Unlike you, I do not formulate my theories because their outcome would suit me or a specific person. I formulate them in order to determine how things are, instead how they should be. Surely as a scientist you are familiar with the principle of falsifiability? I have incrementally tried various approaches to IP. In the beginning, I was an IP proponent. However, successively it turned out that the evaluated theories did not match reality, contained contradictions or gaps in argumentation. The one that I formulated above is the current result of the process. So far, I wasn’t able to falsify it and neither were IP proponents. I expect IP proponents to go through a similar process, questioning their own assumptions. Sadly, this is not what IP proponents are doing. Their reactions are typically a bunch of fallacies, pseudo-religious doctrines and unproven utilitarian assumptions.

The example you provided is not a proof. The story described might be true, but the “proof” depends on the assumption that without IP, the costs would be higher than the revenues. First of all, since IP influences both costs and revenues, there is no apriori reason why it should be so. It could very well be that IP is the reason for the costs being so high and your causality is reverse. Second, both costs and revenues are changing variables, so the outcome could be that the time to discover it without IP might simply be different (e.g. later). Third, you neglect the concept of opportunity costs. It is possible that the extra money that was spent on the development might have bought bread for people that instead starved to death.

If you want to persuade me, you need to abandon a method of argumentation that is based on beliefs and emotions.

You are of course correct that utilitarian approach necessitates the weighting of goals. Again this does not invalidate my claims.

As I have been trying to explain multiple times to various people and typically without any effect, unless you deny the validity of externalities, you can never obtain the full income generated by of any of your “product of mind”. From the income perspective, accepting IP as property only has a quantitative, not a qualitative, effect on the profits. Even without IP, you are free to use your ideas and results of reasearch to earn money by contractual relationships or using some of the methods I described in a different post. Ceteris paribus, you would earn less money. But of course there is no ceteris paribus in reality. Apart from the revenue effect mentioned, the presence/absence of IP also influences costs, and relative profitability of different business models. Your unwillingness to change the ways you conduct business in order to adapt to the changed conditions on the marketplace is a very weak argument to defend your position.

Any market restriction whatsoever causes some people to be better off by relieving the pressure of competition from them. Any removal of a market restriction whatsoever increases the market pressure on some people and these protest. Why should your dissatisfaction take precedence over the others’? Because the results of your work have beneficial effects? Results of all market restrictions have some beneficial effects. Why should those you favour have precedence over the others?

As I said elsewhere, I have no problem per se in accepting property rights in immaterial goods as a valid theory, provided:
- utilitarian net benefit is demonstrated, or
- natural boundaries are explained

While I doubt that IP proponents will manage to do either, since I can’t disprove either, I encourage them to attempt.

Contrast this with contractual handling of immaterial goods (which is what some IP opponents on this site, including me, favour). The boundary is defined inside the contract. There is no need for it to be “objective”, “natural” or have a positive utility. All that is necessary is that the parties involved agree on the boundaries. Third parties’ opinions are irrelevant.

The first is to assert as premises: if something is tangible then rights exist. IP is not tangible, therefore rights do not exist.

Well, I don’t make an assumption like this. I wouldn’t mind accepting a theory that claimed that there are property rights in intangible goods. What I mind is a theory that says that some intangible goods can be property and some can’t. My objections to the concept of immaterial goods as property is the inability of IP proponents to explain:
- how to differentiate between those goods that can be property and those that can’t
- how to establish boundaries of immaterial goods

I consider it possible, although unlikely, that some day an IP proponent will actually be able to answer these questions.

Your explanation of how patents work does not invalidate my point. It just shows additional arbitrary conditions. Why should they be any more relevant than my dibs?

Several, including Xavier and Stephen, have pointed to the fact that “reputation,” like intellectual property in general, is intangible. This is a very relevant point, as it goes directly to the heart of this discussion. But it still fails to address the central question of whether there are “rights” that exist in these intangibles that should be protected by law. It is here that I maintain the argument against IP (or defamation) law fails.

As I think about this, there are two ways to frame the argument. The first is to assert as premises: if something is tangible then rights exist. IP is not tangible, therefore rights do not exist. While we would all probably agree with the premises, this is, unfortunately, the classic fallacy of denying the antecedent and is invalid on its face. Premises are true, but they don’t lead to the conclusion.

The second way to frame the argument is: If something is intangible, then rights do not exist. IP is intangible, therefore rights do not exist. This is a valid modus ponens argument, but the first premise is not established well enough to consider the argument sound. The prevailing presumption is that rights do/should exist in intangibles. it is here that the discussion should focus.

who knows what the what the “prevailing assumptions” are? depends on who you ask. most people know the law, but many may not support it ideologically, or they may. this is unknowable.

the anti stance argues for a legal vacuum, no active imposition of costs, so it’s to the pro side to make an argument for the continuing funding of the existing programme.

Allow me please then to address your objections. First of all, as far as I know, the law does not claim copyright, patents, trademarks etc are property. Furthermore, the term “intellectual property” is not present in the law. It is a colloquial expression that tries to put these laws under a common umbrella. None of the natural rights-based pro-IP theories I heard so far match the current legal system.

Second of all, I admit that from certain point of views, the burden of proof is on me arguing for a change. I do not claim such a point of view is invalid, I merely am not interesting in addressing it.

There are two types of pro-IP theories. The natural rights ones, which tries to establish objective criteria for property definition, and the utilitarian ones, which try to create such a property definition that maximises utility. I rarely discuss the latter. I think it has been addressed sufficiently in Against Intellectual Monopoly by Boldrin&Levine. Furthermore, since I realised that although I had been a software engineer all my career, I have not used either copyright or patent to earn money, I lost personal interest in defending utilitarian IP arguments. I had not actually tried to avoid IP deliberately, just for whatever reason, none of my jobs or business activities depended on it. It is possible that on occasions which I cannot recall my income did depend on copyright or patents, but all those that I can recall (i.e. overwhelming majority) did not. Furthermore, many utilitarian IP proponents do not consider it even plausible that the costs outweigh the gains and IP could be a net loss, so a debate with them is pointless.

So what remains is the natural right IP theories. My efforts are actually more limited. I am merely interested in finding a property theory that allows to determine property boundaries objectively. To rephrase it, a natural right property theory should, if all facts are known, directly determine the boundaries. My theory, stated above, fits this criterion. I consider it theoretically possible that a pro-IP theory that fits this criterion also exists and have been pleading for IP proponents to formulate it. Regrettably, all of them so far failed to do so. Their theories do not allow objective boundary determination and depend on subjective evaluations.

To summarise, my efforts are strictly scientific and follow the path of falsifiability. True, I have not been able so far to exclude the possibility of the existence a natural right IP theory (I was forced to retract some of my attempts which proved insufficient). However, I have proposed a consistent natural rights property theory that does not include IP, while IP proponents have failed to present a consistent property theory that includes IP. By all means, I encourage them to do so. It is by the attempts to refute opponents’ arguments that human knowledge progresses.

But first let me mention that (and this is important for I doubt the Court will ignore it) the title of Mrs Walker’s book “Aux Malheurs des Dame” (which I translated as “The Ladies’ Misfortunes” ) is a clear reference and pun on the famous 1883 Émile Zola’s novel: “Au Bonheur des Dames” (“The Ladies’ Paradise”).

Zola’s story is set in the world of the department store, an innovative development in mid-nineteenth century retail sales. The plot is played against the career of Octave Mouret, the owner of the store Au Bonheur des Dames, whose retail innovations and store expansions threaten the existence of all the neighborhood shops.

The main difference between Émile Zola and Lalie Walker, beside their notoriety and literary skills, is that in the case of “Au Bonheur des Dames”, Émile Zola did not mention “Le Bon Marché” by name. But he made sure, thanks to his literary prowess, that the reader knew exactly which famed department store of the time he was actually targeting in his social satire. He never got sued for that.

Now to the reference by some to the anti-semitic character of the book or the case: it’s nonsense!

Artisan: if you finally admit as you say in your own words that “its only a slight allusion to the unmistakably Jewish environment of the store.”, why even mention it in the first place?

Furthermmore, there is nothing “unmistakably Jewish” in this case or in the novel. The owners of the actual store might be Jewish. So what? In the book the owners are not! And Montmartre has never been considered a Jewish neighborhood of Paris either. Saint Paul-Le Marais has always been and is still the Parisian Jewish district by excellence. It’s not because a Jewish name is mentioned right after a dollar amount, or that you have a Jew and money involved at the same time in a fictional plot that anti-semitism is an element to be taken into consideration. Anti-semitism has absolutely nothing to do with the topics at hand. So again, stop the non-sense and stick to the subject.

Also, the legal case mentioned is an IP one too, albeit indirectly. If one can’t even remotely use a landmark name without prior approval of its rightful owner (which is the case in Marché Saint-Pierre vs. Lalie Walker/Francois Besse/Parigramme Publishing/Philippe and Helene Madgelonnette and the whole world,read the article in English below) IP law is inferred.

And as Robert Gabbay, CEO of the company that owns Marché Saint-Pierre said himself irritatingly: “This book mentions our brand! It’s a trademark! This place is protected by law! No one can touch nor speak of the Marché Saint-Pierre without the permission of its owner and manager. What’s next?! This is slander!”

THE ORIGINAL ARTICLE TRANSLATION:
So far, no filmmaker or novelist had been sued because he had his hero jump off the bridge of the Tournelle before murdering half of his characters at the Gare de l’Est train station.

In the “Da Vinci Code”, the curator of the Louvre is murdered. The movie by Jean Mitry, “Mystery at the Folies Bergere,” tells of mysterious murders in the concert hall of the same name and Gaston Leroux transforms in his novel “The Phantom of the Opera, the Opera Garnier into a haunted house.” These three literary works and hundred of others taking place at actual landmark places have one thing in common: they have never been sued for libel.

On the other hand, Lalie Walker, a thriller novelist, find herself sued for libel and insult because the plot of her latest detective novel takes place at the Marché Saint-Pierre, in the eighteenth arrondissement of Paris.

“The Ladies’ Misfortunes” published in the fall of 2009, begins with the disappearance of Violet, a cashier at the Marché Saint-Pierre. A strange odor of burnt, an other missing person, Voodoo dolls nailed to the doors of the department store, the bizarre behavior of its managers … that is the eerie atmosphere that prevails at this old Parisian department store.

This is the setting for Lalie Walker’s latest novel for which she warns us in the foreword:

“If the Marché Saint-Pierre does exist, and many elements of this novel come from my own wanderings and encounters at Marché Saint-Pierre, everything here is fiction. For fiction only could allow me to dig the recesses of the human psyche.

It is my vision of Marché Saint-Pierre, a very reputable and well visited place, that I give here, and which serves me as a fictional place and unity of time.”

“This Is slander!”

Village Orsel, Administrator of Marché Saint-Pierre (owned by the Dreyfus family), does not see it that way. The trademark owners of “Marché Saint-Pierre” have subpoenaed Francois Besse, founder of Parigramme Publishing, and Lalie Walker. They demand to stop any further distribution of the book, withdrawal it from circulation, as well as two million euros in reparation.

Contacted by Rue89, Robert Gabbay, CEO of the company, was irritated:

“This book mentions our brand! It’s a trademark! This place is protected by law! No one can touch nor speak of the Marché Saint-Pierre without the permission of its owner and manager. What’s next?! This is slander!”

Revenge?

The long reading of the subpoena before the Correctional Court shows that the management at Marché Saint-Pierre is not only suing the author and her publisher but also two of its former employees, Philippe and Helene Madgelonnette

Laid off in 2006, this couple demonstrated daily for three years in front of the Marché Saint-Pierre to protest their firing. According to the court summons, there is no doubt in the eyes of the Management that:

” The author is clearly tele-guided by Monsieur et Madame Magdelonnette’s hate and desire of vengeance against Messieurs Elbaz and Gabbay, and their desire to see the store going downhill”

“I have never met them,I did not even know their story,” says Lalie Walker. Her editor, Francois Besse, confirms:

“This connection is ludicrous. Neither the author, nor I know them. We’ve never met them. And it is not the intent of the book. This is not an investigative report on the social working conditions at the store.
It’s a detective novel, a fiction! Writing a book tele-guided by former employees who seek revenge would require an incredible hand!”

Can a Fiction Be Insulting?

To this accusation is added the one of writing a book against the five floor fabric store and its customers. Backing his accusation with excerpts of the totally fictitious novel, Village d’Orsel accuses:

“This constitutes slander with aggravating circumstances, meant to affect the honor and respect of the plaintiffs to scare away the customers once more.”

This excerpt for example is deemed offensive:

“Rumors were running around every day with a little more frenzy and virulence about strange cloth dolls nailed to doors and wooden shelves. The Michel brothers reportedly received anonymous death threat letters. Violet Margelina would have been kidnaped to extort alleged millions …”

Further in the book, when Lalie Walker has one of her characters say that the Michel brothers, owners of the fictitious stores, might be the kidnapers, the actual owners are offended:

” Those abductions of women charged on the Marché Saint-Pierre Management are defamatory, and undermine the honor and respect of the plaintiffs.”

It would take too long to list all the numerous book extracts at fault.

No Confusion Possible

William Savage, a lawyer specializing in communications law, said he was very surprised:

“”The book was published by Parigramme in its Black 7.5 Collection. As the name of the collection suggests, it is clearly a fictional thriller. A foreword reminds the reader of the fictional character of the novel at the beginning of the book.

There could be libel even in fictional works. But the distinguishing criterion is when confusion may arise between reality and fiction. When you read the book, there is no such confusion possible. No actual people’s name is mentioned. The owners of the store in the book are brothers. Which is not the case in reality.

Two million Euros is excessive. It’s not even in the usual range of cases of libel. ”

Should reference to landmark places in fictional work be subject to the place owner’s approval? Or, as suggested by one of Marché Saint-Pierre’s manager, one should only speak well of a landmark to have the right to mention its name?

Lalie Walker is stunned:

“I went to Marché Saint-Pierre a few times. But I wrote a novel. It is entirely fictitious. I only set the imaginary at Marché Saint-Pierre and in Montmartre. It’s like charging Léo Malet for his stories about Nestor Burma in Paris.

I really don’t understand what I’m doing here in this legal case with so high a financial stake. This case threatens authors. It will be hard for us to do our job if we are sued for our fictional works.”

Rue89 has read the novel. And it strikes us that no connection with reality, even implicit is possible. Except the name of the landmark. François Besse (founder of Parigramme Publishing) and Lalie Walker must appear before the judges of the 17th Chamber of the Correctional Court of Paris on 9 April.

You are arguing the wrong question. I am NOT saying that IP law is right or wrong, and I am certainly not arguing in support of IP law. I AM saying that, because the prevailing presumption is what it is, that those who would change it have the burden of proving their case, not the other way round. Your argument is both a red herring and a straw man. The legitimacy of slavery is totally irrelevant to the question of whether there is agreement on the premise that intellectual product is not property, and to attempt to equate the moral repugnance of slavery with that of IP law is to cast the discussion is a falsely, and grossly overstated, negative light.

I have deliberately not stated my opinion one way or the other, but have focused on the validity and soundness of the argument. An argument is valid if the premises, assuming they are true, lead inescapably to the conclusion. An argument is sound if it is both valid and the premises are true, such that the conclusion must be true. My point — and this is the only point I am trying to make here — is that the premise that intellectual output is not “property” neither leads inescapably to the conclusion that IP should not be protected by some sort of property right (by whatever name you may wish to call it), nor is this premise well enough established and agreed upon that that if it did lead to that conclusion, we could call the argument sound.

While your argument makes sense, you imply that those who disagree with you have the burden of proof. Since IP law is well established and has been in place for centuries, you are arguing against the prevailing presumption, and therefore you have the burden of proving your assertion, not the other way around. My point is not that your position is wrong, merely that it fails to meet its burden. The mere fact that IP law exists and that many people accept it as fact establishes that the argument for IP has succeeded. This is not to say that it should succeed, merely that it has succeeded, for good or ill. If IP law is to be changed or eliminated, then those who argue for the change must prove their case.

I would also point out that your argument that “Until you explain the distinction or confirm that there is none, the argument for IP will fail,” is, in this case, an argument from ignorance. The absence of evidence to the contrary of your argument is not evidence in support.

I understand your point about measurable change and boundaries, but I would point out that this definition is also arbitrary. It is one of many possible definitions. Ultimately, the definition of property is what people agree to as the boundaries of property. Just as Stephen argues that “defamation” could be considered “IP.” In fact, the concepts of property, measurement, boundaries and so forth are ideas. We are actually arguing about the “boundaries” of an “idea.”

It seems to me that it would be more fruitful to base a case against IP on some measurable benefit from changing the current way we look at IP rather than trying to argue that the immaterial product of the mind is not property. Under the current conditions it is presumed that protection of IP provides an incentive to produce intellectual works, and therefore provides some measure of protection for the risk involved in bringing forth new intellectual goods. Is this somehow malinvestment? Would eliminating IP provide a better incentive/disincentive mix? Would the change result in less litigation, in turn resulting in less destruction of wealth? Is it better to resolve disputes of defamation on the plains of Weehawken rather than in a court of law? Would it redistribute wealth such that you and I would be rich and Bill Gates not rich? What change do you think to create? Why should your definition prevail against the currently prevailing definition?

Let me reiterate that I am not saying the position against IP is wrong; I am saying that the case hasn’t been fully made. The weak premise is the disagreement about the definition of what “property” is. Even if we decide that intellectual output should be called by another name, I am still not convinced it should not be afforded the protections we currently call IP rights. Without agreement on that question, the argument fails because your opponents will find it unsound.

Until you can establish that a person is not entitled to the fruits of his intellectual labor and effort, without simultaneously destroying the idea a person is entitled to the fruits of his efforts toward improving physical things, the argument against IP will fail.

What is “fruits of intellectual labour” and how is it distinguished from externalities? Until you explain the distinction or confirm that there is none, the argument for IP will fail.

If you use a physical good, this causes a measurable change in the good (even temporary). The concept of measurable change determines the boundaries of property. If you attempt to use an immaterial goods, there is no measurable change in the immaterial good. The only way to establish “use” of immaterial goods is by using metaphors and subjective evaluation. This is why it is an unsuitable base for boundaries. It is subjective, and can mean literally anything.