Mikey was dropped on his head when he was little
After that he stopped making any sence
Poor boy

Unsurprisingly, Techdirt’s comment-post code seems to have some problems. Blame the double posts on them, not me, since I only clicked the button once.

In his war against IP, Stephan Kinsella has said: “One homesteads an unowned resource by being the first to possess, use, emborder it, because these give the appropriator an objective link to the property, a better connection to it than any latecomer.” [http://blog.mises.org/archives/007614.asp]

Note the use of the comparatives in “a higher claim” and “a “better connection” to the entities homesteaded that implicitly acknowledges the shaky ground on which that original link to the ownership of the physical entities is held to rest. This is the Achilles Heel of the anti-IP claim that only stuff and never ideas can be property. Actually, it is exactly the reverse that is true.

This inversion is the natural consequence of attempting to define political principles in a philosophical vacuum. Politics is a branch of philosophy – one that follows and is dependent on ethics. While the science of ethics defines the code of values proper for the life of a human individual, politics is the science that applies that code in the context of the individual’s life in a socio-economic society of many individuals living and interacting together over the long-range in a particular geographical region.

The impasse over the opposing positions clearly signals a difference at a more fundamental level that must be dealt with first before any resolution and agreement is possible. This explains the “us vs. them” syndrome that concerns Frank. The Objectivist position on property rights is firmly rooted in and inseparable from ethics, a consideration non-philosophical libertarian pragmatists evade and avoid. Consequently, while arguments between them can be informing, they are otherwise now and forever futile. No political principle can be validated without the support of a valid ethics.

The pertinent ethical principle rests on two facts: 1. that the quality and quantity of a human being’s life is contingent on the application of his ideas and actions to existence. 2) that being volitional, all men are fallible. Consequently, the primary ethical prerequisite in the service of one’s highest value – one’s life – is intellectual and physical autonomy. It is the political concept of property that recognizes in a socio-economic context the application of that autonomy to the entities of existence.

The right to property is not a right to the entities themselves. There is no ethical principle deriving from the nature of man that can establish a moral claim to control an entity in the absence of any application of ideas and actions to it. A property right is the right to control the use of unowned entities because they are the repository of the product of an autonomous application of ideas and actions to existence to which there is a valid moral claim.

In regard to time limits on the ownership of intellectual property it is necessary to distinguish between the transfer of material objects embodying applied ideas from the ideas that can be further applied in the future. Material wealth requires continuing efforts of heirs to it in order to sustain its value (good management, investment, etc.) thus earning in their own right that property. The value of intellectual property does not, so to protect it into perpetuity would be to guarantee a benefit of unearned wealth.

A cutoff at 50 years after the death of the creator would protect his ability to benefit from the value he created by guaranteeing to any prospective purchaser of his rights that the value would not evaporate if the creator died shortly after the sale was completed.

Here too, time limits are a recognition of the fact that ownership devolves not from the stuff of existent objects, but from the human actions they embody in the absence of which no value would exist.

And that phrase is the ultimate source of ownership. The investments of time, mental labor, and physical labor are necessary, but they exist in abundance and cannot produce a value without an idea. The idea is that which constitutes an addition to the sum of all human knowledge and capacities accumulated throughout history that benefits all mankind.

IP is the means of a moral government to guarantee exclusive disposition to a creator of the values he creates. The definition of such values is: that which, but for the creator’s efforts, would not exist.

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Compiled from my replies in the vigorous debate in progress over Kinsella’s article at Mises.org: http://blog.mises.org/archives/009002.asp

First, I want to applaud Platypus at 11:20 and Bob at 12:02. IMO, they both pretty much nail it.

There are so many problems with this entire exchange, but some are just too painfully clear for me to ignore.

For instance, we have a pretty long exchange about IP without a single person using the word “Expression.” And yet, that is precisely what IP is based on. Ideas are not copyrightable, only the expression of those ideas is protected by copyright. That’s why all of you can sit around thinking and imagining all sorts of stuff, all day long, and not own a single thing. Indeed, it’s not simply the expression of an idea — it’s the *fixed* expression of an idea. You have to fix it in some medium before you can assert any rights in it. Have an idea for a book or story? Write it down. Don’t blather about it, because then someone else will write it down and you’ll be crying about how they stole your idea. Once you fix it in some medium, you have created something — you’ve taken your idea, figured out the best way to express it (say, writing), taken a pen with ink, put it to paper, used some form of language, combined the elements of that language in a unique way, and effectively transformed a variety of inputs into an expression of an idea protected by copyright.

This is not something new. It is not even necessarily the product of a statute (our Copyright Act). It was not suddenly thought up by the Continental Congress, either. As someone pointed out up there, it was John Locke and some other philosophers, whose works the Founders were very much familiar with, who figured it out and expressed it in a way that made sense, but the notion can be traced back even further into the mists of time.

Next flaw I see over and over again: parts of this system are broken, so let’s toss the whole system; it’s obviously out-moded. Not true. Clearly, there are elements of how Copyright Law, or IP law in general, that are in light of certain technological advances, in need of revision. But these concepts have withstood the test of time even as there have been numerous shifts and twists and advances. I’ve seen plenty of aspects of the law that, over time, became increasingly difficult to apply to developments that were not foreseen, but except in a few pretty narrow areas, the laws were with some effort and thought adapted and revised in ways that both made sense and still served their original purpose.

With respect to IP, this is very clearly the case, and it’s inherently lazy for people to say, “hey, we’re now in the digital age; too bad for those musicians and writers and artists who put so much time and energy into expressing their ideas and feelings and innermost emotional lives in interesting ways, let them figure out another way to make a living.” To me, this is utterly silly and here’s why:

Copyright does not depend upon the scarcity of anything. It’s not a loaf of bread (although I have problems with the whole loaf of bread discussion for other reasons as well). Nothing about the origins or purposes of copyright law, or any other part of IP law, ever was dependent in the least upon the scarcity of some good. As someone up there pointed out quite well, IP law is not and never was intended to mirror other forms of property laws; and it’s probably just an historical accident that we have inherited the word “property” in that context. It’s an analogy, but a rough one at best.

And yet . . . it does work. The fundamental concept — that if I have ownership over some defined bundle of rights, I may control those rights, distribute those rights, grant access to those rights or to any part of the bundle, put restrictions on any of the above, etc. — is remarkably similar whether we’re talking about real property or intellectual property.

So what’s happened now that has all of a sudden given rise to such a ruckus. Ideas are being expressed with bits and bites instead of ink and paper. So what? The medium might be different, but the inherent nature of what is being protected — someone’s expression of an idea — has not disappeared. The writer is now simply using a keyboard to manipulate electrons which in turn are, via packets of “data” flowing at the speed of light, transmitted to others in a way they can understand.

I honestly fail to see the logic in any of these arguments that somehow digital media and communications have so utterly transformed the landscape as to warrant a completely new way to parse out and assign various rights in a creator’s expression of an idea — be they a writer, or artist, or musician or whatever. When you purchase a recording of Musician X performing a composition he wrote (to keep things simple), you are not buying that composition, nor are you buying his performance of that composition; you have not, and never, ever have, purchased the music, nor do you own the music. You own a copy of that expression, but that is not the entire bundle of rights that went along with it. Never has been that way. You merely have acquired rights in a limited set of the broader bundle of rights owned by whomever owns the copyright in that recording. You can listen to it, you can play it, you can sell your copy of it, but you can’t make multiple copies of it and distribute them, because you never acquired the right to do that.

This is really simple contract principles writ large. I don’t see how anyone can consider themselves at all a believer in free markets, or capitalism, or the like, and fail to grasp this utterly basic principle.

Being a long-time admirer of Ayn Rand and her philosophy of objectivism, I’m compelled to say I agree with your points here as they have been argued and I’m quite certain Ms. Rand would agree with your argument as well. If an individual creates a new thing from materials of which they clearly had ownership, ownership has not been transferred to another. If they create a new thing from materials of which they did NOT have ownership, the owner of the materials also has ownership of the new thing. Once ownership of the thing is transferred to another, that new owner ought to have clear liberty to do as they wish with the thing they rightly own. In the case of so-called “intellectual property”, say a book, a song, a graphic design, although the creator of the contents of the book, the specifics of the song, of the design, etc. reserves the right to be named as creator of that intellectual property, i.e., alter the artistic composition in anyway they choose as its creator, physical copies of said design, once purchased by another ought to be the sole property of the purchaser provided they do not claim to be the artistic or intellectual creator of said property, do not make additional copies of the item for profit thus taking from the creator the right to reproduce their own work for profit – unless, of course, the original creator has granted such permissions – and transfer ownership of said property with the original creative work intact. All in all, what Ayn would have protested is the acquisition of an artistic or intellectual work to pass off as one’s own creation. I believe she would also have protested the duplication of such work for profit without the expressed permission of the original creator to do so. I believe she would have agreed that the artist or intellectual must necessarily reserve the right to make copies of their own work and profit from those copies without having that right taken from them by another without their consent. She would have agreed, however, that ownership of each copy belongs with the purchaser. That ownership of a physical copy of said work does not imply ownership of the artistic or intellectual content for the purposes of duplication. There are many who believe that once they have purchased a copy of an artistic or intellectual work they are free to duplicate it at will. Rand would have disagreed. Ownership of a copy does not grant ownership of the right of duplication. That right is reserved to the creator unless they specifically state otherwise. If duplication rights are granted, then ownership of a copy also means ownership of duplication rights. Of course, to purchase an artistic or intellectual property and then to add value to it by creating a derivative artistic or intellectual work ought to afford the creator of such derivative work the same rights as the creator of the original work FOR THE VALUE ADDED ONLY, not for the value of the original work.

Admittedly, these issues are not the area of my expertise, however, as an artist and writer myself, once I sell a copy of a design or a piece of writing, although I believe the purchaser has the right to sell the copy purchased to another thus relinquishing ownership of the copy, I do not automatically grant them permission to copy the copy to give away free or for profit. As the content’s creator, I reserve that right for myself unless I state otherwise. To copy a purchased copy – to make a new property of my artistic or intellectual work – without my expressed consent steals from me the right of duplication of the work I created. For someone to do so is to take a thing without giving in return. That is deliberate harmful theft, not fairness. It is brutish socialism. It is the belief in the supremacy of the “many” over the individual. It is the belief that the property of one is the “fair” property of anyone who comes along who desires it and takes it without consent. It is the walking through an open door and raiding the cupboards simply because one can. It is the belief that one ought to do a thing simply because one CAN do a thing. Rand would have adamantly disagreed with that point of view.

“Can” and “ought” are not equal.

If I’m the first one in line/queue for something, should I be able to demand a toll from those who queue up after me? I think so. After all, I created the line by being first, didn’t I? Never mind that the person behind me would have created the same line if I hadn’t been there first. I was first and that’s all that matters.