"intellectual property"
Broadly consists of three types: patents, copyrights/trademarks, and trade secrets, the first two of which are granted and enforced by the state, the third defended by employment covenants and nondisclosure/noncompete contracts backed by civil litigation. Coupled with the proposition that "Ownership is a type of ethical system," it is implied that you view the state as ethically justified. That's debatable, and I'll address it later after reading the entire document. For now, I'll quote two items I think you should consider:
Sadly, a moral principle never reaches beyond itself. Its ethical arms are too short, extending no farther than one man's soul, one man's purpose and lifespan. We have to look elsewhere for political guidance, because the thing at issue is "a nation of laws and not of men." [Laissez Faire Law, p.42]
The philosophy of law is a separate branch of science, independent of ethics. Moral inquiry pertains specifically to the interests, powers, and dilemmas of an individual, epitomized by the question: "What shall I do?" Legal philosophy addresses impersonal administration of public justice, litigation among parties in dispute, the combined might of a community, and custodial guardianship of certain individuals who are unable or legally prohibited to conduct their own affairs. [The Constitution of Government in Galt's Gulch, p.121]
"The argument is as follows: abstract boundaries define all property. Abstract boundaries are ideas which require moral agreement."
I believe this is erroneous twice. I owned fenced land that was defined by measurement from legally found benchmarks derived from sections, county boundaries, state boundaries, national legislation, U.S. Constitution, and (ultimately) taxation, public finance, and military strength to defend the integrity of territorial claims. Such physical boundaries are creatures of the state, right or wrong morally. The abstraction, if any, is ascribing to government police power a moral consensus that does not exist and never has.
re Locke
It is vain to advance a philosophical argument pertaining to natural rights, expressed for instance in the Declaration of Independence. I trust that you're aware it became a dead letter with ratification of the U.S. Constitution by an extremely small plurality among the 20% of colonial Americans who were eligible to vote for state politicians -- a landed minority elected by a landed minority. After the Civil War, it became settled law that Congress was uniquely entitled to define "the general welfare" and property claims of all kinds, without considering Locke, the Founders, or anything other than majority rule. Helvering v Davis, 301 U.S. 619
"In all arguments, self-ownership must be assumed"
Even in the abstract I think this is false. I'm sorry to be quarrelsome, and I trust you'll merely reflect that there are reasonable arguments for interests other than self-ownership as a first principle.
"all men act in favor of their own individual evaluation of what might serve to maximize their own personal well-being"
Patently false. It is not descriptive of history or the preponderent social mood.
"each person has property in their body as an abstract moral matter"
Agreed. The crucial question is liberty, not property.
"scarcity is no longer valid as the sole determining factor"
Sorry. You contradict yourself here. Individual life is scarce; only one. In a broader context, liberty is so scarce historically and likewise in the current state that it is impossible to say with certainty whether it exists at all, except in a defacto and unenforceable anarchy that the state cannot control.
“The moral concepts of ownership rests upon belief."
Absurd.
"rules of just and moral ownership must be agreed upon mutually and in advance"
Sigh. You say it must be so, yet never was in history and cannot be so. I wonder if you've read Madison's Federalist No. 10, that there are contending classes, landed and propertyless, and that government must be framed to balance and frustrate such interests, to deny domination by a single faction actuated by self-serving advantage.
"boundaries are ideas"
My fences are physical boundaries, defended in the first instance by vigilance and ultimately by a gun. In the context of life on life's terms in the city, boundaries are defended by locks, concrete walls, vaults, alarms, thousands of sworn LEOs and thousands of armed guards.
"a person owns his or her body in all moments through time"
An empty statement, a truism at best; patently false in the current state. I wonder if you know anything at all about the police power? (legislation, regulation, zoning, taxes)
"Labor is the most scarce of all primary means of production"
Categorically false. Capital is scarce, not labor -- not even the labor of a single genius.
"If a person were to move onto a piece of never settled land"
Irrelevant to the developed world. Even in Locke's time, it was a cruel nonsense to justify colonial conquests and expropriation.
"why is it not ethical to homestead intellectual property which is wholly abstract and is formed from abstract boundaries as well?"
I freely grant that you (any sentient being) have an absolute moral right to spend your time and talent to achieve whatever may be possible, with or without state power.
"Ownership itself is strictly a moral idea which must be seen as a means of governing the relationships and interactions between humans. It derives its usefulness from its ability to resolve conflicts."
I hope you reconsider the rights of children. As a student of philosophy, my most cherished mentor was the former chairman of the Dept. of Philosophy at the Univ. of Wisconsin, a truly wonderful man who gave me a single problem to address: The rights of children. I've written on the subject many times, but I am also a parent, charged with the custody of my daughter, not exclusively, but in combination with my wife and (however incompetent) the state. We have endeavored to protect our child from debilitation by the state, and more than others, we have succeeded in that duty. See it as such, I implore you, that parenthood is a duty. On the question of conflict resolution, I cannot share your enthusiasm for abstract law -- and I say that as an experienced legal actor and corporate counsel, intimately familiar with equity and common law. I warrant that parties do not come willingly to resolve a conflict. Never.
re Kinsella
Fucking idiot, never had a shred of respect for him.
"As more of a good is used, the marginal benefit diminishes."
What you want here is Hermann Heinrich Gossen's theory of diminishing returns; satiety. Marginal utilitarianism is the whole of modern statecraft, following Bentham, Mill, and the Fabians. Wrong crowd to follow if you care about individual life and liberty.
"Cwik points out quite adeptly the example of crude oil. On the market today, oil is a high demand resource with limited availability and limited reserves. Thus, oil is a perfect example of a so-called ‘scarce’ resource. However, it was not always scarce. For example, today oil is a scarce good. However, several centuries ago, not only was oil, not an economic good, it was an 'economic bad.' If oil were to come bubbling up from the ground, it could destroy one’s crops and result in the starvation of one’s family."
-- as would a tornado or drought. I have 15 years of experience in the Oil Patch internationally, fully appraised of the domestic market. There is not a single well anywhere on earth that's drilled or produced without government license and regulation. You really need to bone up on the police power, or at least take a gander at supply and demand with respect to the price of oil. Supply is nothing. Demand is everything in oil.
"researchers, artists, and writers must eat food to survive while they work to produce new inventions or original works"
I am intimately familiar with this problem. Original works are not automatically a source of wealth. I can show you a long list of screenplays, novels, inventions, and valid business ideas that found no market, primarily for competitive reasons and market dominance by persons and institutions hostile to new ideas ("not invented here").
"Ownership is an ethical system specifically for helping individuals to self-govern"
Again, I'm happy to acknowledge that each person is morally free to act as he thinks best. It does not translate into law, does not reflect history or the current state of affairs.
"All property then must be considered intellectual"
There are many who are propertied and have the intellectual depth of a toad.
"Communists hold that all men own property communally"
Attacking a straw man achieves nothing. You might as well argue that fascists like Hitler deprived people of their lives and property, as did FDR, and so too George W. Bush waging discretionary war in Iraq to seize their oil fields and benefit Israel. Vietnamese nationalists led by Ho Chi Minh cited our Declaration of Independence as natural rights justification for rebelling against French colonial rule, asked for U.S. support. Fact.
"A person is free to exercise any and all actions that benefit the owner up and to the point where it infringes negatively on the ownership of others"
You don't need Cwik to expound negative rights. Easily the most common shibboleth of the libertarian creed, summarized in Non-Aggression Principle (NAP). It fails for two reasons. First, it is a utilitarian proposition lacking substance, says nothing about liberty beyond an artificial equality of persons, any and all, stupid and brilliant, frightened or confident. And worse: NAP is the death knell of all legal inquiry, due process and reasoned adjudication.
" little is known about the effects of copyright protection on innovation and creativity"
Rubbish.
"objects in the world present themselves as either merely ‘present at hand’ or useful"
Subjectivism does not advance your claim of property rights. Gives screwballs and mystics equal standing, defeats rational inquiry.
"One may observe with any level of scrutiny to discern the 'property-ness' of an object and will fail to find it. The only place one may look to discover if a thing is property is within the mind of an individual."
I very sincerely regret that you elected to say that. Might as well say that lawful possession is a mental phenomenon unrelated to documentary evidence and law enforcement; that all medicine is an act of imagination, no anatomy or product labels involved; that anaesthesia and sterile surgery are all in the mind of the patient and doctors, no recourse to fact.
"the rules of ownership which establish the notion of 'property-ness' require collective agreement"
Now you have surrendered to the mob. What the fuck?
"Ownership is a moral idea"
Listen carefully. An assertion is not an argument.
"ownership of intellectual property must be considered moral and just as well, regardless of the morality of any given legal system"
I can understand that you want to assert a moral claim. I'm in favor of morality, particularly in the personal exercise of liberty, often in rebellion against or apart from mob rule expressed in social customs, legislation, and brute power of overwhelming force, whether criminal or "patriotic." There is no moral dimension in obedience, except as default evil, the cowardice of going along to get along, practically the whole of human history in a nutshell.
Personal note: I moved my family to the Missouri Ozarks a couple years ago. Perhaps you can understand why. No building permits. Salt of the earth neighbors. Well established property lines, volunteer fire department, coop electric utility, very little government.
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COMMENT SECTION:
"People must be free to determine the conditions under which they live"
Floating abstraction. What people? Vote to enslave negroes? Vote to give negroes endless free shit like food, shelter, transportation, education? Tax de rich till theys rich no mo!
"People tend to extend certain rights to other people that they wish for themselves"
Mistaken notion, a fact not in evidence, not even in the Ozarks. Crime is crime. Child abuse is child abuse. You can't win by claiming universal concordance and fair play.
"people must be free to set up private legal/arbitration/guild/union systems"
Dear God, another assertion. What people? A fucking medieval guild? Closed shops and tyranny by union boss? Failing grade for stupidity.
"enforce IP just like financial institutions enforce commercial contracts"
Nothing happens without the state to enforce contracts.
"You cannot get loans from creditors when you engage in negative behavior with financial products."
Nor can you get loans if you have no assets, are disabled, born stupid, unemployed. Nor is property created by finance. Perhaps you don't know how new industrial projects or IP are funded. Has nothing to do with loans or financial products of any kind.
"a rivalrous good is one that can only be used or consumed by one person at a time"
I am so sorry you have been seduced by concepts like this. Whether we like it or not, all men are rivals in life, for property, women, children, market share, prestige, self-esteem and praise. Some flip into religious fervor because they can't get any traction in gainful activity, have to bullshit for a living, suck pennies from frightened sheep. Popes and bishops did more to harm humanity than armies of conquest, and Islam threatens peace like no other quack creed in history -- for a reason that will never be ameliorated -- threatened to the core by their cultural and intellectual inferiority as primitives, little better than African savages.
"private property owners must consider and obey to a great extent the particular views/culture of the society he lives in. They can not simply start enslaving people"
Echoes Machiavelli, the reigning prince must not to anything to undermine the confidence and loyalty of his subjects. The current state is a colossal clusterfuck, endless entitlements, unsustainable pledges worldwide for the unearned benefit of other nations and world trade that does not benefit any American industry or entrepreneur or average US household. We have voted ourselves onto an irredeemable gravy train of bread and circuses, all enslaved to the laughable proposition that interest rates will remain at zero forever and there will never be a day of reckoning.
"There are some basic circumstances which dictate much of human behavior. These do not change. However, my position is that once the land and property have been obtained by one set of rules in society, that society may not return and remove the property simply by creating a new round of rules."
In some abstract realm of morality, right? -- not at all what happened since the Civil War, certainly not what happened since 1965 civil rights legislation, modern affirmative action quotas, socialist mandates and penalties, eminent domain, asset forfeitures, 50% taxation, and a total of 40% GDP drained by federal, state and local payola to public workers, public contractors, public welfare, compulsory public education, and consensus that defines moral obligation as forced surrender of private property to the state, to advance the public good.
"what society entitles an individual to today cannot just be confiscated tomorrow unless the person is willing to go along with the confiscation"
What planet do you live on? The nation is divided irreconcilably, balanced on a knife edge between confused conservatives and hysterical Marxist looters -- conservatives unwilling to stand like men, say fuck you, we're going to cut government spending. They're cowards. Do you have any idea of what happened in South Africa, Zimbabwe, Mexico? Expropriation.
"If this guy is a neighbor of yours this means that he is a member of the same society, i.e. you have a shared moral code."
I am appalled that you think this is true.
an orderly society absent the state
Finally you say it. Belongs in the first paragraph of the paper, not hidden in a comment. It demolishes everything you argued and explains why you want a moral consensus. You have invented nothing. Remove yourself from authorial voice, do properly neutral scholarship. George H. Smith does it, one of the most boring people you can read, CATO buffoon. Expert on everything libertarian and atheist and anarchist. Zero original contribution of thought.
"The first rule must be that coercion is not allowed."
You and I are done. It turns out that you don't care what the state does or doesn't do, because it is coercive by nature. Like communists, you'd sign off on an ideal government that did what you wished it to do -- despite what anyone else wants -- because you think morality trumps the rule of law.
I doubt you know what 'the rule of law' means. Has nothing to do with votes, or elections, or legislation, or political appointment of judges. It predates the Constitution and the Declaration of 1776. Try Magna Carta, 1215 A.D. Eight centuries of precedent, implicit in everything you think you know about property, orderly society, shared hope of justice.
Sigh.
Thirty years ago I exchanged correspondence with Milton Freidman who, at the time, was at the Hoover Institution. I alerted him to a set of ominous trends, and Dr. Friedman assured me all was well, because the rate of increasing debt was more or less in line with growth. Here is what happened instead --
 |
| State, Local, Federal, and Government Agency debt, in trillions, over 200% of U.S. GDP (does not include household, commercial, corporate debt, unfunded entitlements, interest) |
Friedman was wrong and I was right. Worse, Friedman made a personal appearance at an ISIL conference sponsored by Laissez Faire City when I was LFC's poet in residence. Friedman said Fabianism was "an old worn-out philosophy" that would yield to libertarian principles (NAP).
Do you know what Fabianism is? -- municipal water, sewer, and electricity -- multiplied by Carter and Clinton and Obama to include guaranteed mortgage lending and free health care.
Freidman was wrong twice. Think about it.
Do not address me as if I was a fellow student.
Do not reiterate or explain anything.
You did not pass the examination.
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