Schreiber: This reasoning is fallacious because there can be no inherent moral rightness or wrongness in some purely instrumental function like government or capitalism (or even a particular government) independent of some goal exterior to it.

“This reasoning is fallacious because there can be no inherent moral rightness or wrongness in some purely instrumental function like slavery (or even a particular slave-pen) independent of some goal exterior to it.”

Please identify the relevant difference, if any, between your argument and mine, and any auxiliary premises that one must accept in order to recognize the difference. (If there isn’t any, do you accept the conclusion that there can be no inherent moral rightness or wrongness in slavery?)

Jonathan, there’s a terrible civil war raging in the Congo, in which as many as 3,000,000 innocent people have been slaughtered in the past 8 years by warring pretenders to State authority, backed by various ethnic factions and by neighboring states. Clearly, even to ardent eminent domain opponents, the stealing of houses by the New London, Connecticut city government, after a long administrative process authorized by state law and municipal ordinance, ranks very, very low on the list of the world’s human rights outrages and grave injustices compared to the Congolese civil war.

Yet I have seen endless posts about Kelo and eminent domain on this blog, and not one mumbling word about the Congolese civil war. Where’s the outrage? Clearly you are just pretending to be libertarians as rationalization for your pathological, manipulative hatred of the New London, Connecticut city government.

Right?

Sean Lynch: Shows of force evolved from actual warfare, where the participants were actually willing to fight for their cause.

I have no particular opinion about the connection between warfare, ritualized shows of force, and voting, but as an empirical description of warfare, I am quite sure that your comment is false. Historically wars in which there was a discernible “cause” for which most or even many of the foot soldiers “were willing to fight” have been extremely rare. Most common soldiers throughout history have fought either (1) in order to share in the spoils, such as they could, (2) for pay from the commander, or (3) in order not to be maimed or killed by the warlord for refusing to fight on his side. The warlords and commanders may have had different ideas about what they were fighting for, of course, but they have almost always been in a very small minority on the battlefield, if they were on the battlefield at all.

Interestingly enough, these kind of displays were a common element of stateless arbitration in medieval Iceland, as well. Here’s Jesse Byock, in Viking Age Iceland:

The absence of pitched battles does not mean that the island inhabitants eschewed all forms of militant show, only that they ritualized the actual use of force. Parties to a dispute that was moving toward resolution frequently assembled large numbers of armed baendr [freeholders]. Sometimes these groups confronted each other for days at assemblies and at other gatherings, such as when a successful party was trying to enforce a judgment at the home of the defendant (féránsdómr). Althought opposing sides often clashed briefly, and a few men might be killed, protracted battles were consistently avoided. It was not by chance that the parties showed restraint. Leaders really had few options if they hoped to retain the allegiance of a large following, since the baendr were not dependable supporters in a long or perilous confrontation. They had no tradition of obeying orders, maintaining discipline, or being absent from their farms for extended periods. The godhar, for their part, were seldom able to bear the burdens of campaigning. They lacked the resources necessary to feed, house, equip and pay followers for more than a brief period.

Rather than signalling the outbreak of warfare, a public display of armed support revealed that significant numbers of men had chosen sides and were prepared to participate in an honourable resolution. With chieftains and farmers publicly committed, a compromise resting on a collective agreement could be reached. (p. 125)

Ghertner: This is true. However, assuming the drug had worked as advertized and turned the entire population into peace-loving non-aggressors, on what grounds could people object that they had had their rights violated?

If you’re talking about the effects of Pax in the movie, it wasn’t advertized as something that would just stop people from committing rights-violations against each other. It was supposed to have pretty radical effects on people’s personalities and dispositions. (And in fact it did; just not the effects that the central planners expected.) But people have a right to have any personalities and dispositions that they want, and coercively controlling the minds of a whole population through drugs involves a massive and systematic regime of aggression against lots and lots of innocent people.

If you’re talking about some other hypothetical drug that somehow stopped people from ever violating anyone else’s rights, and had no other effects at all, then you might have some case for claiming that it wouldn’t be aggressive, in and of itself, to make people take it. Fine, but on the other hand, most of the people you force it on wouldn’t ever violate anyone’s rights in any serious way, so there is a question of proportionality. If the amount of illegitimate force being defended against through forcibly administering the drug is at or near 0, then the amount of force that you could legitimately use in forcing the person to take it is also at or near 0. Meaning that you effectively have no right to force most people to take it anyway.

Ghertner: Aggression is a bad thing. Making people less aggressive, either through cultural/environmental influences or genetic influences is a good thing. Thus, were we to invent a chemical solution to aggression, it would be wise to release this upon the population at large.

That’s an interesting plan you’ve got there for curtailing aggression, but it has one minor flaw. Specifically, forcing drugs on innocent people against their will is a form of aggression.

Oops.

Ghertner: Perhaps they should have done more testing. But at what point do we conclude that a product has been thoroughly tested and is considered safe?

When someone freely decides that it’s worth the risk and chooses to take it.

One of the chief benefits of being a libertarian is that it makes a lot of things easier. Who needs a central plan for safety testing when people are free to make their own individual decisions about risks and rewards? Or, well, their own minds?

She shares responsibility in this child’s death. But she was acting in good faith in what she thought was the best interests of her child. I don’t see any crime in that.

I don’t see any justice in punishing the mother either, but what you’ve said so far here is surely not enough of a reason for the conclusion. Supposing that you, acting in good faith on what you think is the best information possible, take my treasured Ming vase (because you mistakenly believe that it was stolen from you). Does the fact that you were acting in good faith mean you don’t have to give it back?

Supposing that in the process of trying to forcibly “recover” the vase from me, you drop it and it shatters into a million pieces. Does the fact that you were acting in good faith mean that you don’t have to pay me compensation for the destruction of what was, in fact, my vase?

Supposing that I try to stop you from taking the vase and you break my leg in the process of trying to forcibly stop me from forcibly stopping you. Does the fact that you were acting in good faith mean that you don’t have to make restitution to me for breaking my leg in the process of taking and destroying what was, in fact, my vase, from my own property?

Broadly speaking, what does the fact that someone is acting in good faith have to do with anything? If it’s somebody else’s property you’re damaging or taking, why should good faith or acting on what you think is the best information have any mitigating effect on your guilt or what you owe for the damage?

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.)

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.)

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 demand $50 in royalties for every time you use any of these phrases!

Berg: “James Madison, in Federalist 41, responded to the idea that anyone might interpret it in such a way with outright ridicule and a lecture on grammar . . .”

So antifederalists feared that the General Welfare clause would provide a fig leaf for the endless expansion of government power, and Madison ridiculed the notion.

Thank God J.M. put a stop to all that with a grammar lesson. How’s that been working out for him lately, anyhow?