The Last Gasp of Copyright Dies Within Me

March 20th, 2013   Submitted by Wendy McElroy

grim2A few weeks ago, my position on intellectual property (IP) shifted. I abandoned the possibility that copyright by contract could function within a libertarian framework.

I have argued for decades that IP cannot be derived from natural rights. Most IP advocates claim IP is a product of your labor in the same sense as a chair you build; if you do not need a contract to claim the chair as property, then neither do you need one to own an idea. (See the Daily Anarchist article “The Basics of Copyright” for arguments against IP as a natural right.)

But I hoped the free market could provide the protection of contract for some forms of IP. Albeit, this protection would almost certainly erode over time as the idea spread. I have now concluded that such a contractual arrangement would be contradictory, politically disastrous and incompatible with a libertarian legal system. Giving an example of each belief provides a sense of where my thoughts on IP are driving.

Contradictory

Chapter 10 of Murray Rothbard’s Man, Economy, & State makes a concerted libertarian defense of copyright by contract. Rothbard argues that a book with the word “copyright” imprinted on its first page constitutes a contract with which a buyer agrees to abide at the point of purchase. He concludes, “any infringement of the contract by him or a subsequent buyer is implicit theft and would be treated accordingly on the free market.” Elsewhere, Rothbard defines “implicit theft” as fraud.

It is a odd argument. If ideas are natural property protected by law, then taking them without consent is explicit theft. If they are property protected only by agreement, then misusing them is a breach of contract for which restitution and damages may be due. But a single word that the buyer may not have seen is far from an enforceable contract. A contract should have written or oral agreement by both parties, and agreement requires a knowledge of the terms which vary from one form of copyright to another. Equally odd is enforcing the ‘contract’ upon a third party who was not involved in the original agreement. What if that person found it abandoned on the ground? To what has he consented?

Perhaps Rothbard assumes that the original buyer has also agreed to terms of sale through which he can transfer ownership of his physical copy. If so, then he is extending copyright protection far beyond that championed by even diehard natural-right advocates of IP who argue that a buyer owns the physical copy of his book but not its content; that is, he can resell the book but not reproduce it. Rothbard seems to be saying that the word “copyright” means that the physical book itself is only conditionally owned with the author or publisher retaining control over the terms of its sale or gifting.

Of course, the same situation could occur with music, patented goods, movies, art… Indeed, why not stamp the bottom of every good produced with the equivalent of the word “copyright” and then assume a legally enforceable contract exists against the chair being replicated or sold on the ‘wrong’ terms?

Rothbard is stretching the concept of copyright and contract beyond recognition. But he does so because it is the only way to preserve a theory copyright by contract.

Politically disastrous

IP and libertarianism are politically incompatible because of the incredible policing of individuals that is necessary to monitor the ‘crime’ of sharing ideas and expression. The policing would be necessary whether or not the copyright was contractual or state-enforced. If nothing else, the immense flow of information over the Internet means that more invasive methods are being and will be used in the name of IP protection.

And, now, 3D printers have the potential for transforming the flow of goods in much the same way as the Internet did for information. The downloading and creation of duplicate goods may become as convenient as the downloading of music is currently. This potential would devastate patents, of course. Again, the only way to protect patents would be to monitor, restrict or outright criminalize an individual’s use of 3D printers.

At every turn, as technology offers greater freedom and prosperity, IP reaches out to snatch it away…if not through controlling the technology, then by controlling individuals.

Incompatible with a libertarian legal system.

Incompatibility between copyright and restitution means that enforcement of IP would lead to an unjust and unlibertarian system of law. The purpose of libertarian courts is to provide reasonable restitution to victims.

Consider the case of a person who ‘improperly’ downloads a song. Libertarian courts would aim at making the ‘victim’ whole, perhaps with some damages included. Disagreement exists on whether additional damages should be due but not on whether the overall compensation should be reasonable; otherwise, the penalty is not just. Yet the music industry and the courts have penalized people hundreds of thousands of dollars for a handful of downloads. On March 18, 2013, the news site NJ.com reported on a woman who has been ordered to pay $222,000 for downloading 24 songs. The overkill is necessary to maintain IP. The overkill is very likely to continue in a court aimed at restitution.

The continuation would occur for at least two reasons. Restitution is not a term spelled out by the alleged contract created by buying a book or downloading a song. If it were, if a music company specified a $30,000 penalty for downloading a song that may be misused by someone else – perhaps a family member – then no one would risk buying their product.

Instead the courts retroactively define the terms of the contract that cover a breach. But what is the lost profit and damages from one song being downloaded? Even if that cost could be realistically assessed, the entire compensation has to be reasonable to be just. If the court found that the company lost $10 and assessed quadruple the sum in restitution and damages, then there would be no incentive for people to eschew downloads. The chances of being caught are negligible, and the cost of being caught would be as well.

To minimize downloads, it is necessary to make the law draconian and to punish severely a selection of offenders who serve as a cautionary tale to other scofflaws. Thus, federal law allows a recording company to claim between $750 and $30,000 per illegal download. This quickly moves any legal system away from restitution and justice.

CONCLUSION

For an action to be politically and legally permissible in a libertarian framework, it must include what the philosopher Robert Nozick called “no morally impermissible” steps. With regard to IP, the protection of one person’s rights cannot involve the violation of another’s. This principle applies whether natural-rights or contractual IP is being argued. I now believe that any form of IP would inherently contain morally impermissible steps.

211 Responses to “The Last Gasp of Copyright Dies Within Me”

  1. MAMNo Gravatar says:

    IP fails on so many levels, I’m amazed that there are anarchists that actually support it.

    Good article Wendy!

    I have a non related question for you. Are you a professional writer, meaning that you support yourself solely through your writing?

    How did you get started? I’m interested in being a writer myself any advice?

    Anyway thanks, peace be with you.

    • Bob RobertsonNo Gravatar says:

      The only thing even close to I.P. that I can see existing in a free society is attribution.

      That is, claiming to have created something, and not having actually done so, would be a form of fraud.

      So I can see registrars existing which will certify manuscripts, for example, as having been filed by such and such a person on this date. Then a claim to have written a book or story could be reinforced with evidence.

      • Robert…that is a terrific idea. In talking to people who support copyright, I am often accused of advocating plagiarism by which Joe Blow can put his own name on Atlas Shrugged and do so with a clear conscience. I do not and would not advocate that position…for one thing, Joe Blow would be committing fraud. An attribution service never occurred to me, however, and I think one would be necessary in a free market precisely in order to prevent such fraud from occurring. I am certain attribution services would crop up naturally.

      • Brian DrakeNo Gravatar says:

        Bob,

        As I see it, attribution is a courtesy, not a legal issue. If I quote you without attribution, I’m just being a jerk, I haven’t violated any property (i.e., committed aggression, i.e., committed a crime).

        Fraud is theft through deception, not just lying. If I tell a girl that I wrote “War and Peace” to impress her, that’s not fraud. That’s just lying. Morally wrong (IMO), but not legally wrong.

        If I contact a book reseller and tell them I’m (the) Stephen King, and they (foolishly) pay me based on this false information, then that could be fraud.

        All fraud involves lying, but not all lying is fraud.

        Fraud is an act of theft, thus a “legal” issue (legal meaning it may involve the just use of force). Lying is moral issue, one that can be “penalized” outside legal sanction. Look at the way universities handle plagiarism. Usually it means expulsion and a severe blow to reputation. A lot of people (myself included) would like to live in a society that discourages plagiarism. So those of us with that preference will boycott authors who have been proven to be plagiarists (easy to imagine an app/website listing proven plagiarists, with all evidence provided so you can evaluate for yourself). Universities would continue to expel/de-tenure. Maybe enough public pressure would cause “publishers” like Amazon to ban such authors from publishing through them. There are lots of voluntary ways to discourage plagiarism.

        The efforts to “penalize” plagiarism in a free society don’t need the concept of intellectual property as a foundation. Rather, it’s just a offshoot of the desire to minimize lying. Perhaps out of a sense of desiring a “moral society” (yet not through the use of violence), or simply from self-serving interest (few people enjoy being lied to, with noted exceptions – does this outfit make me look fat? – of course).

  2. Glad you liked the piece MAM.

    And, yes, I have been a professional writer for quite some while; I even sent my husband through grad school with my writing. I started writing for small periodicals and an institute back in the 1980s, which was an entirely different world. If I were starting out today, then I would forget most print periodicals and focus on the internet, especially sites that pay “anything”…anything at all, even if it is based on adv. click throughs. You need to get experience and to build up name recognition. What sites do you enjoy and visit often? Contact the editors or managers.

    You should also figure out a niche that you address better than everyone else out there….because there are heck of a lot of writers out there looking for work right now.

    • MAMNo Gravatar says:

      Well the sites that I visit most often are here, youtube, and a site called conquerclub which is online Risk.

      I like to think about philosophy, namely ethics and economics. I’m not sure what niche I can address better than other people I guess I just need to gain experience.

      I suspect that there is a lot of competition everywhere right now, I know on the menial job market I’m having huge issues trying to find a job. I can’t even get a job flipping burgers.

      Is there a lot of competition in the libertarian writing market?

      Thanks for the help!

      • Wendy McElroyNo Gravatar says:

        Yes, there is a great deal of competition right now and I expect it will increase as more people seek addtional sources of income on the side. You indicate visiting a limited number of sites on a regular basis. I’d suggest starting out by skimming a large number that are vaguely in your areas of interests in order to find out which ones seem like a good fit. Then study the style, length, etc. of the material the site runs before approaching it. Good luck!

        • MAMNo Gravatar says:

          Okay thanks for the advice and help Wendy! I appreciate it.

          • Wendy McElroyNo Gravatar says:

            MAM, let me know how it goes. I hang out at the Daily Anarchist and I am always interested in helping aspiring anarchist writers of the voluntaryist persuasion. If we don’t hang together, we will surely hang alone. And I intend to die in a tragic waterskiing accident as 120 years old.

  3. Seth KingNo Gravatar says:

    An unenforceable law is evidence that the law is unjust. In the case of IP, it would be completely unenforceable even to an efficient libertarian society or defense agency.

    Often times when I am presented with a difficult situation about right and wrong, in the libertarian legal sense, I ask myself “would I feel comfortable getting violent against a person for such and such?” or “would I condone someone else getting violent against a person for doing such and such?”

    For example, people ask “should women be allowed to have abortions?”

    And then I think to myself “would I feel comfortable getting violent against a woman for having an abortion? Or, would I condone somebody else getting violent against a woman for having an abortion?” The answer is no.

    I use that same line of thinking for everything. We’ve really got to retrain ourselves in the way we approach problems.

    So, in the case of IP, “if somebody republishes my work or ideas, would I feel comfortable getting violent against that person?” The answer is a resounding ‘no.’

    • Wendy McElroyNo Gravatar says:

      Good comments. I don’t like to go on “my gut” — perhaps because of my Randian background in which rationality was everything, instinct was nothing. But I have also come to trust my gut reaction on people and of whether something feels right or not. I have a terrible feeling about preventing others from communicating ideas or the expression of ideas. The fact that such preventation is utterly impossible without having Big Brother type monitors in every home does nothing but add to that feeling. I underrate emotional reactions, I think. A saying caught my fancy recently: “music is what feelings sound like.” I think gut reactions are what principles feel like.

  4. A libertarian that accepts liberty as alienable is a contradiction in terms.

    Property is alienable, yes, but by its physically independent nature, not by decree.

    Intellectual work can be protected against copying by putting it in a physical box, but not by declaring an imaginary box that magically constrains the liberty of all recipients.

    A contract cannot constrain either party’s liberty, whether they would agree to it or not. It is liberty’s inalienability that prevents this. Contracts concern the exchange of property – that which is alienable – not that which is not, i.e. natural rights.

    The non-exercise of liberties can be made conditions of a contract, e.g. “We both put $100 into a pot and the first person to blink, pick their nose, or make a copy of Macbeth loses the entire pot to the other”. This is not a surrender of liberty, but agreeing conditions upon which alienable property is exchanged. NB That either party would like to police the other in case the conditions are met, is not an entitlement to invade the other’s privacy (privacy is also inalienable).

    • Wendy McElroyNo Gravatar says:

      Hey Crosbie: I hope you don’t mind but I used a quote from your comment on my FB page in discussing this Daily Anarchist thread. Specifically, I used…”Intellectual work can be protected against copying by putting it in a physical box, but not by declaring an imaginary box that magically constrains the liberty of all recipients.”

      I agree…you cannot contract away your self-ownership or liberty. Even if you are contracting out your labor, which involves your body, you can always breach the contract and provide reimbursement because it is not the body itself being pledged but your willingness to use it in a certain manner. Nice. I had not quite thought of IP in that manner before. BTW, if you have not read Benjamin Tucker on IP, then you should. Even your style of writing about it is similar..

      • Hey Wendy,

        Shouldn’t we start getting used to saying “You’ll be glad to hear that I quoted you on my FB page…”? :)

        While it may be a 21st century escalation of copyright that has even quotation requiring permission (whenever copyright laws are suitably reformed to eliminate all vestiges of ‘fair use/dealing’), it should also be the 21st century that sees its abolition.

        No, employment does not alienate liberty. One cannot ethically promise one’s body, nor its liberty (much as employers might prefer otherwise). One simply agrees the sum to be exchanged on condition a certain amount of labour of a certain quality is performed. The sum is alienable. The labour is not.

        If I accept $5 from you to wash your car, I remain at liberty not to wash it – reimbursing, as you say, your $5. The acceptance of $5 is not a partial sale of oneself into ‘car wash slavery’. ;-)

        A contract constitutes an agreement of an equitable exchange, how to get from property arrangement A&B to A’&B’. As long as agreement and equity is maintained, it doesn’t matter if it goes from A’&B’ to A&B, or A&B to A”&B”. A need for arbitration only arises if agreement/equity cannot be maintained, which may be through natural irreversibility (I drank the beer, but realise I have no money), or dishonesty/fraud (What beer?).

        I come across Benjamin Tucker’s writing now and then, but thanks for the tip. I hadn’t noticed any similarity in style, but I’ll look out for it next time.

        Anyway, welcome to the league of copyright abolitionists. ;-)

    • MAMNo Gravatar says:

      “A libertarian that accepts liberty as alienable is a contradiction in terms.”

      The concept of liberty/rights is inalienable, because it’s a concept not a physical thing. But the actual physical manifestation of your rights is far from inalienable, and I would argue that the conceptual presence of your rights is far less important than their presence in the real world.

  5. Rick DiMareNo Gravatar says:

    I’ve been wrestling with the reconciliation of IP rights and libertarianism, too.

    I’ve come to the conclusion that some degree of IP rights should exist, but that they’re currently abused and over-extended (by greedy lawyers) because: (1) IP rights are able to be held in corporate “artificial person” form, and (2) there’s no relationship between the amount of unpaid labor the author/inventor expended in developing the work vs. the length of time to which s/he is granted legal protection.

    Article 1, Section 8, Clause 8 states: “Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

    There’s nothing here to suggest that “authors and inventors” could be corporations with eternal legal life and limited liability, or that IP rights should be transferrable to publishers and other parties. Lawyers dreamed that stuff up so they could profit from the IP Clause. Limiting IP rights to the actual “natural person” author/inventor would go a long way to stopping the abuse because IP rights/monopolies would normally die when the author/inventor died (though there might be some exceptions, such as if the author/inventor died with minor children, etc.)

    Also, the “limited times” of the IP Clause is very important, and started out modestly. But today someone can spend a few days or weeks making minimal adjustments to some pre-existing software, product, song, etc. and be granted the same legal protection as that of an inventor/author who spent several years developing something completely new.

    • Rights are either powers we are all born with in equal measure (natural rights), or they are powers granted to us by others more powerful (such as Queen Anne or US Congress).

      NB The US Constitution only empowers Congress to secure an author’s natural exclusive right to their writings. It didn’t give Congress power to re-enact Queen Anne’s statute of 1709, that annulled the people’s right to copy, in order to leave it, by exclusion, in the hands of a few, i.e. a privilege.

      Natural rights aren’t just mere political philosophy. Not only are they an easy way of recognising the difference between laws in the interests of the masses (conducive to social harmony), and those in the interests of the state (conducive to social unrest), but they’re also a way of recognising the difference between laws that can work and those that cannot work. A law that prohibits individuals from copying each other cannot work because it has no natural basis. A law can prohibit burglary because that secures the right to exclude others that individuals already have by nature. A law cannot prohibit people from copying each other, just as it cannot prohibit the wearing of the colour purple, because no person is born with such power over their fellows. Kings Canute can decree such sumptuary laws, but then that’s because there’s no limit to the unnatural power they’d aspire to.

      The church and/or state proscribed all printing for centuries – because it was dangerous (had the potential to undermine authority – sedition, etc). Because, consequently, the right or license to make/print copies (annulled in the majority) could only be obtained from the state, this is where the term copyright comes from – specifically the licensing of the press act (see http://en.wikipedia.org/wiki/Licensing_of_the_Press_Act_1662). The licensing of the press act came to an end around 1695, and for a few years people enjoyed their natural liberty to copy each other. Then, the state press (grown wealthy & powerful on monopoly control) cunningly reframed this state prohibition as the proper power of an author (King Author), knowing that authors (being impotent peasants in practice) would still need the services of the press and would have to assign/transfer this power to the press anyway.

      It doesn’t matter whether the power to prohibit copies comes from the state or is delegated by the state to the author, it remains an unnatural power – a power that only exists because the state decrees it (annuls it from the majority, in order to leave it, by exclusion, in the hands of a few).

      If you support copyright you are a utilitarian (believing rights can be annulled or abridged if there’s even the flakiest argument it might be useful to society, your employer, or you to do so). If you are a libertarian you do not support the annulling or abridgement of any natural rights (unless you have corrupted the meaning of the term libertarian in order to introduce a bit of ‘essential’ utilitarianism).

      Remember, we are born with the right to copy. Your decision is whether you think this should be left with the individual born with it, or whether it would be more ‘usefully’ annulled and dished out by the state to others.

      • Rick DiMareNo Gravatar says:

        “Remember, we are born with the right to copy. Your decision is whether you think this should be left with the individual born with it, or whether it would be more ‘usefully’ annulled and dished out by the state to others.”

        Crosbie, we are not born with rights, and rights are not positive things, nor does the state have power to annul or dish out rights. All the state has power to do is to punish and discourage trespassing.

        • Rick DiMareNo Gravatar says:

          I should clarify, we’re not born with rights in the positive sense of owning or possessing a right, but in the sense that we have a right to expect that the state will punish those who would trespass on our rights. If the state fails in its duty of protecting property (really, punishing or discouraging trespassing), it is not a legitimate state, or at least a state that needs correcting.

          What the heck am I doing saying this stuff to anarchists?

          • MAMNo Gravatar says:

            The State doesn’t protect your rights at all. It only destroys them. Expecting the State to protect your rights is expecting it to go against its nature. It’s silly.

            • Rick DiMareNo Gravatar says:

              The state is admittedly hard to justify right now because what used to be individual rights have become collective rights, but if U.S. lawyers wake up, it should be possible to put a collar back on the state’s neck. In any case, the contractual system established by the U.S. Constitution between the government and the governed is the best thing ever invented, and remains our best hope. Private enforcement agencies always end up competing against each other like mafia systems, and simply don’t work.

              • Brian DrakeNo Gravatar says:

                Rick,

                Your statement is riddled with falsehoods. Are you ignorant of these, or are they intentional lies?

                “The state is admittedly hard to justify right now”. Please point to a time when it was actually possible to justify the state. You can’t, because the concept is inherently unjust. You can never justify the rule of some men over others.

                “what used to be individual rights have become collective rights” When was that (what used to be)? You speak of a time that never existed. “We the people”? Sounds pretty collective to me. Individual rights means individual consent. No time in human history has a state existed with unanimous individual consent. Thus all states are the claim that the “collective good” is more important than individual consent.

                “the contractual system established by the U.S. Constitution between the government and the governed is the best thing ever invented” The US Constitution is not a contract. Read Lysander Spooner’s “No Treason: The Constitution of No Authority”. If you cannot refute his arguments, and can’t prove that a document that no one ever signed or provided any other form of explicit consent to is actually a contract, you have to withdraw this flimsy falsehood, with apology for insulting our intelligence.

                “[US Constitution] is the best thing ever invented, and remains our best hope” – Utter idolatrous nonsense. To quote Spooner: “[W]hether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.” George Washington was expanding the power of the Fed gov from term 1 and all presidents have done so since. When exactly has the Constitution “worked” to restrain power?

                “Private enforcement agencies always end up competing against each other like mafia systems, and simply don’t work.” You simply state this without any proof or reasoning. How do you know? Because your prediction is in direct opposition to solid economic theory, and observed history. The concentration of power is NOT a market phenomenon. I’m just now reading “The Triumph of Conservatism” by Gabriel Kolko, providing even more historical evidence that the concentration of economic power was only due to government action, since market activity prevented monopoly and cartels from forming/sustaining. People desire peaceful conflict resolution, because when they bear the costs themselves, this is the most economically advantageous process (violent conflict is expensive). Are you really stating with any sense of honesty that even though market demand will be for peaceful conflict resolution, the only providers that arise and prosper will be those that directly contradict the desires of the consumer?

                “Oh those obstinant anarchists, so unwilling to listen to others” I can anticipate you thinking. But before you write us off, consider that you are unable to provide coherent arguments justifying the state, and you are unable to logically refute the arguments against the state. Who is being obstinant?

              • gdpNo Gravatar says:

                if U.S. lawyers wake up, it should be possible to put a collar back on the state’s neck.

                Um, perhaps you have not been paying attention, but roughly 99% of the members of Congress, the Judicial Branch and the upper echelons of the Executive Branch ARE lawyers. The lawyers are not only “awake” — they are already on the front lines leading the “Charge of the Law Brigade” toward a Totalitarian State.

                The lawyers clearly LIKE the current unbounded proliferation of Laws and Regulations. After all, the more Laws there are, the more Billable Hours they can charge, and the more highly lucrative Court Time they can get…

          • Brian DrakeNo Gravatar says:

            Rick,

            “If the state fails in its duty of protecting property (really, punishing or discouraging trespassing), it is not a legitimate state”

            By your own definition, there is no such thing as a legitimate state (and indeed there is not). Because to even exist as a state, the state must trespass on the property of all it declares within its jurisdiction, by declaring itself to be the final authority (owner) over that same property. It’s a massive act of theft. You either rightly see this as a criminal land grab, and oppose it (which means being an anarchist), or you employ sophistry to deny this fact, and thus become complicit.

            Brian

            • Rick DiMareNo Gravatar says:

              I should say the state is “presently acting illegitimately,” but I don’t mean “illegitimate” in the sense that the whole Constitutional system should be abolished. I place a lot of blame right now on U.S. lawyers and the American Bar Association having their heads buried in the sand and selectively enforcing only rights that line their pockets.

              • Brian DrakeNo Gravatar says:

                No. You said that if a state fails to protect property, it is illegitimate. All states violate property by their very existence. Thus they “fail” to protect it and by your own standard, are illegitimate. This isn’t a historical thing, this is a fundamental concept thing. The moment a state is formed, it has violated the property of all within its jurisdiction who have not consented to transfer their ownership (final authority) of their property to the state. No state has ever been formed with 100% consent. Thus all states violate property.

                • Rick DiMareNo Gravatar says:

                  I don’t see our Constitutional system as mainly governed by consent, but by contract under Article 6, which binds all U.S. lawyers by oath or affirmation to support and defend the Constitution, but you’ll be hard-pressed to find lawyers that support (or even understand) meaningful property rights in our minds, bodies and labor. So, again, a failure of the legal system doesn’t necessarily mean the whole system should be abolished, but only that we need to raise awareness about lawyer neglect and bias, and to better discipline them.

                  • Brian DrakeNo Gravatar says:

                    Rick,

                    “I don’t see our Constitutional system as mainly governed by consent, but by contract under Article 6, which binds all U.S. lawyers by oath or affirmation to support and defend the Constitution”

                    “In any case, the contractual system established by the U.S. Constitution between the government and the governed”

                    So which is it, a contract between the government and the governed, or the Constitution itself and “U.S. lawyers”?

                    Refute Spooner, or admit, it’s neither.

                    “So, again, a failure of the legal system doesn’t necessarily mean the whole system should be abolished, but only that we need to raise awareness about lawyer neglect and bias, and to better discipline them.

                    The only person pointing to present failures is you. As I’ve argued, and you’ve not addressed, the entire concept of a state is unjustified. Not states that are “misbehaving”. Not states where the “lawyers” aren’t doing their job. ALL states. Because ALL states violate the property and liberty of those declared to be under its jurisdiction. You’ve not addressed this point at all. Even after several times I pointed out that by your own definition that “states that fail to protect property” are illegitimate, means that ALL states are illegitimate.

                    • Rick DiMareNo Gravatar says:

                      The notion that “all states are illegitimate” is not worth responding to, in my opinion. The whole idea behind our Lockean-based government was to make the protection of property (i.e., the punishment of trespassing) the primary function.

                    • Brian DrakeNo Gravatar says:

                      Rick,

                      So in other words, you won’t respond because you have no argument. I have laid out clear thinking for each of my points. All you have to do is find logical flaws to refute them. I pointed out that by your own definition, there cannot be a legitimate state. You just choose to ignore this. You are not an honest person. Without counter-arguments, the honest reply is “I don’t actually have a moral/logical foundation for my beliefs. I simply choose to believe them because they make me feel good, and things I don’t understand (like how consensual human exchange works) scare me. I really shouldn’t be engaging people in discussion because other than my choice to believe things I can’t substantiate, I have no coherent arguments to offer.”

                  • MAMNo Gravatar says:

                    Here’s a thought expierement for you. For the sake of argument let’s say that you are obsolutely right in all your positions, and that all we need to do is put good people in the positions of power.

                    Why do I need to follow the Constitution? It’s not a system I choose I don’t agree with it. I don’t consent to it. I have no interest in it at all.

                    If your answer is because some dude with a gun says so then you have the answer to your philosophy. That voluntary exchange doesn’t matter to you all you care about is what you want and fuck everyone who disagrees with you.

                    You want totalitarianism. If your answer is “I don’t know” you should spend some time on that.

                    • Rick DiMareNo Gravatar says:

                      MAM, I’m not saying to try to get only good people into power. I’m saying we should start monitoring, disciplining, and even prosecuting, U.S. lawyers who are neglecting/breaching their Article 6 contractual duty to uphold and defend the pro-libertarian aspects of the Constitution, instead of just supporting aspects aspects that are profitable for lawyers (such as creating corporations and treating them like real people, which the Constitution really doesn’t authorize). Right now, each state has board of bar overseer, but these tend to be ineffectual and run by the lawyers themselves.

              • MAMNo Gravatar says:

                The idea that you can have a just system where one man rules another is either a blatant lie on your part or a symptom of rationalization and double think.

                Furthermore I never signed the constitution so why am I held to it? I never agreed to it. It’s not a contract it is an arbitrarily defined document that is the stuffed down my throat. Additionally the Constitution was undermined from the Start, it never provided protection from the State.

                The idea that men are responsible enough to rule others is silly and the idea that these men can be trusted to restrain their use of power is just as silly if it isn’t worse.

  6. Fantastic article, Wendy. I’m glad you mentioned 3D printers. I believe 3D printers are the next quantum leap in technology. I can hear Schumpeter echoing in my head already!
    Like with mp3′s, once the plan for an item is on the web, it’s too late for any patent law to be enforceable. The group of individuals who have made it possible to print off a lower receiver for an AR-15 just nailed the coffin shut on gun bans. Who knows how many of those have already been printed.

    • Wendy McElroyNo Gravatar says:

      Hello Robert: I am very excited about 3D printers as well; it feels like being intellectually young again. For one thing, I cannot forsee the manner in which they will change the world anymore than I could have forseen many of the developments that sprang from the Internet. A door has been thrown wide open onto a better world..

      One change I do forsee, however, is the quick death of patents. Unless they can quash the technology — and I do not believe that is possible at this point — patents will become as absolutely unenforceable as copyright is in the wake of internet. Up technology!.

  7. Oscar MiloNo Gravatar says:

    Loved the article! Thanks Wendy. :)

  8. SleepySalsaNo Gravatar says:

    At the risk of sounding like the devil’s advocate, but I found this article completely pointless and a waste of time, for a number of reasons.

    First, intellectual property, like abortion, is one of those wedge issues within the libertarian community. Debating the right and wrong, the pragmatic and nonpragmatic of it at this time under rampant statism is little more than an intellectual exercise in futility. Spending any sort of time on it in the here and now serves the purpose of having to deal with things we actually need to seriously think about and act upon (such as when should we shoot a cop, as Larken Rose has written about).

    Second, in the anarchist tradition, Benjamin Tucker already settled this. Patents are one of his Four Monopolies, since they necessarily require the coercive power of the State in order to be “protected.” Granted, while Tucker was a bit of a Mutualist and Lysander Spooner held the completely opposite position, in the here and now Tucker’s position, I argue, is the one most applicable to the situation we are all currently suffering under. Even if Spooner was objectively correct, it’s still a moot point because the State is still around, which, of course, would beg the question as to how individualist anarchists would protect intellectual property with the State still around? I think it’s impossible, quite frankly, so libertarians nitpicking each other about whether IP is private property or not is simply echoing the age-old anarchist debate like Tucker v. Spooner, which I’ll reiterate is moot because you cannot protect IP outside the State while still under statism, even if you wanted to (so perhaps you should move onto another subject that might actually work in terms of securing your Liberties).

    Third, McElroy has admitted in this interview with C-SPAN’s BookTV at FreedomFest 2012 in Las Vegas (https://www.youtube.com/watch?v=3EsURiIWUD4) that she wrote “The Art of Being Free” because she felt that America gave up on freedom immediately right after 9/11 happen, and that she question herself as to whether she may have wasted 30, 40 some odd years of her life talking publicly about freedom and liberty. Well, at the risk of sounding like Walter Block (since he’s a total douchebag, especially for the way he deliberately libeled McElroy, in my opinion), these people referred to by the collectivist label, “Americans,” by and large gave up on freedom and liberty a long, long time ago. They’ve been incrementally conditioned by the Madison Avenue social engineers to revere authority, follow orders, and defer personal responsibility for their own individual actions and complicity is this machine of oppression. As much as I hate to say it, if you perform some singular action for a significant period of time (say, over a quarter of a century) with the intention of achieving some goal, and then a singular event happens that heads in the complete opposite direction from your goal, then wouldn’t that suggest that, yes indeed, you did in fact waste all your time and effort proselytizing about freedom and liberty in the way that you did. I don’t mean to hurt anyone’s feelings here, but quite honestly, libertarians need to develop the mental attitude that is less of “political activism” (which is really nothing more than a cover for reformism) and something more along the lines of the French Maquis during WWII. Once someone realizes that individuals on the North American continent are forcibly occupied by this thing you call “government,” then you’ll be freed in such a way like nothing before could have, and you can act upon that realization as you see fit in accordance with your values.

    • StormNo Gravatar says:

      So many problems.. First if we adopted your suggestion that we ignore “wedge issues” then we can never move forward. Voting is a “wedge issue” but until we can get people to stop supporting the state liberty is not possible, so yes it makes sense to examine the philosophical and practical implications. This is equally true with regard to IP.

      Secondly, and perhaps less important to the issue but important to any intellectual discussion, this tactic is a way to simply dismiss the issues entirely without any consideration. Naturally this is insulting to thinking people who are delving into the subject. Practically speaking it does nothing to help us.

      Third, appeal to tradition is fallacious. It tells us nothing except how others have done X before. Since the matter is still not settled, such appeals also have no practical effect.

      Finally, as to your last suggestion, many of us are agorists. We are creating a new world where governments are obsolete. Part of this process is understanding what is just, fair, and of course supportable. This means examining issues such as this, in fact these “wedge” issues are MORE important in that regard for the effort for freedom than those on which we agree. The wedge issues are where problems are likely to arise so if we have clear explanations and expectations we can avoid those problems while we build a liberty and respect for persons minded world.

      • Brian DrakeNo Gravatar says:

        Nicely said Storm.

        I’d add that IP is even more important in a statist world because what the general populace considers right influences their degree of cooperation with the state.

        For example: most people rightly recognize the theft of physical property to be wrong, so well-meaning people will report tips/info about theft to the police in an attempt to bring wrong-doers to justice and possibly return stolen property.

        How the general public view the issue of IP will influence their behavior in a like way. If you truly think IP is valid, you may be motivated to report “pirates” to the “authorities”. If you think IP is invalid, you will not (since keeping your mouth shut/turning a blind eye is the usual course of action).

        Think about the underground railroad days. People who knew slavery was wrong didn’t necessarily overthrow the state, but some of them did act to subvert its laws. Convincing more and more people that IP is illegitimate can have similar benefits even in this statist world.

        • StormNo Gravatar says:

          Brian,

          The Underground Railroad is a great example as you used it but it is an even more powerful example of agorism in action when we consider that it was created by the Quakers who refused to hold office or vote, but knew that if we change public opinion then the political climate will change as well. So successful was there campaign against slavery that the rabid racist Lincoln adopted the anti-slavery rhetoric for his aggression against the states. Granted that in itself was not a good thing, but it demonstrates that even the state will bow to the pressure of public opinion, which means agorism works.

      • SleepySalsaNo Gravatar says:

        Storm, in response to each of your four points, to wit:

        First, in defense of McElroy,“Anarchists Who Vote Are Like Atheists Who Pray” (http://dailyanarchist.com/2012/07/11/anarchists-who-vote-are-lik e-atheists-who-pray/). I agree with at least the title of that article because it points out the inherently contradictory notion that some alleged anarchists give themselves that it is supposedly morally sound or even pragmatic to engage in “protest” or “defensive” voting. Pragmatically, anyone who has not been asleep at the wheel knows the State engages in massive vote fraud. Morally, it is utterly hypocritical for self-described anarchists, like Walter Block, who is happy to smear anyone’s reputation who was reluctant to vote for Ron Paul in either 2008 or 2012. On this very specific point, the constitutional minarchists who have throughly rejected The Left-Right Paradigm by never voting again are technically more anarchistic than the “anarchists” who make excuses in order to “rationalize” their decision to effectively sanction the legitimacy of the State. I would advise you to correct your error that voting is a wedge issue; if there was one thing that minarchists and anarchists have united behind methodologically, it would be to never provide, as Ayn Rand called it, “the sanction of the victim.” With regard to ignoring wedge issue, I would refer you to Aaron Hawkins who has suggested the same thing since it has been so divisive amongst American political dissidents, and I think he is objective correct about that, as was Michael Badnarick, who advised that we not let “the perfect be the enemy of the good,” as the old adage goes. At the risk of echoing Voltairine de Cleyre, let’s focus on defeating statism first, and then once we’ve won, we’ll settle the wedge issues amongst ourselves (once the tyrants have been punished according to the precepts of natural justice). If you still doubt me, I would suggest you read Gary Hunt’s “Divide and Conquer” article that brilliantly describes why the cause for Liberty has not yet achieved any significant milestone in any way that matters (http://www.outpost-of-freedom.com/DivideandConquer.htm).

        Second, you seem (to me, at least) confused about the sequence of events. If you sincerely desire to secure your Liberty (as I have heard many times from various dissidents), then would you say it is irrational and thus not desirable to completely piss off potential allies by getting them to focus on wedge issues instead of on your points of commonalty? Doesn’t focusing on wedge issues actually serve the State? As I have said before, theoreticians make for incompetent strategists.

        Third, if your statement that “appeal to tradition is fallacious” is objectively true, then wouldn’t that mean that any market anarchist who refers to Tucker, Proudhon, Warren, George, Molinari, Stirner, Rothbard, Spooner, Thoreau, Friedman, Konkin, or Nock (or any other acknowledged intellectual anarchist, for that matter) is essentially incorrect about anarchism itself? If so, then what does that necessarily imply about any notion of absolute liberty? Wouldn’t that mean that any serious discussion about the viability of anarchism is just mere subjective opinion? If so, then why would a nightwatchman State (including, but not limited to, the early American Republic) be morally inferior to what technically amounts to subjective opinion? Look, either history is a reliable source, or not; gauging from what other anarchists have done (such as Adam Kokesh, Stefan Molyneux, and even Seth King, who runs this awesome website), I assumed citing the anarchist intellectual tradition was perfectly cogent behavior. According to you, I committed some unacknowledged “fallacy;” apparently, it would seem as if you would consider the market anarchists who happen to like some or nearly all of the Founders as committing the alleged fallacy of “appealing to tradition,” but I digress.

        Fourth, having read the New Libertarian Manifesto, I have seen nothing whatsoever in there that suggests Konkin supported any notion of focusing on wedge issues as being “MORE important in that regard for the effort for freedom than those on which we agree,” as you phrased it. In fact, my impression of Konkin was that he was all in favor of building coalitions of counter-economists (ideally agorists, yes, but not necessarily at first anyway), who necessarily oppose the State. Put another way, if you had to make a choice, would you prefer more theoretical anarcho-captialists who refuse to participate in the Counter-Economy, or more counter-economic minarchists? Contemporary history has demonstrated that dissidents focusing on wedge issues serves only to balkanize the various factions from each other; remember, anyone who simultaneously supports UNITY and RESISTANCE is nearly always treated as a significant threat by the State.

        • StormNo Gravatar says:

          And like that the problems are multiplied…

          On voting, your response in no way demonstrates that this is not a wedge issue. Though the answer is clear, it is a very contentious issue for many who claim to be a part of the liberty movement. As to this “error” in observing the objectively verifiable fact that this is a wedge issue, I would recommend comparing claims against reality, not your belief, when determining what is true or false. You yourself cited examples of the behavior of some regarding this issue, that splits them from the rest of us who are advocating liberty. Clearly you’ve seen that this is a wedge issue, so why you would deny this is beyond reason.

          As for your confusion with regard to practical and principled efforts to bring about liberty, well there is little to say. You assume your position is true, without basis, and then complain that the practical and principled approaches are not yours and so are not practical. This is not an argument, it is merely whinging. Rather than assume that those who promote the state are allies, and rather than throwing the baby out with the bathwater, why not consider the proven approaches? If we abandon liberty as you suggest and join in the growing of the state because you personally see those growing the state as allies, we have necessarily lost without any chance of any hope of ever winning liberty.

          As for your misunderstanding of fallacies, I can recommend a wonderful text on logic: The Reasonable Woman: A Guide to Intellectual Survival by Wendy McElroy. Maybe you’ve heard of her? :) When you say that X is correct because it was done this way before, you are appealing to tradition. When you say, here is an argument proving a point, offered by Tucker (or whoever) you are simply citing the source, not appealing to tradition.

          As to your last remarks on wedge issues, here again you are very very confused. What you pretend is attacking anyone who is not pure, is in fact solving the problems that stand as barriers between us and potential allies.

          This theme of throwing the baby out with the bathwater cannot succeed and never has. It make no sense logically or strategically.

          • SleepySalsaNo Gravatar says:

            Storm,

            Are you suggesting that minarchists are closet statists?

            • StormNo Gravatar says:

              Well look at what it means to be a statist: those who advocate for or support tbe state. I’d say that minarchists are not even close to being in the closet, they are openly advocating government. They differ in type from libertarians and in mere degree from all other statists.

            • Rick DiMareNo Gravatar says:

              I agree that the minarchist position is more reasonable, particularly when it comes to IP rights. Government is currently doling out way too many IP rights, for excessive time periods, and to inappropriate legal entities, but the answer isn’t that government should offer no IP protection at all.

              In fact, the minarchist position is generally more reasonable overall. As I see it, when we completely reject *all* government, two things work against us.

              First, we deny ourselves benefits and protections which are owed to us by government, and second, by defying even the legitimate functions of government, our defiance causes government to beef up its defenses against us.

  9. Ron LiebermannNo Gravatar says:

    This is a nice article, but Wendy misses the central point: Courts can’t decide on the “value” of anything as nebulous as “lost potential sales”.

    When a litigant claims to have suffered economic damage due to copyright violations, those claims are based on theoretical sales estimates that have no basis in reality. America’s communist court system has no respect for the free market; just as they have no respect for public opinion. Add to that the fact that in court, publishers are the “Injured Party” not “Content Creators.” So even if the courts could decide on a value, they couldn’t compensate the “Injured Party.”

    Of course, one might argue that publishers take a financial risk in order to promote intellectual property, but that’s not the case. For example, if you want to cut a record deal with Sony, you have to pay for the cost out of your own pocket. If the record sells, they’ll pay you back. Sony risks nothing.

    Then we get to the question of whether ideas are “natural property” protected by law. I think that Aristotle would have said “No” and Plato would have said “Yes.” Aristotle was interested in man’s continuing intellectual progression; of which the free flow of ideas is an integral part. Plato was interested in the safety of the State; but he never considered that the state is only as good as the individuals who make it. Aristotle was right; and Plato was wrong.

    The final nail in the coffin of “intellectual property” is the concept of the “implied contract.” There is no such thing. Or rather, the definition is so vague that it has no meaning. What they really mean is that “giving one’s consent under duress” represents a morally valid agreement; which it does not. That’s why Plato’s American Republic teaches logic in Law School; but not Aristotelian ethics. The word “liberty” is a misnomer; it means freedom with restrictions. That’s also an implied contract.

    But Plato won’t be beaten so easily. So instead of arguing that intellectual property is morally valid; he argues that the “physical investment” in “computers” and “infrastructure” must be protected for the good of society. After all, the internet is costing the Federal Government a lot of money, so they must act on behalf of “good people.” Therefore the crime of “copyright violation” will soon be replaced with the crime of “Criminal Trespassing”. That’s a crime committed by “bad people”.

    As the logic goes: If you can’t use the internet, you can’t break the law; and you can’t argue about it either. Thus spoke Machiavelli.

    • Wendy McElroyNo Gravatar says:

      Good, thought-provoking comment Ron. You are absolutely correct that courts cannot place a value on “lost potential sales,” and it is absurd or obscene for them to try. Perhaps it is both. This is precisely the sort of perspective I was/am hoping to encounter because it opens up new trains of thought for me. As I noted in the article, the damages could not possibly be limited to the actual ones (the price of the book times a small amount, for example) and would *have* to rise to absurd levels, for example, by including the loss of sales. If this didn’t happen, then there would be no incentive to take an ‘offender’ to court and no incentive for the ‘offender’ to not repeat. I do disagree, however, that this is the central point. The central point is whether IP can be property in any manner after disclosure. Hmmm…or are you saying that the inability to assess future losses is the key reason the contract theory of copyright couldn’t work? You may be correct in terms of the legal reason it would not work. I tend to put more emphasis on the problems with rights and internal contraditions but I am always reassured when my argument are backed up by utilitarian ones.

      As for Aristotle and Plato on IP…I’ve got some reading to do.

      And, yes, the implied contract aspect of IP is infuriating and ridiculous. It is similar to Murray’s “implicit theft”. Even if I *do* correctly understand what he meant — and he defined it differently in several places — I cannot think of a specific example that holds up. But, once again, you and I have a slight disagreement. I have no problem with the word “liberty” meaning “freedom with restrictions” as long as the restriction is that the libery or rights are be universal. That is, reciprocal liberty in the classical liberal sense. For example, we all have freedom of speech to the same degree and, so, I cannot properly limit yours..

      • Brian DrakeNo Gravatar says:

        Wendy,

        “I have no problem with the word “liberty” meaning “freedom with restrictions” as long as the restriction is that the libery or rights are be universal. That is, reciprocal liberty in the classical liberal sense. For example, we all have freedom of speech to the same degree and, so, I cannot properly limit yours..”

        I think we should be careful when accepting definitions like this, because for me, talking about “restrictions” is a huge red flag for Trojan horse loopholes. Once you accept restrictions, you open the door for discussion on what those restrictions are, who decides what they are, and how they’re enforced (and who enforces them). Though I’m not saying all discussions are intended as such, I’ve just seen similar tactics used often enough to ultimately undermine any concept of principle and basically be a back door argument for oligarchy (never overtly; usually an argument for “societal consensus”, which as the Iron law demonstrates, is ultimately just oligarchy).

        The definition I find most “bullet proof” is liberty means “self-ownership”; that is ownership of the scarce resource that is your body. Ownership means final authority over a scarce resource (which any particular body definitely is). By final I mean final. With concerns to the resource in question, the owner has no just limitations on what he/she may decide. Final authority may as well be stated “unlimited authority”.

        This is why I have a problem with defining property, and/or liberty in context of other things. Like “my liberty is limited by your liberty”, for example. Because again, once you frame things in terms of “limits”, there’s that Trojan horse potential again. I think it’s more accurate to just define the resource in question, and that’s it. My body is limited by my skin, not the existence of yours.

        For example, instead of saying “my right to swing my fist ends where your nose begins”, I think a more accurate phrasing is “my right to swing my fist ends…at my fist, and any space that I either own, or have permission to use”. Your nose clearly isn’t my fist, nor is it space that I own or have permission to use (unless we’re consenting to box or something). So there’s no need to even mention your nose in defining my property rights. I can do WHATEVER I want with my property, without limits. Your nose simply isn’t my property. To say I may not justly strike your nose with my fist isn’t to describe limits of my ownership, it’s to describe the finite reality of my finite property (since the finite enumeration of my property does not include your nose).

        Anyway, that’s just glossing over. I realize that among well meaning people, such semantic/conceptual precision isn’t necessary. But I’ve observed the Trojan horse tactic way too many times so my guard is continually up and I think it’s thus important to formulate our concepts in a way that doesn’t leave the gate open to those pesky Greeks.

        Best regards,

        Brian

        • Hello again Brian: While I understand your point about Trojan horses — I’ve encountered enough of them myself — I think they only make it all the more important to define “liberty” (or rights or freedom) in extremely clear, precise terms. And, yes, all of the definitions I offer contain some restrictions. For example, I define rights as the enforceable claims that each human being has against all others; these rights consist of person and property being left alone. I also add the “restriction” that each right has a corresponding duty that is similar to the flip side of a coin; you must leave the person and property of others alone. Without restrictions, liberty becomes license. Liberty and rights cease to be universalizable.

          I don’t think you escape Trojan horses by defining liberty as self-ownership (the definition I actually prefer) because it immediately leads to everyone being a self-owner and, so, having a jurisdiction over their person into which no one can properly cross without permission. You write, “My body is limited by my skin, not the existence of yours.” I would say it is limited by both. I own my body and I have a duty to respect your equal self- ownership. This is a restriction by another name.

          You write, “For example, instead of saying ‘my right to swing my fist ends where your nose begins, I think a more accurate phrasing is “my right to swing my fist ends at my fist, and any space that I either own, or have permission to use”. Honestly, I do not see a substantive difference because the 2nd phrasing includes the restriction of needing permission. Moreover I disagree with the idea of needing to own the space in order to move your person through it. You can walk on someone’s property with permission and, yet, you do not own the property. You can swing your fist in “air space” owned by someone else. What you cannot rightfully do is hit a nose that isn’t your own.

          BTW, in The Reasonable Woman, I spent a few chapters discussing the ethics and strategies of argumentation. Although I did not deal specifically with Trojan horses, I think the principles and much of the advice in those chapters could be use to good advantage against them.

          You wrote, “I realize that among well meaning people, such semantic/conceptual precision isn’t necessary.” Absolutely. And this is a friendly discussion. I respond at length because strategies of arguing have always interested me. Indeed, that interest is what led to The Reasonable Woman.

          Cheers to you.

          • Brian DrakeNo Gravatar says:

            Hi Wendy,

            I hope you already recognize that I was referring to you when saying “among well meaning people”. That I’ve seen, you’ve consistently demonstrated a humble, honest, logical approach to discourse. Even if/when I disagree with people like that, I still respect them since they’ve clearly shown themselves to be well meaning. Cheers to you.

            “I think [Trojan horse arguments] only make it all the more important to define “liberty” (or rights or freedom) in extremely clear, precise terms.” – Completely agree. That was the point I was trying to make.

            “For example, I define rights as the enforceable claims that each human being has against all others” – I don’t like this definition because I see it susceptible to Trojan horses. If rights mean I have enforceable claims against others, then maybe you’re just being stingy in limiting those rights. Perhaps I have additional rights, like the right to sustenance, which I can enforce against those who have more than they “need”. Instead, like Rothbard, I see all human rights as simply property rights. And the term “right” to me, is any action that it would be unjust to interfere with. I have no claims against others, they have no duties to me. If they interfere with my property right (my authority over a scarce resource that I justly own), they are committing injustice. There’s no “duty” involved with this definition. You must act to interfere with my authority over my property before my “right” comes into play. Again, perhaps you see this as just another way of phrasing the same thing. Perhaps on some level, but I think this definition is more in line with reality, and less susceptible to Trojan horses. The assertion that no one may interfere with my property doesn’t in any way restrict what others may do with THEIR property. My property simply isn’t theirs.

            “Without restrictions, liberty becomes license.” – I know you don’t mean this as a Trojan horse, but again, I think this is leaving the gate wide open.

            “I don’t think you escape Trojan horses by defining liberty as self-ownership (the definition I actually prefer) because it immediately leads to everyone being a self-owner and, so, having a jurisdiction over their person into which no one can properly cross without permission.” – I’m not seeing the Trojan horse here. Everyone owns themselves (agree). That’s just identifying owners of scarce resources. Where’s the Trojan horse here?

            Incidentally, I have not read “The Reasonable Woman”, and while I now intend to, the queue of books I’m actively working through is a bit long, so it’ll probably be a while before I get to yours.

            In your paragraph addressing fist swinging, you conflate “can” and “may”. You must own space/have permission before you MAY justly swing your fist. That you CAN do something doesn’t address the justness of the act. “You can swing your fist in “air space” owned by someone else. What you cannot rightfully do is hit a nose that isn’t your own.” Let’s clarify. Of course I CAN hit your nose. We’re really talking about MAY I (justly). And between those two sentences, I don’t see you provide a just distinction. Why may I not swing my fist into your nose, but I may swing my fist into your “air space”. If it is indeed “your” air space, then it is your property, just like your nose. Why may I violate your property in one instance, but not in the other?

            The underlying concept I see of those using definitions that include limits and restrictions is the idea that an individual’s “rights” are initially infinite, and only become restricted when other people come into consideration. Thus, when you start with the ownership of your body (self-ownership), you conceive that this body may move freely until it encounters the property of another.

            The concept I use in my definitions is that you start with your body and nothing else; nothing. That’s it. From there, it’s an additive process, not a subtractive process from (initially) infinite. Your body is finite; you don’t start with infinite, you start with finite. You increase your property/permissions as you go. Want to swing your fist? You need space to do that. If the space you wish to swing your fist in is unowned, you can acquire it, or at least establish an easement. Walk ten feet. Those 10 feet have been added. They weren’t yours to begin with.

            I think my conception is more in line with reality, because truly, we’re born with nothing but our bodies. Imagine an adult waking up on the beach of a deserted island. They’ve got nothing. If they just sit there, they remain with nothing (but the sand under their butt). Acquisition requires action. Even if they’re alone on the island, and thus there is no other person to “restrict them”, they’re restricted by the reality that until they acquire (an action), they’ve got nothing.

            Yes, with only a single human being (or rational actor if you want to leave the option of other sentient beings) in existence, “ownership” is not a necessary concept. But still, even if I was the only person on this planet, being born in North America doesn’t magically mean China is mine too. I don’t own the universe until another sentient being comes into existence. I own what I own, as I acquire it.

            Let’s say you and I are the only beings in existence. I live in North America, you live in China. Now we have 2 people, so “ownership” makes more sense. But we’re separated by thousands of miles. I think the accurate way of thinking of Africa is that is is unowned, not that either of us have some sort of “un-exercised” ownership of it, or that we have some pseudo-joint-ownership. Neither of us have been to Africa. No one owns it (that’s what “unowned” means).

            So to recap, ownership is unlimited but the things that are owned are finite. They are not finite because of the existence of other things, they are finite by their own individual nature. A 2x2x2ft box isn’t “limited” by a 4x4x4ft box a thousand miles away. It’s “limited” by 2x2x2ft. Anything outside that 2x2x2ft area simply isn’t that box. So if I own the box, my authority is unlimited what I may do with that 2x2x2ft object. If I want to move it, that suddenly adds more to the equation (e.g., ground to stand on) and thus the ownership of those new elements needs to be established before I can determine whether such an action will be just. This more complex equation does not negate that when focusing on what I own, 2x2x2ft, there are no limits to what I may do.

            Best regards,

            Brian

  10. Rick DiMareNo Gravatar says:

    Just read a post on Facebook that stated: “It took Brahms 21 years to complete and release his first symphony to the public.”

    Shouldn’t he have the right, at least for a limited time, and no longer than his natural life, to be compensated?

    Who in their right mind would invent and author stuff if it could be immediately duplicated by others when it was finally ready for market?

    • MAMNo Gravatar says:

      So the answer is to use violence to create a monopoly so that people can make money? Frankly I would rather have no music then have that system.

      But the idea that there is no other way for artists to make money on their art is silly beyond belief. Artists are starting to use kickstarters to get the funds to do their projects. The market rewards innovation I have no doubt that people will innovate. Furthermore I personally know several people who do not believe in IP who still pay for their music and movies and shows because they like it and want the artists to make more of it.

      The idea that people need to have a monopoly in order to make money on the arts is observably false.

      • Wendy McElroyNo Gravatar says:

        Hi Rick: By now you know that a Constitutionalist posted at an anarchist site is like a Christian shaking paws with a lion. Sorry if thing have become heated. I want to address the main point you make, however. I believe the first copyright law came into effect in England in 1709. Some of the most prolific writers penned their works before this date, including Shakespeare. So, clearly, many authors and musicians would keep creating.

        George Bernard Shaw was adamantly against copyright (as are/were many authors), saying it was a law through which authors get paid not once or twice for their work but thousands and thousands of times over. Moreover, in both the book and music industries, there is a considerable evidence that offering goods for free actually increases sales from the artist. That is why so many independent musicians refuse to participate in sites and with companies that enforce IP. In other words, I think you are wrong about the free flow of material robbing people of their just dues or that the lack of legal protection would discourage anyone from creating.

        What would happen, IMO, is that we would leave the centuries old business model of literature and music behind, and move into the 21st century.

        • Rick DiMareNo Gravatar says:

          Hi Wendy, the “Christian shaking paws with lions” is a good way to put how I feel, so in addition to being a Constitutionalist, I must be a masochist, too.

          I don’t know about the political connectedness or financial means of Shakespeare or Shaw, but when I think of IP rights, I think of the poor slob sitting in a basement, inventing something that no one sees a use for, and then when the product is ready for market, a bunch of wealthy people pounce on the invention and steal it. Without federal protection for his/her work, there’s little hope for such an unknown/obscure person to emerge from poverty.

          But to reiterate my other point, I think U.S. lawyers are really sleeping at the wheel when it comes to challenging the extravagant rights being handed out today under the IP Clause.

          First, there’s no support under Article 1, Section 8, Clause 8 for a corporation holding IP rights, nor for IP rights to be transferrable to persons other than the actual inventor/author.

          Second, the “limited times” stipulation has been greatly expanded since the Constitution was ratified, and this should be rolled back to 17 years maximum, if not much less, due to modern mass marketing capabilities.

          Third, the IP Clause only condones “useful” arts and I don’t know any attorney who’s challenged the usefulness of some IP rights.

          • MAMNo Gravatar says:

            Barack Obama used to teach constitutional law… The lawyers of which many are politicians don’t care about the constitution. Begging for the state to protect your rights, and not take them away is clearly useless as evidenced by the society we live in today… If you can’t see that the Constitution is absolutely useless now, has always been useless, and will continue to be useless, I don’t know what to tell you.

            Maybe the State will shit on you and you will realize what it is. I won’t hold my breath.

    • Brian DrakeNo Gravatar says:

      Rick,

      You’re exhibiting what I’ve come to call “the labor theory of entitlement”, a more crass variant of the labor theory of value. Something one expects to find among Marxists, but which also crops up all the time by IP proponents.

      “I worked really hard, don’t I deserve to be compensated?”

      No.

      The amount of effort an action takes is irrelevant. Being compensated involves trade; voluntary exchange with other people. You are never entitled to exchange, since exchange requires consent from the other party, consent they have all right to withhold.

      Working really hard does not entitle you to exchange with others. Working hardly at all doesn’t entitle you to exchange with others. The amount of your effort is irrelevant.

      “Who in their right mind would invent and author stuff if it could be immediately duplicated by others when it was finally ready for market?”

      You are not only a poor thinker, you’re a poor observer. I don’t know specifically about Brahms, but most “great composers” operated in an IP-less environment. Anyone could copy their work the moment they heard it. They still composed and found ways to make money (patronage was a big one). Legal IP has not always existed. Yet somehow inventions and authors have. How do you reconcile these obvious facts?

      Look at open-source software. Are you stating these people are not in their “right mind”? How arrogant.

      The idea that you work really hard and then are granted a monopoly is a business model. An unjust business model. If you can’t think of another one, that’s your problem, not ours. Plenty of people have thought of better ones.

      One example: Stefan Molyneux gives away all his books, podcasts, essays, etc. on his website. Free. He builds a fanbase this way. They support him with donations. They also increase his popularity, and thus create opportunity for him to charge a speaking fee.

      Small-time authors do not have the legal resources to prosecute IP violators. To them, IP protection might as well not exist. They still write. Look at Hugh Howley. Dude’s a millionaire by circumventing the traditional publishing industry, instead of giving the majority take to publishers (the real beneficiaries of IP laws). The Kindle format is cracked. You can get all his books for free. He still has made enough to be set for life.

      • Rick DiMareNo Gravatar says:

        The IP Clause (I:8:8) doesn’t mandate that authors and inventors, for limited times, register their work for federal protection, so people can invent and author works for free if the want to, and if they can afford it.

        However, regarding people who can’t afford to spend years developing something without pay, I don’t see how you have the right to deny them a fair wage, but granted, not much more than a fair wage.

        • StormNo Gravatar says:

          Rick, no one is suggesting that you go out and prevent someone from earning a wage. Do not confuse what you describe which is active prevention of their earning a wage, with what you are advocating, that being actively providing that wage.

          No one owes you anything when you create X.

        • Brian DrakeNo Gravatar says:

          Rick,

          I write this last reply in hopes that my abrasion may at least cause you to start to doubt, yourself. You probably don’t notice this, but you operate in a bubble. You do not engage the arguments of others, you simply employ red herring arguments to continually evade any direct dealing with the arguments presented you. This is indeed a very effective method to insulate yourself from ever having to critically think about your own positions. Critically re-evaluating your positions is admittedly an often uncomfortable task, and so it is understandable why most people avoid this discomfort. However, it is near guaranteed that such a tactic will never result in your enlightenment, but will always keep you far from the truth. The only person you are deceiving is yourself. Perhaps you are fine with this. If not, you still have the chance to redeem yourself, humbly admit you haven’t the slightest clue of what you’re talking about, and then invest time and effort developing critical thinking skills. Skills that will enable you to actually engage arguments, find their flaws, reject those that are in error, and embrace those that are true (even when that’s uncomfortable). This is the only path to truth. I hope you choose to take it.

          • Rick DiMareNo Gravatar says:

            Thanks for the opportunity to redeem and doubt myself, Father Drake, but I reject your “all or nothing” approach.

            I’m a Constitutionalist and you haven’t shown me any reason to believe there’s a better way to “promote the progress of science and useful arts” than that laid out in the Constitution under Article 1, Section 8, Clause 8.

            I think your real concern is that this federal power has been abused by U.S. lawyers and blown way out of proportion so that it causes unnecessary monopoly conditions, and would agree with that. But to say that there should be no support for IP rights, and that no government at all is the answer, is unacceptable to me right now.

            • Brian DrakeNo Gravatar says:

              So you choose the bubble. Can’t say I’m surprised. Sad. Hopefully you at least serve as a cautionary tale to any observers not as entrenched in their choice for ignorance as you.

            • MAMNo Gravatar says:

              The real concern is that you are denying the nature of the beast it’s your prerogative to do so. When your system ends in your slavery again it won’t be my fault and don’t come asking for sympathy because frankly I don’t give two shits about the wilfully ignorant.

              Darwinism is going to select people out and all the power to it.

              • Brian DrakeNo Gravatar says:

                MAM,

                By definition, “his” system is slavery. The ownership (final authority) of some men over others is slavery. Statism doesn’t “end” in slavery, it is slavery. The observed variations among states are simply the recognition of various degrees of leniency. I.e., some states give their slaves longer chains. But all states are a claim by an oligarchic minority to have final authority over all the people in a declared region. That’s slavery.

                Political philosophy has either been invented to lie to the slaves to prevent them from revolting, or invented by the slaves, to fool themselves into thinking they are actually free, since the thought they are slaves is depressing.

                And unfortunately, that includes us. We are slaves. Yeah, it’s cool we aren’t slaves in our mind (freed our minds). But the unfortunate reality, is if you live within the declared jurisdiction of a state, you are property of that state. Unjustly? Yes. But functionally, property.

                In regards to the self-delusion most employ to shut out the truth of their enslavement, I offer this great quote:

                “And so, we have the scales: on one side, a gram, on the other a ton; on one side ‘I,’ on the other ‘We,’ the One State. Is it not clear, then, that to assume that ‘I’ can have some ‘rights’ in relation to the State is exactly like assuming that a gram can balance the scale against a ton? Hence, the division: rights to the ton, duties to the gram. And the natural path from nonentity to greatness is to forget that you are a gram and feel yourself instead a millionth of a ton.” – We – by Yevgeny Zamyatin

                Best regards,

                Brian

                • MAMNo Gravatar says:

                  I agree with what your saying. But I’m an Agorist, and one day I will be a survivalist capable of living in the wild and thus free. It’s not optimal but I want the option to leave the shit hole so yep.

                  Peace be with you.

            • “A better way to ‘promote the progress…’”?

              It should worry you when laws are preceded by pretext – given their lack of natural (self-evident) basis. Why aren’t laws against burglary so excused, e.g. “to promote a thriving economy”?

              The privilege of copyright was enacted by Queen Anne with the pretext that it was to encourage her subjects’ learning. James Madison simply rephrased the excuse.

              Do We The People say “Please form a government to secure our rights – oh, and if you think it may improve mankind’s technological and cultural advancement, please make laws abridging our liberty as you see fit, e.g. to institute monopolies”?

              What if The Constitution said “Congress shall have power… to promote agricultural productivity, by securing for limited times, to plantation owners, the right to keep their slaves”? Would that make the keeping of slaves a natural right of plantation owners? Or perhaps the right to keep slaves would follow from the Constitutional aspiration to promote agricultural productivity?

              The Constitution can only recognise natural rights. It cannot empower Congress to abridge them.

              In “to secure to authors the exclusive right to their writings” Madison was referring to an author’s common law right, their natural right to exclude others from their writings – which of course should indeed be secured (my right to exclude you from taking or copying my writing in my desk drawer).

              It was only a common misunderstanding that the Statute of Anne was such a securing, that enabled Madison/Congress to re-enact it in 1790. As we know, copyright does not secure an author’s natural right to exclude others from their writings, but annuls everyone’s natural right to copy (even their own possessions), to leave it, by exclusion, in the hands of a few – copyright holders. Copyright is a privilege abridging our liberty.

              In other words, Congress is not empowered to abridge our liberty. It is only empowered to secure our natural right to exclude others from our writings.

              You have no liberty to invade the privacy of my desk drawer – I have the natural right to exclude you from the writing within. I have the liberty to copy the writing in my desk drawer. You have no natural right to exclude me from copying the writing in my desk drawer – even if it comprises one of your comments here.

              The ‘progress clause’ did not empower Congress to annul the people’s right to copy – either explicitly (you may enact copyright) or implicitly (carte blanche to do anything, abridging or annulling any right, that might promote progress).

              • Rick DiMareNo Gravatar says:

                Crosbie, these threads are getting hard to follow, but as I’ve said before, I don’t believe in positive rights, or that, for example, government has power to positively “promote the progress of science and useful arts” under Article 1, Section 8, Clause 8. All government can do “to promote” (indirectly) is to punish and discourage monopolists, and those who would steal the unpaid labor and ideas of *natural person* (not corporate) inventors/authors.

                Are you familiar with the TV Series “Shark Tank”? http://en.wikipedia.org/wiki/Shark_Tank_(TV_series)

                When someone comes before them with a new and useful idea or invention (and usually the presenter is having serious financial troubles, and trouble taking their idea to market), one of the first things a shark wants to know is if the idea is patented. Why do you think they want to know this?

                They want to know if they might be able to take the idea without legal consequence (i.e., steal the idea and put the inventor out of his/her misery), and if they can’t steal it because it’s patented, they want to know how much it might cost to buy the inventor out so they can monopolize it, make it part of their corporate “family,” and sue others who might try to use it afterwards.

                So, as I’ve said numerous times, the IP Clause was meant to protect the small guy inventor/author against the monopolist/thief/shark, and was never meant to be held by artificial or corporate “persons.” Lawyers have perverted the concept of IP rights, and it’s our fault for letting them get away with it, but the bottom line is that it’s no fault of the Constitution.

      • Brian: Do you have any objection to my using the phrase “Labor Theory of Entitlement” as the title of my next article on copyright? It is catchy and an entirely different approach to IP. BTW, because I have been criticized quite roundly elsewhere for asking people’s consent to use their words, I should explain that I do so not as a matter of rights but as a matter of courtesy…I find the latter to be almost as important as rights themselves to the smooth functioning of a civil society. In a few ininutes (if nothing interrupts), I am going back to your earlier post on the problem of Trojan horses resulting from my definition of rights…

        • Brian DrakeNo Gravatar says:

          Wendy,

          If you use that term without paying me a lot of money, I will send men with guns to your house to beat you, taze you, and throw you in the cage. Pay up or else! ;)

          Of course you can use it. I’m in full agreement with you on asking permission (though I wouldn’t have personally minded if you hadn’t). I don’t believe in IP (imaginary property), but that doesn’t mean one shouldn’t be courteous and humble. For me, attribution isn’t about appeals to authority, imagined property rights, or even name-dropping (look at me, I’m well-read!), it’s about giving credit where credit is due.

          Best regards,

          Brian

  11. StormNo Gravatar says:

    Though I know that this is not original to me, the notion that an idea has special protection beyond the point of when it is merely in your head, is much like abandoning a chair along side the road then later trying to dictate how that chair might be used. Once the idea is put out there it has been essentially abandoned like that chair by the side of the road. The only difference is that the creator of the idea is not deprived of that idea.

    I had not considered the implications for patents with the increasing popularity of 3D printers. What a wonderfully freeing possibility that meshes oh so well with the open source movement. In fact this ought to take the open source movement from the ethereal world of ideas and programs to real world objects. Imagine the boon for the poor that this can bring! Suddenly they need not overcome the huge obstacles of time and cost that exist in part yes because of the market, but more so because of the regulations, restrictions, and protections of governments.

    One question though.. Could a very narrowly defined “copyright” still exist in a freed market through explicit contracts? It seems that if I make an explicit contract with you for X piece of text, in which you stipulate that I may not share this, sell it, or the like, that this might be feasible or at least more feasible than Rothbard’s implicit “contract” assumption. What are your thoughts?

  12. Brendan RomanNo Gravatar says:

    I don’t agree with this article. Your last article on the subject convinced me that IP is not a natural right, but everyone has the right to make whatever contracts they want and have them properly enforced. How it would be enforced without violating anyone’s rights is an issue which is worth discussing, but the mere fact that this problem exists doesn’t mean that we should just throw out producers’ rights to have their contracts enforced. I think that this is a horrible way to make a decision about rights.

    To give a hypothetical example, let’s say that a man is accusing a woman of raping him. The woman is arrested, but argues that he never penetrated her, consensually or otherwise. The only method that anyone can think of to find out if she is telling the truth is to perform a medical examination to look for traces of the man’s sperm in her vagina. Performing this examination without her consent would obviously be a severe violation of her rights, and would itself basically be rape.

    Does this mean that the man did not have a right not to be raped? No. This means someone has to figure out another way to determine who is telling the truth. Your argument has the same problem.

    One solution to the problem of enforcing a copyright contract would be to add a clause which would impose severe penalties for breaking the contract. The consumer would then have consented that if they distributed the material in a way prohibited under the contract, that they could be fined a disproportionately large amount of money as a deterrent for anyone else thinking of breaking the law.

    There could also be something analogous to a credit score for people who bought books, music, etc. So if someone bought a book, then copied it and started making money off of it, then they would receive a black mark on their record, and no one else would want to do business with them. Of course, anyone would have the right not to disclose their record, or to request that a trade not be recorded in their record, and it would be up to the artist to decide whether or not to accept this risk, or walk away from the deal, so everything there would be voluntary.

    Also, defense agencies could sign agreements with artists to allow their art to be consumed by members of the defense agency, provided that the defense agency was prepared to punish anyone who reproduced it without the artist’s permission. If a defense agency did not sign this contract, then the artist could then refuse to sell to anyone subscribed to that agency.

    Some of your other points are also worth addressing. It’s hard to say what we’d do if someone just happened to find a book lying on the ground. I’ll admit I can’t find any way to resolve that issue that I’m particularly happy with. The only ways I can think of to stop someone from finding a book and reproducing it would be to stipulate in the contract with the original owner that they would be charged with negligence if this happened, which would be a bit too intrusive for most people’s tastes and would turn away customers; or to say that the person who found it could be punished would be bound by the same contract as the person who had bought it. This would be stretching libertarian law, and would also imply that someone could be punished for interfering with someone else’s contract. This would have certain ramifications, like for instance, a man could be prosecuted for sleeping with another man’s wife. This isn’t even illegal under the current statist system.

    So you may have a point on that one.

    And there is also the issue that you touched on that enforcing copyrights can sometimes involve intrusive rules, such as saying you can’t copy a work just to give it to a friend. I think that an artist has a right to put this in a contract, but I don’t think anyone would want to do business with someone who imposed that kind of rule on their customers. So the free market would lead to artists have more reasonable restrictions.

  13. gdpNo Gravatar says:

    Excellent article, Wendy!

    I think you’ve hit the fundamental nail in the coffin on the head with your example of the book found on the ground: How can a contract bind a third party who has not even “implicitly” consented to its terms?

    Even the members of the SCOTUS (as degenerated as they’ve become on Property Rights and Natural Law issues), are still upholding the “Doctrine of First Sale” (albeit only 6–3) that a copyright holder’s right to specify terms of sale on a purchaser ends with the initial purchase of the item, and that the copyright holder cannot>/i> impose conditions on resale or gift of that item to a third party.

    You are also correct that the only way that IP law `works’ is if the penalties for violation are disproportionate and draconian — i.e., if the penalties are manifestly unjust.

    As many thinkers have noted, there is really only one “natural” way to prevent “piracy:” Charge a price that most purchasers will agree is “fair” and will be freely willing to pay, rather than a price that has been artificially jacked up by granting a legal monopoly to one entity, while imposing draconian penalties on all other entities.

  14. ShawnNo Gravatar says:

    To address the question of “how will the creators of art/music/writing get paid for their work” without IP laws, I counter with: is the ONLY way to profit from one’s work is to have draconian laws forced upon the purchasers? IP laws don’t reward the labor of creating a desired form of art, but instead compensate for a lack of business acumen. Think of this:

    -A songwriter/musician may not make a whole lot of money on the sales of his/her songs without IP laws, but they can certainly rake in the bucks with live performances. Sure, there would be “copycats” at the local bar, but when it comes to music I like, I prefer to go listen to the original. Songwriters who aren’t themselves musicians can sell to musicians who aren’t strong songwriters.
    -An artiist (painter, sculptor, etc) can host gala events at the art gallery where they sell their ORIGINAL works for a steep premium, assuming they’re a popular and respected artist. Again, someone is out there selling the cheap copies, but originals can fetch a pretty hefty sum.
    -Authors can do book tours and make money for speaking engagements and for signing books.

    Would they make LESS money than they could in the current system where the state severely punishes those who obtain their works for free or dirt cheap? Probably. But is a musician really entitled to being a multi-millionaire (or even billionaire) for simply creating a desirable product? Many of them would be happy with just making a decent living from doing what they love, which they can by using the examples above.

  15. RichardNo Gravatar says:

    Wendy: The thinnest part of your argument comes with the word “idea”. Yes, no one can stop you from having an “idea”, but if you reprint a complete novel and replace the author’s name with your own, you haven’t stolen an “idea”. You have stolen something that you would have no reasonably conceivable way to produce on your own. Perhaps you will see a distinction there.

    • ShawnNo Gravatar says:

      Richard, replacing the author’s name with your own is fraud, and that’s already a crime under natural law theory. IP law doesn’t exist to protect against fraud, but to ensure the originator of a work receives compensation off of ANY future transactions, whether one is claiming the work as their own or not.

    • StormNo Gravatar says:

      What is it that you are supposed to have stolen then?

  16. Scott BieserNo Gravatar says:

    Against the problem of plagiarism, IP critics contend that claiming authorship of something one did not author is fraud, and therefore can be sanctioned by a libertarian justice system.

    But what about fraud? Is fraud really a rights violation? No one likes to be defrauded, but no one likes to be told her baby is ugly, either. Fraud a form of speech, not violence or intimidation. Rand and Rothbard both (IIRC) argued that fraud violates rights, but those arguments amounted to little more than “fraud is bad and therefore it violates rights.”

    Our mutual friend L. Neil Smith has argued that fraud is not a rights-violation but “a market problem that has market solutions.” He did not elaborate what those solutions might be, but likely they would involve exposure and opprobrium.

    • StormNo Gravatar says:

      Glad to hear this Scott. I’ve struggled with the idea of all forms of fraud being a rights violation, but could not see a clear way to condemn it without that sort of language.

      It would be interesting to explore this approach further.

    • Brian DrakeNo Gravatar says:

      Scott,

      I think we just need to be more precise in how we define fraud. When you give the example “no one likes to be told her baby is ugly”, this indicates to me you’re using the word “fraud” incorrectly. Fraud isn’t the same as just lying. Fraud is theft by deception. Telling a woman “you’re baby is cute” when you think the little rodent was beaten with the ugly stick is a lie, it’s not fraud. Lying that doesn’t involve property transfer may be a moral issue (depending on your views of morality), but it is not an act of aggression, per se.

      All fraud involves lying (deception), not all lying is fraud.

      “If you give me $10, I’ll give you a box of fresh apples”, I tell you. I take your $10, and in return, I give a box full of sand bags (to weight it as expected, to avoid detection until later opening): that’s fraud. I have stolen the $10 through deception.

      I see this as an act of aggression because it is intentional theft. Rather than pick-pocketing you to take your $10 (obvious theft), I instead utilized deceit to misrepresent what I was trading so that you would consent to give me $10 based on intentionally false information.

      We rightly recognize that there are cases where explicitly given consent is invalid. Coercion, for example. If take $10 from your wallet, that’s obviously theft. If I put a gun to your head and say “give me $10 or I’ll kill you”, your actions, viewed without context, look like you’re consenting to give me $10. You reach into your wallet, and then choose to move your hand to give me $10. But the context of coercion tells us this “consent” was not given freely, but only in compliance to avoid harm. Since you are not my property, I do not have the just authority to command you to comply with me, or to suffer harm, thus my threat was an unjust act of aggression. Thus the “consent” is invalid, and the action is theft (armed robbery).

      I think deception can be rightly added next to coercion as a condition that invalidates consent. Note, this isn’t an argument that without full disclosure, all trade is fraud. No one is entitled to information (because such entitlement places unchosen obligation on the seller to provide the free service of education). Thus fraud is not passive, it requires action. If I say “I’ll sell you this box for $10″, and you just assume it is full of fresh apples, when it’s really full of sand, you’re just being foolish, and I’ve not committed fraud. But if I actively misrepresent the contents of the box as apples, and you instead get home and realize it’s sand, that is fraud, and I think it’s clear your consent was given under false pretenses, and thus is not valid. I’m a thief of your $10.

      Thus, I dont’t think the case against fraud is as weak as “uh, fraud is bad, mkay?”

    • The fraud thing is a strawman. Yes, fraud is a species of theft. No, it has nothing to do with market competition (or patent or copyright), and really nothing to do even with plagiarism. http://archive.mises.org/9367/fraud-restitution-and-retaliation-t he-libertarian-approach/

  17. Scott BieserNo Gravatar says:

    Brian,

    I do not intend to conflate all lying with fraud. I regret if my example with the ugly baby was misleading.

    You still haven’t established WHY deceit with intent to defraud someone is a rights violation. Clearly, the threat of causing injury, to force someone to act against his wishes, is a rights violation, because it involves violence. But fraud is not violence. It is words. The case for pronouncing fraud a rights violation should be more than “well, fraud is like violence, see, because it is.” WHY is it like violence? Or if it isn’t, really, then what is it about fraud that qualifies it as a rights-violating activity, as opposed to a merely obnoxious or otherwise undesirable activity?

    • Brian DrakeNo Gravatar says:

      Scott,

      Your example wasn’t misleading. It was wrong. No problem. Just pick an accurate example next time.

      Likewise, I could say you haven’t proven WHY violence is a rights violation.

      I think you’re focusing on the wrong thing. It’s not the violence or the deceit that are really the issue. It’s the issue of consent. The term “rights violation” is a bit unclear to me, and thus one I’m not comfortable using without further elaboration. But I think it is accurate to say that aggression is essentially the violation of consent.

      So, if I’m correct, the issue is consent, and thus the only just human interaction is consensual. Using coercion is a method of violating consent. Pick-pocketing is another example of violating consent. I argue that intentionally deceiving a person is another method of violating consent.

      Now, when I say consent, that necessarily requires property ownership to be established. If person A has sex with person B without B’s consent, that’s rape. If A has sex with B with B’s consent, but WITHOUT C’s consent, that’s not rape. Why? Because B is the owner of B’s body and thus is the only person in a position to give or deny consent for sex. C is not the owner of B’s body, thus their “consent” is meaningless. Only the property owner is in a position to give/deny consent.

      Thus, you’re the owner of $10 and it is your consent that is necessary to justly transfer its ownership to me. If I threaten you or (as I argue) lie to you, to obtain that consent, that consent wasn’t truly given.

      Here’s another way to think about why lying is a violation of consent:

      1)Will you consent to give me $10 for a box of fresh apples?

      2)Will you consent to give me $10 for a box of sand bags?

      For our example, you answer yes to 1 and no to 2. So if I proceed to act on 2, through deceit, I am violating your consent, since if I had honestly told you 2, you would have denied consent and my taking of your $10 (even if I left you the box of sand) would clearly be theft.

  18. MAMNo Gravatar says:

    If fraud is okay then Enron should not have been prosecuted. After all all they did was lie to their customers convincing them to invest their money.

  19. Scott BieserNo Gravatar says:

    I am not arguing that fraud is “okay.” Obviously, it is highly undesirable to be defrauded, usually damaging to one’s property and sometimes also one’s person (as when a product is represented as being “safe” when it is not). What I’m saying is that no one has rigorously proven that fraud is a rights-violation.

    Brian, the problem with my ugly baby example is not that it was wrong but that it was illustrating a different point than the one you interpreted. Telling someone their baby is ugly is undesirable speech is comparable to fraud in that both are undesirable speech, but not in that they are similar in every way.

    Your argument that fraud is a rights-violation runs, firstly, into the problem that you don’t seem to believe in rights. Secondly, it improperly denies consent in the defrauded person. A person being defrauded clearly consents to the exchange, and is not being coerced — in many cases the defrauded person may strongly desire the exchange. It is only (usually) after the fact that the defrauded person regrets the exchange — but there are many cases not involving fraud that a buyer or seller may have remorse after the fact.

    Please note that I also am not arguing that fraud merits no social sanction whatsoever. We’re talking about the very narrow category of rights-violation (or in Brian’s terms, consent-denial), while there are many other forms of undesirable behavior which fall short of deserving violence as a response.

    • Brian DrakeNo Gravatar says:

      Scott,

      I didn’t say I don’t believe in rights (nor did I say I believe). I said “I’m not comfortable using [the term rights-violation] without further elaboration”.

      Please address my 1 and 2 example.

      “A person being defrauded clearly consents to the exchange” – I don’t agree they consent to THE exchange.

      If I consent to pay you $10 and tell you to reach into my wallet and extract $10, are you justified in taking the $20 next to it? No, I consented to THE exchange of $10. I did not consent to THE exchange of $20. The conditions weren’t “you have my consent to take my money” (which then could mean any money I found in your wallet), the conditions were “you have my consent to take this specific amount of my money” (only what was specified).

      In the apple box example, you consent to THE exchange of $10 for a box of fresh apples. You did NOT consent to THE exchange of $10 for a box of sand bags.

      Consenting to a particular exchange (THE exchange) doesn’t magically become consenting to all other exchanges (ANY exchange). When you obtain consent for 1, but act on 2, you are acting without consent.

      This has nothing to do with buyer’s remorse. Buyer’s remorse is when consent was actually given, but the anticipation of benefit was incorrect (an inherent risk since the future is unknowable and thus all anticipation is subject to error). I’m arguing that with fraud, consent is given to one set of conditions, and the fraud perpetrator acts on a different set of conditions, thus acting without consent.

      • Brian DrakeNo Gravatar says:

        “(which then could mean any money I found in your wallet)” in the above should read “(which then could mean any money you found in my wallet)”. This correction means what I wrote initially was…incorrect (another word for wrong). No big deal. :)

    • Rick DiMareNo Gravatar says:

      “Obviously, it is highly undesirable to be defrauded, usually damaging to one’s property and sometimes also one’s person (as when a product is represented as being “safe” when it is not). What I’m saying is that no one has rigorously proven that fraud is a rights-violation.”

      Scott, my conception of Lockean property theory is that fraud is violation of the property right you have in your body, the labor that proceeds from your body, and the property you’ve already acquired with your labor.

    • Wendy McElroyNo Gravatar says:

      Hello Scott: It is good to see you posting, my friend. And now on to my disagreement. :-)

      You wrote: “A person being defrauded clearly consents to the exchange, and is not being coerced — in many cases the defrauded person may strongly desire the exchange.” A person may have consented to a transaction and even documented consent with a signature…but that does not constitute a valid exchange if the property transferred is not what was described at the time of agreement. If I offer you a Picasso for which you pay me $X and I give you a hand-painting from my daughter instead, you have not received the ‘good’ for which you gave me $X. There has not been a valid transfer of property. I have taken your money without giving you what the contract promised and, so, you have every right to your money back and (perhaps) something more for your inconvenience e.g. in tracking me down.. You could also — and quite properly — ruin my reputation by making the fraudulent transaction a matter of public knowledge. In a libertarian society, I think reputation would be far more important than it currently is.

      • Scott BieserNo Gravatar says:

        If your daughter happens to use “Picasso” as an alias of some sort, then the drawing may indeed be “an original Picasso,” just not the particular Picasso I had in mind.

        Okay, seriously, a buyer’s expectation of the value he is acquiring may be wrong for a variety of reasons that do not invalidate the property transfer. Why is deceit on the part of the seller different from those other reasons?

        You are right in that a person who has been defrauded may expose the fraudster and ruin his reputation. That is a market solution to the market problem of fraud. It operates outside of any coercion-based justice system, anarchist or otherwise.

      • gdpNo Gravatar says:

        Yes, Wendy, that does seem to be the essence of “fraud:” Not that it was done through “lies,” but that it is a form of “Breach of Contract” during a Property Transfer.

        The defrauding party contracts to deliver a Picasso, and instead delivers a kindergarten watercolors. They contracted to deliver “A crate of Apples” and instead delivered a crate of sandbags.

        It is not the “lying” in the fraud that constitutes the “rights-violation” — it is that “fraud” involves an Act of Breach of Contract that is, for all practical purposes, equivalent to an Act of Theft.

        Where fraud becomes tricky is when the defrauding party has deliberately withheld or misrepresented information about the property-transfer being contracted that they know would have been a “Deal Breaker” had it been revealed, e.g., they contracted to transfer title to “Prime Farmland in Mississippi” and the land delivered is instead an unfarmable tract of swamp — because now the fraud involves issues of “asymmetric states of knowledge” that often cannot be objectively proved.

        One can (and the defrauding party often does) argue “caveat emptor” and that the receiving party failed to do their own “Due Diligence” with respect to the property item before signing the contract — e.g., they failed to hire an art appraiser to examine the alleged “Picasso” before signing for it, or open the crate of apples to inspect them before signing for the crate, or failed to have the soil of the “Prime Farmland” tested for water content and composition before signing for the land. However, it seems reasonable that the entire burden should not be on the purchaser to ensure that the property item is exactly as described in the contract of sale; for the bargain to be carried out “In Good Faith,” the article of property should have been accurately described and its state accurately warranted by the seller in the contract, without deliberate omission or misrepresentation of information regarding the property that would have been an “automatic deal breaker” when transacting with any reasonable purchaser.

        If the property that was transfered by Party B to Party A is not the property that Party B described in the contract, then an instance of Breach of Contract of the type known as “Fraud” has occurred — and the essence of what makes “Fraud” actionable is that unlike many lies, “Fraud” is “A lie that results in a Breach of Contract.” It is the Breach of Contract that makes Fraud “Actionable,” and not the lie per se.

        • We are all born with the equal power (natural right) to apprehend the truth of our perception of our environment (however far from perfect this may be). This right is violated by one who wilfully/neglectfully impairs another’s apprehension of the truth to their detriment. Whether it’s lying about the toxicity of a toadstool, false allegations of another’s misbehaviour, fraudulent property exchange, or plagiarism, the detriments may vary in severity, but they are real and, ceteris paribus, not vital to the person culpable.

        • Brian DrakeNo Gravatar says:

          gdp,

          I like your take on this. Breach of contract is a good way of putting it. I think it’s just another way of explaining violation of consent, since a contract is essentially a description of an agreement, that is the mutual granting of consent.

        • Scott BieserNo Gravatar says:

          Sure, fraud is a form of breach of contract. Is breach of contract a violation of natural rights, on the level of coercion or intimidation? That is the point I’m trying to get at. So far no one has argued why breach of contract or fraud deserves violent sanction, the same way coercion, intimidation or invasive appropriation do. All I’ve seen is hand-waving.

          • ShawnNo Gravatar says:

            Scott, if someone breaks into your home while you’re away and robs you blind, is that a violation of your rights? If you weren’t there, they didn’t commit an act of violence against you, but they did steal your property. Do they deserve “violent saction” as you call it? If your answer is “yes,” and fraud is a form of theft, then why does the fraudster not deserve it as well? Mind you, I’m not entirely sure what you mean by “violent sanction” and so am not sure that I advocate it at all, but it seems theft is theft, whether by simply jacking your stuff while you’re away, holding a gun to your head, or by breaching a contract.

            • Scott BieserNo Gravatar says:

              Breaking into my house (or car) to steal its contents is violence against my property, which I covered earlier with the term “invasive appropriation.”

              What I meant by “violent sanction,” is retaliatory force employed to compel an aggressor to make restitution to his victim. This might involve arrest and detention, or seizure of assets not bound to any contract between aggressor and victim (seizure of assets bound in a contract, where a contract has been breached, is not violent because it is done with the prior consent of the person whose assets are seized.)

              • Brian DrakeNo Gravatar says:

                “seizure of assets bound in a contract, where a contract has been breached, is not violent because it is done with the prior consent of the person whose assets are seized.”

                Scott, you are the one engaged in hand waiving. As I (and others) have demonstrated, in the case of fraud, there was no consent given. You have not addressed these arguments (that I can tell, this thread system can get confusing). You just keep asserting “consent was given”, when it was not, unless you operate under some odd concept where consent for condition 1 also equals consent for conditions 2, 3, 4, etc.

                “Breaking into my house (or car) to steal its contents is violence against my property”
                In the case of home robbery when no one is home, there doesn’t need to be any violence. I could simply pick your lock, which, when done correctly, is not damaging to your lock (in any perceivable way; raking your lock is a different story). I don’t have to break anything in your house. Just take your TV and walk out the door. To call this “violence” is an odd use of the term.

                The way I conceive of the just use of violence in obtaining restitution is that if you have something that belongs to me (object X), I am justified to take action to re-acquire that object. If you try to physically impede me, you are the one initiating violence, since I am justified in retrieving what is mine and you are not justified in keeping it from me. Thus the violence I employ is defensive, since your employment of physical resistance to my just action of regaining my property is an act of aggression.

          • Brian DrakeNo Gravatar says:

            BTW, how are the avatar icons assigned? Why are most of them angry or weird looking? Most of the time, I’m not irate like my avatar would imply. I’m generally fairly easy going. That is until someone advocates enslaving me to get what they want. Not so genial then :)

  20. Scott BieserNo Gravatar says:

    Second sentence of second paragraph above should read,
    “Telling someone their baby is ugly is comparable to fraud in that both are undesirable speech, but not in that they are similar in every way (or any other way).”

  21. MAMNo Gravatar says:

    I don’t believe in rights. They’re pretty silly. Frankly I think I’ll go with the fuck with me and I kill you approach rather than the whine about rights approach.

    I’ll probably be dead before I’m thirty but I can’t say that this world is all that desirable anyway.

  22. Eric ShearNo Gravatar says:

    Here’s something I’ve been wrestling with.

    I have an invention that so far exists only on paper. It’s meant for scuba divers and spacesuits. It has taken a fair bit of money so far to develop and will likely take a lot more before it’s ready for commercialization.

    I do not like the idea of patents because they prevent anyone who comes up with the exact same invention (without stealing from me) from ever using it for 20 years after the patent is issued. I have taken steps to protect my idea from being stolen, but I do not want to stop anyone who invents the exact same thing independently.

    Since I have invested some of my money into developing the thing, I would naturally like a healthy ROI on the investment. Since so many of you seem to have strong opinions on the topic, what would you advise my IP strategy (or lack of) to be without patents? For now, I am sticking to the non-disclosure agreement, but this has limitations.

    Thank you.

    • Scott BieserNo Gravatar says:

      MAM’s approach might work, if you have sufficient arms. It wouldn’t necessarily be libertarian, but it might work.

      Otherwise, without patent protection all you have are contracts and your ability to “black-box” the technology. My web-comic, QUANTUM VIBE, is set in a multi-world human society with no patent system. It’s hero is a wily inventor who must go to considerable lengths to protect his investments in his inventions. Sometimes he succeeds, other times he fails. But his efforts make for some interesting drama, I hope.

      • Sometimes, in today’s patent-entangled world, inventors fail too. Gasp.

        and sometimes they fail because their competitors use patents to stop them. In fact, this happens quite often. And sometimes people never bother innovating in a given patent-thicketed area at all, for obvious reasons. Look at the patent battles raging worldwide, with billions of dollars spent annually on legal fees alone, between corporate oligopolistic giants (oligopolistic because of the IP systems favored by IP-libertarians) like Apple, Microsoft, Google/Motorola, Samsung, RIM …. what small inventor would dare enter the field here? He would be sued out of existence. He would have no stash of patents to countersue with, and no treasure trove of cash to afford the literally millions of dollars of legal fees needed to defend himself.

        The very idea that any libertarian could ever support any form of patent or copyright whatsoever is breathtaking.

    • Brian DrakeNo Gravatar says:

      Hi Eric,

      I’m not a lawyer, so I have no idea what would hold up in the current court system. However, to be consistent with libertarianism, I would suggest your non-disclosure contract specify the damages to be paid should the person leak the info. And to be in line with libertarian contract theory, I would also specify what terms of repayment would be required if the full amount of damages was unable to be paid all at once. Something along the lines of a wage/income garnishment.

      Something like:
      “If I break this NDA, I will owe the inventor $100,000. Should I be unable to pay him that immediately upon conviction of breaching this contract, I will pay him 10% of all income I receive until the full amount is paid.”

      I’ve recently been wrestling with Kinsella’s views on contract theory, and while I haven’t fully concluded, I do feel confident that if you can explicitly define the various scenarios, leaving nothing to assumption, then the contract, if agreed to, would have the desired result.

      Again, I don’t know if a state court would agree with your contract, so this is just a suggestion.

      I too have wrestled with the idea of how to reject legal IP protection and still collaborate with people without being screwed over. The only “IP” I believe in are the ideas I’ve not told anyone. Once you share an idea, you better have an air-tight contract involved (so that you get damages from the contract breaker, as you justly have no claim against 3rd parties), or already be so close to market that you’ll still have first-to-market advantage.

      Brian

      • Brian,

        So, you have a ‘contract’ thus: A and B agree that if A discloses a secret X to B, and if B discloses secret X to anyone else within period P, B shall pay A $100,000. Otherwise, no payment occurs.

        How are you going to identify secret X in the contract?

        $100,000 sounds like a penalty to me. Where’s the equity in this contract?

        As to detecting and proving disclosure, well, that’s going to be tricky.

        • gdpNo Gravatar says:

          In pre-computer times, “Secret X” could be deposited in a sealed envelope with an attorney, notary, arbitrator, or other specified adjudicating 3rd party. If Party A claims that Party B has violated the terms of the agreement, the sealed envelope can be opened, and it is then up to the specified adjudicator and adjudication process to determine if the information Party B revealed is accurately described by the contents of the sealed document. Since Party A’s secret has allegedly already been revealed by Party B, opening the sealed document during the adjudication process incurs no further loss to Party A (modulo cost of adjudication), since the alleged “secret” is already out. Individually protecting multiple secrets will require multiple sealed documents. There will therefore be a trade-off between the expense of protection and the granularity of protection, e.g., if multiple secrets are contained in the same sealed document, it is not possible to adjudicate on one breached secret without revealing all of them.

          In post-computer times, “Secret X” is encrypted directly into the text of the contract using a public key for Party A, the encrypted secret is digitally signed using a private key known only to Party B, and the public keys of Party A and Party B are incorporated into the text of the contract. Upon alleged Breach of Contract, Party A opens the encrypted portion of the contract using their private key, the fact that Party B signed the encrypted portion of the contract is verified using B’s public key, and the contents of the encrypted section of the contract is compared to what Party B revealed, allegedly in breach of contract. Incorporation of multiple individually encrypted secrets into the contract is not significantly harder or more expensive than a single secret, and sections governing different secrets can be individually decrypted without simultaneously decrypting the secrets that were not allegedly breached.

          See e.g. http://en.wikipedia.org/wiki/Asymmetric_key_algorithm

          • Ok, gdp,

            There are two situations to consider:

            1) B has already been made privy to the secret X, is consequently at liberty to disclose it, but for some peculiar reason wishes to make a one-sided bet that he won’t disclose it, i.e. if he discloses it he pays $100,000, but if he doesn’t, he wins $0.

            2) B is not privy to the secret X, but is willing to make some kind of deal with A in order to persuade A to disclose it to him.

            My previous comment concerned the second situation. You appear to be concerned with the first situation (but where secret X is obfuscated within the contract).

            • Brian DrakeNo Gravatar says:

              GDP, I should have read your post first before responding. Good stuff you wrote.

              Crosbie, I think in some cases, an inventor/idea originator is going to divulge a very general concept in order to persuade the potential secret recipient the secret is worth knowing. “I’ve invented a new way to do X” is enough to intrigue someone, but not enough to actually “steal” the idea. Then of course there are cases where employment is also on the table. Person A hires person B as an employee/contractor, and the NDA (with the penalty clause) is a pre-requisite for the employment to be offered. E.g., you want to work at Coca Cola, you sign this NDA saying you’ll owe us a lot of money if you divulge the recipe. If the NDA is more than you want to commit to, you don’t get the job.

            • gdpNo Gravatar says:

              No, I am discussing situation (2.), and am specifically addressing your question RE: “How are you going to identify secret X in the contract?” I have provided you with two mechanisms to objectively secure the contents of “Secret X” being protected by the terms of the contract without prematurely revealing “Secret X” to Party B prior to Party B agreeing to fulfill their part in the Contract, and that would support adjudication of a Breach of the Contract without the adjudication degenerating into “Word of Party A vs. Word of Party B.”

              Businesspersons have been dealing with this quandary for many centuries, and have developed various means of dealing with “asymmetry of knowledge” and “asymmetry of ability/power.” Some of these various mechanism are “Trade Secrets,” “Non-Disclosure Agreements,” “Penalty Clauses,” “Escrow Accounts,” &c., &c. Ultimately, all such mechanisms boil down to attempting to provide some form of “insurance” backing up a transaction between parties who do not fully trust each other, but who are reputedly honorable businessparties of good will who both wish to remain in business.

              As for the out-and-out crooks who will not abide by the terms of any contract and who plan to skip town without delivering what they have promised, there is relatively little one can do to hold such thieves to an agreement even under the current “Weberian State” system based on granting a “Monopoly on Violence” to a government. The Agents of a State cannot protect you from fraud; the most they can do is carry out vengeance and vendetta against fraudsters — and they rarely succeed at doing even that.

              An honorable businessparty who values their reputation is unlikely to cheat you under any legal system. And a fraudster is likewise likely to try to cheat you under any legal system. Contracts can provide some additional insurance to each party, but ultimately depend on the willingness of both parties to abide by the terms they have contracted to. And neither party is exempt from doing “Due Diligence,” and each must remember the ancient adage caveat emptor.

              And if you find yourself wanting to incorporate elaborate insurance mechanisms into a contract before you are willing to do business with someone — or if you find them demanding elaborate insurance mechanisms from you before they will do business with you, then perhaps you are trying to do business with a party you would be better off not trying to do business with…

              • gdp,

                So the ‘contract’ might go something like this:

                “A has a document containing a secret named X, and the document’s hash code is H. B deposits $100k on escrow. If it can be proven within a month by A that the secret X was disclosed by B to any party prior to a) A’s direct/indirect disclosure to that party, or b) one year from this date, then the $100k becomes A’s property as a consequence. Otherwise, after 13 months, it is refunded to B”

                So, B may or may not receive X, and B has no way of knowing what X is prior to making the agreement (which may not be the secret B’s hoping to receive), which means B is making an agreement where his property is subject to a condition he isn’t informed of in advance, and may never be informed of.

                1) Is this equitable? (whether or not it should be)

                2) Can one truly agree to a ‘contract’ which has hidden clauses (able to be invoked by one or both parties)?

        • Brian DrakeNo Gravatar says:

          Crosby,

          “How are you going to identify secret X in the contract?”

          Again, I would think it’s best to err on the side of explicit. “X is a digital file with this name, filesize, and creation date that I will provide you once you agree to the contract.”

          “$100,000 sounds like a penalty to me. Where’s the equity in this contract?”

          It is absolutely a penalty, per se (the purpose being to create negative incentive for breaking the contract). Where’s the equity? I don’t understand. As long as the other person agrees to the terms, that’s all the “equity” you need. Value is subjective. No agreement is ever “equal”. All that matters is mutual consent.

          “As to detecting and proving disclosure, well, that’s going to be tricky.”

          Maybe. Let’s not engage the nirvana fallacy. Proving disclosure can be tricky in any legal regime (including current one). Film studios often watermark a script with the recipient’s name. Thus if the script is leaked, it’s sometime possible to use this physical evidence to indicate who the leaker was (intentional or through negligence). Digital watermarks could accomplish a similar thing. How does the recipient (B) of the secret protect against the secret-originator (A) leaking the idea to frame B in order to essentially steal the “damage amount” from B? Put something in the contract that handles this in a way that is agreeable to both parties.

          I feel confident predicting that without a legal regime automatically protecting secrets, competition and trial and error will help solve these problems. If there’s a market for finding a way to form NDAs that have actual “bite” to them, then I trust the market to provide solutions. My central-planning brain just ain’t up to the task, but I feel like some of my guesses are close enough that I’m confident it’s not an unsolvable problem.

          • Brian,

            All contracts/agreements are supposed to be voluntary (informed) and equitable exchanges.

            A contract is invalid (not an agreement) if it is incomplete (missing information), e.g. “B pays A $100k if condition C is met, where C is yet to be specified (B disclosing a yet to be specified secret)”.

            Contracts are not means of subjecting the gullible to fraud, bondage (loss of liberty), nor punishments (penalties upon certain conditions) – although this may be the case in practice today.

            NB If A voluntarily tells B secret X, B cannot subsequently be said to have stolen secret X. In other words, either you keep your invention to yourself and enjoy your right to prosecute thieves, or you tell it to others and enjoy their liberty to disclose it further. You can’t have it both ways – unless you persuade the state to grant you a monopoly (or to permit you to abridge others’ liberty).

            • Brian DrakeNo Gravatar says:

              Crosby,

              “All contracts/agreements are supposed to be voluntary (informed) and equitable exchanges.”

              Supposed to be according to who? I don’t agree with this at all. Voluntary, yes. Informed, not required. Equitable, doesn’t exist (interpersonal comparison of utility is impossible).

              Fraud is active misrepresentation. I agree that negates consent. But “informed” is not a corollary requirement. If I don’t actively mislead you, and you agree to an exchange/contract without knowing the details, that’s your fault. You are not entitled to information. Caveat emptor. Of course, closed-mouthed salespeople don’t tend to convince a lot of customers. But if I say “$10 for this box” and you just assume it’s full of fresh apples, tough luck to you when you find it’s sand bags. If I never misrepresented the box, you can’t claim breach of contract.

              “Contracts are not means of subjecting the gullible to fraud, bondage (loss of liberty), nor punishments (penalties upon certain conditions) – although this may be the case in practice today.”

              Why can’t you specify a penalty in a contract? If anything, this is more just, since the penalty is something you agree to ahead of time as opposed to it being determined after the fact. Because of the impossibility of equating value (which is subjective), an after-the-fact judgment by an arbiter is necessarily imperfect and thus justice cannot be perfectly attained (since humans are not omniscient). But if you agree to the “penalty” ahead of time, that is perfectly just, because you agreed to it. If you don’t agree it is just, you won’t agree to the contract and thus forego whatever benefit you otherwise hoped to attain (and likewise, the overly punitive contract offerer has lost a potential customer).

              “NB If A voluntarily tells B secret X, B cannot subsequently be said to have stolen secret X. In other words, either you keep your invention to yourself and enjoy your right to prosecute thieves, or you tell it to others and enjoy their liberty to disclose it further. You can’t have it both ways – unless you persuade the state to grant you a monopoly (or to permit you to abridge others’ liberty).”

              I don’t accept this because it smacks of 3rd party interference with contract. If 2 parties rightly own the property in question in a contract, I don’t see why they may not agree to ANY terms they want. For a 3rd party to then say “no, your contract is invalid because my philosophy says so” is an unjust interference.

              Thus if I own my body (which contains the secret, and must be employed to tell B the secret), and B owns their hand (part of their body), and we both agree explicitly that if B tells the secret, I get to cut off his hand, I don’t see what business it is of yours. I don’t need a state grant, I just need a machete.

              This is the same problem I have with mutualists. If mutualists want to not recognize contracts involving “landlordism” amongst themselves, great. But if they want to invalidate a contract that explicitly sets up a condition of “landlordism” and that both parties agreed to, then I consider this an act of agression because the only people whose damn business the contract is are those party to it. I don’t foresee contract enforcement companies (arbiters) that directly contradict the desires of their clients (to have their contracts enforced, as written) by imposing their own philosophies as being very successful in the market, since the path to success in the market is pleasing customers, not pissing them off.

              Now, I am open to an argument I recently encountered from Kinsella that you should have the option to change your mind, to withdraw your consent in regards to your body since he argues your body is unalienable while intact. So if that’s true (not decided yet, personally), then that’s why you would put alienable property into the contract as well. “If you tell my secret, I cut off your hand. If you change your mind about losing your hand, you owe me $100,000. If you can’t pay $100,000, you owe me 10% of all income until you do. If you receive income that you don’t pay me 10% of, you are stealing that money and have no recourse against me if I physically retrieve that stolen money from you.”

              If someone signed such a contract, I fail to see how a 3rd party would be justified in nullifying it.

    • Eric,

      You say: “I do not like the idea of patents because they prevent anyone who comes up with the exact same invention (without stealing from me) from ever using it for 20 years after the patent is issued. I have taken steps to protect my idea from being stolen, but I do not want to stop anyone who invents the exact same thing independently.”

      This is admirable but there is also nothing wrong with people copying or using a variant of your design once you make it public by selling a product. This is just free market competition. Calling copying “stealing” presupposes that something owned is stolen–the idea–and that presupposes that patent law is legitimate, because it is based on the idea that ideas are ownable things. This is question-begging, not to mention wrong.

      “Since I have invested some of my money into developing the thing, I would naturally like a healthy ROI on the investment. Since so many of you seem to have strong opinions on the topic, what would you advise my IP strategy (or lack of) to be without patents? For now, I am sticking to the non-disclosure agreement, but this has limitations.”

      In my view the way the market should work in the field of inventions is exactly the same as how it should work for anything else in the free market: you sell a product for a profit, and if you are successful the unnatural, temporary profits you make send signals via the price system to others telling them “here is something consumers want” and you of course draw competitors and your profit margin then starts to be reduced. This is a natural part of the market process. The thing with inventions is that some say that it’s “too easy” to compete and your profits get eroded “too quickly.” Of course it’s easy to see there is no objective way to draw a line between “permissible” competition and this type. There is nothing wrong with either.

      My view is that if you want to sell your products the price of doing so is usually that you have to reveal to the public your product designs; in fact usually you will trumpet and highlight them to attract customers and to explain what is great and new about your products. Then eventually if you are successful others will compete. In the meantime you have a headstart advantage and you have a reputation and a brand and you can keep on improving if you want to retain or acquire new customers. Ie. just what every other entrepreneur has to do. Whether you ought to employ NDAs is a merely prudential matter–sure, in some cases it’s useful.

      Ultimately it’s up to the entrpreneur to anticipate what type of competition is possible and to find ways to come up with a viable business model that can profit in the face of the type of competition expected for his industry.

      I have some blog posts up at http://www.c4sif.org and also Masnick has some case studies at http://www.techdirt.com that show various ways people can try to profit in an IP free world, but these are not exhaustive nor can we really predict what a free society will look like nor does the anti-IP case rest on these examples being right.

      • Eric ShearNo Gravatar says:

        Thank you Stephan for your input.

        What you said about “putting it out first” sounds nice in theory. But I have a Facebook friend who has his own business selling a technology that he invented himself. The last time he did that, he did not patent it and consequently got screwed by the people who he tried to license his idea to. In other words, they copied his idea and made a profit out of it and he did not have the money to take them to court. Because of that, my friend was very adamant that I get a patent.

        Yet, it seems as though it would have happened anyway if he had the patent. Instead of not having enough money to take the copiers to court, he would have had much less money (a patent can cost a few thousand dollars minimum).

        And thanks for the great idea, GDP!

        • “What you said about “putting it out first” sounds nice in theory. But I have a Facebook friend who has his own business selling a technology that he invented himself. The last time he did that, he did not patent it and consequently got screwed by the people who he tried to license his idea to.”

          I don’t know what “got screwed” means–all that should be prohibited is a rights violation. People get “screwed” in other senses all the time in society.

          ” In other words, they copied his idea and made a profit out of it and he did not have the money to take them to court.”

          Good! Because there is nothing wrong with copying others and “making a profit”. Libertarians are not against copying, learning, emulation, competing, nor are we against “making a profit.”

          “Because of that, my friend was very adamant that I get a patent.”

          How would “getting a patent” give you enough money to “take them to court”?

          “Yet, it seems as though it would have happened anyway if he had the patent. Instead of not having enough money to take the copiers to court, he would have had much less money (a patent can cost a few thousand dollars minimum).”

          Yes, usually $8k at least, usually more

          “And thanks for the great idea, GDP!”

          you lost me. gdp?

          • ShawnNo Gravatar says:

            Stephan,

            I think that statement was addressed to the poster here called “gdp.”

            • Eric ShearNo Gravatar says:

              Yes, GDP for his encrypted document idea.

              I also wanted to ask you, Stephan, what would happen if someone learned how my tech works, patented it first, and then sued me for patent infringement?

              • “I also wanted to ask you, Stephan, what would happen if someone learned how my tech works, patented it first, and then sued me for patent infringement?”

                If they learned it from you they are not the inventor. So they cannot patent it.

              • Wendy McElroyNo Gravatar says:

                Eric: If your concern is being able to prove that you were indeed the inventor, then you should write up the substance of your invention, mail it to yourself and do not open the envelop. The time stamp on the unopened envelop will establish your claim and, so, the other fellow cannot legally shut you out of using your invention.

                • Yes, that technique is called the “poor man’s patent.” You could also just publish it on a blog or something, if you want to make sure the idea is public to serve as a prior-art bar and/or to establish your inventorship.

  23. Ken PrazakNo Gravatar says:

    Hi Wendy,

    I, too, struggle with this concept. I know you are one of intellectually honest anarchists, and thus won’t fly off the handle as some might do by my making this observation. It seems to me, that for some anarchists, the concept of anarchy comes first, and when pondering intellectual property, can’t see how it fits in an anarchistic system. So, they come up with an argument to justify their belief system. However, for a limited government libertarian, intellectual property may have its place. Chicken and egg question? Which comes first the belief in anarchism, or the notion that intellectual property doesn’t exist. I’m still having a hard to understanding how it is ok for somebody to economically benefit from some piece of writing, music or art that I produce, at the expense of the compensation not coming to me.

    • StormNo Gravatar says:

      Ken, if you build a house, and sell it to me, then I turn around and sell it for a great deal more, have I denied you anything that was yours? If not, then how could that be the case with regard to some idea?

      • Ken PrazakNo Gravatar says:

        No. That is not what I am talking about. What if I submit a script for a play, movie or musical to a producer. He changes one scene gives me no credit, and makes it a hit. Yes, he certainly does deserve some of the credit for actually producing, but it seems to me, from a layman’s viewpoint–and every nonlibertarian I have talked to about this, that I should get some remuneration and credit, too.

        • gdpNo Gravatar says:

          Did you have a contract (e.g., non-disclosure agreement) with the Producer before you showed him the play? And did it include a penalty clause for producing a play with a script that was “substantially similar” to your script?

          Note that the key words in your reply are “Ought to get remuneration.” “Ought to get” is tantamount to invoking “Labor Theory of Value.”

          Unless you had a contract with the producer restricting their ability to use your script or scripts that were “substantially similar” (assuming that “substantially similar” can be objectively defined, which has yet to be clearly established), it is not clear that you have established a “right” whose violations can be objectively enforced — and as Wendy has argued, it’s not clear that even such contracts can be enforced.

          That the Producer used “ideas” from your script without paying you or even crediting you is certainly “discourteous.” But absent an objective and enforceable contract enjoining the producer from using your “ideas” or ideas that are “substantially similar” to them without compensation after the Producer has seen your script (assuming such a contact can be written and enforced, which itself Wendy is questioning in her article), verbiage about “Ought to deserve remuneration” appears to be justifiable only by appeal to the axioms of “Marxist Theory of Value,” not Austrian “Human Action.”

          • Ken PrazakNo Gravatar says:

            gdp,

            My understanding of what differentiates Marxist labor theory of value and Austrian human action is that from the Austrian viewpoint, what gives ones productive effort value in the market place is precisely what the value the marketplace puts on that instead of some intrinsic or arbitrary assignation on the value of ones labor by some bureaucrat or “law.” I am not suggesting that by virtue of the fact someone has written a screenplay putting in years of work gives it value. I am saying that if someone else takes that productive effort to market and fraudulently publishes it as his own, he has, in effect stolen something of value. Now, I may be able to concede that one doesn’t need copyright protection in order to receive justice. Fraud, or theft by deception may be appropriate here.

            My concern is to try to convince average Joe out there that theft of productive work as defined in the marketplace, is not in effect, stolen, and that there is a rightful remedy in the court system. Until, we can convince the average Joe out there in layman’s terms, that we have a system in place to protect that type of theft, then I would suggest that the push to eliminate the concept of IP will fail.

            Concerning the use of the word “should”. Well, that implies a belief in natural rights which I know some here don’t adhere to. In a natural rights environment, murder should not be allowed. It is immoral. It violates the basic natural right to ones own life. So is true with theft. Theft should not be allowed. I think it behoove those who just denounce the implicit beliefs of natural rights just to state their opinion on that, and leave it at that–that two people can differ on their use of “should” depending on their foundational philosophy. I think it is a matter of respect.

            • Brian DrakeNo Gravatar says:

              Ken,

              “My concern is to try to convince average Joe out there that theft of productive work as defined in the marketplace, is not in effect, stolen, and that there is a rightful remedy in the court system. Until, we can convince the average Joe out there in layman’s terms, that we have a system in place to protect that type of theft, then I would suggest that the push to eliminate the concept of IP will fail.”

              The opinions/convictions of the “average Joe” do not have any direct connection to statutory law. It is true, all rulers with any sense will try to avoid open rebellion and thus will try to calibrate their oppression to a point that is tolerated by the majority. But this isn’t the same as some sort of genuine responsiveness to democratic control. I like the way someone put it: democracy is the delusion that you and I combined have twice the political influence as the CEO of Goldman Sachs. So the view of the average Joe in regards to IP laws is not directly relevant. Even if a significant majority adopted anti-IP views, it’s not a given the laws would change. There’s always the issue of concentrated benefits vs dispersed costs. IP would have to be an issue the significant majority was very passionate about, and one that the rulers saw could potentially lead to dangerous unrest, for the laws to change. And even then, it’s unlikely the majority would be engaged and informed enough to differentiate between a true reform, and a nominal one that sated their passion but did little to truly change anything.

              Second, I think observation shows that we don’t have to convince a growing number of “average Joes” about the anti-IP position. Rather, it is the pro-IP position that finds itself needing to more and more try to convince the public. Think of all those stupid propaganda videos Hollywood puts out: “You wouldn’t steal a car would you? Downloading a movie is the same as stealing a car.” I think it’s especially the younger generations that are starting to recognize there’s something not-legit about IP. No, that doesn’t mean they’re adopting a coherent philosophical understanding of the issue, but I think the trend is moving the right direction.

              • Ken PrazakNo Gravatar says:

                Brian, imo, in order to effect change, first, one must win the intellectual argument. Then one must immerse the argument into the popular culture (that in essence is what i mean by average Joe), and then you can win politically.

    • Brian DrakeNo Gravatar says:

      Ken,

      Have you read Stephan Kinsella’s “Against Intellectual Property”? You can Google to find a free PDF copy (Kinsella approves such distribution).

      I would challenge you to read that and then provide rigorous refutation before you promote such a dismissive view of the anti-IP position.

      Because, while not all anti-IP people are the same, Kinsella and those like him have come to their conclusions by reasoning from first principles. From taking things to their logical conclusions. Their thinking is clearly laid out, open to refutation. I think it’s unfounded to be so dismissive as to attribute to them intellectual laziness in service to some other agenda.

      But on the other hand, for an anarchist, anarchy does come first (or for libertarians, like myself, liberty comes first, which is why we reject the state and are anarchists). Those of use who reject the idea that some people have the right to rule over others, do evaluate ideas with the test “would implementing this idea require rulers”; rejecting those that would.

      I don’t see the flaw in this approach either. If it is truly not possible to justify the rule of some men over others, then it follows that propositions that require rulers are also unjust.

      And then, who cares about motivation? Is the argument sound or not? I love the word C.S. Lewis (attribution) coined for this specious tactic: “bulverism” (when you attack motives, rather than engage the argument). From what I understand of your post, you’re just engaging in bulversim. Bulverism user you! (I love the sound of that word :) ) Bulverist?

      You admiringly use the term “intellectually honest”, and then use “limited government libertarian”. I have never found anyone able to intellectually, honestly describe how one could coherently be an advocate of liberty (self-ownership – where you have final authority over your body and your just acquired property) and also an advocate of government (other-ownership – where someone else has final-authority over your body and your property). “limited government libertarian” is a contradiction in terms the same way “pro-slavery abolitionist” is. Until someone does what no one has yet done in history (proven how liberty and government are compatible), I don’t see how anyone labeling themselves a “limited government libertarian” is intellectually honest. Not all anarchists are intellectually honest, but it was intellectual honesty that brought many of us to the conclusion the state is unjustified.

      “belief in anarchism” is an unmerited slight. Sure, some may be believers. Rigorous intellectual anarchists (like Wendy, that I’ve observed) aren’t “believers”. We are convinced of anarchism, because the logic and evidence are convincing.

      “I’m still having a hard to understanding how it is ok for somebody to economically benefit from some piece of writing, music or art that I produce, at the expense of the compensation not coming to me.” – Another example of the labor theory of entitlement, a crass variant of the thoroughly debunked labor theory of value. Compensation is a word involving trade. No other person has an obligation to trade with you. There is no “expense of the compensation not coming to [you]” because, when you produce art/music/writing, there is no compensation coming to you. You have to first convince someone else to consent to trade before you obtain any “compensation”. Working hard to write a song doesn’t entitle you to anything. If you can’t convince someone to pay you for a song you wrote, and I can, even for a song you wrote, I’ve not stolen the compensation from you. It was never yours.

      I too think intellectual honesty is a good thing. So I encourage you to reject the unjustified notion that some may rule others, and reject imaginary property, and join our ranks :)

      Brian

    • Wendy McElroyNo Gravatar says:

      Hello Ken: I’m sorry to have been AWOL yesterday but time got away from me. The chicken and the egg problem is interesting in its own right but it doesn’t explain my own journey toward IP. My doubts began with the issue of patents, which are often handled quite differently than copyright. For example, Henry George rejected patents even though he championed copyright. The reason: patents involve claiming jurisdiction over a relationship of nature — e.g. how two chemicals combine — and these discoveries are often nigh well inevitable given the state of progress in various fields. Thus it is not uncommon for 2 people to independently discover the same “patentable” item at nearly the same moment, whereas it is not possible for 2 people to “discover” Atlas Shrugged…simultaneously or not. .

      This crack in my belief in IP was separate from my being an anarchist or minarchist. It took me months to be persuaded away from copyright, basically by reading Benjamin Tucker and other 19th century individualist anarchists. Until then, I had cleaved to Lysander Spooner’s view of Intellectual Property. Oddly, Spooner himself pushed me toward Tucker by the unreasonableness of his position. Spooner believed that IP could be owned absolutely and in perpetuity, with *no* limitations. It seemed similar to the Galambos position by which you owed $X to a word’s originator whenever you used that word. And, so, Spooner’s extremism was the first crack I felt in the copyright issue. Again, it had nothing to do with being anarchist.

      There are many fine anarchists (and minarchists) who believe in IP — Scott Beiser is an example — so I don’t think the issue can be broken down along those lines. Of course, I am speaking for myself, and others may have taken an entirely different journey re: IP.

      • Ken PrazakNo Gravatar says:

        Wendy, First, thanks for the courteous, rational reply.What you say and what I have read of Mr. Kinsella’s work makes a lot of sense. I am almost there. What you say about Spooner’s position being so strident hits home. That is why I am totally turned off by the approach taken by the likes of Brian, who basically assumes anyone who doesn’t agree with him is obviously an idiot. To not see that there is nuance and gray areas in these matters, is, imo, well, at the very least, unproductive. Yes, I have read Spooner and Kinsella and had various anarchists on my radio show.

        It occurs to me that under any system of governance, that since human beings are not perfect, some will choose (what I would call) an immoral pathway in their lives. In other words, there will be the initiation of force in any system. The question we need to ask ourselves is: in which system can we minimize the initiation of force the most? Today, there is no question in my mind that an anarchic system would be favorable compared to what we have today. But that doesn’t necessarily mean that some very limited governmental system might not be more efficacious to this than anarchy. My fear is that anarchy could very well develop into a Hatfield McCoy syndrome that devolves into waring factions. I think I am with Thoreau on this, that when the human race is ready for it, no government at all is the best solution. But I don’t think we are quite there yet. Yet, because I believe in the non aggression principle, I call myself a voluntaryist, but not an anarchist.

        What I think some anarchists either fail to realize or purposefully ignore is that there is no perfect world and unfortunately, in any world, our wonderful principle we all believe in is going to be violated. And therefore a respect should be given to all who would advocate the minimization of the initiation of force regardless if he or she is a minarchist or an anarchist. I certainly respect the anarchist position even if I am not in 100% agreement. I would hope for the same in return.

        And btw, I certainly meant no offense in regards to my question as to what came first. And I know you took no offense. And I do understand that it would be logically fallacious to condemn a viewpoint because of the manner instead of the logic of getting to that viewpoint. I do think it is a logical question though. Looking at Ayn Rand’s life, living first hand under Communist rule, one can certainly understand her hawkish viewpoint against Communist regimes, although in hindsight, and considering her principles, one might have hoped for a more non-interventionist approach from her and her followers.

        • Brian DrakeNo Gravatar says:

          Ken,

          “by the likes of Brian, who basically assumes anyone who doesn’t agree with him is obviously an idiot.”

          Another unjustified accusation. Please show where in my comments I assume anything, and where I declare that those who don’t agree with my “assumptions” are idiots. I have asked multiple times for you to actually explain things, to engage my arguments, to PROVE me wrong. You just go around casting accusations without backing them with anything. This is not the behavior of an honest person.

          “I call myself a voluntaryist, but not an anarchist.”

          And yet you also refer to yourself as a minarchist (or at least strongly imply that). Please explain how minarchy and voluntaryism are compatible. If you assert this QUESTION is an “assumption you are an idiot”, you are a liar. Like all my previous challenges, I’m asking you a question, giving you a chance to correct me if I’m wrong. Just respond to the question. I’m not assuming anything. I have concluded the idea of a state is incompatible with a society of voluntary human interactions (what all voluntaryists I’ve ever met/read claim to want – I myself prefer voluntarist, since I think it slides of the tongue better). I would welcome any coherent argument that disproves my conclusion and shows how a state is compatible with voluntaryism.

          “What I think some anarchists either fail to realize or purposefully ignore is that there is no perfect world and unfortunately, in any world, our wonderful principle we all believe in is going to be violated.”

          This is an oft deployed strawman. Please cite an actual anarchist who believes this. Otherwise, another unjustified accusation.

          “And therefore a respect should be given to all who would advocate the minimization of the initiation of force regardless if he or she is a minarchist or an anarchist.”

          Here’s the difference (btw, I’m going to use the term “anarchist” to refer to “libertarian anarchist” meaning the libertarian variant of anarchism, not the anarchist variant of libertarianism, which I’m not convinced exists): a minarchist actually advocates the initiation of force, the anarchist doesn’t. While the anarchist certainly recognizes that some people will still initiate force absent a state, he refuses to do so himself (responsive force, such as self-defense is not the same as initiated force). The minarchist actually champions the initiation of force. To claim that you want to minimize something is nice, but then when you actually contribute to it, I fail to see what distinguishes you from anyone else using initiated force to get what they want. Most people want to minimize initiated force: “stop resisting me and do what I want and I’ll stop hitting you.”, nothing special about that.

          Ken, in my first response to you, (as I’ve already noted) I used smiley faces to attempt to convey my friendly attitude in your case. I used phrases like “Bulverism user you! (I love the sound of that word :) ) Bulverist?” which I thought would clearly demonstrate a teasing attitude. I ended my post with a encouragement and a smilely face. I never called you an idiot. I never said I assumed anything about you. At each step I asked you to provide counter-arguments. In light of this, I really can’t help but conclude that you have CHOSEN to take offense to that post. And again, it seems an obvious conclusion, since you ignored my attempts to convey friendliness, and refused to actually engage my arguments, that your chosen offense is simply because you don’t like being told you’re wrong, not a trait of a person worthy to any cause. I welcome correction to that, but I don’t have much hope based on your conduct so far.

          Brian

          • Brian DrakeNo Gravatar says:

            Clarification:

            By “not the anarchist variant of libertarianism, which I’m not convinced exists”, I mean that I’m not convinced that anarchism is just a variant (one among others) of libertarianism since I’m not convinced that there are “archist” variants of libertarianism.

          • Ken PrazakNo Gravatar says:

            I am not just referring to comments you have made to me, but to others on this thread, well specifically Rick Dimare.

            “I write this last reply in hopes that my abrasion may at least cause you to start to doubt, yourself. You probably don’t notice this, but you operate in a bubble. You do not engage the arguments of others, you simply employ red herring arguments to continually evade any direct dealing with the arguments presented you. This is indeed a very effective method to insulate yourself from ever having to critically think about your own positions. Critically re-evaluating your positions is admittedly an often uncomfortable task, and so it is understandable why most people avoid this discomfort. However, it is near guaranteed that such a tactic will never result in your enlightenment, but will always keep you far from the truth. The only person you are deceiving is yourself. Perhaps you are fine with this. If not, you still have the chance to redeem yourself, humbly admit you haven’t the slightest clue of what you’re talking about, and then invest time and effort developing critical thinking skills. Skills that will enable you to actually engage arguments, find their flaws, reject those that are in error, and embrace those that are true (even when that’s uncomfortable). This is the only path to truth. I hope you choose to take it.”

            This whole post reeks of arrogance and dismissive of Rick’s intellect.

            “You’re a fraction of a millimeter away from renouncing the use/advocacy of violence against innocent people to get what you want, and you stop cuz you got your feelings hurt?! Wow, you’re right, we really need to coddle people like you until you join our club.”

            “Newsflash. It’s not a club. It’s a moral principle. Using violence against the innocent to get what you want is wrong. Doesn’t matter if you’re the only person in the world who is convinced of that. Doesn’t matter if other people who share that principle are rude or nice or cool or lame. What’s wrong is wrong. If you want to be intellectually honest, you have to accept what is true, not only what makes you feel accepted. When you declare that personality disagreements are enough to steer you away from a philosophy, you’re not really demonstrating intellectual honesty.”

            Your whole tone is antagonistic “Newsflash”— implies obtuseness here “let me just keep on flashing the news to you until your thick head get it” and full of assumptions–assuming the worst. You missed my whole point about your tone. I couldn’t care less about a club or no club and none of this has anything to do with feeling being hurt. I’m just too old to get into this intellectual pissing contest crap that you seem to crave. My point is that you would do yourself a favor to learn from Wendy’s tone. Don’t assume. Don’t assume people haven’t studied this stuff long and hard but just come to a different conclusion than you do. Don’t assume I’m a minarchist when I never stated that. Don’t assume that a limited govt. libertarian believes in the initiation of force at all, but maybe, just believes that all systems will bring that about, and it is only a question of in which system will the least amount of initiation of force take place. Now, intellectually honest people can differ on that viewpoint, or that conclusion as to what would transpire. I certainly don’t think you are not well read, or think illogically, or are intellectually dishonest because you come to the conclusion that an anrchistic society would limit the initiation of force the most, even though I (actually playing devil’s advocate here) might believe that it would quickly become perpetual waring factions where liberty becomes virtually non-existent.

            I am only asking for the same courtesy.

            “I would challenge you to read that and then provide rigorous refutation before you promote such a dismissive view of the anti-IP position.”

            First, this implies that I haven’t read Kinsella. You don’t know that. Second, I don’t have “such a dismissive view of the anti-IP position.” How many times do I have to say that I am almost there, but I do have questions.

            Your continual use of labor theory of value is a non-sequitur. There is a huge difference between the concept of being paid for labor determined by law or bureaucrat, whether or not it has marketable value, and productive effort that does have marketable value but is stolen by someone else in the marketplace. Now, your treatment of fraud as theft by deception has a great deal of merit, and in that aspect you may have convinced me that the proper course in court on this is a charge of fraud. But to continually use the charge of falling for the labor theory of value is insulting, and yes, seeing it used incorrectly by so many anti IP anarchists has a ring of cultism to it.

            I do apologize for missing the smiley faces. I guess I was concentrating on your words.

            • Brian DrakeNo Gravatar says:

              Ken,

              I admit to being wrong for deducing you were referring to my initial post to you when writing your post “I’m sorry I got involved. I was asking questions but then get denounced for being “dismissive.”

              You referred to your own experience, not that of Rick “bubble boy” Dimare, so that’s why I concluded that my direct post to you was what you were reacting to. Thanks for adding clarification. Not sure how I could have concluded correctly without it.

              In regards to Bubbles, you quote a post I made at the end of an exchange where he repeatedly demonstrated very dishonest discourse. I clearly explained there why I came to such an abrasive confrontation with him and I think my conclusions are justified. Someone who acts like he has is not honest and is using a bubble defense to avoid ever considering the arguments of others. I don’t respect people like that and don’t feel any obligation to show them respect. This was not my initial attitude towards him. This developed over the course of observing his repeated (and since continued) behavior. I’m not dismissing his intellect, I’m dismissing his honesty and thus his good will. I hope he was offended. Bubbles need to be burst (don’t think his was, but I took a sharp, final poke at it just in case).

              Yes, my tone in my second post to you was antagonistic (I have only called out the friendly tone of my first post to you, which was genuinely friendly even if you chose not/failed to read it as such). This was in direct response to your statement: “I am a fraction of a millimeter away from being an anarchist and you just push me away.” I flat out consider this to be evil. If anarchy is the only moral position (in this context, and I’m convinced it is, welcoming refutation), then to be pushed away from it by the actions of others is to declare your rejection of a moral principle simply because you don’t like how others behave. I am absolutely antagonistic towards this point of view. I see it completely unjustified and a concession to choose an immoral position unless other people behave as you desire. Sorry man, no smiley faces here.

              I can concede that my misunderstanding that you were addressing my comments to Bubbles (yes, I am being dismissive of him, people like him should be dismissed until they behave honestly) instead of my initial post to you could be considered an “assumption”. I think this was instead a misunderstanding since I read “I was asking questions but then get denounced” to mean you were self-referencing. But other than that, I don’t think you’ve justified your accusation that I just assume things.

              “First, this implies that I haven’t read Kinsella.”

              No, read the sentence/paragraph before. I directly asked you if you’d read him. I didn’t assume anything. If you had already read him, I asked for a refutation. If you hadn’t already read him, I asked you to read him and then provide a refutation. Perhaps you’d already read him and done a show/written an article refuting his arguments. I don’t know. That’s why I asked. Asking isn’t assuming.

              “Second, I don’t have “such a dismissive view of the anti-IP position.”

              I welcome correction to/revision of your comments, but you started by telling Wendy you think anarchist anti-IP arguments are ad hoc rationalizations. That clearly seems dismissive. Nor did I “denounce” you and go into a rage. I calmly pointed out I thought this was unjustified and asked you to consider the rigorous thought demonstrated by anarchist anti-IP proponents before you thought those positions were only held to maintain a “belief” in anarchy.

              “There is a huge difference between the concept of being paid for labor determined by law or bureaucrat”
              I don’t recognize this definition of the labor theory of value. Perhaps it’s a valid variant of it, but I’m referring to the idea that labor somehow embues an object with value (appealing to law or a bureaucrat to enforce this value might be a next step, but not the fundamental theory). And I personally have only made mention of this once towards you. I think others have maybe used it as well, but I’ve only written to you about it once. Why is my use of this once to you insulting? I genuinely don’t understand this specifically.

              This has become a long comment thread. The email subscription thing keeps bringing me back. But I think it’s important to recognize each conversation as being unique. When I first wrote you, I was writing you, not continuing my conversation with others. So if concepts get repeated in multiple conversations, that’s not me trying to hammer a single individual.

              I welcome elaboration, but it seems clear that the anti-IP case does substantially rest on the labor theory of entitlement since while the claim is that “ideas” were stolen, the real object of contention is mostly physical property (money most often). You (I’m using “you” in a general sense here, not “Ken” you) worked really hard on an idea/story/script/song/etc. and thus you think you’re entitled to payment on the market. When someone else goes to market with your idea, you see the money they are making as being stolen from you. When you consider that you most likely have to lower your price since there are multiple sellers now, you consider that reduction in price as being stolen from you. Why do you consider these things stolen? Because you “worked” to generate the idea that is being marketed (in final form). This clearly seems like a sense of entitlement being generated from labor invested. Thus the “labor theory of entitlement”. BTW, no disagreement that Wendy is a courteous person. However, she also likes this term so I wonder if you consider her acceptance of it an insult or cult-like.

              Dude, this isn’t a pissing contest. You don’t know me and I don’t know you. “Winning” on the internet has no real ego reward. When you engage people in the discussion of ideas, the result is people are going to engage you back. When you float the accusation that anarchists just make up rationalizations for their anti-IP position, you’re going to get disagreement.

              I’m not going to elaborate here, but I do think it is important for the future prospects of liberty to refute false concepts, so this isn’t about me pumping my ego, it’s about correcting error (which may be on my part too, as I continually request valid correction). Guns are pointed where the ideas point them. I seek to ensure the ideas are just/true. I don’t think I alone will accomplish that, but I play my part as I can and as I see it (hint: it’s not coddling people who advocate my enslavement).

              To conclude: my tone to you initially was friendly. Once you declared you’d been “pushed away” from a moral principle for reasons other than the validity of the principle, I lost that friendliness. So your observations about my subsequent tone (or my tone at the end of another conversation with a belligerent) aren’t all of the mark. However, your accusation that I just go around making assumptions is incorrect. I don’t have to be friendly to consider your arguments.

              • Rick DiMareNo Gravatar says:

                I probably shouldn’t respond to this, but maybe it would help you to at least consider the possibility that maybe you’re the one who’s really in a bubble … and you don’t like that about yourself:

                ” . . . projection is a psychological defense mechanism whereby one ‘projects’ one’s own undesirable thoughts, motivations, desires, and feelings onto someone else. ‘Emotions or excitations which the ego tries to ward off are “split out” and then felt as being outside the ego… perceived in another person’.”

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

              • Ken PrazakNo Gravatar says:

                Two points of clarification, Brian and then I choose not to spend any more time on this.

                Re: labor theory of value, I specifically stated and do not believe anyone has the right to be paid because of time or labor put in a project. To insist that is what I meant is setting up a straw man.

                Regarding my motivational question, I never asserted that having the motivation first to justify anarchism through debunking IP was proof that anti IP was wrong. I was wondering out loud if that played a role in pursuing the concept. Just as I conjecture that Ayn Rand was a war hawk at least in part because of her experience first hand with Communism.

      • Rick DiMareNo Gravatar says:

        Hi Wendy, whenever someone mentions Henry George or John Locke, I usually can’t resist commenting, but hopefully this is on point.

        George definitely hated government-granted privilege and the monopolies they caused, but at the same time always wanted to protect labor, and when it comes to IP rights, there’s usually lots of unpaid labor to account for during research and development.

        George wants to give the author/inventor his just due, but not much more than that. In other words, he wants to return the IP work to the public domain asap. No doubt he’d be turning in his grave to see the extravagant ways in which IP rights/monopolies are handed out today.

        As I’ve said, the main problem with modern IP rights (both patent and copyright) is not the IP Clause (I:8:8) itself, but the careless way IP lawyers disregard the original intent of IP Clause, specifically by ignoring: (1) the intent behind the “limited times” restriction on IP rights, (2) the fact that IP rights were never supposed to be held by unnatural, eternal life corporations, but only natural person “authors and inventors,” and (3) that the IP Clause only authorizes protection for “useful arts.” (Words in quotes are from the IP Clause.)

        Anyway, here’s what Henry George actually said about patents and copyrights (which was actually when private corporations were starting to be given rights on par with natural persons), and I think it shows his concern for the individual author/inventor’s unpaid labor.

        George states: “Following the habit of confounding the exclusive right granted by a patent and that granted by a copyright as recognitions of the right of labor to its intangible productions, I in this fell into error which I subsequently acknowledged and corrected in the Standard of June 23, 1888. The two things are not alike, but essentially different. The copyright is not a right to the exclusive use of a fact, an idea, or a combination, which by the natural law of property all are free to use; but only to the labor expended in the thing itself. It does not prevent any one from using for himself the facts, the knowledge, the laws or combinations for a similar production, but only from using the identical form of the particular book or other production–the actual labor which has in short been expended in producing it. It rests therefore upon the natural, moral right of each one to enjoy the products of his own exertion, and involves no interference with the similar right of any one else to do likewise.

        The patent, on the other hand, prohibits any one from doing a similar thing, and involves, usually for a specified time, an interference with the equal liberty on which the right of ownership rests. The copyright is therefore in accordance with the moral law–it gives to the man who has expended the intangible labor required to write a particular book or paint a picture security against the copying of that identical thing. The patent is in defiance of this natural right. It prohibits others from doing what has been already attempted. Every one has a moral right to think what I think, or to perceive what I perceive, or to do what I do–no matter whether be gets the hint from me or independently of me. Discovery can give no right of ownership, for whatever is discovered must have been already here to be discovered. If a man make a wheelbarrow, or a book, or a picture, he has a moral right to that particular wheelbarrow, or book, or picture, but no right to ask that others be prevented from making similar things. Such a prohibition, though given for the purpose of stimulating discovery and invention, really in the long run operates as a check upon them.”

  24. StormNo Gravatar says:

    Why? Upon what basis? And how does this differ from the house example? If we want to make your new example more analogous to the house example, let’s say that the buyer of the house renovated a bathroom. Now, you still built the house. You still had the idea for the house, and you still sold the house.. Are you entitled to part of his greater profit from his sale of the house?

  25. MAMNo Gravatar says:

    When you start using “ought to” you’ve lost.

    • Ken PrazakNo Gravatar says:

      “When you start using “ought to” you’ve lost.”

      I didn’t know this was a game.

      • MAMNo Gravatar says:

        Like everything else in life it’s a competition. Right now you’re competing on field of ideas. “Ought to” is another way of saying this is what feels good to me, but I don’t have a reason for it.

        As far as this being a game. Pretty sure life is the most dangerous games no one makes it out alive.

  26. Ken PrazakNo Gravatar says:

    I’m sorry I got involved. I was asking questions but then get denounced for being “dismissive.” That is nonsense. The whole argument between anarchist and limited govt. is one I was trying to avoid. That is why I addressed my question to Wendy because I think she knows how to discuss issues outside the anarchist (How could you be such an idiot as to suppose a limited govt. libertarian could be intellectually honest) realm. Those of you who denounce limited govt libertarians with such arrogance makes the Randroid cult pale in comparison. Until anarchists understand how to communicate to us “lessors” intellectually, you will get nowhere. I am a fraction of a millimeter away from being an anarchist and you just push me away.

    • Brian DrakeNo Gravatar says:

      Ken,

      You’re a fraction of a millimeter away from renouncing the use/advocacy of violence against innocent people to get what you want, and you stop cuz you got your feelings hurt?! Wow, you’re right, we really need to coddle people like you until you join our club.

      Newsflash. It’s not a club. It’s a moral principle. Using violence against the innocent to get what you want is wrong. Doesn’t matter if you’re the only person in the world who is convinced of that. Doesn’t matter if other people who share that principle are rude or nice or cool or lame. What’s wrong is wrong. If you want to be intellectually honest, you have to accept what is true, not only what makes you feel accepted. When you declare that personality disagreements are enough to steer you away from a philosophy, you’re not really demonstrating intellectual honesty.

      “It seems to me, that for some anarchists, the concept of anarchy comes first, and when pondering intellectual property, can’t see how it fits in an anarchistic system. So, they come up with an argument to justify their belief system.”

      “I was asking questions but then get denounced for being “dismissive.” That is nonsense.”

      Don’t play the victim here. You clearly floated the idea that anti-IP advocates have an inferior methodology (anarchy first, then ad hoc rationalization to make other things fit). If you’re not willing to deal with counter-arguments to that accusation, then simply keep quiet on the issue. Don’t engage a discussion with unfair characterizations and then act hurt when you’re called out for it.

      “How could you be such an idiot…”
      I never called you an idiot. I used the term “bulverist”, which I included a smiley face with because I think it’s a fun word. I kind of doubt you’d even heard that term before (it’s not very common), so I’m not sure why you’d take offense. The definition I provided most certainly did apply to you though. It doesn’t matter if we’re anarchists because we’re all just mad at our parents (I’m not, btw), deal exclusively with our arguments, not your assumptions about our motives.

      “Those of you who denounce limited govt libertarians with such arrogance makes the Randroid cult pale in comparison.”
      You again make accusations with nothing to support them. The Randroid cult is/was a cult because it elevated a single person to a unquestioned god-like authority. I haven’t seen any evidence here, or elsewhere, of such personality worship. I don’t care what Rand, Rothbard, von Mises, Kinsella, Paul, McElroy, Locke or anyone else thinks. I evaluate arguments using the tools of reason available to me (as I’ve developed them). If the arguments are sound, I accept them. If not, I don’t. I’m fallible, so I welcome correction when my reasoning is wrong. Most of the genuine libertarians I’ve encountered operate similarly. What substance do you offer for your accusation of cult/cult-like behavior?

      You misperceive “arrogance”. What you are witnessing is confidence in a coherent philosophy (a coherence radically lacking in statist philosophies), and refusal to tolerate when people advocate slavery and call it liberty. It’s cool when someone is only “passing through” a limited government stage, but the problem is that some people dig in their heals there and then claim the title “libertarian”. Don’t assume a mantle you don’t qualify for. If you don’t advocate liberty, then don’t front like you do.

      “How could you be such an idiot as to suppose…”
      I don’t care what you suppose, I care about what you can prove (reason). Please explain how one could be intellectually honest and reconcile limited government and liberty. If you can, I’d admit I was wrong and congratulate you. But intellectual honesty is the key here. I’ve yet to see a defense of statism that was coherent and honest, and I’ve evaluated a lot of them.

      No one called you “lessor”. You’re free to reason and argue just as anyone else. But if you can’t handle disagreement, you’re not really well suited for intellectual discourse.

      I don’t pull punches, but I did include 2 smiley face emoticons in my post since emotional intent can often be hard to read in a written format (I further take personal blame for my inadequacies as a communicator when deprive of body language, facial expressions, and vocal tone). So I added the smiles to at least hint that while I was being stern, I was also friendly. That you ignored them, didn’t actually address any of my comments with counter-arguments really makes me wonder if I genuinely mistreated you, or you just don’t like being told you’re wrong.

      • gdpNo Gravatar says:

        With regard to “Bulverism,” like so many other things it even has a Wikipedia entry, http://en.wikipedia.org/wiki/Bulverism

        The two forms of the “Bulverism” fallacy are:

        * You claim that A is true.
        * Because of B, you personally desire that A should be true.
        * Therefore, A is false.

        and

        * You claim that A is false.
        * Because of B, you personally desire that A should be false.
        * Therefore, A is true.

        That arguments of this form are a form of ad hominem fallacy is clear because their structure depends on who is being opposed and on what the person being opposed personally desires to believe, rather than on facts or logic. In effect, the argument is that “anything that someone wants must automatically be wrong,” when in reality the truth (validity) or falsehood (invalidity) of a logical argument is totally independent of who (or how many!) would or would not like to believe the argument or why they would prefer it to be true or false.

        • Brian DrakeNo Gravatar says:

          gdp,

          I must admit, I was operating purely from memory in regards to this word. When seeing it in the form of syllogisms, I began to wonder if I had misused the term.

          This is the part of Lewis’ explanation that I remembered:
          “The modern method is to assume without discussion that he is wrong and then distract his attention from this (the only real issue) by busily explaining how he became so silly. In the course of the last fifteen years I have found this vice so common that I have had to invent a name for it. I call it ‘Bulverism’.”

          So perhaps my explanation was imprecise, but I think I caught the spirit of it. Skip the proving someone is wrong part, and start focusing on why you think they were motivated to be wrong. This appears to me to also include a form of red herring since the intent is to engage the accused in defending their motives, distracting them from the original debate. Also, the explanation Lewis gives of the formative event in Ezekiel Bulvers’ life – “Oh you say that because you are a man.” – seems related on some level to Mises’s denunciation of polylogism. And I think you’re correct, ad hominem is definitely part of it to.

          I just really like the sound of the word: bulverism.

    • Brad RNo Gravatar says:

      Though I am an anti-IP anarchist, I feel the need to come to Ken’s defense here on two points.

      1. “Libertarian” does not mean “anarchist”. As I have heard the terms used over the years, I have understood “libertarian” to be an umbrella term which includes both anarchists and minarchists. I believe this is the common usage. I don’t wish to open a discussion of the merits or demerits of the minarchist position; I simply want to point out that saying that Ken cannot be a libertarian because he is not an anarchist, is trying to win the argument by controlling the definitions of the terms.

      2. “Anarchist” does not mean “anti-IP”. I consider the question of “what constitutes property” (and how title to property is first obtained) to be orthogonal to the question of “how property rights will be enforced/protected.” I know some pro-IP anarchists, and while I believe they are mistaken on the question of IP, I don’t think that automatically disqualifies them from being anarchists. (I have encountered a variant of this from communist-anarchists who claim that because I believe in private property, I cannot be an anarchist, because private property requires a state to enforce it.)

      • Brian DrakeNo Gravatar says:

        Brad,

        1. I have never heard a coherent definition of “libertarian” that could apply to minarchists other than the very arbitrary “libertarian means anarchists and minarchists” (a definition that is often asserted, never coherently explained). There is no logical/moral connection between anarchists and minarchists, so any term that defines a category to include them both defines a meaningless category. “Bigfurryians means bears and hairless miniature cats”? Most commonly, “libertarian” means someone who advocates the NAP. Minarchists do not advocate the NAP (the state they advocate institutionalizes violating the NAP) and thus, by this definition, cannot be libertarians any more than any others who advocate violations of the NAP. I propose the obvious definition is the one right there in the name: a libertarian is someone who advocates liberty (self-ownership). Minarchists do not advocate liberty since they advocate a state, which necessarily violates the liberty of those under its declared (unconsented to) jurisdiction.

        BTW, though often conflated, I don’t see a necessary logical connection between “limited government” and “minarchist”. Ignore the fact that it’s an incoherent idea, a government of any size could be “limited” (usually means it has a constitution of some sort). MINarchist means minimal government. So for example, those who advocate the US Constitution might be considered “limited government” advocates, but the US Constitution (even in its original form – pre-amendments) describes a state significantly larger than a minimal “night watchman” state, so I don’t think US Constitutionalists can logically be considered “minarchists” (though they’re often erroneously referred to as this).

        True, libertarian doesn’t mean “anarchist” since there are anarchists who are not libertarian. But any libertarian, by a coherent definition of that term, is by necessity, also an anarchist. I’d welcome a coherent explanation of how someone who advocates slavery (the antithesis of liberty) and who advocates violating the NAP can rightly be considered a “libertarian”, or why we’d want to extend the term to people like that anyway.

        2. Yes, you are correct. Just like “anarchist” does not only mean “libertarian” (but libertarians are anarchists). I do, agree that being pro-IP does not initially disqualify someone from being considered an anarchist. But considering that Kinsella and others have revealed the case for IP to be completely lacking in logical and principled foundation, I would say that after a suitable amount of time to consider the case against IP, if someone belligerently persisted in their pro-IP stance, without providing valid counter-argument, I would hold that person in suspicion. Perhaps they’ll truly stick to trying out their “IP by contract” ideas and not initiate force/attempt to rule over others. But anyone who holds on to a thoroughly debunked concept, without providing any coherent positive argument, does seem a red flag to me and I have reason to at least suspect the sincerity of any principle they profess.

        The accusation you’ve encountered from anarcho-communists can easily be shown to be false since property must by necessity have existed prior to a state.

        • Brad RNo Gravatar says:

          Brian, I find myself in the difficult position of trying to explain a position I do not hold. What follows is my understanding of the position, which may be inaccurate.

          I think you are correct that the defining characteristic of a libertarian is the non-aggression principle. The NAP allows for defensive use of force. I think the minarchist position is that, in any community, there must be a single agency to which your right to self-defense can be delegated, otherwise unresolvable conflicts will ensue. Similarly, to ensure that conflicts can be resolved, there must be a single agency (court) with the power to resolve all conficts. Thus the minarchist view that police, military, and courts must be centralized, and that those functions — and no more — are what constitute an acceptable government. If I were to sum up in one line, I’d say that their position is that police, military, and courts are a “natural monopoly” and must be handled as such.

          Such a government need not be funded by taxes; other models have been proposed. So I think it is conceivable that one can subscribe to the NAP and still advocate a “night watchman” government. I think that view is sadly mistaken, but if one accepts the natural-monopoly argument, I can understand how the NAP could take one in that direction.

          • Brian DrakeNo Gravatar says:

            Hi Brad,

            I think you did a good job of describing a common minarchist position. Perhaps not all minarchists argue the same as you’ve outlined, but I’ve encountered enough that do that I think you’re being accurate.

            And like all claims, this minarchist claim – establishing a “natural” monopoly in certain services (police, courts, military) does not violate the NAP – is subject to validation. I find it invalid. Thus I remain unconvinced that one can honestly be said to advocate the NAP while at the same time advocating a state of any form (including “minarchy”).

            The establishment of a monopoly government requires the initiation of force (violating the NAP) because no society of any noteworthy size has ever demonstrated 100% unanimous opinion (the desire for police and courts is an admission of this), so necessarily, some will not consent to this government.

            If the denied consent of the individual is respected, then the proposed “government” is not a state, rather it is a business/coop/organization being offered on the market and thus what the “minarchist” is describing is actually anarchy. Some people really don’t like that word, so you end up with “market anarchist” “voluntaryist”, “anarcho-libertarian”, etc. But the concept is the same. A defense/arbitration provision organization that restricts its clientele to those who have consented is not a state, and while it may at any given time be the only organized provider of such services, it is not a monopoly since it provides no barrier to entry for alternatives (direct competitors, alternate concepts such as individual defense).

            In order to be a monopoly, it must disallow competitors. It can only do this by initiating force (or threatening to) and therefore by violating the NAP. Thus, you cannot establish a monopoly and claim to be adhering to the NAP.

            It’s interesting how the subtle shift from individualism to collectivism occurs in the thinking you outlined (not your position, I know). The NAP is necessarily an individualist principle, since it prohibits individuals from initiating force against individuals. And yet the minarchist suddenly invokes the needs of “society” or “the community” to justify a “natural monopoly”. Strength in numbers doesn’t suddenly provide a method to legitimately violate the NAP. Gang rape is aggression the same as individual rape. So even if 99 people out of a “community” of 100 declare the desire for a single provider of “government” services, if the 1 hold out refuses to consent, they (the 99) can’t be said to have abided by the NAP if they force him to be citizen and/or they violently prevent him from offering a competitive alternative.

            I too recognize that some can envision a state that does not engage in taxation. Because of this, I’ve discarded the definition of a state as 1) being the monopoly government 2) using taxation. I think the fundamental is 1. Most states historically have employed 2, but since it is possible to conceive of a state without taxation, it is not a fundamental part of the definition. The monopoly part is though, since without it, the “state” is not a state but is just something being offered in the market.

            There’s a great essay out there called “Minarchy Considered” by Richard Garner which you can find in free PDF form if you Google it. I think he does a great job evaluating all the major minarchist proposals and he convincingly invalidates each.

            Peace,

            Brian

            • Brad RNo Gravatar says:

              Brian,

              As I said, I don’t want to start a debate about minarchism. I agree with your points, except for one:

              “And like all claims, this minarchist claim – establishing a “natural” monopoly in certain services (police, courts, military) does not violate the NAP – is subject to validation. I find it invalid. Thus I remain unconvinced that one can honestly be said to advocate the NAP while at the same time advocating a state of any form (including “minarchy”).”

              I, too, have been convinced that that claim is invalid. However, I’m not prepared to call someone “dishonest” because they have not reached that conclusion. To borrow a line from Rand, theirs is an error of knowledge, not a moral failing. And implying intellectual dishonesty in such a case merely serves to alienate, not to educate. (Also, I remain open to the possibility that the error of knowledge is mine.)

              Peace,
              Brad

              • Brian DrakeNo Gravatar says:

                Brad,

                Fair enough. I know you’re not an minarchist, so it is rather odd to expect you to defend them :)

                Re: Dishonest. Let me elaborate a little as I agree with you on one hand. I’ve observed there are generally 2 types of “minarchists”, “learning minarchists” and “entrenched minarchists”. Many of us anarchists did pass through minarchy on the way to anarchy. I don’t call people who are still learning “dishonest”. They may just be lacking knowledge, or need more time to digest the conclusions logic is impelling them towards.

                Rather, I save that conclusion for those who have dug in their heals at minarchy, and continue to use invalidated arguments to support their position. These people do not demonstrate honesty.

                Also, dishonesty isn’t a static designation. For a lot of people, there are other considerations at play, often emotions. When you’re discussing ideas, if your arguments have been invalidated and you refuse to revise your position because of the emotional discomfort involved, you’re not being honest. That doesn’t mean you’re irredeemable. I don’t assert anyone is irredeemable. It just happens to be, at that moment, they’re not being honest. I’m not going to declare that one could honestly come to their conclusions, because if their conclusions are invalid, you can’t really honestly conclude them.

                If you knowingly choose to believe something that is invalid, you aren’t honest. It doesn’t matter if you aren’t aware of the valid conclusion. If it can be demonstrated that your current view is invalid, you must reject it to be honest. Sometimes the only honest position is “I don’t know”. The oft used contention “well, you have shown A to be false, but you must prove B before I reject A” is…not honest.

                Peace,

                Brian

    • MAMNo Gravatar says:

      Small government libertarian is an oxymoron. Any government at all is Statism period. It’s not arrogance it’s the truth, I’ll quote my uncle now “Lie to people and they’ll love you, tell them the truth and they’ll hate you.”

      • Rick DiMareNo Gravatar says:

        MAM, since liberty can’t exist without property rights, and property rights can’t exist without some kind of enforcement agency to punish and discourage trespassing, isn’t the real oxymoron “anarchist libertarian”? Or, do you believe in competing private enforcement/protection agencies (which I think of as mini-governments)?

        • MAMNo Gravatar says:

          I believe that I have to be responsible for myself. I believe that when some one steals from me the least I can do is pound their teeth down their throats. I believe that when someone is a rapist they need to die.

          I believe in voluntary association and when coercion is brought into the mix the initiator of said coercion needs to be shot in the face. And I’m prepared to do that.

          A defence firm is not a government because 1. Unlike a government the defence firm does not claim a monopoly of force in a geographic region. And 2 a defence firm is paid by willing clients unlike a State which “taxes” (other wise known as extorts) the people it claims to protect.

          That is the key that you seem to be missing. A government is funded through taxes and taxation is theft. If what you’re proposing is not funded through taxation then we are using different definitions of government. If this is the case then we should talk about that. Because until we agree on definitions our discourse isn’t going anywhere productive.

          Peace be with you.

  27. VanmindNo Gravatar says:

    Thank you, Ms. McElroy. I won’t repeat all the comments about Rand & Rothbard.

    Someone or other on some comment thread somewhere awhile back sometime said it best: IP stands for Imaginary Property.

  28. JoelNo Gravatar says:

    Policing costs are relative to political will. Therefore a law can be rendered obsolete by changing the political will. Therefore, all laws can be rendered obsolete, in this case by claiming that policing costs are to high. For example, if we had a law that stated that all corn grown by an individual belongs to the individual until it is sold, traded, or gifted away. But if the people decided that the importance of corn necessitated policing and the policing costs were too high, it could not then represent property. It would no longer exists as property. Corn fields are too big and corn thieves too many, therefore corn is cannot be property? All that is needed are flash mobs to set the value of corn.

    Doesn’t this apply to all property in the long run? Isn’t the article about destroying all property rights?

    This is an eigenstate thing. If you take the proper focus away from it’s primary position and move that focus to an ancillary position, though both positions exist in the system, the system has dramatically changed.

    • MAMNo Gravatar says:

      Fuck the police and fuck political will.

      And no the article is not about destroying property rights. Property is a concept used to mediate disputes over scarce objects. Ideas are not scarce therefore using property to define them is not logical.

  29. JoelNo Gravatar says:

    I was addressing this statement.

    “IP and libertarianism are politically incompatible because of the incredible policing of individuals that is necessary to monitor the ‘crime’ of sharing ideas and expression.”

    Property is a definition of self. Only a collectivist assumes that property ‘mediates disputes’. I have the natural right to my life, my liberty, and my property. All of those can be consolidated to my property since I own each as property.

    I extend myself into space by creating through work. Others don’t own my work via their proximity to my work. If they work at my work then they deserve a share of my work according to our agreements, even as slaves. But it remains my work. Each reduction in my right to my property translates into a loss of liberty, and of life itself since the sum of my life is manifested in my work.

    There is no point at which another person owns my work by fiat. Such claims are so bizarre it is difficult to formulate arguments against them. The ease of theft in no way justifies theft.

    • MAMNo Gravatar says:

      Rights don’t exist only claims. Only an arrogant ass assumes that his road is the only road to liberty.

      • JoelNo Gravatar says:

        What right have you to make that claim?

      • MAMNo Gravatar says:

        Which one? The one about you being arrogant? The fact that you dismissed what I said as collectivist as opposed to actually refuting it.

        The one about rights not existing? The fact that they don’t you only make a claim that they do.

        Go!

        • JoelNo Gravatar says:

          If rights don’t exist, what gives you the right to make any assertion at all? Is it a privilege you enjoy or a royal prerogative? What makes you so certain of your case?

    • Rick DiMareNo Gravatar says:

      Joel, I think you have the right idea, and are characterizing the real intent behind the IP Clause (I:8:8), i.e., as temporary legal protection to allow “the self” to project his/her creative labor/actions/ideas/thoughts/energy into the world.

      As I’ve said before, somehow lawyers got a hold of the IP Clause and gave IP rights to corporations like Monstro, which is unbelievable because “authors and inventors” in the IP Clause can’t refer to corporations. Corporations don’t create art or make scientific discoveries; they’re just legal fiction holding devices.

      After the 13th Amendment abolished slavery, the 14th Amendment attempted to force all the states to give rights and privileges to former slaves (and later women), but some smart ass lawyers noticed the word “person” in the 14th Amendment and convinced judges that corporations are kind of like people, so they should have similar rights.

      Apparently IP lawyers used this reasoning to hijack the IP Clause (but IP lawyers are skating on much thinner legal ice because the word “person” doesn’t appear in the IP Clause. The IP Clause specifically intends only for natural person “authors and inventors” to hold IP rights, and even then, only for “limited times.”)

  30. Rick DiMareNo Gravatar says:

    “Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Article 1, Section 8, Clause 8

    Can anyone think of anything that would violate the “limited times” mandate more than giving IP rights to an eternal life corporation? Yet, today IP lawyers do it all the time without a second thought, then blame the Constitution.

    In Flint v. Stone Tracy (1911), a case that authorized an income tax on corporate privilege (even *before* the 16th Amendment was ratified) the Supreme Court listed some of the main privileges that corporations get from government, so they could justify why *the privilege alone* should be taxed:

    “The continuity of the business, without interruption by death or dissolution, the transfer of property interests by the disposition of shares of stock, the advantages of business controlled and managed by corporate directors, the general absence of individual liability, these and other things inhere in the advantages of business thus conducted, which do not exist when the same business is conducted by private individuals or partnerships.”

    http://en.wikipedia.org/wiki/Flint_v._Stone_Tracy_Company

    Note: I say “the privilege alone” because today most corporate employers should be paying two other, completely different, income taxes, but somehow have bamboozled Congress and us to only pay one, and even that one is preventing job creation, as they inform us.

  31. JoelNo Gravatar says:

    You didn’t explain your right to make an assertion. If you don’t accept some level of inherent truth value in a claim made in good faith, then there is no reason for others to make such an assumption about you. Hence, being self aware, you would see the futility of making claims at all.

    So why do you make them?

    In accepting a truth value we also presuppose a right since one of the most basic rights is knowing the truth.

    • MAMNo Gravatar says:

      I’m not claiming that anything exists you are. The burden of proof is on you not me.

      Go!

      Oh and until I’m shown otherwise I assume that I’m always being lied to. I don’t accept the “inherent” truth in anything or anyone. Respect, and good faith whatever is something I let go of along time ago. After about the fifth or sixth time I got screwed for accepting someone’s “good faith”.

  32. My question is not so much about whether copyright should be the law so much as a question of basic decency and fairness. If, say, a large publishing company, sets up a subsidiary backed by its ample resources with the express purpose of trolling for books published by small companies with limited resources that they see as having potential, then find one and copy the work without recompense to the author or the original publishing company and successfully turns it into a best-seller, does that violate some sense of justice? It may be legal in a libertarian world without copyright, but would it be fair or just?

    • Wendy McElroyNo Gravatar says:

      Thanks for the question Marco. I am adamantly against laws restricting the use of ideas — plagiarism is a separate category (fraud) as you will see if you review the discussion thread — and, so, I would make no law constraining what could be reposted or reprinted once it is put in the public realm.

      Nevertheless, I routinely ask people for permission to use their work. I don’t do so as a rights matter but as a matter of courtesy, good will, and good morals. If they say “no,” then I refrain from using it. I believe that civility and morality are as important to the smooth functioning of a civil society as the observation of rights. I do not merely wish to be a good libertarian; I also want to be a good neighbor.

      The legal question is paramount at this political moment, however. It is pure folly (and without a proper legal basis) to throw your work out into the ether and still expect to have your ideas/work legally protected from those who wish to circulate it. If you throw your money out a window, you cannot blame those who pick it up and pocket the cash. BTW…there is plenty of evidence that having work widely circulated (with or without permission) actually increases the profitability of authors. For one thing, their speaking fees go way up. Authors who object are trying to apply a 19th century business modeal onto an incredibly changed world.

      • I agree that in today’s world with today’s technology, protecting copyright is almost foolhardy. My son is a brilliant writer, just starting out. He is working on his second novel, first one as yet unpublished, and is making this one available for free online with a voluntary PayPal button if anyone wants to donate money to him.
        We were discussing this issue at the writers group we both attend recently and he argued that trying to protect your copyright online was a waste of time. If your work is really good, it will get recognized and compensated in a serendipitous manner anyway. As an example, he cited the guy who blogged about Shit My Dad Says. He sold the rights to make it into a TV show and prospered. And a mainline publisher turned it into a book. Justin Bieber got his start posting free stuff on Youtube.
        But while your point is about the legal issue, the ethical issue remains. While you are a nice person and will not, as a courtesy, use people’s material without consent, not everyone is as nice as you. In the example above, without copyright, the book company could have published Shit My Dad Wrote and the TV production company could have turned it into a TV show without giving the originator a dime. He’d still be blogging away making some Google ad revenue while the appropriators of his work would make millions. Somehow this strikes me as not being very fair or just.
        Just to shrug and say well, that’s just tough, seems to me to be inadequate. I’m not saying that I disagree with your points about copyright law. But in my mind, a libertarian world would be a just and fair world and so there seems to be some sort of contradiction between theory and practice.

        • Brian DrakeNo Gravatar says:

          Hi Marco,

          I think you need to define your terms a little bit more. What do you mean by “just” and “fair”?

          For a lot of us here, “just” means each person getting their due. The entire IP debate is about determining what, if anything, is due an “idea” originator. I don’t think this is separate from libertarian “legal” theory. Ideally, a libertarian society will establish a legal system (competitive of course) that is in line with justice. So if something is truly unjust, it wouldn’t be legally acceptable.

          As to “fair”, I’m always very suspicious of this term. Of course, it matters what the user intends it to mean (if by it you mean an abundance of ice cream, absolutely a libertarain society should be fair), I just haven’t often heard definitions that I think are coherent and actually just. Often it’s just people whining about the fact that reality is anti-egalitarian. What do you mean by it?

          In regards to a TV company making millions off a blog, while the user only got the revenue they could make through donations/ad words: I agree that at first glance that’s not cool (an unenforceable judgment; you have to go to an “coolarian” forum to hear their legal theories). But if the anti-IP position is correct (which I’m convinced it is), then it would not be unjust, unless the TV company had signed a contract with the blogger that they were in violation of.

          But think about it this way, producing a TV show involves many more costs (and risks) than just writing a blog. So while the original idea may come from the blog writer, it’s not really comparable to attribute the creation and potential success of the show to the blogger. While I think courtesy and morality dictate some effort to reward the blogger (as little as just giving attribution, as much as hiring him as a staff writer/creative consultant/EP), I don’t think justice demands it.

          Also consider how the market is assigning value. When blogger offers idea X to the market, he makes a small amount through donations/ads. When the TV producers offer the same idea X (same idea, not same product) to the market, they attract an audience of millions, and thus the large revenue from advertisers. The blogger is the one who had the idea first, why isn’t he making millions? The truth is that bringing an idea to the market isn’t the only factor to determine its success. There are many factors, such as how you advertise it, how you package it, how you produce it, etc.

          An ad hoc analogy here: two friends at a bar spot an attractive woman. Friend 1 invents a “pickup line” and tells friend 2 about it. Friend 1 approaches the woman, uses the line, and she politely rejects him. Friend 2 approaches the woman, uses the exact same line, and she give him her number. Should Friend 2 be required to give Friend 1 the number because he’s the one who came up with the line? Would this be “fair” and “just”? What about the choice of the woman? Shouldn’t she be the one to decide who she gives her number to?

          Likewise, in the market, shouldn’t it be consumers who decide who they give their money to?

          Peace,

          Brian

        • Wendy McElroyNo Gravatar says:

          Hello Marco: You and I may have a key disagreement. You say that a libertarian society would be just and fair. I think it would be “just” in the sense of rendering to each person what they deserve in terms of rights. But I have no illusion about a libertarian society being flat-out fair. There will be cruelty, dishonesty, human fallibility, etc. because *no* society can offer a utopia that does not express the flaws existing within human beings themselves. A libertarian society is simply the most just, the most fair arrangement I can imagine. It wins the competition.I do not compare it to perfection, however, but to every other social arrangement that has occurred. It wins but it is not perfect. The unwary and innocent may well be victimized in ways that do not violate rights. I do not mean to sound heartless…but that is life, that is the learning process.

          • Brian DrakeNo Gravatar says:

            Well put Wendy.

          • I agree with you that a libertarian society is the most fair arrangement one can imagine, but is that a libertarian society that does or does not recognize intellectual property rights? The examples I gave may not convey the issue strongly enough but let’s consider patents.
            Many companies spend many years and lots of money on research and development. Now a competitor could just wait until a new product comes out and reverse engineer it at a fraction of the cost.
            Consider this admittedly loaded example:
            Hank Rearden spends ten years and millions of dollars developing Rearden Metal. Orren Boyle reverse engineers Rearden Metal at a fraction of the cost and time and sells it in competition with Rearden. Do you support Rearden or Boyle?

            • Brian DrakeNo Gravatar says:

              I don’t think there’s a “libertarian” answer to your Rearden v. Boyle question. I do not believe Rearden is justified in using force against Boyle, so it’s not a legal issue.

              If Boyle is selling same quality but cheaper price, many will buy from Boyle.

              If a segment of consumers want to “reward” inventors, they may choose to pay more (for same quality) to Rearden.

              What is the reputation of Rearden vs Boyle? Is Rearden a highly respected name in the industry and Boyle a nobody? If I was Rearden I’d advertise Rearden Metal like this:

              “I spent the last 10 years not just inventing Rearden Metal, but putting it it through every conceivable quality assurance check. Though my competitors may think they have reverse-engineered the metal, are you willing to trust that they also discovered all the potential pitfalls that could create a compromised product? Pitfalls I spent years and millions identifying and solving? This is a new product to market, so the product itself has no track record of safety and performance. Who would your rather trust, me, Hank Rearden, who put his heart and soul into this, and millions and years to make sure it reaches the level of quality and reliability that you’ve come to expect from me, or Boyle, who reverse engineered it in only a few months, and thus can’t have possibly put the same rigorous QA effort into ensuring his product is the same reliability?”

              If people still bought Boyle, that’s just how the market works. I believe Volvo is consistently rated the safest car (if not, it’s just an example). This means that all non-Volvos are by definition, not as safe. Yet somehow people still choose to buy cars other than Volvo. If Boyle’s metal is 95% as reliable as Rearden’s, that’s just a risk consideration that goes into any purchase decision.

              • Sort of reminiscent of JRR Tolkien’s note on his authorized edition of LOTR that those respecting the rights of authors should buy only the authorized version. Nevertheless, I think a reaonable case can be made for intellectual property rights, and that the libertarian movement will probably remain divided on this issue.
                Which raises an interesting conundrum. What if in our future libertarian world, some private protection agencies offer their services in protecting intellectual property and others offer services in protecting reverse engineers and intellectual property copiers from those believing themselves to be agrieved? Assuming there will not be unanimity on this issue.
                But that opens a whole other kettle of fish that would best be discussed elsewhere.

                • Brian DrakeNo Gravatar says:

                  Hi Marco,

                  Didn’t know Tolkien did that. Interesting.

                  Do you have suggestions on where one can find/read this reasonable case for IP that you allude to? Because I’m not currently aware of one (doesn’t mean it doesn’t exist), and I’m currently convinced that people like Kinsella and McElroy have definitively refuted all cases so far brought forward for IP (since, when scrutinized, these cases have not proven to be valid). That some libertarians still disagree is itself not an indication their disagreement is justified. While I think it’s certainly ok to be uninformed on this specific issue, for those who have engaged the discussion, and failed to provide valid pro-IP arguments (all challengers so far that I’ve seen), I’m not convinced their unwillingness to concede is evidence of anything other than an…unwillingness to concede. That said, if there’s a coherent case for IP out there, I’d love to read it and consider it.

                  If IP is unjust, I’d argue it’s unlibertarian. If, in a stateless society, IP was enforced, I wouldn’t consider it a libertarian society.

                  Peace,

                  Brian

                • Wendy McElroyNo Gravatar says:

                  Marco: I disagree that a reasonable case can be made for IP rights. And I would urge you to think of the situation not in terms of morality — e.g. what is the “fair” way to act — but in terms of rights. As I mentioned in my earlier post, a society that meticulously respects rights may contain unfairness. My neighbor may beat his dog, a husband may lie to his wife, a parent could be verbally cruel to a child and, yet, no rights have been violated. If I oppose laws restricting such “unfairness,” it is *not* because I endorse the acts themselves. In fact, I would be quite vigorous in opposing the acts…but I would do so in an extra-legal manner. For example, by publicly shaming or shunning the person. The town I live near had a recent example of how successful such tactics can be. A woman was badly mistreating horses under her care. There were petitions in just about every store, pleading with her to show some decency. The backlash caused her such emotional distres that she surrendered the horses to another caregiver, and they are reportedly doing well. It is too easy to forget that laws are only one way of achieving social goals and a last (not a first) resort..Indeed, the only social goals for which laws are appropriate is the protection of person and property when other means, such as reason, have failed..

            • ShawnNo Gravatar says:

              “Hank Rearden spends ten years and millions of dollars developing Rearden Metal. Orren Boyle reverse engineers Rearden Metal at a fraction of the cost and time and sells it in competition with Rearden. Do you support Rearden or Boyle?”

              Hi, Marco,

              Nothing in libertarianism would prevent Rearden from contractually obligating his buyers to not resell to Boyle assuming they consent to such a contract. (Rearden Metal is, in the book, a very specialized metal, so it’s not going to be sold at a the local retail shop where Boyle can just pick it up.)

              Boyle will undoubtedly get his hands on some to reverse engineer at some point, but if done successfully, between being “first to market” and advertising as Brian mentioned above, Hank should still come out well ahead. Being a smart and talented businessman would be all too important in a truly libertarian society.

  33. JoelNo Gravatar says:

    Consider this scenario: Bob is a professional artist, He can’t protect his work. He would like his work to be constructive to his life. But if he can’t protect it, so it isn’t constructive. So, Bob has to make something else, perhaps mass marketed widgets.

    Worse, Bob makes his art, Monstro corporation steals his idea. Since everyone is stealing Bob’s idea it doesn’t matter. This is how Monstro makes money, by stealing ideas better than anyone else. Monstro doesn’t create ideas beyond creating better ways to steal ideas.

    Who makes the world better? Bob or Monstro?

    Collectivism looks good on paper, but it is Monstro in real life. Under collectivism the blob owns all ideas, not the individual. It may feel fun to snag an MP3 or a PDF book. But is it good? Collectivism destroys identity, it allows for no individuality. Monstro owns all.

    Do you really want to feed Monstro?

    • Brian DrakeNo Gravatar says:

      Joel,

      I won’t assume that you support the current IP regime. I’ll only point out that what you’ve described is actually a very common occurance within the current legal IP regime. Small artists/inventors do not have the financial resources to prosecute “violators” of their IP claims. It is usually “Monstro” corporations that are able to afford the legal teams needed to wield IP laws to their advantage. If anything, IP has contributed to Monstro’s power.

      Who is advocating collectivism? I read this accusation against the anti-IP position regularly, but it is a strawman. The libertarian anti-IP argument isn’t the argument that information/ideas should be free and owned by everyone. It’s the argument (in part) that thinking, a unilateral activity, is not a valid method to obtain the property of others.

      Example: For you to have the just right to legally prevent me from using my guitar to play a song you wrote, you are essentially making an ownership claim over my guitar and my body (needed to play the guitar). Before learning the song you wrote, the ownership of my guitar and my body was not in question; they were mine, and as their owner, I had final authority as to their use. Once you write the song, you now claim final authority, since you claim I may not use my body and my guitar to play “your” song. I did not voluntarily transfer title of these real, scarce resources to you, so this is an unjust acquisition of ownership. This isn’t some form of collectivism, it’s a consistent defense of individual property rights.

      Naming a company Monstro and describing it in ominous tones is just a silly way to try to bias the argument. “Monsto owns all.” Such nonsense. In an IP free world, Monstro can play the song/use the art and so can Bob and so can anyone. Monstro hasn’t stolen anything. That’s just question begging. The claim that ideas aren’t property isn’t secretly an argument that they aren’t property until evil corporations steal them from poor starving artists, and then we respect IP because we like evil corporations. If ideas aren’t property, they aren’t property for corporations either. If Bob can’t justly prevent Monstro from using his idea, Monstro can’t justly prevent anyone else (including Bob). The market will decide who makes the world better.

      With the exception of very restricted form of direct contract (not binding to 3rd parties), IP can’t exist without a state. States are generally collectivist. States are how Monstro is currently so big. Save your boogie man stories for little children.

    • MAMNo Gravatar says:

      Because whatever you don’t agree with is collectivist right? Because not granting monopolies to people is collectivist?
      Because you can’t think of a way for someone to protect their idea without a monopoly and murderous scum bags to kill those people who disobey the monopoly, therefore these people are collectivists right?

      Get over yourself. And stop using appeal to emotion fallacies, and ad hoc rationalizations.

  34. JoelNo Gravatar says:

    Brian, if I create a thing I do so out of self interest. For the record, I’m a professional artist. If I make a piece of art and you snag it, you add nothing. I’ve made the art. It took me years to come to a place where I could make it. So tell me, why would I bother.

    I’m somewhat protected from Monstro now. But you are advocating no protection at all. I despise Monstro just as much, if not more than you because of his thefts. But his thefts are limited. Once you generate social advocacy for theft, the baby gets thrown out with the bath water. That Monstro is unavoidable in no way makes you justified in taking my property.

    Please, if you wish to accuse me of circular reasoning produce a clear example of it. From what I gather, the general argument is that if it is easily stolen it should be legally stolen.

    Also, no one forces you to play the song. By your reasoning you are bound under force by being prevented from raping my little sister. Your argument makes no sense at all. If it doesn’t belong to you, leave it alone. At a minimum don’t go about demanding theft be legalizes. Yea, everyone gets to play the Beatles birthday song. It doesn’t matter as common practice. But you can’t claim the Beatles have no protection at all for their work. That is slavery.

    • Brian DrakeNo Gravatar says:

      Joel,

      What art are you talking about that I would “snag”? Are you talking about me stealing a physical painting? That’s just regular theft and has nothing to do with IP. Are you talking about me employing my own artistic skill to produce a replica of your painting? If so, as long as I’m using materials that I own, I haven’t stolen from you. You still have your painting/art (you didn’t specify what kind of art, so I don’t know) and now I’ve created my own copy. I haven’t stolen anything from you.

      If the idea that people can copy you would prevent you from creating art, you won’t be missed (since you didn’t create art, so what would we be missing?). Mozart had no legal “protection” for his music. Yet he still somehow 1) found motivation to compose 2) found a method of receiving compensation (patrons) that didn’t involve using force (legal regime) to prevent others from copying him.

      You’re not protected from Monstro now. Try to go to court with Capitol Records, or enter the patent fray against Apple/Samsung. Unless you’re already wealthy, I would challenge you to actually try before making such a boast.

      Anti-IP is the argument that ideas are not property and thus no theft is involved. We actually argue that IP does consist of theft since it makes having an idea a method of acquiring the property of others without their consent. If the anti-IP argument is correct (the case is overwhelming so far that it is), it is the IP proponents that are advocates of theft and the anti-IP crowd that opposes theft.

      I didn’t accuse you of circular reasoning. Please look up “question begging”.
      The IP debate at hand would determine if using ideas without permission is theft or not, so it is indeed question begging to just keep accusing “advocacy for theft” when you have not first demonstrated that it is indeed theft.

      Monstro is not unavoidable. Monstro is a result of IP and a result of the state. Anti-IP libertarians are against both. The only way “Monstro” exists in a libertarian society is by satisfying consumers more than its competitors. No state regulation/IP laws would exist to provide shelter from competition.

      Where did you read/see “if it is easily stolen, it should be legally stolen”? That’s certainly not my argument, nor Kinsella’s, nor McElroy’s (that I’ve read, I don’t speak for them). A fundamental issue is scarcity, which does not exist in ideas. When I learn your idea, we both have it, you haven’t lost anything. With physical goods, for me to have it, it has to be taken from you.

      Your example of raping your sister demonstrates you don’t really undertand property. If the guitar belongs to me, I am the final authority over its use. That includes playing any pattern of notes I choose to play. For you to tell me there are certain patterns I may not play (without paying you first) is to assert ownership over my guitar. The guitar doesn’t belong to YOU, leave it alone. I am prevented from raping your sister because her body is her property, not mine. It is not a restriction on me for me not to be able to justly rape her, it’s an effect of defining finite property (her body is not my property, thus I do not have authority over it).

      I’m detecting this is not a fruitful discourse so I’m not likely to continue with it.

      Brian

  35. MAMNo Gravatar says:

    Prove to me that IP exists.

    You are making the claim that IP exists I’m saying it doesn’t when you make a claim the burden of proof is on you not me, or Brain or McElroy. You claim God exists I say he doesn’t the burden is on you to prove that it exists not me to prove it doesn’t.

    Stop shifting the burden Joel.

  36. JoelNo Gravatar says:

    Begging the question is circular reasoning. They are two terms for the same fallacy.

    Brian, if you are finding this difficult perhaps it is because you are beginning to perceive a weakness in your argument.

    That Mozart could not protect his property in no way proves it wasn’t property. The slaves that served people in those times couldn’t protect their property either. Just like IP is done today, their property was simply undefined out of existence.

    If I create a thing I do so out of self interest. If you reduce the scarcity of that thing (idea) then you have damaged the value of it to me and produced a negative incentive to make it. Following that your argument is one of the service of desperation. If I must survive I must create. Your seizing of my intellectual property then becomes a mafia payoff. There is no point where you compensated me for that which you took. If it is free it must share some quality equal to air. Water costs, food costs, and stuff costs. Air requires no intellectual input to get to you. Food costs some. And stuff costs much. In most cases the value of the thing is the intellectual element bound up in it.

    If you didn’t work for it, you don’t own it. It didn’t just drift under your door and climb into your guitar. Make up your own songs. If you don’t have the talent to do that, then find something else to do.

    This may be a pretty concept to you. But to me, as an artist, it is just another form of one person enslaving another by taking the fruits of his/her labor and using them as he sees fit.

  37. Ron LiebermannNo Gravatar says:

    Posted by Joel:

    Bob is a professional artist (which means that he has “more right” to get paid than an “amateur.” And you can’t be a “professional” if you don’t have the right credentials) He can’t protect his work. (By “protect” I mean stop other people from doing what they want.) He would like his work to be constructive (to make money by creating artificial scarcity of a product or service) to his life. But if he can’t protect it (by making dubious ownership claims), so it isn’t constructive. (If he can’t stop other people, his product or service won’t be scarce, so he won’t benefit. And real artists are supposed to be aloof; they shouldn’t expect to get paid on the strength of their personal reputation.) So, Bob has to make something else, perhaps mass marketed widgets. (How sad. Market forces will make him compromise his artistic integrity.)

    Worse (than than the thought of ideological compromise), Bob makes his art (which is only art because he “says so.”), Monstro corporation steals his idea. (By offering a product or service without paying him.) Since everyone is stealing (By not paying to listen and look) Bob’s idea it doesn’t matter. This is how Monstro makes money, by stealing ideas (Not by offering new or cheaper products or services) better than anyone else. Monstro doesn’t create ideas beyond creating better ways to steal ideas. (Because companies never create anything; and all “new” literature is completely original.)

    Who makes the world better? Bob or Monstro? (because the real purpose of “Art” and “I.P.” is political change: not simply filling a need.) Collectivism looks good on paper (to Communists), but it is Monstro in real life. Under collectivism the blob owns all ideas, not the individual. It may feel fun (to a criminal) to snag (listen or read without paying) an MP3 or a PDF book. But is it good? (like Communism?) Collectivism destroys identity, it allows for no individuality. Monstro owns all. (“Pure Art” like “Communism” should never be subject to market forces, so the only answer is to let “Artists” own everything; through the publishers. After all, artists aren’t Communists.) Do you really want to feed Monstro? (The dirty Capitalist?)

    Posted by Wendy:

    Thanks for the question Marco. I am adamantly against laws restricting the use of ideas – plagiarism is a separate category (fraud) as you will see if you review the discussion thread – and, so, I would make no law constraining what could be reposted or reprinted once it is put in the public realm. Nevertheless, I routinely ask people for permission to use their work. (So I don’t really mean what I say.) I don’t do so as a rights matter but as a matter of courtesy, good will, and good morals. (Because Moral Law and Commercial Law are two different things) If they (The publisher, or the Author; it doesn’t matter who) say “no,” then I refrain from using it. I believe that civility and morality are as important to the smooth functioning of a civil society as the observation of rights. (After all, good people don’t steal) I do not merely wish to be a good libertarian; I also want to be a good neighbor.
    (Because as a Communist and a Press Agent, the whole world is my neighbor.)

  38. MAMNo Gravatar says:

    Anyone else notice how IP advocates are masters at using logical fallacies and fail to substantiate their claims? And then shift the burden to us the holders of the negative position?

    This whole thing reminds me of arguing with creationists.

  39. JoelNo Gravatar says:

    Anarchism is the development of self to such a state that one’s grasp of morality and law is greater than that of the state. No other definition makes any sense. It certainly isn’t a description of anyone involved in packs or groups. And, it isn’t lawlessness, that would be nonsense. It is frustrating that so many collectivists, or if you prefer communists/socialists, have glommed onto the word.

    Taking another person’s stuff without permission is theft. There are no political rationalization that makes it otherwise. The desire to take another person’s stuff reflects a failure of reasoning.

    The two faces of collectivism are the individual social recipient of largess and the big corporations/democratic governments (same thing, both democratic constructs). Free your mind of these and individual responsibility and social obligation become one thing.

  40. JoelNo Gravatar says:

    Rock and Roll!!!! I want to thank you folks. I’ve been looking for this key for months and now I have it. I identified the modern atheist movement as in fact being social Marxism. I can’t believe I just figured this out! Intellectual Property arguments are the fiscal Marxism side of this movement finally coming into being. That which claimed to be fiscally responsible is morphing back into the tired old liberal claim that all property belongs to the prince. Machiavelli is grinning in his grave.

    • Rick DiMareNo Gravatar says:

      The problem with the Marxists is that they never properly defined what they meant by society or “the state,” so it ended up just being a bunch rich, bossy, (or rich *and* bossy) people.

      As Rothbard said: “Society cannot own anything. There is no entity called society; there are only interacting individuals. Ownership of property means control over use and the reaping of rewards from that use. When the State owns, or virtually owns, property, in no sense is society the owner. The government officials are the true owners, whatever the legal fiction adopted. Public ownership is only a fiction; actually, when the government owns anything, the mass of the public are in no sense owners.” Murray Rothbard, “The Single Tax: Economic and Moral Implications and A Reply to Georgist Criticisms” (1997)

      However, what Rothbard and the vast majority of U.S. lawyers don’t seem to understand is that the Constitution does *not* set up the federal government as *owner* of money and common resources, but as *trustee* only. In the U.S., it is only through the use and abuse of private corporations and central banking that all property now “belongs to the prince,” and not to the people.

      • Rick DiMareNo Gravatar says:

        It should be noted that Rothbard also made the same fatal mistake in “Children and Rights” ( http://mises.org/daily/2568 ), where he assumed parents to “owners” of their children, rather than their “trustees.”

        This view of parents as owners led him to the absurd conclusion that children only gain their right to legal personhood when they’re capable of running away from home.

        Stated differently, Rothbard’s rejection of authority was so extreme that he literally threw the baby out with the bath water. (I’m not a psychologist, but if I was, I’d be very interested to learn, in depth, about Rothbard’s experience with parents, caregivers, and other authorities as a child.)

    • MAMNo Gravatar says:

      Now you’re just talking nonsense.

  41. Ned LudNo Gravatar says:

    To Wendy~

    Wendell Berry and Gene Logsdon are two writers who have made hundreds of thousands of dollars (I speculate) writing about the problems and evils of modern agriculture and yet when I constacted them, personally, about helping me and my family recover, somehow, from the abuse our small and basically virgin and child-like dairy farm (milk 20 cows and love them–who does that anymore?) experienced at the hands of Organic Valley, a large company and virtual monopoly, neither of them gave a damn.

    Recently I was banned from Op-Ed News, essentially for being too outspoken and angry about our farm’s mistreatment and the mistreatment of the poor (and child-like) and downtrodden, in general.

    Happy writing!

    your friend,
    Ned Lud

  42. Ron LiebermannNo Gravatar says:

    Posted by Wendy:

    And, yes, the implied contract aspect of IP is infuriating and ridiculous. It is similar to Murray’s “implicit theft”. Even if I *do* correctly understand what he meant — and he defined it differently in several places — I cannot think of a specific example that holds up. But, once again, you and I have a slight disagreement. I have no problem with the word “liberty” meaning “freedom with restrictions” as long as the restriction is that the liberty or rights are be universal. That is, reciprocal liberty in the classical liberal sense. For example, we all have freedom of speech to the same degree and, so, I cannot properly limit yours..

    Posted by Ron:

    There is no such thing as “Reciprocal Liberty.” or “Universal Rights.” The “rights” which a person may have depend on his age, his situation, and the social contract which is in place for his region and country. For example, convicted Felons in America can’t vote (which is just as well; elections are fake anyway.)

    The point here is that no meaningful discussion of liberty and property rights can take place unless the social contract is strictly defined. For example: In America, can a minor “own” a copyright? How about Afghanistan? If the answer is “yes” then society is conferring adult privileges and authority upon children. That’s a bad idea. But if the answer is “no” then there are “classes” of people for whom intellectual property rights do not apply. In fact, America already has one such class: Persons who have been videotaped.
    If you appear in a public place, or get arrested, news agencies and the government have the right to use your image without restriction. In other words, you do not have copyright over your most personal possession: your own image.

    So there are at least two classes of people who don’t qualify as “owners” of I.P: Children and Criminals. And once that trend has been established, it won’t take long for them to create more classes of “unqualified” people. Are you behind on your child support? Did you forget to vote? Then your I.P Rights have been suspended! In the long run, there could be dozens of such restrictions.

    All of this is happening because America doesn’t have a written social contract that defines terms such as “rights”, and “liberty”. And the American government doesn’t want one either. Why? Because of Afghanistan. Those people want women to become good wives and mothers; which is part of the Afghani social contract. Our Communist government in Washington, on the other hand, wants women to become soldiers. That’s a completely different social contract. If Americans could compare, they might prefer the Afghani model.

    So the I.P. argument is not really about “protecting ideas”; it’s about eliminating competing ideas through a mystical social contract that treats I.P. one way for the government; and another way for private citizens. If you asked an American soldier in Afghanistan why he’s there, he couldn’t tell you. He doesn’t know.

    • JoelNo Gravatar says:

      It isn’t exactly mystical. First, the problem with anarchy is that it has attracted social Marxists as a definable term. Social Marxists aren’t Anarchists, they group. But, they are guerilla fighters. Anarchists (my definition) are simply people who have transcended the traditional necessity for a governing force. They self-govern. The rules are very obvious, don’t kill a person unless necessary and don’t take another person’s stuff. Those who figure this out become anarchists. The others just like the ‘A’ sound. By the way, necessity is a priori. It is self defining. For instance, if you attack my child I will kill you. Everyone knows such a killing is just. To oppose it merely demonstrates an unjust mind.

      There are two impulses that drive the actions of humanity: Personal gain and social gain. Both are just as valid, but personal gain, in a pinch, trumps social gain. Society functions best with laws, but all laws are fictions. The act of attempting to follow a law creates a dynamic that allows for the order that keeps you in a house and eating something other than roots and tubors. Complex societies contain a higher percentage of citizens who closely match my definition of anarchy. They don’t steal. Dying and dead societies have as much theft as their system will allow.

      The “social contract” isn’t a contract. It is a dynamic process of obedience to higher order thought. It is an effect of a period in a society’s development combined with the culture’s potential as an heuristic algorithm (of sorts). That period comes and goes and peeks differently for different cultures. I suspect a culture’s nature and potential is a reflection of common neural patterns among racial subclasses.

      Stealing IP isn’t an act. Common theft doesn’t occur to a well ordered people, as a people. When it comes into being, it comes into being at all points since it is a societal shift. So, accusing the government of being the cause is silly. The government is always a manifestation of the will of the people. One group of people may subjugate another, but the government is a manifestation of the will of the dominent people. They aren’t separated.

      Stealing IP is wrong because stealing is wrong. Stealing is wrong because it weakens social trust/structure. Weak social structures are destroyed by stronger ones. To exist as a society is to attempt to thrive. Failure to thrive is desolation. Again, this is a priori. To be a society is to attempt to dominate all weaker societies, just as all other animals do.

  43. Fritz KneseNo Gravatar says:

    Wendy, I am glad to see your change of viewpoint. It is much more in line with this supposedly anarchistic site rather than the libertarian view (minarchist) that you previously espoused. Since “anarchist” means “no government” one would find voluntary guidelines in a truly free (anarchistic) society. It is hard for me to see much voluntary compliance with various forms of intellectual property “rights”. I am reminded of the storage batteries in many of Heinlein’s “future history” series. The inventor did not depend on government protecting his intellectual property “rights”. He built the batteries to be totally safe unless you triled to dismantle them. Then they would explode violently thus protecting his secret from being reverse enginered. In real life big companies have ins wilth the patent office to steal ideas they can use by slightly changing them and pre-dating the application. This has gone on for many decades. The point is that intellectual property is impossible to protect by government intervention for government is always corrupt. Big money will control things and keep its power and perks in perpetuity by rigging the game. Read Joe Steilitz’s The Cost of Inequality to get a better idea of how the ruling elite have gamed us all. The bottom line is that government started as a protection racket and has stayed that way. One is irrational to expect the powerful to willingly give up that power.

  44. Wendy McElroyNo Gravatar says:

    Hello all: I wanted to explain my absence from this discussion after being so active in the beginning. Seth King told me a few days ago that the Daily Anarchist would be migrating to a new site and advised me not to post any new articles. Frankly, the move would have taken place by now and I expect it to occur at any moment. I will dive back in as soon as the moving dust has settled.

    Happy Easter all!

  45. Ron LiebermannNo Gravatar says:

    I agree that Marxists are not Anarchists; on the contrary, they are Fascists who create and then manage conflict. (A Separate Peace, by Knowles. I Never Promised Your a Rose Garden, by Greenburg) And they are not, as you claim, “guerilla fighters”. In fact, Marxists are the most highly organized political group in the world. You will find them in the U.S. Military; (Starship Troopers, by Robert Heinlein) and also in Washington D.C. (Three Days of the Condor, by Pollack). At the heart of the problem is your assumption that Communists are fighting a “defensive battle”. In fact, they are fighting an offensive battle to change the global social contract to fit the demands of communist ideology. (Take Away One, by Froncek). They do this by infiltrating the media at every level, including this website. (The Merchant of Venice, by Shakespear. Shylock’s Daughter, by Jong.) Another mistake you make is in assuming that Marxists follow the anarchist rules of engagement; they don’t. For Marxists, the objective is not to protect personal property; it’s to silence dissent, and to allow only one point of view: Theirs.

    That’s why everything they do is based on mysticism: the systematic denial of choice. They do this first of all by oversimplifying; in order to reduce the intellectual level of the debate to that of a child: “don’t kill a person unless necessary and don’t take another person’s stuff.” Then they brand any dissenter as an immoral person: “necessity is a priori. It is self defining. For instance, if you attack my child I will kill you. Everyone knows such a killing is just. To oppose it merely demonstrates an unjust mind.” Then they try to destroy rational thought by claiming that humans are merely animals acting on impulse: “There are two impulses that drive the actions of humanity: Personal gain and social gain.” Then they claim that the problem can’t even be defined: ” The “social contract” isn’t a contract. It is a dynamic process of obedience to higher order thought.” Then they claim that as a result, society can only be managed by “certified” smart people: “It is an effect of a period in a society’s development combined with the culture’s potential as an heuristic algorithm (of sorts).” (Flower’s for Algernon, by Keyes) And, of course, anthropologists are really smart. “I suspect a culture’s nature and potential is a reflection of common neural patterns among racial subclasses.” (The Golden Bough, by Frazer. Coming of Age in Samoa, by Mead. The Ice People, by Barjavel.)

    Why? Because Marxists want to track, record, and control every social action in every culture; i.e. falling in love, getting married, and having children. In the world of sports, communism, and I.P. everything must also be recorded; what a coincidence. This is Marxism as communism as legalism: (I would urge you to think of the situation not in terms of morality — e.g. what is the “fair” way to act — but in terms of rights. by Wendy McElroy)

    Then, to impose this new worldview, they make unsupported statements as a power tactic: “Stealing IP isn’t an act.” This statement actually contains two hidden fallacies: The first is the implicit assumption that it is “possible” to steal I.P.; therefore the debate has already been settled; as a fait accompli. The second is that all “actions” are ideologically defined; thus actions outside the pale don’t even exist. (1984, by George Orwell. The Man in the High Castle, by Philip K. Dick.) Then they try to absolve themselves of responsibility for the immoral nature of trying to destroy regional cultures (Stones into Schools, by Mortenson) with the old Jedi mind trick. “Common theft doesn’t occur to a well ordered people, as a people. When it comes into being, it comes into being at all points since it is a societal shift. So, accusing the government of being the cause is silly.” (These aren’t the droids you are looking for. Star Wars Movie, by Lucas) Finally, wrap the whole deal in a nice package of meaningless jargon: “Failure to thrive is desolation. Again, this is a priori. ” and remind people that they don’t have any rights at all, because people are just a bunch of animals: “To be a society is to attempt to dominate all weaker societies, just as all other animals do.”

    There are no regional values worth defending (including attitudes towards the proper role of women) ; and to do so is a crime. (In the Electric Mist Movie, by Tavernier. Flatland, by Abbott.)

  46. MAMNo Gravatar says:

    Guerilla warfare is a type of warfare created during the Spanish Civil War of the early 20th Century. The Spanish word for war is guerra.

    During the Spanish Civil War (36-39) the rebel fighters hid in the mountains and engaged in hit and run tactics.

    Guerrilla warfare is simply a type of warfare were a smaller force fights a larger more traditional force using various tactics, such as ambushes sabotage raids etc…

    The point is some but certainly not all Marxists are guerrillas.

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