KInsella and Thin Air

[kiaer.ts]

There are several different fallacies at work in the anti-libel law position.

One fallacy is the materialistic view of property. Property - ownership - is not a physical, but a moral condition. "Things" do not need to be physical entities to be property. Property, in part, is the right to the enjoyment of something. David Hume and some libertarians argue that scarcity is the basis of property. Scarcity, being a physical property, is seen as objectively determinable, and hence a scientific basis for property.

Kinsella argues that without scarcity the notion of property makes no sense. He argues, for example, that if we could pluck bicycles out of the air, there would be no reason to prosecute people for stealing bicycles, because anyone who needed one could just wish one up at need. Besides the obviously arbitrary and hence invalid nature of the argument, he ignores the fact that the value of a bicycle that had been given to me as a gift by my now deceased father is a real thing, and I might be justifiably outraged if you stole my bicycle, no matter how easy it would be for me to replace it.

Kinsella argues that the effect of patent law is not to address scarcity, but to create scarcity, to prevent others from creating objects of which their might otherwise be innumerable copies. Kinsella is stuck in a materialist mindset. If he wants to speak in terms of scarcities, then the scarce thing which patents protect is not the physical manifestations of an invention, but the idea behind an invention. New ideas are the most scarce human commodity there is.

Likewise one's reputation. A reputation comes at the expense of hard work, not only one's own effort at integrity, but also one's advertising and self-marketing. If one wants to speak of scarcity (I would rather speak of the right to enjoy one's own moral investment) then what is more scarce than a hard won reputation? If we look at a real life example of libel, what could be more scarce than the reputation Rush Limbaugh has earned as America's number one broadcast personality, and what could be more rare that the ability to buy an NFL franchise?

Being property is not a physical condition. One's ownership of a thing cannot be expressed in merely physical terms. Ownership is not determined by mass, or velocity, or atomic structure. It is not determined by size, or proximity, or location. If I steal your wedding ring I may have it in my house, I may wear it on my finger, I may lock it in a box or bury it in my yard, there may be no detectable physical relation to you whatsoever. If you just purchased it from a catalog and I stole it out of your mailbox upon delivery then you may not ever even have touched it. But even if you have never had physical contact with the object, and even if I have it in my hand the fact of ownership is unaltered, It is a morally determined, not a physically determined reality.

Objectivism does not embrace the NIOF principle as the basis for its politics. Let me repeat, Objectivism does not embrace the NIOF principle as the basis for its politics. Objectivism does not reject force as an axiom. Objectivism rejects the use of force and fraud because they violate man's need to use his mind as his means of survival. The use of force is wrong not because of its physical nature, but because it violates the human mind's need to act on a reasoned choice, on what is conventionally called informed consent. Force in the sense of coercion is a moral, not a physical concept. The use of force and the use of fraud are both violations of informed consent.

There is always a (meta)physical and there is a moral dimension to crime. To return to the example of the shopkeeper deprived of customers through libel or through physical interference, in either case the rights violation is that I and my customers have been denied the right to interact on the terms of informed consent.

There are other fallacies behind the denial of the propriety of libel laws. One fallacy is the idea that it is a violation of free speech. But, again, freedom is a moral, not a physical concept. Freedom doesn't mean doing whatever you want, it means acting without violating consent, whether that of the person who acts or that of the person who is acted upon. Another is the epistemological fallacy that a victim should have to counter lies as if lies and the truth are just relative things that carry equal weight. It is an epistemological error, and one with grave moral implications, to expect a libel victim to counter a malicious positive claim by proving a negative in self defense.

These fallacies flock together. It's not a surprise that the materialist denial of intellectual property goes along with the relativist view of the burden of proof and the intrinsicist view of the NIOF "principle." The principles behind intellectual property and the libel laws are complex ones. It is proper to be cautious in supporting restrictions on what one sees as free speech when one is unsure of the reasoning behind the punishment of "words." Libel laws are not something Objectivists should accept on faith. But there is a difference between caution on one hand and the positive adoption of false principles on another. Such mistakes as treating the NIOF principle as if it were an axiomatic primary are not just isolated ideas. They come with an entire syndrome of philosophical pathology.

(The above and the following posts are from another thread on another forum a long time ago in a galaxy . . . )

Edited December 1, 2010 by Ted Keer

[kiaer.ts]

From Ayn Rand Answers:

What do you think of libel and slander laws?

They are appropriate laws because freedom of ideas does not permit you to lie about a person. Under the older interpretation of the courts, truth was your defense. If you know something defamatory about someone, and it's true, then you have the right to say it. But today you can practically say anything, so long as your supposedly not motivated by malice. There are some standards, but they're unclear and impractical.

This type of law is strictly to protect individuals; it has nothing to do with ideas. It's an issue of whether or not you lied about someone and caused him damage. [FHF 73]

[kiaer.ts]

Certain types of published statements, like the allegation of criminal activity, are considered libel per se and the burden is on the defendant to prove the truth of his allegations. From Wikipedia:

Defamation per se

All states except Arizona, Arkansas, Missouri, and Tennessee recognize that some categories of statements are considered to be defamatory per se, such that people making a defamation claim for these statements do not need to prove that the statement was defamatory. In the common law tradition, damages for such statements are presumed and do not have to be proven. Traditionally, these per se defamatory statements include:

Allegations or imputations "injurious to another in their trade, business, or profession"

Allegations or imputations "of loathsome disease" (historically leprosy and sexually transmitted disease, now also including mental illness)

Allegations or imputations of "unchastity" (usually only in unmarried people and sometimes only in women)

Allegations or imputations of criminal activity (sometimes only crimes of moral turpitude)

[kiaer.ts]

Rand uses the term force most often because it is concrete, vivid, and accounts for the most obvious cases of crime. But how are you going to define force? Obviously she doesn't just mean the Newtonian definition - F=m(dv/dt) - that force is the acceleration of mass.

For example lets say you see a man and a woman walking down the street and the man pushes the woman into a bush. You will have a different interpretation of his actions based upon whether he cursed at her first, or if an out of control car was barreling towards her. Paradoxically, you cannot just define force as the use of force.

The problem becomes slightly more acute when you look at fraud. I am not sure where I read her address the issue, but somewhere Rand says that fraud is wrong because it results in possession without consent, which results to the same moral situation as theft; you have to resort to the use of force to return the object which was taken without consent.

Obviously the real issue here is the violation of informed consent. Fraud is just as much a violation of the rights of men to interact on the basis of informed consent as is the use of violence. In this sense defamation becomes a type of fraud in the broad moral sense. Standard fraud amounts to false advertising or violation of an explicit or implied contract. Libel is different because it involves a third party, and it may not involve monetary a monetary incentive, but not always. A person could libel someone out of pure malice. The libeler gets no concrete reward, just satisfaction of his perverse desire to inflict harm.

In many cases libelous remarks are criminal or actionable based on other grounds. But libel allows one to sue for personal damages as separate from the technicalities of other crimes. For instance, the woman who made up the false National Guard records that Dan Rather used to libel George Bush was also guilty of forgery and probably several federal crimes. Those crimes may have been punishable by jail time. For Bush to recover monetary damages, had he wished to do so, libel law would have been relevant.

And what about someone who falsely accuses another person of sexual molestation? That sort of thing can be done without any expectation of gain by the accuser and without any other crime being committed. The damages are real and significant. The fact that the libeler does not gain monetarily makes his action no less criminal than if a thief destroys a priceless object he meant to benefit from during the commission of the crime. Each has violated the right of an owner to enjoy his property without the owner's consent.

[kiaer.ts]

We have to make a distinction between the state and individuals as actors. The government is defined by Rand as the entity which has a monopoly over the use of force in an area. Hence it is perfectly reasonable to say immediately that the state, which has a political monopoly on force, may never initiate it.

But how does this apply to crime by individuals? Consider the example of two people who walk in to a store. One is a legitimate customer. He picks up an item, carries it to the counter, hands cash to the clerk, and walks out the door carrying his purchase. The second, a shoplifter, does all the same things, except that he skips making the payment. Indeed, he may pay for some purchases, so he may go to the counter. He simply omits payment for the stolen item.

Is the distinction here one of "force"? The difference is not the shoplifter has added on an extra dimension of violence. He has actually done less physically than the legitimate customer. Obviously the crime consists in the violation of consent, not in the use of physical violence. One may use violence to violate consent, or one may use falsehood, or simple inadversion. What is essential is the deprivation of a person's property against his will.

Wrongdoing by the government normally comes about by the use or threat of violence, which is inherent in all its actions. Fraud and defamation are not the usual methods of violating a persons rights in the liberal democracies of the West. Although, with such power grabs as the Obama administration's takeover of the auto industry and the shutdown of dealerships run by businessmen who did not sufficiently contribute to past democratic political campaigns, we can see that the left in American has learned how to apply the dishonest tactics of the Nazis and the Soviets. When the government does commit fraud or defamation, it acts in concert with its coercive power simply by default if not actively.

When private actors defraud or defame someone they usually do so without violence. Hence most fraud and most defamation litigation is civil rather than criminal. But even if the actions of private wrongdoers are done without guns, and may be improper just as much for what is not done as for what is done, the fact remains that harm is accomplished through the violation of informed consent. The abuse of consent, whether violent or not, is the essence of the violation of rights.

[nskinsella]

There are several different fallacies at work in the anti-libel law position.

One fallacy is the materialistic view of property.

re materialism and the non-aggression principle: quotes of Rand from my post Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging”:

The power to rearrange the combinations of natural elements is the only creative power man possesses. It is an enormous and glorious power—and it is the only meaning of the concept “creative.” “Creation” does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. “Creation” means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before.

And from my article Intellectual Property and Libertarianism:

So long as men desire to live together, no man may initiate.… No man may start — the use of physical force against others."

All sounds good to me.

Property - ownership - is not a physical, but a moral condition. "Things" do not need to be physical entities to be property. Property, in part, is the right to the enjoyment of something. David Hume and some libertarians argue that scarcity is the basis of property. Scarcity, being a physical property, is seen as objectively determinable, and hence a scientific basis for property.

Kinsella argues that without scarcity the notion of property makes no sense. He argues, for example, that if we could pluck bicycles out of the air, there would be no reason to prosecute people for stealing bicycles, because anyone who needed one could just wish one up at need. Besides the obviously arbitrary and hence invalid nature of the argument, he ignores the fact that the value of a bicycle that had been given to me as a gift by my now deceased father is a real thing, and I might be justifiably outraged if you stole my bicycle, no matter how easy it would be for me to replace it.

In a world of superabundance, each resource would still be a scarce resource; a given bicycle (if it is the type of bicycle we think of) would itself be a scarce resource and it would be theft for someone to take it. Now you might not mind, usually, since you could conjure up another or grab one from the bicycle tree, in this imaginary world of superabundance. You might mind if there is sentimental value. I don't deny this at all.

But notice that the bicycle in your example IS a scarce resource that that is why property rights are applicable to it.

Imagine a world where I can create a "copy" of your bicycle just by snapping my fingers. This type of copying would NOT take your sentimental bike from you--even if it's a scarce resource, I have not interfered with your use or possession of it. I have simply made one of my own that is similar in arrangement to yours. (This is illustrated in Nina Paley's animated video Copying Is Not Theft.) IP proponents would have to condemn this copying too--and you can't use the "I don't have my sentimental bike" argument here. I fear that if 3D printers ever become more advanced--which could be a boon to mankind, a truncated version of my envisioned world where you can create copies of material things--IP proponents would do what they could to kill it.

Kinsella argues that the effect of patent law is not to address scarcity, but to create scarcity, to prevent others from creating objects of which their might otherwise be innumerable copies. Kinsella is stuck in a materialist mindset. If he wants to speak in terms of scarcities, then the scarce thing which patents protect is not the physical manifestations of an invention, but the idea behind an invention. New ideas are the most scarce human commodity there is.

No more materialistic than Rand in the quotes I provided above. As for ideas being scarce--this is equivocation. Scarcity as we are using the term in a technical sense means rivalrous not rare.

Likewise one's reputation. A reputation comes at the expense of hard work, not only one's own effort at integrity, but also one's advertising and self-marketing. If one wants to speak of scarcity (I would rather speak of the right to enjoy one's own moral investment) then what is more scarce than a hard won reputation? If we look at a real life example of libel, what could be more scarce than the reputation Rush Limbaugh has earned as America's number one broadcast personality, and what could be more rare that the ability to buy an NFL franchise?

Sure, it comes as the result of hard work. But there is no property right in value, or in labor. Labor is just an action; something you do with your body. You have property rights in your (scarce) body, which gives you the right to labor with it. Value is not some thing that is created or that you can have property rights in; it's not some objective quantity of substance intrinsically in some things. Value is subjective and demonstrated by a valuing actor. If you make a valuable product or service this means others may want to buy it or pay money for it--you have no right to have customers give you their business, and you have no right for others to think highly of you (even if objectively they "should"); but it's likely that they will patronize you and think highly of you, if you give them reason to. BUt this does not mean you have a right to what they think of you, which is what you need to have a reputation right; you don't own their brains.

Being property is not a physical condition. One's ownership of a thing cannot be expressed in merely physical terms. Ownership is not determined by mass, or velocity, or atomic structure. It is not determined by size, or proximity, or location. If I steal your wedding ring I may have it in my house, I may wear it on my finger, I may lock it in a box or bury it in my yard, there may be no detectable physical relation to you whatsoever. If you just purchased it from a catalog and I stole it out of your mailbox upon delivery then you may not ever even have touched it. But even if you have never had physical contact with the object, and even if I have it in my hand the fact of ownership is unaltered, It is a morally determined, not a physically determined reality.

Sure. And the libertarian (and Objectivist) view of what normative, moral principle applies is: you own your body; you own scarce resources that you homestead or that you acquire from a previous owner by contract. That is our normative view. this view is sufficient to handle all disputes over the use of any resource.

There is a growing recognition among libertarians of the evil of IP and defamation law ("reputation rights"), and from what I can tell, this is also true, to a smaller degree, among Objectivists. In this Internet age the manifest injustice of IP law is becoming more and more obvious even to Objectivists. THey are getting more and more uncomfortable with the mounting and sophisticated attacks on IP by fellow libertarians and Objectivists. AS they should be. They are supporting a horrible institution that was a mistake from the get go. Like Rand's views on homosexuality and anarchy, they need to be jettisoned or seriously re-thought. IMHO.

At the very least the Objectivist opponents of IP need to lay down what system they favor. Rand didnt do so. Her chapter on patent and copyright contains errors and misconceptions about the current way the law works, and is a weird mixture of utilitarian considerations with alleged principle. We can cite hundreds of bad aspects of modern IP law and most Objectivists will agree with those; they say Oh Im' not in favor of THAT. What are you in favor of? Well, you say, you are not patent lawyers so how can you know. Yet you object to the abolition of modern patent and copyright; you agree with the criticisms of it; you say you don't favor it; you won't say what you do favor; yet you are against abolishing the current system. Very difficult to pin you down. In my view it is incumbent on you to agree with abolition of the CURRENT system given that you agree with our criticism of so many of its abuses and outrages and unjust aspects, and then, if you want to replace it with some new IP system that is just, tell us the specifications of it. Until you do this I odn't see how you can object to patent and copyright abolition so long as you agree that they have so many unjust aspects. Adn you cant just say well tweak it and get rid of the unjust parts--there are so many, once you do this there is nothing left but a rickety husk of statutory law, not a proper coherent legal framework.

[George H. Smith]

There is a growing recognition among libertarians of the evil of IP and defamation law ("reputation rights"), and from what I can tell, this is also true, to a smaller degree, among Objectivists.

So you are opposed to defamation laws? Hmmm.... That comes as a surprise to me. I'm sure it would also surprise Sharon Presley, Tim Starr, and some other libertarians who were based in SF in 1998.

Ghs

[Mike Renzulli]

Excellent posts by Ted critiquing Attorney Kinsella's point of view regarding intellectual property (IP).

I would like to add that while he asks what system Objectivists and supporters of IP would enact since he uses his critique of the U.S.'s IP system as the standard to point out that it doesn't work, that (if he has not done so already) the onus is on Kinsella to draw up or outline a method or system (if you will) of how to protect intellectual property.

I might be opening a can of worms but I will take a stab at this none the less.

I think Kinsella's view (anarchist libertarianism) is indicative of a much large problem with his overall philosophy. The main problem with his conclusions seems to be grounded in Kantian skepticism which is really what anarchocapitalism is based on to begin with.

Ancap starts or is based on the premise on the denial of objective reality. A case in point is an anarchocapitalist's claim that all governments are evil and anyone who works for, takes money from them or votes in their elections is participating in an illegitimate system and participating in evil in and of itself.

By taking the method ancaps point out as their alternative if taken to its logical conclusions it becomes no different than the Marxist point of view about property overall which is that that a person's mind (in this case ideas) is a part of the collective, the property of one is the property of all and cannot be individual owned or used.

Under ancap there would be private, voluntary institutions erected to preserve and protect a person's ideas. This sounds good in theory but falls flat on its face since, under the ancap method of IP protection (if any) there would be little redress to halt a hacker from hacking into an IP company or institution's computer to steal ideas and the hacker to use them himself.

In terms of the system the U.S. has that is presently in place to protect IP I think Mr. Kinsella should use the criticisms as a means of influencing IP policy so it can change from within.

Edited December 1, 2010 by Mike Renzulli

[George H. Smith]

Likewise one's reputation. A reputation comes at the expense of hard work, not only one's own effort at integrity, but also one's advertising and self-marketing. If one wants to speak of scarcity (I would rather speak of the right to enjoy one's own moral investment) then what is more scarce than a hard won reputation? If we look at a real life example of libel, what could be more scarce than the reputation Rush Limbaugh has earned as America's number one broadcast personality, and what could be more rare that the ability to buy an NFL franchise?

Reputation is essentially what other people think of you. If I impugn your reputation, whether fairly or unfairly, I might change those opinions. But you have no property rights in the opinions of other people. You have no right to insist that other people think good things about you, or to use coercion against me if I influence their opinions.

Ghs

[George H. Smith]

Excellent posts by Ted critiquing Attorney Kinsella's point of view regarding intellectual property (IP).

I would like to add that while he asks what system Objectivists and supporters of IP would enact since he uses his critique of the U.S.'s IP system as the standard to point out that it doesn't work, that (if he has not done so already) the onus is on Kinsella to draw up or outline a method or system (if you will) of how to protect intellectual property.

I might be opening a can of worms but I will take a stab at this none the less.

I think Kinsella's view (anarchist libertarianism) is indicative of a much large problem with his overall philosophy. The main problem with his conclusions seems to be grounded in Kantian skepticism which is really what anarchocapitalism is based on to begin with.

Ancap starts or is based on the premise on the denial of objective reality.

Oh, please....

The problem of intellectual property has long been a controversial issue among libertarian types. For example, the minarchist Thomas Jefferson opposed IP, while the anarchist Lysander Spooner vigorously defended it.

Under ancap there would be private, voluntary institutions erected to preserve and protect a person's ideas. This sounds good in theory but falls flat on its face since, under the ancap method of IP protection (if any) there would be little redress to halt a hacker from hacking into an IP company or institution's computer to steal ideas and the hacker to use them himself.

Why do you assume that opponents of IP would also oppose laws against computer hacking? These are two different issues.

Ghs

[nskinsella]

Excellent posts by Ted critiquing Attorney Kinsella's point of view regarding intellectual property (IP).

I would like to add that while he asks what system Objectivists and supporters of IP would enact since he uses his critique of the U.S.'s IP system as the standard to point out that it doesn't work, that (if he has not done so already) the onus is on Kinsella to draw up or outline a method or system (if you will) of how to protect intellectual property.

Of course it is not. Is the burden on you to outline a method to provide for socialized medical or social security or education services in the absence of the state systems providing this now? Of course not. but the answer is easy: just protect private property.

In terms of the system the U.S. has that is presently in place to protect IP I think Mr. Kinsella should use the criticisms as a means of influencing IP policy so it can change from within.

I'm happy to have improvement of the system, just as I would be happy to have reduced taxes. But abolition of both is of course preferable and the obvious end for libertarians.

[nskinsella]

Excellent posts by Ted critiquing Attorney Kinsella's point of view regarding intellectual property (IP).

I would like to add that while he asks what system Objectivists and supporters of IP would enact since he uses his critique of the U.S.'s IP system as the standard to point out that it doesn't work, that (if he has not done so already) the onus is on Kinsella to draw up or outline a method or system (if you will) of how to protect intellectual property.

I might be opening a can of worms but I will take a stab at this none the less.

I think Kinsella's view (anarchist libertarianism) is indicative of a much large problem with his overall philosophy. The main problem with his conclusions seems to be grounded in Kantian skepticism which is really what anarchocapitalism is based on to begin with.

Ancap starts or is based on the premise on the denial of objective reality. A case in point is an anarchocapitalist's claim that all governments are evil and anyone who works for, takes money from them or votes in their elections is participating in an illegitimate system and participating in evil in and of itself.

By taking the method ancaps point out as their alternative if taken to its logical conclusions it becomes no different than the Marxist point of view about property overall which is that that a person's mind (in this case ideas) is a part of the collective, the property of one is the property of all and cannot be individual owned or used.

Under ancap there would be private, voluntary institutions erected to preserve and protect a person's ideas. This sounds good in theory but falls flat on its face since, under the ancap method of IP protection (if any) there would be little redress to halt a hacker from hacking into an IP company or institution's computer to steal ideas and the hacker to use them himself.

In terms of the system the U.S. has that is presently in place to protect IP I think Mr. Kinsella should use the criticisms as a means of influencing IP policy so it can change from within.

Computer hacking, spam attacks, etc. (and even bans on stalking etc.) can be justified based on property rights in scarce resources and the libertarian non-aggression principle. Easy. Nothing to do with IP. see my posts Stalking as a Form of Aggression; Why Spam is Trespass.

[kiaer.ts]

Likewise one's reputation. A reputation comes at the expense of hard work, not only one's own effort at integrity, but also one's advertising and self-marketing. If one wants to speak of scarcity (I would rather speak of the right to enjoy one's own moral investment) then what is more scarce than a hard won reputation? If we look at a real life example of libel, what could be more scarce than the reputation Rush Limbaugh has earned as America's number one broadcast personality, and what could be more rare that the ability to buy an NFL franchise?

Reputation is essentially what other people think of you. If I impugn your reputation, whether fairly or unfairly, I might change those opinions. But you have no property rights in the opinions of other people. You have no right to insist that other people think good things about you, or to use coercion against me if I influence their opinions.

Ghs

Not "fair or unfair" True or untrue. There is no right to make false defamatory statements against a person, such as accusations of theft or rape. When false accusations result in real harm suit for damages is entirely appropriate. Or are we arguing that there is a first amendment right to say whatever we like?

Of course, if like George H. Smith, you have been arrested on charges of s********g a **************** in in Malibu, you might disagree with me.

That's only my opinion.

[nskinsella]

Likewise one's reputation. A reputation comes at the expense of hard work, not only one's own effort at integrity, but also one's advertising and self-marketing. If one wants to speak of scarcity (I would rather speak of the right to enjoy one's own moral investment) then what is more scarce than a hard won reputation? If we look at a real life example of libel, what could be more scarce than the reputation Rush Limbaugh has earned as America's number one broadcast personality, and what could be more rare that the ability to buy an NFL franchise?

Reputation is essentially what other people think of you. If I impugn your reputation, whether fairly or unfairly, I might change those opinions. But you have no property rights in the opinions of other people. You have no right to insist that other people think good things about you, or to use coercion against me if I influence their opinions.

Ghs

Correct. it's astonishing Objectivists can't see this. Taht's why I think they resort to an implicit quasi-Marxian labor theory of value, and hoary/crankish economic notions that imply you have property rights in value instead of in the physical integrity of your property; it's implicit in their talk of man as "creating values" as if values are some independent things that someone owns. Although when pressed to think hard about this issue Rand clearly said we do not create anything metaphysically we only rearrange existing things. When you rearrange something you can transform it, make it more valuable to you or to a customer. So creativity and labor can generate wealth, but do not create new things. Creation is not an independent source of property rights. This is the fundamental Objectivist mistake. Creation and labor play a role in homesteading (acquing property rights), and in transforming alreayd-owned things into more-valuable configurations. But creation is neither necessary nor sufficient for ownership or property rights. The mistake is in being too lose with language, over-relying on explanatory metaphors and analogies. Yes, human intellect, labor, creativity, innovation, etc., area all important; it guides human action (including the action of acquiring property or transforming it) and plays a role in and contributes to the creation of wealth--but the creation of wealth is just shorthand for transforming already-owned things into more useful arrangements. Having a right to your body gives you a right to act--to labor--which gives you a practical ability to make money, to make profit, whatever. So it's natural to start thinking of labor as leading to reward; of creativity as creating wealth--and then since we identify our owned things with wealth then we slip into the fallacious idea that creation is a source of property rights, that if you labor you are *entitled* to a reward. These are all false. Yes, if you could really create a new, previously-unowned thing, then you as creator have a natural connection to it so would naturally be its owner. But we don't create new things: we rearrange already-owned things. These things are already owned, either by the creator, or by someone else. If it's owned by the creator he owns the rearranged version of it; if it's owned by someone else, say, by an employer, then it's owned by him, not the creator. There is no property right in the value of things since value is just how it's appraised by others; this is similar to why there is no property right in reputation, which is what others think of you. You don't own value, value is not a thing, and you don't own others' minds, bodies, brains, or appraisements of you either.

[nskinsella]

Likewise one's reputation. A reputation comes at the expense of hard work, not only one's own effort at integrity, but also one's advertising and self-marketing. If one wants to speak of scarcity (I would rather speak of the right to enjoy one's own moral investment) then what is more scarce than a hard won reputation? If we look at a real life example of libel, what could be more scarce than the reputation Rush Limbaugh has earned as America's number one broadcast personality, and what could be more rare that the ability to buy an NFL franchise?

Reputation is essentially what other people think of you. If I impugn your reputation, whether fairly or unfairly, I might change those opinions. But you have no property rights in the opinions of other people. You have no right to insist that other people think good things about you, or to use coercion against me if I influence their opinions.

Ghs

Not "fair or unfair" True or untrue. There is no right to make false defamatory statements against a person, such as accusations of theft or rape. When false accusations result in real harm suit for damages is entirely appropriate.

there is a bit of an equivocation here. Libertarians do not oppose "causing harm." If I "steal" your girlfriend, or "steal" your customers by competing with you, I "harm" you--but this is permissible. The only "harm" that is outlawable is aggression--as Rand said, initiating force.

The reason speech is usually free is that it is usually not aggression. It may cause harm but that's okay--so long as it does not cause aggression. But of course speech can cause aggression in some cases--as I outline in Causation and Aggression (pp. 105-), say in the case of a firing squad captain saying Ready, Aim, FIRE! or a mob boss ordering a hit, or a President ordering bombs dropped on the Japanese. But the point is the speech is part of aggression if it is part of an act of aggression. In the case you gave, the lies only persuade a third party to think poorly of you. But he has a right to think poorly of you, even if it's false. He has a right to take the lies of others as the basis for his position. He is not committing aggression against you by lowering his opinion of you or by using unreliable sources to form his view. Therefore a lie only persuades someone to do a non-aggressive act, something they hvae a right to do. Thus, you are "harmed," but your rights are not violated; you have no aggression committed against you. The trick you guys rely on to get around this obvious point is to view "reputation" as "created thign" that "has value" that you "own" because you "created" it; which is all metaphysical nonsense, of course.

[Michael Stuart Kelly]

Hi, Steve.

Glad to see you.

Without going into this discussing as it is developing and dealing with all the same arguments I have read over the years on both sides, I want to throw something else in the mix. (A monkey-wrench? )

I am going through an excellent book right now called All Marketers are Liars by Seth Godin. He has made several astute observations on the human condition.

One of the ones I found most interesting concerns need versus want. In our current society, there is very little we buy from need anymore. When we actually do need something, there is such a huge variety instantly available that you can literally choose by whim. To quote him:

If consumers have everything they need, there's nothing to left to buy except what they want. And the reason they buy stuff they want is because of the way it makes them feel.

I'm not detouring from property rights, intellectual or otherwise. I'm just focusing on one aspect of them--selling. Notice that the purpose of selling property is not only to provide goods and services that people need, but also to satisfy their emotions--to make them feel one way or another.

How much of this feeling is part of the property value? In a major brand, it counts for most of the company when you get right down to it. If you destroy the frame that provides that feeling, you destroy the value of the property (the product). A good instance is when people discover that a rare painting was actually a forgery. The price immediately drops from millions to practically nothing. People don't even want to go see it anymore. The painting is the same, but the story of authenticity was destroyed.

Now here's the thing. In marketing, stories are the strongest tool in the marketer's toolkit, but they only work when a person is buying from desire, not need.

A case in point is food. If you are hungry, and it's real bad, and you have only two or three options available to buy, you will usually go with the food that you deem will satisfy your hunger, even if you are not crazy about it. If you are just going about your normal day and you want to buy some food, you will usually go with the product you find palatable and that comes with the best story. Even if you choose a greasy spoon diner, it will be because there is some special story involved that is legend or that nobody else knows about. You will choose what makes you feel good.

Stories make you feel good, especially if they make you feel special for buying or owning or using or even knowing something.

Godin claims that a story often becomes an actual a part of a product, especially when it is the main source that provides that feeling consumers get from the product.

I have done a lot of thinking on property rights (as you may remember from our first communications a few years ago). I know I need to do a hell of a lot more reading, but I am coming to the conclusion that, ownership-wise, the frame (or limited environment or context or whatever you want to call it) is just as important as the thing in establishing property value. It certainly is market-wise. And I'm thinking that maybe it's not just property value. Maybe it's within the the essence of the concept of property itself.

A car takes you somewhere. A Porsche gives you a special experience as you go--if you buy the story with it. That experience costs a lot of money to own, too.

Does that make that experience property? It certainly costs enough.

This is a longer discussion that I hope to develop into something good and valuable one day.

I hope nobody steals it...

(Just joking... )

Michael

[nskinsella]

Hi, Steve.

Glad to see you.

Thanks. I assume you mean me--I'm Stephan (or Steph if you want) but not Steven or Steve. Different names.

Without going into this discussing as it is developing and dealing with all the same arguments I have read over the years on both sides, I want to throw something else in the mix. (A monkey-wrench? )

I am going through an excellent book right now called All Marketers are Liars by Seth Godin. He has made several astute observations on the human condition.

One of the ones I found most interesting concerns need versus want. In our current society, there is very little we buy from need anymore. When we actually do need something, there is such a huge variety instantly available that you can literally choose by whim.

I guess you can say this informally but from the point of view of economics, you cannot say this. All "needs", values, desires, are subjective, and demonstrated in action. But in a colloquial way, non-rigorous, I'll go with this--the problem is such informal, nonrigorous, off the cuff assessments can only be taken so far b/c of their loosey-goosey nature.

To quote him:

If consumers have everything they need, there's nothing to left to buy except what they want. And the reason they buy stuff they want is because of the way it makes them feel.

I'm not detouring from property rights, intellectual or otherwise. I'm just focusing on one aspect of them--selling. Notice that the purpose of selling property is not only to provide goods and services that people need, but also to satisfy their emotions--to make them feel one way or another.

I'd say that's the purpose of buying. the purpose of selling is to get money from the buyer. To get the money you have to satisfy what their felt needs. I guess you can put that into emotional terms.

How much of this feeling is part of the property value? In a major brand, it counts for most of the company when you get right down to it. If you destroy the frame that provides that feeling, you destroy the value of the property (the product). A good instance is when people discover that a rare painting was actually a forgery. The price immediately drops from millions to practically nothing. People don't even want to go see it anymore. The painting is the same, but the story of authenticity was destroyed.

But it's not the same. It's not from-the-hand-of-the-artist.

Now here's the thing. In marketing, stories are the strongest tool in the marketer's toolkit, but they only work when a person is buying from desire, not need.

A case in point is food. If you are hungry, and it's real bad, and you have only two or three options available to buy, you will usually go with the food that you deem will satisfy your hunger, even if you are not crazy about it. If you are just going about your normal day and you want to buy some food, you will usually go with the product you find palatable and that comes with the best story. Even if you choose a greasy spoon diner, it will be because there is some special story involved that is legend or that nobody else knows about. You will choose what makes you feel good.

Stories make you feel good, especially if they make you feel special for buying or owning or using or even knowing something.

Agreed so far--in a casual, informal way.

Godin claims that a story often becomes an actual a part of a product, especially when it is the main source that provides that feeling consumers get from the product.

I have done a lot of thinking on property rights (as you may remember from our first communications a few years ago). I know I need to do a hell of a lot more reading, but I am coming to the conclusion that, ownership-wise, the frame (or limited environment or context or whatever you want to call it) is just as important as the thing in establishing property value. It certainly is market-wise. And I'm thinking that maybe it's not just property value. Maybe it's within the the essence of the concept of property itself.

I think all this is fine--but it's just a fancy way of saying that part of the value of something--part of the reason an actor/consumer values a product--is the packaging. I agree, and that's fine. It's a marketing-psychology observation. fine.

A car takes you somewhere. A Porsche gives you a special experience as you go--if you buy the story with it. That experience costs a lot of money to own, too.

Does that make that experience property? It certainly costs enough.

Well no, it doesn't, in my view. I don't see an argument for this. Property is the (legitimate, legal) right to control a given scarce resource. Not sure how you can own an experience or even what this means. The purpose of property rules is to permit contestable things to be used in a peaceful way. It seems like almost nonsense (no offense) to talk about conflict over "experiences" necessitating "property" rules in experience. This is the type of ambiguous, metaphysical, almost-mystical stuff that Objectivism (rightly) scoffs at in other contexts.

[George H. Smith]

Likewise one's reputation. A reputation comes at the expense of hard work, not only one's own effort at integrity, but also one's advertising and self-marketing. If one wants to speak of scarcity (I would rather speak of the right to enjoy one's own moral investment) then what is more scarce than a hard won reputation? If we look at a real life example of libel, what could be more scarce than the reputation Rush Limbaugh has earned as America's number one broadcast personality, and what could be more rare that the ability to buy an NFL franchise?

Reputation is essentially what other people think of you. If I impugn your reputation, whether fairly or unfairly, I might change those opinions. But you have no property rights in the opinions of other people. You have no right to insist that other people think good things about you, or to use coercion against me if I influence their opinions.

Ghs

Not "fair or unfair" True or untrue. There is no right to make false defamatory statements against a person, such as accusations of theft or rape. When false accusations result in real harm suit for damages is entirely appropriate. Or are we arguing that there is a first amendment right to say whatever we like?

Of course, if like George H. Smith, you have been arrested on charges of sodomizing a two year old boy in Malibu, you might disagree with me.

That's only my opinion.

So do you think that I should have the right to bring legal action against you for your false remark about my having been arrested? If not, why not? What if someone, who didn't bother to check your link, took it seriously, subsequently repeated the allegation, and thereby caused me "real harm"?

False defamatory statements can include many allegations other than criminal allegations, and these can also result in "real harm." What you appear to be saying is that it should be illegal to tell lies about others, if such lies cause some "real harm." If this isn't your position, then where do you draw the line? Suppose I write a private email to your spouse in which I falsely accuse you of having an affair. Although this is not a criminal allegation, my lie could cause you "real harm" by messing up your relationship. Should this be illegal? What if the "real harm" consists of mental distress? Should that be legally actionable?

Yes, I do believe that the right of free speech includes to the right to tell lies about other people. But I would distinguish between general lies and lies told, say, to the police in an effort to get me arrested. Filing a false criminal charge involves far more than telling a lie; it makes the liar complicit in an act of aggression.

The age of the Internet has taught intelligent people a valuable lesson, namely, not to take personal attacks very seriously.

Ghs

[sjw]

At the very least the Objectivist opponents of IP need to lay down what system they favor. Rand didnt do so. Her chapter on patent and copyright contains errors and misconceptions about the current way the law works, and is a weird mixture of utilitarian considerations with alleged principle. We can cite hundreds of bad aspects of modern IP law and most Objectivists will agree with those; they say Oh Im' not in favor of THAT. What are you in favor of? Well, you say, you are not patent lawyers so how can you know. Yet you object to the abolition of modern patent and copyright; you agree with the criticisms of it; you say you don't favor it; you won't say what you do favor; yet you are against abolishing the current system. Very difficult to pin you down. In my view it is incumbent on you to agree with abolition of the CURRENT system given that you agree with our criticism of so many of its abuses and outrages and unjust aspects, and then, if you want to replace it with some new IP system that is just, tell us the specifications of it. Until you do this I odn't see how you can object to patent and copyright abolition so long as you agree that they have so many unjust aspects. Adn you cant just say well tweak it and get rid of the unjust parts--there are so many, once you do this there is nothing left but a rickety husk of statutory law, not a proper coherent legal framework.

Good luck with that. When pressed, Objectivists either prance about not understanding the issue while hurling insults, or claim "I'm not the expert" (but supporting patents in spite of their ignorance), or the better ones actually recognize that there's a problem there (often creative engineers).

With regard to patents, the fundamental issue is this. A second inventor inadvertently reinvents something. Then the first inventor points a finger at him, and the State begins to attack the second inventor (ordering him to court on pain of death or imprisonment). To the uninitiated honest person, this looks like a crime against the second inventor, it is a prima facie attack on him. Therefore, the burden of proof lies squarely on the first inventor and any of his defenders (Objectivists) to prove that the second inventor actually attacked, in some manner, the first inventor. Without such proof (and clearly, Rand's spiel in CUI is no proof), the rational man must conclude that a crime is taking place against the second inventor, and that the Objectivist is party to it.

Shayne

[Mike Renzulli]

I am sure in George Smith and every other ancap libertarian's society there would be rules against such activity.

However, hypothetically speaking, there would be little redress against a member of Marxist commune whose community would do their utmost to protect a member of their collective from such an activity since under Marxism no one would be allowed to keep the fruits of their labor and actions a libertarian society would deem as theft would not be deemed immoral in a Marxist one.

Hence, in a society without government a Marxist commune would, essentially, have license to endorse the theft of another's property even outside their realm of influence and control.

This would also include a not only a Marxist stealing IP but also a computer hacker or thief whose line of work is theft for profit and who has the latest technology and resources at their disposal (up to and including accomplices) to avoid capture and incarceration.

Thus the fact that activities deemed illegal today (i.e. theft, fraud, etc.) would not be illegal in a state/government-less society makes the creation and usage of government a necessity if not by need certainly by default.

The fact that hefty legal penalties and police agencies to enforce such statutes exist is reason enough for people to think twice about doing them.

Why do you assume that opponents of IP would also oppose laws against computer hacking? These are two different issues.

Ghs

Edited December 1, 2010 by Mike Renzulli

[sjw]

Regarding the subject of this thread, I have my own criticism of Kinsella's views (e.g. http://www.objectivistliving.com/forums/index.php?showtopic=9343&view=findpost&p=115831 ) but he has by far the more principled and rational view on IP. In my opinion no Objectivist has any room to criticize his view on any grounds, they simply have too many intellectual skeletons in the closet.

I don't agree with Kinsella regarding scarcity as a foundation of anything, but I find it a bit laughable to see an Objectivist criticizing him about it. The Objectivist should worry more about their lack of a proper foundation of rights than about his foundation.

Shayne

[Mike Renzulli]

Okay fine then how would you propose to do so? I have not seen anything from opponents of IP such as yourself outlining specific reforms or methods in which to do so.

If you do have ideas, I would be interested in reading about them. What would help is one actually used and works better than in place now.

Is the burden on you to outline a method to provide for socialized medical or social security or education services in the absence of the state systems providing this now? Of course not. but the answer is easy: just protect private property.

I am not against abolition if it is in terms of certain policies and procedures. However, I am not sold on scraping it and starting over again. Like I said if you have any systems in place that are used in real life that work better I am all ears.

I'm happy to have improvement of the system, just as I would be happy to have reduced taxes. But abolition of both is of course preferable and the obvious end for libertarians.

[nskinsella]

Okay fine then how would you propose to do so? I have not seen anything from opponents of IP such as yourself outlining specific reforms or methods in which to do so.

If you do have ideas, I would be interested in reading about them. What would help is one actually used and works better than in place now.

My idea is to identify state laws that are incompatible with individual rights, and to advocate for their repeal. among these are the draft, all forms of taxation, eminent domain, public education, the drug war, and IP.

[Mike Renzulli]

Well then I guess then your definition of property rights needs a little work since resources are not scarce. They are in controlled economies where governments interfere but in terms of free economies (like the U.S. and other western countries) resources are unlimited and can best be used since people are, for the most part, able to use their minds freely to come up with alternatives in order to not waste other resources (such as those found in nature).

As long as human beings can use their capacity to think, resource scarity is not a problem.

Computer hacking, spam attacks, etc. (and even bans on stalking etc.) can be justified based on property rights in scarce resources and the libertarian non-aggression principle. Easy. Nothing to do with IP. see my posts Stalking as a Form of Aggression; Why Spam is Trespass.

[BaalChatzaf]

Well then I guess then your definition of property rights needs a little work since resources are not scarce. They are in controlled economies where governments interfere but in terms of free economies (like the U.S. and other western countries) resources are unlimited and can best be used since people are, for the most part, able to use their minds freely to come up with alternatives in order to not waste other resources (such as those found in nature).

As long as human beings can use their capacity to think, resource scarity is not a problem.

There are several kinds of scarcity. One is absolute or natural scarcity. Water on Mars or the Moon would fall into that category. An object simply does not occur often or in abundance in nature. Then there is artificial scarcity that is sometimes maintained by force. People are prevented by force or threat of force from getting at the resource in question. For example, in India under the British Raj, people were forbidden by law and prevented by force from extracting salt from evaporated ocean water. This force people to buy salt at artificially inflated prices from government owned or sponsored sources.

Ba'al Chatzaf