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Monopoly corrupts. Absolute monopoly corrupts absolutely.





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IP: The Objectivists Strike Back!

It is clear to anyone who pays attention that IP is under assault--both institutionally, as digital copying, encryption, distributed information, the Internet, and the inherent impotence of IP policing make attempts to monopolize information patterns increasingly futile; and intellectually, as more and more people, especially libertarians--and especially younger libertarians--see the injustice of IP made manifest and obvious. There is a growing body of work that explodes the myths--moral and utilitarian, principled and empirical--of the IP proponents (see the works listed at the final section of "The Case Against IP: A Concise Guide"). There has been a noticeable and growing migration of libertarians toward the anti-IP position. I have lost count of the number of people who have personally told me they have seen the light on the IP cause in recent years. Among the radical and principled libertarians I know, there is a lot of debate about a lot of things--abortion, federalism, activism, "thickism," left- vs. right-, etc.--but on two issues there is a striking degree of agreement: these are anarchy, and intellectual property. That the state, and IP, are unjust, seem obvious to them after a little reflection. More and more libertarians are realizing that the case for IP being part of legitimate property rights is a hollow one that never needed to be accepted (see Have You Changed Your Mind About Intellectual Property?).

So it is no surprise that Objectivists would be distressed by this phenomenon. Not only are they among the most ardent modern advocates of intellectual property (in addition to Andrew J. Galambos [see Against Intellectual Property], and perhaps J. Neil Schulman), but Rand in a sense built her entire philosophical edifice on IP: to-wit, Rand incredibly said that "patents are the heart and core of property rights" and Objectivist law professor Adam Mossoff explicitly claims that "All Property is Intellectual Property" (see Objectivists: "All Property is Intellectual Property"). And so, realizing Rand's arguments for IP are deeply flawed, and that fewer and fewer people are buying it, they are starting to fight back.

Let's survey a few. I've already mentioned neo-Objectivist (?) J. Neil Schulman's logorights; I have pointed out problems I see in his view in On J. Neil Schulman's Logorights and Reply to Schulman on the State, IP, and Carson. I think some of the mistakes Schulman makes are echoed in the tentative IP views of Machan; a problem with both is that they seem to think that any conceptually identifiable "thing" is ownable. For more on this, see Rand on IP, Owning "Values", and "Rearrangement Rights"; my comments in the thread of the post Intellectual Products and the Right to Private Property; New Working Paper: Machan on IP; Owning Thoughts and Labor; this comment to "Trademark and Fraud"; Libertarian Creationism; also Elaborations on Randian IP and Objectivists on IP.

Another one was Objectivist IP attorney Murray Franck's defense of IP and his reply to my response in the IOS Journal, back in 1995 (I also discuss Franck's views in Inventors are Like Unto ...GODS... and Regret: The Glory of State Law). Here we can see glimmers of the idea that "all property is intellectual property"--or, at least, that IP is the most important type of right (just as Galambos held).

There is Greg Perkins's piece, Don't Steal This Article!", from 2006. I've noted deficiencies in his or similar arguments in various publications, such as Perkins on Pursuing Insufficiently Abundant Intangible "Values"; Against Intellectual Property; Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors; Elaborations on Randian IP; An Objectivist Recants on IP; "Intellectual Property and Libertarianism" (in particular see here and the section on Libertarian Creationism); Rand on IP, Owning "Values", and "Rearrangement Rights"; Libertarian Creationism; Inventors are Like Unto ...GODS...; Intellectual Products and the Right to Private Property; New Working Paper: Machan on IP; Owning Thoughts and Labor; and Objectivists on IP; and in media, I discuss problems with Rand's view at length on the Peter Mac show and at the Mises University this year; also The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism.

Then there's Objectivist law professor Adam Mossoff who is writing a defense of IP, as mentioned in the Objectivist "Noodlefood" blog post An Objectivist Recants on IP??. Roderick Long informs us that "the Ayn Rand Society session at the APA is also devoted to intellectual property"--indeed it is, with the topic "The Normative Foundations of Intellectual Property: Two Perspectives," having as speakers Adam Mossoff and Eric R. Claeys, both of George Mason University Law School, and chaired by Allan Gotthelf (University of Pittsburgh), on Dec. 28, 2009 (sadly, I'll miss it, since I'm here skiing in Steamboat, Colorado. Wait, not so sadly). I'm eager to see Mossoff's paper (and curious to see what Claeys has to say), but suspect it will be built on the fallacies and errors noted in posts above such as this Objectivist blog post and Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors.

Also noted in Roderick Long's post is his upcoming Molinari Society IP symposium at the APA later this month (Dec. 29 , 2009), including Bob Schaefer's "Response to Kinsella: A Praxeological Look at Intellectual Property Rights." I've taken a look at Schaefer's piece, and it's not pretty. It's just a mess. Roderick Long ably dissects just a few of its glaring flaws here.

(Aside: Long's comments are really superb and insightful. A few comments. Discussing the IP comments of another author, Long writes, "a strong case can be made for thinking that Lockean principles must be substantially distorted in order to press them into service on behalf of IP". Long backs this up very ably. In the same article he makes an illuminating distinction between three conceptions of "capitalism" that helps to dispel the confusion among both right and left in addressing this issue.)

The Objectivist approach is mired in a number of problems. It anchors property rights to the idea of "creation"; it requires legislation, and the state; it believes in some intrinsic value and some property right in value; it advocates utterly arbitrary and/or unprincipled, utilitarian finite lengths for IP; it rests on an arbitrary distinction between discovery and innovation. In a world where we took the ideas of the IP advocates seriously patent and copyright would have to have infinite duration. And the gaps in coverage would be fixed, and the state's arbitrary exceptions fixed, such as the "fair use defense" to copyright. At present patent and copyright cover a statutory class of "inventions" and artistic works, respectively. Many logos, idea-patterns, "creations," values are not protected at present. These include: perfume smells, the fashion industry, food recipes, certain business methods, databases (unoriginal but useful collections of information), abstract ideas such as mathematical algorithms, proofs, and techniques and physical laws. Under the ideas of the IP fanatics, there is no reason not to grant state-monopolies to these patterns too. And the term should not expire in 20 or 100 years--does your property to your house expire after some time limit? And why the utilitarian fair use exception? No principled case for IP could tolerate it.

I would love to see libertarian IP advocates have to live in a world that truly implemented their IP views fully, consistently--it would be like a communist USSR stripped of its power to ape Western price structures, to ameliorate the effects of communism. They would either die out, as the material world was strangled by an impossible nettle of ghostly IP-rights tendrils, or they would cry uncle. Even today, one imagines the cognitive dissonance of Objectivists living in our digital age--cutting and pasting, linking, learning and reworking ideas of others--all the while maintaining that all the things they themselves cannot but help engage in are "immoral" or some such tedious nonsense. I think of modern do-gooder environmentalists--they must feel pangs of guilt while flying on a jumbo jet to a friend's wedding 2000 miles away, or to attend UN conference or job posting on another continent. They must wring their hangs in agonized guilt and indecision about whether to use styrofoam, paper, or a washable coffee cup. They must feel tremendous guilt whenever they discard a scrap of soiled napkin instead of recycling it. Environmentalist parents must feel terrible pangs of guilt at using disposable diapers (or they suffer by using cloth ones: either way, I am pleased by the thought of their discomfort). Likewise, when an Objectivist emails a vandalized picture of an apostate like Alan Greenspan to a friend they must be conflicted--wait, no, there's a fair use exception! Thank Rand for the State and its wise laws!

Addendum:

Book Essay: The strange world of Ayn Rand

Control freak

One striking feature of Objectivism is it outspoken support of intellectual property. A key scene in Atlas Shrugged is where metallurgist genius Hank Rearden is compelled by the government to hand over his intellectual rights to his innovative metal alloy, and Ayn Rand acted in kind. She passionately used the copyright on her works to bar people from forming "John Galt Societies", citing that the name John Galt is her creation and her intellectual property.

For a person bent on propagating her ideas to the maximum extent possible, this would seem eerily counterproductive. Stealing an object from someone is obviously depriving the original owner of his property, but copying it isn't. It may or may not be harmful to potential income, but that income remains potential, in the realm of the unprovable. This is a debate that incites extreme passion.

While Objectivists, libertarians and conservatives strongly agree on the principle of physical property rights, the picture is much more divided when it comes to 'intellectual property', a catch-all phrase for several different items, including patents, copyright and trademarks. In a landmark essay by Stephan Kinsella, Against Intellectual Property, argues that 'Intellectual property' is not only meaningless and harmful, it is in direct violation of the general principle of private property, and primarily constitutes a state-sanctioned creation of artificial scarcity, leading ultimately to poverty, not job creation and wealth.

The wider libertarian movement accepted the argument, put it into action (see www.mises.org/books) and moved on. Objectivists, on the other hand, maintain that what Ayn Rand spoke and practiced on the subject remains the unalterable truth.

(See also on this Jeff Tucker, If You Believe in IP, How Do You Teach Others?.

[Mises; SK]


Comments

Stephan Kinsella writes: "I am pleased by the thought of their discomfort."

Why? That is negative-sum thinking and leads only to problems.

I still have an outstanding question concerning Objectivism and intellectual property. How do they (Objectivists) handle the obvious conundrum of people coming up with the same idea?

Basically, many people can have the same intellectual "property". So for the Objectivist's, how do you deprive someone of an intellectual property right that they independently developed? For further reference on what I am getting at see Private Property - Don't Touch!!!, which deals with a growing real property concern where people believe that they can tell (force) you what to do with your property on the mere assertion that it somehow affects their property.

I still have an outstanding question concerning Objectivism and intellectual property. How do they (Objectivists) handle the obvious conundrum of people coming up with the same idea?

Basically, many people can have the same intellectual "property". So for the Objectivist's, how do you deprive someone of an intellectual property right that they independently developed? For further reference on what I am getting at see Private Property - Don't Touch!!!, which deals with a growing real property concern where people believe that they can tell (force) you what to do with your property on the mere assertion that it somehow affects their property.

Hey speaking of the imagined cognitive dissonance of Objectivists, maybe you could help them through their discomfort. Last I checked, admittedly a long time ago, you made your living as a patent lawyer and chief IP counsel for a tech company. Are you still living a life of cognitive dissonance, or have you left behind productive activities to become a full time polemicist?
The reason I argue that "any conceptually identifiable 'thing' is ownable" -- although I never put it that way -- is that without identity differentiating things nothing could be ownable.

The reason that creation is the beginning of the moral case for property rights is that without creation nothing other than brute-force possession defines ownership.

As for "the obvious conundrum of people coming up with the same idea" that is just one of the questions I answered 25 years ago in my essay "Informational Property: Logorights," newly available at http://jneilschulman.rationalreview.com/2009/12/classic-j-neil-informational-property-logorights/.

"Creation is a Person's action which imposes that Person's logos on something which exists to give that thing a unique identity it did not previously have. ... If the respondent succeeds in demonstrating independent creation, then the petitioner's original "creation" wasn't inherently improbable, therefore questionable as a unique creation -- and therefore possibly not property at all -- for either of them."

"I would also caution anti-copyright libertarians against assuming their conclusion in using anti-monopoly and ‘privilege' rhetoric against copyright. Arguments against ‘monopoly privilege' in the exclusive ownership of a logos ignore the fundamental difference between all property rights, which are monopolistic in the sense of being held exclusively, and monopoly practices, which are invasive." --J. Neil Schulman, "Informational Property -- Logorights", at http://jneilschulman.rationalreview.com/2009/12/classic-j-neil-informational-property-logorights/
All so-called "intellectual property rights" (or "logorights", as you prefer to call them) are inherently invasive, though, or at least any enforcement of them must necessarily be. Because enforcing, say, a copyright requires the copyright holder or their agent to monitor consensual transactions between third parties and to stop some such transactions or punish some such parties after the fact.
@ schulman, Good answer. "If the respondent succeeds in demonstrating independent creation, then the petitioner's original "creation" wasn't inherently improbable, therefore questionable as a unique creation -- and therefore possibly not property at all -- for either of them.""
"Because enforcing, say, a copyright requires the copyright holder or their agent to monitor consensual transactions between third parties and to stop some such transactions or punish some such parties after the fact."

That's true also of any situation where a stolen good is fenced.

I start that logoright is a moral issue before it's a legal issue or an enforcement issue. The moral case needs to be made even if the only enforcement mechanism is social preferencing. But if people who believe in property rights won't respect logorights on simple moral grounds then what hope is there for libertarian arbiters to respect them if we ever achieve a free society?

J. Neil, but the infringement of an artificial monopoly is not necessarily a violation of privacy as occurs in burglary.

If you burgled my house and stole a copy of my diary, then the fencing thereof would be as immoral as that of any jewellery you might have stolen. However, if I give you a copy of my diary, then you cannot violate my privacy by making a further copy of it. You can only infringe the privilege I've been granted to exclude you from making further copies.

It is circular to say that copyright infringement is theft because it is immoral to infringe copyright, and copyright is thus legislated to prohibit such theft.

It would be like saying to free a slave is immoral as it diminishes that privilege of ownership which has been granted to their master, and thus slavery laws have been legislated to protect the master's property against theft.

You can't use copyright to justify itself, to pull it up by its own bootstraps. You have to refer to nature. It takes a potentate and a bloody great army to prohibit certain works or designs from being used, performed or copied. This is not the sort of power to find imbued in a lone individual.

We've been singing each other's songs, telling each other's stories, and copying each other's baskets and bison paintings for a fricking long time. To say "Thou shalt not copy nor build upon the works of thy neighbour, that mankind can thus progress the faster" is a modern shibboleth that divides the intelligent from the moron. To further elevate it into a matter of morality is the resort of the latter grasping at justification. We need only wait for their brother, the religious nutter, to consolidate the moral imperative with the approval of a deity and the almighty folly will be complete.

You're doing yeoman's service, Stephan. Bravo!
J. Neil Schulman writes:

"That's true also of any situation where a stolen good is fenced."

But here nothing has been stolen.

It is possible to enforce laws against theft without monitoring and interfering with consensual third-party transactions. For example, to stop my car from being stolen I can lock it, lock the garage it's in, and sit out on my stoop with my shotgun. The police can arrest anyone trying to break in -- that's not monitoring and interfering with consensual third-party transactions because someone trying to break into my car lacks my consent.

On the other hand, if I publish a song, someone buying a copy from me is a consensual transaction. That someone then uploading a copy to someone else via bittorrent is another consensual transaction. It's also copyright infringement unless I slapped a CC license on that song, but that infringement cannot be enforced against without preventing at least one of those two consensual transactions, or else punishing it, and thus cannot be done without monitoring at least one of them. In fact, there are only two ways it can be done: I avoid publishing the song at all, or else BitTorrent is monitored and some consensual BitTorrent transactions are stopped and/or punished.

This seems wrong.

Short version: without the ability to impede or punish consensual transactions, the fencing of say a stolen car can't be stopped once the car has been stolen, but the theft itself remains preventable and deterrable. On the other hand, without such an ability, copyright infringement is neither preventable nor deterrable.

Creation can't be the basis of property, because it begs the question of ownership, which is established with property. If Smith breaks into Jones's home, goes into his 'frige and whips up a four-course meal, he is the creator of the meal, but certainly not the owner. Or if he uses Jones's artists' materials to paint a masterpiece, he's not the owner either even though he created it. Jones owns both the meal and the art. Similarly, Mr. and Mrs. Smith, the parents of young Master Smith Jr., are his creator, but certainly are not his owner, even if they have legal custody of him until he reaches his legal majority. Young Smith is a self-owner, and has rights that no one can violate, including his creator-parents. Creators can destroy their property as long as they violate no one else's rights in doing so. All of these examples are implications of Rothbarian-formulated property rights in The Ethics of Liberty, which is webbed at the Mises Institute site.

Interestingly, Rothbard eschewed patent, but accepted copyright. IMO, the reason he did so was based on following Locke headlong over a nasty cliff ("owning your labor," which you can't do, because labor is an activity), although JL accepted copyright too. There's a libertarian paper waiting to be written on why Rothbard got patent right but copyright wrong.

Bill, re a paper about why Rothbard got patent right but not copyright, I have a section in my Against Intellectual Property about this.
The word "monitoring" has arisen in this discussion. Nobody writes: "Short version: without the ability to impede or punish consensual transactions, the fencing of say a stolen car can't be stopped once the car has been stolen, but the theft itself remains preventable and deterrable. On the other hand, without such an ability, copyright infringement is neither preventable nor deterrable."

I am not sure what his implication is concerning "monitoring", but the implication seems to be that copyright holders should somehow have an entitlement to intrude (trespass) into a person's private space on the mere belief that an infringement may have occured. Not only that but there are even demands that third parties should be responsible for protecting the copyright privilege of a content holder.

This approach to copyright enforcement raises extensive concerns with our legal process. Under this "monitoring" concept; should I feel like it, I could break into anyone's house to search it for the MP3 file I could not locate. Not only that, but I would have an entitlement to demand that the ISP search its data stream for that file too. What does this mean; that copyright holders can assume that we are all guilty and therefore are entitled to create a police state to protect themselves through "monitoring"?

Thanks for reminding me, Stephan, of your discussion about Rothbard. I'll have another look.
I just want to see CCTV cameras installed at all water coolers with Joke police watching all of them 24x7x365 for Joke IP violations. I mean, why should someone be allowed to tell jokes that they did not think up themselves? Penalties should be something like those for copying a CD or DVD without permission. Say $20,000.00 fine and 4 or 5 years in jail per joke violation.

all the best,

drew -- Join the Free Music Pushe

There are some nice counterexamples to the ip-creationist fallacy. Another one came to my mind reading this article. Imagine you own one painting by a 18th century artist who created 20 of them. They depict a famous person and these are the only existing original depictions of him. Now what would happen to the value of your piece if I bought and destroyed the other 19 of them? No doubt the value of the only remaining painting would rise. But does that imply I now gained some partial property rights to it just because it was me who "created" the additional "value"?

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