1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar
Source link: http://archive.mises.org/11674/nina-paleys-all-creative-work-is-derivative/

Nina Paley’s “All Creative Work is Derivative”

February 15, 2010 by

This is an amazing animation by Nina Paley, “America’s Best-Loved Unknown Cartoonist” (and creator of the amazing animated (and free online) film Sita Sings the Blues, given rave reviews including 4 stars by Roger Ebert). Entitled “All Creative Work Is Derivative” (and blogged here on her blog), and concluding “All creative work builds on what came before,” the video is built from images of of statues and paintings at the Metropolitan Museum of Art in New York. As she explains on All Creative Work Is Derivative (Minute Meme #2),

Copyright control extends not just to verbatim copies, but to “derivative works.” This has led to censorship on a grand scale. For example, the seminal German silent film “Nosferatu” was deemed a derivative work of “Dracula” and courts ordered all copies destroyed. Shortly before his death, author J.D. Salinger convinced U.S. courts to censor another author who transformed his characters. And so on.

The whole history of human culture evolves through copying, making tiny transformations (sometimes called “errors”) with each replication. Copying is the engine of cultural progress. It is not “stealing.” It is, in fact, quite beautiful, and leads to a cultural diversity that inspires awe.

I learned of Nina’s work when she sent me a nice email, an edited version of which follows:

Hello Stephan,

I recently read “Against Intellectual Property” and liked it very much. It reminded me of some things I’ve written: Intellectual Property is Slavery and Redefining Property: Lessons from American History; also My Official Position on Copyright.

I especially enjoyed your unique twist on Trademark, that trademark suits should be brought by consumers against frauds, rather than by trademark “owners.” I haven’t thought it all through to form my own solid opinion yet, but I like the novel approach.

Last year I released my feature film, Sita Sings the Blues, under a copyleft license (CC-BY-SA).

I’m now artist-in-residence at QuestionCopyright.org, and do what I can to promote alternatives to copyright. (Actually I’m a copyright abolitionist, but many find that identification unpalatable.)

Anyway, thanks for the good book, I’m recommending it to my Free Culture buddies.

Update: See also this amazing, fascinating short documentary with Nina Paley, The Revolution Will Be Animated:

The Revolution Will Be Animated from Marine Lormant Sebag on Vimeo.


See also her Copying Is Not Theft “Minute Meme”:

{ 196 comments }

Stephan Kinsella February 17, 2010 at 1:19 pm

Kerem:

“Imagine Crusoe became so efficient in producing foodstuff he amassed a lot of food. So much in fact he can not possibly consume, or trade most of it and they will rot and go bad.

Friday, without the consent of Crusoe, takes this extra food that would eventually go bad, and takes to a neighboring island and gives it to the natives that are starving.

The situation is simple. If the food in question was left at Crusoe’s ownership it would rot. If the islanders didn’t get this extra food most of them will starve to death.

Does Crusoe have the right to get the food back (and let it rot) by the use force if necessary?”

Of course. It’s his food.

And how is this situation different than the one given by Magnus?

If they have his food, he doesn’t have it any more. It’s a scarce resource that he owns.

But if they grow their own crops using farming techniques similar to his, this doesn’t take anything from him. The farming technique is not a scarce resource that he owns.

Mark Hubbard February 17, 2010 at 1:30 pm

You claim the pirated copy of the movie Avatar on your hard drive has no objective relation to the movie Avatar that was produced by Cameron, and you also claim there is no objective way to establish a relation between them. You don’t even claim that the file is your original production. You claim there can be no way to identify that it is the copy of something else.

And that was theft pure and simple.

If everyone did that, as they could in an IP’less economy (which wouldn’t be an economy), Cameron not only would not have spent over $300 million making this movie, he wouldn’t even have contemplated it.

There’s nothing more evil than intellectuals intellectualising theft as happens on this site.

How peculiar that something can be taken repeatedly from you, without ever removing it from your possession.

Nothing peculiar at all, it’s simply a feature of the computer age. And it’s theft pure and simple, again.

Magnus February 17, 2010 at 1:50 pm

If Crusoe didn’t put any conditions of the exchange that means he has given up all the rights.

Why should that be the default rule, to be applied in the absence of an agreement or expression of intent?

Your default rule (that an IP holder must place conditions on his so-called “property” or else he gives away all rights to anyone who receives the information) happens to be precisely the opposite way that IP rights supposedly work. Under IP theory, the presumption is that the IP holder retains full rights to everything that he creates, unless he affirmatively waives or transfers those rights.

In any event, you already claimed that all IP rights are presumed to be retained (unless they are affirmatively waived or transferred) when you said that, for Friday to have IP rights, it required Crusoe’s “consent.”

However, in my example, Crusoe never gave consent. He merely transmitted information, with no implicit or explicit understanding one way or the other about what he “consented” to. And in any event, even if he had initially be presumed to have given “consent,” then just like Crusoe’s house and land that Friday temporarily uses (Crusoe owns the whole island, remember), that consent can be withdrawn, which is why Crusoe could rightfully eject Friday from the island whenever he wanted.

Your idea of “consent” sounds an awful lot like the kind of “consent” that Statists rely on to tell me that everyone “consents” to the full scope of the claimed authority of the US government by merely being located on the patch of dirt in its supposed jurisdiction.

That idea is as preposterous as if I were to claim that you “consented” to give me every dime in your bank accounts by merely posting on Mises.org. I can claim that the default rule is that you “consented,” but that’s just a pretext for stealing. For the idea of “consent” to mean anything, the default rule MUST be that it is presumed that consent is NOT given, unless some clear, overt act of consent occurs.

You want it both ways — you want to say that Crusoe’s consent is required for Friday to have IP rights, but also say that Crusoe must put “conditions” on his communications with Friday to retain any IP rights.

If you copy my IP I lose something. I lose a non copied IP. Now that you copied it, the thing I have is not an non copied IP but an copied IP. Its nature has changed.

Uh …

That’s the most self-serving, metaphysical, B.S. explanation I have ever seen you give. The “nature” of the article is absolutely NOT changed in any way. Does it emit a different aura? If I wave a crystal over the item, will it reveal a detectable change in the aether? Can I conjure the mystical spirits of the copied book to speak to Madame Magnus and reveal to us how it has been “changed”?

Come on.

In my Crusoe scenario, the IP rights in question supposedly exist in behavior — farming techniques — not an object. What thing, pray tell, is supposedly “changed” when someone else uses those techniques to farm land on another island?

Jay Lakner February 17, 2010 at 2:03 pm

Mark Hubbard wrote:
“And it’s theft pure and simple”

What, exactly, was removed from Cameron’s possession?

Jay Lakner February 17, 2010 at 2:06 pm

Mark Hubbard wrote:
“And it’s theft pure and simple”

What, exactly, was removed from Cameron’s possession?

Peter Surda February 17, 2010 at 2:07 pm

Dear Kerem Tibuk and Mark Hubbard,

plain and simple, and just like I expected, you avoided responding to my arguments. You either do not understand them, or are intellectual cowards, afraid to be unmasked as a fraud. Either way, you’re a waste of time.

Mark Hubbard February 17, 2010 at 2:28 pm

What, exactly, was removed from Cameron’s possession?

The product of his mind, which he spent over $300 million developing so he could sell for a profit.

What is it about you that you refuse to understand this is theft, and immoral, Peter?

In his shoes are you going to spend that money making movie with no IP?

Oh, don’t tell me. He was a lousy businessman because he chose to be a movie maker. Right?

Bloody hell.

As well as a society based on theft, the anarchist society is going to reeal boring. Although not even that, it will never exist because can never exist on a foundation of pillaging.

intellectual cowards

I don’t accept your argument.

I said above, there is nothing peculiar about Cameron having the product of his mind stolen from him, while still retaining a copy of it: that is simply a feature of the computer age. This copying of his movie is still theft, pure and simple.

Jay Lakner February 17, 2010 at 2:29 pm

Dear Peter Surda,

It gets frustrating with those two. In particular Kerem who refuses to admit that he believes that Crusoe can rightfully go to the island, take whatever he can as restitution for the “loss” of his farming techniques, and kill any villagers that resist.

Jay Lakner February 17, 2010 at 2:32 pm

I wrote:
“What, exactly, was removed from Cameron’s possession?”
Mark Hubbard replied:
“The product of his mind, which he spent over $300 million developing so he could sell for a profit.”

So Cameron no longer has the “product of his mind” in his possession?

Mark Hubbard February 17, 2010 at 2:47 pm

So Cameron no longer has the “product of his mind” in his possession?

Read what I said Jay. I repeat (myself):

I said above, there is nothing peculiar about Cameron having the product of his mind stolen from him, while still retaining a copy of it: that is simply a feature of the computer age. This copying of his movie is still theft, pure and simple.

Deefburger February 17, 2010 at 3:28 pm

It amazes me that people who recognize the fallacy of the legal fiction of fiat money, do not use the same logic to recognize the fallacy of the legal fiction of patent and copyright and the false value they create.

It’s not that there isn’t any value to IP or that there is no means to realise that value monetarily or even that one should or should not. It’s the fact that the legal fiction creates a situation that shifts the monetary value from the real value into the fictional value. All of the arguments in favour of IP are in fact in favour of the false valuation created by the existence of the legal fiction.

There seems to be no way to divorce these people from their belief in the fictional value, or to realise where the real value still lies in the “products of the mind”.

How can any libertarian minded person continue to support the notion of legal fiction when it suits them and to rail against it when it doesn’t?

Peter Surda February 17, 2010 at 3:35 pm

Dear Mark Hubbard,

> I don’t accept your argument.
You’re right, if you close your eyes the big bad argument will go away and you won’t be scared anymore.

Mark Hubbard February 17, 2010 at 3:51 pm

All of the arguments in favour of IP are in fact in favour of the false valuation created by the existence of the legal fiction.

Compared to a nil valuation of the ‘product of a man’s mind’ by the IPless anarchists.

On one a free economy can operate, (with honour amongst individuals, not plundering another’s livelihood), on the other you have anarchy per its true meaning, chaos and pillage.

How can any libertarian minded person continue to support the notion of legal fiction when it suits them and to rail against it when it doesn’t?

Because this libertarian minded person believes still in a properly mandated minarchy (as do anarchists with their PDA’s, they just don’t accept this): the protection by the minarchist government of IP (no different to its protection of property, period) is essential to a free society, and this issue has no similarities, whatsoever, with fiat money.

(By the way, why isn’t the title to your physical property just a ‘legal fiction’ also.)

Jay Lakner February 17, 2010 at 4:10 pm

Mark Hubbard,

Maybe you should read what I said.

I repeat (myself):
“What, exactly, was removed from Cameron’s possession?”

Mark Hubbard February 17, 2010 at 4:34 pm

… my posts ‘being held by the blog owner for approval’ again. It would be great if this could be sorted out.

Let me see if I can post my last reply to Peter:

“What, exactly, was removed from Cameron’s possession?”

Income from his movie, Peter. Your scarcity argument is BS. If you can’t see the theft taking place here, then you are lacking that essential thing to a free society my old granddad termed an individual’s ‘moral fibre’.

This is not a difficult issue to honourable men who make their living trading off the products of their minds (and who stand gawping from the sidelines at the moral vacuum in sites like this that should be championing freedom, but are instead pushing the theft of their property, and a free man’s enslavement to the crowd who would take his work for nothing).

Shay February 17, 2010 at 5:35 pm

Deefburger wrote, “It amazes me that people who recognize the fallacy of the legal fiction of fiat money, do not use the same logic to recognize the fallacy of the legal fiction of patent and copyright and the false value they create.”

You’re amazed people don’t argue against a scheme that’s bringing them money, even if it has obvious flaws and requires one to use inconsistent logic to defend it?

Mark Hubbard February 17, 2010 at 6:04 pm

What’s the inconsistent logic Shay?

… do not use the same logic to recognize the fallacy of the legal fiction of patent and copyright and the false value they create.”

There is no similarity between the debate for IP, and how fiat money and Keynesian economics are destroying our planned economies.

And again, for you, I compare your ‘false value’ with the nil value anarchists attach to the products of a man’s mind, and thus a justification of theft of the products of that man’s mind. When the value of such products is charged, a free economy can operate, (with honour amongst individuals, not plundering another’s livelihood), however, without the recognition of this value, you have anarchy per its true meaning, chaos and pillage.

I will state my position again, before asking you a question.

This libertarian minded person believes in a properly mandated minarchy (as do anarchists with their PDA’s, they just don’t accept this): the protection by the minarchist government of IP (no different to its protection of property, period) is essential to a free society, and this issue has no similarities, whatsoever, with the debate over fiat money.

Now I ask you: why isn’t the title to your physical property just a ‘legal fiction’ also?

mpolzkill February 17, 2010 at 6:05 pm

Shay,

I think he was saying he was amazed that libertarians do it. I think maybe what he doesn’t realize is that the vast majority of “libertarians” and Randians are no more principled than any other group of people. The vast majority are sophists who want the State whittled down to serving just themselves, and screw the rest of the world and what they want. This is why, as a fuzzy group in the minds of the other 98% or so of the population, we are so widely and virulently despised.

Mashuri February 17, 2010 at 6:10 pm

Mark Hubbard:

“What, exactly, was removed from Cameron’s possession?”

Income from his movie, Peter. Your scarcity argument is BS.

So, you believe the primary purpose of property rights is to guarantee a monopoly on market share over and above preventing agression against owned scarce resources?

Mark Hubbard February 17, 2010 at 6:32 pm

So, you believe the primary purpose of property rights is to guarantee a monopoly on market share over and above preventing agression against owned scarce resources?

I believe the primary purpose of private property rights is to underpin a capitalist economy and thus a free society. IP are property rights.

Compare this to the following statement ‘copied’ from the Manifesto of the Communist Party:

In this sense, the theory of the Communists may be summed up in the single sentence: Abolition of private property.

The anarchists on this forum are advocating nothing less that the ‘abolition of private [intellectual] property.

By the way the Manifesto of the Communist Party is here:

http://www.marxists.org/archive/marx/works/1848/communist-manifesto/

Reproduced under Creative Commons, because, of course, communism doesn’t hold with copyright or IP.

Mashuri February 17, 2010 at 7:09 pm

I believe the primary purpose of private property rights is to underpin a capitalist economy and thus a free society. IP are property rights.

You do understand that by adopting and enforcing property rights in non-rivalrous (“scarce” is too often misinterpreted so I’ll use this more specific term) resources like IP that it conflicts with property rights in rivalrous, physical resources. In other words, adopting and enforcing IP rights requires aggression against other peoples’ physical property. They cannot coexist and one needs to take priority over the other. Are you saying that non-rivalrous IP rights trumps rivalrous physical property rights?

Peter Surda February 17, 2010 at 7:15 pm

Dear Mark Hubbard,

> Income from his movie, Peter.
I did not phrase the question, Jay did. Nevertheless, I’ll react anyway. What you are referring to is merely the substitution effect I described earlier. Your argument is invalid because you don’t apply it consistently, i.e. you consider other substitutes a legitimate way of “stealing income”. It’s the same inconsistency as with fair use, time limits on IP, or with saying that taking other people’s apples is wrong unless it happens on Sunday 2pm.

Mark Hubbard February 17, 2010 at 7:32 pm

In other words, adopting and enforcing IP rights requires aggression against other peoples’ physical property. They cannot coexist and one needs to take priority over the other

Give me an example – I suspect any example can be dealt to by causality. (There is no aggression involved in the protecting of IP or other property rights: the aggressor is the one thieving same.It is then quite right that once aggression is initiated, force is used to repel it).

If my book is online for sale, and you copy if from a file sharing service, you have stolen it. Pure and simple.

Peter: you consider other substitutes a legitimate way of “stealing income”.

Give me an example.

I’m okay with fair use when it benefits the creator (example, exposure), but not comfortable with some instances of it.)

Mashuri February 17, 2010 at 7:47 pm

Give me an example

Let’s say you carve your block of wood that you own into a shape and then copyright/patent/whatever that shape with the proper authorities. Afterward, I carve my block of wood that I own into an identical shape. You cry foul and demand that the authorities take whatever is deemed a proper amount of wealth from my posession in retort. I claim that I only used my own physical property, i.e., you still have your carved piece of wood in your posession while I have mine. The enforcement of your IP rights is now causing an aggression against my physical property rights.

Mark Hubbard February 17, 2010 at 8:06 pm

Let’s say you carve your block of wood that you own into a shape and then copyright/patent/whatever that shape with the proper authorities. Afterward, I carve my block of wood that I own into an identical shape. You cry foul and demand that the authorities take whatever is deemed a proper amount of wealth from my possession in retort. I claim that I only used my own physical property, i.e., you still have your carved piece of wood in your posession while I have mine. The enforcement of your IP rights is now causing an aggression against my physical property rights.

Well where’s problem?

The answer is yes, tough mate. Welcome to competition in a free open market. Capitalism is not a zero sum game as both parties to a transaction gain value, however, competition at the productive level is just that, competitive: winners and losers. I developed the shape first, luckily I could gain ownership of ‘my’ shape via IP, thus, rightly, as the original inventor of the shape, I get to profit from it until I choose to relinquish ownership of the shape. And I am not initiating any type of aggression when the miniarchist state then rightly protects my IP from you if you try to sell your later copy of my shape.

As I said, causality renders the scarcity argument for what it is: a deceptive piece of hokum to justify stealing another’s private property.

Next?

Peter Surda February 18, 2010 at 3:15 am

Dear Mark Hubbard,

> Give me an example.
If your competitors provide your potential customers’ with substitutes to your offerings, the underlying principles and effects are the same as when they offer illegitimate copies. Yet, in some cases you claim this means “stealing income”, and in some it doesn’t. Without providing a method to distinguish between those two, the condition of similarity is an insufficient one.

In the unlikely case that you don’t dodge and actually reply, you will probably say that they are not substitutes but a product of your mind. However, this is just another way of saying that they are an externality and again the underlying principles and effects are the same. Again, you do not provide a way of distinguishing legitimate and illegitimate externality and without that, the condition of causality is insufficient as well.

That concludes my argument and demonstrates that the causality+similarity approach is bogus and arbitrary. Without it, IP proponents do not have a definition of property and their theory falls apart.

Peter Surda February 18, 2010 at 3:17 am

Dear Mark Hubbard,

> I’m okay with fair use when it benefits the creator
> (example, exposure), but not comfortable with
> some instances of it.)
That’s like saying that a little bit of theft is ok if there are some positive effects, in other words, a utilitarian approach.

Kerem Tibuk February 18, 2010 at 3:31 am

Stephan,

This thread is getting too long but I will respond one more time.

Are you really unable to see the similarity between the relationship between Crusoe and the excess food that will definitely go bad, and an IP Crusoe might have produced?

Your premise solely depends on the concept of scarcity. And scarcity is a condition of supply. This means you classify things that can be property or not based solely on the condition of supply.

And I give you another example where condition of supply is given and you try to evade the only thing, the condition of supply, that matters in you theory?

In the example the extra food will rot in the possession of Crusoe. This means Crusoe doesn’t really have the excess food if “having” implies the ability to use. Thus he doesn’t really lose anything when the excess food is removed from his possession. His situation before the excess food is removed and after are exactly the same regarding the foodstuff. Just like his situation regarding IP is the same before and after the act of copying.

If Crusoe can have sovereignty over the excess food regardless of scarcity or the condition of supply why would his relationship with an IP be any different?

Mark Hubbard February 18, 2010 at 3:37 am

If your competitors provide your potential customers’ with substitutes to your offerings, the underlying principles and effects are the same as when they offer illegitimate copies. Yet, in some cases you claim this means “stealing income”, and in some it doesn’t. Without providing a method to distinguish between those two, the condition of similarity is an insufficient one.

Well you’ve answered it. Some are substitutes and some are illegal copies. A is A. The substitutes are fine, so long as they don’t breach IP, the illegitimate copies a theft.

It’s as simple as that. As for distinguishing between the two, one is simply an alternate product (there must be a difference in it), the other is a forgery, and there has been forgery practiced throughout the ages, an punishable by law, as it should be. Nothing new, just a different medium.

Your argument comes down to because we have very clever crooks making forgeries, we might as well accept them as traders. They not; they’re crooks. Don’t excuse their behaviour. Don’t sanction the theft of file sharing. You know it is stealing Peter, unless you are a monster.

That’s like saying that a little bit of theft is ok if there are some positive effects, in other words, a utilitarian approach.

Yeah, and like a ‘bit pregnant’. I admit fair use has issues, but I’d rather deal with those than throw my hands up and sanction theft as you are doing.

Ultimately, I’d be happy with only academic and review type fair use, not to libraries, etc.

(And now it’s after 10.30pm in New Zealand, I’m going to bed).

Mark Hubbard February 18, 2010 at 3:48 am

Oh, and fair use is not utilitarian when it allows exposure of the author’s work and thus more sales. That is the only fair use I’m happy with.

But really, the ones with the utilitarian problems are the anarchists, look:

http://blog.mises.org/archives/011689.asp#c670379

And then my answer two posts below it.

Kerem Tibuk February 18, 2010 at 3:53 am

Magnus,

“If Crusoe didn’t put any conditions of the exchange that means he has given up all the rights.

Why should that be the default rule, to be applied in the absence of an agreement or expression of intent?

Your default rule (that an IP holder must place conditions on his so-called “property” or else he gives away all rights to anyone who receives the information) happens to be precisely the opposite way that IP rights supposedly work. Under IP theory, the presumption is that the IP holder retains full rights to everything that he creates, unless he affirmatively waives or transfers those rights.”

You are trying to undermine the validity of an exchange based on some possible miscommunication and misunderstandings. And that is disingenuous.

It doesn’t matter what the default agreement is. The default can be conditional exchange or exchange of full rights.

What is important is the wishes of the seller and the buyer and that they will be complimentary.

Either person A gives full rights of IP to Person B or he doesn’t. If he does, Person B has all the ownership rights if Person A gives conditional rights, or rents it, then Person B doesnt have all the rights but conditional rights.

“In any event, you already claimed that all IP rights are presumed to be retained (unless they are affirmatively waived or transferred) when you said that, for Friday to have IP rights, it required Crusoe’s “consent.”"

That is true of every property exchange. You may sell a car or you may rent out a car. You either transfer all ownership rights or you don’t.

“However, in my example, Crusoe never gave consent. He merely transmitted information, with no implicit or explicit understanding one way or the other about what he “consented” to. And in any event, even if he had initially be presumed to have given “consent,” then just like Crusoe’s house and land that Friday temporarily uses (Crusoe owns the whole island, remember), that consent can be withdrawn, which is why Crusoe could rightfully eject Friday from the island whenever he wanted.”

Magnus, you are intentionally creating a miscommunication regarding an exchange trying to undermine the legitimacy of the whole exchange. This is not honest.

And Crusoe can take back the IP, maybe not metaphysically but ethically. Lets say you are Friday. We have agreed on conditional use of IP. Then our agreement ended and I asked you not keep using and/or transferring the IP. Can you do this if you wanted to? Yes. Should you? Yes. Can you do the opposite and act unethically? Also yes. But that is what ethics is.

Today there are many movie piracies that is going on on the internet. But there is also legitimate sales through vendors like Itunes. This means it is possible for individuals to behave a certain way. They can either copy the file against the wishes of the producer or they can abide by the wishes of the producer. This is the ethical dilemma they have. Some behave ethically and some don’t.

“Your idea of “consent” sounds an awful lot like the kind of “consent” that Statists rely on to tell me that everyone “consents” to the full scope of the claimed authority of the US government by merely being located on the patch of dirt in its supposed jurisdiction.”

Give me a definition of property rights without referencing “consent”. It is not possible. The concept of private property is intimately tied to the concept of consent. When someone cuts your flesh, consent is the thing that differentiates between aggression and non aggression. If you haven’t consented it is aggression if you have it is not.

“If you copy my IP I lose something. I lose a non copied IP. Now that you copied it, the thing I have is not an non copied IP but an copied IP. Its nature has changed.

Uh …

That’s the most self-serving, metaphysical, B.S. explanation I have ever seen you give. The “nature” of the article is absolutely NOT changed in any way. Does it emit a different aura? If I wave a crystal over the item, will it reveal a detectable change in the aether? Can I conjure the mystical spirits of the copied book to speak to Madame Magnus and reveal to us how it has been “changed”?

Come on.

In my Crusoe scenario, the IP rights in question supposedly exist in behavior — farming techniques — not an object. What thing, pray tell, is supposedly “changed” when someone else uses those techniques to farm land on another island?”

I am making an analogy between you example and my example.

If you base your property theory on the concept of scarcity thus a condition of supply you can not evade it when it doesn’t fit your wishes.

And if you stretch the meaning of “use” or “lose” it can go both ways. If Crusoe can lose food that he can’t possible use, so can he lose something when someone copies his IP without his consent.

Peter Surda February 18, 2010 at 3:57 am

Dear Mark Hubbard,

> Some are substitutes and some are illegal copies.
Yet, you fail to explain how to differentiate between them.

> The substitutes are fine, so long as they don’t
> breach IP, the illegitimate copies a theft.
This is a circular argument.

> As for distinguishing between the two, one is
> simply an alternate product (there must be a
> difference in it), the other is a forgery, and there
> has been forgery practiced throughout the ages,
> an punishable by law, as it should be. Nothing
> new, just a different medium.
First of all, you explain nothing. How do you distinguish a forgery and an alternative product? One is illegal and one not. Circular argument.

Furthermore, forgery, in the Austrian perspective, is not a “theft” from the author of the original, but a fraud of the forger’s customer, and only in case the forger claims to be the original author. Other definitions are inconsistent.

> Your argument comes down to because we have
> very clever crooks making forgeries, we might as
> well accept them as traders.
It depends on the situation. See above. Forgery is not stealing from the the author of the original, rather it is, sometimes, a fraud on the customer of the forger. The legitimacy of such a transaction does not depend on the desires of the original author.

> They not; they’re crooks. Don’t excuse their
> behaviour. Don’t sanction the theft of file
> sharing.
Circular argument again.

> You know it is stealing Peter, unless you are a
> monster.
You know you are moving in circles, right?

> I admit fair use has issues, but I’d rather deal
> with those than throw my hands up and sanction
> theft as you are doing.
You contradict yourself. You must be aware that you are condoning and condemning the same act?

Jay Lakner February 18, 2010 at 3:59 am

Kerem,

To say Crusoe is not “using” this food is false. The excess food must hold some value to him otherwise he would not try to get it back. Hence he is deriving satisfaction from his possession of this excess food.

Since the food is tangible, we have a situation where either he possesses it, or the villagers possess it. But both parties cannot possess the food at the same time. Hence both parties cannot simultaneous have the right to possess the food. This is a contradiction of rights. In order to enable cooperation and freedom of action, we need to assign an “owner” to the food. That is, we need to decide who has the right to the food. At this point, we ascertain who the earliest ‘possessor’ was to determine who has the most legitimate claim to that right.

Farming techniques are intangible. Both Crusoe and the villagers can use those techniques simultaneously without adversely affecting each other. Crusoe has the right to use the farming techniques. The villagers also have the right to use the farming techniques. And these rights do not contradict. Applying exclusivity to those farming techniques therefore serves no purpose other than to reduce the freedom of one group.

Mark Hubbard February 18, 2010 at 4:28 am

I should never have looked back here.

First of all, you explain nothing. How do you distinguish a forgery and an alternative product? One is illegal and one not. Circular argument.

You are not this dumb Peter, surely.

The proof of my point is that even if there is no way to distinguish one from the other, it does not change the fact A is A. One IS a forgery, one IS a legal alternate product.

The vendor knows which is which, and he can be ethical or not. If he fences the forgery he is a crook.

Theft if theft.

The lengths you go to justify it (for yourself?)

Peter Surda February 18, 2010 at 4:32 am

Dear Mark Hubbard,

now you have shown beyond all doubt that you are a fraud, pretending to be principled while promoting opportunism, and pretending to be right while denying logic. You can’t mask it anymore behind outrage.

Mark Hubbard February 18, 2010 at 4:48 am

Opportunism? Okay, how?

I don’t deny logic: one is a forgery, the other a substitute. Different. You said so yourself in defining the question, and couldn’t avoid doing so. A is A. It doesn’t matter the forgery is so good you can’t distinguish between then: the forger can.

Jeez

How old are you? I’m starting to wonder, other than Kinsella, if I’m arguing with a bunch of school kids.

Peter Surda February 18, 2010 at 5:00 am

Dear Mark,

> Opportunism? Okay, how?
By saying that exceptions are ok if they have beneficial effects. You suppress your proclaimed principles in order to satisfy utilitarian requirements.

> I don’t deny logic:
Yes you do.

> one is a forgery, the other a
> substitute. Different.
(in another post)
> The proof of my point is that even if there is
> no way to distinguish one from the other

These statements contradict each other, yet you praise them as the hallmark of your convictions. A is A indeed.

Kerem Tibuk February 18, 2010 at 5:39 am

Jay,

“To say Crusoe is not “using” this food is false. The excess food must hold some value to him otherwise he would not try to get it back. Hence he is deriving satisfaction from his possession of this excess food.”

I have already responded to this possible objection.

This is a case of stretching the meaning of “use” or “lose”. It can go both ways.

If the excess food can hold some value to Crusoe, so can the “uncopied IP”. But you claim “copied IP” and “uncopied IP” is the same from your perspective. The problem is your perspective is meaningless and you just demonstrated that by claiming the possibility of the excess food holding some value to Crusoe. If you can claim, uncopied IP can hold no value, I can say the excess food can hold no value.

“Since the food is tangible, we have a situation where either he possesses it, or the villagers possess it. But both parties cannot possess the food at the same time. Hence both parties cannot simultaneous have the right to possess the food. This is a contradiction of rights. In order to enable cooperation and freedom of action, we need to assign an “owner” to the food. That is, we need to decide who has the right to the food. At this point, we ascertain who the earliest ‘possessor’ was to determine who has the most legitimate claim to that right.”

Despite my very clear example you are still assuming a situation that is fitting to you and responding to that.

There is no scarcity regarding the food stuff that Crusoe produced. He has so much that he can not consume most of the food so that Friday takes it, this act doesn’t effect the relation between Crusoe and his food. Crusoe’s situation before Firdays taking of the excess food and after this act is the same. Nothing really changed, and he didn’t lose anything.

Both Crusoe and the villagers can use the food simultaneously without adversely affecting each other. Crusoe has the right to use food that he can consume. The villagers also have the right to consume the excess food that Crusoe can not consume. And these rights do not contradict. Applying exclusivity to the whole food stock therefore serves no purpose other than to reduce the freedom of one group.

If Crusoe has a sovereign right over the excess food stuff this can not be based on natural scarcity but only artificial scarcity that was created solely by him. And that is no different than him creating artificial scarcity regarding the IP he has produced and owns.

Peter Surda February 18, 2010 at 6:21 am

Dear Kerem Tibuk,

> This is a case of stretching the meaning of “use” or
> “lose”. It can go both ways.
Exactly, this is what I’ve been claiming for several months now. The one meaning is empirical, the other one metaphorical. But the metaphorical is completely subjective, and can mean literally anything. Since you yourself agree that the conditions do not stretch to infinity, it is up to you to show where the causality and similarity stop being property and start being externality and substitute, respectively.

Jay Lakner February 18, 2010 at 6:37 am

Dear Kerem,

Firstly, get with the times, most of us have dropped using the word “scarcity” in favour of the word “rivalrous”. You are a prime example of the reason we did this. Now there can be no confusion.

Secondly, Crusoe did lose something, he lost possession of his food. His reasons for wanting to retain its possession are irrelevent. Deny it all you want, but if Crusoe wants to retain possession of that food then that automatically means he sees value in retaining it. Or are you denouncing the action axiom now?

Thirdly, you are making the mistake of treating a metaphore literally. “Intellectual property” is a metaphore. “Uncopied IP” simply means that a possible arrangement of tangible materials has only one physical manifestation (ignoring the manifestations that exist in human minds). For this state of affairs to continue, everyone else must be prohibited from arranging their materials into that arrangement. Therefore, saying that Crusoe values “uncopied IP” actually means that he values that nobody else has the freedom to arrange their materials into that configuration.
Crusoe could value being the only human alive. He could value that nobody else has the freedom to act at all. Does this give him any right to go to the other island and kill all the villagers?

It is a mistake to associate “property” with “value”. Any attempts to formulate a value-based property system will result in absurd outcomes.

A better system is a rights-based property system, as I have described many times. “Ownership” is determined only where they is a contradiction of rights. Such a system has no internal contradictions and human freedom of action is maximised.

Magnus February 18, 2010 at 7:19 am

In the example the extra food will rot in the possession of Crusoe. This means Crusoe doesn’t really have the excess food if “having” implies the ability to use. Thus he doesn’t really lose anything when the excess food is removed from his possession.

This assertion is 100% false. Crusoe lost something that is easily identifiable — possession of the specific, concrete, definite, tangible, material articles of food that you call “extra.”

It is irrelevant if Crusoe plans (or even has the capacity) to “use” this “extra” food by eating it or not. He already owns it, and therefore he can only lose ownership of it by (a) transferring rights in it to to someone else, or (b) abandoning it, which would render it un-owned.

(If Crusoe abandoned the food, then anyone who found it could homestead it by merely taking possession of it.)

The issue of whether someone is actively “using” an article of property is only relevant in the act of homesteading — converting unowned objects into owned ones. In your example, Crusoe’s “extra” food is already owned by him, since he grew it. He does not have to continue to use it to continue to own it. He merely needs to refrain from transferring it or abandoning it. If he does not do either of those things, then he retains ownership of that food, and has the right to dispose of it as he wants.

Now, back to my example. You still have not answered my direct question. For the third time, I ask: In my scenario, what is the particular act that constitutes “aggression”?

Kerem Tibuk February 18, 2010 at 7:55 am

Jay,

“Firstly, get with the times, most of us have dropped using the word “scarcity” in favour of the word “rivalrous”. You are a prime example of the reason we did this. Now there can be no confusion.”

But why is there a rivalry? Maybe it is because the resource is scarce? So you are not changing the essence of the argument by using “rivalrous” instead of “scarce”. Your framework is the same. You are just trying to wiggle out of a tough situation.

But I will indulge you and use the term rivalrous.

“Secondly, Crusoe did lose something, he lost possession of his food. His reasons for wanting to retain its possession are irrelevent. Deny it all you want, but if Crusoe wants to retain possession of that food then that automatically means he sees value in retaining it. Or are you denouncing the action axiom now?”

The point is, the excess food that Crusoe can not possibly consume, is not rivalrous. Not naturally anyways. Yes Crusoe, based on his whims, be a still a rival and create a conflict over the excess food but that is not any different than an IP owner still being a rival over the IP and create a conflict.

And yes, Crusoe does see value in retaining the excess food if he bothers to retain at all. But so can he see value in retaining the virginity of his IP. There is no difference.

“Thirdly, you are making the mistake of treating a metaphore literally. “Intellectual property” is a metaphore. “Uncopied IP” simply means that a possible arrangement of tangible materials has only one physical manifestation (ignoring the manifestations that exist in human minds).”

No, it doesnt mean that. Uncopied IP is uncopied IP. You can go ahead and create your own, even exactly as mine there is no problem. Do you understand the act of copying?

“For this state of affairs to continue, everyone else must be prohibited from arranging their materials into that arrangement.”

Again the act in question is copying not independent discovery.

“Therefore, saying that Crusoe values “uncopied IP” actually means that he values that nobody else has the freedom to arrange their materials into that configuration.”

No, it does not. It means Crusoe does not want to associate with anyone that he doesn’t want to. Crusoe can only have rightful control over himself and his property. That is what property rights is.

“It is a mistake to associate “property” with “value”. Any attempts to formulate a value-based property system will result in absurd outcomes.”

You are the one that is doing that not me. By bringing in scarcity (sometimes by using the concept of rivalry) you are necessarily bringing in value because scarcity is a condition of supply that is closely related to value. And since you also bring in conflict you are bringing in valuations of more than one person.

In natural rights ethics this is not the case. Only the value to the producer is relevant. I homestead something because I value it not because someone else does or it is scarce thus can possibly create a conflict. And I don’t lose the ownership of the property if no one else value. I may paint a picture and it may be worthless to anyone else. The picture is still mine.

But in your framework for something to be property two persons valuing it is a necessary condition. Which is absurd.

“A better system is a rights-based property system, as I have described many times. “Ownership” is determined only where they is a contradiction of rights. Such a system has no internal contradictions and human freedom of action is maximised.”

There is no contradiction in my understanding of property rights, and you haven’t shown any.

But as you can see your position is quite shaky because even tangible goods can be produced so much that rivalry disappears. If you want to be consistent you should also claim that, individuals should lose ownership of their tangible property if it becomes super abundant thus non rival.

Kerem Tibuk February 18, 2010 at 8:42 am

Magnus,

You are just asserting that two situations are different but not showing how.

“This assertion is 100% false. Crusoe lost something that is easily identifiable — possession of the specific, concrete, definite, tangible, material articles of food that you call “extra.”"

Yes one is tangible the other intangible. But the important thing is their relationship to the individual, Crusoe. You have not shown how the property’s tangibility is relevant to the relationship with the property and the individual.

Also copying can be identified. But that is not the point of ethics. The important part is, whether the individual that is facing the ethical choice can act either this way or that way. When you copy Crusoe’s IP, you know what you are doing. You know you can either get Crusoe’s consent or not.

“It is irrelevant if Crusoe plans (or even has the capacity) to “use” this “extra” food by eating it or not. He already owns it, and therefore he can only lose ownership of it by (a) transferring rights in it to to someone else, or (b) abandoning it, which would render it un-owned.”

Yes I agree. And I also claim the situation is no different when it comes to IP.

It is irrelevant that Crusoe still has the IP after it has been copied. He already owns it, and therefore he can only lose ownership of it by (a) transferring rights in it to to someone else, or (b) abandoning it, which would render it un-owned.

“The issue of whether someone is actively “using” an article of property is only relevant in the act of homesteading — converting unowned objects into owned ones. In your example, Crusoe’s “extra” food is already owned by him, since he grew it. He does not have to continue to use it to continue to own it. He merely needs to refrain from transferring it or abandoning it. If he does not do either of those things, then he retains ownership of that food, and has the right to dispose of it as he wants.”

Again all of this is also true for IP. I can replace the food with some IP and all this you said would still be true, contradiction free and according to natural law.

“Now, back to my example. You still have not answered my direct question. For the third time, I ask: In my scenario, what is the particular act that constitutes “aggression”?”

I have answered this many times.

Unauthorized copying is what constitutes aggression. It is not out right initiation of force but just like the case of fraud it is implied use of initiation of force. All Crusoe wants is to be left alone regarding himself and his property but you deny him this right when you claim you have a right to his fruits of labor.

Magnus February 18, 2010 at 8:56 am

I think it’s time for a clear definition of “rivalry.”

“Rivalry” is the interference between a person’s use of a particular article, object or substance and another person’s use of it.

Ownership is based on rivalry, but it is broader than mere use of a rivalrous thing. Ownership is perpetual once acquired, and ends only by an act of transfer or act of abandonment.

antiip February 18, 2010 at 9:00 am

to Kerem Tibuk

You simply do not get the concept of scarcity:

Each object in this universe only exists once in time and space (that is the concept of space itself!). So no matter how many objects one owns, each of his objects is unique.

Information itself is always stored in objects (e.g. in our brains). Information itself is NOT unique. Information is not scarce, because only objects/matter can per definition be scarce (because of time and space).

Do you get it now?

antiip February 18, 2010 at 9:07 am

In the end the question that matters is: Do you think that only matter can be owned or do you think that “pattern rights” are supreme (because if you think that patterns/information can be owned, these “rights” would instantly diminish material property rights)?

You have to choose.

Magnus February 18, 2010 at 9:42 am

Kerem,

You are confusing contracts and property. Contracts are a matter of the agreement between the parties involved — what matters is what both sides understood and believed at the time they created a contract. A “meeting of the minds” is the term of art.

Property is different. Property rights are acquired, transferred or lost through the ACTS of the property-holder in question. It doesn’t strictly matter what the recipient believed or understood. What matters is what the putative owner or holder of the property rights in question did or did not do to acquire, transfer or lose those rights.

In my example, I was not being remotely dishonest when I said there was no clear expression or discussion between Crusoe and Friday about what rights were or were not being transferred.

In my example, Crusoe acted by showing Friday how he farmed, how he kept a calendar, and by telling him a story. Let’s assume that Crusoe made no other acts, and made no other statements about what rights he was claiming to keep or to give.

Now, under this scenario, you have said two contradictory things — on the one hand, you claim that Friday needed Crusoe’s consent (which is a kind of act that is relevant to the transfer of property rights) to use the methods, calendar and tell the story, but then you contradicted yourself by then claiming that Crusoe would have lost all IP rights unless he affirmatively placed “conditions” as (or before) he showed the methods, calendar and story to Friday.

You really can’t have it both ways.

You can dodge the question all you like, by accusing me of being disingenuous or dishonest, but you are incorrect. I think you should answer a direct question — what kind of act do you believe should be considered effective to transfer or lose IP rights? What specific, behavioral or verbal act does Crusoe have to engage in for him to lose or transfer these supposed IP rights to Friday? Or does he, by default, retain all IP rights in the information if he merely reveals it to others, but does nothing else?

And, you still have not answered my question about what constitutes the alleged act of aggression. You said it is “copying.” But that is not addressing the point. Please identify a specific, behavior or verbal act by some Islander that constitutes aggression, and therefore justifies the use of the British Navy’s cannons.

Mashuri February 18, 2010 at 11:46 am

Mark Hubbard

The answer is yes, tough mate.

Ok, so why do you think a system where non-rivalrous IP rights trumps rivalrous physical property rights is morally superior when it results in far more conflict and confrontation?

Kerem Tibuk February 18, 2010 at 12:00 pm

Magnus,

You are still stuck on the the terms of the exchange being unclear.

This situation is not unique to exchanges of IP but also true for tangible property. Thus this situation doesnt prove the illegitimacy of IP.

Lets say I own a car and one day I gave you the keys. Did I transfer all ownership rights of the car to you? Or did I give conditional exchange, on the condition that you drive around a bit and bring it back?

It is clear there is confusion but what does this confusion have to do with property rights?

And contracts are agreements that contain conditions regarding exchange of property and nothing else. I know what property is and I know what contracts are.

Kerem Tibuk February 18, 2010 at 12:01 pm

Magnus,

You are still stuck on the the terms of the exchange being unclear.

This situation is not unique to exchanges of IP but also true for tangible property. Thus this situation doesnt prove the illegitimacy of IP.

Lets say I own a car and one day I gave you the keys. Did I transfer all ownership rights of the car to you? Or did I give conditional exchange, on the condition that you drive around a bit and bring it back?

It is clear there is confusion but what does this confusion have to do with property rights?

And contracts are agreements that contain conditions regarding exchange of property and nothing else. I know what property is and I know what contracts are.

Comments on this entry are closed.

{ 1 trackback }

Previous post:

Next post: