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WikiTiger
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Stephan Kinsella: Logic of Libertarianism and Why IP Doesn't Exist


Stephan Kinsella on the Logic of Libertarianism and Why Intellectual Property Doesn't Exist


Figured you guys might be interested in reading about what an LSU guy has to say about this topic.

quote:

Daily Bell: Tell us about your legal theory of property and how you came to believe that intellectual property doesn't exist.

Stephan Kinsella: My main interest has always been and remains the basics of libertarian ethics: What are individual rights and property, how is this justified and so on. As I discuss in Intellectual Property and Libertarianism, from the beginning of my exposure to libertarian ideas, the intellectual property (IP) issue nagged at me. I was never satisfied with Ayn Rand's justification for it, for example. Her argument is a bizarre mixture of utilitarianism with overwrought deification of "the creator" — not the Creator up there, but Man, The Creator, who has a property right in what He Creates. Her proof that patents and copyrights are property rights is lacking. (See my speech The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism, Austrian Scholars Conference 2008; and my blog posts Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors; Regret: The Glory of State Law; and Inventors are Like Unto.... GODS......)

So I kept trying to find a better justification for IP and this search continued after I started practicing patent law, in 1993 or so.

Many libertarians abandon minarchy in favor of anarchy when they realize that even a minarchist government is unlibertarian. That was my experience. And it was like this for me also with IP. I came to see that the reason I had been unable to find a way to justify IP was because it is, in fact, unlibertarian. I was heavily influenced by previous thinkers, as discussed in The Origins of Libertarian IP Abolitionism and The Four Historical Phases of IP Abolitionism. Perhaps the unlibertarian character of patent and copyright would have been obvious if Congress had not enacted patent and copyright statutes long ago, making them part and parcel of America's "free-market" legal system — and if early libertarians like Rand had not so vigorously championed such rights.

But libertarianism's initial presumption should have been that IP is invalid, not the other way around. After all, we libertarians already realize that "intellectual" rights, such as the right to a reputation protected by defamation law, are illegitimate. (See Murray N. Rothbard, Knowledge, True and False.)

Why, then, would we presume that other laws, protecting intangible, intellectual rights, are valid—especially artificial rights that are solely the product of legislation, i.e., decrees of the fake-law-generating wing of a criminal state? (For a criticism of legislation as a means of making law, see Legislation and Law in a Free Society and Another Problem with Legislation: James Carter v. the Field Codes.)

But IP is widely seen as basically legitimate. There have always been criticisms of existing IP laws and policies and many calls for "reform." But I became opposed not just to "ridiculous" patents and "outrageous" IP lawsuits, but to patent and copyright per se. Patent and copyright law should be abolished, not reformed. The basic reason is that patent and copyright are explicitly anti-competitive grants by the state of monopoly privilege, rooted in mercantilism, protectionism and thought control. To grant someone a patent or copyright is to grant them a right to control others' property - a "negative servitude" granted by state fiat instead of contractually negotiated. This is a form of theft, trespass, or wealth redistribution.

So to answer your question: IP rights - patent and copyright - "exist," but are not legitimate any more than welfare rights are. There are many types of IP; all are illegitimate, in my view. Not only because most of them are based on and require legislation (I view all legislation as unlibertarian; see Legislation and Law in a Free Society) but because they try to set up rights in non-scarce things, which in effect grants negative servitudes to some people at the expense of the property rights of others.



a lot more discussion of IP at the link, among other topics...







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Doc Fenton
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re: Stephan Kinsella: Logic of Libertarianism and Why IP Doesn't Exist


quote:

I came to see that the reason I had been unable to find a way to justify IP was because it is, in fact, unlibertarian.


This is undoubtedly true. To the extent that IP exists as a practical measure, it is a necessary evil that we put up with for the sake of giving incentives to innovators.

IP law is behind the times these days, which makes sense given all the upheaval in the fields of computer software, Big Pharma research, and Internet sharing. Still, I wouldn't want to junk it altogether. I'd rather just curtail the property rights of IP owners (especially when it comes to patent & copyright longevity), rather than just qualitatively changing the system altogether.

Then there's the global angle with all the knock-off crap in the BRIC countries, but hopefully that will get better over time.






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secfan123
beverly hills
Member since Jan 2010
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re: Stephan Kinsella: Logic of Libertarianism and Why IP Doesn't Exist


it still seems as if he is ignoring lockes theory of property, upon which we base a great many ideas and attitudes about property.





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Doc Fenton
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re: Stephan Kinsella: Logic of Libertarianism and Why IP Doesn't Exist


Really? Locke was just a 17th century philosopher. Our tradition of property rights (at least to the extent that it is unique from other traditions) is derived from the English legal tradition going back to time immemorial, picking up steam with great jurists such as Blackstone, Coke, etc.

From what I gather on Wikipedia ( LINK), Locke's theory of property has a decidedly Marxist flavor to it...

quote:

He argues that property is a natural right and it is derived from labour.

In Chapter V of his Second Treatise, Locke argues that the individual ownership of goods and property is justified by the labour exerted to produce those goods or utilise property to produce goods beneficial to human society.[20]

Locke stated his belief, in his Second Treatise, that nature on its own provides little of value to society; he provides the implication that the labour expended in the creation of goods gives them their value. This is used as supporting evidence for the interpretation of Locke's labour theory of property as a labour theory of value, in his implication that goods produced by nature are of little value, unless combined with labour in their production and that labour is what gives goods their value.[20]

Locke believed that ownership of property is created by the application of labour. In addition, he believed property precedes government and government cannot "dispose of the estates of the subjects arbitrarily." Karl Marx later critiqued Locke's theory of property in his own social theory.


:heli:


I don't want any part of that shit!






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secfan123
beverly hills
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re: Stephan Kinsella: Logic of Libertarianism and Why IP Doesn't Exist


actually marx heavily criticized locke's theory of property. try again.





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Rex
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re: Stephan Kinsella: Logic of Libertarianism and Why IP Doesn't Exist


quote:

Patent and copyright law should be abolished, not reformed. The basic reason is that patent and copyright are explicitly anti-competitive grants by the state of monopoly privilege, rooted in mercantilism, protectionism and thought control.

His "basic reason" doesn't appear to be based on anything more than a personal preference. Most people prefer the mercantile and protectionist aspects of patent and copyright law, so he's outnumbered. His claim of "thought control" is overdramatic nonsense.
quote:

To grant someone a patent or copyright is to grant them a right to control others' property - a "negative servitude" granted by state fiat instead of contractually negotiated.

The purchaser has implicitly contracted his agreement with the purchase. Furthermore, it would be impossibly burdensome for an inventor of a mass appeal product to individually negotiate every transaction, thus removing any incentive to develop it in the first place.
quote:

This is a form of theft, trespass, or wealth redistribution.

A ridiculous non sequitur.






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ForeLSU
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re: Stephan Kinsella: Logic of Libertarianism and Why IP Doesn't Exist


quote:

Rex


great response...








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Rex
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re: Stephan Kinsella: Logic of Libertarianism and Why IP Doesn't Exist


quote:

I came to see that the reason I had been unable to find a way to justify IP was because it is, in fact, unlibertarian.

So, the author prefers chaos for the sake of sticking to a label.

The guy badly needs a talk with the ghost of Thomas Edison, who famously remarked that invention is ninety percent perspiration. Under the author's anarchist system hardly anybody would bother to perspire if there weren't some personal economic reward. No thanks, Mr. Kinsella... I'm extremely grateful for the unlibertarianism of inventors and the capitalist support system that have progressed us out of the cave.








This post was edited on 3/18 at 9:06 pm


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Doc Fenton
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re: Stephan Kinsella: Logic of Libertarianism and Why IP Doesn't Exist


Labor theory of value is labor theory of value anyway you slice it. It's still garbage.





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Rex
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re: Stephan Kinsella: Logic of Libertarianism and Why IP Doesn't Exist


Mr. Kinsella's downfall, which he apparently doesn't realize, is that the ability to contract, itself, is a product of legislation. I wonder if he feels entitled to his own paycheck, which the state legislature granted in exchange for his intellectual ideas? Sure, he's legally entitled to it... but where is his moral right to be selling his ideas?







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Doc Fenton
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re: Stephan Kinsella: Logic of Libertarianism and Why IP Doesn't Exist


Silly anarchists...





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secfan123
beverly hills
Member since Jan 2010
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re: Stephan Kinsella: Logic of Libertarianism and Why IP Doesn't Exist


quote:

Labor theory of value is labor theory of value anyway you slice it. It's still garbage.


part of determining ownership of new lands was how much labor and improvement one put into the land






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Doc Fenton
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re: Stephan Kinsella: Logic of Libertarianism and Why IP Doesn't Exist


Thus demonstrating a claimant's verifiable presence and commitment to using that land--land which has a tremendous amount of value in and of itself. It's an application of the Coase theorem, showing that the clarification of private property rights is often more important than what particular set of rules are used to arrive at that clarification.

Thus, one need not ascribe to the bogus labor theory of value to see the practicality of laws clarifying titles to real estate, just as one need not have a positive view of squatters to favor various forms of adverse possession laws. If anything, such laws just go to show how valuable land is, even without human labor, and how important it is to make sure that somebody is deriving the benefits from it.






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joshnorris14
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re: Stephan Kinsella: Logic of Libertarianism and Why IP Doesn't Exist


quote:

Mr. Kinsella's downfall, which he apparently doesn't realize, is that the ability to contract, itself, is a product of legislation




Wait I have to catch my breath.

:lol: :lol:






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secfan123
beverly hills
Member since Jan 2010
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re: Stephan Kinsella: Logic of Libertarianism and Why IP Doesn't Exist


re: Stephan Kinsella: Logic of Libertarianism and Why IP Doesn't Exist (Posted on 3/18/12 at 9:35 p.m. to secfan123)

quote:

--------------------------------------------------------------------------------
Thus demonstrating a claimant's verifiable presence and commitment to using that land--land which has a tremendous amount of value in and of itself. It's an application of the Coase theorem, showing that the clarification of private property rights is often more important than what particular set of rules are used to arrive at that clarification.

Thus, one need not ascribe to the bogus labor theory of value to see the practicality of laws clarifying titles to real estate, just as one need not have a positive view of squatters to favor various forms of adverse possession laws. If anything, such laws just go to show how valuable land is, even without human labor, and how important it is to make sure that somebody is deriving the benefits from it.



this has nothing to do with the price of tea in china. Land wasnt the end all be all of the example, merely one. Nor is labor the only thing used to determine value, but it is part of it.






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joshnorris14
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re: Stephan Kinsella: Logic of Libertarianism and Why IP Doesn't Exist


quote:

Nor is labor the only thing used to determine value, but it is part of it.


Labor is a part of price, not value. Value is only derived from subjective preferences.






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secfan123
beverly hills
Member since Jan 2010
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re: Stephan Kinsella: Logic of Libertarianism and Why IP Doesn't Exist


quote:

Labor is a part of price, not value. Value is only derived from subjective preferences.


price is a reflection of value.






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joshnorris14
Florida Fan
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re: Stephan Kinsella: Logic of Libertarianism and Why IP Doesn't Exist


quote:

price is a reflection of value.


Price is a reflection of supply and demand. Value plays into demand, labor plays into supply.






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secfan123
beverly hills
Member since Jan 2010
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re: Stephan Kinsella: Logic of Libertarianism and Why IP Doesn't Exist


quote:

Value plays into demand, labor plays into supply.


then by your definition rarity has no effect on value? The art world would differ in its opinion.






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Gmorgan4982
LSU Fan
Member since May 2005
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re: Stephan Kinsella: Logic of Libertarianism and Why IP Doesn't Exist


quote:

overwrought deification of "the creator"
Bingo. To hear people on here argue, if you make something, you're owed the world and then some.
quote:

Perhaps the unlibertarian character of patent and copyright would have been obvious if Congress had not enacted patent and copyright statutes long ago, making them part and parcel of America's "free-market" legal system
Yep. When you cut through the BS, it's just more government regulation.
quote:

Patent and copyright law should be abolished, not reformed. The basic reason is that patent and copyright are explicitly anti-competitive grants by the state of monopoly privilege, rooted in mercantilism, protectionism and thought control. To grant someone a patent or copyright is to grant them a right to control others' property - a "negative servitude" granted by state fiat instead of contractually negotiated. This is a form of theft, trespass, or wealth redistribution.






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