Saturday, April 13, 2013

patm, thank you!

This post is in reply to patm, and his extensive comments on this subject here.

patm, thank you for the detailed and extensive reply.  In some ways I am flattered that you consider it important to spend so much time with me on this subject, especially as I have made clear that this subject is not one of the more terribly important topics for me.

I will attempt to address most of our substantive points of disagreement, and avoid the peripheral.

First you define "ownership" as simply "control, use, and disposition." You are forgetting one crucial aspect of property ownership: exclusion.

Doesn’t “control” cover this for you?

Control (verb): To exercise restraint or direction over; dominate; command.  To eliminate or prevent the flourishing or spread of.

If I control my property in my house, I certainly consider the right to exclude someone from entering as an inherent part of control.  How can I control my house and not have the right to exclude others from using it?  This seems consistent with the common definition of control.  Is there some meaning of the term “exclusion” that I do not understand?

…what we mean by [rivalry] is "a good whose consumption by one consumer prevents simultaneous consumption by other consumers."

I accept this.

Your definition of ownership doesn't seem to include any of this.

I suggest it does.

The formula [for Coca-Cola] is not rivalrous at all.

Control, use, and disposition.  The sole, proprietary use.  The formula is as unique a piece of property as is an individual banana.  This sole proprietary use over the formula is no more divisible than is the sole proprietary use over your banana in the Garden of Eden.  

Your second issue is in your literally state: "an idea is property – the result of man applying his brain to the physical world". That makes absolutely no sense.

I am sorry you feel this way.  I believe it is incumbent on those who advocate an anti-IP position to come up with a positive case why the one thing that differentiates man from the animals is not subject to the same theories of property rights.  Apply your analysis to the formula for Coke.  I will not carry the need to make this proof as my burden.

The problem is you're not realizing that you cannot replicate a system of IP with contracts.

Who is talking about “replicate”?  I do not imagine that the market will come to the same system as has this government-enabled monstrosity.

Your statement shows no imagination whatsoever.  You cannot see the possibility of Coke (“A”) keeping sole proprietary use of its formula in a private contract system?  You cannot see non-disclosure agreements with its scientists (“B”) and bottlers (“B”)?  You cannot see that if a third party (“C”) comes across the formula – especially (but not only) in a nefarious way, like theft from the vault – that the third party can be legally (via enforcement of contract, even though “C” never signed it), and if necessary forcefully (through private injunction) restrained from commercializing or spreading it? (And I agree that independent discovery would not be a violation of Coke’s position…just tough luck for Coke.)

“C” can be bound by contracts he has not signed.  It happens every day.  “C” did not sign something that says he would not trespass on my property, yet he is bound to not trespass on my property.  “C” did not sign a document recognizing that I have title in my car, yet he is bound to recognize that I have title in my car.  The burden of making a positive case lies with the anti-IP advocate to demonstrate why this is not applicable to the sole proprietary use of the formula for Coke, just as it is applicable to the sole proprietary use of your banana.

You cannot see that the expense of anyone claiming ownership of IP having to do this through private means would likely eliminate enforcement of most of the frivolous nonsense about IP restrictions (including much of today’s government-enabled system which I do not state should be replicated, and likely would not be replicated) – whistling tunes, using quotes from the internet, etc., thus providing a market-based solution? Why develop circuitous and complex means and theories to enforce that which a market can enforce without much help?

Even Hoppe suggests that private enforcement would go a long way toward resolving any IP controversies: when asked about the possibility of using private enforcement in copyright – one of the least defensible subcategories of IP as property, in my simpleton opinion – Hoppe replied “That would go a long way in the right direction.” 

So I guess Hoppe is under the same false delusion that I am regarding the possibility of contracts and private enforcement – and he applies it to what I consider it to be one of the least defensible aspects of IP.

I will add: I see zero possibility in a libertarian world for a Coca-Cola to not attempt to establish and enforce such control through private means, and I see zero argument that Coke’s doing so violates any libertarian principles.  The burden of proof lies with the anti-IP advocates.  Hoppe did not pooh-pooh the possibility; there must be at least some merit to it.

patm, once again, I do appreciate your taking the time in this most distant and rarely-visited corner of the internet.  Like my shadow created by the early morning sun, you make me feel significantly larger than I am. 

In any case, such dialogue helps me to further hone my thoughts and conclusions.  I remain satisfied in my conclusions regarding IP.


  1. Replies
    1. I will not post at Mises in response. I haven’t commented on this subject more than once or twice in the last several days outside of my blog, and even here only in response to others – like you. I have heard enough on this, and the subject isn’t that important to me. If we ever see a libertarian dream world, I am certain Coke will have rights in its formula of Coca-Cola as I have described.

      To a couple of your points:

      “My position is that the formula is not an ownable thing...yet in your attempt to prove otherwise, you begin by assuming that it is owned. That is not an argument. It is called "logical fallacy" for a reason.”

      And my retort? My position is that the formula is an ownable thing...yet in your attempt to prove otherwise, you begin by assuming that it cannot be owned. That is not an argument. It is called "logical fallacy" for a reason.

      There – now we are even, except for this: As the product of man’s (muscular) efforts can be owned, it is reasonable to begin with the starting point that this is true for the products of the mind as well. I remain firm in the position that it is incumbent on the anti-IP advocates to demonstrate otherwise.

      If you do or don’t take on this challenge, it is neither here nor there for me. Frankly, after almost two weeks of this, I don’t believe there is a cogent argument available.

      “How is that a congruent response to my point?”

      You do not post the comment in context in your post at Mises – a nice tactic when you conveniently post elsewhere. A cheap trick, designed to score points as opposed to shed light.

      Your comment regarding Hoppe’s statement: “Are you kidding?: …How do you get more clear than that?”

      Talk to Hoppe, he said both things. Why didn’t you include the entire quote, or at least provide a link to the original at the Mises site (as I did in my post for your reference - I didn't have anything to hide)? This is another cheap trick.

      I have no idea why my you find dealing with me to be so important. You have not moved me in my position, other than to now conclude you are in it for scoring points as opposed to having a conversation.

    2. First I want to say that I am interested to discuss this with you because you seem to be honestly seeking truth, and you seem to be pretty intellectually honest.

      Second, I meant no malice or trickery in the way I posted in the forum. I was just trying to make it as easy to follow as possible. I provided an entire "history" section with all the relevant backstory and direct links to each of the three areas of our conversation.

      I left out your immediate commentary after "I'm sorry you feel that way", because it was irrelevant to the point: I had pointed out that your statement did not make logical sense, and your reply was a statement about your belief about the burden of proof. Burden of proof has absolutely no bearing on what I said about your statement not making logical sense.

      So perhaps you would be willing to answer my question:

      How you can say an idea is property that is the result of applying one's brain to the physical world...when knowledge guides action, and therefore the idea must exist prior to any sort of action in the physical world?

      I don't understand why you keep refusing to even address this simple question, and yet accuse me of evasion and trickery.

      Getting back to my post, I admit I did forget to link directly to the Hoppe quote. You had already linked to it in your post (which I linked to), and it was cumbersome enough trying to translate that whole response portion from this Blogger-comment bare-bones HTML, to the forum language, and I simply forgot.

      I've made the appropriate updates.

      So to get to your comment...

      "And my retort? My position is that the formula is an ownable thing...yet in your attempt to prove otherwise, you begin by assuming that it cannot be owned. That is not an argument. It is called 'logical fallacy' for a reason."

      That's not true at all. I and everyone else explain quite clearly why the formula is not ownable:

      1) The concept of property only arises because of the scarcity (i.e. rivalrousness) of resources. Again, in the Garden of Eden, resources would not be scarce, so it is safe to contend that there would be no such concept as "property". (See Hoppe A Theory of Socialism and Capitalism and The Economics and Ethics of Private Property)

      2) Ideas – recipes, formulas, statements, arguments, algorithms, theorems, melodies, patterns, rhythms, images, etc... are not rivalrous. Knowledge is an inexhaustible thing, that once you are aware of knowledge you are free to use it to guide your actions, whatsoever.

      3) Even forgetting #1 and contend that knowledge is ownable, and that one can have a property right in ideas, is incompatible with the real property rights that we both agree on. As I said, this concept of "intellectual property" creates a new set of rights, that contradict the real property rights that virtually all libertarians recognize as legitimate.

      I find it interesting that you continue to skip over my pointing out the non-rivalrous nature of the Coca-Cola formula...and how your concept of having a property right in it, allows you to come into my home and dictate what I can or cannot do with my own ingredients.

      I have to assume that you refuse to address this because it kills your entire pro-IP position, and shows quite clearly that IP violates real property rights.

    3. Please see my reply here; as it is somewhat extensive, I have written a new post:

  2. begin quote:
    “My position is that the formula is not an ownable thing...yet in your attempt to prove otherwise, you begin by assuming that it is owned. That is not an argument. It is called "logical fallacy" for a reason.”

    And my retort? My position is that the formula is an ownable thing...yet in your attempt to prove otherwise, you begin by assuming that it cannot be owned. That is not an argument. It is called "logical fallacy" for a reason.
    end quote

    This is the entirety of the debate. Kinsella's whole position starts with the assumption that IP is invalid and all his conclusions are based on this assumption. It is as if one mathematician assumes Euclidian geometry and another assumes non-Euclidian geometry and then they try to prove the other one wrong because he got a different result. Pointless.

    The only thing that matters is whether private law would recognize IP, not whether the validity of the concept is derived from some particular set of assumptions. And whether or not private law would recognize IP would be based on market forces in the arbitration of IP disputes.

    1. ED U, I have been thinking about my evolution in this. I started, as referenced in my first post here, with just a glimpse of the bigger picture you describe - the method of enforcement.

      You go further - and this is where I now am (almost back to my starting point, but further developed), as referenced in my last post here.

      The market, through the development of adjudication processes, will develop the most acceptable answers.

      The concept of "property" and "own" are not as objective as we would like, and these have meant different things in different societies. Societal culture and custom influence the acceptable boundaries.