I received the following email:
Dear Bionic,
I'm not sure if this is your type
of thing, but I would welcome your opinion on it. Do you know of anyone within
libertarian circles who has written on this subject?
Respectfully,
[name withheld]
From the summary of the article:
Children could SUE their parents in
future for a breach of privacy if they upload photographs of them on to
Facebook: They will face a year in prison and a £35,000 fine
French parents who upload images of their children could be sued by them
Face jail if convicted of publicising details of private lives without
consent
Adults who sue their parents in later life could also receive
compensation
French Gendarmerie said: 'Stop posting pictures of your kids on
Facebook'
I have done a bit of a search online to see if I find anything
written by other libertarians on this topic.
I find nothing directly on point.
So I offer my thoughts....
I begin by offering…my thoughts are rudimentary on this, not
well-formed. One reason I decided to
answer via the blog was to solicit a discussion, maybe some links to thoughts
developed by others.
It is the right to privacy that is claimed by the French
government to be violated. Do I (and
therefore a child) have a right to privacy?
I say no. However, I do have a
right via contract to decide if, when, and how certain aspects of my life are
shared. My bank account number and password would fall
into such a category. My picture? Let’s see….
I guess a good starting point would be…what does libertarian
theory offer on the subject of posting pictures about adults? I believe some libertarians will suggest that
you can’t own your image (if someone “takes” your picture, it doesn’t prevent
you from also taking your own picture).
The concept could be considered relative to the position
regarding intellectual property – if someone copies your work, well you still
have your work. Or maybe it is similar
to the idea of reputation – you do not own your reputation.
Intellectual property and reputation…I am not convinced on
either of these topics – that via libertarian theory one can “own”
neither. I have written a decent amount
about the former (although I have not done so in some time as the conversation
by some turned toxic), very little if any about the latter.
I won’t get into these two here beyond saying I lean toward
the view that one can own intellectual property (of course, not as defended by
the state) and one does own his reputation (not to imply using force to get
others to believe as I do). By the same
token, it seems to me that an adult can prevent or disallow another from doing
something or another with his image.
There was an interesting recent case: Michael Jordan sued a
grocery store for using his image in an advertisement without permission. His claim was that his image has value, and
it would lose that value if anyone could use it without his (Jordan’s)
permission. He won his suit; the
conclusion is consistent with my view of the NAP.
With that said, inherently this also means that an adult can allow his image to be posted on Facebook
or elsewhere.
So, what about children?
I guess in theory, this is also to be considered for children – to allow
or disallow the posting of the child’s image is the individual child’s choice…in
theory. Yet, after all, they are
children – not fully formed in thought or body, not capable of facing the
consequences of their own choices (even choices that if made by an adult would
fully comport with libertarian theory).
Others make choices for children. The “others” could be the parents or it could
be adult relatives or it could be strangers.
But there will always be others making choices for children – it is
inherent in the nature of being a child.
Libertarian theory doesn’t offer a clean answer to the “who.” Which adult should make the choice – the parent,
the relative, a stranger?
I have written enough on the idea of governance – governance
will come from somewhere. It seems clear
to me that the lowest institution from which governance will come – given that
humans are human and also children are children – is the family. It is therefore clear to me that decisions
regarding children should be made by the parents (or another adult properly
charged with guardianship).
It is further clear to me that steps taken by the state to
diminish the role of the family only further the role of the state. It is on this pillar that my gut tells me I
might lean for an answer to the issue posed by the anonymous emailer. The state – in this case the French
government – is offering one more avenue to tear down the governance offered by
the family structure, thus furthering the necessity for governance by the state.
Now, nothing in libertarian theory makes the family
sacrosanct. But in my view, even the
most anarcho-libertarian society will require governance institutions if it is
to survive, let alone thrive. As the
concept of “family” is both within human nature and inherently a governance
institution, it seems to me a natural source for the lowest level of
governance. I find “family” as necessary
in this regard (please note, I did not define what constitutes “family”).
Does this mean anything goes? Others may never intervene in an action taken
by a parent toward a child? No, not “anything
goes”; yes, others may intervene. Some areas
are black and white, some others are gray.
Who should decide? In a
libertarian world, there will be other governance institutions – relatives and
religious institutions, for example.
But in some cases, life might just be miserable for some
children. Libertarian theory will not
turn earth into heaven. Libertarian
theory will not turn sinners into saints.
Libertarian theory will not make every adult a good parent. (Of course, there is no other political
theory that will achieve any of this either.)
So, where does all of this leave me on this question?
I begin with the recognition that I have built a foundation
with material that is not accepted in all corners of the libertarian
world. I purposely do not go further
into these as a) I have written extensively regarding some of these elsewhere,
and b) to do so will take this post far beyond its intent.
With that said:
I believe an individual has rights to his image.
I believe children do not have the blessings or benefits of
full access to the non-aggression principle – it is inherent in their nature as
children. I therefore believe that
adults will – inherently must – make choices
for children on many issues.
I believe the best adults to make such a choice are the
parents (or any adult(s) properly charged with the raising and guardianship of
a child) – and I believe this to offer the best means by which to keep
governance at the lowest institutional level.
Are there issues which might cause those outside of the
family to intervene in the upbringing of a child – fully consistent with both
the NAP and my worldview? Certainly.
But this issue? My conclusion: posting pictures on the
internet doesn’t seem to me to be one of these issues. If those close to the family believe
otherwise, they are free to discuss this with the parents. They are not justified to intervene by force.
How much of my conclusion is influenced by culture? If I lived in a society that generally
believes that the act of taking a picture steals one’s soul or spirit – and I
therefore believed the same – I would almost certainly answer differently,
certainly regarding a child’s picture (if an adult in such a society wants to
lose his soul, that’s his business). We cannot
escape culture when addressing many questions about the application of the NAP. The term “aggression” does not define itself.
With all of this said, I welcome comments and links.
I spent a lot of time thinking about this subject after i saw this post by Vox Day regarding it
ReplyDeletevoxday.blogspot.com/2016/03/leave-kids-offline.html
Initially I felt compelled to agree with him, indeed to be surprised that he was so very much for the rights of children, but i couldn't really defend the idea of using aggression over a picture being taken.
Your line about the destruction of the family was very helpful though, and now i wholeheartedly oppose this law.
Thank you for the link.
DeleteVox offers a personal opinion on this matter, and one with which I agree.
He also offers that others may initiate force to defend his personal opinion on this matter. As noted, I disagree.
He is so emotional about this that he resorts to vulgarity to defend his point in the comment section - as if this tactic wins the argument.
I definitely approach it from the family angle. Parents and guardians are just that. They shelter, guide, protect and provide for roughly two decades. Yet if they wish to post a picture on social media, they must get permission from that dependent? Says who? Some snobby group with a pet peeve? If anyone doesn't like to see my pics then shove off. Don't look. Unfriend me...please!
ReplyDeleteIf I'm legally responsible for the child in all matters, am I not legally responsible for this decision as well? (Johnny, can I post your picture on Facebook? Say Yes.) What if the child says yes and then some attorney takes a parent to court afterwards, arguing that the child was not using sound judgement? Isn't the incapability of sound judgement the reason adolescents are tried differently in courts? Could I get a signature on a contract from my daughter stipulating use of her image? Could it be proven to have been coerced? What about when she's two? Will a fingerprint do? Or an "X"? Again, did I bribe the child with her bottle to get it? Or is permission simply not an option? This means the state is already intervening on behalf of my child without my permission.
This truly smacks of an attempt to further disintegrate the family unit. It's another way for the malcontents in life to look back and cast blame on their parents and the upbringing provided, which would allow for the state to call for enforced "improvements" and "guidance" at the family level. I'm full-on against this notion.
It's another instance of the state clumsily trying to catch up with the technology, if only to use it toward their advantage. With pictures, music, movies, art, words, etc. flying around the world at lightening speeds, the parameters have got to change toward freedom or almost everyone will surely be found inadvertently guilty of misdemeanors and felonies... a lawyer's paradise.
Agree, another front on the divide and conquer war. Pit children against parents. See also teaching children to inform on parents.
DeleteNewspapers post pictures of people all the time, could they be sued?
ReplyDelete"The concept could be considered relative to the position regarding intellectual property – if someone copies your work, well you still have your work. Or maybe it is similar to the idea of reputation – you do not own your reputation.
ReplyDeleteIntellectual property and reputation…I am not convinced on either of these topics – that via libertarian theory one can “own” neither. I have written a decent amount about the former (although I have not done so in some time as the conversation by some turned toxic), very little if any about the latter."
I made the argument back during the IP debates on EPJ that one's definition of what "property" is drives this issue.
Personally, I lean towards Bastiat's definition of property that suggests that the defining characteristic of what can/can't be property is if it has "market value".
Reputation, like much of IP(Movies for example), can absolutely have market value.
Further, many people input "labor"(many times intellectual labor) to increase and/or create said value- which is a vital component in many a definition of what property "is" outside of Bastiat's thoughts.
It is clear Michael Jordan, & much of society, adhere's to a definition of property more in line with Bastiat's than others.
What is more important though, is that the NAP & libertarian minded people acknowledge the difference of opinions on the matter and allow for the creation of communities that operate differently in that regard.
"IP communists", a term deemed not by me, but by others in their argument for IP rights, should absolutely be allowed to operate within their own communities by their standard. (Block recently again affirmed that voluntary commune's should be no problem in the libertarian world)
As far as children go, I've always felt like they are property of the parents until they can homestead themselves so to speak....but again...varying definitions of what property "is" applies.
Your exploration and discussion of "culture" and it's impact on society has filled many voids in my personal thoughts/logical process, for which I'm grateful. It's seems so "obvious" now, but back when IP debates & the status of a child's existence/rights were/are from a NAP perspective were raging...it wasn't(to me).
Nick
DeleteAs always, an illuminating comment.
Regarding my discussion of "culture" - and I may have written this before - my exploration began when I was challenged by left-libertarians to go equally hard at Hoppe. Reading Hoppe, the value of culture in developing and sustaining a libertarian community was made evident to me.
Thanks BM.
DeleteI would start by saying I disagree with much of your position on intellectual property. I believe they are mutually exclusive. To address Nick’s Bastiat reference above, I would say IP has no market value in the absence of monopoly. In effect, it has no market value except that bestowed upon it by government force.
ReplyDeleteI also disagree with the idea that children do not possess the same rights as adults. That parents routinely violate those rights doesn’t mean they don’t exist. Libertarian theory is not vague on this concept at all IMO. A child is either property or a person. All persons have the same rights. Any other position is not a libertarian one. You will have to exchange child rights with parent duties and responsibilities, which may occupy the higher moral ground, but not libertarian ground at all.
With respect to posting images on FB, I also disagree with the position of the French government. There has to be a reasonable expectation of privacy for there to be a breach of privacy. Posting pics of your kids in everyday situations does not fall into this category. One could easily formulate situations where there is such a breach of privacy, or breach of trust. I don’t think examples are needed here. However, there is a line past which social norms, defined by society, are violated. Social norms with which a child may not yet be familiar. As an adult, one might look back at such abuses and desire some form of justice, the need to prove harm notwithstanding.
"I would say IP has no market value in the absence of monopoly."
DeleteI think we have a disagreement over what constitutes "monopoly" versus what constitutes property protection, in addition to how to consider the "market value" of something.
Protecting something that I view as my property(even if you don't agree), doesn't require a monopoly. It only requires some type of security, whether I do that myself or hire a firm to do it.
The fact government property protection services are currently a monopoly in the world of IP doesn't mean that a free market solution couldn't exist.
Secondly, by virtue of someone appropriating/using IP they've confirmed there's a "value"- the fact the value might be reduced on the market due to mass copying for example, doesn't mitigate the fact it's useful or that someone invested their time/labor, etc. into it to create said value.
Along those lines, the value of a stolen car is far below what the equivalent car would bring with a clear title, etc. et al(you get the picture).
I obviously don't agree that children either are or are not property(I think there's a transition), but as far as the concept "being clear" I would defer to Rothbard who said when speaking on the issue of applying the NAP:
" If our hypothetical "Martians" were like human beings — conscious, rational, able to communicate with us and participate in the division of labor — then presumably they too would possess the rights now confined to "earthbound" humans."
So to keep things simple, using Rothbard's criteria would you say your average 5 year old is a rational creature?
Is the 5 year able to participate in the division of labor?
If your answer is "no", then your suggestion might entail a "positivist" demand on the parent to support the child until one day he can do those two things fairly well. (culturally we know there is a positivist demand, but it springs from moral grounds)
Or....we can say the kid is the property of the parents until one day he can "earn" the right of living in a libertarian, NAP oriented society and can fully reason and make the according commitments to the NAP.
Do I think that parents that spank their kids are violating the NAP? No.(but I'm arguing at this point that most kids for the reasons above aren't entitled to the NAP, similar to animals as Rothbard argued)
That's where some subjectivity/culture issues come into play...because clearly some people do think it's a NAP violation...certainly cutting off your child's hand would be a NAP violation in most cultures.
I'm open to any an all discussion on the matter- it's always good to flesh out logic & ideas.
I'd like to add one clarification to my earlier post. When I say I made an argument that kids aren't entitle to the NAP for the same reason animals aren't as argued by Rothbard- I mean that in a manner that in no way condones NAP violation towards them on a cultural level(like the distinction that some might find spanking a NAP violation, where some may not).
DeleteOk, I'm sure I'll get questions on that...but there it is.
Maybe it would be better for me to simply say that until you can reason consistently and be productive(2 of Rothbard's criteria) that you can't really be a voluntary member of a libertarian community.(which suggests a NAP violation, but maybe not always...ie. children, mentally handicapped/ill, etc.)
I'll also add that every time Rothbard mentions "natural law" in his writing, I now think of "culture" or "cultural norms".
Interesting points, Nick, especially the ones on children. I struggled to form a reasoned response.
DeleteYou can have a contract to protect IP which is effectively an agreement to keep it secret. But only the signatories are bound by that contract. As soon as the IP becomes public knowledge, through breach of contract, reverse engineering or simple observation, the only way to protect it is with force, aggression, against individuals under no contractual obligation. The value of IP is derived from its protection, not the IP itself.
Property has intrinsic value. As you mentioned, stolen property is worth LESS than protected property, but it’s not worthless. An idea is worth nothing absent protection through secrecy or force. I would extend that to saying an idea kept secret is worth nothing in the absence of capital investment, in effect property.
“So to keep things simple, using Rothbard's criteria would you say your average 5 year old is a rational creature?”
I don’t think Rothbard defined rational in the quote you provided. But yes, a 5 year old is a rational creature. I would use Mises’ definition, “humans act purposefully”. A 5 year old child’s goals and actions may not seem rational to her parents, but parents lack the perspective of a 5 year old.
“Is the 5 year able to participate in the division of labor?”
Absolutely. She can pick up her cloths, practice good personal hygiene, learn to speak well and politely. Parents may love their children unconditionally, but they would prefer their children are well behaved and willing to learn to become responsible adults. Most parents work hard to bring up their children properly. A child values love and praise from her parents, and will learn to “act rationally” to get them.
“Do I think that parents that spank their kids are violating the NAP? No.(but I'm arguing at this point that most kids for the reasons above aren't entitled to the NAP, similar to animals as Rothbard argued)”
What about parents who spank their children for entertainment? I think you address this in your clarification, but you have both likened children to animals and used the NAP to protect them. You are well on your way to arguing for animal rights.
When I said children are either property or persons, I meant libertarian theory has no other definition under which to classify them. I don’t remember reading anything by Rothbard that contradicts that statement. I HAVE read more than a few libertarian appeals to morality to justify their position (the most absurd of which was the fetus as trespasser argument). You and I probably agree more than disagree on the proper (moral) treatment of children. My comments were only intended to address the issue in the context of libertarian theory.
"I don’t think Rothbard defined rational in the quote you provided. But yes, a 5 year old is a rational creature. I would use Mises’ definition, “humans act purposefully”. A 5 year old child’s goals and actions may not seem rational to her parents, but parents lack the perspective of a 5 year old."
DeleteI would argue that the average 5 year old cannot be relied upon to consistently act in a rational manner to foster independence, let alone enter contracts, etc.- things that would be necessary to exist in a libertarian community independently.
I think you acknowledge this:
"A child values love and praise from her parents, and will learn to “act rationally” to get them."
" but you have both likened children to animals and used the NAP to protect them. You are well on your way to arguing for animal rights. "
Not really- I think you are inferring that.
For example. If I own a dog, he is my property and not entitled to the NAP by libertarian ethics. However, because he is my property, it is unacceptable for you to come an hurt him(via physical violence or whatever) as it's a NAP violation against me. That's how I derive protection from my child(as property).
"When I said children are either property or persons, I meant libertarian theory has no other definition under which to classify them."
Ok, well that's slightly different in meaning that your original statement- thank you for the clarification.
I think I'd like to discuss the concept as children as property further to see if I can learn anything or deduce things better.
"The value of IP is derived from its protection, not the IP itself. "
I think there is kind of a performative contradiction in this concept.
If we acknowledge for a moment that there is some kind of value attached to IP BEFORE it is copied-which is defacto in someone actually appropriating it, and that copy(which some would deem theft) destroy it's value-
Well, that's called "damages" in a court type setting.
I always like to probe in these discussions how people feel about copyright. Are you for or against copyright?
Jeff-
DeleteI forgot to mention one other thing that I wanted in my original response(my apologies, it's been a busy day):
Me:“Is the 5 year able to participate in the division of labor?”
Jeff:"Absolutely. She can pick up her cloths, practice good personal hygiene, learn to speak well and politely."
All of these things are division of labor within the household- but I'm not convinced they constitute the division of labor that Rothbard might have been considering in his comments- though it might be reasonably fair to suggest that I can't speculate-I will.(and I will honor that point if you contest it)
I'm going to look at it two ways:
#1 Can the child participate in in the division of labor in a way that could make him self sustaining in a libertarian community? I would say "no" in general(like your examples). It is possible at a fairly young age for some kids to do this, but 5 years old- 99% likely "no".
Now- I'm going to look at this from another angle, arguing for your perspective.
Would a "stay at home mom" then be similar?
I would say "no", the reason being is that husband is ostensibly valuing her contribution as a "division of labor" in that he supports her financially and she tows the load by running the house, caring for the children, like teaching them they " can pick up her cloths, practice good personal hygiene, learn to speak well and politely." Something 5 year-old's sometimes have issues with. Sometimes they even have to do such things involuntarily.
:)
I think in summary I would say that the duties of a wife have a "market value" that is derived by division of labor- hence libertarian.
I'm not sure I can argue though that the 5 year old that can "pick up her cloths, practice good personal hygiene, learn to speak well and politely." is actually able to achieve a "market value" with those division of labor skills. (the 5 year old can't get married and teach someone else that)
Are the skills valuable? Yes. Is it division of labor on a voluntary market? I'm going to say no on that.(for now)
However, if a 5 year old could play piano to the degree he could garner a paying audience...I would agree with you! (and there are definitely some kids around 12 or so that can!)
Still yet, do they have the rationality to exist in a voluntary world with the NAP as an understanding?
I see classifying children as the property of the parents as a "protection" for them myself...whether my suggestion is logically sound is another matter and I appreciate the discussion...but naturally at some point in time, I'll call it "adulthood"(and not specify an age), they can be considered a voluntary member of a libertarian community and the NAP on the basis of "natural law" as Rothbard puts it. (which I still consider "culture" for the moment)
Children must initially be treated as property. They can either belong to parents or guardians (the state can assume this role). Without assistance, they will die. At what age do they become self-sufficient? I would think that arbitrary, state-assigned, culturally acceptable numbers aside, the answer belongs with the child - who would hopefully have the mutual agreement of the parents. Development varies widely.
DeleteRational behavior is not enough of an argument by itself. I would add not only "consistent" to the words rational behavior, but also developed abilities in the many realms touched upon by Nick Badalamenti as important criteria. A child savant in the arts is a rare occurrence. Most kids need many more years to work on skill advancement. For example, the brain’s frontal lobe is crucial to higher cognitive skills, such as problem solving, thinking, planning, and organizing. On average, it does not fully develop until around age 25.
Finally, all of this “rational” talk of property regarding children is devoid of the necessity of emotion, which plays a large role here. Parents and children love each other. I believe the bond is there for a purpose and it is not to be taken lightly. One could argue that the child emotionally owns the parents as much as the other way around. If it is merely that a child parasitically attaches itself to adults in the everyday happenstance of life, when this independent-from-birth creature decides to leave, should he presented with a bill for rearing expenses?
"Finally, all of this “rational” talk of property regarding children is devoid of the necessity of emotion, which plays a large role here."
DeleteExcellent point.
“I would argue that the average 5 year old cannot be relied upon to consistently act in a rational manner to foster independence, let alone enter contracts, etc.- things that would be necessary to exist in a libertarian community independently.”
ReplyDeleteYour position is that one must foster independence to be a person? My 5 year old was perfectly able to enter and (mostly) abide by contracts, but the idea of leaving her loving home probably never entered her mind. I only mention that because of my Rothbard comments below.
---
I reread some of what Rothbard says on the topic, and your position is much closer to his than mine. He uses an in-between state similar to yours called a “potential self-owner” where he grants NAP protection but not self-ownership. Where things go horribly awry with his logic IMO is the point at which a potential self-owner becomes a legitimate self-owner, which is left wholly up to the potential self-owner:
“For the child has his full rights of self-ownership when he demonstrates that he has them in nature — in short, when he leaves or "runs away" from home”.
This is a completely arbitrary position. Children run away from home all the time and end up dead. Likewise children grow up and stay at home to operate the family business or take care of family members. I don’t see any dividing line in self-ownership under either circumstance, only the assertion of self-ownership that already existed. Incidentally, I wasn’t trying to deflect the argument or tie Rothbard’s position to you. I just found his position interesting and worthy of comment, even if it conflicts with my own.
---
“Not really- I think you are inferring that.”
True, I was inferring that.
“For example. If I own a dog, he is my property and not entitled to the NAP by libertarian ethics. However, because he is my property, it is unacceptable for you to come an hurt him(via physical violence or whatever) as it's a NAP violation against me. That's how I derive protection from my child(as property).”
The NAP protects your dog from me, but not from yourself as it is your property. I believe your position was the NAP protects the child from the parents.
From your addendum:
“Are the skills valuable? Yes. Is it division of labor on a voluntary market? I'm going to say no on that.(for now)”
I tried, but I could not understand your point on this. Why does a child need marketable skills in markets she has no interest in? I am an engineer and mathematician, and my skills are marketable in those fields. But I would make a lousy business manager. I have had an employer or two who believed that made me less of a man, but they still paid for my engineering work.
“I see classifying children as the property of the parents as a "protection" for them myself...whether my suggestion is logically sound is another matter and I appreciate the discussion...but naturally at some point in time, I'll call it "adulthood"(and not specify an age), they can be considered a voluntary member of a libertarian community and the NAP on the basis of "natural law" as Rothbard puts it. (which I still consider "culture" for the moment)”
I am not comfortable with the concept of children as property, but that has been the reality historically. Such a system could still fit into the libertarian mold IMO, and does afford the children a certain amount of protection, even if only due to their value to the parents. I would reject the idea of property protected from the owner by the NAP being a libertarian position. I am similarly at odds with Rothbard’s “potential self-owner” concept. It is an appeal to morality disguised as a logical argument.
"Why does a child need marketable skills in markets she has no interest in?"
DeleteIn order to participate int he division of labor in a free market and become "self sustaining".
"The NAP protects your dog from me, but not from yourself as it is your property. I believe your position was the NAP protects the child from the parents."
No, my position was that "culture" protects the child from the parents. It's a difficult position for me and might be a lazy answer- but I can't think of a better one right now.
RW over at EPJ wrote a fairly close position to mine today, there' some minor differences...but he spoke of an "adult"(or let's just say participant in a libertarian community) being a "friend of a child" in a potential court case to rectify cultural NAP violations in his PPS...there's some merit there I think.
"I am not comfortable with the concept of children as property, but that has been the reality historically. Such a system could still fit into the libertarian mold IMO"
Thank you! That's the highest compliment to me and I appreciate it.
---
ReplyDelete“I think there is kind of a performative contradiction in this concept.
If we acknowledge for a moment that there is some kind of value attached to IP BEFORE it is copied-which is defacto in someone actually appropriating it, and that copy(which some would deem theft) destroy it's value-
Well, that's called "damages" in a court type setting.”
The reason I added, ”an idea kept secret is worth nothing in the absence of capital investment”, was to address that contradiction. IP has NO value unless it is mixed with real property (physical or a service). I can think of no example where this is not the case. At the very minimum an idea must be communicated to the purchaser in a usable manner.
With respect to damages for "stealing" someone's idea. I would call it competition. Considering IP laws are integrated into the US Constitution, it's no surprise the courts often feel otherwise.
“I always like to probe in these discussions how people feel about copyright. Are you for or against copyright?”
A copyright is just a specialized patent (some would argue the reverse). I don’t consider it any more valid for its specialized nature. That doesn’t mean one can claim a copy as an independent work. That would be fraud, as would be omitting proper attribution – by convention. The only practical reason for a copyright is to arbitrarily increase the value of one’s work. Increasing the value of one thing is not justification for preventing the creation of another.
Jeff- I'm going to respond to this tonight, thank you for the thoughtful reply.
Delete" IP has NO value unless it is mixed with real property (physical or a service). "
DeleteOk, so that was addressed by my earlier point to BM. It's someone's definition of what property "is" that drives the debate.
I can understand that some people are not of the opinion that IP is not "property"-
But I'm arguing by Bastiat's definition that IP is "property" because at times IP has value(and at times it doesn't).
How do we know IP has value? Because people don't write contracts over it or even bother to appropriate IP if it doesn't have value.
What that value represents in "dollars"(or any other medium of exchange) is subjective per Mises- but the notion that the IP itself having value in cases of a contract being written or people appropriating it is not in question(IMO).
So along those lines, people who culturally do feel IP is "property" and want to live in a society that respects it as such and integrates it into the NAP should feel free to do so...those that don't should also be free to have their IP communism as well.
"IP has NO value unless it is mixed with real property (physical or a service). I can think of no example where this is not the case."
Well, there's a ton of example. The Michael Jordan example above noted by BM being one, but really it's all over the place and too numerous to list(IP law, attorney's, patents as you note & copyright).
Your argument that it takes a monopoly to enforce is invalid IMO because as I noted above, I can hire an private defense firm(see Block, Rothbard, etc.) to handle such matters in a free society, I don't have to rely on government. (which we are all forced to do a variety of scenarios, not just IP- for now)
Now, if I did that in a society that culturally doesn't acknowledge IP as "property" I would end up losing in a private court room/arbitration setting.
But it seems to me that American society at this point culturally does see IP as property(despite the government market dominance in enforcement, which certainly extends to more than just IP).
China- probably less so...
I again point out though that Block reaffirmed the validity of voluntary communes in libertarian society. (with the emphasis being on voluntary)
"A copyright is just a specialized patent (some would argue the reverse). I don’t consider it any more valid for its specialized nature. "
I'm glad to see you are philosophically consistent!
I'm actually hoping one day to run across someone who is against IP, but for copyright...with an good argument for being so(as I hope to gain some insight logically).
“But I'm arguing by Bastiat's definition that IP is "property" because at times IP has value(and at times it doesn't).”
Delete“Well, there's a ton of example. The Michael Jordan example above noted by BM being one, but really it's all over the place and too numerous to list(IP law, attorney's, patents as you note & copyright).”
I agree with Bastiat’s definition of property. Where I think we are not in agreement is the definition of IP. It is information, an idea, and is itself not a part of the physical world. It contains no energy, and there are no devices that can measure or detect it. It’s very existence as an idea relies wholly on the physical world to give it form and purpose.
Michael Jordan’s image was recorded on a (physical) medium and reproduced on other mediums. In the absence of those mediums there would be no image to reproduce, nothing at all of value. So the IP you are referring to requires the capital investment of recording and reproducing his image to be of any value.
A more important issue regarding the requirement of a medium to record and maintain an idea is that the medium itself is not owned by the supposed owner of the IP. If I see something protected by a patent, I cannot simply forget I ever saw it. It becomes part of my memory and impacts my thought process. Preventing me from using that information in my own endeavors is aggression.
“Now, if I did that in a society that culturally doesn't acknowledge IP as "property" I would end up losing in a private court room/arbitration setting.”
This could easily branch into a long discussion over what powers courts have under the NAP. Instead, I will only say my experience has been that societies are very fickle when it comes to giving up desirable things. For example, the owners of popular copyrighted materials have to be extremely diligent today to prevent their property from being freely distributed on the internet, and many industries that rely on enforcement of copyright law are struggling to survive. It’s one thing to say one supports IP laws, and quite another to actually support them. I don’t believe society is on your side in this.
“I'm actually hoping one day to run across someone who is against IP, but for copyright...with an good argument for being so(as I hope to gain some insight logically).”
There was a libertarian, a minarchist I believe, on a financial forum I used to follow who was against patents but supported copyright laws. He believed all IP could be protected under copyright laws. His arguments were always well presented. I looked, but the forum we used to frequent has since been deleted.
Nick / Jeff
DeleteThank you for the civil dialogue on IP – a rarity in our world; also for the dialogue regarding children: animal, mineral or vegetable?
I would like to touch on only one comment, as you have well addressed many points. From Jeff:
Michael Jordan’s image was recorded on a (physical) medium and reproduced on other mediums. In the absence of those mediums there would be no image to reproduce, nothing at all of value. So the IP you are referring to requires the capital investment of recording and reproducing his image to be of any value.
All of the “physical medium” and capital investment belonged to the store – they took out a newspaper ad or weekly circular or some-such and placed Jordan’s logo and / or number (I am vague on the details, and don’t really want to start searching).
So Jordan didn’t “lose” anything of physical property – the store reproduced his image, yet Jordan still had the image. The store did all of the physical investing – everything in the physical world regarding this issue was paid for by the store.
Jordan was deemed to “own” his image, even though the store paid for the publication of the image and did not deprive Jordan from the copies of the image already in Jordan’s possession.
I know I am rambling, and maybe this isn’t on point, but there you have it.
"In the absence of those mediums there would be no image to reproduce, nothing at all of value. So the IP you are referring to requires the capital investment of recording and reproducing his image to be of any value.
DeleteA more important issue regarding the requirement of a medium to record and maintain an idea is that the medium itself is not owned by the supposed owner of the IP. If I see something protected by a patent, I cannot simply forget I ever saw it. It becomes part of my memory and impacts my thought process. Preventing me from using that information in my own endeavors is aggression."
I agree with you the issue is how one "defines" IP, but in the most basic sense Bastiat argued that man even owns his own mental labor. (I can dig up the specific quote if you need it)- and from that perspective preventing someone from using an idea you came up with wouldn't be aggression, it would be property protection.
BM, all your points are well considered.
I appreciate the civil dialogue with Jeff. It seems that most people anti-IP have the biggest trouble accepting the notion that property might exist outside the physical realm. (and that's why I posit that the issue might require separate societies/culture)
I personally disagree with that limitation for several reasons, not just Bastiat's argumentation/definition of what property "is".
The concepts surrounding Austrian economics require an understanding and acceptance of the theory of "subjective value".
Subjective value is a concept, it has no physical presence at all. Intuitively we all know it exists, like the concept of "love", but the concept itself does not exist in the physical realm- BUT IT EXISTS!
Because subjective value doesn't exist in the physical realm, does that make it "not valuable" and hence not able to be property? Not IMO, or Bastiat's, etc.
What is the physical manifestation of subjective value? Most of the time money(or other physical things).
"Subjective value" is routinely made physical, suggesting it indeed does have value and can be property.
Consultants, patents(even if we disagree that a patent is property) and on and on all show that there are things of value that don't exist in the physical realm.
Subjective value is such a lynch-pin of Austrian economics- I can't imagine not incorporating it into our theories on property.
But again, that is my opinion based on a set of logical arguments and it may not be persuasive enough to convince others.
" I don’t believe society is on your side in this."
...and on this we completely disagree, I think that despite your claims that IP industries are "struggling", it is a massive industry none the less and "struggling" is a characteristic of all competitive industry.
I'm going to do a big "no no" for a moment and go utilitarian-
But let us imagine for a moment that a court ruling came out that made it clear that the movie industry has no right to it's movies once released:
What long run impact do you think that would have in the industry, investors in it(physical input), etc.?
I see this akin to saying for example, that "air" cannot be property and cannot be owned....(which is an interesting discussion itself)
Nick, I am have trouble with some of your terms here. In particular the term “subjective value”. In Austrian economics all value is subjective. That term is used to define value from the perspective of the buyer and seller. I don’t see how it can be used to define information as property.
Delete“Consultants, patents(even if we disagree that a patent is property) and on and on all show that there are things of value that don't exist in the physical realm.”
I do agree a patent is property and has value. It represents the capital investment (government force in our world) applied to its subject. A consultant is providing a service. Both the service and the patent exist IRL.
“But let us imagine for a moment that a court ruling came out that made it clear that the movie industry has no right to it's movies once released:
What long run impact do you think that would have in the industry, investors in it(physical input), etc.?”
I think the industry as a whole will be better off. There will be more diverse content, and more competition.
If you haven’t read it already, I recommend “Against Intellectual Monopoly” which has numerous real world examples on the negative economic impact of IP. You can find it free online, or choose to buy a copyrighted version from Amazon : )
"I don’t see how it can be used to define information as property. "
DeleteWell that is part of Bastiat's argument as to why property should be determined on the basis of "value"- for a more full explanation I'd recommend you read "Economic Harmonies" by Bastiat.
"I do agree a patent is property and has value. It represents the capital investment (government force in our world) applied to its subject."
I'm confused, are you equivocating capital investment with force? Is there perhaps a different point here I'm missing?
"If you haven’t read it already, I recommend “Against Intellectual Monopoly” which has numerous real world examples on the negative economic impact of IP."
Not only have a read it, I debated briefly with Kinsella on IP- both experiences were not compelling for me.
I think we have plenty of experiences outside of Kinsella's book that show what happens when anything is "communal"-
It's all variations on the tragedy of the commons...which is usually a relatively accepted concept.
I suggest that like most applications where there is not property protection, capital investment dies off over time, etc., not withstanding Kinsella's opinion.
Sure, it's tough to kill it completely- but the consequences can be dire..think Russian bread lines..where there was little in the way of property rights at the time but somehow bread was made...it just wasn't prolific.
Nick
Delete“I think we have plenty of experiences outside of Kinsella's book that show what happens when anything is "communal"”
At least regarding copyright, here is one contrary example:
http://bionicmosquito.blogspot.com/2012/11/copyright-law-standing-in-way-of.html
With this said, I am (and remain) of the opinion that there is no reason to oppose IP in a not-state-enforced manner. That it will or won’t “spring up” in a free market is a secondary – and to me irrelevant – issue.
The definition of property – history offers numerous examples of different communities (cultures) coming to different definitions.
Thank you for the link BM. I haven't read this particular work of yours before- it's interesting reading it gives me things to consider. This one section stood out to me:
Delete"In reaction to the greater enforcement of copyright in Germany, some authors expressed “annoyance”:
Authors, now guaranteed the rights to their own works, were often annoyed by this development. Heinrich Heine, for example, wrote to his publisher Julius Campe on October 24, 1854, in a rather acerbic mood: "Due to the tremendously high prices you have established, I will hardly see a second edition of the book anytime soon. But you must set lower prices, dear Campe, for otherwise I really don't see why I was so lenient with my material interests."
What was the enforcement agency at the time?
One commenter claims that that the enforcement level argument plenarchist makes is a "logical error", I don't think I agree.
For example, in the early days of "Windows" Microsoft purposely didn't enforce "copyright" or install any kind of pirate defeating type software purposely- the end result of this was Windows establishing a market dominance.
However this was their choice, it was a type of "razor/razor blade" business model(give away the razor, sell the blades).
Rest assured though, they still had to maintain control of their property in order to eventually "monetize" it. (and now Microsoft does make it almost impossible to copy their software without them at least knowing it)
Ubuntu, which I have installed on two of my daughters laptops, uses a similar model.(they monetize by charging for consultation but giveaway the OS)
It appears in your link the author had no choice on enforcement, why is that? Did the publishing company make a business decision error or was there a government agency involved? Why couldn't the price be lowered?
We actually are in total agreement I'm happy to see at the end of your comments:
"With this said, I am (and remain) of the opinion that there is no reason to oppose IP in a not-state-enforced manner. That it will or won’t “spring up” in a free market is a secondary – and to me irrelevant – issue."
Yes!
"The definition of property – history offers numerous examples of different communities (cultures) coming to different definitions. "
Double Yes!
BM-
DeleteAfter thinking about your link a little more I wanted to add a couple more points:
I'm uncomfortable with the logical construct that society might be improved by preventing for the enforcement of IP(as implied by the Höffner...and I'm not ready to accept his conclusion simply because I don't know enough about the time frame itself).
It could be that I tend to look at IP in the same reference as other types of property as well and if we say "well IP appropriation has helped society" than I logically(for now) can see how redistributionists use the same argument for other types of property.
All that being said, I think(hope) the one area you, me, & Jeff Bell all agree on is the supremacy both morally and economically of the "free market".
It's how that is defined that is the issue(specifically in the definition of what "is" property).
Best Regards to all...these discussions are always helpful to me.
Nick
DeleteI think a free market will figure out the "right" level of IP protection.
The reality would be (I suspect) that very little of what is described as IP would be worth protecting if the inventor (or writer or whatever) had to foot the bill.
I do not believe people would stop inventing or writing because of this.
The German model offers one example of people writing volumes despite not being "protected."
"I think a free market will figure out the "right" level of IP protection."
DeleteYes, I agree.
"The reality would be (I suspect) that very little of what is described as IP would be worth protecting if the inventor (or writer or whatever) had to foot the bill."
I might offer that the "level/degree" of protection might be the way this would develop.(in societies recognizing IP as real property)
For example:
A movie company might enforce it's IP on people running servers that mass distribute it's movie/IP to everyone/anyone with it's access.
That same movie company probably would't chase, let alone care, if I copied a DVD movie and gave it to you personally.
Further yet, a crafty company might even develop wording in their EULA to the effect: "The user of this moview(or software) is entitle to 5 copies to distribute as they see fit."
:)
The free market can sort it all out best. Yay!
When society/community doesn't hold me accountable for what my child does, then he/she is their own self owner.
ReplyDeleteUntil then, I own them.
Seems pretty simple to me.
“Thank you for the civil dialogue on IP – a rarity in our world; also for the dialogue regarding children: animal, mineral or vegetable?”
ReplyDeleteThanks, BM and Nick. It has been an entertaining debate.
On Jordan’s image I would like to make one clarification. His image is IP and IMO worthless by itself, but it is also information. If the store used that information in a fraudulent manner, presumably to falsely imply Jordan supported the store, it has defrauded at a minimum the consumers who made purchases due to the false information. I am on the fence as to whether that results in harm to Jordan himself. My gut says he was, but I cannot contrive any form of aggression against him that fits into my strict interpretation of the NAP.
"My gut says he was, but I cannot contrive any form of aggression against him that fits into my strict interpretation of the NAP."
DeleteI think this is because of how you define what property "is".
I think it's safe to say all NAP violations are harmful, but not all harms are NAP violations. If you perceive of IP as being property, someone appropriating it without permission would be "aggression".
Now in a society that does accept some form of IP, there still is the issue of proving it's "yours"(which Rothbard lightly touches on, but I agree with Kinsella that Rothbard is at times "confused"(Kisella's explicit word) on the issue...I'd probably choose a different word, "inconsistent"...but I think the intent to describe the situation is the same.
"I think this is because of how you define what property "is"."
DeleteIt strikes me as rather pretentious of libertarians to suggest that "this and only this" can be property. (I know this is also your view)
Like everyone has to accept homesteading / mixing labor with land is the only acceptable "thing."
Nick, BM excuse the short response. I have a work deadline looming, and the nice weather in VA this weekend wasn’t the best motivation for sitting in front of a computer.
Delete“..for a more full explanation I'd recommend you read "Economic Harmonies" by Bastiat.”
I have read it, though it has been a long time. I will toss in back on the queue.
“I'm confused, are you equivocating capital investment with force? Is there perhaps a different point here I'm missing?”
I am differentiating capital investment and force. Either can be used to give value to a patent. I should have written that different.
---
"My gut says he was, but I cannot contrive any form of aggression against him that fits into my strict interpretation of the NAP."
“I think this is because of how you define what property "is".”
True
“I think it's safe to say all NAP violations are harmful, but not all harms are NAP violations. If you perceive of IP as being property, someone appropriating it without permission would be "aggression".”
Except appropriating IP is not always voluntary. I agree with you and BM, though, in that societies will define IP as they wish regardless of how libertarians theorize it.