Saturday, August 14, 2004

Non-Rivalry in Discussion

What sort of anti-social idiot would pick a fight with Glen, a gracious blog-host, brilliant thinker, and ninja debater? Not me! But I might qualify as the sort of scrupulously polite guest who cautiously offers a modestly alternative view of some of the issues that Glen raised in his recent post, The Properties of Property Rights.

Glen there argues against drawing a fundamental distinction between intellectual property (IP) rights and tangible property rights. He explains that IP is limited in duration as a matter of policy because it is non-rivalrous in consumption as a matter of fact. Glen emphasizes, however, that the non-rivalry in consumption of IP does not make it fundamentally different from other types of property. Different types of property have different attributes, he explains, citing as an example the limited duration of rideable wave faces, an asset that I earlier described in terms of property rights. (Here as elsewhere, I take it we use “intellectual property,” to refer only to copyrights and patents. Other types of IP—trademarks, rights of publicity, and trade secrets—are rivalrous in consumption and thus impliedly outside the scope of our discussion.)

To bolster his point that different types of property have different attributes, Glen appears to claim that whereas a surfer who abandons a wave “cannot forbid another surfer from taking over,” the same is “[n]ot true for real estate. “ I have to wonder, though, why we cannot regard the adverse possession doctrine as establishing essentially the same rule for real property that holds true in surfing. Under adverse possession, someone who openly, exclusively, and notoriously occupies land to which they do not own title can thereby, if not ejected by the rightful owner after a term of some years, win rightful title to it. Surfers transfer title to waves in the same fashion, albeit more quickly.

I quibble, though. Different kinds of property certainly do have different attributes. Rideable wave faces don’t last as long as plots of land, even if title to either can pass from one who abandons the property to one who takes possession of it. In further defense of Glen’s argument, I note that he might likewise have observed that different kinds of property have different attributes of mobility. Waves and chattel property move; real property does not.

(OK, ok. More precisely, Earth-bound parcels of real property do not move with regard to each other, even though they move as a whole with respect to the rest of the universe. Sheesh, you sci-fi guys drive me nuts, sometimes.)

So understood, Glen’s argument leaves a crucial question hanging. Granting that different types of property have different attributes, does IP’s non-rivalry in consumption mark it as too different from tangible property to qualify as a natural right? To put the question another, perhaps clearer way, is rivalry in consumption a necessary attribute of a natural property right?

Some will say that the question, in either form, wrongly presupposes that natural rights exist. Some will answer, “No. Patents and copyrights qualify as natural rights.” I reply, “Yes, I think both that tangible property rights qualify as natural rights and that the non-rivalry in consumption of copyrights and patents marks them as too different in kind to merit that same appellation.”


Suicide Bombed

In my last post at Volokh, I promised to extend my economic theory of suicide to the case of suicide bombers. Over a month later, I’m finally getting around to it.

The story so far: I model the suicidal person as engaged in a search for suicide opportunities, akin to a job search or product search. The agent ranks the possible methods in order of desirability (e.g., guns are preferred to pills, pills are preferred to drowning). But some methods are more readily available than others, and waiting for a better method to come along means enduring a bit more of life’s misery. The model counter-intuitively predicts that decreased availability of a preferred method could increase the frequency of suicide, because the agent becomes more willing to employ the less-desirable but more-readily-available methods. (The job-search analogy: A worker is more likely to take a lousy job offer now if he’s unlikely to get a good job offer in the future.)

As I originally conceived the model, all the utility values are negative: life sucks, shooting yourself sucks, etc. The agent just tries to minimize the sum of suckiness. But actually, all the math goes through just as well with positive values. Imagine a would-be terrorist. He doesn’t necessarily hate his life – it has a net positive value – but he also anticipates great utility from the killing of infidels, enough so that he might be willing to sacrifice his life. The more dead infidels, the greater the utility. This provides a natural ranking of his suicide opportunities: a planeful of victims is preferred to a busful, a busful to a carful. But some opportunities are more readily available than others. A 9/11 takes months of preparation (at least), and only a few hijackers. Opportunities to bomb buses arise more often.

The conclusion? If increased security diminishes opportunities for “major” terrorist acts, the result could be increased frequency of “small” terrorist acts. Would-be terrorists, faced with fewer chances to commit big atrocities, become more likely to commit small ones. The total number of terrorist acts or victims could rise or fall. Example: The U.S. had (maybe still has) lousy airport security. We got 9/11. Meanwhile, Israel has had its airport security tight as a drum for decades. They get countless truck bombings, car bombings, restaurant bombings, etc.

I know, I know… that’s purely anecdotal evidence, and I wouldn’t claim otherwise. The U.S. and Israel differ in numerous important ways other than their airport security, including their size and their distance from the terrorist breeding grounds. It would be difficult, maybe impossible, to do a true controlled study. So there’s no proof here, but I think the comparison is suggestive.

Does the theory indicate that increasing airline security is a bad idea? Not necessarily, since the total effect is ambiguous. But at a minimum, we shouldn’t simply assume that increasing security in any given area will have reduce the incidence terrorism. If I worked for Homeland Security, I would anticipate an increase in the number of small-scale terrorist attacks that don’t involve airplanes.


Friday, August 13, 2004

The Banquet Roves from List to Blog

Browsing the comments to Glen’s most recent post, I saw Mike Linksvayer’s name. Sure enough, it’s the same Mike I met back in Chicago, nearly 15 years ago, at an outing to Gilbert and Sullivan’s most anarcho-capitalist musical, Utopia, Limited. (Hi, Mike!)

Mike and I used to hang out on the Extropy email listserv. I don’t subscribe to that or many other email lists anymore. More accurately, I simply stopped getting messages from the list and never got around to doing anything about it. It had grown too noisy for my tastes, as email lists generally have since I’ve started reading blogs.

Mike has an interesting blog, which I can suggest to anyone interested in the social impacts of technology. Consider, for instance, his most recent post, which inquires whether the porn industry—so often a technological bellweather—will embrace digital rights management. (My guess: No. Porn consumers seem content with cheaply produced and only modestly original works. Porn producers thus need not recover the sort of fixed up-front costs that plague the traditional film industry.)

Mike’s blog informed me that Perry E. Metzger—ever brilliant, prolific, and unwilling to suffer fools—has a blog. I know Perry from the (now defunct?) Extropy listserv, too. From a post on Perry’s blog, I learned that Robin Hanson et al. plan a workshop on information markets (sometimes called “idea future” or “decision” markets) next February. If you don’t already know about Robin Hanson’s work, well, you should. Brace yourself for some assumption-kicking, first, though!

I’ve already written to Robin inquiring whether he plans to include any discussion of the legality of such markets. I’ve for some years been trying to get The Simon Market in Science Claims off the ground, focusing (naturally enough, given my aptitudes) on the legal and regulatory issues. For my law review article on the topic, check out Gambling for the Good, Trading for the Future: The Legality of Markets in Science Claims, 5 Chapman L. Rev. 159 (2002) [PDF format].

I offer this somewhat rambling post as a first-hand account of the blogohypercube’s (the traditional “blogosphere” just does not cut it) serendipitous ways. What a pleasant surprise that so many of my former listserv correspondents have resurfaced in this new medium! I’m tempted to say more, most notably about how blogging does not appear to encourage the same sort of back-and-forth that characterizes—and sometimes plagues—email lists. But if you will excuse me, I’ve got yet more blog links to follow.


Thursday, August 12, 2004

Properties of Property Rights

Consider the following two criticisms of intellectual property rights, both of which I’ve heard made by anti-IP libertarians: (1) “They have limited duration. If they’re true property rights, shouldn’t they have unlimited duration? If IP is a just form of property, then having a limited copyright or patent period should be construed as an unjust taking.” (2) “Ideas are non-rivalrous in consumption – use or enjoyment of an idea by one person does not diminish use or enjoyment by another person. This means ideas are fundamentally different from material assets.”

You can’t make both criticisms simultaneously, because one is the answer to the other. Ideas do in fact differ from material assets, just as stated in criticism (2). That is why it makes sense to treat intellectual property differently from material property by imposing an expiration date. The longer is the patent or copyright period, the greater is the deadweight losses from under-use of ideas.

Does an expiration date make property not “real” or “true” in some sense? I think not. Intellectual property and material property follow different rules. Real estate and movables also follow different rules. Assets in land, water, and air also follow different rules. Some rights, like your right not to have your car taken, are protected with property rules (violators are punished for not getting your consent), while other rights, like your right not have your car dented, are protected with liability rules (violators must pay damages but are not punished for failure to get consent). All of these distinctions derive, I would argue, from differences in the physical or economic characteristics of the assets or activities in question.

Allow me to appropriate Tom’s surfing-rights example to make the point more concrete. In the surfing system to which Tom refers, the following convention applies:

[Referring to a picture with four surfers labeled A, B, C, and D, in order of decreasing distance from the breaking wave.] OK, so it's surfer D. Why, because surfer D is closest to the breaking wave. Simple as that!. If surfer D does not get the wave then its up to surfer C and so on.
Note that in this system, some rights exist for limited durations – and not just the life of the wave. For a moment in time, D has the right to claim the wave. But it’s a “use it or lose it” situation: if he doesn’t take the wave, someone else claims it. Thus, D’s right has limited duration, and for good reason: unless someone jumps on the wave soon, it goes to waste.

Imagine, for a moment, that waves did not rapidly vanish, but instead became “fixed” upon having been claimed. In that situation, D could be granted a more permanent right without great harm. He could claim the wave, wait to use it until a more desirable time, sell it to someone else, etc. And that’s just how we handle much material property. If you acquire a piece of vacant real estate, you don’t lose it because you fail to develop it. You can wait until its most valuable use becomes clear before developing.

Some might object that the surfing convention above applies to homesteading of initial property rights, and therefore the more apt analogue in real estate is the requirement that a homesteader must use the land in some way – e.g., farming it for some period of time – in order to secure his claim. Perhaps so, although I’m not sure the “must use” requirement applies to all forms of homesteading. But set that aside and consider what happens even after a surfer has homesteaded the wave. As Tom observers, “Someone who favors large, outside waves might ride one only partially in-shore before pulling out over the lip and paddling back out, allowing a surfer who favors inside breaks to then take possession.” Note that the first claimant can only maintain ownership by maintaining possession; if he abandons the wave, he cannot forbid another surfer from taking over. Not true for real estate. The justification, as before, is that the wave would likely go to waste if the first claimant’s consent were required. Again, not true for real estate.

My point is not that surfing rights resemble intellectual property rights. My point is that surfing rights differ from traditional property rights for a sensible reason related to the nature of the assets in question – specifically, their permanence or rate of decay. Likewise, the rules of intellectual property rights also differ from other property rights for a sensible reason related to the nature of ideas – their non-rivalrous character. In no way does the difference in rules indicate the unreality or injustice of such rights.

(Addendum: From my recent posts, it may appear that I’m an ardent defender of strong intellectual property rights. Not true. There exist viable consequentialist arguments against strengthening – and in favor of weakening – IP protection. I may discuss them in future posts. Here, I’m arguing against the blanket dismissal of IP on what I consider silly or irrelevant grounds.)


Blogging as a Public Good

As my very brief history of blogging already indicates, I take a keen interest in privately-provided public goods. I’ve already written about street-side landscaping and clean beaches. You can now add blogging itself to that list. Reading a blog does not make it less available to others (absent an extreme case of server overload), thus making blogs non-rivalrous in consumption. Blogs almost always remain open to public scrutiny, too, making them non-excludable. That makes a blog, by the standard definition, a public good.

An aside for the exact: None of the three goods I’ve just mentioned qualifies as non-excludable per se; each could be—and sometimes is—fenced off. Here, as elsewhere, the definition of a public good relies not on its inherent attributes but on contingent facts about the rest of the world, most notably facts concerning the costs of enforcing property rights. You might thus substitute “non-excluded” for “non-excludable” in the definition of a public good. It just goes to show that private parties can cope with the problem of providing public goods simply by making them excludable, thus turning them into toll goods.

For now, though, I’m interested in discussing the mechanisms by which private parties can provide public goods without excluding access to them. By way of the story of Landscaping Man, I discussed the uses of shaming. Glen made much the same point in his post on voting. My description of the San Onofre Surfing Club impliedly demonstrated how private parties can provide a public good (clean beaches) by bundling them with a private good (access to a fun club). Glen did likewise, in his voting post, by suggesting that libertarians could host “voters only” parties.

What about blogs? They appear to constitute public goods (though I guess some wags might quibble about the “good” bit). And private parties certainly appear to provide them in abundance, without the benefit of any statist subsidies. Why?

To answer that question takes more honesty than reflection. Bloggers typically seek social status, something that only audiences can give them. Readers confer status on a blogger through the medium of praise, whether they offer it expressly or impliedly (by dint of links or simple referral counts), and whether they offer it by way of another blog post or a private compliment. Their goals fairly well ensure that bloggers will not exclude access to their posts. The low marginal costs of copying posts ensures that blogs remain non-rivalrous in consumption.

It is not surprising that bloggers seek social status. Most humans do. It does prove somewhat surprising, however, how in their high-tech pursuit of that near-universal drive, individually selfish bloggers have spontaneously created so selflessly generous a public good.


Wednesday, August 11, 2004

Surfing Customs, Customers, and Clubs

My surfin’ bud and fellow researcher, Paul Feine, no doubt hoping to score some of the fieldwork grants soon to pour in as a result of my recent plea, rightly reminds me that surfing property rights, as evolved norms, vary widely even along the SoCal coast. Compare, for instance, the mellow vibe at Old Man’s described below with the “locals only” ethos expressed by the Surf Punk’s classic, “My Beach!”

Paul also offered an cogent analysis in favor of privatizing the operation of one of our favorite surfing spots, San Onofre Surf Beach ("Sano"). Paul argued, in brief, that the state of California charges too little to access Sano (encouraging overuse), applies much of the funds that it does collect to unrelated uses (leaving Sano under-funded), and often works at cross-purposes to the private San Onofre Surf Club that locals have created to take up the resulting slack (such as by installing and maintaining shower hoses and BBQ grills). Although I’ve always found the state employees working at Sano friendly and helpful, I have to agree with Paul that their employer’s interests diverge from the interests of us surfers.

What would a locally-owned and operated Sano look like? Although the market’s wendings defy prediction, it seems safe to say that a private party would put up with more um, private partying than the State of California does. The latter killjoy, for instance, mowed down a stand of bamboo that enclosed a cozy little hideaway, reasoning that it might thereby crush the menace posed by dope-smoking surfers. I have my doubts about both the efficacy and wisdom of that policy; I still see a lot of goofily grinning surfers at Sano and still find them completely harmless. More to the point, I doubt that anyone looking to satisfy customers, as opposed to a Drug Czar from the East, would worry about a little secretive sand-side spliff sucking.

I learned about this recent struggle between Sano surfers and the State of California, by the way, from a member of the San Onofre Beach Club. I’ve made a habit of picking trash up off the beach both before and after I surf. Leaving the water after one recent session, I saw another guy doing the same. I struck up a conversation with him and learned that he was fulfilling one of his duties as a member of the club. Score another point for the private provision of public goods!

I plan to join the San Onofre Beach Club, too, as soon as I can figure out the somewhat obscure and informal process. It probably includes some mysterious initiation ceremony involving conch shells, face paint, and hula skirts. Hey, a guy can hope!


Gunning for President

Is it hypocritical of pro-gun Republicans to ban guns from the Republican National Convention? Here’s Mark Kleiman with an even-handed analysis:

Pro-gun forces have made a considerable amount of ill-natured sport out of the fact that some gun control advocates, including entertainers, have armed bodyguards. It's a fair point: if ordinary folks who can't afford to hire guards must go unprotected by guns, why should the rich be different? The business about the convention turns that around: if allowing guns to be present, even in the hands of people licensed to have them, is intolerably dangerous to the President -- even protected by the Secret Service -- why should the rest of us have to tolerate it?

Now of course that's not a completely reasonable position; the President is [a] special target, and what's justified to protect him might not be justified in an ordinary setting. But that doesn't necessarily make it any less effective rhetorically. If the President really believes in Second Amendment rights, why shouldn't licensed gun owners, and especially holders of concealed-carry permits, be allowed to bring guns into his convention. Or into the White House, if it comes to that?
That the President is no ordinary citizen is one defense, but I can think of at least one better defense: Keeping guns out of a convention hall is much easier than keeping guns out of the country. The number of entry points is finite, versus the virtually infinite number of entry point into the country. The number of attendees is small, relative to the population of a city or country. A convention hall can be evacuated and searched beforehand to find guns that might have been secreted there; but you can’t evacuate the country and search every house and hidey-hole to ferret out all the existing guns. In short, the difficulty of enforcing a national- or state-level gun ban dwarfs that of enforcing a building-level gun ban.


More Wining

Todd Zywicki has returned to the Volokh Conspiracy, where he’s making a series of posts on the wine-shipping cases that I discussed here. Here are part 1 and part 2 of Zywicki’s series.

UPDATE: And now part 3 is up.


Tuesday, August 10, 2004

Health Hazards

Via Tyler at Marginal Revolution, I found a summary version of Michael Porter and Elizabeth Olmsted Teisberg’s prescription for a better healthcare system. (I’m too cheap to pay $5 for the long version.) Porter and Teisberg, both trained in economics, provide a diagnosis and prescription far better than most. Still, there’s room for criticism – some substantive, some rhetorical.

First the rhetorical. Porter and Teisberg try to sound non-partisan and even-handed by saying things like, “There is no villain here. Poor public-policy choices have contributed to the problem, but so have the bad choices made by health plans, hospitals, and the employers who buy their services.” I understand what they’re trying to do, but in some cases it’s misleading. For instance, they draw attention to the lack of transparency in healthcare pricing and recommend simplified billing practices:

A fundamental function of pricing is to convey information to consumers and competitors. Current billing practices obscure that information. Unnecessarily complex billing contributes to cost shifting, drives up administrative costs, and makes price and value comparisons virtually impossible. Under positive-sum competition, providers would have to issue a single bill for each service bundle, or for each time period in treating chronic conditions, rather than a myriad of bills for each discrete service. Many other industries have solved the problem of how to issue a single bill for customized services; among them aerospace, construction, auto repair, and consulting. A competitive health care industry could figure it out, too.
Absolutely correct. But if Porter and Teinberg won’t point fingers, I will. Current billing practices result not from market forces, but from government interventions that have encouraged people to insure all healthcare services – including routine care and maintenance – and to avoid high-deductible policies. As a result, customers have almost no incentive to compare prices and demand simpler bills. Why should they, when the insurance company (or Medicare or Medicaid) takes care of the bill?

By way of comparison, most car owners will ask their mechanics about the price of auto repairs and question any mysterious items on the bill. Similarly, I suddenly became a lot more interested in the cost of dental procedures when I discovered that my dental insurance didn’t cover my preferred dentist. My dentist’s assistant was able to quote me exact prices for each thing I might want done; of course, government intervention in dentistry doesn’t even approach the level of intervention in regular healthcare.

Porter and Teisberg assuredly realize all of the above, which is why I characterize it as a rhetorical complaint. But now for a couple of substantive complaints:
[Under our plan,] Providers could and would set different prices from their competitors, but that pricing would not vary simply because one patient was insured by Aetna, another covered by Blue Cross, and another self-insured. Payers could negotiate, but price changes would have to benefit all patients, not just their own. The cost of treating a medical condition has nothing to do with who the patient's employer or insurance company is.
It’s simply false that the cost of treating a condition is independent of the patient’s affiliation. Some insurance companies and HMOs have bureaucratic procedures for handling claims, while others have streamlined the process. The former cost more to deal with than the latter. Moreover, a patient who pays out of pocket is substantially easier to process than any patient paying through insurance. If providers cannot discriminate based on the patient’s payment method, incentives for administrative efficiency will diminish greatly.
National List of Minimum Coverage. The current system of individual negotiation and litigation over coverage is expensive. A better system would mandate a minimum level of coverage with a national list (such as the one used in the Federal Employees Health Benefits Program).
Any mandated minimum coverage would need to specify the package of benefits to be included. And who would do the specifying? Either Congress or a bureaucracy. Either way, the contents of the package would assuredly fall prey to the depredations of special interests. Under the status quo, state legislatures have responded to the lobbying efforts of medical specialists and pharmaceutical companies by passing literally thousands of laws that require health insurance policies to cover particular benefits, from mental health to acupuncture to hair transplants. Premiums have risen in order to cover the cost of all these benefits, thereby pricing some customers out of the market. And that’s only at the state-level; with the higher stakes of a nationally mandated package, the special-interest problem could only get worse. Make no mistake: a mandated benefits package will drive costs up, not down.

When Porter and Teisberg talk about minimum coverage, I’m sure they have in mind a minimal, catastrophic-care, high-deductible plan. But in politics, what you want is rarely what you get. Porter and Teinberg know their industrial organization, but perhaps they should brush up on their public choice theory.

Be sure to read Tyler’s misgivings as well.


Skateboarding, the Latest Embarrassment?

I've long accepted that I’m always doing something embarrassing—but that I don’t always know what it is. I resign myself to finding out only later, in painful retrospect. Some few times I do know that I’m in for ridicule, of course, such as when I competed at an AAU swim meet wearing nothing but Speedo racing suit and an egg-sized hickey on my neck. Often, as with regard to regrettable clothing, I have only a nagging suspicion that I’ve missed the exit for Cooltown and ended up in Nerdsburg. On Dweeb Street. During the annual Mocking Days festival. See, e.g, the white Fantasy-Island-style leisure suit that I wore for my high-school senior picture.

Most often, though, I remain clue-lite that something I now regard as utterly acceptable, or perhaps even commendably edgy, will later give me a groan of recollection. My experiments with facial hair probably qualify on that count (though I reserve the right to reverse judgment if I ever figure out how to shake the Satan look). I recall with affection the zebra-striped shoes I wore as an undergrad—I painted them myself!—but wince when I remember that I wore them with the top from a karate uniform. Ow.

The question thus arises: What am I doing now that will later cause me embarrassment? As noted, clothing choices often merit suspicion. Maybe those flowered surf trunks that I like so much will come back to haunt me. (But they feel so comfy! And everybody wears them in San Clemente!) Or maybe it’s blogging, especially on the present theme, that will look pretty dumb in retrospect.

I think that skateboarding marks the most likely candidate for reversal on appeal, though. A 40-year-old can hardly expect to take up the sport without at least looking foolish, and perhaps even looking like he has rubbed asphalt on his face (because he has). Unless I can parlay this, the latest addition to my collection of board sports, into a decent showing at the Seniors' X-Games, I think I’m fairly likely to look back on it with some mortification (assuming that my head injuries allow me to look back, of course).

Nonetheless, undeterred by the haunting suspicion I’m going to crash into big regrets, I persist. I like learning new stuff, especially fun stuff like skateboarding. Learning to skateboard with my six-year-old daughter makes it all the more fun. I rationalize it as a way to teach her by my example (maybe) and by her own first-hand experience (undoubtedly) how initial failure can lead to eventual success. Anyhow, it’s so cute to see her rolling down the street, deep in concentration, red high-tops on her feet and braids peeking out from underneath her helmet, that I’m willing to risk embarrassment, both present and future.

Thank goodness for parenting. It removes the possibility—and thus the pressure—of achieving Coolness. We parents don’t need to feel embarrassed. We have kids to feel embarrassed for us.


Monday, August 09, 2004

Schopenhauer's Debate Camp

A few years ago, I wrote a debaters’ guide to logical fallacies. I’m hardly the first person to have created a list of fallacies; my purpose was to discuss how to deploy them in the context of debate – how to refute your opponents’ fallacies, and how to “fix” your own to make them more plausible or respectable. Even in this narrower task, I had plenty of company. Via Language Log, I found Robert Thouless’s “Thirty-eight dishonest tricks which are commonly used in argument, with the methods of overcoming them.” And it turns out that Thouless was apparently paying homage to Arthur Schopenhauer’s thirty-eight stratagems in “The Art of Controversy.” Both lists are excellent, especially the latter. Some selected passages (N.B.: some of these stratagems are not fallacies, but simply clever devices):

If you want to draw a conclusion, you must not let it be foreseen, but you must get the premisses admitted one by one, unobserved, mingling them here and there in your talk: otherwise, your opponent will attempt all sorts of chicanery. Or, if it is doubtful whether your opponent will admit them, you must advance the premisses of these premisses; that is to say, you must draw up pro-syllogisms, and get the premisses of several of them admitted in no definite order. In this way you conceal your game until you have obtained all the admissions that are necessary, and so reach your goal by making a circuit.
A great lesson for anyone performing a cross-examination. I’ve seen dozens of debaters try to force the cross-examinee to admit or deny a main proposition of the debate; utterly pointless. No one will admit what they don’t want to admit. Instead, use the cross-ex to lay the groundwork for your own devastating speech.
If you have no argument ad rem, and none either ad hominem, you can make one ad auditors; that is to say, you can start some invalid objection, which, however, only an expert sees to be invalid. Now your opponent is an expert, but those who form your audience are not, and accordingly in their eyes he is defeated; particularly if the objection which you make places him in any ridiculous light. People are ready to laugh, and you have the laughers on your side. To show that your objection is an idle one, would require a long explanation on the part of your opponent, and a reference to the principles of the branch of knowledge in question, or to the elements of the matter which you are discussing; and people are not disposed to listen to it.
Back in the day, we called this tactic a “time suck”: a point that probably won’t win you the round, but will induce your opponent to waste precious time in refutation. The wit is not strictly necessary, but it sure helps – I’ve seen a good joke swing many a debate round.
“That's all very well in theory, but it won't do in practice.” In this sophism you admit the premisses but deny the conclusion, in contradiction with a well-known rule of logic. The assertion is based upon an impossibility: what is right in theory must work in practice; and if it does not, there is a mistake in the theory; something has been overlooked and not allowed for; and, consequently, what is wrong in practice is wrong in theory too.
Ugh. It’s not an argument, but a place-holder one. Annoying, yet sadly effective.
When you state a question or an argument, and your opponent gives you no direct answer or reply, but evades it by a counter-question or an indirect answer, or some assertion which has no bearing on the matter, and, generally, tries to turn the subject, it is a sure sign that you have touched a weak spot, sometimes without knowing it. You have, as it were, reduced him to silence. You must, therefore, urge the point all the more, and not let your opponent evade it, even when you do not know where the weakness which you have hit upon really lies.
Every seasoned debater knows this one: whatever argument you’ve made to which your opponent has given the least attention – whether for lack of time or lack of response – suddenly morphs into the most important point of the debate.


Olympic Events: Summer and Summern't

The 2004 Summer Olympics will encompass so many different events that NBC plans to air them on at least three different channels. Which raises a question I've been wondering for several Olympic seasons now: why not move some summer events to the Winter Olympics, when the schedule isn't so jammed? Gymnastics, for instance. All gymnastics events take place indoors, so there's no particular reason not to move them to winter. And how about ping pong? Don't tell me they can't play ping pong in February. Boxing, fencing, judo, weight-lifting -- all indoor sports that can take place any time of year.

For that matter, all the swimming events happen indoors now...


Ping and Pong with Tim and Glen on Copyright and Natural Rights

Tim Sandefur clarifies his take on the (un)naturalness of copyright, and my co-host Glen offers a fresh view of the same topic. I here reply to each in turn and in brief. Ping-pong postings! How bloggy is that? Very much, I should think.

Tim complains that when it comes to defining the scope of copyright rights,

[W]e have a spectrum. On one extreme is the possibility that a person could own the genre of swamp-rock, . . . . On the other extreme, Fogerty can only own a specific, exact arrangement of notes . . . . In seeking a middle ground between these extremes we use “reasonableness.” But I don’t think reasonableness works if we’re using a natural right theory of copyright. If John Fogerty invents swamp-rock, then under a natural right theory of copyright, then he should be able to prohibit me from writing in that genre.
I take Tim to say that a natural rights view of copyright would logically permit the ownership of ideas—something that the Copyright Act specifically excludes from protection. On that reading, I think Tim has a valid point. The real-world law of copyright does not jibe with the theory of natural rights. Copyright practice diverges from natural rights in other areas, too. I catalog some of them in, Escape from Copyright: Market Success vs. Statutory Failure in the Protection of Expressive Works, 69 U. Cin. L. Rev. 741, 760-774 (2001).

Nonetheless, I don’t think that the case against natural copyrights can rely solely on the law’s failure to meet the demands of theory. Critics of natural rights to tangible property could make similar claims about the all-too-imperfect laws in that area. Consider, for instance, the long-standing Poletown decision that, as Tim describes, only recently and thankfully bit the dust. Granted, copyright practice diverges from natural rights theory more often and widely than the law of tangible property does. Still, I would hesitate to deny natural copyrights solely on that argument.

Glen offers a different angle on the natural copyrights dispute, one arising from his fundamentally consequentialist justification of all rights. On that view, whether copyright qualifies as a natural right (as opposed to merely a statutory right) depends on a variety of contingencies. Those contingencies include such things as the demand for expressive works, the incentives needed to foster their creation, and the costs of enforcing any rights thereby set up.

I’m largely sympathetic with that view of rights, because I do not think that natural rights derive from a priori reasons. I follow Randy Barnett in viewing natural rights from the viewpoint of naturalist legal positivism (as opposed to statist legal positivism). For Barnett’s early views on the topic, see Toward a Theory of Legal Naturalism, 2 J. Libertarian Studies, 97 (1978). On that view, natural rights rank as such because they prove necessary for people to live together in peace and prosperity. Economic theory can illuminate much about those rights, and legal reasoning can help to administer them, but practice remains the ultimate test of whether a right is natural to human thriving.

I don’t think copyright meets that test. Copyright arose relatively recently and from purely statutory origins. It did not evolve as a necessary means of guarding against antisocial violence and killing poverty. Economic theory offers only equivocating support for copyright, portraying it as only one of many tools for incentivizing the supply of expressive works. Economics also teaches that expressive works, as non-rivalrous in consumption, differ fundamentally from tangible goods. Deontological justifications of copyright, most notably those arising from Locke’s, Hegel’s or von Humbolt’s theories, prove susceptible to convincing counterarguments. I thus regard copyright as at best good public policy and at worst as an unnecessary and improper transgression on our natural rights to persons, properties, and promises.


Sunday, August 08, 2004

Natural Consequences

Could there be a natural right to intellectual property? Tim and Tom both doubt it. Though I’m not a proponent of the natural-rights approach myself (I usually call myself a rule utilitarian), I wonder if Tim and Tom are selling natural rights short. While libertarians often use “natural rights” as a kind of shorthand for deontological modes of reasoning, I think that does violence to the concepts of natural law and natural right as understood by the thinkers like Cicero and Aquinas who articulated them. (Disclaimer: I am neither a philosopher nor an expert on natural law.)

Natural law does not eschew consideration of consequences. Aquinas emphasizes the importance of “practical reasoning” as a means of applying natural law in particular circumstances. Natural law affirms certain ends, including survival, health, wealth, and knowledge, as inherently good for human beings. But it takes practical reasoning to understand the requirements for achieving those ends, and both the requirements and our understanding of them may change over time. Here’s Aquinas himself, in Summa Theologica, apropos the question of whether human law could ever change:

On the part of man, whose acts are regulated by law, the law can be rightly changed on account of the changed condition of man, to whom different things are expedient according to the difference of his condition. …

… The natural law is a participation of the eternal law, as stated above (91, 2), and therefore endures without change, owing to the unchangeableness and perfection of the Divine Reason, the Author of nature. But the reason of man is changeable and imperfect: wherefore his law is subject to change. Moreover the natural law contains certain universal precepts, which are everlasting: whereas human law contains certain particular precepts, according to various emergencies.

… A measure should be as enduring as possible. But nothing can be absolutely unchangeable in things that are subject to change. And therefore human law cannot be altogether unchangeable.

… In corporal things, right is predicated absolutely: and therefore, as far as itself is concerned, always remains right. But right is predicated of law with reference to the common weal, to which one and the same thing is not always adapted, as stated above: wherefore rectitude of this kind is subject to change.
Now, natural law is not subjectivist in the sense that utilitarianism typically is. It regards some things as inherently good, whether people subjectively desire them or not. But it is still broadly consequentialist in its application, because its prescriptions result both from a priori goods and from reasoning about what kinds of activities and institutions best advance them.

What does all this have to do with intellectual property? As I have argued before, the consequentialist justification for intellectual property is very similar (though not identical) to the justification for material property. Both forms of property serve to internalize the positive externalities that would accompany productive effort if the fruits of that effort were owned in common. It’s questionable whether either material or intellectual property ought to be considered “natural rights,” if that term means rights derived from purely a priori considerations. Without any consideration of economic factors like scarcity, incentives, and so on, nothing seems especially “natural” about exclusive control of any assets, material or otherwise. But if natural rights arise from the interaction of natural law principles and economic factors, then the case for natural rights in intellectual property differs little in principle from the case for natural rights in material property.


Dancing with Sharks

The sun has yet to rise and a quiet blanket of morning fog still wraps around our hill. I’m having a cup of coffee, trying to wake up for the dawn patrol at Sano. Maybe reading about these recent shark encounters at the local breaks will help to rev me up.

You have to enter a wilderness to surf. Even if you can see cars up on the beach, you see them from untamed world. I like that. Every few trips out a pod of dolphins will glide down the line, sometimes coming in close enough to pop up among the surfers. On Super Special Unicorn and Rainbow days they join us in riding the waves, rippling just under the surface until—POW!—they suddenly leap free into the air.

Only recently have the sharks started showing up. Or, more accurately, only recently have people started reporting having seen sharks. My wife sniffs a conspiracy, claiming that locals make up the stories to scare off tourists and Gomers. The incentives do favor fabrication, or at least marginal exaggeration. It costs little to report a shark encounter and may win you the same, pale glory that fishermen find in their prey. You alone would know that you in fact saw a seal. You would thus enjoy both less crowded breaks and less anxiety riding them. Even if you get caught in the lie, little of consequence would follow.

Alas, a public goods problem stalks the waves. If you have an incentive to make up shark tales, so do other surfers. And you cannot be sure whether others may stretched or even snapped the truth.

I’d ruminate longer, but I’ve got an appointment with the Man in a Grey Suit. Leastwise, I’ll be waiting for him. I hope he shows; that would make for a really good story. Too bad nobody would believe me.