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Source link: http://archive.mises.org/11574/authors-dont-make-the-buddy-holly-mistake/

Authors: Don’t Make the Buddy Holly Mistake

January 30, 2010 by

In Authors: Beware of Copyright, Jeff Tucker warns authors to be careful with their publication agreements not to alienate their books and other works. A good illustration of this peril is found in the case of Buddy Holly and his recording contract with Decca. As reported in Buddy Holly’s secretly recorded contract negotiation with Decca,

In 1956, Buddy Holly traveled to Nashville to record several songs. One of the songs he recorded was “That’ll Be The Day”, but the producer assigned to his sessions (Owen Bradley) hated rock n’ roll, and did a terrible job on the song. After that, Buddy traveled to New Mexico and re-recorded “That’ll Be The Day” (the version that became the monster hit) at a different studio with his own (superior) arrangement, but according to his contract with Decca, he couldn’t release it, because Decca owned all rights to his music. He decided to call Decca, to try reason with them, and he secretly taped his conversation. They refused to give him the rights to his own song, but he went ahead and violated his contract. Here is the conversation he secretly taped.

Listening to Holly pleading with the masters he has alienated his rights to is heartbreaking. Decca had dropped him, apparently, but had the rights to sit on his recordings for 5 years. Although they had no intention of releasing the songs, they also would not give Holly permission to do so–the cigar-chomping executive kept saying “well, we got a lot of money tied up in them, Buddy!” But Holly offered to reimburse those costs; no dice.

Authors: do not let this happen to you. When you publish a book, consider publishing it yourself on Amazon/Kindle (or, soon, iBooks/iPad) or LuLu. Or persuade the publisher to let you post an online version for free. At least make sure the publisher will offer a kindle and ebook version. Negotiate, at the very least, the right to post the work online for free after, say, 3 or 4 years, when sales have petered out.

{ 130 comments }

Guard January 31, 2010 at 3:07 am

The newbs, amateurs and lurkers are laughing.

Mark Hubbard January 31, 2010 at 3:47 am

Answer my question, newson. Your prevarication is showing your thieving sanction for what it is. Theft.

newson January 31, 2010 at 4:41 am

yes, i have borrowed books, and shared them. i stand guilty of rand-crime.

newson January 31, 2010 at 4:44 am

hubbard’s never once taped a tv or radio programme. bill clinton never inhaled either.

Richard Allan January 31, 2010 at 8:15 am

Unless I’m mistaken, the argument is that Buddy shouldn’t have had to obey the contract because it contradicted his ownership of his own body. By saying “I promise not to do ABC with my body for the next 6 years” he was effectively selling himself into slavery. If the recording company wanted to impose conditionality on his use of their equipment, they should have made him sign a contract saying “In the event that I record a copy of this song elsewhere, I promise to pay $X to the recording company.” Where “X” might be “the amount I earn in royalties from that recording”, mightn’t it?

But if that’s the case, doesn’t it mean that I can sell myself into slavery by saying “I promise to pay all my wages to Y in perpetuity”? I guess you could stop working in that instance… but what about “I promise to pay Y $30,000 per year in perpetuity?” If you violate that contract, you have to pay back whatever you received in return. If you haven’t got it, you have to work to pay off the debt… which might take you forever. Ah well.

Artisan January 31, 2010 at 8:20 am

I like the new softer Mise’s approach: it’s a deeper level of understanding IP. Less polemical.

I’d like to call it “sticky contracts” theory.

Go figure why so many authors sign those bad copyright conditions? If there was a free market, then it’s obvious that some (big) publisher would offer at some point: We both get the best deal if publisher is paying only 3 pc royalties instead of 6 pc while he allow them authors say, to publish within two years, the same book on their own.
Why have I never heard of it?

Misesian January 31, 2010 at 8:28 am

I’m usually with the Mises crowd on most issues. This is one where we will have to agree to disagree. For me…Buddy, simply signed a “crap” contract. As much as I love Holly…he screwed himself. Let’s ignore the fact that he’s Holly. If I go to a record company as a “nobody” and they spend time and energy as I’m allowed to lay down tracks. Use my ideas and turn them into physical/tangible and reproducible good and then sign a contract whereby they have the right to own some of the royalties for five years or can do with it as they please…then so be it.

A bad contract, is no defense when it is being breached…I think emotions are running high here because of the person WE ALL feel bad for.

JAlanKatz January 31, 2010 at 8:45 am

I do not find the comments regarding contract persuasive. The question is not my ability to write a contract – physically I have the ability to write a contract for anything. The question at stake is what to do in cases of failure. In other words, just what does a contract commit me to? If we contract to exchange 3 apples for 2 oranges, and you give me 3 apples, and the date for orange-payment comes and I have no oranges, what happens? Certainly I am not compelled to go out and get some oranges and give them to you – a contract cannot demand a literal performance bond. I must give you back your apples, plus some penalty. Presumably, our contract included such a provision, or the name of an arbitrater who will set the penalty amount. If not, we’ll have to agree on an arbitrater now.

Similarly, we should not think here that such a contract literally compels Buddy Holly to not make use of his own body by pressing certain strings in certain ways on a guitar.

Stephan Kinsella January 31, 2010 at 9:15 am

JAlanKatz:

“The question is not my ability to write a contract – physically I have the ability to write a contract for anything. The question at stake is what to do in cases of failure. In other words, just what does a contract commit me to?”

Exactly. This is the right question.

“If we contract to exchange 3 apples for 2 oranges, and you give me 3 apples, and the date for orange-payment comes and I have no oranges, what happens? Certainly I am not compelled to go out and get some oranges and give them to you – a contract cannot demand a literal performance bond. I must give you back your apples, plus some penalty.”

No. This cannot be right. THe title to the apples transfers completely on day 1, so that you may use them. It is NOT conditional. You have already used them up by the time you owe the oranges. The oranges may not exist and the apples may not exist (or you may no longer have title to the apples). You can’t have an obligation to “Return” the apples any more than you can to hand over non-existent oranges. There is no “theft” because there is nothing to steal. Thre is no fraud either. There is only a trigger of a subsidiary title transfer–a continuing obligation to pay monetary damage plus interest, say; or an obligation to transfer apples in the future when and if you get them, etc. I discuss all of this in detail in my contract and inalienability pieces available at stephankinsella.com. We really don’t need to reinvent the wheel here.

Stephan Kinsella January 31, 2010 at 9:17 am

Misesian, why do you say you disagree with us? We agree Holly signed a bad deal. That’s why we are exhorting authors not to do something similar. What exactly do you disagree with?

Stephan Kinsella January 31, 2010 at 9:32 am

The confusion above where some amateur insists that if you breach a contract it’s “fraud” is precisely why they hold confused notions about IP. To them fraud is basically some type of dishonesty or “cheating reality” that is somehow fuzzily connected with the idea of contract breach or rights violation…they don’t really know.

Let’s take a clear case. A loans $100 to B. B is to use this to build a fence,and is supposed to pay $110 to A in a year, on day 366. To build the fence, B has to buy materials. To buy materials, he has to spend the $100. To spend the $100, he has to have full title to it already. It cannot be conditional on some event 366 days in the future–if it was he could never use it, and why borrow the money in the first place? The loan is supposed to be a bridge between time periods.

So, on day 366 let’s say B is unable to repay. It’s a breach of contract, fine. But is it “fraud”? Of course not. How can “being penniless” be an act of fraud? Is it theft? Of what? It’s not theft of the original $100, which was given 100% to B, by A, for B to use, in excahnge for a future-title transfer of $110, with A knowing (because the future is uncertain) that B might not be able to HAVE the $110 on the due date. So there is and can be no theft by B, of the original $100. Theft implies no consent, but B had A’s consent to take and use the $100.

Is it theft of “the” $110? WHAT $110? B doesn’t have it. How can you steal something that does not exist?

So: no theft. No fraud. Just a contract breach.

As for fraud: Fraud is when you obtain money under false pretenses. It’s basically “theft by trick.” If A loaned B the $100 based on B’s representation that he was an employed pipe-fitter who lived in the area at 123 Mulberry lane (so that it appeared likely he could repay the loan), while in reality B had a different name, was unemployed, and was just passing thru, and intended to take the $100 and use it for gambling and not for a fence, and to never repay it–that is fraud. B would be taking possession and using A’s money when he knows it’s not with A’s consent, since A’s consent is conditional–conditioned on B’s truthful represetnations about his identity and purpose and intentions, etc. THAT is a case of fraud. Merely failing to fulfill a contract at a later time is not and has absolutely nothing to do with fraud.

Again: I direct newbs to http://blog.mises.org/archives/009367.asp and http://blog.mises.org/archives/005327.asp. Also see my Reply to Van Dun: Non-Aggression and Title Transfer, pp. 59-63.

Brian Macker January 31, 2010 at 10:47 am

David Bratton,

Copyrights are not government granted monopolies, they are government enforced rights.

If someone like Buddy Holly decides to sell those rights for money to an corporation, and was not swindled in the process then so be it.

You either believe in contract law or you don’t. All I see here is Buddy Holly making a bad business decision.

Brian Macker January 31, 2010 at 10:59 am

Stephan,

Certainly it isn’t fraud of theft for B not to repay the money due to circumstances outside his control. However, it becomes fraud if B claims he no longer owes A the money, and theft if he refuses to ever repay it even when circumstances change.

The contract is breached when a performance date is not met but depending on B’s further actions there can be other offenses committed.

Certainly A did not consent to forgive B’s loan 366 days in the future if the bank happens to be closed and B forgot to take out the cash. Which is certainly a reason that could cause non-performance on that date that is out of B’s control on that day.

Brian Macker January 31, 2010 at 11:15 am

“Similarly, we should not think here that such a contract literally compels Buddy Holly to not make use of his own body by pressing certain strings in certain ways on a guitar.”

Why not? It’s certainly not impossible for him to perform on the contract, and in fact it takes effort for him to violate it. Also he has not somehow sold himself into slavery because he is still able to perform any other song, or do any other job he wants to.

Stephan Kinsella January 31, 2010 at 11:44 am

Macker: “certainly it isn’t fraud of theft for B not to repay the money due to circumstances outside his control. However, it becomes fraud if B claims he no longer owes A the money, and theft if he refuses to ever repay it even when circumstances change.”

It’s fraud if you claim you no longer own money? Really?

Stranger January 31, 2010 at 11:52 am

And now we are seeing the full slippery slope of intellectual communism – in order to continue denying the validity of intellectual property, the communists must destroy money and contracts as well.

Mark Humphrey January 31, 2010 at 12:01 pm

Responding to Kinsella:

“Nonsense. We do not believe there are rights to free speech–there are property rights, and free speech flows from this as a consequence. Does that mean we oppose free speech. Don’t be ridiculous and simplistic–just one of them at a time, please.”
You’re attacking a straw man. Nothing I wrote implies the position you’ve attributed to me here. Of course free speech presupposes property ownership.

“Wrong. the state enforces murder law ; that dosn’t mean murder is legitimate. It’s the fact that IP is possibly *only* wiht a state that makes it invalid.”

Not so fast. You claim that “information property” is possible only “with a state”, but that’s simply not true. As I wrote earlier, the creator of ANY product can restrict the terms of sale to prohibit unauthorized reproduction by copy cats. That the government enforces contracts, just as it enforces criminal law, does not negate the right of creators to restrict the terms under which they might agree to sell their creation to a buyer. The main point to keep in mind is that all property results from applying ideas to physical reality. “Information property” is based on spurious distinctions and is therefore misconceived.

“I’m not religious. Now what do you say?”

I say my larger point stands: the ideas we favor about ethics and politics do not spring from nothing, but tend to align logically with our fundamental philosophical premises. My point is that one’s conception of knowledge, which necessarily incorporates prior ideas about free will, the nature of thought, and metaphysics, is likely to influence one’s ideas about “intellectual property”.

Obviously, I don’t know what Steven Kinsella thinks about any of this. However, I do know that we live in an age of philosophical nihilism, in which nearly everyone believes that understanding ultimate issues is impossible to man. The left is explicitly contemptuous of the the individual mind. It sneers at free will, denies the validity of the senses, denigrates reason as illusory. The main force aligned against the left is religion, which tends to be culturally conservative but also denigrates reason as “limited” and “unreliable” when applied to ultimate issues.

If reason were useless in understanding the most important issues of human existence, then free will–the voluntary exercise of reasoning effort–would tend to be viewed as mundane and ultimately unimportant. Ideas are (properly) the product of reason and the exercise of free will–both held to be illusory or ultimately unimportant. Against this background, how important–morally valuable–could ideas be?

Ben Ranson January 31, 2010 at 2:21 pm

I think context is important here.

At the time, the record company business model was different than it is now. The process was basically as follows: First, and artist and repertoire man would find a talented performer. Frequently, producers such as Owen Bradley and Paul Cohen would double as scouts.

After the new singer was signed, the company would choose the songs to be performed (the repertoire in A and R). The most common origin for popular songs at the time were the staff writers at publishing companies, which were often owned by the record labels. Sometimes producers, arrangers or singers also wrote songs.

Nashville producers such as Chet Atkins and Own Bradley would then arrange the songs, bring in musicians to play them, direct the session and record them.

Atkins and Bradley worked very hard at keeping costs down, and at producing a consistent high-quality product. They almost always used the same highly-skilled sidemen who were very used to the process and could be counted on to give a good performance while using minimal studio time. At the time most work was done “in house” in studios owned by the record companies. Recording equipment, engineers and space were expensive. According to the Wikipedia, RCA’s Studio B, (where Atkins did most of his work) which was built to compete with Bradley’s Quonset Hut “was opened in November 1957 at the cost of $37,515.”

Singers had only a limited input in the process. Recording was too expensive to do anything except leave it up to professionals. The idea of the self-produced artist simply did not exist. Singers who wrote their own material, such as Buddy Holly or Hank Williams were exceptional. Most singers did not.

After the recording was completed, the record company still had to invest a great deal of money on pressing and promotion.

The process, on the whole, was performed almost entirely by the staff of the record companies. The songwriters, arrangers, producers and side-men were all employed by the record company. This is in contrast to today, when most of these jobs are performed independently of the record labels.

The hit making machinery the labels assembled was not guaranteed. If a song or arrangement was not a hit for one singer, the producers would frequently reuse the song and arrangement with a different singer. This is one reason why Buddy Holly’s contract would have included a provision barring him from re-recording songs for a period of years.

It is likely that Decca would have regarded songs written by Holly while he was under contract in much the same way as material produced by any other member of the staff. In the recording, when Paul Cohen says that Decca may eventually release the recordings, he may mean that Decca might eventually release them WITH A DIFFERENT SINGER.

It seems to me that the issue of intellectual property has almost nothing to do with Buddy Holly’s problems. I can’t imagine a way for a company in the business of making records (at the time) to have operated without putting clauses in the contracts of their staff writers, arrangers and producers that would prevent them from writing material on the company’s time and then selling it elsewhere.

David Bratton January 31, 2010 at 2:30 pm

Brian Macker :”Copyrights are not government granted monopolies, they are government enforced rights. ”

You are just playing word games. The right you are alleging is a monopoly right.

I think the confusion stems from a failure to discern reality from a verbal abstraction. Intellectual property is an activity, not an objective entity. It is only referred to as “property” as form of verbal sleight of hand designed to invoke sympathies associated with property. IP is the act of forcefully limiting the use others have of their property in order to artificially inflate the value of one’s own property. All the arguments defending IP are just rationalizations for the first use of force.

Mark Hubbard January 31, 2010 at 3:38 pm

David Bratton said:

IP is the act of forcefully limiting the use others have of their property in order to artificially inflate the value of one’s own property.

Oh, so you admit IP is property then.

And this is wrong anyway. I’ve said before, I want a monopoly over the use of all my property, my car, my house, my IP. Not to inflate its value, but just so it isn’t stolen. That is property rights, the only basis on which freedom can exist.

I think the confusion stems from a failure to discern reality from a verbal abstraction. Intellectual property is an activity, not an objective entity.

Anarchists just love belittling man’s effort and mind to collective patterns belonging to the hive mind with no possibility of individuality or uniqueness. This, for me, is also partly why this debate is so important, and why the anarchists are so evil.

By stating ‘verbal abstraction’ you thereby preclude an individual’s ability to have original ideas, and taking this through, to ownership of their words on the page, a tune, melody, etc.

You always end up having to demean entirely human effort and originality. You actually have to deny the sharp edges and discrete nature of ‘the individual’ – once you’ve done away with the individual like this, why do you even concern yourself with the economics of freedom based on the actions of individuals? You’ve ‘killed’ the individual, thus freedom, for you, is irrelevant.

Somewhere in all this, also, there is the definition of objective, and objectivity. I’ve just read the below on another blog (http://www.solopassion.com), on a thread about the case for objectivist ethics, and I am convinced it fits into this debate, I’ve just not been able to work it all through yet. Here’s the passage:

It’s failure to realise that objectivity comes from interaction between the internal and external worlds that is their problem; they see such interaction as disqualifying its conclusions from the realm of objectivity altogether. To them, a thing can be objective only if it comes from God and there’s no whiff of a human being anywhere. According to Goode in an earlier thread, the good, or should I say, The Good, exists whether human beings are here or not (he may not have said it as committedly as that). I believe that winning our adversaries over to a de-dichotomised, authentic notion of objectivity is even harder than weaning them off altruism, collectivism and all the rest. And more important!

http://www.solopassion.com/node/7321#comment-84046

Sean H January 31, 2010 at 3:41 pm

Mark Hubbard says:

“You claim that “information property” is possible only “with a state”, but that’s simply not true. As I wrote earlier, the creator of ANY product can restrict the terms of sale to prohibit unauthorized reproduction by copy cats. That the government enforces contracts, just as it enforces criminal law, does not negate the right of creators to restrict the terms under which they might agree to sell their creation to a buyer.”

It would be nice if we could focus on this particular contention. The pro-IP people say that IP does not result from government decree, but is instead the product of the “creators” inclusion of restrictions on reproductionin any contract for sale. However, this fails to say anything about how someone who has never entered into such a contract is bound to adhere to this restriction. I think these forum debates would prove much more fruitful if participants would focus more on this question. I request this in part because I’m a law student in the midst of my final semester, and have concentrated my studies primarily in the IP realm. Thanks in advance to anyone who responds focusing on the particular issue mentioned above.

David Bratton January 31, 2010 at 6:21 pm

@Mark Hubbard:
“Oh, so you admit IP is property then.”

Only your paper and ink are property. Your words are not.

“And this is wrong anyway. I’ve said before, I want a monopoly over the use of all my property, my car, my house, my IP. Not to inflate its value, but just so it isn’t stolen.”

No it’s right.You are simply begging the question. Whether IP is or is not property is what we are debating. BTW the poster I was replying to was asserting that IP is not a monopoly.

“By stating ‘verbal abstraction’ you thereby preclude an individual’s ability to have original ideas, and taking this through, to ownership of their words on the page, a tune, melody, etc.”

LOL Just by by stating it?


“Somewhere in all this, also, there is the definition of objective, and objectivity. I’ve just read the below on another blog…

It’s failure to realise that objectivity comes from interaction between the internal and external worlds that is their problem; they see such interaction as disqualifying its conclusions from the realm of objectivity altogether. To them, a thing can be objective only if it comes from God and there’s no whiff of a human being anywhere…

Dictionaries are a better source of definitions than blogs. The reason I do not realize that “objectivity comes from interaction between the internal and external worlds” is because the definition of objective precludes it. And BTW I’m not religious so I don’ know where you’re going with that.

Peter January 31, 2010 at 6:44 pm

But of course, Kinsella’s most oft used argument is: this singer made a bad contract, oh shit, let’s push the anarchist agenda, we better do away with the whole concept of owning anything to make a contract over.

I don’t understand this response. I don’t know whether you misread Stephan’s post or are deliberately pretending to misunderstand it to give yourself another excuse to rant, but I’ve reread it twice and can’t see any indication of Stephan wanting to (a) do away with property, or (b) do away with contracts. What he said is “Listening to Holly pleading with the masters he has alienated his rights to is heartbreaking. Decca had dropped him, apparently, but had the rights to sit on his recordings for 5 years” — note: “had alienated his rights to”, “Decca had the right to …”. There’s no suggestion that the contract between Holly and Decca should be cast aside. He’s just warning people not to agree to such contracts.

And of course the argument that goes if you take Buddy’s guitar he can no longer play it, so that is theft, whereas if you deny him income by simply file sharing his earning ability [...] that is not theft.

What if you deny him income by not buying his record? Or by publishing bad reviews, so that other people don’t buy his record — is that theft, too? Must be!

Peter January 31, 2010 at 7:34 pm

I’ve said before, I want a monopoly over the use of all my property, my car, my house, my IP,

my slaves, my planets-orbiting-other-stars (hey, if I call them “property” and say they’re mine, then that’s what they are! Screw you looters who want to steal them from me by claiming they’re not my property to begin with…)

Mark Hubbard January 31, 2010 at 8:35 pm

Yes Peter. Thank you for confirming the anti-IP lobby doesn’t believe in property, and private ownership of. Of course, remember that other document that denounced property:

Private property must, therefore, be abolished and in its place must come the common utilization of all instruments of production [including man's mind] and the distribution of all products according to common agreement – in a word, what is called the communal ownership of goods [and the minds of individuals].

Manifesto of the Communist Party

Oh look – http://www.marxists.org/archive/marx/works/1848/communist-manifesto/index.htm

Copyleft: Marx/Engels Internet Archive (marxists.org) 1987, 2000. Permission is granted to copy and/or distribute this document under the terms of the Creative Commons Attribution-ShareAlike License.

The manifesto of the Communist party is published under Creative Commons. Why am I not surprised.

By the way, in relation to your post before the above, look at every Kinsella post in totality: his modus operandi is very evident.

Old Mexican February 1, 2010 at 1:10 am

Re: Mark Hubbard,

The neo-Rothbardians who own the Mises Institute are devoted to the notion that property rights are incompatible with literary and musical products.

Nonsense. What is being argued is that Intellectual Property is incompatible with the concept of PROPERTY as it is understood by economics.

Copyrights are enforced by the government, they muse; therefore rights to literary endeavors must be ethically tainted and corrupt.

You have it exactly backwards. Precisely because IP is NOT property, it has to be enforced artificially by a government, THEREFORE Intellectual Property is a government-granted monopoly and thus incompatible with the concept of Property as understood by economics.

Private property rights to one’s writing are no different, in principle, from one’s proper ownership of any other form of property.

Sure – as long as the author does NOT publish. He can perfectly own the sheets of paper where he scribbled universally recognized symbols in a certain pattern. He cannot however own the pieces of paper with scribbles placed in the same pattern that someone else owns – this is where IP becomes a property transfer by government fiat.

One doesn’t own the words that appear on one’s written page. One owns the written page!

Agreed – HIS page, his piece of paper. But he does not own someone else’s piece of paper just because the scribbles in that piece of paper happen to match the scribbles in HIS piece of paper. The two pieces of paper are different.

For owners have the right to set the terms of the voluntary exchange of their property, which may include prohibiting unauthorized reproduction.

Only between the two parties that exchange. You cannot bring a 3rd party to an agreement without HIS approval, which is what IP laws actually do – bring 3rd parties to agreements others did, unduly.

Copyright law is an imperfect attempt to legally codify this rightful condition of exchange by writers and artists.

If IP requires copyright law in order to conjure it into existence, then it cannot be property. Property exists by virtue of the self-ownership principle and scarcity, not because of the State’s say so.

All property is created by the application of one’s ideas to physical reality.

This is false. Property is NOT created, it is OBTAINED.

An inventor or writer may have scarce and valuable ideas that she uses to create a physical product.

You’re committing a fallacy of composition – just because the resources used to create a product are scarce does not mean the idea is scarce. Ideas are NOT scarce: they can spawn with no limit in people’s minds.

Mark Hubbard February 1, 2010 at 3:08 am

Hey Mexican Looter: buy some glasses, you’re not even quoting me.

Though the anti-IP argument is the sanction of theft, have no doubt about it.

Thus just for the record: you are a looter, an immoral shite, fostering the no-work ethic, in our current nihilistic generation of the looter.

The scarcity argument is pure bullshit, it comes after the IP has been created.

Plus, to copy myself from another thread in here:

I remember my Damascus moment also. My granddaughter showed me her hard disk and said, look granddad, all this music, Bounce or Beyonce or something, Madonna, Britney Spears, U2, and I didn’t have to pay anything for it. I’ve chucked in my paper round, no need to work, I can get everything I want, and it’s free. This free enterprise system you keep talking of, I love it.

I thought, oh shit …

newson February 1, 2010 at 3:14 am

hubbard’s never taped a tv programme, never a radio programme. yeah, right.

newson February 1, 2010 at 3:34 am

yeah right, hubbard. your granddaughter is a crim, and you’ve never taped a tv or radio show in your life. sounds believable.

Bala February 1, 2010 at 4:22 am

Mark Hubbard,

” The scarcity argument is pure bullshit, it comes after the IP has been created. ”

Chronology is utter nonsense as a BASIS for property rights.

For the record, you are yet to refute this basic argument of mine….

Rand said

“Rights are moral concepts defining and sanctioning man’s freedom of action in a social context. Rights are a recognition of a condition of existence essential for the survival of man qua man.”

To this, I added the following. For man to live qua man, he needs to free to act as per the judgement of his rational mind and face the consequences thereof. Action implies the acquisition of material and non-material objects for application in the service of his own life.

The metaphysical nature of material objects requires exclusivity because it in the absence of exclusivity, freedom of action is metaphysically impossible. In the case of non-material objects like ideas and patterns, simultaneous instantiation of an idea by any number of people does not affect the freedom of action of any of them including the originator of the idea/pattern. Since freedom of action is metaphysically possible even with simultaneous instantiation of ideas and patterns by many people, exclusivity is not an essential condition for the freedom to act to apply such non-material values in the service of one’s own life, i.e., for man to live qua man.

Thus, it is absurd for an Objectivist to claim that ideas and patterns deserve property status.

Unless you show me where this is wrong (and for the record, you haven’t yet grappled with this argument; not here; not on solopassion), you are just sounding like a scratched gramaphone record or a poorly trained android..

I could descend to the level of your language too, but since that would be a DESCENT, I am choosing not to.

Kerem Tibuk February 1, 2010 at 6:55 am

“Chronology is utter nonsense as a BASIS for property rights.”

This one is a gem.

Can an effect precede the cause?

Peter Surda February 1, 2010 at 7:10 am

Dear Kerem,

> This one is a gem.
Indeed. It is a gem because none of the IP proponents so far seems to comprehend the consequences of this issue.

> Can an effect precede the cause?
No, but cause is not a sufficient condition for ownership. You failed to address my last objection to you, in that you didn’t explain how to distinguish between immaterial goods that can be owned (IP) and those that cannot (externalities).

Brian Macker February 1, 2010 at 7:12 am

“It’s fraud if you claim you no longer own money? Really?”

Yes, if you owe the money it is. You are trying to defraud the lender of what you owe him, by lying.

Brian Macker February 1, 2010 at 7:22 am

David Bratton,

“You are just playing word games. The right you are alleging is a monopoly right.

I think the confusion stems from a failure to discern reality from a verbal abstraction. Intellectual property is an activity, not an objective entity.”

I’ve gone over this before. “Intellectual property” is a misnomer. The copyright owner retains coownership in all copies of his physical item, and that is what his rights apply to. It just boils down to physical property rights. What the government is really enforcing is his physical property rights of co-ownership of the book/record/DVD. Such property rights are established by the author when he sells his physical property.

No monopoly need be established. It’s quite clear that any copy of his physically owned object requires a misappropriation of his property. People who have not misappropriated his property are perfectly free to do whatever they like with their own property and to sell whatever they want.

Stephan Kinsella February 1, 2010 at 7:37 am

macker: “”It’s fraud if you claim you no longer own money? Really?”

Yes, if you owe the money it is. You are trying to defraud the lender of what you owe him, by lying. ”

Got it. It’s fraud because you are trying to defraud someone! It’s so easy!

Stephan Kinsella February 1, 2010 at 7:58 am

Macker:

” The copyright owner retains coownership in all copies of his physical item, and that is what his rights apply to. It just boils down to physical property rights. What the government is really enforcing is his physical property rights of co-ownership of the book/record/DVD. Such property rights are established by the author when he sells his physical property.

“No monopoly need be established. It’s quite clear that any copy of his physically owned object requires a misappropriation of his property. People who have not misappropriated his property are perfectly free to do whatever they like with their own property and to sell whatever they want.”

Let’s say the producer has co-ownership of the CD he … rents? half-sells? to consumer C. Okay, fine. And let’s say part of this agreement, part of this coownership, is the limitation on C’s right to use the property in certain ways. And the side-agreement on C’s part that any copy he makes of the CD using his own property, well, he automatically grants co-ownerhsip in this new piece of property to Producer.

Fine. but for Producer to have the rights you speak of he has to have similar rights in CD’s owned by third parties. He has such co-ownership rights in C’s material beause of their agreement. BUt how does he get such rights in the material owned by third parties? You say that “It’s quite clear that any copy of his physically owned object requires a misappropriation of his property”–this is not true at all. Here you are saying the property itself is the material CD owned by C. For a third party to imprint this patter on his own CD does NOT require any misappropriation of anything. Now what you gonna say?

David Bratton February 1, 2010 at 1:20 pm

@Brian Macker:

“The copyright owner retains coownership in all copies of his physical item, and that is what his rights apply to. It just boils down to physical property rights.”

“It’s quite clear that any copy of his physically owned object requires a misappropriation of his property.”

I’m not clear on that at all. If, as you say, it’s all about coownership of the physical medium the books are printed on, then how do you establish this coownership over the property of a third party who didn’t make an agreement with you? I know you want to say the presence of your words proves he must have made a copy of a legitimate sample of you book and you are undoubtedly right, but that only means he’s a probable trespasser. Recourse against a trespasser is limited to getting him off your property. You don’t get title to someone else’s property just because he trespassed on yours.

It may also be the case that the third party made a secret deal with someone who already had a legitimate copy of your book, someone who broke their contract with you by showing a third party the book without getting him to agree to give you coownership of any copies he makes. In that case you have a very good case against the individual who broke his contract with you, but you have no recourse against the third party. The only way to project coownership rights onto the third party’s property in this scenario is to claim that property rights follow the words. But you’ve already rejected that sort of claim by agreeing that “It just boils down to physical property rights.”

Then there is the most probably scenario. A third party begins selling copies of your book and will not tell you how he made a copy of you words. You don’t know if he has trespassed or if one of your contractees has been unfaithful. What will you do now? Perhaps you will claim that there is an implied contract. Perhaps you even have some verbiage to that effect printed on the first page of your book. But when you show it to the third party he says he’s never seen it. Remember you have agreed that there is no property right in the words, only in the physical medium. So by what legal principle will you establish coownership over third party’s paper and ink in this scenario?

Maybe you will resort to a theory relying on some sort of property easements. For example when one buys a house he is bound to certain deed restrictions which get passed on to his successors whether the buyer agrees or not. But easements won’t work as a substitute for IP. When one buys a house one actually gets a house. When one copies a book the new copy is a different article of property. An easement would apply to the book having been copied but not to the book being copied.

So the question remains. How do you project coownership onto the property of a third part with which you have no agreement?

David Bratton February 1, 2010 at 1:30 pm

2nd try. The blog owner approval gremlin got me.

An easement would apply to the book having been copied but not to the book being copied.

Should have been:

An easement would apply to the book having been copied but not to the copy.

Mark Hubbard February 1, 2010 at 4:42 pm

I’ve put the below post up on the Murphy’s lessons thread, but other than to the very last part, it appears the anti-IP proponents cannot or are not prepared to, answer it.

For Bala, lets call this post all about consequences.

Am I doing wrong anywhere in this sequence?

I mirror this site: everything a complete replica – http://mises2.org.

Obviously over time I add new content to balance out what is going wrong here. But everything about the site, the look, the header, a lot of the content, everything, is an exact replica, visitors to the site would know no difference on my – I hesitate to use that word as there is no ‘my’ in anarchist – … sorry, visitors to the site would know no difference on entering my home page than being on this one.

Hey, this site is published under Creative Commons, just like, disconcertingly, the Manifesto of the Communist Party ( http://www.marxists.org/archive/marx/works/1848/communist-manifesto/index.htm ). Nothing wrong with this right; it’s just a copy.

Of course, because I would not want my mises2.org being reliant on charity, there will be no giveaways: all literature, copied from your site, will be paid for, I will be pocketing the proceeds.

There is then the problem of my rival site, mises.org wantonly giving away their booty for free, taking my customers, because they’ve completely mis-interpreted free enterprise, so I gather a gaggle of looting file sharers, clever little buggers, to launch a cyber attack to shut this site down.

At which stage, if any, have I committed a moral wrong in the looters world of no IP? Why?

Jeffrey Tucker February 1, 2010 at 5:02 pm

Mark, you are getting tedious. It’s pretty shabby when you can’t even be bothered to read answers to your own queries. see the other thread.

Mark Hubbard February 1, 2010 at 5:16 pm

Jeffrey, there was only one answer, unless this was you, posting under your first name only – actually, I’ve just gathered the significance of the ‘we’:

Mark, while we appreciate your generous offer, a fair warning that maintaining these servers and paying for bandwidth (among a zillion other costs) can break the bank. Nonetheless, if are you willing to do so, everyone would be very grateful.

And if that is you, are you seriously saying I am doing no wrong in doing as I said above? Replicating this site completely, and charging for its content.

All the work and effort the founders such as Lew Rockwell have put into this endeavour for nothing?

Can you say you would be happy with me ripping you off like this, and still say that no immorality has occurred?

[And I am tedious, yes, I'll say again, tell me to stop posting and I will: and my words aren't just audio/visual patterns, they have meaning, I can be held to them. A free world can only be, if men take responsibility for their words. The owners of this site - note that, 'owners' - have shown great patience with me. But this is a issue that is so important, it's worth getting tedious over.]

Brian Macker February 1, 2010 at 5:20 pm

Me: “Yes, if you owe the money it is. You are trying to defraud the lender of what you owe him, by lying. ”

Stephen, “Got it. It’s fraud because you are trying to defraud someone! It’s so easy!”

I guess if you ignore all the other verbiage in the sentence it might boil down to that. Like if I had merely written “You are trying to defraud the lender”. However, I mentioned the lying in the attempt to get out of payment.

Fraud is when you make a personal gain by deception. The forgiveness of a loan is certainly a personal gain. Lying certainly counts as deception. So if you manage to use a lie to get out of paying back a loan or owed money you are most certainly defrauding the lender.

Brian Macker February 1, 2010 at 5:30 pm

Stephan,

“For a third party to imprint this patter[n] on his own CD does NOT require any misappropriation of anything. Now what you gonna say?”

I will say what I said in the past. What you are saying is an impossibility.

The 3rd party cannot imprint a CD with the pattern of digits that comprises MS Word without using a copy of MS Word. Since Microsoft owns the copying rights on any such CD (or on disk copy) you will be misappropriating the property of Microsoft in order to generate your copy. Since Microsoft’s property was used as a factor of production in the copy they have ownership rights in the copy also.

Stephan Kinsella February 1, 2010 at 5:36 pm

Mark Hubbard:

And if that is you, are you seriously saying I am doing no wrong in doing as I said above? Replicating this site completely, and charging for its content.

All the work and effort the founders such as Lew Rockwell have put into this endeavour for nothing?

Can you say you would be happy with me ripping you off like this, and still say that no immorality has occurred? ”

Mark, are you thick or something? Have you read about the Mises Institute’s wildly successful “open” strategy (beautifully explained by Mises Institute President Doug French in “The Intellectual Revolution Is in Process“; see also Jeff Tucker’s post “A Theory of Open“)? We want our ideas out there. The site is CC for a reason–Jeff is all in favor of people replicating our ideas. I won’t speak for Jeff here but I believe he and the MI would be ecstatic if you want to host a mirror of the site. If you think you can charge for it, more power to you. What do we care? You Objectivists are destroying yourselves with your obsession over idea ownership.

Read also the wonderful piece by B.K. Marcus, Mises.org on iTunes U; and Tucker’s If You Believe in IP, How Do You Teach Others?–esp. Jeff’s thoughts on Rand. Note your Randian sickness: they are doing something benevolent for the good of all–spreading ideas about freedom. You condemn this. This is typical of Randians who are so psychologically stunted that they think of benevolence as something marginal, at best, but probably “immoral,” or, at least, in need of a defense.

Brian Macker February 1, 2010 at 6:01 pm

David Bratton,

“Recourse against a trespasser is limited to getting him off your property. You don’t get title to someone else’s property just because he trespassed on yours.”

But he didn’t merely trespass. The trespasser actually utilized misappropriated property as a factor of production in the copy. He has co-mingled his property the property of someone else without permission. It then becomes an issue of how to rectify the situation and who has the greater claim to the copy, who’s productive input was the cause of the greater share of the value of the copy.

Most of the value of a copy of MS Word comes from the productive input of the original copy. Very little comes from the labor and blank DVD.

“In that case you have a very good case against the individual who broke his contract with you, but you have no recourse against the third party.’

Of course, I do. The person who broke the contract didn’t own the copying rights. Therefore he couldn’t give away the property for that purpose. No more so than a landowner who does not own mineral rights can allow mining on his property. The third party in the case of a mineral rights violation would be stealing the property of the mineral rights owner regardless of what the property owner represents to the third party.

The fact remains that the third party used property that was not his as a factor of production.

“The only way to project coownership rights onto the third party’s property in this scenario is to claim that property rights follow the words.”

They follow the object.

“But you’ve already rejected that sort of claim by agreeing that ‘It just boils down to physical property rights.’”

Yes, because it follows the object. You’ve already admitted the 3rd party used the physical object to make the copy.

“Then there is the most probably scenario. A third party begins selling copies of your book and will not tell you how he made a copy of you words. You don’t know if he has trespassed or if one of your contractees has been unfaithful.”

But the contractee can’t give him permission to copy my book. My ownership of the copying rights of the book are not at all dependent on the contractee. They are ownership rights that I never gave up in the first place. I created the book and I retained ownership over those rights. The third party trespassed directly against me.

“So the question remains. How do you project co-ownership onto the property of a third part with which you have no agreement?”

Because he’s using my property as a factor of production in the copy.

Peter Surda February 1, 2010 at 7:51 pm

Dear Brian,

> Because he’s using my property as a factor of
> production in the copy.
As I wrote elsewhere earlier today, there are only two ways to interpret “use”. One is the literal, where the object in question is made unavailable, at least partially and/or temporarily, to anyone else. The other one is metaphorical, meaning that you gained some benefit (or tried to get some) as a side effect of the object in question, without the unavailability issue. This includes externalities, non-rival goods and IP. There is no meaningful way to make additional theoretical distinctions in the second category. Therefore, you either have to accept or reject the whole category as property.

Bala February 1, 2010 at 7:53 pm

Kerem Tibuk,

” This one is a gem.

Can an effect precede the cause? ”

Chronology is indeed a basis for figuring out WHOSE property something is, but then that means that treating the object in question as “property” is already legitimate because of OTHER considerations. It is these OTHER considerations that form the legitimate BASIS of the concept “property” and of assigning that exalted status to specific objects.

So, it has nothing to do with “cause and effect” as you portray it.

I guess this is too much for you to comprehend considering how badly you have yourself entangled in your “extension” theory.

Nate Y February 1, 2010 at 8:01 pm

Brian Macker says:

“Because he’s using my property as a factor of production in the copy.”

No. He is not.

You sold your property to another party in exchange for money. What was once yours now belongs to the second party and vice versa. He is free to do whatever he wants with his newly acquired property and you are free to do whatever you want with your newly acquired property (the money). Done and done.

Stephan Kinsella February 1, 2010 at 8:07 pm

Macker:

Me: “Yes, if you owe the money it is. You are trying to defraud the lender of what you owe him, by lying. ”

Stephen, “Got it. It’s fraud because you are trying to defraud someone! It’s so easy!”

I guess if you ignore all the other verbiage in the sentence it might boil down to that. Like if I had merely written “You are trying to defraud the lender”. However, I mentioned the lying in the attempt to get out of payment.

Claiming you don’t own money is not fraud. Maybe you believe it. Maybe you pay while claiming it. Maybe you claim it to a third party. You didn’t specify enough. Moreover, refusing to pay is not fraud–it’s better classified as a type of conversion, trespass, or theft. Again: what’s it got to do with fraud?

Fraud is when you make a personal gain by deception.

Again with the looseness here. If I deceive a young lady into thinking I come from money and she gives me a kiss for that reason, is there fraud? Maybe in some moral sense. But libertarianism is concerned with property rights and justice. Fraud is only relevant if it is a type of theft-and theft is theft of owned things. So we are talking about misrepresentations used to gain possession or use or ownership of an owned thing without valid consent.

The forgiveness of a loan is certainly a personal gain. Lying certainly counts as deception.

Why is claiming you don’t owe money a lie? Owing money is not a fact, it’s a legal issue. And I can forgive a loan for whatever reason I want.

You don’t have a good example here dude. This is all confused.

So if you manage to use a lie to get out of paying back a loan or owed money you are most certainly defrauding the lender.

I don’t know what you mean “get out of paying back a loan.” This could be done any number of ways. You yourself said above it might be forgiven. If it’s forgiven it’s forgiven. What a bizarre hypo anyway: who ever heard of a creditor being deluded into “forgiving” a loan because the debtor falsely claimed, “Oh no, I don’t owe that to you.” Hunh?

“For a third party to imprint this patter[n] on his own CD does NOT require any misappropriation of anything. Now what you gonna say?”

I will say what I said in the past. What you are saying is an impossibility.

The 3rd party cannot imprint a CD with the pattern of digits that comprises MS Word without using a copy of MS Word.

Nonsense. I might see your sculpture in your front yard, and make a copy of it. I might hear a friend tell me about the plot of Star Wars, and decide to write a sequel. Etc. How did I ever “use” someone else’s property to gain this information?

The case is even worse for patents. If see a new vacuum cleaner that is popular; I make a competiing one. How did I “use” the other guy’s property? I never even touched it. I just *learned about it*. And this is another exmaple of how IP basically impedes learning and communicaiton and the spread of knowledge.

Since Microsoft owns the copying rights on any such CD (or on disk copy) you will be misappropriating the property of Microsoft in order to generate your copy. Since Microsoft’s property was used as a factor of production in the copy they have ownership rights in the copy also.

are you really so bereft of imagination?

Stranger February 1, 2010 at 8:33 pm

@Kinsella

“The site is CC for a reason–Jeff is all in favor of people replicating our ideas.”

Yes, the Mises Institute does not pay writers to write books, only to sell them. It is not a capitalist enterprise.

But capitalists are newbs anyway. Who needs their money?

(Side note: a CC license is still a copyright – the Mises Institute will use force on those who copy their books without making a reference to the Mises Institute.)

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