Tuesday, May 26, 2009

"The State of the Intellectual Property Debate at LRC"


Not sure this is a proper way of doing it, but I’m going to steal the debate and move it here.


"The State of the Intellectual Property Debate at LRC"
25 Comments - Show Original Post Collapse comments

Blogger Stewart said...

I think there is an important distinction between what Tucker is speaking against, and what Rockwell is speaking against.
In the former case, Tucker thinks that the "property" aspect of intellectual property is no such thing. That is, that publicly-available information cannot be owned. In the latter case, Rockwell is speaking against the idea that government should use force to compel private organizations to give away private information.
These two positions are entirely reconcilable. If the manufacturers decided, ultimately, to make their repair codes etc. public, then that information could be copied by anyone. But if they don't make it public, the government has no business forcing them to do so.

May 22, 2009 12:11 PM

Blogger Robert Wenzel said...

@ Stewart
Just when does something become "publicly available" in your world? The owner of the book Tucker is discussing is clearly not interested in the terms Tucker is offering. Yet somehow, in your world, Tucker has the right to usurp this owners rights and not those of the owner of manufacturing code?

May 22, 2009 12:28 PM

OpenID savecapitalism said...

Is there a title/release-date planned for the coming book? The intellectual property debate is raging here in Sweden, so it would be very interesting to read more on the topic ....

May 22, 2009 12:36 PM

Blogger Robert Wenzel said...

I should have more details on a release date, etc. in about a month.

May 22, 2009 1:04 PM

Blogger Stewart said...

@Robert, I don't think the distinction between what is public and what is private is actually that important here. I shouldn't have placed so much emphasis on those words in my earlier post.
What's important for Rockwell's post is whether there is government coercion involved in forcing the dissemination of information. For Tucker's series of posts, the critical factor is whether government coercion is involved in preventing the dissemination of information.
If a car manufacturer uses cryptography or secrecy to prevent others from accessing the car's electronic data, Rockwell's position is that the government should not force them to give the decryption keys away. Tucker's position is that, once those keys are known to the public (whether through reverse engineering, espionage, or the owner's manual), the car manufacturer has no basis for claiming ownership of that information. That also applies to the data which is later acquired using those decryption keys, such as internal programming data for the onboard computer.
So these are two different arguments. Whether Rockwell and Tucker agree on them is unclear from the posts you linked to. I suspect that they do, given their respective roles at the LvMI, but it's not necessary that they do in order to reconcile the two positions, because they aren't mutually exclusive.

May 22, 2009 2:07 PM

Blogger Robert Wenzel said...

@ Stewart
Let me make it simple. I write a one page analysis of the economy, I give it to you under the condition that you do not show it to anyone else, are you saying I have no righht to contract with you this way, that I must encrypt it?

May 22, 2009 2:42 PM

Blogger Stewart said...

If I sign that contract, and if I do show it to someone, then I've obviously violated our contract. To that extent, I think you're correct.
In order to extend that logic to the contemporary system of copyrights, however, you have to believe that everyone is implicitly agreeing to contracts between themselves and the creators of every piece of original material that they encounter.
Suppose that I do violate our contract, and I distribute your work to my colleagues. Even if we agree that I hold some moral culpability for that transgression, it's not at all clear that my colleagues have done anything wrong by accepting the paper from me. And if they continue to distribute it on their own, it's hard to see how they're violating any contract with you, since no such contract existed.
Now, you may see that as being akin to accepting and reselling stolen goods. That presupposes that the information itself is your property, however. The contract alone cannot establish that.

May 22, 2009 3:26 PM

Blogger James Rothfeld said...

It is actually possible - conceptually - to have something resembling current copyright in a libertarian social order: ISP companies, copy machine manufacturers, and others, can make a condition in their terms of use that copyright is to be respected, and that if anybody uses their technology to violate copyright, then they are liable to pay damages to the ISP or manufacturer. You could further make a condition of purchase that you shall only sell the copy machine if you agree to have the purchaser agree to these terms as well, and so forth.
Even better, manufacturers of computers can make this a condition for the use of their product, and if you violate that provision, you will be taken to court under common contract law for violating the terms of your contract.
There is nothing in libertarian theory that makes such conditional ownership transfer illegitimate.
Of course, this leaves the possibilities of rival companies offering their products without such contracts... and let free competition take care of the argument.

May 23, 2009 2:49 PM


Blogger Robert Wenzel said...

@ James Rothfeld
I absolutely agree.
@James Rothfeld and @Stewart
I do note that both of you are not specifically addressing the Tucker view, but if you check his writings,it is clear in his world that private contracts for intellectual creations would not be legitimate.
In his world intellectually created works would not come with ownership rights, even if the creator will only release them under those terms! They are free for all to use, and some how not violate property rights.

May 23, 2009 3:09 PM

Blogger James Rothfeld said...

The reason I do not address Tucker's argument is because it is probably one of the lousiest articles on the issue I have read in a long time. :)
And I've no hesitation to rant and rail against the patent laws and argue till the cows come home that patent law as it exists now creates a) plain old rent-seeking, and b) creates waste by forcing people to invent around the patent law.
Basic question about tucker's argument: does the noodle company KNOW how the noodle is designed? Because once it KNOWS it, there is no legitimate way to stop it from using this knowledge.
So, while you the economist have a right to bind the person you gave your paper to a promise not to publish it, should this person LOSE the paper, and I find it, I can, of course, publish it - provided I am not in the process violating any contractual obligations I may have entered to otherwise (such as using a copy machine I bought under condition of NOT violating copyright)....

May 23, 2009 4:43 PM


Blogger Stewart said...

@Robert, if Tucker really does believe that individuals can't enter into voluntary contracts regarding their own behavior, then I agree with you entirely. That idea is ridiculous on its face.
@James, your question about the noodles is essentially Tucker's point. It's only the temporary monopoly that the government grants patent-holders which prevents the company from making whatever kinds of noodles it likes.
And your last paragraph captures my earlier point nicely: A contact can only (voluntarily) constrain the behavior of the parties who sign it. For everyone else, there is no constraint, and therefore no sense of intellectual ownership.

May 23, 2009 6:51 PM

Blogger Robert Wenzel said...

Tucker on rights to your own intellectual creations:
If you have an idea, it is yours. You can do with it what you want. If you share it (sing, speak, broadcast, let others see the products of your ideas), others then have copies of it. They are entitled to do with their copies of the idea precisely what you can do with your idea. They can use it how they want provided they don't prevent others from doing with it what they want. This is a simple application of the non-aggression principle that governs a free society. Whether it is fashion, language, know how, or whatever, people are free to copy...What can you copy? Anything and everything. This is not "taking" anything from anyone. The original idea owner still has his. Other people now have their copies, and are free to improve it...You can even re-republish it under your own name, though that would amount to the socially repudiated vice of plagiarism (vice, not crime).

May 23, 2009 7:46 PM

Blogger James Rothfeld said...

I don't see an immediate contradiction between Tucker's position in the last article you quote, and mine - maybe only because it does NOT discuss the issue of what happens when I have a contract with the person I share my idea with not to copy it.
I think that's the point about the book issue: if it is my book, and i gave it to you - the publisher - with the condition you not publish it without my consent, or that of my heirs, then you are bound to honor that commitment.

May 23, 2009 8:26 PM


Blogger Stewart said...

Robert, I think you may not fully understand Jeff Tucker's position. Nothing in that excerpt suggests that a person can't enter into a contract regarding intellectual creations. A constraint based on contracts is entirely different from a constraint based on a natural, default right to intellectual property.
Suppose that I possess the only known copy of a never-published play by Shakespeare. I don't have any intellectual property rights over this play, but I nonetheless have complete control over its distribution, since I hold the only copy. As a condition of giving you a copy, suppose that I make you sign a contract saying that you will never redistribute it.
I don't think that Jeff Tucker would have any problem with that contract. The excerpt you posted earlier is a description of what you, me, or anyone else can do with a Shakespearean play qua a Shakespearean play. Of course he isn't talking about the works of a long-dead author. But for Tucker, there is no difference (property-wise, anyway) between the intellectual works of Shakespeare, and the intellectual works of you or me. For most people, the informational content of the play cannot be owned due to its age, but for Tucker that content cannot be owned period.If you throw a contract into the scenario, it is no different. In my example above, you may very well be contractually prevented from redistributing the play, but you would not be under that constraint by default, or because of the nature of the play itself. With true intellectual property, the constraint is there even without your agreement, and it's that implicit constraint which Tucker argues against.

May 23, 2009 9:25 PM

Blogger Stewart said...

Oh drat.
I need to qualify what I just wrote. Upon a closer reading, Jeff does seem to contradict my interpretation:
"They can use it how they want provided they don't prevent others from doing with it what they want."If he means what you are implying he means, then I think you're right to criticize him. That statement is just silly.

May 23, 2009 9:28 PM

Blogger Robert Wenzel said...

@JamesRothfeld and @Stewart
One problem with Tucker is that he is not a very precise writer. When he says you can copy anything, it is of course open to the clause, unless the original creator by contract prohibits such.
Tucker in the passage I quote simply does not address this point clearly yeah or nay. However, I am quite sure that a full reading of Tucker's views on the topic would clearly show my interpretation of his meaning in the quote that he does not believe that you can have a contract based on the work of intellectual property. That's why he says you can copy anything.
I quote Tucker from another piece:
"But some may object that protecting IP is no different from protecting regular property. That is not so. Real property is scarce. The subjects of IP are not scarce, as Stephan Kinsella explains. Images, ideas, sounds, arrangements of letters on a page: these can be reproduced infinitely. For that reason, they can't be considered to be owned."

May 24, 2009 6:36 AM

Blogger Robert Wenzel said...

@JamesRothfeld and @Stewart
Here's Tucker explaining Kinsella:
"He made a strongly theoretical argument that ideas are not scarce, do not require rationing, are not diminished by their dissemination, and so cannot really be called property. All IP is unjust, he wrote. It is inconsistent with libertarian ethics and contrary to a free market. He favors the complete repeal of all intellectual-property laws."
Tucker again is not completely clear, but it is implied, if something can't be owned, you really can't have a contract about it.
I really believe that Tucker would say you can't contract with regard to a book. May I suggest you email him and ask. I would do it myself, but he has advised me that he has blocked my emails, after I published, here at EPJ, examples of the vulgar language he sent to me in emails!

May 24, 2009 6:56 AM

Blogger Erick said...

Who gets the copyright/patent when two people invent something independently?
Are thoughts alienable?

May 25, 2009 6:09 AM

Blogger Robert Wenzel said...

One of the problems with current IP thought is that it is generally viewed within a statist framework and there is further aggregation of IP protection than is appropriate.
Are thoughts alienable?Absolutely.
What is a consultant, if not a seller of thoughts?
Who gets the copyright/patent when two people invent something independently?This question implies the aggregation trap which I am going to address in detail in my book.
But, the short answer is they both do. If they both invent something independent and are not stealing from each other, then why shouldn't they both have the right to their creations?

May 25, 2009 6:50 AM

Blogger James Rothfeld said...

we are not talking about a centrally administered state monopolisitic IP system, but about a common law system. If two people invent something at the same time, both have the right to use it, and to contract it out. Also, if somebody else figures out how do duplicate the invention simply by knowing about what it does, then that is fine, too.
The idea as such is not protectable.
Historic example: Mozart famously attended the performance of a piece of music that the author and owner had protected in so far that any copies of the music were not allowed to be duplicated, and that all performers were contractually obliged not to transcribe it. However, there was no contract that prohibited members of the audience to memorize it and then recreate it indepedently.
So that's what Mozart did.
Similar rules can be applied to cinemas: it may not be possible to prohibit the recording of a movie in principle, but it is possible for movie theaters to prohibit its patrons to record it. If anybody does, he would be guilty of violating the property rights of the cinema owner (analog to crying 'fire' in a theater not being illegal, but a property right violation).

May 25, 2009 7:24 AM


Blogger earth that was said...

I think Lawrence Lessig has staked out a "middle of the road" position on Copyright somewhere to the right of the "abolish all property in IP" position of some libertarians, and the corporatist statist machine that we have seen under DMCA, WIPO and the US government's, essentially protectionist, use of "free trade treaties" to extend it's IP regime around the world.
Lessig's "copyleft" argument strikes me as the genuine "free market" / libertarian one, even though Lessig himself is something of a liberal (a.k.a. social democrat).
More to the point, Lessig's defense of copyright shows that the founders of the American republic knew something about economics too. The following is a brief intro to Lessig's thinking, see here.

May 25, 2009 7:41 AM

Blogger Robert Wenzel said...

I am taking things in a completely different direction. See my most recent post:

May 25, 2009 9:59 AM

Blogger Erick said...

Interesting discussion!
Robert, this makes a lot of sense to me:
If they both invent something independent and are not stealing from each other, then why shouldn't they both have the right to their creations?I am curious to see how you develop the idea in your forthcoming book!
What is a consultant, if not a seller of thoughts?How does a consultant sell thoughts?
The way I see it, a consultant sells his promise to appear in a certain place, at a certain time, in order to perform certain actions.
I can see how my finger is alienable. I can cut it off and give it to you. I no longer have that finger. I cannot see how I can alienate my thoughts: I can always continue thinking whatever I want.
Nor is there any guarantee that the person purchasing the person's time will gain any specific thinking process. At best there is a guarantee that he will feel certain feelings like "satisfaction".
The closet thing that might come to this are SAT prep classes that guarantee a specific rise in test scores. But how do "your thinking will improve" and "you will have my thoughts" differ?
there was no contract that prohibited members of the audience to memorize it and then recreate it indepedentlySuppose there was, would it be valid?
Can I sign a contract alienating rights to my brain?

May 25, 2009 11:00 PM

Blogger James Rothfeld said...

Yes, it would have been valid, since it would be a contract regarding action, or restraint from action. "Alienation" has nothing to do with this. Free market copyright regulates not 'ideas' as such, but actions of individuals. Last time I checked, nobody ever argued that we cannot contractually agree to limit our actions - whether it is loud singing in the middle of the night, or looking after somebody kids. Not to copy or reproduce something is merely refraining from a specific type of action.
If I gave you a million dollar under the condition that you never again sing in public, and you accepted this - would that be a valid contract?
If I paid you a million dollar to not reveal a secret about me - would that not be a valid contract?
How is this different from a contract that obliges you not to copy or reproduce something?
At the same time, if two people invent something simultaneously, they are NOT bound contractually to any kind of action.
What would, of course, be possible, is that you happen to work at a private university which stipulates in its contract with you that any invention you make must first be cleared with registry xyz for competing inventions. However, only people who directly or indirectly agreed to this system of clearance would be bound to it.
Again, none of this has anything to do with deep discussions about whether ideas or not are properly 'property' - it's about human action, which any libertarian will agree can be regulated bindingly by contractual agreement.

May 26, 2009 7:20 AM


Blogger Erick said...

What do you think about Rothbard's thoughts on the matter:
Suppose that Smith makes the following agreement with the Jones Corporation: Smith, for the rest of his life, will obey all orders, under whatever conditions, that the Jones Corporation wishes to lay down. Now, in libertarian theory there is nothing to prevent Smith from making this agreement, and from serving the Jones Corporation and from obeying the latter’s orders indefinitely. The problem comes when, at some later date, Smith changes his mind and decides to leave. Shall he be held to his former voluntary promise? Our contention—and one that is fortunately upheld under present law—is that Smith’s promise was not a valid (i.e., not an enforceable) contract. There is no transfer of title in Smith’s agreement, because Smith’s control over his own body and will are inalienable. Since that control cannot be alienated, the agreement was not a valid contract, and therefore should not be enforceable. Smith’s agreement was a mere promise, which it might be held he is morally obligated to keep, but which should not be legally obligatoryShould we move the conversation to the new post?

May 26, 2009 7:41 PM


  1. Erick, in the hope that you'll move here for the debate, this is my take:

    I don't think this fully applies here. Rothbard's debate is on the issue of Slavery, which is a far more comprehensive agreement, and I do concede Rothbard's point here. However, I think that a contract on not to reveal a secret is valid, simply because it does not alienate anybody's control over his body and will, but merely asks him to refrain from a very specific action on a very specific issue.
    And, yes, I smell the weakness of that argument from about two miles away, but I'll let you tear it apart, since maybe it is actually better than I think.

  2. From the same chapter of Ethics of Liberty: validly enforceable contracts only exist where title to property has already been transferred, and therefore where the failure to abide by the contract means that the other party’s property is retained by the delinquent party, without the consent of the former (implicit theft).

    I cannot transfer to you any rights to my inalienable will. In other words, I have an inalienable right to willfully reveal a secret. The contract is therefore invalid, merely a promise.

    How does limiting the scope change these facts?

    On the other hand, I can transfer you rights to my property on the condition you reveal no secrets, but this does not enslave you from ever telling those secrets. It simply prevents you from telling secrets while you maintain the rights to my property. As soon as you return those rights you are free to tell those secrets.

    This makes sense to me, but check out chapter 16 of Ethics of Liberty for a defense of your view.

  3. Would you then argue that my promise to do something for you, say, provide you with a service from 9am to 3pm on July 15th to repair your front porch is only a promise I do not have to keep, even if you provide me with advance payment? Could I legitimately claim that since my free will is not alienable, you cannot hold me to that promise, and I keep the money, and you have to accept that?

  4. That is an interesting scenario. I am not sure about your keeping the money:

    Suppose that Smith, when making his agreement for lifelong voluntary obedience to the Jones Corporation, receives in exchange $1,000,000 in payment for these expected future services. Clearly, then, the Jones Corporation had transferred title to the $1,000,000 not absolutely, but conditionally on his performance of lifelong service. Smith has the absolute right to change his mind, but he no longer has the right to keep the $1,000,000.I also worry about his solution:

    If he does so, he is a thief of the Jones Corporation’s property; he must, therefore, be forced to return the $1,000,000 plus interestWho decides the interest rate?

  5. I think the difference here is in both scope and quality: agreeing to perform a yet undefined array of services for an indefinite amount of time is different from agreeing to engage in a specfic activity at a given time, which is also different from agreeing to refrain from a specific activity for a given time (which may in fact be indefinite).
    It is my understanding of Libertarian theory that there is a qualitative difference between doing something and not doing something. For example, I am obligated by Libertarian ethics to not steal food from a starving man, but I am not obligated to give food to a starving man.
    This means that agreeing to not engage in a specific action is fundamentally different from agreeing to engage in an action.
    Voluntary agreement with a contract that obliges me to not do something, like copying or passing on to somebody else a specific piece of information is therefore a legitimate and judically enforceable contract, while agreeing to look after your kid sister tomorrow evening is not.
    What do you think?

  6. Let us say we created an objective standard for what activities are specific. This is no doubt an arduous process in itself, but imagine it is already done.

    When I have full rights to my will, I alienate my right to zero activities. If I can add one specific, alienated right from a condition of zero, surely I can also alienate one specific, additional right when I have alienated yet but one. How many rights to my will can I alienate before I am allowed to alienate not one more, no matter how specific?

    If I can always alienate one specific, additional right to my will, then I can alienate an infinite amount of specific, additional rights to my will, leaving me with none. How then can I say the right to my will is inalienable?

    There is no libertarian freedom to steal: "a supposed “freedom to steal or assault”—in short, to aggress—would not be a state of freedom at all, because it would permit someone, the victim of an assault, to be deprived of his right to person and property—in short, to have his liberty violated. (Ethics of Liberty, ch. 7).

    In libertarian theory, a person steals when he deprives the owner of rights to owner's property.

    I cannot eat a piece of pie without depriving you of that same right. Two people cannot eat the same piece of pie. Therefore eating your piece of pie without permission is stealing.

    A person's title to property -- such as a piece of pie -- recognizes and helps protect his right to consume the property as desired: whether selling it, eating it himself or giving it to the starving man next door.

    What -- and whose -- rights do I deprive when copying the ideas in a manuscript?

  7. First of all, I want to say that at this point I am not fully committed to either outcome of the discussion - so if my statements sound categorical, that's simply a question of personal style rather than conviction.

    To come to the point:
    I don't think that talking about copyright in terms of property makes sense, for all the reasons you and other have mentioned. Ideas are not property in any meaningful sense.

    What the debate really is about is the question of whether or not we can contractually agree to specific actions and inactions and then be bound by them.

    I think that there is a fundamental difference between action and inaction, and that agreeing to not do something is different from agreeing to do something. If there is no difference between the two, then I don't see a possibility of having a meaningful protection of what is called - confusingly - Intellectual Property.

    If, however, there is a difference between agreeing not to do something and agreeing to do something, then we can develop a theory of copyright that is compatible with Libertarian theory.

    So, the question at this point is this: is there a meaningful difference between action and inaction, between singing and not singing, between laughing and not laughing, and between copying a book and not copying a book?

  8. Mises seems to consider both action: To talk or not to talk, to smile or to remain serious, may be action. To consume and to enjoy are no less action than to abstain from accessible consumption and enjoyment. (http://mises.org/humanaction/chap1sec1.asp).

    Rothbard thinks the only valid function of contracts is property protection: the right to contract is strictly derivable from the right of private property, and therefore that the only enforceable contracts (i.e., those backed by the sanction of legal coercion) should be those where the failure of one party to abide by the contract implies the theft of property from the other party (http://mises.org/rothbard/ethics/nineteen.asp)

  9. I would then politely suggest that Rothbard was wrong on this issue. And also that he was not consistent, since he considered fraud to be on par with violence.

    I suggest the following: in a fully libertarian, non-state system, anybody who becomes known to violate agreements on action or inaction, in other words: anybody known as unreliable, will find himself shunned in very short order.

    I have yet to know about a social system anywhere that did NOT consider an agreement for the performance of a specific service - or abstaining from a specific action - immoral.

    Considering the utmost importance of social inter_action_ for social life, to assume that contracts are only valid for physical property is out of this world, and I am completely certain that in any social system, even a state-less one, breach of contract would be considered on par with fraud.

    But even by Rothbard's own logic, when somebody gives you something with a provision not to use it in a certain way, and you use it in the way that violates this provisio, you have violated his property rights, because he would not have given it to you otherwise. In short, you would have committed fraud. So, if somebody gives you his manuscript under the condition that you not duplicate it, or communicate its content to third parties, then you are bound by this agreement since if you had not given this agreement, he would not have given it to you. Breach of this agreement would therefore be fraud, and I vaguely remember that even Rothbard thought fraud was illegitimate.

    Am I missing something?

  10. when somebody gives you something with a provision not to use it in a certain way, and you use it in the way that violates this provisio, you have violated his property rights.

    I agree: let us say you own the title to a piano. You transfer to me the title under the condition that I never play Beethoven on that piano. If I play Beethoven on this piano anyway, then I violated the conditions of the title transfer. As I no longer have title to the piano, I have no right to play on it. My playing amounts to trespassing onto your piano.

    So I agree with the following:
    if somebody gives you his manuscript under the condition that you not duplicate it, or communicate its content to third parties, then you are bound by this agreement since if you had not given this agreement, he would not have given it to youI can accept manuscript under these conditions. I can also surrender the property back to you when the conditions required to hold title no longer interest me. Perhaps I memorized it. I can surrender the property back to you. Since I no longer hold title to property under conditions you set, I am free to create a duplicate of the manuscript from memory.

  11. That is what I dispute, the last step that is. Not duplicating it in any way WAS a condition of the transfer. You agreed to that, and only thus were able to obtain it.
    I think we cannot solve this because we disagree on the issue of contracts applying to behavior as well. I hold that contracts can apply to behavior, and that such most societies would expect you to honor them. Maybe they are not strictly enforceable, but not honoring them would eliminate in short order your ability to enter into any kind of complex social interaction with others.