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Answering a Reader about Utilitarianism and IP

From an email sent initially to the wrong me (Stephen Kinsella’s I am Not) a few months back but then helpfully forwarded on to me by my fellow Kinsella. Our edited thread.

From one “Monty”:

Mr.  Kinsella,

I read your essay Against Intellectual Property and it left me with a question I hope you might be willing to answer.  Your justification for protecting tangible property rights–to avoid conflict over scare resources—strikes me as fundamentally utilitarian in nature.  Yet you reject utilitarian defenses of intangible property rights.  But if it is ok to enforce property rights for one utilitarian reason, why is it not ok to enforce property rights for another utilitarian reason?

Thank you, Monty


It’s not utilitarian, it’s consequentialist [see Randy Barnett, “Of Chickens and Eggs—The Compatibility of Moral Rights and Consequentialist Analyses” (PDF); Introduction to idem, The Structure of Liberty: Justice and the Rule of Law (Oxford: Oxford University Press 2d ed. 2014)], and descriptive (utilitarianism just being one type of consequentialism). And I see no incompatibility between a principled (deontological) approach and a consequentialist one.

In any case, if we explain that property rights arise because of the need of cooperating humans in society to find a way they can use rivalrous resources without conflict… then even if you can deride the property rights system that we come up with in service of this goal–that simply does not mean that IP rights are justified. For they do not reduce conflict but give rise to it and simply artificially redistribute wealth from current owners to new owners, which is both unjust and also leads to more not less conflict.
 Monty, with my comments interspersed:
Thank you, Stephan.  I really am conflicted on IP rights and I am just trying to figure out what to think in my own mind.  Whether we want to call them utilitarian, consequentialist, or whatever (I am no philosopher and the labels don’t mean much to me), it seems to me that reducing conflict (the justification for property rights) and encouraging innovation (the justification for IP rights) are alike insofar as they seek to justify government intervention on the basis of overall social welfare rather than some notion of “moral” entitlement.
[NSK:] I don’t think the state is justified at all. Law is, but the purpose of law is to provide rules that allow people to use resources cooperatively and without conflict. As such, law is not “government intervention”. And the purpose of law is not to “encourage innovation”.
As such, it’s hard for me to see why we should embrace one justification and not the other (assuming they are both true empirically).
[NSK:] Because they are incompatible. Law cannot both encourage innovation, and enforce property rights so as to reduce conflict. One has to give. To reduce conflict you must have property rules that permit original appropriation of resources (otherwise they could never be used in the first place) and it must respect contractual transfer (otherwise it does not protect property rights at all, since the thief of property, by being its next possessor, would then be its new owner). In other words, to reduce conflict the law has to be compatible with (a) the Lockean original appropriation rule: that the first to use a resource is its owner, unless (b) he contractually gives it to someone else. So that means the law, to be just, and to permit conflict to be avoided, must recognize A as the owner of a resource if he has either an earlier claim than B, or a contractual transfer from a previous owner that is better than B’s claim to the property. If A was the first one to own a resource or got it by contract from a previous owner, then if B claims the right to control the resource, B has to LOSE the dispute (according to law), UNLESS A has somehow committed aggression against B (a tort or crime: an invasion of the borders of B’s own body or property) which gives rise to a right of B to claim compensation from A and thereby to seize some of A’s property as restitution or rectification.
But intellectual property gives B a right to tell A that A cannot use some of A’s own property in certain ways. In effect it gives a negative servitude [see Intellectual Property Rights as Negative Servitudes], a type of property right, in A’s property, to B. It’s a transfer of some of A’s property rights to B, even though a did not commit a tort or crime against B, and even though A had an earlier ownership claim to those resources, and even though A never signed a contract with B giving him a negative servitude. So IP undercuts the necessary conflict-avoidance principles of law and is a wealth redistribution from A to B: it is legalized theft.
But I nonetheless appreciate your response.  I will keep thinking about it.
{ 14 comments… add one }
  • Dave Burns June 22, 2017, 5:35 pm

    I agree with your conclusion that IP is not justified. I disagree with the argument you made in this post, however.

    You argue that IP imposes limits on property owners that in effect partially confiscate their property. This makes sense only if we have already decided what property is, but that is the question we wish to settle. In all cases, property owners are limited in what they can do with their property by the boundaries of other persons’ property. If I own a gun and the bullets in the gun, it is not a confiscation of my property to prohibit me from shooting you arbitrarily. I cannot use my property to violate your property without your permission. The question is, what is mine and what is yours?

    If we assume that the IP is legitimate, the limitations it places on me with regard to making copies with my own media appear perfectly proper, no different from the limitations placed on my use of my gun and bullets.

    The problem with my analogy is, we don’t want people shooting their guns at random, endangering people near and far, but probably we do want people thinking up new ideas and trying to make use of them. Perhaps this gives us a basis for criticizing IP, but it uses only consequentialist logic. It treats the two possibilities as morally equivalent and bases our choice on which sorts of behaviors we want to encourage or discourage and what sort of outcomes we expect from each.

    Physical media must of necessity qualify as property, because of the rivalrous nature of their use. If I am using a particular physical object for a particular purpose, this will preclude it’s being used for many other possible purposes. Only under rare and peculiar circumstances can the same object be used by different persons for different purposes at the same time. Property rights and ownership allow us to coordinate our activities with regard to such objects.

    But information has no such inherent limitation. If I copy your information onto my media, you still have your information on your media. There is no necessary rivalry between us in using this information. (This is true unless it is useful only if kept secret, in which case copyright and patent are irrelevant, since they apply primarily to information intended to be shared.)

    So in the case of physical objects, we have no choice but to regard them as potential property, but in the case of information we have a choice. We can either regard information as not being property and take advantage of its inherent difference, or we can create artificial scarcity and rivalry, sacrificing some of its convenience for the sake of encouraging more production of useful information and recognizing the efforts of creators.

    There are many historical or consequential arguments for and against IP. Do we have a good a priori justification for choosing for or against IP, or do we just choose on consequentialist grounds? In practice, this gets decided by disputants and arbitrators. Is there an a priori principle that we would hope could guide them? Hoppe’s argumentation ethics specifically excludes IP, but that is not quite the same as concluding that IP is never justifiable or internally contradictory.

    Maybe we can use the principle of proportionality. Violating IP is a very trivial offense, causing no significant harm and sometimes very difficult to avoid even for someone willing to exert great effort to follow the rules. A system that punished IP violators in a strictly proportional fashion would not work. The cost of detecting violations far exceeds the damage done by a violator. The system can only work by punishing disproportionately, hence it is unconscionable. (IP is an attractive nuisance?)

    Even this is not a true a priori solution, since the answer would be different if detecting violations was essentially free.

    TL;DR you can’t use the NAP to derive or disqualify property rights, because the NAP depends on property rights. What is the principle we use to derive IP?

    • Dave Burns June 22, 2017, 5:40 pm

      What is the principle we use to derive *or refute* IP?

    • Dennis New June 23, 2017, 6:47 am

      IP cannot be legitimized — it forces third parties to follow rules they never consented to. Which is a subset of the general illegitimacy of statism. The NAP disqualifies them both.

      • Dave June 23, 2017, 12:46 pm

        @Dennis: Do third parties consent to the NAP? Are you sure that IP is not part of the NAP?

        The definition of property rights, morality, consent, aggression, etc. all depend on each other. Perhaps one of them is fundamental and determines all the others, or these all depend on some other even more fundamental principle. Discussions of IP make assumptions about this, usually implicitly. Someone who supports IP is in effect arguing that IP is built in to all of these ideas, or at least that these ideas leave space for us to choose IP. If you take the NAP and a particular conception of property rights as given, you are not discussing the IP question, you’ve already assumed the conclusion.

        Since this is Kinsella’s page, we should point out that you can’t argue for IP using an estoppel argument. Maybe he should have made that point instead of begging the question. Perhaps he is too modest?

        • Dennis New June 23, 2017, 1:19 pm

          Re: “Do third parties consent to the NAP?” … someone who doesn’t “consent to it” advocates for attacking innocent people. Morally speaking, anyone who hurts innocent people can be punished.

          As Kinsella has explained many times before, so-called “intellectual property” laws violate pre-existing nap-friendly actual property rights to one’s body and possessions. For example, if I own a block of wood and a spring and some cheese, I ought to be free to create a mousetrap, but IP laws could violate that. They’re a logical contradiction.

          • Dave Burns June 24, 2017, 5:13 am

            @Dennis So, must third parties consent to the rules or not? You’ve now taken both positions, haven’t you?

            If IP is valid property, either it is consistent with the NAP or the NAP is self-contradictory. You can’t use the NAP to argue against property, because it takes property as given. We are trying to establish or refute the idea that IP counts as property. If we use the NAP to refute IP, we have simply assumed our conclusion. The argument is, assume a definition of property incompatible with IP, assume the NAP defines violations of property as aggression, IP violates our assumption about property, therefore it violates the NAP. The IP supporter can make an similar argument: assume a definition of property compatible with IP, assume the NAP, conclude that any violation of IP is a violation of the NAP. Both arguments just assume their conclusion. In order to establish or refute IP, we want something less self-referential.

            I am thinking over my Hoppe comment some more. He wrote: “Furthermore, it would be equally impossible to sustain argumentation for any length of time and rely on the propositional force of one’s arguments if one were not allowed to appropriate […] other scarce means through homesteading action […], and if such means and the rights of exclusive control regarding them were not defined in objective physical terms.” Some IP can’t be defined in objective physical terms, but some can. I’m not sure that the similarity between “He’s so fine” and “My sweet lord” can be defined in objective physical terms, but a bootlegged digital copy of either of them can be identified objectively. So Hoppe’s derivation does not necessarily exclude some kinds of IP, but might exclude others.

            No comment about my suggestion that estoppel or proportionality might be capable of refuting IP?

          • Dennis New June 24, 2017, 7:17 am

            Re: your June 24 morning comment:

            The “NAP” is a special kind of rule — it’s universal — it is morality, basically. Ie. you can’t logically justify a universal rule that aggresses against innocent people (a non-nap rule).

            The IP supporter can’t make a logical coherent non-contradicting definition for IP. I just gave you an example of it’s invalidity/self-contradiction, with the mousetrap. Notice that you have never defined it. Are you including trademarks and patents and copyrights? Would you punish file copiers in foreign countries? How long would your copyright terms last? The best you can do is have an opt-in system of contracts — but never some universal definition of property. There is no victim, no self-contradiction, in copying another idea — unlike “violations of the NAP”.

            How would estoppel refute IP?

          • Dave Burns June 24, 2017, 7:54 pm

            Estoppel uses the action of the violator to justify the punishment. By killing someone, a murderer’s actions imply that arbitrary killing is justified. Hence the murderer cannot object to being killed as punishment. He or she would have to come up with a more narrow justification for killing (e.g. self-defense) or lose the basis for objecting to punishment. Similarly a thief’s actions announce his disregard for property rights, hence his own property, perhaps including his body, can be confiscated and he has no standing to object. Only those who consent to the rules must obey them, but if they don’t consent they are not protected by the rules.

            But someone who violates IP is perfectly willing to give up any protection IP would provide. The only punishment estoppel can justify would be that bootleggers don’t get to prosecute anyone who violates their own IP. But a principled opponent of IP welcomes this “punishment”. Furthermore, IP cannot survive under such conditions. IP requires draconian punishment to disincentivise violation, because detecting violations is costly and difficult. If my punishment for making mash-ups is that I have to let other people use my work to make mash-ups, then IP has lost.

            With regard to your mousetrap example, I don’t think you understood my gun example. You can do as you like with your wood and wire and spring and cheese, up to the point where it violates someone else’s property. You can’t make a mousetrap and snap it on my nose without my permission. If IP is valid, then making a mousetrap that violates IP is analogous to using it to break my nose. If we begin with the assumption that IP is BS, then your example is valid, but also pointless. If we are trying to determine whether IP is property or IP is BS, we can’t say IP isn’t property because it limits the owners’ use of their property, because all property limits other owners’ use of their property to some extent. If my car is parked in a spot, you can’t park in that spot. If you’re in the way, I can’t fire my gun (without self defense as justification). And if someone “owns” the design of your mouse trap, you can’t build it without their permission.

            These are two incompatible conceptions of property (with and without IP). We can’t say “this one is wrong” just because it contradicts the other. Obviously each contradicts the other. But which one is right? Does either contradict itself? Does it contradict some more fundamental principle? That’s the issue we must settle.

        • Dennis New June 24, 2017, 8:43 pm

          If I were to copy your mousetrap, I haven’t harmed you, or affected your life in any way. It is thus evil to be punished for it — that would be the initiation of aggression. Copying is not aggression — something that doesn’t harm you, that has no affect on your life, cannot possibly be considered an aggression.

          • Dave Burns June 24, 2017, 10:37 pm

            I like this approach better. If I steal your bike you have no bike, if I copy your song you still have your song. This demonstrates the important difference between IP and ordinary property.

            But is harm the right criterion to use? If you trespass on my land, do I have to show that you harmed me or affected my life by doing so in order to have grounds to object? If you borrow my bike without my permission, and return it in better condition afterward, does this justify your action? If I shoot a gun at you and miss, no harm is done. Does that mean I have not violated the NAP or committed an act of aggression?

            Whether copying is aggression or not *is the issue*. If IP is valid, copying counts as aggression.

            The way I understand property, if you use my property without my permission, that is a violation, whether I am harmed by your use or not. When you use an idea, you are definitely using it. If it can be owned, you need the permission of the owner to use it. If it can’t be owned, you don’t need the permission of anyone to use it. We seek practical or principled arguments that conclude n favor of one or the other, but we can’t just make assumptions about aggression or property without showing reasons for them.

            In a previous reply, you noted that I have not defined IP. I am not defending IP or arguing for it, so I don’t need to define it. I am criticizing Kinsella’s argument against IP, which I think is fallacious because it just assumes that IP is not property, which should be his conclusion, not the assumption he starts with.

        • Dennis New June 25, 2017, 7:09 am

          Q: Do I have to show that you harmed me or affected my life by doing so in order to have grounds to object?
          A: Yes — that is literally the only purpose for laws.

          Q: If you borrow my bike without my permission, and return it in better condition afterward, does this justify your action?
          A: It would justify me taking things from you without your permission. The punishment could be worse if you happened to take my bike when I really needed it. What if my mom was having a heart-attack, and the only way I could get her to the hospital was with that bike — well then you could reasonably be charged with manslaughter.

          Q: If I shoot a gun at you and miss, no harm is done. Does that mean I have not violated the NAP or committed an act of aggression?
          A: It would justify me aiming a gun at you, with the intention to kill you, and probably killing you — but there’s a chance you could survive, like I survived. I guess technically speaking, neither is necessarily a violation.

          The reason I pointed out the lack of a definition of IP here, is because, like I said, I think the second you try to make one, you’ll see it’s contradictions and illogic.

          Kinsella didn’t simply “assume that IP is not property”. He’s produced tonnes of written and spoken work meticulously explaining what property is (based on scarcity, rivalrous, the intention of which is to minimize conflict).

          • Dave Burns June 25, 2017, 12:57 pm

            I’m not criticizing Kinsella’s other work, I am criticizing this post, which (it seems to me) depends on us already having made a decision about what counts as property (without discussing the basis for that decision) and then using that to exclude IP, rather than treating IP and non-IP as alternatives and arguing for one and against the other. You can’t “artificially redistribute wealth from current owners to new owners” unless you already know who owns what on what basis. The dispute about IP seeks to determine who owns what, we only know that after we conclude our argument. We could make the exact same argument in the reverse direction and say that non-IP redistributes wealth from true owners to interlopers. And it would be just as fallacious. In fact, if IP is a redistribution, this redistribution has already taken place, and if we agree with Kinsella’s conclusion, and other redistribution must take place in order to restore ownership to the rightful owners.

            I am not asking about the ultimate purpose of laws, but their application. You seem to be saying that a violation that causes no harm does not qualify as a violation. I guess we just disagree. If you touch me, and I ask you not to do that again, and you do it again, you don’t have to injure me for it to qualify as a violation of my rights. Proportionality suggests that a harmless violation deserves less punishment than a harmful one, but not that a harmless violation is justified or does not qualify as a violation.

            My lack of creativity regarding the definition of IP does not count as a nonexistence proof, especially since I do not advocate for IP. The fact that it is possible to hide infringements doesn’t mean they didn’t happen or can’t be identified or understood. In the case of a bootlegger selling unlicensed copies of a popular movie, I’d say infringement is clear and objective. But I admit your argument about the difficulty of defining IP is better than Kinsella’s argument about artificially redistributing wealth.

        • Dennis New June 25, 2017, 10:06 pm

          Proportionality suggests that there ought to be no punishments for “IP violations”, a.k.a. copying ideas.

          A bootlegger selling copies of a movie did not break any non-disclosure contracts himself, and has no effect on the movie studio whatsoever. His customer is essentially saying “I do NOT want to support that movie studio” — it’s essentially a peaceful act of protest, that doesn’t harm the movie studio at all — it’s absurd to then assert that his money ought to go to the movie studio, that the studio lost money, when he pretty clearly stated he didn’t want to give them his money. If the bootlegger didn’t exist, it’s far more reasonable to assume that the movie studio still wouldn’t have gotten paid. In any case, by proportionality, the bootlegger didn’t harm the studio, and thus ought not be harmed himself.

          It was Kinsella who first explained to me how IP can’t be logically objectively defined; that it completely undermines the idea of ownership, if at any time your actual material possessions can be taken away from you; that limits on the durations of copyrights/patents are nonsensical/unjust if they’re actually forms of property; that it’s functionally insane to have to pay Aristotle’s progeny royalties for his works, and all the millions of other people’s ideas that we constantly use every single day.

          • Dave June 26, 2017, 7:01 pm

            Yes, proportionality and estoppel agree that IP is hopeless.

            “it completely undermines the idea of ownership, if at any time your actual material possessions can be taken away from you;”
            By “taken away” do you mean limited, as in you can’t put just any pattern of bits on this DVD? Are you just repeating the confiscation idea that I criticized in my first comment?

            I understand what you are saying – I can’t use my physical DVD to store any information I want if IP is in force, and this is a limitation on my use of my property. But I’m not sure you understand what I am saying. There are many other things I cannot do with that DVD, including sticking it in your ear. That is just how property works, whether intellectual or physical, it is limited by other property. But we are repeating ourselves now. Maybe we should let the confiscation issue rest. Or we should at least find something new to say about it.

            “limits on the durations of copyrights/patents are nonsensical/unjust”
            I agree. But there are two solutions to that problem, no IP at all or IP of infinite duration.

            “it’s functionally insane to have to pay Aristotle’s progeny royalties for his works”
            That is a pure consequentialist argument, and an IP supporter would just spout the same back at you, claiming “my consequences can beat up your consequences!” I guess you might win that argument, but the IP supporters seem to have a big advantage due to status quo bias.

            The question is, what is the principle that establishes IP as either just or unjust? Estoppel and proportionality argue against IP. What do the supporters of IP claim as their principle? They claim that the creator owns the creation.

            But “creator owns creation” runs into contradictions or difficulties. When people create derivative works, like covering a song or making a mash-up, the creator doesn’t own the creation. Either the original creator trumps the derivative creator or the reverse, but in either case a creator gets the shaft. Either the original creator gets all the power and the derivative creator gets stifled, or the derivative creator gets the power and IP is worthless.

            In an ideal world, we would be able to measure how much contribution each collaborator made to a creative product and assign their ownership accordingly. IP as it is and as we can imagine it stifle creators and deny them ownership of their creations.

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