Information Feudalism

by John Holbo on January 27, 2011

Matt Yglesias writes:

A lot of our politics is about symbolism. And symbolically intellectual property represents itself in the contemporary United States as a kind of property—it’s right there in the name. But it’s better thought of as a kind of regulation. Patents and copyrights are modeled, economically, the same as you would model any state-created monopoly.

I think the idea that intellectual property is property is too entrenched, at this point, for this to be an effective rhetorical strategy. Furthermore, rhetoric aside, philosophically the real breakthrough would be for people to realize that defending property rights is not tantamount to defending freedom. What strong IP protection generates is not a free market but something more like information feudalism: a market-unfriendly clusterfuck of fiefdoms and inescapably inefficient lord-vassal terms-of-service arrangements that any friend of freedom, in any ordinary sense, ought to look upon with disgust. The reason why libertarian rhetoric – defend property rights! – can underwrite feudalism, of all things, is that a certain sort of libertarianism, i.e. so-called propertarianism, really just plain is a form of feudalism. I’ve made the case at length.

I don’t see much hope of making a snappy rhetorical case that would break the unhealthy property = freedom link. But I think it might actually be possible to sidestep it by coming up with something like ‘information feudalism’ or ‘cyberfeudalism’ as a catchy term for IP rent-seeking or patent trolling. (Of course, ‘rent-seeking’ and ‘patent trolling’ are already pretty snappy.) To put the point another way, lots of folks are so averse to ‘government regulation’ that you will never get them to trade ‘private property’ talk for ‘regulation’ talk, as Yglesias suggests. But really what these folks are operating with is a kind of centralized = lots of regulation; decentralized = deregulated mental shortcut. The advantage of ‘feudalism’ would be to break that by making vivid the obvious possibility that decentralized stuff can still be too highly regulated, in effect.

UPDATE: turns out someone wrote the book already. Or at least picked a great title already.

{ 89 comments }

1

Lew 01.27.11 at 7:14 am

John,

Apologies if you’re familiar with it, but there’s an excellent book on this topic by ANU acadmics Peter Drahos and John Braithwaite, aptly titled Information Feudalism: Who Owns the Knowledge Economy? (PDF). A bit outdated in its specifics, but since the book’s mostly about the history of the development of the present IP regime it holds up pretty well. The fundamental argument is that international IP laws and norms, as currently implemented (via TRIPS &c), constitute privatised regulation which prevents the sorts of innovation which IP laws were conceived to safeguard. It’s a quick read and I think you’d find plenty to agree with.

Cheers,
L

2

Timothy Scriven 01.27.11 at 7:22 am

Your post got me to digging out some old word files, till I found this. When I was a fair bit younger I wrote the piece below on the conceptual link between libertarianism and feudalism for a student zine, since then I’ve shown it to libertarians on occasion, their response is usually apoplectic, though a handful have actually bitten the bullet, or perhaps the entire ammo clip in this case:

Once upon a time, in a land far, far away from what is actually possible, the government surrendered its right to taxation except that required to maintain a very minimal state, with an army, a police force, a judicial system, a mint and one or two other things. At the very same time that government removed restrictions on contracts, allowing for more or less all contractual conditions.

Bob the rich man had always wanted to be a lord, it looked like such fun! He bought 2000 square kilometres of land at incredibly generous prices; he even offered to let the inhabitants keep their land, so long as they signed a contract granting him a tithe of their income. Not all inhabitants accept of course, but almost all of them who did not accept to remain as his tenants sold him their land anyway, feeling a little uneasy about the idea of remaining.

Time passed and Bob got to thinking. Wouldn’t it be a wonderful thing if the community could resolve its own grievances through a series of courts allowed to deal with petty matters? Bob made signing certain authorities over to these courts a requirement of renewing tenancy. The courts handled petty torts and perhaps even some very minor criminal matters. For the most part people accepted this, the government seemed very far away and distant, a minimal thing attended to only in oft forgotten elections, because the government had given up much of its power no one bothered to talk about it any more, on the other hand the local courts were near and the magistrates all neighbours and trusted residents of Bobland and the laws proposed reasonable. A handful of people left of course.

Time passed and each successive year these courts grew in power, they were mostly reasonable and convenient. Perhaps generations started to pass to, and the idea that a system of private courts was absurd leeched from the people’s minds. During the reign of Bob the III a very elementary system whereby certain people in need could be given loans at little interest was introduced, since this petit system of welfare was found to actually increase productivity. During the reign of Bob the IV it was declared that certain precepts of Boblandian Christianity had to be obeyed, on pain of expulsion from the land, a difficult fate since the money from the initial sale of land to Bob three generations ago had mostly been frittered away or reclaimed in taxes; to be expelled was to go probably alone and with perhaps very little property into the lands outside Bobland.

Over successive generations new conditions of tenancy were introduced, a portion money earned through sales had to be given to Bob . The residents of Bobland were required to give over their voting rights in the governmental elections. By this time there were of course many lands like Bobland, Garyland, Jasonland and Samland (1). The state made an effort to regulate everyone, but on occasion there were small border skirmishes between the great estates, these were deplored recognised as inevitable. Bobland, for its part, never behaved aggressively towards its neighbours but was required to defend itself on a few occasions.

And everyone was free, gloriously free, unrestrained by any power mad nanny state.

I put it to you that the state of minarchia described never did anything against the rules of libertarianism, nor did Bob or any of his successors. Neither the state or Bobland ever initiated coercion or failed to keep their end of a contract and yet, feudalism resulted. The natural outcome of America libertarianism is feudalism through tenancy, thus libertarianism does not result in liberty. Actual liberty requires restrictions on the power of individuals and corporate bodies, and whether or not you call these corporate bodies’ states, or these individuals rulers, is irrelevant. There will always be rules governing our lives; the only difference is that American style libertarians would functionally delegate these powers to “private” bodies, who would, in time, effectively constitute a new public sphere. Freedom is not slavery and libertarianism is not liberty. To put it in the terms of political philosophy, if you strip away all positive rights it soon becomes clear just how thin the so called “negative” rights are.

(1)- It is not a coincidence that all these names are male names.

3

Timothy Scriven 01.27.11 at 7:25 am

Huh, it’s actually very similar to your link.

4

Chris Lloyd 01.27.11 at 7:41 am

Great post until you ruined it with:

(1)- It is not a coincidence that all these names are male names.

Obviously you never heard of Margaret Thatcher.

5

Timothy Scriven 01.27.11 at 7:46 am

I’m claiming that in a hyper-Libertarian world, the majority of the “feudal lords” would be men. I stand by this claim.

6

NomadUK 01.27.11 at 9:19 am

Obviously you never heard of Margaret Thatcher.

It’s clear that our society is fundamentally patriarchal in nature (a situation which I abhor, by the way, and can attribute only to the application of overwhelming and brutal force over uncounted centuries), and Thatcher is (and hopefully soon will no longer be) a ruthless twit who managed to claw her way to the top by following their rules and thanks to the gradual relaxing of some of the sexual restrictions in that society. There’s little question in my mind that, were we to devolve back into the feudal mire described above, women — with the occasional exceptions, as there always have been — would once again find themselves at the bottom of the heap.

Or, as Larry Niven and Jerry Pournelle note in Lucifer’s Hammer, women’s liberation survives for about 30 seconds after Hammerfall.

There’s no reason society has to be that way, and many societies, current and past, have been ordered differently. Perhaps if civilisation falls after a century or two of full equality, sexual freedom, and the extinction of organised religion, power in the feudal hierarchy could be more evenly distributed among the sexes — or perhaps we could avoid the whole feudal thing altogether.

7

Tim Worstall 01.27.11 at 10:06 am

“What strong IP protection generates is not a free market “

Well of course. IP protection is a response to the perception that a free market doesn’t work in this instance.

Ideas, designs, technologies, once they’re released, are public goods. Non rivalrous and non excludable. And we know very well that a pure free market, entirely unadorned, will undersupply us with public goods. With IP, if you cannot restrict access to your new idea, cartoon, technology, book, why would you go through the investment process, the spending of your own money, to produce such?

OK, some/many will still do so but as with all public goods fewer than we might think to be optimal.

Thus, as with other public goods, we intervene in that free market in order to get to the perceived to be optimal level.

That strong IP protection might also not get us to that optimal level can also be true. But to complain that IP protection does not deliver a free market is rather missing the point. IP protection is a response to the perceived failure of a free market, so of course it doesn’t lead to the very thing it is trying to correct.

We have tax funding of academic research for exactly the same reason: a response to a perceived failure of an entirely free market approach.

8

Henri Vieuxtemps 01.27.11 at 10:54 am

But to complain that IP protection does not deliver a free market is rather missing the point.

But same is the case with most of the other kinds of property; land, for example:

“The first person who, having fenced off a plot of ground, took it into his head to say this is mine and found people simple enough to believe him was the true founder of civil society” (Rousseau 1753)

What is the libertarianism/propertarianism all about, then?

9

Tim Worstall 01.27.11 at 11:27 am

@ 7. Use of land is rivalrous and excludable. So not a public good in this sense.

10

Pete 01.27.11 at 11:54 am

But I think it might actually be possible to sidestep it by coming up with something like ‘information feudalism’ or ‘cyberfeudalism’ as a catchy term for IP rent-seeking or patent trolling

http://www.amazon.com/Information-Feudalism-Peter-Drahos/dp/1565848047

11

Pete 01.27.11 at 12:00 pm

But to complain that IP protection does not deliver a free market is rather missing the point. IP protection is a response to the perceived failure of a free market, so of course it doesn’t lead to the very thing it is trying to correct.

Would this mean that all the value accounted for IP rights wouldn’t count as value produced by the free market?

12

John Holbo 01.27.11 at 12:01 pm

Well, I guess someone wrote the book already. (Probably should have googled the term first, eh?)

13

John Holbo 01.27.11 at 12:04 pm

I probably shouldn’t have said ‘strong IP’ protection. I should have said ‘excessively strong’. Of course, the problem here is that ‘strong’ is (maybe) good, and ‘excessively strong’ is too much, by definition. The point is: IP protection is currently too strong. That’s a separate premise. (If you don’t agree with this, there’s nothing in the post to convince you, but I think it’s a generally agreeable position around here.) The question is: how to diagnose the problem in a way that will make people who don’t really appreciate it yet start appreciating it.

14

Pete 01.27.11 at 12:13 pm

I’d actually like to go back to the anti-monopoly position that people always cite from Macaulay:

http://www.famous-speeches-and-speech-topics.info/famous-speeches/thomas-babington-macaulay-speech-copyright-law.htm

Tim’s position – that we have to mess with the market a bit in order to reward innovation, but that this is a bad thing in itself, used to be the default. I reckon linking the idea of IP to the commons, as Larry Lessig likes to do, is a huge rhetorical blunder. It suggests that to worry about IP rights you have to be worried about property rights generally. Most people don’t think property is bad thing per se. But no-one – left, right or otherwise – is in favour of monopoly for its own sake. Boldrin and Levine seem to have realised this, but they never get much press:

http://www.againstmonopoly.org/

15

Bruce Baugh 01.27.11 at 12:45 pm

It’s not just that IP law is too strong, though it is. It’s also that it makes it easy for the wrong people to get too-strong claims. The people getting richest on IP should at least be writers and artists and photographers and composers and such, and clearly this isn’t the case. Like John, I don’t see any prospect for selling people on the idea that IP as such is the wrong approach, but I wonder if someone with good funding could mount a campaign in favor of the idea that non-creative managerial types should never have more than licensed rights to use others’ IP, never be able to refer to themselves as the originators of others’ IP, and only ever able to exercise their licensed rights for fixed and limited times.

16

Pete 01.27.11 at 1:09 pm

I wonder if someone with good funding could mount a campaign in favor of the idea that non-creative managerial types should never have more than licensed rights to use others’ IP, never be able to refer to themselves as the originators of others’ IP, and only ever able to exercise their licensed rights for fixed and limited times.

I’m pretty that this will be met with a slew of better funded people – all of them talking about how this will actually harm artists by ensuring that non-creative managerial types have less incentive to buy or commission work, now that they can’t exploit its full value. They might even draw little diagrams talking about the dead-weight losses that this sort of “needless government regulation” and “protectionism” has caused. And all the while they’ll be conveniently omitting the fact that the whole thing is an exercise in regulation and protectionism. What really should be a non-ideological point gets turned into another left v right battle.

17

Pete 01.27.11 at 1:11 pm

I’m pretty that this will be met with a slew of better funded people – all of them talking about how this will actually harm artists by ensuring that non-creative managerial types have less incentive to buy or commission work, now that they can’t exploit its full value.

Pretty sure, obviously. I’m actually not that pretty.

18

Pete 01.27.11 at 2:35 pm

Bruce: that more closely resembles the French-style droit moral system.

The problem with the IP system is that, for it to work, people have to be prevented from enjoying the benefits of a particular piece of IP without the permission of the rightsholder(s). This can lead to all sorts of deadweight loss (qv copy protection wars, most recently on the PS3).

19

Tim Worstall 01.27.11 at 2:44 pm

“Would this mean that all the value accounted for IP rights wouldn’t count as value produced by the free market?”

One way of putting it. Anther would be that some of the value would be created in a free market but it wouldn’t be captured by the creators, rather by the users. But by intervening in said free market, allowing the creators to capture some of the value, we are enabling more value overall to be created.

So it rather depends on the meaning of “all” in your phrase. Is it “all of the value in IP rights is not created by free markets” or is it “not all of the value in IP rights is created by the free market”?

20

bianca steele 01.27.11 at 2:54 pm

What Bruce Baugh and Pete said (especially about Lessig’s idiosyncratic focus), but additionally: what we have now isn’t actually IP protection in the sense most people think of it. We don’t respect the rights of authors. There’s story upon story about screenwriters who arguably had ideas taken by Hollywood producers who laughed at the idea a lawsuit would even be possible. Rock bands have similar stories. Notice how Yglesias snarks at the very idea that Newton should have spoken up about his belief that Leibniz borrowed. The appropriate parallel is actually the idea that Cambridge University (or the Royal Society) should have asserted the patent.

Yes, we have IP protection for the estates of dead authors (though we also have IP protection for the estates of people who had other authors’ IP in their possession at the time of their own death, in a few strange seeming cases), and that is a pain for scholars. I’d consider IP protection for journal publishers who extracted copyright protection from authors in the category from my first paragraph.

And the issues for software are completely different, of course (as Yglesias, to his credit, gestures at with his mention of the shifting patent rules).

21

Pete 01.27.11 at 3:07 pm

Patents in software seem to be a disaster, as they are often awarded for completely trivial things, e.g. the notorious “one-click” patent or more recently http://www.theregister.co.uk/2011/01/25/kodak_patent/ : image in the viewfinder a smaller resolution than the image captured! That’ll be $800m please.

22

John Holbo 01.27.11 at 3:11 pm

Bianca Steele: “Notice how Yglesias snarks at the very idea that Newton should have spoken up about his belief that Leibniz borrowed. The appropriate parallel is actually the idea that Cambridge University (or the Royal Society) should have asserted the patent.”

Matt Yglesias: “by 21st century standards Isaac Newton should have patented calculus (“A Method For Using Fluxions To Determine Instantaneous Rate of Change”) and then waited patiently until Leibniz published his superior method and then sued the pants off anyone who tried to take a derivative without coughing up a hefty license fee.”

Are we reading the same Yglesias post, Bianca?

23

bianca steele 01.27.11 at 3:29 pm

@Pete: Until sometime in the 1980s, you couldn’t patent an algorithm in software or in pure math. What you could do was patent a computer system (hope I didn’t post this a little while back), and it had to mention the hardware, in a specific way, no matter how generic the hardware was in the sense of how widely it was used (you had to say “magnetic media storage device,” not just “database”). Now you can patent algorithms (historically, this may have had something to do with the rise of the business process patent), and suddenly there was a whole class of things for which patents could be filed with no prior law available and no existing expertise in the patent office or on courts. So there are large numbers of things that are either in elementary textbooks with no creators’ names attached, or actually used as not especially difficult undergraduate homework problems, that turn out to be patented, creating a situation where nobody really knows what might be patented, and inventions are so widely used before IP is asserted that one company can claim a post facto stranglehold on the whole industry.

John, I read Yglesias as applying “by 21st century standards” to Newton’s taking issue with Leibniz at all–not to the fact that he only wrote nasty letters to his friends and didn’t attempt any official action (which Yglesias thinks he should have done), but rather accepted that ideas get borrowed, propagated by people with more and more power friends, and attributed by historians to these people. I read it this way even knowing what Newton actually did. It seemed a little sarcastic to me. It seems like Yglesias is implying that anyone who would file a lawsuit like that is neurotic.

24

y81 01.27.11 at 3:39 pm

Reversing the idea that property rights equal freedom would seem to require reversing four hundred years of Anglo-American intellectual history. (Whig history, no doubt, but what other kind is there?) Such an intellectual revolution seems like a bit of overkill when the only identified problem is supra-optimal levels of IP protection.

Although overcoming the idea that property rights equal freedom is probably impossible, there exists widespread acceptance of the idea–an idea with respectable common law antecedents–that property rights can be modified by government action. Any successful campaign to modify IP law is more likely to be framed in that mode than a radical anti-propertarian mode.

25

piglet 01.27.11 at 3:42 pm

It would be progress if we could get libertarians to admit, as Worstall does, that Intellectual Property is purely a creation of government regulation that gives certain market participants a degree of monopoly power. And then let them defend why in this particular case, government regulation is such a good thing when it is supposed to be always bad.

26

piglet 01.27.11 at 3:49 pm

“Although overcoming the idea that property rights equal freedom is probably impossible, there exists widespread acceptance of the idea—an idea with respectable common law antecedents—that property rights can be modified by government action.”

Well of course, something that has been created by government action can also be modified by government action. Framing the debate in these terms is conceding the other side’s premise.

27

Pete 01.27.11 at 4:02 pm

One way of putting it. Anther would be that some of the value would be created in a free market but it wouldn’t be captured by the creators, rather by the users. But by intervening in said free market, allowing the creators to capture some of the value, we are enabling more value overall to be created.

So the value that’s created by the free market is value that we’d have whether or not we had IP rights, and the rest is just government intervention?

Given that, if we’re robbing users to pay creators, how do we know that we’re actually netting a gain rather than a loss here? Especially since some of those users may be using that value as an input for more creation? Shouldn’t the presumption from advocates of free markets be against this sort of tinkering in the market outcomes?

Obviously there may be considerations of justice here: “Creators deserve to be rewarded!” But again, shouldn’t the free market crowd be presuming against the government redistribution of wealth in the name of some questionable ideal of justice? Especially when that ideal sounds like something a hippy would say?

28

Zamfir 01.27.11 at 4:04 pm

It’s not just that IP law is too strong, though it is. It’s also that it makes it easy for the wrong people to get too-strong claims. The people getting richest on IP should at least be writers and artists and photographers and composers and such, and clearly this isn’t the case.
For my taste, this is too close to arguing that only cool people we like should get benefits from IP, not boring people in suits. Technological inventions or Hollywood movies are produced by mass collaborations of people, most of whom are not directly involved in the creation of new things, but still necessary as support. Why should we restrict the benefits to some set of true creators, instead of awarding the relevant rights to the organization as a whole?

Also, are you sure the individuals who profit most from IP are not writers and artists? JK Rowlings or Paul McCartney are among the richest people in the world.

29

Bruce Baugh 01.27.11 at 4:25 pm

Pete: Yeah, I agree with the problem.

Zamfir: No, it really isn’t “arguing that only cool people we like should get benefits from IP, not boring people in suits”; you may not have seen any of the arguments I make for the importance of distributors, marketers, and a lot of other people who aren’t creators, but I do. I deeply loathe the current fascination with having authors do all that stuff themselves (for the admittedly selfish reason that disability and psychological problems mean that I personally cannot, and yet would like to publish again when I can), as though there’s no craft or skill or professional expertise or seriously important value in each of those things done well, too.

It’s an argument that corporations are enriching themselves on a lot of work that they didn’t, in any very interesting sense, make. You can point to some individuals who’ve gotten rich, sure. How do those stack up against the holdings and income of corporations that deal in a lot of IP? Warner Brothers as a business is doing a lot better than just about anyone who actually worked in Termite Terrace, and so forth and so on. And they deserve to make a ton of money for doing all the stuff around actually animating, scoring, playing, and such. But they don’t deserve to dominate political and social conversation as though the current management created any of that stuff. Likewise with the RIAA’s enforcers, and on down the list.

30

Bruce Baugh 01.27.11 at 4:27 pm

Y81: “Reversing the idea that property rights equal freedom would seem to require reversing four hundred years of Anglo-American intellectual history.” Not really. We’re talking about trends that are decades, not centuries, old. The existing framework of functionally eternal rights for corporate IP holders is another of the features emerging out of the attack on the Great Compression; it’s not’s something that, for instance, my mother grew up being taught in the 1930s.

31

Stephan Kinsella 01.27.11 at 4:27 pm

You seem not to be aware that libertarians are increasingly opposed to IP, precisely on the grounds that it undercuts and invades property rights. The only principled reason to oppose IP, in fact, is the libertarian advocacy of property rights. See, e.g., the materials collected at http://c4sif.org/resources; and my articles
The Death Throes of Pro-IP Libertarianism; and my speech How IP Hampers Capitalism, where I mention:

“Today, what I’m going to argue is intellectual property is incompatible with capitalism. The word capitalism itself might need a little bit of clarification because, in recent years, some fellow advocates of the free market and free society have said they are in opposition to capitalism. I think it’s basically a semantic dispute. What they are opposed to is what we would refer to as corporatism or mercantilism or crony capitalism or capitalism as the western governments portray it.

“So, you have this sort of funny situation where we are in favor of capitalism, by which we mean private property, and I’m against intellectual property. Left libertarians are against capitalism and they’re against intellectual property. Regular leftists believe that intellectual property is a legitimate type of property right and they’re against it for that reason. So, they’re all over the map”

32

Substance McGravitas 01.27.11 at 4:34 pm

The only principled reason to oppose IP, in fact, is the libertarian advocacy of property rights.

It simply could not be that other-than-libertarians have principles.

33

John Holbo 01.27.11 at 4:51 pm

“You seem not to be aware that libertarians are increasingly opposed to IP, precisely on the grounds that it undercuts and invades property rights.”

I’m aware that libertarians are often quite open to reason on the general IP issue. That’s good. But I don’t think it makes sense to be opposed to unduly strong IP on the grounds that it undercuts and invades property rights. I think it’s probably false or question-begging, or at least unclear, to say that. Rather, the problem is that strong IP unduly infringes freedom.

34

bianca steele 01.27.11 at 4:54 pm

Zamfir @ 28
There are hundreds and sometimes thousands of people working on films, doing creative work–enormous amounts of money is spent on making things for movie sets that will be thrown out afterwards–but most of them earn barely a living wage and will quit the business by the time they’re thirty. Then there are people who make a good enough living to get themselves into the elite (able to afford monthly facials, household help, private schools, and so on) by directing staffs of creative people, selecting stories and changing films to meet a certain commercial criterion. I don’t begrudge them their high salaries, but what they do and what their staffs do is not the same as what an indie filmmaker or a novelist does, and an IP law that works only to their benefit is not doing what the law was intended to do.

Additionally, the arguments made by Hollywood lawyers, around the time the current DVD and MP3 technologies were shaking out, unilaterally assert rights for the entertainment industry far beyond what seems to make sense.

35

zamfir 01.27.11 at 4:55 pm

Bruce, no ptoblem, i reacted to your statement in isolation. If your argument is just that the current particular setup of laws and institutes is tilted towards the wrong people, then you might well be right. I do not have enough knowledge to judge on that for my own country or the world in general.

Is your impression that the system surrounding ip, or artists’ ip in particular, is more tilted towards powerful and moneyed interests than legal systems on the whole are?

36

John Holbo 01.27.11 at 4:56 pm

“The only principled reason to oppose IP, in fact, is the libertarian advocacy of property rights.”

You can’t think of a possible utilitarian argument against IP? Or any of a variety of other grounds on which you could object to it?

37

bianca steele 01.27.11 at 4:59 pm

Similarly, regarding John Holbo’s comment at 32, protection of freedom for those people who have worked their way up into the elite, but not for people who haven’t, is not what most people think of as freedom. And IP law that strongly protects the rights of people who have already worked their way up, at the expense of people trying to work their way up, is not doing what the law was intended to do.

38

More Dogs, Less Crime 01.27.11 at 5:01 pm

Kinsella is associated with the Ludwig von Mises Institute, and more particularly a follower of Hans Herman Hoppe & Murray Rothbard, among the most propertarian of libertarians. Hoppe even founded a group called “Property & Freedom” or something like that and defends monarchy as superior to democracy.

39

Bloix 01.27.11 at 5:02 pm

@ “Use of land is rivalrous and excludable.”
Use of land is rivalrous but it’s not excludable without an elaborate legal system of land title and registry and a dense web of state actors and state-licensed actors who are granted a monopoly on the use of force. You can’t have landlords and mortgage lenders if you don’t have sheriff’s deputies who can carry out evictions.

The state role in creating a market in land is as pervasive as its role in creating a market in “intellectual property.”

And BTW, the use of the term “intellectual property” in the US is very recent – only a few decades old. Before then, people talked about “patent, copyright and trademark” as related but distinct things and didn’t consider them to be “property” of quite the same sort as a house or a car.

40

John Holbo 01.27.11 at 5:02 pm

“It seems like Yglesias is implying that anyone who would file a lawsuit like that is neurotic.”

Well, only if you consider the profit motive to be a form of neurosis, which it might be. His point, surely, is that filing lawsuits like this is normal and highly profitable. But perhaps that shouldn’t be the case.

41

piglet 01.27.11 at 5:04 pm

It’s reassuring to know that Stephan Kinsella has figured it all out. I was starting to get worried that libertarians might get confused about the capitalism thing ;-)

42

Bruce Baugh 01.27.11 at 5:07 pm

Zamfir: ‘scool. Certainly there are people out there saying what you saw in my earlier comments; I’m not one of them, that’s all. :)

I don’t think that IP law is any more unpleasantly tilted toward corporate interests than a lot of other stuff. It affects me and a bunch of people I know more directly, and maybe it’s a little more blatantly obvious, and it (probably deceptively) seems kind of self-contained and isolatable in ways that other problems with corporations aren’t.

Stephan: Of course people like your patrons got us into this mess, with exactly the confidence and devotion to capitalism you show here. For me, on the other hand, the history of IP and its abuse have a lot to do with breaking me of any interest in preserving capitalism as such, or feeling that IP law as we have it is anything but a manifestation of capitalism working exactly as actually existing capitalists have wanted it to for a long time now. That is, you’re part of the problem, or at least your arguments are.

Bloix: Hey, do you happen to know of any good etymological histories for this stuff? I know vaguely about the evolution you describe but not details.

43

Steve LaBonne 01.27.11 at 5:10 pm

Bloix @39:

Use of land is rivalrous but it’s not excludable without an elaborate legal system of land title and registry and a dense web of state actors and state-licensed actors who are granted a monopoly on the use of force. You can’t have landlords and mortgage lenders if you don’t have sheriff’s deputies who can carry out evictions. The state role in creating a market in land is as pervasive as its role in creating a market in “intellectual property.”

The ability of libertarians to persist in not seeing such obvious points is one of the wonders of the world.

44

piglet 01.27.11 at 5:18 pm

“Use of land is rivalrous and excludable.”
“Use of land is rivalrous but it’s not excludable”

It’s not necessarily rival either. A public beach can be used by many people simultaneously without taking away from its value. You might say that I am preventing others from using the particular 5 square feet covered by my towel but then, I am also preventing others to breath the particular molecules of air that I am breathing right now. Still we don’t call air a rival good.

For most of human history, land was not private property and most of its use was neither rival nor excludable.

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Uncle Kvetch 01.27.11 at 5:20 pm

When I was a fair bit younger I wrote the piece below on the conceptual link between libertarianism and feudalism for a student zine, since then I’ve shown it to libertarians on occasion, their response is usually apoplectic

Frankly that surprises me. Based on my experience the vast majority of self-described libertarians, when shown your piece, would simply take for granted that they would be a Bob. So why the apoplexy?

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bianca steele 01.27.11 at 5:29 pm

John Holbo @ 40: Well, only if you consider the profit motive to be a form of neurosis, which it might be.

I think the complaint in question is perceived as being made because of pride, a level of amour propre that is seen as ridiculous in a person with so little in the way monetary and legal resources. Put another way, the person who’s motivated by profit in this situation is the Hollywood producer and his corporate studio. The guy complaining doesn’t try to maximize profit; he’s a writer, for pete’s sake. The neurosis is complaining about the way of the world, the fact that the powerful are powerful, that time and chance happeneth, a fait accompli

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Norwegian Guy 01.27.11 at 5:37 pm

I’ve got no strong opinions on current IP law, and it seams quite reasonable to me that, like other kinds of property, it is the result of government regulation. But, since I’m left-of-centre, I don’t have a problem with that. IP is a part of the mixed economy, not obviously worse, or better, than other forms of property.

If the argument is that IP is government regulation, and therefore should be abolished, it may attract some on the right wing. On the other hand, it might make social democrats support IP even more.

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Ebenezer Scrooge 01.27.11 at 5:50 pm

I understand some of the economic distinctions between intellectual property and just plain old dumb property (chattels, realty, choses in action, and treat licenses as you please.) But I really don’t understand other distinctions.

There is no such thing as prepolitical property. It’s all a legal construct. There is such a thing as tangible property (and we can leave to the side the question of whether realty is tangible property. But IP is not the only kind of intangible property, and there doesn’t seem to be much problem with plain old dumb property that is intangible (e.g., securities.) And furthermore, much of the law of tangible property is pretty obviously a political construct: nonpossessory security interests, confusion of goods, etc.

Now I will grant you that there is such a thing as property in places where there is no law: e.g., Primo Levi’s discussion of the economics of concentration camps. But this just changes the topic from law to social constructivism mixed with some brain wiring. There is nothing “natural” about social construction, and the constraining brain wiring belongs more to the province of psychology than political theory.

Where am I going? When you are talking about appropriate property rights, all you are doing is evaluating law or social conventions in terms of something else. The “something else” can only be economics or psychology. Except for the psychology, there is nothing “natural” about the concept of property. The rest is social/legal conventions, all the way down. And this applies to differently to intellectual property than it does to dumb property.

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geo 01.27.11 at 5:54 pm

JH (OP): I don’t see much hope of making a snappy rhetorical case that would break the unhealthy property = freedom link.

Wasn’t somebody just trying to do this on another thread?

50

zamfir 01.27.11 at 5:58 pm

Bruce, always remember, if you’re not part of the solution, you’re part of the precipitate.

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Bruce Baugh 01.27.11 at 6:31 pm

Zamfir: I used to be part of the base, but I’m now I’m part of the acid.

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y81 01.27.11 at 6:44 pm

“Use of land is rivalrous but it’s not excludable without an elaborate legal system of land title and registry and a dense web of state actors and state-licensed actors who are granted a monopoly on the use of force.”

That applies to all forms of property, I think. When economists refer to “excludable,” they mean only that it is physically possible for the state to exclude some people at the behest of others, as is possible in the case of land but not so much in the case of sunlight (or street lighting). They don’t mean that exclusion happens automatically, as a result of the laws of physics.

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Henri Vieuxtemps 01.27.11 at 6:54 pm

I’ve got no strong opinions on current IP law, and it seams quite reasonable to me that, like other kinds of property, it is the result of government regulation.

Yeah, same here.

I used to know a guy (died of OD years ago) who grew up in a third-world country, in an orphanage. When leaving a party, he would usually take any jacket from the rack, presumably the one he liked most. If the owner protested, he would say: ‘oh, you want this one? Sure, no problem, I’ll take another one.’

Are the jacket-property protection laws too strong? They can send you to jail for taking a jacket.

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lemmy caution 01.27.11 at 9:25 pm

“I think the idea that intellectual property is property is too entrenched, at this point, for this to be an effective rhetorical strategy. “

This isn’t really true. The term “intellectual property” has just gotten popular recently. It really happened in the 1990s:

http://ngrams.googlelabs.com/graph?content=intellectual+property&year_start=1800&year_end=2000&corpus=0&smoothing=3

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John Holbo 01.27.11 at 11:34 pm

“I think the complaint in question is perceived as being made because of pride, a level of amour propre that is seen as ridiculous in a person with so little in the way monetary and legal resources.”

Well, just so long as we’re clear that we’re not talking about Yglesias’ post anymore. You are making your own point now about some other person, and some other situation. (So it’s misleading to connect it to Yglesias.)

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piglet 01.28.11 at 1:21 am

y81:

When economists refer to “excludable,” they mean only that it is physically possible for the state to exclude some people at the behest of others, as is possible in the case of land but not so much in the case of sunlight (or street lighting). They don’t mean that exclusion happens automatically, as a result of the laws of physics.

Ok but land is at least a border line case. The larger the land area in question, the more difficult it is to make it exclusive. Besides, intellectual property can also be excludable, via built-in copy protections. They can be circumvented, but so can a fence.

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bianca steele 01.28.11 at 1:30 am

Well, just so long as we’re clear that we’re not talking about Yglesias’ post anymore. You are making your own point now about some other person, and some other situation. (So it’s misleading to connect it to Yglesias.)

I admit I slipped from talking about Newton to talking about an analogical situation. But Yglesias invites this by himself talking, not about Newton, but about a fictional hypothetical based in the culturally recognizable situation he describes but doesn’t name (in fact not too different from the way he gestures at current arguments about software patents but doesn’t name the issue explicitly). I think the example of Newton is actually very poorly chosen (and I think sarcasm and parody work poorly in this kind of critique).

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John Holbo 01.28.11 at 2:42 am

“Yglesias invites this by himself talking, not about Newton, but about a fictional hypothetical based in the culturally recognizable situation he describes but doesn’t name”

I don’t think this is fair. The thing he actually said was the correct thing, by your own account. You free associated from his post to some other thing, which wouldn’t have been correct, perhaps. That’s fine. But it’s a mistake to infer from the fact that you free associated wrong thoughts, on the basis of Yglesias’ post, to the conclusion that he invited them. There isn’t anything in his post corresponding to the things you attribute to him. Nothing about pride or any of that. That’s all down to you.

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bianca steele 01.28.11 at 3:11 am

Where did I say Yglesias said the correct thing? I said he snarked. He made a cheap point with an emotional appeal (why in hell should anyone support Newton’s hypothetical suit against Leibniz if the latter was “superior,” much less such an undignified activity as “suing the pants off anyone” who comes along?), and he mashed up software patents with open software with town/gown conflicts with scientific precedence with philosophical theories about how innovation happens with people vaguely feeling that how the ideosphere works is “unfair.”

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John Holbo 01.28.11 at 3:26 am

“Where did I say Yglesias said the correct thing?”

You didn’t say it, but you implied it. You protested that the appropriate analogy would have been X not Y. And then I pointed out that Yglesias had actually said precisely X and nothing like Y.

“why in hell should anyone support Newton’s hypothetical suit against Leibniz if the latter was “superior,””

Sorry, this may be confusion about how patents work. If Newton really won a patent on “A Method For Using Fluxions To Determine Instantaneous Rate of Change”, then it wouldn’t matter if Leibniz’ version of that method was superior. Newton would still have the patent. Lots of people can make improvements to patented things. But the patents still stand, and can often end up keeping better things from reaching the market. This is the concern.

““suing the pants off anyone” Ah, I hadn’t realized you were assuming this would be deleterious to Newton’s dignity. If anything it sounds hard on Leibniz, who is, ex hypothesi, walking around without pants. But surely the point – Yglesias’ anyway – is more that this behavior is normalized, since it is so common. So precisely the problem is that it would NOT be deleterious to Newton’s dignity, in our IP climate. It is not regarded as shameful to make excessive claims to rights and protections.

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Tim Worstall 01.28.11 at 10:06 am

“It would be progress if we could get libertarians to admit, as Worstall does, that Intellectual Property is purely a creation of government regulation that gives certain market participants a degree of monopoly power. And then let them defend why in this particular case, government regulation is such a good thing when it is supposed to be always bad.”

Quite true. But then that’s one of the differences between libertarians (or libertoons perhaps) and classical liberals. The latter, like myself, are entirely happy to agree that there are times when government regulation, intervention, even State monopolies, are entirely good and wonderful things.

Just not all that often.

“So the value that’s created by the free market is value that we’d have whether or not we had IP rights, and the rest is just government intervention?”

Yes, and this is true of all public goods. Which is why we can justify government intervention in cases of public goods (and bads like pollution of course).

“Given that, if we’re robbing users to pay creators, how do we know that we’re actually netting a gain rather than a loss here?”

But we’re not robbing users to pay creators. We’re, through judicious intervention, increasing the size of the pie thus making all better off. Again, as with all of the arguments about public goods.

As to whether we are in the spcific matter to hand, IP, increasing the size of the pie, that’s an empirical matter. I tend to think that IP is currently too strict and that we’re not. 90 year (?) protections on Mickey Mouse strike me as going too far. But that while we might have the specific intervention wrong, that doesn’t undermine the theoretical case for why we intervene at all.

“For most of human history, land was not private property and most of its use was neither rival nor excludable.”

Deeply unconvinced there. Try wandering through some field that a dog thinks belongs to him. You’ll certainly find that there will be an attempt to exclude. Same with hunter gatherer tribes, no?

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Timothy Scriven 01.28.11 at 11:19 am

I’ve decided to republish that parable.

I think I’ll call it the road to serfdom.

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Pete 01.28.11 at 2:03 pm

But then that’s one of the differences between libertarians (or libertoons perhaps) and classical liberals. The latter, like myself, are entirely happy to agree that there are times when government regulation, intervention, even State monopolies, are entirely good and wonderful things.

Fair enough, but I think that classical liberals should be a whole lot more worried about IP rights than they currently seem to be. At the moment you seem to be hand-waving away a bunch of classical liberal concerns with some pretty dubious assumptions.

[V]alue would be created in a free market but it wouldn’t be captured by the creators, rather by the users. But by intervening in said free market, allowing the creators to capture some of the value, we are enabling more value overall to be created.

But we’re not robbing users to pay creators.

Unless none of the value that would get created in a free market gets covered by IP rights (which seems unlikely), I just don’t get how that follows. Some creation happens in a free market, and it’s captured by users. The government decides that this is sub-optimal, so takes it and gives it to creators (or possibly someone else who makes their living stiffing the creators, but lets keep things simple) in the hope that this will encourage them to be even more creative.

You can argue that taking from users is justified and that everyone benefits in the long run. As you say, that’s an empirical question, and there’s probably too much taking going on at the moment. But if the government’s in the business of taking from someone and giving to someone else, then why are classical liberals not subjecting this to the same sort of scrutiny that they apply to other sorts of taxation?

Yes, and this is true of all public goods. Which is why we can justify government intervention in cases of public goods.

I tend to think that IP is currently too strict… But that while we might have the specific intervention wrong, that doesn’t undermine the theoretical case for why we intervene at all.

But the theoretical case doesn’t look to me like one that classical liberals should be conceding without a fight. So the premise is that information is a public good and thus will be insufficiently produced by markets? But the whole liberal case for markets is based on the idea that they produce and spread information without the government having to step in and second guess them. The theory that markets will frequently produce insufficient information, and that governments should thus step in and start awarding monopolies, is something that anyone who likes their Hayek should be treating with serious suspicion.

Again, there might be good reasons for allowing this – usually along the lines of saying that markets deal really well with some sorts of information, but less well with others. And so we’ll just grant monopolies in those spheres where the market can’t sort it out. But people who say they’re worried about government expansion might want to check that this sphere of “information production that we can’t leave to the market” wasn’t, you know, growing at an exponential rate or anything.

Again, why does IP seem to get a comparatively free pass?

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Norwegian Guy 01.28.11 at 2:19 pm

“Deeply unconvinced there. Try wandering through some field that a dog thinks belongs to him. You’ll certainly find that there will be an attempt to exclude. Same with hunter gatherer tribes, no?”

But is it, in the case of hunter gatherer tribes, private property? A tribe could be seen as a kind of proto-state. And it’s the same way with state-owned property today. States surely attempt to exclude other states (and private actors) from their properties.

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bianca steele 01.28.11 at 3:31 pm

Sorry, this may be confusion about how patents work.

Probably. Patents are pretty specific, and as mentioned above, different from copyrights, trade secrets, trademarks, and so on; and the range of things to which they apply has pretty indisputably been expanded in the past couple of decades. Patents are supposed to be for tangible things (no thought police required), they are supposed to be non-obvious, and they are supposed to be innovative. They go only to the first publisher of the technique and can be invalidated by finding published proof that someone else thought of it first. They require publication, unlike trade secrets, and approval by the government, unlike copyright. Also unlike copyright, they cover the content of the publication, as opposed to the expression–though they do not cover ideas or theories, only methods and construction designs. (Patents for genes are actually patents for extracting genes from a genome.) The owner of a patent has the right to file lawsuits[1] against anyone perceived as using what’s described in the patent without permission, and to decide whether or not to license the patent to other parties, for the period within which the patent is valid. This law can’t just be changed because some right-wing lobbyist thinks businesses should have more rights than they do, but on the other hand, enforcers of the law have discretion and only a subsequent lawsuit could ensure they don’t change things on a whim. (Yglesias mentions “consulting with lawyers. Lawyers advise their low-power, low-money clients on how they can avoid lawsuits, not on how they can become test cases for rectifying the law. They advise their high-power, high-money clients on what they can do that will enable them to win a subsequent lawsuit, whether filed by them or against them. I don’t know what they advise journalists.)

Patents are perceived as more in the public interest than trade secrets. You can certainly come up with a theory about how innovation happens that implies that a different system would be more effective.

[1] The right to file lawsuits (to attempt to enforce a property right in the design) is what an IP lawyer will tell you a patent really, technically consists in.

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Tim Worstall 01.28.11 at 4:01 pm

“So the premise is that information is a public good and thus will be insufficiently produced by markets? “

I think you’re playing there with two different meanings of “information”.

There’s information in that Hayek sense, what do people want and how do they want it. And markets are great processors (providers if you like) of that information. Or data into information if you like.

But there’s another meaning of information: “this is how you make a transistor”.

I’m all for the freedom of that first type and can see the public goods issues with the second. But they are distinct, aren’t they?

“But is it, in the case of hunter gatherer tribes, private property? A tribe could be seen as a kind of proto-state. “

Fair enough: but that wasn’t really the distinction I was thinking about. It was between private property and terra nullius perhaps. Between property that can be used by one person, or member of whatever the in group is, and property that can be used by anyone at all who just pitches up.

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dave_scrapnail 01.28.11 at 4:53 pm

Are patents considered property? Basically, no, they are generally thought of rights (for i.e. copyrights). Are smart enough to realize that IP isn’t like a house, electronic money, or a physical CD, that can be literally taken away. Rather, they are thought of in moralistic terms, as the right to ‘copy’ something and control that right to copy. And regulation is also a vague point of reference. The government regulates IP in the same way that it regulates, say, contracts or securities, by providing a framework for interaction between multiple parties. When we think of regulation like environmental regulation or financial regulation, it is in terms of government interaction with individual companies. IP is sort of a ‘contract’ between a company and the public. And the main benefit of IP is that it allows companies to develop supply chains and hire employees without really worrying about undermining their position. By now, it is well-understood that the government still plays a large role in ‘free-market’ economies, but I think there are legitimate reasons for seperating ‘regulation’ and ‘rule of law’ as concepts.

If people consider IP to be a ‘right’, the notion of IP as feudalism breaks down somewhat. The characteristics of feudalism are a fairly clear hierarchy of loyalties/obligations (not really present in IP). In your other article, you quote Freeman, who argues that it is the separation of government from the web of private relationships, which also seems to be a bad fit for IP. Perhaps you are implying that the process of extracting rents for a property is the essence of feudalism? But if we look to Marx, the process of rent extraction is a constant in history, even if the type of property and method of control changes. Personally, the attempt to tie IP (and by extention capitalism) back to Feudalism as a way of discrediting it seems dubious.

Looking at libertarianism through the lens of feudalism could also benefit from thinking more about the distinction between property and contracts. Certainly, feudo-capitalism is perfectly feasible under a system where all the means of production are controlled by a class of individuals, but the downfall of feudalism was the constant development of new means of production in cities and towns outside the property controlled by the aristocracy. While Holbo’s emphasis on the ability of people to ‘sell’ themselves identifies a problem with libertarianism, the control of the self by the self is a problem in most economic systems. And in fact, one of the much-noted parts of the American capitalist system is the ability of people to declare bankruptcy and get a fresh start–the limited intertemporality of contractual relations. People do sell themselves to companies, but can generally end that employment when they wish, give or take two weeks. So, having flogged the dead horse to many times, linking feudalism to capitalism isn’t likely to be an effective rhetorical argument against libertarianism.

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piglet 01.28.11 at 5:13 pm

Worstall:

“Deeply unconvinced there. Try wandering through some field that a dog thinks belongs to him. You’ll certainly find that there will be an attempt to exclude. Same with hunter gatherer tribes, no?” … “Fair enough: but that wasn’t really the distinction I was thinking about. It was between private property and terra nullius perhaps.”

Hunter gatherer tribes are the worst example you could come up. I’m not denying that some form of territoriality, attempts by a group to exclude other groups from using certain land-based resources, may exist but that’s a far cry from propertarian ideas about land ownership. “Between private property and terra nullius” there are countless other possible arrangements. And a resource commonly used by members of a group to the exclusion of other groups is emphatically NOT private property.

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roac 01.28.11 at 5:59 pm

The distinction between property from which every person but one is excluded, and property from which every person not a member of a small group is excluded, is not particularly meaningful to the everyperson excluded. Especially if the mechanism of exclusion is a poison dart in the neck.

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Pete 01.28.11 at 6:00 pm

I think you’re playing there with two different meanings of “information”.

There’s information in that Hayek sense, what do people want and how do they want it. And markets are great processors (providers if you like) of that information. Or data into information if you like.

But there’s another meaning of information: “this is how you make a transistor”.

I’m all for the freedom of that first type and can see the public goods issues with the second. But they are distinct, aren’t they?

Now there’s a deep philosophical question. Ask John. But whatever he reckons, my worry would be that this sort of distinction gets very blurry at the margins. Obviously we can draw a distinction between a patented drug and the price it sells at. Still, there have been some pretty worrying developments over the last 20 years or so:

1) As a general point, how something is made is very likely to have some impact on whether I want to buy it or not. This might not be a problem for patented products like transistors, but it is a problem for copyright: “How do I know if I want to buy the book if you won’t let me read it?” “How do I know if this code’s any good if I can’t get someone to inspect it?” etc. etc. This makes markets for copyrighted goods really problematic. Quick example: the whole Google Book Search kerfuffle was a dispute about whether it was legal for unlicensed third parties to scan books, not for the sake of providing a substitute, but just to tell people that they existed and what they contained. There’s an argument that US copyright law doesn’t allow that sort of use. European law almost certainly doesn’t.

2) Bianca (@ 23) mentioned algorithmic and business method patents. The fact that there’s so much many of these in financial services these days blurs the “making a transistor” and “processing prices” distinction in interesting ways.. The State Street decision was sort of a high watermark for this:

http://en.wikipedia.org/wiki/State_Street_Bank_v._Signature_Financial_Group

A system of law that can let someone hold exclusive rights over “the transformation of data, representing discrete dollar amounts, by a machine through a series of mathematical calculations into a final share price” has to ask itself some serious questions about what the market is meant to be doing.

3) Used to be that trademarks were only infringed if I was trying to fool your customers into buying your goods when in fact they were buying mine. These days, the US and Europe recognise what are called “anti-dilution rights”, which stop me from even associating my goods with yours if there’s a worry that it would tarnish your brand. The law’s taken the step into protecting the fact that people want your goods, rather than just ensuring that it’s yours they’re buying.

4) I also seem to remember some story about a shop owner stopping people from using his prices for comparison purposes, because they were his “intellectual property.” Obviously he was wrong, but with the EU recognising database rights these days, you can imagine potential for that sort of abuse at a more sophisticated level.

Also, Tim Wu makes a slightly different Hayekian case against strong IP rights here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=726561

The core idea is that IP licensing is a re-run of the socialist calculation problem – if you have one party deciding how information may or may not be used, that information is likely to be used inefficiently.

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Pete 01.28.11 at 6:04 pm

Oops, messed up the italics. My stuff starts at the paragraph beginning “Now there’s a deep philosophical question.”

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piglet 01.28.11 at 9:26 pm

“The distinction between property from which every person but one is excluded, and property from which every person not a member of a small group is excluded, is not particularly meaningful to the everyperson excluded.”

This reasoning is incredibly shallow. The term ‘property’ has a specific meaning and it is not the same as ‘territoriality’ or ‘resource competition’. Propertarians are arguing that the specific legal institution we today call “property” has existed forever and is rooted in human nature or natural law or whatever fairy tale they come up with. That is historically wrong.

If you really don’t understand what this is about, as an illustration, consider that the natives of North America had no concept of land ownership and simply did not comprehend that legal construct when Europeans soon after their arrival claimed that certain pieces of paper gave them something called legal property rights over land and resources that the natives had used and controlled (without thinking in terms of property ownership) for centuries. Consider also that while said natives did have concepts of territoriality and did carry out violent inter-group conflicts based on resource competition, they were remarkably tolerant – too tolerant for their own good, to be sure – toward European settlers. The propertarian myth doesn’t hold water.

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chris 01.28.11 at 10:23 pm

The distinction between property from which every person but one is excluded, and property from which every person not a member of a small group is excluded, is not particularly meaningful to the everyperson excluded.

First: if the group is the majority (or entirety) of the human population of the area, can you still call it a “small” group? Even if, by modern standards of population size, it is small, that seems to be to be at a minimum seriously deceptive.

At any rate, alienability is fairly central to the concept of property as it exists today, and it’s clear that no member of the tribe can sell the land; it’s not even clear whether the tribe had a concept of the whole tribe selling the land. So I don’t think that tribal territory can really qualify as “property”.

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roac 01.28.11 at 10:42 pm

Cut me some slack here. There is evidently a long-running economic-slash-philosophical debate, of which I do not know the history or the premises. I didn’t read the book about the proprietarian myth, nor did I see the movie. But I claim the non-specialist’s privilege of yapping when an expert says something that seems to me to contradict mere common sense.

I am well aware that the concept that a hunk of land belongs to one person and all others are excluded is not universal. In the rural Italy, as recently as WWII, family A might have the right to cut wood and make charcoal on a particular mountainside, while Family B got to forage its pigs there, and family C got to pick the mushrooms. All of this was a matter of custom and community memory, not of written documents. But if a stranger came in and started cutting down trees, it would quickly be brought home to him that he was infringing on the rights of family A. I don’t know what you would call that if not a system of property rights.

I also don’t see how a system like that survives where there are crops. No one is going to plant a field with wheat except on in the confident expectation that nobody else is allowed to, say, bring in his herd of cattle and turn them loose in the ripening crop. There are two ways of achieving that level of confidence: You can provide yourself with better weaponry with the other person, or you can set up a central authority that will recognize your investment in the crop and protect it. Again, that sounds like a property right to me. (And the native cultures of the southeastern US practiced intense agriculture — not the slash-and-burn kind, either. I don’t know, but I bet they recognized something we would call property. Though it may be that everything belonged to the big chief — they certainly had big chiefs.)

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piglet 01.28.11 at 11:15 pm

And the native cultures of the southeastern US practiced intense agriculture—not the slash-and-burn kind, either. I don’t know, but I bet they recognized something we would call property. Though it may be that everything belonged to the big chief—they certainly had big chiefs.

Neither. They did not have a concept of land property rights, and no it didn’t all belong to the chief. Land was managed communally. Also, while individual ownership of tangibles such as tools, weapons, furs was recognized, many groups had social mechanisms that required the chiefs to redistribute most of their accumulated wealth to the community. Some of these practices were specifically banned by colonial administrations.

I didn’t read the book about the proprietarian myth, nor did I see the movie.

Well at least be careful not to project our cultural biases about property on to other cultures and periods. I don’t have a particularly apt literature recommendation about this debate, maybe somebody else has?

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roac 01.29.11 at 12:00 am

I’m starting to get irritated now. What is the cultural bias you think I have?

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piglet 01.29.11 at 12:21 am

The assumption that property is a universal concept?

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shah8 01.29.11 at 12:25 am

roac, you’re confusing *rights* in general, with property rights. That set of italian natives aren’t having a discussion the way you think they are having. Rights to the resources =/ rights to land, and certainly not in the abstract monarchical hierarchy sense. Piglet mentioned US aboriginals for a danged reason, and you have very little basis to be irritated.

Now, piglet can be angry piglet, but usually, I don’t waste time being angry or dismissive. However, I was bored.

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shah8 01.29.11 at 12:30 am

Reading back, this is why I don’t *ever* talk to libertarians, or people clumsy enough to believe in that claptrap. More likely to have a good, fun argument with some committed Methodist about the catholic church than to have anything productive with people spouting libertarian themes. It’s all based on suckering dumbasses in buying “oops sorry hidden axioms” . I’m not a dumbass, but you just might be, and interaction is probably a waste of good firing neurons.

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roac 01.29.11 at 1:14 am

Jesus, now the namecalling stars in earnest. before I was just culturally biased, now I’m a dumbass. Do you people think you are talking to a fucking libertarian? What on earth have I said to make you think that?

All I am saying is that I can’t imagine a human society in which every physical object or piece of land is open to use at any time by any person who comes along. (If you have a convincing counterexample, trot it out, I am ready to be convinced I’m mistaken.) If the society recognizes that one person or group of persons can use the object to the exclusion of someone else, then, to my thinking, that is a property right, broadly speaking. I didn’t know that use of the term in certain circles is equivalent to saying Fuck at a Mormon ladies’ sewing circle. I’ll be careful not to use it in the future.

I am aware that some people think that there is something called a P*R*O*P*E*R*T*Y R*I*G*H*T which Proceedeth from the Father and the Son and justifies overthrow of any government that infringes on it. I do not think any such thing, and they don’t teach any such thing in law school either. Rights are a matter of social convention and subject to constant revision and adjustment for the good of society. (Our present system is, IMO, a pretty good one, but is increasingly under siege by the plutocratic interests and requires constant defense in the political and legal arenas.)

Incidentally, a quick Googling of “Mound Builder culture social organization” produces this:

Analysis of mortuary remains suggests Middle and Late Woodland communities were characterized by a system of social rank: Particular kin groups are believed to have had high social prestige, differential access to rare commodities, and control over positions of political leadership.

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shah8 01.29.11 at 1:54 am

/me puts head on knuckles…

yeah, guess today’s when I feel a twisted little bit of glee in arguing…

But you know, I’m not going to take the time and effort to “improve your imagination”. Be offended! Stamp your feet in a righteous fury at unacknowledged entitlement!

Nobody’s going to do the Anthropology 101 or Capitalism 101 in dulcet tones for you. Just bait the troll (god help you if you’re actually stupid and not playing the bad faith game).

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piglet 01.29.11 at 5:10 am

“Jesus, now the namecalling stars in earnest. before I was just culturally biased, now I’m a dumbass.”

To tone this down a little bit, “culturally biased” is actually not name-calling. It is quite normal to have cultural biases and it requires quite a bit of effort to overcome them (to the extent that that is even possible). Having said that, if you are really interested in the questions and issues you raise, you should probably do some reading of your own.

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Henri Vieuxtemps 01.29.11 at 10:15 am

Perhaps a more complete quote from Discourse on Inequality might help here:

THE first man who, having enclosed a piece of ground, bethought himself of saying This is mine, and found people simple enough to believe him, was the real founder of civil society. From how many crimes, wars and murders, from how many horrors and misfortunes might not any one have saved mankind, by pulling up the stakes, or filling up the ditch, and crying to his fellows, “Beware of listening to this impostor; you are undone if you once forget that the fruits of the earth belong to us all, and the earth itself to nobody.” But there is great probability that things had then already come to such a pitch, that they could no longer continue as they were; for the idea of property depends on many prior ideas, which could only be acquired successively, and cannot have been formed all at once in the human mind. Mankind must have made very considerable progress, and acquired considerable knowledge and industry which they must also have transmitted and increased from age to age, before they arrived at this last point of the state of nature.

Yeah, at a certain stage of evolution, property is a universal concept. At other stages it’s not.

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Chris 01.29.11 at 7:43 pm

No one is going to plant a field with wheat except on in the confident expectation that nobody else is allowed to, say, bring in his herd of cattle and turn them loose in the ripening crop. There are two ways of achieving that level of confidence: You can provide yourself with better weaponry with the other person, or you can set up a central authority that will recognize your investment in the crop and protect it.

You left out… cooperation! If everyone else in the tribe expects to *share* in your harvest when it comes, then they all have the same interest you do in not ruining it, and even in helping you improve it (at which point it is more accurate to describe it as “our” harvest). So you don’t have to coerce them to find another pasture, they’ll do it voluntarily.

The assumption that society is a war of all against all is precisely what leads to the assumption that you have to fight others to keep them out of “your” property in order to be able to use it for anything long-term. But it’s not a universal assumption.

The exclusiveness of property is not just about keeping someone else from taking food and throwing it in the mud — it’s also about keeping someone else from taking food and *eating it*, even when they are as hungry as you are or even hungrier. It’s the belief that the latter is sometimes morally right (or at least permissible) that distinguishes a property-using system of morality from a non-property-using system.

P.S. Of course the tribe has to prevent its own members from stupidly or spitefully damaging its interests, which may involve something that could be described as a central authority, in the event that social persuasion is inadequate. But it still wouldn’t be recognizing or enforcing anything that could reasonably be described as an individual property right.

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roac 01.31.11 at 5:24 pm

One more time and I will give this up.

I get it that everyone in the tribe expects to share in the harvest. Great. But unless the tribe is on a very, very isolated island, it is likely to be in contact with at least one other tribe, with which it does not expect to share. I think that if the other tribe shows up and starts harvesting and carrying away the grain without giving anything in return, the tribe that planted it is likely to assert a right to stop the other tribe from doing that. You can call it something other than a property right if you want.

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Cuchulain 02.01.11 at 6:26 am

I highly recommend Lewis Hyde’s Common as Air. He’s brilliant on the subject of the Commons, intellectual property, patents and copyright. He focuses on 18th century America views, but brings this all up to date as well. I learned a great deal about the history of patents and copyright from his book, and the changes in recent decades. It was not that long ago that scientists felt they could not patent “discoveries.” If they uncovered a fact of nature, a physical law, they believed this was something that should go into the public domain as a part of our cultural inheritance. It was considered wrong to monopolize and privatize these things. Today, however, private companies try to patent discoveries of natural facts all the time, which reduces the “freedom” and “liberty” of further widespread research and development, as one company can ration knowledge on this or that particular thing. Hyde talks about the Human Genome Project, and the clash between public sector scientists and private venture capitalists who have patented discoveries of nature, often by basically stealing public sector research. They can then call the shots on a whole range of further study, and raise the price of the deal in the bargain.

Hyde also discusses Bob Dylan’s musical influences, and shows how eclectic he was in “sampling” old folk songs, blues, etc. etc. when he first started out. With the changes in copyright laws, Dylan may not have been able to be Dylan had he come on the scene in the 90s, rather than the 60s.

A fascinating, well-researched and well-written book.

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piglet 02.02.11 at 4:58 pm

Incidentally, George Monbiot just had an interesting article on ownership:
http://www.monbiot.com/archives/2011/01/31/forest-chumps/

The one good thing about this rotten government is that it recognises – in theory, though apparently not in practice – that there are more than two options for the ownership of common resources. Previous governments – both Conservative and Labour – have presented our choices in crude terms: an asset of benefit to the public can either be owned by the state or sold to businesses and private citizens. …

State and corporate power have more in common than their partisans suggest. In both cases a small elite uses our common treasury to further its own interests. Sometimes these interests coincide with the interests of the public, sometimes they don’t. There’s a role for state power and there’s a role for private enterprise, but there are dozens of models of ownership in between, which are neglected by both governments and their critics.

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piglet 02.02.11 at 4:59 pm

This false choice makes even less sense when applied to the ownership of land. Absolute ownership by either the state or private interests is, in most parts of the world, a recent invention. Even after the Norman Conquest, when William I asserted a narrower concept of property than any previous English king had done, the common people retained rights over land which others owned. Their rights of usufruct, of grazing, pannage, estovers, turbary and piscary survived for many centuries before being terminated: first informally, later in wholesale acts of enclosure. Even today – as you can see from the pressure which forced the last government to recognise our rights to roam in the countryside, and the outcry with which its deregulation of the planning laws was met – we retain the sense that land is not like other property. Though it might be privately owned, the public retains an interest in it and certain rights over it.

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piglet 02.02.11 at 5:03 pm

Read the article. It’s depressing.

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