[See also IP and Aggression as Limits on Property Rights: How They Differ]
Stephan Kinsella 
“Russ”:
If IP really were a valid right, then a person *would* have “a right to use *force* against another to prevent them from using *their own property* to reproduce the aforementioned creator’s work”. That’s what the word “property” implies! For instance, let’s say that you own a gun. Let’s say that I own a dog. By virtue of my ownership of the dog, I *do* have the right to use force against you to prevent you from using your own property (your gun) in any way you might wish (e.g. if you wish to shoot *my* dog with *your* gun). Similarly, any property right implies the right to use force to limit what another can do with their own property.
Sure. And if chattel slavery were valid, the whipping of one’s slave would not be aggression. And if pigs had wings they could fly. But chattel slavery is not valid, and pigs do not have wings–and IP is also not valid.
Your mistake seems to be the assumption that property rights give you the right to do anything whatsoever with your property.
No, the assumption is only that you may engage in whatever action you wish, except those that invade the borders of others’ property–where “property” is conceived of in the Lockean sense of scarce resources homesteaded by appropriation, based on the first-comer has better title than the latecomer principle.
The fact that some actions are impermissible because they are invasions of others’ property rights has nothing to do with any “limitation” on one’s own property. You may not commit murder, whatever the means–whether it’s your gun or not. The limitation on action is not a limitation on property rights.
They don’t. The right to swing your baseball bat ends where my front window begins. Similar, if IP rights were valid, your right to use your computer would end where my IP rights begin. Your argument just says that IP rights are invalid, because the limitations they necessarily impose on others’ property are invalid. But the limitations that IP rights impose are no different than the limitations that classical property rights impose.
Wrong. The limitations you are speaking of are not a property rights limitation but rather a limitation on one’s actions.
If these limitations are wrong, and invalidate IP, they also invalidate classical property rights.
If you want to keep classical property rights, which it seems you do, you need to come up with another reason why IP rights are invalid. I prefer an argument that is based on the fact that material objects are scarce goods, while patterns of ones and zeroes are not.
Because the question always comes down to: who owns this scarce resource–e.g., in a typical IP case, the IP “owner” claims the right to prevent A from using a scarce resource A himself homesteaded or acquired contractually from a homesteader. He claims the right to prevent this use even though A’s use–his action–does not invade any borders of A’s property. It is very different than your typical prohibition on murder etc.’
Published: December 30, 2009 3:20 AM
- Stephan Kinsella Gil:”If I can’t spray a hail of bullets into a crowd of innocent people then I don’t fully own my machine gun.”
The prohibition on your shooting bullets is not a limitation on your ownership of your gun. It’s a limitation on what action you can perform–whether the action uses your own gun and bullets or those of another person. Ownership has nothing to do with hit. (See my comments here.) The reason I may not shoot people (with whatever gun) is just a specific application of the genernal notion that I may not act so as to cause the invasion of the borders of another’s property; I may not invade their property borders; I may not interfere with the physical integrity of their property; I may not use their property without their consent. I may not trespass. All these things are actions that employ some means, of course, but the means need not be owned by me, and it is irrelevant whether they are (see also Intellectual Property and the Structure of Human Action). So the prohibition on my action is a result of presupposing the validity of property rights in scarce resources.
For you to make an analogous case about IP, to argue that my putting a pattern on my own DVD may also be prohibited, you have to argue that the action itself is trespass. That is, that my impatterning my own DVD somehow invades the borders of someone else’s property right.
There are only two ways this is so. First, if the DVD is not my property. But this is false, per assumption. The other way is if my action somehow invades the borders of some other scarce resource that another person owns. But clearly it does not. I am not interfering whatsoever in your abiltiy to use your own body and resources.
The only remaining way out of this is to say well, it doesn’t trespass against any physical property you own, but it does trespass against your property in a certain idea, since it prevents you from using and exploiting that abstract, disembodied idea as you see fit–it uses the idea without your permission. And this is true. It does use the idea without your permission. But this is only trespass if you own the idea. Which is the question under consideration when IP rights is debated: so it’s merely a circular, question-begging assumption. It is a totally invalid argument.
Published: January 21, 2010 2:59 PM
- Silas Barta
The prohibition on your shooting bullets is not a limitation on your ownership of your gun. It’s a limitation on what action you can perform–whether the action uses your own gun and bullets or those of another person …
Any argument that merely involves relabeling things is an automatic fail.
(Which includes the quoted one above)
If I can’t do X with my machine gun, that is a limitation on my right to use the machine gun. It doesn’t matter if it arises from someone else’s rights, or the lack of a specific right to do X.
If you want to make a crucial, insightful argument, these relabeling tricks just don’t work.
Published: January 21, 2010 3:16 PM
- Stephan Kinsella Person,
If I can’t do X with my machine gun, that is a limitation on my right to use the machine gun. It doesn’t matter if it arises from someone else’s rights, or the lack of a specific right to do X.
If you want to make a crucial, insightful argument, these relabeling tricks just don’t work.
Silas, the trick is in people who say that there is nothing wrong with IP’s infringement of property rights since after all, your property rights are limited in all sorts of ways. This is a common argument; and it is wrong.
The reason I am not able to use my bullets to kill you is because using them in this manner invades the borders of your own property–your body. Using my blank DVD to impattern it in a certain way, however, does not use your body or other scarce resources, so you can’t say the two limitations are analogous. To make them analogous you have to presuppose that you own the pattern itself, which is question-begging.
Now do you get it?
Published: January 21, 2010 3:50 PM
- Peter Surda
Grudgingly, I have to agree with Silas. The argument presented this way is circular. It might be in future possible for me or someone else to “fix” this problem, however so far the approach has failed.There is a slightly similar issue however, one that Silas has failed to address. The only way to conclude that trespass in IP occurred is to observe the trespasser. With rival goods, including EM transmissions, this is not necessary, because a trespass on those leads to an observable change occurring at objects in the rightful owners’ possession or at their premises. For example, a stolen car is observable by the lack of the car in the parking space. EM inteference is observable by receiving a different wave than the one expected.
Besides the practical question of how to monitor everyone, there is a more fundamental problem. If the only way to conclude trespass is that the trespasser performs a certain action (regardless of his location), any action whatsoever can be claimed to be a trespass. Why is “copying” singled out as the only action that leads to such conclusion? Why not any writing? Why not any attempt to create a machine, or a drug? Why not laying on one’s bed? Or blowing one’s nose?
Published: January 21, 2010 3:59 PM
- Stephan Kinsella Surda, what argument is circular? I disagree, if you are talking about mine about action etc. To say an action (or use of property, whatever) is prohibited because it infringes on the property of others, in typical cases such as trespass, does indeed presuppose the validity of property rights in scarce resources. It presupposes only that invasion of the borders of others’ owned scarce resources, is prohibited. Thus, if we assume both sides to the debate accept this, it does not follow that we have to accept that it’s okay to prohibit a use of property that does NOT amount to such trespass. This argument is not circular in the slightest. The argument simply points out that B does not follow from A.Published: January 21, 2010 4:28 PM
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