Available Now! (click cover)

America's Counter-Revolution
The Constitution Revisited

From the back cover:

This book challenges the assumption that the Constitution was a landmark in the struggle for liberty. Instead, Sheldon Richman argues, it was the product of a counter-revolution, a setback for the radicalism represented by America’s break with the British empire. Drawing on careful, credible historical scholarship and contemporary political analysis, Richman suggests that this counter-revolution was the work of conservatives who sought a nation of “power, consequence, and grandeur.” America’s Counter-Revolution makes a persuasive case that the Constitution was a victory not for liberty but for the agendas and interests of a militaristic, aristocratic, privilege-seeking ruling class.

Monday, June 15, 2009

IP Debate Breaks Out at FEE

At a recent FEE seminar, a debate over intellectual "property" broke out spontaneously among Ivan Pongracic (second from right), Paul Cwik (second from left), and me (left, where I belong). Who won?


Accidental said...

You mention that historically there have been writers who did not copyright their work but made money anyway. Suppose we did not have copyright law right now. Could you explain how a current fiction writer would make money?

MarkZ said...

Why does he have to make money?

Stephan Kinsella said...

Sheldon, there is no doubt that in just 10 short minutes you completely dominated. Pongracic and Cwik adopted the amazingly naive and un-nuanced standard viewpoint (as Cwik did in his presentation at the 2008 Austrian Scholars Conference, on the IP panel on which I was a discussant; Cwik's argument was incredible weak (as several audience members noted to me), as the IP argument has to be).

Neverfox said...


Advanced sales to fans, commissioned work, appearances, serial release contracts, autographed editions, first-edition collectors, endorsement fees for "official" derivative works, donations (see commissioned work) and don't underestimate the moral pull of supporting publishers who fairly pay artists in advance.


Indeed! Viewpoint fail. Total pwnage (c).

Sheldon Richman said...

Accidental writes, "Could you explain how a current fiction writer would make money?"

I could speculate or I could dig up some historical examples. But why should I? Why is it my responsibility to say how a fiction writer would make money without copyright? I am not being flip. Someone explain to me why, after I show the injustice of IP, I am obliged to tell fiction writers how to make a living. Seriously. Should I answer a taxi driver's similar question after I show that government licensing of taxis is unjust? Figure it out. Don't look to me for career advice. Who says I'm qualified to give it?

Less Antman said...

You did a very good job (but I'm sure you spent the next day kicking yourself about different ways to formulate your comments, since I do it after every appearance).


My answer to Paul about F.A. Harper's argument for ownership of creative words:

"You just quoted F.A. Harper without permission. Wasn't that theft, and don't you owe his estate restitution?"

My answer to Ivan about breaking into his home:

"If I bought and paid for a copy machine, what gives you the right to break into my house to stop me from using it? Enforcement of copyright REQUIRES the violation of property rights over tangible assets."

My answer to Paul about copyright just being an example of enclosing a commons:

"So I have no right to property that isn't enclosed? That's not even a good argument for the ownership of land, let alone word arrangements. Property rights were established to deal with the problem of scarcity, and to avoid conflict over assets that can only be used by one person at a time. Intellectual monopoly law takes something that is abundant in nature and tries to make it scarce by law. It is a perversion of the concept of property, and creates conflict."

BTW, I'm surprised that neither Ivan nor Paul used the argument from contract, which is much more plausible and harder to refute.

Stephan Kinsella said...

Sheldon, the demand that you show how writers could make money in a free market reminds me of Hasnas's Myth of the Rule of Law (which both you and I have commented on), where he wrote:

"I am aware that this explanation probably appears as initially unconvincing as was my earlier contention that the law is inherently political. Even if you found my Monosizea parable entertaining, it is likely that you regard it as irrelevant. You probably believe that the analogy fails because shoes are qualitatively different from legal services. After all, law is a public good which, unlike shoes, really is crucial to public welfare. It is easy to see how the free market can adequately supply the public with shoes. But how can it possibly provide the order-generating and maintaining processes necessary for the peaceful coexistence of human beings in society? What would a free market in legal services be like?

"I am always tempted to give the honest and accurate response to this challenge, which is that to ask the question is to miss the point. If human beings had the wisdom and knowledge-generating capacity to be able to describe how a free market would work, that would be the strongest possible argument for central planning. One advocates a free market not because of some moral imprimatur written across the heavens, but because it is impossible for human beings to amass the knowledge of local conditions and the predictive capacity necessary to effectively organize economic relationships among millions of individuals. It is possible to describe what a free market in shoes would be like because we have one. But such a description is merely an observation of the current state of a functioning market, not a projection of how human beings would organize themselves to supply a currently non-marketed good. To demand that an advocate of free market law (or Socrates of Monosizea, for that matter) describe in advance how markets would supply legal services (or shoes) is to issue an impossible challenge. Further, for an advocate of free market law (or Socrates) to even accept this challenge would be to engage in self-defeating activity since the more successfully he or she could describe how the law (or shoe) market would function, the more he or she would prove that it could be run by state planners. Free markets supply human wants better than state monopolies precisely because they allow an unlimited number of suppliers to attempt to do so. By patronizing those who most effectively meet their particular needs and causing those who do not to fail, consumers determine the optimal method of supply. If it were possible to specify in advance what the outcome of this process of selection would be, there would be no need for the process itself.

"Although I am tempted to give this response, I never do. This is because, although true, it never persuades. Instead, it is usually interpreted as an appeal for blind faith in the free market, and the failure to provide a specific explanation as to how such a market would provide legal services is interpreted as proof that it cannot. Therefore, despite the self-defeating nature of the attempt, I usually do try to suggest how a free market in law might work."

Sheldon Richman said...

Stephan, great point. I will relent and answer the question about how a novelist might make a living without IP. A one-word answer: Entrepreneurship!

Less, I agree. The enclosure argument begs the question. It assumes what must be proved. I've pointed this out to Paul many times. Without endorsing historical enclosure as it was carried out, one bases the economic case for land enclosure on the essential fact that only one person can cultivate a parcel of land at a time. But it is precisely not the case that only one person can use an idea at a time. I can perform Ivan's music at the very moment he is doing so. That is the core of the issue, and so much argument for IP ignores this and moves on to secondary issues. (How will I make a living?) Where is the rigor that these folks usually apply to economic and social issues?

One can enclose land. One cannot enclose a language or musical pattern. What does that mean -- except that others may not use their tangible property as they wish.

Less, I used to talk about contract as an IP substitute, but I am convinced it gets IP advocates very little of what they want. For one thing, there are serious problems with regarding unilateral declarations (in shrink wrap), where there is no meeting of the minds, as bona fide contracts.

Less Antman said...

Sheldon, I agree that the argument from contract won't give IP advocates everything they want, but I think the argument is more sophisticated than shrink wrap declarations. Common law anarchism recognizes implied contract terms based on reasonable person standards, and the argument that there is a reasonable person expectation against the direct reproduction of a purchased work is not absurd. It may be wrong, but it is much stronger than the arguments Paul and Ivan made in the video.

Ultimately, though, I think social norms are a far more useful tool for the protection of authors, and the level of government power needed to enforce copyright in the modern world draconian enough to frighten any sane person.

Wladimir Kraus said...

To answer "how" with "somehow" or "I don't care how" means evading the analysis. Marxists too, in similar vain, evaded the problem of how the socialism will actually work in practice by answering "somehow". That "somehow" was the dialectical process. They were content with presenting a "theory" that allegedly proved the inevitability of socialism by inner contradictions of capitalism. But, of course, to say that something follows from some theory is not enough to answer the actual question of how that "something" will work in practice. I'm afraid Mr. Richman and Stefan committed the same mistake.

Sheldon Richman said...

Mr. Klaus, I beg to differ. Marx want to abolish entrepreneurship, markets, and rights in tangible things -- the very things that had made mass production possible. So for him to say "somehow" was to duck the question of how things would get done. Stephan and I do not propose to abolish those things, so we do not commit Marx's fallacy. In 1980 I could not have told you what the PC market would look like in 20 years. I would have said "somehow" entrepreneurs will figure it out (if the market is at least somewhat free). Was I making a mistake? I don't see it.

Can you tell me how free people will be doing long-distance travel in 2109? Don't cop out now and say "somehow."

Wladimir Kraus said...

The parallels between Marxist answer and your have nothing to do with the abolition of private property in the means of production, competition etc. Common is the refusal to consider the essentials of the case. The problem is not to predict the occurrence or nonoccurence of some specific thing X but the pattern of social cooperation that brings about things like X. For example, the question of precisely how the division of labor will be sustained was not addressed at all. It was relegated to the category of some "specific thing X" which is subject to the chance, or to the unfolding "dialectical process."

Rather the question concerns the structural question of how creators of intellectual products, in the face of nearly zero-marginal cost of copying, will be induced to invest years' worth of effort and resources. The upfront capital investment relative to operating expenses (marginal costs) is overwhelming. I don't see the mechanism that would enable the creators to at leas cover the costs.

I hope you understand the direction of my question. I'm not familiar with the literature. It's possible that the question has already been dealt with. If so, I'd be grateful for a concise analysis.

Sheldon Richman said...

Mr. Kraus (my apologies for getting your name wrong before), my inability to anticipate what entrepreneurs will do when confronted with specific problems in the marketplace cannot be used to invalidate my case against the injustice of IP. That case must be refuted directly. You must show that IP is consistent with justice and property in tangible objects. It is no objection to point out that without IP, creators will have to devise business models different from the ones they used while enjoying a state monopoly privilege.

If you wish to explore how these problems were solved in the past, see Boldrin and Levine's book, "Against Intellectual Monopoly," available online.

Stephan Kinsella said...

Wlad, Take a look at boldrin & Levine's Against Intellectual Monopoly (www.AgainstMonopoly.org) for more practical analysis.

But the point is that when we libertarians identify aggression, we are free to oppose it. We don't need to first demonstrate what would replace the current system based on some institutionalized aggression.

It's similar to anarchy: minarchists often hurl as a challenge, "well, how would justice or defense work in your society?" as if we have to answer that first... they are thinking like the positivist-constructivist statists that they are: they are used to the idea that we have to centrally plan some set of institutions that solve pre-agreed upon problems, and that anarchy is just one competitor among others, so we anarchists have the burden of proof of showing that it is "better" at solving problems A, B, C--as if it's pre-ordained that these problems are in "need" of a solution that must be had, no matter what the cost. I reject this. I am anarchist for the very simple reason that I (a) am against aggression; and (b) recognize that the state is an agency of institutionalized aggression. Rejecting the state does not depend on my having a vision of how people will get along without it. I argue this in What It Means to Be An Anarcho-Capitalist.

Wladimir Kraus said...

Mr. Sheldon and Stephan (sorry for getting your name wrong:-),

thank you for your replies and the book reference! Appreciate it.

Yes, I understand and agree with you that a complete analysis should include the moral dimension too. I'm a fan of Ayn Rand's theory of justice, property etc. but I'm also an economist who tries to understand how things work. That's why I've politely to disagree with your argument that it's not possible to at least formulate a pattern prediction (Hayek), or, better, formulate a structural model of a specific industry or even an economic system. It's possible and important.

Sheldon Richman said...

Mr. Kraus, I could offer some pattern predictions -- which along with $4 will get you coffee at Starbucks. But I am not obligated to do so, and failure to do so in no way undermines my case against IP.

Wladimir Kraus said...

Mr. Richman (how I managed to get your name wrong I can't tell!! Sorry!),

fair enough. Your ethical case against IP is indeed not refuted by what I had to say. And I didn't intend to do so. I just thought a connection between theory and practice might be important for an overall argument.


Kevin Carson said...

I don't have broadband, but I can well believe you trounced them.

Re how novelists can make money, another possibility is the rents entailed in being the first to overcome the transaction costs of being first in the market to offer your own book for sale. Unless you have sales on the scale of Stephen King, if your royalty over and above printing cost (or for download) is only a dollar, it's probably not worth it to someone else to set up a competing infrastructure just to offer it for fifty or seventy-five cents. As Cory Doctorow put it, for everyone except the biggest guys, free culture probably benefits more than harms.

Wladimir Kraus said...

Good point!

Kevin Carson said...

P.S. Enclosure of land was an expropriation of preexisting property rights. I'm not sure why the theft of land to which there is a right of common access, to give it to politically connected individual "private" owners, should be lionized by libertarians.

Sheldon Richman said...

Kevin, point taken.

Anonymous said...

Am curious as to what you think about J. Neil Schulman's defense of what he calls "logorights."

David said...

Sheldon, your comment on the economic value crystallized the whole IP issue. Economic value in a common stock held by a million people is raised or lowered by the act of a single buyer and a single seller agreeing on a new price. The other static 999,999 owners neither stole value from someone else nor did someone break into their home to steal from them. This concept is the other side of the coin whereby an innovation or artful creation (song, novel, etc.) can be used by one or many simultaneously because it is entirely of the mind.

A song enjoys economic value only insofar as others enjoy it. If I write a song and one other person's enjoyment of it gives it value, do I not owe this person some sort of fee for his input to that value? [As an aside, I wrote a novel and find that, while its economic value is limited (to say the least), I do feel a kind of debt owed to those who read it, for I came to love the characters whose story it tells and believe that when their story is read, they kind of get to live a little.]

Heaven help us if someone somewhere successfully enforces a patent on the design for a four-legged chair. Such is the absurdity of IP.

Less Antman said...

@ David

I REALLY enjoyed reading your comment. I accept cash, credit card, or Pay Pal.

David said...

@ Less A.

FEEL the positive vibes coming to you across the ether....

[Who says anarchists are atomistic individuals living apart in their personal Waldens?]

Anonymous said...


You won. I did have a question. Do you view a song(lyrics and/or music) as a discovery rather than property?


Sheldon Richman said...


That's a false alternative. The copy of the song you wrote that is in my head is my property. The copy in your head is your property. The abstract song is not property. Whether or not a song is a discovery is another question.

Stephan Kinsella said...

I personally tend to think it's confusing to ever refer to it as property. It's a pattern. My body, my brain, is muy property. The "copy" in it is not property, not really, at least not in my view, not as I understand property. Nor is my labor. This is where the confusion starts IMO--a vague notion oo property, that lets you envision your labor as owned. Then you own things you mix your labor with because you own your labor, as Locke (problematically) said, and as Rothbard (IIRC) repeated. You do not need to own your labor to have a better claim to homesteaded things; and I think it is nonsensical to say this. Likewise it can be misleading to talk abou selling services, if one is not strictly clear what this means (it is clear in the title transfer theory of contract).

I go into this here a bit in Libertarian Creationism
and Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors.

Doc Sulo said...

@Wladimir Kraus

Here's a piece from a Forbes article written by Cory Doctorow (who has given away free copies of his e-books since his first novel):

"This isn’t the first time creative entrepreneurs have gone
through one of these transitions. Vaudeville performers had to
transition to radio, an abrupt shift from having perfect control
over who could hear a performance (if they don’t buy a ticket, you throw them out) to no control whatsoever (any family whose
twelve-year-old could build a crystal set, the day’s equivalent of installing file-sharing software, could tune in). There were business-models for radio, but predicting them a priori wasn’t easy. Who could have foreseen that radio’s great fortunes would be had through creating a blanket license, securing a Congressional consent
decree, chartering a collecting society, and inventing a new form of statistical mathematics to fund it?

Predicting the future of publishing — should the wind change
and printed books become obsolete — is just as hard. I don’t know
how writers would earn their living in such a world, but I do know
that I’ll never find out by turning my back on the Internet. By
being in the middle of electronic publishing, by watching what
hundreds of thousands of my readers do with my ebooks, I get
better market intelligence than I could through any other means."