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Source link: http://archive.mises.org/10529/david-koepsell-another-austrian-influenced-ip-opponent/

David Koepsell: Another Austrian-Influenced IP Opponent

August 26, 2009 by

ontology-cyberspace-koepsell-2000An interesting (and amusing) post on Leiter Reports, How Not to Respond to a Bad Book Review, led me to the work of David Koepsell, author of The Ontology of Cyberspace: Philosophy, Law, and the Future of Intellectual Property (Open Court, 2000) and Who Owns You? The Corporate Gold Rush to Patent Your Genes. (UK: Wiley-Blackwell, 2009), and of the blog Who Owns You?, which discusses gene patents and IP law.

The Leiter Reports blog remarked on a debate between Randy Mayes and David Koepsell on human gene patents at the Institute for Ethics & Emerging Technologies site (Leiter Reports unfairly implied Koepsell had made matters worse by the way he replied to a very critical book review–I disagree with this assessment, as will be evident from my comments linked below). I ended up writing a few responses, including one posted in Are Libertarians For Intellectual Property?: Comment on David Koepsell’s “Why I Believe Gene Patenting is Wrong”; and see also Comment on Koepsell’s “A methodical response to Chris Holman’s ‘review’”.

In correspondence with him I learned Koeppsel says his theoretical background is informed by Austrians, and he has studied Menger, Mises, and Reinach and studied under Barry Smith. In his book The Ontology of Cyberspace he undermines the classifications between works of authorship and other machines, using Reinach. I’ve just ordered it.

{ 98 comments }

Peter Surda August 28, 2009 at 2:46 am

@Silas Barta:
> Okay, so if being the first to transmit EM waves
> through a given volume (by which I assume you
> meant radio waves) gains you the right to transmit
> radio waves through that volume, why not other
> patterns of light, which are also EM waves?
Sigh. There is no theoretical difference. Only that from practical point of view, there is little difference between land ownership and visible spectrum ownership. Empirical data indicates that there is no money to be made out of it. That is why there are no large scale efforts or markets on visible spectrum rights. The issue is completely practical and has nothing to do with not recognising ownership. I have absolutely no problem with agreeing that you have all the rights (use/trade/exclude) to any visible EM radiation in your own apartment. But what does this have to IP? Nothing. In your apartment, you can forbid other people to do things anyway, regardless of whether you recognise EM or IP.

Don’t you see? You have no argument at all. IP stretches over the whole universe, regardless of homesteading, transmission, manufacturing, information, consumption and trade. Classical property rights, and also EM rights (should one decide to recognise them) are physically limited in scope and the scope can be determined by these actions.

This reminded me of some arguments I read in The Privatization of Roads and Highways by Walter Block. He wrote that land ownership does not stretch as a cone to the middle of the earth and to the sky. If it would, that would be much more like IP. It could allow you to claim ownership of other celestial bodies, for example, that are passing overhead (i.e. ad infinitum). His conclusion is that it only stretches as far as you can reasonably claim to have homesteaded it. This was not supposed to be an analogy, just something to think about. You can’t claim ownership of what other people do at their own premises, unless of course, they have a contractual obligation.

newson August 28, 2009 at 4:19 am

to russ:
my remarks are premised on a laissez-faire regime. totalitarian regimes aren’t going to have to worry about niceties like rights.

arguments over physical property are more easily resolved through clear fencing and enclosure, hence my skepticism over e.m. homesteading.

Silas Barta August 28, 2009 at 9:55 am

@Russ: Thanks for your latest thoughtful reply. It seems that our views are closer than they originally seemed, and your response to newson shows a great understanding of the issues involved.

This is where I think our disagreement is:

However, IP and EMP have different natures. EMP is justified by its utility. That utility requires that the right to transmit on a given frequency range, in a given geographic area, be *exclusive*. Otherwise, no utility. IP is different. The utility of a piece of software does not *require* that the right to instantiate that pattern be exclusive.

I believe that the utility of a piece of software *can* require that the right to instantiate it be exclusive, for the simple reason that some welfare-enhancing (in the Pareto-optimal sense) software simply would not exist if not for IP. Also, lack of exclusivity would run into the calculation problem: how many physical goods (land, labor, capital) are worth committing to produce software with a certain kind of functionality. Without property-based pricing, we lose utility in the misallocation of resources.

So you could just as well say that it would be absurd to deny ourselves the utility of these new ideas. (And of course it’s not necessary that *all* new ideas have exclusivity rights attach to them; just as with physical property rights, if people wish, they can waive such rights, just like an EMP owner could allow people to use his frequency as a “firing range” for those who felt like blasting pointless waves.)

Russ August 28, 2009 at 10:31 am

Sasha Radeta wrote:

“trespass by its definition is use of one’s property without the owner’s consent or authorization.”

Yes, of course. My question was, if we consider only real property and not “intellectual property”, how am I trespassing on, say, Microsoft’s real property by copying the latest version of Visual Studio from a friend who gives me permission? This is only valid if you assume that the CD is not my friend’s real property, which he can do with as he please, but is the property of Microsoft, who are leasing it to my friend along with certain very limited usage rights. This would require a contract; then you get into the issue of whether EULAs are valid contracts.

Russ August 28, 2009 at 10:39 am

newson wrote:

“my remarks are premised on a laissez-faire regime.”

Ah, but what if there is dissent about what constitutes a laissez faire regime? As you can see from the posts here, nobody is going to agree on everything.

“arguments over physical property are more easily resolved through clear fencing and enclosure”

Frost said “good fences make good neighbors”, but what he really meant is that good fences keep honest neighbors honest. There are those who are not honest, and will not be made honest by fences. Not only clear delimitation of rights, but enforcement of rights is necessary. “Why can’t we all just get along” is not a valid political philosophy.

Silas Barta August 28, 2009 at 10:42 am

“Why can’t we all just get along” is not a valid political philosophy.

Totally quoteworthy!

Michael A. Clem August 28, 2009 at 10:58 am

Radio receivers are non-directional in nature.
If the FCC didn’t grant licenses to the EM spectrum, then how would radio stations have resolved their conflicts? How did they resolve their differences before the FCC was interposed on the radio industry? The industry didn’t ask for the government’s help in resolving their differences–they went to court if they couldn’t settle things peacefully among themselves.
While Sasha’s easement idea has merit, it still implies that EM frequencies are property. But I’m beginning to come around to the idea that the EM spectrum cannot be “owned”.
If the FCC hadn’t interfered, I suspect that receivers would have become more sophisticated than they are now, and become directional in nature. Consumers would have to know one more piece of information to pick up transmissions: frequency and direction, but it would go a long way towards resolving the disruption problem, and would allow multiple transmissions over the same frequency within the same geographical area (within limits).
Yes, it’s a technical solution, but why resort to complicated rules and laws if you don’t need to?

Russ August 28, 2009 at 11:12 am

Silas,

Excellent! Now we’re really getting somewhere!

(I knew somehow that my argument would be more productive than continuing with the “red shirt” argument. I honestly think you should consider discarding it; not necessarily because it’s wrong, although I think it is for technical reasons, but because it’s not conducive to furthering your cause. May I ask; How many pro-EMP, anti-IP people have you converted by means of the “red shirt” argument? I’m guessing not many.)

Anyhoo…

I can see your point about Pareto-optimality, although I am not sure I agree with it. I also can see the greater point that, if one is amenable to Pareto-optimality arguments or other such utilitarian arguments with respect to EMP, then one cannot be *in principle* opposed to justifying IP on utilitarian grounds without being inconsistent.

I’m not opposed to justifying IP on utilitarian grounds, I’m just not sure any good grounds exist. I could go on about open source, etc., but I imagine you’ve heard these arguments before, so I’ll forego this discussion unless you wish to go there.

It just occurred to me that this discussion ties neatly into my “What Libertarianism Is” debate. If one justifies EMP on utilitarian grounds, then not only can one not be in principle opposed to justifying IP on utilitarian grounds without being inconsistent, but one also cannot be in principle opposed to justifying *minarchism* on utilitarian grounds! Thank you! You’ve just given me a fairly rigorous way of claiming that SK is being inconsistent unless he either drops support for EMP (thus resigning himself to permanent crankdom *grin*), or declares himself not opposed to minarchism in principle! Mwahaha!!!

Silas Barta August 28, 2009 at 11:21 am

@Russ: Great! I’m glad we came to an understanding, even if we still have disagreements.

Russ August 28, 2009 at 11:24 am

Michael A. Clem wrote:

“The industry didn’t ask for the government’s help in resolving their differences–they went to court if they couldn’t settle things peacefully among themselves.”

If they went to court, wasn’t that asking for the government’s help in resolving their differences? I see EMP as being similar to the recording of boundaries for the purposes of resolving land border disputes. They would help the courts to resolve EMP disputes.

“Yes, it’s a technical solution, but why resort to complicated rules and laws if you don’t need to?”

I agree, in principle. If a technical solution could be devised, there would be no need for a legal one.

Sasha Radeta August 28, 2009 at 12:48 pm

I owe a response to Russ’s question:

“…if we consider only real property and not “intellectual property”, how am I trespassing on, say, Microsoft’s real property by copying the latest version of Visual Studio from a friend who gives me permission?

As both of us already asserted: trespass is use of property without its owner’s consent. In your example, Microsoft (RIGHTFUL OWNER) never gave you its permission to use their Visual Studio in such manner. So by the very definition – you are trespassing.

Your friend purchased only limited personal use — and in absence of contractual restrictions, he can only lend you this limited use. Your friend does not possess other (much more expensive rights), so he cannot give you “permission” for that kind of use.

======

Michael A. Clem,

My easement argument does not imply that EM frequencies are property. As I carefully and repeatedly explained, people have easement rights to obtain solar right, without ever implying that light is property. EM frequency should not even be a controversy for those who understand what makes property rights substantive and why common law holds easement rights so sacred.

Best regards.

Russ August 28, 2009 at 1:01 pm

Sasha Radeta wrote:

“In your example, Microsoft (RIGHTFUL OWNER) never gave you its permission to use their Visual Studio in such manner. So by the very definition – you are trespassing.”

All of this assumes IP. That’s the very question in dispute: Does Microsoft have the right to claim Visual Studio as its property?

“Your friend purchased only limited personal use…”

No, he purchased a real material object; a DVD. This DVD is encoded with a pattern of bits. (Or as Silas would say, correctly, a pattern is instantiated on the DVD.) What gives Microsoft the right to say that my friend cannot use his own property to copy this pattern in any manner he so chooses? After all, the DVD is his property, and his computer is his property. In the absense of IP (which you are implicitly assuming), and in the absense of an explicit contract between Microsoft and my friend limiting his rights, I cannot see that Microsoft has a valid complaint against my friend.

Sasha Radeta August 28, 2009 at 1:19 pm

Russ,

You misunderstood the issue completely. DVD is physical object owned by Microsoft — and I only asserted that you need their permission — not your friend’s — to use their physical property in such manner. This by no mean imply that Microsoft owns “pattern of bits” — these patterns will only serve as evidence that you used Microsoft’s property in ways they never agreed upon.

Russ August 28, 2009 at 2:02 pm

Sasha Radeta wrote:

“You misunderstood the issue completely. DVD is physical object owned by Microsoft — and I only asserted that you need their permission — not your friend’s — to use their physical property in such manner.”

I could be wrong, but I think you are the one misunderstanding the issue. It’s true, the DVD is a physical object owned by Microsoft — until Microsoft sells the DVD to my friend! At that point, the DVD becomes a physical object owned by my friend. This is exactly how selling and buying physical objects ordinarily works; selling the object transfers the right to control the object from the seller to the buyer. At that point, the buyer (my friend) can rightfully give me a copy it he so wishes, unless there is something restricting his right to do so. That something could be a contract, or it could be IP.

Sasha Radeta August 28, 2009 at 2:34 pm

Russ,

Trust me, you’re wrong and even a bit funny. Microsoft does not sell full ownership rights over Visual Studio to your friend – that would cost him an incredible fortune, for heaven’s sake. They only allowed him a strictly limited use of their DVD for a lot smaller amount. Your friend can only lend this permitted right to you — nothing more than that. Full ownership rights over such valuable good as Visual Studio are not your friend’s to give.

Many companies often purchase expensive full-ownership rights from authors, but your example has nothing to do with that. I think you’ll find it amazing, but you can completely avoid all copyright restrictions, just by paying full market price for full ownership over a valuable work of authorship or invention.

Russ August 28, 2009 at 2:50 pm

Sasha Radeta

“Trust me, you’re wrong and even a bit funny.”

No, trust me, you’re wrong and even a bit funny. You’re apparently either having a language difficulty, or you can’t even realize that you’re taking IP for granted, or both.

“Microsoft does not sell full ownership rights over Visual Studio to your friend – that would cost him an incredible fortune, for heaven’s sake. They only allowed him a strictly limited use of their DVD for a lot smaller amount.”

Whether it would cost Microsoft an incredible fortune is completely irrelevant. You say that Microsoft only sells limited use of the DVD to my friend, not full ownership rights. OK, let’s analyze that contention. What if Microsoft were to sell me a physical object, let’s say a bar of gold? Then I would have full ownership rights to that bar of gold, yes? Then let’s say that I decided to sell that bar of gold to Oracle or Sun. I would have every right to do so, correct? Microsoft could not rightfully restrict me from doing so, yes?

OK, a bar of gold is a physical object. If I buy a bar of gold from Microsoft, they cannot then claim any right to limit my control of it (aside from things like throwing it through their front window, of course). A DVD is also a physical object. You claim that if I buy it from Microsoft, they *can* then claim a right to limit my control of it. There is an unexplained difference here, even though both the bar of gold and the DVD are physical objects. I am confused. Shouldn’t they be treated the same? So, what accounts for the difference?

Stephan Kinsella August 28, 2009 at 2:56 pm

Sasha:

“DVD is physical object owned by Microsoft — and I only asserted that you need their permission — not your friend’s — to use their physical property in such manner. This by no mean imply that Microsoft owns “pattern of bits” — these patterns will only serve as evidence that you used Microsoft’s property in ways they never agreed upon.”

Poor Sasha, you appear to think learning something implies using another’s property. This is absurd. Suppose I meet you on the street. You pull out your walkman and say, hey, listen to this–and you play for me a tune. I start humming it, and later on, in my studio, I use that tune as part of my new song. I never used any property owned by the originator of the tune.

Or, suppose you have a painting on the wall of your living room, and I can see it thru your windows, from my house across the street. My observation of that pattern of light bouncing off your house is not a “use” of the painting, even if it is owned by someone else.

Poor confused Sasha.

Sasha Radeta August 28, 2009 at 3:19 pm

Russ,

I absolutely agree with you (although you seem to have cognitive difficulties)! If Microsoft sells full ownership rights over their invention (in its physical form) — you have every right to do whatever you want with it!

HOWEVER, Microsoft did not sell this valuable property to your friend. Instead, they only permitted a strictly limited kind of use of their property, in exchange for a relatively small amount of money.

You ask “what accounts for difference” (between your friend and say a company that decides to pay a fortune to Microsoft in order to obtain full ownership rights)!?! It’s the price they paid and goods they obtained that makes a difference.

================

Oh great Dr. Stephan Kinsella,

please forgive my poor soul for finding your examples completely irrelevant and nothing more than humorous. And you’re absolutely correct: I’m confused by the lack of common sense and intellectual decency I often find here… And I’m not surprised you find your own example with humming absurd — because it is absurd!

So please forgive me and allow me to respond:
If you just see a painting in a museum and you decide to paint your version of it — I will be the first to support you in doing so… If you’re good enough to make almost-identical replica and you sell it under false signature of the author, defrauding a customer into believing he’s getting the authentic version — this person may sue you for fraud.

However, your examples have nothing to do with my real arguments and true unauthorized use of author’s property.

Best regards,

Larry N. Martin August 28, 2009 at 3:53 pm

What? Microsoft only sells limited rights to their cds and dvds? I’ve been hoodwinked–defrauded, even!
;-)

Sasha Radeta August 28, 2009 at 4:00 pm

LOL!

“We have now sunk to a depth at which restatement of the obvious is the first duty of intelligent men.”

George Orwell

Paul Lockett August 28, 2009 at 4:06 pm

Sasha Radeta: “If you just see a painting in a museum and you decide to paint your version of it — I will be the first to support you in doing so”

Even if the artist sold it on the understanding that it not be replicated? Compare this statement with a previous one of yours:

“Microsoft does not sell full ownership rights over Visual Studio to your friend – that would cost him an incredible fortune, for heaven’s sake. They only allowed him a strictly limited use of their DVD for a lot smaller amount. Your friend can only lend this permitted right to you — nothing more than that. Full ownership rights over such valuable good as Visual Studio are not your friend’s to give.”

There’s no consistency. If the artist had not, in your terms, transferred “full ownership rights,” then you can’t reasonably view the replication as less of a trespass.

Sasha Radeta August 28, 2009 at 4:09 pm

Paul Lockett,

Your example has noting to do with Stephan’s. Read more carefully. Try to find something to help you focus.

Best regards.

Paul Lockett August 28, 2009 at 4:29 pm

Do you have no counter argument at all to offer, Sasha? If there is an inconsistency in my comparison, I’d be grateful if you could point it out for me.

Russ August 28, 2009 at 4:34 pm

Sasha Radeta wrote:

“I absolutely agree with you (although you seem to have cognitive difficulties)!”

Heh. I don’t see why the insults are necessary, but … Well, you asked for it. You obviously don’t have any problems with embarassing yourself, so you shouldn’t object to being embarassed by me.

“If Microsoft sells full ownership rights over their invention (in its physical form) — you have every right to do whatever you want with it! HOWEVER, Microsoft did not sell this valuable property to your friend. Instead, they only permitted a strictly limited kind of use of their property, in exchange for a relatively small amount of money.”

A DVD is normal material property, and a form of property right applies to it. Let’s call this form of property right “normal property rights”, shall we? Now, “their invention” (the software) is not normal material property. It is only a pattern of bits on the normal material property. If Microsoft sells me a DVD, and I have full normal property rights to the DVD, I should be able to copy this pattern of bits. You are saying that, even if I buy the material property (the DVD), that does not give me the normal property right to copy a pattern of bits (the software) from my material property (the DVD) to my material property (a blank DVD) using other of my material property (my computer). OK, fine. I won’t worry about what justifies this limitation of my normal property rights. My point is, you are saying that Microsoft has some special sort of property right that is not like normal property rights. This special sort of property right limits my normal property rights, such that I cannot copy patterns of bits (software) from my own property, with my own property, to my own property, even though I have signed no contract with them agreeing to this limitation. We in the English speaking world have a special phrase we like to use to describe this special sort of property right. This special phrase is … drumroll, please! … intellectual property!

Stephan Kinsella August 28, 2009 at 4:54 pm

Yes, Sasha is trapped here. The question about the viewing of the neighbor’s copy of a famous painting is not about me fraudulently representing I am the author of the copy or derivative work I make based on my view of it. It is about whether the author of the painting can stop me or not. He has to be able to stop me to get a version of IP out of this scenario: but how can he? I didn’t agree with him in a contract; nor did I ever even arguably “trespass” on his property by handling, using, possessing the painting (let’s say it’s his) without his permission. No, I only observed it, from across the street.

If Sasha grants that this is not a form of use, then there is no basis to ensnare me in any liability for selling derivative works based on it. And if there is not, then such “exceptions” would make any simulated contractual IP regime crumble. Sasha’s little theory is dead in the water. Poor Sasha.

Sasha Radeta August 28, 2009 at 4:59 pm

Paul – what counter argument??? You perfectly got the grasp of the essence of what I’m saying…

Except for the fact that you hallucinate inconsistency in my arguments, since I responded to a completely different example presented by Stephan.

Like I said, find something to help you focus.

=============

Russ,

You must be the alumni of Dr. Kinsella’s seminar. First you start with ad hominem comments that have nothing to do with our topic, and then you get all offended when someone forwards the same kind of comment to you (only true).

By the way, there is no need for reinventing legal theory on your part and all that nonsense about “normal property”.

A DVD is perfectly fine piece of physical property and its use can be strictly limited and restricted by its proper owner (Microsoft in this case). I know these (normal) restrictions of one’s property frustrate you, but this obvious exercise of ownership rights really has nothing to do with Dr. Kinsella’s favorite topic of “pattern ownership” (whatever that means, since IP laws do not know anything about such nonsense).

Russ August 28, 2009 at 5:21 pm

Sasha Radeta wrote:
“You must be the alumni of Dr. Kinsella’s seminar.”

No, alas, I’ve never had the pleasure.

Sasha Radeta wrote:
“First you start with ad hominem comments …”

Sasha Radeta wrote earlier:
“Trust me, you’re wrong and even a bit funny.”

Excuse me? Who started with ad hominem comments?

You mean, let me understand this cause, ya know maybe it’s me, I’m a little fucked up maybe, but I’m funny how, I mean funny like I’m a clown, I amuse you? I make you laugh, I’m here to fuckin’ amuse you? What do you mean funny, funny how? How am I funny?
(*grin*)

“A DVD is perfectly fine piece of physical property and its use can be strictly limited and restricted by its proper owner (Microsoft in this case).”

Again, if I buy a DVD (as you acknowledge, a “perfectly fine piece of physical property”) from Microsoft, then it is no longer Microsoft’s physical property, it is *mine*. If it is not really mine, then there must be either a contract specifying that I am only purchasing limited rights to use the DVD instead of normal property rights, or there must be something going on here that is different from normal property rights.

“By the way, there is no need for reinventing legal theory… ”

That’s kinda what normative political philosophy does, Sasha. Sure, I know what the law is. That’s not the question. The question is, is the law justified? In order to answer that question, we have to agree about what we are talking about. In other words, we have to define our terms.

newson August 28, 2009 at 8:25 pm

to russ:
i’m not under naïve impression that the absence of e.m. law will be without disputes, it’s just that i don’t see that legislation will add much more than a truckload of bureaucrats and technicians to draft and ensure compliance.

why should i be unable to use empty spaces in your particular “homesteaded” frequency to transmit data to my clients? this may well cause you no nuisance.

the atmosphere, the medium of e.m. transmission, is a public good; no one should have the legal right to privatize any aspect of this public good. people don’t have rights to receive interference-free radio/tv signals. of course, if the signal providers are unable to come to amicable arrangements to ensure signal quality, that’s going to affect their business model. maybe people will migrate to internet, cable or whatever. stiff cheese.

please note that airlines don’t “own” air routes, they own slots at the airports (worth a fortune). even without laws, i don’t believe airlines would be stupid enough to all fly at each other without some gentlemen’s agreement or convention. i just don’t think mid-air collisions are good business for the whole airline business. i don’t see the need for a government overseer.

i’ve driven in plenty of parts of the third-world where there are no lane markers on the roads, and most people still stay on the conventional side of the road, just like magic!

Russ August 29, 2009 at 1:10 am

newson wrote:

“it’s just that i don’t see that legislation will add much more than a truckload of bureaucrats and technicians to draft and ensure compliance.”

I don’t see how the bureaucracy that would be needed for EM spectrum rights would have to be more involved than that needed for keeping track of land boundaries. All it would have to do is track frequency range and coverage area for a given transmitter. You wouldn’t necessarily need to have a “truckload of bureaucrats and technicians to draft and ensure compliance”, any more than you do to enforce property rights. If someone has a complaint, they take the complaint to court, the court looks up who owns the rights to the EM “boundary” in question, and makes a decision. EM rights needn’t require a separate enforcement arm such as the FCC.

“why should i be unable to use empty spaces in your particular “homesteaded” frequency to transmit data to my clients? this may well cause you no nuisance.”

Because in order to not interfere with one another’s broadcast, the two broadcasters would have to somehow coordinate their broadcast times. Otherwise, one broadcaster could plan on broadcasting at 6AM, only to find out another broadcaster has started using it at 5AM and still is. Now maybe the two broadcasters can come to an understanding, maybe they can’t. The easiest way to avoid disputes is EM spectrum rights. The broadcaster who owns EM spectrum rights could simply sell broadcast time to the second broadcaster, if no more “homesteadable” spectrum is available in the area. Thus the EM spectrum time-slicing problem is easily solved.

“the atmosphere, the medium of e.m. transmission, is a public good; no one should have the legal right to privatize any aspect of this public good.”

Technically speaking, this isn’t correct. EM waves require no medium in order to propagate. They can even propagate in the vacuum of deep space (and Einstein proved with his theory of special relativity that there is no undetectable “ether” that EM waves propagate through). So, there is no public good in the sense you intend. The EM wave itself, it is true, is a public good in the sense that it is not practically feasible to prevent people from benefitting from it unless they pay. That is why the radio business depends on advertisements, not on listeners paying.

“people don’t have rights to receive interference-free radio/tv signals.”

Then what you are saying is that we should not take advantage of EM broadcasting as a means of communications, just because the idea of enforcing EM spectrum rights bothers you? The words “permanent crankdom” are coming into my head. *grin*

“of course, if the signal providers are unable to come to amicable arrangements to ensure signal quality, that’s going to affect their business model. maybe people will migrate to internet, cable or whatever. stiff cheese.”

Again, what if a business model is not an issue. Let’s say that we’re in a “laissez faire regime”, except for EM spectrum rights. You go on the air to talk to AM radio talking head Sean Limbaugh about your idea that not having EM spectrum rights would work much better. A pro-EM spectrum rights consortium jams the signal to shut you up. If you object to this, they have proved your inconsistency.

“please note that airlines don’t “own” air routes, they own slots at the airports (worth a fortune). even without laws, i don’t believe airlines would be stupid enough to all fly at each other without some gentlemen’s agreement or convention. i just don’t think mid-air collisions are good business for the whole airline business. i don’t see the need for a government overseer.”

But now the government *does* oversee airline routes, at least I believe so. The FAA is responsible, yes? Without laws, some huge private organization would be necessary to replace the FAA. Another option would be that airlines *do* own routes. Then, if there is extra space open in a route, they could sell it to another airline. The idea of air route rights would effectively de-centralize the allocation problem. So does the idea of EM spectrum rights, especially since these rights are basically a local problem. No national body is needed.

“i’ve driven in plenty of parts of the third-world where there are no lane markers on the roads, and most people still stay on the conventional side of the road, just like magic!”

Heh. I would hazard a guess that this “magic” is really due to peoples’ instinct for self-preservation. It’s not at all analogous to EM spectrum “collisions”.

Russ August 29, 2009 at 2:15 am

newson,

Here’s another way of looking at the issue. Let’s take two hypothetical cases in your preferred “laissez faire regime”.

1) The good people of Newsonville, Oklahoma have a number of radio stations. The broadcasters have all “staked out” their frequencies and areas, without resorting to any notion of EM spectrum rights, just with “gentleman’s agreements”. Then along comes Wally “Big Daddy” Warbucks, who is decidedly not a gentleman. He decides to build a bunch of big transmitters on his property on the edge of town. They transmit noise on all frequencies in common use, effectively rendering the other broadcasters’ transmitters useless. Why would he do this, you might ask? Maybe his plan is to ruin all the other broadcasters, effectively running them out of business. After all, if the listeners can’t get broadcasts, the advertisers will stop paying the broadcasters, and they will shut down due to lack of funds (or lack of reason for broadcasting). Then Wally can start transmitting his own shows. If anybody wants a show broadcast, he will have to pay Wally. According to your philosophy, there is absolutely nothing wrong with this.

2) The people of Newsonville have their land staked out, without resort to notions such as property rights, but with “gentleman’s agreements” and fences. Then Wally comes along. He decides that Newsonville would be a great site for WallyWorld, a huge theme park he has envisioned. But the good people of Newsonville won’t sell. So he hires a bunch of mercenaries to bodily force the people off their properties. The A-Team are, unfortunately, otherwise engaged, so the people of Newsonville are effectivey screwed.

What is the essential difference between these two scenarios? I can’t see any.

newson August 29, 2009 at 3:24 am

to russ:
your first scenario isn’t more credible than mine. why, if the interloper “big daddy” has shown to advertisers how vulnerable the medium of transmission is to greenmailers, would they migrate to him? and more to the point, why would “big daddy” risk spending vast sums in the first place to take on the incumbent, when “big momma” is probably coming right down the track (barriers to entry only being the cost of transmission gear).

scenario two: it’s no point arguing the difference between physical, delimitable (tangible) property, and electromagnetic waves, which you yourself have declared unownable, if utilizable.

Sasha Radeta August 29, 2009 at 9:18 am

Russ,

In your example, Microsoft did not sell their DVD to you or your friend. They only granted limited use of their property in exchange for small amount of money (relative to what ownership rights over such valuable resource would cost another corporation).

I don’t mean to offend you, but it is funny how you can’t accept the simple fact that property owners don’t have to sign away their property rights when they allow limited use of their property. You don’t loose your home-ownership by renting your house, just like Microsoft does not lose its ownership of Visual Studio by granting you limited access through “terms of use.”

Capisce?

Russ August 29, 2009 at 3:02 pm

newson,

“why would “big daddy” risk spending vast sums in the first place to take on the incumbent, when “big momma” is probably coming right down the track (barriers to entry only being the cost of transmission gear).”

The point is, Wally’s scheme may not be the best business plan, but under your philosophical system it is *just*; there is no reason why he couldn’t legitimately try it. This could destroy the utility of EM broadcasting.

“scenario two: it’s no point arguing the difference between physical, delimitable (tangible) property, and electromagnetic waves, which you yourself have declared unownable, if utilizable.”

Whether EM waves are unownable is not the issue, it’s whether EM spectrum rights are ownable. They effectively are, if there is a system of law in place to enforce them.

Sasha Radeta wrote:

“You don’t loose your home-ownership by renting your house, just like Microsoft does not lose its ownership of Visual Studio by granting you limited access through “terms of use.”

This is an excellent example. Buying is much different than renting. When a person rents a house, he normally signs a rental *contract*, delimiting what his rights are. When you “rent” a DVD from Microsoft, where is the rental contract? The “terms of use” spelled out in the EULA (end user license agreement)? How is this a real contract? Has the “renter” of the DVD signed anything? If not, how can it justly be said that it is a legitimate, binding contract? Can an “implicit” contract (one that is not signed) justly be considered a binding contract? If so, why? If not, isn’t a DVD “renter” actually *buying* the DVD?

Yes, the law in the US currently says that a EULA is a legitimate, binding contract. But I’ve never been focusing on what the law *says*. We all know what the law says; we all know that if you try to “pirate” Visual Studio and Microsoft finds out, you could be in trouble. As you made clear with your George Orwell quote, this is restating the obvious. What I have been focusing on, and you have been pointedly ignoring, is this; is the law *just*? Why should Microsoft have the legal right to do what it does? Saying “It would lose a lot of money if it didn’t.” is not a valid justification to me.

I now think I was wrong in saying that you are implicitly assuming IP, but this was not helped by your very unclear explanations (actually, not explanations, but just assertions). For example, you have never explained how the DVD is still somehow Microsoft’s property. You just asserted that it was so. SK was more on the ball, I think, by saying that your theory is a sort of simulated IP by means of (implicit) contracts. Your theory still takes for granted that a contract like a EULA that is unsigned (and thus not agreed to by the renter in the same way that a signed rental contract is) is somehow still binding. Why?

There are also problems similar to SK’s painting example. Let’s assume that a EULA dialog is a valid binding contract. Let’s say somebody hacks the Visual Studio install program so it skips the EULA dialog, then puts it out on the Internet. I download it and install it on my computer. I did not go through a EULA dialog and click “I Agree”, so I agreed to nothing. Can Microsoft go after me, even though I never agreed to anything? If not, then this contractual theory would be toothless in terms of preventing “pirating”. If so, how do you justify this? If you say they have the right to go after me, even though no contract was agreed to, then you are now throwing out the idea of contracts as justification, and are back to IP as justification.

Russ August 29, 2009 at 3:42 pm

Sasha,

Here’s another example I just thought of. Again, let’s assume that the EULA dialog in the install program constitutes a valid contract, because clicking “I Agree” is equivalent to signing a contract. I buy a Visual Studio DVD from a store. There is a sticker on the box that says “By breaking this seal, you agree…”. This sticker is not a valid contract. I have signed nothing, I have clicked nothing, I have agreed to nothing. At this point, since I have agreed to nothing and the DVD has been transferred to me anyway, the DVD is my property. I go home, open the package, break the seal that is not a valid contract on the DVD sleeve, put *my* DVD into my computer and come up to the EULA dialog. I click “I Agree”. Is that binding? No. At that point the DVD is *mine*, not Microsoft’s, so I am free to click “I Agree” and ignore it. The contract limiting my usage of the DVD has to be agreed to *before* the DVD is transferred into my ownership. If the contract comes after the DVD is transferred into my ownership, the EULA dialog contract is meaningless; they no longer have any property rights with respect to the DVD at that point.

Would this hold up in a court of law? No, of course not, but that’s only because the legal system today doesn’t care about logical consistency. They only care about protecting the software industry. Silas’ IP theory would be much more straight-forward and consistent than an implicit contract-based theory.

Even if you accept that an implicit sticker contract is valid, that still leaves Microsoft open to the example in my previous post. If I install a hacked copy of Visual Studio, how can I be accused of violating a contract, implicit or otherwise, since there were no contracts to be seen?

newson August 29, 2009 at 8:10 pm

to russ:
i don’t think their is any illegitimacy in “big daddy”‘s suicidal investment plan, nor do i think we need “protection” from this type of behaviour. (in the same way than we need no protection from antitrust law against predatory pricing, also not illegitimate).

the e.m. spectrum is inherently a fragile media of transmission because the space (not the atmosphere, as i carelessly said earlier) between the transmitter and the various receivers is common.

i cannot see why people have any positive rights to receive e.m. transmission without interference. producers of e.m. material should not have the power to legally exclude competitors from a defined territory.

the radio industry worked just fine until the feds intruded. this article may be of interest -
http://mises.org/journals/jls/20_2/20_2_2.pdf

Sasha Radeta August 30, 2009 at 5:26 am

Russ,

Unfortunately you persist on misrepresenting my arguments, while completely ignoring basic ownership right: to allow a limited access to your property, without signing away this property.

You say:
Your theory still takes for granted that a contract like a EULA that is unsigned (and thus not agreed to by the renter in the same way that a signed rental contract is) is somehow still binding.”

That’s not true. I claim that EULA gives only a LIMITED ACCESS or usage rights to Microsoft’s property. Signer of this agreement may decide to transfer this purchased right to a third party. However, this third party NEVER PURCHASED anything from Microsoft! Thus any unauthorized use on his part, such as replication without owner’s consent) is nothing but a trespass.

Than you go on to say:
I buy a Visual Studio DVD from a store. There is a sticker on the box that says “By breaking this seal, you agree…”. This sticker is not a valid contract. I have signed nothing, I have clicked nothing, I have agreed to nothing.

WOW! What a charade… First of all, you must have agreed on something, since this market exchange took place. Every market purchase is a voluntary exchange of buyer’s property for seller’s good and service. So now when you drop that “know-nothing” nonsense, we can go onto the next issue: what exactly did you purchase from Microsoft?

If you have signed nothing and clicked nothing, how can you claim that Microsoft signed away their highly valuable creation to you??? How can you prove that Microsoft gave you anything other than strictly limited usage rights (of which they informed you)? You only paid a micro-fraction of what would cost say IBM to purchase complete ownership rights over such invention! Summa summarum, no court in the right mind would believe that Microsoft intended to sell all their ownership rights to you — and that you were not aware of what you purchased.

Please try to make a better argument next time. This seems like a waste of time and space on this blog.

Paul Lockett August 30, 2009 at 6:01 am

Sasha Radeta: “That’s not true. I claim that EULA gives only a LIMITED ACCESS or usage rights to Microsoft’s property. Signer of this agreement may decide to transfer this purchased right to a third party. However, this third party NEVER PURCHASED anything from Microsoft! Thus any unauthorized use on his part, such as replication without owner’s consent) is nothing but a trespass.”

Of course, if the original purchaser merely copies the original DVD and gives that copy to a third party, the third party doesn’t have any of Microsoft’s property, so he hasn’t commited any trespass.

Sasha Radeta August 30, 2009 at 9:02 am

That issue was already addressed on a different thread:

- Since the contract violator falsely assumed ownership rights over the item he obtained only for limited use, he will have to pay for it. If Microsoft gets fully compensated (for multimillion $ theft), nobody will care about “third party” issue. So If we apply private property rights justly, this will be a powerful deterrence for anyone to assume that it is OK to trespass or steal such valuable property.

- Furthermore, a third party that receives proceeds of theft or trespass will also be held liable. If this wasn’t the case, we would have a legal money laundering for any kind of criminal enterprise. A person can’t legally “borrow” another person’s valuable property without owner’s consent, generate millions of dollars in revenue, and then just return this property, claiming you compensated the owner. Your “third party” cannot reasonably defend himself by saying he believed in “bona fide” that some average Joe was the rightful owner of this property. It’s like accepting a diamond ring from a homeless person and then claiming you believed this property was rightly his and not the result of theft of some source.

See, this is a good logical test for your libertarianism: whenever you argue that the rightful owner should not be compensated for market services derived from his property, you must know there is something wrong with your analysis.

Russ August 30, 2009 at 5:17 pm

newson wrote:

“i cannot see why people have any positive rights to receive e.m. transmission without interference.”

Obviously, the case is utilitarian. If we don’t assume EM spectrum rights, then we forego the usefulness of EM communications. I know you think EM communications could be useful without EM spectrum rights, but even most anarchocapitalists apparently don’t find your argument compelling.

Sasha Radeta wrote:

“Unfortunately you persist on misrepresenting my arguments, while completely ignoring basic ownership right: to allow a limited access to your property, without signing away this property.”

I have never said that Microsoft cannot limit access to their property without signing away the property. I am only saying that for Microsoft to do so, a *valid* contract must be involved *before* the goods (the DVD and the money) are exchanged. Apparently, you are too dense to understand this basic concept.

Michael A. Clem August 30, 2009 at 5:32 pm

I don’t see how the bureaucracy that would be needed for EM spectrum rights would have to be more involved than that needed for keeping track of land boundaries. All it would have to do is track frequency range and coverage area for a given transmitter.
If we assume the validity of EM spectrum rights, I don’t see why private organizations can’t do this instead of a government organization, no matter how small it may be. For example, who tracks ASCAP and BMI royalties in the music industry? The government doesn’t do it.

Michael A. Clem August 30, 2009 at 6:28 pm

If they went to court, wasn’t that asking for the government’s help in resolving their differences?
Third party arbitration is a classic way of resolving differences, and doesn’t necessarily require government–it’s the process that matters, not the organization. Also, thanks to Newson for reposting that link above. A quote from it:
And in the fall of 1926 the precedent for defining and defending those [spectrum] rights had been established in an Illinois court: Tribune Co. v. Oak Leaves Broadcasting Station. Writes Hazlett, “the classic interference
problem was encountered, litigated, and overcome, using no more than existing common-law precedent” (Ibid., p. 149).

newson August 30, 2009 at 7:09 pm

to russ:
…and yet the utilitarian justification for government e.m. regulation is shown to be groundless by the enormous success of unregulated radio until the federal radio act of 1927 changed the game.

in britain, it was the success of pirate radio that made pop-music “popular” (“the boat that rocked” doesn’t do full justice to the story).

in italy, it was a similar story in the seventies. pirate radio provided programming that actually appealed to a market segment (youth) that wasn’t catered for by the state-licensed networks. pirate radios didn’t pull punches when it came to embarrassing the state authorities, whether for corruption or for incompetence.

Paul Lockett August 31, 2009 at 5:41 am

Sasha Radeta: “It’s like accepting a diamond ring from a homeless person and then claiming you believed this property was rightly his and not the result of theft of some source.”

In that instance, if I still have the ring, the original owner is entitled to have it back. If, in contrast, the homeless person gave me some food that they weren’t the rightful owner of and I ate it, it wouldn’t entitle the rightful owner of the food to claim my body as partly their property, simply because the food is now part of it. This is one of the biggest problems I can see with your position, it assumes property rights have some kind of viral nature which, if put into practice, would be farcical.

Silas Barta August 31, 2009 at 6:50 am

Hey guys: I elaborated on my earlier position in a blog post here

Sasha Radeta August 31, 2009 at 11:17 am

No Paul, I don’t assume that property rights “have some kind of viral nature” — I only stated that property owner must be compensated for use of his property. By the way, your food example has no relevance for our topic and you would still have to compensate the rightful owner if you didn’t eat in “bona fide.”

The issue here is that opponents of IP completely confuse what is whose property and how much valuable inventions really cost (as opposed to cost of a personal use that general public gets). You didn’t point out anything farcical about my position, by the way.

Best regards.

Paul Lockett August 31, 2009 at 1:06 pm

Sasha Radeta: “By the way, your food example has no relevance for our topic and you would still have to compensate the rightful owner if you didn’t eat in “bona fide.”"

So the person who took the food would have to compensate the rightful owner and the person who ate it would have to compensate as well, so the owner gets double compensation. I’m sure that would be a great scam for the owner to exploit, but it’s not what you could describe as just.

“The issue here is that opponents of IP completely confuse what is whose property and how much valuable inventions really cost”

No, what people have been trying to explain to you is that the owner of physical property is its owner and that contracts which might exist between other people don’t change that. The cost of inventions is of no relevance whatsoever to the issue of property.

“You didn’t point out anything farcical about my position, by the way.”

The fact that you can’t see the farce that would result from realising your position speaks volumes.

Sasha Radeta August 31, 2009 at 2:18 pm

Paul,

Man, it’s hard to explain how ridiculous your postings are… I’ll try to keep it as simple for you as I can. I told you your food example has nothing to do with our topic — and nobody mentioned “double compensation” (you are hallucinating again).

You say:
“No, what people have been trying to explain to you is that the owner of physical property is its owner and that contracts which might exist between other people don’t change that.”

That is exactly my position! I say Microsoft does not loose its ownership of Visual Studio just because it allows the limited access to this property to people like Russ. And I also said that by borrowing this strictly limited access from Russ, you don’t magically become owner who has the right to replicate that item. I also explained that it would be illegal for you to accept the proceedes of Russ’s trespass in the form of illegally created copy and that you will be liable for all economic injuries zou create with this item.

And once again: you don’t need a contract with a third party to protect your property against its trespass (unwanted use of your property).

By the way, you must be joking when you say:
“Thee cost of inventions is of no relevance whatsoever to the issue of property.”
HA HA HA HA HA
I basically said that owner must be compensated for the full price of the item that was stolen from him, while you argue that the issue is irrelevant. Of course you say that, since you advocate organized theft against productive individuals.

Paul Lockett August 31, 2009 at 4:04 pm

Sasha Radeta: “I told you your food example has nothing to do with our topic”

Well, I suspect you would say that, given that it completely annihilates your position.

“By the way, you must be joking when you say: “Thee cost of inventions is of no relevance whatsoever to the issue of property.” ”

Of course it is irrelevant to the issue of ownership. I either own something or I don’t, irrespective of its value. Unless of course you think that theft is acceptable if the item being stolen has a low enough market value.

Maybe you should stop before you embarrass yourself further.

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