Mises blog post. Archived comments below.
I’ve got some ideas about what would happen after the end of Atlas Shrugged. I could just describe the basic plot here for you. I could say, “I think that after the world economy crashes and the governments collapse, the heroes emerge and help to rebuild. Dagny and Galt have a child, who ends up being a Randian Kwisatz Haderach, named Sarah. Then they get divorced when Dagny cheats on Galt with Eddie Willers. Sarah ends up running for President of a scaled back federal government. And there are lots of interesting sub-plots, such as [x, y, z].”
I could use this technique to highlight how some of Rand’s ideas were flawed, in my view, or builds on or extends them into other areas.
But I thought actually writing it up in novel-form might be a different way to present these ideas. So I spent the last four years on this. The novel is a doozy–450 pages of great literature. My friends who’ve seen it think it’s amazing.
But I could not publish it. Rand’s estate would surely sue me for copyright infringement. You see, putting my ideas down on paper this way is a derivative work. Only the author of the original work has the “right” to make derivative works. So even though Rand released the ideas about Atlas and the plot and characters into the world so that people are aware of them, we cannot integrate these into our own works in some ways. The estate of Rand could (and probably would) literally get a court order enjoining me, under penalty of being jailed for contempt of court, from publishing the book.
Think this is an exaggeration? It’s not. Shortly before his death, J.D. Salinger, author of Catcher in the Rye, convinced U.S. courts to ban the publication of a novel called 60 Years Later: Coming Through the Rye.” (See also my post Book Banning Courtesy of Copyright Law.) Susan Boyle was prevented from singing a song because of copyright. A grocery store in Canada mistakenly sold 14 copies of a new Harry Potter book a few days before its official release on Saturday, July 16, 2005; a British Columbia Supreme Court judge “ordered customers not to talk about the book, copy it, sell it or even read it before it is officially released at 12:01 a.m. July 16. (See also Kinsella, Copywrong.) There’s the case where the seminal German silent film “Nosferatu” was deemed a derivative work of “Dracula” and courts ordered all copies destroyed. There’s the creative “alternative ending” to the Yogi Bear movie that could well be enjoined by Warner Bros., though it might luck out and benefit from the “fair use” defense. But these others wouldn’t, nor would my Atlas sequel.
Of course, I didn’t really write it. Who would, knowing courts would ban it? Copyright is literally censorship. No surprise, given that copyright’s origins lie in censorship (see my How Intellectual Property Hampers Capitalism; also The Surprising History of Copyright and The Promise of a Post-Copyright World; Masnick, The Cycle Of Copyright: Originally A Tool For Censorship, Attempted As A Tool For Incentives… Back To A Tool For Censorship). How any libertarian could support this is beyond me.
[Mises]
December 15, 2010 at 8:13 pm
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Indeed, it’s like censorship.
December 15, 2010 at 9:27 pm
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Its not “like” censorship. It is censorship.
December 15, 2010 at 8:29 pm
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Send it to WikiLeaks.
December 29, 2010 at 2:06 pm
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Why, when that’s a spook front working toward an end of one-world government?
December 15, 2010 at 9:19 pm
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Why not write it anonymously? Surely, the ARI would not have been able to go after you, as they would not have been able to prove who the author was.
Since you have written a blog post about this, you obviously cannot write this particular novel and publish it anonymously.
I don’t know how the courts figured that they could enforce their ruling regarding the Harry Potter books. If I had been one of the people to have bought it from that grocery store, I would certainly have read it. Out of disgust at the court ruling, I might have spent my time typing the book into a word processor and uploading it to a warez site, before it was even officially released. The court wouldn’t be able to prove anything.
December 16, 2010 at 11:13 am
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It’s a nice idea, but the government will go after the site as well. It’s astonishing how much control and oversight there is — beyond most folks’ wildest dreams or nightmares.
But for most of them, “Doesn’t matter. Doesn’t affect me.”
December 15, 2010 at 9:41 pm
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If you read the sad, sad, tragic even, history of the making of the Atlas film, you will see that this is not an exaggeration. If you think Rand is influential now, just imagine Rand without the intervention of government regulations that have so seriously impeded the distribution of her ideas and work. It was awful enough in her lifetime, but it’s been worse after her death, and truly dreadful in the digital, which might have otherwise done so much to spread her message. The problem is an IP one: those who presume to own her legacy can’t decide if imitation is flattery or piracy.
December 15, 2010 at 10:58 pm
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As Geoff Plauche notes in the comments here, “How ironic that IP may damage the creative translation of her magnum opus into film.” See also my post IP Killing Objectivism, where I quote some Objectivists lamenting the baleful effect of Rand heir Leonard Peikoff on the Ayn Rand Institute: “Leonard Peikoff, Ayn Rand’s student and heir, who does not sit on the board but, through his control of Ayn Rand’s name and intellectual property rights, holds enormous clout over the Institute’s actions.” One Objectivist explicitly writes:
Those who so readily dismiss libertarians who are questioning the soundness of the monopolies-by-law called “intellectual property” should think a few times about what deadening effects will continue to result from Rand’s copyrights remaining in the Peikoff family. For most of the rest of this century, by the way.
See also my LRC post Book Banning Courtesy of Copyright Law.
December 16, 2010 at 3:38 am
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i tried. i really did try, to read atlas shrugged. it was so full of bombastic writing and characters were either the tragic capitalists or the generally anonymous socialists and their mutterings were so repetitive. i fail to see why anyone would want to write a sequel but i find it extremely troublesome that nobody could… almost any writer could outdo her efforts and do it in a much more acceptable format…
kinda makes me think… mises writing is kinda rubbish really, but his thinking is genius. i’ve almost finished reading rothbard’s book ‘what has the government done to our money’ and i think it could be improved a little further yet, but the point i’m trying to get at, without imitating too much of the writing style of both of these literary/libertarian/austrian giants (verbosity?) …. i’m sorry, i just have to sigh at the incredible and miserable state to which the world has got when rothbard wrote that book i just read in 1955 and the propaganda of central banking is so pervasive and hammered into the vernacular.
my only consolation is that now that the scenario rothbard considered to be distant in the future, of the global central bank forging the foundation of global government is now in the process of trying to take control, and finally everyone is waking up. it’s kinda frustrating because there’s this sense of wishing you could just throw a bomb at it and have it end, but that’s not how it is. you have to spread the message, the simple, easy to understand and irrefutable truths that have been shrouded in the horsesh*t of the government system. we are really in the times of an embryonic global government, i just hope that this doesn’t have to drag out too much longer, i long for a free market and the right to defend myself and the dethronement of these thief-kings.
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Almost all of her fiction is indeed sub-par, due to the egg-headed earnestness with which she tried to get across the laudable ideas of individualism and free markets. Her one decent work of fiction, decent because it was the only fiction she ever wrote that followed the writer’s axiom “write what you know” (that’s “know” in an a posteriori sense as opposed to an a priori sense), was We The Living.
December 17, 2010 at 10:11 am
December 17, 2010 at 6:19 pm
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Jeffrey,
With all due respect, although it seems we may have lost out on something that might have been of value, this seems like an “owner” problem.
Surely, IP laws could not be expected be beter a better steward of private property than its actual owner.
In the absence of IP law, is it inconceivable that an owner of something would make poor use of it, thus depriving the rest of us of its potential benefit? That seems like a possibility to me.
December 24, 2010 at 5:58 pm
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“In the absence of IP law, is it inconceivable that an owner of something would make poor use of it, thus depriving the rest of us of its potential benefit? That seems like a possibility to me.”
Who or what exactly defines what qualifies as the “poor use” of something? You?
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Mike S,
Have we spoken before? I don’t think so.Anyway, I’m thinking your question means you didn’t read Tucker’s comment nor my response in that context.
I was not setting myself up as the final judge and jury concering “poor use”. I was criticising Tucker for setting himself up as such.
One of the features of private ownership is the right to choose badly how to bet utilize it. Under free market conditions, the consumer eventually sorts that out. If someone owns something, they are free to use it, waste, or use it in ways in which some others may disapprove. That is the nature of private ownership rights.
Don’t you agree?
December 15, 2010 at 9:55 pm
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The very notion of a Randian Kwisatz Haderach leaves me cackling with laughter.
December 15, 2010 at 10:20 pm
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“Then they get divorced when Dagny cheats on Galt with Eddie Willers.”
Never happen. First of all, Eddie Willers could never give a Randian heroine the sadomasochistic spice she would need. Second, there would probably be no divorce, even if the marriage was de facto over. The way I see it, Galt would become an alcoholic and spinelessly accede to an incestuous affair between Dagny and the man she truly loves, her father, Nathaniel Taggart, who was long thought dead. I can hear it now. “Dagny, I am your father”…
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Dallas meets Chinatown! Hillarious!
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I was going for a cross between Star Wars and the real life story of Ayn Rand, Frank O’Connor and Nathaniel Branden, but hey, whatever works!
December 15, 2010 at 10:44 pm
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The Harry Potter example seems to be less about copyright and more about contract. If the publisher sells the books to a shop subject to the condition that there’s an embargo ’til whatever date what’s the big deal? If the owner’s of the shop don’t like it they don’t have to stock the book, or order stock in to arrive after the embargo. Having said that WTF was that judge on? Seriously, don’t talk about it? Aside from the obvious restriction on free speech the bloody thing had been talked about for months. Don’t sell it? Was there any covenant about resale mentioned when the book was purchased? Er, nope. And would a previously unknown condition be allowed to be retroactively applied to the sale of anything else? Of course not. As for not reading it, how did she think that was going to be enforced? Was she going to order the Mounties to keep a watch over the people who’d bought a copy early or what? Even if she could it would again be retroactively applying an unmentioned condition to a sale. Complete nutter.
December 15, 2010 at 11:27 pm
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Signing a sheet of paper doesn’t make the terms of the contract valid. A contract can only be said to be violated if the property rights of a party has been violated. In this case the store already owned the books: The publishers could kick and scream all they want but their property has not been harmed. The absolute worst that could be done about this in a libertarian society is that publisher wouldn’t sell them books anymore.
December 15, 2010 at 11:41 pm
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Not quite; if the book were lucrative enough they could require something akin to a performance bond… “if the reseller violates the terms of this agreement they will pay $100000 in penalty”.
A violation of contract would still be actionable, even in a libertarian society. Without contracts capitalism is much less effective.
December 16, 2010 at 1:04 am
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This is only a valid contract if the reseller has received something worth $100000 from the other party of the contract. A contract is not a separate right but a manifestation of existing property rights. A contract is merely a conditional exchange of owned property between owners. Violating the terms of a contract is tantamount to stealing whatever property was conditionally transfered to the violating party. Thus the violating party is subject to the same punishment as if he literally stole that property. One cannot demand $100000 in damages if, for example, something worth $100 is stolen from him. The most he can demand is the return of the stolen goods and an additional sum less than or equal to the value of the stolen good.
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In this example a contract could specify the conditional exchange of copies of the book from the publisher to the book store, and money from the book store to the publisher, with the condition that the books not be sold until a certain date.
Upon the event that the book store violates the contract, they have effectively stolen every copy of the book they received, and the publisher can justly seek not only a return of all the copies (even if they have been sold the publisher can justly demand them returned from the purchaser… he will have to take up getting a refund with the book store) but an additional sum less than or equal to the value of all those copies. Only if the books are demonstrably worth $100000 can the publisher legitimately include this penalty.
December 16, 2010 at 1:34 am
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sweatervest,
Not at all. Under American law, Anthony’s penalty would be unenforceable as “unconscionable.” However, there’s no rational explanation for why it shouldn’t be enforced. The value of the books is almost irrelevant because that value makes up a very small part of what’s going on in a contract like a Harry Potter release. It’s not just about one book store and the publisher. The publisher very likely agrees with all its retailers to impose the same release time on all the other resellers and might even be required to take “reasonable steps” or some such thing to ensure that everybody plays along. The value of holding back until the release is not about the price of the books; it’s about creating the circus atmosphere that gets people out to Borders and Barnes & Noble and Walmart at midnight in costume. The huge penalty Anthony suggested would be a means of protecting that circus, not a way of protecting the books. The publisher doesn’t care about the books. The publisher cares about creating the madness.
December 16, 2010 at 12:07 pm
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“unconscionable”
That’s a legal term? Who knew Morrie in Goodfellas was being technically so precise when he says Jimmy was being an “unconscionable ball-breaker” for the high vig rate.
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Robby,
According to what you are saying, a contract can say whatever it wants. The publisher may care about the madness, but that is what is irrelevant because a contract is not valid just because it would piss someone off it were violated.
As I said, I cannot demand $100000 in restitution from someone just because he stole $100 for me. Likewise, I cannot have someone killed because they slap me across the face. People cannot contract about just anything. A contract is an example of existing property rights. *It is not an additional right on its own*. A contract cannot lay out terms that are not contained already in the ownership of the goods being conditionally transfered.
This is has nothing to do with what the publisher wants out of this situation. If they cannot come up with some agreement with a book store that they reasonably expect the book store to not break, then that’s too bad for them, and they have the choice of not selling the books to any book stores until the release date. It is their choice to enter contracts with a book store, and they do not get to expand the limitation of contracts just because it would be more convenient for them.
A contract is not valid just because it is written down and called a contract. A contract is a conditional exchange of previously owned goods, and violating a contract is no different than stealing the goods exchanged through the contract. This defines the limitations of punishment for violating a contract.
It is the exact same reason why “Trespassers will be shot” is not legally valid. Walking on somebody else’s yard does not give that person rights to your body. It only gives him the right to kick you off his property.
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Sweatervest,
Which universally accepted principal leads you to believe that punishment for theft must never exceed the value of the item stolen? Where in the sky is that number written? Your choice of which terms are valid or invalid are irrelevant and arbitrary… if you don’t like the terms of my contract than don’t sign it.
The ONLY thing that would make a contract unenforceable is if it were a contract involving slavery… a person’s right to their body is inalienable and therefore they can’t trade that right away.
You talk about having people killed and trespassing, but these have nothing to do with contracts, nor are they in any way related to monetary compensation.
A contract can say whatever it wants… as long as all the parties consent and it is not a contract for slavery. Of course, the contract can not violate the rights of third parties, but other than that I can think of no legitimate way to judge which contracts are valid or not.
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sweatervest,
Why is there a limit on contract damages? I agree to sell you a single copy of Harry Potter (the whole box set!) for seventy-six million dollars. You also have the alternative of getting it on Amazon for much less. I am also willing to sell it to anyone else in the world for the same price Amazon offers its stock. But for me and you to deal, it’s seventy-six million. Do we not have the right to make the deal? (The example is purposely one of a colossally stupid bargain for one of the parties.) Let’s add the detail that the books are yours immediately, but the payments are due in installments: thirty million upfront, the rest in sixty equal weekly payments. If, after inking the paper (no way I’m doing a deal this big without a written document to back it up) , I deliver the books as promised, and you make the first payment, but then decide the deal is colossally stupid, do you have the right to stop the payments? After all, Amazon (and therefore, the rest of the world, right?) thinks the books are worth far less than what you’ve already paid. Shouldn’t I be limited to value of the books in my contract? It seems that’s what you’re claiming.
But, of course, if that’s true, then we can’t ever make contracts without first seeking the approval of the terms by some outside factor to ensure that we’re only exchanging the “value” of the goods in question. The Amazon example actually works quite well here. I can get most things available at Best Buy for less money on Amazon. If I don’t pay Best Buy for something, do I owe them their asking price, or Amazon’s? If I do pay Best Buy for something, may I demand the difference later?
You’ve gone wrong in your claim that “[o]nly if the books are demonstrably worth $1000000 can the publisher legitimately include this penalty.” The problem is that the books are demonstrably worth whatever a willing buyer and willing seller dealing at arms’ length decide they’re worth. Thus, if they include that penalty as part of the deal, that penalty is part of what the books are worth.
December 16, 2010 at 3:42 pm
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Sorry, all I got out of that was “wah, wah, wah, I don’t like having to keep my word, I’m going to rationalize leeching off others and pretend there’s no relationship between that and whether authors continue to produce the kind of work that I enjoy”.
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Silas,
I agree with your objection to Sweatervest, but surely you can see that there are problems with the judge ordering people not to read or discuss a book that they purchased (let us leave out copying for now). Can’t you?
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they always crawfish (retreat) when you point out these things–just like he did re derivative works. So they are left with nothing but the husk of IP.
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Stephan,
I don’ t understand why you continue to encourage misunderstandings about how current IP law works. You know full well that fair use would permit this very thing. No judge is going to prohibit the reading or discussion of a book legally purchased, right?
Trading on such misunderstandings is….what?
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I will read the Catcher in the Rye case. Fair enough.
I am presuming these are bizare outcomes, not fundamental to the concept of IP, but let me check.
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Stephan,
OK I read the case. If there ever was a blatant example of derivative use, this is a good one. He even claims as much on the English back cover.Only later at trial did he try to claim it was a “critique” to attempt to slide under with the fair use doctrine, which was properly denied.
This is not even an abuse of the system, it is squarely within the concept of how copyright define “similarity” and commercial use by statute.
If you think there is any rational purpose in protecting Salinger’s work for being ripped of by someone who wanted to trade on his deserved popularity, this is it.
Yet you and I can read the same case and I reach a conclusion which is the opposite of yours. Clearly, I am not yet a consistent libertarian.
Doesn’t anyone else on this site check your work? You seem to have a habit, which I hadn’t fully appreciated, of claiming that IP law does things that it does not.
As to your other examples: If there is a copyright protection for an architectural work and someone builds a house knowing that he ripped somebody else off, what exactly is your beef? I didn’t read the case but if it’s likes Salinger’s, I’m rooting for the bulldozers!
By the way, was there any accommodation attempted by the infringer? Couldn’t the builder have paid something to the copyright holder and make sure he doesn’t make false claims of attribution? Again, what’s the problem?
I should be free to take Frank Lloyd Right drawings, slap them together and sell it as a FLR designed house? That seems morally wrong, as in trading on someone else’s reputation? Bad for consumers, right? Fraud? Misrep? Is that a utilitarian argument for IP?
If we get rid of IP laws, can we still have torts?
I need a time out. My head is spinning.
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Stephan,
I don’t know how to respond to that “thing” above, it’s all messed up.Anyhow, I get you’re a very experienced IP lawyer. I get that you’re an anarchist. I hope you get that I’m not either of those. But I’m a libertarian, and I subscribe to Austrian economic theory, and that should create some common ground.
I understand it was a derivative work. But as with all infringement, there has to be some basis of establishing similarity. It could be a close copy, a slight modification, or incorporate the underlying work. It could have been authorized.
You are very generous to your conclusion by reducing the protected work to “information” that you are simply using to rearrange you own property. This “information” is not just something you heard on Fox news. It is very specific to that intangible property encompassed by the protected work. That carries much more significance and meaning that mere “information”.
You are right that in the absence of the derivative infringement part of copyright law, this wouldn’t be an issue. Likewise, in the presence of current copyright law, one could observe that you maybe just needed to be a little more creative to accomplish your goal. There are options, just not the ones you advocate. Reasonable people can “man up” enough to recognize the validity of another’s position, even if you disagree with it. “Nonsense” and “alternative viewpoint” are not synonymous.
Let me tell you a quick story. I had a Russian friend who had her mom send her novels from Ukraine in Russian language. She would “order” authors she had read and liked. There were many popular ones. Their IP laws are a little lax.
A box of books would come and she’d open them up and start reading one and after about 5 minutes would throw it across the room. It had been written by a legal pirate. He paid money to write books, crappy ones, and sell them under the popular artist’s name. They split the proceeds. Maybe he tried really hard for the first chapter, but the rest was crap. It was obvious. For these pirates, the victim was the consumer, not the author.
A lot of businesses run that way there. Ripping other people off is a legitimate career path.
Truly smart and creative people do things that are unique, and other people recognize it and they like things to be authentic. Is that just another utilitarian justification of a socialist IP proponent? Maybe.
On my comment about the way you state the cases to support your conclusion that IP is nonsense, maybe some don’t actually read the law and the cases, but I try to. In this last example, you presented these examples of Salinger, etc. as if the operation of the law was producing atrocities, when in fact they are producing results that are pretty aligned with their design. I don’t see it as nonsense.
You seem to have a habit of doing that, and it creates a bandwagon effect among those who already want to believe, as you seem to, that all is nonsense except anarchism. It is the only consistent form of libertarianism, etc, etc. I know you are trying to win the case, counselor, but come on.
For myself, I start with how the law is supposed to operate, and then look at the example you are giving and try to understand where you think it is running off the tracks. Perhaps your case is stronger in patent law. I have personally seen lots of nonsense there, and I think I mentioned Rambus somewhere.
In this instance, where you asked if I read the cases, your message was outrage, when the facts are dead center in the law. The outcome, if one doesn’t want to deal with a bunch of fake merchandise, seems just. The second author tried to book on somebody else’s gig. He was a fake. He can write his own book and earn his own popularity.
That’s the way the market is supposed to work. What’s the problem? I argued elsewhere that eliminating IP actually CREATED interventions by creating external markets. That is what this dude was trying to do, be an external market to Salinger by trading on his property. He was engineering a unilateral transfer.
I get that you are saying “so what?” You take no offense. Why? If you took offense you must then seek a similar legal outcome that is consistent with anarchistic ethics. You would have to allow for a method of enforcement.
So you have to bank on an elaborate “alternative universe” to lead to the same outcome, which isn’t easy, and in the end you end up re-creating much of what we already have. Even Rothbard acknowledged that private enforcement agencies would have to all agree on a common legal code. There you go.
Sounds like a stimulus plan to me; burn a lot of money and energy just to arrive back at the same place you started.
If one subscribes to the intended results of IP law, and you allow for a way to enforce it uniformly and equally, you have a government, which you reject. So it’s just easier for you to reject IP entirely than to deal with all that.
If you subscribe to a system of laws and enforcement that produces a desirable outcome, which I’ve just hinted at above, and you start dealing with the issues that come up in all the various fact patterns that you endlessly refer to, (as if they are freaks of nature) you end up back at a restatement of common law as it currently exists. It seems like an exercise of reinventing the wheel.
The common law has evolved specifically in response to the needs created by starting out with a legal premise, i.e. “thou shalt not kill” and then dealing with the numerous situational ambiguities that naturally occur in the course of human events; i.e. “second degree murder, manslaughter, voluntary manslaughter, self defense, insanity, etc.”
In essence, that is what we have in existing IP law. That is why I asked you the facetious question about keeping torts. If you accept tort law, and the laws of contracts, on what basis can you summarily reject IP law? There is nothing fundamentally different about IP law. The fact that it deals with specialized categories of property rights is fundamentally no different than other area of specialized law; contracts, property, torts, criminal, constitutional law, remedies, etc. etc.
Common law has evolved as an interrelated body of laws and procedures to deal with the various human disputes that have arisen over the past 500 years, and the unique problems associated with their ongoing applications. At the core, it seems pretty good. At the legislative margins, it may have been hijacked by mercantile and political co-conspirators. That’s a good bet.
When government spills over into mercantilism, I have a problem. That is my understanding of the State in relation to liberty and the pursuit of happiness as I conceptualize them; we are getting some pretty bizarre and undesirable outcomes. Has it gotten out of hand? I think so, as has every other aspect of Statism. It all needs radical revision. That, in my humble opinion, is where careful analytical work should be focused. You are an expert. You could help do that. You seem to have a different agenda.
It is a riot to watch you and your supporters fling cafeteria food at Silas, and he can hold his own. But from my perspective, both sides are making some pretty good intelligent points. It is instructive. It is helpful and interesting, if you can get past all the nasty stuff.
My conversations with Peter Surda, Phinn and Beefcake the Mighty, on the other hand, have been worth their weight in gold. I respect their logical skills and patience. We get somewhere and I for one value that. We don’t agree on much, but we’re closing the gaps. I feel like I’m learning from them.
Anyway, despite perhaps having taken the tone of a lecture, I offer this in sincere humility. Just some screed from a nobody.
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@Stephan_Kinsella:
But even silas admits deriviate works should not be prohibited.
I never made such a categorical judgment (even as your reasoning on this topic requires everyone to speak in such terms). Obviously, a “derivative” work that has no creativity of its own but just tinkers with a few words, such that there’s no effective difference between the “derivative” and the original, is no different from just copying the original work.
It’s like the difference between “I believe in a property rights, but with egress rights for enclaves” and “I believe in the right to egress through every square inch of anyone’s land”.
December 18, 2010 at 9:43 am
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Silas,
Why is the originator of an idea justified in using force against copiers?
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Stephan,
This is a great response. Thank you.“…but basing a work on the original.”
Yes. Despite my sloppy way of putting it, we agree that a derivative action involves some reference back to the original protected work.
“What is wrong with me doing something similar to what you are doing?”
The concept of “similar” is ambiguous. It has a general connotation of a comparison between two things. A determination of what is or is not similar is arbitrary at some level of the analysis. That bothers you, but not me. Common law is filled, in every discipline of specialty, with examples of where the ambiguity of such terms were refined and reduced. IP law is no exception.
“This is human life. We learn. We emulate. We compete. So what?”
If you and I are both dancing the jig, we are engaged in similar conduct. If I’m really good at it, you may emulate me or we may even compete for recognition for being the “best”. If you insist on dancing on my front porch without my consent, now there is a problem. There is a problem with your conduct that is otherwise similar to mine. There is a distinction here.
There is nothing wrong with writing, creating, or emulation of another’s skills. In certain circumstances, however, you are dancing on my porch. I have a right to ask you to leave, and to retaliate against you if you don’t.
That sounds libertarian to me.
“The question for the libertarian is why some forceful authority has the right to force me to make this choice.”
To answer this question, I first have to ask if any “forceful authority” is allowed. If it is not allowed, I would have to answer no. You answer no for this reason.
If it is allowed, by any means whatever, then I have to ask, by what authority. Ultimately this is an ethical question which renders possible judgments concerning morality, and finally permits the encoding of this morality into laws.
You believe that ethics are derived from objective means, like the “homesteading” principle. I do not. I believe principles of property and the rights associated with them are human devices. As such, we free and liberated humans define our own boundaries. We are allowed make choices, agree on them, and enforce them. This is one way to state the meaning of “society”. So I answer yes.
“The state criminalizes this and ruins this aspect of it.”
With regards to drugs, you may have a point. I don’t really know. There are the mercantilist drug interests on the one hand, violent capitalists (drug cartels) on the other, and humans with addictive behaviors at the end of the distribution chain. Government is in the middle all this.
I can say that to the extent that government favors either mercantilists or cartels, I object. Given that, what is left is an ethical problem of a human’s proper response to other humans who have a self-destructive weakness.
I think you are providing an analogy that is intended to support the premise that “the state criminalizes creativity and ruins this aspect of it”. To the extent IP or any other law favors mercantilists or cartels, I object.
““ripping off” means stealing; so you are question begging.”
No. Theft is a concept that is at the core our discussion. “Thou shalt not steal” is an ethical principle. If there are no ambiguities about what property is and who owns it, it is easy to evaluate morality, and to enforce breaches of conduct based on a codified morality, or law.
If any ambiguities exist, these must be resolved prior to the enforcement of any finding of breach of legal conduct. As I’m sure you know, the history of trespass laws does not concern the enforcement of owner’s rights to exclude others. Trespass actions were brought in a court of equity to remove ambiguities concerning boundaries between adjoining land lords. What was enforced was a finding which removed that ambiguity, and nominal damages of a “pence”. It wasn’t the pence at issue, it was the property line. I guess they could have fought a duel, but they found it advantageous to let a neutral third party decide.
IP law is a highly nuanced and specialized treatment of a stealing ethic. It’s history (in contemporary America) in one of refining the boundaries of ambiguity and attempting to objectify the rules for making such determinations, and to reduce the need for future litigation. If legal precedent creates a code of ethics that people can understand, there is less need to adjudicate every dispute before a judge. At the core, the law is asking; “was this conduct stealing?”
“I see nothing wrong with offering something to people that they want to buy.”
Me neither, as long as it’s not my stolen watch.
“If people like Harry Potter what is wrong with me selling them a Tee-shirt on which I have printed I Love Harry Potter?”
What’s wrong with trying to sell Tee-shirts that say “I Love Stephan Kinsella”? Do you think they would sell just as well? Why not?
“It’s not a justification at all since it’s not even a pretense at argument. It’s just a guy saying “hey I am not sure how people would do x y z… so therefore… hey maybe current IP law is not so bad.” I mean it’s not even an argument.”
I was raising the issue of authenticity. It is one thing, in the absence of IP law, to say “Get your Harry Potter fake sequel here!”, and another to market a book under the pretense that it is authentic. That is fraud. I like to know in advance if I’m buying a fake. Otherwise, I’m being deceived. I appreciate having someone police that up for me. It makes my market more understandable and consistent.
To the extent that it is not a fake, and is an authentic act of creation that has value on its own, I’m all for it. Anything less implies ambiguities. I’m happy, to some extent, that interested parties are hashing this out in the courts and establishing boundaries. I am a third party beneficiary.
“A court ordering someone not to print a book they wrote on the pain of jail seems clearly unlibertarian to me, but whatever.”
A court ordering someone not to dance a jig on my porch without my consent on the pain of jail seems pretty libertarian to me. And efficient for me, because I don’t have to hire a private protection agency.
Thank you Stephan, that was interesting.
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Stephan and Silas,
“What you are talking about here is reproduction and the issue of insignificant differences.”
Let’s agree that copyrights grant certain rights against infringement of the protected works.
Infringement may take the form of copying, or preparing a derivative work.
Copying turns on the issue of similarity to the protected works. Derivative work claims turn on the issue of adaption of the protected works.
In cases of infringement, whether by copying or a derivative claim, there is reference made to the disputed work and the original protected works. Copying and adaption are not the same thing, but they are related in reference to a protected work, and test for similarity in the former, and adaption in the latter.
I suppose it is possible to support copyright protections against copying but not of derivative works.
If that is a fair summary, Stephan, then Silas, what about it?
Do you support the copyright holder’s exclusive rights to prepare derivative works?
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Stephan,
“What is wrong with this?”
Nothing.
“How is it a violation of anyone’s rights?”
Based on these facts, it isn’t.
“The problem is if I use your property (your porch) without your consent.”
Yes, it is a problem of where my property ends and yours begins.
“And this emphasizes that rights are violated by using others scarce resources without their consent.”
Yes.
“Not with using my own property in accordance with a certain pattern or bsaed on certain information or ideas or knowledge.”
Don’t smuggle in your assumptions. As you well know copyright privileges to not extend to non-fixated ideas. Even if they are fixed, there are important distinctions made as to what is protectable and what is not. They specifically exist and remain in the public domain.
§102(b) of the Copy Act provides: “In no case does copyright protection for an original work of authorship extend to any idea, procedure process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”
So to use this concept, that ideas are “free”, as the basis for a conclusion that copyright laws produces a legal result of protection for them is inaccurate.
Exactly what is protected and protectable is a major issue in copyright law. Ideas in and of themselves are not subject to copyright protection.
If I recited the entire contents, from memory, of what would otherwise be subject to copyright protection, but is not because I have never fixed it in tangible form, and you fixed it in a tape recording and transcribed it into a book and sold it under your own name, even if I hired someone as knowledgeable and experience as you as my attorney, would I prevail in a copyright action against you?
I don’t believe, on these facts, I would. Am I misstating the operation of IP law?
“I’m saying that your example says counterfeits are shoddy. As if this is some argument against people having the freedom to make counterfeits.”
I am saying that if I know they are counterfeits, I might not buy them. That would be my choice as an informed consumer. It might be that they are superior. It wouldn’t take long for that to get around. But if a watch is superior to a Rolex at half the price, why sell it as a Rolex?
“I am saying that first, even if they are shoddy, so what/ Don’t buy them.”
The word counterfeit implies that there is something similar out there that is authentic, and that the counterfeiter is engineering a deception. If there is no counterfeiting, there can be no deception. Why would I want to have that distinction blurred? I guess I could call a table a chair too, since they both are in the kitchen, but I find the distinction useful.
“Second, they are perhaps shoddier than they would be in a free market, since the producers of counterfeits, like drug dealers, have been driven underground. The quality of narcotics would improve if the sellers were “legitimate” and not run by criminals etcl. same with counterfeit goods.”
I have to question your reasoning here. Illegal drugs are not primarily counterfeits of prescription drugs, because that is not where the money is. Illicit drugs are not pretending to have been produced by Baer.
They are drugs that are not available through “normal” lines of distribution. Even though pot is illegal, suppliers of it still compete. Have you heard of Maui Zowey? If pot was legal, competition would increase. “San Francisco Dreamin’” would compete normally for consumer preferences against all the other brands that would be freely available in the market. It might be more like the wine market.
Ironically, this developing market would also raise trade secret, plant patent, and advertising copyright disputes, but hey, good for lawyers, right? Beyond this point, I don’t see what the analogy contributes.
“You are trying to get your result–that ideas are property–by saying they can be ripped off. this is question begging.”
No. Ideas are not property. I am not claiming they are, and no IP laws say they are. In fact, both patent and copyright law specifically excludes ideas from protection. So why do you keep trying to get me to defend a position neither I nor IP laws takes?
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Stephan,
Fair enough.
I’ve been accused of many things in the past, but never a pettifogger.
Congratulations on being the first!
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a) I was replying to Seattle, actually.
b) Can *you* see problems with a judge ordering people not to talk about banking passwords and pin numbers they’ve learned? If so, you can start to see the complexity of the issue that you didn’t quite appreciate before.
December 17, 2010 at 7:25 am
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Silas,
Why is an idea’s originator justified in using force against copiers?
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Beefcake,
You put me in the curious position of supporting Silas.
A mere originator of an idea has no rights under copyright or patent law or any other IP laws. Therefore, to ask someone to justify something that doesn’t exist under any theory accomplishes what?
Ideas exist in the public domain, just like you and Kinsella argue they should. IP law agrees with this position. To represent otherwise is misinformed or dishonest.
I believe you are honest. I’m counting on that, in fact.
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Wildberry, this is the essence of his postion. He’s welcome to clarify if there’s a misunderstanding, but he has not.
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If Silas and Wildberry don’t like this question, here’s an alternate one:
Why don’t non-originators have a right to copy?
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Beefcake,
“Why don’t non-originators have a right to copy?”
Well, first I have to assume what a “non-originator” (let’s call him Non) and a “copy” is. This feels like a trick question. But OK, I’m game. .
By non-originator you must mean a non-copyright holder type, i.e he didn’t author the “original”.
And by copy, you must mean copy as defined by copyright law; i.e. an exact copy of a copyrighted work, (i.e. meets a “substantially similar” standard.)
May I assume that the only way a copy could have been created in your scenario is that the non-originator had a legally obtained “original” from which to copy? Was that a book?Let me describe some possibilities:
1. A case could be made the “originator” (let’s call him Can) “homesteaded” this book, which of course is a scarce good, by formulating a combination of intangible, ultimately scarce goods (previously non-existent, human-created constructions of “idea-complexes with time/space dimensionality and chronology”), whose rudimentary elemental ideas were found in the public domain, (just like letters of the alphabet or hydrogen atoms, they are inexhaustible and free and remain in the public domain).
By use of his fingers, paper, ink and other, normal scarce goods, he “affixed” his intangible creation in a tangible good. Because he homesteaded and transformed his own property, he owns the original book.
Because he realizes that books are easily copied, and he wants to be paid for every acquisition of it by another, he hires Kinsella to write a killer contract. Everyone that buys a book from him has to sign the contract. In this contract, Can retains the right to copy. Non signs a contract with Can. That’s one way.
2. Eventually Can is famous, sells everyone in the world a book. They clamor for him to write another. He does, and it’s even better. Everyone says, “OK where is it?” Can says he is not going to let anyone have the book until everyone in the world agrees to sign the contract. They all do. This contract, to which everyone is bound, is called the “Can Act”. Once everyone in the world signs up and sends it in, Can releases his book. It took 3 years after the book was written to get that done. That’s another way.
3. Other people get the same idea and they want to write books. Thing is, nobody knows in advance whose book is going to be good and whose is going to be stinko. So they get together and pick a mayor, and the mayor hires Kinsella, and Kinsella modifies the Can Act, and The Mayor stands in front of the whole world and says this: “From now on, within the borders of Mayortown, anyone who writes a book will do so under the rules of the Can Act. Anyone who objects will have to leave Mayortown forever. Speak now or forever hold your peace.”
No one speaks up, and so it is done. From then on, anyone who writes a book is covered by the Kinsella/Can Act. Now when someone writes a book, people get it 5 minutes after it’s finished. That’s another way.
4. Shall I go on?
December 17, 2010 at 9:20 pm
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Wildberry,
Did you even read his question? He asked why don’t non-originators have a right to copy? Your response didn’t address the question at all. You just described ways that IP could be enforced, except for 2 which no opponent of IP would have a problem with.
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Dan, Did you actually read my answer.
1. They agreed to a specific contract. (1-1 coverage)
2. They agreed to a universal contract. (100% coverage)
3. They agreed to abide to the terms forever. (100% coverage within a territory for perpetuity, i.e. a law)Property rights prohibiting copying have been universally agreed as being in the best interest of all involved. Now everyone knows what is going in. The market works efficiently.
That is why non-originators dont’ have a right to copy. They’ve agreed to it. They created a property right without homesteading.
Amazing, huh?
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Yes, Silas, I can see a problem with that.
If someone lost their banking password and I came across it without committing any crime I would indeed object to being told that I can’t repeat it. If hacked into a computer (trespass) to get the code or if I used the code to access someone’s account I could be held responsible for the CRIME of taking money that I had no right to… I don’t accept that I committed a crime by reading a number off of a sheet of paper that I found.
If you lose your password then you should pick a new one, not try to make other people forget they heard it. Similarly, if I work for Apple and I tell people the secret that a new Ipad is coming out then Apple would free to punish me, but they would have no right to command the people that I told.
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Wildberry,
Again you are just stating ways to enforce IP. You really don’t understand why that doesn’t answer the question? We don’t believe that IP is justifiable so non-originators should have the right to copy. He is asking you to justify why they shouldnt have this right, not tell him how it could be enforced. You really don’t understand the term question begging do you?
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Dan,
I’ve given it to you twice, politely.
Obviously, you and I disagree about the ethics of property rights. However, I will not debate this with you strictly through your imposed logical constraints. I have my own point of view.
If you want to take issue with any of that, please don’t ask me to start from the beginning. I have posted extensively here.
Regards,
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Wildberry,
I was just pointing out that your initial numbered response to Beefcake didn’t answer his question. If you initially said to check other posts on this blog for your answer then that would have been a response to the question he posed. Your numbered response answered a question he didn’t pose and I was just pointing that out.
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Dan,
No problem.
I’m guessing I undersand your point of view better than you understand mine.I have become a reluctant student of Ancap ethics, and debating all the issues that come up, including IP, is a tricky business.
You take exception to my approach to Beef’s question because you expect me to only operate within the ancap logical framework. To you it seems complete and consistent. When you see me argue from a different viewpoint, you recognize that it is not consistent with your framework. That is the issue.
You are essentially an objectivist. Rothbard and Rand are sympatico in that regard.
The opposite of that is not subjectivism.
You are essentially saying to me, “There is the right way to see things, and there’s everything else.” I get that you think your vision is 2020, but, we can’t see what we can’t see.
That must seem like a strange thing to say if you are an objectivist, but to me it makes perfect sense.
That is what I’m suggesting you think over.
Regards,
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Wildberry,
That was all a bunch of nonsense. How could you possibly say I’m an objectivist from me pointing out you didn’t understand the question that was asked? Not only that you claim Rothbard is an objectivist? They have the non-agression principle in common but you clearly don’t understand the nuances of libertarianism and especially anarcho-capitalism if that is your view.
I would spend more time reading and less time posting. That is what I’m suggesting you think over.
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Dan,
have a nice day.
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“Sorry, all I got out of that was “wah, wah, wah, I don’t like having to keep my word, I’m going to rationalize leeching off others and pretend there’s no relationship between that and whether authors continue to produce the kind of work that I enjoy””
You need more practice comprehending, then! I don’t even know why you shared this. Why does anyone care if you failed to comprehend what I posted? That’s your problem!
Rationalize leeching off others? This sounds like its straight out of the mouth of a congressman! What are you trying to accomplish by trying to paint me as some unruly kid that has no respect for keeping his word? Are you kidding me!?
I really hope I don’t need to explain to anyone else how stupid this is. According to what I said, you get punished for not keeping your word! But if I tell you I’ll call you tomorrow and I don’t, you can’t come over and kill me cause I didn’t keep my word. When someone breaks any private property law, he doesn’t become fair game to any sort of trespass on himself. You have attempted to sensationalize what I say, take it completely out of context, and have accomplished little more than metaphorical stamping your feet and saying, “you’re crazy!”.
Please come up with a substantial critique next time you want to share it with us.
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By the way, since you decided to pull that often-used heart-string the IP supporters use, which is to remind me how much better my life is because of all those authors of creative works, I’ll point out to you that I have been engaged principally in the production of creative works (music, programs, digital art) for my entire life. I’m involved in making these things, and I know first-hand how ridiculous it is to think I have homesteaded ideas by writing music and programs or drawing pictures.
I’m one of those authors. Please stop attempting to speak for us.
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“I’m involved in making these things, and I know first-hand how ridiculous it is to think I have homesteaded ideas by writing music and programs or drawing pictures.”
-Under copyright law every rhymester enjoys a monopoly in the sale of his poetry. But this does not influence the market. It may happen that no price whatever can be realized for his stuff and that his books can only be sold at their waste paper value.-
Ludwig von Mises, Human Action p. 278 -
“Under copyright law every rhymester enjoys a monopoly in the sale of his poetry. But this does not influence the market. It may happen that no price whatever can be realized for his stuff and that his books can only be sold at their waste paper value.”
I’m not sure if I understand Mises here but what he seems to be saying is that you have a monopoly on your poetry before you share it with the world. This is what does not affect the market. You and only you have, at first, access to your own poetry and so you decide alone when, where and how to share it.
I would certainly not think that Mises is trying to say the existence of enforceable IP laws has no effect on the market. If that were the case it would be pointless anyways. IP or no IP, the market price is the market price. Why would anyone care if IP didn’t change anything?
He beings with “Under copyright law”, but what does he mean by that? How was copyright used in his day? Certainly not the way it is now (to relentlessly hunt down college students with internet connections). He must have something very different in mind, because it is pretty clear that today’s copyrights push up the price of copyrighted materials (consequently it does not necessarily, though it is possible, raise the wages of authors, it much more often raises the profit margins of distributors, who are the ones in the position to fight big court cases, even though the cost of distribution has gone to near-zero in the digital age). Of course it does. It diminishes the supply and, assuming that fact does not significantly shift the demand curve or lead to something that does, raises the demand.
I’m also not sure how that is relevant to me thinking “homesteading” ideas is an absurd concept.
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Anthony,
“Which universally accepted principal leads you to believe that punishment for theft must never exceed the value of the item stolen?”
This comes from the fact that when you steal something, you never transfer ownership of the stolen good, and you additionally relinquish ownership over something of your own of equal value. It is up to the victim whether or not, and how much of, he wants to claim of this. This has nothing to do with “universal acceptance”. It is self-contradictory to disregard other’s claims to a piece of property while continuing to enforce your own claim to a piece of property.
“Where in the sky is that number written?”
This is a matter of implementation, not of theory. Theoretically the value exists and this places the theoretical limit on damage claims. Determining what this value actually is may not be trivial, but it is a different problem. What matters is that it is possible. The current market price of goods is one way to do it.
“Your choice of which terms are valid or invalid are irrelevant and arbitrary”
Okay, so A and B can make a contract to make use of C’s property. Whether I think this is invalid is irrelevant and arbitrary. All the contracting parties agree to the contract, so its a contract. Watch out, C!
“… if you don’t like the terms of my contract than don’t sign it.”
If you don’t like universal healthcare, then move to another country.
We’re discussing theory here, not giving each other advice.
“The ONLY thing that would make a contract unenforceable is if it were a contract involving slavery… a person’s right to their body is inalienable and therefore they can’t trade that right away.”
You just contradicted yourself. According to your previous argument, that you think slave contracts are invalid terms is irrelevant and arbitrary. As long as A and B agree to a slave contract, it is a valid contract.
“You talk about having people killed and trespassing, but these have nothing to do with contracts, nor are they in any way related to monetary compensation.”
Yes it does, because contracts are examples of property rights. Being able to deal with trespassers is a property right, and so are contracts. This is a perfectly valid analogy. One cannot arbitrarily punish someone for any trespass on property. You cannot justifiably kill someone for walking on your yard. Likewise, you cannot arbitrarily outline terms of a contract, including ones that stipulate punishments for violating the contract. Just like A and B cannot contract over the use of C’s property, they cannot stipulate punishments for violation that can be justifiably upheld if the violator refuses to cooperate. What kind of punishment is involved, monetary compensation or otherwise, is irrelevant.
“A contract can say whatever it wants”
You say this and then begin listing exceptions to it, so it cannot stand as a principle. You yourself admitted this twice by presenting slave contracts and contracts violating others’ rights as counterexamples of “A contract can say whatever it wants”. Thus, you have conceded the only argument you have presented against my claim that a contract *cannot* say whatever it wants. You have admitted yourself this is not true, and have offered no reason for why your limits are applicable but mine are not.
“as long as all the parties consent”
If all the parties consent then there is simply no issue. The question of whether the contract is legally enforceable is only relevant when there is a *lack* of consent. If the violating party still consents with the contract he’ll pay whatever the contract calls for without it having to be enforced. It is when he stops consenting and decides to no longer respect the contract that it needs to be enforced. Contracts are important precisely because they still have force, even when all the participants don’t want it to.
As for the “if you don’t like it don’t sign it” quip that I’ve had thrown at me too many times, you are blatantly ignoring that one’s evaluations are a function of time. What happens when you want to sign it and sign it, then later change your mind!? Your advice is useless for this case.
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sweatervest,
“This comes from the fact that when you steal something, you never transfer ownership of the stolen good, and you additionally relinquish ownership over something of your own of equal value. ”
That is not a “fact” in any sense, and I cannot think of any society that uses that principal to punish theft. Unless you have some a priori argument to justify that it can’t be anything more than one of thousands of ideas of the appropriate magnitude of punishment for theft.
“Okay, so A and B can make a contract to make use of C’s property.”
In my post I explicitly said “Of course, the contract can not violate the rights of third parties”, which you obviously missed. Contracts only bind the signatories, so your objection is not relevant.
“If you don’t like universal healthcare, then move to another country.”
I am forced to pay for universal health care weather I want it or not… this is aggression and it is wrong. You are in no way forced to sign a contract with me so the two are absolutely NOT the same situation (or even very similar).
“As long as A and B agree to a slave contract, it is a valid contract.”
Rothbard made a reasonable a priori justification for the exclusion of slavery contracts… I don’t have the time to make a full explanation here, but as you said “contracts are examples of property rights”, and since a person can never actually give another person ownership over their body (I can’t “own” your body because your will must always act as a intermediary between my will and your body) a human body can’t be considered “property” for the purposes of a contract. You can argue the particulars but I do have a specific, reasoned, principled explanation for my assertion.
I still find it confusing why you conflate contract law with defensive rights to private property, but could we discuss that aspect of property later if I agreed that a person could not be legitimately killed for violating a contract?
I said “a contract can say what it wants as long as all parties consent”… the fact that a contract cannot bind third parties is not an exception to this claim, it is an explicit part of the claim. The sole exception I did bring up (slavery) I explained above, so the only issue left is the right to withdraw consent.
First of all, value is subjective. This means that there is not, and can never be an objective way to determine the true “value” of a product, apart from the agreed upon conditions of the exchange. If you agree to buy a painting from me for $1000 then that is the “value” of the painting… it does not matter how others view the transaction.
Secondly, if I agree to buy something and consume it, can I later “change my mind” and avoid payment? Here is an example: can I ask for a martini at an upscale bar, down it and then refuse to pay the $10 they are asking because “a martini only costs $2 to make, so that is all I will pay”?
I would assume not, but isn’t that what you are arguing when you say that people can withdraw consent? Replace $10 martini’s with $20, $100 or $1000 martinis… if the customer agrees to the price (and the contract to pay) before hand there is no just, non-arbitrary way to say what a fair price is.
p.s. You seem to be mixing arguments from Rothbard’s contract theory with an odd idea of the “value” of a good. Read this article http://mises.org/daily/2580 , particularly around the middle where he specifically addresses performance bonds as a legitimate way to secure a contract… he also discusses the distinction between alienable and inalienable rights. I would highly recommend that you read the article, as Rothbard explains it much better than I did.
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Yeah, good point, man, IP rights should not include the right to exclude that kind of derivative work.
Oh, wait, you were trying to use this as an argument for why copyrights should not exist _at all_? Er, sorry, doesn’t work.
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Hey Silas, if I steal some factors of production and use them to create something, instantiate an idea, whatever you want to call it, am I then justified in preventing someone else from copying my idea?
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Yes, see Wildberry’s reply.
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Wildberry’s reply avoided the question, he said this kind of thing is permissable under current copyright law. That’s not what I’m asking, in case you didn’t notice.
But, let’s assume your answer is indeed yes. We can conclude then, that you believe aggression should be rewarded? In what way then, can you really object to “unauthorized” copying, which you presumably consider to be a form of aggression as well? Why does the stealer/inventor get rewarded, but not the copier?
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Is this really an interesting question for you? The theft should be punished *for the theft of the stolen item*, per standard theft penalty protocols; the pattern formation rights should be retained by the thief for first having instantiated an idea that (by supposition) would not exist but for him.
In practice, this could involve something like the thief having to provide replacement goods plus compensation, or return the good to its original state (while still being able to retain e.g. blueprints).
Is this really that hard?
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This is an interesting response, because here:
you argue that copiers cannot claim a right to do something with their property (eg, copy an innovative fence design) that would have been impossible were it not for the original conceiver of that action. In this example, the pattern under question would not have been realized were it not for the conceiver’s theft of the means to perform this realization. Yet, in both cases the conceiver’s rights prevail. In other words, the actual actions of the conceiver do not matter at all. All that is necessary in your view to establish property rights is the fact of first conceiving something. He does not actually have to do anything at all with tangible means. This is a very interesting theory of property rights you have here; thank you for making it plain for us.
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Gents,
Just so I can follow along…In the story about the fence, what is the theory of IP that applies? In this scenario, the fencebuilder (Bob?) didn’t apply for any protection under any theory of IP.
I think Silas responded with something that implies trade secret theory.
This appears to be a fact pattern where the government authority found it useful (for some reason, we don’t know why) to limit competition in something that is otherwise not proprietary, building a fence, and granted by decree a monopoly to Bob.
This is similar to case law (I’d have to look them up) having to do with granting monopolies to ferry operators within a terrritory. They were decided on the basis of commerce clause and states rights. This has nothign to do with IP.
Did I miss something?
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The fact that the thief stole the property only means that the property should be returned and the loss compensated. This is all he is obligated to do for taking something that wasn’t available *but for* the real owners production (direct or indirect) of the item. The thief’s separate creation of the idea and resulting rights, despite “requiring” the theft, are not encumbered by the past theft so long as that transgression is compensated.
Still don’t see the contradiction.
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It’s not a question of contradiction, Silas, it’s a question that in your theory action is not necessary to establish property rights. I own the factors outright, I can prevent you from copying my creation. I steal the factors, I can prevent you from copying my creation. It’s only the fact of having first conceived the idea that gives me the right. BTW, are you claiming that if I murder someone in the course of implementing my idea, I still hold valid copy-rights? That strikes me as monstrous.
But never mind. To make sure I’m not misrepresenting you, a simple solution is at hand; answer the following:
Why is the idea’s originator justified in using force against copiers?
Please respond, so we know where you stand exactly.
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“his first quasi-anti-IP paper he submitted to me years ago was not sufficiently footnoted.”
GWAR rarely uses footnotes, so this does not bother me as such. But footnotes within footnotes? THAT would be cool. Perhaps his next paper can pull that trick off.
But wait; before one can have a *next* paper, one must have a *prior* paper, yes? And logically speaking, a *first* paper? I will have to check with Oderus and Sleazy, but I’m pretty sure I’m right on this.
December 17, 2010 at 8:17 am
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The fact that the thief stole the property only means that the property should be returned and the loss compensated. This is all he is obligated to do for taking something that wasn’t available *but for* the real owners production (direct or indirect) of the item. The thief’s separate creation of the idea and resulting rights, despite “requiring” the theft, are not encumbered by the past theft so long as that transgression is compensated.
So, if I illegitimately take an original, create a copy and sell it, all the owner of the original can expect is the return of the original and a bit of extra compensation. The separate creation of copy or the profit derived off it, despite being causally related to theft, should also not be subject to compensation with regards to the owner of the original.
Still don’t see the contradiction.
As an IP opponent, I don’t see a contradiction either, since the explanation you provided refutes IP.
PS. I’m not claiming the explanations are correct, merely that Silas himself now disproved his own position.
December 17, 2010 at 8:35 am
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OK, fine, the author can take back his “property” just so long as he doesn’t take, destroy, or alter my paper, my binding, my ink, or my glue used in producing the book.
Seems like a Loki’s Wager situation we ran into.
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Beefcake,
Wildberry’s reply avoided the question, he said this kind of thing is permissable under current copyright law.
I wasn’t going to respond to this, but I guess I have a theme.I didn’t avoid your question. You are applying an ancap ethical framework to formulate your position.I am using the existing legal framework to formulate mine. It seems fair to refer to that framework in addressing your hypothetical.
To do so is not an evasion.The answer is that the current laws should and do distinguish between the proximate causes for injury and other causes. The copyrightable materials (property) was not “caused” by the theft of the means to create it. Therefore they are not part of the same legal cause of action. They will be handled seperately.
It is correct that they are. It is consistent with my ethics of justice.In an actual case such as this, assuming the perpetrator had no cash, the judge might award any future earnings for the copyrighted material to the victim(s) of the theft.
That is my answer. It is simple and direct.
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“I wasn’t going to respond to this, but I guess I have a theme.I didn’t avoid your question. You are applying an ancap ethical framework to formulate your position.I am using the existing legal framework to formulate mine. It seems fair to refer to that framework in addressing your hypothetical.”
What Beefcake is asking is why are you justified in applying the current legal framework to formulate your position?
The current legal framework presupposes the validity of the use of force by an originator against a copier. So, you need to justify this supposition.
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Mike S,
While I’m at it, let me respond to you quickly:
I have made an ethical argument on the basis of similarity of property rights in IP to all other property rights.
I have made an economic argument on the basis of production for external markets.
I have made a contractual argument on the basis of mutual consent to establish rights in intangible property.
I have drawn a relationship between a contract between two parties and one with 100% privity and duration in perpetuity. I have shown that this type of contract becomes a law, even if not done by legislation. It is a trivial matter to show that legislation is merely an codification and enforcement scheme for a contract of this nature.
I have made a legal argument on the basis that it is not reasonable to criticize a law for doing something that it specifically attempts to avoid; i.e. establish protection for ideas.
Merry Christmas.
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Silas,
I do believe this is not the first thing Kinsella has ever said about copyrights. You seem to be isolating this one post from his entire theory on the subject, and insisting that alone this one piece does not establish anything.
Kinsella has already argued that copyrights should not exist. Under that framework, this post is an illustration of the point he has already pushed. Taking it to be a “proof” of anything is confused.
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Furthermore, that you have rejected that as a legitimate IP right that logically implies that you have rejected the legitimacy of all IP rights.
All IP supporters begin by stating that “IP is just”, and upon discussing it further eventually conceded their point and begin trying to draw arbitrary lines in the sand about what is an IP right and what is not (for example, I can copyright an 8-note melody but not a 7-note melody, I can recreate a scene from a movie as long as everyone agrees it as parody and not serious, I can copyright the book I wrote but not a book that is about the characters I made up, etc.)
All of these decisions about how to separate an idea that is protected by IP and one that is not are utterly subjective. There is no logical explanation for why an 8-note melody can be copyrighted but not a 7-note melody. It is a mere matter of opinion based on what a particular person thinks constitutes a substantial piece of music. There is no reason why people would agree on this, and it is absurd on its face to think that there is a definite place to draw such a line.
It is the same with saying that one can copyright the plot of a book but not its characters (or even the specific sequence of words that are used to tell the plot). Logical consistency demands that you either accept all of them or none of them. IP supporters are aware of what nonsense it would be to claim that all ideas are protected under IP, which is why it always comes down to drawing arbitrary lines in the sand to define the boundaries of protected ideas.
One would literally have to decide on a per-case basis whether something is actually a violation of copyright. How much of the characters were influenced by the original work: just their names, their actions, more? How much of the settings were reused? This is a disaster for authors of creative works because now they have a huge reason to never write anything. After all, nobody has the time to read every copyrighted book ever written and be sure that what they are writing is “original enough”, assuming of course that “original enough” is even well-defined.
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sweatervest,
Let me ask you this; do you think it is possible, through a comprehensive and consistent objective ethical theory, to remove all forms of ambiguity from the human experience?
If so, then do you also believe that a society of cooperating humans would therefore never have a reason or cause to establish any arbitrary distinctions to avoid conflict (i.e. to continue to cooperate)?
Problem solved?
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“Let me ask you this; do you think it is possible, through a comprehensive and consistent objective ethical theory, to remove all forms of ambiguity from the human experience?”
No. I don’t see how that is relevant.
“then do you also believe that a society of cooperating humans would therefore never have a reason or cause to establish any arbitrary distinctions to avoid conflict”
If they are arbitrary then they won’t avoid conflict, they will cause further conflict. When people cannot decide based on reality (not value judgments) then they will not be able to act accordingly, they are not even sure what rules to follow because they would have to ask everybody first and then iron out all the disagreements, assuming such a process is even possible. “Arbitrary distinctions to avoid conflict” is a contradiction in terms. In order to fulfill its purpose of mediating conflicts between actors with different value judgments, the boundary defining socially acceptable behavior must be decidable independent of those value judgments. It must be based in physical reality alone.
“i.e. to continue to cooperate”
Such measures do not aid cooperation. Intellectual property has not solved more problems than it has caused. Governments are spending tons and tons of money on legal procedures outside of their own borders in order to attempt to enforce IP laws (a necessary condition of such enforcement, by their nature IP laws do not function if only those explicitly agreeing to them are bound by them, and unlike physical property laws breaking IP laws does not require one to actually be in the nation in question). This has stirred up huge amounts of controversy amongst file sharers, who have responded to such “crackdowns” with strategies like flooding the internet with cracked passwords, etc.
Enforcing physical property rights works because people know when they are breaking physical property rights. People know when they have stumbled onto something that is not the wilderness, and not their own property. The only possible way to not break copyright is to read, listen to, watch, etc. every piece of copyrighted information that exists, then meticulously watch every idea you have and only share it if is sufficiently different from all of those copyrighted ideas. Until you are totally sure you are familiar with every piece of copyrighted material, you cannot safely share any idea you have without possibly ending up in court. The same problem exists with patents, trademarks, or any other kind of intellectual property. All it does is give people legal avenues to extort others, based on fraudulent claims of theft, exactly the same way businesses that are challenged by competition have claimed that the competitors are “stealing their business”. The government offers to legally rob others of their *physical property* as long as you present them with a good IP case. The punishment for stealing intellectual property is, strangely enough, a restitution of *physical* property. How convenient that the accuser ends up with more physical property than he started with!
No such problem come ups with physical property. I can know when I’m trespassing on physical property. I cannot ever feasibly know that the piece of music I am writing is different enough from every piece of copyrighted music ever. That is why attempting to enforce such things causes far more problems than it solves.
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I would like to clarify something. When I talked about the rules of socially acceptable behavior (i.e. ethical vs. unethical) I was not talking about rules that specific societies create themselves (for example, a neighborhood with a monthly fee and rules about what kind of fences you can build). The ability to make such arbitrary rules in this case is because of the existence of those non-arbitrary, and ultimately justified laws of private property. It is always justified to homestead property, it is always justified to trade away property (and hence have property traded to you), and it is always justified to conditionally trade (contract) that property. These rights contain the rights for such arbitrary rules to exist, because those rules are simply rules of conditional use. An entrepreneur can homestead or purchase a large piece of land, develop it into a neighborhood, and rent the houses to people on whatever conditions he likes, because of the absolute and universal rights of private property. He cannot have those people “agree” to be able to burn down a nearby neighborhood, no matter what any group of people ever agrees to. For more on that, see Hoppe, The Economics and Ethics of Private Property (the second part).
But this is just contracting. One of the very few things Rothbard got wrong was thinking copyrights could be manifested in contracts. Copyrights only carry their force if they necessarily involve parties that never agreed to anything. Even if there is a town with rules about copyrights as part of the conditions to live there, those copyright rules are largely useless since the real problem is when someone not in the town visits it, absorbs some copyrighted material and then shares it with the outside world. They could, of course, simply never let anyone that does not live there in, just as in general one can avoid copyright infringement by never releasing his material! Furthermore, even concerning the townspeople, if one person bought a $5.00 CD, made a thousand copies and distributed it, no enforceable contract could force him to do any more than return the original CD and up to an additional $5.00. Multiplying the value of one copy of a CD by how many copies were made from it to determine a restitution value is about as fraudulent as fractional reserve banking. It is perfectly possible in such a scenario that a victim of copyright infringement could be owed more money than exists in the world!
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It’s not that this isn’t a complete proof, it’s that it’s not an argument at all.
And yes, IP law has to draw some bright lines that look arbitrary. Guess what? So does physical property law. E.g., does abandoning a property for 6 months revert it to the state of nature? 7? 8? 9? How much labor must be mixed with land to count as homesteading? Etc.
I don’t even think you’re trying at an even-handed approach to the topic.
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” E.g., does abandoning a property for 6 months revert it to the state of nature?”
Sad? Stupid? Both? Has it really escaped you, that the issue in this example centers around how long a period of *non-use* qualifies as abandonment, not whether abandonment as such constitutes a renunciation of a propery claim? The point sweatervest is raising doen’t concern whether the implementation of IP law is fuzzy, but whether the foundations of IP law are arbitrary.
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Then why are the questions about each property system so similar if one’s asking about foundations, and one about implementation?
Think about it.
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look arbitrary? LOOK? hahaha
as for property law: this is the state’s statutes; anarchists don’t support that. But without this you could still have property law. You could not have IP law.I have spoken.
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Yes, Stephan_Kinsella, and the (physical) property law in an private law society would end up having to make arbitrary calls where the relevant variables (how much labor is necessary for homesteading) are underdetermined. So obviously, you don’t consider it a flaw of a kind of property system (be it physical or IP) that some of its distinctions be arbitrary.
So, are we cool?
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Stephan,
Yes you have, and you demonstrate what you have said before: “We have IP because we have the State”.
It might be possible for a software engineer to define his universe in absolute, objective terms, but that, like everything else in the real world is somewhat arbitrary based upon the frame of reference applied.
Binary is “0″ or “1″. Electrical charge has a voltage of 12v relative to ground. A code will therefore always prduce the same output from a given input. In theory.
Now consider leagage, cosmic rays, and the concept of error rate. Now consider that rate at sea level, on the sea floor and 30 miles above earth’s surface, or a high radiation environment. Consider solar flares.
Suddenly the behavior of your zeroes and ones no longer perform as expected. That is the nature of the real world. It cannot be completely, absolutely objectified.
Can you live with that?
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what “kinds” of derivative works “should” it “include”? And how do you know? What exactly would your IP system look like? If you don’t know, what the heck are you in favor of?
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So what kinds of “homesteading” “should” entitle you to a “resource”? And how do you know? What exactly, down to the minute person-to-person interaction, would your “property system” look like? If you don’t know down to an arbitrary precision level, then what the heck are you in favor of?
What’s the proper compensation for grazing someone’s land with the side of my foot? With my full foot? For cutting across it barefoot? On a motorcycle? Who owns roads? Answers answers answers please!
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“So what kinds of “homesteading” “should” entitle you to a “resource”?”
Ones that leave an inter-subjectively decidable mark of human action. Everyone can tell when an object has been transformed by human action. For example, a spearhead is obviously the product of human action. A house is obviously a product of human action. As for a counterexample, standing on a piece of land does not leave a mark of human action. That is not homesteading. There are not multiple kinds of homesteading. Homesteading physical property is a well-defined process, while homesteading an idea is only well-defined if it is carried to its absurd conclusion.
All-inclusive physical property rights are exactly what anarchists (as Kinsella has pointed out) advocate. We are not drawing lines between what physical property is protected and what is not. It is *all* protected, and what constitutes a piece of physical property is well-defined. IP is a different issue because it is obviously absurd to be all-inclusive there, which forces one to try and convince the other debaters that certain places to draw these lines are acceptable (exactly how supporters of government that have not taken it to its logical conclusion simply try to convince the anarchists that a certain place to divide what the government can do from what it cannot do is a reasonable place to make the division). Well, 8 notes of a melody seems like a good place to draw the line, right? No matter what, it cannot be a matter of principle.
What you have said about physical property suggests to me that you are not too familiar with the substantial theories concerning the definition of property. It immediately comes up in the discussion that any ethic that is not objectively defined and inter-subjectively decidable fails to be an ethic at all. Private property (following in the tradition of Hoppe) is the basis of the only consistently arguable ethic, the private property ethic. Intellectual property utterly fails in its attempt to define ethical verses unethical behavior because it is impossible to objectively, without recourse to the opinions of those involved, define what violates intellectual property and what does not. One cannot sit along and determine what violates IP. One has to be able to determine, by one’s self, without asking what other people think, what is ethical and what is not, or else said ethic fails to achieve its very purpose.
As for the question you raised concerning how long after property is abandoned is it not owned, I think if you peer a little deeper into this question you will see that it answers itself! “Abandoning” property means relinquishing ones ownership over it, so the answer is immediately. Abandonment is the act of giving up ownership. One does not abandon one’s house when going to the store. He abandons it when he no longer exercises his right to exclude over it. If you never do this, it doesn’t matter whether you stay in it or not, it remains yours or your heirs until someone sells or abandons it. There is no arbitrary line to be drawn. That is, as Kinsella said, the business of the state and their mutant form of “property rights”.
December 17, 2010 at 5:24 pm
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Although I would like to see and honor Silas’ reply till then I have my two cents:
You try to simplify this away, but the devils are in the details. The same way anti-IP tries to chew away IP by the details. For example, how do you define the size of the land you homestead. By use? By fencing it? Why is it legitimate? Why fencing (drilling, building etc) is a legitimate cause? How do they correlate with the size, the borders of your property? These are not less arbitrary than some of the IP rules. In a legal sense homesteading is all about preparing for “the conflict” even if the homesteader has never had that in mind. It is not surprising this area is the favorite of lawyers.
December 16, 2010 at 2:00 pm
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This story reminds me of a plot-line a friend and I came up with for Atlas Drugged, where John Ganja gathers his fellow Rasta-Men together in a smoke-shrouded “I and I” mountain plantation hideout, so they can use Ganja’s outvention of a powerful new kind of bong to save America from downpressor narcs and their evil politricks. Jah is Jah!
I don’t suppose Dr. Peikoff would allow that to be published either . . .
December 16, 2010 at 3:10 pm
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Mr. Kinsella, if you want to present an anti-IP argument, the threat to produce a bad and derivative satire isn’t exactly going to win anyone over. There are probably hundreds of good ways to refute intellectual property, but pointing out that IP prevents you from being able to publish something that no one would ever really want to read is certainly not the way to do it.
On the contrary, you could simply point out the fact that a thousand immitations of Atlas Shrugged would never be as good as the original. Great art doesn’t need IP protection. A well-informed audience knows the difference between a great novel and derivative drivel.
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Oh, I don’t know, it might convince some, by adding to the mountain of absurdities and outrages that is IP. And anyone who is thoughtful can see this is the tip of the iceberg. For example, the current movie version is a perfect example. The novel was writen in 1956 IIRC, so for over half a century, no movie, because the rights are tied up,a nd there can only be “one” “authorized” movie version. And b/c of IP, the current producers had to rush it to avoid “rights lapsing,” so that it’s likely to be terrible now.
In the face of a stubborn author or estate who refused to authorize an authorized version there may have been 3 or 4 unauthorized versions out already. Oh, well. What’s 50 years.
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Should anyone be convinced to reject property law _as such_ because one time judges ruled that farmers can gun down aircraft that pass over their land?
Then neither should the fact that judges and legislators have decided, on the basis of “IP” to restrict creative derivative works convince anyone to reject IP _as such_.
Think about it.
December 16, 2010 at 3:52 pm
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Silly Silas
Arguing by analogy is something that has never worked out for you in the past and yet you still engage in the practice. Odd that.
How about considering the assumptions inherent within your position? Had you considered them? Had you considered that they are likely erroneous and that you have been engaging in circular argument all this time?
Think about it.
Sione
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Yep, I’ve considered that possibility and found as of yet no substantiation for it.
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Silas
OK, then. What are your assumptions?
Sione
December 16, 2010 at 11:43 pm
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Why not? Eminent Domain is legal but offends property rights for some. So what if some country were to say the property right extend to the sky and to the Earth’s core? It then be legal for a farmer to shoot airplanes down for a-trespassing.
December 16, 2010 at 5:12 pm
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Silas,
There are no contradictions. Check your premises and you’ll find one of them is false. I like Ayn Rand as much as any objectivist but this doesn’t mean she is infallable. I’m sure she didn’t wake up one morning and know her entire philosophy, rather she developed it over time and study. Further enlightenment of man’s nature didn’t stop with her death only further development of her story through unjust IP.
Think about it.
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I don’t support IP because of Ayn Rand, Rand_Fan.
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Silas
Why then?
Sione
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“Should anyone be convinced to reject property law _as such_ because one time judges ruled that farmers can gun down aircraft that pass over their land?”
This is a dishonest analogy. People other than said judges have elaborated systematic theories of physical private property and exposed these very judges to be frauds. No one has done this with intellectual property. This has utterly nothing to do with what any judges say.
Kinsella’s arguments against intellectual property are not, “Some judge made a ridiculous ruling about the use of ideas, therefore intellectual property is invalid.” Again, you seem to be confusing an illustration of an argument with the argument itself. The argument against copyright is not presented here. Referencing the outrageous rulings of judges *illustrates* the theory that copyrights are ill-defined. It is a real-world example of the consequences predicted by recognizing that there is no consistent or objective definition of copyright-able ideas.
December 17, 2010 at 10:46 am
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One wonders what would have happened to Ms. Rand had Nietzsche’s estate been able to sue her for her blatant unattributed (indeed, aggressively denied) appropriation of his ideas.
December 17, 2010 at 6:10 pm
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As a well-named, blue-eyed, desert-dwelling libertarian, I want to read it, if and when you ever do decide to spend that 4 years.
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Stephan, GWAR is the greatest band in the universe, even better than Rush.
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Stephan, don’t have a link available at the moment, but go to YouTube and search for their latest, Zombies March. BTW Yngwie is cool, I’ve always thought Yngwie is to Blackmore as you are to Hoppe, student becoming the master, etc.
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Oh, GWAR is metal, btw.
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Yeah, Ritchie; Yngwie was a big Purple/Rainbow fan.
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Silas,
Why is the originator of an idea justified in using force against copiers?
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because he believes that ideas are ownable and a type of property, so copying them is “stealing”, and means taking the first originators “profit” out of his pocket (literally, because if it was a metaphor, then no damage would be done). Sure, there is a possibility, that two or more different people can come up with the same ideas in same country, but only the first one who patented it (who decides? God-state which is always correct) has a right to forcefully exclude competitors, no matter if they copied idea or came up with it by themselves.
Silas, feel free to correct where my understanding of your position is wrong.
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Wildberry,
Regarding you post above ( http://blog.mises.org/15032/atlas-hefts-the-sequel/#comment-745716 )
You said that that if someone says “From now on, within the borders of Mayortown, anyone who writes a book will do so under the rules of the Can Act. Anyone who objects will have to leave Mayortown forever. Speak now or forever hold your peace.” then that declaration is binding on everyone forever.Would this type of declaration make slavery valid within a district?
“From now on, within our borders, every first born child becomes the property of the government. Anyone who objects will have to leave forever…”If this argument for slavery is ok with you then I think you need to do some meditating on morality.
If not, then why is it ok to use the same argument in favor of IP?
December 19, 2010 at 3:34 am
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I’m going to stop reading the comments on the Mises.org blog posts about IP. The comments go on and on, and they repeat themselves every article. It’s reached a stage where there are pro-IP and anti-IP camps, and they do nothing but call each other names. Clearly, yes, this is a sticky point, and not everybody can be satisfied. On the one hand, the anti-IPers want to know that their property rights are secure, and they can use their property as they wish without interference. The pro-IPers, on the other hand, want to be guaranteed of a particular brand of “fairness” for their work, even if that means forcibly stopping another from doing what they want.
I don’t think the answer lies within the comment section. I think there is too much stubborn pride on both sides for anyone to admit that the other side’s point of view is possibly valid.
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Colin,
“for anyone to admit that the other side’s point of view is possibly valid”
I think there are many who visit this site that feel the same way, so I thought I’d offer a response.
Here is something to consider: In these discussions about IP, IP is not really the issue. It is a vehicle to discuss something else. Perhaps the issue is not IP per se, but anarchism. Observations about the injustice of IP serves to illuminate what is right about ancap ideology.
Many, including me have a fundamentally a “non-statist” or libertarian world view, but I think there is equivocation about that, personally speaking Statism tends to be conflated with government, any government. I am not a statist, but I’m not an anarchist either. There are intelligent, articulate spokespersons here who believe that is not logically possible. So we argue about it. Little will actually get resolved either way. When you have so much invested in an ideology, it is a matter of pride to keep defending it. That applies equally to me, but I try to be open to to examine my own faulty reasoning. I have taken some harsh criticisms that I had to admit were valid. Humility is a good thing.
This ancap world view has a good deal of support specifically on this site, but not so much elsewhere, all things considered. I argue with advocates because I am learning the reasoning and the language and I find it interesting. By discovering how anarchism conflicts with my view, I understand my view better, and that is useful to me.
It is not about resolving the differences of opinion. That is not likely to happen. At the highest level it is about opposing world views defending their positions at the margins, where they conflict. At the lowest level, as you correctly observe, it is a bunch of name-calling and rudeness.
Bottom line, I agree with you, the rudeness and ad hominems are unpleasant and distracting. I hate that approach, although I have to admit, I’ve been snooty here too, and I usually regret it. I, for one, am trying to put a sock in it.
Regards,
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I am curious about the use of nyms–you and others here. It seems to me that this encourages irresponsibility. I mean if you become an ass you can just change your identity and start over. Why do poeple use nyms? I am curious why you nyms do this.
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For myself, I’m afraid of stalkers.
If you think I’m being irresponsible, just let me know.
If you address your comments to Wildberry on most any thread where I’ve posted, I’ll get them.
I appreciate your responsiveness, and I’ll be the same.
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What nym?
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Sorry Wildberry, Dan is right: you have not answered my question.
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Hi Beefcake,
OK, let’s see.
In order to answer your question, I have to deal with property rights, yes?
The only argument you will accept about the creation of those rights is an act of homesteading scarce goods. You use this to mean occupation of previously unowned or transferred property.
In order for something to be unowned or transferred, it must exist first. If it already exists it must be tangible, and if so, it is scarce. If is not scarce, it cannot be tangible. Therefore property rights can exist only in tangible goods.
An idea is not scarce. It is not tangible. It is a free good. This can be demonstrated by the nature of its replication. It is impossible to homestead something intangible because they don’t exist as tangible property and they are not scarce.
Therefore, intangible things, which are not scarce, cannot be homesteaded, and if they can’t be homesteaded they can’t be owned. If something cannot be owned, there can be no property rights in them. Therefore any attempt to enforce those rights is illegitimate, by IP or any other means, especially through state police action.
Do I have your argument down?
In order to refute this argument, I must show that:
1. Intangible “things” exist, but I cannot resort to metaphysics
2. They can be owned, but I cannot resort to a theory or property rights other than homesteading
3. They “should” be owned, but I can’t resort to utilitarianism
4. Ideas can be scarce and tangible, yet still remain in the public domain as free goods.
5. Any rights that do exist can only created through contract theory, which does not bind third parties, unlike property, which creates rights against everyone else.
6. Finally, I must show why the initiation of force by another is justified, because no rights have first been violated.
This is a tall order. You want me to refute your position by adopting all of your rules and assumptions which are begged in the question. I get it.
Or I can take an approach which is much more Misesian than Rothbardian.
I might argue that rational humans may agree that:
1. The intangible product of human cognition can be “fixed” in a tangible good in ways which make it possible for other human beings to perceive them. We can call this “cognitive production”.
2. If Humans who perceive these “fixed” products of cognition find them useful, then they are economic goods.
3. The fact that these goods are comprised of both intangible and tangible goods does not disqualify them from being treated as property. After all, oxygen is free, but I still own my body.
4. One who performs such an act of “cognitive production” has a better title to his product than anyone else, right up to the point that he shares them.
5. Since sharing them is useful to others, and useful goods are economic goods, theories of economics, praxeology and catallactics are relevant.
7. The framework of economic theory they choose is Austrian Economic Theory.
6. One premise of this particular economic theory is that output must equal income for a producer of goods. If not, s/he is producing for an external market. This will cause him to redeploy his resources to activities which are internal to his market. If producing for internal markets is relevant, cooperating humans may devise a means for preserving internal relationship between production and consumption, between output and income.
7. It is consistent with this economic theory to establish a property rights theory for goods which are comprised of both intangible and tangible goods, such that producers of these goods are not producing for external markets.
8. An agreement to establish property rights in this category of economic good is within the rights of free humans acting in cooperation.
9. This agreement may address both the details ownership rights in such property, and the means of enforcing these right against infringement by others.
10. If this is done, the existing laws of torts, property, and contracts can be deployed much the same as for other property.
11. This is convenient and efficient in relation to economic trade, and is consistent with a rational ethics and a theory of economics.
12. Therefore it is legitimate.
OR…
I could assert that it is legitimate for a group of free humans to assume most or all of these things, rightly or wrongly, and set up a system to operate under the guidelines they create. This is a form of cooperation among rational humans. Therefore it is legitimate, FOR THEM.
This was a dramatization, but I think there is good evidence that property rights of all kinds find their historical origins in something more like what I described, than it is say they all came up with a theory of homesteading ethics and proceeded from there; or that we think that they SHOULD have.
Furthermore, I agree with Mises. It doesn’t really matter that much WHY or HOW property rights get established, as long as there is a general sense of acceptance and the free market can operate. Over time, you get exactly to the point that you argue we should be, in a free market where consumers sort this all out through the pricing mechanism.
I chose to make my point with my little drama. It is a good answer, just not the one you expected or wanted, because you already know how to spot the fallacies that contradict your assumptions, so you wanted me to go down that path. That would have been futile.
Your turn.
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Wildberry,
Uh, my turn to do what? You seem to be playing some kind of game here, and frankly it’s grown tiresome. I’m not asking you to understand my theory of property rights or to anticipate what kinds of arguments I’ll accept (valid ones are what I’ll accept, in case you’re wondering).
The issue concerns legitimate modes of action. Supporting IP means that you believe in the right to employ force for some IP-related reasons. I’m asking Silas (and I guess you) to specify and defend those reasons. I’m guessing neither he nor you can do this.
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Beefcake,
Sorry, it’s no game and sorry if I’m boring you. Seriously.
I think both you and I agree that a “legitimate modes of action” depends on whether a particular right exists.
If so, then it is a retaliation, which I believe we both support.
If no, then it is initiaton, which we both reject.
So, let me try to ask you a question;
Is there any way for rational people to agree that they will treat a certain human phenomena as property, vest rights in it, and thereafter define moral conduct as acting in conformity with that agreement, without resorting to the homesteading principle?
I am seriously asking, with all due respect don’t accuse me of insincerity. I have nothing to win here.
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Beefcake,
Let me try it this way:
I see no reason to treat intellectual property as being fundamentally different than any other form of property. It operates along the same principles as any other property. The boundaries of that property are fundamentally established in the same way as any other property. Fundamental rights of property ownership operate in traditionally understood ways.
Therefore the enforcement of these rights through legitimate and moral conduct, is justifiable in EXACTLY the same was as for any other rights in property.
Furthermore, given that this property is an economic good, it must operate according to principles of economics. It is the intersection of law and economics which interests me. One such intersection has to do with the concept of internal and external markets. The issue there is this: If you treat IP in a certain way, it creates external markets. This is not a desirable outcome, for several reasons which I’ve previously elaborated.
IP law is a specialized category of law dealing with specific categorical issues related to the intangible component of tangible property in this category of property. It has its own peculiar attributes, which are directly analogous to those in the category of laws dealing with property; for example the transfer of real property relative to the issues addressed by “the rule against perpetuities” and the “fertile octogenarian”. I realize you may not be familiar these concepts, but they establishes certain limitations on conduct concerning the alienation of property through devise or bequest. It is no different for IP. IP defines property rights with certain limitations.
IP law deals with ambiguities, such as how it is owned, what is protected what is an infringement, etc, in ways that are no different than the way that torts or property or criminal law deals with ambiguities at their margins. Fundamentally, however the principles of IP laws are straight forward and establish bright line relationships between owners of property, and others.
Therefore IP rights, as a category within all property, is well defined and established in case law. That case law has been codified in legislative law. This is identical to what has happened in every other category of specialized law. They take the form of things like the Restatement of Torts, the Model Penal Code, and the Uniform Commercial Code. To elaborate beyond this is simply to reiterate the principles contained in that law. This law exists and is in wide practice. There are reasonable reasons to believe that the ethics of attribution, say to a person who writes a song or tells a unique story, go back to early, primitive societies. We didn’t just make this up in the 1500’s.
However, you believe the whole world has made a terrible mistake. They choose something called IP law. Through my attempts to use the terminology and concepts of your ideology, (which is mostly what I have been trying to do here) we have encountered and discussed many of the conflicts between your and my ideology at the margins, where they conflict. Ironically, there are obviously many, many things that we believe in common. But we have been unable to come to terms on exactly what property is.
If I recognize the validity of property rights being vested in intellectual property, and refer to the existing law to explain what that means, precisely, THAT is what justifies and legitimizes modes of action relative to those rights.
Such action proceeds along the normal and traditional path of rights in property. Their enforcement is handled by indirect retaliation for infringement of those rights through a neutral, third party court system. This court system is itself circumscribed and limited by other laws, like rules of evidence, civil and criminal procedures, constitutional rights, and trials by jury.
This is a complex, interrelated, sophisticated, nuanced system of balancing principles of fairness, liberty, individual rights, impartiality, etc. It’s been around for awhile. There are problems, which can be summarized by a concept of “mercantilism”, but that this is their essence; it is in their benefits, not their failures.
You simply disagree that property rights can be legitimately established by any mode of conduct other than homesteading, and so there we stay.
I have been attempting to illustrate how rational beings could establish such rights absent an act of homesteading, and the rest of the argument flows along normal lines from there. If I have been playing any games, it has been to experiment with ways to illustrate that point. I am trying various approaches to try to illustrate something to you. I am doing this in all sincerity and good will.
That’s it. Regards,
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“I see no reason to treat intellectual property as being fundamentally different than any other form of property. It operates along the same principles as any other property. The boundaries of that property are fundamentally established in the same way as any other property. Fundamental rights of property ownership operate in traditionally understood ways.
Therefore the enforcement of these rights through legitimate and moral conduct, is justifiable in EXACTLY the same was as for any other rights in property.”
Until you provide an explanation for why “boundaries” of any property are justifiably “established” we are going in circles, I’m afraid. I am guessing you mean there are statist or common law justifications, and that these do not rule out IP. If so, you are ignoring rationalist justifications for property.
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Beefcake,
In brief, I am saying that first of all, however the boundaries of property are drawn or established, they must not be designed in such a way as to not create production for an external market.
Also, how those rights are established, by something like homesteading or by contract or any other means, is not nearly so important as having clearly defined boundaries.
These are economic principles. They are not derived from ethics.
Next, you are asking about an ethics of property rights in intellectual property. I am saying that despite my repreated attempts to 1) see whyIP should be treated any differnt than other property, 2) understand your (and other’s) reasoning for why not, the arguments against seem to be relentlessly bound up with anarchism, and a general objection to the State.
I don’t think I can use your own logical constructs against your argument, since they are constructed specifically for the purpose of supporting anarchism. It is a circular argument (i.e. internally consistent but exclusionary) in that regard.
I have been trying to figure out a way to make MY argument using your constructs, or in the alternative, get outside of your construct to reflect on the limitations of your objective system of ethics.
I’m not sure what the key to that kingdom might be. So, at this point, let’s give it a rest and see what the new year brings.
Merry Christmas.
December 19, 2010 at 11:40 pm
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1. The intangible product of human cognition can be “fixed” in a tangible good in ways which make it possible for other human beings to perceive them. We can call this “cognitive production”. …
3. The fact that these goods are comprised of both intangible and tangible goods does not disqualify them from being treated as property.
There is no “intangible product of human cognition.” Whatever you think of your ideas, the fact is they are tangible. They consist of electro-chemical impulses, and the neurons that pass them.
You are mis-using the word “intangible.” What you are claiming in not a property right in an intangible good, nor are you claiming a property right in a good consisting of some kind of “mixed” tangible/intangible one. You are claiming a property right in an abstraction — a fantasy, a myth, a non-thing, a wholly imaginary construct that you call an “idea.”
When people talk about intangible property rights, it refers to rights that arise by contract. This kind of property right includes things like promissory notes and rights of action against other people, like you get when you participate in a corporation in some capacity.
Why do these intangible rights count as property, like rights in physical property? Simple — the person against whom the right is ultimately to be applied has agreed in advance to be so bound. He may object by the time comes for him to be bound, but it is his prior consent that justifies taking action against him. Without that prior consent, such action would be an assault and/or theft.
See, this is where the principle of property comes from in the first place — everyone begins with full ownership of himself. This space (our bodies) cannot legitimately be invaded without prior consent. This is the foundation of the Non-Aggression Principle.
Another principle we can deduce from this first one is that we all have maximum liberty, limited only at the point when one person’s action constitutes an invasion of another person’s bodily integrity.
But we can derive another principle from these two — what are we to do about situations where one person’s use of something interferes with another person’s use of it? When A is not attacking B, but A’s use of a patch of dirt to grow wheat interferes with B’s use of that patch for anything else? A and B both want to use it. How is the conflict resolved? The Non-Aggression Principle tells us that A and B can’t invade each other’s bodily space without consent, or the justification of self-defense. There is only one principled way — priority of use. First in time is first in right.
There is no other method of resolving the conflict over incompatible uses of objects that is capable of being applied universally — to all people in all circumstances. All other methods of resolution depend on a claim of superior social status by one person over another. That’s all homesteading is — priority of use.
Your concern over “producing for an external market” is not a basis for a property right. Let’s say that I am a super sharp dresser. I don’t design the clothes themselves, but let’s say that I really know how to wear them. No one on earth can combine colors, textures, materials, styles better than me, and even the designers of the clothes say so.
This ability to dress to impress is a major economic benefit to me — it gets me ahead socially and professionally. Let’s say it also took me years of observation, experimentation and effort to learn to dress so well. So, there you have your elements of what should be “intellectual property” — input of effort and ingenuity, with economic benefits flowing from it. My income should match my outputs, which I own because I own the inputs.
But wait! Less creative people start copying the way I dress! Within an hour of my stepping out my front door, the paparazzi have beamed my stunning ensemble all over the world, and thousands if not millions of men worldwide are combining patterns and colors JUST LIKE I DO! It took me years to learn how to dress in a way so many people love, but these copycat cretins avoid all that work by just looking at me each day! They get all the benefit of my years of hard work for nothing!
This rampant dress-copying — piracy, I say! — deprives me of a substantial measure of the economic benefit of dressing so damned well. By the time it reaches 3:00 pm, half the people I meet have already seen a dozen other guys dressed exactly like me! As a result, I’m no longer original, no longer as impressive, no longer considered cutting edge. My income (which is based on being so well-dressed) drops as a result.
By your logic, I should have a property right in my unique (and uniquely valuable) combination of clothes, lest I be “producing for an external market.”
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Phinn,
How have you been?“Whatever you think of your ideas, the fact is they are tangible. They consist of electro-chemical impulses, and the neurons that pass them.”
I think what you mean is that when a person thinks, there are certain changes in the electro-chemical impulses and the neurons that pass them that can be measured by certain instrumentation. Despite the experiments taking place that can correlate these patterns with specific thoughts, like picturing a ‘hammer’, I would not think that you mean you can actually perceive these chemicals and impulses. Certainly they would not be sufficient to comprise anything that one could call “communication”.
I use the word “intangible” in its simple meaning: imperceptible by the human senses. A table is tangible because it can be perceived by the senses. My ideas about how to design and build a table are intangible. Both are required for me to build a table. There is no meaning of intangible implied by me (or IP Laws) that means “the complex of carbon-based molecules” that actually the makeup the structure of wood. Those are not perceptible by humans.
Those carbon atoms are not what is meant by “intangible works” within the meaning of IP law. My ideas about how to design and build a table ARE intangible within the general meaning, but are NOT intangible works in the meaning of protectable works. There is no “work” here that would be protectable. You need more.
“a fantasy, a myth, a non-thing, a wholly imaginary construct that you call an “idea.””
I’m sure we could launch into a fascinating discussion of metaphysics, but I’m not sure that is helpful. If I can imagine something, does it exist? That sort of thing.
On the other hand, are you denying that when you speak words that I can hear, that act is preceded by something that we can call cognition? Is it necessary for me to make a metaphysical argument for you to acknowledge your own experience? Is it unreasonable to infer that since we are both humans, that my speaking must also follow this sequence of causality leading up to the voluntary vibration of my vocal cords and the articulation of my facial muscles?
Mises treats this subject handily by pointing out that the primary premise of praxeology is that humans act, and that as rational beings, some act of rational processing must come before the physical act. It is not necessary to delve into the specifics of what that metaphysically “is”, only to acknowledge that without it, rational action would not be possible. I think you can grant me at least that much.
“When people talk about intangible property rights, it refers to rights that arise by contract.”
Now this is interesting, because I have been saying essentially the same thing.
“This kind of property right includes things like promissory notes and rights of action against other people, like you get when you participate in a corporation in some capacity.”
Is the promise behind the promissory note tangible or intangible? Are they a construct, an imaginary fantasy?
“Why do these intangible rights count as property, like rights in physical property? Simple — the person against whom the right is ultimately to be applied has agreed in advance to be so bound.”
Exactly!
“He may object by the time comes for him to be bound, but it is his prior consent that justifies taking action against him.”
Precisely!!
“Without that prior consent, such action would be an assault and/or theft.”
I agree. A property right is a negative right, which implies a positive right to retaliation. This retaliation may be direct, or indirect through a neutral third party who must adjudicate according to specific rules which aim at fairness to both the victim and the accused. These might me an imaginary (and therefore intangible) Private Protection Agency, or a tangible, historical, observable (and therefore tangible) court of law. Implied in a court of law are rules, like civil procedure, evidence, jury of peers, Constitutional rights, etc. No need to re-invent those, right?
“See, this is where the principle of property comes from in the first place — everyone begins with full ownership of himself.”
Yes, one has a negative right to protect his body, and by logical extension, his property.
“This is the foundation of the Non-Aggression Principle.”
Yes! The non-aggression principle is not a libertarian or Rothbardian invention. It is implied in the legal concept of self-defense, for example. You are defending a right not to be attacked, and therefore the positive expression of this right is not aggression, it is defense.
“Another principle we can deduce from this first one is that we all have maximum liberty, limited only at the point when one person’s action constitutes an invasion of another person’s bodily integrity.”
Yes. Of course the interesting issue here is one of boundaries. They can be tangible or intangible. For example, have you ever had someone lean in too close when they were talking to you? They are invading your space, and it is considered ethical to advise them to back off. That space is not really tangible, but somehow, as human beings, we know where it is. Isn’t that interesting?
“what are we to do about situations where one person’s use of something interferes with another person’s use of it?”
This is the stuff that fills up law case books. There are infinite numbers of circumstances, it seems, where the general rule is not sufficient to deal with given facts. Therefore, the historical process of the common law is one of making adaptations to the general rule to cover ever more unique fact patterns.
“There is only one principled way — priority of use. First in time is first in right.”
This is only partially correct, because it only works for a certain set of facts. For example, it works when the boundaries of property are fixed and known, but not as well when boundaries are not precisely known.
If I am growing wheat on my acre of land, and one day you show up and want to grow wheat there too, we can apply an ethical rule of first use to resolve the conflict.
However, if your acre and mine are adjoining, how is first use helpful? If the boundary itself is in dispute, both may have equal title in time. This is in agreement with the actual history of trespass in tort law.
Two lords of adjacent property could not settle the exact location of the boundary between them. One would politely “invade” the other, and then enter a suit in the English courts. The court would hear evidence, look at maps, whatever, and make a ruling as to where precisely the boundary was. The “looser” would pay nominal damages to the “winner” of one pence. First in time was not the principle applied, it was much more “arbitrary”, yet the dispute was resolved.
Henceforth, each party “won” the right to defend his property precisely. Of course, it could now also be sold, precisely. That is the economic purpose of having clear boundaries in the rights of property. This is especially important when these rights have some intangible aspect.
“All other methods of resolution depend on a claim of superior social status by one person over another. That’s all homesteading is — priority of use.”
Yes, I understand the homesteading principle. I have argued that homesteading, where it can be applied, establishes “best” title to property. However, it doesn’t deal well with ambiguities concerning boundaries, and it has no relevance to intangible rights as you described them in the context of contracts. By the way, it is important to note that contracts can be utilized to transfer or otherwise encumber rights of all kinds, with the exception of forbidden rights, such as a right to another human being (slavery).
“Your concern over “producing for an external market” is not a basis for a property right.”
Before we examine your argument, let me say that I agree with you. The external market issue is an economic issue. It is a phenomenon affecting market operations. The issue is the economic impact of various systems of establishing and enforcing rights. Certain schemes cause a disconnect between the act of producing output, and of receiving income for that output. When this occurs, it can be described as an external market. It can also be described as a unilateral transfer.
I am particularly interested in the intersection of law and economics. That is my area of interest.
“Let’s say that I am a super sharp dresser.”
I’m sure you are. Your scenario is a good example of why I think spending some time on the actual law is a good idea. As Kinsella correctly points out, if you are going to argue either for or against something, you should know something about what it actually is.
First of all, IDEAS ARE NOT THE SUBJECT OF IP PROTECTION. They are specifically excluded. Therefore, you need to be careful when you argue against IP by asserting that “ideas are free good”. Everyone agrees.
“This rampant dress-copying — piracy, I say!”
Copyright laws make important distinctions concerning design elements in useful articles. The test is whether the design can be separated from the useful object. If they cannot, they are not protectable. Fashion is an example of this distinction. How can you separate the “cut of your lapel” from the coat itself?
Copyright Act §101 says: “the design of a useful article…shall be considered a pictorial, graphic or sculptural work [and thus copyrightable], only if, and only to the extent that, such designs incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”
So clothing is a useful article, within the meaning of copyright law. But your arrangement of those clothes has nothing to do with copyrightable work. Just so you know.
“By your logic, I should have a property right in my unique (and uniquely valuable) combination of clothes, lest I be “producing for an external market.””
As Kinsella might say, “Analogy FAIL”. What works are protected is a nuance of property rights in the law of copyrights. It doesn’t work as you have described in your example.
Bottom line: Producing an output that doesn’t equal an income for the producer is the definition of producing for an external market. Even if a product never enters the marketplace, he is producing for an internal market; his own consumption or capital accumulation.
Anything that causes production to serve an external market creates a distortion, and subsequent reallocation of resources. Anything that maintains the internal relationship between output and income supports internal markets, where costs and profits can be accounted for.
Therefore, an IP law (or lack of one) which has the effect of disconnecting the production and income, creates an external market relationship between output and income. This is contrary to the principles of a free market that operates with property, production, and the price mechanism systems in economic activity.
This is quite different than what you are saying I’m saying. I’m not saying that.
I enjoy your posts.
Regards,
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Hello, Wildberry,
I have been fairly well. Busy, but I suppose that is better than being not-busy.
I know you spent a great deal of time responding to my previous post, but if you don’t mind, I’d like to focus on one aspect of it that keeps coming up —
>>>First of all, IDEAS ARE NOT THE SUBJECT OF IP PROTECTION. They are specifically excluded. Therefore, you need to be careful when you argue against IP by asserting that “ideas are free good”. Everyone agrees.
This assertion strikes me as a bit too vague for my comfort level. I understand that IP protections (as they currently exist in the USA, and even as pro-IP libertarians claim they could exist, if re-written) purportedly only apply to the “fixed” article, and not to the idea in the abstract.
(I am a lawyer (unfortunately), and although I do not practice IP law, I know just enough about it to get into trouble.)
I disagree with your assessment that IP laws don’t apply to the idea. That’s not how IP actually works, and believe your assertion to be a distortion of the actual mechanism and theory behind IP.
If IP did not protect the idea, then the only thing protected would be the physical article — the particular book, recording, film print, etc. No one debates the fact that you own the actual paper on which you write a book, or the hard disk on which you encode a song. That’s ordinary, physical property.
IP protections obviously go much farther than that, and that’s the flash-point of the entire debate. I understand that the IP protections don’t initially arise until an idea is fixed in some medium, but once that happens, IP rules claim that the res that is protected IS THE ABSTRACT IDEA OR PATTERN.
According to IP reasoning, that pattern is somehow severable from the physical article itself, such that the IP right-holder can proceed to expand his claim of property right outward, that it emanates throughout the entire reachable jurisdiction, to govern the creation and use of ALL ARTICLES that contain a pattern that is identical to the original one, or even one that’s similar (within some nebulous degree of tolerance).
I do not understand how one can legitimately ague that this is anything other than the protection of an idea. Yes, that protection begins only upon the production of a fixed, physical article, but once that occurs, IP protection purports to govern far more than the physical article itself. It purports to govern ALL articles (wherever they may be) in which the pattern of elements is deemed to be sufficiently similar to the first one.
And the protection of the pattern of ink marks on paper is not limited to controlling the pattern of ink marks on other pages. “Harry Potter” began as a series of books. But IP rules purport to cover not only the production of those Harry Potter books via photcopier, but the production of all books about teenage wizards who go to boarding school, with dead parents, lighting-scars on their foreheads and a nemesis whose name begins with V. It also purports to govern the production of theatrical performances involving that subject matter (live or recorded), songs on that topic (live or recorded), little figurines bearing similar features, and graphic images created by anyone who may have imagined some features while reading the books (which may be wildly different from all the other graphic imagery created in association with the author, but still containing Harry-Potter-like elements). In other words, IP purports to control across widely different forms of media. If that is not the protection of an idea, I do not know what is.
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Phinn,
Always happy to hear from you. This is a good topic.“I disagree with your assessment that IP laws don’t apply to the idea. That’s not how IP actually works, and believe your assertion to be a distortion of the actual mechanism and theory behind IP.”
As luck would have it, I posted to Kinsella on this topic this very day, here: http://blog.mises.org/14994/spiers-why-no-intellectual-property-rights-china-and-business/comment-page-1/#comment-746614
“IP rules claim that the res that is protected IS THE ABSTRACT IDEA OR PATTERN.
The first question I have is, are you sure? Let’s use copyright law as the vehicle for this discussion. What copyright protects is an “original work of authorship”. That is in §102. However part (b) of that same section specifically excludes ideas from protection.
I think it is a fair reading of copyright law, and one which is supported in large part by case law, that copyright law makes a specific and important distinction between and “idea” and an “original work of authorship”. Therefore, it seems to me that before we can conclude whether copyright law does or does not protect “ideas” in your and a typical IP opponent’s view, we would have to understand (and hopefully agree) on just what this distinction is.
It seems like a contradiction in a way, to say on the one hand that copyright law creates rights in the intangible “work”, yet only enforces that right in relation to tangible “fixations”. That seeming contradiction, in my opinion, is what is screwing up this debate. I’ll be interested to see if Stephan sheds some light on that problem.
On the one hand, an idea is not sufficient, but a “work” is not sufficient either unless it is made tangible (i.e. perceptible by another human) by “fixing” it in a tangible good that can existed prior to and separately from the absence of this intangible work. I think this is really the essence of the problem. What is this distinction, and is it meaningful, rational, ethical and just? We cannot possibly answer that question without an agreement, at least in general, of what we are talking about. This cannot be skimmed over; it is a central issue.
Second, if we are going to agree (not that we have) that there are going to be rights in this intangible work, then like all property, we have to define its boundaries. If I write a book and everything that I used to accomplish this was my own property, then it is reasonable to say I “own” the book, because no one can demonstrate better title to it than I.
In my understanding, copyright law says that this intangible work exists, is attributable to the author, but the rights do not vest until such time as it is “fixed” and made available to others through their perceptive capacities. This has the advantage of allowing the treatment of this “work” to be handled by general legal concepts of torts, property and contracts.
How can we tell when it is “fixed”, whether the book is “original” and whether it can be attributable and owned by the “author”? Copyright law accomplishes this to a very large degree.
How can we tell that a book with random letters is different than one which encodes the “work” of an author, like say Mises? That is a legal problem which has been addressed in the law and refined in case law. Yet it specifically excludes “ideas” from protection. What is going on here?
The ideas behind Human Action were originally available to anyone, just like the letters of the alphabet that were used by Mises were available to everyone. Just because he used letters, which have the same attribute of non-scarcity as ideas, does not disqualify that book from having the attribute of “property”. After all, it was Mises’s property before he shared it with anyone. Why would the act of sharing destroy his right or property?
As an attorney, you understand the concept of “unjust enrichment”. It is a rationale for imposing an equitable remedy. It requires a “foreseeable reliance” on the conduct of the party which is being estopped. If the work of an author starts out being owned by him, and he sells a copy to another person who understands (through his own awareness of copyright law) that the author is relying on his property rights to economic use, yet this buyer makes copies and sells them and keeps the proceeds, wouldn’t the author have been “unjustly enriched” by receiving the income of a book, while producing only a copy? This person’s copy was the result of production, the inputs to which included not only his property (paper, etc), but also the “work” of the author. It is the author who invested his capital into the work, yet the copier used this capital investment in order to be enriched by his act of copying and selling the copy. Isn’t this enrichment unjust?
If so, then there would be a legal and ethical justification for etopping the copier from claiming ownership of the author’s capital good, as represented by the original book from which he copied. The justification would be that the enrichment should flow to the author, not the copier.
This may appear like a circular argument, if one charges that I have merely argued from the assumed existence of a right to the enforcement of that right. This is true to some extent. But it is also true that the prevention of such unjust enrichment is a perfectly valid reason to establish and enforce these rights; to do otherwise would be to legally endorse the concept of “unjust” enrichment.
I have said elsewhere that this concept of unjust enrichment in the legal context is related to the concept of “external markets” in the economic context, and “unilateral transfer” in the ethical context. If property rights in the non-IP realm mean that one’s output equals his income, then any result that breaks this relationship is creating an external market, i.e. the output no longer accrues as income to the producer. Mises deals with this subject in Human Action.
“According to IP reasoning, that pattern is somehow severable from the physical article itself”
This is another aspect of IP law that is weird, but it does make sense if you examine it, I think.
If the protected work is intangible, then how are you going to know how to enforce its transfer? Well, we required that it be fixed. Yes, but how are you going to know if what I’m copying is ACTUALLY your work?
I think it is very elegant to solve this problem through the application of the concept of a “unique pattern”. Simply by looking at the patterns of words in a book, you can easily compare the patterns of one to the other, and arrive at some conclusions about “similarity”. This is exactly how infringement claims for copying are tested. You can show direct infringement through an exact copy of the pattern, based on impossible probabilities that these two patterns could emerge “simultaneously”, or indirect infringement through “substantial similarity” and “access”.
One could argue that the attributes of the property in copyright protected works are defined in such a way as to produce a just result in the market, because the alternative results is “unjust enrichment”. Therefore the extent of the rights thus established, if they are to be limited at all, must have limits that are well defined. No need to go into that in any detail. It should suffice to say that this detail is available in the statutes and case law.
“It purports to govern ALL articles (wherever they may be) in which the pattern of elements is deemed to be sufficiently similar to the first one.”
Yes, this is the nature of property rights, not just IP rights. If owning my property means I have the right to retaliate against your baseball bat hitting my car, then it implies that I have a right to such protection from ALL bats, regardless of who owns them, how they own them, or where they come from. Negative rights are universal, not because they arise in some universal way, but because their effect is universal. It extends to infinity.
“all books about teenage wizards who go to boarding school, with dead parents, lighting-scars on their foreheads and a nemesis whose name begins with V.”
Whether this is actually true would depend on substantial similarity for copying, and the concept of “adaption” for derivative works. Determining whether something is “adaptive” or “transformative” is the essence of case law dealing with this issue. We recently discussed the J.D. Salinger case against Coulter for publishing 60 Years After. It is a good case to review the methodology used to make these distinctions. One could argue they are arbitrary, but they are quite rational. To argue otherwise is not to give a fair reading to the law or the case.
“If that is not the protection of an idea, I do not know what is.”
I am hoping that reading the above sentence after my comments will give you reason to re-examine this assertion in a new light.
Merry Christmas.
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>>>What copyright protects is an “original work of authorship”.
When you begin with this premise, then I suppose it would be possible to construct an entire body of law based on internally-consistent reasoning, without ever having to deal with the fact that it’s all based on a foundation that is entirely fanciful. It’s the “castle in the clouds” situation. The castle may be sound, but it’s floating on nothing.
When copyright law purports to protect the “work,” it is already venturing into fantasy-land. It’s not really protecting the “work.” It is purporting to control other people’s use of their real, physical stuff on the basis of pattern-similarity. It is men with guns seizing real, physical things, on that justification.
Let’s get down to brass tacks — nothing intangible exists. To exist means to be real, physical, empirically-testable, and to have measurable effects on other real, physical, tangible things.
This is a fundamental axiom of rationality. Once you leave terra firma, you can go anywhere. Everything else only “exists” inside the imaginations of men. And even those imaginings are real, in the sense they are neurological processes (albeit highly complex to the point of being virtually incalculably so.) But no abstraction ever invented by the mind of a man is any more real than any other. An “intangible work of authorship” (separate and distinct from the actual, physical thing created) is no more real than leprechauns and unicorns.
So, this is a fundamental distinction that must be made before any rational discussion can even take place — there is that which exists, and that which is imaginary, and ne’er the twain shall meet.
Debating abstractions may appear to be perfectly rational, and indeed 99% of what passes for modern law is just that. Theology, too, is an extraordinarily elaborate exercise in applying the faculties of human reason to the most indefensibly preposterous, non-rational premises. (Theology was what passed for the exclusive form of scholarship for well over 1000 years of European history.)
It is possible to rationally debate imaginary things, once you overlook the initial imaginary part. One can endlessly debate whether Spider-man can beat up Batman. Whether a light saber can cut through Superman. Which version of Blade Runner is the right one. What part of the Star Trek Universe is “canon” and what is not. Whether a 17th-level paladin can beat a red dragon single-handed. The arguments themselves may be perfectly rational, orderly and sound, but the premises are 100% imaginary.
There is reality, and there is story-time. They are not the same. Story-time exists only in the minds of men. It is infinitely malleable, and exists largely in the form of imagery and language. Reality is a stubborn bitch, and doesn’t give a fig what you say about it.
I know what you are going to say — what about other intangible property rights, like promissory notes and liens and corporate shares. Those things are, in a sense, intangible, because they are not considered to “exist” in the certificates and paper that reflect them. They are abstractions, yes. But they are real when they get down to the person against whom they are to be applied! That’s where they are real. That’s where real-world force and coercion is going to happen.
But what is the justification for using force on the basis of those intangibles, while using force to protect IP-intangibles is not? Let’s look at what is really going on when we enforce a promissory note. One man can say to another man, “I will give you this thing, but you have to promise to give it back later.” The other guy says, “I promise.”
What is the gist of that agreement? It is this: “If you don’t give it back, I have the special right to take forceful action that I would not otherwise have, namely the right to invade your personal space, things and even your body to get the thing back, or if it doesn’t exist at that time, something of equal value.”
Normally, taking that action would be aggression — called “stealing” or “assault and battery.” But by AGREEING to allow his person and possessions to be invaded, in advance, the promissor declares that the invasive action that would normally be wrongful is made permissible.
That right of action against him can then be transferred to someone other than the original promissee, divided up, etc.
It’s like this: You do not have the right to punch me in the nose. But I can grant you the special permission to punch me in the nose one time, because I own my nose and can give you the right to hit it if I want to. I can even grant you the special permission to punch me in the nose one time, and also agree that you can give this permission to someone else, so long as that the punch only happens once — i.e., when you give the right away, you no longer have it. There is only one Punching Right out there in the world at any one time, unless I decide to give away more of them.
That’s where “intangible rights” came from — the right to do something to me that no one would ordinarily be allowed to do. They are, at their core, very much tangible. They are force against the person who agreed to allow himself to be forced.
That right of action, voluntarily granted by the one against whom it is ultimately to be enforced, is the core of every legitimate form of “intangible” property right ever dreamed up. It is not the basis of IP.
IP doesn’t pretend that the one against whom it is to be enforced ever made such an agreement. It purports to be a form of rightful force, with or without his prior agreement.
>>>In my understanding, copyright law says that this intangible work exists
Copyright law says that, but no, it does not. It is an abstraction that some people agree to believe in. It is not real. It never was. It only exists in your mind.
I realize that it seems real to you. And, when you really, truly believe, the real world sorta-kinda makes sense, some of the time. The people who believe in ghosts and extra-terrestrials see signs in the real world that sorta-kinda make sense in light of their imaginary abstractions. But they are not real. They do not exist.
>>>I think it is very elegant to solve this problem through the application of the concept of a “unique pattern”.
That’s not a “solution” to a problem. That’s the whole purpose and function of inventing and relying on the abstraction of “intangible work of authorship” in the first place — to justify the seizure and destruction of any thing arranged in a pattern that someone claims is too similar to the pattern of the thing he made.
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Phinn,
I really enjoy discussing these things with you. You are so reasonable. Thank you.
“it’s floating on nothing.”
Yes, this is the question; is it?
“It is men with guns seizing real, physical things, on that justification.”
Now just hold on, cowboy! Let’s stick with this: if I have a right to something, I have a right to retaliate against a violation of that right. Using a gun is, perhaps a form of retaliation, but I think it is more reasonable and realistic to start with the a less inflammatory example, say a complaint, than to say if you violate my right I can bring in guys with guns to shoot you. That is hyperbole.
However, if you mean that the enforcement of a right is absolute, then I agree with that. If this was not the case, it would not be a right.
“nothing intangible exists.”
This is a metaphysical premise. There are many, existentialists included, who would disagree with you. For example, I may not know how to explain to you why the world still exists when I close my eyes, ears, nose, taste and touch, but can we agree it does? But does it, really? That’s heavy!
“To exist means to be real, physical, empirically-testable, and to have measurable effects on other real, physical, tangible things.”
In this world, do emotions exist? Do you experience them? Is it necessary for anyone else to experience them for them to exist? What is necessary for others to perceive YOUR emotions? Your behavior. Your intangible emotions must be EXPRESSED through your conduct before others can perceive them. Are you saying that only behavior exists?
So, it seems to me that intangible things do exist, and that we can verify that through our own human experience. But we cannot communicate them unless we express them. Why? It is because human perception works on principles of reaction to physical stimuli; (Even psychic communication, if it exists, would depend on me “sending something” which you can perceive).
When I speak to you, sound waves, tangible phenomena, travel to your ear. There is a difference between hearing music and hearing speech. What is that difference? They are both sound waves.
Speech has information encoded in it. By convention, we learn to use symbols so that intangible thoughts in my head can be communicated to you, in your head. What is actually being communicated? If it was nothing, then I could agree that ideas don’t exist. Without ideas, there can be no informational content to the sound waves I produce. There clearly is such content, and so therefore we can say that ideas must exist.
The same is true of letters. They are a conventional system of encoding ideas into writing. They are not the informational content of that writing; they are the symbols which by convention carry meaning that can be communicated through a sensory experience.
“An “intangible work of authorship” (separate and distinct from the actual, physical thing created) is no more real than leprechauns and unicorns.”
How can you be so sure of this? (See Casper below) Anyway, the distinction I am making is one between “ideas” and “works of authorship”. You seem to be arguing that there is no distinction. I am arguing there is. You support your position by saying that if “works” are comprised of “ideas”, and ideas don’t exist, then works can’t exist either.
I am saying that ideas do exist, and can be communicated by conventional symbology, and other ways as well. Ideas, however are some kind of rudimentary element from which the rational human mind can construct complex, useful works. The idea “hammer” is not the same as a set of detailed plans describing how to build a house using a hammer.
A “work” is a highly complex set of thought patterns which are connected together and related to one another and arranged in ways which are truly an amazing feat of human cognition. It is amazing, when thinking of it in this way, that a book ever gets written. It is the kind of mind-blowing realization like realizing that our world and bodies, which are composed of carbon atoms and other heavy elements, are ACTUALLY AND LITERALLY the products of supernovas originating in ancient stars which no longer exist. Sorry to get this “out there” but you raised the metaphysical, existential issue, and I just ran with it.
How do we resolve this difference in our respective positions? Do ideas exist or not?
“…there is that which exists, and that which is imaginary, and ne’er the twain shall meet.”
You are relating “imaginary” to “existence”. I am saying “imagination” is a process of human cognition. It is the ability to create complexes and patterns of thought that are “original” to the person imagining them. There is an important distinction. Certainly you don’t deny that imagination exists as part of the human cognitive experience?
“Theology, too, is an extraordinarily elaborate exercise in applying the faculties of human reason to the most indefensibly preposterous, non-rational premises.”
Just because you assert this does not make it so. While I agree that the subject of theology is elaborate, it does not follow that it is derived from “the most indefensibly preposterous, non-rational premises”. Over the past 2,000 years, as an example, science and theology have coexisted and evolved. Some would argue that the developments of science have not destroyed theology, but refined it, much as Einstein’s relativity refines Newtonian physics. Within a certain frame of reference, Newtonian laws work fine. If you change the frame of reference, something more is required. That’s all. But this is not the real issue we are discussing (although interesting, I admit).
“There is reality, and there is story-time.”
Are you saying that my story is not part of reality, and that if I tell you my story, it does not become part of your reality? Not only does it become part of your reality within the frame of reference of ideas, but it also may become part of your “real” world if it affects your conduct. If you did things one way before my story, and differently after the story, what has changed? What is it that caused you to modify your pattern of action?
If you reacted to a physical act which I initiated, why do you want to make an existential distinction between that and an intellectual act? They both make their effects perceptible through the act of communication. Why do you deny their similarity, while acknowledging their differences?
“But they are real when they get down to the person against whom they are to be applied!”
OK I agree they are real. But why? What makes them real? The fact that they are real MEANS that they have a real result in the tangible world. They are subject to material rules of cause and effect. If they are real in the tangible world, they can be perceived, defined, and enforced in the real tangible world. That is the very definition of “fixation”. The making of something that was previously intangible, tangible. Behavior makes intangible emotions tangible. They are “fixed” in the behavior, and thereby communicable.
It doesn’t really matter whether this applies to a “promise” or to an “expression” of any other kind. By nature and operation, they are similar.
“But what is the justification for using force on the basis of those intangibles”
I think you have answered your own question. If we “fix” a promise onto a paper that satisfies the requirements of a contract, then that promise, which is completely intangible prior to such fixation, become tangible. This intangible promise, by virtue of mutual consent, thus becomes an enforceable right by virtue of the fact that it was “fixed” in a contract, which otherwise would just be a blank piece of paper. The paper was tangible before, and therefore is separable from the intangible “promise”. This mutual consent to enforceability is the justification for force being applied to its enforcement.
Buy this logic then, any promise can be likewise enforceable (within legal limits, as you know). Some IP opponents acknowledge that author and buyer can contract to transfer only the right to possession and not the right to copy. This of course raises the problem of enforcement upon third parties who have no privity with the contracting parties. This is a problem of the universality of rights, which I have argued can arise through a theory of contracts, but let’s leave that aside for now.
“What is the gist of that agreement?”
I agree with everything that follows this sentence. This is exactly how a contract operates, and how the rights established by this contract are enforceable.
We can leave aside Rothbard’s “inalienability of will” argument for now. I disagree with his position about this on economic grounds, but that’s another story.
“It is not the basis of IP.”
Right up to here, that is. You seem to make a distinction that somehow the intangible source of IP is somehow different than everything else you just said. It appears to me that one who makes such an assertion has the burden to show WHY such an exception should be made.
“IP doesn’t pretend that the one against whom it is to be enforced ever made such an agreement.”
You started off by arguing that ideas don’t exist. Then you show how a promise (which is equally intangible and equally an idea) can be enforced by contract. Now you are arguing that the rights that CAN arise by contract, CANNOT arise if the intangible subject is IP.
You have switched tracks, from arguing against the existence of ideas, to the issue of enforcement against non-privy third parties.
In order for us to proceed with this argument, we must assume that rights that arise by contract are real, and enforceable. If we can, then we can discuss the relationship between contractual rights established between parties in privity, and how those rights affect the rights for third parties. This is essentially an examination of the relationship between contracts and laws. Let’s defer that for now.
“Copyright law says that, but no, it [intangible works] does not [exist].”
There ought to be a way to settle this point. My argument is to say that copyright law grants rights in the intangible works, but only if that work is fixed in a tangible medium that is capable of existing without the intangible work.
I would say that if the law is saying it is granting a right in something, it is implying that it must exist. Furthermore, the law avoids the existential argument we just had by saying that “therefore” property rights follow the tangible fixation, but the rights arise from the intangible component. This has the handy effect of making the treatment of the tangible good upon which the intangible work is fixed, capable of being treated with the body of laws that already exist, such as torts, contracts and property. IP law only really addresses the boundaries of those rights, and their enforceability.
If you deny that there is anything “there” to protect, then you simply disagree with a fundamental premise that ideas in any form can be “there” because they don’t exist. If you believe they are “there” because they do exist, then it is possible to make a distinction between an “idea” and an “original work of authorship”, both of which are fundamentally ideas, yet there is a legal distinction between one and the other.
In addition, if there is such a distinction, then there can also be a distinction made between “it” and everything else. The law accomplishes this through “originality” and “similarity” tests, which depend upon an analysis of patterns.
“I realize that it [ideas] seems real to you…They do not exist”
I think you mean by this that ideas are like ghosts, because ghosts have never been made tangible by fixing them or measuring them or recording them to make them perceptible, i.e. if they exist at all, they are and remain intangible. Therefore ghosts don’t exist, nor do unicorns, God, etc. But the IDEA of a ghost HAS been made tangible. Didn’t you ever watch cartoons? Remember Casper the Ghost?
So actual “ghosts” and “ideas of ghosts” are different in some way. Why do you insist in denying that difference?
“That’s not a “solution” to a problem.”
I disagree. It is a way to solve the problems of distinguishing “uniqueness” “originality” and “similarity”.
“…anything arranged in a pattern that someone claims is too similar…”
Finally, you arrive at the false statement about copyright law. It does not establish rights in “anything”. It makes important distinctions. It is not reasonable to argue against something by asserting it does something which it specifically attempts to avoid.
Copyright law establishes rights in an intangible work, but only if that work meets other criteria, while at the same time excluding ideas. Either this is a contradiction of monumental proportions, or there is a set of distinctions that must be made in order to render this sentence meaningful. I support the latter, and reject the former.
That was very interesting. Thank you.
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