Negative Rights, Positive Rights, and Intellectual Property

Eugene Volokh disagrees with Stephen Bainbridge's TCS essay on the distinction between positive and negative rights, because as he sees it, "the terms usually refer to the right to be let alone by the government (negative rights) and the entitlement to benefits provided by the government (positive rights)", and thus, private property and freedom of contract, which are the consequence of negative rights, are themselves positive rights, because they have to be enforced by the government.

This framework, I believe, is inaccurate. Rights theory developed as a part of ethics - the "oughts" of individual interaction. The negative right of an individual to be left alone results in obligations not just to the government, but to all other individuals. We all recognize the right not to be robbed by the petty thief, not to be assaulted by the common criminal, and not to be defrauded by our business partners, all of whom are not necessarily part of the government.

Whereas ethics gives guidelines for the proper action among all individuals, politics describes how the ramifications of ethics are best dealt with. Thus, the Founders wrote,

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...

They recognized that rights existed before governments, and the purpose of governments is simply to secure those rights. Governments are political implementations enacted to defend already existing negative rights. Ethics comes before politics.

This blurring of ethics and politics leads Eugene to what I believe is another false conclusion-- that intellectual property rights fall within the same "negative rights result in positive political obligations" paradigm. Suppose I take some gears, levers, and a metal box, and arrange them into a "blog-making machine". My claim to intellectual property rights on that machine does not forbid the use of similar gears, levers, and metal boxes by other people, unless they arrange those objects in the same specific pattern I used to make the "blog-making machine". They still have negative rights to own and use those objects as their own property; however, they cannot arrange them in the specific pattern I created first.

The ethical conclusion from this is clear: intellectual property rights result in positive obligations of individuals not to use their own property in all the ways they see fit, even if they are not infringing on anyone else's negative rights. Ethically, intellectual property rights are positive rights.

Eugene's blurring of the line between ethics and politics results in a false ethical defense of intellectual property rights.

However, Eugene is correct about one thing. Most people are uncomfortable taking the distinction between negative rights and positive rights to its natural conclusions, and asking whether any monopolistic organization created to secure those negative rights can exist without also systematically violating negative rights.



Update: I should not have brought IP into this post; it simply clouds the issue. Micha says it better above. Once one set of positive rights is embraced, it's hard to be consistent and not also support others, and I saw Eugene's support of IP rights as one example of that. If enforcement of property rights and contracts is itself a positive right, then surely life-saving medical care is also.

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I think your little tidbit

I think your little tidbit on intellectual property is correct, but it only describes one facet of IP: namely, patents. Trademarks are a different part of intellectual property. If you named your blog-making machine the Wilde Blogerator, trademark laws say someone else can't sell a blog-making machine and call it the Wilde Blogerator. This makes sense, of course, because the other guy would be saying that his blog-making machine is identical to yours and made by you. That's fraud.

- Josh

It also applies to

It also applies to copyrights.

On the topic of trademarks, who has the right to sue for fraud in the scenario you described, if someone were to label their own machine the "Wilde Blogerator"?

who has the right to sue for

who has the right to sue for fraud in the scenario you described

Doesn't intent make the distinction between whether someone is committing fraud?

If you both happened to choose the same name ignorant of the other's choice, this doesn't seem fraudulent. But if someone intentionally tried to represent someone else's work as their own, that would be fraud.

Of course, having a common registry of unique trademarks reduces the cost of loosing your ignorance. This is probably distorted to imply that "if the cost of being informed is so low, the intent of choosing the same name must have been malicious."

We can also compare this to DNS registries. Are my rights curtailed because I can no longer create a website called "catallarchy.net"? Is the government force simply very subtly enacted through remote databases? Or does the fact that the registries have to work on a first-come, first-served basis remove all use of force?

On the topic of trademarks,

On the topic of trademarks, who has the right to sue for fraud in the scenario you described, if someone were to label their own machine the “Wilde Blogerator”?

The purchaser definitely would, and you would probably also have the right to sue for using your name to commit fraud.

- Josh

If you both happened to

If you both happened to choose the same name ignorant of the other?s choice, this doesn?t seem fraudulent. But if someone intentionally tried to represent someone else?s work as their own, that would be fraud.

I believe this is the basic difference between copyrights and patents, but I could be wrong. Patents create obligations upon patterns even if they are unintentionally copied.

Still, I don't see how intent matters in the framework of negative rights. Arranging one's own property into a specific pattern that someone else has intellectual property rights on, whether intentionally or unintentionally, should be allowed. After all, it's not infringing on anyone else's negative rights. Why should copying a trademark be considered defrauding the original creator of the trademark?

We can also compare this to DNS registries. Are my rights curtailed because I can no longer create a website called ?catallarchy.net?? Is the government force simply very subtly enacted through remote databases? Or does the fact that the registries have to work on a first-come, first-served basis remove all use of force?

I don't know enough about how this works to comment.

The purchaser definitely

The purchaser definitely would, and you would probably also have the right to sue for using your name to commit fraud.

I agree that the consumer would have the right to sue, but why would I be able to sue?

He is imply using his property and arranging it in a way similar to mine. Have my negative rights been violated?

bq. _He is simply using his

bq. _He is simply using his property and arranging it in a way similar to mine. Have my negative rights been violated?_

Only if he knows about your product and calls his product by the same name as you called yours, which is pretty strong evidence that he is attempting to defraud others into thinking that his device is identical to yours, and perhaps even endorsed by you, when in fact it is not. That's where the fraud comes in.

One way in which this might violate your negative rights would be if this other person made a shoddy product. People who were defrauded into thinking it was your product will have a negative perception of your product. Therefore, his fraud has the effect of slandering your good name.

Only if he knows about your

Only if he knows about your product and calls his product by the same name as you called yours, which is pretty strong evidence that he is attempting to defraud others into thinking that his device is identical to yours, and perhaps even endorsed by you, when in fact it is not. That?s where the fraud comes in.

One way in which this might violate your negative rights would be if this other person made a shoddy product. People who were defrauded into thinking it was your product will have a negative perception of your product. Therefore, his fraud has the effect of slandering your good name.

I agree that the people who bought his product were defrauded. Yet, I still don't see how my negative property rights were violated. Your suggestion of slander might be the ticket, though.

I still don't have a clear

I still don't have a clear understanding of why fraud is always bundled with physical force. And when fraud expands to slander, the waters get even murkier.

Fraud, like force, is a form

Fraud, like force, is a form of coercion. If Alice uses force against Bob, she directly causes him to act against his will, by threatening to harm him if he does not alter his behavior. When Alice defrauds Bob, she indirectly causes him to act against his will, in that his will is determined by the information he has at the time he acts. When Alice deliberately deceives Bob in order to influence his behavior, she has distorted his will.

Some might notice that by this definition, some behaviors that are rampant in human relationships, such as emotional manipulation, are coercive.

Perhaps I should not have used the word slander, since it's not precisely what I mean. I really think it's just simple fraud--knowingly claiming someone said/did something that they did not say/do is fraud. Likewise, claiming you said/did something that was actually said/done by another is also fraud.

Qiwi, Murder--but not the

Qiwi,

Murder--but not the threat of murder--does not cause someone to act against his will. I can see the similarity between threat of force and fraud, but not the use of force itself.

Murder?but not the threat of

Murder?but not the threat of murder?does not cause someone to act against his will.

Murder prevents someone from pursuing their will.

I can see the similarity between threat of force and fraud, but not the use of force itself.

Both force and fraud, or the threat thereof, prevent people from pursuing their wills.

Jonathan, Okay, if the

Jonathan,

Okay, if the common denominator is actions which prevent people from pursuing their wills, this includes many other things to which most libertarians would object. Opening my gas station across the street from yours and thereby putting your gas station out of business prevents you from pursuing your will. Marrying Suzy instead of Carol even though Carol wants to marry me prevents Carol from pursuing her will. Etc.

Of course, these can be distinguished as positive rights vs. negative rights, but the question we are trying to answer is why people are entitled to a negative right protecting them against fraud in the first place.

Micha, You've given examples

Micha,

You've given examples in which the behavior of someone else has made it harder or impossible for you to realize your goals, but it hasn't prevented you from pursuing them as the use of force or fraud would have. You can still try to run a successful gas station at the old location, and Carol can try to dismantle your marriage with Suzy, but you don't have a right to be a successful entrepreneur, and Carol doesn't have a right to be your wife. It's not the realization of your goal or anything that helps you along to which you have a right. Your right is to the pursuit of your goals.

Also, since we are human, we'll have to pursue our goals via the exercise of our rational faculties, which both force and fraud prevent.

Is not the rational basis of

Is not the rational basis of intellectual property the recognition that man produces things by reason? If you use someone else's design for a device to sell replicas to others as your own, your action is not essentially different from forcing him to make the replicas himself and sell them for you, because the design is as important as the assembly of the parts, if not more so. In a way, you'd be forcing him to act without his consent. You have to pay the inventer as you would pay the factory workers. Using the labor of either party without their consent is force.

Is not the rational basis of

Is not the rational basis of intellectual property the recognition that man produces things by reason?

If so, I don't find that basis very convincing. Is the rational basis for property rights (not just IP rights) that man produces things by reason?

If you use someone else?s design for a device to sell replicas to others as your own, your action is not essentially different from forcing him to make the replicas himself and sell them for you, because the design is as important as the assembly of the parts, if not more so. In a way, you?d be forcing him to act without his consent.

Really? So if you make a copy of the "Wilde Blogerator" in your own house without me even knowing about it, somehow you are 'forcing me to act without my consent'? I doubt it. I'm busy watching TV and eating my dinner. It'll effect me less than a butterfly flapping its wings in China.

If so, I don?t find that

If so, I don?t find that basis very convincing. Is the rational basis for property rights (not just IP rights) that man produces things by reason?

I think it is. We have the ability to deal with each other by reason and persuasion, where as animals can only deal with each other through force and instinct. Reason is why humans have rights and animals don't. Reason is the basis for all rights, not just intellectrual property and not even just all property.

Really? So if you make a copy of the ?Wilde Blogerator? in your own house without me even knowing about it, somehow you are ?forcing me to act without my consent?? I doubt it. I?m busy watching TV and eating my dinner.

You're not too busy to be snide, though. I didn't expect contempt in response to an honest argument.

Anyway, I don't think that being unaware that you're being taken, means that you aren't. That ignorance is essential for a successful fraud, isn't it? The guy is still consuming your work, and not compensating you for it. Also, I think there is an opportunity cost associated with not collecting on someone's bootlegging. If you don't collect, then you don't really lose money, but you could have made it, and my argument is that you would have earned it. In the case of your hypothetical invention, the sum might not be a lot, so yeah, it might be like a distant butterfly, but the point isn't really how much you're owed, but if you're owed something at all, right?

After this reasoning, I don't know why we would draw the line between making a living selling unlicensed replicas, and just making one for your own use, which I never thought was immoral. If you don't still think that my entire premise is laughable, then maybe you could help me figure it out.

Also, intellectual property could be the thinking man's fireworks, and noone has said anything about public goods in this thread.

I think it is. We have the

I think it is. We have the ability to deal with each other by reason and persuasion, where as animals can only deal with each other through force and instinct. Reason is why humans have rights and animals don?t. Reason is the basis for all rights, not just intellectrual property and not even just all property.

The best justification for property rights is not reason, but rather scarcity. Reason aids man pursue his ends, but the fundamental justification for property rights is because we don't live in a world of abundance, and there need to exist rules for control of objects.

Patterns are not scarcity. They are non-rivalrous. My use of a pattern does not hinder your use of a pattern. My use of an idea does not hinder your use of an idea.

You?re not too busy to be snide, though. I didn?t expect contempt in response to an honest argument.

I'm not sure where you get the idea I was being snide. I proposed an example of how your use of your own property into a certain pattern does not in any way 'violate' my consent.

Anyway, I don?t think that being unaware that you?re being taken, means that you aren?t. That ignorance is essential for a successful fraud, isn?t it? The guy is still consuming your work, and not compensating you for it. Also, I think there is an opportunity cost associated with not collecting on someone?s bootlegging. If you don?t collect, then you don?t really lose money, but you could have made it, and my argument is that you would have earned it.

All of this assumes that it is already established that my rights are being violated. My view is that we haven't established that yet.

I think the crux of the matter lies with exactly who is coercing whom. You claim that when someone is arranging their own property into a particular pattern, without doing anything to my property, they are violating my rights. Consider for a moment how that idea goes against everything most libertarians know about property rights.

Further, you claim that that someone, because they are 'violating my rights', should be forcibly prevented from arranging his own property into a specific pattern. Consider again how that idea goes against everything most libertarians know about property rights.

Just who exactly is being coerced when patent and copyrights are enforced?

I?m not sure where you get

I?m not sure where you get the idea I was being snide.

I must have misread, so I apologize.

... the fundamental justification for property rights is because we don?t live in a world of abundance, and there need to exist rules for control of objects.

I agree that if anyone could have anything they wanted with no effort, there would be no need for a concept of ownership. Ideally, you wouldn't have to so much as wish for something to have it. So scarcity creates the need for a concept of ownership, for rules of control, but it doesn't tell you what the rules should be. The ability to reason is the justification for the choice of rules. The only real rule being that you relate by reason and not by force, so that you don't take things from others, and everyone keeps what they discover or create or receive in trade. Obviously, scarce would have been an understated way of describing anything including a "pattern," before I just created it. It doesn't mean that it isn't plentiful now, but I'm the one who made it that way, and if I dreamed up bottomless cup of coffee, every drop of it would still be mine.

All of this assumes that it is already established that my rights are being violated. My view is that we haven?t established that yet.

That wasn't my original justification as I have elaborated above, but a response to your implication that you couldn't be the victim of coercion if you didn't know it. Someone's ignorance isn't evidence that they are not a victim anymore than it is evidence that they are. It was also a response to your suggestion that whatever they're doing doesn't affect you, which it does if you think that creativity is as much labor as is the manual variety. You didn't really respond to my argument that both are necessary for the production of anything otherwise scarce.

I think the crux of the matter lies with exactly who is coercing whom.

I agree this is all that's left to the debate if we agree that the ability to reason is the source of the coercion criterion, and therefore has corresponding implications on its application. We don't yet, do we?

You claim that when someone is arranging their own property into a particular pattern, without doing anything to my property, they are violating my rights.

You're assuming that intellectual property does not exist when you say "my property." Otherwise they are doing something to your property. Just as if they were renting an apartment that you own, but never use and for which you have never found another potential tenant.

I admitted that forcibly preventing someone from arranging his own property is counterintuitive-- not to agree with the use of "everything most libertarians know" as a rational criterion. However, if everything I've said is right, then he's not just rearranging his own property he's rearranging his traditional property and my intellectual property. I'm not going to be the first person to go collecting money from people who completed some do-it-yourself project, but you haven't helped me figure out why it would be wrong.

Also, assuming I'm right up to this point, then the enforcement of patents is taking back stolen property, which is not generally wrong is it? So your last question isn't rhetorical, it's what we're debating.

This is the crux of our

This is the crux of our disagreement:

I admitted that forcibly preventing someone from arranging his own property is counterintuitive? not to agree with the use of ?everything most libertarians know? as a rational criterion. However, if everything I?ve said is right, then he?s not just rearranging his own property he?s rearranging his traditional property and my intellectual property.

So you agree he is rearranging his tangible property. But, you then claim that he's rearranging your intellectual property.

What form does your intellectual property take? Can either of us touch it? Can I run it through my fingers? Can I smell it? Can I shake it to make a sound? Does it have a particular texture?

Clearly the answer is no. That is because what you are calling intellectual property is a pattern, an idea in your head. Patterns are not scarce. They are not rivalrous. They cannot be property. A pattern in your head can also be a pattern in my head. When I arrange my tangible property into a pattern, I don't limit your arranging your tangible property into that same pattern.

If you claim that I cannot arrange my tangible property into a pattern because you arranged your tangible property in that same pattern first, you are violating my negative tangible property rights.

If you claim that I cannot

If you claim that I cannot arrange my tangible property into a pattern because you arranged your tangible property in that same pattern first, you are violating my negative tangible property rights.

I think that this is very convincing. I have to be able to arrange my own property in the way that I want or else it's not really my property, right? So if I accept your argument then I don't feel any dissonance when I think of the guy building his own version of someone else's invention for his own use.

Still, isn't there a limit to the use of your own property in cases not involving intellectual property or claims to it? I can't think it's right to use my gun and my bullets to shoot an innocent man, right? Even though both gun and bullets belong to me, the use of them in that way disposes of someone else's property. This argument is not unique to intellectual property.

Yet, I still don’t see how

Yet, I still don’t see how my negative property rights were violated. Your suggestion of slander might be the ticket, though.

I'm not sure how exactly to frame it in terms of negative rights. However, I can frame it in terms of something called "unjust enrichment" in contract law. The fake Wilde Blogerator maker has used your name and effort without your permission to sell his own product.

In negative rights, I would probably call it a right to decide who and what enjoys the fruits of your labour. The property analogy is common law nuisance, the right to enjoy one's property in reasonable peace and quiet.

However, on the future customer fraud alone you can hang a trademark law. It basically says, "If you make a product and try to pass it off as any of these products or coming from these businesses, you're committing fraud."

- Josh

Still, isn?t there a limit

Still, isn?t there a limit to the use of your own property in cases not involving intellectual property or claims to it? I can?t think it?s right to use my gun and my bullets to shoot an innocent man, right? Even though both gun and bullets belong to me, the use of them in that way disposes of someone else?s property. This argument is not unique to intellectual property.

There is a difference. By using your gun and bullets upon him, you are violating the negative rights (of life and liberty) of the innocent man.

OTOH, by using your property to create a particular pattern that someone else has already created, you are not violating his negative property rights. He is stilly fully capable of creating that same pattern with his own property.