More dialogue on "Rethinking IP": does property arise because it helps people in societies to solve problems, or because thinkers come up with "principles"?
Further to my previous post (Rethinking “Rethinking IP”, or, if we step away from statism, will societies not find ways to protect ideas?), allow me to note here some conversations from the comment thread to Stephan Kinsella‘s Rethinking IP post.
My key point is that it is cooperating individuals in societies with shared values, mores and customs who come up with “property rights” in the form of agreed practices that they find mutually suitable, not thinkers who are coming up with “principles”, and using them to tell others how stupid they are.
Societes of cooperating individuals are the sine qua non of ALL property. Those who focus on the “principles” but ignore the need to build community are trying to grow trees at the risk of damaging the forest.
I’ ve corrected a few typos and added emphasis:
February 16, 2011 at 12:51 pm I don’t ignore the fact that ideas are valuable. This is incorrect. On your blog you say
Stephan Kinsella has another post up at the Mises Daily on “Rethinking IP”; while I share Stephan’s mission of ending state-sponsored IP – which has morphed into gross corporate-statist corruption, oppression and profound waste – as usual Stephan’s aggressive approach has generated as much heat as light in the comments section.
Rather than reaching a shared understanding of how damaging IP has become (there are real frightening aspects to the current situation) and putting heads together as to whether private alternatives are acceptable or likely or already exist, we have proponents and opponents of IP largely arguing past each other; one seems to assume that if there IS a “principled” basis for IP, then a state role must be accepted, while the other seems to assume that if there is NO “principled” basis for IP, then all IP is theft, so that those who produce useful or appreciated ideas, technologies, music, art and literature will go unrewarded.
How sad that even libertarians forget the role of private efforts and of communities in protecting valued resources and productivity!
I disagree that I “forget” this. And I disagree that we have to be consequentialists without principle. If we have a reason to oppose IP on principle, there is nothing wrong wtih communicating and explaning this.
February 16, 2011 at 10:46 pm
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Stephan, you’ve acknowledged ideas are valuable, so then why you do this weird thing of assuming away the question of whether a free society would protect ideas – and ignoring the growing array of non-statist alternatives (since even state-created and -enforced IP is leaky)?
Widely agreed libertarian principles of no state coercion does not translate into a principle that free individuals, organizations and societies can’t evolve ways to afford protection for ideas – nor is such an effort needed to fight the IP/corporate-statism that concerns us all.
February 16, 2011 at 9:46 am Tokyo Tom,
Stephan, in your eagerness to find a strong “principled” basis to reject IP, you ignore the fact that, like physical substances/resources that we find valuable and worth protecting (which protection our society acknowledges as appropriate via the term “property”), many ideas are valuable, take time to develop and may be worth defending.
In general, I can actually agree with this. If someone said that in his opinion, IP is more valuable than physical property, and therefore takes precedence, that would destroy my most important objection!
However, doing this requires admitting that you are a utilitarian. I guess a typical IP proponent has a big problem with this, so he prefers not to do it.
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Peter, isn’t it clear that is the IDEAS men have about how to use resources that makes them valuable?
While we must have food, water and shelter to survive, in an advanced economy all ‘property’ is a manifestation of an idea and the intellectual component is the primary value. The sand that goes into fiber optics and computer chips is dirt cheap.
Ideas are clearly as important as physical property — the question is simply whether those who want to protect either are justified in using the state to do so.
Afraid I don’t follow you on utilitarianism ….
TT
Tokyo Tom,
my argument is that immaterial goods are an interpretation of the material goods, rather than a separate phenomenon. If I was wrong, it would be possible to show an immaterial good which does not contain a material good, or how to interact with an immaterial good without using the material world, or how to act without changing the physical world.
I don’t object to the claim that ideas have values. However, if we assigned property rights to them, we would need to sacrifice a proportional amount of physical property right. If you, in general, accept the concept of physical property rights (which all of IP proponents I debated so far do), then your only defence of IP can be that the rights you are gaining are more important than those that you are losing (= utilitarianism).
Peter, I’m afraid we may have different understandings of what ‘property’ is; my rather pragmatic concept is here:
Seems to me that humans and the societies they live in have rather flexible views of what is ‘property’, and it is easy to understand the choices in a [personal] utilitarian light; that is, resources that are given protection are those that are relatively more important and relatively more easily protected [by the people involved]. What can be easily defended personally (and by relatives or employees) may be ‘personal’ property, while other property that requires cooperation may be community property or property in which individuals have limited personal rights and corresponding responsibilities, but in all cases people carry a shared sense of what is ‘right’ and ‘wrong’ — that is, a shared sense of what is ‘property’, whom it belongs to and what that means in terms of rights and obligations.
Intellectual property and physical property are not very different in these regards in our own society, and both would be likely to arise and exist in one form or another even without a state. In cases of both physical property and IP, what is considered property will be based on the relative values placed on those who control such resources and those who wish to be able to make use of them – that is, on the purely utilitarian considerations of the people involved. If those generating ideas wish to control their use by others and others find such ideas valuable, then they will come to mutually agreeable terms of use – such as a contract as to whether a book may be duplicated or shared, or the terms under which manufacturing know-how will be made available. No express social ‘utilitarian’ agreements are needed, though general/widely-accepted norms may of course arise.
Is this something that makes sense to you?
FWIW, my own view is that largely it is the material goods that are an interpretation of the immaterial ones (viz., people’s values and ideas) rather than the other way around.
TT
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Tokyo Tom,
I am afraid that you still do not address my objection. The objection is indifferent to the exact definition of property. It merely points out that no matter what your assumptions are, if they are contradictory with respect to each other, your position is wrong. Even if you change the assumptions, as long as they continue to contradict each other, you remain in error.
I’m sorry but I don’t have the time to read your whole article, so I’ll just make a summary based on what I think it says. Please correct me with I’m wrong. You are saying that as society evolves, people create rules of conduct and some of them are mandated by the use of force. Because there is a demand for “IP”, it is possible that people will include “IP” in these rules.
I have no problem with this construct. But it goes too far ahead of the argument. First of all, it does not address the problem that no matter how the rules are constructed, as long as they are self-contradictory, they cannot be based on correct reasoning. It also does not address my second objection (which I mentioned elsewhere) in that it does not actually explain what IP is.
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Peter, thanks for your further observations. I think you still misunderstand my position about how ‘property’ arises. Property has its roots in competition over resources, and in the choices we faces as to what resources we devote our limited energies in securing and defending. In human societies, this is a process reflecting both competition and cooperation. This piece by Bruce Yandle is useful in illustrating how property arises:
http://www.thefreemanonline.org/featured/the-commons-tragedy-or-triumph/
Now, to address your specific points:
no matter what your assumptions are, if they are contradictory with respect to each other, your position is wrong.
Okay, but what ‘assumptions’ of mine are you referring to?
You are saying that as society evolves, people create rules of conduct and some of them are mandated by the use of force. Because there is a demand for “IP”, it is possible that people will include “IP” in these rules.
A nuance: the underpinnings of property are not deliberately created rules at all, but evolved and shared viscerally felt understandings, as well as culture. It is on this foundation that some members of society may consciously build rules that the rest of scoiety may adopt – in which case, our senses of right and wrong kick in.
no matter how the rules are constructed, as long as they are self-contradictory, they cannot be based on correct reasoning.
My position is that most ‘property’ is not consciously constructed at all. There are some deliberate choices involving one or more persons, in which case they rely on the respective preferences of the people involved, not MY assumptions. But yes, some (many!) deliberately made rules can be based on incorrect reasoning – in which case the rules ultimately fail.
It … does not actually explain what IP is.
In my view, IP encompasses various ways that societies protect ideas – from simple personal private protection of them to agreed protection among company employees, to agreed protection by contracting users, to devices/techniques that restrict copying, to feelings and community morals that copying is wrong without permission, to various types of sanctions, such as being expelled from a particular community and other moral sanction.
‘IP’ does NOT require a state.
Does this help?
TT
February 16, 2011 at 11:05 pm Wildberry, I believe that ‘the real boogie man is the State, not the principles of IP’, and that Stephan’s arguments about the illegitimacy of IP are needlessly turning friends who also share a desire for freer societies into enemies.
I am confident that even if we had no states but free societies, we would have a wide variety of IP, all grounded both on a shared sense of what is right and wrong, and on the value of the information and cost of protection.
And yes, we ought to be able to discussa this civilly AND find many points of mutual agreement. We should all be allies in a community with a shared objective of creating more freedom from state-backed kleptocracy.
TT
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Wildberry, allow me a few thoughts on your comments above: http://blog.mises.org/15633/rethinking-ip/comment-page-1/#comment-759516
Mises called property a “human device”, and I have been repeating that here in support of the notion that humans agree what property is in order to facilitate the goal of cooperation, which is the very definition of society. The ways we choose, if rational, are designed to achieve goals which we seek to achieve. By “we”, I am referring to humans bound together in a society.
Except that Austrians would point out that ‘we’ don’t choose as a whole, individuals make their own choices, typically based on building blocks constructed by others but also including subconscious and cultural ones.
a “good” economic theory leads us effectively to the outcomes we desire.Therefore the operation of property rights and the economic policies employed to achieve desirable social goals should align.
I think that in the Austrian view, a ‘good’ economic theory is simply one that accurately reflects actual huiman behavior, and notes how states often frustrate problem-solving while enabling the creaming of common resources and other one-sided practices by elites.
The Austrian/libertarian view is that governments shouldn’t be consciously striving to employ any ‘economic policies’ to achieve any ‘desirable social goals”, as these are the objective of differening individuals all with differing preferences, and that the state mainly just gets in the way, enabling kleptocracy and incompetence and creating rigidities.
Identifying those areas where the operation of laws and government conflict with the preferred system of economic policies is one way (a very good way) to navigate among the myriad of legal and political issues that most who post here agree are not producing the outcomes we desire.
An Austrian/libertarian would agree only in the limited sense that ‘the preferred system of economic policies’ is to get government out of the way. People of more limited ambition like me would say that we should focus first on rolling back the most destructive and outrageous (reflecting a shared social sense that too much ‘theft’ and disruption is ‘too much’!) government interventions. Such an effort requires building a community of people who have shared purposes – even if the shared purposes may not share precisely the same ‘principles’.
Change, reform, revolution, whatever form of change one advocates, is best aimed at those specific conflicts. This ongoing debate about IP is simply a vehicle that is useful in the analysis of these conflicts.
Austrians oppose coercive state interventions that favor some while stifling others. While some want to do away with the state entirely, I believe it is more productive to focus on the most significant state interventions.
I would certainly agree with Stephan that IP is one the state’s significant and now increaasingly counterproductive interventions. In this sense, State-created IP is far more than simply ‘simply a vehicle that is useful in the analysis of these conflicts.’
I criticize SK and many of his followers about not granting a fair reading of IP laws in stating their opposition. As a result of this practice, much confusion results about what IP is, why it is tied to the same ethical principles, and in the same way, as any other legitimate agreement between cooperating humans. This in turn results in a non-productive debate, and little progress towards the obvious goal of coming together here on what and how to target desired change.
Let me disagree slightly: while we DO have an unproductive debate, Stephan and others are very right to point to ways that current state IP is extremely abusive and wasteful, and that the problem is growing. Yes, some may exaggerate.
But the REAL problem is that Stephan wrongly seems to feel that he has to attack ALL IP in order to round up opposition to STATE IP. But the two are entirely different; Austrians should not insist that, without state IP, there will be no free-market mechanisms and institutions that will arise to protect ideas. or that any such mecahisms, voluntarily agreed, would be ‘unprincipled’. Far from arguing with people’s rather visceral senses of what is right and wrong, Austrians should be directing such impulses to protect ideas into voluntary and non-statist avenues.
This makes us pretty ineffective agents for change. This is one explanation for why the libertarian political movement is so ineffective, in my view.
Sadly, I think you have a point. That is why I trouble Stephan by commenting here — I expect and hope for more from this particular community of libertarians.
Not sure how long you’ve been commenting here, but you’re certainly welcome, from my point of view.
TT
February 18, 2011 at 1:00 pm
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@TokyoTom February 18, 2011 at 2:32 am
Thank you for your thoughtful response. I have just a few comments:
“Austrians oppose coercive state interventions that favor some while stifling others. While some want to do away with the state entirely, I believe it is more productive to focus on the most significant state interventions.”
I think that ancaps and minarchists could cooperate in this regard. It seems a choice between doing nothing (i.e. even opposition to voting) because the whole government structure is going to collapse anyway, or doing something now. If we decided to do something, it seems rational to pick on the most egregious State interventions first. If we were really intelligent about it, we would identify those issues which have a low threshold to change while making a truly significant difference, or a high threshold for change that are game-changers, like real banking reform for example. If it got down to a point where we had accomplished minarchism and ancaps wanted to keep going, we could part company then. Before that point, it seems unnessary to be adversaries.
“I would certainly agree with Stephan that IP is one the state’s significant and now increasingly counterproductive interventions. In this sense, State-created IP is far more than simply ‘simply a vehicle that is useful in the analysis of these conflicts.’”
You are reading a little too much in my comment. I am saying the discussions here at mises.org are a vehicle for understanding principles upon which we may oppose harmful state interventions. Mercantile/State collusion is harmful and should be eliminated.
“Let me disagree slightly: while we DO have an unproductive debate, Stephan and others are very right to point to ways that current state IP is extremely abusive and wasteful, and that the problem is growing. Yes, some may exaggerate.”
Yes, it is always appropriate to give examples that support one’s position. However, if your examples support a position that is based on an inaccurate or unfair reading of the law, then it creates confusion among those who take SK at his word, given his expertise as an IP lawyer. It seems to me that if the examples are representative of some abuse, then that argument is not diminished by being honest about what the existing law actually is and how it operates.
As an example, it is common here to base an anti-IP argument on the premise that “ideas are free”, while as SK knows, both copyright and patent laws explicitly exclude ideas from protection. To even imply otherwise fosters confusion and undermines real understanding of the problem.
“Far from arguing with people’s rather visceral senses of what is right and wrong, Austrians should be directing such impulses to protect ideas into voluntary and non-statist avenues.”
Exactly. I really like your view about how principles of property rights arise as a result of the human need to cooperate with one another. That is why people HAVE a visceral objection to the assertion that there are no IP rights. It grates against a common-sense understanding of right and wrong. This point is articulated beautifully in a paper (and book) by Kathleen Touchstone. Are you familiar with her?
“Sadly, I think you have a point. That is why I trouble Stephan by commenting here — I expect and hope for more from this particular community of libertarians.”
Likewise, although I have noticed lately that more voices are coming to the fore in support of IP, perhaps because the are seeing that there is no reason to be intimidated by rude behavior.
“Not sure how long you’ve been commenting here, but you’re certainly welcome, from my point of view.”
About a year or so. It’s a pleasure corresponding with you. Thank you.
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“IP is antithetical to capitalism and the free market.”
Stephan, isn’t this more than a bit of an overstatement? Is IP impossible in a free-market? Is it antithetical to capitalism to invest in protecting ideas?
“Typical of IP advocates. They are either stupid or dishonest.”
I am tempted to say something flip by mirroring you, but I’ll bite my tongue, and simply say that this is utterly unhelpful, and that I hope you fell at least a little chagrin that you damage our community and your cause in this way.
Yours in striking at the root,
Tom
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