Kinsella on Richard Epstein on "The Structural Unity of Real and Intellectual Property"

A discussão sobre a Propriedade Intelectual. Contém referências ao debate.

MisesBlog: New from Law professor Richard Epstein: The Structural Unity of Real and Intellectual Property (video). Epstein argues that there are many similarities between physical property and "non-physical" property (i.e, intellectual property). Epstein identifies four principles that create a basic framework for understanding physical property law. He concluded in his speech that all four can be applied to intellectual property with the main difference being transfer of such property is only absolute in the case of physical property.

I think Epstein confuses positive law with justification. Of course IP "can" be enforced. But recognzing crucial role of scarcity in specifying property rights makes it clear that any enforcement of IP is always done in the physical realm--enFORCEment, get it? Enforcing IP in the physical realm in effect means a claim to IP is a claim to physical property. Property that is already owned. Property whose ownership is justified--in libertarian terms--by the first possession of that piece of property by the owner or an ancestor in title--the homesteader or someone who contracts with him. Granting a right to control that resource to an IP creator simply means transferring rights in an already-owned thing to a non-homesteader, non-contractor. We libertarians call this theft, trespass, confiscation, socialism, or redistrubution of wealth. Showing that modern positivistic legal systems can "deal with" IP does not show it is justified.

Interesting note: someone asked me if I thought it odd Epstein's paper does not cite or link to any prominent anti-IP libertarian publications, such as my Against Intellectual Property. (...)

But just a couple of observations: First, some of us have criticized Epstein's and Cato's pro-patent views in print in the past. See, e.g. Epstein and Patents; also Cato Tugs Stray Back Onto Reservation; Jude Blanchette's The Reimportation Controversy; Protectionist Cato?; Drug Patents and Welfare.

Second, it is interesting to note that James DeLong introduced Epstein's paper and talk--the same DeLong that I debated on the issue of "Do patents and copyrights undermine private property?" a few years back in a symposium in Insight Magazine."

1. Na discussão:

v1: Person A is the only one in the universe that is in 'possession' of idea X. (Actually I'm sure possess is the right word since an idea is not really something you can hold on to or see....). In this sense we can say idea X is scarce. This is the 'not everyone knows it' idea of scarcity.

v2: Person B comes into possession of idea X (independent discovery, imitation of A, etc.) Now two individuals have idea X. However both have completely independent instances of X. By obtaining idea X, B has not diminished A's copy of X, since it resides in A's mind and can never actually leave (unless forgotten). In this sense idea X is NOT scarce since it can be replicated into the mind of every individual w/o diminishing its existence in any previous "knower's" mind.
It is not the scarcity that matters. It is whether or not an individual can make use of something and leave it undiminished and fully available for someone else to use @ the same time. If this can be done then the good is non-rivalrous and thus cannot be homesteaded (i.e. become property) under liberatrian homesteading theory.

2. Outro:

"...that property rules are specifically aimed at establishing an owner of a scarce (rivalrous) thing so as to make it possible for these resources to be employed in a conflict-free way (and therefore, the rule has to be based on the homesteading principle and the prior-later distinction). They do not realize how crucial *scarcity* is to the whole enterprise of property rights. Therefore, they do not realize that in advocating property rules in IP they are really advocating for a change in property rules for scarce things. Adn this is exactly the problem with advocating rights in non-scarce things."

3. Na definição de "Rivalry"

Rivalry (economics) - From Wikipedia, the free encyclopedia

In economics, a good is considered either rivalrous (rival) or nonrival. Rival goods are goods whose consumption by one consumer prevents simultaneous consumption by other consumers. Most goods, both durable and nondurable, are rival goods. A computer is a durable rival good. One person's use of the computer presents a significant barrier to others who desire to use that computer at the same time. However, the first user does not "use up" the computer, meaning that some rival goods can still be shared through time. An apple is a nondurable rival good, once an apple is eaten, it is "used up" and no longer able to be eaten by others.

In contrast, nonrival goods may be consumed by one consumer without preventing simultaneous consumption by others. Most examples of nonrival goods are intangible goods. Television is a nonrival good; When a consumer turns on a television, this doesn't prevent the TV in another consumer's house from functioning as well. However, not all intangible goods are nonrival, and not all nonrival goods are intangible. By definition, fame is a rival, intangible good, since not everyone can be famous at the same time. Nonrival, tangible objects include a beautiful scenic view or the common cold.

Goods that are non-rival are therefore goods that can be enjoyed simultaneously by an unlimited number of consumers. Goods that are both nonrival and non-excludable are called public goods."