Patent Attorney Admission

by Stephan Kinsella on December 22, 2006

From the Mises blog. Archived comments below.

Patent Attorney Admission

12/22/2006 Stephan Kinsella

I pointed out in There’s No Such Thing as a Free Patent that “The conventional defense of the patent system is that it is essential in order to stimulate creativity.” And here, on the widely-read Patently-O Patent Law blog, we have patent attorney Dennis Crouch casually admitting:

Patents are intended to lure potential inventors into the business of innovation. The truth is, however, that very little is known about how patents really drive innovation.

Sigh. See also:

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Archived comments (259; 2):

{ 259 comments… read them below or add one }

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Scott D January 4, 2007 at 12:13 pm

Nice summation, Cosmin. You have my endorsement.

Fred Mann January 4, 2007 at 4:44 pm

Sorry about the slight delay, Sasha.
Anyway, you write:

“I told you, opening a book under those circumstances is not a tort and that’s what matters. ”

If you reread my post, you will see I never even mentioned tort.
I am just trying to establish if you think opening a book is GROUNDS for a tort. Remember a tort has two components — damage AND wrongdoing — i.e violation of some statute, law, duty, responsiblity, etc..
Anyway, it appears that the answer is “yes”.
Now on to idea ownership …
Ideas are NEVER ownable. Period. Ideas only exist in the mind. We can attempt to convey the ideas through spoken words/written symbols or create physical objects which resemble the things in our mind’s eye, but these physical things are not the ideas themselves. They are not ideas which have been “turned into physical objects”, as you say. Any sentence which begins “Ideas can be owned when …” (or some variation) is incorrect.
Your confusion here may be leading you to believe that book ownership means something more than the ownership of paper and ink. But it does not. But if you believe it does, then you might be justified in saying that I was guilty of some wrongdoing by opening and/or reading the book. But I am not.
To illustrate, imagine that the book was just comprised of bound pieces of blank paper (for writing or whatever). I could not conceivably be accused of violating any duty/law/civic responsibility/etc. by opening the book left on MY property (an “unauthorized use” of my property, no less — ha ha.). But, according to you, as soon as we put some writing on these pages, things change. We now have, as a society, a duty to not open a lost or mislaid book. But why? How can you justify this without referring to some general IP standard which applies to the society as a whole?
Since you are trying to create some special new duty/law/standard as grounds for a tort, you would need to provide justification for that. Remember, MY standard — return the item to the owner in the condition it was when it was found — works for EVERYTHING … except your scheme. So to put it another way, you would have to show why my standard is not reasonable/consistent with private property rights.

Sasha Radeta January 4, 2007 at 5:34 pm

Cosmin had a change of heart. Cool with me, but bear in mind the following:

1. “Sale” does not have to imply change of ownership title over goods. You forget that services are also sold – and they are not alienable. The copyright contract can state that the owner sells his services, by allowing you to use your book in limited fashion.
2. YOU GOT IT! Copyright ABSOLUTELY has no place in a transaction where ownership is transferred (sale). That’s what I was telling you all along. These kind of (expensive) transactions are usually reserved for publishers, not regular users.
3. YOU GOT IT FINALLY! Copyright is perfectly valid in any rental transaction (sale : ).
4. Copyright proponents are free to advertise their services – and if their contract explains exactly what’s been advertised, there is no fraud.
5. Market is free to abandon copyright right now, but, in most cases, it chooses not to do it. I explained the reasons already.

—-

Fred,

I insist on talking about tort – because that’s all it matters when it comes to lawsuits that unauthorized copies (fruit of the trespass). Opening the book to find an owner, or entering someone’s property to save life… that’s not what we talk about here.

I don’t care about metaphysics of “idea ownership.” It is irrelevant. Idea is content of cognition that can be stored on something that we own (either our brain or our hardware). When written down, this content (idea) becomes something ownable.

ANYWAY,

I’m not introducing any new standards of tort. You’re just not good with that concept. Whether some book is blank or full – mislaid property is someone else’s and unauthorized use is an unauthorized use. Of course that things change when book has some content – the “finder” can use his unauthorized use to produce copies and cause tort to the rightful owner (in loss of earnings). That’s how it is. Give it up.

Sione Vatu January 5, 2007 at 12:21 pm

Sasha

You have now proved that you are unable to answer direct questions put to you (for example, you can’t explain what you mean by “legally owned”). That’s a shame as it means that your ideas and system of thought are baseless- floating abstractions. A system built on nothing (such as yours) is all very well but it can’t be considered valid in dealing with reality. It may seem to you a nice proposition or suposition but in the end it isn’t anything more than that and can’t be taken as truth (that is, as correct), hence it is invalid, worthless. In this regard it is you, Sasha the slav, who share aspects of thinking with communist intellectuals.

What you have is a tower of ideas based on your own assertion. It all looks very twee and nooice. And in isolation or as an abstract theory it may seem to be very tidy and clever but attempts to practice such nonsense inevitably and consistently result in catastophe, ruin and disaster. Tragic. Bad in practice, bad in theory. Your nonsense would be terrible when reduced to practice. What a mess. As bad as the present patent system, maybe worse.

You do have to provide the fundational derivations for YOUR ideas and you do have to answer directly the questions put to you. That’s because it is you who assert the positive. In the absence of your ability to answer, your ideas can’t be shown to be valid. You are the one making the claims and assertions remember.

Now go back, re-read the questions and make an honest attempt to answer. How hard can it be?

Sione

PS you could always concede that you can’t do the derivation. In that case go as far as you can and show where the problem lies. That way that problem could be considered.

greg January 5, 2007 at 5:54 pm

SR> I am not treating them like criminals… You obviously don’t even know what tort is.

Actually, you finally said something right. You aren’t treating them like criminals, you are treating them like your victims. The person intentionally doing harm is you.

SR> …ideas can be turned into physical object or a part of it. Don’t busy yourself with “non-physical ideas,…”

Ideas are always non-physical, that is exactly the characteristic that makes them infinitely replicable. Ideas are non-scarce in the manner that they don’t have the rivalry problem. That’s why people who have ideas (which they believe are unique) want the state to impose scarcity upon actual physical goods via copyright/patent. The very act of people seeking to have the state impose copyrights and patents upon actual physical goods should tell even the most clouded intelligence that ideas are not rivalrous scarce and thus they are not property. The “infinitely replicable” characteristic is exactly why ideas are nothing like property. The fact that people act on an idea and thus manifest an idea in a physical object is irrelevent to the nature of ideas themselves.

SR> And sorry about lapses like than=then… I write too fast.

That is the least of your problems.

FM> Any sentence which begins “Ideas can be owned when …” (or some variation) is incorrect.

Exactly. It immediately self-contradicts; Not that such a rudimentary logical problem will pose any barrier to the stubborn.

SR> When written down, this content (idea) becomes something ownable.

You need to establish ideas as property. It is rudimentary to your task. You have not done so. And according to you, why not make all speech copyrightable? After all, speech is physical: compressions and rarefactions of the air. Just because spoken speech doesn’t have the same lifetime as a piece of paper, so what (speech is undeniably physical)? Where does the arbitrary lifetime rule kick in?

Your idea about ideas is ludicrous. But I’ll grant you “ownership” of it. I sure want nothing to do with it.

Sasha Radeta January 9, 2007 at 12:22 am

Sione,

Don’t be so retarded. Everyone knows that “legally owned” means. It’s a shame you don’t – so you have to blab about nothing…. I mean – what did you try to say with all that gibberish about ideas? You say: “attempts to practice such nonsense inevitably and consistently result in catastophe, ruin and disaster.”

You’re probably high on drugs, or just ill.

—–

Greg,

Learn difference between a crime and a tort. If you cause a car-accident, it is not a crime, but you will still have to pay for the results of your actions.

As far as ideas go, they can be witten down or turn into physical and ownable. Of course that you can own a piece of paper or some othe hardware that is scarce when it contains some valuable idea (whose demand exceeds supply if price was set to zero). On the other hand, air is not ownable (it’s not scarce). Your economic ignorance prevents you from understanding why common speech is not copyrightable.

Sasha Radeta January 9, 2007 at 12:36 am

When I say that something is “owned” – I refer to the definition of ownership that was provided by Ludwig von Mises (the standard definition). From that point – we can conclude that the owner has the right to allow and restrict certain uses of his property. That’s where the copyright (the restriction of reproduction and other commercial uses) comes from. And you can’t do anything about it Sione, except talk some gibberish abour “premise, fundational derivations, isolation or as an abstract theory”

: )

Sasha Radeta January 9, 2007 at 12:37 am

When I say that something is “owned” – I refer to the definition of ownership that was provided by Ludwig von Mises (the standard definition). From that point – we can conclude that the owner has the right to allow and restrict certain uses of his property. That’s where the copyright (the restriction of reproduction and other commercial uses) comes from. And you can’t do anything about it Sione, except talk some gibberish about “premise, fundational derivations, isolation or as an abstract theory”

: )

Sione Vatu January 9, 2007 at 8:48 pm

Sasha

Drugs or illness! What a choice. You are getting to be quite the hysteric. You must be speaking from personal experience! Still, what you have provided is sufficient to come to some conclusions about your approach to the argument.

You write: “When I say that something is “owned” – I refer to the definition of ownership that was provided by Ludwig von Mises (the standard definition).”

& yet you wrote: “Property is that which is legally owned by an individual or entity.”

Then you proceeded to assert your copyright on the basis of “legal ownership.” [your post of December 28]

You also claimed: “Everyone knows that (sic) “legally owned” means.”

Well, von Mises certainly did.

Prof Mises warns (in Human Action) not to confuse the source of or reason for ownership of property with a legal definition. That is, he made a clear distinction between the concept “legally owned” (ownership determined and subject to some government’s legislation) and real or actual ownership of property. He teaches that the law is not the source of property or its ownership. He goes further and demonstrates that the notion of “legal ownership” is used for socialist ends. It is a socialist construct designed to collectivise private property. [Sasha, you dirty pinko commie you!]

Were you aware of Mises position it is likely you would not have relied on the concept of “legal ownership” in deriving your copyright. You certainly wouldn’t have written about “legal ownership” in the way you did (hence resulting in my pulling you up and asking you questions about it). Therefore it is reasonable to suspect you do not know how Mises treated the definition and derivation of property or how he established ownership thereof. Further, you appear to be using socialist premise and argument to establish your copyright idea. Grave errors, indeed to be avoided.

It is vitally important to understand the first principle derivations of ideas such as copyright. You should by now have started to realise why. In this case it is likely you have not studied the source of the idea you promoted- merely accepted something and elaborated on it, building a tower of rationalisations founded on…. unexamined premise. In other words, your copyright argument was invalid at source (and you never checked).

I sense your frustration at being asked to go back to step one and work on derivation and validation. How tiresome it all must seem, at least until the terrible realisation dawns that it just may be that you can’t successfully undertake the task. Your intellectual honesty and personal integrity is measured on what you do as the result of that realisation.

To evaluate your idea and its legitimacy it is important to examine all those details that you were so determined to evade addressing. It is important to strip away the compartmentalisation, leave the isolated concretes aside for the moment and work directly with the core principles & premise supporting or refuting the proposal (the idea or system you are interested in). Deal with the fundamentals, they are extremely important.

And so where does that leave matters now? Well, for a start it is to be recommended you read some of von Mises’ work and think about it really, really carefully. Secondly, the take home message is that you have not been able to demonstrate a watertight chain of logic from reality to your copyright assertion. You can’t derive it properly as the chain is broken at source (you accepted faulty premise). I suspect there are several other failures of logic inherent in the promotion of your copyright idea but we have not yet examined them in any detail as yet. For example, it is necessary to address and identify what attributes must be exhibited for an entity to be properly regarded as property. And so on.

Lastly. There is that old saying, “Bad in practice. Bad in theory.” You should consider the practical implications and applications of your theory. A number of serious problems present themselves to undermine it.

Sione

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Comments

Stephan, you are way to kind to patents, I want to add some things:

1. If a researcher looses a monopoly on one patent, but in turn gains access to 10 million other patents – then that is a net gain for invention and for business, not a net loss. The facts bear that out. For example, how most the new drug innovation was happening in India where they don’t have patents on drugs, or the less proprietary x86 architecture that took the market by storm in spite of it’s design flaws.
2. Patents do not change the demand for invention and R&D;, they only distort the market and cause it to center around invention controls instead of invention related services. Well, large companies, lawyers, and government are good at controlling things. Inventors are good at inventing things, so patents do really not help inventors or small lean innovators.

1. To control inventions requires physical coercion and violence, and patents are very violent. Like how they arguably held back safety devices in cars for 20 years while millions died needlessly, and like how attempts of patent enforcement in Africa have likely led to over a million unneeded AIDS related deaths. Also, DDT was banned within months of its patent running out, freon too, to make room for bigger markets. But at least the freon one can’t be attributed to 50 million malaria deaths.

1. In the future, technology is likely to bring production back into the home thru 3d printers and nanotechnology. IMHO, patents will require more violence and more government micro-regulation than ever in order to be secured.

1. A side effect of the patent system is that researchers who share research and innovation between companies are punished. It creates a strong disincentive against collaboration. It forces innovators to spend orders of magnitude more on R&D; and causes them and their research to be micromanaged. So patents drive up the cost of R&D; by orders of magnitude, drive down quality, and then now they say “well, we need patent monopolies to recover all these costs”.

1. People tend to think that having all these incompatible parts and all these incompatible interfaces on every single car, cell phone, and consumer product – is just a normal part of a free market economy. I speculate that it is not, and that patents encourage these distortions in addition to all the waste and unneeded obsolescence that goes with it.

1. People tend to think that having expensive pharmaceuticals with all sorts of strange chemical side effects is just a normal part of a free market economy. In addition they think that the shunning natural cures, herbs, and vitamins is a normal function of modern medicine and science. I speculate that it also is not, but another distortion caused by patents.

In sum, patents don’t help inventors, but distort markets to work against them and even punish and isolate them. They are violent, genocidal, coercive, unproductive, inefficient, and drive down profit, quality, and compatibility across markets everywhere. The future for patents does not look promising, but rather to be one of millions of US elderly suffering from high costs and strange chemichal side effects on their medication, and one of a military police state required to enforce them as things like 3d printing and nanotechnology force the commoditization of invention.

Posted by: David C at December 22, 2006 1:03 PM

Tangentially, it is hysterical that Crouch draws the conclusion that fewer female than male patent filers equates to “barriers” preventing females from filing patents.

Pellinore

Posted by: Pellinore at December 22, 2006 2:37 PM

After sitting through many of these IP related threads, I really need to ask two questions.

1. What is the best book in favor of IP, written from a Praxeological viewpoint?

2. What is the best book opposed to IP, written from a Praxeological viewpoint?

I am still reading “Human Action”, so may be a little while before I get to them, but I think I need to approach this subject on a more organized basis, rather than the back and forth of blog posts.

Posted by: Mark Brabson at December 22, 2006 6:01 PM

I don’t know, why do we have to refer back to Mises for an answer, like it was found in some austrian-libertarian ministry live on tv? You must have at least some thoughts on it having read “many” of these IP threads. It should be organized the way it should not be organized. It can’t be in between “either and or”. There’s no third way in between possibility. So are you split down the middle of in favor of IP and opposed to IP? Any aspects treat you as bs? Why? Any other aspects treat you as true? Why? It’s the only way to really know. #1, It *must* be true for all of us. #2, the simpler the reason, the easier to explain to those who don’t yet know. Can’t we all just figure it out? It’s true or false. You’re gonna leave it blank without taking a guess? The best book opposed is still the best book opposed. The best book in favor is still the best book in favor. Which is better? 😛

Posted by: rtr at December 23, 2006 12:23 AM

A valid critique of patents came from Rothbard. Everything else I see here is too weak.

Rothbard stated in Man, Economy, and State:

“In the purely free market, the inventor could mark his machine copyright, and then anyone who buys the machine buys it on the condition that he will not reproduce and sell such a machine for profit. Any violation of this contract would consti¬tute implicit theft and be prosecuted accordingly on the free market.

The patent is incompatible with the free market precisely to the extent that it goes beyond the copyright. The man who has not bought a machine and who arrives at the same invention independently, will, on the free market, be perfectly able to use and sell his invention. Patents prevent a man from using his invention even though all the property is his and he has not stolen the invention, either explicitly or implicitly, from the first inventor. Patents, therefore, are grants of exclusive monopoly privilege by the State and are invasive of property rights on the market.

The crucial distinction between patents and copyrights, then, is not that one is mechanical and the other literary. The fact that they have been applied that way is an historical accident and does not reveal the critical difference between them. The crucial difference is that copyright is a logical attribute of property right on the free market, while patent is a monopoly invasion of that right.”

—–

If we assumed that patents were totally modeled after copyrights than all of the aforementioned objections would be baseless.

I do not claim that patents are compatible with the free-market economy, but I do claim that much of their critique is baseless and come from more “exotic” places than Mises Institute: http://www.boingboing.net/2004/09/14/copyright_reformers_.html

David C says:

1. ” If a researcher looses a monopoly on one patent, but in turn gains access to 10 million other patents – then that is a net gain for invention and for business, not a net los. ”

Could we say that if a person looses his private property rights on one farm, but in turn gains access to one hundred other farms in a commune – that this is a net gain for his business? Is it a “net gain”, when we consider that he is not the only person who gets free access to these patents and farms – and that there are now millions of free riders who just want to pick up someone’s research, just like a free rider on a communist collective farm who waits for someone else to feed him?

2. ” Patents do not change the demand for invention and R&D;, they only distort the market and cause it to center around invention controls instead of invention related services. ”

Could we say that private property rights distort the society and cause it center around property controls, instead of more productive use of resources? Would there be any point to focusing on “invention related services” if one firm has to spend money on both R&D; and services, while other firms want to pick up their research for free and than focus all their resources on excelling in services.

3. ” To control inventions requires physical coercion and violence, and patents are very violent. Like how they arguably held back safety devices in cars for 20 years while millions died needlessly, and like how attempts of patent enforcement in Africa have likely led to over a million unneeded AIDS related deaths. ”

Couldn’t we also say that the control of private property requires force and violence? Like how capitalists arguably held back the developments of alternative fuels that could have saved our environment from global warming (LOL!)… or how private property rights led to millions of deaths from poverty in Africa, while western world shielded its wealth with force and violence.

———

Once you depart from Rothbard’s free-market critique of patents and instead start focusing on free market response to patents (force, buying and selling patents, etc.) you easily enter the communist realm, advocating the alleged benefits of sharing resources free of charge and free of profit motivation. That’s a slippery slope.

Posted by: Sasha Radeta at December 23, 2006 12:27 AM

Sasha: please stop with the worship of half-understood Rothbard quotes. You keep harping on about how you’re “consistent with Rothbard”, but it’s only true in the sense that you’re parroting Rothbard – “ipse dixit” consistency only. [In fact, I have little doubt that if Rothbard were alive today, and posting in these threads, he’d be telling you that he was wrong when he wrote what you quote above. Believe it or not, he was wrong on occasion. He correct some of Mises’ errors, and others – like Kinsella – have corrected some of Rothbard’s. Not to knock Rothbard at all, but what he thought is irrelevant anyway: you have to judge the correctness of ideas on their own merits, not on the basis of Rothbard’s opinion about them (and especially not on an opinion 45 years out of date!)]

Could we say that if a person looses his private property rights on one farm, but in turn gains access to one hundred other farms in a commune – that this is a net gain for his business?

No, but only because farms are rivalrous: since others also have the use of the farms, their uses with conflict with his. Unlike the case with “patents”.

Posted by: Peter at December 23, 2006 1:17 AM

Sasha Said,

“Could we say that if a person looses his private property rights on one farm, but in turn gains access to one hundred other farms …. ”

But he doesn’t loose any private property rights if everyone just has their own copy of his farm, does he?

“Could we say that private property rights distort the society and cause it center around property controls, instead of more productive use of resources?”

YES! If the government controls how people used their own *copies* of property, then that is a true distortion of liberty and free markets.

“… or how private property rights led to millions of deaths from poverty in Africa, while western world shielded its wealth with force and violence…”

I’m glad you mentioned that, do you own slaves? Don’t you believe in property rights? Don’t you believe in incentive? Don’t you believe in the great wealth and prosperity of American commerce. They paid for those slaves you commie!! 🙂

Moral: This isn’t rocket science. Physical property and inventions have a totally different nature and should be treated accordingly. Property rights derive from the nature of property, not just fantasy. Just because someone calls something a property right doesn’t mean that it is.

Posted by: David C at December 23, 2006 1:25 AM

One more thing, fascist or communist societies claim title to all liberties. The question about private individuals having a “right” to control other little pieces of peoples liberty is never even a question.

Now we have patents which are the “right” of private individuals to control how other people use invention – so, of course they will be against patents. They are against them because it gives an individual some autonomy outside of total government. We are against them because it gives individuals “rights” that are not theirs.

Posted by: David C at December 23, 2006 1:53 AM

Peter,

Don’t be ridiculous. What Rothbard said about patents and copyrights can be easily defended from a self-ownership standpoint.

And please, stop those shameless and indecent assumptions about what Rothbard would say if he was alive (and comparing someone like Kinsella with Mises and Rothbard). That’s not really funny, assuming that you wanted to make a joke.

I don’t always agree with Rothbard. I criticized his solution to Coase’s railroad dilemma, as well as his anti-ad-coelum arguments. But Rothbard is absolutely correct on copyrights – and Stephan Kinsella was unable to even create a coherent idea against it.

—-

David C,

If you violate someone’s exclusive (commercial) use of a product, he does loose his property right. BUT THAT WAS NOT MY POINT – and I think you know it.

My point was this:

1. You tried to make a utilitarian argument that even if a person looses exclusive rights to one patent – by gaining freedom of access to millions of other patents he will actually benefit.

By the same token, can we say that by loosing exclusive right to one farm – collectivist farmer still benefits by being able to access hundreds of them? That was a simple question.

2. When I asked: “Could we say that private property rights distort the society and cause it center around property controls, instead of more productive use of resources?”

To my shock, you answered: “YES!”

In other words, you see private property rights as something harmful, just because people spend valuable resources to protect it and control it, instead of putting it into use for betterment of a collective. That was also your argument against patents. However, I do appreciate your honesty – comrade.

3. You mentioned how forceful protection of patents caused millions of AIDS deaths in Africa (and not the virus, self-inflicted poverty, and irresponsible actions of Africans). If that was the “argument” against patents – than same “argument” applies to private property rights. Private property rights allowed western people to forcefully protect their huge wealth, while millions are dying of starvation… I see what you were getting at, you commie.

My point was that “deaths in Africa” cannot be used as an argument here. The fact that some people forcefully protect something that can save some “dying Africans” is not an argument for the abolition of that “forceful protection”. If it was – we would start advocating socialism (removal of forceful protection of western wealth), instead of advocating ways in which Africans can start developing their own means for better life.

—

Your last comment completely missed the target. In a perfectly free market, an individual can control how other people use inventions – if he obtained the property right to those inventions in a free market exchange. The way you can obtain that right is by selling only the personal use of your product – in exchange for the asked price plus damages for breach of contract (in the amount of any unauthorized copies of that product).

Posted by: Sasha Radeta at December 23, 2006 3:54 AM

Sasha,

My point is that a shared patent is nothing like a collectivist property, why? because me using an idea does not exclude you from using it. Property isn’t about creating exclusions for the sake of exclusions, but about the fact that I can not use your item without controlling how you use it too.
Also, I said “YES” to government controlling copies of property is a market distortion, not YES to property rights are a distortion of markets, and I think you know that too.
As far as Africa goes, I pointed out that patents create consequences that are measurably harmful which supports my theory. They aren’t forcefully removing protection of western wealth unless them making AIDS drugs coerces us not to have them.

“Your last comment completely missed the target. In a perfectly free market, an individual can control how other people use inventions – if he obtained the property right to those inventions in a free market exchange. The way you can obtain that right is by selling only the personal use of your product – in exchange for the asked price plus damages for breach of contract (in the amount of any unauthorized copies of that product).”

How is that any different from saying: In a perfectly free market, an individual can control how other people use slaves – if he obtained the property right to those slaves in a free market exchange. The way you can obtain that right is by selling only the personal use of your slave – in exchange for the asked price plus damages for breach of contract (in the amount of any unauthorized labor of that product).

In fact, there is no patent argument at all that you can make that does not have a prefect analogy to slavery, why? Because you are defining property by how you control people rather than by the nature of the resource.

Posted by: David C at December 23, 2006 10:51 AM

Earlier I believed that patents and copyrights are needed because otherwise there would not be enough (socially optimum amount) innovative activity since so huge sunk costs are committed if one is to invent stuff.

Now I just dont know since my views at least have changed because of so many problems inherent in government granted monopolies and privileges.

Older generation of welfare economists argued usually that from the point of view of social utility these privileges are needed.

Posted by: adi at December 23, 2006 11:29 AM

David C,

My point is that you criticized patents’ alleged economic harms – using some collectivist “arguments”.

1. If you say that an inventor economically benefits by loosing exclusive rights on one patent while gaining free access to use millions of other inventions… How is that different from claiming that a collectivist farmer is benefiting from free access to all different farms in a commune? This is a question that deals with economic theory – not ethics. My question is following: does free access to commercial use of other people’s inventions really create “net gain”, when we consider that he is not the only person who gets free access to these patents and farms – and that there are now millions of free riders who just want to pick up someone’s research, just like a free rider on a communist collective farm who waits for someone else to feed him?

Copyright protection (and valid patents that use the same principles) aren’t about creating exclusions for the sake of exclusions, but to prevent conflict over a commercial use of someone’s item.

2. Saying that private property rights are a “distortion of markets” is nonsensical. Without private property rights there would be no markets (exchanges of property titles). Plus, the fact that government established the monopoly over copyrights does not mean that markets would not produce contractual protection of commercial use of people’s property – and be much more efficient than government.

3. You cannot say that western patents created AIDS deaths in Africa – just as cannot say that western wealth created the starvation deaths there. The fact that people in the west forcefully protect something that could help those in Africa – is not an argument to just take what westerners are protecting. I hope you understand why such logic is flawed and socialist.

—-

I don’t know why you invoke a slavery argument. Everyone knows that you cannot obtain a slave in a perfectly free market – because slave contracts deny someone else’s self-ownership. Not even a slave can deny his self-ownership, since he always maintains the exclusive control over his own body – regardless of outside aggression.

But in a free market you certainly can obtain someone else’s copies of your invention. You do that by selling the personal use of your product – in exchange for some money and the amount of any unauthorized copies (damages for contractual breach, which you conditionally own).

There is no parallel to slavery here, at all. Copyright contracts are perfectly consistent with all free market contracts, because they are based on voluntary exchanges of physical property’s ownership titles.

Posted by: Sasha Radeta at December 23, 2006 11:58 AM

Sasha asks: “Could we say that if a person looses his private property rights on one farm, but in turn gains access to one hundred other farms in a commune – that this is a net gain for his business? Is it a “net gain”, when we consider that he is not the only person who gets free access to these patents and farms – and that there are now millions of free riders who just want to pick up someone’s research, just like a free rider on a communist collective farm who waits for someone else to feed him?”

This is a poor use of analogy. The patent and the farm are not the same. They are not similar. While an analogy may sometimes be a useful tool with which to illustrate a point it is important that the analogy at least shares a core principle with the topic under examination. It should be contextually relevant. In failing this test an attempted use of analogy can be said to be misleading instead of providing a clarification. Avoid the error. Avoid introducing irrelevancies.

Further the use of the term “free rider” was used without explicit referent to context. It has been employed in an emotive and catch-all fashion. Unhelpful. Again it does not clarify but instead misleads the reader. This is not the way to make a point, let alone an argument.

Moving on. I have been involved in commercialisation and investment for new technology and research for some time now. In my experience it is not really worth the time and effort to patent most innovations. Keeping certain innovations secret, exploiting first mover advantage, judicious use of retail costs and establishment of relationships (agreements/ supplier chains/ franchises/ alliances/ etc.) is faster and far more advantageous, more profitable as well.

The companies I am involved with expect competition. We do not see the point in employing coercion or violence to “guarantee” a “right” to a market or a “right” to customers. Such “rights” do not exist. Competition is understood to be one of the experiences that urge all of us at work to do better. Hence we make good profit. Time wasted on suppressing competition by using govt authorities, regulations, legislation or seeking grant of special privilege is dead time. That is, non-productive. It’s a net loss. This is experience, not theory I am discussing here.

An aside. The idea that an invention can be “copyrighted” seems impractical. How do you determine who the original creator is or was? And so what if he is (or was)? Is it necessary to introduce tests of originality- obviousness and inventive step and novelty? Surely not! Perhaps the whole notion of ideas as property is invalid. The possibility would be worth investigating.

Moving on. Sasha asks: “Could we say that private property rights distort the society and cause it center around property controls, instead of more productive use of resources?”

This is a question asked in the absence of proper context. It floats without specific meaning (it fails to clarify, rather, it misleads).

What is a “more productive use of resources”? According to whom? On what basis is the evaluation determined? Who decides?

What is a “distortion”? According to whom? On what basis? Who decides?

Sasha asks: “Would there be any point to focusing on “invention related services” if one firm has to spend money on both R&D; and services, while other firms want to pick up their research for free and than focus all their resources on excelling in services.”

Does the writer of this question have any experience in business? I mean the practical day-to-day activity of commercial business, not theory, not speculation (as in throwing out floating abstractions and ideas) and not rumination?

As a practising businessman I seek innovation as a tool to better attract and serve customers, to reduce cost, add capability and profit. Competitors may well wish to reverse-engineer and/or copy what I introduce to the market. They will need to expend resource to do it. That’s certainly not free. While they are busy doing this (and it may be a valid strategy for them to undertake) I am moving ahead with my next improvement or innovation. Resource they expend on copying IS an actual research overhead they must bear. There is no free lunch.

The question is invalid.

Sasha asks : “Couldn’t we also say that the control of private property requires force and violence?”

Depends on context. Depends if you are trying to steal the property or not. If you come around here and try to steal from me you should expect to get the right brutal hiding you’d deserve. That’s a result of what would be a demonstrated fact- that you require a hiding to prevent you from stealing my stuff (or for me to rescue it from you should you already have taken any of it without permission).

And continues: “Like how capitalists arguably held back the developments of alternative fuels that could have saved our environment from global warming (LOL!)…”

BS! This assertion requires proof. I’m calling you out here, Sasha. Provide your proof please! While you’re at it explain the relevance of this piece of collectivist fluffiness, “our environment”. Of course, if you were merely being sarcastic or ironic then you may care to consider these questions: Does your comment demonstrate your idea? How?

And: “or how private property rights led to millions of deaths from poverty in Africa, while western world shielded its wealth with force and violence.”

This assertion also requires proof. I’m calling you out again, Sasha. Provide your proof for this as well please!

In discussing issues such as those pertaining to copyright and patents etc. it would pay to keep matters clear and accurate. Stick to specifics. Concentrate on the essentials. Don’t try to mislead. Avoid introducing irrelevancies. None of that is helpful to learning.

Talofa!

Sione

Posted by: Sione at December 23, 2006 6:12 PM

Sione,

First of all – I was not trying to establish analogy between patents and property rights. We must be clear on that. I tried (and succeeded) in showing a clear analogy between communist ideology and anti-copyright crowd on this blog and elsewhere.

I’m not fond of state patent system and I stated that patents are violation of free market process to the extent that they go beyond copyright (contractual terms of use)… And that’s also what Rothbard said.

—

HOWERER – many of attacks on copyrights that try to go beyond what Rothbard said are simply based on a flawed collectivism.

Plus, you pretended that you didn’t understand I was only making sarcastic remarks based on such logic – just to show how absurd these “arguments” are. Why would I provide any proof for my sarcastic statements – if my intention is to show how such reasoning is baseless and without proof?

Of course that I would never argue that resources used for private property protection can be put into “more productive use” if we abolish property. But silly argument of that kind is used by copyright haters as well. They say – if people were not focusing so much on policing their products’ terms of use – they could have used those resources for better use (like R&D;). But you understand why these arguments are ridiculous, since you correctly asked “better for whom?” That was exactly my point.

I had to react to the “argument” that people are “better of” when they forego their individual interests in patents – and that we should, instead, allow millions of people just to share what they have. I mean – how is this not parallel to communist argument on why would sharing resources be actually more efficient? How is a free-rider who waits to pick-up someone else’s invention for free any different than a communist free-rider who waits to be fed by someone else?

Also, I had to react on those silly comments that patents caused HIV deaths – and not combined forces of HIV, local irresponsibility, and African self-inflicted poverty. I mean, give me a break. If you start blaming western businessman for shielding property that might help someone in Africa – there is no stop to that madness. That’s why I used environment analogy – just to show how silly is to claim that individual interests “hold back” new technology, like in environmentalist hysteria. Using the same flawed logic you will blame property rights for market distortion (like David C did) and you will start advocating a communist anarchy that would create more equality by destroying profit-motivated economy and bringing African misery to the west.

—-

The only argument one ever needs to defend copyright is following: you have a property right and logical capability to create free-market contracts that would protect them. All you need to do is to establish the terms of use and to specify that unauthorized use will result in your damages.

But what should I do when people ignore this – and instead focus on utilitarian, collectivist ideas on why copyright (and valid patents) are “bad for you”? I choose to use the favorite Austrian technique: reductio ad absurdum. I love to adopt flawed arguments of my opponents and to bring them to their logical conclusion, at which point their absurdity is obvious to anyone who cares to think.

Posted by: Sasha Radeta at December 23, 2006 10:15 PM

Sasha,

a) “collectivism” is not inherently evil or irrational. It *is* when socialist governments under their utopian master plans coerce it on people, but copying and imitation is not inherently coercive.

b) When you said “but to prevent conflict over a commercial use of someone’s item.” – the nature of the item you are talking about is non exclusive. The conflict is not over the item, but over distribution channels and market share. That conflict is solved by the market. Maybe ford has no incentive to make cars if Christler can. That is not a problem. Maybe Christler made a car first, that is not an issue, but a first mover advantage.

c) You must have misread me, because I agree that private property rights are not a distortion of markets. but if I have a farm that looks just like my neighbors farm, and the government tries to deny me use of my property because of that, then that IS a distortion of free markets.

d) When people in Africa tried to make their own generic AIDS medications. Western pharmaceuticals sued to stop them in the world court. It didn’t cause their AIDS, but it did prevent them from helping themselves which is just as evil and certainly is responsible for a million AIDS deaths. You call that restriction a “property right”? I strongly disagree.

e) The free market is answering the “enforcement” question. There is a reason why IBM, Sun, HP, and all the others typically choose to cross-license in detente rather than monetize patent royalties. In fact, that’s my concern. The free market answered the Marxism question in the deaths of 100 million people. It answered the “is a slave property” question with a bloody civil war and half a million dead people. It is answering the “are copyrights property” in these very years, right now as I speak. It will also answer the patent question, an answer that I am afraid will be very violent.

f) The “free rider” problem is not a problem with copyrights and patents because of their non exclusive nature. In fact, even Microsoft and Norton have taken strong advantage of “free riders” to expand their market share. In fact, the massive expansion of Linux in spite of predictions, the problems with the RIAA, Microsoft’s loss of the server space, and so on is the markets way of saying – “copyrights are garbage”

g) “utilitarian” arguments count! Freedom and liberty are not some esoteric concepts, they are deeply and intimately connected to happiness, success, and understanding success and failure in the real world. It is people like me, in high tech R&D;, that are supposed to see the fruits of copyrights and patent first hand. Yeah, I’ve seen them all right. The theory and reality of copyrights and patents are not matching because the premise is wrong. They are not “property”.

h) “reductio ad absurdum” with copyrights implies that someone would own every letter, word, punctuation mark, and phrase, every language, math formula, every note, color, shape, and pattern. No one could be free in such a world.

“The only argument one ever needs to defend copyright is following: you have a property right and logical capability to create free-market contracts that would protect them. All you need to do is to establish the terms of use and to specify that unauthorized use will result in your damages.”

The “property right” you are referring to can only be a privacy right. If someone violates that, or violates a contract to respect that – then he has violated you. Not, everyone else who happens to come across that information later on. They have no agreement with you, have not violated your liberty, are acting non coercively, unfradulently, and owe you nothing.

Posted by: David C at December 24, 2006 2:08 AM

Wait a tick David C, I have to argue on a couple of your points:

a) Collectivism not evil? I thought the greatness of Capitalism was the Individual. Collectivism is just another synonym for Socialism/Communism, just type ‘Collectivism’ into Word then Right-click. Any name for a system where group rights override individual rights are anti-Capitalism, last time I looked anyway.

e) The American Civil War was fought on slavery? Isn’t that the official Statist view? Wasn’t the real reason the right of states for self-determination/seccession? That the Union would nowadays be the USA and CSA? Slavery has been around since, well, ever, it’s especially found in the Old Testament. It’s also found in the New Testament as well in Saint Paul’s famous line: ‘slaves obey your masters’. It seems the standard Christian view about slavery, and other social trappings, are of no concern as people should ready themselves for the Kingdom of God.

Posted by: Sam at December 24, 2006 4:16 AM

Sam, Arrgh … Socialisim, communisim, collectivisim, they’re such loaded words. I should have said “sharing resources as a group is not inherently evil as long as it’s not coerced.” Thanks.

Posted by: David C at December 24, 2006 9:34 AM

Hold up there Sasha,

It was you who introduced the analogy of farms to patents. The analogy failed and DID NOT succeed in showing a relationship between communist ideology and the anti-copyright crowd. An assertion that you did manage to demonstrate this is all very well but, on this occasion at least, it is baseless. Besides which you are playing the man here and not the idea. Stick to essentials. That’s the way to make a point.

Likewise, sarcastic remarks do nothing to make an argument. If you want to make a point then make it. Explain exactly what you mean. Be explicit about it. In this case sarcasm was substituted for an explanation of your idea. How is that helpful to the reader? It isn’t, especially when you are comparing things which are not alike or not obviouly related. Avoid introducing such comparisons and relationships. Stick to essentials.

An example you wrote: “I had to react to the “argument” that people are “better of” when they forego their individual interests in patents – and that we should, instead, allow millions of people just to share what they have. I mean – how is this not parallel to communist argument?”

You are committing the error of misrepresenting your correspondant’s argument here. Further it is clear that the elimination of patents and the “rights” (should be called priveldges granted by govt) associated with them is a Libertarian idea. One can hardly say that Libertarianism and communism have similar arguments. Surely not? That would be to mischaracterise one or the other or both. Surley it would have been better to address your correspondent’s argument directly and show where, how and why you disagree with it.

In your last post to me you explain why you wrote as you did. Consider this. You could have saved yourself all that by sticking to essentials in the first instance. Just make the argument & avoid the rest.

Turning now to copyright.
You wrote: “The only argument one ever needs to defend copyright is following: you have a property right and logical capability to create free-market contracts that would protect them. All you need to do is to establish the terms of use and to specify that unauthorized use will result in your damages.”

Fair enough.

I have some questions.
What is the property right to which you refer? What is the property exactly?

Talofa!

Sione

Posted by: Sione at December 24, 2006 12:40 PM

Sione,

You are incorrect. I didn’t introduce the analogy between private property and patents. I only used farms example to illustrate how flawed is the logic of anti-copyright crowd when it is applied outside of patents.

Maybe that was too complicated for you, but considers: if you say that patents & copyrights are bad because they direct resources toward protection – and away from production – can’t you make the same argument about private property rights? Well, you explained why such logic is flawed. Thank you very much.

Also, if you say that markets will be better off if we allowed free-riders to exist and for everyone to freely share their protected resources – why wouldn’t than collectivist farms work? Well, if David C read Mises he would know why Microsoft just doesn’t want to switch to freeware, and if he read Rothbard he would know why it is their private property right to create restrictive terms of use.

When David C says that patents are killing Africans by not providing them with free commercial use of their patents (although, there is no cure for AIDS) – doesn’t his logic also imply that wealthy westerners are killing starving Africans by not providing them with other kinds of things they are protecting? That logic is also communist and flawed.

And I was able to prove it once David C stated that private property rights are creating distortion in markets… I mean he started openly to advocate collectivism, fee-riders who wait for someone else to make invention for them – he basically proved my whole point.

—

As far as your question goes, I didn’t understand it. If I own a book – isn’t that my property? Do I need to give a definition of property? If I own something, I can make contracts with other individuals regarding its use. Do you agree? I can specify what use is allowed for the price paid (money plus damages in the amount of unauthorized copies). That’s it.

Posted by: Sasha Radeta at December 24, 2006 8:19 PM

David C,

a) Collectivism is inherently bad if it is based on unauthorized use (trespass) of someone else’s property. Violations of copyright contracts are exactly that.

b) As I said, copyrights are created to protect the owner’s private property right to sell one kind of use of his product, while restricting others.

c) I didn’t misread you. You said that private property rights are distortion of markets – twice! If you changed your mind, that’s cool.

e) Your understanding of American Civil War and communist crimes is just ludicrous. Private property rights and contracts (including copyrights) are not responsible for any aggression. Quite the opposite – they are forces against aggression.

f) Free-rider issue is problem with copyrights/patents, just like with any other aspect of private property rights. In these communist systems, while one person produces, risks, and invests – the other waits to just take over fruits of someone else’s labor. Eventually, the system that rewards free-riders and puts inventors in a disadvantage eventually collapses. I already explained while Linux’s bundling “free” products with expensive services is not in everyone’s interest – and it is not up to you to decide if someone will use copyright protection of his own property.

g) Baseless attempts of utilitarian arguments don’t count if that advocates violations of free-market contracts (like copyright). I never said that copyright is property – but it is a contractual protection of exclusive property use.

h) Copyright can only apply to the original authorship – that you would not be able to produce identically on your own. Your assertion that: you can never be free, unless you are allowed to freely take someone else’s commercial use of their own property (against your own contractual terms of use) – shows how deeply you can slip into communism if you insist on Kinsella’s nonsensical views.
—-

I already answered many times to a flawed “third party” objection to copyrights. Third party who causes the buyer to violate contract will never be responsible for contractual breach. It can only be responsible for tort (non-contractual injury) caused to a side in contract that must liable for any breach, regardless of who did it (otherwise, no contract would ever be enforced and we would have a “license to steal” by using third parties).

Posted by: Sasha Radeta at December 24, 2006 9:57 PM

Sasha

Stop with the equivocation and evasion already! Goodness, gracious!

You write: “I didn’t introduce the analogy between private property and patents.”

As you may recall, my objection was to an analogy you attempted to establish between patents and farms. Now, I’ve since reread this thread a couple of times and unless there is someone else posting under your name then it was indeed you who did try to establish the analogy I criticised. You wrote and I directly quote: “Could we say that if a person looses his private property rights on one farm, but in turn gains access to one hundred other farms in a commune…etc”.

Besides which, you have yet to prove anything at all. I see you assert otherwise but you should be aware that assertions and claims are not substantive on their own. They sure are not proofs either.

Regarding copyright.

You write: “The only argument one ever needs to defend copyright is following: you have a property right and logical capability to create free-market contracts that would protect them.”

Rather than arguing floating abstractions I’d like to pin this down so I know exactly what you are talking about.

“You have a property right.” What property right is this to which you refer? How does it relate to copyright? Are all types of property able to be subject to copyright or only a certain class or type of property?

Sione

Posted by: Sione Vatu at December 25, 2006 1:34 AM

I generally agree with Stephan Kinsella’s analysis of IP. Government intervention has made a real mess of things here, and perpetuates the consistent violation of property rights to the financial benefit of a few.

However, I think that the core of Sasha’s argument on copyright definitely has merit. That is that voluntary contracts that mimic current copyright should not be prohibited. If a buyer signs a contract upon purchase that says, “I will not make copies of this product,” then we are talking about a voluntary agreement. To me, this seems like a perfectly valid concept, and to prohibit this type of contract would be anti-liberty.

However, I think there are still plenty of valid concerns to address. I don’t feel like these are not the kind of problems that can be brushed aside:

1. Third parties. Sasha believes that the copy contract should stipulate that the buyer is liable if a third party makes a copy. I had some questions about this, though. Let’s say someone steals a book that was sold under a copy contract and makes 50,000 copies of it. Or, more likely, scans it and makes it available via download on the web. By Rothbard’s rules for theft, the wronged party is entitled to having his property returned plus some additional compensation. But what about the “theft” of copies? I would argue that this is not true theft, since the third party is under no obligation to the seller of the book. The buyer would get back his book and a bit of extra compensation. The thief would get to keep the copies that he made. The buyer, who broke contract by “allowing” the copies, presumably loses. Book theft suddenly looks like a lucrative, low-risk profession.

2. Enforcement. This would apply just as easily to the above concern, but I’ll frame it differently to remove the element of theft. Let’s say a buyer of a book loans it to a third party. That third party secretly posts the book on a website and thousands of downloads ensue. Now, our third party has technically done nothing wrong. The bookseller might investigate and (possibly) discover the identity of this third party. They might also find out that this third party never signed any contract and so is not bound by it. If the third party chooses not to disclose who loaned him the book, the seller has no recourse but to accept the loss.

The problem I see with the first point is that no one would buy books. Only an idiot would take that risk, which would presumably have no time limit. Those that did buy under these contracts would carefully guard their books and then burn them once finished reading them.

The second problem shows the that such a scheme is impractical in the real world without coercion and/or serious invasion of privacy. So, while I agree that Sasha’s scheme is legal and possible to implement, I see it as an ineffectual substitute for (already weakly enforced) government intervention.

So, can we try to argue on something a bit more fundamental like this, and drop the name-calling?

Posted by: Scott D at December 25, 2006 11:03 AM

a) Collectivism is inherently bad if it is based on unauthorized use (trespass) of someone else’s property. Violations of copyright contracts are exactly that.

I can violate copyrights without leaving my living room, without even going on the Internet. Trespass like the hell it is. It’s more likely the other way around, imposing copyrights is trespass on me and my space.

b) As I said, copyrights are created to protect the owner’s private property right to sell one kind of use of his product, while restricting others. … and …. Also, if you say that markets will be better off if we allowed free-riders to exist and for everyone to freely share their protected resources – why wouldn’t than collectivist farms work? Well, if David C read Mises he would know why Microsoft just doesn’t want to switch to freeware, and if he read Rothbard he would know why it is their private property right to create restrictive terms of use.

Thanks, but I know why Microsoft doesn’t want to switch. They have a personal government monopoly on distribution, why would they? But alas, it will be a shock when Microsoft gets kicked out of the marketplace in 2 or 3 years here. Also, I have read Rothbard’s position on copyright and he is wrong for the same reasons you are. FYI the tendency to mix up copyright, property, trespass, tort, privacy, and contract rights a lot is symtomic of boundaries problem typical in statists.

c) I didn’t misread you. You said that private property rights are distortion of markets – twice! If you changed your mind, that’s cool. … and … And I was able to prove it once David C stated that private property rights are creating distortion in markets… I mean he started openly to advocate collectivism, fee-riders who wait for someone else to make invention for them – he basically proved my whole point.

Shame on you Sasha, do you slander me for the sake of compelling argument? anybody could scroll up and see the quote said “YES! If the government controls how people used their own *copies* of property, then that is a true distortion of liberty and free markets.” My farm is my property weather it looks like yours or not, and the government messing with my property is a distortion. Of course I switched context on you, but you did on me too … farms analogous to patents, what a crock. Also, this paragraph reveals a reasoning fallacy. Just property rights lead to powerful incentives, but coercion of incentives does not lead to just property rights. The point is that if someone has a factory that an invention will make 10% more efficient, then it is market forces pushing that invention forward, not a patent monopoly. Copying and imitating does not disincentive any more than using E=mc^2 disincentives Einstein.

d) When people in Africa make their own “generic drugs” they don’t just make their own independent invention. No. Unlike European and Asian firms that buy commercial use (licenses) of American products – Africans just cheaply by personal use of pharmaceuticals – and than just decide to “upgrade” their products with trespassing (unauthorized use). That kind of theft is not any different from any other kind of trespass (like someone who invades your property and than claims that its fruits are his). … and … When David C says that patents are killing Africans by not providing them with free commercial use of their patents (although, there is no cure for AIDS) – doesn’t his logic also imply that wealthy westerners are killing starving Africans by not providing them with other kinds of things they are protecting? That logic is also communist and flawed.

Copying AIDS medications is no more a trespass or invasion than copying the layout of a fruit stand, they were not coercing “wealthy westerners” to provide them with anything. The cost of the R&D; is irrelevant. If a pharmaceutical makes an irrational investment based on the assumption of a fraudulent “property” right, then that is their problem, not Africa’s. Restricting how these people could help themselves was murderous.

Patents are genocidal and copyrights are trespass, the arguments to the contrary are what’s ludicrous.

f) Free-rider issue is problem with copyrights/patents, just like with any other aspect of private property rights. In these communist systems, while one person produces, risks, and invests – the other waits to just take over fruits of someone else’s labor. Eventually, the system that . I already explained while Linux’s bundling “free” products with expensive services is not in everyone’s interest – and it is not up to you to decide if someone will use copyright protection of his own property.

Your theory implies “rewards free-riders and puts inventors in a disadvantage eventually collapses”, but here we have the Internet the biggest copy violation tool ever to birth upon human existence. Did music creation go decrease and stagnate, did software creation, did authoring? No, No, and No. they boomed, therefore the theory is wrong.

This is another way of saying, “theories of copyright and contract don’t have to match up with the real world”, well they don’t! and I count the use of the word property 20 times up there!

If this copyright is really a value incentive, a value offer, then extending it down to the letter should enhance it’s value offer not the other way around. It does with regular contracts and property. Show me the contract I signed! Where is it?

i)I already answered many times to a flawed “third party” objection to copyrights. Third party who causes the buyer to violate contract will never be responsible for contractual breach. It can only be responsible for tort (non-contractual injury) caused to a side in contract that must liable for any breach, regardless of who did it ( and we would have a “license to steal” by using third parties).

Tort implies that the act of copying causes harm rather than the violation of privacy or contract, a false premise. And of course copyrights couldn’t be enforced otherwise! that’s why copyrights are a poor market mechanism unless the government coerces everyone and intrudes on their privacy.

Posted by: David C at December 25, 2006 11:53 AM

Scott, I didn’t realise this was percieved as name calling match. In spite of harsh critizisim and occasional poking fun at her, I hope it is understood that I have a deep respect for Sasha. No one can falut her love of freedom and property rights. In spite of our strong disagreements about copyright and patent, she clearly has a deep respect for the value of the individual. I think the truth is that we are all sick and tired of having “collective” gargage ramned down our throats, her reaction very healthy considering. I don’t think the intensity of her position is personal, I wouldn’t be supprised if she lived thru some large statist evil first hand. (uhhh, one after thought, ‘Sasha’ is a female name, right?) … one more thing, merry christmas to everyone.

Posted by: David C at December 25, 2006 12:47 PM

Merry Christmas to everyone!

Sasha does not have to be a female name. in Slavic languages it’s short for Alexander (as Bill for William, or Dick for Richard here). The name is spelled differently in differently, so you have Sacha Baron Cohen (Borat and Ali G guy. I already said I’m a guy couple of times on this blog.

——

Sione,

Why don’t you just read more carefully…

Some anti-patent arguments based on false utilitarianism can also be applied to any segment of our lives and take us straight to communism. If you argue that patents are “bad” because we could put protective and legal resources to “better use” – the same thing could be argued about private property rights. While protecting private property we also use our resources for defense and protection, legal issues – rather than putting them to what David C thinks is a “better use”…

The same goes for their anti-patent “dying Africans” argument. The fact that some Africans are dying could not in itself justify any action that would be directed to help them in the short run… If we accepted this logic, any theft of western wealth could be justified.

Also, if anti-patent crowd argues that it is much better to freely share each other’s resources and that free-riders (someone who waits for someone else to make an invention for him) are not a problem at all – than they also imply that collectivism is good in farming and elsewhere. There is also “sharing of resources” and free-riders there, right?

—-

Scott D,

I answered to your concerns many times before on this blog:

1. Third parties. Sides in contract can never be excused for third party actions that cause a breach. That’s how it is in any type of contract, or otherwise they would be unenforceable. However, I said that the buyer can recover his liability by bringing the tort case against a third party who caused him an injury.

As in any contract, you cannot be excused for a third party action that causes your breach of contract (otherwise, third party would have a “license to steal” and no contract could ever be enforced… that would be a good-bye to market exchanges). But if you are liable for the amount of damages based on contract – you are going to seek a tort case against that third party that caused you that damage. This third party knows that in all likelihood you can claim that your book was stolen, and a “finder” who reveals himself will have a hard time to prove that it wasn’t stolen. That would shift the cost of your liability to this third party. That will finally avert these “finders” from putting someone else’s property into a commercial use.

2. Enforcement. Privatization of copyright would make it only more efficient than it is today.

I disagree with your assertion that no one would sign a copyright contract – but if you don’t like it – don’t sign it. You think that not too many people would buy books based on these conditions – but you forget that most of the people aren’t thieves – and those who are… well, they should pay. People who do not want to violate their terms of use would be perfectly safe, because any breach of contract that’s not their fault could be recovered in a tort case against third party violator.

Posted by: Sasha Radeta at December 25, 2006 1:32 PM

David C

a) Don’t be so medieval. Of course you can commit a trespass by never leaving your room. I can fail to deliver some ordered goods and services without leaving my room. Likewise, I can violate my terms of use in my room by unauthorized use of someone else’s product. Physical location is not relevant here.

b) Copyright is nothing but an exercise of private property rights over a commercial use of some product. Microsoft has every right to insist on it – just like their competitors may choose to discount this protection, in order to make more money in service activities. It’s their own business – not yours, or Kinsella’s

c) Copyright is not “coercion of incentives”. It is simply a protection of exclusive terms of commercial use that a particular owner sells to publishers, licensees, etc. If you would take that type of use for free – no one would be foolish to ever pay anything to authors for those kinds of copying rights. Of course this would reduce incentives for authorship.

d) Unauthorized reproduction of someone else’s pharmaceuticals is nothing but a theft or trespass. It’s like paying for cheapest airline tickets and then trying to “upgrade’ them for free. The fact that Africans are dying is not an excuse for theft. They should humbly ask for charity if they cannot afford medications, instead of advocating the theft.

e) Patents are not genocidal, and copyrights are protection against trespass. Let me remind you that trespass is “unauthorized use.” If you sign a contract that prohibits you from commercial use of a product – than any violation of these terms is trespass by definition.

f) Free-rider problem exist everywhere where property rights are violated. The fact that musicians use P2P Napster-style technologies to promote their concerts does not prove your point. Advertisements are generally given away to consumers – but the book authors cannot afford to have unrestricted reproductions of their works. They cannot fill the concert halls and stadiums with their lectures. They choose to only sell the personal use of their products – and it is their private property right to do so.

g) Copyright and private property rights do match-up with the real world. Individuals can decide for themselves how they want to formulate them. But if someone advocates open violation of valid private contracts – than we’re talking about communist revolutionaries and then we have a serious problem.

h) I don’t know what you talked about under this point. It seems that you don’t understand what the contract is and what different types of contracts exist. Copyright is a contractual restriction in terms of use. I don’t know what “value” nonsense you refer to.

i) In cases of copyrights violations caused by third party, the “tort” implies that this party is not held responsible for breach of contract – but for a direct injury caused by his actions. This basically refutes Kinsella’s major “argument” and demonstrates that copyright contracts would be possible and enforceable in a perfectly free market.

Posted by: Sasha Radeta at December 25, 2006 2:16 PM

Oh, I forgot about this…

Sione asked:
“”You have a property right.” What property right is this to which you refer? How does it relate to copyright? Are all types of property able to be subject to copyright or only a certain class or type of property?”

I already answered this in great detail.

If you own something, you have a right to sell it or contractually arrange someone else’s use of it. This means that you can contractually provide the personal use of your product – in exchange for money and entitlement on specified damages for any violation of contract.

Sione asked how this relates to copyright, as if this wasn’t self-evident. If you contractually specify that you only sell non-commercial use of your product and that in case of violation all resulting products (unauthorized copies and/or profits) will belong to you – how is this not a copyright? It is perfectly consistent with your private property rights over that item you sold.

Sione asked: what classes of products are subject to copyright. Use common sense. Anything that can be discovered independently cannot be declared as unauthorized reproduction. If you can prove beyond reasonable doubt that someone copied your item against explicit terms of use – than copyright can be enforced. You cannot claim that someone violated your copyright by painting his store in a certain shade of yellow, because it would be impossible to prove that this person did not created this shade based on his own independent discovery. But you can certainly prove that I didn’t write independently, word-for-word, my pirate copies of Hoppe’s “Democracy: the God that Failed.” In this case, I inexpensively bought personal use of his book (as copyright notice stated) – but than I turned it without any authorization into more expensive commercial use – for free.

Posted by: Sasha Radeta at December 25, 2006 4:40 PM

Sasha writes:

“In cases of copyrights violations caused by third party, the “tort” implies that this party is not held responsible for breach of contract – but for a direct injury caused by his actions.”

Sasha, *even in tort law*, if a person wishes to recover damages from the third party, the third party must be guilty of wrongdoing!!!!
You can not sue me for damages if I cause you to be late to your job interview by driving too slow (unless I am violating a minimum speed limit). I have not acted tortially (a real word) … and neither has the copier (unless he has unlawfully obtained the copy of your book by stealing it, or sneaking into your home, etc.).
So, in order for you to recover your damages from the third party, you must first have a law/statute in place which says copying is wrong/illegal in general — i.e. copyright. So there can be no tort without an overarching copyright law.

Posted by: Fred Mann at December 25, 2006 4:45 PM

Fred,

You are incorrect again. If you are caught with the piece of my property in your hands (after you made and sold thousands of its unauthorized copies) – and I claim that my item is stolen (even if it wasn’t), you will have a hard time proving that you just accidentally found it and that you were not aware of consequences if you put it into a commercial use. The real danger of being accused of theft and responsible for damages would deter accidental finders to make profits by using someone else’s property like it’s their own. When I say “someone else’s property” I come from the common law tradition in which a finder cannot have a better property claim than the original owner.

Posted by: Sasha Radeta at December 25, 2006 5:08 PM

Sasha,
In your scenario, I am not putting your property into commercial use unless the IDEAS contained within the book are considered your property. Your property is the book — ink on paper, and nothing else. You do not own the contents (which again are ideas). So if I find your book on the beach and I copy it and leave it there unharmed, I have not stolen your property. I have not trespassed or violated any conceivable law (unless you want to make touching a lost or abandoned item a crime). So, when I reproduce the IDEAS in the book, I am not putting your property into commercial use (as you said above) unless, yet again, the ideas are your property. This is because I am putting the IDEAS into commercial use, not the physical book. So your argument only holds if you think that a book and the ideas contained within that book are one and the same thing, which, apparently, you do. But I can assure you that they are not the same thing.
Also, falsely claiming that I stole this book (which, as you may remember, is still sitting exactly where YOU carelessly left it/lost it) isn’t really going to deter me since I’m not guilty of anything (sorry, no tort). But you may find yourself in some hot water for making false accusations (possible tort).

Posted by: Fred Mann at December 25, 2006 9:37 PM

Mr Sasha Radeta (deep apologies about calling you a ‘she’)

You say copying is trespass, I say copyrights are trespass. You say it’s a property, I say it’s a government micro regulation. You say it’s protection, I say it’s coercion. You say Africans dying of AIDS were thieving, I say they were being murdered. You say unrestricted copying is a free rider tragedy of the commons, I say it’s a freedom miracle. You say copyrights offer real world benefit, I say their destruction does. You say copyright can be secured thru contract and tort, I say they can only attempt to be secured thru massive government intrusion of peoples liberty and privacy.

Well it’s either one way or the other. The truth is not an opinion. It is measurable, it is learnable, it is approachable, we live in a rational existence. With my version of existence a lot of things start to make sense: Like why were safety devices in cars 20 late from when they were invented? Why did 50 million people die of malaria long after DDT use was common? Why do we have so many incompatible parts and interfaces in the market? Why did the Africans have such a difficult time getting AIDS drugs? and when they did get them, why did the US government flip the bill at over 13 billion dollars? Why did the less proprietary Linux, Intel, x86, TCP/IP, and Ethernet take off when the better supported alternatives didn’t? Why did the Internet encourage creativity instead of destroy it? Why does India have more drug innovation than the richly funded US? Why does Microsoft support suck, and Linux support not in spite of 1/10th the funding? How could Linux capture the data center space from Microsoft with 1/100th the backing? Why does Hollywood put out so much crap? Why all the chaos and intrusions of our privacy with the MPAA and RIAA?

It’s clear our differences are way beyond just some misunderstanding or clairification, so fine, lets just let the facts speak for themselves.

Posted by: David C at December 25, 2006 10:06 PM

Negative sir, you totally misunderstood it.

As I already explained – ideas can be owned when they are turned into something tangible and physical. The book’s “content” is nothing but patterns of letters in a book. So we are talking about physical characteristics.

The owner of that book can contractually prohibit the reproduction of these physical characteristics of his product, while selling only its personal use.

As far as your “finding” of a lost book goes – any thief can claim he found something. It’s not much of a defense, trust me. A smart finder will keep it quite and avoid commercial use of someone else’s property.

Rothbard even implied that a third party could be responsible for trespass (unauthorized use) and injury against the original owner who has the exclusive ownership over commercial use (regardless of contracts) – but I wouldn’t go there.

Posted by: Sasha Radeta at December 25, 2006 10:11 PM

The answer above is for Fred.

Posted by: Sasha Radeta at December 25, 2006 10:42 PM

Pierre-Joseph Proudhon said: La propriété, c’est le vol! (Property is theft!)

David C said: copyright is trespass.

—-

You can say whatever you want, but trespass by definition is unauthorized use. Copyright is a contractual restriction in commercial use of someone else’s item (you can always avoid it by not buying the use of someone’s product).

DDT was not banned by free-market (perpetual) copyright advocates. As far as AIDS drugs go, I already told you that there is no cure – but if Africans want free drugs they need to ask for charity – and not flood the market with unauthorized copies… because the cure will not be developed if tomorrow African nations can simply flood the market, without paying a dime to people who invest billions in developing cures. But whatever you may think of it – pharmaceutical companies own their products – and they have a right not to give away for free the commercial use of their products (which they sell to Europeans).

You already know that Linux is not even close to Microsoft – and that Microsoft’s service “sucks” precisely because they don’t make majority od their dollars with services (their products are so widespread that services could be taken over by people outside of the company). Linux on the other hand bundle their easy-to-rip products with better service that is rare to find and stays within the company). It is their choice… If you are foolish to argue that Microsoft is unsuccessful compared to Linux – go for it. But Microsoft has every right and every reason to insist on their copyright – and a free market oriented people can only support that.

As far as your comment about Hollywood goes – I also think it sucks and I love Almodovar’s and Kusturica’s films more than anything… But consumers don’t think it sucks and this industry has a right to either protect its commercial channels with copyrights – or if some companies choose to invest in improving the movie theatre experience and drop copyright on DVDs (as their form of advertisement) – they are free to do so.

You are in disadvantage David C, because I never claimed that copyright is in everyones interest (new musicians, young hi-tech companies who can capitalize on services, etc). But it is their CHOICE to decide whether or not they want to restrict the commercial use of their property with copyright. For many people (like book authors) this is not a choice, but the matter of survival. Nevertheless, you cannot advocate the forceful abolition of copyright if you care about private property rights.

Posted by: Sasha Radeta at December 25, 2006 11:13 PM

I don’t post much, but I read quite a bit. I’ve seen Sasha’s rants on a number of IP articles lately and I think I know where the confusion lies.
Sasha said:
“As I said, copyrights are created to protect the owner’s private property right to sell one kind of use of his product, while restricting others.”

I say come into the real world, Sasha! You can’t sell or restrict uses of your product. If you want to restrict certain uses of it, don’t sell the product. No amount of licensing from Sony can stop me from using the PS3 as a doorstop. And I promise you, as soon as I get one, that’s what I’ll do with it.
If I were more scientifically inclined, I might use the PS3 to simulate the solar system. Sure, Sony might make it hard for me to code for the beast (by using an unpublished proprietary programming language or whatnot), but discouraging unwanted use of their product is not the same as disallowing such, since the latter requires force directed against me.

Posted by: Cosmin at December 26, 2006 12:47 AM

Sasha:

Hmm. Interesting response. I realized that you have already addressed the issues I brought up (moreso in one of the other, many threads on IP, I believe), but I wanted to restate them to get a better idea of your arguments against them, since I’ve only followed this discussion peripherally.

So basically, whether your scheme works on not hinges upon a few points:

1. The courts’ cooperation in enforcing copy contracts. This is the debate that is going on now in this thread. Are such contracts valid, and should they extend beyond the two parties of the contract?

2. Widespread voluntary compliance on the part of buyers (since a single breach of contract makes a book worthless).

I suppose there is a workable framework here, but I’m still a bit skeptical that it would hold together in a free market. Thanks for the response.

David C.

I’m with you on Linux. While I could possibly see a market-based copyright on books, software is a different beast entirely. I think we tend to lump all of these things together because they are all covered by “copyright”. Code is modular and it is meant to be reused. As you pointed out, it takes almost no investment to write software now, and it gets ever easier as the base of reusable code grows over time.

I see the industry moving towards a service-based model. You can see this even in video games with the popularity of MMORPGs. Microsoft seems to be realizing this peripherally in validating Windows in order to download “free” products and trials, which treats Windows like a subscription to a bundle of products, but they’re still a long ways from where they should be.

Posted by: Scott D at December 26, 2006 8:49 AM

Cosmin,

Not even Kinsella dared to say that you have no property right to allow only certain uses of your own product. You are obviously clueless about the real world, the concept of rent, the concepts of conditional property title transfer (upon which many types of voluntary contracts rest, including labor – when you are entitled to something only if you satisfy specified conditions). If you accept your term of use for PS3 and you state that you will not replicate it (plus that any product made without authorization will belong to them) – no one is using aggression against you. No one forced you to accept those terms of use! Just like you cannot “upgrade” your airline services whenever you feel like it, you cannot “upgrade” your terms of use.

—–

Scott D,

I respect your skepticism and I hope that it will produce some concrete objections to my arguments. Unproductive skepticism is useless.

1. If you imply that free and voluntary acceptance of personal use of someone’s product (and restriction of commercial use) is invalid – provide some argument for it. Don’t just say it like Cosmin, without providing any logical argument or example.

2. Compliance of buyers is always stated in purchasing contract (terms of use). It is the likelihood and severity of punishment that deters people from violating their own voluntary obligations.

As far as Linux goes – I wish them all the luck, but they ain’t Microsoft – and due to their size, it is their best interest to pursue service-based model and make people try their products any way they can. But like I said – that is a choice of every company. Microsoft’s success (against old giants with patents) cannot be an argument in favor of copyrights/patents, just as Linux’s performance cannot be an argument that voluntary copyright is legally invalid. These (often misplaced) utilitarian arguments have nothing to do with legal subjects we’re talking about.

Posted by: Sasha Radeta at December 26, 2006 9:47 AM

“…ideas can be owned when they are turned into something tangible and physical.”

With this definition, Sasha, you are saying that any and every idea can be owned … the wheel, the practice of farming, etc. … so long as one writes it down or makes some physical object with this idea (i.e. when one makes a wheel, one owns “wheels”).

Posted by: Fred Mann at December 26, 2006 11:21 AM

Sasha, just because I don’t agree with aspects of the real world doesn’t mean I’m clueless about it.
Let’s say I buy a toothbrush. The toothbrush company says I can only buy one of their toothbrushes if I don’t use it to clean the floor. Is it your claim that if I do clean the floor with said toothbrush, they can come and take it from me?
This is all beside the point, anyway. Patents restrict the freedom of those who don’t enter into any agreement with the patent holder. For instance, I see a commercial for an ab machine on TV. Looks interesting enough, but I don’t want to order it, so I head down to the garage and make an exact replica of the machine I saw on TV. Heck, it’s so easy to do and fun to use, I build more and give them to my friends and family. Then I’m thinking that I’ve become pretty good at building the things, so I make more of them and sell them to whoever else wants help doing their crunches. Is it your position that the ab machine company can come and shut me down?

Posted by: Cosmin at December 26, 2006 12:18 PM

Cosmin, I’m still rather confused by all this IP stuff, but your argument doesn’t make sense. No one is restricting your usage of a toothbrush or a PS3 because they don’t need to–they’re selling a physical product that has a particular use, and assume that you will use it that way, but it won’t hurt them if you use a PS3 as a doorstop, any more than it hurts an author (except maybe for his pride) if you buy his book and use it as a doorstop.

The question has to do with ideas in a fixed form. If you buy a novel, scan the pages into your computer, and then make it available online to read or download (without his permission, that is) are you “harming” the author by preventing sales of his book, or do you have a perfect right to do so, and he just has to make the best of it?

Posted by: Michael A. Clem at December 26, 2006 1:06 PM

Sasha,

My skepticism is more of the “looks fine on paper but probably won’t fly” variety. If I come up with something more concrete than that, I’ll let you know.

On another note, what are your thoughts on derivative works?

Posted by: Scott D at December 26, 2006 1:25 PM

Michael, I wrote that in direct response to Sasha’s claim that owners have a “private property right to sell one kind of use of his product, while restricting others”.
Of course the situation doesn’t make sense, but that’s because the premise posited by Sasha doesn’t make sense.
Your confusion may arise from the fact that you may have read Sasha’s comment as to only apply to a specific kind of use for the sold product. (Namely, redistribution.)
However, I really think Sasha meant to say that whatever bizarre condition the seller puts in the terms of use for his product, the buyer has to abide, since he agreed to everything specified in the terms of use when making his purchase. In Sasha’s view, all conditions placed by the seller are enforceable and must be followed to a T by the buyer, simply because they were put there by the one who had the original property right for said product.
If I am mistaken and this is not Sasha’s position, I would like him to make that clear so we can move on to the next part.
That next part is the actual topic of this thread and is exemplified by the ab machine story. I would love to hear Sasha’s point of view on this.

Posted by: Cosmin at December 26, 2006 2:42 PM

Fred,

You are now intentionally misinterpreting my statement. Now your nonsensical statements cannot be a accidental mistake. I already explained many times that products that can easily be discovered independently – cannot be copyrighted. Why? Well, how can you prove that someone copied your wheel??? Wheel can be discovered independently and no court would ever rule that someone copied my particular wheel. On the other hand – is it so difficult to prove whether or not I copied Hoppe’s book, word-for-word? Stop with that nonsense, please!

Of course that you can always sell a particular use of your product, while restricting the others. What poor Cosmin does not realize is that seller can be an idiot who will make all the different sorts of contractual demands – but it is your right not to buy such restrictive use of some product.

Copyrighted terms of use are not problematic at all. To honest and decent people, copyright on Hans Hermann Hoppe’s book is not difficult to abide. If I plan on using his book for my personal use and I contractually agree that I only pay for this kind of use – I will not start making unauthorized copies and start an illegitimate business based on a trespass.

—–

Cosmin,

Communists really have a hard time with law of demand. They say: “if you allow free-market price formation, someone can charge prices so high that poor people would starve”. What those poor souls don’t realize is that prices are formed by both supply and demand. Not only would suppliers compete with each other by lowering prices – but they also have to satisfy the market demand (willingness and ability of people to buy).

Likewise, you don’t understand that people have an absolute freedom and private property rights to put whatever bizarre condition in the terms of use for their products. BUT THE BUYERS DON’T HAVE TO ACCEPT THIS! The other sellers will attract them with less bizarre conditions, because they are aware of what people (the market participants) demand.

Please educate yourself and try to understand the basic law of demand and supply before you start insinuating that we could seriously have firms that will make money by prohibiting cleaning floors with a toothbrush. But it is obvious that Mises Institute has every right and logical interest to withhold the commercial use of its product for itself.

Regards.

Posted by: Sasha Radeta at December 26, 2006 4:04 PM

And yes Cosim, if you voluntarily accept some bizarre terms of use of a product – you have to respect this contract. No one forced you to buy such use. If you change your mind, just don’t use the product anymore or try to get a refund if your seller accepts it back…

BUT,

You cannot pay a small of amount of money for some use (due to the bizarreness of a contract) – and than unilaterally decide that you will create a better conditions for yourself – and simply take the unauthorized use (commit a trespass or theft).

This is so simple to understand.

Posted by: Sasha Radeta at December 26, 2006 4:10 PM

Sasha, you say: “Not only would suppliers compete with each other by lowering prices…”
Don’t you see that patents eliminate competing suppliers and thus give power to the remaining one to have a monopoly? Without competition-driven incentive for the price to go down, the supply of the product is skewed and the price strays from a free-market price.

As for the bizarre conditions, picture this: I make hats. They’re full of snazzy graphics, really cool motifs and I advertise everywhere to get interest in my product up. Then, when costumers come buy my hats, I tell them: you may only wear it while standing nude on a rooftop. That is my condition for property title transfer. In the real world, Sasha, do you think prospective buyers would be deterred from buying from me? Or would they still buy my product, thinking that I can in no way tell them what they can or can’t do with it after they bought it?
And is it your position that I would be justified in taking their hats if I see them wearing it while on the street and non-nude?

Posted by: Cosmin at December 26, 2006 4:52 PM

“products that can easily be discovered independently – cannot be copyrighted. Why? Well, how can you prove that someone copied your wheel??? Wheel can be discovered independently and no court would ever rule that someone copied my particular wheel. On the other hand – is it so difficult to prove whether or not I copied Hoppe’s book, word-for-word?”

With this, you seem to be saying that copying someone’s ideas is always wrong, but we can’t prosecute all copying because sometimes it is reasonable to believe that the “copier” actually came up with the idea independently. In other words, it’s just a feasibility/practicality issue. Well, what if I got you on tape saying “I’m going to copy Fred’s wheel device!”? Then can I sue you for damages when you use the wheel commercially? After all, you admitted on tape to copying my idea.
Or is it just that ideas are suddenly imbued with the quality of “ownability” when they reach a certain level of complexity? If so, how does this process work?

Posted by: Fred Mann at December 26, 2006 7:04 PM

Michael A. Clem,

“… If you buy a novel, scan the pages into your computer, and then make it available online to read or download (without his permission, that is) are you “harming” the author by preventing sales of his book, or do you have a perfect right to do so, and he just has to make the best of it?…”

I’m glad you mentioned this, because there are a zillion ways I could harm the author by preventing sales of his book. I could ask people not to buy it, I could ask publishers not to print it, I could get bookstores not to stock it, I could offer alternatives. Yes it may harm the Authors finances, Yes he may feel violated, But it is my God given right to do all of these in a free society. In fact, with any property of his I could ask people not to buy it, and it may do him harm.

Yes! I could drive down the resale value of his house too by asking people not to buy it, that is my God given right. But if I drive down the resale value of his house by burning it down, that is not a right and completely violates him. So what is the difference? both caused him financial harm. The difference is that the 2nd act deprived him use of the house that was rightly his. Well the same is true with a book, if I deprive him use of the book that was rightly his than it violates him. If I deprive him market share and resale value by flooding the market with copies of that book that I happen to already own then I deprive him nothing other than the ability to use the government to force people to buy a copy from no one other than him.

In fact I would argue that it’s our duty to break that government coercion. For consider the consequences. If he then doesn’t want to write his book or keep it to a tight circle of contracted friends, then fine, we will live without it – the information age will provide alternatives, and society will pass him by. In fact, this blog is proof of that – I get more quality reading material than I have time to read from it. Yet there are no royalties paid. Same with software. If copyrights were killed and Microsoft blew up tomorrow, software would still continue to innovate and improve. I can prove that.

On the other hand, if we wish to keep copyrights, then to secure that right will continue to take amazing efforts of enforcement. Just look at the MPAA and the RIAA. Anyone think things are going to get better? Basically somebody (the government) needs a way to intrude upon private transactions and make sure that it is independently authorized. The authorization must consider different formats, different platforms, compression, encryption (so does they government need our keys too?), and encoding, it must consider whether it be a transfer or a sale (eg, they need to scan our hard drive to ensure no duplicates). In addition, people who receive items have no way of knowing how authorized the distributor is. Maybe he paid for a license to have that mp3 on his site. There is DRM, but nobody will pay for a device that restricts the media they can have on it, so if you want enforcement built into the technology then you must get the government coerce the manufactures. The government must also impose restrictions on audio recording devices. In fact, even people who have valid copies that don’t share will often rip them off the audio output for ease of use. Of course there is also no native technology that can distinguish between free speech content and copyrighted content – so you must force all content into a DRM like system even if the author intended it to be totally unrestricted and it must be pre-approved by the powers that be. Also because the Internet is global, that means that enforcement rules must be global, which also means that government power to impose “tort” and damages must be universal. Yes, we need world government to effectively secure copyrights. IMHO. I’d rather live without.

Posted by: David C at December 26, 2006 10:11 PM

Cosimin,

Sober up and than we’ll talk seriously. In a free market, consumers have a choice to refuse or to accept even bizarre conditions and sellers have a choice to offer them… The success of Ricky Martin is the best example of how bizarre market’s selection can get… Anyway, there’s nothing bizarre about copyright. It’s the mean of survival for book-authors – and it’s perfectly consistent with free markets (it can be expressed through voluntary contracts).

—

Fred, did you also have some drinks on a Tuesday night? In order to prove that someone copied your product (didn’t invent it on his own) you must produce something distinctive and unique. Isn’t that a no-brainer? I don’t really get what you tried to say.

—

David C,

Of course you can help or harm some author in many ways that were never specified in your contract. That what professional critics do for their living. But you are not allowed to do anything against your voluntarily accepted contractual obligations. I mean, what are you trying to prove? That you can pay for one kind of use, accept to pay damages in case of violations of those terms – and then just do whatever you feel like with that product? Please, explain.

Posted by: Sasha Radeta at December 26, 2006 11:02 PM

Sasha,
huh? I juat picked up this book at the used book store on a cruise ship in international waters, I didn’t sign any contract. It’s my property. I can do whatever I want with it.

Posted by: David C at December 26, 2006 11:21 PM

Sasha, you say you want to talk seriously. In that case, seriously stop avoiding my ab machine example. Let me repost it in case you don’t want to scroll up and look for it:
“Patents restrict the freedom of those who don’t enter into any agreement with the patent holder. For instance, I see a commercial for an ab machine on TV. Looks interesting enough, but I don’t want to order it, so I head down to the garage and make an exact replica of the machine I saw on TV. Heck, it’s so easy to do and fun to use, I build more and give them to my friends and family. Then I’m thinking that I’ve become pretty good at building the things, so I make more of them and sell them to whoever else wants help doing their crunches. Is it your position that the ab machine company can come and shut me down?”

Posted by: Cosmin at December 26, 2006 11:26 PM

Okay Sasha, I’ll spell it out for you…
Obviously, my “wheel” example was just an analogy meant to represent a scenario involving any “simple” invention. Actually, I guess it wasn’t so obvious …
Anyway, as we progress technologically, there will always be new “no brainer” inventions — i.e. very simple, new, and effective inventions which could certainly be developed numerous times independently (just like the wheel in the days of old). My question to you is, are these simple ideas …
A. … NOT ownable because they are simple (i.e. there is something inherent in simple ideas that makes them unownable), or …
B. … OWNABLE, but not realisticlly copyrightable, due to the fact that one would have a hard time proving that the copier didn’t invent the idea on his own? That is to say, *ALL* ideas are ownable, but it is not feasible/practical to accuse someone of stealing a “simple” idea, due to the high degree of probability that the accused “copier” actually came up with the idea on his own.
Do you see the difference?
And before you make another smug comment, may I remind you that in the previous blog on this subject, you said …

“I never said that I “own property in or of the ideas” (whatever that means). I own my physical property … ”

“You may hallucinate about “idea ownership” all day long. I never advocated such thing and your messages about that nonsense only illustrate the weakness of your arguments. ”

” I never mentioned that ideas are property. You hallucinated again.”

BUT THEN YOU SAID ABOVE…

“…ideas can be owned when they are turned into something tangible and physical.”

Do I have to point out the blatant contradiction?

Posted by: Fred Mann at December 27, 2006 12:32 AM

“So, in order for you to recover your damages from the third party, you must first have a law/statute in place which says copying is wrong/illegal in general — i.e. copyright. So there can be no tort without an overarching copyright law.”

Well actually to copy anything you must have use of the item. If you are not the owner of the item and you use it without permission then you are violating the law. You can’t just use my car when I happen not to be using it. Likewise you can’t use my book to copy it while I’m not reading it. You don’t have such permission and if I have signed a contract not to copy the book then I cannot give you such permission.

So there you are. Copyright is just about physical control of physical objects. It is about non-exclusive use after all.

Furthermore, if you steal my saw and use it to build a tree fort then in a sense I have a property interest in that tree fort. Do you think you can break into say the car factories at Ford Motor and build your own model-Ts when the workers are out on vacation or home sleeping at night? The factory is sitting idle so your use would be non-rivalous in one sense, but not in the sense that is important. The owner has a right to keep the factory idle during a strike.

Suppose you did just that. Showed up at night with a bunch of raw materials of your own and used the machinery to build model-Ts. Don’t you think the owner of the plant has property rights in those cars?

Both the raw materials and the machinery are productive inputs in creating the cars. Just so happens that one of the inputs is more durable than the others. That doesn’t mean it’s infinitely durable. Surely it will wear out over time even if it is only a mold makine “copies”. Thus it is “used up” in the production process.

Surely the value of machinery vastly outweights the cost of the ore in this case. You show up with a 100 ton of ore at say $5 a ton then use all the machinery to smelt it, form it and produce a cars worth thousands. Arguably, most of the value came from the machinery for if you didn’t have it you would only have a pile of iron oxide.

You are the one who caused the unlawful mixing of your property with anothers. So what exactly do you think me as a judge is going to order as restitution? Well, I’d turn the cars over to the owner of the plant and would probably confiscate the value of your ore for court costs and damages, plus fine you and put you in jail to boot.

Posted by: Brian Macker at December 27, 2006 2:14 AM

Sasha,

I’ve thought this through and have reasonable answers for all the reasonable objections these guys have made. I think you have the correct answers in most cases but are a little off on some others. I think this is addressable on a purely physical issue, with co-ownership of the property in question. The copyright holder retaining copying rights to all physical copies and thus is a physical co-owner in every copy.

He doesn’t ever own an “idea”. But as you’ve said he owns the instantiation of an idea. In fact he is coowner in all instatiations of an idea that were copied directly or indirectly from his originals.

This means that he will need to be sure not to inadverently impose the ideas inherent in his works on unwilling individuals in order to protect his copyright. He would need to take reasonable care. If he doesn’t then it would as if he were polluting or mixing his property with the property of others (their brains).

There are simple answers to questions like “What if I see a commercial” or “Hear some elevator music”. The simple answer is that the owner of the TV station or building would have to restrict access to their goods to people who have agreed to abide by all contracts.

If I don’t want you copying my design for wheels then I should take reasonable care to cover them, or restrict use to places that are “covered by contract” or are private.

I don’t see why such coverage contracts could not become ubiquitous. After all if you want to use the latest invention on your property you are going to have to agree to such a scheme. If your farm isn’t going to enforce such rules on visitors then you aren’t going to be able to buy the latest farm machinery.

As for used books. Well the coownership in the book by contract could be dissolved by destruction of the book, or by return. In the case where the book is lost it may be reasonable to assume the original buyer can’t be found and so homestead the object but certainly the copyright owner can be found and retains ownership. Certainly if you knew who the original buyer was you’d be obligated to return his property. Why wouldn’t this apply to the coowner of the book, the copyright holder? Why wouldn’t the book be returned to him.

Now certainly the original buyer of the book can sell his co-ownership rights in the book at a used book sale. Those rights however never included the right to copy the book which is still owned by athe copyright holder so certainly the new owner doesn’t get full ownership. Instead the new owner is merely a coowner with the copyright holder as was the first buyer.

Libraries would also lend the books out on the basis that members of the library obey their obligations with regard to the books they take out.

So on and so forth.

The only objection that I’ve heard to this that sounds remotely reasonable is the worry that the copyright owner then by extension becomes the co-owner of someones brain who has read the book.

The answer to this is that in a sense he has in that you have agreed to some terms. The same can be said of any contract where you agree to something. In a way the person becomes a co-owner in you till you discharge your obligations with regard to the contract.

Likewise my owning a piece of property is in a way the ownership of a kind of control over everybody else. I get to say where they cannot go or what they cannot do with their bodies. Like they cannot get in my car and drive it away without my permission, or even pick up my pen. That’s a kind of ownership (ownership is control over something) that I have without any explicit contract.

So if you think that the copyright owners perventing you from copying his book from memory is a claim of ownership over you then your sort of right but only in a limited sense. The sense of saying something you cannot do with regards to his property. You cannot be and intermediate instrument in the copying process for which his book is input. You claimed you wouldn’t copy it and therefore he let you read the book for entertainment or other purposes only.

Ownership of the other person in this sense is very narrow in scope and is not tantamount to slavery, forced labor, or anything of the sort. You are not required to do anything but merely to refrain from doing something.

Posted by: Brian Macker at December 27, 2006 3:03 AM

Sasha,

I also agree that all this talk about how the rights of the owner of the innovative object must be violated in order to satisfy the “needs” of others to be straight forward collectivist argumentation.

I see that your examples are clearly designed to illustrate this and have no idea some others are not getting that point. What on earth do the needs of poor dieing Africans have to do with the property rights of others. They are free to do whatever they want with their own resources and a copyright holder not allowing them to use his resources for copying does not violate their freedoms in the least.

It no more violates their rights than me not providing the contents of the following sentence in these empty quotes. ” “. That was the cure for cancer and I don’t see how my not providing it in any way restricts anyones freedom to do what they want with their property. Even if they have the ingredents, which consist of an overripe banana, toe nail clippings, and a dog in heat. Sure people will die but that’s not the issue. They are dying right now because I refused to sell my house, move into a hut and send them the excess cash too. My not acting or not letting them copy my stuff in no way violates their rights, and forcing me to help them certainly would violate mine.

Posted by: Brian Macker at December 27, 2006 3:16 AM

Actually Brian Macker I have read articles to which Sasha Radeta is talking about. Namely the Big Bad Pharmaceutical Companies are using patents to protect their medicines, not copyright. This makes a big difference as patent are a monopoly on an idea and DO prevent any copies per se. In other words you are not allowed to create your own product from original ideas and materials. Hence these articles were talking The Big Bad Pharmaceutical Companies were suing African governments because they were importing cheaper generic Indian-made medicine. Hence the The Big Bad Pharmaceutical Companies were using international agreements on patents to keep their monopoly status whilst depriving the poor from getting cheaper alternatives.

A sad example for the existence of patent right indeed.

Posted by: Sam at December 27, 2006 3:41 AM

It matters exactly how the Indian company came to learn how to make the medicine. Did they steal a sample or not.

Seems to me that in a private market the hospitals and doctors trained under a particular medical association would have already agreed to any intellectual property issues on this. There is even the possibility that they would agree among themselves to a first inventor rule.

Of course, if the India company was able to develop this completely independently and there is credible evidence that they did so then I see no reason why they couldn’t sell.

Posted by: Brian Macker at December 27, 2006 8:54 AM

Unfortunately Brian Macker I don’t have any sources for such articles. But I do nonetheless believe patents creates total monopoly on a product and forbids ANY copies at all. Certainly in the field of medicine this is dangerous.

Posted by: Sam at December 27, 2006 8:59 AM

Fred,

“…ideas can be owned when they are turned into something tangible and physical.”

“Do I have to point out the blatant contradiction?”

Actually it’s not a contradiction. The idea is instantiated in the physical object. In fact ideas do not exist in this world unless instantiated in physical objects like your brain, a book, or an item exhibiting the idea.

Ideas in this sense can exist without any conscious knower. For instance, the sweet pea uses coiled tendrils as shock absorbers at it’s points of attachment to other plants. This idea of using coiled spring shock absorbers was instantiated in the plant (an in it’s genes) without any “knower”. Ideas are informational and that can be carried in many ways in this world. But always there is a physical object involved (light being considered physical also).

Because the information is carried in the attributes of the object and objects can have similar attributes the same information can be carried by multiple objects. When an object carries such information it is an instantiation of an idea.

Since the attributes of the object are part of it one owns them too. So one owns the instantiation of the idea as inherent in that object when one owns that object wholly. It’s quite possible that someone else also owns the idea as instantiated in another object.

One doesn’t own the “free floating” or platonic idea. That’s just an abstraction that really doesn’t exist and in fact one based on a false philosophy.

I think patent law is wrong in that it grants ownership over the platonic. Copyrights properly implemented do not suffer from such flaws. All that anyone owns with copyright law is the instantiations of the idea.

Posted by: Brian Macker at December 27, 2006 9:13 AM

Brian Macker,

“…They are dying right now because I refused to sell my house, move into a hut and send them the excess cash too. My not acting or not letting them copy my stuff in no way violates their rights, and forcing me to help them certainly would violate mine.”

That is an absolute crock, and I find that deeply offensive. No one is coercing you to sell your house or buy a hut because we are all implicitly assuming that your rights and dignity as a person are just as equal as anyone elses. In addition, no one even forces you to do R&D; or provide us with the formula for a pill for AIDS or Cancer. But you know what, people are smart, they observe the world around them and they figure things out.

If an African watches you use a pulley to lift a large block of stone, then he goes off and uses a pulley to lift his friend out of the river. Are you saying that you can own that idea, after all, I presume at one time a pulley was patentable too. Are you saying that you have the right to come along and cut that rope because usage of that pulley is your property. WRONG! Doing that will make you nothing more than a liar about what is your property and a cold blooded murderer. As someone whom I presume loves property and liberty, you should be ashamed at becoming so easily duped in the name of phony state imposed property rights.

Posted by: David C at December 27, 2006 9:27 AM

Cosmin,

“Is it your position that the ab machine company can come and shut me down?”

Sure but it depends on the contract you have with the parties involved. If the cable company required you to sign a document before you had access to the channel then sure. Such contracts could also be required before walking into a store, opening a catalog, etc. You would be considered a trespasser unless you agreed to such. Any information you gained in the process of trespass is not rightfully yours.

There is no reason why in an anarchist style society this might not be done in a more economical way. For instance, you might as a member of a religious organization, protection agency or some such other affiliation agree to obey certain rules regarding IP. Then the mere mention of the fact that you are an X would be tantamount to claiming you are “covered”.

I don’t see under such a system every owner of property wouldn’t insist that any visitors be a member of some such vetting organization prior to allowing you on their property.

I’ve very often said, “Be careful what you wish for” to anarchists and libertarians. It’s quite possible a libertarian society would be much more restrictive in nature than our current one.

You might be required to have certain affliations prior to being allowed anywhere, or to buy anything. I certainly wouldn’t want an uninsured driver tooling around on my private road. I wouldn’t want to hire someone to work on my property who wasn’t properly insured. However people might go further and require additional obligations before allowing someone in. Like being covered by an IP contract.

Posted by: Brian Macker at December 27, 2006 9:30 AM

David C,

Why on earth would you find that offensive?
Please tone it down a little since I don’t think anything I said warranted such abusive language. You don’t even understand my position and you are getting hot under the collar. Maybe more retorically than with real emotion but you are expressing yourself as if you are really angry. I hope not.

It is most certainly true that forcing me to sell my house and move into a hut so that Africans can have money for food would be a violation of my rights. I never said that such a situation was actually occuring and I don’t see how you got that out of what I wrote.

As a matter of fact my society does impinge on me in similar ways. I’m in the USA. When I do sell my house they do tax me on the profits and do send part of the money over to Africa to support AIDS programs. Thanks President Bush.

“If an African watches you use a pulley to lift a large block of stone, then he goes off and uses a pulley to lift his friend out of the river. Are you saying that you can own that idea …?”

I never said I could own the idea. Neither did the other fellow. I could certainly cover the pulley in such a way that it was hard to tell what was going on inside. Anyone I hire to thread or repair the pulley could be covered by contract.

Patent law as currently written is NOT supportable using such natural rights theory.

My beliefs are a little more sophisticated that what I have revealed. There are circumstances where one can break such rules without violating anyones rights. Like if I attempt to use my copyright to act in a criminal way or hide my criminal activities. If I invent the gun and then use it to violate rights then there is no reason you need to respect my property rights in the gun.

Posted by: Brian Macker at December 27, 2006 9:45 AM

Also, I don’t see how one “figures out” what’s in a pill by just looking at it. One would have to go trespass in a very intrusive way in order to use a rivals pill to develop your own “generic” version.

Posted by: Brian Macker at December 27, 2006 11:00 AM

Sam, You are correct in saying the following.

Unfortunately Brian Macker I don’t have any sources for such articles. But I do nonetheless believe patents creates total monopoly on a product and forbids ANY copies at all. Certainly in the field of medicine this is dangerous.

As Sasha and I have both pointed out, we are not justifying patent law as written.

I wasn’t making any claims about patents. I think patents step over certain lines that make them rights violations but only under limited circumstances. I came into this conversation late and was assuming that we were using this “Africa” example as a hypothetical. Hypothetically one could protect ones intellectual property rights in drug development via copyright-like contracts.

That doesn’t mean that is what the companies actually have done. There are only upsides to the current system from the point of view of someone who wants to freeload off the inventor of an idea. Copyrights are potentially eternal and do not require anyone to tell you how they actually did something. Patents are limited to a short timeframe and require the publication of the precise details of the invention.

The only people experiencing a downside from all this are individuals who are smart enough to invent the IP independently, and the people that person would have done business with (or given the idea away free to). So both the inventors right to produce and the his and others rights to free exchange are violated. If no one happens to be smart enough to figure it out independently then nobody suffers on account of another. No ones rights are violated.

The fact that someone could potentially help you where they have no obligation to does not mean you suffer on their account.

I’m not sure that in this concrete example of Africa and Indian companies whose rights were violated. That all depends if the invention was made independently without access to the original medicine.

Posted by: Brian Macker at December 27, 2006 11:22 AM

To be more clear since I see why some of you misunderstood what I said here:

“copyright holder not allowing them to use his resources for copying does not violate their freedoms in the least”

You must take the sentence as a whole with the conditional in bold. If you remove that part then the sentence is no longer valid since as I have explained in my prior post at copyright holder can use a copyright to violate the rights of an independent inventor and his customers or beneficiaries.

An independent inventor would be someone who did NOT use the copyright holders resources to copy his invention. By resources I mean any copy in which the copyright holder has coownership rights. That includes stolen and lost medicines, samples and the like.

Posted by: Brian Macker at December 27, 2006 11:32 AM

David C.,

BTW, I’m not terribly offended by your heated comments. I can see that Sasha had already turned to volume up here by implying you guys were a bunch of drunks. I think that was unfortunate also.

I shouldn’t have called your wording “abusive language” as that normally implies swearing. I hope you got my meaning. You were talking about me as if I was a moral degenerate.

I do think these concepts, the ones Sasha and I are trying to communicate, are easy to understand but have found them to be very hard to communicate or to even get clear in the first place. I think I did some original thinking in this area and hope that Sasha and others have learned something from me.

Posted by: Brian Macker at December 27, 2006 11:48 AM

Fred,

Yes to this question.

Well, what if I got you on tape saying “I’m going to copy Fred’s wheel device!”? Then can I sue you for damages when you use the wheel commercially? After all, you admitted on tape to copying my idea.

Posted by: Brian Macker at December 27, 2006 12:09 PM

David C.,

As an aside on a topic you have touched on here where I disagree with some other libertarians, like Walter Block, and so possibly you too. I get the impression you are in his camp on the issue of reputation when you say this.
“Yes! I could drive down the resale value of his house too by asking people not to buy it, that is my God given right. But if I drive down the resale value of his house by burning it down, that is not a right and completely violates him. So what is the difference? both caused him financial harm. The difference is that the 2nd act deprived him use of the house that was rightly his.”
Block holds that a person does not “own” his reputation. He thus holds that blackmail should be legal. Therefore he sees it as reasonable that you ask the seller of a house to pay you money for you to refrain from activities that might damage the resell value of his house.

Your above statement could be one method to hurt the resell value. You could say to the seller, “Pay me $100 bucks or I’m going to tell people not to buy your house”. This I don’t think is objectionable. After all who cares what you think?

There are however other ways you can damage the resale value of his house without, as you say, “depriving him of the use of his house”. I don’t think this criteria that you’ve used to diffentiate between what is allowed or not is sufficient to determine if you have violated his rights.

Block seems to think that any speech about another is allowed and will never violate anothers rights with regard to reputation. Block understands that yelling fire interferes in peoples abilities to contract out theaters but not seem to get that this extrapolates to reputation.

Certainly it violates no ones rights to yell fire at a performance if there really is a fire. However falsly claiming there is a fire interferes with peoples freedom of association and trade. By lying about a fire you are fraudulenting disturbing a free association and possibly a trade of goods.

How this applies to reputation is as follows. Certainly a person, X, does not own your opinion of him. You can certainly say “I hate X”. It’s quite another thing to say “X does A” when he doesn’t in fact do so.

If you were to say the false statement “X buys homes with termite infestations, camouflage the damage with wood putty and then resells the homes to unsuspecting buyers” to a potential buyer, Y, then you would be interfering not only with the seller, X’s rights but also the buyer Y’s rights. You are using fraud to interfere with their right to free association and trade.

Now it is certainly more complex than I have stated here. There are issues of what you should have reasonably known, and what you were attempting to gain. Making such a claim flippantly might run you afoul of some kind of negligence law, but attempting to extort money via blackmail would be a more serious criminal offense.

So I think Walter Block is both right and wrong. People don’t own what people think of them but that is not what reputation is solely about. Reputation is also about the conveying of information about others. Thinking someone else did something or has some attribute is quite a different activity than communicating that belief. Furthermore, communicating a truth is different than communicating a falsehood. It in no way interferes with anothers rights if you have made a mistake about them. However it might if you communicate that mistake.

It’s worse if you communicate something that even you do not believe. In either case it can be objectively determined whether you held you came to your belief in a reasonable manner and whether you were negligent in your communication of something as fact for which you had been intellecutally negligent in arriving at.

This can be as simple as hearing Suzy claim Bill had stole something and then repeating the claim with the modification of making it factual. Saying “Suzy claims Bill stole X” is fine, but saying “Bill stole X” is negligent. Saying “I saw Bill steal X” based on Suzies report is a further fabrication that goes beyond negligence.

When Bill complains about this slander we have determined that he didn’t steal X then we can question the slanderer “How did you come to that conclusion and what were your motives in communcating it?” I think you can see where this goes. Suzy will then be questioned, perspectives compared, and a decision made. Like any issue there is no guarentee that we will always make the correct ajudication but we do have an rational and objective means to proceed.

Note: I am not using the word objective in the sense of “absolute truth” but as the antonym of subjective.

So were you thinking that you can say what you want about anybody regardless of falsity? Did you think or do you still think that any action you take to reduce the value of anothers property is allowed just so long as you don’t deprive them of their use of their property?

Note these arguments also work with regard to talent. You can lie about someones personal attributes and have wronged them, trespassed against them, in the same sense.

Posted by: Brian Macker at December 27, 2006 12:55 PM

Sione,

I don’t think Sasha was equivocating or evading when responding to his opponents. There are more charitable explanations, like you didn’t understand him, or perhaps he didn’t explain himself well enough. I didn’t interpret his claims the way you did so I don’t think it’s his communication skills.

He’s correct in stating that he brought up property rights in farms for a different reason than you understood. He wasn’t making an improper analogy because his point wasn’t to make an analogy at all, but as he claimed to make a point about the collectivist nature of certain arguments being made.

Posted by: Brian Macker at December 27, 2006 1:02 PM

2 points. some people here have an amazingly formalistic, perfectionist, Randist view of how the world works. They can’t imagine information getting out without some contract being triggered and traceable. But a few counterexamples suffice. Just consider the countless people today who are generally aware of the plot and characters in Disney movies, Star Wars, Star Trek, Romeo and Juliet, and the like–without ever necessarily having seen it. You don’t have to hold in your hands a tangible owned/licensed thing to get information; someone can just tell you, or you can glean it from what you heare.

2. Consider the literal example of a candle, which was Jefferson’s example of the problems with IP. Let’s say Grog invents fire. He shares it with Blog, on the condition Blog not share it with anyone else. That way Grog can sell to others tickets to sit by the fire and keep warm at night. If Blog gives the fire to others, Grog is deprived of this earning opportunity.

Now, Blog agrees to this, but runs off and lights the walking sticks being used by a passing group of travelers. They are very excited to have this fire.

Soon, the news of this fire spreads like, well, wildfire. Soon cavemen all over the continent have fire. all started from this one spark of Grog’s. Now Grog is celebrated as the inventor of fire, but pats on the back is not what he wanted. He wanted to get money for tickets to warm by his exclusive fire; but he’s not selling any anymore. So alternatively, he wants a reasonable licensing fee of 1% from all fire-users out there. If they don’t pay, he will forcefully restrain them.

Now, befuddled Sasha simply can’t realize that in her talking about third parties, he has to either side with Grog here, or not. If he does, then he is leaving libertarianism. If he does not, the possibility of contractual copyright dissipates. He cannot realize this–too stupid or dishonest, not sure.

Posted by: Stephan Kinsella at December 27, 2006 4:46 PM

Let me write a parody of that response.

2 points. some people here have an amazingly formalistic, perfectionist, Randist view of how the world works. They can’t imagine property being stolen without some clues being found and traceable.

Consider today the countless people living on land that was expropriated from the proper owners. You don’t have to get this property from someone who has a proper land title. They can just give it to you after they have stolen it. Like we did to the Indians who had not proper titles.

Suppose Indian Grog owns a piece of land without a ny title but then rents it to Blog with a 50 year lease who then violates the agreement by sharing dividing the land amongs several others without paying Grog. Soon many others move in and Grog is powerless to assert his original ownership.

Think this is ridiculous well read Hernado De Soto, this even happens to people with written titles.

Grog returns to find he has been usurped.

Now befuddled Stephen can’t simpling realise that any talk third parties he has to side with Grog here or not. If he does then he is leaving libertarianism (after all any realistic action to restore Grog is going to harm individuals who had no idea they were stealing). If he does not, the possibility of contractual property rights dissipates. He cannot realize this–too stuipd or dishonest, not sure [which].”

That was fun. You will notice in the italics I make explicit an analogous issue which Stephan leaves unstated in his argument. He never explains why Sasha is leaving libertarianism land.

I think Stephan is making the invalid assumption that Sasha (or me for that matter) thinks that one right is as easy to protect as the next. It’s certainly more easy to protect your property rights in something you carry around with you all the time than something you have to leave behind. Same goes for IP. Some is easier to protect than others. That doesn’t mean the concept is invalid.

In fact it is implicit in the fact that even in the case of “fire” I could jealously maintain my invention if I believed that by sharing it I would no longer be able to keep it a secret. I could at least maintain my comparable advantage that way. I could build my fire where others could not reach it and then guard it as with any other property. People could still try to steal it but I have made it harder.

This is discounting the silliness of his example, the “invention of fire” is not the mere propagation of it. In reality the “invention of fire” is actually the ability to produce it at will. I can certainly hide the method by which I do so.

Eventually most inventions will be stolen and some sooner than others. The same goes for land and other property of a durable enough nature. The durability of the invention comes from it’s ability to be replicated.

As far as I’m concerned it’s a big “so what?”. Rights can be violated. That doesn’t make them invalid. Enforcing your rights takes resources. Again that doesn’t make them invalid.

Stephen makes this into a false dicotomy. Either Sasha agrees completely with Stephen or he’s leaving libertarianism. Nonsense, maybe he just doesn’t think the fact that people can violate rights effects the existence of those rights.

I think the last sentence of his post suffers from the same bad reasoning. The only two possibilities given are that Sasha is stupid or dishonest. No consideration of other possibilities like that Sasha is honestly mistaken, knows something Stephan has not taken into consideration, has been misunderstood, or the like.

I tend to get pissed went people misrepresent my positions to attack them. It’s intellectually dishonest. In reading the thread I saw people appearing to do that and it seemed that Sasha got upset and flippant. I don’t say that was right but I don’t know the history on this topic either. I think it was unfortunate that he let himself get riled as I’m not sure the misrepresentations were intentional.

I went to great lengths to make myself clear here and I think Sasha did too. Nowhere in our arguments is there any requirement that protection of copyrights be enforcible in all cases where they are legitmate. In fact Sasha when out of his way to point out that for some items (like novels) it is much easier to prove IP trespass.

The example of fire propagation has to be on the exact opposite extreme in terms of inability to prove origination. Fire doesn’t even have a definite shape. Furthermore it is created spontaeously in the environment. I hardly expect that Sasha would think one could copyright what is a natural reaction. One can certainly try to prevent people from propagating your own fire but without a monitoring mechanism it’s next to impossible to prove a violation.

BTW, even in this extreme case Grog can potentially obtain damages from Blog and potentially trace the propagation of that particular fire to a certain degree to assess damages, and stamp out fires of people who are proven to have gotten their fire via Blog. I don’t see how Sasha’s siding with Blog on this is in any way anti-natural rights. If it’s anti-libertarian well so much the worse for libertarianism, perhaps libertarianism is not compatible with natural rights.

Posted by: Brian Macker at December 27, 2006 6:02 PM

Some of these other utilitarian arguments can also be disposed of easily. Like the claim

“# If a researcher looses a monopoly on one patent, but in turn gains access to 10 million other patents – then that is a net gain for invention and for business, not a net loss”

If there is so much gains to be had for such a tradeoff then surely the market allows for people to organize voluntarily along these lines. In fact being a member of IEEE is an example of this. No reason that copyright sharing organizations could not evolve. The organizations membership terms could allow for derivative patents also.

Posted by: Brian Macker at December 27, 2006 6:12 PM

The blockquotes around my parody were misplaced. The were suppose to end where I said “that was fun”.

Posted by: Brian Macker at December 27, 2006 6:15 PM

Brian

You are making mistakes. Perhaps it’s you who do not understand.

Sasha introduced poorly constructed analogy and later denied he’d done so. He avoided addressing premise and principles and, at the time, evaded directly answering what had been asked of him.

Turning now to the example of Africans becoming sick and dying. You appear to hold the opinion that in order to save themselves the Africans have no right to copy and manufacture drugs or other therapies discovered, patented or copyrighted by Western pharmas. You’re well wrong there. Actually they do have such a right.

This is an ethics of emergency situation. In order to save their very lives the Africans can and should act. The question is, do the Western pharmas have the right to act to kill the Africans by preventing them from copying, manufacturing and utilising the drugs/therapies? Answer that!

Ethics of emergency is an interesting topic in philosophy. It relies on an existant hierarchy of thought (hence as it is a sub-set of a system of thought it should not be used in an attempt to derive an entire philosophical system- common error). Consider that rights are a specific recognition of attributes. They are a principle and as such are contextual. They too rely on an established hierarchy for their derivation. You should not make the mistake of applying them outside their context. Worth study.

Sione

Posted by: Sione at December 27, 2006 6:31 PM

Another point.

The case for copyright is not established by claiming that the nature of certain arguments opposing it are communist or collectivist. To make the case for copyright requires actually making a case for copyright.

Sione

Posted by: Sione at December 27, 2006 6:39 PM

Sione,

“Sasha introduced poorly constructed analogy and later denied he’d done so. He avoided addressing premise and principles and, at the time, evaded directly answering what had been asked of him.”

I read it and I disagree. It was obvious from the first post where he was going with it. He then explicitly explained himself further. Who are you to decide what his purpose was? I think he is the best witness to what he was thinking when he wrote it.The “net gain” argument is obviously a utilitarian argument. There are several ways to dispose of it. Sasha chose one obvious method.

I think it is an established principle of natural rights that we don’t force people to make choices based on utilitarian grounds. In fact, natural rights theory is in the deonlogical category which is considered by most to be antithetical to utiliarian philosophy.

You cannot argue that a natural right can’t exist because people on the whole would gain from it. It might be that overall utility would be higher if men were allowed to drug women and rape them while they are unconcious using condoms. That doesn’t mean it’s right.

Posted by: Brian Macker at December 27, 2006 6:51 PM

Sione,

“The case for copyright is not established by claiming that the nature of certain arguments opposing it are communist or collectivist.”

No kidding but it sure blows a hole in the other guys argument.

“To make the case for copyright requires actually making a case for copyright.”

Which has been done in parallel. You can’t be serious in your implied claim that no argument has been made for copyright. Frankly, at this point unless you have some whopper of an explanation for this I’m afraid I’m not going to have much respect for your honesty. You actually think Sasha didn’t make a case at all?

I don’t think either of your truisms are applicable to Sasha.

Here’s a truism for you that is at least applicable to your last post.

A complex argument cannot be refuted by mentioning a single counterpoint and then implying that was the only point made and the rest of the argument never existed.

Posted by: Brian Macker at December 27, 2006 7:05 PM

Sione,

You have absolutely zero basis for assuming my level of knowledge regarding the ethics of emergencies. I suggest you take my prior statement to heart. I’ll repeat it.

“My beliefs are a little more sophisticated that what I have revealed. There are circumstances where one can break such rules without violating anyones rights.”

The ethics of emergency do not neccesarily derive in the way you may believe, nor under the criteria you have set. Might just be the theory you like most is wrong. Might just be that your criteria for these valid emergency situations are wrong on that account.

Even when someone is in dire circumstances and they do meet the proper criteria there is an obligation of restitution to the violated party. If not then we can make slaves of others based on continuing emergencies.

I’ve written a fairly long comment on the web (over at catallarchy.net) about this topic that I could point you to if you’d care to read it. One commenter remarked about it:

“Brian, really excellent post. Too bad it is tucked away at the end of a long thread. It really should be on top somewhere.”

I don’t think that Africans have met the neccessary criteria that would allow their actions to be considered in harmony with extended natural rights theory. If they were in harmony it would be criminal for anyone to prevent them from alleviating their distress.

Here are some (not all) of the criteria these Africans violate with respect to American pharma companies.
1) They are not likely to be able to repay the people they are trespassing against.
2) They do not meet the criteria of proximity.
3) They may not have met the criteria of taking reasonble risks.
4) There situation does meet the criteria of being time critical.
5) The taking does not put the donor at appreciable time critical risk himself. I’m not sure the answer to this. Seems that the argument is for a continuous expropriation that does indeed endanger the existence of the company in that country.

Believe me I’ve had extensive arguments with other libertarians on the “Good Samaritan” issue and many accuse me of not being a libertarian based on my positions.

My position would be that if the Pharma companies had stocks of medicine in the African country or a actual presence there (that would satisfy proximity), and if the Africans had a way to repay them (insurance, charity, etc), and if their contraction of the desease was based on reasonable behavior then one could hold the pharma company criminally liable if it were to forcibly prevent the said victims from getting their hands on medicine.

That position has me in hot water with other liberarians. Notice I said it’s criminal not to provide the physical medicine and not merely the information on how to produce it. I would further argue that they would have a obligation to temporarily provide the know how. This is all temporary and contingent on repayment.

To put it in a more familiar scenario. If you are lost in the woods and stumble on my property you can take the minimum food and shelter neccesary to save yourself regardless of my wishes so long as you there is a reasonable expectation you can pay me restitution, and you advertise the fact you owe me.

Now if I am at my cabin and a reasonable person would hold that I can do without whatever you eat and that you are most likely able to repay me then it would be criminal for me to refuse to help you. If I blocked your access using my gun and you starved, or I just plain shot you to protect my property then I would be the criminal and not you.

I won’t explain how I derived these criteria as natural rights from the nature of man but I will say that it is my claim that I have done so.

I think if you expect that of me, to explain everything I know, then you are asking way too much of a comment section. I needs book length treatment. Furthermore, don’t assume I’m unfamilar with something till I tell you something about it. It’s really presumptuous of you to do so. I don’t care if your an expert in an area. I’m an original thinker and you may just not be familiar with my ideas.

As I’ve said above. If such natural rights are contrary to Libertarianism well so much the worse for libertarianism.

Posted by: Brian Macker at December 27, 2006 8:02 PM

Actually B. Macker I think most people over time have agreed that murder means to actively kill whereas to refuse life saving means isn’t. Hence direct euthanasia tends to be illegal whereas people have the right to refuse life-saving or life-prolonging medicine. This is also known as passive euthanasia. Therefore under traditional property-rights law if I found a starving person raiding my fridge and I shoot him dead, then I would be have justified as other person would be seen as a trespasser and a thief. Or likewise I could let starving person, begging for food outside my yard, die by refusing food without getting charged. Though everyone would probably not want to have anything to do with me afterwards!

Posted by: Sam at December 27, 2006 8:29 PM

Brian —

you’re confusing immorality with illegality.

> Notice I said it’s criminal not to provide
> the physical medicine

It is immoral to withold available medicine from a seriously ill man who’ll die without it.

It cannot be made illegal without making mockery of freedom. Placing obligation on anyone who didn’t do any wrong, against his will, is the same as enslaving him. Which is way more serious crime than refusal to help could ever be.

In any case, I refuse to give charity to anyone who demands it. Go sue me.

Regarding the “lost in the woods” scenario – it is possible for a strict libertarian to knowingly violate other’s rights by presuming that that other will accept the offered compensation making the transaction voluntary post-factum. The presumption can be wrong, though, so anyone making that presumption must be prepared to stand trial.

Shooting of someone who refuses to leave is quite different, though – there’s no longer any way for a trespasser to presume the owner will not mind. So he either leaves when the intentions of the owner are made clear, or violently resists the removal (in which case he’s shot for being violent trespasser, and not for helping yourself).

If someone just shots another person who wandered to his property without any reason to think that the trespasser intends to do grave harm immediately, he is guilty of extracting compensation way in excess of the aggression committed by the trespasser.

And, no, if I have a store of food and you try to gain access to it because you starve, and I don’t let you – I’m not guilty of you getting starved. You brought it to yourself by your own actions (not making sufficient provisions – or just plain being an asshole in trying to steal instead of politely asking for help). And I may have a reason to think that I need that food for my own family to survive – which I unconditionally value more than your well-being.

So don’t try that trick with me, or you’ll become one very dead original thinker.

Posted by: averros at December 27, 2006 8:52 PM

Brian Macker,

People like Sione understood my arguments just fine… They just choose to continue with misinterpretations in order to create an appearance of a debate.

David C will keep assuming that someone who is obligated by copyright will just sell him a used book without any copyright contract, “in international waters’ : ) He just wants to provide a response, no matter how absurd it is. That kind of nonsense will continue no matter how many times I refute it.

People like Stephan Kinsella will keep using “invention of fire problem” as their pseudo-argument against copyright contract, in spite of the fact that you can never prove that someone did not discover fire accidentally, or on their own. Products like these would never be a subject of copyright – and he knows it. He just pretends he created a counter-argument so that good people who don’t bother to read 100 responses may assume he had something to say. Oh… by the way – I responded to their “third party” nonsensical “arguments” more than they could count and they still dare to mention it again. It is hard for them to accept that tort liability could apply to those who create damages for a side in contract… and that there is a horrible difficulty of defending yourself from trespass when you are caught making profits with someone else’s property. But Stephan Kinsella will ignore all this and keep soothing his aching ego by pretending he is still creating some arguments.

—–

I don’t have time to read all these responses, but I saw that this discussion has taken a turn toward the issue of “limited privilege in cases of necessity.” No matter what position you take regarding this matter – it has nothing to do with the validity of free-market contracts in all other cases. Book authorship, for example, is normally not a situation in which someone’s life depends on it – and it does not invalidate copyright as a voluntary, free market relationship that regulates use of someone’s product and specifies damages (or entitlements) in cases of trespass.

Posted by: Sasha Radeta at December 27, 2006 10:36 PM

Sasha,

People like Stephan Kinsella will keep using “invention of fire problem” as their pseudo-argument against copyright contract, in spite of the fact that you can never prove that someone did not discover fire accidentally, or on their own. Products like these would never be a subject of copyright – and he knows it.

This is just a lie; by “copyright” Sasha means something unknown to date and defined by the advocates of this idiosyncratic and sui generis right, since they say they do *not* mean by it patents–the institution that covers inventions now–nor modern copyright, which does not cover inventions at all. Instead they mean some novel form of de facto property right created somehow by people stamping the word “copyright” on the outside casing of “inventions” they are “selling” to others–despite the legion of state-created rules and court rulings needed to try to come up with a workable way to adequately define a particular “invention”. They assert this “contract copyright” mode of invention-protection would work… and then they assert that mystified outsiders know exactly waht it would and would not cover. Funny. Nice.

The truth is there is no reason in principle fire itself could not be an invention. Sasha does not here even attempt to show why it would not be. He just waves his hand and assumes it’s not, to avoid an obvious counterexample.

He just pretends he created a counter-argument so that good people who don’t bother to read 100 responses may assume he had something to say. Oh… by the way – I responded to their “third party” nonsensical “arguments” more than they could count and they still dare to mention it again. It is hard for them to accept that tort liability could apply to those who create damages for a side in contract…

It is ridiculous and dishonest for you to keep trotting out this nonsense. It is simply amateur and confused. Your little internal amateur-legal universe has it that if a third party uses an idea in the public domain that some party to a contract should not have released, that the third party is committing a tort somehow. This is not only question-begging, not only obviously unlibertarian–but stupid.

and that there is a horrible difficulty of defending yourself from trespass when you are caught making profits with someone else’s property.

Ding ding ding! question-begging, anybody?

Posted by: Stephan Kinsella at December 27, 2006 11:18 PM

Again, Stephan is resorting to some childish name-calling, without offering any ideas or substance. He now talks about “the legion of state-created rules” even though Rothbard was totally against this and he showed why this system is inefficient and unnecessary. He now insinuates that perhaps the greatest enemy of the state is actually statist, and that all these wonderful collectivists on this blog are somehow libertarian.

Of course, he has a difficult time to prove how contractual copyright would not hold in a free market, since it would be a voluntary agreement that restricts the use of some private property. He is enraged by the fact that his “third party” objection was refuted by the simple application of tort law, so now he completely lost control… Kinsella also has a hard time by the fact that the only problem with patents is to the extent that they go beyond copyright – because they punish independent discoveries that are not replicas of someone else’s product, but a coincidental product of same reasoning. That’s too confusing for Stephan Kinsella, so I wouldn’t be surprised if he falsely assumes one more time that you could have a copyright on fire – or that the “third party” could simply violate someone else’s contract.

I calmly accept all of Stephan’s name-calling, because I understand his frustration… but if he finally understood the economic definition of scarcity (among many other things he encountered in our previous discussions that produced this “bad blood” between us) – it was all worth it!

Many regards and I appreciate everyone’s time and energy.

Posted by: Sasha Radeta at December 27, 2006 11:59 PM

“Ding ding ding! question-begging, anybody?”

Question about what? About the fact that if I get caught with your personal laptop computer, while trying to sell its commercial use, I will have a difficult time proving that I just found it in a place where you likely did not intent to put it and look for it afterwards – if you on the other hand claimed that it was stolen or even misplaced (and I did not allow to find it by taking it). Would I get myself into such commercial endeavor, knowing the risk of theft claim, which could result in huge damages from violations of copyright? Do you even need to ask a question like that? On the other hand, if that item was misplaced and not lost, than no controversy exists and finder would be prevented from using it in any way (unless the person who misplaced it demonstrated negligence). Should I even explain why or should I not insult anyone’s intelligence?

Posted by: Sasha Radeta at December 28, 2006 12:30 AM

One thing I know for sure: anyone who posts things like “I’m an original thinker” is not ever going to post anything worth reading. (Usually this is the sort of person who thinks up wonderful ideas like blowing up the moon to change the earth’s orbit and thereby improve the weather)

AFAICT, this whole thread is about Sasha, and now Brian, confusing property with selling stuff.

Posted by: Peter at December 28, 2006 1:01 AM

Peter,

I am not confusing anything. “Selling stuff” implies seller’s ownership over stuff that is sold. Allowing only a personal use of someone’s product (in exchange for money and title on specified damages) and contractually restricting its commercial use – is what confuses you. You didn’t reach that far in analysis of how private property rights apply to our lives, especially in terms of contracts.

By the way, are you the same Peter who claimed to that Rothbard, if he were alive to read this thread, would say that he was wrong on his basic application of private property rights? The same Peter who compared Stephan “Scarcity” Kinsella to Mises and Rothbard? No further comments.

Posted by: Sasha Radeta at December 28, 2006 1:21 AM

Sasha

Come now! You have not answered me in any detail at all. Careless use of terms such as “self-evident” or “common sense” are reason for concern. That’s when the bullshit detector alarm activates.

Copyright is not “self-evident” in that it cannot be derived and validated ostensively. It is an idea that relies on a deductive process of thought to establish. That means it may be that the derivation you use contains errors of logic or even falsehood. Similarly, a relationship between copyright and real (or chattel) property is certainly not proven “self-evidently”, but, if the feat is possible at all, could only be accomplished by application of deductive logic referent to reality. Again, there may well be errors in your approach. I’m interested in finding out more to see if this is the case. Examining essentials could be a good way to resolve the issue. As for “common-sense”, in your recent post to me the term was employed in such as way as to avoid consideration of premise, definition, derivation and validation- a common enough polemic technique, although hardly sensible. It establishes nothing. Mere puff. You should avoid doing that. Anyway, let’s stick to the topic and see where this goes.

You write: “If you own something, you have a right to sell it or contractually arrange someone else’s use of it.”

OK. That seems fair enough. The statement relies on some un-stated premise. To have the “rights” you mention first it is necessary to have ownership. Fine. Secondly, the “it” to which you refer must be property. That is, it is an entity that can be owned by an individual. You agree? If so, there are some other questions that should be asked. We can investigate some of them as we go. For the moment, let’s consider your example of what can be subject to copyright.

According to you, painting a store in a certain shade of yellow does not qualify for copyright protection whereas writing a book does. What does that mean? It means that some ideas or product thereof are “property” and some are not. The differentiator is supposed to be a matter of proving beyond reasonable doubt that one has independently “discovered” something (!)*. In practice it means that relatively complex “discoveries” are property while relatively simple ones are not (since they can’t be proved to be the “property” of an individual beyond reasonable doubt). The separation is arbitrary. Interestingly the test (b-r-d) is relative. Another problem we can get to later. For now I’m interested in that arbitrary division.

*It also means that discoveries such as E=mc2 are copyrightable. That’s a problem in itself.

At this point I reckon it’d be a great opportunity for you to explain how you’d go about deriving from first principles your copyright idea given the apparently arbitrary distinction you make between that which is copyrightable and that which is not. You need to state premise, definitions and proceed logically. Consider also the derivation of what conditions must be met for something to be regarded as property.

What you do not need to do is buggerise around introducing faulty analogy, critique of competing arguments and baseless claims (like “I already answered this in great detail” because you have yet to so do). First principles remember.

Sione

Posted by: Sione Vatu at December 28, 2006 3:56 AM

Gosh Brian you do have such an inflated view of yourself. Gotta love the I-know-more-than-I’m-tellin-ya’ll-so-I-must-be-right approach. It goes well with the &-I-aint-telling-you-what-I-know-either nonsense. What sort of soft cock idiocy is that? Vacuous. Intellectually weak. You need to do better!

My “assumption” (your term) about your knowledge about ethics of emergency is based on your somewhat shallow treatment of the African pharmacology case. Among other things you neglected the emergency aspect. I drew your attention to it. My comments were general and intended to warn you that a case for the Africans to copy pharmaceuticals can be made on the basis of ethics of emergency. BTW that’s only one argument, there are others (such as invalidity of copyright/ patenting etc.) but emergency will do for now.

After some puffery and ego primping you eventually get down to business with this statement:
“Even when someone is in dire circumstances and they do meet the proper criteria there is an obligation of restitution to the violated party.”

The obligation of restitution exists within a certain context. A dying man has no need to consider it at the time of his dire emergency. He may consider it later on when (or if) the emergency has passed. He is at all times restricted to act within his resources and abilities.

You wrote:
“I don’t think that Africans have met the necessary criteria that would allow their actions to be considered in harmony with extended natural rights theory. If they were in harmony it would be criminal for anyone to prevent them from alleviating their distress.”

Whether you think a dying man/men in an emergency meet your “criteria” or not is irrelevant. Your “extended natural rights theory” is likely wrong anyway. In the case where a man or men are facing death they can and should act to avoid it. In this case the question is whether some pharma has a right to prevent them from taking the necessary action (copy, manufacture and distribute the drugs/therapy). I note you evaded answering this question directly although it appears your answer would be, “No, let them suffer and die.” Further, I note your premise that molecular structure (as opposed to specific molecules) can be owned as property.

You wrote:
“To put it in a more familiar scenario. If you are lost in the woods and stumble on my property you can take the minimum food and shelter neccesary to save yourself regardless of my wishes so long as you there is a reasonable expectation you can pay me restitution, and you advertise the fact you owe me.”

Not correct. There may be an obligation for an attept at restitution if such action is possible but if the individual concerned can’t provide it, then it can’t be provided (he may be so debilitated or impoverished after his ordeal that he cannot make restitution). The test of a reasonable expectation of payment is erroneous. Your additional requirement for advertising is baseless and silly (you made that bit up didn’t you). The test of survival in an emergency is the measure.

You wrote:
“Now if I am at my cabin and a reasonable person would hold that I can do without whatever you eat and that you are most likely able to repay me then it would be criminal for me to refuse to help you. If I blocked your access using my gun and you starved, or I just plain shot you to protect my property then I would be the criminal and not you.”

Which is why I would be completely correct to execute you should you provide a threat to my continued existence as a living human being. I’d be sorry to have to do it though.

—

There is a problem with people arguing from hidden premise, principle, context and definition as you are attempting to do. For example, terms like “natural rights” can mean many things. In this case I know not the specific details of what it is you are raving on about since all you care to do is claim that you know something or other about something you label “natural rights” and something else you call “extended natural rights”. In the end your argument boils down to ego stroking and unsupported opinion in equal measure. Trivial. To be taken seriously you need to do much better. Lift your standard.

Sione

Posted by: Sione at December 28, 2006 4:10 AM

Is the issue of copyrights/patents about the inventor about getting an ongoing reward for doing something?

My scenario:

Suppose Andrew develops the cure for cancer but has no business sense whatsoever and puts the cure on the shelf to gather dust. Then Bert, who isn’t an inventor but has good business sense, visits and upon finding Andrew has the cure for cancer, gives $50 for the vial and goes home. Bert then with investor funding and stuff builds a large factory and distribution centre with which he mass-produces vials and sells them cheaply to the masses. Does it not stand to reason that Bert is the hero because he gave everyone the chance to be cured of cancer? Whereas Andrew should only get a one-off fee since he couldn’t do anything with his invention?

Hence are patents and copyrights are false because the true heroes are the mass producers and distributors of goods, whereas inventors shouldn’t get ongoing rewards for a brief moment of insight?

Posted by: Sam at December 28, 2006 4:18 AM

“Hence are patents and copyrights are false because the true heroes are the mass producers and distributors of goods, whereas inventors shouldn’t get ongoing rewards for a brief moment of insight?”

Maybe the real heroes are the workers, so maybe they should unite.

We are talking about ethics here. Natural hence objective ethics.

But this example sheds some light on a question Sione asked.

“You write: “If you own something, you have a right to sell it or contractually arrange someone else’s use of it.”

Say I thought of a novel. Word by Word. I didnt put it on paper yet, not to confuse the situation.

Does it exist?

Yes.

Who has it?

I do.

Can I do something with it?

Yes, I can forget about it, or put it ona paper or tell it to someone else.

Can someone else do something with it before I tell about it?

No. Because no one knows about it.

Does this situation means I have total control of it?

Yes.

What does ownership mean?

Having total control.

Hence I own the novel.

End of story.

Ideas can be owned.

Knowledge can be owned.

By the definition of ownership.

Keeping it away from theft is a technical issue.

And deciding on theft or independent discovery is not arbitrary.

It is just harder on IP thats all.

Posted by: ktibuk at December 28, 2006 8:25 AM

Sam,

You are not reading our arguments carefully, or you choose to create yet another false argument.

Copyrights are not about “rewards” for those people that you consider heroes. It’s about respecting contractual obligations and someone else’s property right, if that person chooses not to give you a commercial use of his item, specifying damages (in the amount of produced unauthorized copies).

But if you are concerned about rewards, use simple demand and supply analysis to figure out what will be the incentive of people to pay for new invention if they know it will become so easy to copy that supply will be enormous (prices approaching to zero). But that’s not our major issue – we’re talking about legal basis for copyright v. patents in a perfectly free-market scenario.

—-

Sione,

Finally you stop busying yourself with the attempts to prove that my statements mean something other than I said they do.

I explained the simple property right basis for making a contract that prohibits someone’s commercial use of my product. To that you only said “fair enough.” Can I now assume that you accepted the private property rights behind such contract? Now you are shifting toward the alleged problem of enforceability of copyright in a free market.

I accept that my explanation of copyright is not a “common sense” – but you simply are not telling the truth when you imply that we did not examine many alleged problems with copyright. Many attempts were made to disapprove the possibility and enforceability of such private contracts and I applied deductive logic referent to reality in order to refute all these attempts.

Also, I repeated many times that only something that can be owned can be copyrighted. That’s why I insisted that copyright pertains to restrictions in commercial use of physical property – not the “idea theft” per se. I don’t understand why you go back to that issue, since I extensively covered it on this blog.

You obviously didn’t read these discussions, but you were willing to jump to conclusions and ask the question which was answered before.

Sione said:
>>In practice it means that relatively complex “discoveries” are property while relatively simple ones are not (since they can’t be proved to be the “property” of an individual beyond reasonable doubt).

It does not have to be, since even complex discoveries can be based on well-known scientific knowledge and they can produce the same results with completely independent efforts, without unauthorized copying (the invention of radio issue and other patent controversies). On the other hand, something as primitive as a copy of Paolo Coelho’s writings can easily be proved to be an unauthorized copy, rather someone else’s identical rambling.

There is a huge difference between Kinsella’s argument of “fire invention” (which can be easily proved to be the result of some independent or accidental discovery that even occurs in nature – and some revolutionary scientific discovery.

It is not up to you to decide what truly independent discovery is and what trespass (unauthorized use) was! That is not a “problem” with copyright at all. There are many disputes about private property – but that does not mean that property should be abolished (go back to example in which Kinsella argues that he found my abandoned or lost item – and I claim that it was stolen).

It is the courts’ job to decide what the circumstances of each case are and whether there has been a contract violation.

PS
If you anything about E=mc^2 – you would know that it was not Einstein’s original idea but something based on common body of knowledge – although he had a right to “copyright” his particular writings that pertained to this formula, as he did (although some argue that even these writings should be credited to his first wife Mileva Maric, but that’s another issue). Anyway, just as in the case of radio (Tesla v. Marconi), there were several other papers that independently reached the same conclusion as Einstein’s paper – but they didn’t violate its copyright. http://en.wikipedia.org/wiki/Relativity_priority_dispute

Is this an evidence of a problem with copyright? Not at all… It just demonstrates why patent monopoly is unjust compared to a free-market based copyright (which does not punish independent discoveries).

Posted by: Sasha Radeta at December 28, 2006 9:28 AM

Well Sasha Radeta I was just presuming that this would be the standard Libertarian AGAINST patents and copyrights. Isn’t the standard argument that Ps & Cs are false because they are a monopoly right enforced by the State, hence extortion of sorts? I was exploring whether it is the invention that is important or the mass production and distribution that put the invention into the hands of the masses. A real life example is Coca-Cola , where the inventor didn’t know what to do with the recipe and sold it for a song to someone who could do something with it. Who then gave the world Coca-Cola the first guy or the second guy?

Perhaps in a free-market scenario Ps & Cs wouldn’t be necessary if inventors had good business sense since if they had a new idea, built a company around it, would get a big head start over someone else who has to take time to figure out how the new thingy worked and take more time to create a production business to produce the new invention.

Posted by: Sam at December 28, 2006 9:56 AM

Sam,

It really has little to do with “business sense”. Even with copyrights and patents the writer or inventor could still get snookered. In fact many have.

Posted by: Brian Macker at December 28, 2006 10:26 AM

Sione,

The subject at hand was intellectual property. Sasha, and I have addressed every point you guys have brought up on that issue. You have not been able to mount a defense and instead have become irrational. It’s quite apparent that you think you are defending some moral intuition you have but are totally unable to defend.

My character was attacked here several times. So was Sasha’s. I put up a defense against your claim that I am ignorant and now you accuse me of be arrogant. It’s quite apparent that you only wish this to degrade to the point of name calling. I don’t see how any of this name calling is supporting your arguments.

Posted by: Brian Macker at December 28, 2006 11:06 AM

Peter,

“One thing I know for sure: anyone who posts things like “I’m an original thinker” is not ever going to post anything worth reading.”

LOL! Is that you way of sticking your fingers in your ears and holding your breath while screaming “I’m right!”

“AFAICT, this whole thread is about Sasha, and now Brian, confusing property with selling stuff.”

Care to actually support this ridiculous claim?

Posted by: Brian Macker at December 28, 2006 11:21 AM

Sione,

My “assumption” (your term) about your knowledge about ethics of emergency is based on your somewhat shallow treatment of the African pharmacology case.

We were giving it shallow treatment because it’s pretty much irrelavent. I already told you here on this thread that I was treating it as a hypothetical. We are not discussing this issue at all. Maybe you got defeated on some other thread and can let go? I haven’t a clue but it isn’t important to the topic.

“I note you evaded answering this question directly although it appears your answer would be, “No, let them suffer and die.” Feel free. Isn’t this what you’ve been doing all along. Not reading what was said, making things up an putting them in the other guys mouth, and insulting them.

Further, I note your premise that molecular structure (as opposed to specific molecules) can be owned as property.”

I said no such thing nor is it implied by what I’ve said, if you understood it.I’m going to have to disagree with Sasha. You don’t understand things fine.

Posted by: Brian Macker at December 28, 2006 11:42 AM

Averros,
“you’re confusing immorality with illegality.”
No, I’m not. I’m discussing justice. Did you read the linked article or not? If not then don’t bother commenting. I said that this requires a lengthy treatment.

This isn’t purely about charity. Don’t get trapped by words. It’s more about freeloading than charity.

Posted by: Brian Macker at December 28, 2006 11:54 AM

ktibuk

Interesting.

You write: “Say I thought of a novel. Word by Word. I didnt put it on paper yet, not to confuse the situation. Does it exist? Yes.
Who has it? I do. Can I do something with it? Yes, I can forget about it, or put it ona paper or tell it to someone else. Can someone else do something with it before I tell about it? No. Because no one knows about it.”

Say another person thinks up the same novel, same plot line, same characters etc. Is the novel still yours? Do do you “own” the other guy’s idea? Do you “own” the content of his brain? Or is it the case that he “owns” the content of your brain? Oh oh.

He writes it down. Do you still “own” it? He sells it. Do you “own” it then?

Moving on. You ask: “What does ownership mean? Having total control.”

So as soon as you don’t have total control you don’t have ownership. Of course, that sinks the copyright idea totally!

There is a problem with the approach you applied. It appears to reside in the nature of what property actually is and the conditions necessary for an entity to be recognised as property. Given that ideas can be generated by multiple people simultaneously and that they can independently generate the same ideas (or ideas that are very similar), can it be said that an idea is able to be owned in the sense that it is property? To support such a claim would require a thorough logical argument from first principles. That’s something I am interested in seeing (if available).

Sione

Posted by: Sione Vatu at December 28, 2006 12:54 PM

When people buy something, they own it. When they own it, they can do anything with it.
Sasha and Brian introduce the idea of contractual copyright or co-ownership (which is somehow not collectivisation, which they hate) in order to allow the seller to specify the allowed uses of the product.
They want the state to enforce this, because, after all, who in their right mind would agree to be bound by a contract that would abrogate against their will the use of a product they bought?
Let me clarify with an example:
Person A has Product X for sale. Person A imposes condition M as necessary to the transaction.
Person B wants Product X. Person B doesn’t want to be subject to condition M. However, Person B wants Product X. Person B promises to abide by M, while keeping his fingers crossed (knowing full well he won’t respect condition M). Person B then leaves and enjoys use of Product X.
Person A finds out person B didn’t satisfy condition M. He demands reparations.
Person B contends Person A had no right to set conditions (other than payment for acquisition) that would limit the use of Product X by Person B in the first place, and especially that Person A has no right to make use of force (his own or the state’s) to enforce any such condition.

So who is right? According to Sasha, condition M could be anything. It has to be respected simply because A imposed it, no matter how bizarre. Condition M can be: having to twist one’s own moustache while making use of Product X, or standing nude while enjoying Product X, or something else even more bizzare, such as not opening product X to understand its inner workings.
(Obviously, once Person B has this understanding, he can duplicate Product X and noone can deny Person B the right to make use of his own understandings, so Person A tries to impede acquisition of said understandings by Person B.)
Well, if Person B wants to understand the inner workings of Product X, he would obviously not voluntarily agree to abide by a condition that would deny him that. Such can thus only be enforced by government.
Sasha says B should then not buy the product. I say, since Person B doesn’t recognize the right of Person A to set such a condition, then he can very well buy the product. From his point of view, the product has no condition attached, just like those of any competing product, sold by a Person C, that didn’t impose a condition M or N.

Posted by: Cosmin at December 28, 2006 1:54 PM

Sam,

You are mistaken about libertarian argument about copyright. It has nothing to do with “rewarding” anyone’s heroes. Read more Rothbard and how copyright contracts are connected to private property right.

—-

Sione,

Are you also confused about private property rights when it comes to leasing, renting and sale of certain uses of some product? The fact that the owner contractually arranged that someone else uses his property in ways that they agree upon does not mean that he relinquishes his property right.

Anyway, that does not answer the following: how can you possibly make a contractual obligation about the purchase of some product use – and than simply decide to break your contract and “upgrade” your services. Could you just “upgrade” your services on an airline without even asking for permission?

—–

Cosmin,

You started to insult the intelligence of everyone present here.

In your absurd and irrelevant example you say that a person has a “right” to “cross his fingers” and just break whatever contract he agrees upon. Well, that is just not how it works in a free-market economy, because contracts are based on exchange of real property titles – not on some empty promises. This is the basis for the rule of law and private property rights.

If you say that you will paint my house tomorrow and give me $1 dollar now if I give you my bicycle – you cannot say tomorrow: “Oh, I crossed my fingers yesterday about painting your fence… I think that $1 is good enough for your bicycle.” Don’t you see a problem here? Now you have only one side determining the final exchange values (price) and you are totally disregarding the agreement that was achieved with other side (myself) when I gave you the property title over that bicycle. You in fact committed a fraud and theft.

The same goes with my airline services example (I dare you to upgrade to the first class for the price of the coach)… or any kind of contract… rental or labor.

You keep thinking of some bizarre conditions – and I say “YES,” people should be free to think of any bizarre conditions they want – if they find someone who is willing to satisfy them. The only thing you can’t do is to force someone to work in order to satisfy a contract (slave contracts are invalid from the beginning) – but you can insist on other compensation for undelivered services.

Do you think that by making those conditions bizarre, you are proving anything???? Bizzare is in the eye of the beholder. To me, Kelly Osbourne is totally bizzare, but to someone else she totally “rocks.” But you keep forgetting the lesion of the law of demand and supply: what prevents people from charging a million dollars for a loaf of bread. Well – demand and supply conditions prevent them from doing it. People will just walk away from such stupid seller and go to someone else. The same would likely happen to a seller in your nonsensical example. Anyway, that has nothing to do with the legal validity of free-market copyright agreements.

If you think that rent or co-ownership has something to do with collectivism you have some serious problems with your logic. Furthermore, you don’t realize that you advocate communist collectivism when you claim that people should just violate some voluntary free-market contract based on their need. You openly state that someone’s exclusive property rights over commercial use (that that person never sold away) mean nothing to you.

Not even Stephan Kinsella tried to argue something that far left – and he tried instead to prove that these completely valid contracts would be broken by some third party.

Posted by: Sasha Radeta at December 28, 2006 3:47 PM

Peter> One thing I know for sure: anyone who posts things like “I’m an original thinker” is not ever going to post anything worth reading.

Where is James Redford and his “babies?”

SR> As I already explained – ideas can be owned when they are turned into something tangible and physical.

Your “explanation” wasn’t persuasive. It was silly. So still, it is nothing more than a bald assertion. The trouble for you is that everything depends upon this foundation. If you assert the positive, then you have to make the case.

SR> …but if he finally understood the economic definition of scarcity…

*You* saying that — it is as funny now as it was the first time.

BM> You can’t be serious in your implied claim that no argument has been made for copyright.

No persuasive (worthwhile) argument has been made. That is the distinction.

BM> You actually think Sasha didn’t make a case at all?

No, not at all. I have nothing against his idea that parties can form a private contract that by essence is one of non-disclosure/non-replication. Indeed, such private contracts occur everyday. He thinks that such contracts are binding on people not party to the contract. They aren’t.

BM> I think this is addressable … with co-ownership of the property in question.

I will simply point out that a collectivist approach to property will not be convincing to many mises.org bloggers.

BM> The idea is instantiated in the physical object. In fact ideas do not exist in this world unless instantiated in physical objects like your brain, a book, or an item exhibiting the idea.

Hey zeus eitch crisco! An idea is not instantiated in a brain. IP proponents don’t *really* care if the idea is in “someone else’s” brain. What they really want is for no one else to *act* on an idea they perceive as “theirs.” I mean, what would a judge order? “I order you to forget.” — Da Judge

Tangent:

Sam> I think most people over time have agreed that murder means to actively kill whereas to refuse life saving means isn’t.

Murder includes “actively kill;” it is a necessary but not sufficient condition for a murder conviction. Self-defense may include an “active killing,” but self-defense is not murder.

Posted by: greg at December 28, 2006 4:11 PM

I’ve written a play. It’s copyrighted so don’t try to steal it. 🙂

Avis Rental: Ok, your credit card when through. Here’s the keys to the car. You can pick it up in the back. Please return the car in a week with a full tank of gas. Check the car for damage now because we expect you to bring it back in the same condition.

Cosmin: Wait just a damn second there. What’s with all these conditions? I paid for the car. I own it and now I can do any damn thing I please with it.

Avis Rental:No sir you didn’t buy the car. You rented it.

Cosmin:I say I bought it since I don’t recognize your right to set such a condition as returning it in a week. From my point of view, the car has no conditions attached, just like those of any competing product, sold by a car dealer, that didn’t impose this annoying condition of returning it

Avis Rental: But sir …

Cosmin: You didn’t have the right to impose such conditions in the first place. Who in their right mind would agree to be bound by a contract that would abrogate against their will the use of a product they bought?

Avis Rental: Sir…

Cosmin: I do enjoy your prices however. Your prices are way better than Honda.

Avis Rental: But Sir you signed a rental agreement. This is a rental.

Cosmin: Sure, I promised to abide by the conditions but you didn’t bother to look behind my back.

Avis Rental: Why would I do that?

Cosmin: To see if I had my fingers crossed. I did have them crossed so you lose. LOSER!

Avis Rental: Sir, if you do not return the car in a week we will call the police.

Cosmin: I see now what you are up to. You want to use the state to enforce this! Outrageous! If you can’t enforce this yourself well then you shouldn’t be making such conditions. You can’t think I’m in my right mind to agree to conditions like that! That’s why I crossed my fingers.

Avis Rental: Look, I’m not waiting. I’m calling them right now. We’ve had these conditions in place since our companies inception. We owe it to our stockholders to enforce these conditions so they can earn a profit.

Cosmin: Stockholders?!! That’s collectivization! What are we living in Russia! You want to call the cops? I dare you!

Avis Rental: I will. Give me the keys.

Cosmin: I double dare you!

Avis Rental: Hello, is this the police. Yeah, well this is Avis Rent a Car. I just rented a car to this nut but he insists he bought it and won’t give back the keys.
It is just that silly. It’s like Cosmin has never heard of renting, leasing, joint ownership through stocks, partnerships, mineral rights, rights of way, encumberments, hunting club membership, co-ops, condominiums, preferred stocks, or stock options. If he has he thinks it’s collectivism.

I’m convinced I’m talking to an eight year old who found a book by some militia group out of Texas. Next he’ll be kiting checks and declaring that the Texas state government is unconstitutional.

Posted by: Brian Macker at December 28, 2006 4:22 PM

What the heck is with the blockquotes on this site? Keeps stripping the end blockquote out even though it shows fine in the preview. Oh well. I’m going to stop using them.

Posted by: Brian Macker at December 28, 2006 4:25 PM

Greg,

Saying that my explanation is silly does not make it so. You failed to make a single logical argument against my position, which is completely and consistently based on private property rights. It is not my goal to persuade every (differently able) individual here, since that would be an impossible task.

GREG SAID:
———
“I have nothing against his idea that parties can form a private contract that by essence is one of non-disclosure/non-replication. Indeed, such private contracts occur everyday. He thinks that such contracts are binding on people not party to the contract.”
——–

Super! You just stood against Sione’s and Cosmin’s attempts to prove that private contracts of that sort are somehow invalid.

By the same token, I never claimed that such contracts are binding on people not party to the contract. That’s a rather ridiculous lie, since I repeated many times before that third party can only be responsible for >>TORT

Greg now repeats ridiculous statement that co-ownership (I guess any partnership or renting) means “collectivism”… while, on the other hand, freedom to violate some private contracts and property use based on “needs” is not collectivism? How absurd.

What Greg cannot get over is the fact that copyright proponents do not need any of those silly notions he tries to impute them… like “owning ideas in someone else’s brain”. As Rothbard brilliantly explained – copyright is simply about creating terms of use over your physical property – in a voluntary, free-market exchange of property titles.

Posted by: Sasha Radeta at December 28, 2006 4:35 PM

Brian,

I enjoyed your play. These people equate property with sole proprietorship – and they think that their needs-based collectivism is “libertarian” (actually, anarcho-communists label their views as “libertarian”…. so they perhaps found some wrong pages on Google when they tried to create their argument : )

Anyway, watch for Sione now… he may try to accuse you of having something against Avis Rental.

: )

Thanks for keeping this thread entertaining.

Posted by: Sasha Radeta at December 28, 2006 4:54 PM

SR> Saying that my explanation is silly does not make it so.

LOL. Of course not. Why don’t you just restate it? That would be enough by itself. I mean, it was silly before, why not now?

Posted by: Greg at December 28, 2006 5:05 PM

Sasha, in your paint the fence plus 1$ for a bike example, you simply use barter to complicate a very simple situation. If you monetize the value of painting a fence, you realize that it is equal (in your example) to the value of a bicycle minus 1$. It is therefore considered payment for the acquisition of the bike and not a condition for the use of the bike. Hence, it is absolutely irrelevant to the debate at hand. Thank you for wasting my time.

Other than that, you keep talking about free-market copyright agreements and exclusive property rights over commercial use that I supposedly want to violate, but in order for me to violate them you have to prove that they exist!
What is this free-market copyright agreement you refer to? Who is bound by it? You say all buyers are bound buy it. If they don’t agree, then they can buy from somwhere else. What if there is noone else? Let’s say a company makes a new pill. Noone else makes it, or I’d buy it from them and there wouldn’t be a problem. I buy it. It comes with the condition that I not look at it under a microscope. I’m someone who doesn’t believe in someone else’s “right” to impose conditions on my own property, so I look at it under a microscope. Then, I make my own pills instead of ever buying them again. Now, everyone else will have an alternative to buying from the idiot who thought he could impose conditions. There is now competition. Do you think they would buy from him, knowing that they have to respect his conditions? Let the free market decide, and it will do away with your so-called free-market copyright agreement.
You’re saying that’s wrong. You’re saying I violated a condition. I see no condition. I see only a fool who thinks he can set conditions. And some fools who don’t question him, and follow his conditions until they are shown the true meaning of free market.

Bottom line is, you start your reasoning from patents. You recognize that they are a government-granted priviledge. You want to call yourself libertarian, so you want to take government out of the equation. But you want to keep the patents. WHY?
Start from scratch. Try to justify the existence of “exclusive property rights over commercial use”. You’re saying I’m trying to make them disappear. The real question is: Why are you trying to make them appear?

Posted by: Cosmin at December 28, 2006 5:18 PM

I just read your play, Brian. Hilarious. I mean it. And you’re absolutely right.

It’s sad, though. I don’t own any book I bought. I don’t own my house. I don’t own materials I bought to build an ab machine. I don’t own my clothes. I don’t own the food I eat. I just hold on to those things, for as long as I use them in the way I’m licensed to use them. Welcome to the end of property.

Don’t despair, Brian says it’s nice. You’ll have a great time!

Posted by: Cosmin at December 28, 2006 5:33 PM

LOL! Is that you way of sticking your fingers in your ears and holding your breath while screaming “I’m right!”

No, just an observation: people who go around proclaiming how much smarter they are than everybody else, how much they know, and what original thinkers they are are never smarter than everybody else, know much of anything, or think original thoughts (unless it’s of the “I am Napolean Bonaparte” variety; and even that’s not very original!). IME, all the really smart and original people over the age of 15 don’t think they’re very smart or original at all.

Posted by: Peter at December 28, 2006 7:36 PM

Sasha

You write: “I explained the simple property right basis for making a contract that prohibits someone’s commercial use of my product. To that you only said “fair enough”.”

No. You are not telling the truth. You have misrepresented the situation. That’s very naughty of you.
I responded to you using the words, “fair enough” on two occasions.
In response to your statement: “If you own something, you have a right to sell it or contractually arrange someone else’s use of it.” I wrote: “OK. That seems fair enough. The statement relies on some un-stated premise. To have the “rights” you mention first it is necessary to have ownership. Fine. Secondly, the “it” to which you refer must be property. That is, it is an entity that can be owned by an individual. You agree? If so, there are some other questions that should be asked. We can investigate some of them as we go. For the moment, let’s consider your example of what can be subject to copyright.” And so on.
What I was interested in there was the un-stated premise you relied on. We have yet to examine that aspect in detail.
In response to your statement: “The only argument one ever needs to defend copyright is following: you have a property right and logical capability to create free-market contracts that would protect them. All you need to do is to establish the terms of use and to specify that unauthorized use will result in your damages”, I wrote: “Fair enough. I have some questions. What is the property right to which you refer? What is the property exactly?”
Funny how you’ve neglected to mention the questions immediately following the words, “Fair enough.” The context of “fair enough” includes those questions. They were important. Go read them again. They were intended to steer you towards disclosure of premise and addressing the principle, which you never did. Indeed you answered along the lines of how you did not understand the question…

If you did indeed POSSESS a property right then you may well have the capability to create contracts with other individuals regarding that which is your property, that which you have rights over. At issue is whether you can establish the ownership of the entity you claim as property in the first place. Is it property? Can you own it? Do you own it? This is an issue you have equivocated over. It will need to be considered in some detail.

It is important to recall that I did not agree that you EXPLAINED anything. I certainly did not agree that you explained “the simple property right basis for making a contract that prohibits someone’s commercial use of my product.” That is something you have not yet established. And I do not concede it (yet). For one thing it depends what you mean by “my product.” It depends on what the “my product” is (among other things). It depends on context as well.

You are being evasive, deceptive and dishonest by applying what I wrote to something else entirely. You are being evasive, deceptive and dishonest by selectively dealing with portions of what I wrote to you and ignoring what it suits you to ignore. I am coming to understand why it is that Dr Kinsella identified you as a liar the other day. Why not avoid these errors? Much unpleasantness could be eliminated if you did. Surely you are not being deliberately bad.

Sasha, you ask: “Can I now assume that you accepted the private property rights behind such contract?”

Depends on context. Depends what specifically you are referring to. If you claim you can write a contract that grants rights over someone else’s property without their consent the answer would be in the negative. If you were trying to write a contract that controls non-economic entities (like, the atmosphere in totality or ownership of the moon in the present situation pertaining to space exploration/technology etc), once again the answer would be negative. If you were trying to write a contract that would necessitate an initiation of force against another party (such as organising a hit on an innocent) then likely the answer would be negative. I would not accept it. If you are trying to contract the physically impossible, once again the answer is no. Such “rights” as you would rely on, as basis for contract, would be false.

Sasha: “Now you are shifting toward the alleged problem of enforceability of copyright in a free market.”

No. Your characterisation is false (although the matter of enforceability would be a major problem- you’re right there). I’m interested in how you derive the notion of copyright from ownership of property. Then onwards toward the derivation of what conditions must be satisfied for something (an entity) to be identified and considered property in the first place. I was also intrigued by the arbitrary classification methodology you relied upon.

Sasha: “Do I need to give a definition of property?”

Yes. And you need to derive how you established it as well. This is key. It’s the way forward. You should do this now.

Sione

Posted by: Sione Vatu at December 28, 2006 8:15 PM

Brian

Stop being so precious. You’re just not as clever or as important as you seem to think.

The subject that started this thread was the admission by a patent attorney that, “Patents are intended to lure potential inventors into the business of innovation. The truth is, however, that very little is known about how patents really drive innovation.”

If you wipe your chin and reread the thread (try putting your finger on the words as you read them out loud one by one or if that’s too tough get your mom to do it for you) you’ll discover that I addressed this, admitting that in my experience patents were not that useful in driving innovation. Other factors were the motivators. Fancy that.

Subsequently the discussion evolved further towards copyright matters among other things. The suspicion is that copyright is likely as unhelpful to innovation as is patenting.

My interest in this subject is to see whether it is possible to make a water-tight case supporting patents or copyright. I rather expect that it is not possible since what has been known as “intellectual property” may not be property at all- hence couldn’t be owned in the sense that property can be.

Your efforts, don’t make the case for copyright. What you really need to do is start thinking in principle. Dealing in finite concretes on an ad hoc basis will get you nowhere. You need to identify and validate the specific principles involved. Know why? For one thing, other people can write silly little scripts, such as yours, yet construct them to lead to alternative conclusions. In the end little or nothing is achieved by that method.

On present form it is readily concluded you really have little of worth to submit and the conclusion can readily be drawn that unless you lift your game you’re not worth the time and effort to deal with.

Sione

Posted by: Sione Vatu at December 28, 2006 8:26 PM

Sasha,
In the last two blogs on this subject, you have said …

“I never said that I ‘own property in or of the ideas’ (whatever that means). I own my physical property … ”

“You may hallucinate about “idea ownership” all day long. I never advocated such thing and your messages about that nonsense only illustrate the weakness of your arguments. ”

” I never mentioned that ideas are property. You hallucinated again.”

“…ideas can be owned when they are turned into something tangible and physical.”

So which is it? Are ideas property or not?

Posted by: Fred Mann at December 28, 2006 9:26 PM

Greg,

It’s not my fault you demonstrated that you don’t know that “tort” is by a definition an injury -other than a breach of contract-. From the beginning of this discussion I insisted that third party is never bound by contract… but this does not mean that “third party” can ever be a license to steal! If third party trespassers were excused for causing breaches in contracts – than no contract would ever be enforceable (including simple deliveries that can also be violated by third parties) and markets would disappear. And now I should feel bad that someone like you is not convinced by my arguments. Give me a break.

—-

Cosmin,

Don’t be ridiculous. I chose an example of partial barter and partial monetary exchange simply because you chose such an example.

In your example:
Person A -> offers product X for sale at some price -> plus he asks for some service M in addition to money… Person B accepts these conditions, but then he says he changed his mind about the total price and refuses to satisfy the contract

That is absolutely analogous with my example:

Person Sasha (A)-> offers bicycle (X) for sale at $1 -> plus I ask for fence painting (M) in addition to that money…

HOW IS THIS NOT CORRECT EXAMPLE that perfectly illustrates the absurdity of your pseudo-arguments? In your example, you simply want to change the terms of your exchange unilaterally. In a sense, it is also analogous to Brian’s example, because you want the freedom to violate your specific terms of use and just to keep the full-ownership for which you did not pay. Don’t be mad at Brian – it was you who used “crossed fingers” argument as an excuse to violate terms of exchange.

Plus, you don’t own unauthorized copies of someone else’s copyrighted products, if you contractually transferred the title on them to the other side. The ownership of inputs is not disputed here.

——–

Sione,

I am terribly sorry I overestimated you, when I saw your “fair enough” comment, which was followed by some incoherent rambling that I honestly did not understand (and I pointed those out). But I only politely asked you whether you understood my simple points. You didn’t? Okay.

I want to convince that I sincerely have no intention misinterpreting any of your statements, nor evading any of your questions. I just did not want to insult anyone’s intelligence by talking about property definition, instead of more complex issues (like Kinsella’s unsuccessful attempts to show that copyright would not be enforceable – and I showed that it would, regardless of what your wishful thinking).

So your entire 5,000 blabbing can be reduced to a simple question:

– How do you define “property” and how is copyright derived from property rights?

Property is that which is legally owned by an individual or entity. Do you need a definition of “own?” Do you need a definition of “individual?”

If you legally own something, you can allow the use of that piece of property any way you want to – or you can exchange the use of your property (your service) for someone else’s property title. These exchanges are called contracts and they are the basis for markets. Copyright is based on allowing personal use of your product in exchange for property title on money and any damages in the amount of unauthorized copies. As in any contract, the third party is not an excuse for violation of contract, but if someone commits a trespass and causes this breach, than the buyer will have a tort case against him/her (which would recover that liability).

I don’t want to complicate the issue with co-ownership, since you seem to struggle with anything beyond sole-proprietorship. I will leave that to Brian Macker, since he chose that approach.

—-

Fred Mann,

You must be really desperate since you tried to find a single inconsistency in my statements. I am glad you single them out so that Brian Macker can see that I never claimed any idea-ownership. If you can also quote my perfectly consistent and clear responses on silly “what if I see it on TV and Radio” arguments, I would also appreciate that. Just keep quoting me.

: )

All of my statements are perfectly clear: you cannot own idea per se. You can only own physical property that contains some idea. You can sell that property – or you can decide to rent it under some conditions… or do whatever.

Posted by: Sasha Radeta at December 28, 2006 10:17 PM

“All of my statements are perfectly clear…”

I guess not, since some of your statements contradict your other statements.

“… you cannot own idea per se. You can only own physical property that contains some idea.”

Is that your final answer?
It is crucial to determining whether or not the third party has acted tortiously or not.
I guess I should ask one more clarifying question —
Can you sell an idea if you don’t own it?

Posted by: Fred Mann at December 28, 2006 11:14 PM

Sasha, yet again, you modify what I said only to build a straw man you can tear down. In your reply to me, you said:
“Cosmin,

Don’t be ridiculous. I chose an example of partial barter and partial monetary exchange simply because you chose such an example.

In my example, M was a condition imposed by person A, such as the inability to study the inner workings of the device, not a service to be performed by person B. The distinction is critical. As a service to be performed by B, it would fit into the payment category. I didn’t place M there because, despite the position you would like to impute to me, I don’t view the price as negotiable after the fact. Rather, M being a condition, it fits in the value received by B for having paid the agreed-upon price.
My argument is that any such condition has no place in a property exchange transaction.
Why is that so? Simply because when something is your property, you are free to do anything you want with it. When you need a license to do something, it’s because you don’t have the freedom to do it in the first place.
Does that mean the type of voluntary transaction that includes conditions that you envision cannot exist? They can exist perfectly well. It simply means that they shouldn’t be called property exchange transactions. Stop referring to Person A and Person B as buyers and sellers. Those terms imply a transaction with change of ownership. Call them Licenser and Licensee, or whatever. Then let them, with full knowledge of the facts, decide if they want to buy or license said product. As it is, people think of themselves as buyers. Don’t try to sneak in conditions into that transaction, because they don’t belong there. Telling someone he’s buying a product and then sneaking a condition in there (when the implicit understanding of “buying” alows no such condition) is fraudulous.
This also explains how far off the mark Brian’s little play was. Still, it was funny. 🙂

Posted by: Cosmin at December 28, 2006 11:33 PM

Fred Mann,

Please stop acting so childishly. Everyone can see that I hold these arguments without any controversy or contradiction. There was absolutely no need to single-out my well-known statements that were available to you during our whole discussion. And now you finally think that you came-up with some great argument (like you “rediscovered” Kinsella’s refuted issues with third party involvement).

The reason for your lack of success is that you did not have a proper understanding of basic legal definitions – like “tort,” as demonstrated by your confusion when I used that term (when you accused me of involving third parties into someone else’s contract by referring to tort : ).

Now when you know the definition, you think you’re onto something…

Well, you aren’t. In order to prove that some third party committed such injury against some property or some person – you must prove that this person trespassed. And as you now also know – trespass is by definition the “unauthorized use”. If a third party is taking someone else’s product without any authorization… and during the course of his actions causes injury against the buyer’s property – well that’s an clear issue of property tort.

—–

Cosmin,

In your example, the service M was (allow me to quote you):
“Condition M can be: having to twist one’s own moustache while making use of Product X, or standing nude while enjoying Product X, or something else even more bizarre, such as not opening product X to understand its inner workings”

So instead of choosing “twisting moustache” I chose a more realistic condition in this exchange, such as “painting my fence.”

Of course, this drove you crazy, because my example showed how absurd and thoughtless was your example.

As Brian’s play demonstrated – every attempt of unilateral change in terms of exchange is nothing but a fraud that results in theft. Or it is a case of lunacy.

Now you say that condition of “not opening product X to understand its inner workings” has no place in a legal contract. WHO EVER SAY IT DID? You are making-up your own “arguments” and than you try to reply on them. That’s just insane. How can someone prove that you did open a product that is in your personal use and “understood its inner workings?” Maybe a person like Cosmin would really base his contractual conditions on something that does not involve property and something that can’t even be theoretically enforceable.

On the other hand, someone who is older than eight, or not a member of Texas militia, would simply stipulate that any commercial use, as well as unauthorized copies it produces and/or profits they yield – will belong to the author (in addition to the asked price). This is how you restrict the use of product only to personal purposes.

Someone may even tell you that such contract is not necessary in a co-ownership scenario, but I think this is much clearer case in which the property title on damages caused by unauthorized copies is transferred to the author, eliminating any third party excuse (like contracts normally do).

Posted by: Sasha Radeta at December 29, 2006 12:33 AM

Okay…

Since there are no serious anti-copyright arguments here, I will put aside my blog politics : ) and I will ask Brian Macker for a small elaboration. I will also explain on why I insist on contractual “terms of use,” in which buyer buys the service of “product use” (for his money and title on any damages) – rather than obtaining a co-ownership there.

Co-ownership implies the joint ownership over the whole piece of undivided property. That’s what they thought us in school. If co-owners have equal property rights over the entire piece of property – than co-owner who was the buyer has equal property rights as the seller…UNLESS, you were referring to some other property division scheme.

Now, in order to divide property according to “types of use”, you would have to assume that one owner has property rights over “commercial and personal use”, while other one has property rights over “personal use – only”. There is a problem here. This is a dividing of ownership based on its “use,” implying that co-owners own “uses” (labor) of anyone involved with their product. Even if you believe in possibility of free-market slave contracts (and you seem to do), there is a problem when this kind of “use” is acquired from people that did not participate in any contract with co-owner. This would indeed constitute enslavement and this scenario would be a wet-dream for many on this blog.

Unfortunately for them, our private “terms of use” contracts (with privatized control and enforcement, instead of current bureaucracy) would eliminate this concern. In this arrangement, the prohibition of certain use is the part of my direct ownership rights over that item. It imposes a “negative obligation” on someone to refrain from unauthorized use (trespass)- without assuming the ownership over someone else’s labor.

Now, you seem to have a different approach to all of this, because you see no problem with slave contracts. You stated that: “copyright owner then by extension becomes the co-owner of someone’s brain who has read the book…The same can be said of any contract where you agree to something. In a way the person becomes a co-owner in you till you discharge your obligations with regard to the contract.”

Rothbard pointed out problems with such logic in his “Ethics of Liberty” (I am not quoting Rothbard in order to worship his words, but to use his arguments and give him his due credit for them). Rothbard said:

—————
“I can give away or sell to another person my shoes, my house, my car, my money, etc. But there are certain vital things which, in natural fact and in the nature of man, are inalienable, i.e., they cannot in fact be alienated, even voluntarily. Specifically, a person cannot alienate his will, more particularly his control over his own mind and body. Each man has control over his own mind and body. Each man has control over his own will and person, and he is, if you wish, “stuck” with that inherent and inalienable ownership. Since his will and control over his own person are inalienable, then so also are his rights to control that person and will. That is the ground for the famous position of the Declaration of Independence that man’s natural rights are inalienable; that is, they cannot be surrendered, even if the person wishes to do so.

Or, as Williamson Evers points out, the philosophical defenses of human rights are founded upon the natural fact that each human is the proprietor of his own will. To take rights like those of property and contractual freedom that are based on a foundation of the absolute self-ownership of the will and then to use those derived rights to destroy their own foundation is philosophically invalid.

Hence, the unenforceability, in libertarian theory, of voluntary slave contracts.”
———————————————-

I am looking forward to your response.

Regards.

Posted by: Sasha Radeta at December 29, 2006 1:54 AM

I presume the reasoning to why intellectual property rights should be district from general property rights is one of cloning. Physical objects can’t be mindless copied out of thin air. On the other hand, the text of a book can scanned put up onto a website and cloned ad nauseam.

A farmer who breed a new type of apple, which happens to be purple, can produce a crate of them for sale. When the farmer puts the apples up for sale there are only two ways to get a purple apple, buy one or steal one. Simple property rights scenaro.

But in the case of a book, if a person on the beach is reading a book, stops, puts it down and decides to the shops for a while, another person comes along, picks up the book, scans it in page-by-page into a computer, uploads it to a website, then puts on-line for anyone to download for free has not committed any theft under traditional property rights law. Which is to say the computer person didn’t deprive the book owner from his book. As opposed to a thief who puts a purple apple in his pocket and runs for his life.

Intellectual property rights would then presume that since text and software can be cloned without any physical loss to the owner would amount to another type of theft, that is, people who are consuming the product, a book or operating system say, didn’t pay for it.

Posted by: Sam at December 29, 2006 2:12 AM

Sasha…
Let’s say I find a book on a chair in my coffee shop at closing time, and I copy it, what SPECIFICALLY have I done wrong? Remember, wrongdoing is necessary for a tort to exist (or do you disagree with that???).
I have not obtained the book illegally — after all, it was left on MY property. And unless copying is a wrong in and of itself, then this act can also not be considered tortious behavior. So where does the tort come from?
Now, last time I pressed you on this issue, you responded with ” ideas can be owned when they are turned into something tangible and physical. The book’s “content” is nothing but patterns of letters in a book. So we are talking about physical characteristics.” But since you’ve renounced idea ownership, this explanation is no longer applicable (since you start the response off with “ideas CAN be owned …”).
When I pressed again, you gave this non sequitur response :
“products that can easily be discovered independently – cannot be copyrighted. Why? Well, how can you prove that someone copied your wheel??? Wheel can be discovered independently and no court would ever rule that someone copied my particular wheel. On the other hand – is it so difficult to prove whether or not I copied Hoppe’s book, word-for-word?”

This is completely irrelevant!!! No one is even disputing that a copy was made. I (the coffee shop owner) would freely admit it. The key here is that I have done nothing wrong!! The contract signed by the original purchaser can in no way be considered binding on me. And unless I have broken a law, regulation, rule, statute, etc., there can be no tort. The end.
So how do you plan to recover damages from me?

Posted by: Fred Mann at December 29, 2006 2:26 AM

Sam,

The issue of “physical loss” is irrelevant in a copyright contract, but I appreciate your efforts to think of something new.

It is not the purpose of “terms of use” to prevent the physical loss of some item – but to prevent its unauthorized use. As I said before, if your copy of the book makes it on the Internet, you will be responsible for enormous damages to the author (approx. in the amount of total access to electronic version times the value). Now, in order to to help yourself, you would sue this third party for tort – or else face the consequences of your negligence.

—-

Fred Mann,

You never give up! But where is your revolutionary evidence that I contradicted myself with the position of “not owning idea per se?” We’re all waiting for you.

In the meantime, I will answer to your coffee shop question, although I covered similar scenario before: If you find someone’s book on a chair of your shop, it is an example of mislaid property. Mislaid property by legal definition is not “lost” or “abandoned.” It simply means that the owner likely intended to set it there, but he forgot to pick it up.

In these cases, the finder cannot be considered as a book’s immediate owner! The finder (in this case the owner of property where this book was found) has a duty to treat this book as someone else’s property and to wait for the book’s user to return. He would also have the contact address to turn the book over to its rightful owner (the author). If he does not give this “grace period” to the user – and he makes no effort in contacting the known owner – then his use of this book (any use) is unauthorized. And as you now finally know, unauthorized use is called trespass and any “injuries” caused by this unlawful actions are a simple property tort.

Strangely, you now hallucinate that you “pressed” me when you asked me about the issue of independent discoveries – although I quoted Rothbard from the very beginning. He stated that copyrights are superior to our current patents simply because they allow independent discoveries and they can be completely based on free-market contracts and property rights. So I was not “pressed” by your blind attempts at all.

I don’t care that you think that independent discoveries are “irrelevant” (with all your exclamation points). They are relevant to courts, because it must be determined whether someone really violated their terms of use (upon which the market exchange was based) – or they completely accidentally produced something that resembles the original.

Do not mix this completely separate issue with your coffee shop example, for which you now got your response. Happy? Next!

Posted by: Sasha Radeta at December 29, 2006 4:17 AM

All these copying examples seem to follow a strange pattern.

Somehow they all involve seemingly innocent, finding a book laying around, carelesness, etc. They all suppose the first person that acquired the authorized, contractually binding copy loses it and gets it copied unintentially.

Which seems to imply all people refusing IP actually know deep down that this is plain wrong.

If you concede that two sides can make a legitimate IP contract, you must concede that these contracts are legal.

Third party stuff comes later.

And Sasha explained the tort issue.

Why dont you just give up.

Posted by: ktibuk at December 29, 2006 5:50 AM

Brian’s skit got me to thinking: Who owns the book?

I think that this is a major sticking point of this whole argument. I’m coming around to the viewpoint that, with Sasha’s copyright, the book cannot actually be owned by the purchaser. There seems to me to be no other way to resolve this transaction with the libertarian concept of property.

And you know what? That’s just fine! If the book seller is not actually selling the book, but “renting” it out indefinitely, then it all makes sense. Now, conditions of use can be applied that by which the “buyer” must abide. If the “buyer” violates these conditions, the book must be returned. We don’t need to reinvent the concept of property to make this work.

Anyone else with me on this?

Posted by: Scott D at December 29, 2006 9:55 AM

Peter,

“No, just an observation: people who go around proclaiming how much smarter they are than everybody else, how much they know, and what original thinkers they are are never smarter than everybody else, know much of anything, or think original thoughts (unless it’s of the “I am Napolean Bonaparte” variety; and even that’s not very original!). IME, all the really smart and original people over the age of 15 don’t think they’re very smart or original at all.”

Let’s be honest about this. You are suffering from the same problem the other guy is. You assume you know what I think and know, then project those false beliefs on me.

I don’t think I’m smarter than everyone else, I just don’t like people presuming what I know. That is what the other guy was doing and now you are doing pretty much the same thing. You don’t know what is in my mind. Not only can’t you know unless I tell you but since I am parroting any particular philosopher, economist, or scientist, because I am an original thinker, you can’t even reliably predict what I am going to say. That was the motivation for me saying I was an original thinker.

Randomly guessing what someone else knows and thinks is hard enough when the person tends to parrot others thoughts. People how think outside the box are even harder to pin down. I was trying to point that out to the other guy. I was not saying I’m smarter than everybody. That’s just stupid. Stop putting words in my mouth.

There has been a tiresome amount of this kind of behavior on this thread. I don’t mind someone honestly misunderstanding something, misreading something, and even allow for my atrocious writing style. However the anti-IP participants on this tread are not communicating in ways that indicate that these honorable miscommunications are the problem. No one is asking for clarification on main points.

For instance, in this case you could have asked me. Why did you say that? Did you mean your smarter than everyone? To which I would have replied “No. My motivation is clear in context. I am objecting to the assumption that I don’t know squat about an area. He didn’t address the subject but started making ad-hominem type attacks, which I addressed. He questioned my authority to even speak and that it why I had to even bring up the subject. I don’t, out of the blue, start harping on how smart I am.”

Also your above statement is not even true. There are plenty of people who run around flashing credentials to show that they are smarter than others. Do you actually believe that someone who has a PHD in biology pointing out that fact when discussing evolution with a creationist should be ignored because he thinks he’s smarter than everyone else? Get real.

Posted by: Brian Macker at December 29, 2006 10:53 AM

Cosmin,
“I just read your play, Brian. Hilarious. I mean it. And you’re absolutely right.

Don’t despair, Brian says it’s nice. You’ll have a great time!”

Thanks for clarifying that. My little play was not intended to actually even be considered an argument against property rights. Yet you seem to think it did. Not only that but you agree with that conclusion. So apparently you do not believe in property rights at all. I think it would have been constructive of you to point that out in your discussions. Try this:
“Intellectual property is invalid because in fact the concept of private property itself is invalid.” You can then expand upon this point but at least people will no where you are coming from.

Posted by: Brian Macker at December 29, 2006 11:02 AM

Sasha,

I think you are right about some of these guys being anarcho-communists. I am well aware of how those guys falsely label themselves as libertarians.

This Cosmos fellow apparently does not believe in property rights at all. He claims that I have found some greater truth with that play.

I hate the deceptive intellectual practices of the left. Political libertarianism has always had strong property rights as a central tenet. Being “anti-government” is not actually a base tenet of libertarianism but merely a derivation by some libertarians.

So what do the “left libertarians” do? They create a philosophy that absolutely denies property rights as a central tenet and any form of government is rejected because it’s purpose is to enforce such rights. Based on this unimportant similarity the start calling themselves libertarians. It’s the same way they stole the term liberal.

Posted by: Brian Macker at December 29, 2006 11:10 AM

Scott,

You are starting to get the idea. Both Sasha and I are against patents. I in fact hate the way patents are being use to suppress innovation. I do think that patents are invalid and harmful government grants of monopoly. That doesn’t mean copyrights are invalid.

I think the people on this thread did not even understand Sasha. They really don’t get it. I was not thinking from a legal perspective and Sasha has this idea that third parties can be dealt with in tort. I’m no lawyer but it sounds fine to me. Just so long as it models what is “really” happening here.

Yes, your idea of thinking of this as renting is sort of ok. Not exactly correct however, but it is similar. It’s sort of a rental agreement but where part of the agreement is you can destroy the property or transfer it if you wish, plus the rental is paid up front and lives for the lifetime of the object. The original seller retains certain interest in the property. It can be expressed in that way if it makes it easier for you to understand it.

I originally chimed in only to support Sasha. I didn’t expect many would change there minds. I was hoping that somehow the dialog would help not only Sasha and myself but perhaps a dim hope someone elses lightbulb would turn on.

I can certainly tell you I have suffered under many a misconception and misunderstanding of the world. I only get into these arguments to clarify my thoughts.

I for instance became uncertain about the issue of good samaritan laws a while back and started discussing it. I formerly believed they were completely unjustified. I have since come to the point where I think they can be justified based on an expanded notion of natural rights.

I hold all my beliefs tentatively (despite Peters ridiculous assumptions) and I am more than willing to change back. However, at this point I do believe that it would be rational to consider certain acts validly criminal with a proper form of good samaritan law. I can think of no issue that is a roadblock and I have read up on the area a bit.

I have read quite a bit of libertarian literature and have yet to come upon a treatment of good samaritan law that addresses my points. I’m not sure if that is just because I haven’t run across it yet or what.

I have often had original ideas only to find out that somebody had already though about these subjects hundreds of years ago. The reason the originality is important to me is that if I’ve read extensively in an area and no one mentions an important point then it seems to me they probably didn’t address it.

I have yet to even see the anti-IP readers on this tread even comprehend what Sasha and I are saying. They seem to be stuck on non-issues like how wonderful life would be without IP or how in their particular industry copyrights are not worth pursuit. Well so what.

There are plenty of industries where they are well worth the pursuit. Literature, music, and software being some. This can be true even within the same industry. People in the same industry can pursue different strategies to make a buck. It rubs me the wrong way that they feel that they must actively undermine other peoples strategies.

It would be as if somebody in the auto selling industry claimed that they do just fine selling cars so there is no need to rent them. Not only that but then advocating that change the law so that not all contracts but only rental contracts are considered null and void.

I’m sure these same anti-IP folks would be quite upset if somebody argued there is no need to use gold as money, that he has found in his particular industry that paper money is just fine, and that we should make any contracts that use gold as units of repayment invalid and instead substitute cash only.

Disclamer for some who might read this: I brought up these other subjects for illustrative purposes only. Both to illustrate my motivations and my understandings. They were not intended to be an analogy between gold and literature, money and rentals, or any other such silly thing. If you think such silly thoughts please ask me my intent first and I will disabuse you of any such notions.

Posted by: Brian Macker at December 29, 2006 11:45 AM

Sasha

You wrote: “Property is that which is legally owned by an individual or entity.”

Define and explain your term “legally owned”. What does it mean exactly. What are the conditions necessary for “legal ownership”? What preconditions & context must be met? What is the premise? How is the concept derived?

Sione

BTW you should stop interchanging the concept “product” for the concept “property”. they are not the same- not identical. It’s a mistake to treat them as the same (one of several errors you are guilty of).

Posted by: Sione Vatu at December 29, 2006 11:56 AM

Sam,
“But in the case of a book, if a person on the beach is reading a book, stops, puts it down and decides to the shops for a while, another person comes along, picks up the book, scans it in page-by-page into a computer, uploads it to a website, then puts on-line for anyone to download for free has not committed any theft under traditional property rights law. Which is to say the computer person didn’t deprive the book owner from his book. As opposed to a thief who puts a purple apple in his pocket and runs for his life.”

You don’t understand my point yet. The person who picked up the book is trespassing. He has no right to take the book and use it. He uses the book as a productive input to his scanner to create the copy. So the copy inside his computer is in fact partially the work product of the person who wrote the book.

The efforts expended by the author are directly and physically tracible as an input to this copy in the computer. Without the work effort of the author and the use of the book as a productive input to the scanner the computer copy could not exist. This is clearly an issue of misuse of property and theft.

There was a person in the news a few years back that was sneaking into someones driveway at night and using the car but refilling the gas tank and putting it back. He was doing this over a period and somehow the owner noticed and had him jailed. Clearly it is illegal to use someone’s property without permission. I’m not sure they got him on theft or misuse of property, or what. I’m not a lawyer.

In any case, when the criminal programmer who stole the work uploads it any other copies made are also done so with the productive input of the original writer without any compensation, contract, agreement of any kind. He’s not getting paid for his work product and he didn’t agree to that situation either implicitly or explicitly. In fact he explicitly went out of his way to make sure that this was the understanding. There is a copyright notice in the book.

The writer is part owner in that computer copy since he retained “intellectual ownership” over the book; this is like having mineral rights in a property someone else owns. The copy in the computer was made with his productive product (things can be both consumer and productive goods) without permission so he is also retains his “intellectual ownership” in the good produced from this event.

Since he now has “intellectual ownership” over the copy in the computer he therefore will gain such ownership over any copies made from that copy. Uploading to the Internet is such a copying process. So he owns the copy on the web server. When people download onto their individual computers those copies are owned “intellectually” by him also.

The people who download it for free may be innocent in certain ways, but they did receive stolen property. The owner of said property has the right of restitution. In this case restitution would consist of destruction of the copy (or payment with retention and no further copying).

The people who downloaded it may or may not be “innocent” and restitution may or may fall on the back of the person who stole the copy in the first place. I don’t want to get into the details here and it doesn’t really matter.

That’s how I think about this. It resolves the issue of independent creativity. I could make a book of one page with one word “The”. I could then sell it with a copyright contract. The problem is that I couldn’t go around suing whoever used the word “the”. Why?

Because there is no physical replication chain from my book to their copy it really isn’t a “copy” of their book. It is well established that the word “The” preexisted. Nor is someone talking about your book a copying of it. The discussions purpose is not to use your book as a productive input in a copying process. If I tell someone that some jerk had the stupid idea of writing a book with the word “the” in it, then the person went and wrote his own original book which was just the word “the” then the productive chain would be broken even though the idea was transmitted.

We could have used our combined brains as a replicating machine. If I started reading the book and said to the other guy, “The first word of the book is ‘the’, please copy that down. Now the second word is .. well there are not more words. You now have a precise copy of the book. Let’s publish and make money off this.” then that would be a misuse. But why would anyone bother with replicating so simple a book? How would the author prove it wasn’t “original”. Why would a court even entertain such a trivial dispute?

A book with a single word is so simple that there is no originality to it. There is no original content to it. No work product. So there really is no work product to steal in the first place even if you had agreed to some contract that said you wouldn’t replicate it.

That is not true of a long novel. The character and plot of a novel is work product and a non-exact copying can “steal” that work product. In that case a description of the book can end up being a kind of replication of the work product.

I don’t think this is an area with a fine dividing line. Saying it’s “A book about pirates.” clearly falls outside the constraints but giving a long and descriptive outline of plot and characters could count as a duplication of the work product. A movie based on a book certainly counts, even if not an exact copy.

It’s never the intent of the author to disallow partial descriptions anyway. Certainly the author or inventor wants people to describe his product. Saying “It’s a book about worms” or “A invention that harvests worms” is just fine.

Of course there are things you cannot contractually agree to and reasons why certain things may not be copyrightable. I believe slander is criminal, so I think if someone wrote a book that slandered someone that person would have a right to a copy of the book regardless of whether the copyright owner put a clause in that said “This is a book about Joe and no one is allowed to sell or show Joe the book”. If it then proceeded to lie about Joe then I feel that anyone who had a copy could share it with Joe regardless of the agreement.

There need be no deception involved. The person could buy the book with the understanding that the book was to be honest and that he was honestly agreeing not to share it with anyone. Once he had read the book and seen that it was untrue slander he would no longer be bound by the contract.

Posted by: Brian Macker at December 29, 2006 12:48 PM

Scott D,

Finally some progress here…

I developed my contractual framework of copyrights (rather than insisting on co-ownership which was implied by Rothbard), just to avoid any confusion about equal rights of co-owners, and to avoid slave contracts that would be implied in dividing this quasi-ownership based on someone else’s use of it.

You can certainly have an agreement with your publisher to have co-ownership, but if publisher cares about his firm he will not allow everyone to have that same ownership title (just as we don’t allow just everyone to have ownership over our other property).

—-

Sione,

I’m not your legal encyclopedia. If you don’t know what “legal ownership” means than don’t bother to participate in these discussions. If you know what it means, but you want to make a point about it – JUST DO IT, or walk away. Those “several errors” you mentioned are nothing but your wishful thinking. You still have not pointed out a single one (although you tried with those huge essays about nothing)

PS
By the way, when I say that something is “my product” or you can see that in my context I refer to some product as mine, possessive adjectives in my sentences imply my ownership or property right. Your reply about that was unnecessary.

Posted by: Sasha Radeta at December 29, 2006 2:20 PM

Brian:
“Yes, your idea of thinking of this as renting is sort of ok. Not exactly correct however, but it is similar.”

No, really, I meant it quite literally. I say, get rid of the whole transfer of ownership nonsense completely. Make it explicit that the author/publisher still owns the physical copies of the books and therefore still has dominion over their use. This would neatly evade the difficulties of dividing ownership or setting up post-purchase “terms of use”.

This also eliminates the problem of third-parties, since the author/publisher always retains final ownership, and therefore could prosecute trespassers (i.e. copiers) directly.

Whether such a system would hold up competitively in the market is another matter entirely, but at least it wouldn’t force us to redefine property.

Posted by: Scott D at December 29, 2006 2:29 PM

Sasha, you are so confused and vague, it’s hard to know where to begin, so I’ll just begin …
You write, “In these cases, the finder cannot be considered as a book’s immediate owner!”
Who is saying that the finder is the new owner? Not me. I don’t have to own the book to copy the ideas from it. Or are you saying that I am not entitled to open the book at all? If so, on what grounds?
Then you write, “… unauthorized use is called trespass and any “injuries” caused by this unlawful actions are a simple property tort.” How EXACTLY have I trespassed? Are you saying that I am bound by the “unauthorized use” clauses in the terms of use agreement, even though I haven’t seen or agreed to them?
I have more, but I’ll keep it simple for now.

Posted by: Fred Mann at December 29, 2006 2:38 PM

Sasha,

I read your query about slavery. I’m not sure I exactly get your point. I’m not a lawyer so you are going to probably either have to dumb things down for me or be more explicit.

First off let me say that I was addressing issues of justice and not issues of law. I am not familiar enough with law to translate my understanding into legalese.

As far as I can tell your arguments based on law are valid and other than Rothbard I have not heard it discussed in this way. I read that so long ago I don’t know if he mentioned tort. If not, then I say, “kudos to you for knowing this, or figuring it out”.

From my novice point of view someone taking a book off the beach he didn’t own and copying it is trespass. I’m not sure of the proper or exact way to address this legally. You’d know more than me. It seems however that both the person who wrote the book and the person who owned it were wronged and something needs to be done to right it.

From an economics viewpoint I do understand that all the copies that result are “product” that is rightfully do to the owner of the copyright. I don’t see however how tort alone can restore the situation. It seems to me that the stolen property aspect of the copies is not addressed. So long as those copies are not paid for and continue to be copied the copyright owner is being trespassed against since he is co-owner of those copies. How can tort address this and correct it. Certainly this can go way beyond the control and assets of the original buyer of the book and the first person who unlawfully used the book.

Under my scheme each addition person is trespassing and so can be gone after independently so long as the author can prove by “any reasonable means” that the book is an unauthorized copy.

That was an aside. Now back to your question about slavery.

I don’t quite understand where you are coming from. I am aware of several arguments on why one cannot sell oneself into slavery.

I also do not believe that you can sell yourself into slavery myself, but I may not hold to that belief for the same reasons you do or anyone else. I don’t believe that one can’t do so for the mere reason that there is an a-prior self-evident inability to do so.

I don’t think I need to explain my understanding at this point so I won’t. Maybe later if the need arises or you feel that it is necessary.

If you read my argument you will see that I did not think that preventing you from using your brain as a copying machine is the same thing as slavery. I don’t think this position is supported. Saying I am “part owner” in your brain is not to be taken literally but only as an analogy of sorts. Ownership is the control over something.

I’m not sure these are concepts for which we have the proper language. Might be that their is but I just don’t know how to express it correctly. Since that is the case I will use a further analogy to clarify.

Let me be more specific so it becomes clearer. Let’s use a computer instead of a brain. Suppose there is a type of computer for which it is impossible to fully erase any information ever uploaded. That is, any information written to it becomes inalienable from the computer.

Now suppose I write a spreadsheet program and then copyright it and sell it to you. You load it on your computer and start using it as agreed.

This computer, like a brain, can be used to either “enjoy the use of” the software or to “copy” the software. The contract said you could do the former but not the latter.

Now in a sense I am part owner of the software on your machine because I have authority over, control over, how it is to be used. I could show up at your house and you could ask me, “Can I copy it with your permission to this other computer” and I could answer “Yes, this one time”. Otherwise the answer is “no”. At this point you have lost a little control over your computer (and thus a little bit of your ownership rights).

My control over this first computer in no way “enslaves” it. It can be used for any purpose other than the single one of replication. You just never paid me for that right with regard to something I own that happens to reside in the computer. It resides in the form of a pattern. If the pattern were not present there would be no way for you to violate our agreement in the first place. You can’t copy what’s not there.

The software being present only increases the potential of the computer to be used to replicate it. It increases the set of possible choices and cannot ever decrease the choices. Indeed if this were a normal machine which could be erased, or if it had infinite or upgradeable memory then loading my software would in no way decrease the potential uses of the computer.

Thus when you agree not to copy my software you are not giving anything up you had before. No (what’s the term) remuneration need be passed from me to you to obtain this right over you. It’s a non-transfer more than it is a positive transfer.

Thus in no way can it be said that I restricted the freedom of the base computer. I only increased the freedom. I’m truly putting a control over the software. I haven’t “enslaved” the computer in any way. I’m not forcing the computer to do something it was able to do before, nor am I preventing it from doing something it could do before. Nor does the ownership control I have allow me to force the computer to use new potentials that it has acquired by the installation of my software.

Now suppose you make an unauthorized copy.

If I caught you copying it I could stop you, or ask for damages. Since these computers do not “erase” the best option would be to ask for damages for the copy on the second computer. The copy on the first computer was never a problem as you paid for it. It’s the second copy causes problems .

As with any damages there are limits on the way I can collect. Certainly if you cannot pay the damages then I cannot collect them.

Of course all the rules that one would use in other cases for determining damages would apply. I couldn’t just claim that unauthorized copies are worth a billion apiece if I’m selling the program for $39.

In this case of you making an unauthorized copy on the second machine. One option the judge doesn’t have is making the owner of the machine erase it. Hypothetically that’s impossible and was chosen to make the computer more like a brain.

But that leaves the judge other options. 1) He could assess damages of $39 and ask you to pay and then enjoin you from making additional copies. At which point your second copy would be “authorized”. After all you paid for it. 2) If you couldn’t pay based on poverty then he could force you to sell the second computer (with software which increased it’s value by $39) to a third party and then pay me my $39. The new owner would be “authorized” and you would get the remaining monies less court costs. Again he would enjoin you from repeating your crime.

In the former solution 1) it’s as if you were buying out my ownership interest in the computer. In the latter 2) it’s as if a commonly owned item was sold in order to sever our ties and co-ownership. It’s at least analogous. Maybe we need to use a term other than co-ownership but I don’t see why. I’m open to suggestions.

Note that in the hypothetical I was full owner of unauthorized copy of the software on the second machine and partial owner of the first computer because it was imprinted with my software. Because the software is inalienable from the machine I became a co-owner in both machines. In the second machine I have a full $39 ownership interest, whereas in the first I only have the ownership right of copying control

The value my ownership of copying rights in the first machine is variable. If I already have a copy then the value to me is near zeron. Suppose however my company burns to the ground taking all my copies with it. Suppose further that you were the first person to buy a copy before this happened. Suppose the software was destined to be a winner. Then the copy on your machine would be very valuable to me as the copyright holder. I don’t however have the right to force you to make a copy for me, nor do you have the right to make copies yourself. We would have to negotiate an agreement and share the profits at that point. You could, in fact, destroy the computer at that point and I would not have any damages.

Now lets move to a brain and a book, vs. a computer and software in this analogy game. The brains powers of storage and replication are less so my interests are less. But let’s gloss over that and assume that the full $39 is the value of the unauthorized copy of my book in a brain. Of course, borrowing a book to read it has less value than the exact copy of a computer program. Suppose you buy the book at the going rate of $39 and read it. However, a fellow, Joe, gets an unauthorized copy and reads it. You can see that this is analogous to the first computer having an authorized copy, but the second computer having an unauthorized copy.

One for one the analogy is thus:
A)Brain = Computer
B) Book = Software
C) You = First computer with authorized copy of book
D) Joe = Second computer with unauthorized copy of book
E) I can restrict you from copying the book from your brain = I can restrict the copying of software off the first computer
F) I do not fully own the copy of the book in your brain = I do not fully own the software on the first computer
D) I fully own the copy of the book in Joes head = I fully own the copy of the software on computer 2.

Now the way I see it. I am owed some money here. Approximately $39 for Joes use of my book minus the reasonable costs of replication I saved because someone else bore the costs of copying the original book. I’m essentially owed my royalties on the book. In first analogy with software I did not mention the cost of replication because it was so tiny.

Who I collect and how I can collect depends on who did the copying. Lets assume it was you as in the first example. It really doesn’t matter to me if how you copied the book. You either did so directly from the book word for word or from memory. Now suppose that have perfect memory and were the person who made the unauthorized copy and sold to Joe. That makes it a good analogy to the other case, except for the fact you used an intervening medium, the book, and sold it to another individual.

Those differences are unimportant. You could have written the software to a CD in the first example then sold it to another person who loaded it onto their computer. In which case someone else would own the second computer. It’s too much effort to go back and fix that but understand that I could and it would change little.

Using the analogy we can see that I am a sort of co-owner of your brain because I have the right to disallow you from copying my book from your brain. Again this right in no way leaves you less free than you were before my transaction. You are not in any way a slave to me.

What about the other guy? Again the same applies with regard to copying rights. My preventing him from copying my book out of his head in no way restricts his freedom beyond that which he had before he read the book. The reading of the book only enhances his options. That he missing out on the full potential that my book brings is not my problem since I take nothing away he didn’t already have. This restriction on copying the book cannot be the source of any enslavement. There are no other actions I am restricting on his part so they cannot be a source of enslavement. Yet I do have a right over him. A negative right, which does in a way, give me control over him. But no more control than the negative right of not allowing him to trespass in my yard does.

What about damages? Say my royalties were $1 a book. Well since you made the unauthorized copy then you owe me the dollar. Joe was innocent. We can’t sell Joe to recuperate costs so if you can’t pay me then it’s like any other settlement. Likewise if I cannot extract the payment from you for other reasons it’s just tough luck. O.J. Simpson comes to mind. Of course, we have all the normal methods of getting the money like garnishing wages, fines, whatever.

Suppose it was Joe who made the unauthorized copy. Perhaps you were reading the book and he snuck over and copied the book while you were at the refreshment stand. Suppose it’s provable in court perhaps by a security tape. In any case I’m owed a minimum of $1 from Joe. The fact that he owes me a $1 doesn’t make him my slave. Nor for the same reasons above does him not being allowed to copy the book make him my slave.

This whole “slave issue” was brought up on another thread somewhere as an objection to my idea of co-ownership of the copies. I don’t agree it is a valid objection. Although it does make a good honest attempt to find a hole in the idea. The type of co-ownership I am talking about here is very limited and is not strong enough to entail slavery.

As you can see, I’m not really making a legal argument. More like I’m making an argument about rights and justice. Not sure how this reasoning would translate into law. As you know the law is not always about justice and cannot always achieve it. Likewise I’d say that one could always find gray areas in the topic of justice and rights also. They can arise for dependent, similar, or completely different reasons.

Looking forward to your response. I hope I didn’t misunderstand you and waste all that writing.

Posted by: Brian Macker at December 29, 2006 2:59 PM

Scott,

The problem with your idea is that the owner of the copyright really doesn’t care to take on all the other responsibilities that go with renting. It isn’t worth his trouble and he may not have the up front capital to do so. It also does not allow for mixing. It brings up more problems than it solves, really.

For instance, an airplane might consist of the discoveries of several people. The turbine may be copyrighted by one guy while the cup dispenser by another. Now the whole plane is rented to someone else. Does everyone in the chain of ownership instead now have to keep rental records.

Now suppose the pilot of the plane is negligent and puts on a parachute and jumps on in mid air. The plane crashes into a house destroying it. Who gets sued? Does the cup dispenser company get sued by the homeower because it flew out the side of the plane and destroyed his car? Does the cup dispenser company then have to sue the airline for the depreciated cost of the dispenser?

What is wrong with thinking as if the copyright holder is a co-owner in the sense of control. In fact this is exactly what we do now for copyrights. I haven’t come up with some new concept, nor even in applying it to patents. What I did was to think about it in a different way.

What was original about this was viewing the “intellectual” property as really being about physical property and being explicit about it. Also in being explicit about the fact that a replicatable item acts as a factor of production, and that the ownership of the physical item is actually transferred in the copying process because of this.

Posted by: Brian Macker at December 29, 2006 3:13 PM

Sasha,

Do you understand that co-ownership rights don’t have to be equal? I thought that was what rights-of-way, and mineral rights were all about. Not to mention encumberments (which I feel must be “owned” by someone or they can be homesteaded).

The reason I am concerned with calling it ownership is because I want it attached to someone. If it is not attached to someone then why bother? Also if unattached it can become immpossible to ever change. Suppose a piece of land has an encumberment that says “no raising chikens”. If someone owns that right then the owner of the land can buy it back to restore the property to a single unit of ownership. Perhaps the encumberance is owned jointly by the owners of adjacent land. Then the owner of the land can buy the encumberence back from the individual co-owners till he has all of them. At which point he can raise his chickens.

If the encumberence was just placed in the deed without a indentified owner then it becomes impossible to undo. Suppose I sold my house and added the encumberance without specifying an owner of this right to raise chickens. Now how can that be undone in a sensible fashion?

I bought a piece of land once that included in the deed a right of way over someone elses property to allow access to a river. The seller of both pieces felt they were more valuable sold this way. Suppose conditions change and it becomes much more valuable for each piece to be independent. Maybe people become more concerned about privacy and waterfront prices skyrocket. Then the person who has the piece by the river can offer to buy out my right of way.

If the right of way was just free floating then I don’t see how this can happen.

Likewise the copyright must be held by someone. If at any point it becomes “lost” by the owner dying without leaving it to someone, or for some other reason. Then I think that anyone can homestead that right starting with their own particular copy of a book.

For instance, the people who found the dead sea scrolls could have copyrighted them under my system. If someone else happened to independently find another ancient copy then they too would be able to claim copyright over all replicas made from their original source.

Of course in that case it would make sense for one to sell to the other to make litigation of third parties easier.

Copyrights don’t have to originate with authors under my system but if they don’t it’s much harder to prove your case. It can only happen however if the original copyright was either never established or abandoned in some way.

Of course if one second person to find an ancient copy of the dead sea scrolls sells them free of copyright the first guy is basically screwed.

Posted by: Brian Macker at December 29, 2006 3:32 PM

“BTW you should stop interchanging the concept “product” for the concept “property”. they are not the same- not identical. It’s a mistake to treat them as the same (one of several errors you are guilty of).”

Why don’t you stop charging people with errors and explain exactly why you think they are important to the topic at hand. Please explain why even if I had an inflated ego that matters. 🙂 More seriously, please explain why you think it matters if Sasha calls something a product or a piece of property.

You are making us work too hard to figure out what the heck you are on about. Quote a sentence, make a point, do something. I’m not going back to whatever Sasha wrote in the past to try to figure out this one.

Posted by: Brian Macker at December 29, 2006 3:38 PM

Sione,

My last post was directed at you.

Posted by: Brian Macker at December 29, 2006 3:43 PM

Fred,

So you found a book. Don’t you think you have a duty to return lost property to the rightful owner?

Under my understanding there are two owners. The buyer of the book and the copyright owner. One owns the physical book and the other owns the rights to copy it.

You must take reasonable care to return the book to the buyer but if you fail at that well then you can homestead that part of the ownership of the book. You get to keep the book.

The same holds for the copyright owner. You must take reasonble care to establish if it is copyrighted and that the copying rights might be owned by someone else. If it is not copyrighted then of course you can copy at will. If on the ohter hand it is copyrighted then you cannot homestead that part of the ownership. Since most books print the copyright notice at the front they make this easy for you to establish. You know damn well who owns the copying rights on the book.

Now it might be this is an old book and the original copyright owner abandoned his copyright. Then you can indeed homestead this right on the book you have.

Of course, your question was address to Sasha. He is giving a different treatment to this so I have no idea if he has an answer.

He’s going to have to teach me a little law first. Your claim does however sound like a plausible loophole to me.

I’m not sure who the copyright owner can sue in that case, or even in the case of a stolen book. Or worse yet a stolen book that was then lost and found. Can he really sue the owner of the book if it is lost and that causes other people to gain access? How to put the genie back in the bottle once copies proliferate? How much damages can one guy be held responsible for?

Again, I’m not sure how his scheme works yet. I came into this late, am not a lawyer, and haven’t read any other threads where he discusses this concept.

Posted by: Brian Macker at December 29, 2006 3:54 PM

Fred Mann,

I am not vague or confused at all. You just demonstrated your confusion with basic legal concepts.

If you (as a finder in your scenario) are not a legal owner of the mislaid book – than your use of that book (evidenced by reproduction) is a trespass or unauthorized use. There is no need for contract in order to establish that someone used your property without authorization. Any injuries committed during the course of this trespass constitute a property tort.

——-

Brian,

This is not a simple issue, so give it some time and some more thinking.

The problem with co-ownership in terms of copyright is following: by definition, both co-owners will have equal property rights over that same item. If you talk about different distribution of physical property – that’s a different issue, but that is not co-ownership (refer to any scientific definition)

Copyright is not about co-ownership (equal property rights), nor it’s about uneven shares of the same physical property. It is about one person (the author) having total property rights, while some other person is allowed to use that book in certain ways (“non-commercial”) determined by contract.

Dividing ownership based on possible “uses” is problematic. You can divide a piece of land or anything physical – but you cannot divide physical property based on possible “uses.” Such division would imply that you actually own two different types of “uses” and that you can somehow split them between two owners. You cannot accuse your “co-owner” or other parties of trespass based on your control/ownership of any potential “uses” – because that is a self-contradictory slave-ownership. This is not a legal way to establish “copyright,” although your understanding of its implications is sound and your criticism of anarcho-communists is great.

I don’t know if I explained my position clearly, but this is not a simple matter. We are talking about difference between libertarian “negative obligations” (prohibiting some uses of your own property) versus quasi-ownership based on permitted “uses”.

As far as that “book lost on the beach” example goes, you can refer to my response to Fred Mann. It is a rather simple common-law case.

Posted by: Sasha Radeta at December 29, 2006 4:18 PM

Brian writes,
“You know damn well who owns the copying rights on the book.”
Under the current state-imposed system, yes, this is true. But in the free-market, there are no universal copy “rights”. Sasha is trying to simulate the current system using a “terms of use” agreement model, and trying to show how no “unauthorized” copies could possibly arise without violating something or other…
You might want to read Kinsella’s “Against IP” (I think that’s what it’s called) on his website for a decent intro.

Posted by: Fred Mann at December 29, 2006 4:19 PM

Brian,

Well, I never intended to take this beyond items that exist purely to hold information. Once you get into the realm of manufactured goods, I see the problems that you bring up as being perfectly legitimate limitations on the whole concept of copyright.

You want to restrict access to information? Fine, don’t give up your rights to it. Explicitly state that you own any copies you make and that the use of one of those copies to create another copy of the book is trespass. But if you want to free yourself from liability once the product is out of your hands, then any ownership rights, including the right to copy, go with it.

Posted by: Scott D at December 29, 2006 4:27 PM

Fred,

You’re just waisting time, because you attempt does not deal with fundamental issues here. Brian knows my position and he knows that in any case (real life or any hypothetical example) your “book-finder” will commit a trespass by using someone else’s book without owner’s authorization. In any injuries as the result of that

—–

Brian,

Your objection to Scott’s statement is not valid. If you get shot by a gun, you don’t get to sue the bullet manufacturer… at least not yet, although tobacco litigations brought us closer to that lunacy 🙂

In your example, if the private pilot destroys someone’s house – he is responsible. I didn’t get the meaning of “record holding issue” and how it is different from your imaginary or even real self-ownership.

Posted by: Sasha Radeta at December 29, 2006 4:38 PM

Scott D,

Please don’t tell me that you view the question “if a pilot negligently drives the rented airplane into my house who gets sued (?????????)” – as (allow me to quote you) “perfectly legitimate limitations on the whole concept of copyright.”

And I thought we made some progress….

tsk, tsk, tsk…

Posted by: Sasha Radeta at December 29, 2006 4:42 PM

Sasha,
Your objection to Scott’s statement is not valid. You are correct. I didn’t structure it properly. I was thinking of the case where I lend my car out to someone and they crash because I didn’t fill the brake fuild up properly.

If the inventor owns all the planes out there then he becomes liable to maintain them all. It’s just very problematic. Why bother.

It also makes it impossible for the inventor to own his invention without also having access to lots of capital.

Posted by: Brian Macker at December 29, 2006 5:50 PM

SR> Give me a break.

I certainly have done so. There was a time when I would have made fun of you for free, but alas, my time is now too valuable. sigh 🙁

Sam> Physical objects can’t be mindless copied out of thin air.

Objects aren’t made out of thin air, copied or not.

SR> I will answer to your coffee shop question, although I covered similar scenario before:…

Not effectively.

ktibuk> All these copying examples seem to follow a strange pattern. Somehow they all involve seemingly innocent, finding a book laying around, carelesness, etc… Third party stuff comes later.

Um, Hello? Almost all the “copying examples” are the third party examples.

ktibuk> And Sasha explained the tort issue.

Not effectively.

ktibuk> Why dont you just give up.[?]

If you want to prove the existance of a God or that ideas are property, then it is for you to prove the positive assertion, not for the doubters to disprove it.

BM> However the anti-IP participants on this tread are not communicating in ways that indicate that these honorable miscommunications are the problem. No one is asking for clarification on main points.

After all these words, I can’t spot a spark clear foundational thinking on the part of IP proponents. So to ask them to “clarify” a main point built on a sand foundation seems like a waste of time. However, it is amusing at times.

BM> I think the people on this thread did not even understand Sasha.

I am guilty as charged! {laughs}

BM> I have yet to even see the anti-IP readers on this tread even comprehend what Sasha and I are saying.

Perhaps it is because it makes no sense, nor even holds a visible glimmer of hope of doing so. I comprehend it for what it is: rubbish. There are a zillion crank doctrines to rebuke. Why spend a lot of effort on this one, especially without pay? Who outside the mises blog is going to give 2 seconds of attention to what your views are?

SR> I’m not your legal encyclopedia.

True.

Scott D> This also eliminates the problem of third-parties, since the author/publisher always retains final ownership, and therefore could prosecute trespassers (i.e. copiers) directly.

A owns some ink and paper. If A’s property (ink and paper) is arranged, or gets arranged, in a way that happens to be well correlated (how well correlated is enough?) to B’s arrangement of ink and paper, how (all of the sudden) did A’s property automatically transfer to B against A’s will?

Fred Mann> Or are you saying that I am not entitled to open the book at all?

Oh, you must not have read the Sasha rule book. {laughs} You can open the book, but only in search for one piece of information. The rest of the information in there is off-limits. Somehow you’re supposed to know that.

BM> Since most books print the copyright notice at the front they make this easy for you to establish. You know damn well who owns the copying rights on the book.

Maybe they lied. Sasha has pointed out how much people lie, in every IP thread he’s been in. He is funny that way.

BM> He’s going to have to teach me a little law first.

That is too much! 😉

Scott D> Explicitly state that you own any copies you make and that the use of one of those copies to create another copy of the book is trespass.

Well that’s the problem isn’t it? One can say (state) anything one wants. The question is: why is a third party obligated to do what another asks? To make it work, ideas have to be property. But they aren’t. uh oh.

Posted by: greg at December 29, 2006 6:06 PM

Scott,
“But if you want to free yourself from liability once the product is out of your hands, then any ownership rights, including the right to copy, go with it.”

Well I didn’t actually want to do that. I wanted it to make sense. There are two different kinds of ownership here in the physical property. The owner of the plane has complete control over maintenence, use, and disposal. So if he doesn’t service it and it crashes it should be his liablity. Other cases would be if he purposely flys it into a building, or if when he’s done with it he dumps it on your lawn.

My argument would in fact be that the copyright holder (not neccesarily the same person as the inventor) would be responsible for design flaws and the like. The copyright holder would be responsible for any liability do to flaws in the design. If he also happens to be the manufacturer he would be liable for manufacturing quality issues.

Of course, if an unauthorized copy fails and ends up killing someone the copyright holder cannot be held liable.

I’m not out for a particular result, other than reflecting consequences back on the actors who generated them. (Actors ultimately being some form of replicator or collection of replicators) I believe that all knowledge, information, progress is generated and driven by a processes of trial and error. I do have a bias and that bias is error correction. If consequences do not reflect back on the replicators that cause them then pan-natural-selection cannot occur.

BTW, that is also what was driving my ideas on good Samaritan law. I think that it can be argued that under certain conditions curmudgeons act as parasites on non-curmudgeons. I think the non-curmudgeons have a right to detach these sucker bearing jerks.

Posted by: Brian Macker at December 29, 2006 6:09 PM

Sasha,

Reposting because I forgot the quotes:

“Your objection to Scott’s statement is not valid.”

You are correct. I didn’t structure it properly. I was thinking of the case where I lend my car out to someone and they crash because I didn’t fill the brake fuild up properly.

If the inventor owns all the planes out there then he becomes liable to maintain them all. It’s just very problematic. Why bother.

It also makes it impossible for the inventor to own his invention without also having access to lots of capital.

Posted by: Brian Macker at December 29, 2006 6:11 PM

I was away for a while, but I came back to see what reply was added to my last comment. I didn’t imagine I’d have to give reading lessons for the fourth time. Here we go again:
Sasha said:
“In your example, the service M was (allow me to quote you):
Condition M can be: having to twist one’s own moustache while making use of Product X,”
Then Sasha adds:
“So instead of choosing “twisting moustache” I chose a more realistic condition in this exchange, such as “painting my fence.””
The problem here is that my quote was:
“…having to twist one’s own moustache WHILE MAKING USE of Product X…
my quote wasn’t:
“having to twist one’s own moustache AS PAYMENT for Product X”
If you don’t understand the difference, you’re beyond hopeless. If English is your first language, you might be retarded. If it isn’t, learn it better, then come to debate. Stop defending your stupid irrelevant example and answer the damn queries.

Moving on…
“Now you say that condition of “not opening product X to understand its inner workings” has no place in a legal contract. WHO EVER SAY IT DID? You are making-up your own “arguments” and than you try to reply on them.”
“Not opening product x to understand its inner working”, or rather not acting commmercially on such understanding (although I don’t see how impeding someone on using knowledge from inside his brain in a commercial venture satisfies personal freedom, which is why I found the acquisition of knowledge to be more workable), is the basis of patent law.
“…would simply stipulate that any commercial use, as well as unauthorized copies it produces and/or profits they yield – will belong to the author (in addition to the asked price). This is how you restrict the use of product only to personal purposes IN A TOTALITARIAN SOCIETY.” Fixed your quote!

Scott said:
“I think that this is a major sticking point of this whole argument. I’m coming around to the viewpoint that, with Sasha’s copyright, the book cannot actually be owned by the purchaser. There seems to me to be no other way to resolve this transaction with the libertarian concept of property.”
I agree with that. In fact, I arrivet to a similar conclusion. Allow me to quote myself:
“Does that mean the type of voluntary transaction that includes conditions that you envision cannot exist? They can exist perfectly well. It simply means that they shouldn’t be called property exchange transactions. Stop referring to Person A and Person B as buyers and sellers. Those terms imply a transaction with change of ownership. Call them Licenser and Licensee, or whatever. Then let them, with full knowledge of the facts, decide if they want to buy or license said product. As it is, people think of themselves as buyers. Don’t try to sneak in conditions into that transaction, because they don’t belong there. Telling someone he’s buying a product and then sneaking a condition in there (when the implicit understanding of “buying” alows no such condition) is fraudulous.”

Brian said:
“Thanks for clarifying that. My little play was not intended to actually even be considered an argument against property rights. Yet you seem to think it did. Not only that but you agree with that conclusion. So apparently you do not believe in property rights at all.”
Read up on sarcasm, Brian.
It’s not that I don’t believe in property rights. It’s that your play doesn’t leave much room for them. If you’re saying that most, or all the transactions we participate in are of a leasing, renting or licensing type, as opposed to property exchange transactions, then obviously the products involved in those transactions are not your property. That isn’t my stand against private property. It’s merely the logical conclusion inferred from the situation YOU posited where we don’t actually buy or sell products.

Brian and Scott:
You two started to argue about what to call those transactions. I don’t think I can help there, but let me suggest what not to call it: property exchange. Don’t call it a Sale. Don’t call the two parties involved sellers and buyers. After that, as Scott said, let the free market decide on the viability of these types of transactions.

Posted by: Cosmin at December 29, 2006 6:15 PM

Also my concern for both good and bad consequences reflecting back on the actors that cause them. In other words justice. In other words what’s needed to reduce error, and support a process that sustains us. My concern for that is what drives me to want to find a set of rules that will do just that with regard to the efforts of writers and inventors.

Isn’t it only natural that the originators of these things get rewarded for their efforts? Of course, it’s possible for such a person to just give it away and rely on fate to return the favor. In that case well tough luck if it doesn’t work out.

Of course, under certain special circumstances whatever underlying replicator(s) were responsible may get the rewarded anyway, so I wouldn’t matter. Sharing the knowledge of how to make fire with your close relatives and clan being an example of that. However, such a strategy is susceptable to freeloading by replicators that should not benefit.

There are other reasons why this might not matter either. In fact some people make that argument “If every one just shares the ideas then everyone will be better off.” This does work but only under special circumstances. This is a form of reciprocal altruism. But is very vulerable to invasion by freeloaders.

In any case there are different strategies and being able to control your inventions allows you to pursue more direct payoffs and therefore more direct strategies. Direct payoffs are less prone to freeloaders and cheaters.

Communism fails for failing to take these things into account amoung other things.

BTW, I can show that slavery is bad for you (and your ancestors) in the long run if you are trying to enslave members of the same species as yourself. I’ve been thinking of all this stuff for a long time and it all seems to fit together nicely. Unfortunately or fortunately I found that these ideas do give some “leftist” arguments a certain amount of traction.

There is a kernal of truth in some of the “bad” stuff like taxing capital. Think about our forebearers living the tribal life and one guy finds the motherload. Isn’t that going to attract outsiders attention and doesn’t the tribe carry the burden of defending him? I don’t think it unreasonable they should expect him to spread the wealth. I don’t think those conditions hold anymore, plus we’ve new social technologies to get around that issue, but it has a kernel of truth.

Posted by: Brian Macker at December 29, 2006 6:30 PM

Cosmin,

You claim sarcasm but I don’t know what to make of your writings. You make the utterly absurd claim that you can just cross your fingers when you sign a copyright contract. Why shouldn’t I believe that you think you can cross your fingers when you sign any kind of contract, including a sales contract.

You’ve really painted yourself into an intellectual corner as far as I can tell.

Posted by: Brian Macker at December 29, 2006 6:34 PM

“If you (as a finder in your scenario) are not a legal owner of the mislaid book – than your use of that book (evidenced by reproduction) is a trespass or unauthorized use. There is no need for contract in order to establish that someone used your property without authorization. Any injuries committed during the course of this trespass constitute a property tort.”

Yeah right. Certainly I’m allowed to handle the book while its on my property, right? —- or is there a little envelope of someone-else’s-private-propertyness around it? And if I can handle it, why can’t I open it? Anyone who would make the distinction between handling the book and opening it to access the sweet sweet ideas within (save for searching for the original purchaser’s name, of course — ha ha) must already be an IP proponent. Hence, you are question begging. My only obligation is to return the book to you in the condition in which you left it, period … if even that … hard to tell what free-market law would have to say about lost books — we are talking about a free market, right?

… and I can just make copy after copy even when your book is returned to you. Am I still “using” your book when you have it back in your hot little hands? That would be interesting. Of course, I’m just using the ideas “per se” and not the book itself (which is all you *really* own).

But frankly, since you’re not advocating force or a state, I don’t really care if you think your scheme will work. The free-market will quickly dispense with all of the bad ideas (and your scheme is an amalgam of many). We haven’t even begun to discuss the mind-bending issues of tracking and counting the copies and copies of unauthorized copies (who counts and how?), truly “lost” books (as opposed to “mislaid”), fee assessment, the impact your scheme would have on book sales, and on and on …

Posted by: Fred Mann at December 29, 2006 6:47 PM

Greg,

“If you want to prove the existence of a God or that ideas are property, then it is for you to prove the positive assertion, not for the doubters to disprove it.”

Neither Sasha nor I believe “ideas” are property. You are not paying very good attention for someone who dismisses others ideas as “rubbish” and “crank doctrine”. Funny thing is that copyright law resembles our “crank doctrine” much closer than yours. Must be a lot of cranks like us out there.

“BM>”
Hey! I resent the use of that abbreviation to refer to me for scatological reasons. 😉

After all these words, I can’t spot a spark clear foundational thinking on the part of IP proponents. So to ask them to “clarify” a main point built on a sand foundation seems like a waste of time. However, it is amusing at times.

My philosophical beliefs are NOT foundationalist so good luck with that.

BM> I think the people on this thread did not even understand Sasha.
Greg response 1): “I am guilty as charged! {laughs}”
BM> I have yet to even see the anti-IP readers on this tread even comprehend what Sasha and I are saying.
Greg response 2): I comprehend it for what it is: rubbish.

Aren’t your two responses contradictory? How can you both not understand something and comprehend it as rubbish?

Oh, yeah I really feel shamed by someone who came up with this howler: ”I will simply point out that a collectivist approach to property will not be convincing to many Mises.org bloggers.” You don’t even know the difference between collectivism and collective ownership. Shows what a bright bulb you are.

There are a zillion crank doctrines to rebuke. Why spend a lot of effort on this one, especially without pay? Who outside the Mises blog is going to give 2 seconds of attention to what your views are?

So go away, troll. You think someone’s paying me to respond to your disruptive nonsense. I will be ignoring you from now on based on your own admission that you are not interested in actually supporting your case. I don’t mind discussing thing with honest people but not someone like you.

Let me also point out that it is you and not me that needs the attention to get his way. Copyright law already is fairly close to how I would have it.

Nor is libertarianism (or anarchism) mainstream by any stretch of the imagination. Have you ever heard of throwing stones around glass houses? Be careful lest ye be labeled a crank.

Posted by: Brian Macker at December 29, 2006 7:12 PM

Fred,
“Yeah right. Certainly I’m allowed to handle the book while its on my property, right? —- or is there a little envelope of someone-else’s-private-propertyness around it? And if I can handle it, why can’t I open it? Anyone who would make the distinction between handling the book and opening it to access the sweet sweet ideas within (save for searching for the original purchaser’s name, of course — ha ha) must already be an IP proponent.”

Well as a matter of fact you can’t open the book and read it. That would be “using the book” and quite unneccesary to what should be your main concern which should be returning it to it’s rightful owner.

That little envelope of private propertyness is in herent in the quite obvious fact it belongs to someone else. Do you think that if you find someone elses property you are therefore free to use it? What gives you that idea. You mean to tell me that if I lean my bike up against a pole to go into the store you are just going to walk up to it, get on and start riding it around?

I’m absolutely sure if you have a sister that kept a diary you found then she’s still mad at you about it. What gives you the idea you can just read a book you found? The owner might not normally care but that doesn’t mean you have the right.

Don’t you get it? It’s not your property. It can’t get much simpler than that.

Posted by: Brian Macker at December 29, 2006 7:21 PM

Fred,
“The free-market will quickly dispense with all of the bad ideas (and your scheme is an amalgam of many). We haven’t even begun to discuss the mind-bending issues of tracking and counting the copies and copies of unauthorized copies (who counts and how?), truly “lost” books (as opposed to “mislaid”), fee assessment, the impact your scheme would have on book sales, and on and on …

It’s already implemented and doesn’t seem to be a problem. Like any crime it can be dealt with one offender at a time. There is no issue with “lost” vs. “mislaid”. You still don’t understand if you think that. No more an issue than with any other “lost” vs. “mislaid” property. No impact on books sales as already proven in practice, and so on and on.

If I write a hundred page novel and copyright it then find out someone is distributing unauthorized copies en mass it’s easy for me to go after them and easy for me to prove that I am the originator. Or don’t you understand the concept of the odds of two people coming up with the exact same string of letters that would span a hundred pages, or even one page. It would be more accurate than DNA evidence.

Enforcement is the problem of the writer and not a concern of yours. If you’ve noticed they are even going after single copy cheaters on the internet. Any copying of a magnitude of concern for the owner of the copyright is bound to be tracible. It requires advertizing like any other mass scale enterprise.

Save your crocodile tears of pity for someone else. The copyright holder doesn’t need them. Even in an anarchist society. I’m sure J. K. Rowling can afford to send her private protection agency after you to make an example for others.

Posted by: Brian Macker at December 29, 2006 7:35 PM

Greg,

I explained my position effectively as evidence by your frustration and a persistent need to reply on my posts when you have nothing to say about this topic.

—-

Cosmin,

It is not my fault that you have difficulties with your logic, but there is no need for such frustration.

If you say that a seller is selling his product – for some asked price and some condition – that means that this condition is part of this market exchange. Legally and logically that is the clear case:
You cannot “discount” your exchange price by not “touching your mustache WHILE MAKING USE” in your example… or by refusing to fulfill the condition of painting fence in my example.

I am sorry if you are differently able and still confused by all this – but it is not my fault, and there is no need for insults (it is kind of funny when someone of your abilities you uses the word “retarded’ for someone else)

—-

Frd Mann,

In common law, if you find a mislaid property, like a coat or a book – there does not have to be a “ittle envelope of someone-else’s-private-propertyness around it.” It is someone’s property – and you know it’s not yours. I’m sorry that you don’t know this, but if you are not the owner of that mislaid item, your unauthorized use is known as trespass. Any injury you cause by this action will be the case of tort.

It is so very simple and I don’t understand why you still keep replying and saying nothing meaningful. Regardless of what you claim, copyright contracts would work as long as we have our private property rights that allow such contract.

—

Brian Macker,

Nope. Ownership does not imply liability for maintenance. It all depends on your contract wit someone who rents.

Posted by: Sasha Radeta at December 29, 2006 7:47 PM

Copyright is not about co-ownership (equal property rights), nor it’s about uneven shares of the same physical property.

Call it what you want but it’s not equal property rights. In fact it already has a misnomer. It’s called intellectual property rights. Problem is that it goes to far and really attempt to provide ownership over an “idea”.

” It is about one person (the author) having total property rights, while some other person is allowed to use that book in certain ways (“non-commercial”) determined by contract.”

That’s not my understanding. Total property rights would include the right to dispose of the property, move the property about, store it, use it, dispose of it, sell it, destroy it, bury it, etc. The author does not retain such rights over a book when he sells it to the buyer. In fact if the author of any of the books I own came over and tried to assert such rights I would tell him to take a hike.

As you’ve said the contract could contain any conditions. Why can’t the contract say the buyer has all those rights except the seller retains the right to copy the book. It would be a hell of a lot easier to sell the book. Plus the seller doesn’t care to retain those rights.

” Dividing ownership based on possible “uses” is problematic. You can divide a piece of land or anything physical – but you cannot divide physical property based on possible “uses.”

Problematic, but it happens all the time. Think encumbrances, rights of way, etc.

” Such division would imply that you actually own two different types of “uses” and that you can somehow split them between two owners. “

You can in many cases. Why not? Especially when one person holds the title to allow something to be done with the object that cannot be done without owning both titles. Like I might hold an encumberence against raising chickens on my neighbors property. I can’t raise chickens there and neither can he. What about a right of way where I am only allowed to cross but you can do anything except restrict access? Doesn’t need to be co-equal either.

We might set up a hunting lodge that has different classes of membership based on the kind of animal being hunted there. Thus a crow hunting membership and a deer hunting one. We might issue a limited amount of each but not the same amount and not at the same price.

Heck this is common with stocks. There are common stocks and differing classes of preferred stock.

“You cannot accuse your ‘co-owner’ or other parties of trespass based on your control/ownership of any potential ‘uses’ – because that is a self-contradictory slave-ownership.”

You lost me. If I owned an encumbrance on your ability to raise chickens on your property then why couldn’t I accuse you of raising them and stop you. How is that self-contradictory or slave ownership?

The same goes for if someone with a right of way on my property tries to build a house there or if I own a right of way and the property owner tries to build a fence. Our co-use of the property is not contradictory until such time as one of us tries to violate the contract.

The same goes for the hunting club. If we catch someone who holds a crow hunting membership downing a deer then we take action.

”This is not a legal way to establish ‘copyright,’ although your understanding of its implications is sound and your criticism of anarcho-communists is great.”

I’m not convinced by your arguments about co-ownership. I’m also concerned now that I made an assumption that I shouldn’t have. Are you lawyer or even a law student? How come you don’t know about these kinds of co-ownership contracts? Maybe you didn’t recognize them as such? They really are you know. Is there some other legal term for them?

”I don’t know if I explained my position clearly, but this is not a simple matter. “

I haven’t seen any explanation. Perhaps it was on another thread. I had no idea you thought the contract would make the copyright holder the full owner of the book. That’s not what Rothbard had suggested if I recall correctly. It’s been awhile. I don’t understand how you sue “fourth” and “fifth” parties.

We are talking about difference between libertarian “negative obligations” (prohibiting some uses of your own property) versus quasi-ownership based on permitted “uses”.

I don’t understand what you mean. Can’t be that hard to explain, or provide a link to. Heck, you are claiming a contract can be written based on this. Go ahead and write one. You can simplify as I’m not going to be picky. Here’s mine:

“X the seller agrees to relinquish all ownership rights over said book except one. The seller retains an encumbrance over the book that prevents the buyer, any of his heirs, or beneficiaries from coping the book. This encumbrance is in the form of a separate unary document, which applies to any other copies of this book that are sold by the copyright holder under a duplicate of this contract. The encumbrance document, henceforth know as “The Copyright” is to be considered a contract that can be bought and sold in it’s own right. The existence of the copyright has been marked upon the property being sold and may not be removed. The copyright itself is registered and stored by a private title company. The property shall not be provided to other parties outside the boundaries of this contract. Should the property be abandoned in a way that does not destroy its usefulness then ownership of the object will revert back to the copyright holder. That is, unless the abandoned object is found by a person willing to abide by the copyright.“

I’m not a lawyer but you get the drift.

Posted by: Brian Macker at December 29, 2006 8:32 PM

Sasha,
The book would have something in it to the effect:
“@Copyright 2006 Registered with title company X. This book originally authored by so-and-so and the current copyright holder at time of publication is so-and-so. If this book is lost and the owner cannot be found the title to the book reverts to the current copyright owner. If you wish to abide by the terms of the copyright then you may assume title unilaterally upon failure to discover the books owner.”

Posted by: Brian Macker at December 29, 2006 8:41 PM

I am not familiar enough with law to translate my understanding into legalese.

Neither is Sasha, obviously. The only actual lawyer posting in this thread, AFAIK, is Sasha’s bête noir: Stephan Kinsella.

From my novice point of view someone taking a book off the beach he didn’t own and copying it is trespass.

What if he dropped it overboard while on a ship, and it washed up on the beach?

From an economics viewpoint I do understand that all the copies that result are “product” that is rightfully do to the owner of the copyright.

Hmm. So if we assume that such a thing as “copyright” exists, and has an owner…we can prove that copyright exists and has an owner! Wow! This is much better logic than Kinsella’s!

You just never paid me for that right with regard to something I own that happens to reside in the computer.

Again, you’re just assuming it is something you own. If all you can do on this thread is repeat “if I own X then I own X”, that seems rather pointless. The question is do you own X? Stephan has presented a rather demonstration that you don’t. You and Sasha don;t like that for some reason (probably because you confuse property with selling stuff, and think that if you can’t sell as much or at such a price you’re being “robbed”), so just keep asserting that you do, ad infinitum. (Well, no: Sasha keeps saying he doesn’t and then he does and then he doesn’t: you can’t own ideas, oh but if the idea’s in a book, you own the idea, but I never said you can own ideas…) All this talk of contracts and so on is just so much blather to cover up that you’re just making raw assumptions. Sione has tried to get Sasha to explain (and thereby recognize) his assumptions, but Sasha just blows him off.

Posted by: Peter at December 29, 2006 8:58 PM

Brian,

You misunderstood the logical problem of dividing property based on ownership of someone’s use of it. Our shared ownership of a house cannot be divided based on types of activities (use) that someone may have in it… We can only divide it based on percentage of total ownership of a physical item.

But first of all, drop the term “co-ownership”, since it means “equal ownership rights over the same item.” Since you are familiar what this term means, there is no excuse of using it any further in the context of what you now try to explain. You said you’re not convinced about my arguments about co-ownership. FINE – please look it up in any textbook, legal dictionary, wherever.

I also said that copyright is about one person (the author) having total property rights, while some other person is allowed to use that book in certain ways (“non-commercial”) determined by contract.
To which you responded: “That’s not my understanding. Total property rights would include the right to dispose of the property, move the property about, store it, use it, dispose of it, sell it, destroy it, bury it, etc.”

Yes you are allowed to “move, destroy, bury it…,” but you are not allowed to “reproduce it, publicly broadcast it, upload it on the internet, et cetera.”
But you missed my point. If someone who sells the use of DVD states that they are for personal use only – that does not imply that he owns any “commercial use”. You cannot “own” everyone’s “use.” Instead, you own the DVD, but you choose to allow only certain uses of it (big difference in terms of what you own).

You say: “Think encumbrances, rights of way, etc.” I don’t think you understand these terms either. Encumbrances are your duties to be paid – but they don’t take away the ownership title. “Right of way” also proves my point – you can use someone else’s property, but you don’t get the ownership of “use”

I don’t have time or patience to read the rest of the stuff that is based on a false notion that use of someone’s property like “right of way” implies co-ownership over some property.

I saw you asked me how am I “going to sue fourth or fifth parties”. That’s just misunderstanding of basic tort when it comes to any injury. You do not sue those that are not responsible to direct injury to you. Third party will responsible for everything he did to my buyer – and than this third party will have a case against someone else if his liability is caused by someone’s trespass against him… and so on.

—–

Peter,

Unfortunately for you, Mr. Stephan Kinsella (who could not apply the definition of “theft” here http://blog.mises.org/archives/005713.asp and made some mistakes with basic concepts like “scarcity” and “human action”) explained this in our previous discussion:

You cannot unilaterally change the conditions of some exchange. You can’t say – I crossed my fingers when we bargained – and now I will withhold my part of the deal.

You may think you made a mistake – but you cannot refuse to deliver someone else’s goods or services, just because you think you made a bad deal – ex post facto.

The fact that you struggle with these simple concepts only show your incredible ignorance. By the way, Sione did not try to get me to explain anything meaningful. He was trying to get the definition of “property” after which he wanted the definition of “own”, than he would probably ask for definition of “individual”… That’s just insane.

Posted by: Sasha Radeta at December 29, 2006 9:30 PM

Tell me, Sasha, is my wording of the same situation wrong, or are the 2 equivalent? Because if they do amount to the same thing, you could stop stubbornly hanging on to your version at least for the sake of advancing the conversation. Since you do hang on to your version, it must be because you see a difference. Tell me then why my interpretation of the transaction is wrong. I dare you.
Here’s why I think your interpretation is wrong. You say:
“If you say that a seller is selling his product – for some asked price and some condition – that means that this condition is part of this market exchange.”
I say:
That seller is thinking he’s selling a product with a certain condition attached to it for a certain price. In truth, he’s selling a certain product with no condition attached to it for that same exact price. Or, he’s licensing (renting, leasing, whatever…) a product with a certain condition attached to it for a certain price, all the while fraudulently misrepresenting himself as a seller of said product.
If there is a lapse of logic in there, I’d like you to point it out for me.

Brian said:
“Funny thing is that copyright law resembles our “crank doctrine” much closer than yours.”
“Copyright law already is fairly close to how I would have it.”
“It’s already implemented and doesn’t seem to be a problem.”
Rothbard says that kind of argument is crap. http://www.mises.org/story/2429
It’s on the first page since a couple of days ago…
“If you’ve noticed they are even going after single copy cheaters on the internet.”
Yes… the excesses of government are awesome arguments for your position. More please!

Also, Brian, since you seem so hung up on the “fingers crossed” wording, let me rephrase the original comment in a more clear way:
Person A has Product X for sale. Person A imposes condition M as necessary to the transaction.
Person B wants Product X. Person B doesn’t want to be subject to condition M. Person B dismissively promises to abide by M in order to avoid wasting time arguing with a deranged individual, knowing full well Person A has no right to impose conditions on the use of Product X in a property exchange transaction (sale). Person B then leaves and enjoys use of Product X.
Person A finds out person B didn’t satisfy condition M. He demands reparations.
Person B contends Person A had no right to set conditions (other than payment for acquisition) that would limit the use of Product X by Person B in the first place, unless specified at the beginning that he was not selling, but merely renting the Product X.

Posted by: Cosmin at December 29, 2006 10:08 PM

Peter,
“Again, you’re just assuming it is something you own.”
Wrong. I gave a detailed explanation of how I come to own them. I own things produced with my capital. It’s as simple as that. My ownership of the capital was established by my owning the raw materials from which I created that capital (productive good).

It’s very straightforward. If I own some iron and form it into a mold that can make an identical mold then I own that mold. If you steal my mold and use it to make an identical mold then I still own my original and also am partial owner in the created mold. You used my capital to make that second mold.

This is very a very simple concept. My ownership is justified in exactly the same way that it would be in the case of you breaking into my factory to produce something.

You know I can use the same ridiculous arguments you guys are using to show that you don’t own anything. I can just keep stating that you are assuming you own something when that is in fact the question at hand.

Very simple. There are no property rights. Prove there are! (ok now whatever you say I will just reply “You are just assuming you own it”.) We will then get nowhere. If you don’t accept basic principles there is no way to prove anything. You guys apparently don’t believe that capitalists own the product produced by their own capital, you don’t believe people can jointly own things, and you believe whatever you touch is yours so long as the owner is not around.

I have established copyrights from basic accepted principles and you guys either can’t understand that or are unwilling to admit it.

Posted by: Brian Macker at December 29, 2006 10:17 PM

Sasha,

First you say the author has total property rights in the book. I then list all the things that would count as total property rights. They you say “yes” and act as if you were talking about the buyer of the book.

I say the buyer has total property rights except for the copying, while the author has next to no rights in the book. You’ve got it backwards or something.

Posted by: Brian Macker at December 29, 2006 10:30 PM

“I say the buyer has total property rights except for the copying, while the author has next to no rights in the book. You’ve got it backwards or something.”

The buyer has total property rights, no exceptions. If he doesn’t have the right to copy, he’s not a buyer. He’s a renter or something.
You’re saying noone can buy a book. I’m OK with that. If that’s the sort of transaction people want to involve themselves in, more power to them.

Posted by: Cosmin at December 29, 2006 10:39 PM

I can’t believe what I am forced to explain on Austrian blog…

Cosmin,

I am not stubbornly hanging on anything – I am only telling you legal facts based on simple logic.

You said:
—–
That seller is thinking he’s selling a product with a certain condition attached to it for a certain price. In truth, he’s selling a certain product with no condition attached to it for that same exact price.
—–

You don’t seem to understand what you just said. You say that seller is “thinking” that he is selling a product with some conditions attached to asked monetary price.

The question in such legal issue is following: why does this seller thinks that he arranged the exchange based on this condition (which is a part of his total exchange value)?

Well, if he only imagined or hallucinated that his buyer accepted some additional terms of exchange – than you are absolutely correct. In that case, he is selling his product with no special conditions attached to price and he should seek professional help for his psychosis.

ON THE OTHER HAND, if we stick with your original example and if we find that the seller thought that he is entitled to something more than monetary compensation – because the buyer made a contractual promise that he will provide it in exchange for that product (it is a product in this case, and no Sione, I’m confusing definitions of “property” with “product”) THAN THE BUYER COMMITED A FRAUD – and he will be responsible for theft if he does not correct his liability. You cannot unilaterally change the terms of already completed market exchange.

In this second case, the buyer got this seller’s product only because he legally transferred property title on his money and services to be delivered at some later day. He cannot be allowed to commit the fraud by not delivering promised services. That would mean the end of private property rights… imagine if Pizza Hut takes your order for a pizza and chicken-wings and charges you in advance – and than just delivers you a pizza, claiming that your agreement did not have chicken attached…

Cosmin, I just hope you are joking…

Posted by: Sasha Radeta at December 29, 2006 10:45 PM

To quote Stephan Kinsella:

——
“Let me give a clearer example that you cannot worm out of. We agree that I will buy your hunk of cheese for a dollar. The agreement is that if and when I tender my dollar, the cheese becomes mine. Now, I lay down my dollar… According to Rothbard and me, the cheese is now mine, wehther you like it or not. Title to it has already shifted to me. So if you refuse to hand it over, you are now in possession of my property without my consent–that’s trespass.”
——-

I hope Peter likes this one!

In other words:

You cannot accept terms of exchange just “to avoid wasting time arguing with a deranged individual,” as Cosmin stated and shocked everyone who is sane. If you exchange ownership titles with someone and you obligate yourself to provide some service – in order to get his product – than you cannot “change your mind” by not providing your end of this market exchange. Try doing that in Hertz or Avis.

Posted by: Sasha Radeta at December 29, 2006 10:57 PM

Cosmin,

Person B dismissively promises to abide by M in order to avoid wasting time arguing with a deranged individual, knowing full well Person A has no right to impose conditions on the use of Product X in a property exchange transaction (sale).

This is called fraud. If you are a libertarian then you’ve violated your premises. You’ve signed a contract without having any intent in holding up your end of the bargain. If you think the contract is invalid because it is somehow illegal then you shouldn’t enter into the contract in the first place.

This is exactly the same as “crossing ones fingers”. That’s the whole point of crossing ones fingers, to justify fraud.

If you believe you can do this then you believe in fraud and the “Avis Play” is accurate. All you’ve done is changed the use of crossing ones fingers as a rational for believing the contract is void to the demonizing the other party as deranged.

So in the play just substitute the part about crossing the fingers with you exclaiming to the Avis rental representative “I only signed the contract to avoid wasting time arguing with a deranged individual, knowing full well Avis has no right to impose conditions of return on a car sale”. That’ll fly.

Where do you get this deranged idea you can sign contracts without abiding by them when you recieved goods in exchange?

You know that I have worked with breeding animals before and if you are sold an animal with breeding rights they charge you more. They can also sell you a spayed animal for less. The price differential is your compensation for abiding by the terms of the contract, “NO COPYING!”

I’m sure if I was sold an early copy of Harry Potter along with the right to copy it would cost a hell of a lot more than the normal price of ~$20 for the copyrighted version.

BTW, Peter, Rothbards objections to government have nothing to do with the rejection of property rights. Rothbard objected to the governments monopoly on coercion and involuntary taxation. I’ve read “Man, Economy, State” and several other of his books. I saw nothing that ruled out copyrights. He even has written on why he thought copyrights are the way to go.

I don’t have time to read your link but I did scan it for the word “copyright” and it was nowhere to be found. Nor the term “intellectual”. I looked for all uses of the term property and none address intellectual property.

At the end he says, “There are other problems of the basic law code which there is no time to go into here: for example, the definition of just property titles”. This sentence indicates to me that he did not address the issue at all.

Posted by: Brian Macker at December 29, 2006 11:01 PM

BTW, you guys are totally wrong on Rothbard. Go here which is chapter 10 of “Man, Economy, and State” and search for the section titled “7. Patents and Copyrights”. Read it an weep.

He thinks copyrights are applicable to inventions.

In fact he says “The crucial distinction between patents and copyrights, then, is not that one is mechanical and the other literary. The fact that they have been applied that way is an historical accident and does not reveal the critical difference between them.[96]The crucial difference is that copyright is a logical attribute of property right on the free market, while patent is a monopoly invasion of that right.”

I was tempted to start posting quotes from Rothbard as my own so you’d essentially be arguing with Rothbard. But frankly I don’t have the time.

Here’s a bunch of Rothbard’s quotes from this section (no more of this text was written by me but I did bold the important points so people with less time can quickly see I’m right. Seems he agrees with me and not with you.):

Turning now to patents and copyrights, we ask: Which of the two, if either, is consonant with the purely free market, and which is a grant of monopoly privilege by the State? In this part, we have been analyzing the economics of the purely free market, where the individual person and property are not subject to molestation. It is therefore important to decide whether patents or copyrights will obtain in the purely free, noninvasive society, or whether they are a function of government interference.

Almost all writers have bracketed patents and copyrights together. Most have considered both as grants of exclusive monopoly privilege by the State; a few have considered both as part and parcel of property right on the free market. But almost everyone has considered patents and copyrights as equivalent: the one as conferring an exclusive property right in the field of mechanical inventions, the other as conferring an exclusive right in the field of literary creations.[93] Yet this bracketing of patents and copyrights is wholly fallacious; the two are completely different in relation to the free market.

It is true that a patent and a copyright are both exclusive property rights and it is also true that they are both property rights in innovations. But there is a crucial difference in their legal enforcement. If an author or a composer believes his copyright is being infringed, and he takes legal action, he must “prove that the defendant had ‘access’ to the work allegedly infringed. If the defendant produces something identical with the plaintiff’s work by mere chance, there is no infringement.”[94] Copyrights, in other words, have their basis in prosecution of implicit theft.

We have seen in chapter 2 that the acid test by which we judge whether or not a certain practice or law is or is not consonant with the free market is this: Is the outlawed practice implicit or explicit theft? If it is, then the free market would outlaw it; if not, then its outlawry is itself government interference in the free market. Let us consider copyright. A man writes a book or composes music. When he publishes the book or sheet of music, he imprints on the first page the word “copyright.” This indicates that any man who agrees to purchase this product also agrees as part of the exchange not to recopy or reproduce this work for sale. In other words, the author does not sell his property outright to the buyer; he sells it on condition that the buyer not reproduce it for sale. Since the buyer does not buy the property outright, but only on this condition, any infringement of the contract by him or a subsequent buyer is implicit theft and would be treated accordingly on the free market. The copyright is therefore a logical device of property right on the free market.

The patent is incompatible with the free market precisely to the extent that it goes beyond the copyright. The man who has not bought a machine and who arrives at the same invention independently, will, on the free market, be perfectly able to use and sell his invention. Patents prevent a man from using his invention even though all the property is his and he has not stolen the invention, either explicitly or implicitly, from the first inventor. Patents, therefore, are grants of exclusive monopoly privilege by the State and are invasive of property rights on the market.

The crucial distinction between patents and copyrights, then, is not that one is mechanical and the other literary. The fact that they have been applied that way is an historical accident and does not reveal the critical difference between them.[96]The crucial difference is that copyright is a logical attribute of property right on the free market, while patent is a monopoly invasion of that right.

Posted by: Brian Macker at December 29, 2006 11:23 PM

To B. Macker, greg and others:

My main point about the purple apple was to differentiate between tradition physical property rights and intellectual property rights than issues about patents and copyrights.

Technically property rights are primarily about the issue of theft, right? The tradition view of why theft is bad is because it deprived the owner of the object and its usage. Hence if a person stole a purple apple the farmer would have one less to sell and be a loss. Similarly, B. Macker, your scenario of the driver who fills up a fuel tank with petrol and driving off without paying also mean the owner has been deprived of fuel to sell and is at a loss. I think there are still cases in which the onus of proof is whether the owner has lost out due to an alleged theft. For example: if you B. Macker had a laptop on the beach connected to the Internet (with a plan for unlimited downloads), you leave it, I stroll along use your computer to surf the Internet for stuff which is neither copyrighted nor illegal and then walk away, you’d have a hard time in court trying to prove I stole anything on the grounds that I didn’t deprive you of anything. You could get me on a charge on trespass (which I suppose is another property right issue too, eep!) but not theft.

On other hand, the copying of information does NOT deprive the owner of any physical material, such as the person who finds a book on the beach and scans it into his computer. This then I presume where intellectual property came into existence inasmuchas the owner strictly speaking wasn’t deprived, but the thief has obtained a good to which he wasn’t entitled to get for free.

Nonetheless I gave an example of a purple apple, as opposed to an existing apples, on the grounds of if someone bought the apple, saved the seeds, planted them, obtained their own purple apples from their hard work, green thumbs and TLC, should the farmer have any right to own ‘purple apples and their seeds’ totally? Or does the farmer only have the right to grow and market like anyone else?

But the rest of yous get endlessly debate about what the type of enforcement should be and stuff . . .

Posted by: Sam at December 29, 2006 11:37 PM

Cosmin,

You say:
“The buyer has total property rights, no exceptions. If he doesn’t have the right to copy, he’s not a buyer. He’s a renter or something.
You’re saying noone can buy a book. I’m OK with that. If that’s the sort of transaction people want to involve themselves in, more power to them.”

Rothbard replies:
“This indicates that any man who agrees to purchase this product also agrees as part of the exchange not to recopy or reproduce this work for sale. In other words, the author does not sell his property outright to the buyer; he sells it on condition that the buyer not reproduce it for sale. Since the buyer does not buy the property outright, but only on this condition, any infringement of the contract by him or a subsequent buyer is implicit theft and would be treated accordingly on the free market. The copyright is therefore a logical device of property right on the free market.”

See Rothbard still refers to the fellow as the buyer even though he “does not buy the property outright, but only on this condition”.

He then goes on to speak of finger crossers.

” any infringement of the contract by him [the buyer] or a subsequent buyer is implicit theft and would be treated accordingly on the free market”

Posted by: Brian Macker at December 29, 2006 11:55 PM

I know you guys think I’m some novice interloper but I self studied Autrian Ecomomics for a half decade or more. I’ve read many works by many of the Austrians. A shitload of books. Skousen, Rothbard, Mises, Reisman, Hayek, Hazett and Hoppe. I think only single volumes by Hoppe but for the rest several to many works. I vaguely remember reading Kirzner too but can’t recall.

That’s why I know exactly where to look for quotes to counter these nonsense claims that Rothbard was anti-copyright. He wasn’t and furthermore thought they could be applied to inventions. BTW, I have read Roderick Longs, and Kinsellas articles in the past and did not find them to be convincing then and I doubt my opinion have changed. I haven’t heard any new arguments in this area in a while.

It’s all nonsense about how costly to enforce, how it has bad roots, how it suppresses innovation, and the like. All utterly irrelavent to the point of whether copyrights are free market friendly.

Posted by: Brian Macker at December 30, 2006 12:01 AM

Sam,

No the farmer does not have the exclusive right to purple apples and their seeds, because I could invent my own strain of purple apples without ever using one of his.

You however could not grow purple apples from his seeds if you had signed a copyright to that effect. Nor could the next buyer, and of course no one who stole seeds from your apple could either.

The farmer does not own the “idea” of purple apples.

Posted by: Brian Macker at December 30, 2006 12:07 AM

To Brian Macker:

I asked the question on a moral/proverbial Libertian scale of ‘SHOULD’ the farmer have any rights to the purple apples other than his own hard work and selling? In a proverbial Libertarian world would the farmer be expected to own the seeds as well?

I wasn’t asking in the current legal setting for patents and copyrights.

Posted by: Sam at December 30, 2006 12:18 AM

Sam,

I already cover the issue of “depriving of property” and that is not the test for whether you are violating someones property rights.

I think there is more that you don’t understand based on reading your last post. I will address one issue but there were several errors.

Suppose I have a press and a mold that goes in it. The mold is capable of producing 100,000 objects before it wears out. Raw plastic is a penny an ounce, and the mold makes an object weighing an ounce that can sell for one dollar. Lets also suppose that it costs one cent to run the press once. If I stick the plastic in the mold and use the press then the raw material and press account for two cents of the value of the object and the mold for the remainder ninty eight cents. So my mold can produce a total value of $980,000 over it’s lifetime.

You seem to think that you can come in and use the mold once and I have not lost any value. Nonsense, you have stole $0.98 from me at a minimum. That’s if you never copy it. However if you take this stolen item from me it is very easy to create another mold from it. We I to sell an such an item for copying purposes I would require a much higher price. I would charge you something on the order of $980,000 and not $1 for such an item. Even though it is a physically identical item the contractual agreement makes a difference in the value.

You are familiar with the fact that the same potato can have different values depending on location right? A potato buried in the field is worth a small fraction of the value of one in the market and even less than the same one baked an on a plate at the restaurant.

Well the same principle applies here. A plastic unit from which you can make a mold is more valuable from the same shaped object from which you cannot. Suppose that the reason for this was physical instead of contractual. Suppose like the “mission impossible” tape that the plastic object would self distruct if an attempt were maded to copy it. Then certainly it would be of less value than one that didn’t.

So when you steal the plastic object with the intent to make a mold of it you are actually stealing an item of much higher value. A good metric for how much value you have stolen is precisely how many copies you end up making with it. Potentially, the number is unlimited but in reality the market will bear only so many. This calculation would have to be determined in the most fair way possible. The only think that isn’t under doubt is that you stole from me.

Posted by: Brian Macker at December 30, 2006 12:26 AM

Well I better go to bed. My wife has off for the next few days and she’ll kill me if I spend that time on the computer. I might sneak a peek but I’m not going to be able to spend lots of time responding.

I still got no answer on if Sasha was a lawyer or studing law, or has a kid sister who is a law clerk or what? When I offer the fact that “I’m no lawyer” I sort of expect a reply of “Me neither” or “Well I am”. Silence on the subject seems to be a lie of omission. For now I am assuming Sasha doesn’t know anything more about the law than he found on the internet.

Posted by: Brian Macker at December 30, 2006 12:32 AM

Isn’t that what I said B. Macker? In times long ago, the days of products being made from individual hand-power, meant that copying an object would take just as much effort, if not more, than just buying the darn thing? The only viable alternative was actually outright thieve the object. Hence theft was measured through the loss to the ye olde property owner.

However nowadays when information, in particular, can be mass-copied through electronic impulses means the old notion has to be thrown out and the new measure is: has someone obtained that which they didn’t/shouldn’t have the right to access without some sort of a fee.

I thought, to a certain extent, I was sort of agreeing with you that notion of protecting property rights has been slightly modified over time to close off certain loopholes of theft.

Posted by: Sam at December 30, 2006 12:41 AM

Brian said: “Silence on the subject seems to be a lie of omission.”

I don’t have time to read all of your long texts, especially not after your co-ownership errors or that funny attempt with the airplane “liability”…

I didn’t know you asked me whether I’m a lawyer… And I don’t care what you expect as my response when you say something that everyone knows (like it was a secret before you said it). No, I’m not a lawyer. Economics is my field.

BTW,
You didn’t even understand the problem with claiming the “ownership” over everyone’s use and how it’s different from real property rights that are based on negative obligations of others. Maybe I should have listened to Sione and just list some basic definitions.

——

Sam said:

“On other hand, the copying of information does NOT deprive the owner of any physical material, such as the person who finds a book on the beach and scans it into his computer.”

I couldn’t read everything Brian Mackler wrote… but I think that no one here claimed that “copying of information” deprives the owner of any physical material.

I claimed something completely different – that by violating terms of use and not providing the damages that were specified in contract (as a part of exchange) you are indeed depriving the owner of his property. The owner has the property title on these damages, which amount to the amount of all unauthorized copies and/or profits they yield.

Posted by: Sasha Radeta at December 30, 2006 1:00 AM

Sasha: By the way, Sione did not try to get me to explain anything meaningful. He was trying to get the definition of “property” after which he wanted the definition of “own”, than he would probably ask for definition of “individual”… That’s just insane.

You claimed something was property. Sione asked “what makes something property” and you said “ownership makes property”, which is pretty much a non-response, prompting Sione to ask “OK, so what defines ownership?”. He’s clearly trying to get you to explain your underlying theory about what kind of things can be property, what property is, etc. I assumed you were smart enough to understand that and were just dodging the question, but you really don’t get it.

Brian: Wrong. I gave a detailed explanation of how I come to own them. I own things produced with my capital. It’s as simple as that. My ownership of the capital was established by my owning the raw materials from which I created that capital (productive good).

It’s not “as simple as that”. Actually, it’s simpler than that: you own the raw materials, thus you continue to own the same materials after your “productive step”; your “ownership of capital” has absolutely no impact on the situation. But that doesn’t explain your purported ownership of other people’s raw materials that undergo a similar “productive step”.

It’s very straightforward. If I own some iron and form it into a mold that can make an identical mold then I own that mold.

Agreed.

If you steal my mold and use it to make an identical mold then I still own my original and also am partial owner in
the created mold.

This is your unwarranted assumption. I’m guilty of theft, sure; you should get your original mold back, at least, and if we accept Rothbard’s “two eyes for an eye” doctrine, a second mold would be fine compensation. But if I’ve made 50 copies, you only get one of them; the other 49 are wholely mine.

Very simple. There are no property rights. Prove there are! (ok now whatever you say I will just reply “You are just assuming you own it”.) We will then get nowhere.

Assume there are no property rights. Then you have no right to eat the food that keeps you alive, for instance. Therefore you’re dead and not in a position to engage this argument. Since you’re not dead, you must accept that it is possible to obtain a property right in food (so I know that if you say “there are no property rights”, you must be lying!) Etc. See Hoppe for a more complete (and lengthy) explication.

That’s why I know exactly where to look for quotes to counter these nonsense claims that Rothbard was anti-copyright.

What claims? Nobody ever claimed that. Rothbard was mistaken. And now he’s unfortunately not in a position to revise his error.

Well the same principle applies here. A plastic unit from which you can make a mold is more valuable from the same shaped object from which you cannot.

Yes…and? So what? That’s the source of your misunderstanding I think: believing that you have some right to the “value” of things. But that’s a nonsense.

Posted by: Peter at December 30, 2006 5:24 AM

Peter,

Don’ be dishonest. Sione did not ask me “what makes something property”… He asked me to define this term, after which he asked me to define the word I used in this definition. That’s just insane.

Again, if you or Sione want to make a point about “ownership” and how it pertains to my arguments – JUST DO IT. I’m still waiting – why don’t you show how definition of “ownership” would prove anything against my arguments. Unfortunately for both of you – you are equally clueless.

—-

You said to Brian:
“But if I’ve made 50 copies, you only get one of them; the other 49 are wholely mine.”

NOT TRUE – if you stated in your contract that these copies will belong to the author, the property title over these copies is his. If this copycat was allowed to change his terms of exchange (his contract) then there would be no property rights and we would have freedom of fraud and theft. Look at my response to Cosmin when he advocated something that silly.

“Rothbard was mistaken. And now he’s unfortunately not in a position to revise his error.

Your arrogance is not backed by any argument. The fact that you even claimed what Rothbard would do if he were alive (“support your nonsense and abandon his sound arguments”) still makes me sick. Would you please provide a single logical argument against my position – and then try to argue against one Murray Rothbard.

Posted by: Sasha Radeta at December 30, 2006 9:04 AM

Sasha, the crux of my argument, that you don’t understand, is that there is a type of transaction, called a Sale, that accepts no condition.
At least part of the reason why you didn’t understand my point is that I failed to construct my arguments with sufficient clarity. That happened because, while I had a clear image of the point I wanted to get across, the reasoning and (especially) the verbiage were somewhat of a work in progress.
Let me resume the situation in a way that will hopefully allow us to settle the issue.
We have a seller. Using the car analogy, we can say we have a car dealer. A prospective buyer enters the shop. After they agree on the make and model, our car dealer draws up a sale contract. My position is that this sale contract allows no condition to be placed as to the use made of the vehicle. Meaning that it can not include conditions as to how much the buyer is allowed to drive per year, or maximum RPM to be reached, or a condition that has the buyer return the car after a period of 10 years. Such conditions can be put on a contract of a transaction, but this latter would be a rental contract, not a sale contract. I guess our car dealer could write such conditions on a sale contract (if he were deranged), the same way he could apply drool to the sale contract, but in both cases, it would be worth spit.

Brian:
“You know that I have worked with breeding animals before and if you are sold an animal with breeding rights they charge you more. They can also sell you a spayed animal for less.”
But did anyone sell a breeding (not spayed) animal with a condition in the contract that said it can’t be used for breeding?
Breakin down Rothbard’s quote:
“This indicates that any man who agrees to purchase (rent) this product also agrees as part of the exchange not to recopy or reproduce this work for sale. In other words, the author does not sell his property outright (or at all) to the buyer; he sells (rents) it on condition that the buyer not reproduce it for sale. Since the buyer (acquirer) does not buy the property outright, but only (rents it) on this condition, any infringement of the contract by him or a subsequent buyer is implicit theft and would be treated accordingly on the free market.”
Replace Rothbard’s words with those in parantheses and his meaning isn’t diminished one iota. So why didn’t he replace them himself, you say? Perhaps he was too preoccupied with concepts and ideas to be quibbling over words. However, his usage of “buyer” and “seller” doesn’t necessarily represent an endorsement of these. Maybe he just didn’t study the question, for noone had brought it up. I surmise that if he had looked into it, he would’ve realized those words weren’t at their place and made the necessary edit. And if he hadn’t, he would’ve been wrong.
Cheers, all!

Posted by: Cosmin at December 30, 2006 5:41 PM

Cosmin,

You can’t be serious. Every sale is a contract in which some entitlements are exchanged. If you accept some conditions attached to price – and you accept a contractual obligation to perform some service in exchange for some product, guess what… YOU CANNOT CHANGE THE TERMS OF EXCHANGE WITHOUT OWNERS CONSENT. If you could do that, you could accept the money for some product and than claim that the “condition” to deliver all of the merchandise was not included (even though it is stated in your contract).

There is no way in which you can justify fraud and theft… You are insulting this blog with your postings.

PLEASE! Ask Stephan Kinsella whether you make any sense, if you don’t believe me. I’m feeling bad for you.

Posted by: Sasha Radeta at December 30, 2006 10:24 PM

NOT TRUE – if you stated in your contract that these copies will belong to the author, the property title over these copies is his.

What contract??

Your arrogance is not backed by any argument. The fact that you even claimed what Rothbard would do if he were alive (“support your nonsense and abandon his sound arguments”) still makes me sick.

Why? I never met him, but Rothbard seems to have been an intellectually honest man who was willing to recognize and correct his errors when they were brought to light. It’s hardly “arrogance” to suggest that he might do that, is it? Following Rothbard’s own logic, as Kinsella has shown, leads to the opposite conclusion from that Rothbard drew 45 years ago. Therefore I conclude that Rothbard today would indeed reverse his older position.

Posted by: Peter at December 30, 2006 10:28 PM

PETER ASKED: “What contract??”

The contract in which you exchange property titles… you know… MARKET EXCHANGE. I mean, do you even know what are we talking about?

Rothbard would never advocate violations of contracts (private property rights). When someone (as ignorant as you) assumes that Rothbard would start speaking against his own ideals if he were alive (“if only he read your nonsense in this thread”) – that kind of indecency can only make us sick.

Even Kinsella claims that you have to respect your contractual obligations. You can’t offer your services to someone in exchange for his property – and then “change your mind” and not provide your end of the deal. I quoted Kinsella’s statement in which he says that you can’t change your mind even before you take someone’s product, because contract already took place (his cheese example).

Please, stop embarrassing this blog.

Posted by: Sasha Radeta at December 30, 2006 10:45 PM

Sashinator:

Rothbard would never advocate violations of contracts (private property rights).

A contract is just a transfer of title to property. Not private property itself. Do you understand the difference, dear scientistic Sasha? Or do I need to give you ergs of energy for you to grasp it?

Even Kinsella claims that you have to respect your contractual obligations.

Really? Where?

You can’t offer your services to someone in exchange for his property – and then “change your mind” and not provide your end of the deal.

“Can”? Do you mean this literally? Do you have any idea what you are jabbering about, your poor Russian?

Please, stop embarrassing this blog.

Out of kindness, I will not reply to this comment.

Posted by: Stephan Kinsella at December 30, 2006 10:54 PM

[deleted due to rudeness] Stephan,

Of course that I meant that contract is a transfer of property title. I did not say it’s a “delivery” of physical property.

Anyway, of course you “can” do anything – but not lawfully (I thought we were talking about that).

Anyway, let me remind you about this statement of yours:
“Let me give a clearer example that you cannot worm out of. We agree that I will buy your hunk of cheese for a dollar. The agreement is that if and when I tender my dollar, the cheese becomes mine. Now, I lay down my dollar… According to Rothbard and me, the cheese is now mine, whether you like it or not. Title to it has already shifted to me. So if you refuse to hand it over, you are now in possession of my property without my consent–that’s trespass.”

A TRESPASS MAN!!!!

So what to say about someone who refuses to deliver some property – by claiming that “conditions” of contract actually no longer apply to him (as poor Peter and Cosmin try to say). Do you know claim that is not a trespass?

[deleted due to rudeness]

Posted by: Sasha Radeta at December 30, 2006 11:17 PM

PETER ASKED: “What contract??”

The contract in which you exchange property titles… you know… MARKET EXCHANGE. I mean, do you even know what are we talking about?

Do you? If you bothered to read the thread, Brian was talking about somebody breaking into his house and stealing his mold, and then making copies. The last time I checked, people who go around breaking into people’s houses and stealing things don’t usually sign contracts first. “House-breaking contracts”? Really?! Come on Sasha!!!

Posted by: Peter at December 30, 2006 11:31 PM

Peter,

You don’t know what you’re talking about. When I was talking about copyright (and Cosmin’s claim that you can freely change your terms of exchange or price after you get control of your purchased item) – I said:

“if you stated in your contract that these copies will belong to the author, the property title over these copies is his.”

To which you replied; “What contract”?

COPYRIGHT CONTRACT. Not house-breaking contracts (that’s a straight trespass, resulting in tort if you cause some injury by this action).

So you really don’t even know what you’re saying anymore. Geez, I hope you’re drunk…

Posted by: Sasha Radeta at December 30, 2006 11:40 PM

BM> Neither Sasha nor I believe “ideas” are property.

Both of you talk out both sides of your mouth.

BM> My philosophical beliefs are NOT foundationalist so good luck with that.

Great. You have no basis for anything you say. Of course, I already knew that.

“If we immerse ourselves wholly in day-to-day affairs, we cease making fundamental distinctions, or asking the really basic questions.” — Rothbard

foundation–

2. The basis on which a thing stands, is founded, or is supported.

Excerpted from The American Heritage Dictionary of the English Language, Third Edition Copyright © 1992 by Houghton Mifflin Company. Electronic version licensed from Lernout & Hauspie Speech Products N.V., further reproduction and distribution restricted in accordance with the Copyright Law of the United States. All rights reserved.

BM> Aren’t your two responses contradictory?

Lighten up.

BM> You don’t even know the difference between collectivism and collective ownership.

Wake up. Forced “co-ownership” is collectivism.

BM> Copyright law already is fairly close to how I would have it.

That’s my point. It isn’t worth bothering with. Not one thing new has been presented in this thread. It is only new to yew. (I’m tm’ing “yew.” LOL)

BM> [L]ibertarianism (or anarchism) [isn’t] mainstream by any stretch of the imagination.

Wow, thanks for the epiphany.

SR> Economics is my field.

Who knew?

Posted by: greg at December 30, 2006 11:41 PM

Yaaaaaaawn.

Still nothing from Greg. Anyway, who’s talking about “forced co-ownership?” Can someone (lawfully) force you to sign a contract and become a co-owner of anything?

I hope Greg is drunk too.

Posted by: Sasha Radeta at December 31, 2006 12:03 AM

Sasha, your apparent inability to read, and to understand what you read, explains why you still cling your this thoroughly-debunked nonsensical argument. For what little it’s worth, here is a complete rundown of the relevant subthread so far:

Bryan wrote: “If you steal my mold and use it to make an identical mold then I still own my original and also am partial owner in the created mold.”

I replied: “This is your unwarranted assumption. I’m guilty of theft, sure; you should get your original mold back, at least, and if we accept Rothbard’s “two eyes for an eye” doctrine, a second mold would be fine compensation. But if I’ve made 50 copies, you only get one of them; the other 49 are wholely mine.”

You wrote: “NOT TRUE – if you stated in your contract that these copies will belong to the author, the property title over these copies is his.”

To which I replied: “What contract?”

You wrote: “The contract in which you exchange property titles… you know… MARKET EXCHANGE. I mean, do you even know what are we talking about?”

I wrote: “Do you? If you bothered to read the thread, Brian was talking about somebody breaking into his house and stealing his mold, and then making copies.”

To which you replied: “You don’t know what you’re talking about.”

By now it should be fairly obvious that you’re the one who doesn’t know what he’s talking about in this exchange. Par for the course. Thanks for playing, though 🙂

Posted by: Peter at December 31, 2006 4:14 AM

Cosmin,
“Sasha, the crux of my argument, that you don’t understand, is that there is a type of transaction, called a Sale, that accepts no condition.”

When people use the word “sale” whether they be laymen or economists they do not mean the term to be so narrow as you have specified. That is why we have terms like “as-is sale”. A sale is a very broad concept.

As an perfect example, when a common everyday guy “buys” a book he does not assume that he can make duplicates yet still callse it a “sale”. Economists also have this understanding.

In fact the only person I’ve ever heard who believes as you do is you.

Posted by: Brian Macker at December 31, 2006 9:46 AM

When blog entries hit 200 is that when we would have to agree to disagree?

Posted by: Sam at December 31, 2006 9:54 AM

Sasha,
“I don’t have time to read all of your long texts,

I suggest you actually read what I write. It “seemed” you were being deceptive because it is only natural to assume that you read what you are arguing against. I was very careful in my wording about why I thought you were being deceptive. The word “seems” means something. I understand that you may not have time to read what I write but it is also deceptive to act as if you understand my points without reading them. I am getting the impression that you are reading what I wrote and plainly making mistakes.

especially not after your co-ownership errors or that funny attempt with the airplane “liability”…”
They were not errors of understanding. Do you understand that? I quickly admitted to my error and moved on. Do you think I should dismiss all you have to say from now on because you made several mistakes. I’m giving you the benefit of the doubt that those particular errors were due to a failure to keep something in mind. Two examples would be that you thought I had a contract with the guy who stole my mold, and that you thought the writer of the book retained full ownership rights. Both utterly incorrect.

The first error I charitably assumed was due to a misreading. I’m assuming english isn’t your first language. The second I charitably assumed was due to a brain mis-fetch. I assumed you understood the concepts but just built your sentence incorrectly. I highly suggest you take a more charitable view of other people, assume they make minor mistakes and try to work with them. It’s the issue of glass houses again.

I know all about negative rights and I am claiming that this is a negative rights violation. If you had read what I wrote you would understand that.

The jist of my argument is:
People are not allowed to go around mixing my labor product with their raw materials without my permission. By copying stuff without my permission they mix my work product with all the copies they make not just one. It doesn’t matter if they’ve done it indirectly since ownership of the intermediate objects also is mingled. I as the owner of the original work product want them to be unmingled in a way that prevents the person from unjustly benefitiing from my work product.

If you do not grant that I a part owner in the intermediate object then “the cat is out of the bag”.

I don’t think your methodology works as I understand it. So now I am going to start arguing from the other side against you and we will see where that leads. I think some of the others have brought up valid points.

I don’t see how your “contract” idea works when theft or loss is involved. My idea also has the benefit of working in other scenarios because under special circumstances one can prove a chain of ownership without actually having to know how it happened. Like you can prove that a child is somebodies decendant using DNA without actually proving how it happened.

Especially if that person has a unique first generalational mutation (he is the originator). Of course this only makes it easier but not certain since identical mutations can occur. It’s the sum of all evidence that matters.

I’ll address who I think is attacking your idea correctly and why in another post. You can then explain why I don’t understand you or not.

BTW, I am going to assume you read what I have written from now on if you reply to my comment. If you haven’t than admit it up front and I won’t bother responding.

Posted by: Brian Macker at December 31, 2006 10:24 AM

Greg,

I’m afraid you have not understood my point. You are arguing from an implicit foundationalist viewpoint. It’s a philosophical term. Go look it up. I am not a foundationalist. I don’t believe that we can find ultimate absolute grounds for believing what we do and I don’t operate on such principles. Properly understood science is not foundational.

The closest published philospher you are going to be able to read to understand my position would be Karl Popper. My own personal beliefs do however deviate somewhat from his.

If you think anybody can give you an absolute proof of anything where no assumptions have been made then you are sadly mistaken. This was one of the flaws in Ayn Rand’s philosophy. She was a foundationalist.

People who go around saying “prove evolution” are arguing from a foundationalist perspective. In science there is no “proving” in the sense that they mean.

Likewise if we are discussing this from a scientific perspective I will never be able to prove anything in the way you guys are insisting.

You can’t even “prove” property rights in that way. Which I will show in by acting as devil’s advocate against property rights on this thread.

Posted by: Brian Macker at December 31, 2006 10:36 AM

… and BTW I know the difference between then and than but my fingers sometimes spit out something different than what I mean to say.

Posted by: Brian Macker at December 31, 2006 10:38 AM

Stephan,

You can make a contract trasferrable and then you can own it. The mortgage held on my house was transferred around between three parties.

Copyright is a transferrable contract. So it can be bought and sold. If I am mistaken then there is no reason it couldn’t be.

Posted by: Brian Macker at December 31, 2006 10:43 AM

When blog entries hit 200 is that when we would have to agree to disagree?

There is nothing preventing anyone from dropping out . This is merely a discussion. The only reason I am continuing is because I don’t feel that many of my points have been understood. If you guy understood them and still disagreed then I would probably quit. Not saying I won’t for other reasons.

Posted by: Brian Macker at December 31, 2006 10:47 AM

Actually, if you add up all the recent blog entries, you probably have 500+ posts on the subject of Intellectual Property.

I would love to see a scientific poll of Austrian thinkers, to find out how the whole Austrian school divides out on the subject of IP.

Posted by: Mark Brabson at December 31, 2006 11:19 AM

Peter,

Are you out of your mind???

You were not replying to Brian when you said “what contract” – you were replying to my posting that referred to violations of copyright contracts.

When it comes to the example in which some thief is “breaking into his house and stealing his mold, and then making copies” – that’s a clear trespass, resulting in tort. You will have an injury in the amount of lost sales that these unauthorized copies generated… basically, all profits and/or copies will be his.

——

Brian,

Reading everything you write amounts to a cruel and unusual punishment. You write so much about nothing, and you spice it up with some absurdity and insane claims that I’m dishonest for not introducing my biography to you. Well, I’m sorry about that.

You said: “People are not allowed to go around mixing my labor product with their raw materials without my permission”

There is your misunderstanding!

Of course that people are not allowed to trespass against your property! But if the book’s buyer is its co-owner – than it is his book as well. You are trying to impose “negative obligations” on co-owner, who also has property right over that book (or in cases of partial owner, over some piece of it)! In order to prevent him (or anyone else on his behalf) to reproduce this book, you will have to claim your special ownership over “reproductive use” that the book’s other owner does not have. There’s your problem: you cannot own other people’s use (labor), because enslavement is unenforceable in free market contracts. In order to prevent co-owner from copying that book, or to prevent some owner of 25% of the book to copy his part… you will have to deny his ownership.

You said:

“I don’t see how your “contract” idea works when theft or loss is involved.”

The same way any tort works (even in cases of trespass against co-owned items) – by injured side (buyer who is liable for the violation of contract) suing the trespasser who caused him his injuries. What’s not clear about that?

Posted by: Sasha Radeta at December 31, 2006 12:42 PM

“Ownership means full control of the services that can be derived from a good.”

Ludwig von Mises – “Human Action”

Brian, go back to the very definition of ownership and forget about our current fascist state of affairs… If you prevent someone’s full control of the services that can be derived from a good (or a part of the good in proportion to his ownership share)- you are preventing that person’s ownership. That’s why I say that someone who buys the restricted use of my product is not the book’s owner in a libertarian, realistic sense.

That’s where are disagreement is coming from – but on all other points we should have a complete agreement – because these other issues deal with common law tort. That’s why I am unpleasantly surprised by your comments about the issue of “third party’s” theft or unauthorized use of lost (or mislaid) item.

When someone floods the market with copies of my stolen book without any authorization – that’s not any different from your scenario in which someone steals your mold and floods the market with unauthorized use of it. In both cases, you will have to prove your legal right over the stolen or lost item – while claiming that the third party acted without your authorization and caused you specified injury… That’s all! So what’s different in your scenario?

I don’t know how that relates to DNA paternity tests (you and your absurdities : ), but you cannot avoid normal procedures of proof in any tort case, no matter how you view the ownership over the stolen or lost item.

Posted by: Sasha Radeta at December 31, 2006 2:03 PM

To avoid further misunderstandings, I’ll tell Brian what’s different between our scenarios of unauthorized use:
– The litigants are different, hence, the injury is differently assigned (due to your twisted view of ownership), but you cannot prove that your tort case will be easier to prove than mine.

Posted by: Sasha Radeta at December 31, 2006 2:19 PM

Peter, please accept my deep and sincere apologies for not reading your (and Brian’s) ramblings more carefully.

Thanks also for showing that you are not only clueless about contracts, but you also have no concept of tort.

If you steal Brian’s mold and you use it for creating 50 copies, you are actually causing the loss of earnings to Brian – in the amount of 50 copies. If it wasn’t for your unauthorized use (trespass) of that mold, the only way you could have obtained those 50 copies is by purchasing them from Brian. That’s the amount you immediately owe for these fruits of your theft, in the name of Brian’s loss of earnings caused by your trespass. Now, if you accept Rothbard’s “two eyes for an eye” doctrine (as a mean of punishment for theft) you will actually be responsible for the value of 100 copies.

Posted by: Sasha Radeta at December 31, 2006 2:55 PM

Happy 200 Posts on this thread. 🙂

Happy New Year everybody. 🙂

Posted by: Mark Brabson at December 31, 2006 3:15 PM

Sasha,

Here’s where I critique your idea.

In my example of the mold, exactly why isn’t Peter correct if we apply your theory? I don’t think Peter understands what I am saying yet but his objection seems valid in your case.

I will now make a better example to make this clearer. Restrict any discussion to this new example since the old one was not designed to challenge you. I am going to remove me from the example to make our discussion easier.

Suppose there is no contract whatsoever. A capitalist named Mr. Capitalist, who happens to be in the fabric business, owns this mold. The molds are for a particular kind of spindle used in the operation of my looms. He does not sell these molds or the spindles on the open market.

It took him a long time to produce this exact shape. Not only the intellectual effort but the physical effort of turning the idea into a physical object. All inputs and efforts were his. He has no employees and everything is automated with him doing all maintence and labor.

Mr. Hamburglar, a burglar, breaks in and steals the spindle mold which hasn’t been used in a decade and sits dusty on a shelf. He broke in to steal money but found none. He stole the mold because he thought it was pretty and might be worth something. He sells the mold to an artist, Mrs. Artist, for a couple dollars. The artist then produces a spindle from the mold as an object de art.

Then Mr. Hamburglar has a change of heart. Perhaps he “finds Jesus”. He buys back the mold from the artist, and shows up on Mr. Capitalist doorstep with mold in hand and gives it back. He turns himself into the police and Mr. Capitalist presses criminal charges for the trespass.

Mrs. Artist still has a spindle she produced from the mold. Mr. Hamburglar told Mr. Capitalist about his actions during his confession and about this copy. The production of this one spindle has had absolutely no effect on the value of Mr. Capitalists spindles since it’s just an art piece. Mr. Hamburglar is a thief and he really has little assets to begin with. Now that he is in jail there isn’t much to squeeze out of him.

There is no contact between Mr. Capitalist and anybody. Mrs. Artist unknowingly received stolen property was told it was stolen by Mr. Hamburglar and gave it back to him and he restored to her the money he took for it. Mrs. Artist in producing her “object de art” mixed her labor and raw materials into it. I see no reason on your theory for Mr. Capitalist having a claim of ownership over it or any say with what happens to it. So she retains it.

Mrs. Artist then takes her copy and produces a mold from this and yet more copies. One of these pieces of art ends up in the hands of a fabric producer named Mr. Fabric. He realizes its value and what it actually is and starts using it and mass-producing them for himself for use in his factories.

This of course lowers the value of your existing spindles and you suffer a drop in income.

That is the end of the example. Now the questions begin.

Do you think that Mr. Capitalist has the right to stop these fourth parties, Mrs. Artist and Mr. Fabric, from using the “unauthorized” spindles? If you don’t then you are not talking about copyright, but some weaker thing that really doesn’t protect Mr. Capitalist’s work product.

Remember there is NO contract with anyone. So “in theory” your argument cannot apply at all. You cannot protect much of anything. On what grounds do you have for suing this guy Mr. Hamburglar, beyond him keeping your mold for a few minutes? He didn’t even make a single copy of the mold.

Of course he stole the mold. Of course, it’s trespass. It was not his direct actions that caused the value of your spindles to go down though. He wasn’t the one who used the mold to make any other spindles. It was Mrs. Artist and Mr. Fabric that took the actions that lead to the reduction in value of your spindles.

It is entirely possible however that Mrs. Artist and Mr. Fabric might have been able to take such actions independent of what Mr. Hamburglar did. Mr. Fabric could have come up with the idea on his own and asked Mrs. Artist to produce such a spindle. Why not, it’s quite possible. Then the actions they took to lower the value of Mr. Capitalists product are perfectly valid.

Why should such a drop in value matter? As one of the other commenters pointed out, Mr. Capitalist doesn’t own the value of the object. I understood that from the beginning but I am NOT resting my position on that issue.

The burglar cannot be responsible for what money you might have made in the future. Heck if he stole a dollar from you and that caused you not to have the dollar to play the lottery that day and “your regular numbers” came up on the million-dollar prize it doesn’t mean he stole a million from you. It doesn’t automatically go from a petty crime to grand theft.

Sure the chain of events started by Mr. Hamburglar caused a drop in the value of your object but he returned your property. He did so voluntarily and you do not use the mold on a daily basis so he didn’t interrupt your business. In fact the dusty old thing was on a back shelf. He caused you no court costs because he turned himself in. You seem to think you can sue him for damages. What damages? Someone else is actually causing the damages to the value of your spindles, not Mr. Hamburglar.

With my way of thinking Mr. Capitalist can go after Mrs. Artist and Mr. Fabric on the grounds that he is part owner in all objects produced from his labor product but not explicitly relinquished or abandoned by him. There is a rational basis in my thinking that would allow a judge act in certain ways to remedy this and that would allow Mr. Capitalist to retain ownership over this work product even after the crime. He can, in a sense, take back the stolen goods and the receivers of the stolen goods really haven’t much to complain about.

There is no such remedy if you think this is purely about what you put in the contract and not about rights. Especially considering the fact that there is no contract.
Are you thinking Mr. Hamburglar is going to be fined for the millions in dollars of losses that resulted from the actions of Mr. Fabric and Mrs. Artist? Do you think Mr. Capitalist will make a tort against Mr. Hamburglar and then cross his fingers that Mr. Hamburglar tries to sue Mrs. Artist who then will sue Mr. Fabric.

The only one who actually has the funds resulting from these damages is Mr. Fabric. He’s the one who made thousands of copies of the spindle and earned money off it. He’s the one who made money off of Mr. Capitalists work product. Money he never would have gotten if it were not for the actions of Mr. Hamburglar. This was money that would have been earned by Mr. Capitalist instead if Mr. Fabric had not unjustly received the spindles. Mr. Fabric had years of research and development handed to him for essentially nothing. Do you think it right that he should now get to use this? At what point do the damages end?

So there you have it. Let me know where I have misunderstood what you’ve had to say. Where you think my mistakes lie. Where you think I have miscommunicated. I’m not going to be amenable to any arguments based on how ignorant you guess I am, so please don’t waste my time with that. Please, oh please, don’t act as if you’ve read this if you haven’t.

Posted by: Brian Macker at December 31, 2006 3:52 PM

Sasha,

I wrote the above before you posted your replies. I then went on a 7 mile hike and came back. I proofread it and posted it. I then saw your addtional replies. So don’t be surprised if it doesn’t address something.

I think the example will probably capture some of the problems the other people see with your treating this as simple tort. You cannot support copyright in this way from what I can tell. The problem is not with the Third party, Mr. Hamburglar. The problem is with fourth parties like Mrs. Artist and Mr. Fabric.

Please forgive me that in my example I switched and called “Mr. Capitalist” by the pronoun “you”. I also might have called “Mr. Fabric” the name “Mr. Spindle”. If you want I can fix and repost. Otherwise I will assume you can correct for these minor errors.

Posted by: Brian Macker at December 31, 2006 4:10 PM

Brabson, re your “scientific poll” comment above–I did an informal one earlier, see here. I think the respondents were mostly patent attorneys and Austrian-libertarians, given where I posted about it. Overwhelmingly anti-IP.

Posted by: Stephan Kinsella at December 31, 2006 5:26 PM

Brian,

What Peter’s objection “seems valid” in my case? You both seem confused about the difference between torts and breaches of contracts – and what injury is caused to someone whose mold is stolen by some “third party”.

Your example is full of trivial details. Who cares if “Mr. Hamburglar is a thief and he really has little assets to begin with?” If Mr. Hamburglar attacked and permanently crippled someone, would you acquit him of that crime – because he is poor and unable to support this disabled person? Tsk, tsk, tsk… Anyway, you wrote so much nonsense that it would tame hours only to decipher it. I will just focus on your direct questions to me and I will disregard everything else.

You asked the following:

—–

1. “Do you think that Mr. Capitalist has the right to stop these fourth parties, Mrs. Artist and Mr. Fabric, from using the “unauthorized” spindles?”

NO SIR! The fifth party (Mr. Fabric) in your example did not do any trespass against Mr. Capitalist.

However, the fourth party (Mrs. Artist) did not own the mold which she used to produce her copy. You said that she was unaware that the mold was stolen (bona fide purchase). FINE! She will not be prosecuted for that purchase of stolen goods. However, regardless of her bona fide purchase – the legal owner of that mold was Mr. Capitalist – at all times. That’s the principle of “Nemo dat quod non habet.” The first copy that Mrs. Artist produced is the result of unauthorized use of Mr. Capitalist’s mold. She was responsible to return that first unauthorized copy to Mr. Capitalist, because the only legal way in which she could have obtained it is by purchasing it from him. Therefore, she will owe a large sum of money to Mr. Capitalist – the same amount of money that she would normally have to pay for full ownership of some invention (minus the insignificant cost of her inputs) – in order to have legal rights of the full commercial use of that item.

And if you think about this – it’s normal that Mrs. Artist is responsible for compensating Mr. Capitalist for something that normally costs a lot of money to obtain legally.

Mr. Capitalist will hold the thief responsible for loss of earnings in the amount of all other spindles in the market – that otherwise he could have sold (times punitive damages, perhaps based on Rothbard’s “two eyes for one eye” principle, in order to deter theft).

——

2. “If you don’t then you are not talking about copyright, but some weaker thing that really doesn’t protect Mr. Capitalist’s work product.”

NO SIR! You are confusing a tort issue with violations of contractual copyright (which was our subject – and one that is the most confusing, if you think that the buyer of the book’s personal use becomes its owner).

Enough for this year! It’s time to party!

Posted by: Sasha Radeta at December 31, 2006 5:55 PM

Oh, I didn’t see Stephan’s comment…

I have to say one more thing before I step out : )

Stephan,

Your quantity of writing is not supported by any quality. Most of the anti-IP crowd is trying to battle with common sense and they are loosing that battle.

The fact is: It costs a lot of money to obtain the co-ownership rights over someone’s manuscript (for publishers), or to get the co-ownership of some invention (for firms).

You cannot lawfully get those valuable ownership rights for free by:
– breaking your valid, free-market contract (as Cosmin advocated)
– stealing someone’s property and using it without authorization to create “your own” copy (as Peter advocated, and Brian come to believe).
– allowing a third party to freely commit tort, if the injury pertains to someone’s contract (as you tried to imply, contrary to common law)

Once you understand these points, you will stop with your anti-copyright communism, and you will join great Murray Rothbard in advocating voluntary, free-market copyright contracts.

HAPPY NEW YEAR TO EVERYONE!

Posted by: Sasha Radeta at December 31, 2006 6:54 PM

Cosmin,
“But did anyone sell a breeding (not spayed) animal with a condition in the contract that said it can’t be used for breeding?”

Yes, some breeders sell their dogs unspayed because they are too young to spay but the contract stipulates that you must spay the dog in a certain time frame. If you don’t the contract has been broken and they get the dog back.

Posted by: Brian Macker at December 31, 2006 7:27 PM

If you steal Brian’s mold and you use it for creating 50 copies, you are actually causing the loss of earnings to Brian – in the amount of 50 copies.

Perhaps, but how is that relevant? He doesn’t have a right to “earnings”. If he owns a stall selling apples at the side of the road, and I open my own stall selling apples, I’m causing him a loss of earnings, as well. Do you think that’s a tort, too? Potential future earnings is simply not a property.

Posted by: Peter at December 31, 2006 7:34 PM

Sam,

I didn’t see your post of 12:18 AM last night until just now. Perhaps that makes my response make more sense.

I was not responding to your moral question. The answer to that is why shouldn’t he? If he “invented” this purple apple and was sole owner of it then why shouldn’t he be able to retain ownership rights over it? It violates no one elses freedoms.

If he sells these apples with the condition that he owns the seeds which must be destroyed then if you don’t want the apples under those conditions then don’t buy them.

Posted by: Brian Macker at December 31, 2006 7:36 PM

Peter: “Assume there are no property rights. Then you have no right to eat the food that keeps you alive, for instance. Therefore you’re dead and not in a position to engage this argument. Since you’re not dead, you must accept that it is possible to obtain a property right in food (so I know that if you say “there are no property rights”, you must be lying!) Etc. See Hoppe for a more complete (and lengthy) explication.”

Devil’s advocate: Then why aren’t all the animals dead? The do not recognize property rights. For the most part they run on the rule of might makes right. Property rights are durable and animals don’t recognize them the way most humans do. Besides I wouldn’t be dead since if you left your apple on the beach I’d eat it.

Brian’s analysis: The problem here is that if a foundational rationalist will a always be beaten by the philosophical skeptic. The skeptic does not share any respect for reason and therefore can use reason to undermine the foundationalism. This is precisely because reason is not foundational.

Peter was playing both roles in his argument with me. He was assuming rationality had to be based on foundationalism. He then assumed thatmust be my position and that my argument was in fact foundationalist. Then he was taking the position of the skeptic to attack me. Thus he was setting up his own straw man for defeat.

If Peter continues to argue from a foundationalist position has he has done here then I can take the position of philosophical skeptic to defeat him. He will not be able to defend property rights foundationally. The process is long but we will eventually get to the point where he realizes there is no foundation. He will not be able to “prove” that property rights exist.

There is nothing wrong with rationalism as long as it’s not foundationalist. Such rationalists are pretty much immune to attacks by the philosophical skeptics. They can just say “I hold that belief tentatively pending contrary evidence”. They can even do that about their non-foundationalism.

Posted by: Brian Macker at December 31, 2006 8:22 PM

Peter,

“He doesn’t have a right to ‘earnings’.”

This is correct. I only have a right to ‘my’ earnings, not earnings in general.

So the question is under the example is why should Mr. Fabrics earnings be considered the property of Mr. Capitalist.

Posted by: Brian Macker at December 31, 2006 8:28 PM

Happy New Years! I’m outta here.

Posted by: Brian Macker at December 31, 2006 8:46 PM

Sasha:

1. “Do you think that Mr. Capitalist has the right to stop these fourth parties, Mrs. Artist and Mr. Fabric, from using the “unauthorized” spindles?”

NO SIR! The fifth party (Mr. Fabric) in your example did not do any trespass against Mr. Capitalist.

This is utterly ridiculous. The bona fide purchaser of stolen property arguably has to return it on demand to the real owner. That in no way implies that the information gained by the BFP in the meantime may not be used by them.

Moreover, Sasha is ignoring the “real third party” problem here, which is your “fifth party,” Mr. Fabric. There is no conceivable theory by which to nab him.

Moreover, Sasha keeps assuming you can ensnare all conceivable third parties by some form of tort. But this is not true. Her theory assumes that anyone has to somehow “handle” the object owned by another. Let’s take a very very clear example. A writes a novel. It is not published. B breaks into A’s house and puts his thumb drive into A’s computer, and copies the file containing the novel’s text. Then B puts a big electronic billboard up on his lawn, scrolling the text of the novel over and over. B’s neighbor, C, is sitting on his porch having a Bud and videotaping the cloud formations over B’s house, and inadvertently captures the text of the novel flashing on B’s billboard.

Now, C has the text of A’s novel in his camera. He did not commit any tort against B, or A. By what conceivable private law, libertarian-compatible cause of action can A (or even B) stop C from publishing that novel??

Your quantity of writing is not supported by any quality. Most of the anti-IP crowd is trying to battle with common sense and they are loosing that battle.

Actually, you are wrong–there is a growing anti-IP sentiment, as anyone can see.

The fact is: It costs a lot of money to obtain the co-ownership rights over someone’s manuscript (for publishers), or to get the co-ownership of some invention (for firms).

Thanks. As a published author and practicing patent attorney, I didn’t know this. Tell me more, Sasha.

You cannot lawfully get those valuable ownership rights for free by: – breaking your valid, free-market contract (as Cosmin advocated) – stealing someone’s property and using it without authorization to create “your own” copy (as Peter advocated, and Brian come to believe). – allowing a third party to freely commit tort, if the injury pertains to someone’s contract (as you tried to imply, contrary to common law)

It’s easy to imagine cases where a third party acquires *information* without ever “handling an object” and thus is never in breach of contract nor committing a tort. An obvious example is the Internet–you can get tons of info over it now–without committing any tort. Your apparent notion that if an action of yours causes another contractual liability then you are committing a tort–is utterly absurd and unsupported by libertarian theory or even conventional legal theory.

You are just a scientistic punk, Sasha.

Posted by: Stephan Kinsella at December 31, 2006 9:27 PM

Then why aren’t all the animals dead? The do not recognize property rights. For the most part they run on the rule of might makes right.

Animals do recognize property rights; not to the extent or with the sophistication of humans, but have you never owned a dog? Or knew someone who did? Seen it barking when strangers come onto your property? Animals in the wild mark and defend their territory, too. And yes, they also largely work on the principle of might makes right. And very many die every day.

Besides I wouldn’t be dead since if you left your apple on the beach I’d eat it.

I wouldn’t leave my apple on the beach, since the concept of “my apple” requires that which we’re assuming doesn’t exist: a property right. So if I have an apple in my hand, it’s not my apple. Why wait until I leave it on a beach before you eat it? Why not just take it out of my hand and eat it? Knock me on the head first, perhaps. But you’d have the apple in your hand and someone could come along and knock you over the head. Etc. The fact that most people don’t engage in such behavior on a regular basis demonstrates a “built in” recognition of property rights.

The problem here is that if a foundational rationalist will a always be beaten by the philosophical skeptic. The skeptic does not share any respect for reason and therefore can use reason to undermine the foundationalism.

Depends what you mean by “beaten”, I guess. If you consider repeated “am not!”, “are too!”, “am not!” to be an “argument”, and want to declare yourself the winner, I’m not going to stop you. But it’s not very productive.

Posted by: Peter at December 31, 2006 11:33 PM

Devil’s Advocate: “Of course it wasn’t your apple. I was just humoring you. But now you are getting the idea.

Animal territories are not an example of property rights in the sense that the other animals respect these boundaries because they believe the other animals “own” the land. In fact, it’s just a matter of who’s strongest.

There are other animals that get along just fine not even respecting rules against cannibalism.

Plus there are plenty of examples throughout history of people not respecting property rights and not just flipping on their backs dead as you claimed.

There is no reason why my not “owning” an apple prevents me from eating it. It’s not ownership that allows you to eat it but merely possession. We all know possession is not ownership.

Posted by: Brian Macker at January 1, 2007 10:24 AM

Peter,

The foundationalist says there is a foundation to be found. He is making a positive claim that something can be “absolutely proved”. He is claiming that there is a “proof” for whatever he says. So his very claim is that the argument can be settled in a straightforward way.

You claimed to have “proved” property rights by the fact that I would starve without them. That simply isn’t true. We can survive without property rights.

In fact natural rights in general haven’t been “proved”.

Yes, this means that we will be arguing all day. However, that is exactly what I am complaining about. It’s you who have been arguing as a skeptic. Your responses have been just a manner of denying that I can “prove” that someone has a right to the fruits of their labors.

In my example, the sales of Mr. Fabric are obviously the result of the labors of Mr. Capital but you deny him the right to the fruits of his labor. He worked damn hard on his invention and now you think the other guy has the right to benefit from those labors without the permission of Mr. Capital.

I have shown exactly how Mr. Capital can claim ownership over the unauthorized copies, by the unauthorized mixing of his labor product with Mr. Fabrics raw materials. Yet instead of addressing this you merely deny.

That it is so much easier to steal the labor product after the fact than to produce it in the first place is immaterial. Mr. Fabric did not expend the effort that was required to produce those spindles. That effort was expended by Mr. Capital. That Mr. Fabric was able to use Mr. Capitalists physical property without his permission because of a criminal act doesn’t mean he should be able to keep what he made literally from Mr. Capitalists property.

Mrs. Artist was working with stolen property. She literally made her “art works” from Mr. Capitalists property. So Mr. Capitalist has a ownership claim over those works. When Mr. Fabric made his Spindles from these “art works” he was again doing so with Mr. Captialists property.

The spindles that are in the possession of Mr. Fabric would not exist without the efforts of Mr. Captialist. Efforts for which he was not compensated. Efforts which he did not give permission for anyone to utilize.

Whether to expend those efforts went into Mr. Capitalists decision to invest his capital in inventing the spindles. He calculated how much money he was likely to save using the new spindles vs. the estimated development costs. He then expended those efforts and was in a position to reap the benefits (fruits) of his labor. However along comes Mr. Fabric to steal the efforts of his labor.

Mr. Fabric perhaps wasn’t aware of the fact that he was stealing because he may not of known how he came into possesion of the spindles. That doesn’t matter any more than if someone gets stolen goods unawares.

That Mr. Fabric mixed his raw materials with Mr. Captialists productive goods is not the fault of Mr. Captialist and is no reason whatsoever to let Mr. Fabric keep the objectively valuable product of Mr. Capitalists efforts.

This wouldn’t neccesarily be true even if the mixing accidentally happened in the other direction. Suppose Mr. Burgalar had stolen pig iron from Mr. Fabric’s wearhouse and sold them to Mr. Captialist who then molded them in to Spindles. Does Mr. Captialist now owe Mr. Fabric the resulting spindles? Of course not. What he owes back is ingots of pig iron and nothing more. Either that or he can recompense Mr. Fabric with cash.

This is true regardless of how cheaply the reproduction process is. The manufacturing process is cheap because of the mold not the cost of the raw materials. In fact one would suppose that the cheaper the reproduction costs due to the raw materials then the lesser the value in the final spindles that are due to Mr. Fabrics efforts and the less recompense he should get.

I don’t see why if Michaelangelo were to, by accident, create a statue with a stolen piece of marble that he would owe his final work product back to the victim. He would only owe a block of marble of the same quality. That’s it.

I believe this even obtains if Michalangelo were to steal the marble. In that case he only owes a piece of marble back, any incidental damages, plus court costs if any, an perhaps some jail time. He doesn’t owe a million dollar statue in recompense for a $100 chunk of marble.

Posted by: Brian Macker at January 1, 2007 11:13 AM

BTW, I HATE the fact that the software industry has moved from using copyright to patents. I also hate the fact that they are issuing patents for the most obvious of ideas.

That doesn’t mean however that I will not use patent law to fight back.

Posted by: Brian Macker at January 1, 2007 11:51 AM

Geez people, didn’t you have something better to do?

Let’s go one by one.

—-

Peter,

It’s a trespass when you use someone’s item you just stole. In tort law, you will not be only responsible for the direct theft involved (which maybe $0 like in my example in which someone’s intentional blocking of your garage causes you financial injury), but also for all measurable harm of your action. If you produced 50 copies with someone else’s mold – that is a clear trespass. If you decide to keep those copies, you will be responsible for the owner’s loss of earnings – because legally, the only other way to obtain those copies is by purchasing them from this owner. That’s common law and it’s not a matter of dispute.

—–

Poor Stephan,

There is no need to keep imagining that I am a girl. It’s kind of disturbing. Anyway…

You’re pretending that you can’t apply simple legal principles to such an easy case. You are also ignoring that trespass lies for unintentional, as well as for intended wrongs.

If Mr. Capitalist is the lawful owner of the mold that was stolen (and he was) the any use of this product by bona fine purchaser was unauthorized.

In Brian’s example the purchaser of stolen mold caused a real harm to the owner – her unauthorized use created something that could have bee obtained only from the owner – for some large sum of money.

I REPEAT: You cannot lawfully obtain some ownership rights as the result of trespass. Co-ownership over some invention would legally cost you a lot of money to obtain – and you cannot get it for free by the act of trespass.

But Stephan’s sense of humor really gets hysterical in the last part of his message. Regarding my (common-law) explanation, she states:
“Sasha is ignoring the “real third party” problem here, which is your “fifth party,” Mr. Fabric. There is no conceivable theory by which to nab him.”
WOW!
Anybody home?
I just explained that the bona fide purchaser – who wishes to keep her ownership rights over the product of her unauthorized use – will PAY for co-ownership rights that she used over a product (that otherwise would cost a lot of money to get). So by paying to become the authorized producer, this fourth party obtained legal rights for sales to fifth party and any other parties. There is no need to “nab” an innocent fifth party, because the fourth party will pay for expensive rights that will make her copy (which came from a trespass) rightfully owned.

In your silly and unrealistic example, person who committed a trespass will be responsible for the loss of earnings to the author. It legally costs a lot of money to buy co-ownership rights over someone’s unpublished book and then to put it in “a big electronic billboard up on your lawn, scrolling the text of the novel over and over.” That trespasser will have to pay for that expensive harm he caused – and it will be perfectly OK for some third party to publish that book, because he got it perfectly legally from a person who paid a large sum of money for publishing rights. Of course, no one sane would be so stupid to give away something that expensive, but I did not expect a better example from you.

And then Stephan gets even funnier. She says: “It’s easy to imagine cases where a third party acquires *information* without ever “handling an object” and thus is never in breach of contract nor committing a tort.”
That’s funny!!!
: )
Again you have to impute statements I never made. I never claimed that if you offer some information to another person – that you could sue that person if he uses it! That’s why smart authors will insist on terms of use contracts before someone can access their valuable information.

——

Brian,

Go back to Mises and the definition of ownership. Than read my response to Peter and Stephan. You got some basic concepts all wrong. Fourth party in your example (unintentional trespasser that became aware of her unauthorized use) has to pay the amount necessary to obtain co-ownership over that invention – in order to remedy the owner’s loss of earnings (that he would otherwise have if the fourth party legally obtained expensive co-ownership of his invention). The fifth party (purchaser) will be perfectly fine, because the fourth party will legalize her actions.

Posted by: Sasha Radeta at January 1, 2007 1:27 PM

And please stop with “animal territories” and other nonsense. Our topic here is not someone’s reasoning process or discussion style (Brian and Peter are turning into Sione).

We’re talking about copyright and basic issues are following:
– can you obtain the co-ownership over someone’s invention or creation by:

a) breaking the contract that regulates terms of use
b) stealing it from the owner and than using it to reproduce “your own” items, without ever paying for the author’s loss of earnings or any punitive damage for tort.
c) purchasing the full “ownership” of a stolen good (otherwise, when purchased legally from the author), and hence using someone else’s product without authorization to make “your own” copy – without anyone paying anything to the author for his loss of earnings that resulted from that trespass.

Common law’s answer is: NO! (In spite of the stubbornness of some people who tried to negate copyright on the abovementioned, absurd grounds). Copyright is coming from firm grounds of private property rights, making it impossible for mediocre authors in a desperate quest for originality to find a tort or breach of contract that would make it unenforceable in a perfectly free-market.

Posted by: Sasha Radeta at January 1, 2007 2:19 PM

Correction:

c) purchasing the full “ownership” of a stolen good (otherwise expensive, when purchased legally from the author)…

Posted by: Sasha Radeta at January 1, 2007 2:34 PM

BM> You are arguing from an implicit foundationalist viewpoint. It’s a philosophical term. Go look it up. I am not a foundationalist. I don’t believe that we can find ultimate absolute grounds for believing what we do and I don’t operate on such principles.

You sure can side-track a discussion. I never made any mention of “foundational philosophy,” you did. I gave you a generic definition, and you still didn’t get it. The drift is strawman. I never made any mention of “absolute proof,” especially in the deductive sense. (I’ve argued the opposite in other conversations.) In point of fact, I don’t have to “prove” anything since I’m not asserting a positive (ideas as property).

For example, you never established a basis for what you call “co-ownership” of physical material that has some correlation (How much correlation is enough? How do you objectively measure it?) to some other physical material — physical material that embodies an idea. That basis is a foundation, in the basic sense of the word “foundation.” You are off in the weeds with your “absolute grounds” and “philosophical foundationalism” commentary. Ultimately you would need to establish a very good case for ideas as property. You have not done so, and a million words of circumlocution won’t skate you past the goalie.

BM> Properly understood science is not foundational.

Good grief. All language at some point reduces to “definitional,” “axiomatic,” or “self-evident.” It is inescapable because language is symbolic, nothing more than an abstract model for (hopefully) reality; this is the basic nature of reasoning (abstraction) and the basic problem of the philosopher, and is the source of the skepticism regarding “foundationalism.” But if you want to get hung up on that, then you are a nihilist, and there is nothing to talk about, by definition of nihilist (laughs). If we can’t agree on definitions and bases (foundations), there is nothing to talk about.

Speaking of foundations and science, I used this text for an EE elective: http://www.amazon.com/Foundations-Microwave-Engineering-Robert-Collin/dp/0780360311/. Amusing, eh?

BM> Efforts [(ideas)] which he did not give permission for anyone to utilize.

See what I mean about you talking out both sides of your mouth?

BM> [T]his means that we will be arguing all day.

Not with me since I don’t think you or Sasha are clear enough on the rudiments, er, I mean foundations. Also, my blogphilia simply is not that great — although it is a bit larger than my spare time.

Posted by: greg at January 1, 2007 6:25 PM

Useless and irrelevant comments Greg…

I explained problems with anti-IP reasoning in three simple points. There were some insane attempts to relativize harms caused by trespass of “third” and “fifth” parties, but all that failed against simple and logical tests of common law. There is no way to abolish free-market copyright, unless you want to legalize contract violations and tort, i.e. abolish property rights. I couldn’t have been any clearer on these “rudiments”.

PS
Why would anyone care about your ramblings about “foundational philosophy” and how you view Brian’s reasoning process? Stick to our topic for goodness sake.

Posted by: Sasha Radeta at January 1, 2007 6:41 PM

After 221 posts, does anybody remember what the topic was?

Seriously though.

I would never question free market “copyright” contracts. Nor any agreement freely entered into.

From the beginning, the only thing I ever questioned was “Government” copyright laws.

I don’t think anybody could seriously question the validity of a copyright clause in a freely negotiated contract.

Posted by: Mark Brabson at January 1, 2007 7:09 PM

SR> I explained problems with anti-IP reasoning in three simple points… I couldn’t have been any clearer on these “rudiments”.

Ah, heck. I guess I missed them.

SR> Why would anyone care about your ramblings about “foundational philosophy” and how you view Brian’s reasoning process?

Man you are dense.

SR> Stick to our topic for goodness sake.

I’ll go ahead and leave that up to myself.

MB> I would never question free market “copyright” contracts. Nor any agreement freely entered into… I don’t think anybody could seriously question the validity of a copyright clause in a freely negotiated contract.

Nor do I. NDA’s are everyday private occurances. When Shasha argues “There is no way to abolish free-market copyright,” he’s conjuring up phantoms. His ideas about private application to third parties range from silly to shifting the burden of proof so much that “idea owners” would have no where near the state granted protection they currently have.

Posted by: greg at January 1, 2007 7:44 PM

Greg, everything isn’t “up to you” when it comes to our postings here. Right above the comment box it states: “Post an intelligent and civil comment.”

Your recent comments do not satisfy the former prerequisite. If we could post anything – regardless of our topic – what would prevent spammers from posting sports or weather discussions here?

Plus, that nonsense about “foundational philosophy” is incredibly boring.

Posted by: Sasha Radeta at January 1, 2007 9:18 PM

Mark Barbson,

More power to you, because I am also against government’s regulation of copyright, commerce, you name it. But the crowd here is in completely different mood. Look at Greg, for example. He blabs something about “idea owner” and “private application to third parties” – but he is blind to the fact that you cannot violate someone’s copyright without committing a tort or violating a contract (terms of exchange). And you also have Stephan Kinsella, whose only agenda is to advocate unrestricted, unauthorized access to someone else’s property – and to “rewrite” legal theory against any norm or common sense – in order to “prove” that such communism would emerge if state was abolished. Anarcho-communists create a lot of confusion, because they also call themselves “libertarian.”

Posted by: Sasha Radeta at January 1, 2007 9:37 PM

Sasha

So all your puff and cant is based on a concept you can’t define. The term “legally owned” is a bit of a catch-all. Like Brian’s various “rights” it can mean anything and nothing. Unless you define it and explain yourself it all remains floating abstraction. In essence your position would then appear to be little more than: “I like copyright. Copyright is legal. Since copyright is legal I can make legal contracts based on copyright. Now let’s discuss all the wonderful variants of contracts that are available for me to make up.” That would seem to be as far as you’ve managed to think this through. Your position statements thus revealed as baseless. Oh dear!

You are the one asserting “copyright” as reliant on a right of ownership over property (in which case it is a particular or special type of ownership in a particular or special class of property). You assert that due to your special or particular right, other people are to be prevented from exercising their ownership rights over their property (such as real or chattel property). As it is you who are asserting the positive, the burden to prove it (and answer the questions) falls directly and totally upon you. It is un-necessary for me or anyone else to prove the negative for your assertion to be considered unproven, false and/or worthless. It is you who need to explain the idea to my satisfaction and validate it to my satisfaction. I am under no obligation to show a case against your idea. All I need do is see whether you can demonstrate a valid case or not. So far you have shown you can’t (and I’ve been easy on you by taking you down through some of the steps necessary- I could simply have called for a formal proof and left you to founder). Proof of Positive is a very basic rule of discourse and argument. You need to consider it carefully and understand it thoroughly prior to continuing with your apparently baseless claims. Do you get that? Can you understand at least that much? Fool!

The trouble with your arguments is that they are circular and self-referential. You deal in compartmentalised concretes and evade principles, premise, derivation and validation. I suspect you are not even clear in your own mind what the definitions of some of the terms you use actually are. This tends to confirm your ideas regarding copyright are indeed floating abstractions and hence false.

My questions to you are intended to get you to state your premise, show your derivations and concepts, validate and prove them. Your behaviour thus far has been to apply polemic techniques, blow off some steam, make assertion (like “I already answered that in detail” and the like- are you a grand-standing 2nd class bull-shitter or what!), evade direct answers, misrepresent questions put to you, spit bile and hide. You are really struggling and well out of your depth.

Now I (and likely other people reading this thread) would appreciate it if you’d stop telling lies and stick to the topic. It’d be nice to see you actually address the questions put to you and attempt an honest answer. Stop evading.

Sione

PS. Something that is “your product” can be that which is unowned or not property. For example, you produce CO2 when you exhale. Is this property? It is your product in the sense that you produced it. Under certain circumstances it may be possible to claim the CO2 as your property but for that to occur one would surmise that certain conditions would need to be met. What they may be is the interesting question to ponder. What principle need be recognised? What would then be the difference between non-owned product and owned product (hence property)?

Posted by: Sione Vatu at January 2, 2007 12:31 AM

Oh poor Sione,

I already stated my premise, showed my derivations and concepts, validated and proved them. But it is not my fault that you were not able to understand it. I’ll try to simplify it even more for you.

You have definition of ownership provided by Mises just on these threads (one of many available). And we all know what ownership means – and I even had a discussion with Kinsella on how ownership is acquired.

I never said that copyright is some “special kind of ownership” as you (probably unintentionally) lied. All I said is that if you “own” some physical creation – you have a full control of the services that can be derived from a good. And if you own something, you can sell it only for personal use (rent it) – meaning that you restrict some undesired uses, like unauthorized reproduction. That’s where copyright is coming from – your full ownership of some physical object and someone’s voluntary agreement to use it only in certain, restricted ways.

So to cut your never-ending B.S.:
I proved that in cases in which the author is not negligent – there is no way to violate his free-market copyright without committing a violation of valid contract (theft) or without committing a tort (those examples in which there is no contract with anyone, but author’s item gets stolen). I proved that claim in all of the examples that Kinsella & co. tried to think of. You are probably unable to think of one, so you decided to bore me to death as a new strategy.

PS
Again, you are trying to be smarter than you actually are. As far as economics is concerned, CO2 is not normally “my product,” (because the possessive adjective is implying ownership) – but it is a “product of my body.”

Oh, did you finally learn that TB causing bacteria are not a “strain of virus”? Good luck with your studies.

Posted by: Sasha Radeta at January 2, 2007 1:24 AM

Sasha wrote: “I already stated my premise, showed my derivations and concepts, validated and proved them.”
Sasha, you are telling furfies again. No wonder the good doctor called you a liar!
What you have done on this thread is assert that you’ve stated premise, showed derivations and concepts, validated and proved them. You have not accomplished that. Asserting and doing are two different things.
Note you have not yet answered all the questions I directed to you. For instance I asked you to explain your term “legally owned”. Was that too tough for you? Can’t you do it? Why so scared to commit to an answer? Come on man, have a go.

Sasha wrote: “You have definition of ownership provided by Mises just on these threads (one of many available).”
Sasha it was YOU I asked for the definition, not Mises. The comment you make that there are many definitions available is just the reason I need to know from you what YOUR definition is, besides which, had you done as asked you’d not have needed to direct me to Mises’ definition of property now would you? You wouldn’t have needed to because I’d have been able to read yours right here, on this thread.

Sasha writes: “And we all know what ownership means”
Is that so? But you wrote that there are many definitions. So how is anyone supposed to know which one you are relying on?
In this instance the trouble with your approach is that you are relying on a claim to social metaphysics. The collective knows the answer. This is another reason I need to know from YOU what YOUR definition actually is.

Sasha writes: “and I even had a discussion with Kinsella on how ownership is acquired.”
Really? How nooice of you. BTW he is correctly referred to as Dr Kinsella. Have some manners when discussing your betters!

Sasha writes: “I never said that copyright is some “special kind of ownership” as you (probably unintentionally) lied.”
Ah but it’s already been shown that you are the liar on this thread. How very dishonest you have been. Interesting how you now claim to be able divine the intentions of someone halfway around the World on the basis that he asks questions you’d rather not face up to. And rather than face the substance of the issue raised you run off and concentrate on the non-essential yet again.
I have not written that Sasha referred to copyright as a “special kind of ownership”. It is dishonest of you to mischaracterise what I wrote. So stop it! I chose the words I did since copyright is not the same as ownership of real estate or chattels or the regular asset classes. Your copyright appears to be a type of “ownership” that grants someone control over the property of other people. The choice of the word “special” is to mark the separation between (say) my ownership of land and my businesses and your copyright claim of restriction over them. It certainly is a special power or authority you are claiming.
If it makes you feel better you could substitute another word for the word “special” (perhaps “specific” instead of “special” or “particular”- whatever is used the separation should be clear). But why are you again concentrating on the non-essential? Deal with the point at issue. Deal with the substance for a change.

Sasha: “All I said is that if you “own” some physical creation – you have a full control of the services that can be derived from a good. And if you own something, you can sell it only for personal use (rent it) – meaning that you restrict some undesired uses, like unauthorized reproduction. That’s where copyright is coming from – your full ownership of some physical object and someone’s voluntary agreement to use it only in certain, restricted ways.”
This is obtuse. You are mixing all types of property and many possible situations into one collective jumble in an attempt to smuggle your copyright idea in there as a regular type of property right. It isn’t. It is something specific and it is different. For one thing, copyright grants a right of control over property not owned by the copyright holder. By what authority is this to occur? Why so?
One interest I have in your argument relates to how you can properly restrict “unauthorised” uses of certain ideas for that is indeed what you are setting off to achieve. So far you’ve indicated you’d use a beyond reasonable doubt test to determine whom the “originator” of an idea was. Then you’d grant that person a power of copyright based on a so far unexplained concept of “legal ownership”. That test results in certain classes of entity or property being impossible to “protect” for reasons of complexity and difficulty. It’s an arbitrary separation and likely to be arbitrarily applied when reduced to practice. How is that a principled approach? Putting that aside for the moment, I’m very interested in the derivation you use to establish the copyright you assert and the “legal ownership” it relies upon. Hence the questions.

Sasha: “I proved that in cases in which the author is not negligent – there is no way to violate his free-market copyright without committing a violation of valid contract (theft) or without committing a tort (those examples in which there is no contract with anyone, but author’s item gets stolen). I proved that claim in all of the examples that Kinsella & co. tried to think of. You are probably unable to think of one, so you decided to bore me to death as a new strategy.”
No. You have not proved anything much yet. Discussion of a few interesting scenarios & examples is about as far as you’ve gone with this. Not proof. Not really dealing with or explaning of fundamentals. Still, if what you’ve just claimed here were indeed the case, surely you couldn’t object to being asked to explain some of your terms and answer a few questions about your argument and its source. Start with that term “legally owned”. Give that a try will you.
Goodness gracious, you are getting precious though!
BTW do you know what a formal proof is? Do you understand what is necessary to establish one?

Sasha; “As far as economics is concerned, CO2 is not normally “my product,” (because the possessive adjective is implying ownership) – but it is a “product of my body”.”
Idiot! Can’t you get to principle? Look at the questions following the example and try to answer those you fool! That’s the point. Now apply it to your copyright idea and see where it leads. Come on man. Stop being so compartmentalised. Try to think about the essentials! Stick to the point.

Sione

Posted by: Sione at January 2, 2007 1:48 PM

Sione,

I’m not a liar, but you are seriously challenged (your verbal diarrhea does not hide that fact). I explained and proved my position many times before. Your inability to understand it is not my concern.

Why would I want to give my own definition of ownership – when definition of Mises is perfectly fine???? Are you insane? I am not relying on any metaphysics – I am relying on your sanity to know what ownership is. I’m sorry I overestimated you.

By the way, Stephan Kinsella is not a doctor. So you can stop your insane comments about my “disrespect” for Kinsella, when I didn’t call him a doctor. He does not have a higher level of education, but that did not stop him from arrogantly insulting me. AND STOP CONCERNING YOURSELF WITH MY PERSONALITY AND STICK TO OUR TOPIC.

Plus, stop calling me an “idiot” – right after you demonstrated you own unbelievable level of stupidity. When you say that CO2 is your product – that is economically incorrect!!! And I will not apply your stupidity and ignorance to “copyright idea.” Contractual copyright is only a different name for limited terms of use of some physical piece of property.

—–

You stated that my concept of copyright “grants someone control over the property of other people”

THAT IS A LIE.

I only said that if person has ownership over some item – that he has the right to rent it, or allow its certain use, while restricting the others.

If a copyright contract states that in cases of violation of those terms all damages in the amount of unauthorized copies and/or their profits will belong to the author – than property title of these items transferred to that author (by the word of voluntary, free market contract). So copyright does not “grant someone control over the property of other people” as you stated… It actually grants me control over my own property – including specified damages for which I hold the ownership title based on conditions of exchange (total price for the use of my property).

There were different scenarios that tried to challenge the concept of copyright… Some people asked:
Q- What if someone steals your item before you rent it and there is no copyright contract to protect you from unauthorized copies.
I answered:
A- That is the case of tort, not a copyright violation. Copies produced as the result of unauthorized use of my property (trespass) – will be taken away from the trespasser, in the name of “loss of earnings” that resulted from trespass (those copies would have been purchased from me – if it wasn’t for this trespass)

These are very simple concepts – but they are too complicated for you Sione. You don’t have to prove that any further.

Posted by: Sasha Radeta at January 2, 2007 2:47 PM

Sasha: “By the way, Stephan Kinsella is not a doctor.”

Well, I have a Juris Doctor degree, and according to this May 2004 opinion of the Professional Ethics Committee of the Supreme Court of Texas, which considers the question, “May a lawyer use, in connection with his or her name, the titles “Doctor,” “Dr.,” “Doctor of Jurisprudence,” or “J.D.” in social and professional communications?”, the Committee concludes: “the use of the title “Dr.,” “Doctor,” “J.D.” or “Doctor of Jurisprudence” is not, in itself, prohibited as constituting a false or misleading communication. The Committee recognizes that other professions, such as educators, economists and social scientists, traditionally use title “Dr.” in their professional names to denote a level of advanced education and not to imply formal medical training. There is no reason in these circumstances to prohibit lawyers with a Juris Doctor or Doctor of Jurisprudence degree from indicating the advanced level of their education.”

I think Sione is right. From now on, if you are going to respond to or refer to me, please use my title Dr. Kinsella.

Posted by: Stephan Kinsella at January 2, 2007 3:09 PM

Dr. Kinsella,

When I insisted on calling you Dr. Kinsella one month ago – you said: “I’m not a doctor”…

Geez…

I’ll call you whatever you prefer.

Posted by: Sasha Radeta at January 2, 2007 3:24 PM

Sione> What you [Sasha] have done on this thread is assert that you’ve stated premise, showed derivations and concepts, validated and proved them. You have not accomplished that.

I gave him an opportunity to do so in another thread. I realized he had no intentions, or couldn’t even grasp the difficulty he was faced with. So as you say, now he simply asserts that he has done so. His basis (foundation, laughs) has something to do with “personal energy,” owning labor, or something along those lines. It was not good — it was very vague and sketchy.

He doesn’t really appear to understand the descriptive problems associated with “copyrighting/patenting” ideas (and the ensuing juridicial correlation problems), even though Kinsella point blank told him so (and Kinsella is someone who is finely aware of that problem because of what he does for a living). (I also know because of what I do for a living.) Sasha just does not understand the practical problems deeply. I don’t even have substantial disagreement with him on some of the rudimentary “rules” — he just doesn’t realize how severely the burden of proof will be reversed on the limited areas where he isn’t totally whacked. And of course, no free system could ever prohibit independant development — again, the burden under a free system would be so very much reversed from that of the current state enforced system.

SR> Useless and irrelevant comments Greg…

It is your fault. You reduced me to your level. LOL If you would say something worthwhile, maybe I would too, but your history on the topic says you won’t.

SR> You stated that my concept of copyright “grants someone control over the property of other people”… I only said that if person has ownership over some item – that he has the right to rent it, or allow its certain use, while restricting the others.

Doublespeak. The extrication of a class of actions to tort doesn’t really change the matter in practice. You’re just mad that people still umbrella your copyright+tort to a big C Copyright. That is just nitpicking.

Posted by: greg at January 2, 2007 3:35 PM

Wow!! …. still going!!
Sasha, in my example of the coffee shop owner who finds the book, is he allowed to open the book? (I already asked this but you skipped it)
If so, is he only allowed to do so in order to find the original purchaser’s name and/or contact info? If so, how do you justify this without assuming ownership of ideas in general? That is to say, if I am allowed to look at one part of the book, but not another, what is the principle which allows for this distinction?
And on the topic of idea ownership, you write “… ideas can be owned when they are turned into something tangible and physical.” How does this work exactly? Are you saying that the non-physical idea (or ideal or form) is actually “in” the physical object?
Smaller point (skip if you want): In your most recent post, you write “(those copies would have been purchased from me – if it wasn’t for this trespass)”. This is not necessarily true. It may also be the case that the unauthorized seller is just a much better salesman than you — i.e. he might be able to sell 1000 copies, where you might sell none.

Posted by: Fred Mann at January 2, 2007 3:39 PM

Greg,

I showed that Sione’s comments are totally absurd and meaningless philosophizing about nothing. I don’t have to blab about “rudimentary rules” or “foundationalist philosophy.” I can use a simple logic to show that in a perfectly free-market (where we respect private property rights) you cannot violate someone’s copyright without breach of valid contract or without a tort.

PS
To prevent other unproductive comments about things I already talked about…
I also answered the following:

Q- What if someone changes his mind about his copyright contract?
A- Similar to any other kind of sale, he can try to return that item and to ask for his money back and conditions annulled. If sale was final – than you have no choice but to accept the price you voluntarily paid for the use of someone’s item. Just like you lawfully cannot give yourself a discount when you pay for something on credit, you cannot unilaterally change terms of exchange in this case either (that’s a theft, anyway, because ownership titles changed hands). Without owner’s authorization you also cannot lawfully “upgrade” your allowed use of that product (that would be like upgrading your airline seat without asking).

Q- What if someone steals your unpublished manuscript and reproduces it – but he already sells them to other parties who did not commit any trespass?
A- He will still be responsible the large amount of money that would legally cost him to obtain full ownership of my manuscript (which would give him the right to reproduce it and distribute it). It is up to this trespasser to pay for his actions (plus punitive damages) and third parties are not responsible for anything.

Q- What if some thief sells your manuscript to bona fide purchaser, who than starts publishing your book to general market?
A- Bona fide purchaser will not be treated as a criminal, and he will return the original item or the money he received for it. But as far as his copies go – they are also a product of unauthorized use (trespass) In order to legalize his actions, unintentional trespasser will have to correct the harm he caused in the author’s loss of earnings.

———————————————-

Fred,

In your coffee shop example, there is a fine distinction between looking at the book to find the identity of the owner – and acting in ways that would cause injury to the owner. Even if that person trespasses and reads this book, he can claim that he did it unintentionally, while looking for the owner’s information – and that’s fine. What’s not fine is using that trespass to cause some injury to the author – like loss of earnings.

As far as your question about the thief who might be more capable seller, you are forgetting something:
– From the common law perspective, I don’t even have to tell you that “capability” of thief would be impossible to prove and that victim has a benefit of the doubt.
This thief was selling some items – that legally he only could have obtained from the author – and than he could have shown his capability, like any other legal seller. Just his possession of those items (even without selling them) proves the loss of earnings of this author.

Posted by: Sasha Radeta at January 2, 2007 4:17 PM

Also Fred,

In tort, we are concerned about the harm that intentional or unintentional trespass may cause. Common law is no so “exotic” and it is usually not concerned with stuff that’s almost impossible to prove (like whether someone opened your book or not). Common law is a product of human experience – and not of someone’s wild imagination. When we talk about tort, there must be some injury (other than breach of contract). Unintentional trespass, like bona fide purchase of some stolen property or your coffee shop owner who opens someone’s mislaid book, are not doing anything criminal… BUT that does not mean that these unintentional trespassers will be legally allowed to later use that trespass to cause some injury to the rightful owner.

Posted by: Sasha Radeta at January 2, 2007 4:47 PM

SR> A- Bona fide purchaser will not be treated as a criminal, and he will return the original item or the money he received for it. But as far as his copies go – they are also a product of unauthorized use (trespass) In order to legalize his actions, unintentional trespasser will have to correct the harm he caused in the author’s loss of earnings.

SR> Unintentional trespass, like bona fide purchase of some stolen property or your coffee shop owner who opens someone’s mislaid book, are not doing anything criminal… BUT that does not mean that these unintentional trespassers will be legally allowed to later use that trespass to cause some injury to the rightful owner.

“Unintentional trespassers”: See, you do treat them like criminals, just ignorant ones. You are doing Doublespeak, or more likely, expressing simple-minded confusion. You need to establish that ideas are property. Get busy! {laughs}

Posted by: greg at January 2, 2007 8:20 PM

Calm down you poor ignorant guy.

I am not treating them like criminals… You obviously don’t even know what tort is.

You need to first learn the difference between tort and criminal cases – before you can afford to be so arrogant.

Get busy! {laughs}

Posted by: Sasha Radeta at January 2, 2007 9:06 PM

So it is your position that the opening of a book under these circumstances is trespass?
Also, what of part two of my question? To repeat:

And on the topic of idea ownership, you write “… ideas can be owned when they are turned into something tangible and physical.” How does this work exactly? Are you saying that the non-physical idea (or ideal or form) is actually “in” the physical object?

Posted by: Fred Mann at January 2, 2007 9:47 PM

Fred,

I told you, opening a book under those circumstances is not a tort and that’s what matters.

As far as your question about ideas goes, I ignored it for your sake. Didn’t you get by now that I only talk about physical property? Even abstract ideas can be written down and than they will become something tangible and ownable. So ideas are not “in” the physical object in some philosophical sense (save that for pseudo philosophers, you have plenty of them on this thread) – ideas can be turned into physical object or a part of it.

Don’t busy yourself with “non-physical ideas,” because we are concerned with property rights of ownable goods here, not philosophy.

Posted by: Sasha Radeta at January 2, 2007 10:18 PM

Correction: property rights over ownable goods : )

Posted by: Sasha Radeta at January 2, 2007 10:22 PM

I like to give everyone the benefit of the doubt, but I finally agree with some people who told me from the beginning that Sasha is quite dense, to say the least.
I don’t understand how he can still believe I advocate breaking contracts.
What I do advocate is identifying invalid clauses in contracts and not abiding by them. Not because we derive pleasure from reneging on contracts, but because invalid clauses are non-binding by definition.
What is an invalid clause? My position is that there exists a certain type of transaction that is final and accepts no condition to be placed on the use of the product involved in the exchange. It is characterized by full transfer of ownership. I call this transaction a sale. Brian seemed to agree, except he sees that the word sale is commonly used to refer to transactions where ownership is not fully transfered, and thinks we should let that situation perdure. My question is: why? Why do I have to qualify my sale with terms like “as-is sale”? Why don’t the others qualify their transaction with “restricted sale”, or “partial sale”, or “rent”? Just because there’s more of them? Just because something is common, doesn’t mean it’s right. Even if most people were color-blind, those who weren’t would still be right when pointing out mismatched socks.
Also, who’s to say that in a free-market situation, the other type of transaction (where ownership is fully transfered) wouldn’t be the more common one? I believe this to be the case and here’s why:
In a system where no government steals our money to pay for the institutions that enforce IP rights and protect from violators of these, sellers would have to include the cost of such into the price of their product. Other sellers would gladly abandon the right to control the use of their product beyond the sale and would be thus able to present their product at a more attractive price. This type of sale might become the more common one.
Wouldn’t it then be obvious that when someone presents himself as a seller of this type, he would be a fraud if he were to be a mere renter?
What that means is that, obviously, he can impose any condition he wants in his contract. But in doing so, he forfeits the right to call this contract a sale contract. Only someone as daft as Sasha can endorse such a unilateral modification of the terms of a sale contract.

Posted by: Cosmin at January 3, 2007 11:56 AM

Cosmin,

You are so ridiculous. If both parties voluntarily accept a free market contract (terms of exchange) only someone as daft and dense as you would call this “unilateral modification”. Hey Einstein, I don’t accept any one-sided modifications of contract after both parties terms in which they exchange property titles.

And now you have problem with rent and conditions that some owner can ask from their property’s users (who are free to decline or accept these terms). You ask WHY. Well, because people are free to do with their property whatever they want (as long as they don’t violate someone else’s property with that) and they can exchange their property, goods and services, however they see proper.

Anyone can read what you wrote. You advocate breaking contracts by declaring (unilaterally) that some conditions that were perfectly good for you at the time of purchase (you accepted them) are no longer “valid” – but your control over their product is perfectly “valid” for you. That is called FRAUD.

You can’t rent a car, and than decide you own it. You can’t promise to pay one price, get the product, and than run-away with paying only one part. You even stated that you would accept some terms of exchange just to “to avoid wasting time arguing…” and than feel free that you can change them however you see fit. Only someone completely out of their mind would even say something like that.

Posted by: Sasha Radeta at January 3, 2007 4:55 PM

Correction: I don’t accept any one-sided modifications of contract after both parties voluntarily accept terms in which they exchange property titles.

And sorry about lapses like than=then… I write too fast.

——

Anyway Cosmin, don’t you think it’s time to stop with those crazy insinuations about my positions? Just admit that you cannot invalidate some market exchange contract, by changing your mind about the price you’re going to pay, but still insisting on taking someone else’s good or service. State any definition of enforceable contracts and I will justify the copyright as such. It would perfectly hold in common law, so just give it up.

Posted by: Sasha Radeta at January 3, 2007 10:49 PM

I see reading is not one of your skills.
“And now you have problem with rent and conditions that some owner can ask from their property’s users”
What I said: “obviously, he can impose any condition he wants in his contract.”

“You advocate breaking contracts by declaring (unilaterally) that some conditions that were perfectly good for you at the time of purchase”
What I said: “What I do advocate is identifying invalid clauses in contracts”

“are no longer “valid””
What I said: “there exists a certain type of transaction that is final and accepts no condition to be placed on the use of the product involved in the exchange.”
The condition was never valid, since it was written on a SALE contract.

Answer me this simple question:
Why is it so hard for you to put the Sale contract back in the drawer and pull out a Rental contract if you want to put conditions?

Honestly, do even know how to read? Would you have written your last message if I hadn’t written mine? I would think not. Hence, you wrote in reply to it. Why is it then that you don’t address anything in it, but rather resurrect long-spent arguments that have since been explained and clarified? You’re turning in circles, man! I would stop wasting my time with you, but it’s just too damn funny. It’s like a trainwreck that one can not avoid staring at.

Posted by: Cosmin at January 3, 2007 11:04 PM

Cosmin,

You are even more ignorant than I thought. You said:

—-
“there exists a certain type of transaction that is final and accepts no condition to be placed on the use of the product involved in the exchange.”
—-

You poor soul, there can be a final transaction on rent as well (some people get stuck with their rent contracts)… but that’s not even important…

What you probably meant to say is following:
– there are transactions in which ownership title over some seller’s good is transferred to the buyer. Since this buyer is now the legal owner over that good, that means that he is now in “full control of the services that can be derived from a good” (L. v. Mises, H.A.).
OF COURSE THERE ARE TRANSACTIONS LIKE THAT! Didn’t we talk about it when we mentioned co-ownership or full ownership, in which a publisher (unlike a common user) has the full control over his good.

UNFORTUNATELY FOR YOU, copyright does not refer to these kinds of transactions. The ownership title over copyrighted item is kept by the author or publisher in this case. The purchaser only buys the service that can be derived from the personal use of that product. It’s like any rent. The owner has a right to ask for the price for the specific use of his item, and he has the ownership right to restrict some unwanted uses.

IS THAT CLEAR NOW? Well, probably not to you.

Posted by: Sasha Radeta at January 3, 2007 11:32 PM

Also, the problem is that you don’t read your own postings.

By “invalid clauses in contracts”

You actually mean this (these are your words): “Person B dismissively promises to abide by M in order to avoid wasting time arguing…”

That is nothing but a fraud and theft. SALE includes exchanges of both goods and services – and you cannot unilaterally dismiss someone’s price (asked goods and services from you), but keep his good and treat it as your property.

Anyway, that still has nothing to do with copyright (only with your ignorance). How would you apply your insane notion of “invalid clauses” copyright?
– Someone says that he does not give up his property title over some product and that he will only allow you to use that product in certain ways for specified compensation (in money and damages in cases of contract violation)… but you decide to assume you are the owner of that good and that you get to pay only a part of the price that you find “reasonable.” I mean, how else would you apply your nonsensical “final sale” ramblings to copyright??? I’m just asking here, don’t attack me… Just give me an example!

Show me how you would find “invalid” clause in any copyright product! (This is really refreshing after anarcho-communists failed to justify tort as a mean to bring down the copyright).

Posted by: Sasha Radeta at January 3, 2007 11:41 PM

“You actually mean this (these are your words)…”
I thought I told you to refer to the newest posting.

“- there are transactions in which ownership title over some seller’s good is transferred to the buyer. Since this buyer is now the legal owner over that good, that means that he is now in “full control of the services that can be derived from a good””. That’s what is called a sale.

“UNFORTUNATELY FOR YOU, copyright does not refer to these kinds of transactions.”
FINALLY! In other words, when you sell something, you can’t impose copyright restrictions. That’s what I’ve been trying to tell you since last year!

“Show me how you would find “invalid” clause in any copyright product!” Easy. If the shopkeeper says the product is for sale, what that automatically means is that you acquire “full control of the services that can be derived from a good”. Hence, no copyright can exist on said product. For a copyright to exist, the shopkeeper would simply have to say the product is for rent. Is that so hard?

Posted by: Cosmin at January 4, 2007 12:04 AM

Oh Cosmin- you “genius”!

I will refer to any of your postings – not just new ones (until you clearly reject the old ones and say that they were incorrect)…

By the way, there is no need for that “FINALLY” charade – I kept saying the same things, over and over again. I’m not the one who asks people to refer only to my newest posting.

TO GET TO THE POINT:
“Sale” does not have to imply exchanges of the ownership title over some particular good. You can sell your services, like allowing someone to use your book in contractually specified manner. If your written copyright disclaimer states that you are NOT purchasing the ownership title over that product and that you have specific terms of use – you will have to respect those. Is that so hard?

Posted by: Sasha Radeta at January 4, 2007 1:39 AM

And to preempt something I can see clearly coming:

No one cares what “sale” means to you in a particular context, if there are expressed terms that specify what is exactly sold there.

After all those insane attempts to justify contract violations with “third…, fourth…, fifth…” parties – as well as Cosmin’s “crossed fingers” – it has all now come down to a subjective interpretation of word “sale” in communication with sellers – meaning that the validity of copyright contract is no longer in question.

Posted by: Sasha Radeta at January 4, 2007 1:54 AM

I thought the point of a debate is to advance the conversation. My position has not changed from the first post to the latest, but the wording has. Perhaps it is more concise and presents the situation in a more clear and understandable way. At first, there was some confusion on my part because I hadn’t realized you were talking about a different kind of transaction (partial) when you used the word sale.
What sort of logic impels you to resurrect the older posts, whose time has passed?
Then again, you are not debating to advance comprehension of anything. You never answer questions. You never address points made. You just turn around in circles, throwing tantrums when someone doesn’t agree with you.

This may be pointless, but let me explain my position:
1. Sale is the transaction where ownership is transfered.
2. Copyright has no place in a transaction where ownership is transfered (sale).
3. Copyright is perfectly valid in any rental transaction.
4. Proponents of copyrights are free to advertise that they have products for rent. They can’t trick (fraud) costumers by saying their products are for sale.
5. Then, let the market decide which type of transaction will perdure (or if both coexist).
What’s wrong with that?

Posted by: Cosmin at January 4, 2007 11:36 AM

Nice summation, Cosmin. You have my endorsement.

Posted by: Scott D at January 4, 2007 12:13 PM

Sorry about the slight delay, Sasha.
Anyway, you write:

“I told you, opening a book under those circumstances is not a tort and that’s what matters. ”

Posted by: Fred Mann at January 4, 2007 4:44 PM

Cosmin had a change of heart. Cool with me, but bear in mind the following:

—-

Fred,

ANYWAY,

Posted by: Sasha Radeta at January 4, 2007 5:34 PM

Sasha

Now go back, re-read the questions and make an honest attempt to answer. How hard can it be?

Sione

PS you could always concede that you can’t do the derivation. In that case go as far as you can and show where the problem lies. That way that problem could be considered.

Posted by: Sione Vatu at January 5, 2007 12:21 PM

SR> I am not treating them like criminals… You obviously don’t even know what tort is.

Actually, you finally said something right. You aren’t treating them like criminals, you are treating them like your victims. The person intentionally doing harm is you.

SR> …ideas can be turned into physical object or a part of it. Don’t busy yourself with “non-physical ideas,…”

SR> And sorry about lapses like than=then… I write too fast.

That is the least of your problems.

FM> Any sentence which begins “Ideas can be owned when …” (or some variation) is incorrect.

Exactly. It immediately self-contradicts; Not that such a rudimentary logical problem will pose any barrier to the stubborn.

SR> When written down, this content (idea) becomes something ownable.

Your idea about ideas is ludicrous. But I’ll grant you “ownership” of it. I sure want nothing to do with it.

Posted by: greg at January 5, 2007 5:54 PM

Sione,

You’re probably high on drugs, or just ill.

—–

Greg,

Learn difference between a crime and a tort. If you cause a car-accident, it is not a crime, but you will still have to pay for the results of your actions.

Posted by: Sasha Radeta at January 9, 2007 12:22 AM

: )

Posted by: Sasha Radeta at January 9, 2007 12:36 AM

When I say that something is “owned” – I refer to the definition of ownership that was provided by Ludwig von Mises (the standard definition). From that point – we can conclude that the owner has the right to allow and restrict certain uses of his property. That’s where the copyright (the restriction of reproduction and other commercial uses) comes from. And you can’t do anything about it Sione, except talk some gibberish about “premise, fundational derivations, isolation or as an abstract theory”

: )

Posted by: Sasha Radeta at January 9, 2007 12:37 AM

Sasha

You write: “When I say that something is “owned” – I refer to the definition of ownership that was provided by Ludwig von Mises (the standard definition).”

& yet you wrote: “Property is that which is legally owned by an individual or entity.”

Then you proceeded to assert your copyright on the basis of “legal ownership.” [your post of December 28]

You also claimed: “Everyone knows that (sic) “legally owned” means.”

Well, von Mises certainly did.

Sione