As Huebert notes in his post Fighting IP Absurdity: The South Butt Strikes Back, the saga of The North Face Apparel corp. vs. The South Butt continues. As noted on his attorneys’ website,
The South Butt is the local case of a Missouri teeanager, Jimmy Winkelmann, frustrated with his classmates’ sheep-like following of a popular clothing line. Jimmy came up with his own parody apparel and now faces a lawsuit for trademark infringement.
The North Face filed the lawsuit, claiming that The South Butt is confusingly similar to The North Face, in violation of North Face’s trademark rights.
Now Jimmy has filed a biting and hilarious response. In the response, he mocks The North Face, its products and customers (para. 23, II.5-7), its hypocrisy (North Face’s owner, VF corporation, “formerly known as Vanity Fair Corporation, not to be confused with the Conde Naste publication of the same name), and its contentions that the public can’t tell a butt from a face, calls them “socialist” (para. 37) and bully-like (para. III.2), trumpets “freedom of speech,” “the American Way,” and the “pursuit of the American Dream” (para. III.2), thanks The North Face for the free publicity (para. 50), and he mentions that he “has initiated an Internet challenge through Facebook designed to hone the skills of the general purchasing public to discern the difference between a face and a butt” (see North Face Lawsuit Against South Butt Going Viral With Facebook App).
Good for Jimmy, and here’s hoping he triumphs–though, unfortunately, the trademark cause of action known as “dilution” does not require a showing of consumer confusion, as noted on the Patently-O blog. This is yet another reason why not only patent and copyright law have to go: trademark law is flawed too. As I discuss in Against Intellectual Property (pp. 58-59), the only sound basis for trademark law is fraud. But this would mean that it is the defrauded consumer who has the cause of action, not the trademark holder. Even if you say that the trademark holder has implicit consent of the class of defrauded consumers to sue on their behalf, (a) this would cover only cases of true consumer fraud, not knockoffs where the consumer knows full well she is buying a fake rolex or purse; and (b) it would not include antidilution rights. If Jimmy loses here, it will probably be because of the antidilution cause of action; this is one reason I recommend abolishing it in my list of IP reforms in Reducing the Cost of IP Law.
(For further discussion of problems with trademark law, see n. 46 to Reducing the Cost of IP Law; and Trademark versus Copyright and Patent, or: Is All IP Evil?. For further criticism or discussion of the North Face case, see Peter Klein, IP as a Joke: South Butt Edition; South Butt Creator Fires Back at North Face, law.com; Mike Masnick, North Face Didn’t Get The Message; Sues South Butt, Techdirt.)
{ 50 comments }
“As I discuss in Against Intellectual Property (pp. 58-59), the only sound basis for trademark law is fraud. But this would mean that it is the defrauded consumer who has the cause of action, not the trademark holder.”
Fallacy 4.
“A similar fallacy states that the counterfeiter is only guilty of fraud towards the purchaser of his product because he misrepresented himself, and the original owner of the counterfeit good is unaffected. This is a grave error, as much capital is invested in the production of goodwill by capitalist enterprise. The existence and propagation of counterfeit products of lower quality directly destroy the confidence of consumers in the products of this enterprise, and make all accumulated goodwill worthless. In the case of money, it may get to the point where there is no longer trust in the authenticity of any media, and the money is simply rejected as a medium of exchange. The entire investment made into the good by the original producer is thus made worthless, in essence expropriated and consumed, by the counterfeiter.”
The libertarian argument for property rights and IP, (including quotes from Mises.org George Reisman). From New Zealand libertarian Peter Cresswell’s Notpc Blog:
http://pc.blogspot.com/2010/01/some-propositions-on-property-rights.html
The honourable Mr Reisman on IP: it is essential, it is not a monopoly, protection of IP is the role of proper government:
- George Reisman, ‘Patents and Copyrights, Trademarks and Brandnames, Not Monopolies,’ in Capitalism
Stranger (and stranger),
“The entire investment made into the good by the original producer is thus made worthless”
Labor theory of value.
Mr. Hubbard,
No one has ever said everyone has to have the same opinion.
You are welcome to support your opinion. Simply nay-saying those who disagree is pointless.
No one has ever said everyone has to have the same opinion.
No, but this is the Ludwig von Mises Institute, and I’ve not seen a single pro-IP post. Not one. But look how many anarchist ones go up every day now.
There is not one jot of balance in the editorial approach, the result of which is a site that could be great, is sidelining itself as anarchist fringe. And with that goes the struggle for freedom, and the name of von Mises.
@Stephan_Kinsella: but wait, I thought trademark was *different* from the other kinds of IP, so government stupidity regarding trademark doesn’t say anything about the more “characteristic” kinds of IP? So why the focus on a trademark case? (Of course, the stupid government enforcement of *any* kind of right doesn’t say anything about the validity of that kind of right, but that’s never stopped you before…)
@Mark_Hubbard: There haven’t been top-level posts defending IP, but there are lots of comments from regulars defending IP, or at least, criticizing bad arguments against IP (which are freakin’ LEGION).
I suspect this is partly due to my incessant campaign to call Stephan_Kinsella on his rhetorical sleight-of-hand and questionable arguments regarding IP.
blind appeals to authority just don’t wash. the professor is wrong on ip, no less than other objectivists.
blind appeals to authority just don’t wash.
There is a very sound, reasoned argument for IP newson; but you never debate on that. Just do one off’s like this.
Go to the NotPc link above and give the full reasoning against the argument given there for IP.
State the looters case fully.
to mark hubbard:
you’ll find one of kinsella’s posts was specifically dealing with von mises’ utterances on ip. you’ll be shocked to find they offer much less comfort to your objectivist view than you’d imagine (if you’re really must appeal to authority, that is).
maybe kinsella will put the link up.
“Curt Howland Curt Howland
Stranger (and stranger),
“The entire investment made into the good by the original producer is thus made worthless”
Labor theory of value.”
Fallacy 8.
If an argument along these lines can be made, it is that intellectual property is derived from the labor theory of property, which argues that an act of production should be protected and rewarded by private ownership. This has nothing to say about the value of what has been produced, it may well turn out to be worthless, and this risk is the very thing that makes capitalist production of information essential.
When a capitalist information industry undertakes to create specific information, it must do so with the expectation that it will be able to sell the information at a profit, and thus calculate the optimal supply of this information based on marginal revenue, from which it must subtract the costs that will be incurred during production. If it should fail, the capitalist will have to exit the information production industry. All of these prices are the result of marginal value, and thus marginal value theory is a foundation for intellectual property rights.
Supposing that it were impossible for the information producer to control the supply of information, then the value of any capitalist investment in information would be zero, and no such production would ever be risked, to the detriment of information consumers.
Stranger: “A similar fallacy states that the counterfeiter is only guilty of fraud towards the purchaser of his product because he misrepresented himself, and the original owner of the counterfeit good is unaffected. This is a grave error, as much capital is invested in the production of goodwill by capitalist enterprise. The existence and propagation of counterfeit products of lower quality directly destroy the confidence of consumers in the products of this enterprise, and make all accumulated goodwill worthless. In the case of money, it may get to the point where there is no longer trust in the authenticity of any media, and the money is simply rejected as a medium of exchange. The entire investment made into the good by the original producer is thus made worthless, in essence expropriated and consumed, by the counterfeiter.”
None of this shows that the counterfeiting violates the rights of these third parties–not unless you hold that there is some property right in the value of things, which is confused and fallacious.
“No, but this is the Ludwig von Mises Institute, and I’ve not seen a single pro-IP post. Not one. But look how many anarchist ones go up every day now.”
Most Misesians are principled libertarians. As such, most of us oppose aggression as a matter of principle–just like Randians say they do. But we are also consistent, so we see that being against aggression means opposing the state, as an agency of institutionalized aggression; and opposing IP, which amounts also to aggression against private property rights.
Silas Barta:
“but wait, I thought trademark was *different* from the other kinds of IP, so government stupidity regarding trademark doesn’t say anything about the more “characteristic” kinds of IP?”
I argued way back in m Against IP, Silas, that all 4 forms of state IP are problematic, although by far the worst are patent and copyright–I go back and forth on which of these is worse; I think copyright, probably. So, it’s: copyright, then patent, then trademark, then trade secret–and that’s omitting the little-used or specialized/modern ones like semiconductor maskwork and boat hull designs. I guess I’d throw in there reputation rights too, maybe it would be even before trademark on the list.
“So why the focus on a trademark case? (Of course, the stupid government enforcement of *any* kind of right doesn’t say anything about the validity of that kind of right, but that’s never stopped you before…)”
? It’s not that it’s stupid, Silas. It’s that it’s based on an unjust premise, namely the antidilution “right”–an artificial, recent, state-created “right” just like patent and copyright law (no offense, you).
Re Reisman: I greatly respect him. He was trying to justify the essentially Randian view of property and IP in these comments. In debates we had after this (see the post Trademark and Fraud), he was reasonable and civil; and he focused quite properly on whether or not creation is a source of rights. He saw that the Randian claim turns on this. When I pointed out that creation is neither necessary nor sufficient for ownership, he tried to find a way out by saying that if you own some raw material, and transform it, you own the new, transformed thing because of your act of creation, and therefore, in a sense, creation does give rise to ownership rights. Obviously ,this is a strained argument and even contradicts Rand’s comments about rearranging matter and creation, as noted in Rand on IP, Owning “Values”, and “Rearrangement Rights”. It was obvious Reisman could not find an answer to this–because there is none. Creation is not an independent source of rights, becuase it leads to the notion that any THING you can think of can be owned; but it cannot; this inflation of rights destroys real rights (as Rand realized regarding positive welfare rights).
“None of this shows that the counterfeiting violates the rights of these third parties–not unless you hold that there is some property right in the value of things, which is confused and fallacious.”
There is a property right in the trust of the marketplace. “Fraud” in this case is not only a violation of the trust of the consumer, but also of those trust of the consumer in the producer.
most of us oppose aggression as a matter of principle and:
so we see that being against aggression means opposing the state
You use ‘aggression’ in a duplicitous sense.
Do you believe in the aggression of self defense Kinsella?
… before we get to creation.
@Stranger:
The consumer has the right not to be defrauded, but the manufacturer has no right to the “purity” of the trademark – for instance, nobody talks about “force rebound tumblers”; they speak of trampolines. As a matter of fact, “counterfeit” items can be perfectly legitimate: if the logo’s all that’s important, somebody might knowingly buy a ripoff.
@Mark Hubbard:
The state lives via taxes, which are extracted at gunpoint; aggression, pure and simple.
Mr. Hubbard,
“and I’ve not seen a single pro-IP post. Not one.”
As has been so ably stated elsewhere, “Mises was not a Misesian.”
To demand that everyone parrot what someone else said, even a great man, is to deny that progress can be made.
Again as said elsewhere, Newton made errors because he did not have the theory of Relativity. Yet the theory of Relativity could not have existed without Newton’s laws of motion to build upon.
Would Mises, alive now, defend the government statutes that create copyright, patent, trademark and other incidents of what we call “I.P.”? Maybe, maybe not. I certainly would be interested in what his arguments would be if he were.
Your arguments I find dull, repetitive, and entirely un-convincing.
“BioTube BioTube
@Stranger:
The consumer has the right not to be defrauded, but the manufacturer has no right to the “purity” of the trademark – for instance, nobody talks about “force rebound tumblers”; they speak of trampolines. As a matter of fact, “counterfeit” items can be perfectly legitimate: if the logo’s all that’s important, somebody might knowingly buy a ripoff.”
The producer is also being defrauded by someone impersonating him.
The state lives via taxes, which are extracted at gunpoint; aggression, pure and simple.
Under our modern democracies, yes – I give you no argument at all. But the State as we have it now has usurped its authority in the classical liberal, libertarian sense, and thus a second Declaration of Independence is quite justified:
http://www.solopassion.com/node/7231
But a state protecting the individual from the non-initiation of force, and with aggression, is wholly moral and proper. Indeed, is necessary for a free society. As is the rule of law.
Do you believe in the aggression of self defense?
Stranger,
Your “fallacy 8″ is false.
Even with complete freedom of copying, with neither limitations nor cost, creation remains scarce.
The inventor is just as much in demand as ever, their opportunity for profiting from their ideas just as available as ever, because until or unless they release their creations they have a 100% total monopoly on it. The inventor is, and always will be, first to market.
It is your imagination that is lacking, if you can come up with nothing other than coercive government grants of monopoly.
“Do you believe in the aggression of self defense?”
No. Self defense is not aggression.
Mark Hubbard,
There is a mix up here in the definition of “aggression”.
Libertarians define aggression as the initiation of force. Since self-defense is a reaction to force from another individual, it cannot possibly be a form of aggression. (Because a person defending themselves did not initiate the force)
No. Self defense is not aggression.
Good, I just wanted to establish the point.
Kinsella says:
being against aggression means opposing the state
The minarchist states role is to defend the property rights and liberty of individuals, that is, to stop the initiation of force – in that capacity, (including protecting IP), it is not an aggressor.
When the minarchist state is fulfilling its proper role, it is not an aggressor as Kinsella implies here (that must be opposed), and what he speaks to, therefore, is the overthrow of the legitimate state, an act of aggression against the individuals living within that state.
Kinsella said:
Creation is not an independent source of rights, becuase it leads to the notion that any THING you can think of can be owned;
You forget chronology: you have to prove you had the thought first. After that, I have no problem with this as a starting position. At least it doesn’t mean throwing away the notion of property rights in the entirety, and with it, liberty. Your argument often seems to be, ‘oh, this is rent with complexity’, therefore lets just do away with the notion of property ownership, per se. And I guess you’re right, if you don’t own anything, you cannot have it stolen. But you won’t find freedom in that.
Yes, there will be ludicrous cases, but that’s why we have law courts. In New Zealand I believe there has been a case where a company attempted IP over a colour: they didn’t win. Of course the problem in an anarchist society is that you’ve done away with the rule of law, and hence, law courts (have you?)
I asked another poster on another thread how could two ‘voluntaryists’, as he called them, enforce a contract: I never received an answer.
but it cannot; this inflation of rights destroys real rights (as Rand realized regarding positive welfare rights).
Wrong.
Welfare is to claim an entitlement to that which is owned by others, and for which they had worked for, and is reprehensible because of that. It is State sanctioned theft, an example of modern Statism out of control.
However, IP is a claim of ownership of the ‘products of mans mind’, an entirely different proposition. Whereas, I would like to point out, the view that the IP creator must sustain the whole cost of production, but then be left to see it being squandered by others taking the benefits, is a concept solely belonging to a welfare ethic.
The anti-IP argument is always thusly socialist and falsely philanthropic.
I. property is theft, apparently.
@Stephan Kinsella
Stephan, I agree with you in your view that the consumer rights are damaged by Trademark infringement, but isn’t the Original user of the Trademark also damaged?
Trademark is an Identifying mark or symbol of identity, like a signature. What if you ate at what you thought was RothbardBurger but was really LachmannBurger in disguise, as your example proposes, and decide after eating there that you will never eat there again. Perhaps you got food poisoning or found a Keynesian in your soup. You tell your friends about your experience at RothbardBurger and soon the word spreads that RothbardBurger is at best sub-par. RothbardBurger suffers loss of market that they had won before through honest business practices. Certainly the consumer is fooled, and according to you, damaged. But the true RothbardBurger is damaged as well by the fraud. Their reputation for good product and fair dealings is damaged. RothbardBurger may have also lost revenue because of advertising. Now, the fake RothbardBurger joint gets benefit from the legitimate businesses efforts.
I see the proper application of Trademark as the means of exercising personal presence in the market, whether that is for me as an individual or for my company. Positive identification is absolutely important to law and communication. If I as a consumer can not rely upon visible means of identifying a thing, then there is no way to support the idea of property of any kind. Who is the first occupier has no meaning if the identity of the occupier cannot be determined by obvious means. Contract law too suffers if identity cannot be determined. Who is the contract with? RothbardBurger or RothbardBurger?
Deefburger(so far, the one and only)
Of course the problem in an anarchist society is that you’ve done away with the rule of law
How do you figure that? Confused about the difference between anarchy and anomy? On the contrary: only in anarchy does the concept of “rule of law” even make sense!
Deef,
You don’t have a property right in your reputation, because your reputation rests in the minds of other people.
Deef,
You don’t have a property right in your reputation, because your reputation rests in the minds of other people.
Funny as heck! I love Jimmy. If he loses the SouthButt brand, he should brand himself, and then make sure NOT to sue anyone who takes liberties with his brand.
Go ‘git ‘em, Jimmy boy.
@ Stephan:
Granting that Trademarks and Copyright are categorized as two different things, could he still not cite Fair Use provisions on music parody as giving him legal ability to parody a company?
When Weird Al started releasing music there was a pretty big stir about copyright infringement and such, but the “Fair Use”.provisions kept him in the clear and the U.S. Supreme Court has upheld that ruling.
If that is not a usable defense in this case because it is Trademark rather than Copyright, then that seems like a weird inconsistency in the law (not that I am one to expect consistency from lawmakers, but all the same). Basically the question is, is Fair Use a usable defense in this case, and if not why not?
Hubbard:
“But a state protecting the individual from the non-initiation of force, and with aggression, is wholly moral and proper. Indeed, is necessary for a free society. As is the rule of law.”
Later on you seemed to agree that by “aggression” here you only mean (justified) force. Now, if the “state” only protects people, and does not commit real aggression (the INITIATION of force Rand opposed: does this ring a bell, Hubbard? — “”Whatever may be open to disagreement, there is one act of evil that may not, the act that no man may commit against others and no man may sanction or forgive. So long as men desire to live together, no man may initiate–do you hear me? No man may start–the use of physical force against others.—), then it is not a state. If it has no power to tax, and now power to compel citizenship or membership or patronage, no power to outlaw other justice agencies, then it’s not a state. And if it does have any of these powers, it’s committing aggression–it’s initiating force. It’s starting the use of force. So: consistent Objectivists are of course anarcho-libertarians.
Deefburger:
“Stephan, I agree with you in your view that the consumer rights are damaged by Trademark infringement, but isn’t the Original user of the Trademark also damaged?”
Maybe, but that is not necessarily a rights infringement. If I build a competing hamburger store across from yours, and persuade your would-be customers to patronize me, you’ve lost business and been harmed. But it’s not a rights violation. You don’t own the right to their business; they have the right to decide where to shop. Same with trademark: a person has a right to patronize a knock-off Burger King shop. If he’s defrauded, his rights have been violated, not the real Burger King’s.
“RothbardBurger suffers loss of market that they had won before through honest business practices.”
You never “win” business, certainly not a right to continuing business.
“Certainly the consumer is fooled, and according to you, damaged. But the true RothbardBurger is damaged as well by the fraud. Their reputation for good product and fair dealings is damaged.”
But there are no rights in reputation–in what others think about you.
“Positive identification is absolutely important to law and communication.”
We do not need the state or trademark law to permit communication and identification to occur. I deal with this explicitly in A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability, Journal of Libertarian Studies 17, no. 2 (Spring 2003): 11-37 [based on paper presented at Law and Economics panel, Austrian Scholars Conference, Auburn, Alabama (April 17, 1999)]; Dutch translation: Een Theorie over Contracten: Bindende Afspraken, Eigendomsoverdracht en Onvervreemdbaarheid, trans. Rene van Wissen, in Reply to Van Dun: Non-Aggression and Title Transfer, pp. 59-63.
Hubbard: “No, but this is the Ludwig von Mises Institute, and I’ve not seen a single pro-IP post. Not one. But look how many anarchist ones go up every day now.
There is not one jot of balance in the editorial approach, the result of which is a site that could be great, is sidelining itself as anarchist fringe. And with that goes the struggle for freedom, and the name of von Mises.”
Here is what Mises said about patents: Mises on Intellectual Property. Do you see any clear endorsement of it? He seemed uncertain, and just said if, then; it not, then.
Hubbard: Further, Mark, the reason so many misesians are increasingly anti-IP is that this issue has been neglected for decades, with a few pro-IP types like Rand, and the existing positive legal system, making people assume and take for granted that IP is a type of property; but now that the injustices of IP fascism are becoming magnified and clearer in this modern, digital age, people are looking at it, and because it is, in fact, unjust, they are recognizing this, in growing numbers.
Now, if the “state” only protects people, and does not commit real aggression then it is not a state.
Oh great, just re-define eveything to fit the cause.
Let’s have a proper definition of government:
http://pc.blogspot.com/2005/06/cue-card-libertarianism-government.html
Note, constrained via constitution. This one will do, a constitution for New Freeland:
http://www.freeradical.co.nz/content/constitution/index.php
consistent Objectivists are of course anarcho-libertarians.
They are anything but, and for all the reasons I’ve been giving in every post. I’ve never seen someone use the non-initiation of ‘force’ principle to justify so much that is heinous.
Do you see any clear endorsement of it? He seemed uncertain, and just said if, then; it not, then.
Even if I take you at your word, he could be read either way: well it’s quite evident which way Mises.org has taken it.
And I don’t believe he would have taken the looters view.
Further, Mark, the reason so many misesians are increasingly anti-IP is that this issue has been neglected for decades, with a few pro-IP types like Rand, and the existing positive legal system, making people assume and take for granted that IP is a type of property; but now that the injustices of IP fascism are becoming magnified and clearer in this modern, digital age, people are looking at it, and because it is, in fact, unjust, they are recognizing this, in growing numbers.
The lets throw the baby out with the bathwater approach. This is not arguing on principle. Law is complex, that is no excuse to deny property rights.
I know a lot libertarians, an awful lot, until I met thsi site, I’d not met one against IP. As I said you’ve turned this into a fringe site, and that is giving you a distorted view.
Hubbard, you seem to be quite the newb, so I’m wasting time with you primarily for the benefit of lurkers (and in the hopes you are just some young excited chap who will one day look back on this as days of youthful obsession with Rand Authority).
You attempt to give a definition of your favored government. You do not seem to understand the issues at stake. Let me try to summarize. First, you have been confused and mealy-mouthed on aggression: first you use it to mean “force” (whether justified or not), then you use it to mean “initiated force” (as Rand did, and as we do–that’s aggression).
You probably oppose taxation, since Rand said she did too.
The only question then, Hubbard, is whether this “government” you favor has the right to stop peaceful justice companies from operating. I have no problem with your “state” using force against criminals–even ones who are not “customers” of the state. They submit to the jurisdiction of the agents of their victims by committing the crime against the victims.
What I object to is your “state” using force against other companies providing similar services, or people using those other companies. For example if you and your Objectivist buddies set up a little utopian state, and all it does is not tax anyone, and use force against criminals who harm its citizens/customers, fine! But if I have my own agency that does the same thing–patrols streets, chases and captures, and convicts (real) criminals (yes, by force), then does your own agency initiate force to stop this? After all, this other agency is not violating anyone’s rights. it’s not committing a crime. It’s using force only against criminals, just as your agency is.
So the question is: does your little government maintain the right to use force against private defense and justice agencies in the vicinity? If it does, it is using aggression. If it does not, it’s not a state, it’s just one of many private defense agencies. And i suspect it would be; Galt’s Gulch was anarchist like this too. You guys just don’t want to admit it because you hate “hippies of the right.”
One more thing. If you maintain that your little government has the right to outlaw competition, then there is no logical stopping point, and you must favor one-world government (as some honest Objectivists begrudgingly admit when pushed), which is quite obviously the end of liberty.
If you favor a polycentric world of 200 states, why not 2000? 6 billion?
Hubbard, I don’t think you know many libertarinas. You might know Libertarians, or Objectivists. But almost all the libertarians I know are radical, Austrian, principled, anarchist, and very much anti-IP. Ask around in real libertarian circles. YOu’ll find that IP is favored only by utilitarians and Objectivists.
But the anti-IP argument is founded in utilitarianism!
Stephan Kinsella wrote:
“…But almost all the libertarians I know are radical, Austrian, principled, anarchist, and very much anti-IP….”
I wonder why that would be. Hmmm…. Well, gee, look where you hang out. This is like Pauline Kael, the film critic from the New Yorker, who couldn’t understand how Nixon was elected, because she didn’t know a single person who voted for him.
“…Ask around in *real* [emphasis added] libertarian circles. You’ll find that IP is favored only by utilitarians and Objectivists.”
*rolls eyes*
Isn’t it interesting, Mark, that a man who doesn’t believe in IP thinks that he owns the word “libertarian”, and gets to define who is and who isn’t one?
Hubbard: “But the anti-IP argument is founded in utilitarianism!”
this is ridiculous. IP is fonded in utilitarianism. Look at the Constitution! It’s in there to stimulate innovation. The anti-IP argument is principled–you obviously have no read my Against IP.
Russ: “I wonder why that would be. Hmmm…. Well, gee, look where you hang out. This is like Pauline Kael, the film critic from the New Yorker, who couldn’t understand how Nixon was elected, because she didn’t know a single person who voted for him.”
hahah.
“”…Ask around in *real* [emphasis added] libertarian circles. You’ll find that IP is favored only by utilitarians and Objectivists.”
“*rolls eyes*
“Isn’t it interesting, Mark, that a man who doesn’t believe in IP thinks that he owns the word “libertarian”, and gets to define who is and who isn’t one?”
ahhaha. Well, now that Rothbard’s gone, the title’s open for homesteading…
It would seem that reputation, goodwill, is extremely valuable and that this value can be destroyed by lying. I’m curios though. Is the North Face brand owned by a person or a corporation? Probably the latter.
There is a big difference between personal slander and brand integrity. How much of the discussion about IP addresses this issue?
(How many legs does a cow have if the supreme court calls its tail a leg? Four.)
Funny to see Russ’s only real passion drive him into a zany alliance with Hubbard here. I’m rolling.
Such weak sauce. Anyone may define anything they want, Rusty. It’s the accepting by others, that’s the thing. Let Kinsella and Hubbard each define libertarianism & we’ll listen. Who in your opinion is more learned on the subject? It’s a joke. Not trying to kiss up to Kinsella, really, but it’s Ali vs Don Knotts. I was actually cringing for Barney reading the above.
Give us your definition too while you’re at it. Make sure to tell us how domestic “HUMINT” fits in. No, no, that’s alright, I already know how: American animals are *more* equal than Muslim animals.
(How many legs does a cow have if the supreme court calls its tail a leg? Four.)
Five in court, four in the field, and zero at the meat market.
@Stephan Kinsella
“But there are no rights in reputation–in what others think about you.”
“You never “win” business, certainly not a right to continuing business.”
This is true, I’ll grant you that. But I’m having difficulty with the idea that only the consumer has a claim against the fraudulent use of identity. If this is so, then how is one to make a claim on the fraudulent use of any positive identification mark or attribute, such as a signature? It is this form of IP that has direct value to us as individuals and the only one I can see that is a scarce resource. Multiplicity in use identifying marks as leads to a breakdown in communications, very much as the duplicate IP address creates a breakdown in Internet communications. (I don’t want any hair splitters pointing out dynamic allocation! At any given moment the addresses are unique no matter how they are distributed or assigned. The example is of a working system.)
Certainly it can be argued that many people have the same name and there is no problem. But that is an over simplified form of ID. ID generally incorporates other related forms of ID that narrow the scope of identification for legal and communicative purpose…..
Never mind! I just answered my own question!
By the way, the first letter of a new sentence is generally capitalized, as in “This is ridiculous.” Improper use of capitals makes you appear pissed off and “crankish”.
(poke)
What about Jordache v Lordashe? Wouldn’t that precedent help The South Butt? Both companies sold the identical product. Lordache prevailed, the 10th circuit ruled that the consumers are smart enough to know the difference.
Jordache v. Hogg Wyld Ltd. appears to help South Butt’s case, and South Butt almost certainly will cite it. However, when reviewing the district court’s findings of fact with respect to the similarity of the marks, the 10th Circuit Court of Appeals noted the significant dissimilarities between the JORDACHE mark and the LORDASHE mark. Namely, Lordashe’s mark contained a bright pink pig that was “striking and brightly colored,†while Jordache’s horse head and script lettering appear on a small brown patch. The similarity of the marks is weighed in a “likelihood of confusion†context (i.e., not in a dilution claim), but from this determination you can already see that the court does not believe that these marks are very similar. In contrast, the only notable, distinguishing difference between the South Butt’s mark and The North Face’s mark is the words, but even those words are in the same type face.
Additionally, the Jordache case was decided under New Mexico’s antidilution statute which, at the time of the Jordache case, had never been interpreted. Notably, the 10th Circuit does not scrutinize the district court’s application of that statute at all. On the issue of dilution by blurring the 10th Circuit, restates the district court’s holding and finds them not to be clearly erroneous. On the issue of dilution by tarnishment, the 10th Circuit quotes a variety of case law, states the district court’s holding, states that they have examined the record, and upholds the district court’s finding. In other words, the 10th Circuit is extremely deferential to the district court’s interpretation of a case of first impression in New Mexico. In contrast, The NorthFace has sued under the Federal Anti-Dilution statute which has been interpreted numerous times in a variety of contexts.
The antidilution issue is a close one, but The North Face will certainly be able to distinguish the Jordache case for a number of reasons.
Dear Mark Hubbard,
> The minarchist states role is to defend the property
> rights and liberty of individuals, that is, to stop the
> initiation of force – in that capacity, (including
> protecting IP), it is not an aggressor.
However, by denying other providers the ability to provide the same services (defending rights and liberty of individuals) to willing customers, even a minarchist state is an aggressor.
Furthemore, the economic calculation problem applies also to the production of security. Without pressure from competition, there is no need to efficiently use the resources or to satisfy the customers, or even any way of determining what would constitute the efficient use of resources or customer satisfaction.
Deef:
“”You never “win” business, certainly not a right to continuing business.”
“This is true, I’ll grant you that. But I’m having difficulty with the idea that only the consumer has a claim against the fraudulent use of identity. If this is so, then how is one to make a claim on the fraudulent use of any positive identification mark or attribute, such as a signature?”
I address this in the Frank Van Dun article I mentioned earlier. We do not need the state or IP to COMMUNICATE. Communication is all you need to establish fraud claims. That’s all.
@Stephan
I’m beginning see to that. I’m reading “A Libertarian Theory of Contract:..” now and re-examining the problem.
In the case of Creative Commons vs. Copyright, it is the nature of communications that raises the value of the authorship over the content, not just because the author is more important but because the spread of the name itself helps both the market and the author to communicate. Whereas the Copyright makes such communication more difficult.
This issue is a difficult one for many, including me, because the issue only arises in the real world in market scenarios. So we tend to fall back on IP issues as value oriented issues. It is only upon examination of natural law, and utilitarian attributes and how they fit together that we begin to see the falacy of value arguments.
Dropping a thought is not the same for us as dropping a stone. The thought does not fall away from our minds immediately upon loosening our grip.
Must every thread cover the same ground regarding IP? Surely every article tangentially related to IP does not need to be dominated by Stranger and Hubbard making the same arguments against Kinsella…
For instance, while I would be interested in what Stranger and Hubbard have to say about this specific case (South Butt), they did not even address it, but instead immediately copied text from other threads and continued them here, ignoring the subject of this thread entirely.
Obviously I can’t tell anyone what to post (or not to post), but I can at least make a polite request that people confine their discussion in a thread to the topic of the thread, at least initially. If the argument progresses to other issues so be it, but it shouldn’t start with them.
Must every thread cover the same ground regarding IP?
Start your own website and post whatever you want on it.
Heck, start your own think-tank. Call it the Anthony Institute for Discussing Whatever Anthony Wants To Talk About.
To be fair, this argument has bled into other posts that have nothing much to do with IP. I for one would like it if it stayed put in areas where IP is the main topic, but, the “market” for discussion goes where it will.
As far as covering the same ground goes, that will depend on how far in their understanding and the discussion they are willing to go. I like learning of a new point of view and shifting my perspective to examine the issue from the new perspective. If new truth comes to light, great, if not, find the flaw there and move on to the next point. That is what it takes to hash out a discussion.
If you can’t move away from your comfort zone long enough to examine an alternate view point, you are not learning anything, just getting more frustrated and afraid of the alternate view point. You won’t learn anything that way!
My advice to some posters here: Grow a pair, take a deep breath, and move off of your hallowed ground. Bravely assess the new view point and thoroughly examine it.
I think it was Einstein who said, “Insanity is doing the same thing over and over again expecting different results each time”. I think that is the definition of Stupid. Insanity is doing the same thing over and over again, knowing you will get the same results, and doing it anyway, because you have deluded yourself into thinking there is no other way.
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