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On J. Neil Schulman’s Logorights

From Mises blog. Archived comments below.

On GMO patent infestation, Kent Hastings comments on my IP views and those of J. Neil Schulman. Schulman responded:

My article “Informational Property: Logorights” begins by specifically disclaiming any state grants of monopoly. The concept stands or falls on its natural-property-rights arguments. Neither Samuel Edward Konkin III or Stephan Kinsella or anyone else has ever successfully answered the challenge I raised in my article, that without the identity of a thing being real enough to make it claimable as property, there would be nothing identifiable existing to be copied in the first place.

This is not arcane. It’s just being pointedly ignored — and Kinsella’s attempts to change the subject don’t make me forget what I wrote.

My response is as follows:

Neil, I said your term “logorights” is somewhat arcane, not your theory, and there was no disrespect implied.

I think you are just wrong to assume that “having an identity” is a sufficient condition for being subject to property rights.

Consider: one has no property right the value of one’s property, as Hoppe and Rothbard have argued (see Sheldon Richman on Intellectual Property versus Liberty); and likewise, one has no property right in the “identity” of one’s property.

The reason is that owning value, patterns, identify gives you an ownership right in others’ already-owned property. Saying you own the “identity” of a thing you own is another way of saying you own the pattern by which it is arranged–which is a disguised way of saying you have ownership rights in things everyone else owns. The standard Lockean account of property accepted by most libertarians says that the person who appropriates a previously unowned scarce resource becomes its owner. The IP advocate, of which you are one, says that if A thinks of a unique way to use his property or a unique pattern to impose on his own property, this act of intellectual innovation magically gives him partial ownership rights in property already owned by others. It lets you tell B how he can use his own property, even though B is the appropriator and by Lockean principles only B should be the owner. Granting A an IP right just means some of B’s rights of control are transferred to A–it’s a transfer of wealth or property, and it’s incompatible with libertarian property rights.

The mistake Rand made was thinking “anything you create” is property, without first asking if the thing created is the type of thing that is subject to property in the first place. In fact, creation is neither necessary nor sufficient since if you create some new pattern using others’ property you are not its owner; and if you impose a new pattern on property you own, then you own the transformed thing since you already owned the stuff of which it’s made. A focus on creation as a source of ownership is the mistake made here. Creation is a source of wealth, sure, but not of ownership, since you can only create using things you already own.

Tibor Machan makes a similar mistake to your “identify” view when he assumes that many “ontological” types of things can be property–the mistake is in assuming that the way we conceptually and terminologically understand the world has some metaphysical basis that translates into property rights. By this view any concept we come up with to “identify” things that is successful, has magically created a new class of property. I find the concept “poem” useful–it is conceptually valid.. poems “have” “identity”–voila, they must be property!

I don’t agree with this way of making rights depend on what concepts we have or how we identify and understand things in the world. Just because we can call something by a word, or call it a “thing,” does not mean it is ownable. In fact, all ownership rights are enforced in physical terms against scarce resources; which means that granting rights in anything else has to undermine and dilute real rights in real things.

For a further explanation of what is wrong with Schulman’s “logorights” theory and why it is contrary to libertarian property rights, see text at notes 48-49 et pass. to my Against Intellectual Property; see also the following posts, which point out various errors in the Randian “creationist” approach to IP (and apply more or  less to Schulman’s logorights idea too):

Articles:

Media:

Blog posts:

[Cross-posted on Against Monopoly and Mises Blog.]

Archived comments:

{ 9 comments… read them below or add one }

Stephan Kinsella July 2, 2009 at 10:57 am

Schulman replied on Facebook thusly (he said he had posted it here but I don’t see it yet so here it is):

Objections already overcome in my original article.

A book cover says “ATLAS SHRUGGED by Ayn Rand.” The first sentence is, “It was the best of times, it was the worst of times.”

What you bought has everything that makes a book a book: a binding, hundreds of sheets of paper with printed ink impressions on it, and a cover…. Read More

The book has the same number of pages, the same dimensions and weight, the same binding and style of printing as the book with the composition called ATLAS SHRUGGED. Do you have any just cause of complaint if the composition of words inside the book turns out to be something other than what the cover says? If you answer no, then you got everything you paid for. If you answer yes, then you are saying that the composition of words makes this book a different commodity from the book you thought you were buying, and therefore you are rightfully entitled to a copy of the composition of words labeled ATLAS SHRUGGED.

That’s material identity.

My response is that I do not think this is a good argument for IP. So what if you prove that the “identity” of a particular impatterned object includes the pattern? This does not prove patterns are ownable in and of themselves. A book also has a color–can you own color? It has a weight. Can you own its weight? Part of its identity also is its location, and the time that it exists–do you own locations, or time spans?

REPLY

Michael A. Clem July 2, 2009 at 11:45 am

Creation is a Person’s action which imposes that Person’s logos on something which exists to give that thing a unique identity it did not previously have.
Another quote from Schulman’s logorights article. Besides the fact that he’s assuming property is “creation”, the simple fact is that it is the labor involved that gives property rights, not its unique identity. If a person builds a house and fences in a particular piece of previously unowned land, it doesn’t matter if the house is unique, or identical to thousands of other houses that have been built–it is merely the fact that he has built the house on the land that gives him property rights in the house and land.

REPLY

David Spellman July 2, 2009 at 1:05 pm

“A focus on creation as a source of ownership is the mistake made here. Creation is a source of wealth, sure, but not of ownership, since you can only create using things you already own.”

Well, this argument throws all property out the window. The origin of property is based on homesteading–mixing your effort with previously unowned resources. Why does the anti-IP argument use lines of attack that are incompatible with defense of real property? I find it amusing to substitute the words like “land” for “intellectual property” and see how absurd the reasoning becomes.

All legitimate forms of property exist independent of the State. Anti-IP arguments should not reference State granted monopoly since Pro-IP arguments are not based upon State granted monopoly. A glaring problem with much of the Anti-IP dogma is the inability to divide State enforced rent-seeking from the debate about whether IP exists as an immutable class of property. It is like arguing that land ownership is invalid because the government practices eminent domain to seize property and give it to favored classes.

Mr. Kinsella argues ad nauseam that IP rights consist of nothing more than giving unjust ownership over everyone else’s property because IP is nothing more than an arrangement of atoms or thoughts. The pro-IP argument is clearly in disagreement with this axiom and posits that IP is more because it represents mixing of one’s effort with previously unworked veins of intellectual achievement.

Note that this is much different than color, weight, or time which do not have specific identities. Decrying the possibility of claiming ownership over these attributes as an attack on IP is an ignoratio elenchi.

Going back to the original quote, “A focus on creation as a source of ownership is the mistake made here,” I would say that this is not a mistake, but rather the crux of the discussion. The concept of IP revolves around the idea that if you spend the time and effort to create something no one else has done, you deserve to own it. If you homestead virgin land by fencing it and planting a crop, you have established ownership. If you homestead patterns and designs by spending time, money, and effort, you have established ownership.

Arguing against IP because it might lead to a maze of impediments to progress is like arguing against privatizing roads because it might lead to a maze of toll roads. In a truly free, privatized market, we expect that private roads will reach an equilibrium of travel cost versus mobility and that whatever that quiescent point turns out to be, it is just. How is it that we cannot apply the same faith to the world of idea ownership? Why do we have a Marxist mentality about mental labor? Do we honestly believe that devaluating thought is liberating thought?

Yes, there are many problems to be worked out with the malignancy of State sponsored intellectual property. There are serious problems to be worked out with practically everything in life due to State intervention. The question is whether we will see more progress by recognizing or denying an ownership interest in one’s intellectual achievements. Intellectual products are valuable–the question is who should reap the profits, the talented creators or the users who are not capable of creating what they want to use.

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Alpheus February 15, 2011 at 5:39 pm

When I build a fence around a plot of land, it’s clear that the land is fenced off. But how do I build a fence around an idea?

This is why I am anti-IP: ideas exist in a world separate from the physical ones. As you say, you own an idea by spending time, money, and effort in coming to understand it. But, once you own an idea, you *cannot* build a fence around it, and then expect me, who may be *completely unaware* of your existence, to be able to respect your claim to that idea. I can still study the subject at hand, and come to own an idea for myself.

Ah, but you might argue that copyright and patents are “fences”! Of course, legally they try to be…but they cannot succeed: no system of “idea fences” can prevent me from “trespassing”, or even knowing I am “trespassing”, on a given idea. While highly improbable, I can *in theory* write “Atlas Shrugged” without having ever read a single word of it. That may sound absurd–but when we’re talking about physics, or computer software, or chemistry, possibilities are much more limited, and people independently coming to the same idea, at about the same time, happens surprisingly frequently!

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Stephan Kinsella July 2, 2009 at 2:34 pm

Clem: great post.

Spellman:

“A focus on creation as a source of ownership is the mistake made here. Creation is a source of wealth, sure, but not of ownership, since you can only create using things you already own.”

Well, this argument throws all property out the window.

Nonsense.

The origin of property is based on homesteading–mixing your effort with previously unowned resources.

Yes, as I have written in detail. See e.g. How We Come To Own Ourselves.

Why does the anti-IP argument use lines of attack that are incompatible with defense of real property?

It’s not. It’s IP arguments that are incompatible with ownership of scarce resources.

All legitimate forms of property exist independent of the State. Anti-IP arguments should not reference State granted monopoly since Pro-IP arguments are not based upon State granted monopoly.

Pro-IP libertarians OPPOSE efforts to abolish IP law, so they ARe in favor of it. If they are in favor of some other scheme, the onus is on them to spell out exactly what they favor, instead of puning to future legal experts and judges. If they don’t know what they are talking about, perhaps they should remain silent.

A glaring problem with much of the Anti-IP dogma is the inability to divide State enforced rent-seeking from the debate about whether IP exists as an immutable class of property.

As opposed to “mutable”? What does this hocus-pocus type term add?

The pro-IP argument is clearly in disagreement with this axiom and posits that IP is more because it represents mixing of one’s effort with previously unworked veins of intellectual achievement.

If you use your labor to transform an object you own, you own the transformed object because you already owned the underlying material. If you use your labor to transform someone else’s property, it doesn’t give you ownership of it.

The concept of IP revolves around the idea that if you spend the time and effort to create something no one else has done, you deserve to own it.

And the assumption here is that any “thing” that you can conceptually conceive of is ownable property. Nonsense. You can’t own patterns of information.

If you homestead virgin land by fencing it and planting a crop, you have established ownership. If you homestead patterns and designs by spending time, money, and effort, you have established ownership.

Equivocation, and terrible argument. To homestead a tract of land means that (a) it was a scarce resource over which (b) conflict is possible and which you (c) were the first to appropriate it, demonstrating a better cliam than latecomers. That is, given that only one person can have the land, it has to be awarded to someone–and the earlier user has a better claim to it than a latecomer.

But for a pattern, latecomers who “use” the pattern don’t take your pattern from you. Conflict is not even possible.

REPLY

FTG July 2, 2009 at 4:01 pm

Car repairmen do not pay the authors of repair manuals one penny, despite the fact that their own efforts are physical reproductions of the ideas displayed in such manuals. Yet, even i the face of this lack of revenue, repair manuals are not lacking in the marketplace, nor are repairmen held in jail for not giving royalties to the manual writers. If a manual indicates that to repair fault A in car B you follow C and D, and the mechanic follows the procedure exactly, then he IS reproducing the idea in a physical form, without compensating the manual writer.

Of course the counterargument would be that copyright refers only to the right to copy the written material into similar media to make a profit, but that invalidates the reasoning behind IP since it makes it contingent to re-established laws and provisos, leading to question begging – i.e. it is valid because the law makes it valid, or it is limited to A and not B because the law says it is limited to A.

REPLY

Russ July 2, 2009 at 9:46 pm

David Spellman wrote:
“Well, this argument throws all property out the window.”

Incorrect.

Stephen Kinsella wrote:
“The mistake Rand made was thinking “anything you create” is property, without first asking if the thing created is the type of thing that is subject to property in the first place.”

So, Kinsella is saying that although your labor makes property (i.e. a scarce or economic good) into your property, it doesn’t make information your property. This is because information is not a scarce or economic good by nature, and thus is not subject to the concept of ownership. At least, that’s what I think he’s saying.

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Mark Jones July 3, 2009 at 10:09 pm

I’m going to try using html tags here, as it seems they may be accepted. Apologies if it comes out wrong. The comment form should mention what’s acceptable.

Spellman:

The origin of property is based on homesteading–mixing your effort with previously unowned resources.

….

The pro-IP argument is clearly in disagreement with this axiom and posits that IP is more because it represents mixing of one’s effort with previously unworked veins of intellectual achievement.

You appear to misunderstand what is meant by resources. The term is not inclusive of “unworked veins of intellectual achievement.” Knowing this, I suppose you may reconsider your first statement; though, I hope you continue to agree with it.

It is with utmost incredulity that I read rebuttals of the very natural, plain arguments that Mr. Kinsella and others, including myself, proffer. “How can these fallacies stand in the face of this?”, I ask. Nevertheless, despite my continuing surprise, the rebuttals continue.

I am happy to announce, though, that by granting this idea of logorights, they may be utterly confounded. For, to lay any claim, in the way put forth, to a pattern, one must cause all those informed to infringe said claim. Certainly, there can be no class of property for which that is true.

It’s analagous to Clinton’s infamous “That depends on what your definition of is is” line.

If this sounds too absurd to be true, allow me to explain. To claim a pattern or configuration, one must inform others of this claim. However, by informing others, you have caused them to hold this pattern in their mind. Not only is it in their memory, but insofar as they may consider one’s claim, they must use the tools of their mind to, again, produce for themselves a configuration corresponding to this pattern.

You may snort, “But they can not use this ‘configuration!’”. Ah, but they can and must. They must use it to compare to the typical forms which one thought one was claiming ownership over; they may use it to consider other ideas or improvements; they may use it to produce in their minds the products of its actions (if it were a machine); etc.

Neither can the retort stand that this is only an “imaginary” manifestation. My thoughts are as real as the keyboard I am using, and they have various, real effects. Indeed, in this scheme, one may patent, or claim logorights over, that which never exists beyond a thought. Also, the medium for my thoughts — my brain — consists altogether of real components. So, any patterns in my thoughts, are some projection of the patterns which exist in the configuration of my atoms and other components.

Of course, this argument is wholly superfluous if one understands the previously presented argument: rights derive from and find their extense in the ownership of property; ownership of property derives from the transfer or home-steading (the originating method of derivation) of unowned resources; and home-steading involves the working of scarce resources and results in the ownership of the same resources in their new configuration.

Now, perhaps there is some form of intangible resource which is capable of being owned. But, whatever that may be, rights over it can not conflict with the rights of owners of tangible property, unless you are able to prove the derivation of those rights, as just presented, to be incorrect. And proving a fallacy is a mighty task…

Perhaps my alternate refutation will convince those who are thus far unwilling or unable to understand the more general argument.

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Nuke Gray July 5, 2009 at 9:40 pm

Kinsella, stop wasting your time in arguments- write “Stephen Shrugged”, a massive tome that will become the soul of Anarcho-Capitalism! Novels are the way to convey ideas these days! Even if the book then gets hi-jacked by Hellywood, and made into a complete reversal of what you meant, your ideas will still perculate through!
Go for it!
I have no idea what plot you could use- why not get ahead of the curve and have a robot trying to free itself in a humano-centric society? Whatever, good luck, and I might even buy a copy!

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{ 9 comments… add one }
  • J. Neil Schulman December 25, 2009, 5:13 pm

    Stephan,

    Once again your reply to my Logorights argument is merely to assert that it’s false without actually refuting any of the proofs I make. All you do is say “Well Locke said this” and “Tibor Machan said that.” I don’t care. I say outright that I’m offering a new theory of property rights — and not once — not ever — have you ever dealt with it other than to say, “Well, that’s not what [insert name here] wrote!”

    1) You fail to answer my challenge that material identity IS property, and that without material identity the concept of property is meaningless.

    Answer this challenge from my article:

    ” You go into a Waldenbooks and plunk down cash for a book that says on the cover “ATLAS SHRUGGED by Ayn Rand.” You get it home … and the first sentence is, “It was the best of times, it was the worst of times.”

    Now, what you bought is a book and this book has got everything that makes a book a book: a binding, hundreds of sheets of paper with printed ink impressions on it, and a cover. Let’s even pretend that the book you took home has the same number of pages, the same dimensions and weight, the same binding and style of printing as the book with the composition called ATLAS SHRUGGED. Do you have any just cause of complaint if the composition of words inside the book turns out to be something other than what the cover says? If you answer no, then you got everything you paid for. But if you answer yes, then you are saying that the composition of words makes this book a different commodity from the book you thought you were buying, and therefore you are rightfully entitled to a copy of the composition of words labelled ATLAS SHRUGGED.”

    Does the difference in composition of words make an otherwise identical physical object a different thing — yes or no?

    Did the buyer who expected to get a copy of Atlas Shrugged and who got a copy of A Tale of Two Cities get what they paid for — yes or no?

    If the answer is yes to either of these questions, then you have conceded that the composition of words — the logos — is the sole differentia between two physical objects — and therefore the logos is what makes it a different THING.

    If the logos makes these two otherwise identical objects different things then that which makes them different things is what gives them their value — and the property rights case for the logos is made.

    Answer that. Answer that!!!!!!!!!

    • Stephan Kinsella December 25, 2009, 5:47 pm

      Neil:

      Once again your reply to my Logorights argument is merely to assert that it’s false without actually refuting any of the proofs I make. All you do is say “Well Locke said this” and “Tibor Machan said that.” I don’t care. I say outright that I’m offering a new theory of property rights — and not once — not ever — have you ever dealt with it other than to say, “Well, that’s not what [insert name here] wrote!”

      I think all your theories are the same: if you “create” “value,” you have a “right” to it. This is just confused and groundless.

      1) You fail to answer my challenge that material identity IS property, and that without material identity the concept of property is meaningless.

      I think you are playing tricks with the Randian concept of “identity.” Saying that “the value” of a CD (say) is “in” its “logos” and therefore that it is the same as a copy of the CD proves nothing. It doesn’t prove that your discovery of a way of using or impatterning your property gives you all of a sudden a magical right to control how others use their property.

      “You go into a Waldenbooks and plunk down cash for a book that says on the cover “ATLAS SHRUGGED by Ayn Rand.” You get it home … and the first sentence is, “It was the best of times, it was the worst of times.”

      Now, what you bought is a book and this book has got everything that makes a book a book: a binding, hundreds of sheets of paper with printed ink impressions on it, and a cover. Let’s even pretend that the book you took home has the same number of pages, the same dimensions and weight, the same binding and style of printing as the book with the composition called ATLAS SHRUGGED. Do you have any just cause of complaint if the composition of words inside the book turns out to be something other than what the cover says? If you answer no, then you got everything you paid for. But if you answer yes, then you are saying that the composition of words makes this book a different commodity from the book you thought you were buying, and therefore you are rightfully entitled to a copy of the composition of words labelled ATLAS SHRUGGED.”

      Sure it’s “different.” Being “different” does not give you property rights in the difference. And sure, you didn’t get what you paid for: you transferred title to the money on condition you received a certain book. You didn’t get what you bargained for. IP of course has nothing to do with contract. So this is all irrelevant.

      Does the difference in composition of words make an otherwise identical physical object a different thing — yes or no?

      Neil, of course–even if you have two “identical” copies of Atlas they are still “different things.”

      Did the buyer who expected to get a copy of Atlas Shrugged and who got a copy of A Tale of Two Cities get what they paid for — yes or no?

      Of course not.

      If the answer is yes to either of these questions, then you have conceded that the composition of words — the logos — is the sole differentia between two physical objects — and therefore the logos is what makes it a different THING.

      First, I think you got your examples confused–I think you meant if I answer yes to the first or no to the second. In any event, you wrong: the two objects are “different things” even if they have the same look, pattern etc.

      If the logos makes these two otherwise identical objects different things then that which makes them different things is what gives them their value — and the property rights case for the logos is made.

      What “gives them their value”? They don’t “have” value. Value is not objective, or intrinsic, or some substance. Rather, people demonstrate that they value things in their actions. I assume you agree with this.

      You seem to think it is extracting some huge concession of me to get me to admit that the reason a typical consumer values a book (say) is because of what pattern it has. I readily agree to this. I value a box of paperclips more than a hunk of metal of the same weight because of the way the metal is shaped in the case of the paperclips. So what? I value a new condom more than a ripped one because of its “logos,” its material configuration. So what?

      Same with a set of paints and a blank canvas. If I use my talent to apply the paint to the canvas–rearranging the logos of the paint-canvas matter into a new one–to result in a beautiful painting, I have made it more valuable–in that I can sell it for a higher price. Sure. Why? Because the buyer would prefer it to the blank canvas. Who has ever denied that transforming–rearranging–the patterns of your work makes it more valuable–to you, or to others? But this does not mean you have property right in the logos, in the pattern. That doesn’t follow.

      Even Rand acknowledged most of this: as she once wrote:

      The power to rearrange the combinations of natural elements is the only creative power man possesses. It is an enormous and glorious power—and it is the only meaning of the concept “creative.” “Creation” does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. “Creation” means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before.

      Of course, there cannot be property rights in value since this would have to mean property rights in arrangements or patterns, which would then give the owner of the arrangement rights in other people’s already-owned property. If Rand had kept her focus on the fact that rearranging already-existing property can indeed make that property more valuable, she would have realized that creation (rearrangement) is not an independent source of property rights: if you rearrange your own property, even if this makes it more valuable, you already owned the property that you have rearranged (made more valuable). Yet this does not give you rights in other people’s property. You can re-word the Randian view as follows: if you make your property more valuable, it gives you additional property rights–the right to prevent other people from making their own property more valuable. And this makes it all the more obviously flawed.

      This is where the Misesian approach to subjectivist value makes sense: things have value to a valuer; values do not exist independently as free-floating things that can themselves be owned. And again, Rand should have recognized this; e.g., she once wrote, “Material objects as such have neither value nor disvalue; they acquire value-significance only in regard to a living being—particularly, in regard to serving or hindering man’s goals.” (For more on the compatibility between Objectivism and Austrian economics, see Mises and Rand (and Rothbard); Randian Hoppe(?), Austrian Rand(?).) So she should have realized that if rearranging owned property makes the owner or potential buyers value the object more, it does not mean there is any additional thing created for which we need to find an owner.

      Answer that. Answer that!!!!!!!!!

      I think I have. It gains you nothing. The fact remains that by giving people rights in “logos”–in patterns–you give them a right to control the already owned property of other people. It lets the re-homestead already-homesteaded property. This is transfer of wealth. It’s theft.

  • J. Neil Schulman December 25, 2009, 9:58 pm

    The real-world difference between two otherwise identical books — one with the composed text of Atlas Shrugged and one with the composed text of A Tale of Two Cities — is the composition of words. These are objective differentia that can be discovered by either human readers or even machine intelligence. The compositions, as information, have different mathematical values that can be calculated.

    You jump around between objective and subjective — between cognitive and normative — in an attempt to hide the difference.

    It is a true statement that there are minute differences in every single object that exists. But the word “duplicate” is a meaningful term in that the essential utility of a book is to be read (yes, I know books can be used by interior decorators and also be used to hold up a broken table leg or as a paper weight) but the essential quality of a book — why human beings go to the trouble of manufacturing them — is that they are convenient means of recording and transporting the printed words, symbols, and art work on the pages.

    Atlas Shrugged is identified as a distinct commodity by its words, whether they exist printed in a hardcover book, or a paperback book, or read aloud as a recording, or as bits of data stored or transmitted digitally. The entity that is Atlas Shrugged is an information object — a real-world thing — separate, distinguishable by man or machine, and valued apart from the multiplicity of physical forms on which it may be recorded or performed.

    The usefulness — utility — which human beings have for this objectively and observably distinct information object — this thing — is based on the presence, intactness, completeness, and availability — of that objectively and observably distinctinformation object.

    The subjective value which any human being will or will not assign to this objectively and observably distinct information object will be based on the objectively and observably distinct identity.

    A human being will take action with respect to acquiring, using, keeping, or discarding that objectively and observably distinct information object because no matter how many different objects, forms, or transformations it goes through IT’S IDENTITY IS THE SAME AND THEREFORE IT IS THE SAME THING.

    That which makes it a distinct thing — that which gives it distinct utility — that which makes it distinctly an object of desire by a human being’s subjective perceptions and choice — is its material identity.

    That which makes it a thing makes it ownable.

    He who creates it is its first owner.

    Those who respect property rights must respect that if a thing can be identified as unique and different –and can be recognized as a thing created by someone — that its creator owns it.

    The rest of my logorights argument uses commonly accepted theories of ownership and history of property rights transactions in the real world — to show how ownership rights in material identity can be claimed, recognized, traded, and protected — just like all other naturally occurring property rights — without the existence of the State.

    At this point, Stephan Kinsella, I am writing only to your readers. I do not consider that you have any actual interest in understanding what I am writing and I think you are being what the Catholics refer to as invincibly ignorant on this topic.

    Neil

  • Stephan Kinsella December 26, 2009, 12:21 am

    Neil,

    The real-world difference between two otherwise identical books — one with the composed text of Atlas Shrugged and one with the composed text of A Tale of Two Cities — is the composition of words. These are objective differentia that can be discovered by either human readers or even machine intelligence. The compositions, as information, have different mathematical values that can be calculated.

    They are not otherwise “identical”–they are two distinct books. A and B. Just as two “otherwise identical” gold coins are not the same coin. But sure, they have a similar configuration. I fail to see how this is relevant for property rights. If I see your log cabin and build an “identical one” I have stolen nothing from you. We each own our own log cabins–no matter how identical they appear or are shaped.

    It is a true statement that there are minute differences in every single object that exists. But the word “duplicate” is a meaningful term in that the essential utility of a book is to be read

    ? I know this. I never denied this. You seem to think this is wresting some huge admission from me, as if it automatically leads to IP. It does not. So what if two objects can be described as similar or duplicates? They are still distinct things. And anyway, if having-a-duplicate somehow violated the rights of the owner-of-the-original, then …. this would cover only copyright, not patent, and it would cover only literal copying, not the bundle of copyright such as derivative works. And it would be hyper-copyright–it would never expire; and original creation would not be a defense (as it is in copyright law). And how would it cover patents? Take a method patent. There are now no similar objects. Just similar actions, say actions of one’s body. If A moves his body in such-and-such-way, now he “owns” this pattern-of-moving, and can use force to stop B from moving his own body in that way (and remember, patents are not about copying at all–A can stop B even if B comes up with this sequence of steps indendently).

    Yes yes, I know you’ll say you don’t support modern patent and copyright law. You only support logorights, which is even more extreme. And though you won’t endorse patent and copyright law, you’ll condemn those who want to abolish it.

    the essential quality of a book — why human beings go to the trouble of manufacturing them — is that they are convenient means of recording and transporting the printed words, symbols, and art work on the pages.

    Of course.

    Atlas Shrugged is identified as a distinct commodity by its words, whether they exist printed in a hardcover book, or a paperback book, or read aloud as a recording, or as bits of data stored or transmitted digitally. The entity that is Atlas Shrugged is an information object — a real-world thing — separate, distinguishable by man or machine, and valued apart from the multiplicity of physical forms on which it may be recorded or performed.

    Sure, you can conceptually identify the pattern of words that is Atlas Shrugged. (Not sure you can objectively identify works that violate the copyright sub-right to make “derivative works”, or objectively justify and define “fair use” exceptions, those sorts of things.) So what? I can identify also the method of using fire to cook food, using animal hide to make clothes, using logs to make a log cabin, using a chiseled rock as a knife, and so on. So? Just because we can conceptually identify patterns does not give you ownership of these patterns.

    The usefulness — utility — which human beings have for this objectively and observably distinct information object — this thing — is based on the presence, intactness, completeness, and availability — of that objectively and observably distinctinformation object.

    The subjective value which any human being will or will not assign to this objectively and observably distinct information object will be based on the objectively and observably distinct identity.

    A human being will take action with respect to acquiring, using, keeping, or discarding that objectively and observably distinct information object because no matter how many different objects, forms, or transformations it goes through IT’S IDENTITY IS THE SAME AND THEREFORE IT IS THE SAME THING.

    Sure, people value certain works of authorship because of the patterns. But your notion that objects A and B “are the same thing” is utterly bizarre. Putting it this way is really just a complicated way of begging the question. Consider: I invent the transistor. A month later you independently invent it. Soon you and I are both manufacturing and selling these cool transistors. They are both transistors. Sure. They both use the same idea that transistors are based on. The reason people value these things is because … they are transistors. But your truck of transistors and my truck of transistors, even though they are all transistors–even if they have identical looks and characteristics–are not “the same”. There’s that truckload, and this truckload, just like you have a gold eagle and I have a gold eagle. And sure, you can say the transistors are all “the same” in some relevant sense–fine. So what? It doesn’t give me the right to stop you from making your transistors.

    That which makes it a distinct thing — that which gives it distinct utility — that which makes it distinctly an object of desire by a human being’s subjective perceptions and choice — is its material identity.

    That which makes it a thing makes it ownable.

    He who creates it is its first owner.

    This is some wild metaphysical legerdemain here. So… I can use force against you to stop you from selling transistors… that you invented … because … “That which makes it a thing makes it ownable.” and “He who creates it is its first owner.” You can’t be serious. What kind of reasoning is this?

    In the transistor example above, you own your own body and various material. It already has an owner. As its owner, you have the right to use it. I don’t gain some veto-right over your use of your own property merely by thinking of a way to use my own property.

    You seem to think that if we can conceptually identify a “thing,” then “it” can have an “owner”. Only ownable things can have an owner. Ownership specifies who can use a given thing. The only purpose of such a rule is if the thing can only be used by one person at a time–if use by one person excludes use by another–if the thing is a scarce resource. The libertarian rule is that for such things, to avoid conflict the right to own is assigned to the homesteader–the first user, the one who appropriates it out of the state of nature. Your rule would underming the Lockean homesteading rule by allowing “ownership” of any “thing” that you can conceptually give “identity” to… but of course, though you grant all these conceptual entities existential status, though you say they are just as real, just as ownable as material things, you of course want to enforce rights in these ephemeral ontological ownable things in the real, physical world. If I “steal” your “ideal object” or “informational object” by … using my own property in certain ways, then you want to use physical, real force (not merely “informational force”) against my real, tangible body or my real, tangible property (say, my money) to stop me or penalize me. When the rubber hits the road, IP advocates always turn to the real world of scarce things and real force to enforce their rights to the “informational objects” floating around up there in the Platonic realms.

    Those who respect property rights must respect that if a thing can be identified as unique and different –and can be recognized as a thing created by someone — that its creator owns it.

    Your mistake is in assuming that any “thing” can be owned. There are an infinite number of “things” out there–the human mind can conceptually understand the world in any number of ways. My love for my poodle “exists”. The fact-that-the-earth-rotated-today exists. My ability-to-jog exists. Poems exist. Crime exists. There “are” facts. I “have” memories. Perfume scents “exist.” Physics equations and mathematical algorithms “exist.” The method of long division is a “thing”. It is obviously ludicrous to assert that just because I can define or name or conceptualize a “thing” that it does, or even can, have an owner. We do not even get to the question of “who owns that thing?” unless the thing is an ownable thing. Not all things are ownable things. What is ownable? Only scarce resources. Information is not a scarce resource. You and I can both use the transistor-idea at the same time.

  • J. Neil Schulman December 26, 2009, 2:57 am

    I have already asked and answered every point you raise once again. You fail to address my challenges and attack straw men.

    I leave it to your readers to read my article “Informational Property: Logorights” — and all you can muster against it — then decide for themselves.

    I’m done exhausting myself re-answering the same refuted points endlessly.

  • Dave August 15, 2010, 9:23 pm

    Hi Neil,

    I was going to put a challenge to you to explain how Stephan failed to
    answer your own challenge, but then I realized that if you didn’t answer
    it when Stephan put it (implicitly, by claiming to answer your challenge),
    you’re obviously not likely to answer it half a year later when I put it
    to you. Therefore, I’ve created a new challenge. Perhaps if I holler
    “Answer that, answer that!” enough, you’ll answer this one. (Was that
    Stephan’s error?) Anyway, here goes:

    If you have a lit candle and I walk by you (in a public place, of
    course) while I happen to be holding my own unlit candle, have I stolen
    your flame? I think you’ll agree with me that the flame is a very real
    “thing,” and in fact far more so than a mere pattern in somebody’s head,
    but rather an objectively observable and quantifiable physical phenomenon
    (even though it’s really just a whole lot of hot air, not all that much
    unlike your own “things”).

    Obviously, the Libertarian says “there’s more than enough hot air for the
    two of us” and refuses to call it theft (although getting that close to
    you may qualify as assault), while anybody who makes a living writing
    legislation will (quite understandably, as his livelihood depends on
    it) prefer to treat this abstract “flame” as an independent object, and
    insist on assigning it an owner because all “things” must have owners.
    Then, he can guarantee himself plenty to do during the rest of his term
    in office, trying to figure out whether the flame ends at the red part,
    the infrared part, or perhaps at the furthest point detectable by a
    photon microscope. Also, since a flame clearly has a pattern (which it
    “stole” from the rainbow, incidentally), it must be an “intellectual”
    object, right? Does that mean that once the first guy discovers fire,
    nobody else should be allowed to duplicate it? By that logic, we’re all
    violating the “real” property rights of the dinosaurs, who obviously saw
    fire long before any of us (unless the dinosaurs themselves violated the
    property of the three-meter scorpions who came before them, the first
    time they looked at a flame). I think Thomas Jefferson put it best,
    noting that if you really want to keep an idea to yourself, the natural
    order of the world gives you only one option: lock it deep inside your
    mind, and never let it out. Forcing others to give you an artificial
    monopoly (at very real expense) on a figment of your imagination is not
    supportable by the natural order of the world. Sure, it’s possible to
    construct a legal framework assigning value to hot air, just like it’s
    possible to construct a legal framework assigning value to the claimed
    writings of the long-dead brother of some “James” guy. (The Catholic
    Inquisition readily confirms the latter.) In both cases, though, we’re
    doing ourselves a severe misdeed by abridging our natural rights in the
    very real things we have in the name of some “greater being” that takes
    precedence over our own rights in our real property (defined as “things”
    that must be assigned as property because of the finite nature of their
    physical existence). In the latter case, the church is willing to kill
    you for not giving tithes, while in the former case, you’re prepared to
    kill me for stealing your flame. (You may claim that you’re only here to
    “confiscate” my real belongings for violating your imaginary rights, but
    if I decide to employ real weapons in defence of my real belongings from
    your imaginary confiscation attempt, you will very quickly turn to real
    weapons to enforce your will.) Note, in particular, that you have just
    created a religion, by assigning value to the imaginary at the expense
    of the real. I already have one religion, and I don’t need another.
    Prove to me that you’re creating something other than a state-enforced
    organized religion, and then we can talk.

    To put it a slightly different way, your problem is that you’ve
    artificially expanded “property” beyond “what must be assigned an owner
    by the natural order of the world” to “what can be assigned an owner by
    an act of the opposite of progress.” You see, while you all trivially
    agree that houses need owners (since it would be a truly wonderous
    world if I could simply look at your house and then poof, have one of
    my own; therefore, if I “steal” your house, you’re left without your
    (very real) house; therefore, you need protection from my theft to
    justify investment in your house), it’s equally true that we ([3]) can
    all agree that patterns don’t _need_ owners (since you lose nothing if
    I look at your name and copy it for my own kid [1], so society doesn’t
    “crash and burn” if we allow me to “steal” it from you [2]).

    [1] That is, unless you want to argue that “exclusivity” is a “thing,”
    and that you own it as long as you’re the only Neil on our planet
    (and Neil Armstrong might take offense to such a claim). In that
    case, I can claim that “being the last person to drink Coca Cola” is a
    “thing,” and that anybody drinking it after me is “stealing” my “thing.”
    (Remember, any”thing” is ownable, right? If I’m the first to assert
    my ownership over such a “thing,” we all agree that “finders keepers,
    losers weepers,” right? Where’s the guy who invented the wheel? Boy,
    I’d love to be his descendant, wouldn’t you? [4])

    [2] In fact, all of God’s creatures over the past billion or so years
    have made a practice of stealing their own blueprints from each other,
    and it’s only over the past few hundred years that some enterprising
    young governments have decided to regulate “patterns,” as you call them.
    In case you start giving me crap about “the parent gifted the blueprint
    on its offspring” and therefore, the original owner of every pattern
    legitimately gifted a copy down the line, how do you explain cases of
    convergent evolution, where for example a mammal that didn’t descend
    from fish with sleek bodies, smooth skin and strong rear muscles driving
    a tail flipper, copied the sharks? Where did they get the nerve to
    violate the sharks’ patterns, and even to use the sharks’ own patterns
    to compete against the sharks themselves!?! Somebody should punish
    the whale family for all the shark extinctions we can blame on it.
    (Remember, the sharks owned that pattern more than a hundred _million_
    years before the first whale was born, so it’s trivial to prove the
    whales’ theft.) I have news for you, buddy: the natural world doesn’t
    recognize “patternal” (very bad pun intended) property, and I don’t see
    any reason for us to start our own tradition now.

    [3] Yes, here I can include myself. (I’m not convinced that physical
    objects require owners either, but I don’t want to get bogged down with
    that discussion here. I just didn’t want to say something that would
    be technically incorrect, and then on proofreading I realized that
    my inconsistency needed an explanation. I should probably rephrase
    everything to avoid this whole problem, but alas I’m a lazy bum.
    That’s why you should vote Honey I Shrunk the Government (.com, of course)
    in 2020, because should I be elected to serve as your President, I plan
    to (do the equivalent of) sit(ting) in bed all day and do(ing) nothing
    (except “helping” the rest of our government to do the same), securing
    my position as the best American President in recent memory.)

    [4] To elaborate on the wheel a bit, note that real inventions aren’t
    bought or sold like so-called patents. Rather, real inventions can
    only really be rented to others (unless the inventor is a terrible
    businessman), because if I have a piece of diamond and you want your own
    piece of diamond, you can go and find one yourself (unless you want to
    grant me a monopoly on the “pattern” of diamond, and thereby the right
    to prevent anybody else from posessing it, in which case it’s trivial
    to show that freedom of action would quickly become a figment of our
    imagination, since anything you touch is likely to violate somebody’s
    “pattern”), but if I have a wheel and you want a wheel, now you can’t go
    and make your own wheel. If you want your view to be consistent, you must
    give equal treatment to diamonds as you do to wheels. If you’re prepared
    to do that, I can concede that you are now in a position to construct a
    self-consistent theory of property. On a theoretical level, though, I
    would consider such a theory quite bad for humanity due to its “dumbening”
    effect (since you can never fully enjoy the fruits of your own labor,
    because when you create a cool new widget you have to pay most of your
    would-be profits in taxes for the various widget-patterns that you “stole”
    in order to create your final widget, and so you have less incentive to
    invent your cool new widget than you would have had if it weren’t so
    heavily taxed). On a practical level, I would consider such a theory
    quite bad for humanity due to its high cost of litigation and enforcement
    (since disputes are only to be expected with “fuzzy logic patterns,”
    competing claims of ownership, lost or stolen records, threats against
    judges by the owner of the “bullet” idea, etc.). Finally, on a religious
    level, I would consider such a theory quite bad for humanity due to its
    superproprietary approach to a world that doesn’t belong to any of us, and
    that we could easily share among the lot of us if we all just gave a damn
    about each other. (Of course we don’t, but I’m not sure why you think
    that institutionalizing a landgrab on the entire dictionary is the answer.
    Superinvestment activity creates more inequality among (supposedly equal)
    humans, not less. At least John Locke has a proposal that attempts to
    contain the inequality, rather than enforcing it in perpetuity.) Also,
    how does your proposal handle aliens? If we discover that aliens have
    been using wheels since before Earth existed and that (assuming they’ve
    also adopted our “rent everything including the kitchen sink” proposal)
    their wheel inventor charges a higher royalty per wheel than our wheel
    inventor has been charging for the past hundred thousand years, does
    his estate now go into severe debt (since he now must reimburse all
    the royalties he’s been taking for a “pattern” that isn’t even his,
    or does he simply pay himself the higher rate to the alien wheelmaster,
    and lose a small fortune on that?)? Somehow, I speculate that Earth’s
    wheelmaster would pay the lasergunmaster a big bounty for the right to
    manufacture a whole bunch of weapons to shoot down the flying saucers,
    or failing that, might propose legislation to limit his losses, or
    perhaps even secure his gains (by claiming, for example, that “pattern”
    deeds are only valid on the planet they’re issued on). My proposal,
    of course, would have no legal “challenges” resulting from a discovery
    that aliens also use wheels: they have theirs, and we have ours.
    (We simply have more total wheels in the market, now.) You see,
    the problem is that because the lines you draw don’t agree with the
    lines that nature draws, your own propsal is constantly at odds with
    nature, rather than simply “flowing” with it. You may consider your
    theory “better,” because you’ve decided to draw ownership based on an
    artificial “thing” (meaning any thought that you can imagine) concept,
    but I much prefer to draw ownership (if at all) based on a real “thing”
    (meaning anything with a physical existence) concept.

    Now, I must say my prayers:

    Answer that, answer that!

    Answer that, answer that!

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