Greetings!
Some time ago, I brought you a piece the primary function of which was to provide a free resource to understand the radical notion, largely held only in libertarian circles, that IP laws are not compatible with libertarian principles. You can find a link to that earlier piece here.
I’d like to direct you now to a piece that I perhaps should have led off with. It is still by Stephan Kinsella, a Houston, TX patent attorney*, Executive Editor of Libertarian Papers and Director, Center for the Study of Innovative Freedom (c4sif.org). However, it is a smaller, more condensed version of his primary argument, and is rife with excellent citations and thorough notes that any budding libertarian or anarchist theorist will find invaluable.
There aren’t many useful pictures that come up when you search “Intellectual Property Images”
In the article Law and Intellectual Property in a Stateless Society, Mr. Kinsella takes the reader through a very brief but illuminating explanation of the evolution of the view of self-ownership and how property rights are inherent to this concept. He then goes on to reiterate how IP laws contradict those property rights, which argument those of you who read Against Intellectual Property will already be familiar with.
The portion that I think our small army of arm-chair commenter-philosophers will find most interesting and conducive to discussion is the latter part of the article. Mr. Kinsella discusses what an IP regime might look like in a stateless society. This directly addresses those who dismiss an idea as being too radical, or unworkable, if no direct formulation is provided of how the idea might play out in a practical fashion.
When downloaded, the PDF shows a length of 44 pages, but due to the voluminous notes, there is really only about 25 or so pages of narrative text. You can read it over your lunch break! Assuming you work for a weak-kneed progressive who actually allows you to not be working for a precious few minutes in order to eat. No true libertarian master would ever permit such indulgence among his (and I do exclusively use the male pronoun when discussing both libertarians, and business owners) chattel.
*Don’t we have a commenter who is also an attorney in Houston? If you disagree with Mr. Kinsella’s positions, you should meet him for lunch and fight to the death. It’s the only way to prove which one is right.
“If you disagree with Mr. Kinsella’s positions, you should meet him for lunch and fight to the death.”
Clearly murder is the only way to resolve such a conflict. I fail to see any other alternative
I thought about it for a long time, but kept coming up blank. Killing is the obvious solution.
That’s obviously your lizard brain talkin’.
Murder? It is mutual combat!
That is true. I should have phrased it ‘gentlemanly combat’
Murder? It is honorable combat. I challenge you to a duel. *slap*
https://www.youtube.com/watch?v=qlSvf0c9Gn4&spfreload=10
Classic.
I was sceered to click the link because of your entrapment skillz.
You are not just magic, but also wise.
And don’t forget delicious!
(I tend to copy paste links into the google machine before I visit the link… Just in case.)
I was SO hoping that was the Simpsons.
About 80% of my links are.
My favorite and possibly me as a young child
Thanks bacon. I much lol’d
Jesus Christ! A bid on the assassination market is the only libertarian option!
Jesus is an assassin? Can he turn blood into hash too?
I’m sure the cartels employ a few Jesuses (Jesi?) as hitmen.
Jesuit
Nobody fucks with the Jesus!
Thank you for that link. I’d been trying to find that little gem for a while.
Clearly murder is the only way to resolve such a conflict.
In a stateless society, I suppose so.
FYI, I didn’t give an overview of how IP might work in a stateless society for two reasons. First, I’m afraid of misrepresenting, or inadequately representing, someone else’s ideas if I’m only giving it a quick gloss to fit into a blog post. Secondly, I hope that people will actually read the linked piece. It’s of a much more digestible length than the last one.
Skimmed it, and I’ll read the whole thing later. I think I’ve actually read a smaller version by Kinsella before, which I agreed with.
My personal IP anecdote: About a year ago, the R&D group I work in patented part of our design. I’m anti-IP, and when everyone was trying to remember whose idea it was, I assured them that I didn’t want to be the lead inventor regardless. Then I told my boss, who ended up being the lead, that I couldn’t be involved in the process out of principle. He was understanding, but he convinced me to sign everything with one concession: my version of the documents was modified to remove any language about helping enforce the patent. It pissed our in-house counsel off, who reminded me that I agreed to the enforcement language in my employment contract (maybe I did). But it all worked out.
Just my little blow in the battle for freedom.
Thanks I’ll read this tonight.
I followed Techdirt for sometime. It turned me from an IP absolutist (almost) into a burn the whole thing to the ground (almost) type.
All of the intellectual property I generate has zero overhead for someone to steal and sell as their own. Given the amount of effort that goes into its creation versus what they would put into rebranding, I would like some form of recourse should this happen. I’m afraid I don’t have the time at work to sit and read the linked piece (Its easier to fit commenting into gaps in my work than a long form piece).
Does anyone know what the proposed solution is with regards to content as opposed to patents?
Excellent resource. I look forward to reading it; I’m an IP (as a species of intangible property) is legit in principle* guy, but haven’t really bothered to track down a good counter-analysis.
*In practice, though . . . .
I used to be in the exact same camp, and confess to have less of a leg to stand on in the examination of the actual practice, not being a lawyer. However, my time at mises.org eventually moved me to the abolitionist position.
I think it would be great if you wrote an article defending the concept, using libertarian principals. I’d love to read it.
Lemme chew on the article above. It looks like he might be attacking it from a productive angle that most overlook – what the hell is property, anyway? Until you have that squared away, any discussion of what is and isn’t legit property is not terribly useful, IMO.
Who knows? I might change my mind. It hasn’t happened in, oh, I couldn’t say how long, so I’m probably due. If not, I’ll see about doing a response.
Warning: I’m
fleeing the jurisdictionout of the country on business for most of next week. So it might be awhile.We’ll still be here, but we expect souvenirs.
A “My Lawyer went to Thailand and all He Brought Me Back was this LadyBoy T-Shirt” — T-Shirt?
A souvenir we don’t have already.
Will accept orphans too, if they have a marketable skillset.
In a rare reversal from their usually behavior, the Marines don’t want all the credit. High ranking Marines are looking to diffuse blame to the other branches over their nude photo scandal.
I chatted about this with the wife after the first one. Here is our question:
My wife has made a series of instructional videos. Do I understand correctly, that the “Libertarian” position as advanced here is that Amazon could buy one copy of these videos, make copies of it, sell those copies themselves, and keep all the profits?
Is this really the place to solicit advice on the marketing of amateur porn?
More importantly, let’s talk about these “instructional videos” your wife made…
So, she’s interested in photography, eh?
CANDID photograpy?
Snap snap, grin grin, eh?
Say no more! Wink, wink. Nudge, nudge. Say no more!
Video 1: How to Eat Ice Cream
Provided they do not engage in fraud by 1) claiming to be the originators of the video, or 2) changing your names or failing to give proper attribution when requested by a purchaser, then yes, I believe that’s safe to say.
Though as with all things, a two-sentence Q&A fails to adequately convey context and alternatives, so I would encourage you to read the piece, or at least the latter most portion of it, in which these concerns are directly addressed.
And, of course, this assumes you didn’t get Amazon to sign a contract promising to not reproduce.
Right, absolutely.
Why would they be required to give proper attribution if ideas cannot be owned? If ideas are owned by no one, which is the same as saying they are owned in common, they have no attribution, so in the hypothetical mentioned it would be permissible for Amazon to just rebrand it as their own product (after all, they are the ones who are selling it) and sell away.
I wish someone would flog me with a wet sock.
This was before Gojira posted.
The daikaiju is known for being a wet sock. This is true.
I can edit your “earnest discussion” post to make it something hilarious, or a link to some porn, if you’d prefer?
We always strive to help our commentariat whenever possible!
Change it to “I wish someone would flog me with a wet sock”
Your wish is our command, good sir.
The EULA type arguments being made here seem solid. But this is where the linked article seems to go of the rails. Kinsella seems to be arguing that EULAs are invalid because the resource is not scarce. Unfortunately I gotta go but thanks for the answers.
Kinsella seems to be arguing that EULAs are invalid because the resource is not scarce.
Without having given it an enormous amount of thought, I struggle with the idea that you can only have property rights in things (which is what the scarcity argument boils down to). This would mean there can be no intangible property rights, as they are not “scarce”. Any digital file – video, music, whatever – isn’t scarce, but guess what: stocks and cash both exist mostly in electronic form these days as intangible digital files these days. I’m seeing a baby/bathwater problem here.
There’s also a real property problem – as we were discussing the other day, we have “fee title”, which means you don’t actually own the ground itself, you own an “estate” in the ground granted to you ultimately by the sovereign. That estate is intangible property as well. You might avoid the scarcity problem here because its intangible property rights in a scarce “thing”, but I’m honestly not entirely sure.
I responded to this before, but I was a little late and I think you missed it.
The difference is that stocks and cash are still subject to scarcity, since if I copy your stocks and cash them in, then that cash will not be there for you and, thus, I have stolen it from you.
If you recite “my love is like a red red rose to me,” and I turn around and repeat it to someone else, it is still there for you to take, and for anyone else, as well.
Some anti-IP libertarians allow for licensing agreements; you technically aren’t selling the video content itself, but a more limited bundle of rights to view/use it in certain ways. The license does not include the right to copy and distribute. This is treated as a typical contract, rather than a government-imposed/defined IP regime.
The difficulty for me is that you can’t sell what you don’t own. If you don’t have property rights in the underlying content, then I’m not entirely sure you have the ability to sell limited rights to that content. I can’t rent you a car I don’t have property rights to, so how can I license you to view/use a video I don’t have property rights to?
Thank you for elaborating; something of the sort was what I had in mind when I mentioned “alternatives”.
Of course you have the property rights to the underlying content. And if you sell a copy (not license), the buyer has the property rights to THAT underlying content.
Of course you have the property rights to the underlying content
Not if there is no such thing as intellectual property, you don’t. That’s why I think its very hard to say both (a) you have no property rights in content because there’s no such thing as intellectual property and (b) you can sell access to content (that you don’t own).
I would argue that your property is the video, not the content. If you make the video and sell it to Amazon under contract that says they won’t copy it, then you can go after them for breach of contract if they do.
But if you want the content, say, played 24/7 on every broadcast medium on the globe so that you can pack stadiums with your fans, then you let that content out, and no one has any obligation (in my view) to refrain from copying it.
I would argue that your property is the video,
If you hold that “scarcity” is a necessary element of anything you have property rights to, then the video isn’t “scarce” – it can be digitally copied without impairing your use of it (roughly, what the lack of “scarcity” means).
Copyright law classically gives rights only in a particular expression of an idea. The content is a particular expression, so you have property rights in that under copyright law. Any copy of the content is covered, of course. Without rights in the content, I don’t see where you have the right to prohibit copies of the content; the content doesn’t belong to you, and I’m not sure you can really say “I can’t stop you from copying the content, but I can stop you from copying the video”. The video and the content are really one and the same, aren’t they?
It depends on how you approach defining them, but I would argue that they are separate in a fundamental sense in the same way that a ‘novel’ is something different from ‘the ink on the paper.’
That’s what I’m saying – you don’t. I’m saying that the exception to that would be if you shared the video with Amazon, but you had a contract with Amazon such that part of the agreement is that they get to see it in return for not copying it.
If you just go around showing it to people, without arranging some agreement with them that they consent to, then you have no rights over what they do with what you’ve willingly shown them.
But, as I said in a previous conversation on this, I tend to think first and foremost in terms of music and literature. I don’t really often think in terms of patents and trademarks on this issue, so I’m certainly open to some schooling.
What would anti-IP libertarianism have against an EULA in this case. If one wants to buy the video, they have to agree to not resell it, etc.? It’s not a contract made under duress.
I’m not aware of any anti-IP libertarians who have a problem with EULA. The problem is when you want the state to enforce the no-copy provision of the contract against third parties who never signed any such EULA.
Right a EULA is one thing but say preventing the recording of a television show broadcast over the airwaves where literally anyone can intercept the signal and create a copy of the broadcast would basically eliminate your ability to put a non copy provision into your EULA because 3rd parties you had no contract with could freely make copies of the broadcast without being subject to said EULA.
No, because you’re not selling Amazon a copy.
You’re licensing them to distribute your property on their platform to their client base, in exchange for a contractually agreed cut of the revenue.
It’s fundamentally a different contract to the EULA which the end purchaser agrees to.
You and HM are correct. I was giving the breezy easy answer because I was dashing it off at work, without putting thought into it. Thank you both for pointing this out.
You’re licensing them to distribute your property
What property are you licensing them to distribute?
If your property rights are in the video (the copy of the content that you have), then doesn’t that mean they can distribute that singular video/copy? If they make copies of it, they aren’t distributing that video/copy, they are distributing copies of the content, which you don’t have any property right to, and so you can’t sell them the rights to distribute.
I think you probably could sell them the video/copy, and if there is no property rights whatsoever in the content, they can do what they want with it. Of course, this means that the window for monetizing content is very small, and the value of the content is correspondingly small.