A long post at Volokh. Note the lottery ticket angle. Shades of Plant on copyright.

Then we have Libertarian lawyer Randy Barnett pointing out the contradictions of IP as property

In the Progress Clause, the Constitution refers to "exclusive right" for "limited times" not to IP, which has nothing to do with property.

Hunter McDaniel adds in the comments that IP was used to create a false metaphor, and that any government-granted monopoly has value for the grantee but that that does not make it property.

Thanks to Mark Brady for the link.

I disagree.

There is such as thing as intellectual property - without contradiction.

The contradictions are not intrinsic to IP itself, but that an author can continue to own their IP AFTER they've published it - when any of the emperor's subjects can see that its ownership has been transferred to the people.

Copyright is a pretence that the author/publisher can continue to retain exclusive privileges that are otherwise transferred upon sale of the property.

See: IP is Indeed Property and Understanding Private vs Public.

Crosbie,

Information, unlike property, cannot be owned, but can only be possessed or experienced. As John Perry Barlow put it, "Information is an action that occupies time rather than a state of being which occupies physical space, as is the case with hard goods. It is the pitch, not the baseball, the dance, not the dancer. ..., information is ... something that happens to you as you mentally decompress it from its storage code. But, whether it's running at gigabits per second or words per minute, the actual decoding is a process that must be performed by and upon a mind, a process that must take place in time." See "Selling Wine without Bottles: The Economy of Mind on the Global Net," in Peter Ludlow, ed., High Noon on the Electronic Frontier: Conceptual Issues in Cybespace (MIT Press, 1996). An ideal object, such as a book or document or other article of property, in which information is instantiated (to use Tom Palmer's term), can be owned. The information (words, pictures, etc.) contained within them, which conveys the message from the writer or producer to the reader or consumer, cannot be owned. Hence the slogan, information just wants to be free.

To take your example of selling a formula to someone who thinks it has value (and assuming the diary containing it is not destroyed), it is not property for good Jeffersonian reasons. The original possessor still has it. Even if he destroys his diary and forgets the formula, he or someone else could rediscover it and possess it. With a piece of tangible property, such as the diary, only one person can own it (barring joint ownership, which still excludes non-owners). Tangible property is owned and possessed, whereas information is only possessed.

Regarding your discussion of the public and private domains, libertarians at least don't believe in the former. All property is either privately owned (my computer), unowned (unhomesteaded land in Antarctica or some other remote region), or stolen/highjacked (all property governments claim to own or regulate, including the misnamed and criminally occupied "public lands," and the electromagnetic spectrum).

When you say the "public" what you really mean is the state. You claim that private ownership of private IP is okay, but that "the public owning public intellectual property" is also okay. "Each is the master of their domain. This is the natural order of things." The problem is that the state converts private property to IP by statutes that violate the rights of non-owners to possess and use it as they wish. And of course it goes further than this because the state claims that non-owners don't have a right to use their own tangible property as they wish, such as when they make copies of music files or printed matter.

Your criticism of Stephen Kinsella's tangible/intangible property distinction is also wide of the mark. Again, information can only be possessed, not owned, although the physical stuff in which it is embodied can be owned.

So, you think that simply because information can be reproduced it cannot be owned? That is very strange.

That a certain form of property may be reproduced does not prevent it obeying the characteristics of property.

That an author chooses to reproduce their intellectual property does not prevent it being their property. If they give or sell a copy to another, then the other now also owns both the copy and the intellectual property. Both joint owners may then reproduce the intellectual property and create further copies which each of them own. Physical copies AND intellectual property.

The only thing that violates semantics is the idea that ownership should not be transmitted with the copy and the intellectual property thereon.

In other words it is copyright that violates the semantics of property and ownership. One imagines that this is because copyright attempts to redefine ownership into behaving more like authorship. However, authorship is a fact, a matter of truth (inalienable). Ownership, is of course, transmitted with the property.

So, yes, I'd agree with you that the state through its enforcement of copyright interferes with everyone's intellectual property rights.

I therefore support the abolition of copyright so that people enjoy ownership of the intellectual property that they purchase (rather than the copyright holder), and the ownership of the intellectual property that they produce.

Let me clarify my point. The hallmark of property is not reproducibility. After all, the fact that tangible property can be reproduced doesn't confer "propertyness" on it. What makes an object property is that it has a physical instantiation and boundaries, can be physically possessed, and can be alienated. Intellectual or intangible property fails the first criterion at least.

IP is actually applied to tangible property by giving a creator (or legal possessor) a state-granted monopoly to do certain things with it, such as making copies. This is accomplished by legally enjoining others from using their own legally owned tangible property to do these things. Frtiz Machlup and Edith T. Penrose made the important point in their classic 1950 paper on the nineteenth-century patent system that the French legislature appropriated the term "intellectual property" and applied it to ideas that were patented.

We agree that copyright violates the semantics of property and ownership, but I also make the stronger claim that it violates the natural right of non-copyright holders to do certain things with their bodies and property, such as making copies and selling them.

I deny the existence of intellectual property in a libertarian world. IP is a creation of statute law only and would not exist without the State. The libertarian lawyer and abolitionist Lysander Spooner pointed out that statute law is "an absurdity, a usurpation, and a crime."

Intangible property also fails the third criterion--it can't be alienated. If I sell you a secret, I still possess it. If I sell you my computer, I no longer have it.

How peculiar. I thought it was me who was just trying to argue that "reproducibility is not involved in the definition of property".

As you noted, I disagree with Stephen Kinsella, tangibility is also not involved in the definition of property.

The fact that some intellectual property is possessed as knowledge (may be retained within the intellect for a considerable period), and may be reconstituted from the intellect umpteen times in physical or digital media, does not make intellectual property intrinsically inalienable.

It is possible to write a diary and a few years hence to be unable to reconstitute it from memory. That diary can be sold - and the IP along with it - removed from its producer.

The fact that IP when expressed in digital form is easier to reproduce than tangible structures does not affect the definition of property.

Similarly, the tendency for IP when in digital form to be conveyed through reproduction rather than transfer of the unique work is simply because of convenience.

It seems we agree that copyright is an abomination (whether or not this could have been forseen centuries ago).

Let's not then go to the other extreme and deny people the right to own their intellectual property.

If we consider things in pen and ink, would you tell an author who spent 10 years writing a book that although they may own the paper and ink constituting their unpublished manuscript, they do not own the handwritten words upon it, because the words are intangible, then this is totalitarian communism of the worst sort. The author owns the manuscript AND the words. Those words are their's to transfer or duplicate as they see fit - and only those in legitimate receipt have a right to them.

Copyright suspends the liberty of those in legitimate receipt of IP to copy or build upon it, and hence interferes with their rights to enjoy their own property.

However, if you abolish copyright, you do not invalidate the concept of intellectual property.

I don't deny the right of people to own their intellectual property because I claim IP doesn't exist without a state to enjoin the right of others to do certain things with their own tangible property, which is what IP boils down to. And as a libertarian, I deny the right of the state to do this.

An author does own his handwritten words, as well as the paper on which they appear, just as I own the physical instantiation of the letters going across my computer screen as I type this. What do I own when I hit the send button? Well, the physical stuff inside my computer, nothing more, nothing less. But that is not how IP apologists define IP.

If I copy the author's manuscript, I also own a copy of it and the words contained in it, meaning the material stuff constituting the letters (ink). That's what an author owns: the paper and ink that constitute his manuscript. He doesn't own the text/novel, etc., contrary to what IP advocates claim. Therefore he has no right to prevent others from making copies of it, as long as they don't invade his tangible property rights to do so.

There is no such thing as intellectual property in a free market.

Milton Friedman would have said it in a pithier way, but then he did advocate patents.

I think the difference in our positions is more than semantic.

It is not the definition of IP that is broken, but how its ownership transfers.

IP maximalists believe that authors retain ownership of their IP in all its instances, and that this ownership may be transferred independently. They believe that simply receiving an instance of IP doesn't by itself constitute entitlement to own the IP therein, i.e. you own the media, but not the IP.

This doesn't invalidate the concept of IP, or even prevent IP from being owned, it simply demonstrates that IP maximalists have got some pretty corrupt and unethical ideas when it comes to deciding how the ownership of IP works.

Without copyright - without this cock-eyed idea of ownership becoming detached from possession of the property - you should see that IP is a perfectly wholesome concept.

The author owns their words. If you copy the words without the author's permission, you have stolen a copy. You made the unauthorised copy (which is still the author's), and then you removed it from their possession (they lost a copy). You have also come into illegitimate shared possession of extremely valuable IP without equitable exchange. You could also have simply stolen the manuscript (and not made any copies) and consequently stolen the IP. Either way, these actions are highly unethical.

However, if the author sells or gives you a copy of the words in their manuscript (or even the manuscript itself which MUST include the words thereon), then you can make as many copies as you please (each of which belongs entirely to you). Similarly it would be just as wrong for anyone to make further copies of your copies without your permission. However, if they were their copies (they'd bought them or been given them by you) then of course they wouldn't need your permission.

So, basically, as long as you are in legitimate receipt of a manuscript or any other artwork, you are free to reproduce or build upon it until the cows come home, and you can give away or sell as many copies or derivatives as you fancy. Not forgetting of course to preserve truth, e.g. authorship.

This is how ownership of IP should work. If you own a copy, you also own the IP within it. It doesn't matter (except to IP maximalists) that everyone else who also owns a copy also owns the IP within their copies.

I did define tangible property above, but you have not given one for "IP." I maintain that "IP" is a state-created figleaf to cover up the crime of intellectual monopoly. That's what Machlup and Penrose thought, and that's what Boldrin and Levine (and presumably the other posters here) think (I think). "IP" is therefore an invalid institution, at least under libertarian law. I would also point out that "IP" was never part of the common law, contrary to your implicit assumption. (See Howard Abrams' 1983 Wayne Law Review article.)

You claim that an author owns his own words and that if I make a copy of his text without his permission, I have stolen a copy. If I break into his house, steal his manuscript and make a copy, I have committed the crimes of breaking and entering, theft, illegal possession of stolen property, and possibly fraudulent conveyance. None of which have anything to do with "IP."

I agree that legitimate receipt of a manuscript gives anyone a right to copy it. But I disagree that the MS constitutes "IP." It is simply tangible property and is subject to the laws of person and property just like any other article of property.

Tangible property, intangible property. Both are forms of property. Intellectual property is intangible property. Just because you can't touch it, doesn't mean it isn't property.

IP has actually always been part of common law. The grievous error was in thinking that its ownership could remain with the author instead of being bound with the manuscript.

There was this crazy notion that if a manuscript was valuable to the author, that it didn't seem fair that the author would lose this value if they gave a copy of their work to someone. This is one of the disappointing arguments that gave rise to copyright, to preserve the value of the IP for the benefit of the author.

The falsehood is not that IP has always been part of common law, but that copyright has been. And more recently IP has been conflated with copyright such that IP doesn't accommpany the work but exists as a supernatural paradigm that can be traded independently.

You still haven't defined "IP." I ask again: what is "IP"? (And using "intangible" in the defn. won't help much, unless you define that term.) (If Proudhon hadn't been an apologist for the patent system, he would have said "IP is theft." Let Sheldon Richman, who criticized my paper for revising Proudhon's quote, ruminate on that!)

You claim that ownership is "bound with the manuscript," but how could this be? After all ownership is a relationship between a person (the owner) and an object (the thing owned). A manuscript can't own itself. What you mean, I gather, is that the owner of a manuscript copy owns the right to copy it. Agreed, but Occam's razor dictates that we then ditch the concept of "IP," which is otiose at best. What he owns is simply a piece of tangible property. "IP" is a state-created construction, and was never part of the common law. The legal framework for "IP" evolved out of the Statute of Monopolies (1624), for patents, and the Statute of Anne (1710), which was the first copyright law. Neither were part of the common law. As Spooner would have said, they were just crimes.

Going to be away from the web for a week or so, so a few secs for this.

Art is intellect made real.

Because the intellect has been made real into the work of art, we often have enough information embedded in the art and our knowledge of how it may be manufactured that we can reproduce it.

That information is a representation of the intellect, and often equivalent.

That information is mobile and may be transferred and controlled whilst it remains within one's possession.

This is the intellectual property.

IP is the information within art sufficient to create it.

IP is also the information necessary to recreate/reproduce it, create a copy, or create a simulacrum.

Got to go now.

No doubt this definition can be refined.

E&OE ;-)

Ah, the Randian angle. Been there, done that. Using one's brain to create something doesn't result in "IP." After all, fashion designers (to use one example) use their brains to create their designs, but their creations are not IP and are not privileged by statute law. The cake I created yesterday was the product of my intellect (yes, that's how low it has sunk), but I don't think that should give me the right to demand royalties from you should you happen on the same recipe. (Or maybe it should!) Everyone uses their brain to some extent in everything they do. The meanest hod carrier has to think in order to get from point A to point B. The intellectual angle demonstrates nothing at all, except an affinity for the Randian worldview.

Bill,

I think we're agreeing in principle, but disagreeing linguistically.

Try and bear in mind that the following is being described in a post-copyright abolition environment.

1. You bake a cake to a recipe you create ad hoc.
2. That recipe is your IP.
3. No-one may steal that IP.
4. All copies of that IP belong to you.
5. Even unauthorised copies belong to you.
6. No-one may make an unauthorised copy and steal it from you (that copy and further copies should be destroyed or returned to you).
7. Your recipe is your IP and remains within your exclusive control.
8. You alone enjoy the privilege of being able to offer your IP for sale or make copies of it.

I seem to be having problems explaining that when you sell (or give) IP to someone else, that the IP then belongs to them and becomes their IP - and the above list applies to them.

Just as with any other property. If you sell or give your property to someone it becomes theirs.

As I've said before, IP is bound to the art. The IP may be represented digitally in isolation from the physical instance of the art, BUT the IP cannot be removed from the physical art without disintegrating the art (turning a cake into brown sludge).

Thus, you bake a cake. It's your cake, and your recipe. You give me a cake on your private premises with the stipulation that it be consumed by me there. I get to eat it and appreciate it, but I don't get the recipe (unless my taste is incredibly discerning).

You sell a member of the public a cake, and it's their cake along with any IP they can discern in it. Thus, if they make a molecular analysis sufficient to produce a recipe that bakes an indistinguishable cake, then that's fine. It's their recipe. It's still their recipe even if it's 100% identical to yours. Any cakes they make with it are theirs too.

No royalities are due.

Similarly, if you sell a member of the public your recipe, then it's their recipe - even if it's 100% identical to yours. And again, the cakes they bake are theirs too.

It may be easier to think of it in terms of books. If you sell a member of the public a book, then the IP (the words) belong to the purchaser along with the book. Any books they print that have the same words are theirs (no royalties due).

Thankfully, unlike cakes, people don't consume books (and hence the IP is a little more persistent).

Remember, it is only copyright and patents that extend the natural monopoly of property per se, to govern intellectual property differently from physical property.

Without copyright or patents, each of us owns and controls our IP (the IP we create and the IP we buy), just as we own and control our physical property.