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Creation Confers Ownership · Wednesday September 24, 2008 by Crosbie Fitch

As Stephan Kinsella points out in a recent Lew Rockwell podcast, there is a degree of confusion, even among libertarians, concerning the idea that creation of an intellectual work confers ownership of that work.

The confusion is really over whether creation confers ownership over a work and all its copies or likenesses.

Naturally, if an author writes a novel, they own that intellectual work. It is their natural intellectual property. However, if they manufacture and sell a copy of the novel as a book, then the purchaser becomes the owner of that book and the intellectual work that is the novel within it. The book is the purchaser’s material and intellectual property, just as the author’s retained original manuscript is the author’s material and intellectual property.

Naturally, an author cannot continue to own the property after they have sold it, whether it is material or intellectual. Conversely, sale of a copy doesn’t relinquish ownership of the original from which it was copied.

However, thanks to the transferable privilege of copyright, the state grants a monopoly over the manufacture of copies to the copyright holder – assuming they are wealthy enough to prosecute its enforcement (generally only large publishing corporations). The author is the initial holder of the copyright to a work.

Nevertheless, even in the presence of copyright, purchasers of books still own the material and intellectual property they represent. They’ve simply had their rightful liberty to manufacture copies suspended in order to reserve this for those privileged by copyright.

This unnatural monopoly confuses some to believe that intellectual property is about an author or creator owning all likenesses of their intellectual works, that simply by being the author they are rightfully able to control the use of their original work and its likenesses or copies wherever they may be, even though they do not own the physical medium in which the intellectual work is fixed. This may well be an attractive idea (and lucrative as far as it can be enforced), but it is unnatural as it presumes an evidently supernatural power of the author, that they must have a reach beyond their own private domain and not only into the global public domain, but also into the private domains of others, far beyond their own neighbourhood and onto the other side of the planet.

An individual self-evidently has a natural control over their private domain, and as this by definition excludes the public, such control cannot impact the liberty of the public in their own affairs. However, to claim control over one’s intellectual work even after one has released it from one’s private domain to publish or privately sell, is a control that necessarily requires a corresponding constraint over others, an unethical suspension of the public’s natural liberty to communicate and build upon the culture they individually and collectively possess.

Thus creation confers ownership of an intellectual work, but it doesn’t spookily confer ownership over all its copies. Each copy exists independently (copyright notwithstanding).

So, when you hear some argue that ‘creation doesn’t confer ownership’, it should really be qualified as “Creation doesn’t confer ownership of all copies and/or likenesses of an intellectual work”.

Putting it simply:

  • Creation confers ownership
  • Purchase(exchange) confers ownership

Both creation and purchase are mechanisms for introducing property into one’s private domain and obtaining ownership thereof.

This applies to intellectual property as much as material property.

If someone creates/manufactures new property (an ‘original’ work or a copy of another item of their property – whether they ‘originated’ that or not) and sells it, the purchaser owns that property. The vendor’s natural rights over their property don’t interfere with what is now the purchaser’s property, nor do the purchaser’s natural rights interfere with the vendor’s- naturally.

Unfortunately, privileges given to filers of ‘novel’ mechanisms and fixers of ‘original’ works, most certainly do interfere with everyone’s natural property rights.

Thus, if people insist on misapplying the term ‘right’ to these privileges, then as Stephan demonstrates, we have to term them unnatural or ‘phony’ rights, thus “Copyright is a phony right”.

However, intellectual property remains natural. The creation of intellectual works confers their ownership to their creator, and the owner of such intellectual property, as with any owner of property, may transfer ownership by physically transferring the property. It is only the privileges pertaining to IP that are unnatural.

It is possible that some IP maximalists who’d like to pretend their privileges aren’t phony rights, but are actually natural, would go further than the legislated privileges they already enjoy and claim that creation/discovery confers ownership over all likenesses. This is plainly supernatural (only a deity or his church could be so bold), and its enforcement is beyond even the superhuman power of the state to achieve – as even some IP maximalists are finally beginning to recognise.

This is why I reject the over simplistic statement that creation does not confer ownership of an intellectual work. It does, as any author or artist instinctively knows. To insist otherwise cannot endear artists to the cause of cultural freedom, where artists are free to exchange and build upon culture, and free to exchange the value of their labour, their intellectual property, in a free market. Authors, artists, inventors, all own the work they create – they always have done and always will.

However, it remains a distinct truism that creation doesn’t confer ownership over all copies and likenesses. In fact, nothing natural can confer ownership over all copies and likenesses, except legitimate possession (one continues to own stolen IP despite it being within a thief’s illegitimate possession). Thus if you wish to own all prints of a watercolour you created then you must go out, repurchase and repossess them from whoever currently owns them. This cannot be done by holy fiat.

In wondering if there are any cases in which even creation fails to confer ownership of an intellectual work, Bill Stepp proposes the obscure thought experiment of whether a burglar can claim ownership of a work they produce in someone else’s private domain using someone else’s materials.

If you think of private domains as bubbles, and that bubbles may exist within others, then the burglar has a tighter private domain about his body even as he invades the looser private domain of another’s house.

A burglar owns the IP they create even in someone else’s private domain. They may not own the materials, and may in the course of their activities cause material damage, but burglary, material theft/damage, has no bearing upon the burglar’s ownership of their IP.

For example, an itinerant poet may burgle into someone’s beach villa, and whilst lazing upon its sunlit veranda sipping a G&T they’ve stolen from the fridge, scribble down a wondrous poem upon some notepaper they’d found in a desk drawer. That poem is nevertheless theirs, their intellectual property, even whilst they violate the material property rights of the villa’s owner. The owners may rightfully claim invasion of privacy, breaking & entry, theft/damage/destruction of notepaper, etc. But, the poem is not forfeit (however valuable), although theoretically, as one of the poet’s assets they may end up needing to realise its value in order to make restitution for their crimes. By way of comparison, just as the poet may steal chewing gum to repair a hole in his old cabriolet’s roof, his car is not automatically forfeit by dint of its proximity or contagion. Theft does not sanction theft, only an arbitrated remedy and failing that, rehabilitation. Another way of looking at it is that if the poet had instead been invited in from the beach by the resident owners of the villa, and had created the poem, it would still have been his IP despite not being his villa, ink or paper.

In conclusion, whilst state granted monopolies are alien to liberty and libertarianism, intellectual property is quite natural (as most authors and inventors recognise). It is only the state granted monopolies of copyright and patent that privilege filers/fixers (‘creators’) of IP that are unnatural.

As for creation, it certainly confers ownership over what one has created, but that ownership does not naturally continue after one has parted with what one has created, e.g. via abandonment, gift, or exchange. Thus one cannot sell the material of a physical work whilst retaining ownership of the intellectual work within it (since parting with the medium parts with the expression). More importantly, creation cannot confer ownership through similarity whether by likeness or through copying. Creating/inventing a novel knot cannot confer ownership over all indistinguishably similar knots and their application, but this doesn’t preclude owning the knots and the secrets of them that are in one’s possession. Purchasers of such secret knots similarly own them.

I hope this reduces any confusion libertarians may have when attempting to understand natural intellectual property and how ownership in intellectual work naturally propagates, and is interfered with by unnatural intellectual property privileges such as patent and copyright.

IP Triumvirate · Monday June 15, 2009 by Crosbie Fitch

There are three theories as to how intellectual work should be recognised as property (or not):

  1. Privileged IP – extended by unnatural monopoly
  2. No IP – material property only
  3. Natural IP – no unnatural monopoly

Privileged IP is the predominant and received thesis. Moreover, to the most extreme of IP maximalists, the privileges of copyright and patent are seen as actually deficient, that the reproduction monopolies should be perpetual, and are otherwise dilutions, albeit tolerable if in the public good.

No IP is the predominant counter-thesis, that there is no such thing as intellectual property, that the only thing that can be the subject of property is matter, not information. Thus if a poem written on a sheet of paper is stolen (from someone’s private possession), only the theft of paper and ink is recognised, and if a copy of the words is stolen, no theft is recognised to have occurred at all.

Natural IP is the recognition of intellectual work as property from a natural rights perspective. It is offensive/incomprehensible to advocates of both the predominant thesis and counter-thesis, as while on the one hand it holds that the monopolies of copyright and patent are unnatural and derogate from the individual’s liberty, on the other hand it recognises that intellectual property is natural, that individuals have a natural exclusive right to their intellectual work. Thus with natural IP, poems can be stolen (theft of IP recognised with/without any material), though no monopoly over the poem is granted, e.g. purchasers of poems are free to make and sell copies or derivatives.

Comment to William Patry - 1 · Wednesday August 19, 2009 by Crosbie Fitch

William Patry no longer publishes my comments on his blog, so I guess this is his inscrutably tacit way of encouraging me to post them on my blog instead.

Commenting upon The Why of Property-Talk in the Copyright Wars

Crosbie Fitch said…

Property derives from the natural right to privacy. It is the physical enclosure, proximity, and reach of the individual’s body to possess and protect a region and objects within it (private domain) that creates natural property. Anything beyond the reach of the individual, in the commons or public domain, that requires the assistance of the community or state to secure is more a matter of allocation (of privilege, custody, responsibility, title, etc.).

Natural intellectual property is thus the physical enclosure of intellectual work (in an individual’s private domain). Published works are naturally public property.

Copyright and patent are transferable state granted monopolies – they do not exhibit any characteristic of natural property, only of unnatural privilege. Moreover, being monopolies they necessarily exceed any notion of a need to allocate care and custody of the commons or public property, they actually derogate from the liberty of the individual to reproduce or improve their own intellectual property – even in the privacy of their own home. The monopolies of copyright and patent prohibit making copies or preparing derivative works in private as well as in public. That is a suspension of an artist’s liberty to create as well as to exchange their labour in a free market.

Copyright and patent are nothing to do with property. They are commercial privileges, and being unwieldy for use by individuals, clearly intended and evolved for exploitation by corporations – at the parlous cost of individual liberty and privacy.

IP Nihilism Ad Coelum et Ad Inferos · Wednesday September 09, 2009 by Crosbie Fitch

I’m amused to confront the warped mind of the IP Nihilist, and yet bemused that it’s so difficult deprogramming them from some of the belief systems they’ve become indoctrinated with (more severely than IP monopolists are in believing copyright to be a natural right).

They have this strange notion that because intellectual works may be infinitely reproduced (well, at least until you run out of atoms in the universe with which to digitally represent them), that they may as well be treated as infinite resources, and therefore disqualified from constituting property – after all, they explain, it would be immoral to enable people to enclose infinite resources.

So as a hypothetical example, let’s say I take a few days to write some software for a client who has invited me to tender. I demonstrate my software, but tell the client they can’t have my intellectual property until they pay me good money for it.

According to the IP nihilist, because my software can be infinitely reproduced it is immoral for me to enclose it as my property, and that therefore the law should turn a blind eye should a burglar steal a copy of my software and deliver it to what would have been my client. Or at least, the burglar is guilty of no more than trespass, as no IP should be recognised to have been stolen.

The IP nihilist has mistaken a state granted monopoly’s constraint on the public’s liberty to make copies, as the copyright holder’s ownership of all copies of a particular intellectual work.

Therefore, they incorrectly deduce, if copyright is wrong, the concept of IP and owning intellectual work is wrong.

No, let’s not be so silly, people still own the books on their shelves, they’ve simply had their liberty to make copies of them suspended. It’s the state granted monopoly that’s wrong, not the recognition of intellectual works as property.

Simply because people should be free to make and sell copies of their own property, that doesn’t mean there’s no such thing as property. And simply because published works can notionally be copied without limit, that doesn’t mean the public has a justification to seize all intellectual works (including each other’s private intellectual property), nor to discount their theft as a non-event.

It is the intellectual work that takes the effort and that is the property of its creator or purchaser. Simply because copies could be made at negligible cost doesn’t mean the work may be seized from someone without their consent, nor that it should remain unsecured by the law.

So yes, the public should be free to reproduce the works in its possession ad coelum or even ad infinitum, but that doesn’t extend in the other direction ad inferos such that the public should be free to take copies of private works, private intellectual property.

If you want to copy something, at least buy the original, don’t steal it. You should be free to make copies of the software you obtain legitimately, but that doesn’t mean the law should turn a blind eye if you steal copies from someone. Free as in speech, not as in beer.

Abolish the unnatural intellectual monopoly (restoring our liberty), and then we’re left with perfectly natural intellectual property. Our liberty is the freedom to make copies, not to steal them. And simply because you can set your PC to produce a billion copies of an MP3 file on your multi-terabyte hard drive that doesn’t mean you get to steal a copy of that MP3 file from your neighbour’s recording studio – on the confused pretext they’re immorally enclosing an infinite resource (or even the facile “It’s ok because they still have a copy”). It is the reproducibility that is infinite, not the resource (the intellectual work).

Ibutton77 said 2938 days ago :

Card carrying IP Nihilist here, hi. :)

I like to consider Crosbie my ally. Our beliefs regarding digital information and economics, while stemming from different foundations, appear to lead to identical practical results save in the unusual circumstance of a bad actor willfully absconding data from a private hoard.

Feel free to correct me if I’m off the mark of course, but Crosbie agrees with me that once data is voluntarily shared with a larger audience, regardless of what compensation was involved, that that data now lay at the mercy of it’s new possessors as to whether it will be rebroadcast potentially to the whole world.

Crosbie’s concern against IP nihilists such as myself lay primarily with the case of where one or more individuals wish to keep data secret. In this case, if a bad actor (I often cast a fictional “data ninja” into this role :3 ) eavesdrops on this data, that is where my view and Crosbie’s view begin to diverge.

We agree that Data Ninja should be prosecuted. Aggressively. Though we disagree on the charges or how the sentencing should be calculated.

I maintain that we should hold significantly greater sovereignty for a person’s privacy and data security than our culture or laws presently allow. I argue that hard earned data is vitally important, only that it cannot easily be quantified and assessed as though it were physical, measurable property.

Crosbie asserts that intellectual works should continue to be quantified as property (somehow), perhaps assessed in a similar way to oil paintings, and that eavesdropping where intellectual works are involved should be prosecuted as a literal form of theft.

Physical property can be quantified (measured, weighed, examined for material content, etc) and rectified (Maltese falcon missing? Find Maltese falcon! Found? Return to proper owner! It only has one possible physical location.)

I know of no way IP could be, however. This novel is your life’s work? and it’s unpublished, and virtually incomparable to any previously published work? What is it worth? Well, you’ve spent 20 hours a week on average over 30 years writing the thing. Do we assess it based on hourly wages? Well, you have published a dozen novels in the past, and none of them have sold a dime. Does that make this work valueless also? Data Ninja stole the hard drive in this case, leaving no copy to assess, so I can’t even read it just to tell you what I’d pay for a copy.

And of course, how could I read it without compensating the author first? Once read, I would be at liberty to redistribute the thing, so I’m sure the author would expect compensation prior to.. er.. assessment. :/

The second step of this scenario is the part where our views begin to starkly diverge.

Crosbie feels, so long as data is voluntarily made available, then whoever possesses it may redistribute the work freely.

While a step in the right direction, I believe that a person should have the recognized right to share absolutely any data in their possession. Regardless of who authored the data. Regardless of how that author hopes to recoup their costs for having initially assembled the data. Regardless of how the data got into the possessors hands.

I contend that our forbearers invented the concept of “property” in order to properly address the fact that physical property, goods and land, can be difficult to distribute and share. A hairbrush cannot benefit the entire community as efficiently as it can benefit an individual, and so long as there are a greater demand for personally owned hairbrushes than there is a supply, people will compete to obtain them. This competition provides economic incentive for those skilled at hairbrush making to increase the supply. Since each hairbrush can only have one owner and can only have one physical manifestation, this system does an admirable job of obtaining the greatest good for the individual as well as for the group from a resource which is limited and difficult to manufacture or reproduce.

However, I do not believe that makes this system, nor the concept of “property” that it engenders, the right fit for virtually any other arrangement. For example it is non-ideal for people to be treated as property. Societies which have tried have failed in the face of those who know of better ways to express “human capitol”. I say it is even contentious to treat animals (livestock, pets, wildlife) as “property”. I say it is wiser to treat deed of guardianship over the animals as property. Such abstract deeds, like physical goods, being irreproducible and limited in supply.

Ideas however — words and sounds and sights, literature and music and cinema — do not benefit at all from being traded in any form similar to physical property, nor can they be deeded.

Whatever meme can be digitized, unlike the hairbrush, can be easily shared. Every member of a society — indeed any member of any society capable of consuming the meme — can benefit from it simultaneously. The supply is (indistinguishable from) infinite, as consumers are counter-intuitively more well suited to reproducing the meme than the originators are. Thus the process of distribution benefits from exothermic participation, and the more popular it is the greater distribution it can have for free.

This sounds much like Crosbie’s accidental strawman in TFA, however I do not claim that hoarding knowledge is immoral. Whatever knowledge a person releases can potentially benefit the globe, but I believe that not only should there be no obligation for them to do so, instead our culture and our laws should strongly resolve to protect the sovereignty of a person’s privacy.

The flipside of the coin “any person should be able to share any data in their possession that they chose” is that “any person should have no obligation to share any information in their possession they do not choose, with very few and specific court ordered exceptions”. Such privacy protection should be directly encouraged by a healthy government. Educating the public on encryption and computer security is potentially as valuable as educating them about drunk driving and safe sex.

Furthermore, the value and the expression of memes are fluid. As water compared to a stone, as air compared to water, is a meme compared to air.

Any part of a meme can have value. From the plot of a movie, to the popularity of a character, to a series of witty quotes, to a particularly poignant wide-angle camera shot that the director and cameraman never foresaw the impact of.

The truth of all art is that beauty and value are in the eye of the beholder. While oft times good art is produced by good artists trying to express a particular idea or emotion to their audience, just as often a work of art is appreciated for reasons entirely unrelated to why it was formed in the first place. Like crystals of ice in the snow catching light from the right angle as your eye moves through the scene, the value of art depends heavily upon what common chords it strikes within viewers.

Thus, we IP nihilists contend that authors are below-average custodians for the memes they have spawned. This due in no disrespect to the artists, but instead because the value is ultimately assessed by the audience, and can thus be best amplified and replicated by the same audience.

So, it benefits society to distribute memes at a rate limited only by the most enthusiastic rebroadcasters with access to the material. Not only that, but for the greatest societal benefit, we should be allowed to remix memes however we please, and these in turn will see redistribution proportional to their popularity. Thus, a majority of production of content can borrow from existing content, dropping the onerous intellectual cost required to make new art until the question of compensation stops being such a terror to producers, and micropayment compensation and pro bono surge in popularity.

Crosbie’s concern about categorizing memes into neat packages of IP threatens this natural economy of memetic propogation very directly.

Crosbie and I have discussed the matter of Data Ninja at some length, and he has suggested that the data pilfered by DN, should it be released into the wild, ought to be treated in precisely the same manner as copyrighted data is today. It should become illegal to share, persons trafficking the data should be issued the equivalent of DMCA notices to censor their sharing, and any material derived from the leaked data should be destroyed or remanded into the “custody” of the original, violated author. Again, please correct me if I am missing your meaning Cros, but I have plumbed you pretty heavily on this point just to be sure.

I have also made it clear in my discussions with Crosbie in the past that this assertion from TFA is flawed:

> Therefore, they incorrectly
> deduce, if copyright is
> wrong, the concept of IP
> and owning intellectual
> work is wrong.

I have said on several occasions that, at least speaking for myself, I do not disown the concept of IP due to monopolistic concerns regarding copyright. Instead, I disown IP due to the toxic effect of literally any censorship beyond a person exercising their own right to privacy, thus disowning copyright, and thus seeing the fall of it’s monopolistic tendencies as a quaint side benefit.

The fact is that I oppose censorship. I would also oppose monopoly, but my first duty is against censorship. That this happens to overthrow monopoly is agreeable, but tertiary. Once we’ve got censorship licked, then I can start worrying about monopoly, oligopoly and cartels. I think they will be easier to fight once the public is properly armed with the free flow of ideas.

Crosbie is unfortunately advocating that which I would classify as sacrificing the free flow of information. I contend that invading global informational transactions in order to reclaim “copyrighted property” is harmful for reasons entirely aside from monopolistic advantage. I contend this is not only a form of censorship, but one of the worst forms. Crosbie championing these methods to reclaim (reclaim?) involuntarily leaked data makes this harm and this censorship no less real and no less harmful. Perhaps less frequent, but with no counterbalancing benefit less of a wrong is still wrong.

I say that censorship to eradicate ideas from the public consciousness is heinous. I see no distinction between a government forcing public retcon to cover up it’s malfeasance, the entertainment cartel forcing public retcon to make it’s digital goods artificially scarce, or a violated author forcing public retcon to.. uh.. er.. what was the goal here, again? Deterrence, or something? To prevent people from selling items at a profit when there is no market for copies? I always get lost at this point.

Crosbie does not arrive at his conclusions due strictly to his distaste for monopoly or backtracking from the present system to work around what he sees as distasteful any more than he accuses us nihilists of doing. Instead, he starts from a set of axia (he has identified these to me so far as “the natural laws”, which I think sound fascinating but have not yet found enumerated anywhere), and he grows a tree of proposed policy from these roots. I do the same, though I am probably starting from different axia.

As a result, Crosbie appears to appreciate whatever limbs from my tree coincide with his. He seems to ignore whatever limbs of my tree do not, unless/until they conflict with his. Then, as we should in order to reach more perfect accord, we argue the matter. He does not yet seem to appreciate that my tree is grown using the same method his is, or concern himself too heavily with how I’ve arrived at whatever conclusions I have. I fear that in his eyes, at any given moment, I am either agreeing with him or speaking nonsense. If this is true, it is only a symptom of the fact that whatever branches in my tree coincide with his did not get there from the same growth pattern. Nor should that be required. Truth is truth, even if you learn it via divergent channels of evidence. Thus, when and where our trees diverge, it is not because I transitioned from following your precise chain of logic into some local error in judgement. It is because I am carefully following a pattern dictated from a source far away from the point where we have diverged. Given our goals are the same (via empirical understanding of human kind and it’s environment, design policy to bring the greatest benefit to individuals and to societies), our complete trees should grow to be congruent if we do this right. Just like mathematicians using different approaches to solve the same equation, they should arrive at the same conclusions. Whatever truths each hold as self-evident are still (ideally) truths, and thus each individual’s chosen axia should be proven via the other. Done properly, your roots would coincide with what I would see as branches, and vice versa, but the trees would resolve to the same completed shape.

Because they instead diverge, someone has forgotten to carry a 2 somewhere, and it is not necessarily anywhere near the point where the divergence really happens. I am sorry to have to maintain my belief that it is your proposed policies and logic (or possibly your axia) which are in error leading to these diverging opinions.

I am not yet certain if it has to do with confusing work with value (I contend that responsibility is the best index of value; a debate I would not mind having with Thomas Paine himself :3) or with overweighing the needs of a lone producer compared to the more likely use case of a swarm of producer/consumers.

One day we’ll get to the bottom of our schism and work it out to at least enough of an agreement to lead to mutually beneficial collaboration. We’re so close already. Presently, I’ve simply been short the free time to craft responses suited to the material in your most recent missive to me, so I took a swing at this one instead. ;3

Best wishes Crosbie, and good luck with 1p2u!

- – Jesse

Crosbie Fitch said 2938 days ago :

Jesse, thanks for a great and very interesting comment. I can at least quickly observe that I have no need to characterise those who hold a different view to mine as necessarily speaking nonsense, but that doesn’t mean that some arguments aren’t nonsense.

Some people argue against IP on some very peculiar and supernatural notions/strawmen – hence my observation of ‘warped minds’.

I suspect we both agree on the fundamentals, but you’ve come to a different conclusion as to whether IP should remain recognised, and to what extent a government should attempt the remedy of its theft.

So, I apologise if I’ve implied that all IP nihilists have warped minds. The aspersion was a bit tongue-in-cheek anyway… ;-)

Ibutton77 said 2936 days ago :

w00t. :3

Oh, and yeah: Comment system apparently works! ;D

Natural IP in Nihilism to Maximalism · Thursday September 10, 2009 by Crosbie Fitch

When I say that I find intellectual property perfectly natural, I’m referring to the contention that intellectual work can be recognised as property. I’m not referring to the current regime of repressive IP legislation where unnatural monopolies of copyright and patent have been granted to creators of supposedly original works.

Natural IP is much closer to the sense of property as possession than property as title. So, in my umpteen articles on this blog I’m trying to point out how IP should be recognised as natural and consequently how it should be legislated, i.e. to propose the abolition of the unnatural monopoly, but not the language.

To put Natural IP in context, here it is among four key positions – using the example of a poem:

  • IP Nihilism: No-one can own a poem, only the material comprising the copies of it.
  • IP Naturalism: Those who have legitimate1 copies of a poet’s poem own that poem in the copies within their private property (house, car, briefcase).
  • IP Monopolism: A poet should also be granted a transferable reproduction monopoly (on the pretext of incentivising publication).
  • IP Maximalism: A poet, or his assigns, owns his poem in all representations throughout the universe, forever.

Given people are so used to copyright’s suspension of their liberty, one must emphasise that without such monopoly all those who are privy to IP are naturally at liberty to copy it. In other words, simply because a book of poetry is in your private property, that doesn’t mean your guests aren’t at liberty to make copies of the books you let them have access to. Everyone is at liberty to make copies of works they are privy to – it’s the works they aren’t privy to that they aren’t naturally at liberty to copy.

So, I hope you can see how my position (whilst still against the reproduction monopolies of copyright and patent) remains pro-IP despite being anti-monopoly. And therefore, how it is distinct from IP nihilism. However, the only people who are going to notice any practical difference between IP naturalism and IP nihilism are burglars, those who aid or abet them, their victims, and those handling their stolen IP.

Even so, despite this minor difference, it is quite an important and contentious one – as can be seen from Jesse’s excellent comment on my previous article: IP Nihilism Ad Coelum et Ad Inferos

________________________________

1 Not stolen – not obtained through violation of an individual’s privacy, burglary, theft, etc.

Adam said 2938 days ago :

I have to say I agree with most of your views on this subject but I don’t think that “those handling their stolen IP” should be subject to censorship.

I agree that the theft of private information is certainly unacceptable and that it should be punishable but once the information is in the public people who were not involved in that invasion of privacy should not be censored.

For example say that a thief steals a recipe from a company for another company, but also posts said recipe on several websites without divulging its origins. I believe the thief should be punished and the company he stole for should be punished.

But how will you track who may have visited those websites and copied the recipe?

Even if you could, how many people may they have given that recipe to?

Where else might they have distributed the information?

I believe you would need something just as intrusive as copyright to police it if not more so.

And why should they have that information taken from them? they have commited no crime and are not harming anyone else.

I really think that once the information is public it doesn’t matter where it came from, you shouldn’t try to censor it.

that is not to say that i believe that the thief should be allowed to keep the information that he stole or be allowed to distribute it, if you can prevent him or catch him before he does.

But if private information is made public i don’t believe you should try and persue third parties who had nothing to do with the theft of the information.

Crosbie Fitch said 2938 days ago :

Adam, I don’t think anyone should be ever subject to censorship, i.e. their communications to be intercepted and/or prevented by the state.

However, I do think people who set out to violate another’s privacy by obtaining copies of their work and communicating it without their consent should be subject to prosecution for that violation. That also applies to those who knowingly abet that violation.

People who are unwittingly circulating such stolen IP aren’t doing so knowingly. However, they should at least cease and desist from doing so when it is brought to their attention.

There may well need to be some measure of when such C&D notices are pointless, or no longer in the public interest, but that doesn’t mean they aren’t potentially helpful and valid remedies in the case of IP theft.

Remember that for IP I’m only talking about the communication of identifiable intellectual works, not gossip.

And also remember, I’m only talking about the natural rights of the individual. Corporations have no rights except the benefit of the aggregate right of their human constituents. So, if an employee from one company reveals a recipe they’re privy to to an employee in another company, that violates no-one’s privacy.

Adam said 2937 days ago :

I think i see where you are going with that, you want to use it as a way to protect the first sale of an intellectual work so that it is still of value to it’s creator. and i think i can agree with that. thanks for taking your time to make this site, i have found it very inspirational.

Adam

Crosbie Fitch said 2937 days ago :

Adam, I think it simply falls out of Natural IP, that because intellectual work is self-evidently recognisable as able to constitute property it can thus be exchanged.

It is when people who have found the current regime of IP monopoly so abhorrent that they reject IP entirely, that one ends up with the prospect of intellectual workers being unable to exchange their intellectual work.

Let’s restore the public’s liberty by abolishing the monopoly, but let’s not go so far as to liberate the burglar by denying the property.

Adam said 2936 days ago :

Sorry but i can’t see property as anything but physical, as you yourself have said you have no natural ability to exclude anyone else from “intellectual property” hence how can it be property at all save that you take others natural rights from them to exclude them from making their own copies with their own property.

I am against the theft because i see it as a breach of privacy and that is wrong in my view, something the government should protect against.

I can accept that if someone were to make a copy of your creation by invading your privacy and sell or distribute it before you then they rob you of your chance to profit from your work the first time it is sold and so i can accept something like copyright to protect the creator in that circumstance.

But you will still be taking away my natural right to do what i wish with my property to do it.

Also property is only necessary because physical goods are rivalrous, if i take it you don’t have it. we can’t both have it at the same time.

If they weren’t then what use would there be in the idea of property?

If physical objects became non-rivalrous and everyone had a device that could freely recreate any physical object should someone have a right to deny the ability to create certain things simply because it would benefit them?

Every industry that produced a physical good would want to stop it, they would be rendered unnecessary.

yet look at the good such a device would do, no one need ever go hungry again. medicine could be easily provided to all in need to name a few things.

Idea’s are non-rivalrous there is no need to try and apply the idea of property to idea’s. it is in fact counter productive, you are trying to limit something that is essentially limitless for your own benefit.

If you want to keep something private don’t share it, if someone invades your privacy and takes it anyway punish them fair enough.

Even take the information in all it’s forms from them.

This remedies the breach of your privacy.

But the only justifications i can see for tracking down any uninvolved third party who may have that information and taking it from them are commercial in nature and violate the natural rights of those people.

That copy is theirs, no matter where it may have come from.

you are forcing them to make changes to their property to remove information, in other words you are appropriating their property to give yourself a pseudo property right

As i said i can accept that in order that creators can have the opportunity to profit from their work

but i guess i feel you can’t own idea’s, only your copies of them.

Sorry if i am not very good expressing my thoughs lol.

Adam

Ibutton77 said 2936 days ago :

I would say Adam is agreeing with my view here quite eloquently.

I feel it is important to erase the distinction between data you possess externally, in books, hard drives, DVD’s etc and data which you have learned internally.

You should have the same right to “know” something by archival reference as you have to “know” a thing in your mind. Thus also, you should have the same right to express information you know archivally (share it) as you do to express opinions (speak them.. or perform them, etc).

Once you “know” a thing, or by extension from above have an archived copy of it, it really becomes a part of you.

Thus when Crosbie demands that illicitly appropriated intellectual works should be treated as “property” such that it must somehow be reclaimed, it strikes me as as unnatural as “reclaiming” a loaf of bread from a thief who has already eaten it. Or furthermore, tracking down unsuspecting third parties who have taken a piece and eaten those pieces too.

The thief should be punished. Should be punished with sufficient severity to deter this sort of pattern from ever becoming profitable (upholding the maxim “Crime Doesn’t Pay” ;D) Everyone who collaborated in the theft should be punished as well. Every permutation of how an author could be victimized via privacy violation should be brainstormed to preemptively address this problem.

None of that however requires that Intellectual Work be evaluated as a form of property any more than Service Work is.

Finally of course, I would prefer there not be a precedent of this wording to exist in law if possible, lest future generations begin to abuse this concept of “property” in ways that reinstate public censorship.

Crosbie Fitch said 2936 days ago :

Adam, you don’t have a natural right to something if that involved violating another’s natural right to obtain. If a burglar sells you a stolen iPod, the fact that it is now in your private possession doesn’t mean you have a natural right to either the device or the intellectual works it contains.

Anyway, obviously one cannot undo the communication of knowledge, even if obtained through violation of privacy, however, the further communication of identifiable intellectual works that have been illegitimately obtained can at least be deprecated. That doesn’t mean censorship, but it could mean a cease and desist notice may be warranted against those making them available.

This is the consequence of a natural rights approach to the possession and exchange/communication of intellectual work.

I appreciate there’s a school of thought that holds that intellectual work is fundamentally too slippery to apprehend to be treated as property. That’s what I term IP nihilism. There may well be far more support for that philosophy than IP naturalism. However, at least you now have some contrast with my proposition that intellectual work can be treated as property (without monopoly).

Adam said 2936 days ago :

True, and i appreciate the work you do here. we definately agree on more than we disagree :).

Adam

Steve R. said 2934 days ago :

Great post. I like the breakdown. So today I found out that I am a budding nihilist! (I don’t have a problem with copyright if it is short-term and limited in scope. But as it gets “stronger” I am becoming more radicalized in the other direction.)

Crosbie Fitch said 2934 days ago :

Steve, how could you not have a problem with copyright??

I find a monopoly’s suspension of one’s liberty abhorrent for even a day, let alone a decade.

I find it strange that those who have such a problem with the right against theft have no fundamental problem with the privilege of a monopoly.

I think it must be because people have grown up with copyright and patent. Better the devils you know, etc.

Steve R. said 2934 days ago :

The simple answer, compromise. But, as you are also aware, compromise is pointless since those who advocate for a “strong” copyright keep demanding ever greater “protection” and view the public concerns for reasonable use with ever greater contempt.

Also, as you correctly point out – we have grown up with copyright. After all, we can’t question the integrity of our founding fathers. :) :) Why that would be heresy! Consequently, there is an automatic acceptance.

But, since the “strong” copyright crowd increasingly views my rights as being non-existent, my reaction is to move towards the Nihilist position. After all – why should I be constrained by an entity that has no respect for my rights?

IP: Rivalrous and Excludable · Tuesday October 13, 2009 by Crosbie Fitch

I think it prevents a proper understanding of IP to think of intellectual works as non-excludable/non-rivalrous. That only follows from the IP maximalist’s notion that intellectual works are universal, supernaturally pervasive goods, that the monopolies of copyright and patent protect as the property of their rightful owners.

The thing is, intellectual works are not universals. They are not supernaturally able to collapse into a single object by dint of similarity, and hence able to belong to a single owner. Intellectual works are always discrete physical instances. Their similarity (even indistinguishable) confuses us into mistaking them as the same object.

So, don’t be blinded by the similarity. Realise that all intellectual works are independent objects, copies or not. Each instance is the property of its possessor.

From that more natural (non-supernatural) understanding you can then recognise intellectual works as rivalrous and excludable.

Even though we may mistakenly believe we have the same Tom Jones CD, we do not. You have yours, and I have mine. You can’t use my CD whilst I’m using it, I can exclude you from my CD, and vice versa. The indistinguishable similarity of these CDs does not cause them to collapse into a single object, nor does it permit a distant owner of all likenesses to supernaturally govern the use of their property.

It is the unnatural monopoly that gives rise to the idea of supernatural ownership, not supernatural ownership that gives rise to the need for a monopoly to protect it.

Natural IP is not Abstract · Friday January 15, 2010 by Crosbie Fitch

Much of the IP nihilist’s argument against recognising intellectual property refers to the straw man that IP is about claims of ownership over universal patterns such as numbers, i.e. abstract concepts. IP is actually about the writer’s or inventor’s natural exclusive right to their intellectual work that they physically realise, but also the unnatural privileges granted for the benefit of mass producers of those copyright protected copies and patented devices.

Into the tedious argument between IP maximalists and nihilists that regularly occurs in the comments to most posts at the Ludwig von Mises Institute blog, I thought I’d post a comment briefly describing the position of the IP naturalist:

Even as a copyright and patent abolitionist, I’d still argue that patterns can be property. You just have to recognise that patterns are only universals in the abstract. When a pattern is actually realised, physically manifest, then each instance has no relationship to any other except that of similarity (and possibly provenance if constructed through copying). Identity can only occur in the abstract. Two instances may be indistinguishable, but they are not a single instance.

I’ve thought of a number. It’s my idea that I own. It has been realised in my mind. If I set it down on paper it becomes my physical property (material and intellectual property). I control access to both the paper and the number written on it (while I keep it exclusive or private to me). NB I do not control the abstract number, thus have no ability to prevent anyone else using or realising this abstract number, which must be by unwitting coincidence since they have no access to the number I’ve realised. I can sell the number on the piece of paper to someone else (and my memory of it may evaporate) or I can make and sell umpteen copies of it. But no-one else can access this number unless they obtain authorisation from any one of those who have become privy to the number. However, neither myself who thought of the number, nor anyone who is privy can naturally prevent anyone else who is privy from making and selling as many copies as they wish. It would take something unnatural like copyright to pretend such power. However, no-one apart from those who are privy are naturally able to make copies, because they have no access. Other people might independently think of a number that by pure coincidence represents the same abstract number (though neither party can know this until someone privy to both recognises the similarity).

So, numbers and thus information can be property when realised, fixed in a physical medium that is separable from the body. What are unnatural abominations are privileges suspending people’s natural liberty to make copies of what they are rightfully privy to, or use/reproduce (patent) registered designs.

This is the position of natural IP, which accords with the US constitution, but is antithetical to the privileges of copyright and patent, as well as the position of IP nihilism (“No such thing as IP”).

Printerlectual Poppetry · Tuesday March 09, 2010 by Crosbie Fitch

There is both matter and energy in the universe and we work them into useful objects, i.e. art and technology. In everything there is both a material and informational component. The material aspect of objects that we produce we call material works, and the informational aspect we call intellectual works. We apprehend matter with our bodies and information with our senses. We also control the movement of, and access to, material and intellectual works through physical means (as opposed to supernatural means such as ’spooky action at a distance’). It is from the individual’s natural ability to physically possess themselves and other objects that we derive the right to privacy and consequently the notion of property (objects possessed within our private domain).

In the 18th century the privileges of copyright and patent were granted to authors and inventors (registrants of novel designs). These are monopolies applying to intellectual works and augment people’s natural intellectual property rights with unnatural ones – also known as ‘legally granted rights’ or ‘legal rights’ or these days, simply ‘rights’.

Thus those who would retain their 18th century monopolies like to call them ‘rights’ rather than privileges, precisely to conflate them with natural rights.

You have a natural right to prevent a burglar stealing your bread as much as your diary or a copy of it, but only a privilege to prevent people printing copies of the carol you wrote for them that they sung at xmas.

Thus, the monopolists prefer ‘intellectual property right’ to ‘intellectual work privilege’, and simply contract the former to ‘intellectual property’ – so you don’t question whether the missing ‘right’ is a natural right or an unnatural, legally granted right (estd. by Queen Anne in 1710).

Unfortunately, instead of simply being against state granted monopolies, some people also use the corrupt term ‘intellectual property’ in place of ’state granted monopolies’ and so declare themselves to be against ‘intellectual property’. This then means they are also against the natural right people have to their intellectual property, i.e. against its removal or copying by burglars.

Intellectual Work as Exchangeable Property · Friday January 27, 2012 by Crosbie Fitch

It’s worryingly easy for those who recognise the iniquities of monopolies such as copyright and patent to reject the entire concept of intellectual work at the same time as they reject the monopolies, i.e. they throw the baby out with the bathwater.

As an example of this phenomenon here’s such a complaint from Bill followed by my response:

Bill January 26, 2012 at 11:17 pm
Crosbie Fitch, I disagree that the intellectual work (that is, the pattern of words) is Sheldon’s property. It is his idea, but not his “property.” The concept of “property” is indeed limited to material things that are scarce. You could call his idea “intellectual property,” but it seems to me that that would just be confusing it with actual property. And note that I don’t think this is just a semantic point. Rather, by calling his idea his “property” (intellectual property) you are implying that it has the characteristics of property. Property owners have the right to exclude others from their property. If you call Sheldon’s idea (the pattern of words in the article he writes) his property, then you false imply that you believe that he has the right to prevent others from using their property (their paper and ink or virtual equivalents) to reproduce the pattern of words that was Sheldon’s idea.

Bill, it seems that just as it is difficult for copyright supporters to understand that their monopoly is not a natural right, so it is difficult for those who have deleted the concept of intellectual work from their minds to understand that there can be such a thing as natural intellectual property.

The product we call intellectual work has precisely the same characteristics as material work save that intellectual work is far more easily decomposed into information (more easily reproduced and communicated). If, unlike copyright supporters, you don’t get too upset by the facility we have for copying intellectual work, then I don’t see why you should get at all upset at recognising intellectual work as property.

The thing I have difficulty understanding is why you can’t then resist inferring that I believe people have a right to prevent others producing anything similar to their own productions. Such a right, if it was imbued in us, would require supernatural power.

I have got a poem written on a piece of paper in my pocket and I can naturally, physically exclude you from it. You cannot read it or copy it without my permission. Now where you get mystical on me is to say that this means I believe I have the supernatural power to prevent you composing a poem that is similar to or indistinguishable from the one I have in my pocket. Of course I don’t. I have no natural power to prevent, or right to prohibit you from doing so.

Of course, once I’ve exchanged the property of my poem with you for an agreed payment you can then produce as many copies as you like – I have no natural power to prevent, or right to prohibit you from doing so.

Although authors may be enlightened to recognise the Statute of Anne as an abomination, I think it’s understandable if they sensibly refuse to recognise their writing as solely the material of the ink and paper it’s comprised of.

Nick said 2052 days ago :

Just came across this blog + look fwd to following it.

a thought: are you then implying that intellectual property is a secret (like a trade secret perhaps)? && that intellectual property ceases to be such when it is no longer a secret, which as the infamous Jefferson quote points out would seem to go against the very nature of ideas?

++ one thing the internet haz made very clear is this idea of undiscovered public knowledge. I may believe that a particular string of words (or any idea) has never been thought (or will never be thought) before, but it only takes a google search to prove me wrong.

if this is true, then is intellectual property not only a secret, but also a delusion granted by ignorance?

Crosbie Fitch said 2052 days ago :

> a thought: are you then implying that intellectual property
> is a secret (like a trade secret perhaps)?

For an intellectual work to be property it must be fixed in a physical medium (alienable), e.g. written on a piece of paper.

A secret is knowledge that is guarded against disclosure by those (few) who possess it.

An intellectual work can be secret to those who possess it, whether as knowledge within their minds or written on paper in their physical possession.

There is no momentary point at which a secret ceases to be a secret. It is the fuzzy point at which one or more of those in possession no longer guard against disclosure, and may even freely disclose and disseminate the erstwhile secret, such that those in possession can no longer be considered to number in the few.

> && that
> intellectual property ceases to be such when it is no longer
> a secret,

The nature of intellectual property is distinct from the nature of a secret.

Intellectual property shares the characteristics of material property. You can create it (through arranging raw materials), discover it, exchange it, destroy it (rearrange it), and abandon it. It is property because you have the natural power and right to physically exclude others from it. It is not property through notion or privilege, but through natural law.

> which as the infamous Jefferson quote points out
> would seem to go against the very nature of ideas?

There is no conflict between the Jefferson quote and the nature of intellectual property.

> ++ one thing the internet haz made very clear is this idea of
> undiscovered public knowledge. I may believe that a
> particular string of words (or any idea) has never been
> thought (or will never be thought) before, but it only takes
> a google search to prove me wrong.

There is indeed very little that is new under the sun.

> if this is true, then is intellectual property not only a
> secret, but also a delusion granted by ignorance?

It’s up to you whether you want to keep your ideas to yourself, and to any of your confidants and them.

If you realise an idea into physical form then it is your property, and it’s up to you whether you keep it to yourself, exchange it, or destroy it, etc.

Richard M Stallman said 1812 days ago :

If the subject under discussion is copyright, it is misleading to
refer to it as “intellectual property” because that lumps it together
with several other unrelated and disparate laws: trademarks, trade
secrets, utility patents, design patents, plant variety monopolies,
database monopolies (nonexistent in the US but existent in Europe),
controlled geographical terms (existing in many countries), publicity
rights (existing in some US states), and more.

These laws have nothing in common at the practical level, so lumping
them together is a mistake. If you want to talk about the ethics of
copyright, please call it “copyright”.

See www.gnu.org/philosop… for more about this
point.

Crosbie Fitch said 1812 days ago :

I never refer to copyright, patent, or trademark as intellectual property. It is misleading if not deceitful to do so.

They have little in common except that they are all privileges – a priori, instruments of injustice. That said, those arguing in their favour often insinuate them as natural rights, e.g. by referring to the fact that an author has a natural right to exclude others from their writings, and the fact that an individual has a natural monopoly over their identity.

There are no ethics to copyright. It is inherently unethical, a privilege borne of crown and corporate interests (the Stationers’ Company being the first publishing corporation).

I’d lump all these monopolistic privileges together as a legislative mistake, corrupt legislation to be abolished as soon as possible.

"Are you seriously saying that anyone should be able to reproduce and sell a creator’s work without their permission?" · Saturday October 27, 2012 by Crosbie Fitch

“You could just as well say that property rights would not exist in the free market, because you need a governmental body to identify, assign and defend them. Patents are not arbitrary monopoly privileges granted by the government; they are the government’s recognition of an individual’s creative efforts and his right to the product of those efforts.” William Dwyer

Tell a bear his cave is not his property because he has no government to legislate it so. Tell a wolf the carcass he’s enjoying is not his property because he has no government to legislate it so.

Property derives from privacy, the individual’s innate power and natural right to exclude others from the spaces they inhabit and the objects they possess. Governments are supposed to secure such exclusive rights – on the basis of equality – as opposed to whoever is the more powerful.

No natural being has an innate power to control what others do with their spoor.

People may covet such power, but that doesn’t make it a natural right.

An author has a natural right to exclude others from their writings, as an inventor has to exclude others from their designs, and this right should be secured by Congress. However, should either author or inventor include another (in their confidence or otherwise) they have no natural power or right to control what that other may do. We lose no liberty in receiving a writing or design.

What takes our liberty away is legislative abridgement, specifically Queen Anne’s annulling of our right to copy in 1709 (and James Madison’s re-enactment in 1790), that this right may be left, by exclusion, in the hands of a few – copyright holders.

So, yes, if a ‘creator’ discloses their invention or writing to you, you are naturally at liberty (as you SHOULD be) to reproduce and/or sell copies as you see fit – no permission needed. Only patent and copyright annul your right to do so. And such liberty is inalienable, i.e. you can’t contract away your right to copy that which someone has given you (though you can contract away that which is alienable, e.g. a security deposit, forfeit upon being found to have made copies).

 

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