Nice things

Hello again, readers. I’m working on a long post, tentatively titled “The Costs of Copyright”, but before that’s ready, I’d like to share with you something that was going to be in the post, but which I removed because it didn’t fit the tone I was going for, but I just couldn’t throw it out, so here it is now: I am taking three people who I’m inclined to disagree with, and finding things that we agree upon.

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The three people who disagree with me are J. Neil Schulman (see my disagreements with him here), Alexander Baker (see here) and a mysterious fellow who I know only as Strangerous Thoughts. I haven’t publicly sparred with Strangerous before, but they’ve written posts like The ultimate justification for natural and intellectual property and The economic principles of intellectual property and the fallacies of intellectual communism, so you can see why I am inclined to list them alongside Alexander and Neil. But before I get to disagreeing with these fellows once more, I must first say nice things about them (one of these days, I’m going to say nice things about Jack Valenti).

First, about J. Neil Schulman. Neil wrote a little essay called Human Property, seeking to explain his views on what property is and what it should be. Sadly, early on the essay, he insists: “There is no more of a distinction to be made between “intellectual” property and “stupid” property than there are distinctions between any other kinds of property.” But! Just before Neil says that, he says this:

Nothing in a state of nature is property.

It’s only the application of human intellect to things found in a state of nature that makes anything property.

Why, that’s right! And it’s something that I’ve been overlooking.

As Neil puts it, nothing in nature has the stamp of ownership on it. There is no natural property. So how does property come into being? Quoting Neil:

Then come human beings who look around, put up fences, take stuff and turn it into other — sometimes brand new — stuff, and say to other human beings, “This which I messed around with is mine and not yours. Use it without my permission and there’s going to be big trouble.”

Now, when I read that, I remembered this phrase from Jean-Jacques Rousseau’s Discourse on Inequality:

The first man who, having enclosed a piece of ground, bethought himself of saying This is mine, and found people simple enough to believe him, was the real founder of civil society. From how many crimes, wars, and murders, from how many horrors and misfortunes might not any one have saved mankind, by pulling up the stakes, or filling up the ditch, and crying to his fellows: Beware of listening to this imposter; you are undone if you once forget that the fruits of the earth belong to us all, and the earth itself to nobody.

It seems that Mr. Rousseau and Mr. Schulman do not agree on the utility of the idea of “property”. Who is right? I say that J. Neil Schulman is right. To support Neil’s position, I quote Crosbie Fitch:

Tell a bear his cave is not his property because he has no government to legislate it so. Tell a wolf the carcass he’s enjoying is not his property because he has no government to legislate it so.

Property derives from privacy, the individual’s innate power and natural right to exclude others from the spaces they inhabit and the objects they possess. Governments are supposed to secure such exclusive rights – on the basis of equality – as opposed to whoever is the more powerful.

Rousseau saw property as a wicked institution, but Fitch does not agree, and neither does Neil, and neither do I. Animals recognize property just as much as humans. Birds do it (nests), bees do it (hives), even educated fleas do it (citation needed). The idea of property is a functional, useful idea. But it is an idea, and I thank Mr. Schulman for pointing that out to me.

Second, about Alexander Baker. In the comments on this recent post of his, he makes an excellent point, which I shall quote here:

“Use is only interfered with if the thing is physically interfered with.”
You’re free to define “use” that way, but then all you’ve done is smuggled your conclusion into your premise. With that definition, Kinsella could have written a very short book:
Property rights only apply to rivalrous things. Rivalrous means that use by one interferes with use by another. Interference must be physical. Therefore property rights only apply to physical things. QED.
And that is the sum and substance of what Kinsella did, although he goes on for 60 pages.

(Context: he’s responding to a commenter trying to nail down the definition of use, and he references this book by Kinsella.)

Now, to me, that sounds very reasonable! Why not make that a premise? But Mr. Baker is right to point out that it is a premise, and it’s important to question our premises, and it’s especially important to not assume what you’re trying to prove (except in mathematical proofs, but that’s a story for another time).

Finally, about Strangerous Thoughts. They’re new here, but it so happens that I have the nicest things to say about them (sorry, Neil and Alexander). I refer you to this post of theirs: The supply of and demand for rights and the fallacy of natural rights. I agree with the entire thing, and I will be basing this post on the theory that Strangerous offers therein. Here’s Strangerous’s own summary:

The pursuit of natural rights theory is a search for first principles that determine the unarguable right any human possesses at any time in any place. This idea cannot be transposed from theory to reality. In reality, rights only exist if they are enforced, and the enforcement of rights is limited by material scarcity. In a free market society there may be no avoiding positivist rights if costs must be suffered to have rights – each individual must pick and choose what rights to insure himself.

In other words, we cannot guarantee all conceivable rights, so we must economize. For example, we cannot grant ourselves the right to immortality. It’s too expensive! Generations have tried and failed to achieve it, without success, so it’s just not a good idea to try to guarantee it. Of course, none of us are very eager to die, so we grant ourselves the right to not be murdered. This is a much cheaper right, but it still comes at a cost: we must give up the right to murder. Most of us consider this right to be of very little value, so we give it up almost thoughtlessly, but it’s good to recognize that we have given up a right in exchange for a different right. Everything comes at a cost.

Now, all that said, what rights shall we grant ourselves? Here, like most libertarians, I take my cue from the viewpoint of individualism. As an individual, I exist independent of anyone else, and have the power to make my own decisions, just like every other individual out there. The libertarian style of economics, so often called “capitalism”, is better understood as economic individualism:

Economic individualism’s basic premise is that the pursuit of self-interest and the right to own private property are morally defensible and legally legitimate. Its major corollary is that the state exists to protect individual rights. Subject to certain restrictions, individuals (alone or with others) are free to decide where to invest, what to produce or sell, and what prices to charge.

This approach applies to civil rights as well. As Neil put in the title of one of his posts: No, Not Gay Rights — Individual Rights! I couldn’t have put it better myself.

Now let me get back to the subject of economizing rights. Since we’re trying to maximize individual rights, we must ask: “What rights do individuals want most, and what rights can individuals afford?” From here, we can turn to physical reality as our guide, to help us determine which rights an individual needs most to survive and which rights an individual is most able to secure for themselves. Crosbie Fitch, pondering a similar question, came up with this response:

Rights are the vital powers of all human beings. We have rights to life, privacy, truth, and liberty.

– We have a right to life, to protect the health and integrity of our minds and bodies.
– We have a right to privacy, to exclude others from the objects we possess and spaces we inhabit.
– We have a right to truth, to guard against deceit.
– We have a right to liberty, to move and communicate freely.

Regrettably, Fitch calls these “natural rights”, but the term here might be appropriate, because these rights stem from powers that we all naturally possess, and needs that we all naturally have! As such, we can describe them in market terms as high-value, low-cost rights, just the sort of thing that a free market in rights can effectively deliver. Better yet, the enforcement of these kinds of rights is subject to economies of scale: the more people have them and defend them, the easier they are to defend. By cooperating in mutual defense, we can strengthen our claims to these rights, lowering their effective price, which leaves us room in our “rights budget” to secure further rights for ourselves (or, alternatively, to take the time and energy that we used to spend securing our rights, and use it to secure other goods, such as material wealth of leisure time). This is called progress.

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That was all going to be in the introduction, but I changed my mind. I hope you don’t mind me putting it here, to stand or fall on its own merits alone.

Lies Are Bad

In my last post, I noted that Alexander Baker had a rather odd view (in my opinion) of the value of honesty. Quoting from this post:

Is the plagiarist wrong simply because plagiarism is dishonest? No. Lying is only wrong when done to deprive another person of property. Deceiving a robber about the location of your valuables is virtuous.

This acceptance of dishonesty caught me off guard. But it turns out that Baker is hardly the only one arguing such a thing. Here’s Murray Rothbard arguing something very similar in The Ethics of Liberty:

We have therefore affirmed the legitimacy (the right) of Smith’s either disseminating knowledge about Jones, keeping silent about the knowledge, or engaging in a contract with Jones to sell his silence. We have so far been assuming that Smith’s knowledge is correct. Suppose, however, that the knowledge is false and Smith knows that it is false (the “worst” case). Does Smith have the right to disseminate false information about Jones? In short, should “libel” and “slander” be illegal in the free society?

And yet, once again, how can they be? Smith has a property right to the ideas or opinions in his own head; he also has a property right to print anything he wants and disseminate it. He has a property right to say that Jones is a “thief” even if he knows it to be false, and to print and sell that statement.
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We can, of course, readily concede the gross immorality of spreading false libels about another person. But we must, nevertheless, maintain the legal right of anyone to do so. Pragmatically, again, this situation may well redound to the benefit of the people being libelled.

The thought that keeps running through my head as I read these statements is this: What is WRONG with you people!?

Of course, I’m reacting out of anger, not rational disapproval. But I think I at least have a good reason to be mad. I don’t like being lied to, and here these guys are, saying that lying is not wrong! What gives?

Giving my opponents the benefit of the doubt here, it seems to me that they’re arguing that lies do not necessarily cause harm. Thus, while lies may be disgusting and immoral, we shouldn’t automatically treat them like crimes. Alexander even goes so far as to offer a situation when lying could be considered just and moral.

But I think these guys are missing something. I think that they are missing the fundamental nature of lies. To me, the important point is this: lying is for enemies.

Consider our friends in the animal kingdom. They lie to each other, and they do it quite often. A crab spider, disguised as a flower, is lying to any nearby insects about its true nature. And why not? It’s not trying to cooperate with the bugs, it’s trying to eat them, so open and honest communication would not serve the spider’s agenda in any way.

“Sorry, pal, but you should have read the fine print more carefully.”

It’s not just predators who lie, of course. Prey lie, too. And why not? If a creature is trying to eat you, do you have any obligation to give it an honest account of your true nature?

But Rothbard and Baker are not talking about predator-prey relationships between animals. They’re talking about human relationships. And not just any human relationships, but peaceful human relationships, the sort that we’d like to permit under any circumstances. In situations like these, there should be no enemies. I may not be friends with everyone, but I seek to be an enemy to no one, and I consider that to be a reasonable standard for all people. If someone lies to me, or lies about me, then my default assumption is that they are an enemy to me, and therefore they are an active danger, requiring appropriate response.

The nature of lying becomes more apparent when you look at the sort of lies that people defend. Crosbie Fitch has a particular lie that he likes to use as an example: “There are no Jews in this house”. The implication, of course, is that the liar is speaking to a Gestapo officer or some other anti-Semite, and is concealing the existence of Jews in order to protect their lives. Now tell me this: would you say that the liar has a friendly relationship with the Nazis they’re lying to? Of course not! They’re enemies with the Nazis, and they’re acting like enemies by actively obstructing the Nazis’ efforts to achieve their goals. We say that the lie is just because the liar is justified in treating the Nazis as enemies (hardly a controversial position, to be sure). But in a situation where the questioner is not worthy of being called an enemy, would we still justify the liar?

Now, having said all that, I must concede that there are many, many, many circumstances when punishing a liar is simply not possible, let alone desirable. If I actually had to enumerate when you could and should punish a liar, my position might not be so far from Rothbard’s. But I still think that Rothbard and Baker are far too cavalier about lies and liars.

The fact is that, as humans, we rely on each other. We need the knowledge that other people have, so we count on each other to tell the truth. Thus, we are generally justified in ostracizing liars simply because they lied, even if the lies had no effect. And if the lies did in fact cause measurable damage, then the liar has to pay. Rothbard is right in noting the problems that can come from libel laws (and he’s quite right to reject any right to “reputation”) but he’s wrong to reject libel laws entirely. Lying hurts, and lies are bad, and any society made of humans is going to recognize that.

A very long disagreement with Alexander Baker

As I’ve mentioned previously, there’s a split in the libertarian movement right now, over the subject of “intellectual property”. Some are against it, some are for it. One of the voices in favor of intellectual property rights (specifically in the area of copyright) is a fellow named Alexander Baker. He writes a blog called Intellectual Space, subtitled: “The Libertarian Theory of Intangible Property”. Here’s his brief explanation of his own blog:

Intellectual Space is a praxeological examination of property rights for intangible objects. I initially began thinking that a rigorous philosophical approach would support the anti-IP position prevalent in libertarian circles. The opposite has occurred.

This is an interesting challenge for me. Alexander Baker appears to share many of the premises I have, yet he arrives at a very different conclusion from mine, and he insists that it is the result of a rigorous philosophical approach. This indicates to me that something, somewhere, has gone wrong. Perhaps we do not share certain as many premises as I thought. Perhaps our logic has gone wrong somewhere. Perhaps we’re just miscommunicating, and we do not truly differ in opinion. Whatever the case, there is a problem somewhere, and this long post is my attempt to tease out that problem and fix it.