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A talk with Bionic Mosquito on IP

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John James Posted: Sat, Apr 13 2013 8:45 PM

Update: Bionic Mosquito replied to me in the comments of the latest post on his blog mentioned here and suggested that I left out context to one of his comments, and that I did not include the link to the Hoppe quote from the piece that he originally quoted.  I have made those updates and added a bit of extra commentary to that last point.


The following is a response to blogger Bionic Mosquito, for a discussion we have been having on IP.



It began with his comment on the EconomicPolicyJournal blog here:

bionic mosquito:
"There is nothing incompatible between real property and intellectual property. They simply both recognize ownership rights and the limits of those rights given the nature of the type of property."

Well said, and nothing that has been written or said during the entirety of this discussion has demonstrated to me otherwise. The more I have witnessed the dialogue the more convinced I have become of this.

The product of labor; the product of muscle...why should these be treated differently from a property rights standpoint?

There is no good answer....

I attempted a response in that comment section, but Wenzel did not approve my post, so I went to the bionic mosquito blog, and posted there, under the username patm543.

After a bit of dialogue, I think the 4,096 character limit for comment sections proved too much of a hurdle, so Bionic Mosquito made a new post on his blog as a response.

I think a forum is obviously the more appropriate medium for this kind of dialogue, as there is no getting around the comment section limitation in the Blogger platform, and simply going back and forth in new posts on separate blogs would be tedius, and make it difficult and cumbersome for any readers to follow.

So I elected to make my response here.  I would like to have Bionic Mosquito create an account here (if he hasn't already) so that we might continue our conversation free from any of the annoying restrictions...




bionic mosquito:
If I control my property in my house, I certainly consider the right to exclude someone from entering as an inherent part of control.  How can I control my house and not have the right to exclude others from using it?  This seems consistent with the common definition of control.

Eh. Now it just gets more to semantics. I would argue that two parties could exercise simultaneous control over an object. Have you ever tried to play with an RC car near someone else who was using an remote on the same frequency?  Obviously the car can't go in two directions at the same time, so ultimately, each split second, one person's remote commands are getting carried out by the car...but in a general sense, they both are able to exercise some "control" over the device at virtually the same time.

And what's more, I would not agree that control implies an overall exclusionary standing. This is precisely why there is a difference between having a "controlling interest" in a property vs. an "ownership interest." If I own 25% of the stock of a company, and you own 75%, you have the controlling interest...but we both have an ownership interest.

You further state, in response to my comment that the formula [for Coca-Cola] is not rivalrous at all.:

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

Here again, there are a few problems with this... First, you're begging the question again. You've already stated that you define "ownership" as "control, use, and disposition". My position is that the formula is not an ownable thing...yet in your attempt to prove otherwise, you begin by assuming that it is owned. That is not an argument. It is called "logical fallacy" for a reason.

Second, nowhere in that entire statement do you show that the consumption of the good in question (i.e. the formula for coca-cola) "prevents simultaneous consumption by other consumers."

Again, you and I can both simultaneously be in our own kitchens, filled with raw materials (aka "ingredients") that we separately own, both simultaneously using the formula to guide our actions in our respective kitchens.  Your use of the formula does not prevent or in any way hinder my use of the formula. This is the exact opposite of a rivalrous good.


You go on:

bionic mosquito:
you literally state: "an idea is property – the result of man applying his brain to the physical world". That makes absolutely no sense...
I am sorry you feel this way. I believe it is incumbent on those who advocate an anti-IP position to come up with a positive case why the one thing that differentiates man from the animals is not subject to the same theories of property rights.  Apply your analysis to the formula for Coke.  I will not carry the need to make this proof as my burden.

How is that a congruent response to my point? I find it odd that you'd simply leave out my explanation as to why your statement makes no sense. Could you please answer the question I originally asked?:

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

Do you honestly not see the problem you face here?


I believe it is incumbent on those who advocate an anti-IP position to come up with a positive case...

First of all, as I said, it is the pro-IP advocate who needs to present a positive case for it is you who is alleging the right to initiate force against an individual acting peacefully and prevent him from using his own raw materials in a way he sees fit.

Second of all, the case against IP has been given many times, in many I said, it is quite simple:  The issue is that we all agree with a free market and a system of private property rights in scarce resources. If we can agree on that, then all that needs to be shown is that this idea of "intellectual property rights" sets up some kind of "right" that is incompatible with what we all already agree with.

And it is quite easy to see that that is the case:

I have a piece of land that I own, on which sits a house that I own, with a kitchen that I own, filled with ingredients and tools that I own.

Your concept of "intellectual property" literally dictates that you have a right to forcibly prevent me from staying in my kitchen that I own and making Coca-Cola with the ingredients that I own. You contend that you have a right to (at least some degree) of "control" over my property.

Do you honestly not see this?


And finally, I think this is where a big part of the problem lies:

the third party can be legally (via enforcement of contract, even though “C” never signed it)

This is not contract law. This is not libertarianism. This is "I can force you to go along with something even if you never voluntarily agreed with it."

You are confusing the difference between in rem property rights and in personam contract rights, just as Wenzel was doing in the podcast. As Kinsella said, the latter are only private agreements between a small group of people and do not affect third parties, unlike in rem or real property rights, which is what real IP advocates want IP to be; meaning you cannot create property rights like IP rights, out of contract rights.

There is no such thing as some "unsigned contract for me not to trespass on your land". That is not what gives a land owner the right to remove a is not that some trespasser breached some unspoken contract. This is just nonsense. As Rothbard explained, a contract is simply an arrangement of title transfer.

The reason a (legitimate) land owner has a right to remove a trespasser is because the land is a rivalrous, ownable resource, and he (presumably) has legitimate title to it (i.e. he homesteaded it, or acquired it through a title transfer of voluntary exchange.)  This right of exclusion has absolutely nothing to do with contract rights.  There is no contract between an property owner and the rest of society.

This is basic contract law.  There is no such thing as a contract between unwilling parties.  For a contract to be valid there must be a "meeting of the minds"...otherwise there is no contract.


Finally, you claim:

Hoppe did not pooh-pooh the possibility; there must be at least some merit to it.

Are you kidding?:

"I agree with my friend Kinsella, that the idea of intellectual property rights is not just wrong and confused but dangerous. [..] Ideas – recipes, formulas, statements, arguments, algorithms, theorems, melodies, patterns, rhythms, images, etc. – are certainly goods (insofar as they are good, not bad, recipes, etc.), but they are not scarce goods. [...] intellectual property rights and real property rights are incompatible, and the promotion of intellectual property must be seen as a most dangerous attack on the idea of "real" property (in scarce goods)"

How do you get more clear than that?



You state that:

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

In other words, Hoppe admits that private enforcement mechanisms are a step in the right direction toward his ideal society.  This does not mean he thinks IP is legitimate just as long as it is privately enforced.  It's similar to an anarchist suggesting that switching from the income tax to national sales tax would "go a long way in the right direction"...this does not mean that he accepts or is in favor of taxation.  He's simply admitting that one is less destructive than the other.

You also leave out the rest of his comment:

Daily Bell: We have suggested that if people want to enforce generational copyright that they do so on their own, taking on the expense and attempting through various means to confront copyright violators with their own resources. This would put the onus of enforcement on the pocket book of the individual. Is this a viable solution – to let the market itself decide these issues?

Dr. Hans-Hermann Hoppe: That would go a long way in the right direction. Better still: more and more courts in more and more countries, especially countries outside the orbit of the US dominated Western government cartel, would make it clear that they don't hear cases of copyright and patent violations any longer and regard such complaints as a ruse of big Western government-connected firms, such as pharmaceutical companies, for instance, to enrich themselves at the expense of other people.

So even in the comment that you cite, Hoppe makes it quite clear that courts simply refusing to hear cases of copyright and patent violations would be even better than some attempt at private enforcement.

And then of course, we have his definitive statement on the whole concept of IP:

...intellectual property rights and real property rights are incompatible, and the promotion of intellectual property must be seen as a most dangerous attack on the idea of "real" property (in scarce goods)

Forget being an intellectual have to be outright in denial or just plain dishonest to suggest that Hoppe leaves any room for the legitimacy of "intellectual property rights."


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