You write: “There are no property rights in ideas”.

To quote you from “How We Come to Own Ourselves”: “Recall that the purpose of property rights is to permit conflicts over scarce (rivalrous) resources to be avoided.”

Therefore, you have implicitly defined ideas as abundant resources, since logically, abundant resources are not subject to the conflicts that arise from scarcity. For now, I will agree with you. Imagination is an abundant resource.

The question, then is not regarding the scarcity of an idea but, can an idea transform a scarce resource?

Unquestionably, yes.

Next, can the transformation be owned?

If it cannot, then the act of transforming a scarce resource is an abundant resource. Let us also agree that transformations cannot be owned and therefore are not subjected to property rights.

To summarize, a transformed scarce resource still constitutes property, however, the act of transforming the scarce resource with an idea, and the idea itself, does not.

What is the purpose of transforming a scarce resource? Let’s say to accumulate more scarce resources. The more we accumulate the more property we own. If my transformed scarce resource leads to greater accumulation, I will naturally invoke rivals to compete in my accumulation.

Say my rivals duplicate my transformed scarce resource, and due to their competition, my accumulation is at lesser rate now because my rivals are now accumulating the difference. Are they in conflict with my claims to these resources?

To avoid conflicts of resources, as you write, “Property titles to particular resources are assigned to particular owners…[The] title has to be assigned to one of the competing claimants based on ‘the existence of an objective, intersubjectively ascertainable link between owner and the’ resource claimed.”

In the present example, I and my rivals claim the resources accumulated by the duplication my transformed resource. This should be obvious, but it can objectively be determined that my rivals would not have accumulated their resources without their duplication. If my transformed resource was a mouse trap, for instance, it can be shown through the profits of the duplicated mouse traps sold by my rivals.

A property title that gives me the right to transform my resources in a specific manner, and excludes others, is NOT the same as, “legally [forcing] someone else not to use their own property as they see fit.” It is simply a variant of how, as you again write, “De Jasay equates property with its owner’s ‘excluding’ others from using it.”

Mr. Kinsella’s ideas on intellectual property are the ones that seem to be mired in empiricism. He is unable to abstract the idea of property beyond those items that he can touch and feel.

Of course innovation is important. That does not mean intellectual property is important. Is not abstract physics theorizing important too? Yet IP does not protect this.

“Intellectual property is a part of capitalism, which anyone with a passing knowledge of economics would know.”

This is the typical type of reasoning you will hear from engineers who are mired in the narrow scientistic-positivistic view which has them totally out of their depth and confused about normative issues. It is obvious to anyone with a modicum of education that economics does not and cannot show that IP is justified (economics is wertfrei); and that just because IP is in effect now does not mean that it is justified.

Correct. There are no property rights in ideas. There are lots of conceptual “things” and phenomenon that we can identify that are not ownable. For example if you love your dog, you don’t “own” that love. It is true that the Earth rotates around its axis, but no one owns this rotation. You might take a nice walk, but you don’t own your “walking.”

” Most of human history has operated under this sort of theory and most of human history is dominated by the average person eking out a subsistence living. Only when governments started to recognize a person’s natural right in his ideas did the average person’s income begin to rise above a subsistence level.”

This is a weak argument. It is capitalism that fosters wealth, as anyone with a passing familiarity with economics realizes.

“Innovation is the only manner in which real per capita income rises and only intellectual property rights provide a free market incentive for innovation.”

Mr. Halling is under the naive assumption that “government” is good, justified, and necessary for economic growth; and that “providing incentives” is a legitimate function of the law. Very naive. Typical engineer-reinventing-the-wheel kind of dorm room thinking.

You mention: “the owner of a given scarce resource is the person who first homesteaded it…This person has a better claim than anyone else who wants the property,” “Human bodies are of course scarce resources”, and, “Each person completely owns his own body…Implicit in the idea of self ownership is the belief that each person has a better claim to the body that he or she directly controls and inhabits than do others.”

It follows then that I own my creativity and can exclude others from using it. If this is false, then either I do not own my body which initiates my creativity or my creativity hence my body is not a scarce resource.

Then you quote: “[Creativity] is not the source of ownership of produced goods. … So what is the source? Prior ownership of the inputs through purchase, gift, or original appropriation. This is sufficient to establish ownership of the output. Ideas contribute no necessary additional factor.”

True. Creativity is not the source of ownership. But it is an input i.e. a scarce resource that can be owned.

This is further corroborated by: “If I build a model airplane out of wood and glue, I own it not because of any idea in my head, but because I owned the wood, the glue, and myself.” Himself constitutes the creative input.

Therefore, a patent or copyright is not protecting the ownership of the IP; rather it is protecting those who have the rights to the ownership of the creative input of the IP.

Mr. Halling:

Joseph, Mr. Kinsella has confused anarchy with property rights.

Anarchy means absence of the state. Since the state is the agency of institutionalized aggression against property rights, there is no confusion: anyone who supports property rights has to oppose aggression against property rights, including institutionalized aggression (the state). See What It Means to be an Anarcho-Capitalist

Mr. Kinsella’s argument against intellectual property boils down to the “scarcity theory of property rights.” This theory proposes that the only reason for property rights is for items that are “scarce” and according to the proponents of this theory ideas are not subject to scarcity. The scarcity theory of property rights is incorrect factually and historically. In science, the theory that has the greatest ability to explain the widest number of facts is considered to be the correct or better theory. Here the “scarcity” theory of private property requires the additional assumption that it is preferable to have efficient allocation of resources. However, it fails to explain how the resource should be initially distributed, it does not explain how property law determines ownership and has no power to explain criminal law.

This is simply incorrect and reveals the author’s ignorance–see The Case Against IP: A Concise Guide and What Libertarianism Is.

I’m beginning to understand Mr. Kinsella’s position better after your post.

I don’t think it is even necessary to introduce the labor theory of property to understand that he views protecting intangible property (i.e. IP) as being a market inefficiency, which is a straw man argument. His entire diatribe on this post has been to attack this straw man, save for a sentence that equates protecting IP with infringing on the property rights of other: a patent gives a right to its holder to legally force someone else not to use their own property as they see fit.

And as you eloquently stated: A system of private property results in efficient allocation of resource, but it is not the reason for private property – it is the effect of private property.

we can logically infer a quote from Locke now: “Government has no other end, but the preservation of property.” Thus the prescience of patent law.

I am, however, still awaiting Mr. Kinsella’s response as to why in his view IP is not property.

If someone uses a claimed discovery with their own property, say selling the reduced-to-practice novel mouse trap I patented, then according to IP-law logic, it is akin to infringing on my rights to that discovery, correct?

A “right to discovery”, then, is a right to property that is intangible. Therefore, rephrasing your words, “It means you can legally stop or penalize someone from doing something with your own property.”

I do not understand how you conflate this right with restricting other people’s property rights. According to your logic, the fact that I do not allow people ownership of my car unjustly restricts their property rights.

As you can see, this logic is in fundamental disagreement with the concept of property rights, unless, your sole criteria for “property” is tangibility.

The Congress shall have power…To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

I do not see how this is interpreted to “legally force someone else not to use their own property as they see fit.”

then you must not understand IP law. What do you think it means to have a right to a discovery? It means you can legally stop or penalize someone from doing something with their own property. Hellooo. The rest of your post is based on confusion.

from the U.S. Constitution:

The Congress shall have power…To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

I do not see how this is interpreted to “legally force someone else not to use their own property as they see fit.”

If the Constitution is interpreted to mean an extension of an individual’s property rights into the realm of the intangible, it is more logical.

Furthermore, (and forgive me, my expertise in patent law is only so far as filing several provisionals and an undergraduate class in technical entrepreneurship) doesn’t a patent only exclude others from commercial exercise of what is intangibly claimed? For example, I patent a novel mouse trap, which excludes anyone else for being able to sell that mouse trap. I don’t quite understand how this “[forces] someone else not to use their own property as they see fit.” If my patent was tangible, say a car, should I not have the right to exclude others from using it? Is this not fundamentally what private property is?

It is therefore my belief that it is specious to group protecting intellectual property rights with artificially imposed monopolies.

Mr. Kinsella, I never said that property rights are “just.” I said they are consistent with free market principles. This is not a value proposition, it is logic.

I have no idea what such clunkily worded and elementary observations are supposed to establish. Okay, the idea that Africans are inferior is also compatible with chattel slavery. So what? And property rights are not “consistent with” free market principles. The free market is the catallactic set of interactions that arises when there is widespread exchange of owned goods, when property rights are respected. Property rights undergird any free market. When there are systematically respected property rights, you get a free market. Put another way, the free market is the unhampered market, where “hamperered” implies some systematic invasion of property rights by the state.

Free market principles are not a value proposition either. I can define communism without stating whether I believe it is just or moral or any other value proposition. The same is true of a free market system.

Unless you presuppose the value of the underlying principles, there is no point in arguing over what is or is not compatible with or implied by these principles. One could well state that denying blacks the right to vote is compatible with enslaving them. So?

The principles underlying communism or Euclidian geometry lead to certain logical conclusions. Facts, such as whether two parallel lines will ever converge, are either consistent with the principles or inconsistent with the principles. These are not value judgments they are logical conclusions.

With all due respect, I am not sure what this homespun amateur theorizing about the nature of science has to do with establishing that artificial monopoly privileges promulgated by the edict of a criminal state are legitimate or just. If you believe patents are just, let’s hear your justification. If you don’t, what in the world are you arguing about?

Mr. Kinsella then attacks scientists and engineers as not having the right training to understand the limitations of empirical reasoning. I guess, Mr. Kinsella has found some higher level of knowledge that is divorced from reality.

No special training is needed other than education, even auto-didactical. The problem with engineers is that too many of them have absorbed the scientism (positivism-monism-empiricism) rampant in the natural sciences. It does not harm them too much whey they stick to tinkering and making gadgets and doing causal experiments, but it gives them an unjustified sense of ability to handle other issues by the same approach; they do not understand, because they have accepted the confused notion of scientism, that the experimental methods appropriate to the natural sciences are not appropriate to other realms of inquiry pertaining to human action. We seem to be talking past each other precisely because you seem to be so mired in scientism — I understand this, I am an engineer as well — that you do not even understand my critique. In case you at least want to understand where my criticisms are coming from, take a look, say, at my short post C.P. Snow’s “The Two Cultures” and Misesian Dualism; Hoppe’s monograph Economic Science and the Austrian Method, and Mises’s classic little book The Ultimate Foundation of Economic Science.

Mr. Kinsella attacks Locke’s theory of property,

Do I? I actually mostly agree with it, except for (a) the proviso (for the reasons given in Down with the Lockean Proviso and Hoppe, Economics and Ethics of Private Property, pp. (“I construct a positive theory and in so doing employ Lockean ideas; and assuming my theory correct for the sake of argument, there can be no doubt as to my verdict on the proviso. It is false, and it is incompatible with the homesteading principle as the central pillar of Locke’s theory.”)); and (b) for his unnecessary and confused assumption about the ownership of labor being needed to justify appropriation of unowned resources (see Owning Thoughts and Labor; Communist Stumbles into Self-Ownership).

In any event, Mr. Halling appears to eschew any normative statements and sticks solely to “facts,” so he is in no position to endorse Locke’s normative theory anyway.

but never answers the glaring deficiencies in the “scarcity theory of property rights.” In science, the theory that has the greatest ability to explain the widest number of facts is considered to be the correct or better theory.

How is one to answer this continued repetition of simpleminded scientism? Halling seems again to be unaware that the methods of the natural sciences are not appropriate to normative inquiry.

Free market principles are not a value proposition either. I can define communism without stating whether I believe it is just or moral or any other value proposition. The same is true of a free market system. The principles underlying communism or Euclidian geometry lead to certain logical conclusions. Facts, such as whether two parallel lines will ever converge, are either consistent with the principles or inconsistent with the principles. These are not value judgments they are logical conclusions.

Mr. Kinsella then attacks scientists and engineers as not having the right training to understand the limitations of empirical reasoning. I guess, Mr. Kinsella has found some higher level of knowledge that is divorced from reality.

Mr. Kinsella attacks Locke’s theory of property, but never answers the glaring deficiencies in the “scarcity theory of property rights.” In science, the theory that has the greatest ability to explain the widest number of facts is considered to be the correct or better theory. Here the “scarcity” theory of private property requires the additional assumption that it is preferable to have efficient allocation of resources. However, it fails to explain how the resource should be initially distributed, it does not explain how property law determines ownership and has no power to explain criminal law. Trading scarcity for the labor theory of property is like trading the theory that “what goes up must come down” for Newton’s Law of gravity. The fact of the matter is that the proponents of scarcity have confused cause with effect. A system of private property results in efficient allocation of resource, but it is not the reason for private property – it is the effect of private property.

Mr. Kinsella is incorrect that the statement “It is a myth that patents are inconsistent with a free market” is normative. A normative statement is a judgment that cannot be proven by facts. Free market principles are definable. From these principles it is possible to determine if certain systems are consistent with these principles as a matter of logic. Once the principles of a free market are defined then it can be factually determined if “a patent system is consistent” with a free market.

One hardly knows where to begin with this … homegrown reasoning. Apparently whether something is “factual” or not has something to do with whether it is “definable.” I am afraid Mr. Halling, in thrall to positivism, is utterly confused.

The truth is that “free market principles” means normative ideas such as property rights. The question is then whether, assuming the norms that underlie property rights are valid, patent rights are compatible therewith. In other words, if property rights are just (not a factual question), are patent rights? They are clearly not.

I have shown that the “scarcity theory of property rights”, which Mr. Kinsella has used as one of his arguments against patent is flawed both logically and factually. [] These posts show that the empirical evidence does not support the scarcity theory of property rights.

Once again, Mr. Halling provides a nice example of the intellectual straight jacket that positivism and scientism imposes on the minds of engineers (see Engineers’ Syndrome). He is of the mind that “empirical evidence” is the touchstone of even normative theorizing; and that if it does not rest on this, it’s “merely normative” (i.e., not real science). He does not realize that such monism-scientism is self-defeating since it rests on assumptions that themselves cannot be subjected to experimental testing.

The posts also show that the “scarcity theory of property rights” does not explain how property is to be allocated, how property rights in an object or idea are created, why slavery is wrong, why murder is wrong, etc.

It certainly does, as is made clear in my articles What Libertarianism Is, How We Come To Own Ourselves, and What It Means To Be an Anarcho-Capitalist. What is Mr. Halling talking about?

While the labor theory of property rights explains this and more.

Labor theory is confused for a number of reasons–both economically (Smith and Marx were wrong) and ethically.

Trading the scarcity theory of property rights for the labor theory of property is like trading the theory that “what goes up must come down” for Newton’s Law of gravity.

Again, Halling is confused. All property theories are about how to allocate property rights in scarce resources, as I explain in What Libertarianism Is. The libertarian is the one who believes in assigning these rights in a fair way and so as to permit conflict-free use of such resources.

The fact of the matter is that the proponents of scarcity have confused cause with effect. A system of private property results in efficient allocation of resource, but it is not the reason for private property – it is the effect of private property.

Mr. Halling is probably a fine patent attorney, but comments like these indicate the need for more homework.

I have shown that the “scarcity theory of property rights”, which Mr. Kinsella has used as one of his arguments against patent is flawed both logically and factually. See my posts Scarcity – Does it Prove Intellectual Property is Unjustified? http://hallingblog.com/2009/06/22/scarcity-–-does-it-prove-intellectual-property-is-unjustified/
Scarcity and Intellectual Property: Empirical Evidence for Invention http://hallingblog.com/2009/06/25/scarcity-and-intellectual-property-empirical-evidence-for-inventions/
Scarcity and Intellectual Property: Empirical Evidence of Adoption/Distribution of Technology http://hallingblog.com/2009/06/25/scarcity-and-intellectual-property-empirical-evidence-of-adoptiondistribution-of-technology/.

These posts show that the empirical evidence does not support the scarcity theory of property rights. The posts also show that the “scarcity theory of property rights” does not explain how property is to be allocated, how property rights in an object or idea are created, why slavery is wrong, why murder is wrong, etc. While the labor theory of property rights explains this and more. Trading the scarcity theory of property rights for the labor theory of property is like trading the theory that “what goes up must come down” for Newton’s Law of gravity. The fact of the matter is that the proponents of scarcity have confused cause with effect. A system of private property results in efficient allocation of resource, but it is not the reason for private property – it is the effect of private property.

And, of course, this legal positivism, this scientism and empiricism (which any intelligent person could see is self-refuting–see e.g. Hans-Hermann Hoppe’s In Defense of Extreme Rationalism and Economic Science and the Austrian Method), is what lies behind the confused morally bankrupt attempt to justify the normative validity of legislative schemes by appeal to brute facts.

In short, Mr. Halling is completely confused and in error. The free market denotes a system of institutionalized respect for property rights–which means property rights allocated in accordance with the Lockean first-use appropriation rule (see my What Libertarianism Is). The state is inherently criminal and the decrees of its legislative sub-gang are not genuine law but merely edict enforced by the state–artificial law which is really just privilege, a way of benefitting the recipient at the expense of certain victims.

I explain in detail in my IP writing and lectures, such as Against Intellectual Property, “Intellectual Property and Libertarianism” (audio), “The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism” (Powerpoint; PDF version, audio; video; Google Video), and There’s No Such Thing as a Free Patent, why patent are not compatible with private property rights. Mr. Halling has not even attempted to address these arguments, nor is there any reason to believe he is sincerely interested in doing so. He is doing what most patent lawyers do: defending their gravy train and repeating the bromides they heard in law school, or read in Posner or Supreme Court cases, or that are monotonously repeated without question at IP lawyer CLE luncheons.

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Re Mr. Halling’s opposition to the notion of scarcity as a foundational concept in property rights: as Hoppe notes in his withering retort to a critical review by Loren Lomasky (p. 411 of Economics and Ethics of Private Property):

Like most contemporary philosophers, Lomasky gives no indication that he has grasped the elementary yet fundamental point that any political philosophy which is not construed as a theory of property rights fails entirely in its own objective and thus must be discarded from the outset as praxeologically meaningless moonshine.