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In this small corner of the internet world where I occupy a
good portion of my time, there are a handful of topics that remain unsettled within
libertarian and Austrian dialogue. Abortion
is one; fractional
reserve banking is another.
Another discussion has raised its head on occasion – that regarding
the validity of intellectual property within a libertarian framework. The latest iteration is the upcoming
cage match pitting Robert Wenzel against Stephan Kinsella, replete with all
of the drama typically preceding such performances.
I have never found the debate significantly important to me:
can one own an idea (in its various manifestations)? While it is to me personally a rather
peripheral issue given the other, more clear-cut, governmentally-enabled property
rights violations we face daily, it is an important consideration for some in
the libertarian community.
There is one aspect in this discussion that I find worth
exploring: the means of enforcement.
From the point of view of the pro-IP libertarian: does
enforcement require government action? I
imagine there are minarchists
that might suggest this. Conversely, is
the enforcement to be achieved solely by contractual means, as derived by
market actors? In this case, a
libertarian bordering on anarcho-capitalist would seem to find comfort.
For the anti-IP libertarian: I understand the objection to
the minarchist form of enforcement. Is there
an objection to the contractual form of enforcement? If so, on what grounds is it suggested that
such contracts be deemed invalid? Here I
do not speak to the practicality of enforcement, but to the application of libertarian
theory.
To me, this question regarding means of enforcement is the
only one that matters. I hope to hear
Wenzel outline his means of enforcement: via government action or contractual
means. If by government, this to me is a
losing proposition. If the means are
contractual, I hope to hear Kinsella explain what, if anything, he would do about that.
An even-handed approach to the issue. Assuming a private law society that has contractual enforcement of IP, does it become incredibly difficult( expensive ) to enforce contract agreement on third parties? Said another way, if you purchase a book(ideas) from Wenzel and by contract you agree to certain restrictions as a part of this purchase then for some reason I gain access to your license copy of Wenzel's book how does your contract agreement with him affect me?
ReplyDelete“…then for some reason I gain access to your license copy of Wenzel's book how does your contract agreement with him affect me?”
DeleteI don’t know that this is any different that the situation today under government enforcement – if you gain access to my copy of Wenzel’s book, you are obliged to abide by copyright, etc. The point I raise is simply to find a private means to establish and subsequently enforce the agreement.
Perhaps no different than the CC&Rs in a homeowners association. Wenzel builds several houses and establishes the CC&Rs for the community. I buy a home in the community, and must agree to the CC&Rs. A few years later, I sell the home to you. You must now abide by the same CC&Rs.
I will say, I haven’t spent any time considering the complete applicability of this example, but I believe it at least loosely fits.
Ok, so in your example you have a single person voluntarily submitting to a set of rules prior to the house purchase( contract). This is a case of one person violating the terms of contract that he entered into and was fully informed of prior to the agreement. It then becomes quite easy for the HOA to sue the violator and enforce compliance to the contract terms( assuming actual violation). In the case of me gaining access to your copy of Wenzel's book and sharing its contents( a violation for you under the contractual terms of sale between you and Wenzel) with 250,000 of my closest friends, 1. how do the contract terms of sale between you and Wenzel affect me and my friends - we were never a party to the contract, and 2. how do you propose Wenzel( and/or you) are going to finance to legal battle to make all of us pay? Wouldn't the legal cost( a risk that you might not win and therefore be stuck with the court cost) be potentially so high that as to be impractical?( I admit this is utilitarian but it still holds water I think...)
ReplyDeleteOr, are you thinking there exists a supra-unified libertarian legal code that is some how agreed to by all insurance agencies, private courts, and all the various societies? A code that all voluntarily are bound to is a code that some (societies) may decide to unbind in part or whole. The whole issue of legal code in an An-Cap world is still very much an undecided concept for me.
If I take the contents of the book from you, through no fault of your known, and use it, is it theft? Surely, you are not concerned here with the physical material itself. A copyright does not cover the paper and binder but the ideas expressed inside so if I copy and use the ideas inside--you still have them and so does Wenzel. Is IP law about your control over your copy of your idea or is it about your control over my copy of your idea?
I will admit I am in the against-IP camp (and curiously arrived there not via Kinsella but because of the open source community, http://opensource.org/) but am wanting to hear Wenzel's argument and hoping for a spirited but respectful debate.
Best Regards,
STS
I apologize for the delay in posting your comment. I have been away from this blog for a few days.
Delete“…how do the contract terms of sale between you and Wenzel affect me and my friends - we were never a party to the contract…”
As one of many possible means...Wenzel can write a simple statement in the book: All ideas expressed in this book belong to Wenzel. Anyone who reads or otherwise accesses the contents in this book agrees to be subject to this condition.”
“…how do you propose Wenzel ( and/or you) are going to finance to legal battle to make all of us pay?”
Either Wenzel (and his publisher or copyright insurance company, perhaps) decides to fight your violation or they don’t. Having the funds available to do so is likely one of the considerations they would take in order to make this decision.
“Wouldn't the legal cost( a risk that you might not win and therefore be stuck with the court cost) be potentially so high that as to be impractical?”
Perhaps. That is Wenzel’s problem (or that of his publisher or insurance company). It will likely keep frivolity in defense of copyright to a minimum as the state-provided subsidy will be gone.
“Or, are you thinking there exists a supra-unified libertarian legal code that is some how agreed to by all insurance agencies, private courts, and all the various societies?”
No, but I imagine certain standards will be agreed to in a free market. Such standards exist between insurance companies when it comes to auto accidents involving clients of two different firms.
“A copyright does not cover the paper and binder but the ideas expressed inside so if I copy and use the ideas inside--you still have them and so does Wenzel. Is IP law about your control over your copy of your idea or is it about your control over my copy of your idea?”
I do not concern myself with the issue of “can one own an idea?” (although this seems to be the crux of the debate). This is way above my pay grade. I only suggest that if one believes he can, let him do so through private contract and not through the government. This is my only concern.
It still has not been explained to me how someone can claim any intellectual idea as their own. Wenzel's book will be written using computers (which he didn't invent), from ideas formed and moulded from 100's if not 1000's of different people from before him. He didn't invent the language, the paper it's printed on, or really anything. It's entirely possible that millions of people have expressed pretty much exactly what his book is going to say before him and just never bothered to write it down.
ReplyDeleteNo one in the Pro-IP camp has endeavored to show or prove logically the point at which someone can claim that they "invented" any piece of knowledge or idea.
From that point on, a discussion of whether you can restrict others based on this invention should follow. But we aren't even to that point yet. Wenzel and the Pro-IP crowd just skip that part. Seems pretty important to me. Or am I missing something?
And even if it was the Theory of Relativity or something similar where its nearly 100% likely that the person came up with it and it is a new invention. How far back do you have to go to give credit? Einstein didn't invent the mathematics. So you'd just have to draw some arbitrary point in time and enforce it with guns.
Wenzel is going to be destroyed. Or, blow my mind. But I've been waiting to have my mind blown by people on this subject for years.
“It still has not been explained to me how someone can claim any intellectual idea as their own.”
DeleteEither side of this argument takes more brainpower than I have…or care to devote to it for the time being.
“From that point on, a discussion of whether you can restrict others based on this invention should follow.”
Perhaps. I guess for me the question of moving this entire matter of enforcement into the private sphere will greatly reduce the frivolity of IP claims on either side (I mean either side of an IP lawsuit, not either side of the upcoming debate). Proving originality could be difficult and costly, so anything beyond almost direct plagiarism might become difficult to prove. This seems to me as it should be – as you say, almost everything written, said, or manufactured is built on an idea that came before.
“So you'd just have to draw some arbitrary point in time and enforce it with guns.”
But this is my point – enforce it how you want, absent guns and badges. (Unless you are speaking of a private duel – in that case, I much prefer feuds and duels to the current monopoly of violence)
“Wenzel is going to be destroyed. Or, blow my mind.”
Both gentlemen have brought valuable contributions to libertarian and Austrian thought. I only hope that the discussion does not devolve to something completely un-listenable (may not be a word, but you get my point).