austronaut wrote:

“if my house purchase was a contract (signed, witnessed) and noone else signed the purchase contract it would be against convention to see my locked front door as just an inconvienient barrier to entry?”

I don’t believe so, no. The convention here is called “property rights”, which I believe in. A contract is not necessary to protect one’s normal property rights.

“if a sticker on a software box says “EULA!! property of stinkysoft: by exchanging money for this information-laden disk you are given limited usage (meaning you cant use the disk in a way that would facillitate copying) but….but since there was no contract (signed and/or witnessed) it is just an improper convention on the part of stinkysoft…..”

That is my belief, yes. Others here disagree, of course. It all depends on which “conventions” (normal property rights, contractual rights, copyright, patent rights, IP rights) you consider proper rights.

“The correct argument against Brian is much simpler. A Macker copyright is in effect simply *asserting* “You cannot do such and such with this property, even after I transfer it to you. This condition is viral, and applies to anybody who receives this property, no contract required. Even if this property is abandoned and then homesteaded, these limitations still apply to the homesteader.” Well, that’s nice and all, but just asserting something doesn’t make it so, and creating something doesn’t give him that right.”

It’s no more a simple assertion than mineral rights are a simple assertion. I own the original copy. I go to sell it but not in whole. I am now a coowner with the buyer.

You can’t homestead something where you know the correct owner. If you found my wallet with my name on it you can’t homestead. Also you cannot abandon what you do not own. Since the buyer is merely a coowner of the copyrighted software, he may abandon his portion of ownership but that does not mean the other owner has abandoned his.

I may buy a piece of land encumbered by prior mineral rights ownership by Phil. I may well abandon my ownership rights in the land. That doesn’t mean that Phil has abandoned his coownership, he still owns the mineral rights.

Copyright ownership is no more “viral” or based on “mere assertion” than mineral right ownership.

Brian Macker wrote:

“I may buy a piece of land encumbered by prior mineral rights ownership by Phil. I may well abandon my ownership rights in the land. That doesn’t mean that Phil has abandoned his coownership, he still owns the mineral rights.”

I have never bought property involving mineral rights, so I’m not sure, but don’t the contracts involved in the buying of such land specify that you are not buying the mineral rights inherent in the land?

Alexander S. Peak wrote:

“Further, as Kinsella has pointed out, advocacy of IP entails an opposition to the inviolability of property in physical things.”

I hate to be a Silas, but advocacy of radio broadcasting rights also entails an opposition to the inviolability of property in physical things.

Dear Brian,

my argument against causality leading to ownership is that if it was true, all positive externalities and all causally related activities would become property violations. Children would become property of their parents. Soviet Union, by inspiring Ayn Rand’s work, would co-own Atlas Shrugged. The one asking a question would co-own an answer.

The issue is more apparent with immaterial goods than material. Even if we make the argument more strict by “going back” from “causality” to “use”, there is no way to determine what activity constitutes “use” of an immaterial good and what doesn’t. Let’s say I test 1000 of 2000 previously known possible protein combinations and determine that they do not possess a certain feature and then publish the results. Another researcher reads the article and starts testing the other 1000. Does that mean he “used” my work? That would mean that not only does the information present in an immaterial good constitute the use, but, absurdly, that the information absent from immaterial good constitutes its use. How about I take a book and write another one, by negating the contents of the original? For example: “Harry Potter was not the son of Lily and James. He did not have a scar on his forehead. His uncle and aunt loved him very much. Voldemort was not Tom Riddle. He did not try to kill Harry. Harry and Malfoy were best friends ever.”. Is that use? Logically, it is the exact opposite.

The “use” of an immaterial good is a metaphor. It does not actually reflect an empirical occurrance.

In summary, I consider this approach invalid, as it does not lead to demarcation of the property boundaries.

What Mark Hubbard can’t seem to grasp is that while downloading his e-book without paying him may well be wrong, it is not “theft”, because it is not scarce and it is not property. He and others seem to think that the anti-IP’ers are all for some kind of collective “anything goes” philosophy, when that is far from the truth. Justice, like any high ideal or concept, requires a firm grounding in reality and percepts. Basing law on the idea that ideas are property is bound to lead to conceptual errors and injustices, as the occasional blog post here at Mises indicates.

Dear Russ,

As long as one assumes photon frequencies to be less than physical, unlike the photons themselves (which are, despite their wave-like nature and lack of mass, physical), then yes, you’re right–my response is not perfect. Certainly we would not want to lump broadcast bands in which IP, despite both being non-physical, since broadcast bands have a natural scarcity unlike pure ideas.

Yours,
Alex Peak

“….since broadcast bands have a natural scarcity unlike pure ideas.”

additionally, do broadcast bands only have a natural scarcity to the point that the transmission apparatus can deliniate them?
would that be significantly different than the idea originator ideas being understood and replicated by others.

Alex Peak,

We agree with Rothbard that you cannot own another person, or the will of another person, or the mind of another person, or anything inside the mind of another person, right?

Right. But agreeing not to do something as part of a contract is not the same as someone owning a piece of your mind.

Suppose you were an artist and a beautiful woman contracted you to paint her nude, but only from a certain perspective, not showing her privates. As part of the job you sign a contract never to create any figure or image in her nude likeness again from memory.

Now you certainly will remember what she looks like nude, and may even be able to make a reasonable copy. However that doesn’t mean that you are a slave or that she owns anything inside your mind.

Had she not posed nude for you then you never would have been able to draw an accurate nude of her in the first place. So it’s not like the outcome of the exchange has left you any poorer in that regard. You aren’t less free after the exchange.

She certainly doe not own your mind as she has absolutely no way to prevent you from thinking whatever you want.

You can think about her all you want. You can describe her to others. Whatever. The only thing that is restricted by the contract is your right to paint an unauthorized nude, or drawing, or sculpture.

If you really really feel you must painter her nude again you can always ask to pay her, or get her release.

You have agreed to do one thing for money and it need not occupy any of your time for the rest of your life.

“It is for this reason that Rothbard, correctly, rejected the validity of anti-libel and anti-slander laws. A person’s “reputation” is something that only exists within the minds of others, and since nobody has a right to control the minds of others, therefore nobody has a “right” to her or his reputation.”

Well I think Rothbard is wrong for the right reason. Defamation laws should not be about owning ones reputation. They should be about fraudulent interference in the right to freedom of association. If someone maliciously lies about, say the local butcher, saying that he keeps his scales out of balance, then that fraudulently interferes in both the butchers and the customers right to free association.

It’s a crime for the same reason that yelling fire in a uncrowded theater would be. You’ve interfered in a transaction using fraud.

“But once a person reads something, does not the content enter the person’s mind? I have read Ayn Rand’s Anthem, and it has therefore entered my mind, as is George Orwell’s 1984 and Aldous Huxley’s Brave New World.”

Not in exactly the same way that direct copying would. Unless you are a idiot savant or something. Copying a book is not something you do from memory. Same is even more true of software.

“And no matter how much one may try, one cannot nonviolently remove this content from my head. They only imaginable way to remove this content is through aggressing against me (e.g., murdering me).”

Why on earth would the copyright holder want to remove whatever you happen to remember from your head. The whole point of selling the book to you is so you will read it.

When Microsoft sells you word they expect you to copy it to your computer. There are certain types of copying that are allowed by copyright.

“Further, as Kinsella has pointed out, advocacy of IP entails an opposition to the inviolability of property in physical things.”

Incorrectly.

“The state considers Vonnegut’s Slaughterhouse-Five to be under “copyright,” which in effect means that if I want to take MY justly-acquired pen and MY justly-acquired paper and to write on it the words from that book, or even to write on it a story similar to the story in that book, the state may come and beat me down, imprison me, or steal from me. “

Well cross off the steal because that’s a loaded word in this context. Extracting restitution is not stealing.

The state as an agent of the copyright owner or the owner can prevent you from using the book as a factor of production in making a copy yes. What’s your point?

“But why? It’s my paper, it’s my pen.”

So? I own a pen and paper. There are many things I can’t do with them, like write on someone elses wall, or stuff it into the tail pipe of their car.

“I am not aggressing against Vonnegut in copying the book; but the state will certainly aggress against me if it catches me doing it.”

This is a false claim. You are agressing against Vonnegut’s property, by using it for a purpose for which he did not give you permission. He is part owner of the book which you are copying.

“I came around to rejecting IP when I realised that IP is theft.”

This is a unsupported assertion.

Although I’ve heard the argument upon which it is based. The argument goes that I own the pen and paper and yet you, the copyright holder, are preventing me from doing what I want with them. Since ownership is the right to control you have stolen from me.

This is nonsense. There can be many restrictions on how you use your property that do not amount to theft. You can’t smoke in my house but that doesn’t amount to a theft of your cigarettes.

So you want to use your pen and paper to copy Anthem. Ayn Rand has prevented this somehow, so now you claim theft. Well what if the way she prevented it was to never have written the book? What if she wrote the book but never sold it to you? Are those theft? Has she in any meaningful way reduced the scope of activities you can take with your pen and paper? Of course not. It’s not stealing.

So, now suppose she lets you read the book on the condition that you don’t copy it while it is in your possession. That doesn’t steal your pen and paper either. It just stops you from doing one activity that involves her property.

“It violates natural law and the nonaggression axiom. It has no legitimate place in a libertarian society.”

“It took me a while to accept this, so I understand if you’re afraid.”

Huh? I’m not afraid. I reject these arguments because they are wrong.

> No one is saying that causality leads to ownership.
Actually, some IP proponents are. It was unclear to me that this is not your argument, so I apologise for the misunderstanding. I most definitely do not claim that I consider the assumption correct, on the contrary, I consider it absurd.

My another point is however that there is no distinction between immaterial good and causality. You seem to be asserting that there is one.

> Part of the issue here is that the book the third party
> is copying is already owned, and not by him.
Part of the issue is that one cannot distinguish between that which you claim is “owned” and an externality. Neither are empirical phenomena. If you can claim ownership about something that you cannot observe or measure, why can’t you claim ownership about other things that you can neither observe nor measure either?

> By trimming your bushes I’ve mixed my
> labor/property with yours, without permission.
This is all well and good, however the results of trimming versus non-trimming are empirically distinguishable.

Dear Brian,

> No they are not.
They (some, not all) most definitely do. The most evident example is Kerem Tibuk.

> You are going to have to clarify what you mean by
> both. What is an “immaterial good”? I assumed by
> that you mean a platonic ideal. Like a “circle”.
Yes. There is no way to distinguish between those “properties” covered by IP laws, and an externality in general.

> I don’t think you realize what empirical means. If I
> swing my fist and hit you in the face that’s an
> externality and it’s quite empirical.
But swinging your fist is not a platonic ideal, it is an something that actually happens and can be observed independently. Such an example is not covered by my claim. Are you sure you understand what I’m talking about?

> You are responding to a sentence where the claim is
> ownership of a book. How is a book something that
> cannot be observed or measured?
You can own “a book”. But you can’t own the immaterial aspects of that book in an exclusive, unique way. You may very well forbid those you have a contract with any soft of activity (I disagree with Russ on this), but there is no reason why third parties should be bound by restrictions with regards to immaterial aspects of the objects and activities covered by that contract.

> For example, one can look at two books, read them,
> and see if they are the same, or different.
Any empirical observation will unmistakingly tell you that they are different objects. They are only “the same” if your interpretation does not reveal significant differences. Both your interpretation and significance are subjective. Why do you consider the fact that there are two of them insignificant? There is no reason to make that conclusion.

> The contents of the book are not magic. There is an
> actual physical arrangement in the real world of ink
> on the pages. Books don’t have immaterial souls.
Yet, the contents (as in the letters) are empirically distinct objects. Furthermore, even if you use the same font, the imperfections in printing process create differences. You automatically assume that these differences are irrelevant. There is no reason to make this conclusion.

> As are two different books, a blank DVD from one
> containing MS Word, a blank book from one that has
> words and pictures, etc.
This is only because there is another physical element that is present in one and absent in another case. If the only difference between two objects is that one features the immaterial good and one does not, there is no empirical difference between them. You are probably confused because the objects you are comparing are noticeably different already.

I made two other examples. One was Jay Lakner’s stick figure drawing that he made after reading Harry Potter. Is it a use of Harry Potter or not? The only way to know is to follow Jay’s thought processes. There is no other way to determine whether it is or not.

Second one was a book summary (I’ll repeat it here):
—————
This book is a story of a bright boy. He had trouble getting along with his family, but one day was selected for special (yet so far almost unmanifested) skills and sent to an elite school. The school allows him to hone his skills. He excels in combat disciplines and demonstrates great leadership abilities. Meanwhile, the world is being threatened by a powerful enemy. The enemy was temporarily beaten some time ago, but is planning a comeback. It is said that the special skills that the boy possesses are the only way to defeat the enemy. In the end, he defeats the enemy, but finds out that he had been skillfully manoeuvred into the confrontation by his own mentor.
————-

Unless you heard this example before, you probably think this is a summary of Harry Potter. However, I claim you are wrong, it is not a summary of Harry Potter but Ender’s Game. How do you determine whether I’m right? There is no empirical way to do that. It could be either, both or neither. The only way to know is to know my thoughts I had while writing the summary.

I don’t understand what is your example supposed to prove. You seem to be under the impression that I claim that it is impossible to conclude difference. I claim that it is impossible to conclude identity.

Dear Brian,

how about you address the actual arguments I made? You are mixing unrelated things. In order to determine whether a photo refers to a certain person, we do not need to determine whether they are metaphysically identical, or whether the photo is a “copy” of the individual. The similarities that are produced by our brain while looking at the individual and the photo are functionally sufficient for the desired purpose. Indeed, we are aware that the photo and the individual are distinct objects and not the same one. We are aware that a photo is created by using a camera to capture the light that was reflected by the individual at some previous time, and that the effect is very similar to that which happens in our eyes. We do not need to conclude that they are “metaphysically same”, just that they are “similar enough for practical purposes”.

Brian Macker said:

”
‘If you saw my products on display and went home and duplicated them, there wouldn’t be any damages.’

So you think that someone can just look at a copy of Microsoft Word sitting in it’s package on a shelf, and then walk home and copy it? I don’t think so.

No, no one says that.”

Wrong. If someone had a mousetrap on display and went home and copied it, indeed there would be no damages. Someone might not have the ability, as is the case of boxed software sitting on a shelf) to copy, but the copying is fine.

“To copy something you need to get your hands on a physical instantiation of it, which is somebody elses property, not yours. The only way you could get one of your own is to buy encumbered with copying restrictions.”

Wrong. Technically you don’t need a physical instantiation and so your definition of copying is wrong. What if I downloaded the patent documents for a mousetrap? Guess what? I could copy it without needing a physical instantiation of it.

“No one acting in their own self interest is going to spend a million dollars developing software and let you buy a copy for one hundred bucks with full ownership rights. They would only sell you partial ownership, retaining the ownership of the right to copy to themselves.”

Your imagination fails here. Some companies spend money developing software and GIVE it away AND give full rights to it. Just because it is inconceivable to you does not make it impossible in real life. That’s the problem with people thinking they know better than the millions of entrepreneurs in the free-market.

“If you steal it, or violate the copyright holders property rights, to make a copy then you are using it unauthorized as a factor of production in the copy.”

You are already assuming theft / a violation of the copyright holders property rights is intrinsic to copying. But the anti-IP crowd denies that copying is theft or a violation of property rights. Now if you meant stealing as in physically going to a store and stealing a boxed copy of Microsoft Word, then there is a misunderstanding. NO ONE HERE is advocating that kind of trespass since it would physically deprive the owner of that object.

“It’s the same as if you broke into a factory at night, stole a mold, used it to make a bunch of copies with your personal raw materials, then returned the mold before the morning. Even though the imposition on the actual owner seems negligible you have still stolen the factor of production. This establishes co-ownership rights of the object you created by the person who owned the mold.”

No one here is advocating physical trespass. What if I didn’t break into the factory and made my own mold from one of their physical products? I have not stolen the factor of production but would there still be co-ownership? Of course not. The crime in your statement is physical trespass and physical theft, not the copying.

“It would then be up to a judge to decide what the ownership ratio was in the copied objects. In the case of computer software the value contributed by the raw materials and copying labor is minimal. A CD costs ten cents, and hard disk space is even cheaper. The run time on your computer is of negligible cost. Almost the entire value is due to the factor of production owned by the copyright holder.”

Really? We should let a judge decide ownership ratios? The value should be partially determined by the raw materials and copying labor? Let’s say that a piece of software cost $100 to develop and I make a copy on a disc made of diamond costing $9,000 and pay a technician $1,000 to do that. Does the ownership ratio turn to 100:1 in my favor? I don’t think so but some judge might basing his decision on your flawed criteria.

Honestly, do you really think defending government intervention in favor of a labor theory of value is going to last ten seconds on Mises.org?

“The software pirate is producing copies that the copyright holder has ownership rights in because of the unauthorized use of a factor of production. In order to right this wrong and make the copyright holder whole again some restitution is in order.

The pirate has invested perhaps .11 cents in the production value of the copy, while the copyright holders value contribution is the full sales price of the software minus .11 cents, and that’s per copy.”

Thus, one option for the court is to force the pirate to pay the copyright holder almost the full value for every copy, plus court costs, and other enforcement costs needed to track down the pirate. ”

Right. So if I invest $10,000 to make a copy while the full sales price is $100, the copyright holder’s value contribution is negative $9,900? And since the ratio of ownership is 100:1 in my favor, the court should force the “copyright holder” to pay me $9,900. Absurd.

“Also, potentially a penal fine proportional to the risk of getting caught to be paid to the copyright holder.

The extra costs that need to be expended to catch the pirate will easily wipe out any material investments he had made when the copying process is easy. While the harder the copying process is the longer the object being copied will have to have been misused as a factor of production.”

Irrelevant considering your premises are wrong.

“Thus the straight out thief who steals someone’s copy of a software, slips in into his computer, copies it, then returns it secretly is not somehow doing less damage. What he is in fact doing is contributing less value as a factor of production in the copy.”

Of course they are doing less damage. If someone breaks into my house (a wrong) and steals my wrench and then returns it without my knowing, that is less damaging than if he steals it and I know about it. Your contorted arguments are blocking common sense reasoning.

“Suppose it took a full week to copy a CD. Then the theft to make a copy becomes more obviously a burden on the person stolen from, but it also makes the value added to the copy by the pirate rise in value. It becomes a wash when it comes time to decide who has more interest in the copy. Sure the pirate invested a week in the copy, but he also stole use of the software CD for a whole week.”

The thing is that the physical CD is stolen. The owner does not have use of it. That is physical theft and no one condones that. Further, since most software installs to the hard drive, I would not be denied use of that software except if I wanted to install it. I don’t know where my XP CD is, but I can tell you that I haven’t used it in years. If someone had stolen it and spent a week to make a copy, it is clear who has more interest in the copy. Hint: it’s the thief who invested a week to do it. So does that make it right? No. Physical trespass is wrong. Copying itself, on the other hand, is fine.

“The issue of copyrights isn’t merely about Platonic ideals, it’s about physical instantiations of real objects, and factors of production, along with co-ownership of those objects.”

Wrong again. I downloaded Windows 7. It’s not a physical object but a magnetic pattern on my hard drive (or an electrical pattern on an SSD). So copyright cannot be intrinsically related to “physical instantiations of real objects”. It is also absurd, at least in your presentation, that it should be intrinsically related to factors of production or co-ownership.

“If you bought land without the mineral rights and those are retained by someone else then you do not own the minerals on “your” property. Should you try to mine those minerals then you would be stealing. Likewise when you buy software but not the copying rights to that software then you are not allowed to make copies, or you are stealing that use from the person who retained those rights. Which puts you in the same exact position as an actual theft who stole a physical CD.”

No it does not. Did you even watch the animation? An actual thief who steals my physical Office CD 1) has physically trespassed and 2) denies me full use of that CD. If I share my CD drive with Office in it over a network 1) they have not physically trespassed and 2) they have not denied me full use of that CD. That’s the huge difference that the pro-IP crowd continually fail to see.

“Keep in mind that all software in the world exists as physical entities, actual copies, in some form or another. It never exists as a Platonic ideal. Thus to copy you must be misusing some physical object. ”

Wrong. Counterexample: If I have thought up a program, that software is not a physical entity. Your conclusion therefore does not follow.

Bryon:

“With all the small minded people that use the internet as a substitute for daily life…”

This is an internet phenomenon? I’m trying to better understand what you’re refering to here:

“…there will always be people that refuse to educate themselves on intellectual property and blatantly try to pass off the work of others as their own”

It seems you are conflating music fans who file share with musicians? Are you only talking about sampling-artists or other musicians too? For example example, a band like Led Zeppelin who incorporated thousands of ideas by old blues artists, super-charged it and repackaged the gumbo for presentation to young white kids who mainly didn’t know any better?

“Wrong.”

Actually I was right since I was talking about MS Word, not a mousetrap in a clear plastic wrapper.

” If someone had a mousetrap on display and went home and copied it, indeed there would be no damages.”

No kidding. If I wear my baseball cap backwards and you copy it there would be no damages either. Your example, doesn’t apply to copyright. I’m not defending patents. You on the other hand are trying to use objections that properly apply to patents in an attempt to claim the invalidity of copyright. Which is wrong.

You didn’t however properly address anything I had to say. Many in the anti-IP crowd conflate patents with copyright. They conflate that to which copyright could conceivably apply to that which it couldn’t. I’m addressing copyright, and in fact you are wrong if you think you can copy Microsoft word at a glance.

“Wrong. Technically you don’t need a physical instantiation and so your definition of copying is wrong. What if I downloaded the patent documents for a mousetrap? Guess what? I could copy it without needing a physical instantiation of it.”

Again you are talking patents, not copyright. In fact, everything in this world is a physical instantiation, even the description provided in a patent is physically instantiated.

In fact a detailed enough description in another form is in fact a copy. So the patent registration would be a copy, a physical copy. That’s true even if it is non-functional in the copy. For example, MS word copied to your computer can do word processing, whereas the description on a DVD, a physical instantiation, cannot do word processing.

The definition of copying I am using is the one that would be applicable to copyrights. For example, if someone were to publicly display something that is easy to replicate then copyright couldn’t apply.

It is you who is using a ridiculous definition of “copying” in order to throw the baby out with the bathwater. I’ve used a definition that is appropriate because it is a definition that requires trespass against the owner of the copyright. There is no trespass in the case of viewing someone wearing a hat backwards, or seeing publicly displayed goods like a mousetrap.

In fact your entire comment is one long overextended effort to misunderstand everything I have written. So I will not waste my time responding to the rest of it.