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L. Neil Smith on Anti-IP “Thieves”

As a followup to various posts (The L. Neil Smith – FreeTalkLive Copyright Dispute: Recent Blogposts on The Libertarian Standard and Mises Blog; Russell Madden’s “The Death Throes of Pro-IP Libertarianism”; Replies to Neil Schulman and Neil Smith re IP), I see Smith has posted another article, “The Medium and the Message,” that touches on IP.

In this piece, he again states that IP is valid but without offering any justification. He explicitly compares IP abolitionists to those who want to tax and regulate and censor the Internet: after describing these nefarious types, he turns to IP opponents, describing us as an “equally deadly threat to freedom of expression”. Yes, he literally said that. We are simply envy-filled socialists: “Like the socialists they are, most of them appear to envy and hate the creators of intellectual property, and relish a future they imagine in which it’s impossible to earn a living by writing.”  We are not libertarians; we are thieves: “Opponents of intellectual property rights are nothing more than thieves, and, no matter what they may claim, neither are they libertarians.”

But he provides no argument at all for the proposition that IP is a legitimate type of property. He just calls it theft. And he says, “There can be, of course, no moral distinction between physical and intellectual property …..” The “of course” apparently is supposed to do all the work here.

[TLS]

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{ 6 comments… add one }

  • J. Neil Schulman August 17, 2010, 12:34 pm

    Stephan,

    Here’s a property rights question for you.

    Let’s say I own a time-share condo.

    One year, during the two weeks I own the time share — the two weeks where I exclusively own rights to use it — I decide to vacation somewhere else, and leave the condo vacant during those two weeks.

    Someone else uses my time share during my two weeks of ownership, without my consent.

    Now, this is a non-rivalrous use of my time-share, since I wasn’t using it. No provable harm has been done to me.

    So by the non-rivalrous definitions you’ve been using to justify copying without license, have any property rights of mine been violated?

    Neil

    • Stephan Kinsella August 17, 2010, 1:24 pm

      Neil,

      The use of your property without your consent is exactly the definition of trespass. But we all agree on this because we libertarians all agree that the condo is a scarce resource, it is a subject of property, and that you are the owner. This is all easy and elementary, and non-controversial. This analysis doesn’t change by some observation that it’s a “non-rivalrous use” of the time share. This is in fact false. The condo is a physical object that is in fact rivalrous. If you are the owner it does not mean that you are the only one who CAN use it. It means you get to decide, you get to say, who uses it: that means you can use it yourself, or not; you can give others permission to use it, or you can deny them permission. Here, you denied permission, but it was used anyway. That is a classic case of trespass. None of us disagrees on this.

      The dispute between us arises since we do NOT agree on whether non-scarce things like patterns of information are legitimate subjects of property. The only reason I bring up rivalrous is that it is obvious that the quality of scarcity or rivalrousness of a thing is something we libertarinas all agree on that makes something property. It helps explain the function of the property rules: when there is rivalrousness, there is the chance of conflict; so a property rule permits the thing to be used peacefully and productively instead of the contestants violently battling over it.

      Once you realize this, it’s not too hard to see that in the world of physical action and force, of causal laws and action using means to change things–then assigning property rihgts in scarce things exhausts all that canbe done. If you make up proeprty rights in non-scarce things like information patterns, this has to come at the expense of rights in scarce things, just as adding positive welfare rights comes at the expense of negative rights.

  • J. Neil Schulman August 17, 2010, 1:44 pm

    Stephan,

    It took a while but I finally got you. Your condition of “non-rivalrous” usage is not now and never has been a necessary condition for exclusive property ownership.

    A novel manuscript, a single recording or sheet music of a song, or a painting — before any copies are made — are all singular, scarce objects, just as a condo is a single, scarce object.

    A time share licenses usage of that condo into multiple time units. If one divides the condo usage into two-week shares, usage has now been “copied” twenty-five times. There are now 26 usage units where before there was but one.

    Usage of any of those units without permission is trespass. You’ve just conceded that. Because usage of any of these newly created time-usage units is non-rivalrous with the others, we have now clearly negated “non-rivalrousness” as a necessary condition of property rights.

    The person who uses my usage unit without my permission when I’m not using it has not deprived me of anything. Yet, you concede that they have violated my property rights.

    In effect, you acknowledge that “squatting” — unauthorized use of an unused property without permission of the owner — is a violation of property rights even though it is clearly a non-rivalrous use. You are willing to call that tresspass.

    Yet, when I argue that my ownership of a manuscript I’ve created, or a recording or sheet-music of a song, or a painting, likewise gives me exclusive rights to license use of that thing — including restricting the right to use it which is non-rivalrous — you then create a definition of “non-rivalrousness” regarding the uses to negate my exclusive right to licenses uses.

    Thus, your entire case for “non-rivalrousness” as a necessary condition for the claim of property rights is refuted THUS.

    J. Neil Schulman

    • Stephan Kinsella August 17, 2010, 4:56 pm

      Stephan,

      It took a while but I finally got you. Your condition of “non-rivalrous” usage is not now and never has been a necessary condition for exclusive property ownership.

      I think you mean rivalrous, not non-rivalrous

      A novel manuscript, a single recording or sheet music of a song, or a painting — before any copies are made — are all singular, scarce objects, just as a condo is a single, scarce object.

      No it’s not. The physical thing it’s on is a scarce object, but the pattern of information is not scarce since if someone copies it, it doesn’t take it from you. The fact that there is only one copy of it extant is irrelevant. The fact that there is onyl one copy and you have ownership of the scarce substrate on which it’s impatterned might give you the practical ability to prevent people from copying it (but it might not: if you own a house of a particular design, then others can see it and learn of its shape and design). If you have the ability to keep information secret, that is your right of course. But it does not mean information is scarce.

      A time share licenses usage of that condo into multiple time units. If one divides the condo usage into two-week shares, usage has now been “copied” twenty-five times. There are now 26 usage units where before there was but one.

      This is just nonrigorous metaphroical talk. There is no copying. There is one condo. It has 26 co-owners, who by contract between them specify who has the right to use it at particular dates. You dont need this imprecise language to set the ground for equivocation.

      Usage of any of those units without permission is trespass. You’ve just conceded that.

      yes, I have “conceded” that peopel who use others’ property without permission are trespassing. Some concession you wrung out of me!

      Because usage of any of these newly created time-usage units

      It’s not usage of a time-usage unit. It’s usage of a physical building contrary to the current owner’s wishes. You are making it complicated to try to be able to make some equivocating case. It’s really very simple.

      is non-rivalrous with the others, we have now clearly negated “non-rivalrousness” as a necessary condition of property rights.

      I think you mean rivalrousness. But no, you are wrong anyway.

      The person who uses my usage unit without my permission when I’m not using it has not deprived me of anything. Yet, you concede that they have violated my property rights.

      Neil, if a guy rapes a girl who has passed out drunk, and she wakes up “unharmed,” we still say she was raped. You are trying to contort libertarianism and make us say that what we realy favor is only prohibitions against causing measurable damage or “taking” something. Thsi is not true. Taking a fungible commercial object from someone is not the only form of crime. Our view of aggression is not limited to this. If you punch someone in the arm that also is trespass even if they recover. There is no reason to say not it’s not crime, just b/c nothing is “taken”. A crime is the unconsented-to use of someone’s property–you could also characterize it as an invasion or invasive use; or as an unconsented to change in the physical integrity of someone’s property. it has nothing to do with ‘taking” anything. See note 11 and text of my “What Libertarianism Is.”

      In effect, you acknowledge that “squatting” — unauthorized use of an unused property without permission of the owner — is a violation of property rights even though it is clearly a non-rivalrous use.

      … trespass has nothing to do with “non-rivalrous [rivalrous?] use”. It has to do with unconsented to use of a rivalrous, scarce, owned resource.

      You are willing to call that trespass.

      Everyone in the world is.

      Yet, when I argue that my ownership of a manuscript I’ve created, or a recording or sheet-music of a song, or a painting, likewise gives me exclusive rights to license use of that thing — including restricting the right to use it which is non-rivalrous — you then create a definition of “non-rivalrousness” regarding the uses to negate my exclusive right to licenses uses.

      It happens to be a fact that if I use information to guide my actions in the use of my own scarce means, that this does not in fact invade the borders of your own property. YOU guys are the ones disingenuously, question-beggingly ASSERTING that “copying is theft” in an attempt to analogize it to something we all recognize is aggression: outright theft of real things. Theft is only one type of aggresion,but it is a type of aggression. And if you say copying is theft, you are trying to smuggle “copying” in as a subtype of theft, so that it sounsd like it’s aggression. YOU are the ones claiming “A” is (like) theft. so I am pointing out that it is of course NOt theft–unlike theft, where i am deprived of the thign, you are not deprived of yoru pattern if I use a similar pattern of information to guide my own actions. That does not mean that only theft is a crime. Moreover, if someone uses my condo when I’m not there it is still the case that I cannot use the condo at the same time as the trespasser if I want to–but with information this is categorically different as anyone can easily see. Jefferson got this right long ago dude.

      Thus, your entire case for “non-rivalrousness” as a necessary condition for the claim of property rights is refuted THUS.

      Again, you mean rivalrousness,but no, you have refuted nothing. this is all a bunch of bluster and needless confusion that just makes the waters murky and imprecise and metaphorical; it’s a simple issue that is evident if you don’t make it cloudy.

  • David K. August 21, 2010, 8:48 am

    Neil’s argument seems to rest on a misunderstanding of the term “scarcity.” If a resource is scarce, then there’s some way of using it which precludes at least one other way of using it that would otherwise have been possible. This doesn’t imply that every way of using it precludes every other way of using it.

    • David K. August 21, 2010, 8:51 am

      Hence, a trespasser might use my property in a way that doesn’t conflict with the use I happen to be making of it, but this doesn’t mean my property isn’t scarce.

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