract for its delivery. A person cannot volunteer for conscription, by definition.

      2) There is nothing "obtuse" in pointing out that consideration is an essential part of every contract. No consideration, no contract.

      3) In your example, you are damaged by the amount of money it would cost to get your network running properly. Thus, this is an example of fraud. I deceived you, you relied on the deception, and you were harmed. This example does not require IP to solve, but so what?

      Suppose I was selling copies of the book, against the wishes of the true author. Now it is the true author who is harmed, because the author is entitled to 100% of the use of his product (that use being commercial exploitation).

      Kinsella typically conflates all "IP" together. Copyright, patent, and trademark are very different things. Intellectual Space agrees with Rothbard: copyright is legitimate, patent is not.

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    4. >2) There is nothing "obtuse" in pointing out that consideration is an essential part of every contract. No consideration, no contract.

      The obtuse thing that you're doing is pretending that contracts are always property-for-property exchanges. Service contracts, for example, are not. They're property-for-promise exchanges.

      Wagers are also contracts. Wagers are conditional unilateral title transfers ("If the Mavs win, I'll pay you $50"); you don't exchange basketball-score property or any such nonsense.

      The obtuse thing you're doing is ignoring the *many* times that Kinsella (whom you claim to be refuting) has addressed exactly this.

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    5. For a wager to be legitimate, BOTH parties must have legal title to the amount of money being wagered. If either party lacks a property right in the money (or other thing) being wagered, the contract fails for lack of consideration.

      If you want to visualize it, just think of a wager as an escrow account. BOTH parties deposit their property for safekeeping, then the winner takes all. Whether the parties literally go to the formality of escrow makes no difference. There must be opposing property claims at stake, or you don't have a wager.

      Kinsella has not answered my questions, and Intellectual Space is a new thesis.

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  2. Hi Alexander,

    Question 1: If IP is super abundant, why do people act as though it is scarce? In particular, why do people contract for the delivery of IP (movies, songs, software, video games)?

    People frequently make contracts involving things that are not ownable. If I agree to pay you a sum of money in exchange for you coming to my house and performing a piece of music, the only ownable thing transferred is the sum of money. The musical performance is an action performed using scarce physical resources, but the musical performance itself is not ownable.

    Yes, contract requires property rights. In this case, you own your body and agree to perform specific actions with it that involve the use of other property such as musical instruments. I own my house and allow you to use it for an agreed-upon purpose, and I own a sum of money that I agree to transfer to you in exchange for you performing an agreed-upon action.

    Without property rights in bodies and scarce physical things, we couldn't enter into our agreement. Notice, however, that the agreement is possible without property rights in so-called "IP."

    Question 2: In a world without IP, how could we possibly contract for the intangible goods people want? 

    My answer to your first question addresses this. People can and do make contracts involving intangible goods; they don't make contracts "for" intangible goods. The enjoyment of intangible goods involves the use of scarce physical resources.

    If I transfer a sum of money to someone in exchange for my ability to attend a concert, the "physical container" is the concert venue. In order for the performance to happen and for people to enjoy it, there may be a secured area, a stage, sound and lighting equipment, seating, bathrooms, food and drinks, etc. These are all scarce physical things. The musical performance depends on scarce physical things, but itself is not ownable.

    Question 3: Why would you ostracize a plagiarist, when the plagiarist has not violated anyone's property right?

    First, your claim that "lying is only wrong when done to deprive another person of property" is false. If I tell my wife that I'm running late for dinner because I'm working and in the meantime I have sex with another woman, am I depriving another person of property?

    People may or may not ostracize people for all kinds of reasons that have nothing to do with property rights violations: being rude, telling bad jokes, having halitosis, being boring, etc.

    Best regards,
    Steve

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    1. 1) Thank you for agreeing that contract requires property rights. I earn a significant part of my income from "performance royalties" on music I have composed, and which gets played on tv shows. These result from contracts I have entered into. Besides performances, I would urge you to analyze the delivery of music to consumers. It's the pattern of ideas people desire, not the containers.

      2) You are simply asserting that intangible things are not ownable. Oh yes they are.

      It is true that IP requires physical containers to be useful. So what? Orange juice requires a physical container to be useful. Does that mean orange juice is not rightful property?

      3) All rights are property rights. All legal wrongs are property violations.

      Yes, cheating on the wife is wrong. A marriage is a contract. Contract must be based on property rights, including the right to control one's own body. Cheating is breach of contract, expropriating the labor services of the wife, who only agreed to perform her duties under the contract if the husband was faithful.

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  3. Alexander,

    1) Yes, contract requires property rights. But, as my example illustrates, it only requires property rights in physical things. I detailed a contract above involving so-called "IP" that makes perfect sense, but requires no property rights in so-called "IP." You have to prove that property rights in so-called "IP" are necessary.

    Yes, people value patterns of ideas. That doesn't make them a "scarce" good, defined as a good whose use by any one person for any one purpose would no in any way exclude, or interfere with, or restrict its use by any other person or for any other purpose. It is precisely because physical things are "scarce" in this sense that property rights in them are necessary. Things that are not "scarce" in this sense do not have to have property rights assigned in them because it is perfectly possible for people to do whatever they want with them, simultaneously, without conflict. Notice that conflict in this sense is only possible over physical things.

    Your question implies that because people value so-called "IP," property rights are necessary in so-called "IP." I have shown this claim to be false.

    2) Your question implies that contracts involving so-called "IP" are impossible without assigning property rights in so-called "IP." The contract I detailed above is precisely such a contract, and there are many other examples. I have shown this claim to be false.

    3) Your question was why a plagiarist would be ostracized if he didn't violate anyone's property right. People can ostracize others for all kinds of reasons that have nothing to do with property rights violations: being rude, telling bad jokes, etc.

    Your question implies that people would only be ostracized if they violated someone's property right. I have shown this claim to be false.

    It appears I have proven all three of your claims false. If you think I have not, please explain.

    Best regards,
    Steve

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    Replies
    1. 1) Suppose you contract with me to purchase a DVD of the movie "Spiderman". You pay, and I deliver a DVD that has noise on it. Do you have a claim against me for breach of contract? After all, you ordered a physical DVD, and you got a physical DVD. The only difference is the pattern.

      The only way a legal claim could arise in the above situation is to find a property right in the pattern of ideas. If it is not property, you cannot contract for it.

      2) Your example in the previous post involved labor services. This flows from a property right in one's own body. A person owns the product of his labor, and thus can contract for its transfer of title. This is true whether the product is a physical or intellectual good.

      3) Your examples of ostracism are actually breach of contract cases. The recent case of Paula Dean illustrates this principle. She made racially insensitive statements, which she has every right to do. However, her advertisers had every right to void their existing contracts, according to mutually agreed upon terms.

      Rothbard explains the classic canard about "yelling 'fire' in a crowded theater". The patron is in breach of contract, because he has agreed to conform to certain standards while in the theater.

      All legal wrongs are property violations. Period. No exceptions. You clearly believe that plagiarism is wrong. That belief must come from the recognition of IP. Complete this sentence, if you would please:

      Plagiarism is wrong because ______________________________.





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    2. > 1) Suppose you contract with me to purchase a DVD of the movie "Spiderman". You pay, and I deliver a DVD that has noise on it. Do you have a claim against me for breach of contract?

      Well, when you start with the assumption "contracts can only be agreements to exchange property" then you will end with "all breaches of contract are failures to deliver property"

      The problem is that your assumption is false. A contract to have my house painted does not mean that painting-a-house is property. Service contracts are exchanges of property for promises to perform some action. That doesn't magically turn the action into property that is exchanged.

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    3. Service contracts are certainly exchanges of property. I own my physical body, and I own the product of my labor, in this case, a painted wall. You agree to pay me. I agree to, in effect, rent my body to you for a period of time, and transfer title of the painted wall to you.

      All contracts are exchanges of property. Period. No property, no contract.

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    4. Alexander,

      1) My original example shows why this claim is false. If I contract with you to come to my house to perform a certain piece of music and you perform some other piece of music or make a bunch of noise instead, you have indeed breached the contract. That in no way means that property rights in the actual performance or the underlying pattern are necessary. The contract makes perfect sense without assigning property rights in these things.

      2) It is not true that a person necessarily owns the product of his labor. If you apply your labor to physical things that someone else owns, they still own the physical things.

      3) How is lying to your mother or cheating on your girlfriend a breach of contract? Yes, legal wrongs are property rights violations. Plagiarism is not a legal wrong. This is why, if one frowns upon a plagiarist, they may mock or ostracize such a person.

      In our exchange, here are what I identify as your four key claims:

      1) Because people value so-called "IP," property rights are necessary in so-called "IP."
      2) Contracts involving so-called "IP" are impossible without assigning property rights in so-called "IP."
      3) People would only be ostracized if they violated someone's property right.
      4) People necessarily have property rights in the products of their labor.

      It appears I have shown each of these claims to be false. If you think I have not, please explain.

      Best regards,
      Steve

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    5. Steve,

      I've made your 4 items into a new post. See

      http://homesteadip.blogspot.com/2014/05/title-transfer-theory-of-contracts-and.html

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  4. See Kinsella on libertarian contract theory here:

    http://direct.mises.org/journals/jls/17_2/17_2_2.pdf

    Intellectual Space supports Rothbard's title-transfer theory of contract. Kinsella also supports title-transfer. I haven't seen where Kinsella addresses the questions I raise in #2 and #3 from the article above. If contract is a transfer of titles to properties, then how can we possibly contract for intangible things (unless there is IP)?

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  5. Copyright is just one of many examples of legal concepts that arose in the common law, to later be taken over by the state.

    What the hell does this mean? Common law is part of government. These things were not "taken over" by it.

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