Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors (2008)

 

In my posts Owning Thoughts and Labor and Thoughts on Intellectual Property, Scarcity, Labor-ownership, Metaphors, and Lockean Homesteading, I discuss several problems with over- or mis-use of various metaphors in political theorizing, especially the idea that we “own” our labor and “therefore” come to own things we “mix our labor with”; the idea that we own things we “create,” and that this is one of the main ways (or the only way) to acquire ownership in things; and related notions such as the idea that we have property rights in the “value” of things we own.

[Update: see Oliva on Objectivists and “Second-hand Property Rights”]

As I argue in the posts above and elsewhere (e.g., How We Come to Own Ourselves; Defending Argumentation Ethics; Owning Thoughts and Labor), homesteading does not need to rely on the strange, non-rigorous, overly-metaphorical idea that we “own” our “labor.” One owns has a better claim to unowned things one first uses, than do latecomers. Period. It has nothing to do with “owning” “labor.” We own scarce resources, not our labor.

As for the idea that we own things we “create,” this idea is often used to justify IP–after all, who can deny that an author “creates” his novel? So if you own normal (tangible) property because you create it, why don’t you own other “ontological” types of things you create, like poems or inventions or recipes? (See, e.g, the argument for IP by Tibor Machan.) The problem with this idea (see pp. 26 et pass. of Against Intellectual Property; Owning Thoughts and Labor; and the discussions in the comments section of Trademark and Fraud) is that creation is neither necessary nor sufficient for ownership. If you already own the underlying material that you re-shape into a different, more useful configuration, you own the resulting thing because you already owned the material that it is made of (imagine carving a statue out of your hunk of granite). And if you carve a statue in someone else’s granite, you don’t own the statue. In fact, the only way to come to own something is to either find it unowned and appropriate it; or to obtain it contractually from someone who did (or his transferee).

Finally, all this is intermixed with the idea of value. A common mistaken belief is that one has a property right in the value, as opposed to the physical integrity of, one’s property. For elaboration, see pp. 139-141 of Hoppe’s A Theory of Socialism and Capitalism; also see my comments re same to Patents and Utilitarian Thinking. This assumption sneaks into or lies at the basis of many fallacious notions of property rights, such as the idea that there is a right to a reputation because it can have value. It ties in with the (especially Randian) notion of “creation” as the source of rights, and the confusing admixture of the “labor” idea, when we talk about using our labor to “create” things of “value” (like reputations, inventions, works of art). Actually, if you labor transform a homesteaded thing into something more valuable, you own the resulting valuable thing not because you created it; not because you own your labor–but because you were the first user of the underlying property that was transformed. Yes, your creative labor made the object that you owned more valuable to you (presumably, ex ante, as this was your goal), but it is not a source of ownership. Therefore, it’s a non-sequitur to leap from these observations and say that you own anything you create that has value.

As Hoppe notes in his classic article Banking, Nation States and International Politics: A Sociological Reconstruction of the Present Economic Order,

“One can acquire and increase wealth either through homesteading, production and contractual exchange, or by expropriating and exploiting homesteaders, producers, or contractual exchangers. There are no other ways.”

Note that Hoppe here acknowledges that “production” is a means of gaining “wealth”. But this does not mean that creation is an independent source of ownership or rights–production is not really the creation of new matter; it is the transformation of things from one form to another; things one necessarily already owns. Therefore, the resulting more valuable finished products–the results of one’s labor applied to one’s property–give the owner greater wealth, but not additional property rights. If I carve a statue out of my stone, I already owned the stone, so I naturally own the resulting statue; what has changed is that I have transformed my property into a new configuration that is worth more to me, and possibly to others. (This is discussed further in Owning Thoughts and Labor.)

***

I mention all this because these issues came to mind when I read the recent comments of an Objectivist law professor, Adam Mossoff, on copyright and related matters. See, e.g., his “Locke’s Labor Lost,” 9 University of Chicago Law School Roundtable 155 (2002); “Is Copyright Property?” 42 San Diego Law Review 29 (2005); both available on SSRN.

In the copyright piece, in the short span of two paragraphs, Mossoff nicely illustrates the kind of reasoning I’m talking about–the misuse of the concepts of creation, labor, and value in an attempt to justify copyright as a natural right. Writes Mossoff:

Property is the right to acquire, use, and dispose of the things that one has created through one’s labor. It is this concept of property that precipitated the virtual truism in American society that every person has a right to enjoy the fruits of one’s labors.

It is also this concept of property–which focuses on the substantive relationship between a person and the thing that he has labored upon or created–that explains and justifies the protection of intellectual property rights, regardless whether these rights exist in tangible books or computer code. A person’s right to control the disposition of his creation, and thereby enjoy the fruits–the profit–of his labors, is central to the legal definition and protection of property entitlements.57 As the New York Court of Appeals stated in 1856: “Property is the right of any person to possess, use, enjoy and dispose of a thing. . . . A man may be deprived of his property in a chattel, therefore, without its being seized or physically destroyed, or taken from his possession.”58 In the context of tangible property rights, the courts have never demanded that a person be deprived physically of his property as a necessary prerequisite for finding a violation of property rights. Stealing the fruits of one’s labors or indirectly interfering with the use of the property is sufficient; in other words, it is sufficient that one lose the ability to use, control or dispose of the values that one has created.59 It is this concept of property that explains why copyright is in fact property, rather than monopoly privileges meted out to authors at the leisure of the state’s utility calculation.”

So let’s take a look at this. First, Mossoff says property is that which you “create” through your “labor”. The concepts of labor and “creationism” permeate his analysis.

It would be harmless to merely recognize, to observe, that in homesteading a scarce (rivalrous) resource, one of course employs “labor”. One homesteads an unowned resource by being the first to possess, use, emborder it, because these give the appropriator an objective link to the property, a better connection to it than any latecomer. It is not because one “owns” one’s labor. This is a misleading metaphor. But it’s okay to observe this, if one is clear in one’s terms. Of course, “using” something or “acting” or “appropriating” an object is a type of “labor,” so sure, labor is involved. Fine. But it does not imply that one has a right to anything one labors on. This would be taking the significance of labor out of context.

And as noted above, one does not really create new things–one only homesteads them (if unowned); or transforms them (if already owned) into more useful configurations. Productive effort can create wealth, that is, transform owned things into more-valuable things. But creation is not a source of rights or ownership; rather, creative production is what makes already-owned things more valuable. The uncareful over-reliance on the role of creation sloppily equates wealth (which is the result of human labor, creativity, productivity) with property.

To re-state: one has property rights in scarce resources that he homesteads. Nobody “creates” these things; someone appropriates them from their unowned state. It is commonly argued that you can acquire ownership of things by either finding, buying, or creating them. But in reality, creation is a false third category. And here, the IP proponent is elevating it as the main (or sole) way of acquiring ownership in things. As of course he has to, since, as Tibor Machan notes, ideal objects like poems are purely human-created things:

“the status of something as private property appears to hinge on its being in significant measure an intentional object–its status as a private owned entity has to do with in what mental relation is stands with an agent. But then it would seem that so called intellectual stuff is an even better candidate for qualifying as private property than is, say, a tree or mountain. Both of the latter only come to be related to human intentions, whereas a poem or novel cannot have their essential identity without having been intended (mentally created) by human beings.”

But not only is creation the only, or main, source of ownership; it is not a source at all.

Back to Mossoff: note that in the second paragraph quoted, he subtly relies on the idea that labor is a source of rights, and that there are property rights not only in tangible objects, but in “value” one has “created” with one’s labor. First, he writes that: “It is this concept of property [that it’s the right to acquire, use, and dispose of the things that one has created through one’s labort] that precipitated the virtual truism in American society that every person has a right to enjoy the fruits of one’s labors”. Well, what are the “fruits” of one’s labors? There are literal fruits, like a tree producing fruits. Of course, if you own a tree and the land it’s on, the fruit that falls from the tree is yours too; before it drops from the tree it’s part of the tree that you own; you own the fruit after it falls off, just as you own both parts of your staff after you break it in two. There are also “civil fruits”–the profits or interest that you gain from investing capital you own. Or other “fruit” like milk of the cow you sell. But owning a resource (say, a cow) is sufficient to give you the right to benefit from its “fruits,” since you own these too. You don’t need to find a separate “right to own fruits”; it’s implied in what it means to own something.

And say you want to make money by being paid to labor for someone. You could call the payment for doing the job “receiving the fruits of one’s labor”–the fruit is the money you receive, in exchange for labor you perform. Now you certainly own your body, which is a scarce resource. But this is enough to allow you to make money by laboring: you control your body, so you withhold services until someone agrees to pay you for performing a given action.

So: recognizing the role of “labor” as part of acting to appropriate property in no way implies one is “entitled” to “whatever results” from that labor. Likewise, the fact that human creativity can create wealth–make owned things more valuable–in no way implies that “creation” is some kind of independent source of ownership of things. And the fact that we value the things we own, and that we enhance this value by improving or transforming our property, in no way implies that we have property rights in value as such.

So why, then, does Mossoff emphasize that we have the right to enjoy the fruits of our labors? Why does he imply that there is a separate, independent property right in “fruits” of “labor”–? After all, labor is not the source of rights; nor is there some separate homesteading of unowned fruits out there–the fruits are either yours already (because they were part of and came from a thing you owned), or they are given to you contractually (in exchange for you performing services with things you own). In neither case is there any reliance on some underlying labor-creationist-theory that you have a right to “own” any “thing” that you “create” with your “labor,” much less any thing — even intangible things–that “have” value (of course, things don’t “have” a value; they are valued by certain people as demonstrated by their actions).

Well, he emphasizes labor and value and creation because that is what you have to do to claim rights in copyrights and patents. These things are not scarce resources that are homesteaded. No; they are simply mercantilist, state-granted monopoly privileges that give the holders claims on other people’s already-owned property. And on what grounds? On the grounds that the holder thought of a way to use his own property–so he ought to be able to control everyone else’s property in the same way. Clearly this is in stark opposition to the notion of homesteading, which is the true basis for property rights. But if you ignore the true nature of homesteading–that it is the assignment of property rights to those with an objective link to the scarce object in question so as to permit conflict-free interaction and use of scarce means–and emphasize “aspects” of homesteading–that it “involves” labor; that the results of productive effort “have value”; then you can just “by analogy” try to invent a new form of property right in “things that have value”, that are naturally owned by–who else–the person who created them. After all, you have a right to things that “result from” your labor, right?

Note that Mossoff says,

“In the context of tangible property rights, the courts have never demanded that a person be deprived physically of his property as a necessary prerequisite for finding a violation of property rights. Stealing the fruits of one’s labors or indirectly interfering with the use of the property is sufficient; in other words, it is sufficient that one lose the ability to use, control or dispose of the values that one has created.”

Note the word values tossed in there, to allow him to find a way to say that failing to respect copyright is a type of “stealing” since it diminishes the “value” of the copyright to the user.

Mossoff also writes:

It is also this concept of property–which focuses on the substantive relationship between a person and the thing that he has labored upon or created–that explains and justifies the protection of intellectual property rights, regardless whether these rights exist in tangible books or computer code. A person’s right to control the disposition of his creation, and thereby enjoy the fruits–the profit–of his labors, is central to the legal definition and protection of property entitlements.

Here he says that property has to do with a relationship between a person, and “the thing that he has labored upon or created”. As if this is what homesteading is. And of course, you have to have the right to control the disposition of your property to enjoy its fruits. Well, let’s think about this. In the case of tangible property, it is not because you “labored upon” it that you own it. In fact, if you labor upon someone else’s property you do not own it. No: it is because (in the case of homesteaded property) you were its first user, giving you an objective link to it and a better claim than anyone else, who with respect to you is a late-comer (making their own claim, which also would have to be based on the idea of their link to it, which is their possession of it, inferior, since it came after yours, and contrary to their own presupposed prior-later distinction since of course they maintain a third-comer has no rights to it because they come later!). It is not because you “labored upon” it; it’s because you did something to emborder it, to appropriate it. And it’s not because you “created” it: you never create property: you just transform it. To transform something, you have to own it already, or at least, you transform unowned property thereby appropriating it. But you are not creating it. If you “create” wealth, you do not own the wealth; it’s just an aspect of property you do own. If you create products using your own raw materials, you creation of products is not a separate source of ownership; you own the products not because you created them, but because they are just transformed property that you already owned. If your cow gives milk you own the milk because you already owned the cow, and the stuff that was inside her.

So Mossoff is wrong to imply that homesteading of normal (scarce, rivalrous) property rests on the notion that, or implies that, creation is a source of property rights, or even “laboring upon”. Labor only serves to generate property rights if it’s labor that amounts to a type of first use or possession of an unowned scarce resource. This in no way implies that if you think of a pattern or a way to use your property, that you now gain property rights in other people’s already-homesteaded property. The analogy totally breaks down.

As to the comment, “A person’s right to control the disposition of his creation, and thereby enjoy the fruits–the profit–of his labors, is central to the legal definition and protection of property entitlements.” Well–for tangible property, the exclusive right to control the scarce resource homesteaded is in itself fully sufficient to “enjoy the fruits of” it–just as ownership of a home is sufficient to have “free speech” on it. Just as there is no separate right to free speech (if there were, you could speak on others’ property without their consent); not, it’s just a consequence of, or derivative of, or an aspect of, the fundamental right to control your property (including your body). Likewise, there need be no separate “right to enjoy the fruits of” your “things” that “result from your labor.” This is a stilted way of putting it to reverse engineer the result that the IP advocates want. Giving the first user of a scarce resource the right to control it is all the property rights do, and need do. Given this right to control, you can “enjoy its fruits”. There is no separate right to enjoy fruits–certainly not as open-ended as “enjoy the fruits of” any thing (whether scarce or not) that you “labored upon to give value to” or “created”. None of this follows at all.

The entire case for copyright and patent based on “creationism” is nothing but a house of cards, constructed on confused understanding about the true nature of individual property rights. The labor-value-creationism myth has wormed its way through libertarian property rights theory and tainted it. It needs to be ripped out.

One final comment. The conclusion to Mossoff’s paper states:

The past evolution of copyright law is notable because we are in the midst of another revolution today–the digital revolution. The impact of the digital revolution is as far reaching as was the industrial revolution of the nineteenth century, but it is important to realize that we are still in the midst of this revolution. It is not yet clear how and in what ways intellectual property rights should be best protected in the new digital domain, but the evolution of intellectual property rights is as necessary today as it was during the industrial revolution. It would be wrong to condemn outright our early attempts to define copyright entitlements for digital content, just as it would have been wrong to condemn the early attempts at defining trademarks or the evolving rules of copyright at the end of the nineteenth century. A legal doctrine in transition may be criticized for its various fits and starts, but the difficulties inherent in the transition are not sufficient grounds for junking the doctrine itself.

Fits and starts!? Some growing pains we are going through. It’s bizarre any advocate of liberty could ever advocate the nightmare that is copyright.

***

Appendix: On the dangers of metaphors in scientific discourse

The following observations and quotes assembled from previous email and other conversations re same:

See the following, from Mark Thornton’s The “Market” for Academic Research: this is a great quote; I think it would be a useful project to collect various comments on dangers of the use of metaphors into one place:

“For it would be an absurd undertaking to banish from the language of economic theory every manner of speaking that is not literally correct; it would be sheer pedantry to proscribe every figure of speech, particularly since we could not say the hundredth part of what we have to say, if we refused ever to take recourse to a metaphor. One requirement is essential, that economic theory avoid the error of confusing a practical habit, indulged in for the sake of expediency, with scientific truth.“

–Eugen von Böhm-Bawerk, (1881), “Whether legal rights and relationships are economic goods.” In H. Sennholz (Ed.), Shorter classics of Böhm-Bawerk, Volume I. Spring Mills, PA: Libertarian Press, 1962, p. 135. As Mark noted on a list: “Bohm Bawerk took up this issue [of misuse of metahpors] in Shorter Classics. I quote him at the opening of this paper (attached). The whole public choice agenda is based on the use of market methaphors for government institutions.”

NSK:

I’ve long noticed the over- and mis-use of metaphors. For example Paterson or Lane’s use of “energy circuits” …. very scientistic. Similar to the way people talk about the “momentum” of a football game or the “energy” of a crowd or a crystal.

Or in the idea of mixing or owning labor, or owning ideas, or in the idea that prices “convey knowledge”.

Also, as I noted elsewhere: “Mixing labor” is horribly misleading and a sloppy metaphor: if I turn a piece of land into a farm, did I *actually* mix my labor? I mean, is there like an amount of labor “in” the soil? It’s really sloppy and imprecise.

I’ve always liked this observation of Huelsmann’s:

Only in a metaphorical sense could one say that prices reflect or contain information on present conditions. …

… It is asserted that prices communicate abridged relevant information. This, however, is only a metaphorical expression.

It is not prices that coordinate the actions of sellers and buyers of tin; prices are the outcome of (coordinated) action, not its coordinators. It is property, rather than knowledge, that coordinates the separate actions of different people. The terms coordination and communication rather obfuscate than adequately express this fact. This is another example of the dangers linked to the use of metaphors in scientific discourse.

From p. 29 of this article

And Rothbard:

“The term “consumers’ sovereignty” is a typical example of the abuse, in economics, of a term . . . appropriate only to the political realm and is thus an illustration of the dangers of the application of metaphors taken from other disciplines. “Sovereignty” is the quality of ultimate political power; it is the power resting on the use of violence. In a purely free society, each individual is sovereign over his own person and property, and it is therefore this self-sovereignty which obtains on the free market. No one is “sovereign” over anyone else’s actions or exchanges. Since the consumers do not have the power to coerce producers into various occupations and work, the former are not “sovereign” over the latter.”

Mises:

“Mises rightly criticised treating imaginary things (collectives, analogies, metaphors, etc.) as real and warns us to be very cautious when using fictitious auxiliary constructs to explain things”

Also, from others’ comments about this on an email discussion list:

Roderick Long:

“Ironically, in his memoirs Mises accuses Bohm-Bawerk (in their dispute over Cantillon effects) of being led astray by the idea of “friction” and other metaphors from the physical sciences.”

On a thread, I had written: “Right, and this is the danger of metaphors (BTW I wonder if anyone has examined this issue in any detail–? The dangers overuse of metaphors in scientific discourse?).” Roderick Long replied: “Right, such a study might be called “How Scientific Discourse is Being Savagely Bitten to Death by Rabid Metaphors.” Tom DiLorenzo’s reply:

“A fun paper (Vedran, are you listening?) would be to ridicule the metaphors in macroeconomics with all the talk of “injections,” “Leakages,” shocks,” etc. I would start by comparing it all to the movie Young Frankenstein, where they tried to “shock” the monster to life, just as “infusions” of money or tax dollars supposedly shock the economy out of a recession. Then when shock therapy didn’t work, Gene Wilder pulled out a giant needle and “injected” the monster, just as money is supposedly injected into the economy by the Fed. The possibilities are endless.”

John Brätland:

In this connection, I would put in a strong plug for Peter Lewin’s paper: “Methods and Metaphors in Capital Theory.” (Advances in Austrian Economics, vol. 2B).

I might add that important parts of Mises’ “Ultimate Foundations… ” and “Theory and History” deal with the issue of inapt and misleading metaphors in economic science.

See also The Problem with “Fraud”: Fraud, Threat, and Contract Breach as Types of Aggression, discussing problems resulting from uncareful use of concepts like “fraud” in libertarian reasoning.

Archived comments:

[archived comments]

Tony Fernandez April 19, 2011 at 7:39 pm

Edgaras April 20, 2011 at 8:54 am

El Tonno April 20, 2011 at 2:50 pm

Wildberry April 20, 2011 at 3:08 pm

Stephan Kinsella April 20, 2011 at 3:52 pm

Wildberry:

In your very first objection, you misstate his reference to Locke. What he said is that Locke was wrong to conclude that rights to IP were justified by a labor theory. Instead he refers to AR’s principle that it is the intellect that is the origin of all values.

I misstated nothing. I said “Mossoff says (or implies; I can’t recall) that Locke believed IP was a natural right.”

In the Youtube version, Part 3 of 8, at about 3:20-3:44, Mossoff says Locke recognized IP as property, and strongly implies that Locke viewed this as a natural right (the preceding few seconds is about Locke’s view of the natural right to property)–this is exactly what I said in my main post. And, as I said in the main post, this contention is false, as shown by Ronan Deazley and Tom Bell.

As for your comment, ” What he said is that Locke was wrong to conclude that rights to IP were justified by a labor theory. Instead he refers to AR’s principle that it is the intellect that is the origin of all values.”

Yes, in my main post above, I explicitly said:

At one point Mossoff says that leftist opponents of IP are labor theory of value types; and that the problem with this view is that it’s not physical labor but intellectual effort or labor that is the source of property.

Apparently you did not even read my post or listen to Mossoff’s lecture.

But what I found especially interesting is his knowledge of your arguments, and that the scarcity argument for property rights originated with Jeremy Benthem’s arguments for utilitarianism. … And to think that your scarcity argument is found at the root of both Bentham and Marx.

The recognition that property arises because of scarcity is not utilitarian or Benthamite–or Marxian. Rather, the Randian argument itself is closer to utilitarianism (witness the tortured argument for why a finite term is justified) and even somewhat Marxian (in its reliance on a labor theory of creation if not a labor theory of value).

The principled libertarian rejection of IP is completely unlibertarian and does not rely on labor-ownership as a basis of the homesteading principle.

Once again, Wildberry, your arguments completely fall apart.

Wildberry April 20, 2011 at 7:06 pm

@Stephan Kinsella April 20, 2011 at 3:52 pm

Yes, you are right. I missed that the first time around. He said “Locke recognized IP as property”.

I don’t want to get into a food fight with you about what Locke said or didn’t say about the relationship between IP and property. It is sufficient apparently, to acknowledge that you and Mossoff agree that a (physical) labor theory of property is not sufficient to support the fundamental principle that IP is in fact a natural property right.

Apparently you did not even read my post or listen to Mossoff’s lecture.

Yes, I did both. I was focusing on the main thrust of his lecture, that the treatment of IP from the founding and then through later court cases, and including contemporary libertarian objections to IP (in which context he mentions you by name) were/are plagued by a misunderstanding, according to Mossoff, about the nature of man and the fundamental nature of intellectual labor and values.

I find this entire subject of natural rights moot. You have agreed that an author owns his original manuscript. How one arrives at that conclusion apparently involves more than one path of reasoning. Personally, I arrive there through the principles of self-ownership and the private means of production. I fail to see why this needs to be continually debated, as if it is critical to establish who has the better reasons to justify a common holding.

The recognition that property arises because of scarcity is not utilitarian or Benthamite–or Marxian. Rather, the Randian argument itself is closer to utilitarianism (witness the tortured argument for why a finite term is justified) and even somewhat Marxian (in its reliance on a labor theory of creation if not a labor theory of value).

I am simply saying that I find it interesting that your theory of property, which rests on the concept of scarcity, is also at the foundation of Bentham’s utilitarianism, which is a foundation for Marxism. All three views proceed from a premise that presupposes scarcity as the initial condition, which you may rightly deny exists in the case of “ideas”, but which you then falsely equate with IP.

Not surprisingly, your conclusion that an author may only choose to keep his work secret or give it away (after the first sale, perhaps), is an outcome that is remarkably similar to that of the “greatest good for the greatest number” line of reasoning. In your view, the greatest good (of individual liberty) is served by the gratuitous disclosure by the author, since you seem unwilling to justify any reason to secure his rights beyond non-disclosure.

The right only to withhold the very thing that has been produced for the purpose of disclosure, leaves authors with little else than the more “communal” motivations; doing it for the good of the community rather than the profit-for-private-production reasons common to the non-socialist views of the importance of private property.

I see a similarity between this view and Marxism. The irony, as Mossoff points out, is that this position is being taken by the likes of you in the name of supposed private property rights of libertarianism. Apparently I am not alone in seeing a contradiction here.

The principled libertarian rejection of IP is completely unlibertarian and does not rely on labor-ownership as a basis of the homesteading principle.

I’m having a little trouble following your construction here, but I gather you are saying that the rejection of IP ownership rights based on labor-ownership is libertarian because of the homesteading principle?

If homesteading is the only way you allow property rights to be secured, then who homesteads the original manuscript?

If that property is homesteaded by the author, then doesn’t he have a property right in it?

If he has a property right in it, then isn’t he entitled, under libertarian property theory, to make separate transfers of the various economic rights that ownership implies?

If this can be done by contract, what is the reason that you deny that it can be done by operation of law? Aren’t we dealing with a same set of rights here?

If IP is not “real” property, how is it that you can agree that IP rights can be created by contract? Doesn’t a contract presuppose ownership, and doesn’t ownership presuppose property rights?

Your reliance on contracts as an “out” for your contradictions in the treatment of property rights simply ignores the externality issues raised by Mises and elaborated by Coase.
Have you ever addressed this issue? I admit I may have missed it in your extensive writings.

Again, I appreciate you pointing to this resource. I found it interesting and useful.

Stephan Kinsella April 20, 2011 at 7:33 pm

Yes, you are right. I missed that the first time around. He said “Locke recognized IP as property”.

Yes, I know I am right. You are mistaken, and confused, as usual.

I don’t want to get into a food fight with you about what Locke said or didn’t say about the relationship between IP and property.

hahah, NOW you don’t.

It is sufficient apparently, to acknowledge that you and Mossoff agree that a (physical) labor theory of property is not sufficient to support the fundamental principle that IP is in fact a natural property right.

what is the difference between physical and mental labor? this is all a smokescreen. you are all very confused.

I was focusing on the main thrust of his lecture,

not good enough, apparently.

that the treatment of IP from the founding and then through later court cases, and including contemporary libertarian objections to IP (in which context he mentions you by name) were/are plagued by a misunderstanding, according to Mossoff, about the nature of man and the fundamental nature of intellectual labor and values.

complete nonsense. you are saying nothing.

I find this entire subject of natural rights moot.

who cares?

… I find it interesting that your theory of property, which rests on the concept of scarcity, is also at the foundation of Bentham’s utilitarianism, which is a foundation for Marxism.

It is not. You are distorting, daft, or cannot read.

Peter Surda April 21, 2011 at 1:38 am

Stephan,

what is the difference between physical and mental labor?

Mental labour contains mentallium particles and these cause the creators to go mental when someone copies their work.

Wildberry April 20, 2011 at 8:34 pm

@Stephan Kinsella April 20, 2011 at 7:33 pm

Very responsive, as usual.

Andras April 21, 2011 at 5:47 am

He will run again and… write another one on the horrors of IP.

Stephan Kinsella April 21, 2011 at 6:53 am

? run? me? I answered him in detail. He is the one running.

Wildberry April 22, 2011 at 9:14 am

As I was saying…

If homesteading is the only way you allow property rights to be secured, then who homesteads the original manuscript?

If that property is homesteaded by the author, then doesn’t he have a property right in it?

If he has a property right in it, then isn’t he entitled, under libertarian property theory, to make separate transfers of the various economic rights that ownership implies?

If this can be done by contract, what is the reason that you deny that it can be done by operation of law? Aren’t we dealing with a same set of rights here?

If IP is not “real” property, how is it that you can agree that IP rights can be created by contract? Doesn’t a contract presuppose ownership, and doesn’t ownership presuppose property rights?

Your reliance on contracts as an “out” for your contradictions in the treatment of property rights simply ignores the externality issues raised by Mises and elaborated by Coase.

Have you ever addressed this issue? I admit I may have missed it in your extensive writings.

Peter Surda April 22, 2011 at 11:26 am

Wildberry,

If homesteading is the only way you allow property rights to be secured, then who homesteads the original manuscript?

The ownership of manuscript follows from the ownership of the paper and ink, rather than from the act of writing the novel or copying it. Therefore, in the typical case (using their own paper and ink and absent a contractual relationship), the author owns the original manuscript and the copier owns the copy.

The rest of your post is a confused amalgamation of ad hoc claims that have no relation to arguments your opponents on this site are making.

Peter Surda April 22, 2011 at 12:56 am

I find it hypocritical of you (if you’re the same Andras I debated in the past) to mention running away. I have yet to find an IP proponent, including you, that does not run away from a debate and/or provides a coherent explanation of their position.

As Stephan accurately observes in AIM, there are two main approaches in pro-IP arguments. The first one is based on natural rights, however the way IP proponents present it, it’s always self contradictory. The other ones, to which you appear to belong, claim that IP has beneficial effects (i.e. utilitarian approach). The problem with these claims is they are never accompanied by a definition of IP or a method of evaluating the said benefits, or they outright ignore that IP also has some detrimental effects.

Referring to this, I also find it hypocritical when you on one hand present some beneficial situation as an argument for IP, yet when Stephan or Jeffrey present another detrimental situation, you dismiss it by a sleight of a hand. You can’t even show a consistent methodology, yet alone arguments.

All in all, it’s just a big bluff. How a scientist subscribe to this I am at a loss. If you’re so convinced that you’re right, then provide scientific support for your position.

Wildberry April 22, 2011 at 11:48 am

@Peter Surda April 22, 2011 at 11:26 am

The ownership of manuscript follows from the ownership of the paper and ink, rather than from the act of writing the novel or copying it. Therefore, in the typical case (using their own paper and ink and absent a contractual relationship), the author owns the original manuscript and the copier owns the copy.

Regardless of HOW you justify ownership, the manuscript is owned by the author.

Therefore, the exact same conditions of copyrights can be created by contract between the parties to the contract. You could specify the meaning of “copying”, you could circumscribe the production of derivative works, and you could define a fair use doctrine.

In other words, in such a contract the owner can transfer any combinations of rights bundled in his ownership rights of the manuscript, and limit use in any way that is agreed to by both parties. The author could accomplish this by simply copying and pasting the text of the statutes into the contract and getting the acquiring party to sign, isn’t that correct? All of this could be made a condition of disclosure, if the other party agreed, right?

It would only be binding on the parties to the contract, yes, but it would be binding against breach of the conditions by the parties. Do you disagree?

If you don’t understand any other part of my post, you can limit yourself to this part.

Peter Surda April 23, 2011 at 5:39 am

Wildberry,

Therefore, the exact same conditions of copyrights can be created by contract between the parties to the contract.

There is no therefore. You can put any condition whatsoever into a contract. It does not require ownership. Other than that, it is correct, you can replicate the behaviour of IP in a contract, for the parties to the contract.

You could specify the meaning of “copying”, you could circumscribe the production of derivative works, and you could define a fair use doctrine.

Again, this is all correct.

In other words, in such a contract the owner can transfer any combinations of rights bundled in his ownership rights of the manuscript, and limit use in any way that is agreed to by both parties.

To call this “transfer” is misleading, because the ability to put conditions into a contract does not require ownership of anything.

So, we have now concluded that IP is not a contract (a contract can mimick IP, but that does not follow from the ownership of media apart from the human bodies themselves). Next, we need to show that IP is not trespass either.

While it is true that some types of copying require the copier to physically alter the source (and therefore, if the owner of the source disagrees, constitute trespass), it is also possible to copy something without altering it, for example, by passively intercepting radiation or waves reflected by the object (otherwise known as hearing and seeing), or by using a copy, rather than the original, as a source (for example, if a burglar manages to break into Schulman’s house and read his novel and then recite it to me afterwards). Copies created this way, and also copies made out of these, are not trespassory and their use, including for the manufacture of other copies, do not violate the author’s property rights.

In order for IP to make sense, you would need to redefine trespass as some sort of causal relationship that does not require physical interaction. Which, when phrased this way, many IP proponents find absurd (Stranger, for example, calls it “nonsense”, yet he does not recognise that by saying that he’s refuting himself). Of course, it still does not fix the problem of self-contradiction, so a lot of other IP proponents’ arguments are still off the table.

Wildberry April 23, 2011 at 11:57 am

@Peter Surda April 23, 2011 at 5:39 am

You say two interesting and comprehensible things:

You can put any condition whatsoever into a contract. It does not require ownership.

And:

To call this “transfer” is misleading, because the ability to put conditions into a contract does not require ownership of anything.

A contract is a mutual agreement to perform some act (or refrain from acting) for consideration.

On the facts we are discussing, the agreement is for author A to transfer or convey the manuscript (or a copy of it) for consideration by B, and B in exchange agrees to make some payment, and refrain from doing prohibited acts as specified in the contract.
Both parties are bound to perform according to the agreement, which may include some specified consequences for breach.

A contract presupposes the ownership of those things that are the subject of the contract, in this case, a manuscript (or copy) and money.

Please kindly explain how the subject of the contract between A and B can be for something that is not owned by either A or B.

Peter Surda April 24, 2011 at 6:58 am

Wildberry,

On the facts we are discussing, the agreement is for author A to transfer or convey the manuscript (or a copy of it) for consideration by B, and B in exchange agrees to make some payment, and refrain from doing prohibited acts as specified in the contract.

You are mixing together two separate arrangements (or contracts). The first one is the transfer of the manuscript or copy for remuneration. This can only be done by someone who posesses the said manuscript (or copy), and is only legal if he is the owner of the said object.

The second one is an arrangement to refrain from a certain action (copying the manuscript/copy). There is no requirement for possession or ownership of the manuscript (or copy) to enter into such contract. Anyone can do it, IP or no IP. Let us take as an example Alongside Night by Schulman. Although I don’t have a copy, nor have I read it or know what it is about, I can still enter into a contract with you, and we can agree that if you copy it without my permission, you owe me a dollar. This contract is possible and valid regardless of IP.

This already refutes your argument that such contracts are a transfer of economic rights, or have to do with rights in the manuscript/copy at all. But I’ll go even further and I’ll demonstrate that there does not even have to be a causal relationship between the manuscript/copy and the contract. For the contract described above to be valid, none of the following are necessary:
– Schulman having written Alongside Night
– Schulman claiming to have written Alongside Night
– anyone having written Alongside Night
– me thinking that someone wrote Alongside Night
– me thinking that it’s possible that someone wrote Alongside Night.

Let’s take a book called “Across Day” by Schulman. I may quite well know that there is no such book, yet it is still perfectly valid for me to enter into a contract where you promise to refrain from copying it. As for a sensibility of such a contract, obviously from the very narrow point of view, it’s a really stupid one (for me). However, I might have motives other than the contract itself. For example, I might laugh at confusing people, or find it strategically advantageous for them to think I’m stupid. Or I just might be a speculator and think that if enough people know about me making such contract(s), they will alter their behaviour and cause a change of market prices of some goods which I bought options for prior to the contract.

It might sound far fetched, but I am performing a reductio ad absurdum. It utterly demolishes your arguments and your “economic rights” nonsense. As a sidenote, it also demolishes Schulman’s “logorights”, because I clearly showed that a thing that, according to his own theory, does not exist, has a logos nevertheless.

Stephan Kinsella April 24, 2011 at 8:15 am

Surda is just amazing here. Fantastic application of Rothbardian contract ideas to this issue.

Peter Surda April 24, 2011 at 11:27 am

Thanks Stephan, this would not be possible without a fantastic teacher, the works published by the Mises Institute, and last but not least, my opponents, however confused they may be.

Wildberry April 24, 2011 at 1:19 pm

@Peter Surda April 24, 2011 at 6:58 am

With such high praise from the master, I feel I should be intimidated by your lengthy post before I read it. Let me humbly forge ahead…

You are mixing together two separate arrangements (or contracts). The first one is the transfer of the manuscript or copy for remuneration. This can only be done by someone who posesses the said manuscript (or copy), and is only legal if he is the owner of the said object.

Well, a single contract can say more than one thing, right? So you agree on the first point, that transfer of the manuscript for money presupposes ownership of those two things. Good.

The second one is an arrangement to refrain from a certain action (copying the manuscript/copy). There is no requirement for possession or ownership of the manuscript (or copy) to enter into such contract.

Of course not, but, because A already owns the manuscript, he can place any conditions he wishes on B for A’s promise to disclose it to B for the money B pays, assuming B agrees.

And because B owns his body and free will, he can make a promise to do, or refrain from doing as he chooses. If he did not own himself, he could not make such a promise.

So far, everyone owns what they are trading. I guess I could stop here, but let’s see what else you are offering…

This already refutes your argument that such contracts are a transfer of economic rights, or have to do with rights in the manuscript/copy at all.

My argument is that contracts presuppose ownership. Have you refuted that?

But I’ll go even further and I’ll demonstrate that there does not even have to be a causal relationship between the manuscript/copy and the contract. For the contract described above to be valid, none of the following are necessary:

When you find yourself in a hole, stop digging. What you say here is irrelevant. See above.

It utterly demolishes your arguments and your “economic rights” nonsense.

As usual, it is difficult to understand what you are arguing against here.

As Kinsella himself points out, the sale of mere hope is valid as the subject of a contract, provided the object of that hope comes into existence.

You can only make such a contract with someone who owns the ability to bring it about. So, to use his example, I can buy whatever catch you obtain when you haul your net. I can only make such a contract with someone who owns the means to deliver that catch.

So as I have said, which stands untouched by your creative writing, a contract presupposes ownership.

As a sidenote, it also demolishes Schulman’s “logorights”, because I clearly showed that a thing that, according to his own theory, does not exist, has a logos nevertheless.

As a side note, nonsense built upon nonsense is still nonsense.

Stephan Kinsella April 24, 2011 at 3:01 pm

“Wildberry”:

So you agree on the first point, that transfer of the manuscript for money presupposes ownership of those two things. Good.

Except you are equivocating on what “the manuscript” means. we woudl mean by it a scarce object impatterned a certain way. You are referring to a bundle of things, one of which is “the pattern.”

And because B owns his body and free will

You don’t own free will. What does this even mean?

So far, everyone owns what they are trading. I guess I could stop here, but let’s see what else you are offering…

This is confused. This is not what contracts are about. You can “trade” things but the things traded include conditional transfers of title to owned things; but the conditions that trigger these transfers are not owned.

My argument is that contracts presuppose ownership. Have you refuted that?

of the thing title to which is transferred. If I give you $100 of my future money IF it rains, then neither of us owns the rain, the condition, but yes, I have to own the $100 to transfer it to you.

As Kinsella himself points out, the sale of mere hope is valid as the subject of a contract, provided the object of that hope comes into existence.

that is not what I say at all. The sale is valid, whether the object comes into existence or not. If we contract now regarding a future event we both realize its existence is inherently uncertain.

Peter Surda April 24, 2011 at 9:49 pm

Wildberry,

Well, a single contract can say more than one thing, right? So you agree on the first point, that transfer of the manuscript for money presupposes ownership of those two things. Good.

A single sheet of paper, and a single “yes” can create more than one contract. However, from the point of view of legal analysis, it is crucial to comprehend what exactly the contracts are.

Of course not, but, because A already owns the manuscript, he can place any conditions he wishes on B for A’s promise to disclose it to B for the money B pays, assuming B agrees.

There is no “because”. Please stop making stuff up. The latter is not a consequence of the former, and sometimes there is not even a causal relationship of any kind between them. That was the whole point of my argument and it looks like you either missed it or are ignoring int. Confront it.

And because B owns his body and free will, he can make a promise to do, or refrain from doing as he chooses. If he did not own himself, he could not make such a promise.

Yes, this is correct. But the condition of non-copying does not require that either A or B possess or own the manuscript, so you cannot use the words “because”, “therefore” and “transfer” when referring to them. Confront it.

So far, everyone owns what they are trading. I guess I could stop here, but let’s see what else you are offering…

So far, you have committed a non-sequitur and ignore the whole point of my argument.

My argument is that contracts presuppose ownership.

No. Your argument is that if you put a noun into a contract, it requires that one of the parties own whatever the noun is referring to. It’s a rhetorical trick.

Have you refuted that?

Yes, I did. I showed that there is no need to own whatever arbitrary nouns in contract refer to, or even for the referred object to exist.

When you find yourself in a hole, stop digging. What you say here is irrelevant. See above.

It is irrelevant in the narrower sense, in that your argument is already refuted. But in the broader sense, it explains a more fundamental error you’re making. You’re putting together two unrelated things.

As usual, it is difficult to understand what you are arguing against here.
I am arguing against the confusion and logical fallacies you are producing. Showing that a noun occurs in a contract does not require any sort of property rights in whatever the noun refers to, or even its existence. Stop making stuff up and confront the errors you produce.

You can only make such a contract with someone who owns the ability to bring it about.

So, anyone can make a request that you do not copy Schulman’s book, and anyone can agree to not copying it, if they wish so. The contract is, evidently about Schulman’s book, yet there is a complete absence of rights or possession of it with respect to the contract. The book is not the subject of the contract. The potential copier is. Putting a noun in a contract, even though it might be critical for defining the scope of the contract, does not mean whatever the noun refers to is the subject of the contract.

You made up a condition and now that its relevance is refuted, you’re doing your usual smoke and mirrors.

So, to use his example, I can buy whatever catch you obtain when you haul your net. I can only make such a contract with someone who owns the means to deliver that catch.

Stop using confusing language. Putting a noun into a contract does not require the ownership of whatever the noun refers to.

Admit it Wildberry, you’re just stalling now. Your arguments have been shredded and I’m not backing down, I’m going to repeat the refutations. The next step in your approach, if memory serves right, is either an appeal to emotions or running away.

Wildberry April 24, 2011 at 11:46 pm

@Stephan Kinsella April 24, 2011 at 3:01 pm

Hello Mr. Kinsella. Happy Easter.

Except you are equivocating on what “the manuscript” means. we woudl mean by it a scarce object impatterned a certain way. You are referring to a bundle of things, one of which is “the pattern.”

Well, I don’t see that I am. I am calling it a manuscript, and it is what it is. If I own it and you want me to disclose it, then I believe I have the right to offer that disclosure under the terms I want and to which you agree. What else is needed?

You don’t own free will. What does this even mean?

I thought one of the key holdings of the Rothbard Title Transfer Theory was that human will is inalienable.

For example see here: http://mises.org/rothbard/ethics/nineteen.asp
Let us take a seemingly more difficult case. Suppose that a celebrated movie actor agrees to appear at a certain theater at a certain date. For whatever reason, he fails to appear. Should he be forced to appear at that or at some future date? Certainly not, for that would be compulsory slavery. Should he be forced, at least, to recompense the theater owners for the publicity and other expenses incurred by the theater owners in anticipation of his appearance? No again, for his agreement was a mere promise concerning his inalienable will, which he has the right to change at any time. Put another way, since the movie actor has not yet received any of the theater owners’ property, he has committed no theft against the owners (or against anyone else), and therefore he cannot be forced to pay damages. The fact that the theater owners may have made considerable plans and investments on the expectation that the actor would keep the agreement may be unfortunate for the owners, but that is their proper risk. The theater owners should not expect the actor to be forced to pay for their lack of foresight and poor entrepreneurship. The owners pay the penalty for placing too much confidence in the actor. It may be considered more moral to keep promises than to break them, but any coercive enforcement of such a moral code, since it goes beyond the prohibition of theft or assault, is itself an invasion of the property rights of the movie actor and therefore impermissible in the libertarian society.

I presumed you knew what he was talking about. Would you like to explain?

This is confused. This is not what contracts are about. You can “trade” things but the things traded include conditional transfers of title to owned things; but the conditions that trigger these transfers are not owned.

I am not arguing that the conditions are owned. That is completely irrelevant. What I am saying is that the subject matter of contracts presupposes the ownership of that subject matter.

In the facts we are discussing a manuscript (or copy) is exchanged for money, under certain conditions of use. Under those conditions, a given price is offered. Under different conditions, the price would be calculated differently.

In any case, no contract can be formed between parties who do not own or control the subject matter of the contract. Do you have an objection to that representation?

If I give you $100 of my future money IF it rains, then neither of us owns the rain, the condition, but yes, I have to own the $100 to transfer it to you.

We agree then, the subject matter of the contract, $100 must be owned before it can be transferred under contract. However, you raise the example of a wagering contract, which is beyond the scope of our discussion.

In a typical contract, both parties offer a promise for a promise, with sufficient consideration. In a contract for the exchange of goods, the goods themselves are the basis for the bargain. This exchange may be conditioned in any way that is legal (i.e. non-voidable) and mutually agreeable. Do you disagree?

that is not what I say at all. The sale is valid, whether the object comes into existence or not. If we contract now regarding a future event we both realize its existence is inherently uncertain.

Not at all? A contract where the subject does not come into existence, or where the means of doing so are illegal, or where it is a violation of public policy, i.e. a wagering contract, is a hair-splitting issue that is not relevant to this discussion. Wagering contracts generally are voidable. They are distinguished from the “sale of hope” example, where one of the parties has the ability to bring the subject matter of the contract into existence; i.e. the fisherman will haul the net and transfer what it contains, which may be nothing.

In the case we are discussing here, both the manuscript and the consideration paid for it exist. Neither can be the subject of the contact for exchange, with or without conditions, unless they are owned or controlled by the principals. Do you disagree?

Stephan Kinsella April 25, 2011 at 12:49 am

Wildberry:

“Except you are equivocating on what “the manuscript” means. we woudl mean by it a scarce object impatterned a certain way. You are referring to a bundle of things, one of which is “the pattern.”

Well, I don’t see that I am. I am calling it a manuscript, and it is what it is. If I own it and you want me to disclose it, then I believe I have the right to offer that disclosure under the terms I want and to which you agree. What else is needed?

What is “a manuscript” exactly? Esp. nowadays. Is it a “file” transmitted over the Internet?

“You don’t own free will. What does this even mean?”

I thought one of the key holdings of the Rothbard Title Transfer Theory was that human will is inalienable.

That does not mean you “own” free will. Free will is a capacity. Do you own capacities? For example, you have the capacity to lift weights, and to remember. Do you own “memory” and “weight-lifting”? Rothbard never said such a silly thing.

Let us take a seemingly more difficult case. Suppose that a celebrated movie actor agrees to appear at a certain theater at a certain date. For whatever reason, he fails to appear. Should he be forced to appear at that or at some future date? Certainly not, for that would be compulsory slavery. Should he be forced, at least, to recompense the theater owners for the publicity and other expenses incurred by the theater owners in anticipation of his appearance? No again, for his agreement was a mere promise concerning his inalienable will, which he has the right to change at any time.

Depends on what his contract was. If he agreed to pay damages in the event he did not perform, ten he has indeed alienated title to some of his money.

Put another way, since the movie actor has not yet received any of the theater owners’ property, he has committed no theft against the owners (or against anyone else), and therefore he cannot be forced to pay damages.

No. Paying damages has nothing to do with whether he has committed theft or received any property. It is whether or not he contractually transferred some of HIS money based on some condition.

The fact that the theater owners may have made considerable plans and investments on the expectation that the actor would keep the agreement may be unfortunate for the owners, but that is their proper risk.

Unless they made sure that the actor agreed to pay damages in the event he did not show up. Which would be a standard provision of such agreements, and understood, implicit.

The theater owners should not expect the actor to be forced to pay for their lack of foresight and poor entrepreneurship. The owners pay the penalty for placing too much confidence in the actor. It may be considered more moral to keep promises than to break them, but any coercive enforcement of such a moral code, since it goes beyond the prohibition of theft or assault, is itself an invasion of the property rights of the movie actor and therefore impermissible in the libertarian society.

Again, you misapprehend the nature of contracts and Rothbard’s title transfer theory.

the subject matter of contracts presupposes the ownership of that subject matter.

The “subject matter” (in idiosyncratic your sense) is always whatever alienable property is conditionally transferred.

In the facts we are discussing a manuscript (or copy) is exchanged for money, under certain conditions of use.

You have yet to define what a “manuscript” is, but fine.

In the case we are discussing here, both the manuscript and the consideration paid for it exist. Neither can be the subject of the contact for exchange, with or without conditions, unless they are owned or controlled by the principals. Do you disagree?

Your question is incoherent.

Wildberry April 25, 2011 at 12:06 pm

@Stephan Kinsella April 25, 2011 at 12:49 am

What is “a manuscript” exactly? Esp. nowadays. Is it a “file” transmitted over the Internet?

Do you really take issue here? The manuscript in question is an original work of authorship that the author produced with his own private means, and which has not been shared with anyone. For simplicity, let’s assume it is written on paper with ink. That is the point of departure.

You have said that you do not object to the assertion that this work (manuscript) is the property of the author, and as such, he has the right to1)keep it secret, or 2) disclose it, in which case the author no longer has rights to it any more than the recipient. To use your words, the author cannot whine about others using the information. Isn’t this your position?

That does not mean you “own” free will. Free will is a capacity. Do you own capacities? For example, you have the capacity to lift weights, and to remember. Do you own “memory” and “weight-lifting”? Rothbard never said such a silly thing.

No I don’t own “capacity” in general, i.e. “all capacity”, but I do own my own particular capacities because they are derived from my ownership of self. In the absence of slavery or the rights of others, I have free will to act as I please, subject only to the laws of nature, and can therefore exchange my promise to act for valuable consideration.

If he agreed to pay damages in the event he did not perform, ten he has indeed alienated title to some of his money.

Yes, he has alienated his money, but not his will. He can promise a future act, but not his will to act. Will is inalienable.

Put another way, since the movie actor has not yet received any of the theater owners’ property, he has committed no theft against the owners (or against anyone else), and therefore he cannot be forced to pay damages.

No. Paying damages has nothing to do with whether he has committed theft or received any property. It is whether or not he contractually transferred some of HIS money based on some condition.

Paying damages has to do with whether he has breached a valid contract. Rothbard and you take a different tack on this than I and standard contract theories do. I would say that a valid contract is enforceable according to the relevant theories of remedies. Of course, consideration is a requirement for a valid contract, as is legality, so in some ways I suppose both approaches can reach the same outcome, since a promise without consideration is unenforceable.

The fact that the theater owners may have made considerable plans and investments on the expectation that the actor would keep the agreement may be unfortunate for the owners, but that is their proper risk.

Unless they made sure that the actor agreed to pay damages in the event he did not show up. Which would be a standard provision of such agreements, and understood, implicit.

Interestingly, given there is no police or courts in the ancap world you envision, you are left with self-help remedies in the event the actor promises and doesn’t deliver either his services or the damages. The personal costs of enforcement would be considered transactions costs, do you agree?

The theater owners should not expect the actor to be forced to pay for their lack of foresight and poor entrepreneurship. The owners pay the penalty for placing too much confidence in the actor. It may be considered more moral to keep promises than to break them, but any coercive enforcement of such a moral code, since it goes beyond the prohibition of theft or assault, is itself an invasion of the property rights of the movie actor and therefore impermissible in the libertarian society.

Again, you misapprehend the nature of contracts and Rothbard’s title transfer theory.

You do realize you are debating Rothbard here, right? I copied him verbatim and gave you the link. Hmmm. He misapprehends his own theory of contracts?

The “subject matter” (in idiosyncratic your sense) is always whatever alienable property is conditionally transferred.

We agree then. In this case the subject matter is a manuscript and money in exchange, under limitations of use that replicate the rules of copyright. Good.

You have yet to define what a “manuscript” is, but fine.

See above, OK?

In the case we are discussing here, both the manuscript and the consideration paid for it exist. Neither can be the subject of the contact for exchange, with or without conditions, unless they are owned or controlled by the principals. Do you disagree?

Your question is incoherent.

Allow me to attempt to facilitate your comprehension.

First, we are not talking about non-existent things, so we can dispense with any further discussions of that issue, correct?

Second, I am saying that a contract presupposes the ownership of the subject matter.

The subject matter of the contract under discussion is a manuscript and money.

Here, the author owns the manuscript (undisclosed original work of authorship).

The buyer owns the money (which he has agreed to pay and the author has agreed to accept).

They both agree on specific conditions of use of the manuscript.

They reduce this agreement to a written document and both sign it.

The author performs by tendering the manuscript.

The buyer performs by tendering the money and abiding by the terms of use.

Failure to abide by the terms of use is a breach of the agreement, and results in damages liability against the buyer and in favor of the author.

Such breaches of the terms of use may be specified as conditions subsequent, triggering specified damages, or the payment of a performance bond, etc. that have been made part of the contract.

That’s the way it works, do you agree? Do you have any issues with the operation of such a contract?

Stephan Kinsella April 25, 2011 at 2:35 pm

Nymberry:

What is “a manuscript” exactly? Esp. nowadays. Is it a “file” transmitted over the Internet?

Do you really take issue here? The manuscript in question is an original work of authorship that the author produced with his own private means, and which has not been shared with anyone. For simplicity, let’s assume it is written on paper with ink. That is the point of departure.

Just making sure. You guys is slippery.

If he agreed to pay damages in the event he did not perform, ten he has indeed alienated title to some of his money.

Yes, he has alienated his money, but not his will. He can promise a future act, but not his will to act. Will is inalienable.

Untrue. It’s just not alienable by mouthing of words (making a contract). It is alienable by commiting acts of aggression. this is just why it’s permissible to jail a bad guy.

No. Paying damages has nothing to do with whether he has committed theft or received any property. It is whether or not he contractually transferred some of HIS money based on some condition.

Paying damages has to do with whether he has breached a valid contract.

Wrong. Technically speaking it’s not possible to “breach” a contract. This is the mentality of the enforceable-promises view of things. Think of the “damages” as a performance bond. Read up on “efficient breach” theory of contract.

Rothbard and you take a different tack on this than I and standard contract theories do.

Yes, and Evers. Read Evers and Rothbard. I elaborate on this too.

I would say that a valid contract is enforceable according to the relevant theories of remedies.

nonsense.

Of course, consideration is a requirement for a valid contract,

nonsense. this is stupid statism.

as is legality, so in some ways I suppose both approaches can reach the same outcome, since a promise without consideration is unenforceable.

The fact that the theater owners may have made considerable plans and investments on the expectation that the actor would keep the agreement may be unfortunate for the owners, but that is their proper risk.

Unless they made sure that the actor agreed to pay damages in the event he did not show up. Which would be a standard provision of such agreements, and understood, implicit.

Interestingly, given there is no police or courts in the ancap world you envision, you are left with self-help remedies in the event the actor promises and doesn’t deliver either his services or the damages.

this is not true, but what has this to do with anything?

You do realize you are debating Rothbard here, right? I copied him verbatim and gave you the link. Hmmm. He misapprehends his own theory of contracts?

Nonsense. Try to ask a coherent question. Then you will see.

We agree then. In this case the subject matter is a manuscript and money in exchange,

If you mean by “manuscript” a scarce owned object.

under limitations of use that replicate the rules of copyright. Good.

NOt really limitations. Just triggers for the transfer of money payments.

Second, I am saying that a contract presupposes the ownership of the subject matter.

“the” subject matter? sounding crankish already.

They both agree on specific conditions of use of the manuscript.

Not really. They agree that IF X uses it it in certain ways THEN he transfers $Y to the other guy.

Of course, why the hell would I buy a $15 book if it might subject me to millions of dollars in penalties? No thank you. Such onerous penalties would doom these sales. So of course full-use books would emerge, just as even iTunes had to change to DRM free.

Failure to abide by the terms of use is a breach of the agreement, and results in damages liability against the buyer and in favor of the author.

not a breach, just a contemplated action that results in a payment of money damages.

Such breaches of the terms of use may be specified as conditions subsequent, triggering specified damages, or the payment of a performance bond, etc. that have been made part of the contract.

That’s the way it works, do you agree? Do you have any issues with the operation of such a contract?

not sure what you mena. it’s not up to me. but the point is this can’t bind third parties.

Crosbie Fitch April 25, 2011 at 3:07 pm

Liberty (‘will’, whatever) is an inalienable right – full stop. Let alone contract, it isn’t even alienable due to violence. Even in prison, inmates still possess their right to liberty. Remember that by definition, liberty is freedom delimited by the rights of others, e.g. to life. Prison is a contraction of an individual’s freedom until such time as they are rehabilitated and their threat to others’ lives (and privacy, etc.) returns to normal.

Wildberry April 25, 2011 at 6:51 pm

@Stephan Kinsella April 25, 2011 at 2:35 pm

but the point is this can’t bind third parties.

Well, it appears to me that you have finally come kicking and screaming to the point where you and I agree on the following:

1. Whether under existing contract theory, or Rothbard’s TTTC, a contract may be formed between an author and a buyer that incorporates the terms of usage that is the equivalent to copyright terms.

2. Such a contract presupposes the ownership of the subject matter of the contract; an exchange for the manuscript for money.

3. Regardless of whether you apply contracts, torts or TTTC theories, if the condition subsequent occurs (prohibited use), money would flow from the buyer to the author; damages or the payment of a performance bond.

4. It does not bind third parties to those terms.

5. Sales of books as we understand it will likely cease because sales under these conditions are doomed.

Let’s be clear on this last point. Regardless of the “technical solution” employed to compensate the author for the breach (or read “failure to act in the proscribed way” if you prefer) the amount of that payment will be calculated on some basis, and by your estimate would amount to “millions”. Let’s assume that figure.

This payment is an externality that will have to be accounted for in the cost of the book. For example, the price of the book to the buyer would be $15 plus the cost of the performance bond. Because it is a form of insurance, it will be priced as a function of the liability times the actuarial probability that payment will be made. This will likely settle at something close to the liability itself, and so, as you say, sales will be doomed.

And so, as you say:

Of course, why the hell would I buy a $15 book if it might subject me to millions of dollars in penalties? No thank you. Such onerous penalties would doom these sales.

So a long time ago, I said that in the absence of copyright protection, authors would be producing for an external market, and given the choice they would not do it.
Let’s revisit the options you introduced earlier. 1) keep it secret and deny public access 2) disclose it and grant public access.

Both options are subject to the economic problem of externalities, where the cost of production, including these external costs, will be borne by the producer or the consumer, or both. You seem to argue that it is viable for them to be solely the cost to the producer.

I think we have shown that option 1) is nearly impossible unless disclosure is never made. Even if a contracting system could result in maintaining controlled access (secrecy), the transaction cost would be so high that a single buyer and seller are unlikely to reach an accord.

Even if they did, the entire process would have to be repeated for a second buyer and each one that follows. Each would have their own performance bond which for each the cost would approach the potential liability. Books now cost millions instead of $15.

This leave option 2. The author doesn’t care about profit, and abandons his desire to recover costs (capital investment) plus profit, and releases it freely (i.e. ideas are free). He is producing for an external economy, and according to the rule of bankruptcy, leaves the market. Producers do not voluntarily choose to be slaves to external economies.

Under 1) books are produced but not sold, or under 2) books are free, and eventually are not produced.

This brings us to this final comment:

So of course full-use books would emerge, just as even iTunes had to change to DRM free.

Although I agree that the industry in both music and book sales is evolving and adapting to the impacts of new technology, this in no way disturbs the fundamental premise that the musical artists own the products of their own production. This iTunes/DRM story is more about the effectiveness of one strategy over another than about the legitimacy of copyrights. That question is not touched by this story.

In the absence of any copyrights, iTunes is still left only with the problem of how to profit from a song that sells for 99¢. They are not dealing with the problem of the production of songs for external economies. If that 99¢ didn’t find its way in some proportion back upstream to the original producers, then it is unlikely that production based on a profit motive would exist.

You would not insist that a manufacturer of bread would still produce if his loaves were available for free, yet you have no problem reaching this conclusion in regard to IP. How do you explain the difference, in economic terms?

So after all is said and done, I have asked you this question many times now; How do you account for the need for producers to produce for external economies in a non-IP market?

To assert that these externalities will be internalized through entrepreneurial activity does not appear to have a pathway in your vision of a market without IP.

This amounts to an assertion that a free market can develop without a concept of private property. Have you ever addressed this issue in your writing? I have not seen it.

Crosbie Fitch April 25, 2011 at 7:06 pm

Wildberry, you seem to imagine that without copyright, author and readers will stare blankly at each other refusing to do business. Given author can produce writing readers want, and readers can supply money author wants, to conclude that these two parties will refuse to make an agreeable exchange is a grievous failure of imagination (no doubt due to copyright brainwashing).

Try to imagine the possibility of multiple simultaneous contracts. Each reader offers $10. The author offers a sequel. How many readers’ offers would the author consider equitable? 1,000? Whatever the number of readers, the quality/quantity of writing, the money offered/invited, exchanges remain possible. You do not have to cleave to the 18th century model of printing copies and selling copies. It is possible to exchange writing for money DIRECTLY.

Wildberry April 26, 2011 at 10:36 am

@Crosbie Fitch April 25, 2011 at 7:06 pm

Try to imagine the possibility of multiple simultaneous contracts. Each reader offers $10. The author offers a sequel. How many readers’ offers would the author consider equitable? 1,000? Whatever the number of readers, the quality/quantity of writing, the money offered/invited, exchanges remain possible. You do not have to cleave to the 18th century model of printing copies and selling copies. It is possible to exchange writing for money DIRECTLY.

Let me just address the most grievous of your assumptions. We can talk about my brain washing another time.

What you suggest is not difficult to imagine. Now try to apply this fantasy, that everything just works out, to the realities of the market place.

You are a new author. No one has heard of you. You have written a highly technical work that has taken several years to complete. You know, under the non-IP rules, that once you disclose it, you have one shot to make back all that you will make on your investment. If it was so easy to get from there to where you imagine 1,000s of buyers willing to offer real money, sight unseen, for your book seems just a little bit unrealistic.

You can’t sell it to a publisher and let them take care of advertising and publicity, because they only have one shot too, since copyrights don’t exist in your fantasy.

So I suppose you can do what Kinsella and other’s imagine, you can give it away, and accept that this world you imagine, authors must resign themselves to work for external economies. And from there, all you have to do is imagine that this will have absolutely no effect on the decision to write the next book, or for some author somewhere realizing that, unlike other endeavors, in the case of writing, you don’t own what you make.

No rational person is going to spend their time producing for external economies. But of course it is easy to just imagine that not to be the case. It is possible for pigs to fly, but it must not be profitable, one assumes, since the market does not regularly produce flying pigs. Can you imagine a scenario where they are? Good for you.

Crosbie Fitch April 26, 2011 at 11:22 am

It’s an iterative process, going from ‘undiscovered & unloved’ to ‘discovered & commissioned’. Initial portfolio works will be published (given away) as promotional loss leaders, and this then transitions, as the interested audience swells and its commission becomes significant, from loss to profit. Unless of course, no-one’s interested to incentivise further work from the artist.

Remember, there is no choice in this. The monopoly of copyright has ended. When you can no longer sell copies you must sell work instead – to those who want it produced. That is a free market.

You’ve already recognised that without copyright commerce in intellectual work is impossible via the intermediary mechanism of copies. That’s why I’m pointing out that the future involves exchanging the work – not copies of it.

Wildberry April 26, 2011 at 11:48 am

@Crosbie Fitch April 26, 2011 at 11:22 am

That’s why I’m pointing out that the future involves exchanging the work – not copies of it.

What does this mean?

Peter Surda April 27, 2011 at 5:19 am

Wildberry,

The subject matter of the contract under discussion is a manuscript and money.

The subject matter of the contract of sale of the manuscript is the manuscript and money. The subject matter of the contract of prohibition of copying of the manuscript is not the manuscript, but the potential copier. So stop confusing the issue.

They both agree on specific conditions of use of the manuscript.

Even if this was right (it isn’t), still the agreement not to copy a manuscript is not a use of that manuscript. Only in the metaphorical sense, which has no place in a scientific debate. Stop using confusing language and admit your error.

That’s the way it works, do you agree?

No, that’s not the way it works. I refuted it several times already.

To paraphrase a famous saying: an error repeated thousand times becomes a lie.

Peter Surda May 8, 2011 at 4:40 pm

Crosbie,

Wildberry, you seem to imagine that without copyright, author and readers will stare blankly at each other refusing to do business.

Actually, it’s worse. According to Wildberry, author and readers would stare blankly at each other and look for excuses not to deal with each other. Because that is what Wildberry understands, that’s all he ever does: look for excuses.

Wildberry April 27, 2011 at 2:03 pm

@ Peter Surda April 27, 2011 at 5:19 am

The subject matter of the contract of sale of the manuscript is the manuscript and money. The subject matter of the contract of prohibition of copying of the manuscript is not the manuscript, but the potential copier. So stop confusing the issue.

On the subject of creating consusion, this is priceless. Who knows what you are trying to say?

Peter Surda April 28, 2011 at 2:15 am

Wildberry,

On the subject of creating consusion, this is priceless. Who knows what you are trying to say?

That was at least the second reformulation of my argument (i.e. I already made it three times at least in total). First you misrepresent it, then you ignore it and then complain that you don’t understand it. You’re a fraud, Fraudberry. Your pretense of knowledge follows a predictable path. Now that you’ve appealed to emotions, the only step left is to cowardly run away. You’ve exhausted your repertoire. But who knows, maybe you’ll learn some new tricks and humour us.

And now the fourth time: you are presenting two contracts as if it was one. There is no “restricted sale contract” or other made-up-adhocery. There are two contracts:
– the sale contract of the manuscript. Requires possession of the manuscript to be possible, and ownership to be legal. The manuscript is the subject of the contract.
– the contract to avoid copying of the manuscript. Does not require possession or ownership, and might not even require a causal relationship. The manuscript is not the subject of this contract.

So stop making up stuff.

DixieFlatline April 20, 2011 at 8:54 pm

J. Murray April 21, 2011 at 7:49 am

It’s more along the lines of an entertainment factor.

DixieFlatline April 21, 2011 at 9:34 am

I honestly can’t tell if Wildberry has ignored all of the material, and ignores all of the responses (I tried to debate with him last week, to no avail) or he is just out and out trolling.

The reason I wonder if he is trolling, is that someone with such a low capacity to comprehend surely must have to labor 12 hours per day to support a modest lifestyle, and wouldn’t have so much time to be the one man Stephan Kinsella fan club. Then again, he could be on welfare, and the joke is on all of us who pay taxes.

Wildberry April 22, 2011 at 9:16 am

DF,

You made a suugestion which I asked you to explain. Did you?

nate-m April 24, 2011 at 7:21 am

Stephan Kinsella April 24, 2011 at 8:16 am

Damn this is good, Nate-m. You and Surda are on FIE YA.

Peter Surda April 24, 2011 at 10:50 am

You are so right nate-m. Upon reading the Piracy book I reviewed a couple of days ago, I started thinking that maybe compulsory licensing would be a workable solution if abolition was not an option. This would eliminate large chunk of the negative effects of IP with a sweep. It solves the “problem” of “inventors” who can’t come up with a usable business strategy, it satisfies the utilitarians, and even Gene Quinn’s request for openness. The only ones who’d protests are patent trolls (who are not a liked by anyone anyway) and natural rightsers (who are just self-contradictory fanatics and I don’t think much can be done about that).

Up next: the producers of tortellini, pelmeni and wonton sue each other for patent violations.

Stephan Kinsella April 24, 2011 at 11:07 am

Yep; I argue for a compulsory license here http://mises.org/daily/4018 —

Remove Patent Injunctions/Provide Compulsory Royalties

Paying royalties is one thing. This is similar to a tax. It impedes and puts a drag on efficiency. Worse still is the prospect of an injunction, which can simply shut a company down. Quite often this is what a competitor will seek. They do not want damages or money: they want to dominate the market and eliminate competition. Or the threat of injunction is used to basically wring money from an alleged infringer (e.g., the $600 million RIM (BlackBerry) had to pay, even though the patents were under appeal at the PTO, due to the threat of an injunction).

If the purpose of the patent system is to provide some incentive to innovators, then receiving a monetary payment should be sufficient. Patent injunctions should be abolished entirely. The only remedy should be an award of damages (for past infringement) or a compulsory license (ongoing royalties based on future “infringement”).

This would prevent patentees from shutting down competitors. At most, they could impose a small “tax.” Litigation costs, insurance premiums, and the ability of patentees to extract unreasonable royalties from alleged infringers would be radically curtailed. On the other hand, because patentees would still be able to seek reasonable royalties, there would still remain a substantial incentive to file for patents.

The compulsory licensing approach is not new. Some countries impose compulsory licensing on patentees who do not adequately “work” the patent.[33] The United States already provides for compulsory licensing in certain cases, as the US government threatened to do in the Cipro anthrax drug case.[34] Also, in the wake of the recent eBay case, some courts are awarding some form of ongoing royalty of compulsory license instead of an injunction.[35]

Crosbie Fitch April 24, 2011 at 1:38 pm

I suggest rather than a compulsory license/Internet levy from the people to reward all those corporations that so greedily exploited the people’s liberty for the last three centuries, that instead THEY are fined to compensate the people for the liberty and opportunities they’ve lost. Abolishing copyright and patent is the LEAST to be done. Why should the people pay AGAIN for the restoration of their liberty?

A compulsory license is a mulct – for liberty that is the people’s by nature, by right.

I’m disappointed any libertarian would suggest paying a ransom as a ‘solution’. In any case, as with a monopoly, it is still thermodynamically inefficient – collecting money from all in order to disburse to all (minus 50% admin, and 49% to legacy privilege holders). I suppose at least the injustice and corruption is a little more economically obvious.

Peter Surda May 8, 2011 at 4:50 pm

Crosbie,

it’s a utilitarian argument. Like would you prefer living in US or North Korea.

Wildberry April 24, 2011 at 3:22 pm

@nate-m April 24, 2011 at 7:21 am

In light of your star pupil status, I can only sheepishly offer my humble response.

Right now there are lawyers and groups suing successful capitalists for products that the plaintiffs had no hand in creating and had produce no competitive product. There are millionaires right now that did nothing but sue other people for being successful.

I am wondering how you think any of these millionaires found themselves in a position of being able to sue someone else for something? Doesn’t this presuppose they must have owned something in the first place? How can you sue someone if you have not right to do so in the first place? Aren’t you assuming quite a few conclusions here?

IP laws are a multi billion dollar drain on our economy. This is stifling competition and favoring companies who invest in lawyers and bureaucrats over ones that invest in engineers and products.

Although it is obviously true that there are costs associated with the enforcement of rights, I have no idea how you can conclude that these costs outweigh the benefits of having these rights. I don’t have the data to support that argument either way, therefore, how you can be so sure of your conclusions here? Do you have some data, or you just “know its true”?

Laws related to maintaining copyright are becoming increasingly draconian and punitive. People are being sued tens of thousands of dollars for distributing songs which can be listened to for free on any radio or downloaded for pennies from websites legally.

Aren’t you discounting the capital investment that necessarily preceded their availability on these websites? If you included these costs in your estimates, wouldn’t the outcome you claim be effected? And more importantly, if you don’t, then aren’t you consuming in a market that is external to the original producer? How do you account for that, economically?

Individuals are being threatened, harassed. DRM laws have ruined companies, caused people to be sent to jail for sharing nothing but information, and are a affront to property rights and personal liberty.

This may all be true, but it all begs the question as to whose rights are being violated.

In a world were we now have the ability to freely share all of human knowledge and the collected works of all humans from all of recorded history with all people alive today… for pennies per person… we have governments propping up fascist laws to protect the profitability of a handful of politically connected corporations running obsolete business models that originated when we required people to actually print and physically transport media.

All of this presupposes the existence of the information you want to possess, and says nothing about the process that necessarily preceded its existence. You are implying that all of the knowledge of the world, which you feel so freely entitled to, was simply laying around on the ground waiting for you to use it. While this may be true to some degree, it certainly is not entirely true. I don’t believe even Kinsella’s paper, Against IP was laying around before he capitalized its production.

They are the buggy whip manufacturers of our time and their profitability is now enforced by law.

Isn’t this true for all private production? Isn’t my profitability as a hotel owner enforced by the law of exclusive use and possession of private property? Are you proposing that all private property laws be abolished for the reasons you give here?

Houses are raiding, property is seized, old women and families are terrorized by lawyers and law enforcement for their children breaking laws that harmed no person. The government is engaging in secret international negotiations to force these evils on third world nations and undermine constitutional protections. Obama and friends are seeking ways of leveraging copyright enforcement schemes for wiretapping and monitoring of individuals.

Old women and crippled children are being terrorized by lawyers! That is awful! There ought to be a law!
Injustice is injustice. I agree. Because something specifically is unjust does not mean that everything is therefore generally and absolutely unjust. When people act unjustly, they should be stopped. We need to distinguish when that is the case. Personal outrage and inflammatory rhetoric is not enough.

Companies are no longer able to produce hardware and software products freely. They need to pay patent fees, support design decisions that undermine the quality of their products, increase prices, and are forced to undermine the ownership rights of their customers. Corporations are using patents as shields to stifle innovation and competition.

Yes, and people who merely want a little exercise are being excluded from other’s private property! This is insane!

The loss of individual liberty and economic activity directly and indirectly to IP and IP enforcement is staggering. It’s large, it’s ongoing, and it is increasing.

I suppose it is redundant of me to suggest that the question-begging here is monumental. As you probably know, although it is an inconvenient truth in the context of IP debates, rights to act are limited by the rights of others, so all the hyperbole in support of unlimited rights for one person is simply offset by the loss of rights in another. Of course, it would be inconvenient to consider that issue. That is complicated. Ideology is simple.

FYI, it is an issue of the boundaries of rights and the existence of economic externalities. Unless you are willing to deal with that issue, all the horrors you can mention are simply one side of the same coin. Coins have two sides.

Stephan Kinsella April 24, 2011 at 2:30 pm

Crosbie Fitch April 25, 2011 at 3:19 pm

A slave might say that having liberty in exchange for diverting 99% of their future income to their master (a transferable title) was an improvement to captivity.

Beware of suggesting ‘improvements’ that the ©artels might just take you up on.

Thomas Cowan December 5, 2011 at 7:41 pm

Peter Surda December 6, 2011 at 4:56 am

Ah, yet another “ethics beats logic” argument.