Out with IP, in with ?

"Intellectual property" is an idea still struggling for a concrete legal status on the internet—I know where I stand, and I'm still working on advancing my position. However, I think the deck is stacked against my side because of the name. Intellectual property. That ties it in with the existing idea of property.

Property, the thing that's been around for a long time, is a grand thing. The idea that this belongs to X and that belongs to Y is one of the bases of civilization. "Intellectual property," a relatively new idea, is not quite so great or fundamental. If I own a plot of land or a t-shirt, that means I control its use and not you. Vice versa if it's yours. It's rivalrous, as they say. But if you 'own' a computer file, I can have it too (I can even get it from you) without taking away your use of it. It's non-rivalrous.

This is the fundamental aspect of property: it belongs to someone or some group and not to everyone else. "Intellectual property" is not subject to that restriction, and so shouldn't be subject to the same rules.

The question is, how do we convey the distinction? I suggest a new word or term for what's now called "intellectual property" that doesn't imply that someone's use of it takes away from everyone else's. Unfortunately, I don't have such a term handy. Suggestions?

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Interestingly, some critics

Interestingly, some critics of intellectual property have taken the opposite route by using a term that emphasizes the law's granting of control: "Intellectual Monopoly."

In the real world (that is,

In the real world (that is, where I live), we call this "information."

Intellectual Services.

Intellectual Services.

That's what IP really is, at least the typically copyright/patent-ed type.
Effectively, IP is a legal hack to arrange for payment for the provision of certain types of services, by arranging the "purchase" of some fictitious "product". Really, you don't buy a story, you pay an author to entertain you. Same for musicians, etc. You don't buy any product from a computer programmer, you pay them to make your computer do something you want it to do. You don't really buy a copy of that tax software, you really pay that company to assist you in doing your taxes. These things are all services, not products.

Talking about "Intellectual Property" is discussing a verb in noun terms. It's talking about an action as if it were a thing, a categorical error. In the times when things like stories and art were fairly solidly attatched to physical objects, this hack worked to a degree, but like Newtonian physics , what seems a good approximation in one set of circumstances, fails utterly when applied to more extreme cases.

Mind you, this applies to most, but not all of what is protected by copyright & patent law. Some of he rights enforced through copyright, and most of trademark law are really anti-fraud measures, and really should be thought of as such.

Well, depending on context,

Well, depending on context, it may be best just to say "copyright restrictions" or "patent restrictions."

If you need to tag the phenomenon as a whole, though, I'm keen on "intellectual monopoly," or "intellectual protectionism". If I'm describing the monopolists themselves or the monopoly-pushers, I am especially fond of the phrase "intellectual enclosure movement."

I'm a fan of the terms

I'm a fan of the terms intellectual protectionism and intellectual monopoly, but sometimes a pejorative is not called for. There "innovation policy" is sometimes useful. Without disparaging "intellectual property" innovation policy reminds that the point of IP is (popularly conceived to be anyway) to promote innovation, and is a subject of "policy" not "rights." Unfortunately none of the above works grammatically in every context "intellectual property" does.

Can I just throw a wrench

Can I just throw a wrench into the "non-rivalrous" argument here? Because I don't think it flies, at least not by itself. Below a certain congestion level, roads and highways are nonrivalrous, but I doubt you would argue that this means nobody should be allowed to exclude others from using their private roads. Likewise, my genetic code is nonrivalrous, but would you argue that anyone should be able to take it and clone me without my consent? I'm sympathetic to the idea that current IP law is very far from optimal, but I'm not sympathetic to this argument.

I used to think that "intellectual property" was a misnomer, but now I'm not so sure. Property is based on agreed-upon social conventions* which evolved spontaneously because they were efficient ways of allocating resources and permitting maximum human productivity. I don't see IP as being fundamentally different in that sense -- we should agree to respect property in ideas insofar as this is efficient. (I suppose my view is sorta Friedrich Hayek/David Friedman.)

Which is why I'm skeptical of any blanket denials or approvals of all kinds of "IP" because I think different types of ideas have different incentive structures. The correct question here should be "what rules would be best over the long term for rewarding the effort of research, development and creativity?", and the answer will probably be different for different goods. I'm receptive to the idea of abolishing software patents altogether, I think copyrights are currently too long but should still exist until the death of the creator, and I think Arnold Kling's idea of replacing drug patents with prizes for drug development is worth discussing.

*Yes I am ignoring "natural rights," but would rather not spend the next 48 hours arguing about that. Catch me if you can.

Randall, ...If I own a plot

Randall,

...If I own a plot of land or a t-shirt, that means I control its use and not you. Vice versa if it’s yours. It’s rivalrous, as they say. But if you ‘own’ a computer file, I can have it too (I can even get it from you) without taking away your use of it. It’s non-rivalrous.

Your description is mis-applied. It's not my use of the file that is threatened, but rather its exchange value to me if I want to sell it to others for their own use value of a copy.

Any good with a relatively low marginal cost of production is at risk from new suppliers or from copies made and sold by initial buyers.

Regards, Don

Don: The point (I think) is

Don:

The point (I think) is that there are economic inefficiencies that arise (ignoring ex-ante effects) from restricting the duplication of copyrighted material. For example, if I value a particular musical recording at $10, and it costs $15, then I'm never going to buy it. If I download it off the Internet, the publisher loses no potential revenue, because I wouldn't have bought it anyway. If I don't download it, that's $10 of deadweight loss.

The correct question here

The correct question here should be “what rules would be best over the long term for rewarding the effort of research, development and creativity?", and the answer will probably be different for different goods.

As long as the rules you come up with don't involve violating private property rights, I'm all for them. :beatnik:

Brandon, The point (I think)

Brandon,

The point (I think) is that there are economic inefficiencies that arise (ignoring ex-ante effects) from restricting the duplication of copyrighted material. For example, if I value a particular musical recording at $10, and it costs $15, then I’m never going to buy it. If I download it off the Internet, the publisher loses no potential revenue, because I wouldn’t have bought it anyway. If I don’t download it, that’s $10 of deadweight loss.

But if all the people who value it at $16 and would buy it at $15 instead download it for free, then the only recordings that will be made are those that do not need to produce a profit.

In the particular case you mention, you will likely buy something almost as subjectively valuable, so the loss is not a full $10. Also, all the record stores have to do to price discriminate is to run some 1/3rd off sales to get you to buy, if and only if you can't download it.

Regards, Don

Stefan, But it's the very

Stefan,

But it's the very definition of what constitutes property that's at issue here. If unauthorized distribution of a piece of music (or whatever) constitutes an infringement of property, then there would be prima facie justification for infringing on your property in order to halt your infringements.

Yeah, I was kind of trying

Yeah, I was kind of trying to be ironic, because to me it's clear as crystal what the real property rights are here, and the sending of jack-booted thugs to arrest people using their PCs, which they own, their CD-ROM drives, which they own, and their CDs, which they own, isn't it. :behead:

I think intellectual

I think intellectual property suffices as some kind of tagline for a concept.

The problems come down to a mix of ego and greed. It seems everyone wants to come up with some outpouring of their creative mind that pays them royalties forever. It gets logically pretty fuzzy and socially bad when we start allowing people to claim rights on some new "property" based on them coming up with the "concept" some time ago, without making any effort to actually produce anything based on that concept.

At some point one has to realize that, pushed to its extreme, this ends up being a net sum zero -- if we had to pay for every intellectual aspect of every creation, we would just be shuffling a lot of money around all the time. I also think that intellectual property is WAY overvalued.

I note with cynicism that when a well-known movie director copies a scene from an older work by someone else, it is referred to as "paying homage" to the source, as opposed to plagiarism.

Stefan, Libertarians of all

Stefan,

Libertarians of all people should have an acute awareness of the fact that what seems intuitively obvious isn't necessarily correct -- have you tried explaining comparative advantage to anyone lately? In any case, you're gliding rather blatantly over this little thing called copyright, which rests on an implicit contract between the producer and the purchaser that the purchaser shall refrain from doing certain things with the product they've been sold. We can have reasonable disagreements over how these implicit contracts are defined and what their content should be (I myself favour fairly broad scope for fair use, and I think Creative Commons is a fantastic idea), but to pretend they don't exist is not a tenable position.

I think that this apparent conflict between property and contract is more illusiory than real, because I'm pretty sure property rights are reducible to implicit contracts (cf. Dave Friedman). Which is why I think the term "intellectual property" is not unreasonable.

Don, Your description is

Don,

Your description is mis-applied. It’s not my use of the file that is threatened, but rather its exchange value to me if I want to sell it to others for their own use value of a copy.

Any good with a relatively low marginal cost of production is at risk from new suppliers or from copies made and sold by initial buyers.

Carried out logically, and in a small amount of steps (i.e., something we could realistically worry about if this were a policy), this would allow horse cart makers to prevent cars from being made. Cars reduced the exchange value for horses (as transport) to zero.

Matt,

Agreeing to set aside the rights argument, it's not clear at all that IP (or whatever we're going to call it) is socially optimal at any level of enforcement. It's clear that when I'm farming this plot you can't do the same, and we should work out a system whereby everyone agrees that this one's mine and that one's yours. It's significantly less certain that some company's purchase of legislators is a net social benefit.

It’s significantly less

It’s significantly less certain that some company’s purchase of legislators is a net social benefit.

Whether a company bribes legislators or not is beside the point. What matters is policy, not procedure. The question is whether strong, long-lasting copyrights produce a net social benefit in the long run. If they do, and bribing legislators is what it takes to get them in place, then I see no reason to object to it. I don't have any great reverence for the democratic process, and I doubt you do, either.

because I’m pretty sure

because I’m pretty sure property rights are reducible to implicit contracts

So you're suggesting I don't have a right to photocopy and distribute the copy of "Atlas Shrugged" on my book shelf? As far as I can tell I'm the owner of that book, my pen, and my paper. :sleep:

Randall, The fact that

Randall,

The fact that things are a little less clear-cut with regard to some kinds of IP is no argument against it, though I think in some cases it is quite clear. For example, it takes enormous sunk costs to develop a new drug, so if someone else can reverse-engineer it relatively cheaply and take away all your profits, then drugs will nolonger be profitable and hence undersupplied. This is an obvious commons tragedy which does need solving one way or another, so if you've got a better idea I'm all ears.

I'm not dogmatic about this stuff and am open to arguments, but ignoring the issues presented by IP won't make them any less real. Pointing out the nonrivalrousness of ideas isn't a sufficient argument.

Stefan,

Well in my preferred world, copyrights would expire once the author expired -- obviously contracts are nonbinding if the other party shuffles off the mortal coil -- so neither I nor the late Ayn Rand would have any beef with whatever you do with your copy of Atlas Shrugged. But if it were, say, a copy of The Structure of Liberty, then no, you would not have the right to produce and distribute copies (above and beyond fair use of short excerpts). You'd only be allowed if the copyright holder explicitly waived their copyright or never bothered with one to begin with. Strictly speaking, though you own the book qua bundle of paper and ink, you don't own the book's contents.

How about "intellectual

How about "intellectual creations"

it takes enormous sunk costs

it takes enormous sunk costs to develop a new drug, so if someone else can reverse-engineer it relatively cheaply and take away all your profits, then drugs will nolonger be profitable and hence undersupplied. This is an obvious commons tragedy which does need solving one way or another, so if you’ve got a better idea I’m all ears.

I agree it needs solving, and any method of "solving" it that you come up with is fine with me as long as it doesn't violate private property rights. :smile:

Strictly speaking, though

Strictly speaking, though you own the book qua bundle of paper and ink, you don’t own the book’s contents.

And neither does the author. That's because ideas are non-physical, and hence cannot be owned. My own pen, paper, ink, and brain cells however ARE my own, and so any attempt to claim I somehow don't own them is doomed to fail. I agree it might be morally wrong to copy "The Structure of Liberty" without the author's consent, but libertarian rights are silent on the morality or immorality of disposing of things which I own.

http://www.libertariannation.org/a/f31l1.html

When it comes to

When it comes to monopolistic control of information, I find many of the difficult areas to be not in the traditional areas of patent and copyright law, but in the intersection between competing values of free expression and privacy.

Should, for instance, I be considered to have a "right" to control dissemination of my credit card or bank account numbers? If you discovered what they were, should I have any resourse to stop you from publishing or broadcasting them? In cases of commercial transcations, much of this can be settled by pre-existing contract or warranty, but the issue gets terribly more complicated as third parties and unaffiliated parties come into the picture.

What about my image? One can already do amazing things with PhotoShop, and you'd have to presume those capabilities will only increase exponentially. Do I have a rightful protest against distribution of a photo-realistic image that would appear to portray me sodomizing a chicken? Yes, an argument can be made that it is fraud, but it could also just as easily be labeled "art." Every day on the way to work, I pass a sketch artist who has his take on various celebrities displayed as advertisement for his skills. Clearly, he doesn't have their permission, and I wouldn't think he should. But if the medium he worked in was PhotoShop rather than canvas, why should that have any bearing on what he could produce?

Stefen, Try making an actual

Stefen,

Try making an actual argument instead of assuming what you should be trying to prove.

Try making an actual

Try making an actual argument instead of assuming what you should be trying to prove.

That's actually one of my favorite ad hominems to use; good job! Actually I wasn't trying to make an argument, since I think you're position is obviously incorrect, and Roderick Long has presented the arguments against it better than I could. In libertopia however I'll be sure to hire armed guards to protect my PC should some consequentialists like yourself decide that society will be better off if my PC is confiscated to prevent stealing imaginary property.

I also note you haven't categorically condemned the actions of the Tokyo Prefecture Police in the link I cited; so either you're too lazy to click on it, or else maybe you support the arrest of the programmer in question?

Stefan, Also try learning to

Stefan,

Also try learning to tell the difference between ad hom and a legitimate commentary on your (lack of) argument. And no, I don't support the arrest of the programmer.

Don Lloyd: Your description

Don Lloyd: Your description is mis-applied. It's not my use of the file that is threatened, but rather its exchange value to me if I want to sell it to others for their own use value of a copy.

Where in the hell did you get a legitimate proprietary interest in the "exchange value to you" of any good or service, let alone a computer file? Exchange values are not the property of the seller; they are made by two or more people acting on subjective values in the context of a market. (N.B.: the theory that you own the exchange value of a good or service would justify any and every form of protectionism, not just intellectual protectionism.)

Matt McIntosh: Below a certain congestion level, roads and highways are nonrivalrous, but I doubt you would argue that this means nobody should be allowed to exclude others from using their private roads.

This is a crude and obvious category error. Roads and highways, even when not congested enough that the use by one vehicle excludes the use by another, are still such that an additional vehicle on the road will bring the road closer to the condition in which use by one vehicle excludes use by another. I don't care whether you call this condition "being rivalrous" or "being potentially rivalrous"; in either case it is different in kind from the condition of ideas, which come no closer to being exhausted no matter how many people partake of them, and in either case, this is the difference that libertarians against IP are interested in, not the contingent question of whether in fact right now my use of a particular resource on the margin would exclude someone else from using it on the margin.

Matt McIntosh: Likewise, my genetic code is nonrivalrous, but would you argue that anyone should be able to take it and clone me without my consent?

Of course I would. Jesus. Provided that they have some way of accessing the pattern of your genetic code without violating your rights of self-ownership. If I jab you with a needle against your will in order to get a DNA sample, of course that is assault, but that has nothing in particular to do with "intellectual property." If you sell a vial of your blood no-strings-attached and then I decide to use the genetic information contained therein to produce a clone, what gives you any rights of exclusion at all over the clone that I intend to make?

Matt: In any case, you're gliding rather blatantly over this little thing called copyright, which rests on an implicit contract between the producer and the purchaser that the purchaser shall refrain from doing certain things with the product they've been sold. We can have reasonable disagreements over how these implicit contracts are defined and what their content should be (I myself favour fairly broad scope for fair use, and I think Creative Commons is a fantastic idea), but to pretend they don't exist is not a tenable position.

Of course it's a tenable position. First, because copyright restrictions are enforced on people who cannot plausibly be claimed to be bound by any contract with the copyright holder. (For example, say you buy a copy of my book, and rip out the copyright page and white out my name. You then sell it to Micah -- who has no reasonable way of knowing that I wrote it and claimed copyright on it -- and pass it off as an anonymous tract released into the public domain. Micah then prints up a thousand copies and sells them over the Internet. Do I have the right to force Micah not to print them? Copyright law says yes; a strictly contractual theory would have to say no. Whether or not you are liable to me for breach of some contract, and whether or not you are liable to Micah for fraud, there is no plausible case at all for suggesting that Micah entered into any contract with me, implicit or otherwise. Ergo copyright restrictions are not contractual agreements. If you want to make up some social practice that sort of resembles copyright but stays within purely contractual limits, you're free to do so, but if you want to defend the use of copyright restrictions against innocent third parties the contractual argument won't do it. (A notion of property in ideas will, of course, but that is precisely what is being contested.)

Secondly, if you seriously intend to read the symbol "(c)" as an extensive and binding contract you have a hell of a lot of explaining to do. For example, just what are the terms of the contract? Without a concrete answer to this the claim that "(c)" is actually code for a huge implicit contract is nothing more than empty hand-waving. But can these terms be spelled out in any detailed way? Can they change over time according to Congressional fiat? Did I, buying the book, agree to accept whatever changes Congress and the courts may impose over time? Or did I only agree to accept whatever terms Congress and the courts imposed at the time that I bought the book? Or did I not understand that I was agreeing to any terms at all? How do you know? How does the copyright holder know? Did the copyright holder make the book available under the terms set by Congress at the time, or under whatever terms Congress happens to set at any time at all? How do you know? How do I know? What evidence of any kind do you have for any mutually understood and agreed-upon terms at all? I submit that there isn't any conventional set of terms because copyright was never a matter of conventional law in the first place; it was made up relatively recently and is governed entirely by statute, not by convention. The statutes all operate on the presumption that they are giving a limited grant of property rights in ideas, not on the presumption that they are formalizing a kind of contract. You could make up some kind of conventional social practice in which people did understand "(c)" to be code for some specific and widely-understood set of terms (science fiction is a diverting enough passtime), but pretending that it has anything at all to do with copyright law as it currently stands is really a bit much.

And, of course, as has been widely recognized even by those (e.g. Rothbard) who swallow the copyright-as-contract theory, none of this can give any excuse at all for patents.

Matt: For example, it takes enormous sunk costs to develop a new drug, so if someone else can reverse-engineer it relatively cheaply and take away all your profits, then drugs will no longer be profitable and hence undersupplied.

If drug research is not profitable, then only not-for-profits will do drug research.

I'm waiting for the argument that this will cause a problem that could be described as "drugs being undersupplied." (Undersupplied compared to what?)

(Incidentally, your argument here is not at all different in form from any other protectionist argument--some resource, judged to be critical, will be undersupplied if exposed to market competition, and therefore somebody or another is justified in forcibly excluding would-be competitors from the market. Of course, being "protectionist" is not logically equivalent to being "uncogent," but it is further evidence for the claim that "intellectual protectionism" is an apt choice of words.)

Don: But if all the people

Don:
But if all the people who value it at $16 and would buy it at $15 instead download it for free, then the only recordings that will be made are those that do not need to produce a profit.

Right. Which is why I specified that this works only if you ignore ex ante effects. The optimal solution would be to have those who value it above the retail price pay for it, and to have those who value it below the retail price pirate it. Since that's impossible to codify, I think the status quo, with some tweaking, is probably the best we can do.

In the particular case you mention, you will likely buy something almost as subjectively valuable, so the loss is not a full $10.

But I could have that other thing and the recording. Granted, having the other thing might reduce the marginal utility of having the recording, but there's still substantial deadweight loss.

Also, all the record stores have to do to price discriminate is to run some 1/3rd off sales to get you to buy, if and only if you can’t download it.

This has mixed effects. I'm willing to wait to get most things on sale or secondhand, so I usually don't pay full price for things, even for things which I would be willing to buy at full price if it were my only option. Sales may lead to more revenue from others, but they lead to less revenue from me.

Also, what about the people who value something at a price at which it cannot be sold profitably?

I'm not saying that there is a perfect system that eliminates all the deadweight loss while retaining strong incentives to create. But this is a drawback that has to be considered when evaluating the merits of the status quo.

As a practical matter,

As a practical matter, technology seems to be gradually making copyright moot. Physical property seems to be surviving the development of new tech just fine, but copyright is suffering what copyright owners (e.g. RIAA) consider to be unacceptable damagee.

Technology is gradually catching up to libertarian doctrine. (Or at least, the doctrine of some libertarians.) May the trend continue.

Also try learning to tell

Also try learning to tell the difference between ad hom and a legitimate commentary on your (lack of) argument. And no, I don’t support the arrest of the programmer.

Sounds like an ad hominem to me. Hint: Try to tell the difference between polite criticism and rude ad hominem. :sleep:

Castillon: The solution for

Castillon: The solution for patents is trade secrets, which do deal heavily in contracts and are relatively successful.

Well, maybe it is and maybe it isn't. If "trade secrets" are binding on third parties who have made no agreement to respect or conceal them, then they are just as objectionable on free market grounds as patents or copyrights. If they are not, then it's pretty likely that at least some products will be easily reverse engineered by people not bound by trade secrets. (This is at least the case with products that can be reverse-engineered using chemical analysis, most software, etc.) Of course, without the bludgeon of patent law and copyright law to bully people with, firms might try demanding that their customers sign on to trade secret agreements as a condition of sale. But that's a fairly novel approach for most of the products concerned and it's unclear whether, given the choice, customers would take it. It's also unclear how successful it would be given that it has no binding force over third parties who innocently come into possession of the product without having signed the agreement.)

It may very well be true that the end of patents will make capital- and labor-intensive research unprofitable for many fields in which it is profitable today. Maybe there is some way of patching that up, but I don't think that it would be any argument for intellectual protectionism if it couldn't be patched up. There are reasons for doing research other than making an immediate profit through monopoly control over the engineering results of the research; and there is no good way of centrally planning the best modes of research to allocate money to. The best thing to do is to leave it open to market competition and see what falls out of researchers', sponsors', and consumer's economizing decisions.

Castillon: As to copyrights, the original inspiration for them in Anglo-American law had nothing to do with contract law, property rights, or anything else like that. They were a utilitarian means to encourage production of some very limited varities of largely artistic endeavours.

Well, that depends on the date you are attributing to the origin of copyright law. If you're dating them from the Statute of Anne then you're right to say that they had this explicitly protectionist purpose. If you're dating them to the extension of letters patent to the use of the printing press with regard to particular works (which were sometimes granted to particular printers and sometimes to particular authors), or the Licensing Act of 1662, then the purpose wasn't even connected to the promotion of "useful books" at all; it was simply a brute grant of privilege from the Crown, combined with the desire to control printing for purposes of censorship, suppression of heresy, etc. In any case, the discussion above was not directed to the purposes originally cited for copyright law, but rather to the kinds of stories that pro-copyright libertarians try to tell themselves to justfy the claim that copyright is compatible with a free market. (Randians favor the claim that it is a form of private property; Rothbard argued that it is a form of contractual agreement; Matt seems to be vacillating between the two different accounts; and I argue that neither is right or even particularly plausible.)

Rad Geek, The solution for

Rad Geek,

The solution for patents is trade secrets, which do deal heavily in contracts and are relatively successful.

As to copyrights, the original inspiration for them in Anglo-American law had nothing to do with contract law, property rights, or anything else like that. They were a utilitarian means to encourage production of some very limited varities of largely artistic endeavours.

I used to think that

I used to think that “intellectual property” was a misnomer, but now I’m not so sure. Property is based on agreed-upon social conventions* which evolved spontaneously because they were efficient ways of allocating resources and permitting maximum human productivity. I don’t see IP as being fundamentally different in that sense – we should agree to respect property in ideas insofar as this is efficient. (I suppose my view is sorta Friedrich Hayek/David Friedman.)

Matt, I agree with this paragraph right up to the word "should." Social conventions evolve. They are not created artificially just because certain powerful groups want things that way. And right now the social convention is evolving away from treating information as property in the same way we used to. I think the reason for that is precisely because it is *not* efficient to try to stop individuals from sharing digital information with one another, even on a fairly large scale. On the other hand, it is possible to prevent someone from selling MP3s on a web site and making large amounts of money off the practice.

I would be happy at this point if they'd just repeal the DMCA entirely and start putting reasonable limits on the liability for file sharing. There should be no liability for downloading and liability for uploading should be based on the number of people who downloaded from that particular sharer. That way the various organizations would be limited to going after the major sharers and grandmas and college students wouldn't be getting sued in disproportionate amounts to "set an example" because the example would be limited to hundreds of dollars instead of thousands.

If they are not, then it’s

If they are not, then it’s pretty likely that at least some products will be easily reverse engineered by people not bound by trade secrets.

What I find amusing is that people seem to automatically think this is a bad thing. Sure it's expensive to develop a drug, but labor is not some physical thing you can reify and insert into the drug itself, let alone into the idea of the drug (viz. the chemical formula for the drug). So the idea that after a long period of work you somehow have an inherent "right" to be a monopoly producer of your good though the heavens may fall is ridiculous, a remnant of the days when copyrights and patents were straitforward monopolies granted by the monarch.

Rad Geek, If “trade

Rad Geek,

If “trade secrets” are binding on third parties who have made no agreement to respect or conceal them...

Well at least one one way of deficing trade secrets excludes such.

If they are not, then it’s pretty likely that at least some products will be easily reverse engineered by people not bound by trade secrets.

Its commonly (and legally) done w/regard to trade secrets.

And they've been around for a long time; see Mark C. Schuman, Invention and Ritual: Notes on the Interrelation of Magic and Intellectual Property in Preliterate Societies, 89 Coulm. L. rev. 1264 (1989). For the more modern era see David Jeremy, Transatlantic Industrial Revolution: The Diffusion of Tectile Technologies Between Britian and America, 1790-1830s.

Suffice it to say that the history of guilds and mercantilism generally is suffused with one form of another trade secret efforts.

You should consult the Uniform Trade Secrets Act for what the law looks like today in most of the states (about ~40 states have enacted it in one form or another).

I date it from the Statute of Anne and have for many years. The Stationer's Company lost its monpoly in 1694 and afterwards faced stiff competition from other publishers. They lobbied for their monopoly back, but instead got something radically different - an entirely new sort of law from what had passed before. Of course that is really a lumpers v. dividers debate I suppose.

...but rather to the kinds of stories that pro-copyright libertarians try to tell themselves to justfy the claim that copyright is compatible with a free market.

Well, as a libertarian who also happens to be a rule utilitarian, I'd say it has to do with how the benefits are distributed. It might be that copyright law has greater utility than non regime at all or some other type of regime. You are more than welcome to fill in the blanks.

I completely agree with you

I completely agree with you Charles that innocent third parties cannot be bound by any contract; that was the substance of my deliberately obtuse comments toward Matt. However, I wonder about the nature of the exchange itself.

(Randians favor the claim that it is a form of private property; Rothbard argued that it is a form of contractual agreement; Matt seems to be vacillating between the two different accounts; and I argue that neither is right or even particularly plausible.)

Now that I have your attention Rad Geek, I'm curious what you think of the basis of the contract account. There are three basic types of exchanges in a market: good for good, good for service, and service for service (not too sure about that last one though). My understanding of title-transfer law is that when we exchange good for good we each do it on condition the other person render up the good. So if I pay you for apples, but receive nothing, then you basically owe me apples or the money, because the transfer of title to the money never went through. Similarly with good for service; if I pay a singer to sing, but he doesn't, then he possess stolen money because the act of singing which transferred the title to the money never happened.

Rothbard seems to think that buying a copyrighted CD or book falls under both kinds of transaction, the CD is being traded for money + a "service" (For simplicity let's just assume the "contract" is just what it says there on the CD: You have to ask the publisher/author permission before duplicating the work in any form in any kind of print/electronic media and sharing it with others). But what's the service here? Silence? If so, then are blackmail contracts valid? This is the only similar example I can think of. For there also you're trading money to a guy in exchange for him NOT to do something, namely distribute information about you. If I pay a guy to keep quiet about something, and he goes ahead and blabs, does he thereby owe me the money I paid him? What if I'm a rich CEO and his blabbing costs me my job; do I get millions of dollars in recompense from him? Or does he really owe me anything at all?

In short, is buying a book or CD nothing more than what it appears to be: trading some money for a book or CD?

Finally, I agree with you completely that reading some kind of vast, complicated contract into the copyright symbol is a funny thing to do. For example, most people seem to think it's alright to loan a book to a friend; if that's the case, then copyrights are useless because I could loan my book or CD to a friend who is then under no obligations not to upload/copy or distribute it however he pleases. And supposing the copyright crowd came up with a way to interpret the "contract" so that I'm not allowed to do that, then I'd have other questions as well; for example, could I give the CD to the garbageman so he could cart it off to the dump? Or would that kind of contract prohibit me from ever relinquishing control of the CD? There's no end to the number of fairy tales it seems you could spin for this kind of thing.

You know I disagree with the

You know I disagree with the anti-IP people on certain issues and agree with them on others. I think IP can be fully accomplished within a framework of simple property rights. This does require certain concessions however. Copyrights law seems compatible but patent law does not. I'm too busy now to explain but I will try to post an article on my blog when I get a chance.

I prefer to call it what it

I prefer to call it what it is: intellectual privilege. These are not rights -- they are privileges created by the constitution and other laws because they are convenient and have, so far, served us well economically. People should not forget, however, (especially the RIAA) that they are privileges, not rights.