Friday, August 21, 2015

Copyright Discussion with Ryan Griggs

Ryan Griggs has offered his comments about copyright, libertarianism, and my direct, logical proof that intangible works are best understood as factories. Griggs:

There's no discussion of what makes production 'mass' production. Logical deduction builds seamlessly, one analytical step on another. The chain is broken. This isn't (logical)deduction. It's assertion. There goes “logical." 
Factories aren't created by homesteading. Homesteading is the acquisition of previously unowned resources. It's one of three ways of legitimate property acquisition. Is the creation of a factory traceable far back through time to the first instance of homesteading of that land upon which it sits? Sure. But that has nothing to do with the argument. There goes "direct."


"Production" is the rearrangement of rightly owned matter into a more useful configuration. An arbitrary border is ascribed to separate the new configuration from the rest of the universe, and the matter within the border is termed a "good". The newly-produced good can be said to have been "created", or "brought into existence", but in the physical sense, the producer has created nothing. The newly-produced good  is just a re-arrangement of pre-existing matter. In the economic sense however, production is creation.

Rather than "creation", I often use the term "homesteading" to refer to such an act of production, because it serves as a reminder that transformation, not discovery, is the crucial element in original appropriation of property. Since the newly-produced economic good was brought into existence, it was not previously owned, thus the producer has rightly acquired title to something previously un-owned. Whether to use the term "homesteading" in this context is merely a semantic problem. Libertarians agree that producer owns product.

All economic activity is aimed at producing consumer goods - things that are directly useful to individual humans. However, many goods are produced that are not directly useful to individual humans, but rather are themselves useful in producing consumer goods. Such indirectly useful goods are called "capital goods", or "producer goods".

"Mass production" occurs when, by virtue of the existence and use of a capital good, many identical instances of a consumer good are produced (or "manufactured", or "brought into existence", or "homesteaded") faster and less expensively than what could possibly occur absent the capital good. Since mass production is impossible without use of the capital good, the existence of many identical instances of a consumer good implies the existence and use of a capital good.

This sentence is literally unintelligible: "Writing and recording the song must be viewed as the homesteading of a factory, because it is precisely this human action that makes mass-production possible." Writing is the same as homesteading a factory? What? The act of recording sounds is homesteading a factory? Huh?

Yes, writing and recording a song is the production (or "creating", or "homesteading", or "building", or "making', etc. ) of a factory, because it makes mass production possible. Prior to the writing and recording of the song, if you wish to enjoy a music performance, you must first do the hard work of producing (or "creating", or "homesteading", or "building", or "making', etc.) your own new piece of music. Production must always precede consumption.  You are free to make your own original music, just as you are free to build your own car from scratch. You will find it is enormously less expensive to buy a copy of a mass-produced car.

How in the world is copying something in violation of a contract "trespass?"

Contract law covers disputes between people who already have a contract between them. It is important to keep in mind that one may only contract with one's own property. Contracts to buy, sell, license, or copy intangible works must be based on an underlying property right. So, copying a song in violation of a contract would be a breach of contract, not trespass. 

Tort law covers disputes between people with no contractual relationship. Copying by a person with no contractual relationship is known as "copyright infringement", best understood as trespass (not theft). Unauthorized copying is trespass because it is the use of a capital good owned by another. Copying interferes with the owner's use because it reduces the owner's use below 100% of the maximum possible use.

Trespass is the violation of the physical borders of another's private property (stepping into someone's home, taxation, etc.).


If you define trespass as the violation of the "physical" borders, you have simply smuggled your desired conclusion (property must be physical) into your premise. That's the oldest trick in philosophy.

Copyright' literally means the right to copy. If a seller of a good, say, a bit .mp3 data says prior to the sale that as a condition of sale the buyer may not 'copy,' that is, create an identical .mp3 file from the one that is being sold to him, we may say that the seller of the file is retaining 'copyright.' If the buyer agrees to the sellers condition, then he is bound by this condition. In other words, the buyer has agreed to a contract in which he receives a certain file *conditional on* his never 'copying' it. That's the proper libertarian analysis of copyright.
 This is why Rothbard said copyright was legitimate in a libertarian society.

One may only contract with one's own property. If there is no property right in the pattern of information, then there is simply no basis to form the contracts that Rothbard describes. In the real world, relatively free people do indeed form contracts to buy, sell, license, copy, and refrain from copying intangible goods. Intangible goods get delivered to happy customers millions of times per day, every day.

[The legitimacy of copyright] has nothing to do with mass production, or factories, or homesteading, or acts like writing or recording.
The human action of writing and recording a song is producing ("homesteading", "creating", "making" ) of a good. "Mass production" and "factories" are crucial to the understanding, because the song can function as a consumer good (for listening) or as a capital good (for mass producing copies). The writer ("homesteader") can sell you the consumer good (one song copy for listening), without selling you the capital good (the factory for making many copies).

Selling the consumer use of a thing while retaining the producer use of the thing is not unique to intangible goods. For example, it is very common for housing developers to sell a new house on the condition that the mineral rights to the land remain with the developer. If you buy a new house under those conditions, you are free to dig up your back yard to put in a swimming pool. You are not free to dig up your back yard to extract petroleum, that would be a breach of contract. If another unrelated person came to your yard and extracted petroleum, it would be trespass against the property rights of the developer, as well as against you.

Your discussion questions have absolutely nothing to do with whether copyright is valid according to the libertarian. The method of production of a good is totally irrelevant to libertarian analysis of the validity of the sort of transactions that may occur involving that good. The point is that a good is a good, 'mass produced' or not.
You are correct that "a good is a good, mass produced or not". You've ignored the point. The point of noting that song copies are mass produced is that, like any mass produced consumer good, there has got to be a factory somewhere, and the factory is also a good. Like any other factory, a song-master is owned by the person who built it. Making copies is the intended use of the factory, and the factory owner is entitled to 100% of the produce from the factory. Unauthorized copying is the unauthorized use of the factory owned by another, i.e. trespass.

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