Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 2:44:40 — 150.0MB)
Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 2:44:40 — 150.0MB)
See Kinsella on Liberty Podcast, Episode 378.
Next post: On the UN, the Birchers, and International Law
Previous post: LIBERTARIAN ANSWER MAN: Smart Contracts
The Libertarian Standard (TLS)
© 2012-2023 StephanKinsella.com To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to material on this Site, unless indicated otherwise. In the event the CC0 license is unenforceable a Creative Commons Attribution 3.0 License is hereby granted.-- Copyright notice by Blog Copyright
Thanks for inviting me to your podcast. For the benefit of your listeners who might be unfamiliar with the Objectivist viewpoint, here is a summary:
* the root of ALL property is material values which are things in the world that men seek to gain or keep.
* All of man’s material values are created by a combination of his mental AND physical efforts.
* the proportion of mental:physical effort may vary, but the root of all value creation is intellectual. Man’s values are not found in nature, he has to conceptualize them, conceive of the means to produce them, and then act to achieve them. Note that “materials” exist in nature, man’s values do not.
* IP is NOT about securing “ideas” (even though people say that loosely in their colloquial shorthand) … it is about securing material things in the world
* an inventor/author engages in mental and physical effort and produces something that did not exist before
* the material value generated from his/her efforts is dynamic in nature: it is represented by the copies of the invention, book, …
* the right to IP is a moral recognition that this material value is secured to the inventor/author, giving him/her control of the material value represented in the copies.
* IP has all the essential characteristics of “property”. Its difference from tangible property is contextual: the context being that of a dynamic value.
* As in the case of ALL rights the context of the underlying value is what one should use in understanding the sphere of action secured by IP rights.
I wanted to encapsulate the above points for your audience, in case they were lost in the back-and-forth of the freewheeling conversation that we had yesterday.
The point that “IP secures the material value represented by the reproduced objects” is the key to the moral case for IP. It is a conceptual identification that eludes most people (including many people who are familiar with the Objectivist viewpoint).
“the root of ALL property is material values which are things in the world that men seek to gain or keep”
So if I want to build a phone with rounded corners, you’re calling that DESIRE/AMBITION/IDEA a “thing”. Noted. Ie. my desire to build that particular shape, is a “thing” according to you. Okay.
“IP is … about securing material THINGS in the world”
Why didn’t you use the far clearer word “VALUES” instead of “THINGS”? You’re trying to hijack the word that everyone uses to only refer to PHYSICAL matter, to also refer to that super vague idea of “(subjective) values/ideas”.
“the right to IP is a moral recognition that this material value is secured to the inventor/author, giving him/her control of the material value represented in the copies.”
I don’t recognize the justification to violently prevent people from copying ideas. I DO however recognize and appreciate the alleged original author/discoverer of the idea – I appreciate all the wonderful stuff you said about “material values”. Now what? Do we have to have a gun duel? Do we have to live in separate citadels? Will you do business with our anti-patent citadel?
“IP has all the essential characteristics of “property”.”
False. It lacks the most essential characteristic – rivalrousness – only one person can use real property at any given time whereas everyone on Earth can use an idea simultaneously.
“the context of the underlying value is what one should use in understanding the sphere of action secured by IP rights.”
Very well, then the sphere of action secured by so-called “IP” is no greater than the size of the sphere of action of your real (physical) property rights. You have no right to infringe on my land, to invade my actual property with armed goons, to prevent me from building John Galt’s mousetrap. Deal?
I use the term “material values” because it properly connects property to a type of values, which gives it an ethical context. Also, in the case of IP, it properly identifies the “copies” as the material values that are being protected.
IP is not about “protecting ideas”, as Kinsella and others have mistakenly described it. Based on his books and articles in which he criticizes the Objectivist viewpoint, I don’t think SK had previously grasped the Objectivist explication that “the material values secured by IP are the COPIES”. He has been laboring under a false understanding of Rand’s view of IP, either that of “protecting ideas” or “labor”.
“Conflict avoidance over scarcity” is a (Benthamite) utilitarian construct. As I pointed out, Scarcity itself is invalid as a normative starting point for property.
Make no mistake, the post-Enlightenment views about property are based on either:
-scarcity: Bentham, Mises, Rothbard, Hoppe
-labor: Locke, Marx (scarcity of labor)
-or value: Rand, who provides a systematic explanation.
conflicts can arise between people over all sorts of things unrelated to property. For example there can be conflicts over religion. Rivalry can exist between siblings. What makes the economics definition (…rivalrous … etc) a normative standard for property?
Scarcity of what? If you say “means”, then what are the means being used for? If you say “Ends”, that’s what values are about!
Conflict avoidance over scarcity applies a collectivist layer on top of an invalid normative. There is a notion that there is a social desire to avoid conflict. Really? Tell that to those who are only good at using force. Following Bentham, utilitarians of the Left quickly arrive at: Governments create property rights to avoid conflicts over scarce resources. Utilitarians of the right drop the Benthamite love of government, but keep the rest.
Re: gun-duels over property, is this typically how we handle disputes over, for example, ownership of a car? If not, why does it apply in the case of IP?
What we are discussing here is whether John Galt has a moral right to control the copies of the H2O-car that he invented. Just like Americans were discussing ~230yrs ago whether a farmer has a moral right to control the material value (farm) that he created from fallow land (a material resource) by a cognitive and physical process. If Galt has a moral right to the material values that didn’t exist before his invention, then they should be secured as a property right. This is the case that I’ve made.
You (and SK) are free to make the case that Galt’s material values should NOT be secured. But please stop saying that IP rights are about “protecting ideas” … that is a strawman argument, as I have shown.
In short, Americans were fortunate that the founders secured property (physical and intellectual) under the philosophically-flawed labor theory of property. They deserve our respect for having done the right thing politically, even though a philosophical explication didn’t arrive until the 20th century!
Meanwhile, in the 19th century the “scarcity” approach threatened to derail ALL property. Libertarians who support physical property while decrying intellectual property evade a key fact that the root of ALL property is intellectual. By accepting the definitions of the Left, anti-IP libertarians are playing into the hands of the Left.
“Re: gun-duels over property, is this typically how we handle disputes over, for example, ownership of a car?”
Yes, as a matter of fact, that’s precisely how we handle disputes. This applies with both statism (every law is a rule ultimately backed by a threat of death, ultimately, read Gogulski’s “The Penalty Is Always Death” essay or Molyneux’s “Against Me” argument), and in general when there is any dispute over objective morality (not to be confused with the way Kinsella insists on defining the term morality, as merely a personal preference. objective morality, by definition, is a universal law that one can be justified in enforcing, and as Molyneux explains in his book Universally Preferable Behavior, only the NAP logicaly fits that definition.)
So, if someone tries to steal my car, and after enough unsuccessful appeals and escalations, I have the moral justification to kill that thief in order to assert my righteous ownership. (For example, if he insists on stealing my car even after I shoot warning shots, and then shoot him in the legs, after he pulls out a gun). I wouldn’t lose any sleep over it too. We both want my car, but only one person will be getting it by the end of this feud.
So, are you willing to shoot Kinsella and me if we insist on building Galt’s mousetrap without paying Galt’s licensing fee or getting his permission?
I’ve made the moral case for an inventor’s right to control the material values represented by the copies of their invention. If you’ve understood the moral case, you can see that IP rights are property rights, which are about using and disposing material values.
Property rights secure the control of the material value to the person who created the material value (btw, Kinsella is wrong to attack Rand’s view as “creation of matter”. I’ll let him respond to whether this is a lapse in his understanding or a deliberate straw man.
How the control is secured is a subject of great interest to students of of legal philosophy and the law. But the point is moot unless one understands the moral case.
I’m just not interested in “settling disputes by gun-duel” theories. I suspect that they arise from incorrectly identifying the source of property rights as “needed to prevent conflict over scarce means”. You’ll probably get more mileage when you discuss these theories with anarchists that with me. Enjoy!
[reply to https://www.stephankinsella.com/2022/03/kol378-ip-discussion-with-objectivist-voice-of-reason/#comment-2825918 ]
“I’ve made the moral case for an inventor”
No you didn’t – you just said ideas are great and wonderful, which nobody disagrees with. You didn’t make any case whatsoever that an inventor has the right to violently stop other people from learning from his inventions and imitating him.
“the right to control … the copies of their invention”
More importantly, you don’t actually believe this yourself. Otherwise you would have said you’d be willing to shoot me and Kinsella, if we escalated things far enough, in order to defend this right. This is what “objective morality” *necessarily* means. Me and Kinsella would shoot you and kill you if you trespassed onto our properties and insisted on enforcing your will upon us, just as we would with any other stubborn committed intruder.
As I understand it, the whole terminological dance around the term “material value” is intended to state that:
(firstcomer’s item) = (material value)
and then that:
(latecomer’s copy) = (material value)
in order to finally arrive at the result:
(latecomer’s copy) = (firstcomers’item)
So that the firstcomer may claim, that he, (and not anybody else) created both
the first item, and all the copies.
Then the whole “material value is dynamic” stuff simply means that bounaries of firstcomer’s material property somehow automatically extend to include new matter whenever that mater is shaped in the same form as the “original” item.
If my interpretation is right, then this has some interesting logical consequences. For example choreographers would acquire bodies of dancers. Musicians would acquire brains of people who memorized melodies and songs. Filmmakers would demand restitution from those who blow up TV sets that happen to display their films at the moment of explosion. Property claims to objects that simultaneously manifest more than one “original” (say patented paint and copyrighted picture) would contradict each other.
Holy shit that was frustrating. He doesn’t actually believe in the shit he says – that’s why he always got awkward when you asked him direct questions – about whether he’d shoot you if you decided to build John Galt’s mousetrap with your own property, for example.
The basis of his convoluted definition for “property” is “material value” which is just an obfuscation for “useful IDEAS” – ie. he just asserts that ideas are property :p. But fine, if that’s the case, he should be able to confidently say: “I will shoot you Kinsella if you do something with your physical property that you learned from me.”
He also sounds very confused about how the idea of scarcity / rivalry applies to property. At 2:13:15 he says “making scarcity a normative ideal is the problem” and at 2:28:40 he mentions “scarcity oriented property”. Wtf do these things mean? Our view of property is not “scarcity oriented” it’s “conflict-avoidance-oriented” – ig he should have been reminded to use the word “rivalrous” instead to avoid this confusion.
I also think your stubborness to avoid using Molyneux’s formulation of morality is adding to lots of unecessary confusion. He seems to use “morality” to mean what Molyneux and most people mean – objective good/evil, not what you keep insisting it should mean – subjective preferences and tastes. But he’s confused too, since Rand’s definition for morality was way too broad.
Another error that SK and you make is that the desire to build something with materials that you own is somehow normative, and confers a right to do everything with it. You are conflating the fact of possession with the concept of property. Owning the materials to build Galt’s invention secures for you a sphere of action. But you haven’t proved that this gives you control of his material values, the copies of his invention.
Holy shit. Voice of Reason’s property conception mirrors the socialist distinction between personal and private property, where your sole and exclusive discretion over a commodity is contingent not on your established title or possession, but by its use.
In the example given about 9 minutes before the end of recording, he makes this really explicit, that any particular use of property may be owned, but that property itself isn’t owned. “He doesn’t own every use of [his property]” is the most explicit statement of this. Logically, this argument would all but requires a moral and thus legal duty to inquire concerning any property use, that much like some socialists argue that personal use may be acceptable but private production use is not for the same objects, VoR says that uses that infringe upon the conception of some configuration of matter is prima facie suspect.
The logical implications of this seem to be worse than patents enforced through ex post remedies or through injunction, but that this would rationalize a legal scheme where any use of property could be rationally filtered through a permitting system, just with a different purpose than other permits. You don’t need a permit to own a gun for self defense, but if you intend to reconfigure the gun to another shape someone else came up with, you’d then need a permit.
Needless to say, I find it implausible that this is compatible with an anarchist view, but it’s hard to see how this would be libertarian either.it would rationalize making patents substantially WORSE. What’s the morality of fair use exceptions to copyright in this view? In what universe would this be compatible with the view that rights, properly conceived, should never conflict?
Additionally, if you just substitute the phrase “material value” for “use value” from Marx’s Das Kapital Vol. 1 it works identically, if that helps to reduce the semantic barriers. (Not that he’s a Marxist, but it helps to show that he’s constructing ownership as something intangible that may or may not affect the tangible, rather than a relationship with something tangible. One wonders what relationship that sense of ownership bears with the etymology of the term..)