My article “Intellectual Property and Libertarianism” was published in the December, 2009 issue of Liberty; the March 2010 issue features the following exchange in the “Letters” section.
[Update: See Roderick Long’s excellent response to the type of argument Yeager makes below, in his post This Self Is Mine. See also my post “Libertarians” Who Object to “Self-Ownership”]
Thanks to Stephan Kinsella for questioning the justice of intellectual property (“Intellectual Property and Libertarianism,” December 2009). Like many libertarians, he posits property rights as the foundation of libertarian political theory, and suggests that because it is a derivative concept, we stop calling the nonaggression principle an “axiom.” So far so good. But Anthony de Jasay suggests that the concept of “property” itself should in turn be considered derivative, from the still more fundamental principle of liberty of contract. De Jasay also defines “rights” and “liberties” more carefully and usefully than most libertarians, who use these loaded words all too loosely — Kinsella included. (See de Jasay’s “Choice, Contract, Consent,” or “Before Resorting to Politics,” reprinted in “Against Politics.”)
Kinsella’s attempt to show that no well-formulated property rights can apply to pure information seems dubious. Yes, information can escape physical confines and reproduce in ways that physical objects can’t, but so what? Perhaps the real question is not whether IP should be classified ontologically with other forms of “property,” but whether voluntary agreements can be reached (without the help of legislatures) that would make revelation, or publication, or mishandling of information a tort. Clearly some can; what of contracts to protect trade secrets, and other nondisclosure agreements?
Never mind that the concept of “self-ownership” has philosophical problems that Kinsella does need to take more seriously. I’ve been suspicious of “property rights reductionism” ever since I noticed that it led Rothbard to believe in his own IP rights as an author of copyrighted writings, even as he disparaged the IP rights of professional inventors. At least Kinsella avoids this inconsistency (if that’s what it is).
Kinsella is right to seek the philosophical foundations of the IP question; let’s hope he keeps digging.
What Would Edison Do?
It was a pleasure reading Stephan Kinsella’s piece “Intellectual Property and Libertarianism.” I’m in agreement with its content as regards the nature and source of property rights. What I find impossible to accept is the view that there is no good utilitarian argument in support of legislated patent and copyright law. Would Thomas Edison and his financial backers have invested so much time, effort, and money just for the pleasure of exercising intellectual creativity? I certainly wouldn’t, and I suspect I’m not alone. Having said this, in a free society, would it be a legitimate government function to establish rights where none “naturally” exist, even if the consequence of such legislation would foster an improvement in the quality of human existence? By establishing such rights, or should I say “privileges,” wouldn’t the freedom of action of others be curtailed? Formulated this way I opt for principle over utility, as the slippery slope comes to mind.
Shelter Island, NY
The Property of the Mind
Before finally getting around to the topic of his article on intellectual property, Stephan Kinsella trumpets the proposition that each person “owns” his own body; he “inhabits” it; he is its “occupant” — and Kinsella uses those very words. He dismisses as “silly wordplay” the objection that each person just is himself or his body. But who is perpetrating wordplay? Who is tainting sound political philosophy with dubious metaphysics?
Kinsella echoes the old mind-body dichotomy, the notion of the self as “the ghost in the machine” (Gilbert Ryle’s derogatory description of Descartes’ dualism). On the contrary, each person’s mind and consciousness are functions, remarkable functions, of his body and specifically his brain. Does Kinsella really mean that the self is distinct from the body? Does the one survive dissolution of the other? (Does the self exist even before its body is born?) Does Kinsella believe in ghosts or angels? What evidence, beyond very dubious evidence, can he cite? If Kinsella does not really mean what he says, he should use more exact words.
The self-ownership slogan finds some resonance in libertarian circles. But libertarians should go beyond displaying their authenticity to each other; they should try to persuade nonlibertarians. They should avoid irrelevant metaphysics. They should put their best foot forward, not their worst. I do not mean that they should dilute their libertarianism; rather, they should present it attractively.
Perhaps Kinsella could find some (feeble) excuse for his metaphysics, but he would still be putting a worst foot forward.
Stephan Kinsella’s argument against IP is seriously flawed. For instance, he states that copyright is “received automatically, whether you want it or not, and is hard to get rid of.” Copyright, that is, the right to make copies of your work, is inherent in the creation of the work. It is not “received” by law. You can waive your copyright easily by simply making copies and distributing them without the required copyright notice. Copyright law recognizes, defines, and controls to some extent your rights to control the copying and dissemination of your work.
He also states that “We libertarians already realize that . . . the right to a reputation protected by defamation law” is illegitimate. This libertarian does not realize such illegitimacy. The libertarian principle is that no person has the right to initiate aggression against another. Spreading lies or untruths to destroy the reputation of another person is clearly within the definition of aggression.
Kinsella makes a number of references to “homesteaders,” mainly, I believe, to emphasize the difference between property that you can hold in your hand, i.e., the soil from your farmland, and the more ephemeral IP which is snatched out of thin air and dissipates in the wind, i.e., the sound of a melody. However, this comparison overlooks the intellectual content of real estate (property) improvement. A farmer who homesteads a parcel of land must decide what crop will be successful on that land. A pineapple ranch in North Dakota will not succeed. Once the crop is chosen, the farmer must implement a plan for the planting and harvesting of the crop. In the case of, say, music, running a melody over in your head or tinkering on a piano is just the beginning of the creative process. It must be transcribed and carefully inspected to make sure that each note is properly chosen and placed. Then you can make your copies, register the copyright and begin selling copies of your work. With a little luck, someone may make a successful recording.
Patents are similar. You come up with the idea, develop it into a saleable product, manufacture copies and sell them. When a buyer buys a copy of your work, either invention or literary work, what does he buy? Under the law, he buys that one copy of your invention. Defining what is embodied in that one copy can get messy because the human mind is messy, but the buyer does not buy anything other than that one copy. He cannot make copies and distribute them.
So what can you do with your copy of the work or invention? You can write a critique of the song or story, quoting reasonably from the work itself to illustrate your points of argument. You can read the story or sing the song to your friends for their enjoyment. You can take your copy of an invention and modify it to suit your needs. You can strip it of unnecessary decoration that does not make it work better. You can take it apart to see how it works, or to repair it or to improve the design so much that you feel justified in applying for a patent on your improvement. You can sell it to someone else. You cannot, however, begin manufacturing the item and selling it. That is true whether the item is a widget, a book, a sheet of music, or a recording.
Klamath Falls, OR
Body of Work
Although Stephan Kinsella’s article on intellectual property moves smoothly enough from premises to conclusions, those conclusions are (to me at least) so counterintuitive that the argument acts as a reductio ad absurdum, undercutting his premises rather than proving his conclusions.
Let us say that a given work exists only in the memory of the author’s computer. At this time the work could not be more obviously the author’s; in a keystroke he can change it in any way, or abolish it forever. Overnight a hacker invades the machine, copies the work, and reproduces it. This is theft, is it not? If so, then the author retains ownership of the work even after it has left his hard drive. Why, then, would his ownership suddenly be reduced to naught at the instant that he sends it off to a prospective publisher? Reportedly, a British firm offered to publish “Lolita” if Nabokov would consent to the removal of four sentences. Nabokov refused, and the book was not released in Britain until a year later, by a different publisher. Surely this was right.
Kinsella takes it as axiomatic that one’s property rights begins with one’s own body. I think that many authors would consider their ownership of their works as more intimate, and more obvious, than their ownership of their bodies.
Kinsella responds: Mr. Randall asks whether trade secret and nondisclosure agreements could be used to construct a form of IP. I do not believe they can, because such agreements cannot bind third parties. Only by assuming that knowledge is a form of property can you bind third parties, but this assumes there is IP. I address this in further detail in the “Contract vs. Reserved Rights” section of “Against Intellectual Property,” available at StephanKinsella.com. As for philosophical problems with the notion of “self-ownership” — self-ownership just means that you have the right to decide who touches or uses your body, not some other person. What could be more libertarian, or less controversial or problematic?
Mr. Shafran is no doubt right that Edison or other patentees may have benefitted from the patent monopolies granted to them by the state. But the utilitarian case requires a benefit to the economy as a whole, not merely to particular beneficiaries of wealth redistribution. Studies almost universally conclude that there is no such gain — that patents actually restrict innovation. See the post at tinyurl.com/pat-innov for more information on these studies.
Professor Yeager misunderstands my comments. I am, like him, nonreligious. Viewing the mind as distinct from (though not unrelated to or independent of) the brain, and the self as distinct from the body, does not imply a soul or ghosts or angels. It does not imply that there can be a self without the body, or a mind without the brain. It merely implies a distinction. One may think of the mind as an epiphenomenon of the brain, but it is not the brain itself. Likewise I can run and remember with my body but running and remembering are not the same as my body. The “silly wordplay” I referred to is the use of the trite observation that we “are” our bodies (in some real sense) to object to the idea of self-ownership. But atheism is not contrary to self-ownership. Self-ownership is the libertarian idea that you have the say-so over who uses your body — that others need your permission. Self-ownership is the rejection of slavery and aggression. It is perfectly compatible with the idea that there is no soul; that you die when your body dies. In any event, Yeager’s atheism does not prove there are intellectual property rights, or that we are not self-owners.
Mr. Kirkpatrick upbraids me for stating that copyright is received automatically. He asserts that copyright may be waived “by simply making copies and distributing them without the required copyright notice.” Wrong. Copyright notice is not required at all, nor is copyright registration. See Sections 102 and 401 of the Copyright Act, or the “Copyright Basics” brochure at copyright.gov. Copyright notice has not been needed since 1989, when the law was amended per the Berne Convention.
As for reputation rights, Murray Rothbard explained in The Ethics of Liberty why there can be no reputation rights: your reputation is merely what third parties believe about you. You do not own their brains or what they think about you; they are entitled to change their minds about you. Kirkpatrick writes, “If I grow a potato in my back yard, it is my potato. If I write a song in my kitchen, it is my song. They are both my property.” By such reasoning one could argue that you own your wife, your parents, and your country (note the possessive pronoun!); if you discover that the earth is round then “it is my discovery” and you could own that fact. The mistake here is in failing to realize that not every “thing” that one can conceptually identify is an ownable type of thing. Scarce resources are capable of being owned because of the possibility of conflict over use of such things. Other things, such as “songs,” information, and patterns are not ownable things at all. In acting, humans select scarce means to achieve desired ends. Their choice of ends, and means, is guided by information. To successfully act, the scarce resources employed as means need to be owned, because by their nature as scarce resources only one person may use them; but the actor need not “own” the information that guides his choice of means, since he can use this information even if thousands of other people also use this information to guide their own actions.
Mr. McEwan is correct that the hacker is a thief, since he is using the author’s property (his computer) without his permission. But this does not mean that the information he gains access to is property. If the author revealed some private fact — say, that he had a glass eye — and the hacker discovered this and revealed it to the world, the author would have no right to demand that everyone forget this fact or not act on it. Likewise if the information was a novel, musical composition, recipe for a nice soup, or schematic for an improved mousetrap.
Hypocrisy Hath No End
With due respect, let me suggest that once again you plunge yourself into a hypocritical position.
Mr. Martin is a sentient being.
By your own so-called rules of “natural” rights, he owns his body and he owns his work.
It is his work that is says Intellectual Property rights are legitimate rights even under Libertarian ideologies.
You are verbally attacking his work product and thus you do violence to his natural rights. Aren’t Libertarians supposed to be opposed to doing violence to the works of others?
It of course knows no bounds and Libertarians are not exempt.
On a broader philosophical note, there are many creatures other than man who are sentient and occupy this planet. One would be hard put to argue for example that the great apes are not sentient when it has been shown they can be taught sign language and when this is done they express their inner sentient thoughts.
Given this, all great apes should be considered to own their bodies and own their labors when they are born because this is just as “natural” as any human being owning his/her body/labors when they are born.
So that means that when a human homesteader moves in on a territory previously worked upon by a great ape, that human is violating the natural property rights of the great ape. No?
Why aren’t you and ALL Libertarians out there defending the natural rights of all apes? So many of them are locked up in zoos and not allowed to own their bodies and own their labors. Where is the philosophical consistency?
Well, I think there is some misunderstanding of the libertarian position concerning the concept of self-ownership. Necessity of my consent is itself based only on the fact that using of my mody by someone else empedes me (at least, potentially) to use it to my notice.
Otherwise the concept of self ownership would inapplicable. For example, in a case someone uses my “menthal aura” to create his own exorcism, I can’t expect his request for my approval of this activity. In fact, I couldn’t even understand how it would deal with me. Or if someone investigates the method of using my body in a parallel world, it would be ridiculous to claim my ownership unless such a using affects me in this world.
And just as is the case of using the information, even created by me. Your using it for yourself can’t (even potentially) run into contrary with any exercises of my own. That’s why it is wrong to apply the concept of self ownership to this situation.
Patents are how the aggressive and territorial B students beat up on the A students. My name is on 12 patents, 6 of them “willingly” (I did not quit when partners proposed them) and 6 applied for after I left an employer, effectively extending the “non-compete” clause in my contract from 3 years to 17. I give my best inventions, and those find work for me, while the pursuit of patents (rather than customers) killed many of the organizations I have contracted for. Patents are worse than useless – they are a distraction from the important work of trading goods and services for revenue. I suppose if I had been a Lemelson, and used aggression instead of invention, and taken money from others involuntarily, my kids would have wineries and plantations, too.
Copyrights do not protect works, they protect revenue streams. One person who copyrighted her work was science fiction writer Zenna Henderson, who started chapters of her “the People” novels with Bible quotes. The current owner of her novels decided the Bible quotes were not commercial, and stripped them out of current editions. It is a copyright violation to print her stories the way she intended them.
I’m still inventing good stuff, while watching my peers “invent” mediocre stuff and license it to be exclusively manufactured in China. If they keep getting upset at us, it won’t be long before the mainland Chinese write their own patents on every trivial little thing, cutting out American engineers entirely, and using our own patent and legal systems to hold us in bondage. A trillion dollar trade deficit buys a lot of patent applications, and a lot of outsourced overseas patent examiners.
Oh well. If you do really good things for the world, they crucify you, then bury your good ideas in fantasy. If you sell out humanity, you get 30 pieces of silver.
It is not the evil patent system that wiped out America’s engineering core. Rather it was the M’B”A students trying to figure out how to “innovate” new cost cutting methodologies for their corporate overseers who did it. Slowly but surely they outsourced one functionality after another until there was nothing left in the hollow shell that used to be America. Long live the quarterly profit reports.
Thank you by the way for your contributions in US patents 5,202,593 through 6,738,788.
Imagine now a future where 99% of engineering work in the world (including for products sold in USA) is done by giant China conglomerates and there is no longer a need for engineering work in the USA. (BTW, thank you for the past, but your services are no longer needed as an engineer in the USA in such a future.)
Suppose that in such a dark future you are working on your own or with a handful of unemployed fellow American engineers. Suppose you alone or with your rag tag army come up with an “idea” for the next great thing.
Now if you openly publicize your idea and try to “compete” in the so-called free market, you will be crushed marketing wise and perhaps in so many other ways by the giant conglomerates. You will have zero chance of success in a patentless world.
On the other hand, if the US government still recognizes patents in that dark future (probably they won’t because US gov’t will have been bought out anyway by foreign interest in control of UC v. FEC (SCt 2010) campaign corporations) you might still have a faint chance. Not much of a chance, but something.
In knocking down the patent system now, you make that dark future come into being all the more quickly. Thanks.
P.S. US copyright law does not have a “moral rights” provision of the kind you allude to with your tale about the SciFi author. If she has, of her own free will, sold her rights to the new “owner”, what right does she (or you) have to complain about the new owner altering the book? If I sell my blue colored car to a new owner and he paints it red, what right do I have to complain? I never intended for it to be red? Such a right does not exist under USA copyright laws.
Step Back, your post is too incoherent to respond to in detail, but I will note that “moral rights” is provided for in some legal systems. Just google it.
Two things – I wasted ten years doing the patent and licensing approach. It paid about 25% of what I could earn consulting and contracting per hour. Wealth is generated by productivity and trade, not by threatening to sue others.
Zenna Henderson never sold the rights to her work. She died, and her heirs (who were not writers, and might have resented her writing) sold the rights to a third party. In an ideal world, her fans would have bought the rights from the family and kept the works intact. But neither her family, or her fans, or indeed most people understand the financial anti-artistic nature of copyright. Fandom is a diffuse and difficult-to-monitize thing; if a million people (present and future) care 10 cents each about the integrity of a work, that $100,000 cannot be practically aggregated, and cannot compete with $5,000 of concentrated commercial interest. We need to understand how things actually work, then aggregate our concern about thousands of works like Ms. Henderson’s, and change the laws so they are not antithetical to the preservation of artistic works.
Preservation does NOT mean control, or automatically forbidding changes. It does mean allowing non-change, perhaps by mandating availability for the original version, or releasing the original version into the public domain if the copyright owner refuses to make it available.
If you want some version of your work to survive, release it under Creative Commons (bless you, Larry Lessig!) or into the public domain. Some people will change, remix, and quote it without attribution. Others will defend the original version. If you sign your work with strong public key encryption, the authenticity of the original version can be proved practically forever. If nobody cares enough to preserve the authentic original, it dies. But in a culture with a strong commitment to open information, and few risks for doing so, there will always be someone willing to spend a fraction of a penny per century to keep unfashionable works alive – look at what Brewster Kahle is doing with Archive.org .
But if you concern is making money – sell something that people want. If you understand what you are doing, and treat your customers right, you can out-compete the people that are copying you. If you have a sense of entitlement rather than a work ethic, the Chinese (who know how to work their butts off) will clean your clock.
“I wasted ten years doing the patent and licensing approach.”
Granted that the patent game is no sure fire thing. It’s a big gamble and many an inventor waste their life chasing after the holy grail only to come up a dime short and empty handed.
But that is exactly the point of having a lottery-like patent game. Your experience is testimony to its effectiveness. If there was not the lure of some giant windfall gold strike in the unpredictable future, hardly anyone would waste their energy trying to go where no man has gone before (invention wise). After all, a bird in the hand is always worth more than two far fetched maybes in the bush.
“If you have a sense of entitlement rather than a work ethic …”
I don’t think that is a fair characterization of most, hard working inventors. It should instead be a characterization of the second line “taker”. You know. The businessman who waits in the shadows for some venturesome inventor to prove there is a profitable market in some new fangled gizmo or service, and then swoops in to take the winnings away from he who gambled in the first place. Those who oppose patents “have a sense of entitlement“; entitlement to the fruits from the first inventor’s work.
Would you breath if you could not patent it?
I am an inventor, and I invent for the same reason that you breath, because life would be short and ugly without it. Any intelligent person invents, and with modern tools of science and communication invention is easy and common. Ideas are cheap, implementation is hard. Delivery is what a free market should reward, not typing patent applications. Businessmen do not wait in the shadows to steal your inventions. They have customers to please, and plenty of inventiveness on their own.
To claim that I have a sense of entitlement because I oppose patents is, bluntly, a lie. You cannot read my mind. Please do not expect to change my mind by misrepresenting what I think. I add value to the world around me because that value always returns multiplied, usually in unexpected ways, sometimes long after my “contribution”. Not altruism. Rather, sharing attracts sharing. Gardens are easier to live in than war zones.
Most of my inventions are purposely in the public domain. Some of them have been “swooped in” upon and patented by companies like Texas Instruments. It costs more money than I have to fight those thieves, even if I’ve published my ideas in trade journals, supposedly making them easily searchable prior art.
My primary “community” is innovators, I interact with hundreds of inventors every year. Yes, some of them pursue and have patents. Far more of them have better things to do. They focus on customers and sales and improving their products, rather than writing patent applications and spending money on lawyers. Their biggest worry is the trolls that produce nothing, but are waiting for the producers to become successful and then attack in court.
Imagine founding RIM, inventing the Blackberry, and busting your ass making it work and bringing it to customers. Then pay $612M to the typing bandits at NTP that spent their time filing pointless patent applications rather than building their own products and finding their own customers. If the thieves at NTP had never been born, the Blackberry would be on the market sooner, and serving more customers cheaper and better. Nobody in the world benefited from what NTP did. In fact, a rule of thumb for real inventors is to avoid reading patent specifications (the constitutional reason for patents), because if you do, court damages triple for the patents that you’ve read and whose claims you mistakenly thought you weren’t violating. If you are skilled enough to understand the actual legal meanings of claims , you are a patent lawyer or a judge, and probably not an inventor.
The existence of the patent system encourages ignorance. When making money by consulting, I deal with a lot of startups. The single biggest reason these startups fail is because of secrecy and a lack of information sharing. They know they can get a RIM job from the NTPs of the world if they spend time looking at patents. Because of the effect of disclosure on the courtroom survivability of a patent the clients are applying for, they restrict disclosure to far fewer potential customers, partners, and vendors than they would otherwise. They do not encounter the unexpected, and that is what you learn from.
I have contributed great things to the world and will contribute more, in spite of, not because of, patents. I stand on the shoulders of others, and others are welcome to stand on mine. I invent faster when I exchange information. I sell more when others are selling similar things. We create the whole market together, then differentiate into segments where each of us adds unique value. Multiple sources validate each other – no smart customer buys from a monopoly.
Case in point: I helped found I-Cube Design Systems, which produced “non-blocking crossbar switches”. Originally designed for an entirely different (and imaginary) market, those found their way into the early internet routing switches made by Cisco and others. Much of the internet traffic in the early 90’s passed through chips I designed. Another company, Aptix, was our competitor, and spent more of their seed money on sales rather than design. Their products were too expensive, and hard to test in assembled systems, so we got most of the design wins. The market as a whole would have been much smaller if Aptix was not there with us to validate the non-blocking approach to customers. I-Cube would also have been far less successful if it wasn’t for public standards such as IEEE1149.1 . I used what I learned at I-Cube to help write another public standard, IEEE1149.4 . Which led to a few consulting clients, and to the inventions that became patent 6161213 (for reasons many do not understand). Continuous cycles of feedback and sharing.
“step back” – what have you invented? Is any of it patented? Has any of it been in production? What was the hard part of the work – was that the patentable part? Are you talking from experience, or repeating unverified homilies? I have heard the same homilies all my life, and when I tested them, I found them to be dangerously untrue. If you have practical experience, share it. Plausible does not equal true.
Every word in the languages I use to share my ideas are words invented by countless other individuals. They and their heirs never got a dime from me or you. They invented the words of my language for free. Those that believe the inventions of others should never be used without monetary compensation should start by not listening to the words of others, and shutting up. Many patent aficionados master the wrong half of that.
“step back” – what have you invented? Is any of it patented?
–yes, but if I told you, I’d totally give away my identity
I helped found I-Cube Design Systems, which produced “non-blocking crossbar switches”.
–let’s just say I know what a crossbar is and about the complexity of switch fabric chips and let’s leave it at that
I stand on the shoulders of others
–we all do. I support that message
Imagine founding RIM, inventing the Blackberry, and … Then pay $612M to the typing bandits at NTP
–my understanding is that RIM could have negotiated for far less but chose to play total hardball
They know they can get a RIM job from the NTPs of the world if they spend time looking at patents.
–unfortunately that part is true. If you know about another’s patent and then you knowingly infringe/ continue to infringe and tell the patent owner, hey I dare you to sue me –well what do you want the court to do? On the other hand, many people glean much in the way of ideas from others patent even if they don’t build a close copy.
Ideas are cheap, implementation is hard. Delivery is what a free market should reward, not typing patent applications.
–Keith, you are indeed fortunate if ideas come so easily to you. Others struggle with coming up with new ideas. If ideas are so easy (and patents and secrecy are to be shunned) then please share with us here in the open what the next great killer application is and how to implement it. In other words, you provide the idea here and then others deliver it to the market. Win win for everybody. Wouldn’t that be true?
I leave space here for you to fill to drop in your ideas for the next 10 killer apps in the global market place:
well? what are they?
,, because of visions softly creeping
left their seeds while I was sleeping
and the visions
that were planted in my brain
Within the sounds of silence,,,
You don’t have to drop the big ideas
Simon and Garfunkel, they understand.
It’s all in The sounds of silence