The Debate on Intellectual Property

Being a Kinsellian, I am against intellectual property, mainly due to its lack of scarcity. However, many libertarians are for intellectual property, including of course two of my own Austrian heroes, Herr Professor Von Mises and Uncle Murray himself (praised be their names – without of course acknowledging that Austrianism has become a religion, hell, no.) But the anti-anti-IP libertarian movement has moved on since Uncle Murray's day and I was recently challenged by a piece which I thought would be worth breaking down, in an attempt to defend my own Kinsella-ism. So here goes:

Intellectual property. It is often said that people only own, and possibly can only own, specific rights of use concerning the expression of an idea rather than the intellectual object itself.

We need a definition here of what 'an intellectual object' is, in some way that an ordinary person (i.e. me) can grasp, and a definition that is clearly different from 'a specific right of use concerning the expression of an idea'. If we assume something like 'the flint-rock-moss recipe knowledge required to spark a fire' as an example intellectual object, as opposed to 'you can only light a fire with that flint, rock, and moss you're holding there, if you give me a stone arrowhead', for the 'specific right of use of that intellectual object', then I can work to that assumption.

But one could equally well say the same of a physical object.

Well, a little presumptious here, I think. I own a small black polished rock which has been in the Maturin family for at least 1500 years, possibly longer, and in due course a descendant of mine will inherit this rock, which can be held in the palm of one hand. We believe that this rock is an unhatched egg of creation and that one day it will lay a golden goose which will give us many golden eggs and we keep this one small heavily-guarded rock well-protected, as a consequence. Some say it is a simple meteorite that Pontificex Maturinas saw landing one day on the beach at Neapolis and yes, perhaps, we are mistaken in our beliefs, and yes, perhaps one day some rogue Maturinista will sell this rock, or when humanity moves into the stars to escape the exploding sun a rather stupid Maturinista may lose the damn thing, but this one small rock is ours, we found it first, and if anyone dares try to take it from us, they will get what is coming to them.

Another story tells of the day Stig Maturoafroblog used this rock to help invent fire, and that this is related to its high iron content, but others saw him and used their own rocks to copy him. But we still have the original rock. And we're keeping it. The rest of humanity can keep fire. It's good for them to do so, and it's good for us too, in the long run as they won't try to kill us to steal our rock and they have become wealthier and given us many more trading partners as a result of their use of fire. We're glad Stig's idea of striking the rock to create ferric sparks benefitted so many others. Aren't we nice?

To the extent that there is the protected use and control of an intellectual object by someone there seems no valid reason to deny that this is owning that intellectual object (MEME).

Memes exist of their own accord and nobody owns them. Let's take the meme of 'God', a particularly virulent meme. Who owns that one? The Catholic Church? The Muslim Clerics in Tehran? Dr. Ian Paisley? Yes, they perhaps all claim ownership of this meme. But what has this 'ownership' resulted in? Death, warfare, and blood. It seems whenever anyone tries to claim ownership over something that is non-scarce, we almost always seem to end up with needless conflict – needless in the sense that if we all eschewed a right to own memes, many of the world's conflicts would disappate or even disappear entirely, particularly with these more aggressive memes such as God, money, language, and weapons of mass destruction, which God only gave to western countries to own and deploy, not anybody else.

Thus intellectual property (IP) is the ownership of memetic innovations. Patents and copyrights are the most notable forms of IP.

Well, of course, we Kinsellians would claim that IP is the CLAIM to the ownership of memetic innovations but not the actual ownership, because it is impossible to own memetic innovations (or ideas) because when a "unit of cultural information propagates from one mind to another", to claim ownership of this idea post-transfer, would be to claim that you own the inside of someone else's head. Even Queen Elizabeth I revealed that she had little wish to possess windows into the souls of other men; it would seem IP adherents do wish to possess these windows, and also wish to own small pieces of the souls of other men, i.e. the memes inside other people's heads.

Some memetic innovations may be independently discovered or created (most patented ideas: someone else would usually have come up with the idea eventually)

Or in many patent cases of course (e.g. Alexander Graham Bell), stolen the original patent, paid off the official at the patent office to say no more, and then gone on to make millions while denying both the original inventor and subsequent inventors the right to make a living from telephony, via the heavy-handed use of US state patent law. But I digress.

and some are not (most copyrighted works: no one would have written the same novels if Charles Dickens [1812-1870] had not done so).

As a further aside, Charles Dickens was perhaps the most talented of the agitators for socialism in the Victorian world, so one might say the world would have been much better off without him, in the long run, especially if he had been unable to finance his writing through copyright laws promulgated by the same state he was so eager to undermine with his anti-capitalist propaganda. Though personally, I have always enjoyed the Sidney Carton character in a Tale of Two Cities, and obviously I eschew the link between the state and capitalism which Dickens so clearly saw. And it's only because I was tortured with Dickens at school that I hate him so much. And yes, it WAS a state school, damn their socialist brain washing propagandist eyes.

This distinction matters because any IP that extends beyond likely independent discovery/creation is thereby likely to PROACTIVELY IMPOSE a negative EXTERNALITY. Conversely, that others are not worse off than if some IP had never been created, appears to indicate that IP does not proactively impose in any inherent way.

This would appear to mean that IP patents are indefensible under libertarianism, only copyrights. For if two of us are independently racing towards the invention of 'telephony', and that rascal Graham Bell beats me down to the patent office by one minute, then all of my own independent work is crushed out of existence by the patent law, then this is quite obviously wrong (especially if the rascal gets there three days after me, copies my ideas, has the patent official change the dates on my patent application, and then screws me legally into the ground for the next forty years – not that I'm bitter or anything.)

Or even worse, if P.J.McScruggins invents cold clean fusion nuclear power which gives all the power anyone needs for the price of one drop of water per person per year, for the rest of time, and Evil J. McNulty, coal king and owner of two thirds of the north american coal reserves buys the patent for this from McScruggins, and then prevents anyone using the technology so we have to keep buying his coal, then this is also equally obviously wrong, even from a simple utilitarian human welfarist point of view.

So now we're just down to copyrights, and things which can only originate in the head of one person, such as the music of Andrew Lloyd Webber and other talented copyright-loving geniuses who never copied all of their music from out-of-copyright classics, so let's move on.

If it were somehow naturally impossible to use an idea without its creator’s permission, then people would be unlikely to complain they were imposed on by this.

Well, if the world were made of cream cheese and sugar puffs, it would be equally nice, but personally, I actually would be likely to complain if I were unable to write my own name because the owner of 'the alphabet' meme wanted a scheckel for his permission to do so. Once again, conflict would be created. One even might say that one of the implicit forces behind the creation of states is the need to hide behind a strongman who can protect you from other strongmen threatening you because you refuse to pay various IP and other monopoly fees within their own particular territories. These assumptions by the anti-anti-IP argumentors, for example 'people would be unlikely to complain', are rather too throwaway to be acceptable.

Thus one defence of IP is that it is LIBERTARIAN to allow it (and unlibertarian to disallow it) up until any likely independent production would emerge, if it ever would.

But here's the rub. Who will define likelihood? How would we ever know that something else would never have emerged if the first thing hadn't? How would we know whether an independent production would have emerged if unstultified by rigourously enforced IP laws? We have all heard the anti-capitalist arguments about low-energy lightbulbs being held back by greedy patent-buying producers of high-energy light-bulbs (usually, of course, without any shred of evidence or any mention of the much higher initial costs of low-enery light-bulbs or their intrusive high-energy bluer light.)

How do we even know if Dickens would have refused to write without royalties? Much of his money came from public readings of his books, by the man himself. And much of the tedium in his life came from writing magazine pot-boilers he himself hated and many of which have, thankfully, never seen the light of modern day except in masochistic Dickensian appreciation societies. And someone still needs to publish high quality books, magazines, etc., and these publishers would still be willing to contract writers to fill their subscribable content vehicles, with what you might call 'private' royalties (if that's not too much of an oxymoron.)

Personally, and this is just an assumption, I think the removal of IP will actually give us a greater artistic framework as artists will make much more of their livings from personal appearances rather than needle time on radio stations, and so more of us will see our musical and acting heroes in the flesh on a more regular basis than the occasional £500 pounds a pop, by Barbara Streisand. They will, as it were, be obliged to sing for their suppers, rather than having them paid for via the state copyright office.

It will be shared with any who could demonstrate that they probably would have eventually become independent creators of it.

Yes, but once again, who decides? Who shall guard the guards? I know when someone tries to steal my rock that they're bad people, because to get into my nickel-carbide 8-foot thick underground vault, you've got to be trying real hard. But who is to know whether my mathematical derivatives product model really would have been possible without seeing the earlier one wot i wrote last week?

When all claims run out, it becomes COMMON PROPERTY.

Or as in China now, the seeming engine of the world and masker of US and Euro inflation policies, all IP property is common property the moment the original DVD software disk hits Shanghai.

Some kind of impartial decision (or arbitration) process, taking account of the competitive efforts of innovators to reveal the pace at which particular innovations proceed, would therefore be needed to determine the likely time limit in each case.

And how much time and effort will this waste, which could otherwise have been spent creating extra wealth?

It would also need to decide how far from an idea still counted as using that idea, or on some conception of fair usage (would discussing, parodying or satirising it count?) and how this affects an unauthorised gift, sale, rental or loan.

The graft, waste, and general corruption of this process is rather obvious to envisage from the ground up. The more one studies the patent system, the more corrupt it gets. The current IP arbitration process is a gigantic mess and a colossal waste of talent and resources, despite an onerous punishment system. Such a system under a much woollier libertarian system of independent judges and insurance companies would be even more horrendous. Let's just stop going down that road before we even begin.

Intellectual property is controversial among libertarians. Many (possibly most) are against it, including for some of the following significant (but not exhaustive or collectively consistent) reasons: 1) it is a STATE MONOPOLY and widely abused;

Let's just take that as a given.

2) it prevents people from doing what they like with their own physical property (PP);

With you so far, Pilgrim.

3) if you don’t want people to know about your ideas, then you can simply keep them secret (as happens with some ingredients for commercial food and drink products, for instance);

What's that fella's name in Atlas Shrugged? Rank Reardern, Hank Leonard, err… you know, the bloke with the coppery-steel type stuff. It would have been interesting to see Ayn Rand's view on all this, if another steel manufacturer had managed to independently create a similar metal, without seeing Rearden's secret process, but I digress…

4) ideas are not finite, as the physical world is, so IP does not help to deal with the problem of SCARCITY (as PP does) but actually creates an artificial scarcity;

Absolutely. It's all making sense so far.

5) a sufficient amount of innovation can be stimulated simply by the PROFITability of being the first to MARKET;

Well, I'm more in the 'Who knows?' school, myself. There might be more stimulation, there might be less. We will never know. But let's base how we live on what is voluntary, rather than what is based upon force, and take it from there. My hunch is that we will see a LOT MORE innovation, because people will know they will have a lot less legal hassle to have to wade through. But I could be massively wrong. I make no claims on knowing what the future will hold, though I'm prepared to guess.

Take, for instance, the international drugs market. This is now so hide-bound with IP regulation, as well as testing regulation, that it has ALMOST come to a complete halt. Nobody dares try anything due to fear of the legal recriminations and so humanity as a whole is suffering the long-term consequences. Remove all that IP nonsense (and the bureaucratically inspired health and safety nonsense), and progress will be much more rapid. It's actually very hard to mimic cleverly-created modern drugs without seeing the original recipes, and so it could even be the case that if you invent a drug and refuse to post a patented recipe, you might have an even longer profitable span with it than you do now, with BP drugs coming out a few years down the line based exactly upon your forcibly-published patent recipe.

But as I say, I have no idea whether there will be more or less innovation. I suspect there will be more, and it will be more widespread to other areas as the lure of patents could even be causing 'too much' research in one area and 'not enough' in others, though I'll refuse to use my state planning board of innovation regulators to define what either 'too much' or 'not enough' actually mean.

Anyone who claims they KNOW what will happen when IP laws are eventually revoked is a charlatan.

6) CONTRACTS with purchasers (not to copy, etc.) can produce sufficient protection to make innovation profitable;

This has long been the case in the music industry. People can borrow or download their favorite music from their friends or dodgy Spunkdonkey-style web sites, but they still buy the 'proper' CDs and DVDs from retail outlets because they usually entail a higher level of quality, they are 'sanctioned' by the creators of the product, and they usually come with lots of other well-produced merchandise (e.g. directors' commentaries, song lyrics, photos of the band, etc.)

Imagine for a moment a world without any form of disk pirating. What would the price of an 'official' CD or DVD be? Higher? Lower? No IP at all would mean even lower product prices and much greater competition, but there would still be, I reckon, a huge market for 'official' products, and commoditization for artists to help generate their incomes. Plus, I'm almost certain, a much greater concentration on 'live' music and 'live' acting, as musicians and actors are a scarce physical resource in and of themselves, and could charge appropriately for physical in-the-flesh appearances, just like The Police are about to do. But that's purely conjecture based on my preference for live art. I'd probably still buy the 'official' Ocean's 13 DVD, even without being able to meet George Clooney, rather than get the £3 quid one from the chinese lady down the pub.

7) Technological devices can legitimately help to prevent copying.

No problem there. It might be legal to copy DVDs and sell the copies. But if I'm clever and make my 'official' DVDs so that they're very difficult to copy, or run without special clever licences from my corporate web site, or an encrypted physical cards filled with magical mathematical cleverness, that's fair game even in a non-IP world. In the old non-DVD world it used to be done with such technological advances as solid fences and walls, to keep non-payers out of Shakespeare's Globe. I'm sure we'll be able to think of something in this more modern world.

Taking the particular theory explained above we might also add the following two points. 8) Suppose I start a business in a new area, or with a product not sold there before, or market it in a new way. It seems the innovator could claim a form of IP that interfered with normal, apparently libertarian and efficient, parts of market COMPETITION.

Not quite sure what's meant here without an example, but the whole problem with IP is that it stifles competition and because human welfare is enhanced through the maximisation of competition, IP is therefore a bad thing.

9) I paint my house blue and you want to copy me: can I forbid this or charge you? How could it be libertarian or efficient to have ownership of such trivial ideas?

There's this assumption thing going on again. Who defines the triviality of ideas? There was a courtcase recently where I think Barbour took a man to court because he was making dog-covers (I kid you not) in a tartan pattern reminiscent of one of Barbour's own 'brand' tartans. I seem to recall they won. It's not quite a 'blue' house case, but it's pretty close. In non-IP world of course, such claims will be treated with the disdain they deserve.

Libertarian IP might be defended from these criticisms as follows. 1) There is no necessity for the state to be the ORGANISATION that enforces IP. And the fact that state IP has often been abused does not reflect badly on private enforcement. IP is only a ‘monopoly’ in the same sense as owning any single physical thing (see 4)

Well, who's going to enforce libertarian IP laws then? Are people really going to pay for legal insurance from organisations who will, every now and again, break down their doors in search of IP-contraband? I think not. Only states can get away with such heavy-handed aggression.

So what about physical property theft? There are many differences between PP theft and IP theft. For instance: If someone successfully steals my stone:

a). I will know my stone has been stolen.

b). I can demonstrate to anyone interested the space in my vault where my stone used to be.

c). There may be a trail of evidence, starting from my property, which I can take to the adjudicator supplied to me by my insurance company.

d). If there is insufficient evidence to accuse anyone of the theft, that's the end of it. My insurance company will recompense me an agreed sum for the loss of my stone. If I'm not insured? Tough.

e). If the evidence is sufficient that 'Jake the Pirate' stole my stone, my insurance company can take my case to a private court and thereby gain a private warrant to allow the search of Jake the Pirate's property. If Jake or the property he is living upon is covered by an insurance agency also under the remit of the court, the search will take place.

f). If he isn't, my insurance company may try to force a search, though it may have to pay costs if we fail to prove to our court and Jake's court that we had sufficient evidence for the search for the stone. If Jake has no court, or insurance company protecting him, or we use more than the absolute minimum force to carry out a search, he may seek redress in another way, and he's welcome to try.

But here's the basic problem with IP and the crucial difference with 'physical' property theft. When I lose my stone, I KNOW I've lost my stone and I can demonstrate some form of DAMAGE against me (i.e. a space in the vault where the stone used to be, the valuation document from the insurance company, etc.)

Let's imagine a similar case with IP: From my property I broadcast my song, 'Stairway to Cellar'. Now, did anyone out there listening to this tape this song, against 'the law?' Who knows!

a). I do not know if anyone has stolen anything from me.

b). I can demonstrate no damages to myself (I still have the original DVD of 'Stairway to Cellar' in my possession.)

c). There is no evidence trail indicating that anyone 'stole' my property – there may be such evidence within the private property borders of other people, but there is nothing originating from my property.

d)., e). and f). There is insufficient evidence of anything to accuse anyone with. That's the end of it. If I try to claim against my insurance company that someone 'might' have taped my song without my permission, they will simply laugh.

If I'm paranoid enough and I'm powerful enough to extract favours from a corrupt state elite, under eminent state domain I can force my investigators onto the properties of other people to check if there 'might' have been IP theft, and I may even find IP theft. But is this a price worth paying? I think not.

What about another case. Let's say Jake the Pirate starts broadcasting a song which sounds remarkably like me singing 'Stairway to Cellar'? What about that?

a). He could have made up the tune himself.

b). If he did, I can demonstrate no damage against myself.

c). There may be no evidence he taped my song.

d). There is insufficient evidence that I am in any way out-of-pocket, because of this

Yes, I can conjecture that he did in fact tape 'my' tune, copy it, broadcast it, and made money from doing so, and with powerful enough lawyers and friends in high places, make Jake pay me for doing so. But all of this requires eminent domain and a powerful state with the ability to invade the property of others, at will, without any reasonable grounds of suspicion that anybody is up to anything other than living their lives.

2) You cannot do what you like with your own property when it interferes with the property of others. It merely denies the thesis without an argument to assert that you are doing nothing to anyone else’s property by copying someone’s book (using his ideas) and selling your own physical versions. If IP is libertarian, then you are using his intellectual property as though it were your own.

But the ideas are your own. They are in your head. Your head belongs to you. Therefore anything in your head also belongs to you, as being part of your nature. I have invaded nowhere if you broadcast your idea to me or sell me a book with your idea in it, to me. Once you do that, the idea within the broadcast or within the book now belongs to me, if I take it into my mind; that is why I bought it from you in the first place, or why you chose to broadcast it to me over the airwaves, to hopefully induce me with that idea for your own ends. In fact, for doing so without my permission, and invading my private living space with your radio waves I ought to sue you for tissue damage (if I can demonstrate it), induced by this unasked-for electromagnetic radiation! IP is not libertarian; you are using your own intellectual capabilities to use the memetic ideas within your own mind to achieve your own ends. Where those ideas came from is irrelevant, and as irrelevant as where the ideas for fire, the wheel, the alphabet, and money came from. All are extremely useful and all are ideas which are owned by nobody and which never were owned by anybody.

Add to this the generally held notion that all new ideas are simply combinations of two or more old ideas in the first place, and if you want to push IP to its natural limit, you could imagine that anyone who does claim to own an idea is thereby branding themselves a thief of two older ideas. And how preposterous is that?

3) Keeping ideas secret often means not using them. In such cases, advising secrecy is analogous with saying, ‘if you don’t want people to steal from your stall, then don’t take your produce to market.’

Well, Coca Cola have managed for nearly a century now, and many food manufacturers have done likewise. The problem for drugs companies of course is that they MUST publish their recipes and formulae, which knackers them on this front.

Even now, the algorithm which drives Google is a secret (though almost out in the open), but even if it came out Google is still going to be worth billions because it is chock full of innovators, likewise the entire software open source movement.

4) Each idea is a single thing in the memetic realm (what Karl Popper [1902-1994] calls World Three), and thus is scarce.

Isn't this rather bolting the stable door after the nag has done a runner? Surely if libertarians expect to be taken seriously in the real world we have to stop creating definitions which suit our arguments and start using arguments which ordinary people can relate to?

IP could be construed as just another way in which the state rewards intellectuals for their work in propping up the state. That idea stands up in my mind a lot more strongly than coming up with post-hoc definitions which magically align themselves with Kinsella's ideas on scarcity.

Instantiations or uses of the idea in other minds (World Two) or the physical world (World One) are not the idea itself. If you can use my idea as you wish when I would rather own it, then I am as proactively imposed on as if you used my PP against my wishes. I might not know that you have used my IP or suffer any financial loss. But that is also true of any PP of mine.

If I manage to 'steal' some of your physical property such that 1). You don't notice it going, and 2). You suffer no loss from my taking it, 3). I don't trespass upon your other property to take it, then that strays pretty close to you having abandoned that property – and even John Locke would agree that abandoned property is unowned and therefore open to anyone who can 'take occupation of it'. And if it's not abandoned, then even in this unusual case all that makes me is a clever criminal thief, and you ought to take better care of your possessions. I'll certainly know if you take my stone. And if my dogs are as well trained as I think they are, you'll probably lose your legs in the process. What I will never know, without proactively invading your private property, is if you taped 'Stairway to Cellar'.

In both cases there is an objective TRESPASS involving another’s particular resource. It might still be objected that I am free to use the idea as much as I like, and so I am not constrained in any way. But I am not free to use the idea in the sense of deciding what is done with it.

If I take your idea, add a bit of my own stuff, and come up with an even better idea which massively helps benefit the welfare of the rest of humanity (e.g. invent cold nuclear fusion by combing a teacup with a clever maths equation), then I would like to think I would be free to do so, without someone else's permission.

Admittedly, there is no scarcity with the use of good ideas unless we allow restrictions by using such things as secrecy, purchaser contracts, technological devices, or IP.

Obviously, I'm with all of those except that pesky last one.

But there is a scarcity of good ideas themselves.

Has this scarcity of the initial creation of good ideas been created by state-enforced IP? I ask merely for information. Round my way, BTW, there's no shortage of good ideas. Just a shortage of people brave enough to try them or use their own money to back them. But that's another story.

And all the restrictions tackle that scarcity, without worsening anyone’s
situation, by rewarding the creation of good ideas.

Once again, how do we KNOW that people will be worse off? Currently, the state rewards intellectuals in many different ways (e.g. jobs at universities, jobs at the BBC, IP rights, etc), funded through binary transfers of wealth. In the case of IP, if I use Velcro, for instance, some part of the payment for that goes to the inventor of Velcro, enforced by state patent offices.

Would Velcro not have been invented if this had not been the case? Who knows, but I reckon the inventor would have invented it anyway, when teasing those thistles from that dog's hair, but just would have made their money differently. The IP model was there, so they took that route. Without the IP model, who knows what would have happened? But to assume that the individual inventor's life would have necessarily been worse is just yet another assumption we have to challenge.

Yes, the life of artists and inventors will probably change. There is no denying that. But it may change for the better as well as for the worse. And even if it were to change for the worse, for this current 'betterment' to be based upon the coercive power of the state to force binary payments from people, is, IMHO, intolerable.

Also, this 'creation of ideas' is scarce argument falls apart in another way. There are a few, rather rare, people who are capable of generating these scarce ideas (e.g. Professor Stephen Hawking). These people can use their scarcity to great personal benefit. Institutions also compete for these people with salaries and conditions, and research budgets. It is people that matter. Not ephemerous whimsies floating on zephyrs. And once ideas are out there, they stop being scarce, usually. However, sometimes they are so difficult, as with mathematical finance, that only very few can understand them (e.g. Ito's Lemma). The people who can understand them, such as City quants, can leverage this understanding-of-ideas scarcity to their personal advantage. I have no problem there. But nobody pays for the idea of Ito's Lemma. They simply honour Ito by naming a Lemma after him. Whatever the heck that is! :-)

5) Physical property internalises externalities…

Oh. My. God. 'Internalises externalities'? Pick that one out. As John Motson might have put it.

…and strongly tends thereby to be optimally ECONOMIC and libertarian. The same seems true of IP.

Prove it.

To expect an inventor of IP to have sufficient incentive merely by being first to market is significantly like expecting the creator of a physical product to sell what he can before people discover where his factory or farm is and can then simply take what they want from it without his consent. And even where it is still profitable, it will often be insufficiently profitable to stimulate the economic amount of production.

Well, it seems to keep the multi-billion dollar fashion industry going, and the mega-billion automotive industry, and the mega-trillion airline industry, and the multi-million movie industry going, and….

6) If every relevant product is sold subject to the contract that no user can copy it without permission then that stops copying (using the ideas) by all customers. But what if a non-customer can see, or find out, how something works or what it looks like? We can have no such contract with the observer. With many innovations this might undermine all or most of the economic incentive to produce it.

Well, it doesn't seem to have stopped Microsoft selling software in China, or indeed most of the non-western world which fails to observe western IP laws.

And, as before, even where it is still profitable it might not be optimally economic.

So a libertarian postulant believes that a coercive system of IP is better than a voluntary system of physical goods exchange? Hmmm. Interesting.

To expect the creator of an idea to protect his idea by contract is like expecting the homesteader of some land to protect his land by contract.

Yes, some landowners do possess guns to defend their territory, but most do rely upon deeds and courts to defend their territory. And just because something is difficult (i.e. protecting your ideas through legal documents and technological cleverness) does not then automatically justify the instigation of coercive state-policed IP laws. And does anyone seriously believe that people buying CDs don't copy them for their friends, now, even with onerous IP laws in place, or that people don't buy cut-price DVDs from street markets? Even with draconian IP laws very few actually live a life without breaking them, which has brought these laws into disrepute in the first place.

And which serious author copies the work of others anyway, and has it published in other books? To be found plagiarising is to suffer the ridicule it deserves. And even with someone like J.K.Rowling, who has 'borrowed' many ideas from many other people (Tolkien and Pratchett, to name the two most influential), who is to say she is still not a genius for what she has created? In my mind she is a genius. To a really good IP lawyer who was unfazed by the money she threw at her own protracted IP legal case, she is an alleged IP copyright criminal. And what if she had lost her court case? Would her works then have been legitimately burnt in the street for being the work of an IP thief?

Speaking of publishing, the Mises Institute publishes entire books freely on the Interweb and still their hard-copy sales rise month-on-month. Do you think they are frightened by the loss of state IP laws?

7) Technological devices that restrict using other’s ideas add expense.

Tough. The price for saving this cost is state intrusion into private property and eminent domain. I'd rather pay a little bit extra for clever technological devices, as I would pay a little extra for proper gold money rather than government fiat paper rubbish. Also, if there were no IP laws, there would be a much greater market for such technological devices, and therefore the cost would come down. Plus, most providers of IP material already protect their products with such technology anyway, especially if shipping it outside of the western world. So this cost argument is either negligible or spurious or both.

If they could somehow be made perfect for all products, then we would simply be back to a situation analogous with the natural impossibility of using other’s ideas—but with all the added expense.

That would be cloud-cuckoo land then. Laws should be universal. When in the future many of us may be calling our spaceships home, and may merely flit from planet to planet for trade and exchange purposes, the laws of physical property will still hold – IP laws, if they still exist then, will be a joke – well, they are now; yes, a rather sick joke if you go to jail for having an 'illegal' James Bond DVD in your possession when the state police break into your house to seize it, but a joke nevertheless.

If such anti-copying devices are in principle fine without limit, then why not simply allow the much cheaper option of having IP in the first place?

Why do we need gold when paper fiat rubbish will do? The cost of freedom from state intrusion into private property is worth it, IMHO. And in principle IP is wrong. Sacrificing this principle for an expedient which doesn't work and which throws enormous powers into the hands of the police state is simply untenable.

8) It is not clear that starting a new market practice should not be protected in this way if protection is claimed (subject to likely independent invention).

It is clear. It should not be protected. End of story. (Epilog: Protected from whom? By whom? This protection paid for by whom? On whose behalf? How do they collect the protection charges?)

Counter-intuitive though this may be, this would appear to internalise externalities and thus tend to be libertarian and efficient.

I have no real idea what this sentence means. If it means it would be cheaper to have IP laws than to not have them, then see the argument above. If it means something else, please send me a wet flannel and the keys to a dark room to lie down in. If I see the phrase 'internalise externalities' in that room, I shall have to commit some form of ritual suicide.

9) Any IP ownership needs to be claimed (and it cannot clash with any existing contracts, such as what and how house colours are allowed on, say, some privately run estate). It is not likely that many people would want to claim what is trivial.

Don't bet on it. If there's money in it, or they can 'get' one of their personal enemies, there's nothing some unethical people won't do to use legal processes to harm others, especially corrupt legal processes.

But such things are, after all, only trivial. In any case, we still have the limit of likely independent invention.

Again, we're stuck with that word, 'likely'. Who decides what is 'likely'? What gives them the right to decide what is or isn't 'likely'? All IP rights do is open up endless can of worms after endless can of worms. How long do IP rights last? Are IP rights transferrable? Why is it 50 years after the death of an author, for a book, and just 5 years for the sale of a drug? Where did these numbers come from? Were they handed down from God? Should IP laws be made international? By whom? Who will enforce international IP laws? Who pays for this enforcement?...

In short, IP is an extension of property into the memetic realm for relevantly and sufficiently similar economic reasons (rather than perfect analogies) as to why it is libertarian and economic in the physical realm. It must have appeared strange when people first attempted to fence off land and claim exclusive rights of use. They had not, after all, even created the land.

Physical property is inherent in the nature of being a human being. Even a small child knows what 'their' toy is and what 'their' coat is, and whether somebody has taken 'their' ice-cream. Similarly, at bars we all know when someone 'owns' a table, or a chair, or on beaches we know who 'owns' which part of the beach, or a poolside chair – usually involving some kind of towel marker. We do not need state laws for these things, we just know as human beings what is ours, and what is other people's, even if we are thieves.

IP itself is a memetic 'invention', which only arose in recent times, probably related to the sales of monopolies by Kings for revenue, to the detriment of the general population. IP laws will almost certainly disappear relatively soon, at least I hope so. Even now, screeched around with shocking cinema adverts threatening most of the audience, IP laws are becoming a joke which nobody takes seriously. (Show me a man who hasn't taped a CD or lent a DVD to a friend and I'll show you either a liar or someone without a CD or DVD player.)

But those who claim IP did at least create it (albeit in the framework of a
pre-existing culture). To reject IP is to call for universal intellectual common
property.

No, it is deny that ideas can be owned or can be property. They are non-scarce resources which may arise in one mind, but once they have been understood by another mind and have taken up residence there, the cat is quite literally out of the bag. To say that ideas can be owned is to say that one person can own the thoughts in another's mind. A religious or political zealot might claim this. But as a libertarian I hang onto the rather quaint idea that I own my own mind, thanks very much.

It is proactively imposed COMMUNISM in the realm of ideas.

Oh dear. The use of a BAD word to win an argument? How about this: Professor Hoppe claims that there are three ways we, as humanity, could organise ourselves. The first is where we own ourselves; the second is where some people own other people; or one in which everybody owns part of everybody else. The first could be called a society of freemen – a future libertarian society; the second a society of freemen and slaves – for example, ancient Rome; the third, a society of slaves – for example, any democratic or fully socialist state. As IP advocates would like to live in society where some men can own part of the minds of other men, they are obviously believers in a society of freemen (those who own the ideas) and a society of slaves (everyone else). Personally, I prefer society 1).

Admittedly, however, this could not be anywhere near as disastrous as physical communism.

Well, no, but neither would it be a society of free people as covered above.

Of course this libertarian defence of IP could well be mistaken, but it appears to give cogent answers to the current criticisms of IP. It ought, at least, to clarify and develop the debate to refute it.

For anyone unfamiliar with the anti-IP libertarian meme paradigm, go to: http://www.stephankinsella.com/ip/

From A Dictionary of Anti-Politics

How nice. Pip pip!!