Intellectual property rights

Tom Burroughes's picture
Submitted by Tom Burroughes on Fri, 2012-04-20 08:40

As I expected, the issue of intellectual property rights gets objectivists, and others in the the broad free market/classical liberal school really fired up. In my piece about natural rights, I briefly mentioned it, and it had the predictable effect. http://www.solopassion.com/nod...

I think this is a massively important issue to get right, precisely because it involves people who on 90 per cent of other issues are in the trenches, fighting the same side. And as an Objectivist pal of mine said to me once, ultimately, all property is intellectual in one sense.

For instance, here is what I was going to say in response to Shayne and others, but here it is here:

"Shayne, your locus of interference point is one point of the issue that really matters, because for some classical liberals, the only real defence of property rights they give is the "non-initiation-of-force" principle, which relates to the "physical property is scarce, so we have to resolve boundary disputes", version."

But remember that for Rand, and those in that broad tradition including Locke, Rothbard, Spooner , and so on, it was the need to have secure protection for the things/inventions/creations that one has produced by mental/physical effort that is the key for justifying IP. (The objectivist writer Greg Perkins gives such a defence. http://www.philosophyinaction....)

And the reason for such protection is that property is central to the means by which man can survive and flourish. It is not just about resolving boundary disputes, but about LIFE.

However, I do think the independent inventor issue is a very difficult one for the defence of patents, which is why I would like to see Michael's comments on it. After all, taking up the point made by Greg Perkins, if I have the right to produce and create to sustain my life, the fact that the things I devise might have been invented also by someone else, hundreds of miles away, say, is irrelevant. I am not taking from him because - and this is the kicker - ideas are not diminished when they are held in the heads of more than one person. Quite the opposite.

Now IP defenders will say, "Well, the guy should have checked the patent records first, just as if a property developer in the condo business should have checked the title deeds". But is that really going to work? For example, a key definition of a patentable invention is that it should be "non-obvious", but I read about how a lot of actually pretty obvious stuff can get patented, or at least people attempt to do so. And in the software business, it appears that a lot of very similar things are patented, and in vast numbers, all the time. Keeping track of this is a serious headache and one key requirement for a good, coherent legal system is that it should be easy to understand, not a bewildering mass.

Now I think I'd like to see this issue resolved, or debated out, because it is a real bugbear for me and I don't see an easy way out yet.


Jefferson's hypocrisy

Shayne Wissler's picture

I'm not going to defend Jefferson's hypocrisy. But he had aspects worthy of appreciation, he doesn't deserve the total condemnation you give him.

SEcond: you are wrong. it was never "benign."

I said "relatively", as in relative to the hideous mess we have nowadays.

Tom

Richard Goode's picture

summary: enabling those who bring new inventions/creative works into the world to benefit from the commercial use of said for a period of time, as this is consistent, IMHO, with how Man needs to survive and thrive by the use of his mind, etc.).

summary: preventing those who don't bring new inventions/creative works into the world from benefiting from the commercial use of said for a period of time—this is inconsistent with freedom.

Those who "bring new inventions/creative works into the world" don't need you or your Statist chums to "enable" them "to benefit from the commercial use of said for a period of time." They are already fully enabled. As are those who don't. Everyone just needs the Patent Office to get out of the way so that they can get on with competing in a free market.

I think I have a pretty good case, in fact.

I don't think you have a case at all.

Juck Fefferson

kinsella's picture

Shayne: "Jefferson of course went on to found America's first patent system, but unlike today's setup, he rigorously excluded all but the most original inventions. Under Jefferson, the patent system was relatively benign."

First, screw that hypocritical Constitution-violating racist slave-raping asshole-hypocrite politician.

SEcond: you are wrong. it was never "benign."

However, Jefferson did recognize problems with the patent system see Thomas Jefferson’s Proposal to Limit the Length of Patent and Copyright in the Bill of Rights http://c4sif.org/2011/12/thoma...

same pill

kinsella's picture

Moeller:

Kinsella would argue that they are not swallowing the same pill, i.e. physically, there are two different pills. But the value of the new pill lies in the innovation that created it to cure a disease, which can easily be copied. It is not the physical pill that is being protected, but the ideas that brought into being. They are trying to capitalize on the fact that IP is not physically exclusive, and thus turn it into communal property to be used by any and all comers. In that case, obviously, you have the tragedy of the commons -- and the same result.

Note how this amateur implies that value is owned. this is a rube mistake. You do not own the value of property. Only its physical integrity. Hellooooo

see http://www.stephankinsella.com...

Moeller question-begging

kinsella's picture

I am beginning to think Moeller is not dishonest; he is just too stupid to even understand what question begging is. He does it every other post. "When he denies these companies patent protection and would force them to put their products on the market for the technology to be copied, Shayne is precisely advocating treating their products as communal property that can be ripped off free-of-charge. Without patent protection, other companies can do precisely that."

see, moron, calling it "ripping off" is implying that the thing "ripped off" (stolen) is property. You are using this assumption in a supposed argument to show that ideas are or should be property.

Moeller's correlation and causation

kinsella's picture

Moeller: "Kinsella is trying to assert the same thing in regard to pharmaceuticals, but this defies basic fact. Virtually all the pharmaceuticals innovations are being done in the US, with some in Europe. Why not in countries with little or no patent protection? And why the US over Europe? Could it be that US has stronger patent laws?!?"

I guess a question is supposed to be an argument? Once again the clueless amateur (typical of anti-intellectual, unprincipled, mercenary statist lawyers) Moeller confuses correlation with causation.

you can only use ideas you came up with on your own?!

kinsella's picture

Tom: "Okay, let's try this, then: the patent holder, in claiming violation of his patent, must have some prima facie grounds for proving that the second inventor copied him, and intended to do so. The second inventor, however, must also provide some evidence that he came up with X on his own."

Tom, what is the libertarian principle saying you can only use ideas you came up with on "your own"?? wtf? Are you against LEARNING? COMPETITION?

tom's argument for IP

kinsella's picture

"summary: enabling those who bring new inventions/creative works into the world to benefit from the commercial use of said for a period of time, as this is consistent, IMHO, with how Man needs to survive and thrive by the use of his mind, "

wow. horrible. are you serious. think about it. this is so terrible. ambiguous, unprincipled, confused, opens the door for all manners of statism.

tom's argument for IP

kinsella's picture

"summary: enabling those who bring new inventions/creative works into the world to benefit from the commercial use of said for a period of time, as this is consistent, IMHO, with how Man needs to survive and thrive by the use of his mind, "

wow. horrible. are you serious. think about it. this is so terrible. ambiguous, unprincipled, confused, opens the door for all manners of statism.

Shayne's "book"

kinsella's picture

It is interesting that you know I am wrong without knowing what I am referring to: A 2008 email conversation. Shall I post excerpts?

I don't konw, shall you?

Or better yet, you can put your money where your mouth is and we can have a public debate on the issue

what issue

, with a gentleman's agreement on rules to avoid time wasting and diversionary tactics. E.g., no imperial substance-devoid mocking by Kinsella. Not that your opinion of me really matters to me, I just don't want to waste energy talking about nothing of importance. Another rule is that if you are asked a question, you must squarely answer it in some manner (which can include answering why you will not answer it).

Frankly, I've had enough of your irrationalist nonsense in our private communications, and I would love for the whole world to see it.

What else would you love?

Is your "book" online, forsooth? "
Amazon Kindle.

Obviously no one has or will buy this. So you might as well just post the epub or PDF online and send us the link. no one will buy it. if you want your ideas out there, put them out there. shit.

duopoly vs. monopoly

kinsella's picture

Tom: "I think that with the independent inventor issue, that second inventor should be under some burden to prove independence if he knows a patent has already been filed, since otherwise we get the problem of proving a negative as Michael M. explained several times. But if independence can be shown, fine. The second guy gets the patent. "

Why do you assume they get a duopoly? Why do you assume a third guy, who sees one or both of them doing X to make profit, and so does something simlar to X to compete with them, should be prohibited? What's wrong with unbridled competition?

Plagiarism and fraud

kinsella's picture

Tom:

"Plagiarism is not a crime. Fraud should be."

Not sure I see the difference.

Plagiarism is a private matter, usually a breach of etiquette or academic standards or even contract (with a school, say) where you misreprsent that you are the author of some written work, or you have extensive quotations without correct attribution. It does not imply that there is fraud or even copyright infringement. It is simply an attribution issue--an honesty issue. There is no good argument whatsoever that this should be regulated by law at all. And yet copyright advocates routinely conflate this with fraud and with copyright infringement and with patent or trademark infringement--i.e. there are at least 5 separate issues here that IP proponents regularly confuse and mix together and conflate, in hamfisted arguments for some subset of these.

Suppose you are the chief executive of "Kinsella" that produces widgets. Someone comes along and copies them, right down the logo you had chosen for your products. They are then sold to other people for, say, 10 per cent less than what you charge for them. How are people going to know that these widgets are the genuine article and not made out of sub-standard material, etc?

Well let's think about it. First: this has NOTHING to do with "plagiarism", and it has nothing to do with patent or copyright. What you are talking about here is a case of potential consumer fraud. Maybe they can prove it, maybe they cannot. but note: it is the consumers' cause of action here, not kinsella Inc. My rights have not been violated: only the consumers (maybe). Second, we libertarians usually believe in caveat emptor. Iti s up to them to open their eyes and think, or consult rating agencies, or use reputable suppliers, etc. Third: in such cases consumers usually are aware they are getting "knockoffs"--and thye DON'T CARE. For example if I buy a $20 "Rolex" watch or Luis Vuitton purse--I am aware it's a knockoff. In such cases there is no fraud, yet trademark law treats it as fraud anyway (and gives the cause of action to Rolex or LV instead of the non-defrauded consumer).

Now think about this. Suppoes you go to Kroger grocery store and you want genuine Colgate toothpaste, and the stuff you buy off the shelf turns out to look identical an have the same price as Colgate but it turns out to be a knockoff. If this gets discovered what will happen to Kroger's reputation? yes, it will collapse. So of cousre Kroger has a reason to buy genuine stuff from legitimate reps, etc.

My view is that in almost all such cases the only way the consumer is really defrauded is if the price is the same AND the quality is the same. If the quality is shoddy they consumer should know, and if hte price is way less he probably knows (like in the case of the fake Rolex). So the only chance of real fraud would be high quality and high price. But that means some manufacturer sets up shop with high quality employees, processes, capital equipment, only to make... knockoffs.... even knowing a huge class action consumer fraud action is looming? Why would they do this? In fact I can hardly imagine this happening on a widespread scale.

In any case, I am for fraud law, so if it does happen, sure, let the consumers sue for fraud-but normal standards of proof would of course apply. This has NOTHING TO DO with IP law. It does not justify patnet or copyright law, or even trademark law. If you really understood what these IP laws were, I think you would understand this.

A trademark - literally, the mark of the tradesman who makes something - is about identity; consumers in a market gain valuable information from this.

You do not need IP law, even trademark law, for people to be ABLE TO COMMUNICATE. language and reputation are in fact possible in a pre-trademark world. And you don't need trademark law for consumers to have fraud causes of action.

And protection against conmen and fakes is hardly just a "utilitarian" issue, by the way.

I agree, but still: caveat emptor; and just use fraud law. no need for trademark law.

It is also a way of fighting off the nanny-state regulators who want to protect consumers "for their own good".

WE don't "need" the fascist nanny state to impose unjust trademark law on society to save us from the nanny-state's other regulation. The problem is the fascist nanny state itself.

Caveat emptor works much better if firms' products can be identified and if the brands are respected.

I don't know what "brands are respected" means--vague, sloppy concept. But of course caveat emptor "works" well when things can be "identified"--but that only requires language, communication, awareness, free market insitutions. It does not require trademark law. I deal with this entire issue in detail in Reply to Van Dun: Non-Aggression and Title Transfer, Journal of Libertarian Studies, Volume 18, no. 2 (Spring 2004), available at http://www.stephankinsella.com....

Even Boldrin and Levine in their book attacking IP claim to be bemused by anti-globalizers who get irate about trademarks but who seem often less worked up about other forms of IP. I can understand the complaints about patents and the independent inventor rule. I can even see some of the absurdities with copyright (especially the extensions of it). But trademarks?

I explain this in detail in various places--the trademark section of Against IP at http://www.c4sif.org/resources, and also http://blog.mises.org/9424/tra... and http://c4sif.org/2011/03/the-v... and http://c4sif.org/2010/10/how-t...

Thomas Jefferson on the alleged exclusivity of IP

Shayne Wissler's picture

"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property." - Thomas Jefferson

Jefferson of course went on to found America's first patent system, but unlike today's setup, he rigorously excluded all but the most original inventions. Under Jefferson, the patent system was relatively benign.

Ignorance of how technology works

Shayne Wissler's picture

Oh no it is not. Shayne apparently cannot think beyond the immediately concrete.

The vast majority of the value in companies like Google is not from their patented algorithms, but from their past performance at meeting market needs and their existing infrastructure and technology that's hidden from view. The former means that a newcomer is not just going to be able to knock them over, because nobody is going to trust them. The latter means that the newcomer is going to need masses of money, and more importantly, an army of competent engineers who can rebuild the infrastructure.

It's not as if someone is just going to be able to walk off with these crucial assets and magically gain market share.

He obviously has no idea what he is talking about. But it's beside the point anyway. All he's doing is begging the question yet again. Even if he were right (and he is not), he has not demonstrated that it would actually be *unjust*. He merely asserts that it would be, using the most biased rhetoric and lawyer spin he can muster. He's proven nothing, he's addressed no argument, he merely repeats himself ad nauseam and engages in moral bluster that's mere wind and nothing more.

There is one class of entity his argument *does* apply to. It's not Google or Apple. It's the patent trolls, who produce nothing and suck precious resources out of companies, resources that should be spent on engineers actually creating yet more things of value.

Linz

Michael Moeller's picture

You wrote:

"Where I struggle is with the notion that a man's right to the product of his mind applies only if he's the first to come up with that product. The examples you give speak only of the messiness of implementing any kind of multi-patent system; they don't justify the winner-takes-all principle, which you merely assert is the correct one."

But I did not merely assert that was the correct principle, I justified it with **exclusivity**.

It is easier to see with the homesteading example because real property (i.e. land) is naturally physically exclusive. "Two people cannot plow the same land", correct?

Where one person is not granted exclusivity, there will be a conflict of how the land is used and disposed of -- i.e. you have a conflict of rights.

The same is true of innovations. To rephrase the aphorism: "Two people cannot swallow the same pill". Part of property rights is the ability to possess, use, and dispose of the property exclusively.

If another person is allowed to breach this exclusivity, then the first person cannot be considered to own the property. If one wants to build a house on the property, and another wants to farm it, you have a conflict of use. Therefore, first-in-time, first-in-right. This principle is even more justified with respect to inventions, as it is not just a physical race to get to the property and put it to use. The invention is not in anyway metaphysically given like land.

Wouldn't you agree that I cannot be said to own property if I cannot exclusively use, possess, and dispose of it?

Indeed, the same is true of inventions. The first inventor cannot be said to own the invention once another decides he will use it or dispose in a contrary manner. The most obvious example is that the second inventor -- also having rights to possession, use, and disposal -- could immediately dedicate the invention to the public domain for anybody to use. This is one of the rights of an inventor, i.e. to give it away for free, if he so chooses.

Well, you have a conflict of rights, then, because he is now giving away the first inventor's property! The first inventor would lose all ownershhip! Ownership has to be exclusive, and it should go to the first-in-time because he was the first to put it to use. No different than the first to use the land with the same principle of exclusivity. That's what makes it a competition, and that is why it should go to the first to invent.

Furthermore, this does NOT inhibit competition, but fosters it. Most patents are improvements on a previous invention. Others get the benefit of another's creation, and can figure out ways to improve upon it. And the first-to-invent is an incentive for them to get there first, i.e. it actually speeds up the process of innovation.

Now, Kinsella would argue that they are not swallowing the same pill, i.e. physically, there are two different pills. But the value of the new pill lies in the innovation that created it to cure a disease, which can easily be copied. It is not the physical pill that is being protected, but the ideas that brought into being. They are trying to capitalize on the fact that IP is not physically exclusive, and thus turn it into communal property to be used by any and all comers. In that case, obviously, you have the tragedy of the commons -- and the same result.

Michael

Evasion of What He Is Advocating...

Michael Moeller's picture

Shayne wrote:

"Michael: 'You have the right to create your own competing product and give away the technology for free, but to demand Apple or Google do it is vicious and evidence of a collectivist mentality'.

Shayne: 'This is a total lie.' "

Oh no it is not. Shayne apparently cannot think beyond the immediately concrete.

When he denies these companies patent protection and would force them to put their products on the market for the technology to be copied, Shayne is precisely advocating treating their products as communal property that can be ripped off free-of-charge. Without patent protection, other companies can do precisely that.

And I am not going to sugarcoat the viciousness and collectivism that he is advocating here.

Michael

Michael's stupidity

Shayne Wissler's picture

Michael vomits up stupidity like a food addicted bulimic at an "all you can eat" buffet. I have no interest whatever in addressing the mess. I'd rather just block him and be done with it, it's disgusting.

But when he dishonestly misrepresents me that's a different matter. I mean, if he wants to vomit his own "opinion" all over the forum, that's his own business, but when he tries to splatter me with it, that's a different matter.

You have the right to create your own competing product and give away the technology for free, but to demand Apple or Google do it is vicious and evidence of a collectivist mentality.

This is a total lie. I never said anything of the sort. On the contrary, I support various means of protecting one's creations using actually fair and just free market mechanisms.

Michael confuses me with Kinsella, but it should be obvious now just how stupid that is.

Apple, Microsoft succeeded because there were no patents

Shayne Wissler's picture

“If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.... some large company will patent some obvious thing” to “take as much of our profits as they want.”--Bill Gates

When Bill Gates, Steve Wozniak, and Steve Jobs created their companies, they didn't have to worry. There'd be no $5B toll fee for bringing their creations to market because software patents did not exist. They could fully exploit what their predecessors had done (e.g., Jobs who copied his Window system from Xerox and UNIX from BSD; Gates who copied UNIX technology for Windows NT).

But now, merely by combining a computer with a modem, one must pay a $5B toll to enter the market.

Objectivists need to ask themselves whether this represents a place in which the independent creator can thrive, or whether this is a fascist setup that forces many creators into an insidious master/slave relationship with stupid people who have deep pockets.

Clueless Indeed

Michael Moeller's picture

Shayne has this uncanny ability to completely sidestep the main points and wander off on tangents. Nobody is disputing the cost of the hardware, you lunkhead.

Microprocessors and modems and all the other hardware were primarily developed by US companies and are the subject matter of patents! The costs you are looking at are the result of patented products. You are assuming the costs will be the same absent patent protections.

If you want to prove your case, you need to do a market analysis of what the costs would be like absent patent protection. And if, as you merely assert, that patents are such a barrier to innovation, isn't it a bit strange that these products are being primarily developed in the country with the strongest patent protection? Why would the market not be burgeoning in countries with less or no patent protection? After all, they would not have to worry about lawsuits in those countries, right?

I'll give you a tip free of charge, you will have an impossible task to try and assess a market like smartphones absent patent protection. There would be no such goods because those goods would not be produced. If produced, they would just get copied and everything they sunk into R&D would be gone.

Kinsella is trying to assert the same thing in regard to pharmaceuticals, but this defies basic fact. Virtually all the pharmaceuticals innovations are being done in the US, with some in Europe. Why not in countries with little or no patent protection? And why the US over Europe? Could it be that US has stronger patent laws?!?

And nobody cares about your assessment of Apple or Jobs or Microsoft or anything else. If you don't like their products, don't buy them. If you think you can do a better job creating a company with a better product, then do it. I find it hilarious that a total non-entity like you is criticizing Jobs, of all people.

The point is that Microsoft should not be forced to accept terms of a trade that they do not consent to and have Windows treated like communal property. Same with Apple or Google and their patented products. You have the right to create your own competing product and give away the technology for free, but to demand Apple or Google do it is vicious and evidence of a collectivist mentality.

Michael

Apple steals credit

Shayne Wissler's picture

Steve Jobs likes to act like he's the first human who ever thought of shrinking a computer down and attaching a modem to it, but people have been thinking about these things for a lot longer. All that Apple did was make a nice pretty and relatively superficial veneer over the top of technology that other companies and engineers made possible. They only did a very tiny fraction of the actual work involved.

The real virtue of Apple is that they actually had someone who could think in a forward looking manner about computers at the helm. Most of these companies are run by dolts who ignore their own engineers. Apple was an exception to the modern rule that the CEO is a clueless MBA, but I don't expect much more radical innovation from them anymore. This awful way of running an engineering company wasn't always the case, great companies like the former HP were founded and run by engineers, but not nowadays.

Clueless lawyer

Shayne Wissler's picture

Given that Michael can't figure out how to copy-paste a URL one shouldn't be surprised that he's totally ignorant of what is possible regarding a homebrew smartphone but anyone else can use Google to find tiny computers, a Linux operating system, and cellphone modem chips. The $10K price I quoted is actually probably an over-estimate because all I had in mind was a prototype cell phone that would function but not necessarily be ready for mass consumption.

I'm not exactly sure what this is or how much it costs, but it looks like a complete integrated solution:

http://compulab.co.il/products...

Now, could some hobbyist buy one of these things and make his own phone? Sure. He could. He could even give away his software for free. But the second he tried to start selling it he'd be subject to patent suits.

The fact is that all a smartphone is is a small computer and a modem. Both of these are just shrunk down versions of what has existed for 30 or more years.

Take a look at these charts and see what happens if you try to combine the technologically ancient ideas of a modem and a computer (been around since at least Star Trek):

http://bits.blogs.nytimes.com/...

http://blog.thomsonreuters.com...

Shayne Wissler, Collectivist

Michael Moeller's picture

Shayne wrote:

"Do you know how much the IP cost of entry is into the smartphone market? Evidently it's $5B because that's what Google thought they had to pay for enough patents to make it plausible for them to defend Android. Oh wait, that's not even for defending the phone, just the OS.

The fact is that it is technologically feasible to have a rich variety of smartphone alternatives, not just ~5. I'd venture to guess that for a mere $10K, someone could technically build the hardware. With Linux, one has the basic software. But we don't see these alternatives because only about 5 people in the world are, practically speaking, legally entitled to build smartphones (namely, the CEO's of these companies). (And this isn't even mentioning the telco monopolies that exist because of government favors)."

This is false on so many levels I scarcely know where to begin. His "real data" is backed up by "guesses" that it would cost a "mere $10K" to build the hardware (and what about the cost of the R&D that goes into building the software???).

But his whole assertion defies basic observation. The only two major players that are not American companies are Samsung and Nokia -- both of which has huge electronic R&D arms in the US and patent protection. If patents were such a major barrier and there would be a flourishing market absent patent protection, why were they not developed in other countries? Why are the innovations happening in America, instead?

Shayne is repairing to the same "barriers to entry" argument that collectivists use to justify antitrust laws -- replete with fantasies about what the market would otherwise be (absent patents or without antitrust laws). Microsoft tying their other products to Windows was an "abuse of their monopoly" and was a "barrier to entry" to those who wanted to compete with Microsoft's software on the Windows OS, collectivists argued. Microsoft tying their own software was a significant "barrier to entry" and, for others to compete, Microsoft should not be allowed to do so, collectivists argued. If Microsoft eliminated this "anticompetitive barrier to entry", we would have a much greater market of competing software, collectivists argued.

In short, sundry collectivists were trying to dictate the terms on which Microsoft sold its own products, and were attempting to free ride on the Windows creation that made their software possible. They were trying to turn Windows into a communal good for use by anybody and restricting Microsoft's right to set the terms of their own product.

Shayne is making the same "barriers to entry" argument here in the patent context. Of course there is a "barrier to entry" on the part of companies that need to raise capital in order to compete with Microsoft. Similarly, of course other companies will have to innovate without ripping off the technology created by Google, Apple, etc. Other companies should not be allowed to free ride on the technology of Google and Apple, just as they should not be allowed to free ride on the technology of Microsoft. Shayne's argument is one for the free-rider (read: looter).

But nobody is stopping anybody from creating their own OS to compete with Microsoft, just as nobody is stopping other companies from creating their own smartphones. They just cannot do it by cashing-in on the creations of Google, Apple, or Microsoft. They cannot free ride.

Indeed, since nobody is stopping other companies, they are perfectly free to create their own smartphones and sell them. If patenting is such a detriment, they can do so without patenting their product. According to Shayne, this is the better alternative, so why don't companies just do that? If it was truly their own creation, they would not have to worry about patent infringement.

But companies do not take that path, why? Obviously because the results of their R&D will be ripped off.

Shayne's "real data" defies basic observation and is nothing more than pure assertion and fantasy, and he uses a classic collectivist argument (i.e. "barriers to entry") in the process. The declarations about what the market would be and how much it would be to develop such a good a worse than "guesses", they are fantasy. There would be no smartphone market in the absence of patent protection, as no company would spend the vast resources necessary to produce the good if only to be ripped off, hence the reason we do not see smartphones being developed in countries with little or no patent protection.

Michael

Tom missing the point

Shayne Wissler's picture

"I said that the patent holder must show prima facie grounds for proving that the second person copied him and is not entitled to have a patent."

No. He must show that the second inventor violated his natural rights. You are using some kind of legal positivism in your jurisprudence, some equivalent of "it's the law, so them's the breaks." The law itself is on trial here and the burden of proof lies squarely on your side to demonstrate that patents violate natural rights.

Shayne

Tom Burroughes's picture

I said that the patent holder must show prima facie grounds for proving that the second person copied him and is not entitled to have a patent. At that point, if he does have such evidence sufficient for action to be taken against the second person, then obviously the second person cannot remain silent if the abuse is considered very serious, particularly if the matter goes to trial (although these things seldom get that far).

That is not the same as presuming that the second inventor is guilty unless proven innocent. The first has to prove that he has reasonable grounds for claiming there is a problem and that the second person is copying.

It obviously makes sense for the second inventor to give some grounds for showing why his accuser is wrong. I fail to see how this means I am endorsing a police state or overthrowing sacred principles of jurispudence.

Anyway, I don't propose to run with this any longer. Goodnight from London.

Tom answers burden of proof this time? Sorta...

Shayne Wissler's picture

Okay, let's try this, then: the patent holder, in claiming violation of his patent, must have some prima facie grounds for proving that the second inventor copied him, and intended to do so.

The principle is: if you are going to bring the apparatus of government down on someone's head, then you must offer proof that they violated your natural rights. You don't agree with this, because you claim:

The second inventor, however, must also provide some evidence that he came up with X on his own.

This completely contradicts the principle of innocent until proven guilty. If you disagree with that principle, then at least be honest enough to say so. I.e., own up to your implicit premise "the defendant needs to prove that he did not commit the crime, and if he cannot prove that he did not, then he will be subject to penalty, and if he does not pay the penalty, he will be subject to jail, and if does not go to jail, he will be put to death."

Come on Tom, be honest.

Kinsella and Question-Begging

Michael Moeller's picture

Now that I have shown Kinsella's position to be one of utilitarianism, not Rand's, it is important to look at how Kinsella's position is question-begging. From the Wikipedia link:

"Begging the question (Latin petitio principii, "assuming the initial point") is a type of logical fallacy in which a proposition is made that uses its own premise as proof of the proposition. In other words, it is a statement that refers to its own assertion to prove the assertion."

Indeed, Kinsella has done precisely this when asserting rights in "scarce property". He wrote:

"First, in the paradigm case of property that we all agree with, Randians included--that scarce resources are ownable and should be owned by the person who homesteads it--then the person owns the good NOT because he "produced" it but because he first homesteaded it."

Kinsella offers "we all agree" as a justification for property ownership in "scarce resources". But we do not "all agree". Saying "we all agree" is a non-justification that boils down to: it is valid because we all agree that it is valid. The premise that we should have ownership in "scarce resources" is offered as proof of the theory -- pure question-begging.

Secondly, we do NOT all agree on this. Communists certainly do not agree with private ownership in "scarce resources". While I agree that we should have ownership in tangible goods, I do NOT agree that the justification is "scarcity". Indeed, in the "paradigm case" of homesteading that Kinsella mentions, the property in dispute is not "scarce". Land was relatively abundant, and the whole purpose was to offer ownership rights to get people to settle the land.

The same is true of Locke's acorn example. The acorns are not "scarce" by any definition of the word. And Locke's justification was NOT built on "scarcity". It was built on the actions taken by the individual to secure the acorn and use it, thus converting it from the "state of nature". Same thing for homesteading land, i.e. it was justified on the basis that one takes possession and uses it, not on any alleged "scarcity".

In short, Kinsella needs to explain why homesteading is valid, not just assert it as he is doing. The scarcity non-theory of property is nothing but pure assertion and question-begging, as the only justification offered is that "we all agree on it". No, "we" don't.

The only argument he offers in rebuttal is that we don't really "create" things, we just rearrange them. But this is totally false. Even in the land example, the possession and use IS creating value. Before the act of possession and use, the land simply existed as barren land, i.e. it was in Locke's "state of nature". The act of building a house on the land, farming it, grazing cattle on it, building a factory on it, etc etc is the act of creating value through one's actions. And these actions are a combination of mental and physical actions. Those creative actions are the foundation of property rights both in the tangible property, and in the intangible property to the extent it represents an innovation that would not have existed but for the actions of the creator.

Now, Kinsella declares that I am question-begging when I call his position the advocacy of looting and theft, such as with the following statement:

"But MOeller is not even establishing this: he is going by some kind of vague intuition apparently; he thinks it is so obviusly "bad" that it doesn't require any proof; he keeps engaging in question-begging by using words like looting or stealing. These terms are loaded in that they imply there is property in ideas and knowledge; otherwise it would no be theft. He uses this assumption that there is property or should be property in ideas, as part of an argument trying to show that there should be property in ideas and/or that it is immoral to treat it otherwise. This is pure question begging."

But again, he is failing to take note of what I actually said. I didn't use any "vague intuition". Quite the contrary, I based my justification on man's nature as follows:

"There is no "question-begging" on theft under this theory. Theft is assuming the right to dispose of somebody else's effort without their consent, and that is the case with both patent and copyright when the copying is unauthorized."

This is a cogent definition of theft -- i.e. somebody disposing of the products of somebody else's effort. Again, this stems from man's nature as a rational being who needs material values to sustain his own life. When somebody else disposes of those values an individual has created -- be it a book or an innovation -- that is theft. When a drug company spends hundreds of millions to develop a new drug, and another company proposes to copy it and sell it without their consent, the second company is proposing to dispose of the value created by the other company. No question-begging whatsoever.

Again, Kinsella is using this counter argument as a knee-jerk reaction when, in fact, it is HIM engaging in the logical fallacy.

Michael

I have answered it

Tom Burroughes's picture

Okay, let's try this, then: the patent holder, in claiming violation of his patent, must have some prima facie grounds for proving that the second inventor copied him, and intended to do so. The second inventor, however, must also provide some evidence that he came up with X on his own.

Tom faces burden of proof issue? Nope.

Shayne Wissler's picture

I think that with the independent inventor issue, that second inventor should be under some burden to prove independence if he knows a patent has already been filed, since otherwise we get the problem of proving a negative as Michael M. explained several times. But if independence can be shown, fine. The second guy gets the patent. That is my view on the matter to the best of my reasoning. There is no evasion of avoidance of the issue.

Do you sincerely believe that this answers the question I've repeatedly asked concerning "burden of proof" and "innocent until proven guilty"? You have completely, totally, utterly failed to grasp the actual question.

Richard, I assume you can

Tom Burroughes's picture

Richard, I assume you can read what I have said further down this thread as to what the case is (summary: enabling those who bring new inventions/creative works into the world to benefit from the commercial use of said for a period of time, as this is consistent, IMHO, with how Man needs to survive and thrive by the use of his mind, etc.). I think I have a pretty good case, in fact.

Kinsella and Utilitarianism, Part II

Michael Moeller's picture

In knee-jerk fashion, and when he cannot deal with the arguments head-on, Kinsella keeps asserting his opponents are engaged in "utilitarianism" and "question-begging". I don't think he knows what either of those means because his position is one of "utilitarianism" and "question-begging", not Rand's.

Let's take a look at Wikipedia's basic summary on utilitarianism:

"Utilitarianism is an ethical theory holding that the proper course of action is the one that maximizes the overall "happiness". It is thus a form of consequentialism, meaning that the moral worth of an action is determined only by its resulting outcome, and that one can only weigh the morality of an action after knowing all its consequences. "

Indeed, Kinsella's justification IS outcome-based. His justification is a form of consequentialism, as he wrote in his book:

"A little reflection will show that it is these goods’ scarcity—the fact that there can be conflict over these goods by multiple human actors. The very possibility of conflict over a resource renders it scarce, giving rise to the need for ethical rules to govern its use."

Kinsella states we "need ethical rules" to avoid conflicts. Other defenders of the scarcity non-theory of property justify it on that basis that it provides "efficient allocation of resources". Both of these focus on the consequences of adopting private property rights. Again, this is a strictly utilitarian justification -- the need for "ethical rules" is strictly based on the consequences of adopting those rules. And in Kinsella's own words:

"Finally, you guys vacillate between pretending like you are principled, and falling back on utilitarian arguments all the while dishonestly and hypocritically accusing ME of being utilitarian whcih is false, and even while you refuse to prove up your own case!!"

Kinsella is totally misconstruing the arguments. To point to studies that show patents increase innovation -- like the WIPO study that Kinsella refuses to address and is now rejecting without any attempt to deal with the evidence -- is not necessarily "utilitarian". It is showing that patents do produce the claimed benefits of increased innovation.

I did not give this as the justification. I gave it as evidence that patents increase innovation, which Kinsella does not deal with and rejects a priori. No attempt at rebuttal from Kinsella. If I presented a study that showed property rights in tangible goods produce increase wealth and innovation, would Kinsella reject that as "morally flawed"? Do tell us, Kinsella.

But the bottom line is that I did give the moral argument, and Kinsella skipped right over as if nothing was said. Here it is again, to quote myself:

"Indeed, as Rand has stated, man does not exist as a ghost. He needs material values to sustain his life, and without the ability to acquire and retain those material values, he "has no means to sustain his life".

Further, his life is sustained by his own effort, and without the ability to enjoy the fruits of his own labor, he cannot sustain his life. As Rand states, man would exist as a slave under those circumstances. Again, we see that the foundation of the right to property is the right to the products of one's efforts. Rand expanded upon Locke to include mental effort, as the production of all values is some combination of mental and physical effort."

This is not a consequentialist argument. This argument observes man's nature as a rational being, observes that man needs material values to sustain his life, observes that man's values are produced by a combination of mental and physical labor, and observes that without the ability to retain those material values, man has no means to sustain his life. If somebody else proposes to dispose of those values with the creator's consent -- like patent infringers want to dispose of somebody else's creation -- then they are reducing the patent holder to a slave, hence the need to protect the products of man's mental labor.

This is justified on man's nature, not on outcomes. Yet, providing positive innovation outcomes happen as a consequence, but again, this is NOT the primary justification.

Kinsella is wrong on all counts, including his own position.

Michael

Kinsella's irrationalism

Shayne Wissler's picture

I don't know what "Shayne" is jabbering about but he is wrong.

It is interesting that you know I am wrong without knowing what I am referring to: A 2008 email conversation. Shall I post excerpts?

Or better yet, you can put your money where your mouth is and we can have a public debate on the issue, with a gentleman's agreement on rules to avoid time wasting and diversionary tactics. E.g., no imperial substance-devoid mocking by Kinsella. Not that your opinion of me really matters to me, I just don't want to waste energy talking about nothing of importance. Another rule is that if you are asked a question, you must squarely answer it in some manner (which can include answering why you will not answer it).

Frankly, I've had enough of your irrationalist nonsense in our private communications, and I would love for the whole world to see it.

Is your "book" online, forsooth?

Amazon Kindle.

Tom

Richard Goode's picture

What's your justification of patents and IP laws in the first place?

Surely the argument is not so complex that you cannot put it down here in abbreviated form. (I am being snide. Why not just admit you don't have a case?)

I think that with the

Tom Burroughes's picture

I think that with the independent inventor issue, that second inventor should be under some burden to prove independence if he knows a patent has already been filed, since otherwise we get the problem of proving a negative as Michael M. explained several times. But if independence can be shown, fine. The second guy gets the patent. That is my view on the matter to the best of my reasoning. There is no evasion of avoidance of the issue.

Fraud and plagiarism

Tom Burroughes's picture

Plagiarism is not a crime. Fraud should be.

Not sure I see the difference. Suppose you are the chief executive of "Kinsella" that produces widgets. Someone comes along and copies them, right down the logo you had chosen for your products. They are then sold to other people for, say, 10 per cent less than what you charge for them. How are people going to know that these widgets are the genuine article and not made out of sub-standard material, etc? A trademark - literally, the mark of the tradesman who makes something - is about identity; consumers in a market gain valuable information from this. And protection against conmen and fakes is hardly just a "utilitarian" issue, by the way. It is also a way of fighting off the nanny-state regulators who want to protect consumers "for their own good". Caveat emptor works much better if firms' products can be identified and if the brands are respected. Even Boldrin and Levine in their book attacking IP claim to be bemused by anti-globalizers who get irate about trademarks but who seem often less worked up about other forms of IP. I can understand the complaints about patents and the independent inventor rule. I can even see some of the absurdities with copyright (especially the extensions of it). But trademarks?

Tom the hypocrite

Shayne Wissler's picture

Tom, stop being such an abject hypocrite. I've asked about your principles regarding burden of proof and innocent until proven guilty since the beginning and you constantly divert. I think you just like to chatter endlessly and never settle anything.

Shayne's inflated sense of being an upcoming marginal nobody

kinsella's picture

"Shayne":

Contrary to this, Kinsella agreed with me years ago that my approach to copyright was consistent, both internally and with respect to the basic principles of liberty. The only difference is whether he thinks such a voluntary arrangement would be worthwhile to create or not. But that decision is not up to him, it's up to every individual to decide for himself just how important it is to participate in voluntary arrangements that grant authors privilege regarding their work.

I don't know what "Shayne" is jabbering about but he is wrong.

And again, my views are available in my book "For Individual Rights"; they are not germane to this discussion. As I have stated repeatedly, I can't properly talk about my solution to copyright without talking about my solution to the proper form of government, and that takes us very far afield.

What "book"ae you talking about, and really, who cares? Just make your points; and if you have elaborations elsewhere, point to them. Is your "book" online, forsooth? If not, why not?

"And again, my views are

Tom Burroughes's picture

"And again, my views are available in my book "For Individual Rights"; they are not germane to this discussion. As I have stated repeatedly, I can't properly talk about my solution to copyright without talking about my solution to the proper form of government, and that takes us very far afield."

Surely the argument is not so complex that you cannot put it down here in abbreviated form, Shayne. (I am not being snide, I meant that seriously). Saying "You will have to read the book" and then finish with an insult about "special pleading" via Wikipeadia is truly lamentable. At least Stephan really burns up lots of pixels debating with me. Which is why I give the man credit and respect him, even though I don't agree with him (not yet, anyway).

Kinsella is confused and has a poor memory

Shayne Wissler's picture

I think shayne is a bit confused on copyright, as Rothbard was.

Contrary to this, Kinsella agreed with me years ago that my approach to copyright was consistent, both internally and with respect to the basic principles of liberty. The only difference is whether he thinks such a voluntary arrangement would be worthwhile to create or not. But that decision is not up to him, it's up to every individual to decide for himself just how important it is to participate in voluntary arrangements that grant authors privilege regarding their work.

And again, my views are available in my book "For Individual Rights"; they are not germane to this discussion. As I have stated repeatedly, I can't properly talk about my solution to copyright without talking about my solution to the proper form of government, and that takes us very far afield.

And yet again, all of this is a red herring. It's fascinating what all these dishonest folks will do to avoid talking about the basic principles here. Tom thinks I'm somehow on the hook to respond to his perverted guessing about what my view of copyright is, and yet he's not on the hook to answer any of my questions about the basic principles here.

Tom is evidently too stupid to appreciate the fallacies he's constantly engaging in, but for the sake of others:

http://en.wikipedia.org/wiki/S...

Note Tom's complete disregard for the basic principles not only of justice, but of logic.

Tom on Trademark

kinsella's picture

Tom:

,You are okay with copyright, yes? Kinsella isn't. If that is not the case, then explain what your view actually is.

"copyright" is a confusing and misused concept. Some people mean by it, legal copyright; others, "plagiarism"; others, contractual schemes. They just need to be clear about what they are talking about. But since they are not usually educated lawyers like I am, they usually don't know how to speak precisely.

And SK is a man who talks about trademarks as "evil"; not "unwise" or "arbitrary" but evil". So it seems entirely fair for me to then ask him as to how he is going to deal with those cases where a trademark is a central feature of the identity of a firm and its products (to take my Rolex example), and therefore deeply relevant to preventing fraud and plagiarism of said.

you are mixing together many things: fraud, plagiarism, and .. whatever. Plagiarism is not a crime. Fraud should be.

And in any event, even under a Common Law system rather than "positive law", there is no reason why firms would not form associations to create trademark registers so as to prevent fraudsters and protect their brand values In fact, this would be a highly realistic scenario; just as professionals such as accountants or lawyers form trade bodies to create reputational capital and protect it from imposters, so whole industries might do the same to form "trademark" groups to protect identities (in the same way that SK argued might happen with secrets). This is not much different from what we have now, so I just don't understand the sheer venom on display from SK about this issue.

Because trademark causes censorship and is used to violate rights, just like patent and copyright. Dude. see trademark examples in The Patent, Copyright, Trademark, and Trade Secret Horror Files, http://c4sif.org/2011/03/the-v... ,
The Velvet Elvis and Other Trademark Absurdities, How Trademark Law Has Turned From A Consumer Protection Law, Into A Weapon To Hinder Competition http://c4sif.org/2010/10/how-t..., Trademark as Censorship: Newspaper Claims Satirical Blogger Mentioning Its Name Is Trademark Infringement, http://c4sif.org/2011/08/trade...

If you understand the nature of property rights, liberty, fraud, and contract, you will realize that trademark law is superfluous and contrary to property rights.

As is trade secret law, and all other forms of IP law: including reputation rights (defamation, libel, slander), database rights, moral rights, semiconductor maskwork protection, boat hull designs. It is all evil and utterly incomptable with libertarian property rights. Being "shocked" like some debutante is not an argument.

Trademark

kinsella's picture

Tom:

Stephan, Shayne, you guys both oppose patents, but Stephan opposes all of it, including trademarks (which I think is just madness, but there you are).

do you understand my opposition to it? To the extent it is valid, fraud law alone will suffice. Under current trademark law: (a) A can sue B for B's defrauding of customers C; (b) A can sue B even when customers C are NOT defrauded (e.g. buying a fake purse or watch); and (c) A can sue B for "diluting" the "value" of A's "registered mark" even when there is no allegation of consumer confusion at all. This is all illegitimate. The defrauded customer should have the cause of action. NOt A.

Question: Shayne has produced a book, to which he provided a link. So to test the boundaries of each others' views, I wonder how Shayne would react if, say, Stephan copied it and made it available for free on a website? Shayne seems to be a fiery sort of fellow, so this might be quite dangerous.

I have no idea. I think shayne is a bit confused on copyright, as Rothbard was. but in my case I don't shy from saying that I have no right to stop others from copying things they learn from me.

counterfactuals and pharma

kinsella's picture

http://www.dklevine.com/genera...

Tom:

"People say for example that without patents there would be no pharmaceuticals. this is a literally stupid comment, of course; they really mean there would be "less" innovation, not "no" innovation."

Agreed, although proving counterfactuals is impossible.

It is easy to show that there would be innovation, including pharmaceutical innovation, absent patent law. First, there has always been innovation even before patent systems. Second, see studies such as those of Boldrin and Levine--ch. 9 of Against Intellectual Monopoly, http://www.dklevine.com/genera... -- discussing cases of countries where there was no patent in pharma for decades and the countries prospered anyway, e.g. Italy and Switzerland:

In Italy, pharmaceutical patents were prohibited until 1978,
when the Supreme Court ruled in favor of eighteen pharmaceutical
companies, all foreign, requesting the enforcement of foreign
patents on medical products in Italy. Despite this complete lack of
any patent protection, Italy had developed a strong pharmaceutical
industry: by the end of the 1970s it was the fifth world producer of
pharmaceuticals and the seventh exporter."

or this sheldon richman column: http://www.thefreemanonline.or...

Given the vastly different patent regimes from country to country and historically, with several countries having none at all, we might expect a pattern: “In particular, at least between 1850 and 1980, most drugs and medical products should have been invented and produced in the United States and the United Kingdom, and very little if anything in continental Europe. Further, countries such as Italy, Switzerland and, to a lesser extent, Germany, should have been the poor sick laggards of the pharmaceutical industry until the other day. Instead . . . the big time opposite is and has been true.”

Their most striking illustration is Italy, which had no pharmaceutical patents until 1978. Yet, “[d]espite this complete lack of any patent protection, Italy had developed a strong pharmaceutical industry: by the end of the 1970s it was the fifth world producer of pharmaceuticals and the seventh exporter….[T]he forty largest Italian firms did not simply imitate but developed their own products and innovated extensively.” After patents were introduced, the industry became more concentrated and its share of world drug development fell slightly.

Agree also there is no such thing as an "optimal" amount of innovation. Such a term is meaningless in conditions of uncertainty.

then we cannot know that the amount of innovation under an IP-free free market is "too low."

"So why is it not reasonable of me to say, look, the very state that you support, the one that has to exist to grant anti-competitive monopoly privileges of patent and copyright, also imposes regulations, taxes, FDA, antitrust, etc., which themselves drastically reduce innovation and prosperity. Instead of having the socialist criminal fascist state that hampers society and the economy in this way, introduce yet another "broken" and corrupt bureaucrat monopoly granting scheme in a futile attempt to get innovation closer to your ideal Platonic "optimum," why don't you just support the eradication of that criminal state's interventionisms? surely that would raise innovation and prosperity dramatically, much closer to your central-planner ideal optimal amount of innovation, than would a monopoly granting scheme!"

Well I am not in favour of central planning or anything remotely akin to it, as you should have realised by now.

You may not be but there is a central planner aspect to IP arguments: they say that they know the optimal level of innovation and taht we are below it and that a state granting monopolies can help achieve this optimal level. This is implicit if not explicit in their arguments.

And even with physical property, the deeds to said are registered somewhere, and presumably, such arrangements would continue under the anarchist system you favour.

So what? I don't claim that any justice system is "optimal" or ideal.

And it is not even clear that copyright depends in theory on the existence of a "socialist, criminal fascist" state, particularly if people who bought artists' work could, by some agreements, contract to not copy such work without limit by some sort of prior agreement of mutual self interest).

It is clear to me. Since I understand how copyright works. YOu cannot have it without state legislation. It is not and cannot be a creature of contract. Copyright is an in rem right good against the world. It is not anchored to contracts. Further, to argue this one would have to have a coherent theory of contract, which Randians do not have. Their understanding qua Randians of contract principles is very limited.

Finally: "The role of law and rights is justice. Not to "create incentives."

But having incentives is a nice by-product.

Yes, and there is no reason to think that there are not nice incentive by products in innovation terms, of having a free, IP free society.

You would not want a property rights system that was felt to be just but unworkable and incapable of supporting any kind of wealth creation.

There is no reason to think a strong propertarian system that was not adulterated with IP would not have "workable" ways of supporting wealth creation.

That ways lies fanaticism. What would be the point? And incentives do matter as a test of the workability of property rights systems. They may not be the main factor, but they are not minor, either.

Of course, I agree w/ Rand that the moral is the practical and that there is a dovetailing of consequentialist with principled reasoning. But when the system establishes an IP system you cannot then use the dominant business models that arise to argue tha this is the only way to do things. And of course, as I have explained, the utilitarian and consequentialist studies that exist tend to show that IP systems distort the market and economy, reduce wealth and freedom, and that without IP there would be as much if not more innovation and creativity.

The irony is that while you

Tom Burroughes's picture

The irony is that while you seem polite fellow (I am reminded by you of how Rand pointed out that Kant was a polite fellow), your ideas are viciously violent. They constitute criminal attacks on the rights of others. Indeed, if you actually did what you suggest is right (instead of cowardly hiding behind the government while it does your dirty work) then you should probably be thrown into jail for it.

Well I obviously disagree that defending those who invent/create to be able to exclusively use said for a certain period up until the independent invention of the same (as with patents) is "viciously violent." I have explained, and am not going to repeat myself ad nauseam, that homesteading of actual physical land also needs some kind of rules to govern the process, lest we end up with absurd situations where a person, say, claims an entire region for himself and where brute force wins out. Is this also "viciously violent"?

"And by the way, you have not been reading very carefully concerning my views on copyright. Just as I think you are misrepresenting Kinsella's view on trademark. Sure, he's opposed to it, but I'm pretty sure he's not opposed to prosecuting someone who uses a symbol to defraud the market. So to simply say he opposes trademarks seems quite disingenuous, when in fact he retains much of their purpose and substance in the form of other laws."

You are okay with copyright, yes? Kinsella isn't. If that is not the case, then explain what your view actually is.

And SK is a man who talks about trademarks as "evil"; not "unwise" or "arbitrary" but evil". So it seems entirely fair for me to then ask him as to how he is going to deal with those cases where a trademark is a central feature of the identity of a firm and its products (to take my Rolex example), and therefore deeply relevant to preventing fraud and plagiarism of said. And in any event, even under a Common Law system rather than "positive law", there is no reason why firms would not form associations to create trademark registers so as to prevent fraudsters and protect their brand values In fact, this would be a highly realistic scenario; just as professionals such as accountants or lawyers form trade bodies to create reputational capital and protect it from imposters, so whole industries might do the same to form "trademark" groups to protect identities (in the same way that SK argued might happen with secrets). This is not much different from what we have now, so I just don't understand the sheer venom on display from SK about this issue.

Tom ad hominem

Shayne Wissler's picture

Tom, you observe that I can be fiery in debate and then take that to imply that I am, "maybe", somehow violent.

Is this just another sleazy way of sidestepping the issues here, or can you actually back up your premise that fiery debaters are "maybe" violent? We could speculate on whether your British politeness is authentic or whether you're a repressed person. Maybe you're the kind of guy who can superficially seem to be well mannered while actually seething with rage, and without a moments notice... well you get the picture.

The irony is that while you seem polite fellow (I am reminded by you of how Rand pointed out that Kant was a polite fellow), your ideas are viciously violent. They constitute criminal attacks on the rights of others. Indeed, if you actually did what you suggest is right (instead of cowardly hiding behind the government while it does your dirty work) then you should probably be thrown into jail for it.

And by the way, you have not been reading very carefully concerning my views on copyright. Just as I think you are misrepresenting Kinsella's view on trademark. Sure, he's opposed to it, but I'm pretty sure he's not opposed to prosecuting someone who uses a symbol to defraud the market. So to simply say he opposes trademarks seems quite disingenuous, when in fact he retains much of their purpose and substance in the form of other laws.

A question for Shayne and Stephan

Tom Burroughes's picture

Stephan, Shayne, you guys both oppose patents, but Stephan opposes all of it, including trademarks (which I think is just madness, but there you are). Question: Shayne has produced a book, to which he provided a link. So to test the boundaries of each others' views, I wonder how Shayne would react if, say, Stephan copied it and made it available for free on a website? Shayne seems to be a fiery sort of fellow, so this might be quite dangerous.

"People say for example that

Tom Burroughes's picture

BTW, I have started a new thread specifically about anarchy and Rand. If people want to debate that, please go here: http://www.solopassion.com/nod...

"People say for example that without patents there would be no pharmaceuticals. this is a literally stupid comment, of course; they really mean there would be "less" innovation, not "no" innovation."

Agreed, although proving counterfactuals is impossible.

Agree also there is no such thing as an "optimal" amount of innovation. Such a term is meaningless in conditions of uncertainty.

So why is it not reasonable of me to say, look, the very state that you support, the one that has to exist to grant anti-competitive monopoly privileges of patent and copyright, also imposes regulations, taxes, FDA, antitrust, etc., which themselves drastically reduce innovation and prosperity. Instead of having the socialist criminal fascist state that hampers society and the economy in this way, introduce yet another "broken" and corrupt bureaucrat monopoly granting scheme in a futile attempt to get innovation closer to your ideal Platonic "optimum," why don't you just support the eradication of that criminal state's interventionisms? surely that would raise innovation and prosperity dramatically, much closer to your central-planner ideal optimal amount of innovation, than would a monopoly granting scheme!

Well I am not in favour of central planning or anything remotely akin to it, as you should have realised by now. And even with physical property, the deeds to said are registered somewhere, and presumably, such arrangements would continue under the anarchist system you favour. And it is not even clear that copyright depends in theory on the existence of a "socialist, criminal fascist" state, particularly if people who bought artists' work could, by some agreements, contract to not copy such work without limit by some sort of prior agreement of mutual self interest).

As the example you give about how movies might get made in a world of piracy, what would appear to be the outcome would be more vertically integrated firms, with cinema firms owning the full distribution as well as the production processes, so as to protect their products from pirates as much as possible. Whether that leads to more innovation over time is not clear; however, in fairness to your argument, there is no doubt we would see a dramatic change in some business models as firms use secrecy and other methods to try and make business projects worthwhile in a world where copying can be done more and more easily.

Finally: "The role of law and rights is justice. Not to "create incentives."

But having incentives is a nice by-product. You would not want a property rights system that was felt to be just but unworkable and incapable of supporting any kind of wealth creation. That ways lies fanaticism. What would be the point? And incentives do matter as a test of the workability of property rights systems. They may not be the main factor, but they are not minor, either.

Re: Richard Goode on IP, Stephan on anti-trust

kinsella's picture

Tom:

"For those who subscribe to the production theory of property, the notion of IP is a natural and straightforward extension of the theory. Intangible goods are just as much a product of someone's effort as tangible goods. Whereas, for those who subscribe to the scarcity theory of property, the notion of IP makes no sense since there is no scarcity of intangible goods."


Just a short point, but a long way down this thread, I argued that one thing that is scarce in relation to intangibles is time. It takes time and effort to come up with ideas; that is an opportunity cost (the amount of time I spent trying to invent a new widget is time I could have spent doing something else). Surely one of the ideas behind IP is figuring out how to create an incentive with this in mind.

The role of law and rights is justice. Not to "create incentives."

Stephan: I wholeheartedly agree with you on abolition of anti-trust. Get rid of the whole, steaming pile of it. (And of course Rand argued for precisely this when she wrote "America's Persecuted Minority: Big Business").

I know. That's my point. She was against it on principle. Yet on IP she mixed in utilitarian considerations as do her pro-IP followers.

But here is something I don't quite understand: If a group of firms/individuals agree to form, say, an "inventions association", and agree that no member shall use another's invention without a, acknowledging who created it first; b, making any subsequent invention available to other members (rather as Linux does), and c, never divulging such inventions to non-members, then how durable is such an arrangement?

Not very. But people should be able to experiment. As it is even the first innovator gets a first-to-market advantage. Who is to say that cannot be extended a bit by some arrangements? AS a simple example suppose I want to make a blockbuster movie that costs $150M to make. Originally such movies made money ONLY by movie theater ticket sales. When VHS and then DVD and then cable and pay per view and iTunes later came along, these added extra sources of possible income. That means that if you could only sell tickets in movie theaters, that might be enough to make it profitable, even if the profit thereafter falls a lot because of piracy. So what you need is a 6 week movie theater release window, where your new movie shows exclusively in movie theater chains that are controlled by you at least contractually. It is not hard to imagine theater chains emerging that have contractual deals with movie production companies to keep the reels secret, etc. If it finally gets pirated in good quality by the time it does it's too late --the initial profit has been made. The point is you want total freedom to make whatever deals you can--and antitrust law can stand in the way of this. I am not saying every cartel or deal will be sustainable. But some might make sense and might allow enough extra exclusivity or secrecy to make more projects economically viable.

As we know with cartels, they tend to break down if a firm feels it can gain an edge by defecting. (Even OPEC struggled to fix the price of oil at times, as in the 90s).

But assuming this association endures. Let's say that in the drugs industry, for example, some of the big hitters (Glaxo, Pfizer, etc) all combine to share ideas and go after any firms they think are trying to steal theirs'.

It's not stealing to use ideas and copy with people.

In the absence of patent law, they might try and offer inventors retainer payments to stay on board as consultants, so as to reduce the likelihood of competition. Now, while in theory this all can come about through voluntary consent, in broad outline, such a market looks as uncompetitive as the patent-one that you criticise.

anything that arises as the result of voluntary contractual arrangements in a competitive free market is not "uncompetitive." to say that it is, is to accept part of the rationale of antitrust law.

I am not trying to justify the anti-IP position by relying on some kind of feasibility of cartels. Rather, it is utilitarian and concrete-bound proponents of imaginary property who continually demand examples of how people can prosper in an IP free world if not a crystal ball as to what a free society might look like, as a precondition of their even entertaining the notion that maybe anti-competitive monopoly grants by a fascist state should be reconsidered. So I and others on occasion take the bait and try to offer some ideas as to possible ways the market might develop in an IP free world. So we should not be criticized for doing what we are asked to do.

People say for example that without patents there would be no pharmaceuticals. this is a literally stupid comment, of course; they really mean there would be "less" innovation, not "no" innovation. And thus, they are saying that there is some optimal amount of innovation and that without this statist tweak we will miss it. I.e. they are saying that in a free society we have less-than-optimal innovation; not enough innovation. So why is it not reasonable of me to say, look, the very state that you support, the one that has to exist to grant anti-competitive monopoly privileges of patent and copyright, also imposes regulations, taxes, FDA, antitrust, etc., which themselves drastically reduce innovation and prosperity. Instead of having the socialist criminal fascist state that hampers society and the economy in this way, introduce yet another "broken" and corrupt bureaucrat monopoly granting scheme in a futile attempt to get innovation closer to your ideal Platonic "optimum," why don't you just support the eradication of that criminal state's interventionisms? surely that would raise innovation and prosperity dramatically, much closer to your central-planner ideal optimal amount of innovation, than would a monopoly granting scheme!

Richard Goode on IP, Stephan on anti-trust

Tom Burroughes's picture

"For those who subscribe to the production theory of property, the notion of IP is a natural and straightforward extension of the theory. Intangible goods are just as much a product of someone's effort as tangible goods. Whereas, for those who subscribe to the scarcity theory of property, the notion of IP makes no sense since there is no scarcity of intangible goods."

Just a short point, but a long way down this thread, I argued that one thing that is scarce in relation to intangibles is time. It takes time and effort to come up with ideas; that is an opportunity cost (the amount of time I spent trying to invent a new widget is time I could have spent doing something else). Surely one of the ideas behind IP is figuring out how to create an incentive with this in mind.

Stephan: I wholeheartedly agree with you on abolition of anti-trust. Get rid of the whole, steaming pile of it. (And of course Rand argued for precisely this when she wrote "America's Persecuted Minority: Big Business"). But here is something I don't quite understand: If a group of firms/individuals agree to form, say, an "inventions association", and agree that no member shall use another's invention without a, acknowledging who created it first; b, making any subsequent invention available to other members (rather as Linux does), and c, never divulging such inventions to non-members, then how durable is such an arrangement? As we know with cartels, they tend to break down if a firm feels it can gain an edge by defecting. (Even OPEC struggled to fix the price of oil at times, as in the 90s).

But assuming this association endures. Let's say that in the drugs industry, for example, some of the big hitters (Glaxo, Pfizer, etc) all combine to share ideas and go after any firms they think are trying to steal theirs'. In the absence of patent law, they might try and offer inventors retainer payments to stay on board as consultants, so as to reduce the likelihood of competition. Now, while in theory this all can come about through voluntary consent, in broad outline, such a market looks as uncompetitive as the patent-one that you criticise. Sure, some firms will try and challenge the "inventions association", but nonetheless, if you are worried about the supposedly anti-competition aspects of patents, the idea of such a cartel seems a bit odd.

Of course, the "open source" model of software and other groups of likeminded people show that a lot of useful things can be developed outside the boundaries of statutory IP. I am all in favour of the former; more power to those who can make this stuff work.

I'll respond to the points on anarchism in a separate thread, since this is way too long now.

Good for Brant

kinsella's picture

Good to see more and more Objectivists realizing that IP is unjust and incompatible with basic property rights. For more, see: Yet another Randian recants on IP; also IP Killing Objectivism; The Death Throes of Pro-IP Libertarianism, The Origins of Libertarian IP Abolitionism; and The Four Historical Phases of IP Abolitionism. And a few comments on his post:

After spending a long time reviewing these threads' locus on patents, I don't understand how violating a patent is an initiation of force or rights' violating. To argue the contrary is to jump inside a legality to make a logical statement, but that's rationalism. My step-mother was what is now called an Immigration Judge. She totally believed in what she did and was totally incapable of stepping outside her context and viewing what she did rationally. It was always the logic she found inside the law, not whether the law was more generally logical--or right. No one has yet to knock Shayne down on this, only knock him. That he knocks back is besides the point. The second inventor does beg the question of did he invent or copy? If the latter then we segue to copyrights--no?

Presumably, but then (a) copyrights apply only to original expressions of ideas, not to functional things like inventions; and (b) the question arises: given that we have all learned from others, given that all innovation is incremental and builds on ideas of others, given that learning is good, given that the free market and competition involves people emulating what others do and learning from them and competing, given that competition is good--what in the world is wrong with copying others and competing with them? It does not commit aggression and is not theft.

Patents

Brant Gaede's picture

After spending a long time reviewing these threads' locus on patents, I don't understand how violating a patent is an initiation of force or rights' violating. To argue the contrary is to jump inside a legality to make a logical statement, but that's rationalism. My step-mother was what is now called an Immigration Judge. She totally believed in what she did and was totally incapable of stepping outside her context and viewing what she did rationally. It was always the logic she found inside the law, not whether the law was more generally logical--or right. No one has yet to knock Shayne down on this, only knock him. That he knocks back is besides the point. The second inventor does beg the question of did he invent or copy? If the latter then we segue to copyrights--no? A bigger question is why patents or their equivalents are the government's business which in turn is begging the question of the relationship of government to property generally, especially real property. I have a deed to a house and the land it sits on. It's all on public record down at the courthouse. Why is the county involved? To protect property it must define property? Maybe so, but there is necessary arbitrariness in all this aside from its desire to tax me. Just like patents, really. And one truly undeniable point is that the current patent system is a horrible mess. I think that mess is unavoidable, all considered, out of basic irrationality.

--Brant

Objectivist teasing

Shayne Wissler's picture

Objectivists are well-practiced at teasing because in fact, for many of the Objectivist tenets their justification is, sadly, a tease. Rand had ideals, but in many cases, not good arguments for them. She really was first and foremost a fiction writer, not a philosopher. This is of course a very heretical sentiment, which only goes to further underscore the problem with Objectivism, and not only with Objectivism, but even with many who are merely admirers of aspects of her "philosophy."

But I would say that she really did not have a philosophy. What she had were ideals, and while she had the backbone of a philosophy, but when it came to nuts and bolts it was hit and miss. She made many incisive arguments, and some very stupid arguments. Many of her ideals were very good, some were very confused, some were outright evil. Her epistemology is completely untenable, starting at page 1! One of her ideals was a commitment to reason, and it is through this ideal that anyone can avoid her mistakes, if they are honest. So I don't blame Ayn Rand for her followers, but I do blame her for her arrogance.

How inventors prosper in a free society

Shayne Wissler's picture

The arch example of someone who, if patents be just, deserved his patent was Nicola Tesla, for his AC motor.

If there were no patents, what could Nicola have done? The same thing he did, but just add a bit more security and don't disclose. The massive head start he gave to Westinghouse could have made him a very rich man. Clearly the fact of AC power would have alerted everyone to the possibility of the motor, and someone would have figured out how to build it from that fact alone -- what they lacked more than intelligence was a belief that it was possible. But it would have to take on the order of years, it would probably be at least decade before a new power plant would be online.

We can imagine a scenario where someone did some corporate espionage early in the process and beat Westinghouse. But if society is moral, they would perceive what had happened and would grant Tesla his due. And if society is not moral, then adding the wickedness of patents to the mix does not achieve justice for inventors, it merely sacrifices many inventors for the sake of a few.

(Note that Tesla died in poverty because he loved humanity and the bulk of its representatives did not love him back.)

LInz's "tough titty premise"

Shayne Wissler's picture

As tantalizingly close as Linz's post was to coming over to the good side, it's still "tough titties" for the alleged infringer unless he can make some kind of utilitarian proof for Linz.

Why should the victim of systematic crime have to make the case that the perpetrator is going to be well off? I mean, if a robber breaks into your house, and you try to tell him why he shouldn't rob houses, and then he asks "well how am I going to have all of my nice stuff if I don't steal?" What kind of answer could possibly satisfy him? Sure, you could try. You could tell him to stop being so lazy and do some work. But that's not as easy as stealing and the creep is immoral in the first place.

In my book I call this "the argument from wickedness." You have to be utterly unconcerned about what is true and good to make it, and you have to be a fool to think that addressing the argument addresses the real point at issue (libertarian economists address it all the time). So let's say you convince the robber not to steal. Have you reformed him? No. He's going to go on being the same barbarian thug who decided it was a good idea to rob you, and he's going to do something else that's evil. You've not addressed the root problem.

And the root problem here is that the sanctity of the innocent until proven guilty principle is being brazenly flouted. And if we cannot agree that we do not attack people without proving that they have earned it, what kind of a civilization are we creating?

Goode

kinsella's picture

If you don't want people making generic copies of a drug that cost you a small fortune to develop, enter into a joint agreement with all the major players in the pharmaceutical industry before you publicly release it.

There are lots of arrangmenets people could try, in an IP free world, but many of them, like this one, would at present be prohibited under federal antitrust law. The evil federal state violates our rights in a number of ways: it impoverishes us by taxes; it hampers companies by regulations (simultaneously giving rise to oligopolies that do further damage to competition, innovation, and consumers); it harms patients and consumers with the FDA regulations; it prevents freedom of action via antitrust law. Then it has the audacity to propose a patent system to help companies make a profit from innovation. When its antitrust law would prohibit private arrangements that would allow them to profit sans IP. When its FDA provisions gum up the works. When profits are lower and consumer demand is lower because of taxes and regulations. If you get rid of all of this consumers and companies would be far richer and have tons more money to invest in R&D and wouldh ave more contractual flexibility to enter into cartels or whatever to deal with free riders or to extend the early-mover advantage.

What is mind-boggling is that libertarians think the criminal state that engages in taxes, regulations, confiscation, drug war, police state actions, antitrust, and so on, ought to be trusted to lay down a regime of patent and copyrihgt for the benefit of the free market!!

perigo's second inventor

kinsella's picture

Perigo:

Where I struggle is with the notion that a man's right to the product of his mind applies only if he's the first to come up with that product.

Well actually, under the current law, and under the law Rand thought she was defending, the notion would be that you have the irght to the product of your mind only if you are the first one to register a claim to it with the patent office.

But the bigger, real question is: why do you have the right to use information only if you came up with it on your own? WE all build on information we have learned and that was developed by others, either recently or in the past; and when we have a free market system competing *means* emulating what others do and competing with them.

I note also some posters here are pressuring me to come down definitively on one side or the other. I'll do that if and when I'm good and ready. Somehow I think this whole area is always going to be a work in progress. I'll never endorse carte blanche copying (thieving) a la Baade...,

Copying is not thieving. This is yet again pure question-begging, and it's just erroneous. Copying might be some kind of rights violation (though no one can seem to say why) but even if it is, it is not stealing. Stealing means taking something from someone so that they no longer have it. This is not what happens when you copy or use information.

Binswanger

kinsella's picture

ignore, accidnetal post

Binswanger

kinsella's picture

Shayne:

A long long time ago I was on HBL. As I recall, the subject of patents was dealt with by HB very pragmatically, not unlike what we've seen here, referring to alleged utilitarian consequences such as that no one would have a motive to invent if they did not get the patent monopoly etc. No principle whatsoever was offered. It was admitted that AR's argument was not a proof, but that maybe someday someone might give a good argument. She was taken to be 100% right in spite of the fact that she had no actual argument, of course.

And of course, if you had a strong position on this, HB would not post your message to his list. So the standard Objectivist argument is to offer a utilitarian argument as a kind of cheap teaser, rely on the supposition that Rand's alleged genius means she was right about everything and that a better argument might be forthcoming by someone smarter than the Objectivist (they are often quite "humble" in this respect), and then dogmatically ignore any arguments to the contrary. This is the standard Objectivist position.

Wow, this is a great way of describing them. Yes, they use util. as a teaser, while saying they are not utilitarian; and then while half-admitting Rand's theory on IP was incomplete and problematic, assume she was right anyway; not realizing Rand was doing the same for the Founders given her America- and Constitution-worship: she just assumes that if the great US Constitution authorizes patents, then they must be a good idea (she initially did the same thing for eminent domain, since it's in there too, before finally reluctantly changing her mind on this)

No, Ross

Richard Goode's picture

I'm a capitalist and you're an anarchist.

No, Ross. I'm a capitalist and you're a National socialist who endorses cronyism in the form of anti-competitive monopoly privileges granted by and enforced by a group of thugs who have a legal monopoly on the use of force.

And never the twain shall meet.

Let us pray.

I've just realised

Richard Goode's picture

IP is patently unbiblical. Why? Because.

Then...

Ross Elliot's picture

...I'm a capitalist and you're an anarchist. And never the twain shall meet.

You can't have your property and eat it, too.

No, Ross

Richard Goode's picture

An idea in my head is not property. I need to stake a claim to it.

No, Ross. You do NOT need to stake a claim to it. What a silly idea.

Osama bin Laden urinal cakes

Richard Goode's picture

If what I invent is not in some way protected from exploitation by another, then what do I really have? Not much at all. Again, the alternative view is tough shit: you put it out there and I have a claim to it. What are the implications of that? One implication is: why should I bother investing time, effort and resources. Answer: none.

If what you manufacture is Osama bin Laden urinal cakes, then what do you really have? Apart from a truckload of stupid, stinking urinal cakes, not much at all. Again, the alternative view is tough shit: you put your Osama bin Laden urinal cakes on the market and no one buys them. What are the implications of that? One implication is: why should you bother investing time, effort and resources in manufacturing Osama bin Laden urinal cakes? Answer: you shouldn't. Find a more remunerative use of your time, effort and resources.

Am I sanctioning a "criminal state" if I claim that you can't use my property as you see fit? No.

Are you sanctioning a "criminal state" if you claim that I can't use my property as I see fit? Yes.

Since you asked, Richard

Ross Elliot's picture

Yes, property rights are political. We don't live alienated from one another. We need a way to determine who owns what. That's the function of politics.

If what I invent is not in some way protected from exploitation by another, then what do I really have? Not much at all. Again, the alternative view is tough shit: you put it out there and I have a claim to it. What are the implications of that? One implication is: why should I bother investing time, effort and resources? Answer: none.

An idea in my head is not property. I need to stake a claim to it. And that claim must be based upon something real. A patent claim describes something real. It describes an actual idea made real. The diagram in the patent office is my idea made real. It's the same as my book printed.

Am I sanctioning a "criminal state" if I claim that you can't use my property as you see fit? No.

As I said, it ain't perfect, but neither is any interaction that we engage in within society. We understand that my right to enjoy my property comes with limits. And in fact, so do patents. But that doesn't mean that I don't have *any* right to the use of my property. And that's it for me. We don't live in isolation, we live together, and there must be some way to determine who created what.

The alternative is the anarchist/socialist idea (since in effect they are the same) that all property belongs to the commons. The anarchist says your ideas are open to all, the socialist says your ideas are the property of all. The effect is the same.

Ross

Richard Goode's picture

...the infringer is not guilty of violating natural rights, he's guilty of violating *political* rights.

Please read my "position statement" here. It appears to me that we are in basic agreement that there are two kinds of rights. What you call political rights, I call conventional rights. Pretty much the same thing. Whereas what you call natural rights, I replace with God-given rights. Not the same thing at all, but they do the same job.

Now the important question is, are property rights a species of natural (or God-given) right or a species of political (conventional) right? You seem to imply that you think the latter when you say that an IP "infringer" is guilty of violating political rights, not natural rights. And I agree.

Those who subscribe to the production theory of property say that a tangible good is someone's property in virtue of the fact that it is the product of his effort. Whereas, those who subscribe to the scarcity theory of property say that a tangible good is someone's property in virtue of the fact that there exists a certain convention, viz., "the institution of private property," that governs the allocation and use of scarce resources. The convention is held to be morally justified because the institution of private property is held to be the the obvious and best solution to conflicts over scarce resources. And, importantly, you cannot have a free society unless there is an acceptable solution to the problem of conflict over scarce resources.

For those who subscribe to the production theory of property, the notion of IP is a natural and straightforward extension of the theory. Intangible goods are just as much a product of someone's effort as tangible goods. Whereas, for those who subscribe to the scarcity theory of property, the notion of IP makes no sense since there is no scarcity of intangible goods. To justify the institution of intellectual property, those who subscribe to the scarcity theory of property would have to establish that IP is the best solution to a conflict that must have a solution in order for a free society to exist. But IP is not the best solution to any such problem I can think of. If you don't want people to download free copies of your book, the best solution is not to put an electronic copy on the Internet in the first place. If you don't want people to rip-off your special red hot chilli sauce recipe, keep it a secret. If you don't want people making generic copies of a drug that cost you a small fortune to develop, enter into a joint agreement with all the major players in the pharmaceutical industry before you publicly release it. Simple solutions. Better solutions than IP, in that they respect the NIOF principle.

We don't need IP. As Stephan already remarked, if you support IP, then

You are supporting socialism, mercantilism, grants of anti-competitive monopoly privilege by a criminal state. This is shameful.

Richard...

Ross Elliot's picture

...the infringer is not guilty of violating natural rights, he's guilty of violating *political* rights.

Politics determines how we deal with each other in society. The idea of unintentional violation is as moot as that of innocence of the law. You can't claim innocence because you don't know that the law prohibits your actions. You can only claim ignorance.

If my patent has been lodged, your subsequent--unintentional--copying is neither here nor there. What's the alternative? Well, I guess if you're an anarchist, the alternative is to go right ahead and keep copying.

You see, the idea isn't perfect, but it's just. Can you claim a right to buy a property because you got delayed in traffic and couldn't make it to the auction?

Sure, debate it in court, and that happens all the time, and many patent claims are voided. But the patent idea is that the inventor has the rights to exploitation.

Against IP

Richard Goode's picture

Where I struggle is with the notion that a man's right to the product of his mind applies only if he's the first to come up with that product.

As well you should.

The examples you give ... don't justify the winner-takes-all principle, which you merely assert is the correct one.

This is THE fundamental issue.

There are three of us on this thread (Stephan, me, Shayne) arguing against IP (or against patents). Each of us has also pointed out that this is THE fundamental issue.

Shayne says

If [those who think patents are justified] agree with "innocent until proven guilty", it is their responsibility to provide proof that the patent infringer is guilty of violating natural rights. If not, then it is their responsibility to explain why not. Nothing else is relevant.

I asked

Why is the use of force justified against a re-inventor who didn't intentionally copy?

And Stephan asked

why is force justified against a competitor who does copy?

So let's be having it. A justification of the winner-takes-all principle. Anything less is an evasion.

Michael

Lindsay Perigo's picture

I've already made the arguments about why not granting rights in the second inventor in a post to you!! It is certainly not "tough-titty", and I have seen no rebuttal. Here they are again, feel free to rebut if you like:

Sorry, didn't see it first time around.

I re-read Rand's essay earlier today. When you say, "It is a race, a competition, and an incentive to get there first and be the first to claim an innovation," you very much echo her "the loser in a case of that kind has to accept the fact that in seeking to trade with others he must face the possibility of a competitor winning the race, which is true in all types of competition," which indeed I would call the "tough titty premise." Now, merely calling it that doesn't invalidate it, of course, but that's what it is.

Where I struggle is with the notion that a man's right to the product of his mind applies only if he's the first to come up with that product. The examples you give speak only of the messiness of implementing any kind of multi-patent system; they don't justify the winner-takes-all principle, which you merely assert is the correct one. In Rand's (and your) race, the second place-getter not only gets no prize money at all, he gets thrown in jail if he tries to claim some. If I invent a remote control that can transform headbanging on television into Rachmaninoff, for example, and patent it, and you, knowing nothing of this and owing nothing to it, produce a similar device next week, I can not only stop you marketing it but have you jailed for doing so. This does not seem satisfactory to me. You haven't stolen from me; you've used your mind to create a product in good faith. "Tough titty" doesn't strike me as the best we're capable of.

I note that Rand acknowledges the complexity of the area (as opposed to copyright). She bemoans the fact that the undermining of patent law has led firms to engage in secrecy. I wonder what she thinks is so wrong with that? I believe the Colonel never patented his KFC recipe, because that would necessitate disclosing it. Seems to have worked well enough in protecting it.

I note also some posters here are pressuring me to come down definitively on one side or the other. I'll do that if and when I'm good and ready. Somehow I think this whole area is always going to be a work in progress. I'll never endorse carte blanche copying (thieving) a la Baade, but I'm certain legal minds can do better than the tough titty premise.

Harry Binswanger List on patents

Shayne Wissler's picture

A long long time ago I was on HBL. As I recall, the subject of patents was dealt with by HB very pragmatically, not unlike what we've seen here, referring to alleged utilitarian consequences such as that no one would have a motive to invent if they did not get the patent monopoly etc. No principle whatsoever was offered. It was admitted that AR's argument was not a proof, but that maybe someday someone might give a good argument. She was taken to be 100% right in spite of the fact that she had no actual argument, of course.

And of course, if you had a strong position on this, HB would not post your message to his list. So the standard Objectivist argument is to offer a utilitarian argument as a kind of cheap teaser, rely on the supposition that Rand's alleged genius means she was right about everything and that a better argument might be forthcoming by someone smarter than the Objectivist (they are often quite "humble" in this respect), and then dogmatically ignore any arguments to the contrary. This is the standard Objectivist position.

"You are very wrong."

Shayne Wissler's picture

We do not need to discuss here the basis of ethics and philosophy if we already agree on basic political norms such as private ownership of scarce resources.

There is no agreement that the burden of proof principle means that it is the Objectivists who are on the hook to provide a definitive proof that patents are justified. It's not an ethical issue, it pertains to epistemology and jurisprudence. If they agree with "innocent until proven guilty", it is their responsibility to provide proof that the patent infringer is guilty of violating natural rights. If not, then it is their responsibility to explain why not. Nothing else is relevant.

Third, if anyone, it is Objectivists who are anti-philosophical with their religious devotion to Rand's formulations, cultish attitudes, and irratioanl and dishonest reasoning such as repeated resort to question-begging.

Yes, but Objectivism enjoins them to be rational. Peikoff even taught a class on logic, which correctly identified various logical fallacies. These Objectivists probably never bothered studying Objectivism. They've probably not listened to many Objectivist lectures nor studied Objectivism in much detail. The Objectivists who did know how to not enter into debates like this in the first place (the excuse they use is to call people who actually think "immoral" and to not "sanction" them). True Objectivists are deeply dishonest, but not as uneducated as the Objectivists we see here. The true Objectivists are the silent Objectivists. The ones here are just poseurs, fanboys.

It's an insult to Objectivists to refer to the people here as "Objectivists"; no true Objectivist would actually engage either one of us.

philosophy

kinsella's picture

Shayne:

This anti-philosophical attitude is why libertarians are mocked by Objectivists. Method determines everything; it is the first cause and prime mover not only of one's premises but of how one applies them in reality. I.e., you think you agree because you see superficial resemblance, but such "agreement" would turn into war if you and your presumed allies were ever to obtain political power, because really you do not agree at all if you do not use the same basic method to come to conclusions.

You are very wrong. first, libertarians are mocked by Objectivists mostly b/c of Objectivists' peculiarities. Second, there is no anti-philosophical attitude at all here. We do not need to discuss here the basis of ethics and philosophy if we already agree on basic political norms such as private ownership of scarce resources. Third, if anyone, it is Objectivists who are anti-philosophical with their religious devotion to Rand's formulations, cultish attitudes, and irratioanl and dishonest reasoning such as repeated resort to question-begging. You really don't know what you are talking about.

Method

Shayne Wissler's picture

The irony is that while I agree with many of Kinsella's arguments, I think the fact that he's having these "squabbling" arguments is a de facto red herring that distracts from the only important issue here: method.

What we see in this thread is a constant yapping back and forth about relatively petty details while the key fundamental is ignored by the other side: the burden of proof principle. There should really be no discussion at all as long as this remains ignored, because no discussion is meaningful without it. It is THE fundamental issue here.

The second inventor (or indeed, any alleged patent infringer) is being dragged into court at virtual gunpoint because of an allegedly true abstract theory. If the theory and its application cannot be proven (even by lowering the bar to "beyond a reasonable doubt"), then the alleged infringer gets off. Period.

Now, clearly the pro-patent crowd implicitly denies this, but they are not honest enough to come out and admit it. We even have explicit admissions by Tom and Linz that they aren't certain -- i.e., they have reasonable doubts. And yet they continue to flout the innocent until proven guilty principle. They support violent usurpation of a presumably innocent man's property rights, possibly wrecking his livelihood and destroying his happiness.

No other subject matters than this, and it's the only one that's not being discussed.

Why "squabble"?

Shayne Wissler's picture

Sufficie it to say that hoppe's AE and my own estoppel based approach and Rothbard's approach all boil down to the same set of basic ethics as Rand: that each person has a right to live for himself and that there should be law respecting individual property rights in scarce resources in accordance with Lockean first-use principles. We al agree to this. So why squabble about this?

This anti-philosophical attitude is why libertarians are mocked by Objectivists. Method determines everything; it is the first cause and prime mover not only of one's premises but of how one applies them in reality. I.e., you think you agree because you see superficial resemblance, but such "agreement" would turn into war if you and your presumed allies were ever to obtain political power, because really you do not agree at all if you do not use the same basic method to come to conclusions.

nozick and anarchy

kinsella's picture

Tom:

On anarchism, this is a separate issue to IP, so I don’t want to get this thread about IP derailed

The problem is IP types often say that the only reason to oppose IP is anarchy. this is not true. You can be a minarchist and still realize all the problems with IP that I do. Or most of them. And quite often when IP proponents try to argue for IP they implicitly assume the legitimacy of the state or many statist concepts. So it is they who are inviting the anarchist type replies.

If I “oppose” anarchism (or am sceptical about the workability of a stateless society if you want to use that term instead), it is because I don’t see how a society composed of different protection agencies, etc, can long endure without, eventually, conflicts emerging between them that when they get resolved means a transfer back towards a “state”, or “minarchy”, and common set of laws universally acknowledged.

Yes, but this still doesn't justify the state. You still have to choose: a, you are willing to condone aggression, or b, you think the state does not cause aggression. It seems to me here, reading between the lines since like most libertarians who favor the state you do not seem to want to be explicit--that you are not denying that the state causes aggression, but that without the state there would be anarchy which wuld presumably hvae even greater aggression; so you think the aggression these causes is "worth it" since it is potentially a level less than the aggression that would befall us under conditions of chaotic anarchy. Is that right? You are doing some kind of rights- or aggression-calculus? If this is the case, let me ask you: even if you think the level of aggression under anarchy is worse that than under minarchy, what about anarchy compared to a socialist mixed economy welfare state as we have nowadays?--which is better: the rampant chaotic anarchy under lawless anarchy, or under a modern socialist welfare state such as in the US or Sweden? Which would you prefer, if you had to choose?

I am aware of the literature in defence of anarchism, Stephan. I don’t agree with all of it, or think that it leaves significant questions unanswered, such as how different protection agencies can resolve disputes between clients, deal with non-consenting third parties, and so on.

Yes, and I am sure people used to communism might wonder how many brands of toothpaste there would be, and if someone could not answer them by predicting the future they would stick with communism.

I think you are downplaying the reasonable answers anarchists have given as to what a free world might look like. but in any case the burden is not on us. As I have explained, the state clearly commits widespread and institutionalized aggression--necessarily. Even a minimal state. If you oppose aggression, you have to admit the state is unjust. Period.

I don’t favour a state as such; rather, I don’t see anarcho-capitalism as being something that can be stable through time without eventually becoming a state with monopoly force, either de facto, or de jure, in a given territory.

Anarchists are not committed to this view either. We simply believe aggression is illegitimate, and because the state commits it, it is illegitimate too. that is all we are committed to believing. It is similar to your and my shared view on private crime: I am sure we both believe private murder and theft are immoral and completely unjustifiable. Yet it is unrealistic to expect us to ever achieve a society with literally zero crime. But we would say that the cirme that that does occur, even if it is inevitable, is unjust and immoral. And we anarchists say the same of the state. You seem to be saying that if aggression is going to occur anyway, we might as well try to minimize it, and the best way to do this is the use of a regional politician-run monopoly on the use of force, even though every single one of these entities in history has started out or at least become tyrannical and statist.

So my support for minarchy is a sort of default position, an acceptance of this as the “least worst” outcome. Convince me that anarcho-capitalism could work, and I would change my mind. (I have flirted with the idea but always felt there were problems with it).

I don't need to show you it would "work" anymore than I need to show you that a rape-free society would "work". Of course it would work. Can we achieve it? I dont know. Can we achieve a public-crime-free world? I don't konw. But it will be easier if people like you stop supporting public criminality.

“Re anarchy, she portrayed an anarchist state in Galt's Gulch; yet elsewhere she rails against it. I guess she hates Galt!”

Oh come on. If people emigrate to a new land to flee a tyranny, or choose to withdraw from mainstream society (which is the example of Galt’s Gulch), that is very different from denying the need for a state to enforce certain rights at all.

There is no apparent state in Galt's gulch.

I don’t understand your point about Paul Birch. As for his critique of HHHoppe’s argumentation approach for rights, Hoppe claims that if you criticise natural rights, you are implicitly accepting them because you accept that the person you are speaking to has the right to think (a bit like Rand’s “stolen concept” approach, maybe). But, is HHH right? Arguing with someone might be a less onerous way of trying to impose your will on them. There is nothing contradictory about this. I remember reading this point by a blogger, Charles Steele (who, I should state, is not exactly a great fan of HHH).

I think the criticisms of Hoppe are way off base. In fact I think Hoppe's AE is sound and is basically compatible with Objectivism, but if you don't want to get into anarchy surely you don't want to get into neo-Kantian Hoppean rights theory. Sufficie it to say that hoppe's AE and my own estoppel based approach and Rothbard's approach all boil down to the same set of basic ethics as Rand: that each person has a right to live for himself and that there should be law respecting individual property rights in scarce resources in accordance with Lockean first-use principles. We al agree to this. So why squabble about this? The point is that IPers try to add on an extra type of right, and we are simply pointing out that it is completely and utterly incompatible with basic properrty rights that we have all agreed to. If you do not agree to property rights in scarce resources then we would not have this common point of reference to go back to, but we do. So it is incumbent on you to show how IP is compatible with property rights that you arleady admit are valid.

IP is now the cause for an expanding “police state”? It might be used by slimeball politicians as an excuse, but the crappy SOPA Act is disliked even by defenders of IP as intrusive, damaging legislation.

They do not realize that this is a natural consequence of these type of laws. As Mises wrote "“No socialist author ever gave a thought to the possibility that the abstract entity which he wants to vest with unlimited power—whether it is called humanity, society, nation, state, or government—could act in a way of which he himself disapproves.” http://www.mises.org/humanacti...

IP advocates are the same. they need to take responsibility for the predictiable consequences of their hideous socialist laws.

Just because politicians invoke copyright or whatever as they push for bad legislation does not necessarily invalidate IP as such.

But it might be a wakeup call for people who advocate for IP without being aware of what they are saying.

A good point about creation as a possible source of property rights comes from the great Lysander Spooner, who was an anarchist, as you no doubt know (and a fierce opponent of slavery):

ANd a total idiot and crank on IP.

“I fail to see the relevance of how people might homestead scarce things, to whether non-scarce things may be homesteaded or owned.”

The relevance is that IP opponents want to stress the “naturalness” of owning physical property against the “artificiality” of owning intangibles. I want to argue that the boundaries are not so clear cut. My language might have been clumsy.

My argument is that IP necessarily takes away existing rights in scarce resources. It is theft. I don't know how I could be much more clear about this.

What I am saying is that just as we accept that there are issues with “real” property as you call it, that your objections to IP seem, well, overwrought

They are not overwroguth. People's lives are ruined by IP. Hundrds of billions of dollars are lost because of IP. IP is threatening Internet freedom, based on fallacious views of property. This is not overwrought. Not a bit. If anything it is too calm.

, particularly if IP enables people to create new values out of nothing,

this "create new values" talk is more of Rand's confusing notions: we do not create "values." Values are not "things." Objects do not "have" intrinsic value. As Rand elsewhere recognized, when you own scarce resourcs you can use your labor and intellect to rearrange these things into new configurations that YOU VALUE (subjectively) more. Value is a relationship, not a substance. You do not "create values." This is just a confused way of putting it to justify the confused Randian/Lockean notion that you own "whatever thing" that you "create"--including "values" that you create. This is all economically illiterate poppycock. You do not own values. You do not have a property right in the value of things that you own. rather you have a property right in the property bordrers--the physical integrity--of the scarce resources you own. If you transform them by production and labor into a more valuable (to you) configuration then you own the transformed thing, and thus can benefit from it. But yo udon't own value.

I can happily concede that the case for IP has holes in it, and that Rand might have been wrong in some respects, without adopting your blanket opposition to IP

so.... IP is unjust. rand was confused. you are not in favor of the current system. you are not an expert so don't konw what you are in favor of. Yet... you oppose abolishing IP! So if there was NO Ip, what exactly would you be in favor of enacting?

(since we haven't even discussed trademarks here yet).

Trademark is evil too. I have explained why in detail.

No, it is not conservatism, either, really. I have stated before that there ought, for example, be a way of tackling the independent inventor issue

What is wrong with a competitor who sees what I am doing and emulates me to compete with me? Why does he need to be independent?

Finally, I am convinced that Goode is mad, but quite amusing.

Is he really religious? (I am not)

Pimping Reason

Richard Goode's picture

Organized movements have nothing to do with the truth.

The history of organised religion does tend to bear this out.

And what do they even mean by "reason"?

Smiling

Yes it pays lip service

Shayne Wissler's picture

Yes Objectivism pays lip service, but that's a good thing. Sure, it'd be better to consistently put it into practice, but point me to any organized political/philosophical movement that does that.

All organized movements that proffer philosophies (whether in the broad sense or just the political sense) are cults as far as I can tell. All of these groups have hierarchies with people climbing up them by pleasing others. That is their priority in life, to figure out what the people who hold power over their climbing want, and then to give them that. Organized movements have nothing to do with the truth. (I don't know whether that must be the nature of all organized movements that they must degenerate in this manner, but I can certainly see how this pitfall is part of their nature).

"Come now, and let us reason together," saith the LORD.

And what do they even mean by "reason"?

Can you give me a specific example of an Objectivist doing some independent (of what?) reality-based thinking?

There is a lot of reality-based thinking in Objectivism, but you have to be prepared to use it like a map that can be wrong and think through everything for yourself because there are indeed some land mines in there.

What is wrong with copying?

Richard Goode's picture

Why is force justified against a competitor who copies?

Shayne

Richard Goode's picture

You conflate Christianity, Catholicism and religion.

If you were to examine various Christian religions with the same energy you examine Objectivism, and if you were honest about it, you'd find at least as much cultishness in them.

Yes, that's what I found.

Objectivism shares some things in common with religion on this count, unfortunately, but it also explicitly affirms the value of independent reality-based thinking.

You say that Objectivism "explicitly affirms the value of independent reality-based thinking," as if this were a redeeming feature. It's not. Objectivism pays lip service to the value of, but in fact discourages, independent reality-based thinking. That's one of the main points I was trying to get across. Can you give me a specific example of an Objectivist doing some independent (of what?) reality-based thinking?

Does Christianity do this? No.

Actually, yes. "Come now, and let us reason together," saith the LORD.

Get your facts straight, Shayne. Spouting off before listening to the facts is both shameful and foolish. Test everything. Hold on to the good.

Pot, Kettle, Black

Shayne Wissler's picture

Don't let's talk of cults when you're pimping Christianity Richard. If you were to examine various Christian religions with the same energy you examine Objectivism, and if you were honest about it, you'd find at least as much cultishness in them.

Everyone of normal mental capacity was born with the ability to induce truth from reality. Religion uses authoritarianism and brainwashing of children to propagate itself. Objectivism shares some things in common with religion on this count, unfortunately, but it also explicitly affirms the value of independent reality-based thinking. Does Christianity do this? No. You're supposed to kiss the pope's ring.

Tom

Richard Goode's picture

I am convinced that Goode is mad

From no fewer than three of the comments I linked to just now ...

Rather than honestly and intelligently debating with critics, using facts and logic, the cult will resort to low personal attacks on the critic, using name-calling, slander, condescending put-downs, libelous accusations, personal slurs, accusations of bad motives, and casting aspersions on the critic's intelligence and sanity.

... and sanity. You're convinced that I'm mad? Why?

I advocate reason. You should try it sometime.

Smartphones, dumbpeople

Shayne Wissler's picture

So Tom, it doesn't bother you that startups are excluded from making cellphones? What of the engineer whose dream it is to create a new kind of smart phone?

Nevermind, I already know the answer. So long as you have your cheese, you're happy in your cage. But some of us like to actually be able to create new things without being viciously attacked for our trouble.

Taxes

Tom Burroughes's picture

Surely the most pressing thing is to cut the state down to size and roll back the burden of tax. IP is chickenfeed compared to that much greater issue, I should have thought.

Anarchism, IP and other issues

Tom Burroughes's picture

On anarchism, this is a separate issue to IP, so I don’t want to get this thread about IP derailed, but Murray Rothbard, in my view, did not give a convincing response to Nozick and the concerns he and others have about how anarchop-capitalism actually would work. That happens to be my view, and nothing to do with any sort of “popularity contest”.

“Opposing anarchism" means supporting the state and the aggression that it necessarily commits. Asking someone, for example, to justify anarchy is a disingenuous way of trying to word the question in a loaded way to change the presumptions. An anarchist merely is someone who (a) opposes aggression *on principle* (like I thought Randians did) and (b) recognizes that the state inherently commits aggression, by taxes, or by outlawing competing justice agencies. See my article What It Means to Be an Anarcho-Capitalist http://www.lewrockwell.com/kin.... The only way to "oppose anarchy" is to either (a) be in favor of agression, or (b) to deny that states necessarily employ institutionalized aggression. So let me ask you: which is your reason for opposing anarchy? that is, for favoring the state? Do you think the state does employ aggression, but that's okay? Or do you think aggression is unjustifiable BUT it is possible to have a state that does not commit aggression?”

If I “oppose” anarchism (or am sceptical about the workability of a stateless society if you want to use that term instead), it is because I don’t see how a society composed of different protection agencies, etc, can long endure without, eventually, conflicts emerging between them that when they get resolved means a transfer back towards a “state”, or “minarchy”, and common set of laws universally acknowledged. I am aware of the literature in defence of anarchism, Stephan. I don’t agree with all of it, or think that it leaves significant questions unanswered, such as how different protection agencies can resolve disputes between clients, deal with non-consenting third parties, and so on. I don’t favour a state as such; rather, I don’t see anarcho-capitalism as being something that can be stable through time without eventually becoming a state with monopoly force, either de facto, or de jure, in a given territory. So my support for minarchy is a sort of default position, an acceptance of this as the “least worst” outcome. Convince me that anarcho-capitalism could work, and I would change my mind. (I have flirted with the idea but always felt there were problems with it).

“Re anarchy, she portrayed an anarchist state in Galt's Gulch; yet elsewhere she rails against it. I guess she hates Galt!”

Oh come on. If people emigrate to a new land to flee a tyranny, or choose to withdraw from mainstream society (which is the example of Galt’s Gulch), that is very different from denying the need for a state to enforce certain rights at all.

I don’t understand your point about Paul Birch. As for his critique of HHHoppe’s argumentation approach for rights, Hoppe claims that if you criticise natural rights, you are implicitly accepting them because you accept that the person you are speaking to has the right to think (a bit like Rand’s “stolen concept” approach, maybe). But, is HHH right? Arguing with someone might be a less onerous way of trying to impose your will on them. There is nothing contradictory about this. I remember reading this point by a blogger, Charles Steele (who, I should state, is not exactly a great fan of HHH).

Other issues:

IP is now the cause for an expanding “police state”? It might be used by slimeball politicians as an excuse, but the crappy SOPA Act is disliked even by defenders of IP as intrusive, damaging legislation. Just because politicians invoke copyright or whatever as they push for bad legislation does not necessarily invalidate IP as such.

A good point about creation as a possible source of property rights comes from the great Lysander Spooner, who was an anarchist, as you no doubt know (and a fierce opponent of slavery):

“In truth, the objection plainly denies that any exclusive rights of property whatsoever, can be acquired by labor or production; because it says that a man, who produces an idea ~ (and the same principle would apply equally well to any other commodity) - has no better right of property in it, or of dominion over it, than any and all the rest of mankind. That is, that he has no rights in it at all, by virtue of having produced it; but has only equal rights in it with men who did not produce it, This certainly is equivalent to denying, that any exclusive right of property, can be acquired 'by labor or production. It is equivalent•to asserting, that all our rights, to the use of commodities, depend simply upon the fact-that we are men; because it asserts that all men have equal rights to use a particular commodity…..”

You wrote:

“I fail to see the relevance of how people might homestead scarce things, to whether non-scarce things may be homesteaded or owned.”

The relevance is that IP opponents want to stress the “naturalness” of owning physical property against the “artificiality” of owning intangibles. I want to argue that the boundaries are not so clear cut. My language might have been clumsy.

“It is just some kind of statement "well real property rights are screwed up, so how can you complain about IP?" It resembles a dishonest line theists often hurl: they will get fed up with criticisms of their "faith" and irrationality and religion, and they'll finally say, "well who are YOU to talk? YOU have your religion too! Your obsession with liberty and reason is YOUR faith!!"

No. What I am saying is that just as we accept that there are issues with “real” property as you call it, that your objections to IP seem, well, overwrought, particularly if IP enables people to create new values out of nothing, in the example I gave that compares the owners of a water well in the desert with a person who creates an invention with a short-duration patent.

On my point about slavery, you write:

“I am against both. how does my relative preference for evil system A over evil system B show that evil system B is valid?”

Well I don’t accept IP is, in general, “evil” or akin to slavery, so supporting tax-financed support for inventions/creations even if I don’t even want to use such things is, in my view, worse, even if I had reservations about IP.

"as I can tell you guys lean to IP b/c of some confused things Rand said about the "need" for man "qua" man as a "producer" to have ownership of the products of his creative mind.... yet you recognize she didn't have it all right on this and that the current patent system is unjust, and you don't konw what kind of system should replace it. So.... what exactly is it that you favor, other than some kind of inertial conservative desire to "not change anything yet". Why not abolish IP if it is unjust and if you are not sure waht to replace it with? Are you guys so sure the current admittedly flawed system is better than nothing? Why?"

I can happily concede that the case for IP has holes in it, and that Rand might have been wrong in some respects, without adopting your blanket opposition to IP (since we haven't even discussed trademarks here yet). No, it is not conservatism, either, really. I have stated before that there ought, for example, be a way of tackling the independent inventor issue, of preventing any extensions of copyright and even shortening the durations of said, etc, etc. None of what I have said should be taken to imply a craven defence of the whole, current edifice of IP as it exists. And one of the reasons, as I said, why I am concerned about what would happen without IP is that this would put more pressure on firms to keep things secret and that this would have negative consequences for some people.

Finally, I am convinced that Goode is mad, but quite amusing.

relative cost

kinsella's picture

Tom:

On smartphones, Shayne, the real price of them has surely gotten cheaper over the past 10 years? Take mobile phones. In the 1980s, only the rich could afford them and they were the size of bricks. Now, you can get a mobile phone for a small amount of money and they have more computational power than a Moon rocket. I'd say that competition is working.

...... And on a practical level, given the vast amount of creative works and inventions that are a feature of Western, technological society, there is very little sign, in my view, of any of this being some sort of crushing "monopoly". When I go into a bookshop, for example, the variety of authors on sale is simply mind-blowing. Some "monopoly!".

It is true that we have a lot of wealth. But this does not mean that our well being is not diminished by state interventions. there is every reason to believe that absent the state laws we object to we would have more innovation and wealth than we do now.

On smartphones, Shayne, the

Tom Burroughes's picture

On smartphones, Shayne, the real price of them has surely gotten cheaper over the past 10 years? Take mobile phones. In the 1980s, only the rich could afford them and they were the size of bricks. Now, you can get a mobile phone for a small amount of money and they have more computational power than a Moon rocket. I'd say that competition is working.

Shayne

Richard Goode's picture

Objectivism has enough truth in it that trying to adhere to it is a recipe for not being an Objectivist.

I'm inclined to doubt this. Are you sure you're not generalising from too small a sample? As an ex-Objectivist, you should ask yourself the question. I've been on SOLO for four and a half years. During that time I can't say I've noticed any Objectivist "backsliders". Perhaps they just slip quietly away. Selection bias is a bitch. You have, at least, made an empirical, testable claim. Do we have the data?

I'm going to go out on a limb here ... I think Objectivism is a form of demonic possession.

Satan's greatest trick was convincing the world that he doesn't exist.

Rand's greatest trick was convincing mental cripples that they are the epitome of rationality.

There's a connection.

Consider what Jesus says about the devil: "Why is my language not clear to you? Because you are unable to hear what I say. You belong to your father, the devil, and you want to carry out your father’s desires. He was a murderer from the beginning, not holding to the truth, for there is no truth in him. When he lies, he speaks his native language, for he is a liar and the father of lies. Yet because I tell the truth, you do not believe me!"

Do you ever get the impression, talking to Objectivists, that they simply don't hear what you say? I certainly do. A lot of it comes down to Rand's penchant for pernicious redefinition. Rand twisted words like 'altruism', 'sacrifice', 'selfishness', 'concept', 'good', 'right', 'reason' and 'existence' and so on, beyond recognition in some cases. Pernicious redefinition is tantamount to lying.

Again, there's a connection.

Satan loves cults. It is of the nature of cults to put in place mechanisms that make it easy to join and difficult to leave. Cults almost invariably have strong contempt for the intellect, human intelligence, and any attempt to think independently.

Do you ever wonder why so much scorn is heaped on "philosophers," "academics," and "intellectuals" around here? I argue that Objectivism is a cult here and in several places here.

Satan loves Objectivism. As a matter of fact, my first exposure to Objectivism was the potted, plagiarised version that Anton LaVey tried to rebrand as Satanism.

If you think you might be insane, you're probably not. Denial is a hallmark of true madness. It's also Satan's calling card. Reason is an Objectivist's only absolute. But how many Objectivists are up-to-speed with even the basic elements of critical thinking? Not many, if any. Check out the total lack of interest in the virtues of rationality on display here. "Check your premises," said Rand. But most Objectivists don't know what a premise is. They don't know that 'valid' is a technical term in logic. They don't want to know about reason, and they particularly don't want to know what Hume said about the limits of reason.

Denial, delusion, dishonesty ... all the tell-tale signs of demonic possession, and all on flagrant display here on this thread. Like a skilfully coded Trojan, Objectivism's first target is its host's defences against infection. Objectivism quickly disables the mind's rational faculty, often to such an extent that an Objectivist will mistake a mantra for an argument.

Hatred, vilification and scapegoating of Christianity are further conspicuous Objectivist traits ... Satan's near. If you don't believe in demonic possession ... think of Objectivism as an insidious mind virus.

burthen

kinsella's picture

tom:

Oh, that old burden of proof line again.

WEll ... as far as I can tell you guys lean to IP b/c of some confused things Rand said about the "need" for man "qua" man as a "producer" to have ownership of the products of his creative mind.... yet you recognize she didn't have it all right on this and that the current patent system is unjust, and you don't konw what kind of system should replace it. So.... what exactly is it that you favor, other than some kind of inertial conservative desire to "not change anything yet". Why not abolish IP if it is unjust and if you are not sure waht to replace it with? Are you guys so sure the current admittedly flawed system is better than nothing? Why?

As economist Fritz Machlup wrote in his 1958 study of the patent system
http://blog.mises.org/6930/rev...

“No economist, on the basis of present knowledge, could possibly state with certainty that the patent system, as it now operates, confers a net benefit or a net loss upon society. The best he can do is to state assumptions and make guesses about the extent to which reality corresponds to these assumptions. … If one does not know whether a system “as a whole” (in contrast to certain features of it) is good or bad, the safest “policy conclusion” is to “muddle through”–either with it, if one has long lived with it, or without it, if one has lived without it. If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it.” (see pp. 79-80)

Now he is right except for the latter comment. why keep a system that you know is unjust and that you cannot prove is socially beneficial?

First, because even if the evidence is not emphatically showing that property rights in inventions/ideas tends to encourage the creation of said, that if we can show that property rights in inventions and creations is just (because of the effort and skill of those who created these things deserves to be protected

But how do you show that it "deserves to be protected"? This is the qustion. This is the thing your side must justify. "If" won't do it. If you don't show it, then it's not shown. It's not justified if you don't justify it. We should abolish it in the meantime.

Real data

Shayne Wissler's picture

And on a practical level, given the vast amount of creative works and inventions that are a feature of Western, technological society, there is very little sign, in my view, of any of this being some sort of crushing "monopoly". When I go into a bookshop, for example, the variety of authors on sale is simply mind-blowing. Some "monopoly!".

Do you know how much the IP cost of entry is into the smartphone market? Evidently it's $5B because that's what Google thought they had to pay for enough patents to make it plausible for them to defend Android. Oh wait, that's not even for defending the phone, just the OS.

The fact is that it is technologically feasible to have a rich variety of smartphone alternatives, not just ~5. I'd venture to guess that for a mere $10K, someone could technically build the hardware. With Linux, one has the basic software. But we don't see these alternatives because only about 5 people in the world are, practically speaking, legally entitled to build smartphones (namely, the CEO's of these companies). (And this isn't even mentioning the telco monopolies that exist because of government favors).

My point about the data

Tom Burroughes's picture

Even if it's inconclusive, that means the burden that is on IP advocates to justify their statist intrustions into the market is simply not met. And you talk about whether you find the evidence 'conclusive" or not--so are you saying this is your standard of libertarian political norms? that we use "evidence" to judge whether to support a given law or not? That someone comes along in a free market and says "Hey I think if we assemble a monopolistic provider of law and order and give it the power to decree positive law and somehow manage to keep it from metastasizing into a non-minimal criminal gang, then that state should start granting monopoly priviileges that permit companies to shut down their competition because I think this will incentivize a lot more innovation and we'll all be better off even though some people are squashed in the process--after all can't make an omelet without breaking some eggs."Is this really your approach to individual rights?

Oh, that old burden of proof line again. First, because even if the evidence is not emphatically showing that property rights in inventions/ideas tends to encourage the creation of said, that if we can show that property rights in inventions and creations is just (because of the effort and skill of those who created these things deserves to be protected and potentially commercially exploited in a market for a period of time), then that is an argument which, in my view, is entirely consistent with a free society, as I understand it. As a result, laws to protect such creations are not necessarily "positive law" in the derogatory sense you state.

And on a practical level, given the vast amount of creative works and inventions that are a feature of Western, technological society, there is very little sign, in my view, of any of this being some sort of crushing "monopoly". When I go into a bookshop, for example, the variety of authors on sale is simply mind-blowing. Some "monopoly!".

Richard

Shayne Wissler's picture

Richard, I don't know that Objectivism should be blamed for everything here. Objectivism encouraged studying Aristotle. They fail at logic. Objectivism encouraged the virtue of independence. They ape Ayn Rand's moral posture without knowing where it came from.

When I was younger I considered myself "Objectivist", but I knew her essay on patents was wrong the first time I read it and continued to think so throughout my time as an Objectivist.

The fact is that any movement must gather people from the culture. Most people are educated in mass education systems where there is no expectation put on them to be able to actually think or to even be rational, so if anyone can think or be rational after having gone through that, it's a rare thing. Objectivism has enough truth in it that trying to adhere to it is a recipe for not being an Objectivist. There is no way Howard Roark would be an Objectivist.

Tom

Shayne Wissler's picture

I find it conclusive, but I think that people should be straight about the evidence. It is inconclusive.

But you'll attack the second inventor with deadly force anyway.

What you really need to be thinking about here is proper principles of justice, not IP.

Objectivism

Richard Goode's picture

What is wrong with you people.

Objectivism.

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