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"...You are (in effect) assuming that only scarce (and hence physical) entities can be "property" in order to "prove" that ideas and patterns cannot be "property"."
I agree, Stephan. In Randian terms, you are smuggling in as an assumption that which is to be proved; that only scarce goods can qualify as property. In your own terms, you're begging the question, every bit as much as you accuse others of doing.
Kerem: "How is, "IP is not valid because it infringes on the property rights of others" is an independent argument when it depends on the never proven but often assumed assertion that only scarce things can be property?"
It does not assume that ONLY scarce things are property, but it assumes that scarce things ARE property--don't we all agree on this? The one that is up for debate is property in anything else. My contention is that assigning rights in non-scarce things necessarily undermines rights in scarce things. Since we all agree with rights in scarce things, we should oppose the type of rights-inflation that undermines this.
Surda:
any theory of property restricts the way some people may act.
Let's be precise here. It is the nature of scarcity that restricts how people may act. Consider Guido Hülsmann's comments in his 1997 article Knowledge, Judgment, and the Use of Property, p. 28:
There can be no doubt that the effect of the increased scarcity of tin will rapidly spread throughout the whole economic system and influence not only all the uses of tin but also those of its substitutes, etc. This process is, however, not best characterized by a coordinative function of prices.
The fundamental fact of scarcity implies that not every demand for tin can be satisfied. Some people have tin whereas others do not. An increased scarcity of tin implies that some market participants who otherwise could have benefited from tin are now of necessity prevented from using it. If a quantity of tin is sold, then the seller cannot sell it again, regardless of the exchange rate. There is simply no more of this tin left. Whether the seller takes notice of this or not is immaterial. He cannot sell what is no longer in his possession. Moreover, tin does not become scarcer and then this fact can come to be known to someone and lead to adaptations. Rather it is the other way around. The very fact that demand increases means that someone already knows of a more value-productive employment of tin.
Now, the fact of scarcity is part of the world. It is this which limits how we can act. The fact is that if there is a scarce resource, A and B cannot both use it at the same time. If they can, there is no scarcity, and no conflict. Conflict can only arise when there is scarcity, and conflict can only be conflict over the use of scarce resources. People say there is conflict over religion, etc., say--nonsense. Religion is the reason why A wants to kill or control B's body, perhaps, but the conflict is over B's body--a scarce resource.
The only question is whether the use of scarce resources will be conflict-free or not. If there are no property rules then the use of scarce resources is precarious and people will waste time in violent struggle rather than in productive use of resources.
To avoid such conflict and permit peaceful, productive use of scarce resources, property rules can assign ownership to identifiable individuals. As I have explained in What Libertarianism Is, all political and legal systems assign property rights--someone is assigned the legal right to control each particular scarce resource. The libertarian approach is unique in that the assignment is based on a consistent desire to avoid conflict, and so we follow a Lockean type of property assignment rule--the first user of a resource has a better claim, ceteris paribus, than later claimants. Now this is not a complete argument for the libertarian case, and in a libertarian forum where we all agree with this one need not argue for it--but you can see that the very nature and purpose of any property system is to permit the conflict-free use of scarce resources, and that the libertarian approach is the one most consistent with this purpose and nature.
So: it is not a theory of property that restricts how people may act. It is the omnipresent, undeniable fact of scarcity. A theory of property permits peaceful use of resources, by prohibiting violent struggle over them, which is not productive. The only question is whether the property rules are just or not. If they are all assigned to Donald Trump or the State, then this would technically allow conflict to be avoided but at the cost of injustice. The libertarian thus favors a just rule: assigning property rights in a given scarce resource to the first appropriator thereof.
This is not a restriction on action. It permits the resource to be used peacefully, and justly.
Now even the advocates of IP, such as Silas, are too happy to admit that they don't really favor property rights in mere abstract "ideas". No, they readily admit it's only in physical instantiations of the idea. That is, they admit that what they want in their IP theories is to grant to A property rights in all the physical media (say) owned by B1, B2, ... Bn. So the real dispute is always about scarce resources. If B owns a piece of plastic (a blank DVD) then the IP advocate wants A to have some property rights in B's disk. He wants A to have a veto over B's use of B's own disk.
Now, there are many non-libertarian property rights theories--theories that undercut or are contrary to the libertarian-Lockean first-use-first-own rule. This is just one of them. It is not "circular" to point this out. It is not "circular" to be a libertarian, any more than it's "circular" to be a socialist, communist, theocrat, or IP advocate. They all advocate property assignment rules that differ from the libertarian's Lockean homesteading rule.
The attempt to analogize this to the gun shooting or murder prohibition example fails. If A is prohibited from murdering B, this is just a way of restating one application of the libertarian conception of rights: it is saying that B owns his body, and that A's actions of shooting bullets into it violate's B's rights in that scarce resource. To say A is limited in what he may do is to recognize property rights in scarce resources.
In other words, the libertarian idea is that we do not live by permission. We live by right. We may do anything we wish in life, perform any action, unless it is an unconsented-to use of another's property. In other words, unjustified interpersonal violence--conflict--is prohibited for the sake of establishing a regime where peaceful, productive use of scarce resources may occur. I can use my gun for anything one can think of: the possibilities are open ended--anything except narrow cases where it would be an act of aggression against others. But it is not as if there are 1,136 permissible things I can do with the gun, each one a "right," and 17 things I cannot do with the gun. Rather, it's as if there is an ocean of liberty--open-ended, infinite, with small islands of things that I may not do. The IP advocate has to view us as living by permission: you have those 1,136 things you may do with your gun, and only those things. It is a finite list, fixed at some moment in time. If B thinks of way number 1,137 to use a gun, then he owns this way-to-use-guns. That is to say, he owns all guns in the universe, to the extent they are used for method 1,137. And, they say, this does not harm owner A, since he never had that right in the first place. It doesn't take away his right to use his gun for method 1,137; he only had homesteaded the first, known, 1,136 ways to use it. In fact, the IP fascist says, A is now better off, since he can learn from 1,137, and get permission for a small fee from B to use his gun in a new way. Everyone wins!
Except this is the totalitarian way of looking at things. We do not live by permission. Rothbard has explained that there is no right to free speech; it's just one implication of property rights. In my Against Intellectual Property (p. 53), this is precisely why I pointed out that
We do not have to have a "right to copy" as part of a bundle of rights to have a right to impose a known pattern or form on an object we own. Rather, we have a right to do anything at all with and on our own property, provided only that we do not invade others' property borders. We must not lose sight of this crucial libertarian point. If I own a 100-acres of land, I can prance around naked on it, not because the land is imbued with some "right-to-prance-naked," but because I own the land and it does not (necessarily) violate the property rights of others for me to use my property in this fashion.
I am restricted in my use of my gun to murder B only because of property rights in scarce resources. Unless you can point to such an act of aggression (trespass), I can use my gun as a means for any action whatsoever. I don't have to find an enumerated right #1,132 in my bag-of-rights, in my "permissions", to do it. I can do any action, so long as it is not a use of another person's property.
And this is precisely why this is not analogous to the IP case. Pointing out the above as an implication or explication of how libertarian property rights is not circular. It does not assume there are only property rights in scarce resources; rather, it unwinds a theory about allocating property rights in scarce resources. The nature of such a system is what implies that assigning rights in "ideal objects" is really simply a different way of assigning rights in scarce resources--an assignment rule that differs from the libertarian-Lockean one; this is exactly why in my 2000 LRC article on IP explicitly opposed "the Second Homesteading Rule."
The IP advocate's argument is dishonest. He says, well, my IP rule limits your property rights, but so do all property rights. So what's the big deal? The big deal is that the only limits we recognize are that you may not violate others' property rights! Murder or normal theft or trespass is obviously an instance of this. But using my own property peacefully is not! The IP advocate needs to show that my use of my own DVD somehow interferes with his own property in his own scarce resources. Obviously, it cannot. So, it fall back on IP itself: it says, well, it doesn't violate B's physical property, but it does violate his intellectual property. Hellooooo--THIS is the circularity. The circular reasoning is done by the IP advocates, NOT by the libertarian who is simply a consistent opponent of aggression.
I was interviewed yesterday by Mark Edge, as part of his "Edgington Post Interview Series," for his Free Talk Live radio show, about my Mises Daily article, "Reducing the Cost of IP Law." The interview is lasts about 35 minutes, and starts at 2:02:36 in the Jan. 20, 2010 show (MP3). Edge conducted an excellent interview--very informed and interesting. And, like many others, he's come around to the anti-IP position.
As I note in my article "Radical Patent Reform Is Not on the Way," Mises Daily (Oct. 1, 2009), there is a growing clamor for reform of patent (and copyright) law, due to the increasingly obvious injustices resulting from these intellectual property (IP) laws. However, the various recent proposals for reform merely tinker with details and leave the essential features of the patent system intact. Patent scope, terms, and penalties would still be essentially the same. In the second article of this two-part series, "Reducing the Cost of IP Law," Mises Daily (Jan. 20, 2010), I propose various reforms to the existing patent system--short of abolition--that would significantly reduce the costs and harm imposed by the patent system while not appreciably, or as significantly, reducing the innovation incentives and other purported benefits of the patent system. I list these changes below in generally descending order of importance, without elaboration, as they are discussed further in "Reducing the Cost of IP Law":
Provide for Prior-Use and Independent-Inventor Defenses
Instantly Publish All Patent Applications
Eliminate Enhanced Damages
Add a Working/Reduction to Practice Requirement
Provide for Advisory Opinion Panels
Losing Patentee Pays
Expand Right to Seek Declaratory Judgments
Exclude IP from Trade Negotiations
Other Changes
Increase the threshold for obtaining a patent
Increase patent filing fees to make it more difficult to obtain a patent
Make it easier to challenge a patent's validity at all stages
Require patent applicants to specify exactly what part of their claimed invention is new and what part is "old" (e.g., by the use of European-style "characterized in that "claims)
Require patent applicants to do a search and provide an analysis showing why their claimed invention is new and nonobvious (patent attorneys really hate this one)
Limit the number of claims
Limit the number of continuation applications
Remove the presumption of validity that issued patents enjoy
Apportion damages to be proportional to the value of the patent
Copyright
Radically reduce the term, from life plus 70 years to, say, 10 years
Remove software from copyright coverage (it's functional, not expressive)
Require active registration and periodic re-registration (for a modest fee) and copyright notice to maintain copyright (today it is automatic, and it is often impossible to determine, much less locate, the owner), or otherwise make it easier to use "orphaned works"
Provide an easy way to dedicate works to the public domain to abandon the copyright the state grants authors
Eliminate manifestly unjust provisions of the Digital Millennium Copyright Act (DMCA), such as its criminalization of technology that can be used to circumvent digital protection systems
Expand the "fair use" defense and clarify it to remove ambiguity
Provide that incidental use (e.g., buildings or sculptures appearing in the background of films) is fair use
Reduce statutory damages
Trademark
Raise the bar for proving "consumer confusion"
Abolish "antidilution" protection
In fact, abolish the entire federal trademark law, as it is unconstitutional (the Constitution authorizes Congress to enact copyright and patent laws, but not trademark law)
The upcoming documentary, Copyright Criminals, shows how copyright has outrageously criminalized the use of sampling, which has been disproportionately popular in hip hop music. In this, it calls to mind the racially disproportionate impact of drug laws on minorities...
If composers could set still-unmatched records of productivity without copyrights while managing to earn a living, imagine what writers could do in an environment that did not give them the hope of forever subsisting off past accomplishments. FULL ARTICLE by Gennady Stolyarov II
This is a wonderful article announcing the opening of the Mises Institute's iTunes U:
The Mises Institute is pleased to announce that the multimedia content on Mises.org — many thousands of hours of audio and video — is now available through iTunes U, a dedicated area within the iTunes Store (www.itunes.com).
iTunes U carries lectures from top academic minds on every topic, freely available, elegantly organized, and beautifully presented. Users enjoy easy access to material ranging from ancient-language studies to particle physics.
This shows what can be done with the open-information vision and mentality. A few great quotes excerpted below. Not only that, the Mises Institute multimedia files on its iTunes U page include lectures criticizing intellectual property, and free-market material criticizing monopoly in general.
Also appearing on Mises Daily today is my article "Fifteen Minutes that Changed Libertarian Publishing," about the genesis of Libertarian Papers, another open-information project of the heroic Mises Institute.
Here are some choice quotes from the iTunes U article:
"We are seeing the future of education: straight from great minds to individual users around the world."
"With iTunes U, the entire body of scholarship accumulated in the minicivilization of Mises.org can enjoy the widest possible distribution."
"We are on the cutting edge of user-friendly educational technology."
"As more and more colleges experience digital media, many prestigious institutions have come to realize that universal distribution of their content is not a threat to their mission; it is the very fulfillment of the educational ideal. This is certainly the case with the Mises Institute, which is why the site has been made completely open source and completely free."
"Over the years, hundreds of appreciative emails and blog comments from fellow Mises.org listeners have let me know that I am among a vast multitude of Austrolibertarian audiophiles."
"Economists like Carl Menger, F.A. Hayek, and Ludwig von Mises were devoted to getting their ideas out. They accepted as many travel invitations as possible in the hope of reaching new audiences. Mises himself was particularly aware of the need to teach outside the academy. Rothbard's own desire to reach the multitudes by writing for every possible venue left us with an immense literary legacy."
"with digital media they now make the globe their lecture hall and anyone can be their student."
"Murray Rothbard died in 1995, just as web browsers were hitting the mainstream. He might not have imagined this possibility of global, instant distribution. But anyone who has listened to the hundreds of hours of audio on Mises.org can know for sure that Rothbard would be shouting for joy."
"including Doug French, president of the Mises Institute, who has encouraged and supported this venture, considering it essential to the future of liberty; under his leadership, we have joined the highest ideals with the most advanced technology."
A Swedish libertarian buddy, Johan Ridenfeldt, pointed me to this article (in Swedish), which describes libertarian (liberal) arguments against intellectual property, and also includes a review of the debate in Nyliberalen (The Neoliberal). He wrote, "I find this very positive. I'm involved (somewhat) in politics, and I have noticed that most of the libertarian young ones agree with us on IP [i.e., that it is problematic and unlibertarian]. This was not the case when I first started quoting you back when your Against IP article was in draft [in 2000 or so]. I used to post and recommend your working paper draft, and back then I was pretty alone in my views."
I have noticed a similar trend. The younger, Internet generation seems to be much more receptive to the notion that there are no property rights in information and ideas. Whether this is because they are more open minded, more libertarian, or anti-big-business, I am not sure. I have noticed that most of the older types are much more resistant to challenges to IP.Coda: Jim Newland writes:
Sheesh, Stephan. I'm an old fogey and even I know the answer to this one. It's because they've grown up in the digital era, with its easily traded and downloaded electronic files. The impossibility of actually owning an idea or anything else nonmaterial is brought into sharp focus with the ubiquity of the internet. For instance, in the case of videogame pirates, they ask how they can be accused of stealing something when the original product remains with its original owner. This starts them thinking about the whole idea of intellectual property and the notion that one can somehow own something as ephemeral as a thought.
And a college student writes,
The reason is actually pretty simple. The RIAA just sued my roommate and about 10 other kids here at [my college]. The younger generation is anti-IP because we love free file sharing and hate getting sued.
In a previous post, I noted the arbitrariness of copyright law in prohibiting editing a DVD to take out objectionable scenes, when presumably it would be legal to accomplish the same thing by other means-e.g., as I pointed out in a legal forum, by providing instructions to users to use to program a special DVD player that edits out the bad scenes "on the fly" in the user's home.
Turns out there is such a service: Clear Play (thanks to Tom Woods for the link). You buy one of their DVD players, and load into it "filters" which you can download from the web with a subscription to their service. Amazingly, there was apparently some doubt about the right of consumers to do this, even for private use, so the Family Entertainment and Copyright Act of 2005 was passed last year to amend the Copyright Act to make it clear that it is not a copyright infringement to use technological means (such as ClearPlay's DVD player and filter service) to skip objectionable material, such as profanity, violence, or other adult material, in the audio/video works that they legally purchased.
Gee, Congress, we're so grateful, so very grateful, that you are permitting us to fast forward and skip nudity, gore, and profanity, or other scenes we don't want to show, in our own homes, using our own DVD players. How generous of you. Is it okay if I skip commercials too, please? (Apparently, an earlier version of this bill contained "language that might make users and manufacturers of ad-skipping technology automatically liable for copyright infringement".)
Tom, I too (as an IP attorney) find the copyright decision to be somewhat bizarre. In Clean Flicks v. Steven Soderbergh, a "federal district court in Utah held that companies that "sanitize" … motion pictures by removing sex, profanity, and violence, violate the motion picture studios' copyright."
The court thought it was an easy case, apparently. So does this law professor, who said "This case was about as straightforward a copyright case as there can be, and the court's determination is plainly correct".
As the court wrote:
CleanFlicks first obtains an original copy of the movie from its customer or by its own purchase from an authorized retailer. It then makes a digital copy of the entire movie onto the hard drive of a computer, overcoming such technology as a digital content scrambling protection system in the acquired DVD, that is designed to prevent copying. After using software to make the edits, the company downloads from the computer an edited master copy which is then used to create a new recordable DVDR to be sold to the public, directly or indirectly through a retailer. Thus, the content of the authorized DVD has been changed and the encryption removed. The DVDR bears the CleanFlicks trademark. CleanFlicks makes direct sales and rentals to consumers online through its website requiring the purchaser to buy both the authorized and edited copies. CleanFlicks purchases an authorized copy of each edited copy it rents. CleanFlicks stops selling to any retailer that makes unauthorized copies of an edited movie. … CleanFilms maintains an inventory of the unedited versions of the copies it rents or sells to its members in a one-to-one ratio. [italics added]
Note that CleanFilms buys one copy for every edited (sanitized) copy they rent. It seems to me, therefore, that this is just the digital version of physically removing parts of an analog movie on videotape. For example, suppose CleanFilms bought 1000 VHS tape versions of a movie, and physically removed lengths of tape that had nudity, then spliced it back together. Or, what if they just put white tape over the nudity-section of the film, or "erased" those lenghts of tape, then re-sold the VHS tape. Or what if technology were developed that let them shoot a laser into the DVD and basically just blot out the sections of video that contained nudity? Could it be argued that any of this is is copying or reproducing the movie? If not, why is the digital version of this any different? The fact that copyright law treats them differently shows how arbitrary and unjust it is.
As I note in my article "
If composers could set still-unmatched records of productivity without copyrights while managing to earn a living, imagine what writers could do in an environment that did not give them the hope of forever subsisting off past accomplishments. 
