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An Objectivist Recants on IP??

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By Greg Perkins from NoodleFood,cross-posted by MetaBlog

Over at the anarchist-libertarian Ludwig von Mises Institute, intellectual property lawyer Stephan Kinsella posted "An Objectivist Recants on IP." The posting describes how someone named Bala was mixing it up in their discussion threads and eventually came to conclude that "An Objectivist cannot and should not support the notion of Intellectual Property because it violates fundamental Objectivist principles."

Unsurprisingly, the culmination of Bala's odyssey and the central point that cemented the illegitimacy of intellectual property in his mind is a common one voiced by libertarians opposed to intellectual property: the notion that intellectual property rights inherently conflict with material property rights.

Ideas and patterns, on the other hand, presented a problem when I tried to treat them as "property". While there is no denying the value of ideas in human advancement, exclusion of other individuals from an idea or pattern necessarily involves the initiation of force. For instance, how else is A to prevent B from incorporating A's idea in his B's product other than to force himself upon B's property and coerce B to prevent him from doing so, thus violating B's Liberty? In effect, recognising ideas and patterns as property is tantamount to saying that A has a moral right to initiate force against B simply because he has coined an idea. Thus, as an Objectivist, classifying ideas and patterns as "property" takes me into dangerous territory where I am ready to label the initiation of force as legitimate.

This is ultimately based on confusion about which kinds of ideas do and don't properly count as intellectual property, as well as confusion about what does and doesn't constitute a rights-violation. I addressed this (and more) a few years back in "Don't Steal This Article!", an analysis of the strongest libertarian arguments I could find against the legitimacy of intellectual property:

The first thing to note is the plain fact that people are routinely prevented from using their material property when it would violate [i]any[/i] right -- so the protection of intellectual property rights would not be unique in so "controlling" other people in their use of their material property. For example, my neighbor's person and property rights are not violated when he is not allowed to spontaneously whack me in the head with his fully-owned two-by-four. His rights are not violated in preventing him from using his tangible truck to pull up to my house and drive off with my entertainment center. We are all restricted from using our persons and property to violate the rights of others, and such restrictions do not themselves constitute an infringement of rights because nobody has the right to violate rights.

It is bad enough that these libertarian scholars ignore such an obvious point, but the evasion reaches full bloom in Kinsella's explanation of the alleged "taking" caused by the appearance of intellectual property. The charge is that, as intellectual property comes into existence, liberty is lost in a magical transfer of partial ownership from the owners of material property to an author or inventor, thereby unjustly preventing them from doing something they were otherwise free to do with their own property. But in no sense is any ability, permission, or liberty lost. Recall that intellectual property rights protect the manufacture of creations -- objects which did not and would not otherwise exist. Before a novel has been written, absolutely nobody has the power to publish it, so its being authored cannot remove any liberty previously enjoyed by printers. And before some better mousetrap is invented, nobody has the power to produce it -- so its being invented cannot deny manufacturers any previously enjoyed freedom.

Indeed, far from losing any power or liberty, the options available to owners of material property only increase with the appearance of intellectual property: they are presented with at least the potential to use their property in the production of new, life-serving objects in collaboration with an inventor or artist.

Bala's friends there at LvMI are definitely not helping him out. How many of the other issues with his account of Objectivism and IP can you see and (constructively) address?

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Cross-posted from Metablog

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It seems to me that this individual has been trapped. It is likely that, in order to establish common ground with his opponents, he adopted some of their language and concepts to fit with his concepts. The framing of the argument on their terms was a sleight of hand that confused him. I find it telling that he capitalizes 'Liberty' and speaks of it as being 'stolen'. I don't think Objectivism considers 'liberty' to be a right in and of itself. Liberty is a condition that occurs when specific rights are protected. 'Liberty' cannot be stolen, only the rights that create the condition of liberty can be infringed.

Libertarianism seems to think of property as an inherent component of identity, as in, 'a man and his castle'. Without the castle, there is no man. I know von Mises was very outspoken against socialism in Europe, and much admiration to him for that. Still, what is the philosophical basis for identifying property rights with the individual? This philosophical connection is manifest in practical matters - and therefore apparent to those who have not identified the underlying philosophy (ie, liberty is good, because it seems to help people achieve goals that are generally accepted as good). When you objectively identify man's connection to the material world by recognizing his productive efforts, and the use of his mind, then the concept of property rights becomes perfectly clear. At this point, you also can see why IP rights follow as well.

In this sense, I wonder if I would be going to far by saying that Libertarianism contains a form of mysticism that holds property as some sort of intrinsic value. I would ask this 'recanter' why property has value. The answers then fall in place.

Recently I've come to really appreciate the Axioms of Objectivism. Concepts require a basis to be objective. Property has value because of other values from which it is derived. You can't understand the one without the others. And no concept is more foundational than that of existence. Existence vs. non-existence is the fundamental alternative. This can seem sort of obvious or even redundant - it has to me at times. But I've come to understand how necessary it is as a concept. I helps offer a 'complete picture' by which one can judge the 'incomplete picture' of the IP-rejectors.

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In this sense, I wonder if I would be going to far by saying that Libertarianism contains a form of mysticism that holds property as some sort of intrinsic value.

The non-initiation of force is the libertarian mystic intrinsic value. They don't see the force involved in unauthorized copying.

That was a somewhat lively thread for Noodlefood, and Kinsella, Bala, Mossof and Sandefur chimed in.

Edited by Grames
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I posted a reply on the original Mises thread and used a metaphor that I'm actually quite proud of. Reposting here, in case insight into the typical economicist libertarian's mindset interests anyone else...

* Due to scarcity, we must figure out how to peacefully allocate resources. *

Scarcity is not the basis of property right. Property rights are a political concept, they must be based on something hierarchically antecedent. Economics - a special science - is not it.

Property rights, as all valid rights, are based on Ethics, not on Economics.

Since libertarian ethics all branch off an arbitrary (i.e. ungrounded, not rationally derived) "non aggression principle", it is quite obvious why libertarians cannot understand the actual nature of property rights. Their ethics can't support them - so they try to ground them in economics.

Since the "non aggression principle" is actually right (and an Objectivist knows WHY it is right, and in what context), it is easy to see why the discussion between Objectivist and libertarian becomes so charged.

To use an exagerated metaphor to illustrate the point:

Let us say two people are discussing baseball. One of them understands the principle of gravitation, while the other simply assumes "the falling principle".

While the discussion is restricted to Earth, they agree completely - their concepts produce the same results. But one day they start talking about how it would be to play baseball on the Moon.

At this point the guy who simply uses "the falling principle" is out of his depth, but he doesn't know it. The claims of the other guy will seem absurd (mile long home run hits???).

The fact that his "principle" is not grounded in solid understanding, but a floating abstraction, renders him incapable of following the guy who actually understands gravitation. And makes that guys claims seem quite absurd.

In this case the Objectivist, who's concept of rights is firmly grounded in a coherent ethics derived from basic facts and actual philosophical axioms is like the person who understands gravitation. The guy who blindly applies "the falling principle" because he doesn't know better is the libertarian.

And when the Objectivist tries to explain to the libertarian that in certain contexts his understanding is incorrect, the libertarian answers "ah so you are in favor of aggression!". Or, in our metaphor, "ah, so you are saying things don't fall!".

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I haven't spent time on libertarian forums and don't know many libertaruians to debate with so the anti-intellectual property thing is a bit new to me.

Help me to understand their premise, please.

Libertarian POV:

It is possible that two people may have the same idea at the same time.

Therefore, if one person establishes a right to the idea (copyright, process patent, etc) they are infringing on the right of the one who had the idea at the same time?

Is this a correct estimation?

If not could someone clarify?

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Libertarian POV:

It is possible that two people may have the same idea at the same time.

Therefore, if one person establishes a right to the idea (copyright, process patent, etc) they are infringing on the right of the one who had the idea at the same time?

I certainly hope not. As this to me, seems, quite blatantly, like nonsense.

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Libertarian POV:

It is possible that two people may have the same idea at the same time.

Therefore, if one person establishes a right to the idea (copyright, process patent, etc) they are infringing on the right of the one who had the idea at the same time?

Is this a correct estimation?

If not could someone clarify?

A Critique of Ayn Rand's Theory of Intellectual Property Rights by Timothy Sandefur from Sciabarra's Journal of Ayn Rand Studies vol. 9 no. 1 (Fall 2007) via the SSRN. It is a long paper, in part 3 it lists 3 serious complications and the first complication listed is the "innocent simultaneous creator".

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Help me to understand their premise, please.

In essentials:

1. They argue that independent invention is the norm (not the exception) and that, therefore, IP law is massively unfair

2. They argue that if you invent something and patent it, they are "forbidden from inventing it themselves"

3. They argue that IP conflicts with material property rights because they are forbidden from using their physical property to copy your invention (this is their main argument)

A1. Independent invention is not the norm. And any decent IP law will have means to guarantee the rights of independent inventors (and a standard of proof to be met, to show that the independent invention was in fact independent)

A2. The "right to invent something in the future" is ridiculous on the face of it. When the libertarian posits this argument he invalidates the concept of homesteading - which is the cornerstone of his own view on physical property rights (which happens to be correct). After all, when someone claims an unonwed tract of land, he "forbids me from claiming that land in the future".

A3. IP does not reduce one's freedom of action. Before the invention was made, the owner of the raw materials could not assemble the invention (because he didn't know how), after the invention he is not allowed to assemble the invention (because he does not own it). To him, there is absolutely no change in what he can do with his raw materials - and a net gain in that he can procure the permission to assemble the invention if he wants to.

An alternate take on (3) - which is actually what caused the "objectivist" in the original thread to recant on IP - is the idea that enforcing intellectual property rights would require the initiation of force.

But when someone sells something that they do not own the IP to, essentially what they are doing is selling something that does not belong to them. This is known as fraud. It is no different from stealing some physical property (say, lemons), making something out of it (lemon ice cream) and selling it. The fact that the milk, sugar and work put into the ice cream was yours does not change the fact that you do not have a right to that ice cream - because the lemons were stolen.

To argue that IP enforcement requires the initiation of force is to argue that anti-fraud enforcement requires the initiation of force.

Edited by mrocktor
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  • 1 year later...

I have an additional question, and I don't know if there is a more appropriate thread to post it.

In my view, intellectual property rights should be endless. Meaning, unless legally transferred to other person or association or persons

I work for a pharmaceutical company who discovers and develops new drugs and diagnostic tests. To me, patents should never expire. What would be the rationale for an expiry date?

What do you think?

Edited by Hotu Matua
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I have an additional question, and I don't know if there is a more appropriate thread to post it.

In my view, intellectual property rights should be endless. Meaning, unless legally transferred to other person or association or persons

I work for a pharmaceutical company who discovers and develops new drugs and diagnostic tests. To me, patents should never expire. What would be the rationale for an expiry date?

What do you think?

Arguments against indefinitely long patent terms:

1) Permission gridlock will occur as later inventions depend upon earlier inventions and must negotiate usage rights from the earlier inventors to actually be used or marketed. If no patent ever expires then the number of permissions required can only ever increase and eventually invention is unprofitable.

2) Inventors have finite lifespans, so cannot have indefinite property rights. No, it does not matter that an immortal corporation might be the owner of a patent. The origination of the right to property in an invention is by the action of the inventor, and the patent system exists for his benefit.

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Wow, I just clicked on that Recant article for the first time, and I simply cannot believe one of the statements that he makes in it (or that I haven't seen it called out before):

How do you propose to enforce IP except through the State machinery? Considering that the State has never demonstrated any tendency other than for evil, how is this consistent with the advancement of Liberty?

Ayn Rand held that rights in general, including both IP and physical property rights, can only be enforced through the state, or as Bala calls it, 'the State machinery.' Bala, however, apparently thinks that the fact that IP enforcement depends on the state is a 'troubling' issue with IP. But how is this any different from physical property rights? Objectivism also holds that those can only be legitimately enforced by the state. The only way that this observation about IP would be damning is by starting from the premise that the state should not have to be involved in the enforcement of rights. But this is simply anarchism. In short, one of the issues that initially 'troubled' this guy is only an issue for those starting from the position of anarchism. Whatever views Bala held on rights and IP before this 'conversion,' they certainly don't seem to have been grounded in Objectivism.

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