10 ms·

I don't know. Every legal concept is entirely the government's creation, including both physical and intellectual property, so I'm not sure it's worth quibblin

I don't know. Every legal concept is entirely the government's creation, including both physical and intellectual property, so I'm not sure it's worth quibbling about that part.

johnchristopher 13y ago
Every legal concept is entirely the government's creation, including both physical and intellectual property, so I'm not sure it's worth quibbling about that part. Not entirely true. I want to point out that we have to consider how lobbying is influencing lawmakers.
- foobarbazqux 13y ago
  Sure, lots of things influence the government. But the point is that none of our legal concepts actually exist until the government decides to make laws and enforce them.
humanrebar 13y ago
While intellectual property is almost entirely a legal creation, government is not necessary for property to exist. Indeed, John Locke considered property to be a natural right along with life and liberty.
- foobarbazqux 13y ago
  Sorry, if it's you in the forest with a shotgun defending your property in a libertarian utopia, you're the government.
  - homosaur 13y ago
    I get what you're aiming at but if you're holding the shotgun, that's not government. Government is when I cede the right to protect my forest with a shotgun in order that a government entity will do it for me. We give government a monopoly on force under the agreement that I generally should not be shooting people to protect my rights.
    - foobarbazqux 13y ago
      It's a totalitarian government where the dictator and the sole citizen of the state are the same person, and the citizen works for the dictator (well, there's no choice). Government is simply the application of force to create rights. No more, no less. But also, if you come onto my property, you don't have to cede authority to me, I'm still the government and I will make decisions about what happens to you, so you are bound to my laws whether you like it or not.
    - sliverstorm 13y ago
      Government is when I cede the right to protect my forest We give government a monopoly on force No, that's just one incarnation of government.
    - orclev 13y ago
      That's not entirely true, at least in the United States. That's part of the purpose of the 2nd amendment. We cede some of our rights to use force to the government, but things like Castle Doctrine and the 2nd amendment mean we also retain those rights in specific circumstances. Another aspect of the 2nd amendment people often overlook (particularly gun control advocates) was that it was originally intended as a check to the power of the army. The idea being that should the government ever try to use the military to suppress the public, that an armed public would be able to fight back and presumably being bigger than the military, win. That theory has been greatly eroded in the last 70 years or so by the increasingly large gap between the weapons the military has access to and what the public has access to. Back when the constitution was drafted a rifle was a rifle was a rifle, and 200 soldiers versus 1000 citizens all armed with rifles, the citizens would likely win. These days with the military having tanks and jets and nightvision and all manner of other advanced weapons (including the much debated fully automatic rifles) means that your average group of citizens wouldn't stand a chance against the military in serious armed conflict.
      - homosaur 13y ago
        In general, the point of something like castle doctrine is to maintain defense of life, not property. If I went down to the edge of my property and someone came onto my property and was not threatening me you can't then shoot them. The argument for castle doctrine is you can consider the act of home invasion itself to represent deadly force and can respond freely. Castle doctrine is a states-only policy and the feds have no position on it. The second amendment states only that people's right to bear arms shall not be infringed, it doesn't state anything about the application of force. I don't want to get into this debate on HN but there's not that much evidence that the 2nd Amendment was meant to be a check on the army. It's related to the long-standing English principle of the right to self-defense and the English Bill of Rights of 1689. The English always thought you had the right to defend yourself with deadly force and a long standing tradition of a natural right to bear arms. https://en.wikipedia.org/wiki/Right_to_keep_and_bear_arms https://en.wikipedia.org/wiki/Right_to_keep_and_bear_arms
  - jlgreco 13y ago
    Like most normal well adjusted people, I don't steal and I expect and find that those around me do the same. The reason my coworkers haven't stolen the keyboard off my desk when I go to get coffee isn't the government, it is just because they have some base-level respect for me. Clearly the concept of property, at least as it exists in my office, is not an artifact of some governing body. It exists despite that; it exists without any threat of force. Or is that most basic mutual respect now "the government" in an office environment? If that is the case then we are basically removing any useful meaning from the word.
    - foobarbazqux 13y ago
      That's a good point. The last time I was reading about this I found out that some anarchists (pacifists, maybe) refer to this idea as "possession", to distinguish it from property. It's not "your" keyboard (in this case it probably belongs to the company), but you're using it right now, so it would be indecent to take it away from you.
      - jlgreco 13y ago
        Hmm, sounds about right. I haven't read much anarchist literature at all, but that meshes pretty nicely with what I know of anarcho-syndicalists. Either way, I think it stems from the same basic human desire, probably hardwired, to not have things taken and to have some basic loyalty or respect to members of your 'tribe'. (After all, governments are made of people and those people must have thought the concept of 'property' was a good idea for some reason.)
        foobarbazqux 13y ago
        So the reason I brought up physical property is because if that's not a complete fiction then it's bizarre for intellectual property to be a complete fiction. Governments don't create things out of whole cloth, the laws always correspond to something, even if they do it badly.
        13y ago
  - humanrebar 13y ago
    The inability to enforce rights in nature is independent of the existence of those rights. You might need a shotgun to defend your life in a "libertarian utopia", but that doesn't mean you don't have a right to it. In fact, your hypothetical correctly assumes that people need to protect their stuff. This need is evidence of self interest. The fact that there are universal norms that allow the use of force to protect things is evidence of a right to property. In other words, a victim of theft is rightfully angry. This lets us conclude that he has a right to be free of theft. This indicates a right to property.
    - foobarbazqux 13y ago
      There's a difference between legal rights and natural / human rights. The latter are ideals, the former are what are brought into existence by the application of force. Intellectual property corresponds (somewhat poorly) to the natural right of being allowed to profit from your ideas.
      - humanrebar 13y ago
        I disagree with your definitions. Rights, though abstract, are real. This is why atrocities outside the reach of law (murder in international water, war crimes, genocide) are clearly wrong. Laws are nothing but codified decisions from government. Sometimes they define the specifics of how natural rights are balanced against each other. However, laws sometimes violate rights, such as the now-repealed Jim Crow laws in the American South. Furthermore, the term "legal rights" can also be a misnomer for government-guaranteed privileges such as the "right" to government-provided benefits or (in my opinion) intellectual property "rights".
        foobarbazqux 13y ago
        The difference legal and natural rights corresponds to the difference between laws and morals. That's all I mean. Natural rights are real things in as much as morals are real things.
        13y ago
  - baddox 13y ago
    You're free to define "government" in such a way, but that's not a very useful definition in a discussion about what role the "government" should play.
    - foobarbazqux 13y ago
      I think we went through this before. What was your definition of government again? A man and a woman alone together in a forest and the man has the shotgun?
      - baddox 13y ago
        No, that was never my definition of government.
        foobarbazqux 13y ago
        No really, what is it? Does it have something to do with a certain number of people and an inequality among them?
  - betterunix 13y ago
    You need a society for a government to make any sense. One person defending their property is neither a society nor a government. Until you have the minimum viable population for our species (i.e. the smallest group of humans that can avoid extinction) you cannot really have a society.
    - foobarbazqux 13y ago
      So Adam and Eve then?
      - betterunix 13y ago
        Actually it takes more than one man and one woman for humanity to avoid extinction with a reasonable degree of success: https://en.wikipedia.org/wiki/Minimum_viable_population https://en.wikipedia.org/wiki/Minimum_viable_population Of course, that number depends on things like the environment (a favorable environment will mean a smaller number) and the genetics of the "first" generation. I seriously doubt that the number could be as small as two for any species even under the most ideal circumstances.
        baddox 13y ago
        So there was never only a single human in existence?
        photojosh 13y ago
        Correct. There was a population of animals that at some stage started to approximate what we would call human.
        baddox 13y ago
        Yes. Basically, the http://en.wikipedia.org/wiki/Species_problem http://en.wikipedia.org/wiki/Species_problem.
- saraid216 13y ago
  Locke's definition of property always felt like a philosophical hack to me. It seemed more like an, "Oh shit, I need a definition of property," than a "Well... so that's what property is. Fascinating."
- baddox 13y ago
  And, empirically, property existed long before governments.
  - foobarbazqux 13y ago
    How can you have ownership without protection?
    - baddox 13y ago
      People can and do protect what they believe to be their property. Families and tribes can and do protect the territory they believe to belong to their members. I like David Friedman's description of property rights not primarily as moral or legal constructs, but as mutually recognized commitment strategies which discourage trespasses. He points out that territorialism in the animal kingdom is similar to property rights (obviously without the existence of a state). Animals mark their territory (e.g. with urine), and other animals tend to respect those boundaries, because there is mutual understanding that the territory holder will fight a trespasser to the death if necessary, and the damage to the trespasser (even a stronger trespasser) will most likely not be worth it. Perhaps the territory holder would be better off just retreating, but what makes it "property" is the near certainty that he won't retreat. http://www.daviddfriedman.com/Academic/Order_without_the_state/Order_Without_the_State.htm http://www.daviddfriedman.com/Academic/Order_without_the_sta...
      - foobarbazqux 13y ago
        I would call that a state; why is it not a state?
        deleted 13y ago
        [deleted]
        baddox 13y ago
        To clarify: you call territorialism in the animal kingdom a state?
- Zigurd 13y ago
  The point is that intellectual property is property in the same way that quarks have "color." It is a relatively novel legal concept compared to physical property. In the US constitution it is completely distinct from other rights: You are assumed to just have rights. Not among the assumed rights are patents and copyright, which are a government granted monopoly.
  - humanrebar 13y ago
    I agree with you about patent and copyrights, but I think it's important that people view essential rights like property rights and freedom of speech as being truly inalienable -- that individuals have them as long as right and wrong exist.
    - dublinben 13y ago
      >property rights and freedom of speech as being truly inalienable That's a simply preposterous belief though, and we should treat it as such. Many people have their rights to property and speech infringed on a regular basis. There isn't even a consensus on what those rights entail, as is clear any time 'hate speech' is brought up.
      - humanrebar 13y ago
        The work "inalienable" implies that it's outside the moral authority of culture, society, and government to remove those rights. It doesn't imply that those rights can never be infringed. That is, violating those rights is immoral, not impossible. In fact, the consensus that rights are infringed proves they exist. This is a correct example of the often misused phrase, "the exception that proves the rule". But you are right that the specifics of weighing rights against each other are tricky. That's where cultures, governments, and legal systems come in. To be clear, those human organizations do not create inalienable rights, but they are responsible for enforcing them. And a failure to do so would be a moral failure, not an impossibility.
      - Zigurd 13y ago
        "Inalienable" is quite an idealistic and American word in this context. Nevertheless, the US federal constitution is written with some assumptions, and a "sense," That is, it is addressed to the government, from the people and the states, which predate the existence federal government, and which can undo the federal government through a constitutional convention. The ninth and tenth Amendments spell out the assumption that rights are not granted by the government, but powers are delegated to the federal government. Rights are open-ended. Powers are enumerated. This is an elegant way of making the constitution future-proof (so beware of people who start a sentence with "The Framers never had..."). Copyright and patents are a notable exception to the above. They are an explicitly granted monopoly, through an explicitly enumerated power of the federal government. The "property" part appears nowhere in the constitution and is a tendentious word added later, like "pro-life."
- saraid216 13y ago
  Incidentally, this entire thread can basically be summarized here: http://www.justiceharvard.org/2011/02/episode-04/ http://www.justiceharvard.org/2011/02/episode-04/
troyastorino 13y ago
Legal concepts that are derivative from the natural right to liberty, e.g. freedom of speech, are protected by the government, but that is not the same as them being created by the government. An individual certainly has liberty, and thus freedom of speech, in the context of a state of nature. He does not, however, have a guarantee that an organization with a monopoly on the use of force, i.e. a government, will protect that liberty.
- foobarbazqux 13y ago
  Do you have the freedom to profit from your ideas in the state of nature?
  - a-priori 13y ago
    Assuming we're talking about the Hobbesian "state of nature" then yes, of course you do have that freedom. Along with every other freedom. But you only have a right to profit insofar as you can keep others from exercising their freedom to steal your ideas (or anything else).
    - foobarbazqux 13y ago
      If I have a natural right to profit from my ideas, isn't it reasonable that I might want a legal right?
      - a-priori 13y ago
        In a state of nature, there is no such thing as a "legal right", or law of any kind other than might-makes-right.
        foobarbazqux 13y ago
        But legal rights are synonymous with might-makes-right. A natural or human right is something we would like to have but cannot guarantee until it is made into law. I am just asking whether laws about intellectual property correlate to natural rights in the same way that laws about physical property do, since the original claim was that they are 100% fabricated.

I don't know. Every legal concept is entirely the government's creation, including both physical and intellectual property, so I'm not sure it's worth quibbling about that part.

johnchristopher 13y ago

Every legal concept is entirely the government's creation, including both physical and intellectual property, so I'm not sure it's worth quibbling about that part. Not entirely true. I want to point out that we have to consider how lobbying is influencing lawmakers.

foobarbazqux 13y ago
Sure, lots of things influence the government. But the point is that none of our legal concepts actually exist until the government decides to make laws and enforce them.

humanrebar 13y ago

While intellectual property is almost entirely a legal creation, government is not necessary for property to exist. Indeed, John Locke considered property to be a natural right along with life and liberty.

foobarbazqux 13y ago
Sorry, if it's you in the forest with a shotgun defending your property in a libertarian utopia, you're the government.
- homosaur 13y ago
  I get what you're aiming at but if you're holding the shotgun, that's not government. Government is when I cede the right to protect my forest with a shotgun in order that a government entity will do it for me. We give government a monopoly on force under the agreement that I generally should not be shooting people to protect my rights.
  - foobarbazqux 13y ago
    It's a totalitarian government where the dictator and the sole citizen of the state are the same person, and the citizen works for the dictator (well, there's no choice). Government is simply the application of force to create rights. No more, no less. But also, if you come onto my property, you don't have to cede authority to me, I'm still the government and I will make decisions about what happens to you, so you are bound to my laws whether you like it or not.
  - sliverstorm 13y ago
    Government is when I cede the right to protect my forest We give government a monopoly on force No, that's just one incarnation of government.
  - orclev 13y ago
    That's not entirely true, at least in the United States. That's part of the purpose of the 2nd amendment. We cede some of our rights to use force to the government, but things like Castle Doctrine and the 2nd amendment mean we also retain those rights in specific circumstances. Another aspect of the 2nd amendment people often overlook (particularly gun control advocates) was that it was originally intended as a check to the power of the army. The idea being that should the government ever try to use the military to suppress the public, that an armed public would be able to fight back and presumably being bigger than the military, win. That theory has been greatly eroded in the last 70 years or so by the increasingly large gap between the weapons the military has access to and what the public has access to. Back when the constitution was drafted a rifle was a rifle was a rifle, and 200 soldiers versus 1000 citizens all armed with rifles, the citizens would likely win. These days with the military having tanks and jets and nightvision and all manner of other advanced weapons (including the much debated fully automatic rifles) means that your average group of citizens wouldn't stand a chance against the military in serious armed conflict.
    - homosaur 13y ago
      In general, the point of something like castle doctrine is to maintain defense of life, not property. If I went down to the edge of my property and someone came onto my property and was not threatening me you can't then shoot them. The argument for castle doctrine is you can consider the act of home invasion itself to represent deadly force and can respond freely. Castle doctrine is a states-only policy and the feds have no position on it. The second amendment states only that people's right to bear arms shall not be infringed, it doesn't state anything about the application of force. I don't want to get into this debate on HN but there's not that much evidence that the 2nd Amendment was meant to be a check on the army. It's related to the long-standing English principle of the right to self-defense and the English Bill of Rights of 1689. The English always thought you had the right to defend yourself with deadly force and a long standing tradition of a natural right to bear arms. https://en.wikipedia.org/wiki/Right_to_keep_and_bear_arms https://en.wikipedia.org/wiki/Right_to_keep_and_bear_arms
- jlgreco 13y ago
  Like most normal well adjusted people, I don't steal and I expect and find that those around me do the same. The reason my coworkers haven't stolen the keyboard off my desk when I go to get coffee isn't the government, it is just because they have some base-level respect for me. Clearly the concept of property, at least as it exists in my office, is not an artifact of some governing body. It exists despite that; it exists without any threat of force. Or is that most basic mutual respect now "the government" in an office environment? If that is the case then we are basically removing any useful meaning from the word.
  - foobarbazqux 13y ago
    That's a good point. The last time I was reading about this I found out that some anarchists (pacifists, maybe) refer to this idea as "possession", to distinguish it from property. It's not "your" keyboard (in this case it probably belongs to the company), but you're using it right now, so it would be indecent to take it away from you.
    - jlgreco 13y ago
      Hmm, sounds about right. I haven't read much anarchist literature at all, but that meshes pretty nicely with what I know of anarcho-syndicalists. Either way, I think it stems from the same basic human desire, probably hardwired, to not have things taken and to have some basic loyalty or respect to members of your 'tribe'. (After all, governments are made of people and those people must have thought the concept of 'property' was a good idea for some reason.)
      - foobarbazqux 13y ago
        So the reason I brought up physical property is because if that's not a complete fiction then it's bizarre for intellectual property to be a complete fiction. Governments don't create things out of whole cloth, the laws always correspond to something, even if they do it badly.
        13y ago
- humanrebar 13y ago
  The inability to enforce rights in nature is independent of the existence of those rights. You might need a shotgun to defend your life in a "libertarian utopia", but that doesn't mean you don't have a right to it. In fact, your hypothetical correctly assumes that people need to protect their stuff. This need is evidence of self interest. The fact that there are universal norms that allow the use of force to protect things is evidence of a right to property. In other words, a victim of theft is rightfully angry. This lets us conclude that he has a right to be free of theft. This indicates a right to property.
  - foobarbazqux 13y ago
    There's a difference between legal rights and natural / human rights. The latter are ideals, the former are what are brought into existence by the application of force. Intellectual property corresponds (somewhat poorly) to the natural right of being allowed to profit from your ideas.
    - humanrebar 13y ago
      I disagree with your definitions. Rights, though abstract, are real. This is why atrocities outside the reach of law (murder in international water, war crimes, genocide) are clearly wrong. Laws are nothing but codified decisions from government. Sometimes they define the specifics of how natural rights are balanced against each other. However, laws sometimes violate rights, such as the now-repealed Jim Crow laws in the American South. Furthermore, the term "legal rights" can also be a misnomer for government-guaranteed privileges such as the "right" to government-provided benefits or (in my opinion) intellectual property "rights".
      - foobarbazqux 13y ago
        The difference legal and natural rights corresponds to the difference between laws and morals. That's all I mean. Natural rights are real things in as much as morals are real things.
        13y ago
- baddox 13y ago
  You're free to define "government" in such a way, but that's not a very useful definition in a discussion about what role the "government" should play.
  - foobarbazqux 13y ago
    I think we went through this before. What was your definition of government again? A man and a woman alone together in a forest and the man has the shotgun?
    - baddox 13y ago
      No, that was never my definition of government.
      - foobarbazqux 13y ago
        No really, what is it? Does it have something to do with a certain number of people and an inequality among them?
- betterunix 13y ago
  You need a society for a government to make any sense. One person defending their property is neither a society nor a government. Until you have the minimum viable population for our species (i.e. the smallest group of humans that can avoid extinction) you cannot really have a society.
  - foobarbazqux 13y ago
    So Adam and Eve then?
    - betterunix 13y ago
      Actually it takes more than one man and one woman for humanity to avoid extinction with a reasonable degree of success: https://en.wikipedia.org/wiki/Minimum_viable_population https://en.wikipedia.org/wiki/Minimum_viable_population Of course, that number depends on things like the environment (a favorable environment will mean a smaller number) and the genetics of the "first" generation. I seriously doubt that the number could be as small as two for any species even under the most ideal circumstances.
      - baddox 13y ago
        So there was never only a single human in existence?
        photojosh 13y ago
        Correct. There was a population of animals that at some stage started to approximate what we would call human.
        baddox 13y ago
        Yes. Basically, the http://en.wikipedia.org/wiki/Species_problem http://en.wikipedia.org/wiki/Species_problem.
saraid216 13y ago
Locke's definition of property always felt like a philosophical hack to me. It seemed more like an, "Oh shit, I need a definition of property," than a "Well... so that's what property is. Fascinating."
baddox 13y ago
And, empirically, property existed long before governments.
- foobarbazqux 13y ago
  How can you have ownership without protection?
  - baddox 13y ago
    People can and do protect what they believe to be their property. Families and tribes can and do protect the territory they believe to belong to their members. I like David Friedman's description of property rights not primarily as moral or legal constructs, but as mutually recognized commitment strategies which discourage trespasses. He points out that territorialism in the animal kingdom is similar to property rights (obviously without the existence of a state). Animals mark their territory (e.g. with urine), and other animals tend to respect those boundaries, because there is mutual understanding that the territory holder will fight a trespasser to the death if necessary, and the damage to the trespasser (even a stronger trespasser) will most likely not be worth it. Perhaps the territory holder would be better off just retreating, but what makes it "property" is the near certainty that he won't retreat. http://www.daviddfriedman.com/Academic/Order_without_the_state/Order_Without_the_State.htm http://www.daviddfriedman.com/Academic/Order_without_the_sta...
    - foobarbazqux 13y ago
      I would call that a state; why is it not a state?
      - deleted 13y ago
        [deleted]
      - baddox 13y ago
        To clarify: you call territorialism in the animal kingdom a state?
Zigurd 13y ago
The point is that intellectual property is property in the same way that quarks have "color." It is a relatively novel legal concept compared to physical property. In the US constitution it is completely distinct from other rights: You are assumed to just have rights. Not among the assumed rights are patents and copyright, which are a government granted monopoly.
- humanrebar 13y ago
  I agree with you about patent and copyrights, but I think it's important that people view essential rights like property rights and freedom of speech as being truly inalienable -- that individuals have them as long as right and wrong exist.
  - dublinben 13y ago
    >property rights and freedom of speech as being truly inalienable That's a simply preposterous belief though, and we should treat it as such. Many people have their rights to property and speech infringed on a regular basis. There isn't even a consensus on what those rights entail, as is clear any time 'hate speech' is brought up.
    - humanrebar 13y ago
      The work "inalienable" implies that it's outside the moral authority of culture, society, and government to remove those rights. It doesn't imply that those rights can never be infringed. That is, violating those rights is immoral, not impossible. In fact, the consensus that rights are infringed proves they exist. This is a correct example of the often misused phrase, "the exception that proves the rule". But you are right that the specifics of weighing rights against each other are tricky. That's where cultures, governments, and legal systems come in. To be clear, those human organizations do not create inalienable rights, but they are responsible for enforcing them. And a failure to do so would be a moral failure, not an impossibility.
    - Zigurd 13y ago
      "Inalienable" is quite an idealistic and American word in this context. Nevertheless, the US federal constitution is written with some assumptions, and a "sense," That is, it is addressed to the government, from the people and the states, which predate the existence federal government, and which can undo the federal government through a constitutional convention. The ninth and tenth Amendments spell out the assumption that rights are not granted by the government, but powers are delegated to the federal government. Rights are open-ended. Powers are enumerated. This is an elegant way of making the constitution future-proof (so beware of people who start a sentence with "The Framers never had..."). Copyright and patents are a notable exception to the above. They are an explicitly granted monopoly, through an explicitly enumerated power of the federal government. The "property" part appears nowhere in the constitution and is a tendentious word added later, like "pro-life."
saraid216 13y ago
Incidentally, this entire thread can basically be summarized here: http://www.justiceharvard.org/2011/02/episode-04/ http://www.justiceharvard.org/2011/02/episode-04/

troyastorino 13y ago

Legal concepts that are derivative from the natural right to liberty, e.g. freedom of speech, are protected by the government, but that is not the same as them being created by the government. An individual certainly has liberty, and thus freedom of speech, in the context of a state of nature. He does not, however, have a guarantee that an organization with a monopoly on the use of force, i.e. a government, will protect that liberty.

foobarbazqux 13y ago
Do you have the freedom to profit from your ideas in the state of nature?
- a-priori 13y ago
  Assuming we're talking about the Hobbesian "state of nature" then yes, of course you do have that freedom. Along with every other freedom. But you only have a right to profit insofar as you can keep others from exercising their freedom to steal your ideas (or anything else).
  - foobarbazqux 13y ago
    If I have a natural right to profit from my ideas, isn't it reasonable that I might want a legal right?
    - a-priori 13y ago
      In a state of nature, there is no such thing as a "legal right", or law of any kind other than might-makes-right.
      - foobarbazqux 13y ago
        But legal rights are synonymous with might-makes-right. A natural or human right is something we would like to have but cannot guarantee until it is made into law. I am just asking whether laws about intellectual property correlate to natural rights in the same way that laws about physical property do, since the original claim was that they are 100% fabricated.